This NEPFA website does not urge or advise any particular course of action if you disagree with fee-demo. But here are several responses we have learned about from those who oppose the fees.

(1) Some people have given up parking where fees are required. At the beginning of fee-demo, it was hard to avoid tickets; cars were being ticketed throughout much of the WMNF. Now fees are required only at certain parking areas. While this may seem like an improvement of sorts, many fear it may end up as "bait-and-switch:" mollify people now to defuse protest, make the fees permanent, and then simply add more fee- locations again later on.

(2) Around the US, a number of people have experimented with signs on their cars saying things like: "OCCUPANT ENGAGED IN SPIRITUAL, NOT RECREATIONAL, ACTIVITY. DO NOT TICKET." This strategy has its origins in a CA anti-fee activist's court case wherein the judge ruled that a person handing out anti-fee leaflets while parked in a fee-area was not required to purchase a pass (the "freedom of speech" principle). Some people have suggested extending this "non- recreating" idea to other activities (like "spiritual activity"). Such a strategy has not been tested in the courts. The Forest Service has backed off prosecuting these cases again and again throughout the US, presumably: (1) to avoid bad publicity and (2) out of fear that some court somewhere will declare some aspect of the fee- system illegal or unenforceable (as, for example, has in fact happened in NH; see "TT" court case on this page.)

(3) A huge number of people in NH have refused to buy these passes. Upon receiving tickets and court dates, they have completely ignored these and have refused to go to court. Because of a loophole in the law (see again "TT" case below), the federal Magistrate Judge in NH has thrown most of these cases out, ruling that the Forest Service had "no probable cause" to accuse the alleged perpetrator to begin with, since CARS cannot buy passes, only PEOPLE can. And unless there is clear and compelling evidence that a given PERSON did not buy a pass, then there is "no probable cause" to charge that person; and lack of a pass or decal on a car does not, by itself, constitute evidence that the owner of the car failed to buy a pass (for example, the owner of the car might have lent his/her car to another hiker or fisherman on the day in question). [We are guessing that if you leave a signed note on your car, in your own handwritng, stating that you refuse to buy a pass, this might likely constitute "probable cause" that you had not bought a pass, and the law might pursue you.]

(4) Some people have gone to court to plead "not guilty." The one NH case we are familiar with ended up as described in #2 and #3, above (and below) - a nominal victory for the state (the defendant readily admittted not having bought a pass), but at the same time it was "Pyrrhic" victory (in effect, a huge defeat), since the judge made it clear, and on public record, what the standard of proof for conviction is in his courtroom.

NEIL: I have received several tickets since this program began. Initially I threw them in a pile in my garage, and otherwise ignored them. I have refused to pay the user fee from the beginning, because it seemed clear to me that payment would be taken as an implied approval of user fees. In 1999 I had heard from friends that the Forest Service would begin serious enforcement of the user fees, so I quit using popular trailheads. I have spent a lot of time on the fringes of the WMNF at areas that do not seem to be patrolled. I have also spent more time than usual in state forests, and the Green Mountain National Forest. While this strategy has worked with respect to avoiding tickets, I resent being kept away from some of my favorite areas.

I do not feel that user fees are the correct way to fund our National Forests. I realize that we(society) have accepted user fees in the National Parks, but anyone visiting one of our popular National Parks can see the commercial development that this had led to, and the despoiling of nature that has resulted. We need to draw the line somewhere. We have an obligation to say, "no more commercialization of public lands." To pay these fees would be to endorse Congress' irresponsible behavior in under funding the protection and maintenance of our public lands. We must hold their feet to the fire and demand that they accept their responsibility to protect the peoples' land. Meaningful, long term protection of the National Forests will be possible only if the lands remain public. If our National Forests continue down this slippery slope to commercialization the end result will be a loss for all Americans.

JOHN: In August 1999, my car received a ticket for not displaying a pass at the Rumney climbing area.
I called the court clerk in Concord and arranged to appear at the November hearing, rather than the September hearing, since I was going to be out of town. The court clerk was very helpful and pleasant, and readily arranged this change.

I showed up in November before Magistrate Judge Muirhead and pleaded "not guilty." Rather than argue the case then, I opted to have it heard at a later date by a District Judge. [Knowing little about the judicial process, I imagined that a higher-level judge might be more willing to set a precedent in a case like this.]

A court date was set for early Jan. 2000; but I wanted more time to prepare my case, so I wrote what is called a "motion to continue" the trial at a later date, basically a brief letter asking for 60 days more, which was readily accepted.

On Feb. 5, 2000, I was happy to unexpectedly receive in the mail a letter from the Court informing me that the charges against me were being dropped; another NEPFA friend received an identical letter the same day. It seems that the difficulties they have had in prosecuting these cases (see, for example, "TT's" case below) has led to these dismissals

Throughout this process, I have been impressed with the helpfulness, cordiality, and professionalism of everyone involved -- including the court staff and federal prosecutor. It has also been a great learning experience.

In: United States v. TT, Concord, NH

Jan. 14, 2000

The judge's remarks in the following trial seem very significant to us.

Magistrate Judge Muirhead presided. He noted that of 47 people who were supposed to appear that day regarding forest ticket violations, 44 were no-shows. He said it's the same every trial date; he said he appreciated today's defendants showing up.

The defendant, TT, a man from Portland, Maine, was called forward. Judge M informed him of his right to remain silent and that anything he said could be used against him. TT pleaded "not guilty" to the charge of not paying the forest fee.

The prosecutor called the forest ranger to the stand and questioned him about the facts of the case, using a number of exhibits: examples of the actual fee signs, photos of the Greely Ponds trailhead parking lot, and relevant paperwork. (The ranger even had a roll of undeveloped photo film, showing, he said, the ticket he placed on the defendant's windshield with the fee- demo sign in the background.)

Judge Muirhead asked the ranger and prosecutor about 36 CFR 261.15 [this is the law, pre-dating the national "fee-demo" program, under which fee-demo cases are being tried]. He asked the officer where in that statute it says that a decal or pass is required to be displayed on a car. The judge noted that CFR 261.15 says nothing about displaying decals or passes on cars, that it refers only to failure to pay a fee. The judge then offered TT the opportunity to question the ranger, which he did, asking the officer a number of questions about whether he thought it was a waste of time to be giving out tickets rather than doing useful forest work, etc.

TT finished, and the judge asked him if he'd like to testify.

TT sat in the witness chair and condemned the fees in a heartfelt way; he said he'd been hiking in the White Mountains since he was a kid and that the fees were completely unneccesary and "absurd"; he questioned where they were coming from; he noted that volunteers like the AMC do most of the trail-work anyway; and he said it was a free American's right to walk freely in the public forests. It was a very sincere and effective extemporaneous presentation.

After he finished, the judge turned the questioning over to the the US Attorney. He asked TT whether he had seen the signs, etc. TT replied, "I've seen all the signs, and I'm not paying."

The prosecution rested.

The judge then told TT that if had remained silent about not paying, he would have dismissed the charges. But since the defendant testified that he hadn't paid, he had no choice but to find him guilty. He told him he had to pay the $55 fine.

The judge said that the prosecution did not prove what the statute required: that is, that TT hadn't paid a fee. He said the prosecution had proven only that there was no pass or decal on the car registered to him, which is not what CFR 261.15 refers to.

The judge also said he'd been dismissing charges against people who had not shown up in court at all -- throwing out charges "left and right" - - because failure to display a pass or decal does not even constitute the "probable cause" which is required in order to pursue charges against alleged fee-violators.

At first the defendant declined to pay the fine as ordered by the judge. But after the judge described the contempt- of-court scenarios which would ensue if the defendant refused to pay (arrest, etc.), TT agreed to pay.

The judge urged TT to write his congressional representatives about the fee program.

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DISCUSSION: Although in a sense TT "lost," he in fact achieved a real victory for the people of New England: His principled defiance allowed the judge to state his view of the relevant law with crystal clarity and on the public record: namely, that failure to display a day- pass or decal does not, in itself, violate CFR 261.15 -- only failure to pay violates that law..

It sounds to us like this would be exceedingly hard to prove without putting up guard shacks and turnstiles at every trailhead and/or checking with every one of the 50-60 pass vendors in NH and Maine to see who bought passes, or some other such onerous and expensive procedure. We know that shortly after TT's trial, the FS and/or the US Attorneys felt obliged to schedule a meeting to discuss their options.

Federal court records for the last half-year indeed bear out the judge's comment that he has been throwing out the "no-show" cases "left and right." From what we have heard (as of March 10, 2000), it appears that the Forest Service in New Hampshire may revert to merely leaving warnings on unattended cars, which do not lead to automatic summonses to court.

(We have also heard from a reliable source that Forest Service officers might possibly ask people directly, verbally -- if they see them -- if they have bought a pass. What the results of such verbal encounters might be, we do not yet know. Nor do we know if this verbal questioning would be done systematically and aggressively, or merely informally and ocasionally. From what we were told, it sounded like the latter was most likely.)

NEPFA has also learned about another interesting, recent fee-demo court appearance, this one in Portland, ME, concerning a ticket given in a part of the White Mountain National Forest which extends into Maine.

In that case the subject chose to not respond to a forest parking ticket at all. Several weeks later, a notice arrived stating that a court date had been scheduled, and that failure to appear in court would constitute guilt. The subject arrived in court, where a defense attorney was provided, even though the subject hadn't requested one.

Before the trial began, the defense lawyer asked the prosecutor if he had any evidence placing the subject at the location in question. The prosecutor indicated that he did not. When the trial began, the defense attorney instantly moved for dismissal based on the fact that the prosecution had no evidence placing the subject at the parking lot or trailhead in question. The prosecutor acknowledged that he had no evidence that the subject was there (like a signed ticket), so the judge promptly dismissed the case. The subject never had to speak during the trial or take an oath.

ITEM: Important news from Boise, Idaho, where federal district attorneys stated that the costs of prosecuting Forest users without passes was not covered by their budget. US Attorney Betty Richardson stated, "The program relies on a federal criminal justice system to enforce what are essentially parking tickets .... that's an unwise use of taxpayer money, which is badly needed to fight serious problems like fraud, drug smuggling and violent crime."

An editorial on this topic in the Idaho Mountain Express on 1/12/00 concluded that "the Forest Service should declare the fee program a failure, go back to Congress, and get its funding from the proper place -- from federal income tax revenues." At present the Forest Service offers no way to protest Fee Demo. Buying a pass to erase your ticket is considered another sale to a customer. [Source: Newsletter of the Keep the Sespe Wild Committee, Winter Solstice edition, 1999]