Hearings and Business Meetings

SD-366 Energy Committee Hearing Room 02:00 PM

Mr. Lance Young

Director, World Outing Club


Testimony Before: The Subcommittee on Public Lands and forests
Committee on Energy and Natural Resources
United States Senate


Oversight Hearing: On Implementation of the Federal Lands Recreation Enhancement Act
by the USDA Forest Service and the Bureau of Land management


Testimony By: Lance Young (Director)


One World Outing Club
13534 35th Ave NE; Seattle, WA 98125
Phone 206-363-0859
Email
director@outingclub.org


Mr. Chairman and distinguished members of the Subcommittee;
I. INTRODUCTION
Thank you for the opportunity to speak to this Sub Committee of the Senate Energy and Natural Resources committee
regarding this important issue. I am both honored and humbled by those present in this hearing today. I have watched
Senate debates in the past and am always inspired by the detail and thought that go into the speeches, and the articulate
nature in which they are delivered on the Senate floor.
II. MY BACKGROUND
I have been involved in the outdoor recreation industry since I was a child, both commercially through guiding,
instructing, gear testing, and the travel industry, and recreationally. My activities include: hiking, backpacking,
bicycling, mountain biking, sea kayaking, canoeing, white water rafting, white water kayaking, swimming instruction,
snow and rock climbing, cross country skiing, snow shoeing, downhill skiing, snow boarding, backcountry telemark
skiing, skin diving, windsurfing, water skiing, foreign travel and tourism, search and rescue, and others.
As director of One World Outing Club (a not for profit outdoor recreation club), I have had the opportunity to cater not
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only to the general recreation population, but to provide outdoor recreation opportunities for other special groups such as
the mildly disabled that love to hike, or elder skiers that can no longer drive in winter snow, and devout
environmentalists that have made a decision not to own a personal vehicle. I have organized transportation for Senior
Centers for outdoor recreation, I have worked with Ski For All (a national disabled skiers program), and have helped
organize a variety of outdoor competitions and events.
Working through Outing Services (a commercial guide service) I have guided trips for North Face, run the REI winter
Ski Bus, have outfitted trips for Microsoft and other local businesses, as well as trips and seminars for local Parks and
Recreation programs. This includes: Seattle Parks, Bellevue Parks, Kent and Federal way school districts, all in
Washington State.
III. COMMERCIAL AND NON PROFIT GROUP ACCESS ISSUES
The representatives from Western Slope No-Fee Coalition have, or will address private recreation concerns and the
misinterpretation and misapplication of the new laws as they have been applied to private usage. I have worked in the
outdoor industry for several decades and would like to address the affects on commercial usage, and non profit group
use of public lands, so I will touch these subjects also during my testimony.
IV. THE IMPORTANCE OF THIS ISSUE
My goal in life is to promote an active outdoor lifestyle, and to encourage and facilitate others in an appreciation of the
beauty and benefits of exposure to our natural environment. Proof of this is in the admonition of most doctors to
patients with almost any chronic ailment "Diet and Exercise, and... will improve your health”. The gym and lifting
weights ares good but boring, and primarily used as a training ground for rehabilitation or conditioning for other
activities.
During World War II the Norwegians built public swimming pools all over their country to keep their people fit for
military service, if they should be needed for defense of their sovereign borders. Our own citizenry needs
encouragement not obstacles to participate in an active lifestyle. Consider the savings in health care costs that a small
incremental increase in cardiovascular health would provide to the citizens of our country.
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Beyond the physical there are the mental benefits, which include a recentering, an ability to put things into perspective
and forget about a lot of the artificial demands and stresses a modern life imposes on people. In the woods all that
matters is when the sun comes up, when it goes down, shelter from the elements and when the next meal is. Sort of
where we all started, millennia ago.
I have traveled enough to know also of the uniqueness of the mountains and wilderness we have here in North America.
Nowhere in Europe are there large enough tracts of public land to allow primitive backpacking or camping. With a Cafe
at the head of every wooded valley, and a gondola to the top of every mountain peak. This primitive wilderness
experience does not exist in Europe.
As the tourism industry continues to grow our National Parks and Forest lands provide a magnet for the adventure
traveler from overseas. Already some of the better known areas have more German and Japanese tourists than US
citizens. Many small local communities thrive on the business that this provides for them. The Methow Valley in
Eastern Washington survives on the large number of people that the cross country ski industry brings in every year to ski
their vast network of trails spread out over Bureau of Land Management (BLM), Forest Service, and private land in the
valley. Sun Valley has been a magnet since the 50's and Mt. St Helens has become Washington States largest natural
attraction. Mt. Bachelor in Oregon has thrived by catering to skiers during the winter and golfers during the summer.
Moab Utah has Canyonlands, slick rock, and Fisher Towers which is a mecca for mountain bikers, hikers, and rock
climbers.
When Microsoft brings their overseas sales staff to their Redmond Washington Headquarters they don't treat them to
dinner at the space needle, they take them hiking, or rafting, or hot air ballooning, to leave a lasting impression.
V. WHO WILL BE AFFECTED
The use fees as they are now being implemented affect people from all walks of life. The poor and low income who can
not afford to visit the National Parks or stay in fancy hotels need access to public lands for camping, fishing, and other
recreation. Some of my favorite childhood memories are from our camping trips to the mountains and Pacific Coast.
We could not have spent as much time together on family vacations if they were not economical. While the new law
provides for free access to all undeveloped public land, with current implementation the only designated no-fee areas are
remote and hard to reach.
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Middle and upper income citizens will stay home because of confusion regarding permit requirements, the threat of a
criminal record, and the inconvenience of obtaining the correct permit. The US Forest Service web site lists eight
different types of pass: National Forest Recreation Day Pass, Oregon Pacific Coast Pass, Annual Northwest Forest Pass.
Golden Eagle Pass, Golden Age Pass, Golden Access...... and this does not include the Bureau of Land Management
authorizations, river conservation permits, hunting licenses etc. Rather than risk a $100 fine or, for a second offense
incurring a Class A or B misdemeanor upper income people will find something else to do, rather than risk the criminal
record and fines. Thousands of current conscientious objectors, who currently refuse to buy the passes, may be caught
off guard by these changes. Even the best informed mountaineers I have surveyed are generally unaware of the severe
penalties they are now subject to.
VI. THE PENALTIES ARE EXCESSIVE
The Penalties associated with infractions of this law are draconian in nature. With penalties up to a Class A
misdemeanor, consequences can be sever, including fines of up to $100,000 and a year in prison. To cite a citizen with
this kind of penalty for hiking is well beyond reasonable. With the liberties the agencies have taken with implementing
the new law, it is not unreasonable to fear a worst case scenario. I have found in my past dealings with Mt. Baker
Snoqualmie National Forest officials that they are not fair and just in their dealings with forest users (More on this later).
VII. THE NEW LAW
We are not here today to analyze the law but to review its implementation however it is appropriate to mention a few of
the critical issues that may be leading to current problems with its implementation. If this new fee based tax on
recreation is successful it will eventually replace the funds received from the Federal Government. This on the surface
does not seem to be a bad thing but with a deeper analysis there are several structural problems with it. By sending
funds directly to the agency it removes the essential accountability loop from the equation. This new taxing system will
lead to unnecessary government duplication and additional costs. The BLM and US Forest Service will have to develop
their own tax collection system (IRS), and methods for printing and distribution of the passes (tender) they provide.
They will have to develop a police force to enforce the permit system. This would be expensive and wasteful
duplication requireing forest rangers to do work they were not trained to do.
After reading thought the new laws it appears evident that Congress was trying to establish a more fair and equitable
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system of permit fee collection for the agencies. It is also clear from the text and statements of the Legislators that it
was intended to scale back the current implementation of the Demonstration Fee program in several ways with the
outcome of preventing blanket implementation of entry fees like the National Parks do, and should charge at their
entrance gates. It also was clear that fees should only be charged where the public using the resource, can see evident
signs of the value they are receiving for the fee. This is why the stipulations were included for requiring certain things at
all sites:
"Permanent Toilets, Trailhead monuments or informative signs interpreting the natural wonders of the area,
developed parking, picnic tables, security services, and permanent garbage receptacles."
The new law was supposed to open up much of the areas that are now requiring access fees to provide free public access
for the primitive or undeveloped areas while providing an income source for the agencies to cover developed areas.
VIII. IMPLEMENTATION OF TRAIL FEES FOR MT. BAKER SNOQUALMIE NATIONAL FOREST
I will focus on the Mt. Baker Snoqualmie National Forest (Mt.Baker NF) since this is what I am most familiar with, but
I believe the statistics are also representative of most National Forests as well. The Mt.Baker NF lists about 125 trails
within their boundaries as active hiking trails available for a variety of users, from horses and mountain bikers to
backpackers, hikers and snowshoers. After the new law was passed Mt. Baker NF released a list of 18 trails that were
being opened up for public use. This list was later revised down to 12 sights. Of these 12 about a third are not viable
decommissioned trail fee sights. These examples follow:
1. Two of the trails listed are (at least historically) just different access points to the same trail, Three Fingers #641 and
Boulder River #734.
2. One is less than a mile long and gains more than a thousand feet per mile and requires a three hour drive for this one
hour hike. This trail is hard to find at the end of road FS 74 and has never required fees in the past. Clearwest Peak
#1178.
3. Another one that was initially on the list to be "de-listed" Dutch Miller Gap #1040 was at the end of the longest
roughest road in the forest system, and this road frequently washes out preventing any access.
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4. Huckleberry Creek #1182 Has never been signed as requiring a forest pass, and it goes only 0.9 miles before
becoming a National Park system trail (where it continues for miles)
5. Martin Gap #1178 is still listed on the Mt.Baker NF trail description as requiring a forest pass despite its listing on
the official list of trails that no longer require a fee. I have not had time to check this out personally yet.
6. Sunday Lake #1000 was dropped from the initial list probably because this trail is on private Whearhouser land and
was only accessible after spring run off because of the washed out bridge on the first part of the trail.
If these questionable trails are removed that leaves only eight to ten fee free trails, out of 125 total trails listed in the
district. Further those de listed, are generally either difficult to get to or impractical for the general public. The new law
also appears to prevent charging for use of unimproved or primitive areas however the Mt.Baker NF seems to have
gotten around this by inventing a High Impact Recreational Area HIRA which claims vast tracts of land into one "Area"
with only a few of the required amenities available in the entire zone.
A good example of an appropriate fee sight is the Ice Caves trail or Big Four where permanent toilets are installed, the
parking lot is paved, there are the remnants of a historical Inn to view, and a nice trail up to the base of Big Four
mountain, with well maintained bridges and boardwalks, and this sight is not a portal for backcountry access.
The vast majority of the trails listed as requiring trail passes in the Mt. Baker NF have at best one or two of the required
amenities. A good example of the misapplication of the "Area" designation in the new law is Bare Mountain, which was
initially on the list to be free use. The trail head has room for only six cars to pull off to the side of the road, and is
brush free only because of somewhat regular use, not due to maintenance. The trail has a hiker registration box but non
of the other requirements. The nearest toilet (and probably the closest garbage can as well) is in North Bend perhaps an
hours drive back down the dirt access road, and there is no security, you leave your car at your own risk.
IX. MISINTERPRETATION OF THE LAW
Local agencies are either significantly misinterpreting the new Federal Lands Recreation Enhancement Act or are
ignoring the letter and intent of the law to maintain control and income from the federal lands they administer. The
intent of the law seems clear both from the statements of the Congressmen that worked on it and from the text of the law
itself.
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"HR 3283 would limit the recreation fee authorization on the land management agencies." and "No fees may be
charged for areas with low or no investments" Representative Ralph Regula Sponsor H.R.3283 2004 press
release
"The secretary shall not charge (C) For dispersed areas with low or no investment" Federal Lands Enhancement
Act section (3) (d) (1) (C)
"The secretary may charge a standard amenity recreation fee for (4) An Area (D) that contains all of the
following amenities (i) Designated developed parking (ii) A permanent toilet facility. (iii) A permanent trash
receptacle. (iv) Interpretive sign, exhibit, or kiosk. (v) Picnic tables. (vi) Security services." Federal Lands
Enhancement Act section (3) (f) (4) (D)
The text of the law seems quite clear, and that is to limiting the ability to charge use fees to those areas where significant
enhancement and financial investment has been made. This would be consistent with the fees charged at most National
Parks and Monuments where entry fees are charged at the gate and many visible amenities are provided for the public
paying the entry fees including education centers, information centers, bathrooms, ranger walks, et-cetera. The majority
of the road systems and trails in our area have only a few (or none) of the listed required amenities, and perhaps 75%
serve as portals to backcountry. Thus there should be no permit required. Yet the vast majority of trails are still listed as
requiring a permit for their use.
This is not the first time the US Forest Service has "misinterpreted" the law to their financial gain. When the
Demonstration Fee program was passed to allow the agency to experiment with fee collection at a few sights. The law
allowed the demonstration to be run at no more than 100 sights. This limit was ignored and Demonstration Fees or
Northwest Forest Passes were required at the majority of trails in the forest. When the Sierra Club legal council took
them to court on the matter and won, the Forest Service then redefined how they labeled the trails and instead of
designating individual sites they designated entire road systems and regions as one demonstration fee site.
X. COMMERCIAL PROBLEMS WITH OVERLY BROAD INTERPRETATION OF REGULATIONS
Our Washington State hiking and cross country skiing group has had similar difficulties with the Mt. Baker FS with the
issuance of commercial permitting and fees. In the process of dealing with the Forest Supervisor John Phipps and
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Winter Recreation Specialist Larry Donavan to try and obtain a commercial use permit to allow us to teach classes, we
witnessed a fluid and ever changing set of permit requirements, several of which were clearly against their own
regulations and guidelines. This included requiring permits for day use cross country skiing on forest roads where CFR
251.50 (d) specifically excluded road use from requiring a permit for commercial or non commercial users. Their own
guidelines encouraged issuance of commercial authorizations
"Many are capable of total self-sufficiency, but those selecting an outfitter want and need help. They can't do it
on their own, or want an introduction to such experiences to help them get started." "But the public lands
belong to them just as much as they belong to the residents living at the mouths of canyons." Forest Service
Outfitter Guide Handbook February 1997 page I-2
In navigating the gauntlet of requirements that were required of us over a four year period we submitted over eight
separate permit applications trying to satisfy the escalating demands. The last of these was 98 pages in length, several
times the length required for other similar groups (typically 12pages). We were promised permits on three separate
occasions only to submit the requested information and then have more requirements added. We were never issued any
of the promised permits and finally were cited for commercial operations on federal land without a permit. We
contested the citation and won the case, because the law specifically and wisely did not require a permit for road use,
preventing the agency from having to issue a permit where there is minimal impact to the land, and no encampments or
structure involved. Senator Patty Murray stepped in to help with our cause and was intentionally mislead by the Forest
Service who were struggling to justify their case.
Following the loss of this case, rather than appeal to the superior court where precedent might be set, John Phipps was
called back to the DC office and shortly after this the laws were revised for the entire country requiring permits for
commercial road use. This revision was ostensibly based on a re-engineering study they commissioned in April of 1997.
Surprisingly according to the Federal Register, this study contradicts their argument for requiring permits for road use.
"In April 1997, the Forest Service completed a reengineering study of its special uses program that
recommended managing special uses in a more businesslike and customer service oriented manner. The study
found that many special use authorizations are issued for (1) minor uses of National forest System lands that
have nominal effects" Federal Register Vol 68, No 14, Proposed Rules section
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Instead of requiring fewer permits for these "nominal" impact uses the Forest Service misinterpreted the study to support
their desire to require more permits.
The Forest Service through the Code of Federal Regulations has set up a system where a large part of the discretionary
authority rests with the "Authorizing Officer". This agent would typically be the local ranger or perhaps as senior as a
district ranger. The whole system seems to be a bottom up management method rather than a top down structure. In
other words the senior members of the USFS appear to support the junior staff "Authorizing Officers" even in situations
where it is clearly against policy, even regulations, to do so.
XI. NOT FOR PROFIT GROUPS ARE BEING AFFECTED
The old laws did not require any permitting for non commercial activities for less than 75 people with the logical
rationale that these smaller groups would not have significant impact on the resource. This provided these users the
freedom to spontaneously organize a small rally or religious service, or family or club event without the necessity of
applying for a permit. The new Forest Service interpretation does away with this freedom. For instance, the new
Federal Lands Recreation Enhancement Act specifically excludes charging for things like foot races on federal lands.
The Forest Services recently issued guidelines include such activities under special use permits. This would force a
group such as the Cascade Bicycle Club to request a permit to bike ride over the old Blewett Pass road (paved), or else
face bicycling with the cars on the adjacent highway.
"The secretary shall not charge (D) for persons who are driving through, walking through, boating through,
horseback riding through, or hiking through Federal recreation lands and waters without using the facilities and
services." Federal Lands Enhancement Act (d) (1) (F)
XII. RAMIFICATIONS OF THE NEW FEE STRUCTURE
Uniformly across the state of Washington, city parks and recreation departments have frequently been denied access to
public lands under U.S. Forest Service control, for outdoor opportunities that they would like to make available to their
residents. The commercial Outfitters and Guides in private conversation invariably have stories of difficulties with
permitting.
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Enforcement has caused a change in the relationship between backcountry rangers and the recreational public. In only
one decade the Demonstration Fee program has turned forest and park rangers into people to be wary of, instead of
friendly folks to be encounter in the woods and someone to approached regarding weather, and other natural concerns.
This adversarial relationship requires the agency to do all their own policing rather than depend on users to cooperate
and share information on incidents with wildlife, washouts, or other matters.
Commercial use is more and more difficult to sustain. Many small communities in rural Washington depend on income
from the recreational travel trade, including horse packers, fishing guides, river rafting companies, nordic skiing trail
networks, even outdoor equipment retailers like REI. These communities are losing their source of livelihood not
because of environmental impact but because of red tape. A lot of our ski group's travel is now into Canada just across
the border because they are much more receptive to commercial recreation needs.
The benefits to appropriate access to public land are enormous and critical to the citizens of the United States. Access to
these areas for outdoor recreation improves the longevity and physical and mental health of the general population.
Convenient and welcome accommodation of commercial and group use of our natural resources provides a source of
commerce and income for rural communities, and a reason for higher income urban residents to travel into and support
the surrounding communities. .....
XIII. CLOSING
Thank you for the opportunity to speak to you today. Please include both my written and oral testimony as part of this
hearings official record.