United States District Court, D. Colorado
Raymond P. Moore United States District Judge
Thomas Alpern brings this as-applied challenge to Defendant
United States Forest Service's application of the Federal
Lands Recreation Enhancement Act ("REA"), 16 U.S.C.
§§ 6801-6814 at Maroon Valley, Colorado. For the
reasons given below, Plaintiffs petition for review of agency
action is denied.
relevant facts are not in dispute. The Forest Service charges
visitors to Maroon Valley a recreation fee often dollars per
vehicle. The 5.7-mile road through Maroon Valley has three
developed parking areas, but parking along the road is not
permitted, and there is nowhere else to park (for longer than
15 minutes). Upon arrival at the welcome station, visitors
are asked whether they intend to stop at any of the
facilities in the valley. If so, they must pay the recreation
fee. Visitors who plan on merely driving through the valley
do not have to pay.
drives to Maroon Valley and parks his vehicle in the
developed parking areas to access wilderness areas and
undeveloped federal lands. He contends he should not have to
pay the recreation fee because he does not use the amenities
at the parking areas, there is no feasible alternative means
for him to access the undeveloped federal lands, and security
services are not provided at two of the parking areas.
Court reviews the Forest Service's compliance with the
REA under the Administrative Procedure Act ("APA"),
5 U.S.C. §§ 701-706. See Sherer v. U.S. Forest
Serv., 727 F.Supp.2d 1080, 1085-87 (D. Colo. 2010).
Section 706(2) of the APA provides that an agency action must
be upheld on review unless it is "arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
the law." The Court's standard of review his highly
deferential-the agency's decision is entitled to a
presumption of regularity, and the burden of proof rests with
the party challenging the agency action. Citizens ` Comm.
to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176
(10th Cir. 2008).
case involves an agency's interpretation of a governing
statute, a court must first consider "whether Congress
has directly spoken to the precise question at issue."
Chevron U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984). "If Congress has
done so, the inquiry is at an end; the court must give effect
to the unambiguously expressed intent of Congress."
Food & Drug Admin, v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132 (2000) (quotation omitted). A
reviewing court should not confine itself to examining
statutory provisions in isolation; rather, it must interpret
a statute as a symmetrical and coherent regulatory scheme
and, if possible, fit all parts into a harmonious whole.
Id. at 132-33.
the REA, the Forest Service may charge a "standard
amenity recreation fee" at certain areas
(A) that provide significant opportunities for outdoor
(B) that ha[ve] substantial Federal investments;
(C) where fees can be efficiently collected; and
(D) that contain all of the following ...