Scherer v. United States Forest Serv.

• Decision Date: 09 August 2011
• Docket Number: No. 10–1418.,10–1418.
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: David P. SCHERER; John H. Licht; Mike Lopez; Barbara Brickley; and Aaron Johnson, Plaintiffs–Appellants,v.UNITED STATES FOREST SERVICE; Glenn P. Casamassa, Forest Supervisor for Arapaho & Roosevelt National Forest; and David Gaouette, United States Attorney,* Defendants–Appellees.

653 F.3d 1241

David P. SCHERER; John H. Licht; Mike Lopez; Barbara Brickley; and Aaron Johnson, Plaintiffs–Appellants,

v.UNITED STATES FOREST SERVICE; Glenn P. Casamassa, Forest Supervisor for Arapaho & Roosevelt National Forest; and David Gaouette, United States Attorney,* Defendants–Appellees.

No. 10–1418.

United States Court of Appeals, Tenth Circuit.

Aug. 9, 2011.

Matt Kenna, Durango, CO, (Mary Ellen Barilotti, Hood River, OR, with him on the briefs), for Plaintiffs–Appellants.Nicholas A. DiMascio, Attorney, Environment & Natural Resources Division (Ignacia S. Moreno, Assistant Attorney General; Andrew C. Mergen, Attorney, Environment & Natural Resources Division; and David C. Shilton, Attorney, Environment & Natural Resources Division, with him on the brief), United States Department of Justice, Washington, D.C., for Defendants–Appellees.Before HARTZ, McKAY, and GORSUCH, Circuit Judges.GORSUCH, Circuit Judge.

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.

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.

But not without stirring up a bit of controversy—controversy that ultimately led to this lawsuit. David Scherer and his fellow plaintiffs are outdoor enthusiasts who enjoy visiting Mount Evans—or at least used to before the Forest Service started with this amenity fee business. Now, they say, they pay the fee reluctantly, visit less frequently, and in some cases have risked criminal prosecution by refusing to pay. Citing these harms, Mr. Scherer brought suit seeking a declaration that the Service's Implementation Plan is unlawful. But the district court entered judgment for the Forest Service all the same, and it is this that Mr. Scherer seeks to undo on appeal.

How? Proceeding under the Administrative Procedures Act (“APA”), Mr. Scherer

says the Forest Service's Implementation Plan exceeds the statutory authority given to the Service by Congress in the REA. See 5 U.S.C. § 706. He draws our attention to § 6802(d)(1), noting that the statute prohibits the Service from “charg[ing] ... [s]olely for parking, undesignated parking, or picnicking along roads or trailsides[,] ... [f]or 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[,] ... [f]or camping at undeveloped sites [,] ... [or] [f]or use of overlooks or scenic pullouts.” 16 U.S.C. § 6802(d)(1)(A), (D), (E), & (F). Yet, Mr. Scherer says, the Implementation Plan disregards these legislative limits by sometimes charging people who seek to do only these things. In this way, he says, the Implementation Plan exceeds the Forest Service's statutory mandate.

But Mr. Scherer and his fellow plaintiffs don't seek to enjoin enforcement of the Implementation Plan only as to them and their particular circumstances—the hallmark of an as-applied challenge. See Reno v. Flores, 507 U.S. 292, 300, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (an as-applied challenge is limited to review of how the regulation or statute has been “applied in a particular instance”); Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1146 (10th Cir.2007) (an as-applied challenge is limited to testing “the application of [a regulation or statute] to the facts of a plaintiff's concrete case”). Instead, they seek a ruling that the Implementation Plan violates the rights of the public and that strikes down the Plan for the benefit of all. See, e.g., Aplt.App. at 37, 39 (complaint seeking a declaration that the Implementation Plan “exceeded the scope of [the Service's] legislative authority” and asking the court to “[e]njoin the Service from any further implementation of its policy and from posting signs that mislead the public” and “[r]etain jurisdiction over this matter to ensure that the Service complies with the provisions of the REA”).

By proceeding in this fashion—by asking us only to decide whether the Implementation Plan is facially invalid, that is invalid as applied to more than them and their particular circumstances—the plaintiffs have set before themselves a formidable task. To prevail in this and any facial challenge to an agency's regulation, the plaintiffs must show that there is “no set of circumstances” in which the challenged regulation might be applied consistent with the agency's statutory authority. See Reno, 507 U.S. at 301, 113 S.Ct. 1439; Pub. Lands Council v. Babbitt, 167 F.3d 1287, 1293 (10th Cir.1999).

And this is a demanding standard Mr. Scherer and his colleagues simply cannot meet. Under the Implementation Plan, the Forest Service charges a fee for entering an area where, by everyone's admission, the Service provides various amenities and services for which a fee may be lawfully charged under § 6802(f). And in this area, the amenities come as a sort of package deal: paying the fee entitles a visitor to use them as much or as little as she chooses. So whether this results in the Forest Service charging for an activity that's supposed to be free under § 6802(d)(1) depends on what a particular visitor chooses to do. If a visitor drives close enough to Mount Evans, parks to have a picnic on the side of the road, and then calls it a day, she'll have paid the amenity fee only for picnicking and undesignated parking—activities for which no fee is supposed to be charged under § 6802(d)(1). But if that same visitor lingers a bit longer and stops by the nature center, she'll have paid a fee that the REA expressly allows the Service to charge. And the record shows that many paying visitors do take advantage of legally chargeable amenities while at Mount Evans. In fact, the Forest Service estimates (and Mr. Scherer does not contest) that in 2007 over 22,000 people visited the nature center or received information from interpretative guides. Aple. Supp.App. at 49. Another 900 received roadside assistance from the Forest Service's security patrol. Id. All these visitors did more than partake of § 6802(d)(1)'s freebies—they availed themselves of Mount Evans's federally furnished (and legally chargeable) “amenities.” So it's just not the case that every time the Forest Service collects the amenity fee it exceeds its statutory authority. And given this, Mr. Scherer can't meet the burden of showing that there are no set of circumstances where the...