Dear Mr. Granlund:

May the Forest Service of the United States Department of Agriculture issue a citation for a violation of the fee provisions of the federal Recreational Fee Demonstration Program for a vehicle that is parked on the right-of-way of a portion of State High»ay Route 38 within the San Bernardino National Forest without displaying a National Forest Adventure Pass?

The Forest Service of the United States Department of Agriculture may not issue a citation for a violation of the fee provisions of the federal Recreational Fee Demonstration Program for a vehicle that is parked on the right-of-way of a portion of State Highway Route 38 within the San Bernardino National Forest without displaying a National Forest Adventure Pass, unless there are additional facts indicating that a recreational use of the forest has occurred.

Section 315 of Title III of the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (P.L. 104-134; hereafter Section 315) requires the United States Secretary of Agriculture (hereafter the secretary), acting through the Forest Service of the United States Department of Agriculture (hereafter . the Forest Service), to implement, until September 30, 1999, a Recreational Fee Demonstration Program (hereafter the demonstration program) on selected federal lands to demonstrate the feasibility of user-generated cost recovery for the operation and main enhance of recreational areas on those lands (Sec. 315(a) and (f)). Under the demonstration program, the secretary is required to charge and collect fees for admission to, or for the use of, the selected outdoor recreation sites (Se". 315(b)(l)) and to establish those fees based upon a variety of cost recovery and fair market valuation me hods (Sec. 315(b)(2)). The fees are imposed in lieu of fees charged under any other provision of law (Sec. 315(d)(2)) Eighty percent of the amount collected under the demonstration program is required to be used for activities at the site from which the funds are collected and 20 percent is required to be used by he agency that administers the site (Sec. 313(c)(1)(A) and (3), and (c)(2)(A) and (B)).

The secretary is authorized to assess a fine of not more than $100 for any violation of the demonstration program's fee provisions (Sec. 315(b)(5)). Section 261.15 of Title 36 of the Code of federal Regulations (hereafter Section 261.15) makes it a crime, punishable by a fine of not more than $100, to fail to pay any fee established for admission or entrance to, or use of, any national forest site, facility, equipment, or service furnished by the United States. Thus, failure to pay a fee imposed under the demonstration program is prosecutable as a violation of Section 251.15.

The Forest Service has informed us that in the San Bernardino National Forest (hereafter the forest), among other national forests in southern California, it has implemented the demonstration program as the Southern California fee Demonstration Project (hereafter the project). Under the project, fees are collected through the issuance of a "National Forest Adventure Pass" (hereafter the pass). According to the official literature of the Forest Service describing the project, the pass is issued as a daily pass for $5 or an annual pass for $30, and is required to be displayed on a vehicle only when the vehicle is parked within the forest for recreational purposes. The Forest Service enforces the fee provisions of the project by posting a citation on vehicles found not displaying the pass in violation of the project's fee provisions.

The citation issued to enforce the project's fee provisions provides for identification of the issuing officer, the alleged violator (hereafter the person), and the person's vehicle, describes the offense, and provides a space for the officer to describe the location of the vehicle. The offense is described in a "Description" section with two sentences that read: "This vehicle is not displaying a valid National Forest Adventure Pass as required by the Southern California Fee Demonstration Project. This Project is authorized by Section 315 of Public Law 104-134." A set of instructions provided on the citation inform the person that he or she has 14 days to correct the violation and that failure to correct may result in a fine of not more than $100. According to the instructions, the person may correct the violation by re returning the notice to the project headquarters in San Bernardino with (1) a daily pass, (2) certain evidence of possession of an annual pass, (3) the purchase price of a daily pass, or (4) an explanation supporting the contention that the citation was issued in error.

An issue that arises at this point is whether a citation may be imposed for failure to display a pass, in view of the fact that both Section 315 and Section 261.15 authorize punishment for failure to pay certain fees, but not expressly for failure to redisplay a pass. In that regard, it has been held that the power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress (Morton v. Ruiz (1974) 39 L.Ed.2d 270, 292). If a court determines that Congress has not directly addressed the pre issue question at issue, or that the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute (Chevron U.S.A. v. Natural Res. Def. Council (1984) 81 L.Ect.2d 694, 703).

Nothing in either Section 315 or Section 261.15 prescribes the method for enforcing the fee provisions of the demonstration program. Thus, applying the holdings set forth above, our view is that any reasonable method of enforcing the fee provisions that is consistent with the purposes of the demonstration program would be authorized. Because the literature distributed by the Forest Service advises purchasers of the pass that the pass is to be displayed on the purchaser's vehicle, we think that it is reasonable for the Forest Service to deem the failure to display the pass when parked within the forest for recreational purposes to be rebuttable evidence that the pass was not purchased and that, consequently, the fee was not paid. Accordingly, we conclude that the Forest Service's decision to enforce the fee provisions of the project by requiring the purchase and display of a pass is reasonable and, there ore, authorized.

However, citing a vehicle for a violation of the project's fee provisions when the vehicle is parked on the right-of-way of State Highway Route 38 raises the question of whether probable cause exists for that issuance. There is no provision of federal law that sets forth the standard of probable cause for issuing the citations in question. However, the procedure and practice for the conduct of proceedings involving petty offenses, such as a violation of the project's fee provisions, (*1)   is governed by Rule 58 of the Federal Rules of Criminal Procedure (Fed. Rules Cr. Proc., Rule 58, 18 U.S.C.A.; hereafter Rule 58). Under that procedure, a trial is authorized to proceed on an indictment, information, or complaint, in the case of a misdemeanor, or on a citation or violation notice in the case of a petty offense (Rule 58(b)(l)). Thus, at the initial stage of federal criminal procedure for petty offenses, a citation serves the same function as a complaint; that is, it provides support for the decision to continue prosecuting the alleged offense (see Jaben v. U.S. (1965) 14 L.Ed.2d 345, 353).  Therefore, we think that the standards established for probable cause to issue a complaint are applicable to citations.

The United States Supreme Court has stated that a complaint must provide the affiant's answer to the magistrate’s hypothetical question, "What makes you think that the defendant committed the offense charged?" (Ibid.). The complaint is required to present enough information to enable a judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process (Ibid.). At a minimum, the complaint is required to follow the statutory language describing the offense charged and relate the essential facts constituting that offense (Bytes v. U.S. (9th Cir. 1964) 327 F.2d 825, 835).

The offense in question is utilizing the recreational facilities of the forest without having paid the recreational use fee. The essential elements of the offense are that (1) a vehicle has been parked (2) within the forest (3) for a recreational purpose (4) without displaying a pass.

When a vehicle is found parked without a pass on, for example, a forest road, a campground, or a trailhead parking lot, the third element listed above is supported by the reasonable inference that the purpose for parking the vehicle at that location was to use the recreational facilities of the forest.

However, in the case of parking within the forest on the right-of-way of State Highway Route 38, which is a major artery through the area, that presumption is much less supportable because there are many possible alternative explanations for having parked at that location. A person driving on State Highway Route 38 from Big Bear City en route to the City of Redlands, for example, with no intention of using the recreational facilities of the forest, could have his or her vehicle break down on the state highway right-of-way within the forest and have to leave the vehicle in order to search for assistance. As another example, a person might become drowsy while driving through the forest, park his o her vehicle by the side of the highway, and go for a walk in order to stir himself or herself awake, all without ever leaving the highway right-of-way.

Therefore, it is our view that probable cause to issue a citation is not present on the basis that the vehicle is parked within the forest on the right-of-way of State Highway Route 38, because aha" circumstance above does not support the element of the offense requiring recreational use of the forest. We think that, at a minimum, the citation would need to include additional facts indicating that a recreational use of the forest has occurred, such as, for example, a statement that the alleged violator was observed walking into the forest after having parked the vehicle.

A similar question was addressed by a federal district court in a recent case, where the court held that merely driving through a rational forest area on a public highway was not a recreational use of that area and was, therefore, not subject o the exaction of the demonstration program's user fee (U.S. v. Maris (D.Or. 1997) 987 F.Supp. 865, 868).

In the Maris case, the defendants entered the Oregon Dunes National Recreation Area of the Siuslaw National Forest by driving on South Jetty Road, a public highway, en route to accessing public coastal lands (Ed., at p. 866). There was no evidence that the defendants used the forest in any way other than driving on South Jetty Road to get through the forest to their destination (ibid.). The defendants were charged with violating Section 261.15 by failing to pay, upon entering the national forest, the user fees imposed under the demonstration program (Ibid.).

The district court construed the language of Section 315 as granting authority that is limited to recreational use fees and may not be extended to include imposing tolls for the use of public highways that run through forest lands (Id., at p. 867). The court also found that, in any case, imposition of those tolls would be prohibited under former Section 932 of Title 43 of the United States Code (hereafter Section 932) on South Jetty Road because that rout was established prior to October 21, 1976 (Id., at pp. 867-868). Section 932, which remains in effect for those rights-of-way existing prior to October 21, 1976, granted the right-of-way for the construction of highways over public land not reserved for public use and thus prohibits tolls on those preexisting rights-of-way (Ibid.).

The facts in the question presented here are similar to those present in the Maris case, that is, State Highway Route 38 is a public highway and the activity in question is parking on that highway at a location that is within the forest, an apparently nonrecreational use of the forest that is similar to the one at issue in the Maris case. We think that a court faced with those facts, and nothing more, would find that parking on a public highway on a location that is within a national forest is not itself a recreational use for which a fee is authorized under Section 315

Accordingly, it is our opinion that the Forest Service of the United States Department of Agriculture may not issue a citation for a violation of the fee provisions of the federal Recreational Fee Demonstration Program for a vehicle that is parked on the right-of-way of a portion of State Highway Rout 38 within the San Bernardino National Forest without displaying a National Forest Adventure Pass, unless there are additional facts indicating that a recreational use of the forest has occurred.

Very truly yours,
Abel Munoz
Deputy Legislative Counsel
 

(*1) A "petty offense" is defined as, among other things, an infraction for which the maximum fine is not greater than $5,000 (18 U.S.C.A. Secs. 19 and 3571(b)(6) and (7)). Because a violation of the project’s fee provisions is punishable by a fine o not more than $100 (Sec. 315(b)(5); see also 36 C.F.R. 261.15), we conclude that it is a "petty offense" under the Federal Rules of Criminal Procedure.