Alpern v. Ferebee

949 F.3d 546

Thomas ALPERN, Plaintiff-Appellant,

v.Brian FEREBEE, in his official capacity as the U.S. Forest Service Region 2 Acting Regional Forester; United States Forest Service, Defendants-Appellees.

No. 19-1086

United States Court of Appeals, Tenth Circuit.

FILED February 7, 2020

Kristine M. Akland of Akland Law Firm PLLC, Missoula, Montana (Timothy M. Bechtold of Bechtold Law Firm PLLC, Missoula, Montana with her on the briefs), for Plaintiff–Appellant.

Corrine V. Snow, Attorney, Environment and Natural Resources Division (Jeffrey Bossert Clark, Assistant Attorney General; Eric Grant, Deputy Assistant Attorney General; Robert J. Lundman, and Barclay T. Samford, Attorneys, Environment and Resources Division, with her on the brief), United States Department of Justice, Washington, D.C., for Defendant–Appellees.

Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.

PHILLIPS, Circuit Judge.

Across this great country, visitors can enjoy a trip to one of our nation’s beautiful national forests. Whether visitors must pay a fee as part of their trip is determined by the Federal Lands Recreation Enhancement Act (REA). This prescriptive statute details when the agencies that run and maintain our public lands can and cannot impose a fee: the REA generally allows fees for developed areas but proscribes fees for undeveloped ones. Thomas Alpern claims that the United States Forest Service (Forest Service) improperly charges him a fee when he enters Maroon Valley to park and hike. He cites a REA provision that he claims prohibits charging a fee "[s]olely for parking[.]" 16 U.S.C. § 6802(d)(1)(A). He argues that this prohibition overrides another REA provision that allows agencies to charge a fee when certain listed amenities are present—amenities such as picnic tables, security patrols, trash bins, and interpretive signs. Id. § 6802(f)(4). We disagree. Section 6802(d)(1)(A) prohibits charging fees "[s]olely for parking ... along roads or trailsides[,]" something Alpern does not do. He parks in a developed parking lot featuring all the amenities listed in § 6802(f)(4), not along a road or trailside. So we affirm the district court’s decision to reject Alpern’s as-applied challenge to the Maroon Valley fee program.

BACKGROUND

Just outside of Aspen, Colorado sits Maroon Valley—part of White River National Forest and home to the stunning Maroon Bells. The valley is popular with backpackers, hikers, and campers, among others, due to its spectacular natural beauty and abundant outdoor recreation opportunities. Most visitors to Maroon Valley pay $10 at a welcome station,¹ unless they are "merely driving through" or briefly stopping at the "Stein Meadow View Pullout."² Appellant’s App. at 31, 130. Ninety percent of the collected fees are then reinvested in Maroon Valley. Paying visitors can park for up to five days in one of three developed parking lots—East Maroon Wilderness Portal, West Maroon Wilderness Portal, or Maroon Lake Scenic Area. Each lot provides visitors with various amenities, including bathrooms, interpretive signs, and picnic tables. These lots are the only day-parking options in Maroon Valley, meaning convenient access to its wilderness areas often requires a fee.

Alpern hikes in Maroon Valley and the surrounding wilderness areas where he "often go[es] on multi-day backpacking trips" or day hikes exceeding twelve hours. Appellant’s App. at 26–27. To do so, he enters the valley on its only road, pays the $10 fee, and parks in one of the three lots "to access the trail[s]," while claiming never to use any of the lot’s various amenities. Id. at 26–29. Based on this, Alpern brings an as-applied challenge to Maroon Valley’s fee program—administered by the Forest Service—alleging that it violates the REA by charging him "[s]olely for parking[.]" Appellant’s App. at 5, 10–11 (citing 16 U.S.C § 6802(d)(1)(A) ). The district court rejected this challenge, ruling the fee program proper as applied to Alpern. Alpern v. Ferebee , No. 1:17-cv-00024-RM, 2019 WL 1046789, at *1–3 (D. Colo. Mar. 5, 2019) (citing 16 U.S.C § 6802(d)(1)(A) ). Alpern timely appealed, and we have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

I. Standard of Review

Alpern mounts an as-applied challenge to the fee program in Maroon Valley; therefore, we apply the law "to the facts of [his] concrete case." See Colo. Right to Life Comm., Inc. v. Coffman , 498 F.3d 1137, 1146 (10th Cir. 2007). He argues that charging him a fee to park in one of the three developed parking lots contravenes 16 U.S.C. § 6802(d)(1)(A) ’s mandate that fees not be charged "[s]olely for parking[.]" Thus, he asks us to invalidate the fee program using the authority granted to us by the Administrative Procedure Act (APA). See 5 U.S.C. § 706(2)(C) ("[R]eviewing court[s] shall ... hold unlawful and set aside agency action ... found to be ... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right."). And "[u]nder the [APA], which governs judicial review of agency actions, we review the lower court’s decision de novo." See Citizen’s Comm. to Save Our Canyons v. Krueger , 513 F.3d 1169, 1176 (10th Cir. 2008) (citations omitted).

II. Maroon Valley’s Fee Program as Applied to Alpern

"As a general rule Congress has decreed that anyone may enter this country’s great national forests free of charge." Scherer v. U.S. Forest Serv. , 653 F.3d 1241, 1242 (10th Cir. 2011) (citing 16 U.S.C. § 6802(e)(2) ). But federal agencies can "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[ ] ... 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.

16 U.S.C. § 6802(f) (2018) (emphasis added and bold in original). This authority to "charge a standard amenity recreation fee" is "limited by subsection (d)," which provides that:

The Secretary shall not charge any standard amenity recreation fee or expanded amenity recreation fee for Federal recreational lands and waters administered by the Bureau of Land Management, the Forest Service , or the Bureau of Reclamation under this chapter for any of the following:

(A)Solely for parking , undesignated parking, or picnicking along roads or trailsides ....

(D) For 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) For use of overlooks or scenic pullouts.

Id. § 6802(d)(1), (f) (emphasis added and bold in original).

This appeal centers on the interplay of these two provisions. Section 6802(f)(4) allows fees at locations with all six statutory amenities present, except where § 6802(d) applies. In this case, Alpern concedes that all three developed parking lots in Maroon Valley contain the six amenities listed in § 6802(f)(4), making it a location where the Forest Service can charge a standard amenity fee unless § 6802(d)(1) applies. Alpern argues that § 6802(d)(1)(A) applies, prohibiting the Forest Service from charging a fee at that location "solely for parking[.]" Appellant’s Reply Br. 1. Thus, the sole question before us is whether § 6802(d)(1)(A) ’s exception applies to Alpern’s use of the developed parking lots in Maroon Valley, making the Forest Service’s fee program unlawful as it applies to him.³

Section 6802(d)(1)(A) prohibits "the Forest Service" from charging "any standard amenity recreation fee ... [s]olely for parking , undesignated parking, or picnicking along roads or trailsides ." § 6802(d)(1)(A) (emphasis added). Alpern contends that "parking" is not modified by "along roads or trailsides" such that this provision prohibits fees "solely for parking," meaning the fee is improper as applied to him because even though he parks in a developed lot (which is one of the six amenities in (f)(4)), he never uses any of the other five amenities. Appellant’s Opening Br. 17–18, 26. This interpretation is incorrect.

Section 6802(d)(1)(A) contains a series—"parking," "undesignated parking," and "picnicking"—followed by a postpositive modifier—"along roads or trailsides." "[W]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series." Potts v. Ctr. for Excellence in Higher Educ., Inc. , 908 F.3d 610, 615–16 (10th Cir. 2018) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012)).

Here, the statute’s structure leads us to conclude that each term in the series is modified by "along roads or trailsides." Each element is separated only by a comma, and no words or punctuation interrupt the series’ nouns (outside of a single adjective). See § 6802(d)(1)(A). No odd punctuation breaks up the series’ flow, and the series contains no determiners between terms, indicating that the postpositive modifier applies to each element. "The typical way in which syntax would suggest no carryover modification is that a determiner (a , the , some , etc.) will be repeated before the second element[.]" Scalia & Garner, supra at 148–49 (noting that "[w]ith postpositive modifiers, the insertion of a determiner before the second item tends to cut off the modifying phrase so that its backward reach is limited—but that effect is not entirely clear").⁴ For these reasons, w...