Sat, Nov 22, 2008

Tucson Region

Hiker fined $100 for disregarding $5 recreation fee

By Josh Brodesky
arizona daily star
Tucson, Arizona | Published: 09.06.2007
The latest twist in the winding court saga of Mount Lemmon hiker Christine Wallace came Wednesday when a federal judge fined her $100 for refusing to pay a recreation fee, setting up a likely appeal that will again bring the fee's legality into question.
For several years, Wallace has been fighting the $5 fee in court, arguing it should not apply to activities in undeveloped areas of the mountain, such as picnicking alongside a trail or a road, but not at a picnic table.
The legal fight began in September 2005, when Wallace was cited for not paying the $5 fee. Her refusal to do so has led to a lengthy court battle that has, at times, put the fee's status in jeopardy.
In January, U.S. District Judge John M. Roll ruled the $5 recreation fee was justified.
But there was still the question of the two outstanding tickets Wallace had not paid.
One of those tickets was recently dismissed, but the other one remained.
The two citations may not have been the only times Wallace had visited Mount Lemmon without paying the recreation fee. Prosecutor Jennifer Maldonado argued rangers had spotted Wallace's car on Mount Lemmon before, and during those times there was no evidence fees had been paid.
The line of argument seemed to resonate with Roll, who found Wallace guilty and fined her $100.
"I find it troubling, the evidence concerning the disregard of the recreation fee," Roll said. "The fee is a modest one."
Federal law allows the U.S. Forest Service to collect a recreation fee for destinations classified as "high-impact recreation areas."
Essentially, an area earns such a distinction if it has designated parking, permanent restrooms, trash bins, an interpretive sign or kiosk, picnic tables and security officers. The fee is used to help develop the accommodations.
Visitors driving up the Catalina Highway to Mount Lemmon must pay either $5 per day or $20 per year if they are going to use any of the amenities.
Wallace has disagreed with the fee on principle, saying it is a form of double taxation and it excludes visitors who might not be able to pay it.
Roll's recent rulings have only laid the groundwork for an appeal.
"I didn't come this far just to roll over and say, 'I'm guilty,' " Wallace said.
In Wallace's defense, attorney Mary Ellen Barilotti argued there were few amenities where Wallace had parked near Marshall Gulch, which is just beyond the village of Summerhaven, and, as such, the fee should not have applied in the first place. She also questioned how rangers would know whether Wallace had used developed areas of the park.
But the arguments made little impression on Roll, who repeatedly implored both sides to stick within the narrow confines of the criminal issue at hand — the parking ticket — and not be distracted by the civil matter of whether the fees are legal.
As such, the issue of whether Wallace had parked without paying the fee was fairly straightforward.
Lance Lindy, a Forest Service ranger who issued the ticket, said he spotted Wallace's car and knew its owner had a history of not paying the fee. While leaving a citation, he met Wallace.
"I told her I was going to write a violation notice. I asked her why she hadn't paid them (the previous fees)," he said. "She told me that she didn't believe in the program. That she paid taxes."
For her part, Wallace said she never expected her decision not to pay the fees to morph into such a larger legal debate, but she will continue to fight.
"I didn't expect anything other than being found guilty," she said.
Wallace has 10 days from this most recent ruling to file an appeal.
● Contact reporter Josh Brodesky at 807-7789 or jbrodesky@azstarnet.com.