Trial occurred 10/16/01 in Redding, CA, before U.S. Magistrate Judge Craig Ellison. Case number F2178313/CA49. U.S.of A. vs. Tom Morow.
Below are the details about the case against myself, Tom Morrow, for failing to pay the recreational fee.
On May 19-20, 2001, I (Tom Morrow) climbed part of the way up Mt. Shasta. I had written a page long note saying
"To Whom it may concern: On my visit to climb Mt. Shasta on May 19-20, 2001, I am engaging in civil disobedience by not paying the $15 fee for climbing Mt. Shasta. To ticket me or make record of this incident, you may reach me at... [my name, address, phone, and email]"
The note went on to list the reasons I am against the fee demo program. I deposited this in the Use Fee tube where people normally put their $15 "Summit Pass" fees. I did not pay the fee. I had also deposited a similar note a year ago in the fee tube a year ago in 2000. There were signs saying that the fee and Summit Pass are required over 10,000 feet, and my partners paid the fee. The trip was organized at the Unitarian Universalist Church of Berkeley, and myself and my two climbing partners were church members. The same church members have climbed Shasta four times, once a year.
On May 19 we hiked up to Helen Lake and camped. We encountered ranger Matt Hill, who was a very helpful and congenial guy. He checked for Summit Passes, and I told him that I didn't have one. We spoke for a little while about the merits of the fee demo program. He said that the fees were good because good things were being done with them like better human waste handling programs, and paying his salary. I said I thought the fees were bad because they keep poor people out of the wilderness and lead to the privatization of our public lands. He asked me if I would like to be written up and I said yes. He wrote me a Notice of Non-compliance. I did not pay the $15 fee.
I received a notice by mail, and then a citation. I eventually got a notice to appear in court on 8/14/01 for the arraignment. I drove four hours up to the Redding court, and I pled not guilty. A few days before my 9/18/01 original trial date, the prosecutor called to say that the ranger was out of town and wasn't able to make it back in time due to the air travel moratorium following the World Trade Center attack. I agreed to continue the trial to October 16, 2001.
My citation says that I was being charged with violating the Code of
Federal Regulations: 36
CFR 261.15: Admission, recreation use and special recreation permit fees.
That regulation basically just says that you have to pay whatever fees the USFS establishes. It doesn't say what the fees actually are or when you have to pay them. The recreational fee demo fees were established by Congress in the "Omnibus Consolidated Recissions and Appropriations Act of 1996 (PL 104-134), in the section "SEC. 315. Recreational Fee Demonstration Program". That gives the USFS the ability to create the fees. Figuring out what fees the USFS has actually created is a bit more difficult. I asked the prosecutor what fee rule I had violated, and she faxed over an "Amendment to the Shasta-Trinity Recreation fee demonstration program business plan dated March 24, 1997". That contains a key paragraph:
"The Shasta-Trinity Recreation Fee Demonstration Program is a recreation
use fee program by design. Forest visitors participating in recreational
activities within the Program Area are required by law to pay a fee.
Visitors participating in non-recreational activities within the Program
Area are not required to pay the recreation use fees. The Forest
Service Handbook 2309.11, chapter 124.22-4 refers to non-recreational use
in the following manner "Entry or presence of persons on National Forest
sites, or areas of land or water for non-recreational (commercial, administrative,
scientific, etc.) purposes." Administrative passes are available
(Monday through Friday from 8:00 am to 4:30 pm) at the Mt. Shasta Ranger
Station for visitors who plan to participate in non-recreational activities
within the Shasta-Trinity Recreation Fee Demonstration Program Area."
[my bold added]
About 45 minutes before the trial started, the prosecution handed me a copy of the Business Plan itself, which is about 36 pages long, too long to fax to me. The title of the document is "Business Plan, Gate #3, Shasta-Trinity National Forests Recreation Fee Demonstration Program 3/24/97". I scanned through it and found an interesting paragraph on page 12, under the section on the Mt. Shasta Recreational Parking Plan Program:
"Adminstrative Passes will be available for Forest Service employees,
volunteers, service contractors and other employees conducting business
in the Fee Demonstration Area and for Native Americans participating
in cultural ceremonies within the Mt. Shasta Recreational Parking Program
Area, providing that prior arrangements are made with the Mt. Shasta District
office. Administrative passes will also be available for the caretakes
of the Sierra Club cabin at Horse Camp."
[my bold added]
The elements which the prosecution would have to prove in order to find
me guilty are:
1. Failing to pay the fee.
2. Being in a Program Area where the fee applies, at a time when it applies.
3. Being there for recreational purposes.
The first two would be fairly easy for them to prove since I had left a note saying that I was going to be failing to pay the fee, and the ranger did talk with me in a location where the fee applies. The third was the interesting one.
It was clear to me that I was there to participate in a religious ritual of fostering community with my fellow church members while communing with the mountain. Therefore I was not there for recreational purposes and the fee did not apply to me.
On 10/16/01, I arrived in the court after having driven four hours from my home. I was surprised to see that the prosecution had assembled quite a team. Chris R. Hartman, a "Supervisory Law Enforcement Officer", was the prosecutor. As witnesses she has Matt Hill, the ranger who cited me, and Brenda Tracy, the USFS Fee Program Manager. There was another guy with the prosecution who observed from the jury box. I never got his name. All those four people were there just for lawyerless little me!
The prosecution brought the ranger up on the stand, and asked him in excruciating detail about his encounter with me. A map was introduced as an exhibit showing that I was at 10,400 feet of elevation. Seven pictures of various signs were introduced as exhibits. Most of them said "Summit Passes are required above 10,000 feet". The ranger testified that these signs were posted at the trailhead where I began from. He testified that he and I discussed the fee demo program and that he wrote me a Notice of Non-Compliance. He testified that he didn't receive the fee. Basically he established that I was in the Program Area and didn't pay the fee.
On my turn to question the ranger, I asked him whether he discussed administrative passes with me. He didn't seem to know what I meant by "administrative pass", so I introduced the Amendment to the Business Plan as an exhibit, and had him read it out loud. I also introduced the business plan itself as an exhibit, and had him read the sentence about Native American cultural ceremonies not requiring a recreation fee.
I asked him whether he made a determination about whether I was recreating, and he said something to the effect that no, he just assumed I was recreating since I was up at 10,400 feet. The prosecution introduced a document which I think was the USFS handbook which gave definitions of what constitutes recreation. She had the ranger read that document where it said that hiking and camping were recreation activities. She asked the ranger whether I was hiking and camping, and he said yes.
I asked the ranger whether he was hiking and camping on the day when I ran into him. He said yes. I asked him whether he considered himself to be recreating. The prosecution jumped in and said "Objection, the witness is not on trial". The judge said "Overruled, I'm going to allow it". I told the judge that my point in this line of questioning was to establish that hiking and camping does not automatically indicate that someone is recreating. I asked the ranger whether he bought a summit pass for himself on the day when I ran into him. He said no. I asked why not, and he answered because he was working and he had an adminstrative pass.
I asked the ranger whether he advised me on the mountain that I could obtain an administrative pass. The answer was no. I asked whether any of the signs he had introduced as evidence indicate that non-recreational users don't need to pay the fee and can get an administrative pass. He said that no, none of the signs indicated that.
The prosecution brought Brenda Tracy, Recreation Fee Program Manager, up to the stand. She testified about how the program had been established by Congress and about how their implementation was properly authorized. Most of her testimony was on arcane regulatory issues that didn't seem particularly relevant. But one interesting thing came out. The prosecution asked her whether protesting is considered a recreational activity. She testified that protesting is not considered recreation and is not subject to the fees. The prosecution then went on to ask whether a person who is protesting and recreating simultaneously is subject to the fees and she said yes. I didn't have any questions for Brenda.
Then I was up on the witness stand. I told the judge that I was participating in a religious ritual by climbing the mountain, and told him about how my partners were church members, the trip was planned at church, and has occurred every year as a church outing. I testified that I was not there for recreational purposes. At the moment when I was speaking with the ranger, I considered myself to be protesting. I testified that at the time I was climbing I was not aware that the Summit Pass program did not apply to me; I thought the posted signs were correct that it applied to everyone above 10,000 feet regardless of whether they were recreating or not. That is why I did not bring up my religious purpose with the ranger when he wrote the citation.
The prosecution asked me whether it was true that my partners had confirmed they were recreating by buying Summit Passes. I said no, they did not confirm they were recreating, although they did buy the Summit Passes since the signs said they needed to.
The prosecution gave closing statement basically saying that the fee was lawful and applied to me, and I gave a closing statement saying that the fee does not apply to me because I was not recreating, and the prosecution has failed to show any evidence that indicates beyond a shadow of reasonable doubt that I was recreating.
The prosecution requested that the $15 recreation fee be transferred back from the court to the USFS if a guilty verdict is returned.
The trial ended a little more than an hour after it began.
The judge said that he would consider the evidence and come back with a verdict on November 9, 2001. He would mail it to me so I wouldn't need to be present. He said that he was willing to consider any documents I might want to mail him, and suggested that I consult with other people involved with fee demo cases or a lawyer for any legal information I might want to send him. He noted that this was the first fee demo trial he had heard; all the other ones in his court had been dismissed. He then launched into a warning about how I need to be careful about how committed I am to causes like this. He noted that he has the power to order me to comply with the fee demo program and if I subsequently violate those orders I could be subject to a $50,000 fine or 6 months impisonment, although he would be unlikely to impose those sentences. He warned me that in the future I should consider whether I wanted a felony to appear on my record which could make it difficult to apply for jobs. And he warned me that just because I say I wasn't recreating, that doesn't make it true. So he seems disposed to find me guilty.
This fine is an infraction (no jail time is legislated), and if I am found guilty I will be subject to a fine of $55, which will go to the court, not the USFS recreational fee program.
I'm considering what if any documents I can send to the judge that might help my case. He seemed to be looking for legal precedents that he should be aware of. What I'm thinking as the case is under consideration:
- In retrospect, I might have been better off if the religious issue didn't enter into my case, and if I plead "Protesting rather than recreating". The fact that I wrote letters with my fee demo protests and drove 4 hours each way, twice, to the court, is a good indication that protesting was a very significant purpose for my being there. I think the religious argument tended to water that down a bit. I have a transcript of Robert Bartsch's December 30,1998 trial where the judge seems to indicate that he is not subject to fees because he was exercising his first amendment rights.
- A ranger shouldn't write up citations without ascertaining whether I was in violation of all the elements. The ranger basically testified that he wasn't even considering whether people where recreating when he was writing NONs. If there is a legal precedent or something that means that his citations are invalid because of this, I'd like to know about it.
- A reasonable person needs to be able to figure out if they have violated the law. The signs around the area indicate that a Summit Pass is required for anyone above 10,000 feet, which is not true since only people who are recreating require them. I saw some references in the U.S. vs. Siart trial memorandum which I might be able to send the judge.
- The process of obtaining an administrative pass (to avoid the fee) is more cumbersome than paying for a Summit Pass. You need to get advance permission and come to the district office during business hours on a weekday. Paying for a Summit Pass can be done self-service at any time of the day or night at any of three locations (district office and two trailheads) with no advance planning. I wonder if there is some legal argument that they have to make it as easy not to pay the fee as to pay the fee.
- Thinking a little more globally, since this is this judge's first
fee demo case, he might be interested in building up a file of court precedents
that are relevant for future use. If anyone has any particularly
good fee demo acquitals, let me know and I'll pass them on.
After several rounds of sending information to the judge and prosecutor, I ended up being found guilty of failure to pay the recreational fee. I paid a fine of $100, plus a $10 penalty assesment. I was placed on probation for a period of two years, during which I was required to obey all state, federal, and local laws (just like everyone else who isn't on probation). Additionally, I was not allowed to enter the National forests until the fine and penalty were paid. The probation is basically to keep me from doing the same thing again; if I do it again I am guilty of not only the failure to pay, but also violating my probation, which can have much higher penalties.
The judge wrote a seven page opinion on the case, addressing most of the arguments I made and saying why he was dismissing them. It is definitely a great souvenior. In the end I am happy with the outcome. The goal was to raise the profile of this issue. The district attorney clearly spent at least a hundred hours of time preparing her case, and that resource expenditure will certainly be noticed by the higher ups. The more we can do to make it clear that not everyone likes the fees, the more likely the fees will be abolished.
I scanned the judge's opinion, which is available here.
Note: The Fee Demonstration Laws which this court case were based on have expired and in its place Congress has implemented the "Federal Lands Recreation Enhancement Act", which many refer to as the "Recreation Access Tax" or RAT. So anyone considering similar cases should be aware that a whole different set of laws now apply than when this page was written.