Wednesday, August 10, 2011

Sherer v. United States Forest Service

Aug 9: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1418. Appealed from the United States District Court for the District of Colorado. In this opinion involving fees charged by the U.S. Forest Services, the Appeals Court says, "Everyone enjoys a trip to the mountains in the summertime. One popular spot is Mount Evans -- a fourteen thousand foot peak just a short drive from Denver and with a paved road that goes right to the summit. When the snow
melts and the road thaws, the national forest around Mount Evans teems with hikers and sightseers eager to take in the breathtaking views. But first they have to stop and pay. That's because the Forest Service maintains an entrance station along the road where it charges many visitors what it calls an "amenity fee."
    "Wanting everyone to be able to hike Mount Evans and take in its scenery without charge, the plaintiffs in this case ask us to strike down the Service's fee policy as facially inconsistent with Congress's directions, to hold it null and void in all applications. This, however, we agree with the district court we cannot do. For better or worse, the Legislature has said that the Service may — sometimes -- charge visitors to Mount Evans. So some lawful applications of the policy do exist. But saying this much shouldn't be misconstrued as saying more. In rejecting the plaintiffs' facial challenge we hardly mean to suggest that the Service's policy can't be attacked at all. It might well be susceptible to a winning challenge as applied to certain particular visitors, perhaps even the plaintiffs themselves. But that's a path the plaintiffs haven't asked us to explore and so one we leave for another day."
    The Appeals Court provides additional clarification and says, "As a general rule Congress has decreed that anyone may enter this country's great national forests free of charge. See 16 U.S.C. § 6802(e)(2). But in 2004 Congress included an important exception in what it called the Recreation Enhancement Act (REA). The REA allows the Forest Service to impose 'amenity fees' in areas that 'provide[] significant opportunities for outdoor recreation,' where there are 'substantial Federal investments' and certain 'amenities' -- amenities defined to include, among other things, interpretive exhibits, a permanent toilet, and security services. See 16 U.S.C. § 6802(f). Soon after the REA's adoption, the Forest Service invoked this very provision and adopted a 'Mount Evans Clear Creek Ranger District Federal Lands Recreation Enhancement Act Implementation Plan' imposing an amenity fee at Mount Evans."
    Access the complete opinion (click here). [#Land, #CA10]