Alpern v. Ferebee, 949 F.3d 546

Background

Maroon Valley (White River NF) charges a $10 entrance/parking fee at a welcome station; fee applies to parking in three developed lots (East Maroon, West Maroon, Maroon Lake) that contain six REA-listed amenities (designated parking, permanent toilet, trash receptacle, interpretive sign, picnic tables, security).
Thomas Alpern parks in those developed lots to access long hikes/multi-day backpacking trips; he contends he does not use the lots’ amenities.
Alpern brought an as-applied challenge under the Administrative Procedure Act, arguing the fee violates the Federal Lands Recreation Enhancement Act (REA) because § 6802(d)(1)(A) prohibits charging fees “solely for parking.”
The district court rejected Alpern’s challenge; he appealed to the Tenth Circuit. The central statutory provisions at issue are REA § 6802(f)(4) (authorizing fees where all six amenities exist) and § 6802(d)(1)(A) (excepting certain fees “solely for parking, undesignated parking, or picnicking along roads or trailsides”).
The Tenth Circuit affirmed, concluding the § 6802(d)(1)(A) exception applies to parking along roads/trailsides only and does not bar fees for parking in developed lots that contain the § 6802(f)(4) amenities.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Does § 6802(d)(1)(A)’s prohibition on fees “solely for parking” bar charging a fee to someone who parks in a developed fee lot but claims not to use other amenities?	Alpern: The statute bars fees “solely for parking” generally, so charging him a fee when he only parks violates REA.	Forest Service: The prohibition applies only to parking "along roads or trailsides" (undeveloped); fees are allowed in § 6802(f)(4) developed areas even if a visitor claims not to use all amenities.	Held: The exception does not apply; fees are lawful for parking in developed § 6802(f)(4) lots.
2) Does the postpositive modifier “along roads or trailsides” attach to all items in the series (parking, undesignated parking, picnicking)?	Alpern: The phrase modifies only the final noun or is ambiguous.	Forest Service: Standard textual rules say a postpositive modifier in a parallel series usually attaches to each element.	Held: The court held the modifier applies to all items; the prohibition covers parking/undesignated parking/picnicking along roads or trailsides.
3) Must a visitor actually use each listed § 6802(f)(4) amenity to be charged a fee, or is presence/supply enough?	Alpern: Because he does not use amenities, he should be exempt under § 6802(d)(1)(A) as effectively parking only.	Forest Service: § 6802(f)(4) authorizes fees where the listed amenities are present; use need not be proven and some benefits (e.g., security, designated parking) are necessarily received.	Held: Presence (and incidental benefit, e.g., security) suffices; REA does not require proof of actual use of every amenity.

Key Cases Cited

Scherer v. U.S. Forest Serv., 653 F.3d 1241 (10th Cir. 2011) (holding amenity fees cannot be charged for picnicking/parking along roadsides where § 6802(d)(1) applies)
Adams v. U.S. Forest Serv., 671 F.3d 1138 (9th Cir. 2012) (discussing limits on charging fees where parking is the sole activity in undeveloped areas)
Potts v. Ctr. for Excellence in Higher Educ., 908 F.3d 610 (10th Cir. 2018) (textual interpretation principles for modifiers in series)
Navajo Nation v. Dalley, 896 F.3d 1196 (10th Cir. 2018) (applying expressio unius canon)
Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169 (10th Cir. 2008) (standards for APA review of agency action)
Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007) (as-applied challenge standard)