Pay to Play? The Past, Present, and Future of Recreation Fees on Federal Public Lands

Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. PAY TO PLAY? THE PAST, PRESENT, AND FUTURE OF RECREATION FEES ON FEDERAL PUBLIC LANDS by Adam Fisher Adam Fisher is a 2024 J.D. candidate and Wyss Scholar at the University of Colorado School of Law. SUMMAR Y The United States has historically valued free access to most public lands. But federal land management agencies also rely on users’ fee dollars to support critical operations. This tension between “free access” and “user pays” has been an important feature of public land law since the late 1800s. The primary statute at issue is the Federal Lands Recreation Enhancement Act (FLREA), which authorizes fees at some sites while mandating free access at others. As interest in outdoor recreation continues to grow, the public land system faces new challenges, including new environmental, behavioral, and experiential impacts. But FLREA is not up to the task, and its shortcomings have led to litigation, public frustration, and calls by members of Congress for increased agency transparency. This Article proposes updates to both FLREA and agency policies to ensure agencies consider appropriate alternatives before implementing new fees or reservation systems. It suggests agencies can implement these updates in a standardized and equitable manner that balances robust public access with resource protection. For many, the idea of the federal public lands is foundational to the U.S. national identity. 1 But among those who care deeply about these lands, ideas difer greatly regarding how they should be managed. For example, commercial use of public lands has been a primary consideration of policymakers since at least the 1800s. 2 And public lands have been recognized and managed for their outstanding recreational and noneconomic values for just as long. 3 hus, the need to balance recreational and commercial use is as old as the federal land management agencies themselves. And unsurprisingly, the question of who should bear the costs associated with public land use has been debated since the beginning of the Republic. his Article looks at the law surrounding recreation fees 4 on public lands and asks whether we must “pay to play,” and, if so, when? To begin, free public access is a long-standing aspect of the national conception of the public land system, and of Author’s Note: My thanks go out to Austa Parker, Mike Pappas, Chris Winter, Mark Squillace, Bob Keiter, Chris Williamson, Bob Ratcliffe, Matt Wade, Nick Wilkinson, Nate Lada, Justin Lefevre, Brian Malloure, Tom Isaacson, Liam Sterup, Melpomene Vasiliou, Brendan Carson, Matt Nykiel, Martin Zang, Alex Seidel, and Oren Brandvane for their contributions to this Article. 1. See John Leshy, Our Common Ground 45 (2021) (noting that taking “pride in the nation’s landscapes, aptly called ‘scenic nationalism’ . . . took root in American culture” in the early 1800s). It is also important to acknowledge that the United States obtained a signiicant portion of its “public lands” from America’s Indigenous inhabitants through a mix of conquests, treaties (often of last resort), and the machinations of federal Indian law. 2. See, for example, the long history of mining on the public domain, as evinced by the General Mining Law of 1872, which mandated that all “valuable mineral deposits in lands belonging to the United States . . . are hereby declared to be free and open to exploration.” 30 U.S.C. §22. 3. In a 1907 publication, Giford Pinchot, the U.S. Forest Service’s (USFS’) irst chief, praised the national forests as “playgrounds.” Tony Tooke, Chief, USFS, Speech at Outdoor Retailer Winter Market (Jan. 25, 2018), https:// www.fs.usda.gov/speeches/sharing-stewardship-outdoor-recreation. Pinchot helped give birth to the modern deinition of “conservation,” which has guided much of federal public land policy since his time leading USFS. See Forest History Society, Giford Pinchot (1865-1946) , https://foresthis tory.org/research-explore/us-forest-service-history/people/chiefs/giford- pinchot-1865-1946/ (last visited Jan. 2, 2024). As early as 1833, George Catlin published an article advocating for a “nation’s Park, containing man and beast, in all the wild and freshness of their nature’s beauty.” Leshy, supra note 1, at 47. 4. his Article refers to public land “recreation fees” as a general term encompassing “entrance fees” (charges for general access); “amenity fees” (charges for the use of speciic facilities within otherwise fee-free lands); and “permit fees” (charges for speciic activities). It uses the term “reservation fees” to refer to fees collected to provide for reservation services, which are often assessed in addition to other forms of recreation fees. 2-2024 ENVIRONMENTAL LAW REPORTER 54 ELR 10127 Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. its place in the American psyche. 5 As such, provisions for free access are written into the Federal Lands Recreation Enhancement Act (FLREA)—the primary statute governing recreation fees on public lands. 6 But while free access was the historic norm, land managers have relied on certain recreation fees for more than a century as well. he irst recreation fees on federal public lands were applied at Mount Rainier in 1908, 7 and the institution of fee-based access, though normalized at hallmark sites, has remained controversial ever since. Still, today recreation, rather than commercial use, is the primary means by which Americans experience their public lands. 8 Recreational use of public lands has skyrocketed in recent decades, especially during the COVID-19 pandemic. 9 For example, Bureau of Land Management (BLM) lands saw 54 million recreational visits in 2004, the year FLREA was enacted. 10 In 2021, that number was more than 80 million—an increase of 48%. 11 In 2020 alone, 7.1 million more Americans participated in outdoor recreation than did in 2019. 12 As a result of this growth, both the natural environment and subjective visitor experience have sufered. 13 And federal land management budgets have not kept pace, 14 leaving land managers scrambling to provide quality experiences for the public while also fulilling their resource protection mandates. hus, land managers are increasingly turning to fees, gated access, and reservation systems to regulate use and manage impacts. 15 Recreation.gov, the exclusive online portal for these reservation systems, has proven both useful and controversial. 16 Perhaps unsurprisingly, federal public land law and policy have lagged behind these developments within the public land system. 17 Speciically, the outdated legal framework anchored by FLREA simultaneously gives land managers too little guidance while adding unnecessary barriers to administrability. his has resulted in inconsistent application of fee and reservation requirements across the public land system, which has correspondingly impacted the visitor experience. FLREA’s lack of either equity considerations or efective appeal mechanisms exacerbates this situation. 5. See infra Section I.A. 6. See 16 U.S.C. §6802(d). 7. Barry Mackintosh, Visitor Fees in the National Park System: A Legislative and Administrative History pt. I (1983), https://www.nps.gov/ parkhistory/online_books/mackintosh3/index.htm. 8. See Outdoor Industry Association, 2023 Outdoor Participation Trends Report , https://outdoorindustry.org/resource/2023-outdoor-participation-trends-report/ (last visited Dec. 10, 2023). 9. See infra Section II.A. 10. BLM, Public Land Statistics 2004, at 187 (2005), https://www.blm.gov/ sites/blm.gov/iles/pls04.pdf. 11. BLM, Public Land Statistics 2021, at 170 (2022), https://www.blm.gov/ sites/default/iles/docs/2022-07/Public_Land_Statistics_2021_508.pdf. 12. Outdoor Foundation, 2021 Outdoor Participation Trends Report 3, https://outdoorindustry.org/wp-content/uploads/2015/03/2021-Outdoor-Participation-Trends-Report.pdf. 13. Id . 14. Id . 15. See infra Section II.B. 16. Recreation.gov, Home Page , https://www.recreation.gov/ (last visited Dec. 10, 2023); see also infra Sections III.A.2, III.B.2. 17. See infra Section III.A.1. And land managers’ lack of transparency around the operation of Recreation.gov has drawn attention to these issues, to the extent that a lawsuit recently challenged the legality of its fee structure. 18 All of these issues present signiicant legal questions. hus, updates to the legal framework surrounding recreation fees, including reservation systems, are needed to ensure both the health of the federal public lands and the public’s opportunities to enjoy them. Commonsense changes to this framework can provide land managers with guidance, protect the resources that make the public land system special, maintain robust public access, and help ensure that the public lands are welcoming to all. Part I of this Article begins with a review of the history of recreation fees on federal public lands. his review pays special attention to two competing philosophies around the degree to which users should pay for the upkeep of public lands, since these philosophies still shape the debate around recreation fees today. he Article proceeds by discussing the events leading to the contemporary recreation fee regime. Part II then moves to an examination of today’s public lands, the emergence of reservation systems, and the legal framework governing recreation fees. Part III analyzes the legal and policy shortcomings of this recreation fee landscape. Part IV proposes updates to both FLREA and agency policies that would address these concerns. Speciically, the Article argues that both law and policy should provide agency decisionmakers with additional support to prepare the public land system for the “new normal” of increased recreational use. Part V concludes. I. The History of Recreation Fees on Federal Public...