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Bark v. United States Forest Serv.

United States District Court, D. Columbia.

March 28, 2014

BARK et al., Plaintiffs,
v.
UNITED STATES FOREST SERVICE, Defendant, and NATIONAL FOREST RECREATION ASSOCIATION et al., Intervenor-Defendants

Page 42

[Copyrighted Material Omitted]

Page 43

Re Document Nos.: 30, 33, 35.

For BARK, GAYE ADAMS, GREG LEWIS, STEPHEN SAMPLE, SCOTT SILVER, DAVID WIMERT, Plaintiffs: Matt G. Kenna, PUBLIC INTREST ENVIRONMENTAL LAW, Durango, CO.

For UNITED STATES FOREST SERVICE, Defendant: Jason Alan Hill, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division - ENRD, Washington, DC.

For NATIONAL FOREST RECREATION ASSOCIATION, NFRA, RECREATION RESOURCE MANAGEMENT, INC., CLM SERVICES CORPORATION, ROCKY MOUNTAIN RECREATION COMPANY, DIANNE HUNN, Intervenor Defendants: Kevin R. Garden, LEAD ATTORNEY, THE GARDEN LAW FIRM P.C., Alexandria, VA.

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MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge.

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

I. INTRODUCTION

" 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.

II. BACKGROUND

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. § 460 l -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 Secretary [1] 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. ยง 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 ...


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