Scherer v. United States Forest Service
653 F.3d 1241
| 10th Cir. | 2011Background
- Mount Evans is protected by the Forest Service, which charges an amenity fee under the Recreation Enhancement Act (REA).
- The REA permits fees in areas with significant outdoor recreation opportunities and specific federally funded amenities, including interpretive exhibits, toilets, and security services.
- The Forest Service adopted the Mount Evans Clear Creek Ranger District Plan implementing the amenity fee.
- Plaintiffs Scherer, Licht, Lopez, Brickley, and Johnson challenged the plan as exceeding statutory authority under REA § 6802(d).
- District court ruled for the Forest Service; plaintiffs appealed seeking facial invalidation and broader relief.
- The issue on appeal was whether the Plan is facially valid or could be upheld only as applied to specific circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Plan is facially invalid under § 6802(d) | Scherer argues no set of circumstances justifies the fee under § 6802(d). | Forest Service contends many circumstances justify the fee under § 6802(f) and § 6802(d). | Plan is not facially invalid; valid under some circumstances. |
| Whether plaintiffs can pursue an as-applied challenge to the Plan | Scherer seeks as-applied relief to limit or strike the fee for certain activities. | Plan may be attacked as applied to particular visitors; standing and scope uncertain. | Plaintiffs cannot prevail on an as-applied challenge in this facial case, but may pursue such challenges in separate proceedings. |
| Whether a hybrid 'site-specific' challenge is permissible | Scherer proposes a site-specific challenge blending facial and as-applied theories. | Such hybrid theory is not recognized; standard applies. | Hybrid site-specific challenge rejected; cannot mix theories to broaden facial challenge. |
| What standard applies to facial challenges against the Plan | Arizona-like rationale should reverse burden on the agency. | Continued adherence to established standard requiring no set of circumstances where the Act is valid. | Court applies the settled standard: the challenger must show no set of circumstances in which the Act would be valid. |
Key Cases Cited
- Reno v. Flores, 507 U.S. 292 (1993) (as-applied challenges limited by standing and scope)
- Pub. Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999) (test for facial challenges: 'no set of circumstances')
- Schutz v. Thorne, 415 F.3d 1128 (10th Cir. 2005) (standing by paying fee under protest can confer standing)
- United States v. Arizona, 641 F.3d 339 (9th Cir. 2011) (challenge must show no valid set of circumstances under the Act)
- Colorado Wild, Heartwood v. U.S. Forest Serv., 435 F.3d 1204 (10th Cir. 2006) (site-specific and facial challenges distinguished; context of FOREST SERVICE action)