Bark v. U.S. Forest Serv., Civil Action No.: 12–1505 RC

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRUDOLPH CONTRERASUnited States District Judge
Citation37 F.Supp.3d 41
PartiesBark, et al., Plaintiffs, v. United States Forest Service, Defendant, and National Forest Recreation Association et al., Intervenor–Defendants.
Docket NumberCivil Action No.: 12–1505 RC
Decision Date28 March 2014

37 F.Supp.3d 41

Bark, et al., Plaintiffs
United States Forest Service, Defendant
National Forest Recreation Association et al., Intervenor–Defendants.

Civil Action No.: 12–1505 RC

United States District Court, District of Columbia.

Signed March 28, 2014

37 F.Supp.3d 44

Matt G. Kenna, Public Interest Environmental Law, Durango, CO, for Plaintiffs.

Jason Alan Hill, U.S. Department of Justice, Washington, DC, for Defendant.

Kevin R. Garden, The Garden Law Firm P.C., Alexandria, VA, for Intervenor-Defendants.


Denying Plaintiffs' Motion for Summary Judgment; Granting Federal Defendant's Motion for Summary Judgment; and Granting Intervenor–Defendants' Motion for Summary Judgment

RUDOLPH CONTRERAS United States District Judge


“National Forests are made for and owned by the people.” Gifford Pinchot, U.S. Dep't of Agric., Forest Serv., The Use of the National Forests 25 (1907). This litigation revolves around the ability of the people to access their National Forests—or, to be more specific, certain designated recreation areas within the National Forests—without being charged a fee. In 2004, Congress enacted the Federal Lands Recreation Enhancement Act, Pub.L. No. 108–447, div. J., tit. VIII, 118 Stat. 3377 (2004) (codified as amended at 16 U.S.C. §§ 6801 –14 (2012) ) (“REA”), which sought to ease access to public lands by placing detailed restrictions on the recreation fees the United States Forest Service and other federal agencies may charge to visitors. The case at bar presents a novel legal question: whether the REA's fee restrictions extend beyond the Forest Service to third parties, known as “concessioners” or “concessionaires,” who operate recreation areas within our National Forests.

Bark, an Oregon non-profit organization, joined five individual plaintiffs to initiate this suit against the Forest Service pursuant to the Administrative Procedure Act (“APA”). Plaintiffs challenge the Forest Service's issuance of several special use permits, along with its overall policy of issuing such permits, on the ground that the permits allow concessioners to charge restricted fees in violation of the REA. Plaintiffs also challenge the same for failure to undergo the public notice and review procedures set forth in the REA. The concessioners holding the challenged permits have joined the case as intervenors.

Currently before the Court are the parties' cross-motions for summary judgment. For the reasons set forth below, the Court finds that the REA's requirements and restrictions do not extend to third-party concessioners. Accordingly, the Court will deny Plaintiffs' motion for summary judgment and grant Defendants' motions for summary judgment.


A. The REA

In the late nineties, many recreational areas within our public lands were not free to visitors. As part of the Recreational Fee Demonstration Program, Pub.L. No. 104–134, § 315, 110 Stat. 1321, 1321–200 to –202 (1996) (codified as amended at 16 U.S.C. § 460l –6a(a)–(f) (2000) ) (“Fee Demo Program”), repealed by REA, Pub.L. No. 108–447, div. J., tit. VIII, § 813(b), 118 Stat. 3377, 3390 (2004), which was originally enacted within a large appropriations measure, the Forest Service and other federal agencies collected admission fees from

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visitors in exchange for access to designated recreational areas on federal lands. The Fee Demo Program was a pilot program whose purpose was “to demonstrate the feasibility of user-generated cost recovery for the operation and maintenance of recreation areas or sites and habitat enhancement projects on Federal lands.” Id. § 315(a).

In 2004, Congress replaced the pilot program with the REA, Pub.L. No. 108–447, div. J., tit. VIII, 118 Stat. 3377 (2004) (codified as amended at 16 U.S.C. §§ 6801 –14 (2012) ), which sets forth in more detail the types of fees federal agencies administering public lands may and may not charge to visitors. The REA authorizes the Secretary1 to “establish, modify, charge, and collect recreation fees at Federal recreational lands and waters....” 16 U.S.C. § 6802(a) (2012). “The term ‘recreation fee’ means an entrance fee, standard amenity recreation fee, expanded amenity recreation fee, or special recreation permit fee.” Id. § 6801(8).

This case deals with standard amenity recreation fees (“SARFs”). A SARF is a fee authorized by section 3(f) of the REA, which provides:

Except as limited by subsection (d), the Secretary may charge a standard amenity recreation fee for Federal recreational lands and waters under the jurisdiction of the Bureau of Land Management, the Bureau of Reclamation, or the Forest Service, but only at the following:
(1) A National Conservation Area.
(2) A National Volcanic Monument.
(3) A destination visitor or interpretive center that provides a broad range of interpretive services, programs, and media.
(4) An area—
(A) that provides significant opportunities for outdoor recreation;
(B) that has substantial Federal investments;
(C) where fees can be efficiently collected; and
(D) that contains all of the following amenities:

(i) Designated developed parking.

(ii) A permanent toilet facility.

(iii) A permanent trash receptacle.

(iv) Interpretive sign, exhibit, or kiosk.

(v) Picnic tables.

(vi) Security services.

Id. § 6802(f). But as the statute says, the Secretary's power to charge a SARF is “limited by subsection (d),” which prohibits recreation fees for certain activities, services, persons, and places. See generally id. § 6802(d). For purposes of this case, the relevant fee restriction is found in subsection (d)(1)(A), which prohibits fees “[s]olely for parking, undesignated parking, or picnicking along roads or trailsides.” Id. § 6802(d)(1)(A). Although “[r]esearch indicate[d] that new fees [under the Fee Demo Program] altered a very small percentage of visitation decisions across the full spectrum of income levels,” H.R.Rep. No. 108–790, pt. 1, at 13 (2004), the restrictions imposed by the REA were meant to be “overly prescriptive to alleviate concerns of those who no longer trust certain federal land management agencies with the recreation fee authority.” Id. at 14.

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The REA also establishes a process by which the public may “participate in the development of or changing of a recreation fee established under [the REA].” 16 U.S.C. § 6803(a) (2012). Whenever a new or amended recreation fee is proposed pursuant to the REA, the Secretary must publish a notice in the Federal Register and local publications near the affected site.See id. § 6803(b). The statute also calls for the establishment of Recreation Resource Advisory Committees (“RRACs”) to review and make recommendations on recreation fee proposals based on public concerns in the surrounding region. See generally id. § 6803(d). RRAC meetings are open to the public. See id. § 6803(d)(11)(A).

Under its sunset provision, the REA is currently slated to expire on December 8 of this year. See id. § 6809.

B. Concessioners

Not all fee areas within our National Forests are managed by the Forest Service. Since 1950, the Secretary of Agriculture has had authority under the Granger–Thye Act, ch. 97, § 7, 64 Stat. 82, 84 (1950) (codified as amended at 16 U.S.C. § 580d (2012) ), “to permit the use by public and private agencies, corporations, firms, associations, or individuals, of structures or improvements under the administrative control of the Forest Service and land used in connection therewith....” Id. Thus, under government-issued permits, third-party concessioners are able to charge visitors for access to designated recreation areas within our National Forests.

These permits are issued under a series of regulations promulgated by the Forest Service. See generally 36 C.F.R. §§ 251.50 –.65 (2013). The regulations set forth a multi-layered approval process for the screening of special use proposals, see id. § 251.54, and the reviewing officer is required to reject applications that fail to satisfy certain criteria, such as compatibility with land management goals and furtherance of the public interest, see id. § 251.54(e)(5). The concessioner's use is limited to the activities specifically authorized in the permit, see id. § 251.55(a), and all issued permits must include certain terms, such as liability and indemnification terms, and terms necessary to ensure compliance with public health and safety requirements, see id. § 251.56. This approval process applies not just to the initial application, but also to proposals to change an existing permit. See id. § 251.61.

This case involves the legality of fees charged by concessioners for recreation areas in...

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