By BILL BISHOP
The Register Guard
In an hourlong hearing before U.S. Magistrate Tom Coffin in Eugene, their lawyer argued that the Forest Service overstepped its authority by making people pay to use South Jetty Road, which goes through federal forestland to get to an area that isn't governed by the Forest Service.
The South Jetty of the Siuslaw River -- the destination of the surfers -- is under the jurisdiction of the Army Corps of Engineers.
The surfers, Robert Maris, 21, of Eugene, and Alan Smith, 38, of Goshen, said their case is important to more than just surfers.
"We are simply two surfers who, in a way, got caught up in this," Maris said. "It could have been a 70-year-old who wanted to access the jetty to shoot pictures. This isn't just for surfing. This is for everybody."
If they succeed, the ruling would eliminate the practice of charging to take a public roadway through the forest -- only a small part of the demonstration project approved by Congress last year that allows access fees at numerous forest sites. The Forest Service expects to raise about $1.7 million a year from fees collected in eight Northwest forests to use to repair trails and do other maintenance work.
Coffin took the case under advisement.
The new fees are in effect at five Forest Service areas in the Siuslaw National Forest: Cape Perpetua, Oregon Dunes National Recreation Area, Sand Lake Recreation Complex, Sutton Recreation Complex and Mary's Peak.
But opposition to the pilot project is mounting. U.S. Rep. Peter DeFazio, D-Ore., this week introduced a bill to eliminate the project because of public complaints. He proposes to raise money instead by charging mining companies a royalty on the value of the material they extract from public lands.
Maris and Smith were ticketed on separate occasions for the same offense -- driving around a collection booth on South Jetty Road to avoid paying the $3 fee for the Oregon Dunes spot.
Assistant U.S. Attorney Bud Fitzgerald and the surfers' lawyer Daniel Stotter of Eugene, narrowed the case to one legal issue: Can the government charge people to use a road to pass through national forestland?
Fitzgerald said that Congress authorized the Forest Service to impose fees for admission to an area or for use of facilities. The use of the word "or" clears the way to charge a fee for access through the forest even if people don't use the facilities, he said.
Under questioning by Coffin, Fitzgerald acknowledged that the law in effect before the new fee legislation had prohibited fees for merely using a road, drinking water or using public restrooms in Forest Service areas.
Coffin focused on the breadth of the governments interpretation of its new authority.
He asked Fitzgerald: "Did Congress intend to authorize the charging of a toll for use by the public of a road that goes through forestland, even when there is no other use of the forestland?"
If so, Coffin suggested, the Forest Service could theoretically erect toll booths on Highway 126 where it passes through Siuslaw National Forest land.
"The statutory language is broad enough to allow that," Fitzgerald responded.
Stotter said there was no indication that Congress intended fees to be charged for minimal uses that previously were exempt from collection.
He also noted the fee demonstration language didn't specifically say the Forest Service could charge for road use.