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Scherer v. United States Forest Service

ELR Citation: 41 ELR 20259
Nos. No. 10-1418, (10th Cir., 08/09/2011)

The Tenth Circuit held that the U.S. Forest Service may charge visitors to Mt. Evans an "amenity fee" under the Recreation Enhancement Act (REA). Plaintiffs, outdoor enthusiasts, argued that the fee exceeds the Service's statutory authority under the REA. But to prevail in a facial challenge to an agency regulation, a plaintiff must show that there is "no set of circumstances" in which the challenged regulation might be applied consistent with the agency's statutory authority. Here, the plaintiffs fail to show that there are no set of circumstances where the fee is lawfully collected. Although there may be occasions where the Service charges for activities for which no fee is supposed to be charged under the REA—such as picnicking and undesignated parking—the Forest Service does not exceed its statutory authority every time it collects a fee. To the contrary, the Service provides various amenities and services for which a fee may be lawfully charged.