U.S. v. Smith

• Decision Date: 16 September 2010
• Docket Number: No. 10-04256MP-001-PCT-MEA,10-04256MP-001-PCT-MEA
• Parties: UNITED STATES of America, Plaintiff, v. James T. SMITH, Defendant.
• Court: U.S. District Court — District of Arizona

740 F.Supp.2d 1111

UNITED STATES of America, Plaintiff,
v.
James T. SMITH, Defendant.

No. 10-04256MP-001-PCT-MEA.

United States District Court,
D. Arizona.

Sept. 16, 2010.

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Camille Deanne Bibles, U.S. Attorney's Office, Flagstaff, AZ, for Plaintiff.

ORDER

MARK E. ASPEY, United States Magistrate Judge.

Before the Court is Defendant's Motion to Dismiss. Defendant was cited for failure to pay a recreation fee, in violation of 36 C.F.R. § 261.17, a misdemeanor infraction for which the maximum fine is $100 for a first offense. ¹

I. Standard for granting or denying a motion to dismiss a criminal charge

Federal Rule of Criminal Procedure 12(b)(2) provides "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed.R.Crim.P. 12(b)(2) (2010). A charge may

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be dismissed if it is subject to a defense that may be decided solely on issues of law. Cf. United States v. Flores, 404 F.3d 320, 324 (5th Cir.2005); United States v. Labs of Va., Inc., 272 F.Supp.2d 764, 768 (N.D.Ill.2003) (in the context of a motion to dismiss an indictment). See also United States v. Marzook, 426 F.Supp.2d 820, 823-24 (N.D.Ill.2006); United States v. Bodmer, 342 F.Supp.2d 176, 180 (S.D.N.Y.2004). Arguments raised in a motion to dismiss that rely on disputed facts should be denied. See United States v. Caputo, 288 F.Supp.2d 912, 916 (N.D.Ill.2003), citing United States v. Shriver, 989 F.2d 898, 906 (7th Cir.1992).

II. Background

On November 2, 2009, a United States Department of Agriculture National Forest Service officer patrolling the Vultee Arch Trailhead parking area placed a citation on a parked, unoccupied vehicle registered to Mr. Smith. The citation was for failure to display a "Red Rock Pass" or other pass indicating Mr. Smith had paid a required recreational fee, in violation of 36 C.F.R. § 261.17. Mr. Smith and the government agree, for the purpose of deciding the motion to dismiss, that he parked his truck at the parking area for the Dry Creek Trail, near the Vultee Arch Trailhead, and that he backpacked overnight in an undeveloped location and camped overnight, accessing that area via the trail, and that he returned to find the citation on his vehicle. This is Mr. Smith's first prosecution for this offense.

The relevant section of the Code of Federal Regulations was promulgated in 2005, and provides: "Failure to pay any recreation fee is prohibited. Notwithstanding 18 U.S.C. 3571(e), the fine imposed for the first offense of nonpayment shall not exceed $100." The Federal Lands Recreation Enhancement Act ("FLREA"), enacted in late 2004, provides: "The failure to pay a recreation fee established under this Act shall be punishable as a Class A or Class B misdemeanor, except that in the case of a first offense of nonpayment, the fine imposed may not exceed $100, notwithstanding section 3571(e) of Title 18, United States Code." 16 U.S.C. § 6811(d) (2000 & Supp.2010). The term "recreation fee" includes a standard amenity recreation fee. See id. § 6801(8).

Mr. Smith asserts the requirement that he pay to park at an undeveloped trailhead and to hike and camp at undeveloped locations is void because it is ultra vires,² i.e., beyond the authority given to the Forest Service by Congress. Mr. Smith contends requiring him to buy a Red Rock Pass to park at the Vultee Arch Trailhead and to hike the Dry Creek Trail contradicts the FLREA's proscription of charging any fee for parking or access. Mr. Smith further argues that, because the site where he parked does not contain the amenities required by the FLREA of "areas" where an amenity fee may be charged, the requirement that he pay the Red Rock Pass fee at the Vultee Arch Trailhead parking lot is not authorized by the FLREA. Defendant also asserts the Forest Service's interpretation of the Federal Lands Recreation Enhancement Act, as evidenced by the Interim Guidelines promulgated to authorize the fee he is accused of failing to pay, would not put a reasonable person on notice that their actions violated the regulation requiring payment of a fee, subjecting them to criminal charges.³

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In its opposition to Defendant's motion to dismiss the government states the Forest Service may charge an amenity fee at the Vultee Arch Trailhead parking area because the agency has interpreted the FLREA as allowing the agency to combine or include sites that do not have the required amenities with sites that do have the required amenities to create an "area" where an amenity fee may be collected.

III. Relevant statutory and regulatory scheme

A summary of the evolution of public lands recreation fees is helpful to understanding and resolving the issues pending before the Court.

A. The Recreational Fee Demonstration Program

As a result of the Land and Water Conservation Fund Act of 1965, for the first time Congress permitted federal land-management agencies to charge the public a fee for recreating on federal lands; however the fee was authorized only when certain facilities were provided by the agency to the public. This situation remained the status quo for thirty years.

In 1996 the United States Congress enacted the "Recreational Fee Demonstration Program." Pub.L. No. 104-134, § 315, 110 Stat. 1321 ("Fee Demo Program"). The Fee Demo Program legislation required the Forest Service and three other federal land-management agencies to develop a pilot program to "charge and collect fees for ... [the] use of outdoor recreation sites." Pub.L. No. 104-134, § 315(a) & (b)(1). Congress instructed the Forest Service to "carry out this section without promulgating regulations." Id. § 315(e), (f).

The Fee Demo Program legislation permitted the subject land-management agencies, including the Forest Service, to charge fees for the use of basic facilities, such as parking lots at trailheads, for the first time.⁴ It was anticipated by Congress that the fee demonstration sites or areas would be large campgrounds or complexes, visitor centers, watersheds or natural areas, and could include an entire administrative unit if division into smaller units would be difficult to administer. See United States v. Morow, 185 F.Supp.2d 1135, 1139 (E.D.Cal.2002). Congress' stated purpose in enacting the Fee Demo Program

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was to shift more of the operations costs of public lands onto the agencies managing those lands, and also to address the need for funds to reduce an acknowledged and extensive public lands maintenance backlog. The Fee Demo Program provided that eighty percent of the generated revenue would be returned to the national parks, national forests, and other public lands where the fees were collected. Pub.L. No. 104-134 § 315(c)(1)(A) & (c)(2)(A).

In the Red Rock Ranger District of the Coconino National Forest the Fee Demo Program resulted in the requirement that visitors to the National Forest purchase and display a "Red Rock Pass". The Fee Demo Program was avidly disliked by some sectors of the public and numerous individuals throughout the country charged with failing to pay the fee challenged their citations in the federal magistrate judge courts. See, e.g., Kira Dale Pfisterer, Foes of Forest Fees: Criticisms of the Recreation Fee Demonstration Project at the Forest Service, 22 J. Land Resources & Envtl. L. 309, 340-42 (2002); Brandon C. Marx, Why Not Make It Voluntary? Controversy Over the Recreation Fee Demonstration Program, 17 J. Envtl. L. & Litig. 423, 423-27 & 435-36 (2002). However, the validity of charging fees for "recreating" in and parking on the National Forests, pursuant to the Fee Demo Program, were regularly upheld by the federal courts. See United States v. Dahl, 314 F.3d 976 (9th Cir.2002); Morow, 185 F.Supp.2d at 1138-39 (finding a defendant who hiked into a recreational fee area and camped could be required to pay a user fee); United States v. Siart, 178 F.Supp.2d 1171 (D.Or.2001) (concluding a parking fee could be a valid recreational user fee).

B. The Federal Lands Recreation Enhancement Act

On December 8, 2004, Congress passed the Federal Lands Recreation Enhancement Act (FLREA), as part of the 2005 Consolidated Appropriations Act. See Pub.L. No. 108-447, § 801, 118 Stat. 2647. Perhaps most notably, the FLREA specifically repealed the Fee Demo Program, id., § 813(b), and accordingly, any federal land user fee authorized by the Fee Demo Program was no longer authorized by Congress. See 16 U.S.C. §§ 6802(a) & 6812(b) & (e)(3).

The FLREA authorized the Secretary of the Department of Agriculture, i.e., the Forest Service, to establish, charge, and collect recreation fees on the National Forests in certain circumstances. The agency's power to establish fees was limited to establishing regulations in accordance with criteria set forth in the FLREA, including the following:

(1) the amount of the recreation fee must be commensurate with the benefits and services provided to the visitor;

(2) the Secretary must consider the aggregate effect of recreation fees on recreation uses and recreation service providers;

(3) the Secretary must consider comparable fees charged elsewhere by other public agencies and by nearby private sector operators;

(4) the Secretary must consider the public policy or management objectives served by the recreation fee;

(5) the Secretary must obtain input from Recreation Resource Advisory Committees established by the FLREA; and

(6) the Secretary must consider other factors or criteria that he or she determines are appropriate.

16 U.S.C. § 6802(b) (2000 & Supp.2010).

The FLREA mandates the Secretary of Agriculture to provide the public with

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opportunities to participate in the development of recreation fees established pursuant to the authority granted by the legislation. Id. at §§ 6802(b)(5) & 6803(a).⁵ The FLREA directs the Secretary to establish the minimum number of recreation fees and to avoid the collection of multiple or...