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Alpern v. Ferebee

United States District Court, D. Colorado

March 5, 2019

THOMAS ALPERN, Plaintiff,
v.
BRIAN FEREBEE, in his official capacity as the U.S. Forest Service Region 2 Regional Forester, and UNITED STATES FOREST SERVICE, Defendants.

          ORDER

          Raymond P. Moore United States District Judge

         Plaintiff 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.

         I.INTRODUCTION

         The 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.

         Plaintiff 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.

         II. LEGAL STANDARD

         The 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).

         When a 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.

         III. ANALYSIS

         Under the REA, the Forest Service may charge a "standard amenity recreation fee" at certain areas

(A) that provide[] significant opportunities for outdoor recreation;
(B) that ha[ve] substantial Federal investments;
(C) where fees can be efficiently collected; and
(D) that contain[] all of the following ...

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