Driving up Mount Evans should be free. So why do so many pay a fee?

The highway up Mount Evans opened at 8 a.m. last Friday, after a Colorado Department of Transportation crew had shoveled the last snow off the highest road in North America. Over the next three months, tens of thousands of cars will make the trip up State Highway 5, which starts at Echo Lake and goes from 10,500 feet to 14,230 feet in just fourteen miles. The road stops just 34 feet short of the summit — which makes Mount Evans the easiest fourteener you'll ever climb. But if you want to get out of your car to conquer this peak, you'll have to pay. In fact, if you stop your car anywhere on the road — to take a picture, to look at the scenery, never mind to use a bathroom — you'll have to pay.

A handful of Coloradans would like to make the U.S. Forest Service pay for flagrantly flouting the law that regulates what fees can be charged on public land. But while the snow is melting on Mount Evans, their case seems frozen in court.

Back in 1997, under the new federal Recreational Fee Demonstration Act, the Forest Service put an entrance station at the start of the highway, at Echo Lake, and began charging a $10 access fee to enter Arapaho National Forest, which abuts the state highway. But charging access to public land proved so unpopular — not just in Colorado, but across the country — that Congress repealed Fee Demo in 2004 and replaced it with the Federal Lands Recreation Enhancement Act, which prohibits the Forest Service and other agencies from charging entrance fees at all and only allows an amenity fee if visitors actually use amenities — improved campgrounds, bathrooms, visitor centers. Under this law, the entrance fee at the start of Highway 5 should have been discontinued in all but very specific cases. But at Mount Evans, the Forest Service interprets an amenity very strictly: If you park, you pay the $10 fee.

"As long as you drive to the top and back without stopping, you don't need to pay," says John Bustos, the public information officer for this region of the Forest Service. What if you pull over onto one of the state-maintained scenic overlooks? "As long as you drive to the top and back without stopping, you don't need to pay," he repeats. How about if you pause at the side of the road to take a picture? "As long as you drive to the top and back without stopping, you don't need to pay."

But visitors complained that the Forest Service staffers in the information booth (the word "entrance" had been eliminated) didn't explain even that much, instead implying that in order to use the road, every vehicle had to have a ten-buck pass, whether or not the driver planned to stop. After hearing enough of those complaints, in 2007 the Colorado Department of Transportation, which owns and maintains the road (but collects none of the fees), got the Forest Service to put up a sign that states "Parked vehicles must display a valid recreation pass next 15 miles." It would have clarified things had the sign instead said "Only vehicles that park must display a valid recreation pass." It would have been clearer still if the sign had not been placed a good fifty feet beyond the information booth, which blocks the view of the sign.

Still, the fee was just $10, and "Who wants to fight government, especially over $10?" asks David Scherer.

Well, Scherer, for starters. A regular visitor to Mount Evans and an active member of the Western Slope No-Fee Coalition (www.westernslopenofee.org) since 2001, he thought the confusing signage and inconsistent staff instructions were just the start of a mountainous injustice at Mount Evans. After studying the subject for a year, he got a break in February 2008, when he found the Forest Service plans for a toilet at "the Mount Evans overlook" — and overlooks are specifically exempt from fees by the FLREA. "We need to take the Forest Service to court," he remembers thinking, "so we can show our evidence to the court."

And so Scherer filed suit in U.S. District Court, charging that through forest supervisor Glenn Casamassa, the Forest Service had "exceeded the scope of its legislative authority in implementing the Federal Lands Recreation Enhancement Act" at Mount Evans Recreation Area. After all, according to the language of the FLREA, "The Secretary shall not charge any standard amenity fee for Federal recreation lands and waters administered by the Bureau of Land Management, the Forest Service, or the Bureau of Reclamation under this act for any of the following:

solely for parking, undesignated parking, or picnicking along roads or trailsides

for general access unless specifically authorized under this section

for dispersed areas with low or no investment unless specifically authorized under this section

for persons who are driving through, walking through, boating through, horseback riding through, or hiking through Federal recreational lands and waters without using the facilities and services.

For camping at undeveloped sites that do not provide a minimum number of facilities and services...

For use of overlooks or scenic pullouts.

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