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Forest Service Amenity Fee Consistent with REA

By Robyn Hagan Cain on August 11, 2011 | Last updated on March 21, 2019

If Tenth Circuit Court of Appeals Judge Neil Gorsuch ever decides to leave the bench, he may have a future in travel writing.

In a case challenging the admission fee to Mount Evans, a U.S. Forest Service area outside of Denver, Judge Gorsuch delivered an eloquent opinion upholding the price of admission to national forests while promoting Mount Evans' breathtaking views and summertime recreational offerings.

Judge Gorsuch's opinion makes us want to hike Mount Evans ... and we hate hiking.

As a general rule, Congress has decreed that anyone may enter national forests free of charge, but in 2004 Congress included an important exception in what it called the Recreation Enhancement Act ("REA").

The REA allows the Service to impose an "amenity fee" in areas that "provide exhibits, a permanent toilet, and security services, among other things." Soon after the REA's adoption, the Service adopted a "Mount Evans Clear Creek Ranger District Federal Lands Recreation Enhancement Act Implementation Plan" imposing an amenity fee at Mount Evans.

David Scherer sued the Service under the Administrative Procedure Act (APA), alleging that the Service's Implementation Plan was facially inconsistent with the Service's statutory authority under the REA. Scherer claimed that the REA prohibits the Service from charging solely for parking, undesignated parking, or picnicking along roads or trail sides for persons who are passing through the lands without using the facilities and services.

The Tenth Circuit Court of Appeals disagreed, ruling that, for better or worse, Congress said that the Service may - sometimes - charge visitors to Mount Evans. Some lawful applications of the policy do exist.

To prevail in this and any facial challenge to an agency's regulation, a plaintiff must show that there is "no set of circumstances" in which the challenged regulation might be applied consistent with the agency's statutory authority. The Tenth Circuit found that Mr. Scherer and his colleagues did not meet that demanding standard.

Under the Implementation Plan, the Service charges a fee for entering an area where the Service provides various amenities and services. In this area, the amenities come as a package deal; whether this results in the Service charging for an activity that's supposed to be free depends on what a particular visitor chooses to do.

The Tenth Circuit Court of Appeals noted that the Service is not exceeding its statutory authority every time if collects the amenity fee; given this, Scherer didn't meet the burden of showing that there are no set of circumstances in which the Implementation Plan's fee is lawfully collected.

The plaintiffs' downfall was asking for the broad order of facial invalidity. This should serve as a reminder to lawyers: you're more likely to succeed in your Administrative Procedure Act complaints if you narrowly tailor the scope of your allegations.

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