FILED
United States Court of Appeals
Tenth Circuit
August 9, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
DAVID P. SCHERER; JOHN H.
LICHT; MIKE LOPEZ; BARBARA
BRICKLEY; and AARON JOHNSON,
Plaintiffs - Appellants,
v.
No. 10-1418
UNITED STATES FOREST
SERVICE; GLENN P. CASAMASSA,
Forest Supervisor for Arapaho &
Roosevelt National Forest; and
DAVID GAOUETTE, United States
Attorney, *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:08-CV-00917-MEH-KMT)
Matt Kenna, Durango, Colorado (Mary Ellen Barilotti, Hood River, Oregon, 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.
*
Pursuant to Fed. R. App. P. 43(c)(2) David Gaouette is substituted as
United States Attorney for John F. Walsh.
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
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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
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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
(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
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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; 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).
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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 Implementation Plan’s fee is lawfully collected.
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Rather than dispute any of this, rather than try to surmount the difficulties
of a facial challenge, Mr. Scherer suggests that our usual standard for facial
challenges shouldn’t apply in his case. He begins by arguing that having to carry
the burden ordinarily imposed on a facial challenge would render § 6802(d) a
dead letter, that it would let the Forest Service flaunt the statute with impunity.
But this simply is not so. Plenty of fee arrangements could violate § 6802(d)(1)
on their face. Take, for example, a policy under which the Forest Service charged
for access to an area that only included unimproved camping sites, or charged
extra to park in undesignated areas even after the standard amenity fee had been
paid. Those charges would violate § 6802(d)(1) under every possible scenario
and so could be the subject of a winning facial challenge. And even the current
Implementation Plan may be vulnerable to an as-applied challenge under § 6802.
We do not pass on the issue today, but it seems an individual might have a good
defense if he were prosecuted for participating in only those activities listed in
§ 6802(d)(1).
To this Mr. Scherer doesn’t reply by suggesting that his suit involves an as-
applied challenge. Instead, he asserts that we should treat his facial challenge
with special solicitude because an as-applied challenge isn’t practical or even
possible here. It isn’t, he says, because the Forest Service only issues informal
warnings and never prosecutes violations of the Mount Evans Implementation
Plan — a bluff tactic that coerces visitors to pay the fee while ensuring no one
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will ever have standing to bring an as-applied challenge. But this argument rests
on a false premise — that the only way a plaintiff can bring an as-applied
challenge to a fee is by refusing to pay it and awaiting criminal prosecution.
That’s just not the law. To the contrary, and as we have previously held, paying a
fee under protest itself can sometimes be enough to confer standing to challenge
its collection. See, e.g., Schutz v. Thorne, 415 F.3d 1128, 1133 (10th Cir. 2005).
So if, as he alleges, Mr. Scherer is a “frequent visitor” who has “reluctantly paid
the fees demanded of him,” Aplt. App. at 21-22, he may already have standing to
bring an as-applied challenge. The problem thus is less that he can’t bring an as-
applied challenge so much as it is that he hasn’t.
Alternatively, Mr. Scherer calls on us to endorse a new and hybrid category
of challenge that might be easier for him to pursue — something between a facial
and an as-applied challenge that he calls a “site-specific” challenge. And to
support his cause Mr. Scherer invokes Colo. Wild, Heartwood v. U.S. Forest
Serv., 435 F.3d 1204 (10th Cir. 2006). In that case, however, we noted that the
plaintiffs’ challenge was strictly facial because they were contesting the terms of
a nationally applicable regulation. See id. at 1212 n.2. We never said the
opposite was true — we never even implied that a challenge to a “site-specific”
final agency action (like the Mount Evans Implementation Plan) can’t also be a
facial one. Of course it can. The nature of a challenge depends on how the
plaintiffs elect to proceed — whether they seek to vindicate their own rights based
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on their own circumstances (as-applied) or whether they seek to invalidate an
agency action based on how it affects them as well as other conceivable parties
(facial). In this case, Mr. Scherer and his colleagues chose the latter course and
we see no legal authority (or need) that might allow us to invent a third sort of
hybrid challenge, mixing and matching bits of as-applied and facial rules just so
one side might have a better time of it.
Still fighting settled law, Mr. Scherer draws our attention to United States
v. Arizona, 641 F.3d 339 (9th Cir. 2011). He argues that case suggests an
unlawful regulation shouldn’t be sustained in a facial challenge simply because
there might be some hypothetical “permissible applications of it.” Id. at 346. In
this way, Mr. Scherer hopes to flip the burden in his facial challenge so that the
Forest Service must prove its regulation is always lawful rather than the plaintiffs
having to prove it’s never lawful. But Arizona effected no such reversal of settled
law. To the contrary, in the very portion Mr. Scherer cites the Ninth Circuit
acknowledged (just as we do today and has long been the law) that “the
challenger must establish that no set of circumstances exists under which the Act
would be valid.” Id. at 345-46 (internal quotation omitted).
In a last try, Mr. Scherer seeks to expand the nature of his challenge. For
the first time on appeal, he offers various other intriguing arguments as to why
the Implementation Plan should not survive judicial scrutiny even in a facial
challenge. He says, for example, that the Forest Service’s explanations for its
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current policy are self-defeating and internally inconsistent and thus arbitrary and
capricious within the meaning of the APA. See 5 U.S.C. § 706(2)(A). But none
of this is relevant to the legal theory the plaintiffs pursued in the district court —
that the Implementation Plan exceeds the Forest Service’s statutory authority
under § 6802. If Mr. Scherer and his fellow plaintiffs now believe the
Implementation Plan is facially invalid for some other reason, it’s a possibility
that — like the possibility of an as-applied challenge — they or others might seek
to pursue in a future lawsuit. But we may not reverse the district court’s
judgment in this case based on theories coined for the first time only on appeal
unless Mr. Scherer makes a showing of plain error — something he has not even
attempted.
Affirmed.
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