FEDERAL DEFENDANTS-APPELLEES’ ANSWERING BRIEF · 2015-10-14 · ii certificate of compliance with...

No. 10-16711

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Gaye Adams; Greg Lewis; Daniel Patterson; Christine M. Wallace,

Plaintiffs-Appellants,

-v.-

United States Forest Service; Jeannie Derby; Dennis K. Burke, United States Attorney,*

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF ARIZONA (HON. RANER C. COLLINS)

FEDERAL DEFENDANTS-APPELLEES’ ANSWERING BRIEF

IGNACIA S. MORENO Assistant Attorney General ANDREW C. MERGEN DAVID C. SHILTON NICHOLAS A. DIMASCIO Attorneys, U.S. Dep’t of Justice Env’t & Natural Resources Div. P.O. Box 23795 (L’Enfant Station) Washington, DC 20026-3795 (202) 307-6105 [email protected]

* Dennis K. Burke is substituted for Diane J. Humetewa pursuant to Fed. R. App. P. 43(c)(2)

Case: 10-16711 02/18/2011 Page: 1 of 80 ID: 7653632 DktEntry: 15

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TABLE OF CONTENTS

JURISDICTIONAL STATEMENT ............................................................ 1

STATEMENT OF THE ISSUES ................................................................ 1

STATEMENT OF THE CASE ................................................................... 1

STATEMENT OF FACTS .......................................................................... 4

I. MT. LEMMON AND THE RECREATIONAL FEE DEMONSTRATION PROGRAM ............................................. 4

II. REA ........................................................................................... 5

A. The Federal Statute ........................................................ 5

B. The Forest Service’s Interim Implementation Guidelines ....................................................................... 8

III. IMPLEMENTATION OF REA AT MT. LEMMON .............. 11

STANDARD OF REVIEW ........................................................................ 12

SUMMARY OF ARGUMENT .................................................................. 15

ARGUMENT ............................................................................................. 17

I. THE MT. LEMMON HIRA RECREATION FEE IS CONSISTENT WITH THE PLAIN LANGUAGE OF THE LIMITATIONS IN REA. ........................................................ 17

II. EVEN IF REA IS AMBIGUOUS, THE DISTRICT COURT PROPERLY DEFERRED TO THE FOREST SERVICE’S INTERPRETATION. ............................................................. 30

CONCLUSION ......................................................................................... 40

STATEMENT OF RELATED CASES

STATEMENT REGARDING ORAL ARGUMENT


ii

CERTIFICATE OF COMPLIANCE WITH TYPE VOLUME LIMITATION

STATUTORY ADDENDUM TO APPELLEES’ BRIEF


iii

TABLE OF AUTHORITIES

Cases

Amalgamated Sugar Co. LLC v. Vilsack, 563 F.3d 822 (9th Cir. 2009) ..................................................... 27, 38

Ariz. State Bd. for Charter Sch. v. U.S. Dep't of Educ., 464 F.3d 1003 (9th Cir. 2006) ......................................................... 22

Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) ......................................................... 14

Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687 (1995) ......................................................................... 38

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) ........................................................... 13

Barnhart v. Walton, 535 U.S. 212 (2002) ................................................................... 34, 36

Cal. River Watch v. Wilcox, 620 F.3d 1075 (9th Cir. 2010) ......................................................... 14

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ................................................................... 16, 30

Christensen v. Harris County, 529 U.S. 576 (2000) ......................................................................... 36

Christian Legal Soc'y v. Wu, 626 F.3d 483 (9th Cir. 2010) ........................................................... 26

Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009) ........................................................... 13

Davis v. U.S. EPA, 348 F.3d 772 (9th Cir. 2003) ..................................................... 13, 36

Edelman v. Lynchburg Coll., 535 U.S. 106 (2002) ......................................................................... 36


iv

Johnson v. California, 543 U.S. 499 (2005) ......................................................................... 27

Johnson v. Riverside Healthcare Sys., 534 F.3d 1116 (9th Cir. 2008) ......................................................... 13

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ................................................................... 14, 36

Nat’l Wildlife Fed. v. Burford, 871 F.2d 849 (9th Cir. 1989) ........................................................... 14

Nw. Ecosystem Alliance v. U.S. Fish and Wildlife Serv., 475 F.3d 1136 (9th Cir. 2007) ......................................................... 13

Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002) ......................................................... 35

Ranchers Cattlemen Action Legal Fund v. U.S. Dep’t of Agric., 415 F.3d 1078 (9th Cir. 2005) ......................................................... 14

River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) ......................................................... 14

Scharff v. Raytheon Co. Short Term Disability Plan, 581 F.3d 899 (9th Cir. 2009) ........................................................... 13

Schuetz v. Banc One Mortg. Corp., 292 F.3d 1004 (9th Cir. 2002) ......................................................... 36

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ................................................... 3, 14, 15, 30, 34

United States v. Lewis, 67 F.3d 225 (9th Cir. 1995) ............................................................. 19

United States v. Mead Corp., 533 U.S. 218 (2001) ........................................... 15, 30, 31, 34, 35, 36

United States v. Smith, No. 10-4256, ___ F. Supp. 2d ___, 2010 WL 3809994, 2010 U.S. Dist. LEXIS 101108 (D. Ariz. Sept. 16, 2010) .......................... 28, 29


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United States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952) ......................................................................... 37

United States v. W.R. Grace & Co., 429 F.3d 1224 (9th Cir. 2004) ......................................................... 37

United States v. Wallace, 476 F. Supp. 2d 1129 (D. Ariz. 2007) .................................. 25, 26, 28

Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003) ........................................................... 4

Statutes

5 U.S.C. § 702 ............................................................................................. 2

5 U.S.C. § 704 ............................................................................................. 2

5 U.S.C. § 706(2)(A) .................................................................................. 13

Federal Lands Recreation Enhancement Act, 16 U.S.C. § 6801(1) ............................................................................ 7 16 U.S.C. § 6801(3) ............................................................................ 6 16 U.S.C. § 6802(b)(2) ............................................................... 21, 27 16 U.S.C. § 6802(c) .................................................................... 21, 25 16 U.S.C. § 6802(d)(1) ....................................................................... 1 16 U.S.C. § 6802(d)(1)(A) .................................................... 15, 19, 22 16 U.S.C. § 6802(d)(1)(A)-(F) .......................................................... 19 16 U.S.C. § 6802(d)(1)(D) .......................................................... 16, 23 16 U.S.C. § 6802(d)(1)(E) ................................................................ 25 16 U.S.C. § 6802(d)(1)(F) ................................................................. 26 16 U.S.C. § 6802(f) ................................................................. 7, 19, 24 16 U.S.C. § 6802(f)(4) ...................................................... 9, 15, 17, 20 16 U.S.C. § 6802(f)(4)(A)-(B) ........................................................... 20 16 U.S.C. § 6802(f)(4)(C) ........................................................... 21, 25 16 U.S.C. § 6802(f)(4)(D)(vi) ............................................................ 24 16 U.S.C. § 6806(c)(1)(A) ................................................................. 39 16 U.S.C. § 6807(a) .......................................................................... 39 16 U.S.C. § 6811(a) .......................................................................... 35 16 U.S.C. § 6811(a)-(c) ....................................................................... 8


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16 U.S.C. § 6811(b) .......................................................................... 23 16 U.S.C. § 6812 ........................................................................ 6, 7, 8 16 U.S.C. § 6812(a) .......................................................................... 22 16 U.S.C. § 6812(f) ........................................................................... 35 16 U.S.C. § 6814 .............................................................................. 39 16 U.S.C. §§ 6801-6814 ..................................................................... 2

Land and Water Conservation Fund Act of 1965, 16 U.S.C. § 460l-6a (1996)............................................................... 22

28 U.S.C. § 1291.......................................................................................... 1

28 U.S.C. § 1331.......................................................................................... 1

Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, tit. III, § 315(c)(3), 110 Stat. 1321 (1996) (codified as amended as a note to 16 U.S.C. § 460l-6a) ................... 5

Rules & Regulations

36 C.F.R. § 261.17 ..................................................................................... 35

Fed. R. App. P. 4(a)(1)(B) ........................................................................... 1

Fed. R. App. P. 4(a)(4)(A)(v) ....................................................................... 1

Legislative History

H.R. Rep. 108-790(I), 108th Cong., 2nd Sess. 2004 (Nov. 19, 2004), 2004 WL 292086 .................................................................... 6, 33, 34


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JURISDICTIONAL STATEMENT

The district court had subject matter jurisdiction under 28 U.S.C.

§ 1331. The court entered final judgment in favor of the Federal

Defendants on March 9, 2010 (Appellants’ Excerpts of Record (“ER”) 4)

and denied Plaintiffs’ motion for reconsideration on June 14, 2010 (ER

1-3). Plaintiffs filed a timely notice of appeal on August 06, 2010 (ER

17). See Fed. R. App. P. 4(a)(1)(B), 4(a)(4)(A)(v). This court has

jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether the standard amenity recreation fee for the Mt. Lemmon High-Impact Recreation Area is consistent with the plain language of the Federal Lands Recreation Enhancement Act (“REA”), 16 U.S.C. § 6802(d)(1).

2. If the court finds REA to be ambiguous, whether the Forest Service reasonably determined that the fee is consistent with REA.

STATEMENT OF THE CASE

This case concerns a vital source of funding that the United States

Forest Service uses for maintenance, operations, interpretive programs,

and structural improvements that directly benefit recreational users of

High-Impact Recreation Areas (“HIRAs”) within the National Forest

System. Plaintiffs are individual hikers, campers, and other


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recreational users of the Catalina Mountains HIRA, commonly known

as the Mt. Lemmon HIRA, who do not wish to pay the $5.00-per-vehicle

fee for recreating in the area. (ER 107, 112-114 at ¶¶ 6-9.) Among

other theories, they alleged in their complaint that the fee exceeds the

Forest Service’s authority under REA, 16 U.S.C. §§ 6801-6814. (ER

119-21 at ¶¶ 39-46.)

Plaintiffs assert that the Administrative Procedure Act (“APA”), 5

U.S.C. § 702, provides a cause of action for their claim. (Opening Br. at

1 (citing ER 113).) However, the complaint does not clearly identify the

final agency action that Plaintiffs are challenging under the APA. See 5

U.S.C. § 704 (limiting judicial review to “final agency action for which

there is no other adequate remedy in a court”). For purposes of this

appeal, the Forest Service assumes that Plaintiffs challenge the

agency’s determination that the standard amenity recreation fee for use

of the Mt. Lemmon HIRA complies with REA. (ER 105-109, 117 at ¶

27.) More specifically, Plaintiffs allege that the Forest Service “requires

motorists who park anywhere within the HIRA to pay a $5.00 fee except

when parking at a designated scenic overlook.” (ER 117 ¶ 28; see also

ER 118-119 ¶¶ 32, 37, 41-44.) The Forest Service moved to dismiss the


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complaint under Rule 12(b)(6) because, assuming that Plaintiffs’

characterization of the fee is accurate, the fee does not exceed the

Forest Service’s authority under REA.

The district court granted the Forest Service’s motion to dismiss,

holding that the agency’s interpretation of REA is entitled to deference

under Skidmore v. Swift & Co., 323 U.S. 134 (1944), and that the

agency had reasonably determined that the fee is consistent with REA.

(ER 10-14.) Because the Forest Service succeeded on its motion to

dismiss, it has not filed an answer to Plaintiffs’ complaint, nor has it

produced the administrative record for this case. Should this case

ultimately be remanded to the district court, the Forest Service reserves

the right to raise further defenses to Plaintiffs’ claims in its answer.

Moreover, an administrative record would be necessary to clarify the

precise nature of the Forest Service’s fee policy at Mt. Lemmon.


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STATEMENT OF FACTS1

I. MT. LEMMON AND THE RECREATIONAL FEE DEMONSTRATION

PROGRAM

Mt. Lemmon is located within the Coronado National Forest near

Tucson, Arizona, and receives approximately one million recreational

visitors each year. (ER 107, 112 at ¶ 1.) The summit of Mt. Lemmon is

accessible by car using the Catalina Highway, also known as the Sky

Island Scenic Byway. At issue here is an area one-half mile on either

side of the center line of the Catalina Highway, which runs for twenty-

eight miles to the summit. The area is generally referred to as the

Catalina Highway corridor and is currently designated as a HIRA. (ER

107, 117 at ¶ 27.)

In 1996, Congress enacted the Recreational Fee Demonstration

Program “[i]n order to increase the quality of the visitor experience at

public recreational areas and enhance the protection of resources.”

Omnibus Consolidated Rescissions and Appropriations Act of 1996,

Pub. L. No. 104-134, tit. III, § 315(c)(3), 110 Stat. 1321, 200-202 (1996)

1 Because this is an appeal from an order granting a motion to dismiss, the following statement of facts draws only upon the contents of the complaint and “documents on which the complaint ‘necessarily relies’ and whose ‘authenticity . . . is not contested.’” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1141 n.5 (9th Cir. 2003).


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(codified as amended as a note to 16 U.S.C. § 460l-6a) (“Fee Demo

Program”). The Fee Demo Program required the Forest Service to

select between 10 and 100 sites where it “shall charge and collect fees

for admission to the area or for the use of outdoor recreation sites,

facilities, visitor centers, equipment, and services.” Id. § 315(b)(1). The

Fee Demo Program provided that the revenue collected would be used

for “backlogged repair and maintenance projects . . . and for

interpretation, signage, habitat or facility enhancement, resource

preservation, annual operation (including fee collection), maintenance,

and law enforcement relating to public use.” Id. § 315(c)(3).

Shortly after the Fee Demo Program was enacted, the Forest

Service used its new authority to establish a fee at Mt. Lemmon. (ER

112 at ¶ 2.) The agency constructed a fee collection station at milepost

5 of the Catalina Highway and began charging a fee for recreational use

of the area. (ER 112 at ¶ 2.)

II. REA

A. The Federal Statute

“A major concern with implementing the Fee Demo Program was

the possibility of creating an unreasonable barrier to public use.” H.R.

Rep. 108-790(I), 108th Cong., 2nd Sess. 2004 (Nov. 19, 2004), 2004 WL


6

2920863, at *13. However, over the course of the Fee Demo Program it

became clear that the new fees did not negatively affect visitation in

any significant way. Id. Congress therefore decided to “implement a

permanent federal recreation fee collection system” with the enactment

of REA in December 2004. Id. Congress’s main goals in enacting REA

were to “enhance the visitor experience by investing fees in improving

recreation opportunities” and to “to encourage streamlining, simplifying

and improving the recreation fee program.” Id.

REA repeals all preexisting fee authorities, including the Fee

Demo Program, making REA the sole recreation fee authority for the

federal land management agencies. 16 U.S.C. § 6812. However, REA

further provides that a “regulation or policy issued under a provision of

law repealed by this section shall remain in effect to the extent such a

regulation or policy is consistent with the provisions of this chapter.”

Id. § 6812(f).

REA prohibits the Forest Service from charging an “entrance fee

for Federal recreational lands and waters.” Id. § 6802(e)(2).2 REA also

2 An “entrance fee” is defined as “the recreation fee authorized to be charged to enter onto lands managed by the National Park Service or the United States Fish and Wildlife Service.” 16 U.S.C. § 6801(3).


7

prohibits the Forest Service from charging fees for certain activities or

services, including “[s]olely for parking, undesignated parking, or

picnicking along roads or trailsides,” and 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.” Id. § 6802(d)(1)(A)-(F).

These limitations aside, REA provides the Forest Service with

authority to collect a “standard amenity recreation fee”3 at National

Volcanic Monuments and “destination visitor or interpretive center[s].”

Id. § 6802(f)(2)-(3). Central to this case, REA also provides authority to

collect a standard amenity recreation fee at 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.

3 The statute defines “standard amenity recreation fee” simply as the “recreation fee authorized by section 3(f) [16 U.S.C. § 6802(f)].” 16 U.S.C. § 6801(1).


8

(v) Picnic tables.

(vi) Security services.

Id. § 6802(f)(4).

In a subsection titled “[s]pecial considerations,” Congress

specifically directed the Forest Service to “establish the minimum

number of recreation fees and . . . avoid the collection of multiple or

layered recreation fees for similar uses, activities, or programs.” Id.

§ 6802(c). Congress further authorized the Forest Service to enforce

recreation fees against users who fail to display proof of payment on

their vehicles. 16 U.S.C. § 6811(a)-(c).

B. The Forest Service’s Interim Implementation Guidelines

On April 25, 2005, the Forest Service issued Interim

Implementation Guidelines to ensure “[c]onscientious, consistent, and

conservative implementation of REA . . . and demonstrate the agency’s

ability to meet expectations of the general public and Congress.” (ER

75.)

In creating the Guidelines, the Forest Service took particular care

to heed Congress’s instruction to “avoid collection of multiple or layered

recreation fees” and recognized that REA’s “enactors expect a reduction

in the number of standard amenity recreation fee sites.” (ER 77.) The


9

Guidelines emphasize that “[f]ees for multiple facilities, services, or

enhanced benefits are acceptable if they are seamless and not layered,”

and that the Forest Service should, “[w]here possible, offer a single fee

where standard amenity recreation facilities and services are grouped

or clustered.” (ER 76.) Thus, in addition to individual “[d]ay-use

facilities such as trailheads and picnic areas” that have all the required

amenities (ER 79-80 at ¶ 2.C.1), the Guidelines interpret REA to allow

the Forest Service to charge standard amenity recreation fees at larger

areas known as HIRAs (ER 80-81 at ¶ 2.C.2).

To qualify as a HIRA under the Guidelines, an area must meet the

following definition:

A [HIRA] is a clearly delineated, contiguous area with specific, tightly defined boundaries and clearly defined access points (such that visitors can easily identify the fee area boundaries on the ground or on a map/sign); that supports or sustains concentrated recreation use; and that provides opportunities for outdoor recreation that are directly associated with a natural or cultural feature, place, or activity (i.e., waterway, canyon, travel corridor, geographic attraction – the recreation attraction).

(ER 80 at ¶ 2.C.2.) The Guidelines further specify that a HIRA must

meet all of the criteria and contain all of the amenities required by

REA, 16 U.S.C. § 6802(f)(4), “in an integrated manner so they


10

reasonably accommodate the visitor.” (ER 80 at ¶ 2.C.2.a-d.) Beyond

the criteria set by REA, the Guidelines impose four additional criteria

that a HIRA must meet before a standard amenity recreation fee can be

charged:

a. They incur significant expenditures for items such as operations and maintenance of recreation facilities, public health and safety, educational services, and protection of natural and cultural resources. b. They have been analyzed by regional fee boards and approved by the appropriate line officer. They will be reviewed for [sic] by Recreation RACs when established. c. They are not an entire administrative unit such as a National Forest, but may include a collection of recreation sites; and d. They typically display one or more of the following characteristics:

1. They are within 2 hours driving time of populations of 1 million or more; 2. They contain rivers, streams, lakes or interpreted scenic corridors 3. Natural and cultural resources management activities are conducted in the area to maintain or enhance recreation opportunities; and 4. They have regionally or nationally recognized recreation resources that are marketed for their tourism values.


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(ER 80-81 at ¶ 2.C.2.e.a-d.)

Where the Forest Service charges a fee for a HIRA, “no additional

standard amenity fee can be charged for day-use facilities within the

area.” (ER 81 at ¶ 2.D.)

III. IMPLEMENTATION OF REA AT MT. LEMMON

Following the enactment of REA, the Forest Service’s regional

office overseeing Mt. Lemmon considered whether to designate the

Catalina Highway corridor as a HIRA. (ER 107, 117 at ¶ 27.) The

Forest Service determined that the area “provides significant

opportunities for outdoor recreation, has substantial federal

investments, has efficient collection of fees, and contains all six

amenities within reasonable proximity of all areas within the

delineated HIRA.” (ER 107.) Specifically, the HIRA contains 49

developed parking areas; 50 permanent toilet facilities; 86 permanent

trash receptacles; 52 interpretive signs, exhibits or kiosks; and 351

picnic tables. (ER 106, 108-109.) The Forest Service also provides

security services throughout the HIRA. (ER 107-109.)

Given these facts, the Forest Service determined that the Catalina

Highway corridor meets the definition of a HIRA under the Guidelines


12

and that the fee for the area qualifies as a standard amenity recreation

fee under REA. (ER 105-109, 117 at ¶ 27.)4 “The Forest Service

requires motorists who park anywhere within the HIRA to pay a $5.00

fee except when parking at a designated scenic overlook.” (ER 117 at ¶

28.) “Signs along the highway explain where fees are required and

what activities and locations do not require payment of the standard

amenity fee.” (ER 107.) No fee is required for “non-stop travel to /

from” vista points, private cabins, and other areas outside of the HIRA.

(ER 66, 118 at ¶ 30.) Furthermore, because the Forest Service enforces

the fee only against those who park their cars to recreate within the

HIRA, those entering the HIRA on foot, by horse, or by bicycle do not

have to pay the fee. (See ER 117-121 (alleging that only those who park

their cars within the HIRA must pay the fee).)

STANDARD OF REVIEW

This court reviews the district court’s order granting the Forest

Service’s motion to dismiss de novo, accepting all allegations of material

fact in the complaint as true and construing the facts in the light most

4 As explained below, Plaintiffs do not contest that the Mt. Lemmon HIRA meets all of the requirements within § 6802(f)(4) of REA and the Guidelines. (Opening Br. at 19 n.4, 28.)


13

favorable to Plaintiffs. Scharff v. Raytheon Co. Short Term Disability

Plan, 581 F.3d 899, 903 (9th Cir. 2009). “A Rule 12(b)(6) dismissal may

be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of

sufficient facts alleged under a cognizable legal theory.’” Johnson v.

Riverside Healthcare Sys., 534 F.3d 1116, 1121-22 (9th Cir. 2008)

(quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

1990)).

Because this is an APA case, the court will not overturn the

agency’s action unless it is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” Davis v. U.S. EPA, 348 F.3d

772, 781 (9th Cir. 2003) (quoting 5 U.S.C. § 706(2)(A)). In performing

arbitrary and capricious review, the court may not substitute its own

judgment for that of the agency. Id. Rather, the court’s review is

“highly deferential, presuming the agency action to be valid and

affirming the agency action if a reasonable basis exists for its decision.”

Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009) (quoting Nw.

Ecosystem Alliance v. U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1140

(9th Cir. 2007)). “A reasonable basis exists where the agency

‘considered the relevant factors and articulated a rational connection


14

between the facts found and the choices made.’” Arrington v. Daniels,

516 F.3d 1106, 1112 (9th Cir. 2008) (quoting Ranchers Cattlemen Action

Legal Fund v. U.S. Dep’t of Agric., 415 F.3d 1078, 1093 (9th Cir. 2005)).

“The [agency’s] action . . . need only be a reasonable, not the best or

most reasonable, decision.” River Runners for Wilderness v. Martin, 593

F.3d 1064, 1070 (9th Cir. 2010) (quoting Nat’l Wildlife Fed. v. Burford,

871 F.2d 849, 855 (9th Cir. 1989)).

Additionally, because this case involves an agency’s interpretation

of its governing statute, the court must first “evaluate whether

Congressional intent regarding the meaning of the text in question is

clear from the statute’s plain language.” N. Cal. River Watch v. Wilcox,

620 F.3d 1075, 1081 (9th Cir. 2010) (citing Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005)). The district

court here concluded that REA is ambiguous and deferred to the Forest

Service’s interpretation under the Supreme Court’s ruling in Skidmore

v. Swift & Co., 323 U.S. 134 (1944). Under Skidmore, “[t]he fair

measure of deference to an agency administering its own statute . . .

[depends upon] the degree of the agency’s care, its consistency,

formality, and relative expertness, and . . . the persuasiveness of the


15

agency’s position.” United States v. Mead Corp., 533 U.S. 218, 228

(2001) (quoting Skidmore, 323 U.S. at 139-40).

SUMMARY OF ARGUMENT

REA authorizes the Forest Service to charge a standard amenity

recreation fee at areas that contain certain amenities. See 16 U.S.C.

§ 6802(f)(4). Plaintiffs do not dispute that the Mt. Lemmon HIRA is an

area that contains all of the required amenities, nor do they generally

challenge the Forest Service’s authority to charge standard amenity

recreation fees at HIRAs, as defined by the Guidelines. They argue only

that the limitations found in § 6802(d)(1) of REA prohibit the agency

from charging “those who enter the HIRA to park and recreate in

undeveloped lands in the HIRA and beyond.” (Opening Br. at 19 n.4,

28.)

The fee that the Forest Service charges to users of the Mt.

Lemmon HIRA complies with the plain language of the limitations in

§ 6802(d)(1). The Forest Service does not charge users solely for

parking or picnicking within the HIRA, id. § 6802(d)(1)(A), but rather

for recreational use of an area that contains all of the required

amenities. Nor does the Forest Service charge people who are passing


16

through the HIRA without using the amenities. Id. § 6802(d)(1)(D). It

charges only those who park and recreate within the HIRA, thereby

availing themselves of the area’s services and amenities. The standard

amenity recreation fee for use of the Mt. Lemmon HIRA therefore

complies with the plain language of REA and must be upheld.

If, contrary to this analysis, the court finds REA to be ambiguous,

the district court correctly deferred to the Forest Service’s

interpretation of REA under Skidmore. The Forest Service’s

interpretation deserves great respect given the agency’s expertise in

administering fee statutes, the care it took to interpret Congress’s

instructions, and its consistent practice of not collecting fees from

people merely passing through the Mt. Lemmon HIRA. Because

Skidmore deference is sufficient to uphold the Forest Service’s

interpretation of REA, the court need not decide whether full deference

under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984), would be warranted. However, in the alternative,

the court should accord the Forest Service’s interpretation full

deference under Chevron because the agency acted with the force of law

when it determined that the fee for the Mt. Lemmon HIRA is consistent


17

with REA and could remain in effect as a standard amenity recreation

fee.

ARGUMENT

I. THE MT. LEMMON HIRA RECREATION FEE IS CONSISTENT WITH

THE PLAIN LANGUAGE OF THE LIMITATIONS IN REA.

REA provides the Forest Service with authority to collect a

standard amenity recreation fee at an area that contains designated

developed parking, permanent trash receptacles and toilet facilities,

interpretive signs, picnic tables, and security services. 16 U.S.C.

§ 6802(f)(4). Plaintiffs do not contest that the Forest Service properly

designated the Catalina Highway corridor a HIRA. (Opening Br. at 19

n.4, 28.) They therefore do not dispute that the Mt. Lemmon HIRA

meets all the requirements of § 6802(f)(4) and the Guidelines, including

that all the required amenities are “located in an integrated manner so

they reasonably accommodate the visitor.” (ER 80 at ¶ 2.C.2.d.; see also

ER 107 (determining that “all six amenities [are] within reasonable

proximity of all areas within the delineated HIRA”), 106, 108-109

(listing the amenities and services provided throughout the HIRA).)

Accordingly, for purposes of this case, the Mt. Lemmon HIRA qualifies


18

as an area at which the Forest Service may charge a standard amenity

recreation fee under REA and the Guidelines.

Plaintiffs argue only that the Forest Service has exceeded its

authority under REA by charging “those who enter the HIRA to park

and recreate in undeveloped lands in the HIRA and beyond.” (Opening

Br. at 19 n.4.) They base this argument exclusively on the limitations

found in § 6802(d)(1). However, beyond quoting the text of four of those

limitations, they provide little statutory analysis to show precisely how

the Mt. Lemmon HIRA fee violates § 6802(d)(1). (Opening Br. at 18-23.)

Section 6802(d)(1) provides that the Forest Service may not charge

a fee for certain activities or services, including:

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

(B) For general access unless specifically authorized under this section.

(C) For dispersed areas with low or no investment unless specifically authorized under this section.

(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.

(E) For camping at undeveloped sites that do not provide a minimum number of facilities and services as described in subsection (g)(2)(A).

(F) For use of overlooks or scenic pullouts.


19

Id. § 6802(d)(1)(A)-(F). These limitations apply to the standard amenity

recreation fee for the Mt. Lemmon HIRA. See id. § 6802(f) (“Except as

limited by subsection (d), the Secretary may charge a standard amenity

recreation fee . . . .”).

The Mt. Lemmon HIRA fee is consistent with the plain language

of § 6802(d)(1)’s limitations. The Forest Service does not charge a fee

“[s]olely for parking, undesignated parking, or picnicking” at the Mt.

Lemmon HIRA. Id. § 6802(d)(1)(A). The word “solely” establishes that

the Forest Service may not charge for such services in isolation, when

they are not grouped with the remaining amenities required by

§ 6802(f)(4). It is undisputed that the Mt. Lemmon HIRA contains all

the required amenities. The fee is therefore for use of the area and its

amenities as a whole, not solely for parking or picnicking.

The structure and purpose of REA confirm the propriety of this

interpretation. See United States v. Lewis, 67 F.3d 225, 228-29 (9th Cir.

1995) (“Particular phrases must be construed in light of the overall

purpose and structure of the whole statutory scheme.”). The vast

majority of land within the National Forest System, and surrounding

Mt. Lemmon in particular, is freely accessible to people who wish to


20

pursue activities that do not require amenities. (See ER 19.) At a few

areas, where “substantial Federal investments” have been made and

where “significant opportunities for outdoor recreation” exist, REA

enables the Forest Service to collect fees so that it can provide a

different type of user experience. 16 U.S.C. § 6802(f)(4)(A)-(B). The fee

is not for any particular amenity, but rather for use of an area that

contains a suite of amenities made available through federal

investments. Id. § 6802(f).

Plaintiffs contend that the word “solely” means that the Forest

Service may not charge people who say that they will only park or

picnic in undeveloped portions of the HIRA, even though the required

amenities are easily accessible from all portions of the HIRA. (ER 107.)

Contrary to their interpretation, the plain language of the statute

shows that Congress did not intend for the Forest Service to monitor

each visitor’s activities and assess a fee based on each visitor’s actual

use of particular facilities. REA’s provisions instruct the Forest Service

to efficiently collect a single standard amenity recreation fee for use of

the “area.” Id. § 6802(f)(4). Congress instructed the Forest Service to

collect the “minimum number of recreation fees” and “avoid the


21

collection of multiple or layered recreation fees for similar uses,

activities, or programs.” Id. § 6802(c). Congress also limited standard

amenity recreation fees to areas “where fees can be efficiently collected,”

id. § 6802(f)(4)(C), and required the Forest Service to “consider the

aggregate effect of recreation fees on recreation users and recreation

service providers,” id. § 6802(b)(2).

The Forest Service complies with these instructions by charging a

single standard amenity recreation fee for use of the Mt. Lemmon

HIRA, regardless of which of the amenities each individual ultimately

utilizes while recreating within the area. Efficient collection of a single

fee minimizes the intrusiveness of the fee to visitors and maximizes

reinvestment of the funds collected into services and amenities that

enhance the visitor experience. Plaintiffs’ interpretation, in contrast,

would complicate the fee system and decrease the efficiency of fee

collection, ultimately resulting in greater costs to the Forest Service and

visitors alike. Plaintiffs’ interpretation thus violates the spirit and

purpose of the statute, as conveyed by its plain language.

Again, under Plaintiffs’ interpretation, the Forest Service may not

charge a fee to those who say that they are only going to park or picnic


22

within the HIRA. However, it would have been irrational for Congress

to include parking and picnic tables in the list of required amenities,

only to prohibit the Forest Service from charging for use of those same

amenities. See Ariz. State Bd. for Charter Sch. v. U.S. Dep’t of Educ.,

464 F.3d 1003, 1008 (9th Cir. 2006) (“[W]ell-accepted rules of statutory

construction caution us that ‘statutory interpretations which would

produce absurd results are to be avoided.’”).

Had Congress wished to prohibit charging for certain amenities

despite the presence of other required amenities, it knew exactly how to

craft a statutory provision that would achieve that result. See Land and

Water Conservation Fund Act of 1965, 16 U.S.C. § 460l-6a (1996) (“[I]n

no event shall there be a charge by any such agency for the use, either

singly or in any combination, of drinking water, wayside exhibits, roads,

overlook sites, visitors’ centers, scenic drives, or toilet facilities . . . .”)

(emphasis supplied), repealed by REA, 16 U.S.C. § 6812(a). Congress

instead chose to prohibit charging “solely” for parking or picnicking;

that is, where the other amenities required by REA are absent. 16

U.S.C. § 6802(d)(1)(A). Because the Mt. Lemmon HIRA contains all the


23

required amenities, the Forest Service may charge for use of the area as

a whole, even if a particular user wishes only to park or picnic.

Plaintiffs also argue that because the Forest Service requires

users who park within the HIRA to display proof of payment on their

vehicles, the charge is actually a prohibited fee for parking alone. (See

ER 117-121 (alleging that Plaintiffs “cannot be charged for parking”).)

Plaintiffs are incorrect. REA explicitly authorizes enforcement of the

fee against users who fail to display proof of payment on their vehicles.

16 U.S.C. § 6811(b), (c). Enforcement of the fee in this manner does not

mean that the fee is assessed for parking. Rather, as previously

explained, the fee is for recreational use of the area and its amenities as

a whole. Requiring users to display proof of payment on their parked

vehicles is simply a means of enforcement.

The Forest Service also does not charge a fee to “persons who are

driving through, walking through, boating through, horseback riding

through, or hiking through [National Forest System lands] without

using the facilities and services.” Id. § 6802(d)(1)(D). The Forest

Service enforces the fee only against those who park and recreate

within the HIRA. There is no fee for those who are traveling nonstop to


24

private property, to view points within the HIRA, or to areas outside of

the HIRA. (ER 66, 118 ¶ 30.)5

People who park within the Mt. Lemmon HIRA to hike, camp, or

picnic are not simply passing through the area without using the

amenities. They are recreating within an area that contains all of the

amenities required by § 6802(f)(4). The Forest Service may thus charge

a standard amenity recreation fee for use of the area. Plaintiffs are

incorrect that people who park their vehicles within the HIRA and then

camp in the wilderness or go on a day hike do not utilize any of the

area’s amenities. Such people necessarily utilize the security services

required by REA, 16 U.S.C. § 6802(f)(4)(D)(vi), which deter vandalism

and are available to respond to vehicle problems, dehydration, injuries,

exhaustion, inclement weather, and missing persons. The nominal fee

for the Mt. Lemmon HIRA supports this critical amenity. Moreover,

5 The Forest Service also does not charge those entering the HIRA on foot, by horse, or by bicycle. Plaintiffs argue that this practice somehow tacitly acknowledges the propriety of their interpretation of the limitations in § 6802(d)(1). (Opening Br. at 18-19.) Plaintiffs are incorrect. The Forest Service has simply exercised its management discretion to exempt users from paying the fee if they do not use a car to visit the HIRA. Nothing in REA compels the Forest Service to charge all recreational users of a HIRA. See 16 U.S.C. § 6802(f) (stating that the Forest Service “may” charge a standard amenity recreation fee).


25

those who park and recreate within the HIRA have ready access to all

of the other amenities, which are “within reasonable proximity of all

areas within the [Mt. Lemmon] HIRA.” (ER 107.)

Plaintiffs also argue that the Forest Service charges for “camping

at undeveloped sites.” Id. § 6802(d)(1)(E). It does not. Consistent with

Congress’s instruction to avoid imposing multiple or layered fees, id. §

6802(c), the Forest Service charges only one fee to people who recreate

within the HIRA: a standard amenity recreation fee. It efficiently

collects the fee at the entrance to the Mt. Lemmon HIRA. See id. §

6802(f)(4)(C). Once it collects the fee, there is no additional fee to camp

at undeveloped sites within the HIRA.

Although the signage for the area notes that a fee is required for

“all camping” within the HIRA, the sign merely “explain[s] where fees

are required,” it does not provide the basis for the fee. (ER 107.) The

fee is for recreating in an area that contains the required collection of

amenities. The sign simply communicates to visitors who must pay the

fee, not why the fee must be paid. United States v. Wallace, 476 F.

Supp. 2d 1129, 1134 (D. Ariz. 2007). Moreover, as the district court

noted, backpackers may camp at undeveloped sites within the HIRA


26

and the surrounding wilderness area without incurring a fee by using

any of the numerous trailheads that do not originate from the Catalina

Highway corridor. (ER 14 (citing Wallace, 476 F. Supp. 2d at 1133; see

also ER 19.) Several of those trailheads lie just outside the entrance to

the HIRA, and many more are accessible after a short drive. (ER 19.)

There is no undeveloped camping fee at the Mt. Lemmon HIRA.

The last limitation cited by Plaintiffs is the prohibition on

charging for “use of overlooks or scenic pullouts.”6 16 U.S.C. §

6802(d)(1)(F). Plaintiffs admit that the Forest Service does not charge

people to visit scenic pullouts, overlooks, and vista points within the

HIRA. (ER 112 at ¶2; Opening Br. at 10; see also ER 66.) Unlike people

who park elsewhere within the HIRA, people stopping to briefly enjoy

the view or take a photograph at an overlook or pullout are not

recreating generally within the HIRA. The Forest Service thus

considers such people to be in through-travel status, and exempts them

6 Plaintiffs do not rely on the limitations found at § 6802(d)(1)(B) and (d)(1)(C). Similarly, they do not argue that the Forest Service is impermissibly charging an entrance fee under § 6802(e)(2). (Opening Br. at 13-14, 18-23.) They have thus waived any argument pertaining to those sections. See Christian Legal Soc’y v. Wu, 626 F.3d 483, 485 (9th Cir. 2010) (“We review only issues [that] are argued specifically and distinctly in a party’s opening brief.” (alteration in original)).


27

from the fee. This policy evidences the care that the Forest Service took

to ensure that the Mt. Lemmon HIRA fee is for recreational use of the

area and its amenities as a whole.

Because the standard amenity recreation fee for the Mt. Lemmon

HIRA complies with the plain language of § 6802(d)(1), the cases cited

by Plaintiffs regarding administrative convenience are inapposite. In

those cases, the agency sought to justify an act that contravened a

statute or the U.S. Constitution by relying on administrative

convenience. See, e.g., Johnson v. California, 543 U.S. 499, 522 (2005)

(“When the State’s interest in administrative convenience is pitted

against the Fourteenth Amendment’s ban on racial segregation, the

latter must prevail.”); Amalgamated Sugar Co. LLC v. Vilsack, 563 F.3d

822, 836 (9th Cir. 2009) (holding that an agency may not rely on

administrative expediency to “circumvent [an] Act’s clear directive”).

Here, REA explicitly requires the Forest Service to efficiently collect a

standard amenity recreation fee and to avoid charging multiple fees. 16

U.S.C. § 6802(b)(2), 6802(c), 6802(f)(4)(C). The Forest Service has

therefore complied with the plain language of REA; it does not argue

that administrative convenience excuses it from compliance.


28

Plaintiffs’ other primary authority, United States v. Smith, No. 10-

4256, ___ F. Supp. 2d ___, 2010 WL 3809994, 2010 U.S. Dist. LEXIS

101108 (D. Ariz. Sept. 16, 2010), is equally distinguishable. That case

concerned a different area, the Red Rocks HIRA outside of Sedona,

Arizona. The defendant, who had been issued a criminal citation for

failure to pay the fee for the HIRA, argued that the area where he

parked did not contain the amenities required by REA, and the district

court agreed. Id., 2010 WL 3809994, at *1, 7, 10-12 (holding that REA

“clearly prohibits the Forest Service from charging an amenity fee at an

‘area’ where all six of the listed specific ‘amenities’ are not provided”).

The court in Smith distinguished United States v. Wallace, 476 F.

Supp. 2d 1129 (D. Ariz. 2007) (upholding the lawfulness of the Forest

Service’s fee at Mt. Lemmon), because it concluded that the Mt.

Lemmon HIRA is nothing like the Red Rocks HIRA. Unlike the Mt.

Lemmon HIRA, where the required amenities are clustered along a

single road with a discrete access point for fee collection, the Red Rocks

HIRA encompasses 160,000 acres of wilderness areas and canyons

transected by multiple roads, necessitating “88 different collection

points.” Smith, 2010 WL 3809994, at *11-12 & n.14. The court in


29

Smith thus rejected the argument that the site where the defendant

parked was part of a properly designated HIRA that contained all of the

required amenities. Id. It instead concluded that “what Mr. Smith

received was actually a ticket for parking.” Id., at *10.

By contrast, Plaintiffs here eschew any argument that the Forest

Service improperly designated the Catalina Highway corridor a HIRA,

and they do not challenge the HIRA concept in general. (Opening Br. at

19 n.4, 28.) Plaintiffs therefore do not contest the Forest Service’s

determination that all of the required amenities are “within reasonable

proximity of all areas within the [Mt. Lemmon] HIRA” (ER 107), which

fulfills the Guidelines’ requirement that the amenities be “located in an

integrated manner so they reasonably accommodate the visitor” (ER 80

at ¶ 2.C.2.d.). Accordingly, the Mt. Lemmon HIRA qualifies as an area

under § 6802(f)(4) at which the Forest Service may charge a standard

amenity recreation fee. Unlike Smith, the fee in this case is for use of

the area and its amenities as a whole, not solely for parking.

The standard amenity recreation fee for use of the Mt. Lemmon

HIRA complies with the plain language of the limitations in §


30

6802(d)(1). This court should therefore affirm the district court’s

judgment in favor of the Forest Service.

II. EVEN IF REA IS AMBIGUOUS, THE DISTRICT COURT PROPERLY

DEFERRED TO THE FOREST SERVICE’S INTERPRETATION.

If the court finds REA to be ambiguous, it must at a minimum

accord the Forest Service’s interpretation deference under Skidmore v.

Swift & Co., 323 U.S. 134 (1944), as did the district court. (ER 11.)

Although the agency’s interpretation merits full deference under

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984), the court need not reach Chevron deference in this

case. The court should affirm the district court’s holding that the

agency’s interpretation is entitled to Skidmore deference.

Under Skidmore, “[t]he fair measure of deference to an agency

administering its own statute has been understood to vary with

circumstances, and courts have looked to the degree of the agency’s

care, its consistency, formality, and relative expertness, and to the

persuasiveness of the agency’s position.” Mead, 533 U.S. at 228

(quoting Skidmore, 323 U.S. at 139-40). Based on these factors,

Skidmore deference “has produced a spectrum of judicial responses,


31

from great respect at one end to near indifference at the other.” Mead,

533 U.S. at 228.

Great respect is due to the Forest Service’s interpretation of REA.

After almost a decade of experience administering the Fee Demo

Program, the Forest Service approached the transition to REA in a

prudent and thoughtful manner. It issued formal guidelines to ensure

“[c]onscientious, consistent, and conservative implementation of REA”

and to demonstrate its “ability to meet expectations of the general

public and Congress.” (ER 75.)

The Guidelines carefully analyze and adhere to REA’s provisions

regarding minimal fees and efficient fee collection. The Guidelines

emphasize that fees for multiple facilities or services are “acceptable if

they are seamless and not layered” and that the Forest Service should,

“[w]here possible, offer a single fee where standard amenity recreation

facilities and services are grouped or clustered.” (ER 76.) Individual

recreation sites can be combined into a HIRA subject to a single fee only

where the required amenities exist within a “clearly delineated,

contiguous area with specific, tightly defined boundaries and clearly

defined access points.” (ER 80.) Moreover, the Guidelines are stricter


32

than REA itself, requiring that an area meet four additional criteria

before it qualifies as a HIRA where a standard amenity recreation fee

may be charged. (ER 80-81.)

The Forest Service has consistently implemented this

interpretation of REA at Mt. Lemmon within the bounds set by

§ 6802(d)(1). Before deciding to continue charging a fee for the area

under REA, the Forest Service confirmed that all of the required

amenities exist “within reasonable proximity of all areas within the

[Mt. Lemmon] HIRA”. (ER 107.) Since REA’s enactment, the Forest

Service has not charged people who are merely stopping at scenic

pullouts and overlooks, or who are merely passing through to private

property or to areas outside the HIRA. (ER 66, 112 ¶ 2.) It has only

charged those who recreate generally within the HIRA. The Forest

Service has done everything it can to ensure that it efficiently collects a

single standard amenity recreation fee for use of the Mt. Lemmon HIRA

without exceeding the limitations in REA.

Moreover, in addition to the textual arguments already presented,

REA’s legislative history supports the Forest Service’s interpretation.

The legislative amendment cited by Plaintiffs simply “made clear that


33

the USFS . . . will not be permitted to charge solely for parking, scenic

pullouts, and other non-developed areas.” H.R. Rep. 108-790(I), 108th

Cong., 2nd Sess. 2004 (Nov. 19, 2004), 2004 WL 2920863, at *14

(emphasis supplied). Consistent with that restriction, the Forest

Service interprets REA to prohibit fees for certain amenities where

those amenities exist in isolation, and for areas where all the required

amenities are not “located in an integrated manner so they reasonably

accommodate the visitor.” (ER 80 at ¶ 2.C.2.d.)

However, Congress also encouraged the Forest Service to

“streamlin[e], simplif[y], and improv[e]” its fee collection system. Id.,

2004 WL 2920863, at *13; see also id. (“The [Forest Service] would be

directed to take into consideration the cost and benefit to the federal

government as well as the visitor.”). The Forest Service therefore

interprets REA to require efficient collection of a single standard

amenity recreation fee for use of an area that contains all the required

amenities. (ER 76, 80-81.) REA’s main purposes are to enhance the

visitor experience by investing fees to improve recreation opportunities,

and to avoid creating an unreasonable barrier to public use through

cumbersome and costly fee collection. H.R. Rep. 108-790(I), 2004 WL


34

2920863, at *13, 16-17. The Forest Service’s interpretation achieves

those purposes and must therefore be upheld. See Barnhart v. Walton,

535 U.S. 212, 219 (2002) (finding an agency’s interpretation permissible

because it comported with the statute’s “basic objectives”).

The House Committee Report for REA makes no mention of the

local government resolutions cited by Plaintiffs in their opening brief.

Those resolutions have no bearing on the proper interpretation of the

statute. H.R. Rep. 108-790(I), 2004 WL 2920863, at *1-29. Although

there were concerns that fees would “creat[e] an unreasonable barrier to

public use,” Congress concluded that fees charged under the Fee Demo

Program did not negatively affect visitation in any significant way. Id.,

2004 WL 2920863, at *13. Thanks to recreation fees, “[f]or the price of

less than a movie ticket, visitors [became] able to enjoy cleaner

facilities, well-maintained trails and an overall better recreation

experience.” (ER 63.) Given the Forest Service’s “care, its consistency,

formality, and relative expertness,” and “the persuasiveness of [its]

position,” the district court properly deferred to the agency’s

interpretation of REA. Mead, 533 U.S. at 228 (quoting Skidmore, 323

U.S. at 139-40); see also Pronsolino v. Nastri, 291 F.3d 1123, 1134-35


35

(9th Cir. 2002) (“We conclude that the [agency’s] interpretation is one to

which we owe substantial Skidmore deference, at the very least.”).

Alternatively, the court should afford the Forest Service’s

interpretation full deference under Chevron because the agency acted

with the “force of law” in determining that the fee at Mt. Lemmon could

continue as a standard amenity recreation fee under REA. Mead, 533

U.S. at 229. Congress delegated authority to the Forest Service to

determine whether existing recreation fees were consistent with REA

and could remain in effect. See 16 U.S.C. § 6812(f) (stating that agency

actions taken under a provision of law repealed by REA remain in effect

to the extent that they are consistent with REA). In the exercise of that

authority, a regional office reviewed the recreation fee at Mt. Lemmon

and determined that it was consistent with REA. (ER 107-109.)

People recreating within the Mt. Lemmon HIRA are required by

law to pay the fee or face penalties. See 16 U.S.C. § 6811(a) (instructing

the Forest Service to “enforce payment of the recreation fees authorized

by this chapter”); 36 C.F.R. § 261.17 (establishing fines for failure to

pay recreation fees). Congress thus delegated authority to the Forest

Service to make a determination carrying the force of law, and the


36

Forest Service acted under that authority. The interpretation of REA

underlying the Forest Service’s determination therefore qualifies for

Chevron deference. Mead, 533 U.S. at 229.

That the Forest Service arrived at its interpretation without

engaging in formal notice and comment rulemaking does not decide the

issue. See Davis v. U.S. EPA, 348 F.3d 772, 780 n.5 (9th Cir. 2003)

(noting that the lack of notice and comment rulemaking is not

determinative); Schuetz v. Banc One Mortg. Corp., 292 F.3d 1004, 1012

(9th Cir. 2002) (same). Since Mead, the Supreme Court has repeatedly

emphasized that the fact that an agency “reached its interpretation

through means less formal than ‘notice and comment’ rulemaking does

not automatically deprive that interpretation of the judicial deference

otherwise its due.” Barnhart, 535 U.S. at 221-22 (explaining that Mead,

533 U.S. at 230-31, limited the holding of Christensen v. Harris County,

529 U.S. 576 (2000)).7

7 See also Edelman v. Lynchburg Coll., 535 U.S. 106, 114 (2002) (“[D]eference under Chevron . . . does not necessarily require an agency’s exercise of express notice-and-comment rulemaking power.” (citing Mead, 533 U.S. at 230-31)); Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1004 (2005) (“The Court [in Mead] explicitly stated that the absence of notice-and-comment rulemaking did ‘not decide the case,’ . . . .”) (Stevens, J. concurring).


37

In any event, the court need not resolve whether full Chevron

deference is appropriate in this case. As the district court ruled,

Skidmore deference is more than sufficient to uphold the Forest

Service’s interpretation of REA. See United States v. W.R. Grace & Co.,

429 F.3d 1224, 1236-37 (9th Cir. 2004) (declining to resolve the issue

because the agency’s interpretation warranted deference under either

standard).

Plaintiffs believe that the Forest Service is due no deference here

because its “harsher alternative” interpretation of REA is punishable as

a misdemeanor. (Opening Br. at 28-29.) The only authority they cite

for that argument is United States v. Universal C.I.T. Credit Corp., 344

U.S. 218, 221-22 (1952), a criminal case that did not involve any specific

interpretive action taken by an agency pursuant to authority delegated

by Congress. This is not a criminal case; it is a facial civil challenge to

the Forest Service’s fee determination pursuant to its authority under

REA, which Congress intended the agency to administer. In that

context, the Supreme Court has noted: “We have never suggested that

the rule of lenity should provide the standard for reviewing facial

challenges to administrative regulations whenever the governing


38

statute authorizes criminal enforcement.” Babbitt v. Sweet Home

Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 704 n.18 (1995).

Moreover, fees have been charged to people stopping to recreate

within the Catalina Highway corridor since shortly after the Fee Demo

Program was enacted in 1996, and the Forest Service has installed clear

signage regarding the fee throughout the HIRA. (ER 66-67, 112 ¶ 2,

118 ¶ 30.) Given such fair warning, “[e]ven if there exist regulations

whose interpretations of statutory criminal penalties provide such

inadequate notice of potential liability as to offend the rule of lenity,”

the Mt. Lemmon HIRA fee cannot be one of them. Babbitt, 515 U.S. at

704 n.18.

Citing Amalgamated Sugar Co. LLC v. Vilsack, 563 F.3d 822, 834

(9th Cir. 2009), Plaintiffs also argue that the Forest Service is due no

deference because it had a “self-serving or pecuniary incentive” to adopt

its interpretation. The agency in Amalgamated Sugar was a creditor of

an entity involved in the dispute and thus had a direct financial interest

in interpreting a statute to allow a given transaction. Id. at 834. The

Forest Service has no such interest in this case. REA requires that the

Forest Service expend at least 80 percent of the revenue it collects from


39

recreation fees in the specific unit or area where it collected the

revenue. 16 U.S.C. § 6806(c)(1)(A). The Guidelines further increase the

amount expended locally to 95 percent. (ER 89.) The Forest Service

may expend the funds only on maintenance, visitor services, law

enforcement, and other operational needs. Id. § 6807(a). Furthermore,

the funds “may not be used for employee bonuses.” Id. § 6814. The only

people who benefit from the recreation fee at the Mt. Lemmon HIRA are

people such as Plaintiffs who recreate in the HIRA.

If the court finds the limitations in § 6802(d)(1) to be ambiguous,

it should defer to the Forest Service’s interpretation of REA and affirm

the judgment of the district court in favor of the Forest Service.


40

CONCLUSION

For the foregoing reasons, the judgment of the district court in

favor of the Forest Service should be affirmed.

Respectfully submitted,

IGNACIA S. MORENO

Assistant Attorney General /s/ Nicholas A. DiMascio NICHOLAS A. DIMASCIO U.S. Department of Justice Environment & Natural Res. Div. P.O. Box 23795 (L’Enfant Station) Washington, DC 20026 (202) 307-6105

February 18, 2011 90-1-0-12527


STATEMENT OF RELATED CASES

There are no related cases before this Court. However, in Sherer

v. United States Forest Service, No. CV 08-917 (D. Colo. July 23, 2010),

a group of plaintiffs challenged the United States Forest Service’s

authority under the Federal Lands Recreation Enhancement Act, 16

U.S.C. §§ 6801-6814, to charge recreation fees for the Mt. Evans High

Impact Recreation Area outside of Denver, Colorado. The district court

in Sherer granted judgment in the Forest Service’s favor on July 23,

2010.

The plaintiffs’ appeal in Sherer is currently pending in the United

States Court of Appeals for the Tenth Circuit (No. 10-1418). The appeal

in Sherer involves issues similar to the issues in this appeal. The same

attorneys who represent Plaintiffs-Appellants in this case represent the

plaintiffs in Sherer.


STATEMENT REGARDING ORAL ARGUMENT

This case raises issues of first impression in this circuit regarding

the proper interpretation of a federal statute that creates a vital source

of funding for the United States Forest Service. The United States

therefore respectfully requests oral argument.


CERTIFICATE OF COMPLIANCE WITH TYPE VOLUME LIMITATION

This brief complies with the type volume limitation set forth in

Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure. Excepting

the portions described in Circuit Rule 32(a)(1), the brief contains 7,867

words.

/s/ Nicholas A. DiMascio

NICHOLAS A. DIMASCIO U.S. Department of Justice Environment & Natural Res. Div. P.O. Box 23795 (L’Enfant Station) Washington, DC 20026 (202) 307-6105


STATUTORY ADDENDUM TO APPELLEES’ BRIEF

Table of Contents Federal Lands Recreation Enhancement Act, 16 U.S.C.A. §§ 6801-6802, 6806-6807, 6811-6812, 6814 (2010) ..... 1 Land and Water Conservation Fund Act of 1965, 16 U.S.C. § 460l-6a (1996)............................................................... 17 Recreational Fee Demonstration Program as part of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, tit. III, § 315(c)(3), 110 Stat. 1321 (1996) (codified as amended as a note to 16 U.S.C. § 460l-6a) ......................................................................... 23 H.R. Rep. 108-790(I), 108th Cong., 2nd Sess. 2004 (Nov. 19, 2004), 2004 WL 2920863 ........................................................................... 25


© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

United States Code Annotated Currentness Title 16. Conservation

Chapter 87. Federal Lands Recreation Enhancement § 6801. Definitions

In this chapter:

(1) Standard amenity recreation fee

The term “standard amenity recreation fee” means the recreation fee authorized by section 6802(f) of this title.

(2) Expanded amenity recreation fee

The term “expanded amenity recreation fee” means the recreation fee authorized by section 6802(g) of this title.

(3) Entrance fee

The term “entrance fee” means the recreation fee authorized to be charged to enter onto lands managed by the Na-tional Park Service or the United States Fish and Wildlife Service.

(4) Federal land management agency

The term “Federal land management agency” means the National Park Service, the United States Fish and Wildlife Service, the Bureau of Land Management, the Bureau of Reclamation, or the Forest Service.

(5) Federal recreational lands and waters

The term “Federal recreational lands and waters” means lands or waters managed by a Federal land management agency.

(6) National Parks and Federal Recreational Lands Pass

The term “National Parks and Federal Recreational Lands Pass” means the interagency national pass authorized by section 6804 of this title.

(7) Passholder

The term “passholder” means the person who is issued a recreation pass.

(8) Recreation fee

The term “recreation fee” means an entrance fee, standard amenity recreation fee, expanded amenity recreation fee, or special recreation permit fee.

(9) Recreation pass

The term “recreation pass” means the National Parks and Federal Recreational Lands Pass or one of the other recreation passes available as authorized by section 6804 of this title.

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(10) Secretary

The term “Secretary” means--

(A) the Secretary of the Interior, with respect to a Federal land management agency (other than the Forest Ser-vice); and

(B) the Secretary of Agriculture, with respect to the Forest Service.

(11) Secretaries

The term “Secretaries” means the Secretary of the Interior and the Secretary of Agriculture acting jointly.

(12) Special account

The term “special account” means the special account established in the Treasury under section 6806 of this title for a Federal land management agency.

(13) Special recreation permit fee

The term “special recreation permit fee” means the fee authorized by section 6802(h) of this title.

CREDIT(S) (Pub.L. 108-447, Div. J, Title VIII, § 802, Dec. 8, 2004, 118 Stat. 3377.) Current through P.L. 111-264 (excluding P.L. 111-203, 111-257, and 111-259) approved 10-8-10 Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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Chapter 87. Federal Lands Recreation Enhancement § 6802. Recreation fee authority

(a) Authority of Secretary Beginning in fiscal year 2005 and thereafter, the Secretary may establish, modify, charge, and collect recreation fees at Federal recreational lands and waters as provided for in this section. (b) Basis for recreation fees Recreation fees shall be established in a manner consistent with the following criteria:

(1) The amount of the recreation fee shall be commensurate with the benefits and services provided to the visitor.

(2) The Secretary shall consider the aggregate effect of recreation fees on recreation users and recreation service providers.

(3) The Secretary shall consider comparable fees charged elsewhere and by other public agencies and by nearby private sector operators.

(4) The Secretary shall consider the public policy or management objectives served by the recreation fee.

(5) The Secretary shall obtain input from the appropriate Recreation Resource Advisory Committee, as provided in section 6803(d) of this title.

(6) The Secretary shall consider such other factors or criteria as determined appropriate by the Secretary.

(c) Special considerations The Secretary shall establish the minimum number of recreation fees and shall avoid the collection of multiple or layered recreation fees for similar uses, activities, or programs. (d) Limitations on recreation fees

(1) Prohibition on fees for certain activities or services

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.

(B) For general access unless specifically authorized under this section.

(C) For dispersed areas with low or no investment unless specifically authorized under this section.

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(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.

(E) For camping at undeveloped sites that do not provide a minimum number of facilities and services as de-scribed in subsection (g)(2)(A).

(F) For use of overlooks or scenic pullouts.

(G) For travel by private, noncommercial vehicle over any national parkway or any road or highway established as a part of the Federal-aid System, as defined in section 101 of Title 23, which is commonly used by the public as a means of travel between two places either or both of which are outside any unit or area at which recreation fees are charged under this chapter.

(H) For travel by private, noncommercial vehicle, boat, or aircraft over any road or highway, waterway, or airway to any land in which such person has any property right if such land is within any unit or area at which recreation fees are charged under this chapter.

(I) For any person who has a right of access for hunting or fishing privileges under a specific provision of law or treaty.

(J) For any person who is engaged in the conduct of official Federal, State, Tribal, or local government business.

(K) For special attention or extra services necessary to meet the needs of the disabled.

(2) Relation to fees for use of highways or roads

An entity that pays a special recreation permit fee or similar permit fee shall not be subject to a road cost-sharing fee or a fee for the use of highways or roads that are open to private, noncommercial use within the boundaries of any Federal recreational lands or waters, as authorized under section 537 of this title.

(3) Prohibition on fees for certain persons or places

The Secretary shall not charge an entrance fee or standard amenity recreation fee for the following:

(A) Any person under 16 years of age.

(B) Outings conducted for noncommercial educational purposes by schools or bona fide academic institutions.

(C) The U.S.S. Arizona Memorial, Independence National Historical Park, any unit of the National Park System within the District of Columbia, or Arlington House-Robert E. Lee National Memorial.

(D) The Flight 93 National Memorial.

(E) Entrance on other routes into the Great Smoky Mountains National Park or any part thereof unless fees are charged for entrance into that park on main highways and thoroughfares.

(F) Entrance on units of the National Park System containing deed restrictions on charging fees.

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(G) An area or unit covered under section 203 of the Alaska National Interest Lands Conservation Act (Public Law 96-487; 16 U.S.C. 410hh-2), with the exception of Denali National Park and Preserve.

(H) A unit of the National Wildlife Refuge System created, expanded, or modified by the Alaska National Interest Lands Conservation Act (Public Law 96-487).

(I) Any person who visits a unit or area under the jurisdiction of the United States Fish and Wildlife Service and who has been issued a valid migratory bird hunting and conservation stamp issued under section 718b of this title.

(J) Any person engaged in a nonrecreational activity authorized under a valid permit issued under any other Act, including a valid grazing permit.

(4) No restriction on recreation opportunities

Nothing in this chapter shall limit the use of recreation opportunities only to areas designated for collection of recreation fees.

(e) Entrance fee

(1) Authorized sites for entrance fees

The Secretary of the Interior may charge an entrance fee for a unit of the National Park System, including a national monument administered by the National Park Service, or for a unit of the National Wildlife Refuge System.

(2) Prohibited sites

The Secretary shall not charge an entrance fee for Federal recreational lands and waters managed by the Bureau of Land Management, the Bureau of Reclamation, or the Forest Service.

(f) Standard amenity recreation fee Except as limited by subsection (d), the Secretary may charge a standard amenity recreation fee for Federal recrea-tional lands and waters under the jurisdiction of the Bureau of Land Management, the Bureau of Reclamation, or the Forest Service, but only 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;

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(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. (g) Expanded amenity recreation fee

(1) NPS and USFWS authority

Except as limited by subsection (d), the Secretary of the Interior may charge an expanded amenity recreation fee, either in addition to an entrance fee or by itself, at Federal recreational lands and waters under the jurisdiction of the National Park Service or the United States Fish and Wildlife Service when the Secretary of the Interior determines that the visitor uses a specific or specialized facility, equipment, or service.

(2) Other Federal land management agencies

Except as limited by subsection (d), the Secretary may charge an expanded amenity recreation fee, either in addition to a standard amenity fee or by itself, at Federal recreational lands and waters under the jurisdiction of the Forest Service, the Bureau of Land Management, or the Bureau of Reclamation, but only for the following facilities or services:

(A) Use of developed campgrounds that provide at least a majority of the following:

(i) Tent or trailer spaces.

(ii) Picnic tables.

(iii) Drinking water.

(iv) Access roads.

(v) The collection of the fee by an employee or agent of the Federal land management agency.

(vi) Reasonable visitor protection.

(vii) Refuse containers.

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(viii) Toilet facilities.

(ix) Simple devices for containing a campfire.

(B) Use of highly developed boat launches with specialized facilities or services such as mechanical or hydraulic boat lifts or facilities, multi-lane paved ramps, paved parking, restrooms and other improvements such as boarding floats, loading ramps, or fish cleaning stations.

(C) Rental of cabins, boats, stock animals, lookouts, historic structures, group day-use or overnight sites, audio tour devices, portable sanitation devices, binoculars or other equipment.

(D) Use of hookups for electricity, cable, or sewer.

(E) Use of sanitary dump stations.

(F) Participation in an enhanced interpretive program or special tour.

(G) Use of reservation services.

(H) Use of transportation services.

(I) Use of areas where emergency medical or first-aid services are administered from facilities staffed by public employees or employees under a contract or reciprocal agreement with the Federal Government.

(J) Use of developed swimming sites that provide at least a majority of the following:

(i) Bathhouse with showers and flush toilets.

(ii) Refuse containers.

(iii) Picnic areas.

(iv) Paved parking.

(v) Attendants, including lifeguards.

(vi) Floats encompassing the swimming area.

(vii) Swimming deck.

(h) Special recreation permit fee The Secretary may issue a special recreation permit, and charge a special recreation permit fee in connection with the issuance of the permit, for specialized recreation uses of Federal recreational lands and waters, such as group activi-ties, recreation events, motorized recreational vehicle use. CREDIT(S)

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(Pub.L. 108-447, Div. J, Title VIII, § 803, Dec. 8, 2004, 118 Stat. 3378.) Current through P.L. 111-264 (excluding P.L. 111-203, 111-257, and 111-259) approved 10-8-10 Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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Chapter 87. Federal Lands Recreation Enhancement § 6806. Special account and distribution of fees and revenues

(a) Special account The Secretary of the Treasury shall establish a special account in the Treasury for each Federal land management agency. (b) Deposits Subject to subsections (c), (d), and (e), revenues collected by each Federal land management agency under this chapter shall--

(1) be deposited in its special account; and

(2) remain available for expenditure, without further appropriation, until expended. (c) Distribution of recreation fees and single-site agency pass revenues

(1) Local distribution of funds

(A) Retention of revenues

Not less than 80 percent of the recreation fees and site-specific agency pass revenues collected at a specific unit or area of a Federal land management agency shall remain available for expenditure, without further appropriation, until expended at that unit or area.

(B) Reduction

The Secretary may reduce the percentage allocation otherwise applicable under subparagraph (A) to a unit or area of a Federal land management agency, but not below 60 percent, for a fiscal year if the Secretary determines that the revenues collected at the unit or area exceed the reasonable needs of the unit or area for which expenditures may be made for that fiscal year.

(2) Agency-wide distribution of funds

The balance of the recreation fees and site-specific agency pass revenues collected at a specific unit or area of a Federal land management and not distributed in accordance with paragraph (1) shall remain available to that Federal land management agency for expenditure on an agency-wide basis, without further appropriation, until expended.

(3) Other amounts

Other amounts collected at other locations, including recreation fees collected by other entities or for a reservation service, shall remain available, without further appropriation, until expended in accordance with guidelines estab-

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lished by the Secretary. (d) Distribution of National Parks and Federal Recreational Lands Pass revenues Revenues collected from the sale of the National Parks and Federal Recreational Lands Pass shall be deposited in the special accounts established for the Federal land management agencies in accordance with the guidelines issued under section 6804(a)(7) of this title. (e) Distribution of regional multientity pass revenues Revenues collected from the sale of a regional multientity pass authorized under section 6804(d) of this title shall be deposited in each participating Federal land management agency's special account in accordance with the terms of the region multientity pass agreement for the regional multientity pass. CREDIT(S) (Pub.L. 108-447, Div. J, Title VIII, § 807, Dec. 8, 2004, 118 Stat. 3388.) Current through P.L. 111-264 (excluding P.L. 111-203, 111-257, and 111-259) approved 10-8-10 Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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Chapter 87. Federal Lands Recreation Enhancement § 6807. Expenditures

(a) Use of fees at specific site or area Amounts available for expenditure at a specific site or area--

(1) shall be accounted for separately from the amounts collected;

(2) may be distributed agency-wide; and

(3) shall be used only for--

(A) repair, maintenance, and facility enhancement related directly to visitor enjoyment, visitor access, and health and safety;

(B) interpretation, visitor information, visitor service, visitor needs assessments, and signs;

(C) habitat restoration directly related to wildlife-dependent recreation that is limited to hunting, fishing, wildlife observation, or photography;

(D) law enforcement related to public use and recreation;

(E) direct operating or capital costs associated with the recreation fee program; and

(F) a fee management agreement established under section 6805(a) of this title or a visitor reservation service.

(b) Limitation on use of fees The Secretary may not use any recreation fees for biological monitoring on Federal recreational lands and waters under the Endangered Species Act of 1973 [16 U.S.C.A. 1531 et seq.] for listed or candidate species. (c) Administration, overhead, and indirect costs The Secretary may use not more than an average of 15 percent of total revenues collected under this chapter for ad-ministration, overhead, and indirect costs related to the recreation fee program by that Secretary. (d) Transitional exception Notwithstanding any other provision of this chapter, the Secretary may use amounts available in the special account of a Federal land management agency to supplement administration and marketing costs associated with--

(1) the National Parks and Federal Recreational Lands Pass during the 5-year period beginning on the date the joint guidelines are issued under section 6804(a)(7) of this title; and

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(2) a regional multientity pass authorized section 6804(d) of this title during the 5-year period beginning on the date the regional multientity pass agreement for that recreation pass takes effect.

CREDIT(S) (Pub.L. 108-447, Div. J, Title VIII, § 808, Dec. 8, 2004, 118 Stat. 3388; Pub.L. 111-11, Title VII, § 7116(h), Mar. 30, 2009, 123 Stat. 1203.) Current through P.L. 111-264 (excluding P.L. 111-203, 111-257, and 111-259) approved 10-8-10 Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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Chapter 87. Federal Lands Recreation Enhancement § 6811. Enforcement and protection of receipts

(a) Enforcement authority The Secretary concerned shall enforce payment of the recreation fees authorized by this chapter. (b) Evidence of nonpayment If the display of proof of payment of a recreation fee, or the payment of a recreation fee within a certain time period is required, failure to display such proof as required or to pay the recreation fee within the time period specified shall constitute nonpayment. (c) Joint liability The registered owner and any occupant of a vehicle charged with a nonpayment violation involving the vehicle shall be jointly liable for penalties imposed under this section, unless the registered owner can show that the vehicle was used without the registered owner's express or implied permission. (d) Limitation on penalties The failure to pay a recreation fee established under this chapter shall be punishable as a Class A or Class B misde-meanor, except that in the case of a first offense of nonpayment, the fine imposed may not exceed $100, notwith-standing section 3571(e) of Title 18. CREDIT(S) (Pub.L. 108-447, Div. J, Title VIII, § 812, Dec. 8, 2004, 118 Stat. 3390.) Current through P.L. 111-264 (excluding P.L. 111-203, 111-257, and 111-259) approved 10-8-10 Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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Chapter 87. Federal Lands Recreation Enhancement § 6812. Repeal of superseded admission and use fee authorities

(a) Land and Water Conservation Fund Act Subsections (a), (b), (c), (d), (e), (f), (g), and (i) (except for paragraph (1)(C)) of section 460l-6a of this title are re-pealed, except that the Secretary may continue to issue Golden Eagle Passports, Golden Age Passports, and Golden Access Passports under such section until the date the notice required by section 6804(a)(3) of this title is published in the Federal Register regarding the establishment of the National Parks and Federal Recreational Lands Pass. (b) Recreational fee demonstration program Section 315 of the Department of the Interior and Related Agencies Appropriations Act, 1996 (as contained in section 101(c) of Public Law 104-134; 16 U.S.C. 460l-6a), is repealed. (c) Admission permits for refuge units Section 3911 of this title is repealed. (d) National Park Passport, Golden Eagle Passport, Golden Age Passport, and Golden Access Passport Effective on the date the notice required by section 6804(a)(3) of this title is published in the Federal Register, the following provisions of law authorizing the establishment of a national park passport program or the establishment and sale of a national park passport, Golden Eagle Passport, Golden Age Passport, or Golden Access Passport are repealed:

(1) Section 502 of the National Parks Omnibus Management Act of 1998 (Public Law 105-391; 16 U.S.C. 5982).

(2) Title VI of the National Parks Omnibus Management Act of 1998 (Public Law 105-391; 16 U.S.C. 5991-5995). (e) Treatment of unobligated funds

(1) Land and Water Conservation Fund special accounts

Amounts in the special accounts established under section 460l-6a(i)(1) of this title for Federal land management agencies that are unobligated on December 8, 2004, shall be transferred to the appropriate special account estab-lished under section 6806 of this title and shall be available to the Secretary in accordance with this chapter. A special account established under section 460l-6a(i)(1) of this title for a Federal agency that is not a Federal land management area, and the use of such special account, is not affected by the repeal of section 460l-6a of this title by subsection (a) of this section.

(2) National parks passport

Any funds collected under title VI of the National Parks Omnibus Management Act of 1998 (Public Law 105-391;

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16 U.S.C. 5991-5995) that are unobligated on the day before the publication of the Federal Register notice required under section 6804(a)(3) of this title shall be transferred to the special account of the National Park Service for use in accordance with this chapter. The Secretary of the Interior may use amounts available in that special account to pay any outstanding administration, marketing, or close-out costs associated with the national parks passport.

(3) Recreational fee demonstration program

Any funds collected in accordance with section 315 of the Department of the Interior and Related Agencies Ap-propriations Act, 1996 (as contained in section 101(c) of Public Law 104-134; 16 U.S.C. 460l-6a), that are unob-ligated on the day before December 8, 2004, shall be transferred to the appropriate special account and shall be available to the Secretary in accordance with this chapter.

(4) Admission permits for refuge units

Any funds collected in accordance with section 3911 of this title that are available as provided in subsection (c)(A) of such section and are unobligated on the day before December 8, 2004, shall be transferred to the special account of the United States Fish and Wildlife Service for use in accordance with this chapter.

(f) Effect of regulations A regulation or policy issued under a provision of law repealed by this section shall remain in effect to the extent such a regulation or policy is consistent with the provisions of this chapter until the Secretary issues a regulation, guideline, or policy under this chapter that supersedes the earlier regulation. CREDIT(S) (Pub.L. 108-447, Div. J, Title VIII, § 813, Dec. 8, 2004, 118 Stat. 3390; Pub.L. 109-54, Title I, § 132(a), Aug. 2, 2005, 119 Stat. 526.) 2005 Acts. Amendment by Pub.L. 109-54, § 132, effective as of Dec. 8, 2004, see Pub.L. 109-54, § 132(d), set out as a note under 16 U.S.C.A. § 460l-6a. Current through P.L. 111-264 (excluding P.L. 111-203, 111-257, and 111-259) approved 10-8-10 Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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Chapter 87. Federal Lands Recreation Enhancement § 6814. Limitation on use of fees for employee bonuses

Notwithstanding any other provision of law, fees collected under the authorities of the chapter may not be used for employee bonuses. CREDIT(S) (Pub.L. 108-447, Div. J, Title VIII, § 815, Dec. 8, 2004, 118 Stat. 3393.) Current through P.L. 111-264 (excluding P.L. 111-203, 111-257, and 111-259) approved 10-8-10 Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT

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Page I

I of I DOCUMENT

UNITED STATES CODE SERVICECopyright (c) 1996, Lawyers Cooperative Poblishing

••• ARCHIVE MATERIAL •••

••• THIS SECTION IS CURRENT THROUGH THE I04TH CONGRESS, 2ND SESSION •••

TITLE 16. CONSERVATIONCHAPTER I. NATIONAL PARKS, MILITARY PARKS, MONUMENTS, AND SEASHORES

OUTDOOR RECREATION PROGRAMSLAND AND WATER CONSERVATION FUND

16 uses § 460l-6a (1996)

§ 4601-6a. Admission and special recreation use fees

(a) Admission fees at designated areas; "Golden Eagle Passport" annual admission pennit; single-visit fees; fee-freetravel areas; "Golden Age Passport" annual entrance permit; lifetime admission permit. Entrance or admission fees shallbe cbarged only at designated units of the National Park System or National Conservation Areas administered by theDepartment of the Interior and National Recreation Areas, National Monuments, National Volcanic Monuments, National Scenic Areas, and no more than 21 areas ofconcentrated public use administered by the Department of Agriculme. For purposes of this subsection, the term "area ofconcentrated public lisell means an area that is managed.primarilyfor outdoor recreation purposes, contains at least one major recreation attraction, where facilities and services necessaryto accommodate heavy public use are provided, and public access to the area is provided io such a manner that admission fees can be efficiently collected at one or more centralized locations. No admission fees of any kiod sball becharged or imposed for entrance ioto any other federally owned areas which are operated and maiotained by a Federalagency and used for outdoor recreation purposes.

(I) (A) (i) For admission ioto any such designated area, an annual admission pennit (to be known as the GoldenEagle Passport) shall be available, for a fee of not more than $ 25. The pennittee and any person accompanyiog him io asingle, private,noncommercial vehicle, or alternatively, the pennittee and his spouse, children, and parents accompanyiog him where entry to the area is by any means other than private, noncommercial vehicle, shall be entitled to generaladmission into any area designated pursnanr to this subsection. The annual pennit shall be valid for a period of 12months from the date the annual fee is paid. The annual pennit shall not authorize any uses for which additional fees arecharged pursuant to subsections (b) and (c) of this section. The annual pennit sball be nontransferable and the unlawfuluse thereof shall be punishable in accordance with regulations established pursuant to subsection (e). The annual pennitsball be available for purchase at any such designated area.

(ii) The Secretary of the Interior and the Secretary of Agriculture may authorize busioesses, nonprofit entities, andother organizations to sell and collect fees for the Golden Eagle Passport subject to such terms and conditions as theSecretaries may jointly prescribe. The Secretaries shall develop detailed guidelioes for promotional advertisiog of nonFederal Golden Eagle Passport sales and shall monitor compliance with such guidelioes. The Secretaries may authorizethe sellers to withhold amounts up to, but not exceeding 8 percent of the gross fees collected from the sale of such passports as reimbursement for actual expenses of the sales. Receipts from such non-Federal sales of the Golden EaglePassport shall be deposited into the special account established io subsection (i), to be allocated between the Secretaryof the Interior and the Secretary of Agriculture in the same ratio as receipts from admission into Federal fee areas administered by the Secretary of Agriculture and the Secretary of the Interior pursuant to subsection (a).

(B) For admission into a specific designated unit of the National Park System, or into several specific units locatedin a particular geographic area, the Secretary is authorized to make available an annual admission permit for a reasonable fee. The fee shall not exceed $ 15 regardless of how many units of the park system are covered. The pennit sballconvey the privileges of, and shall be subject to the same terms and conditions as, the Golden Eagle Passport, except

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USCS § 4601-6a

that it shall be valid only for admission into the specific unit or units of the National Park System indicated at the timeofpurchase.

(2) Reasonable admission fees for a single visit at any designated area shall be established by the administeringSecretary for persons who choose not to purchase the annual permit. A Itsingle visit" means a more or less continuousstay within a designated area. Payment of a single visit admission fee shall authorize exits from and reentries to a singledesignated area for a period of from one to fifteen days, such period to be defmed for each designated area by the administering Secretary based upon a determination of the period oftime reasonably and ordinarily necessary for such asingle visit. The fee for a single-visit permit at any designated area applicable to those persons entering by private, noncommercial vehicle shall be no more than $ 5 per vehicle. The single-visit permit shall admit the permittee and all persons accompanying him in a single vehicle. The fee for a single-visit permit at any designated area applicable to thosepersons entering by any means other than a private noncommercial vehicle shall be no more than $ 3 per person. Exceptas otherwise provided in this subsection, the maximum fee amounts set forth in this paragraph shall apply to all designated areas.

(3) No admission fee shall be charged for travel by private, noncommercial vehicle over any national parkway orany road or highway established as a part of the National Federal Aid System, as defined in section 101, title 23, UnitedStates Code, which is commonly used by the public as a means of travel between two places either or both of which areoutside the area. Nor shall any fee be charged for travel by private, noncommercial vehicle over any road or highway toany land in which such person has any property right if such land is within any such designated area. In the SmokyMountains National Park, unless fees are charged for entrance into said park on main highways and thoroughfares, feesshall not be charged for entrance on other routes into said park or any part thereof. Notwithstanding any other provisionof this Act, no admission fee may be charged at any unit of the National Park System which provides significant outdoor recreation opportunities in an urban environment and to which access is publicly available at multiple locations.

(4) The Secretary of the Interior and the Secretary ofAgriculture shall establish procedures providing for the issuance of a lifetime admission permit (to be known as the "Golden Age Passport") to any citizen of, or person domiciledin, the United States sixty-two years of age or older applying for such permit. Such permit shall be nontransferable,shall be issued for a one-time charge of $ 10, and shall entitle the permittee and any person accompanying him in a single, private, noncommercial vehicle, or alternatively, the permittee and his spouse and children accompanying himwhere entry to the area is by any means other than private, noncommercial vehicle, to general admission into any areadesignated pursuant to this subsection. No other free permits shall be issued to any person: Provided, That no fees ofany kind shall be collected from any persons who have a right of access for hunting or fishing privileges under a specific provision of law or treaty or who are engaged in the conduct of official Federal, State, or local Govennnent business and Provided further, That for no more than three years after the date of enactment of this Act, visitors to theUnited States will be granted entrance, without charge, to any designated admission fee area upon presentation of avalid passport.

(5) The Secretary of the Interior and the Secretary of Agriculture shall establish procedures providing for the issuance of a lifetime admission permit to any citizen of, or person domiciled in, the United States, if such citizen or personapplies for such permit, and is blind or permanently disabled. Such procedures shall assure that such permit shall beissued only to persons who have been medically determined to be blind or permanently disabled for purposes ofreceiving benefits under Federal law as a result of said blindness or permanent disability as determined by the Secretaries.Such permit shall be nontransferable, shall be issued without charge, and shall entitle the permittee and any person accompanying him in a single, private, nonconnnercial vehicle, or alternatively, the permittee and his spouse and childrenaccompanying him where entry to the area is by any means other than private, nonconnnercial vehicle, to general admission into any area designated pursuant to this subsection.

(6) (A) No later than 60 days after the date of enactment ofthis paragraph [enacted Dec. 22, 1987], the Secretary ofthe Interior shall submit to the Committee on Interior and Insular Affairs [Committee on Natural Resources] of theUnited States House of Representatives and the Committee on Energy and Natural Resources of the United States Senate a report on the entrance fees proposed to be charged at units of the National Park System. The report shall include alist of units ofthe National Park System and the entrance fee proposed to be charged at each unit. The Secretary oftheInterior shall include in the report an explanation of the guidelines used in applying the criteria in subsection (d).

(B) Following submittal of the report to the respective committees, any proposed changes to matters covered in thereport, including the addition or deletion ofpark units or the increase or decrease of fee levels at park units shall nottake effect until 60 days after notice ofthe proposed change has been submitted to the committees.

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USCS § 4601-6a

(7) No admission fee may be cbarged at any unit of the National Park System for admission ofany person 16 yearsofage or less.

(8) No admission fee may be cbarged at any unit of the National Park System for admission of organized schoolgroups or outings conducted for educational purposes by schools or other bona fide educational institutions.

(9) No admission fee may be cbarged at the following units of the National Park System: U.S.S. Arizona Memorial,Independence National Historical Park, any unit ofthe National Park System within the District of Columbia, ArlingtonHouse--Robert E. Lee National Memorial, San Juan National Historic Site, and Canaveral National Seashore.

(10) For each unit of the National Park System where an admission fee is collected, the Director sball annually designate at least one day during periods of high visitation as a "Fee-Free Day" when no admission fee shall be cbarged.

(11) In the case of the following parks, the fee for a single-visit permit applicable to those persons entering by private, noncommercial vehicle (the permittee and all persons accompanying him in a single vehicle) sball be no more than$ 10 per vehicle and the fee for a single-visit permit applicable to persons entering by any means other than a privatenoncommercial vehicle sball be no more than $ 5 per person: Yellowstone National Park and Grand Teton NationalPark and after the end of fiscal year 1990, Grand Canyon National Park. In the case of Yellowstone and Grand Teton, asingle-visir fee collected at one unit shall also admit the vehicle or person who paid such fee for a single-visit to theother unit.

(12) Notwithstanding section 203 of the Alaska National Interest Lands Conservation Act [I6 uses§ 41Ohh-z],the Secretary may cbarge an admission fee under this section at Denali National Park and Preserve in Alaska.

(b) Recreation use fees; collection; campgrounds at lakes or reservoirs under jurisdiction ofCorps of Engineers;fees for "Golden Age Passport" permittees. Each Federal agency developing, administering, providing or furnishing atFederal expense, specialized outdoor recreation sites, facilities, equipment, or services shall, in accordance with thissubsection and subsection (d) of this section, provide for the collection of daily recreation use fees at the place of use orany reasonably convenient location: Provided, That in no event shall there be a cbarge by any such agency for the use,either singly or in any combination, ofdrinking water, wayside exhibits, roads, overlook sites, visitors' centers, scenicdrives, or toilet facilities, nor sball there be any such cbarge solely for the use of picnic tables: Provided, That in noevent sball there be a charge for the use of any campground not baving a majority of the following: tent or trailer spaces,picnic tables, drinking water, access road, refuse containers, toilet facilities, personal collection of the fee by an employee or agent ofthe Federal agency operating the facility, reasonable visitor protection, and simple devices for containing a campfire (where campfires are permitted). For the purposes of this subsection, the term "specialized outdoorrecreation sites" includes, but is not limited to, campgrounds, swimming sites, boat launch facilities, and managed parking 10ts.Any Golden Age Passport permittee, or permittee under paragraph (5) of subsection (a) of this section, shall beentitled upon presentation of such permit to utilize such special recreation facilities at a rate of 50 per centum of theestablished use fee.

(c) Special recreation permits. Special recreation permits for uses such as group activities, recreation events, motorized recreation vehicles, and other specialized recreation uses may be issued in accordance with procedures and at feesestablished by the agency involved.

(d) Criteria, posting and uniformity of fees. All fees established pursuant to this section shall be fair and equitable,taking into consideration the direct and indirect cost to the Government, the benefits to the recipient, the public policy orinterest served, the comparable recreation fees charged by non-Federal public agencies, the economic and administrative feasibility of fee collection and other pertinent factors. Clear notice that a fee has been established pursuant to thissection shall be prominently posted at each area and at appropriate locations therein and shall be included in publications distributed at such areas. It is the intent of this Act that comparable fees should be cbarged by the several Federalagencies for comparable services and facilities.

(e) Rules and regulations; establishment; enforcement powers; penalty for violations. In accordance with the provisions of this section, the heads ofappropriate departments and agencies may prescribe rules and regulations for areasunder their administration for the collection ofany fee established pursuant to this section. Persons authorized by theheads of such Federal agencies to enforce any such rules or regulations issued under this subsection may, within areasunder the administration or authority of such agency head and with or, if the offense is committed in his presence, without a warrant, arrest any person who violates such rules and regulations. Any person so arrested may be tried and sentenced by the United States magistrate specifically designated for that purpose by the court by which he was appointed,in the same manner and subject to the same conditions as provided in title 18, United States Code, section 3401, subsec-

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USCS § 4601-6a

tions (b), (c), (d), and (e), as amended. Any violations of the rules and regulations issued uoder this subsection shall bepunishable by a fme ofnot more than $ 100.

(!) Contracts with public or private entities for visitor reservation services. The head of any Federal agency, uodersuch terms and conditions as he deems appropriate, may contract with any pnblic or private entity to provide visitorreservation services. Any such contract may provide that the contractor shall be permitted to deduct a commission to befixed by the agency head from the amouot charged the public for providing such services and to remit the net proceedstherefrom to the contracting agency.

(g) Federal and State laws unaffected. Nothing in this Act shall authorize Federal huoting or fishing licenses or feesor charges for commercial or other activities not related to recreation, nor shall it affect any rights or authority of theStates with respect to fish and wildlife, nor shall it repeal or modify any provision of law that permits States or politicalsubdivisions to share in the revenues from Federal lands or any provision oflaw that provides that any fees or chargescollected at particular Federal areas shall be used for or credited to specific purposes or special funds as authorized bythat provision of law.

(h) [Repealed]

(i) Covering of fees collected into special accouot for agency established in Treasury; covered agencies; availabilityoffunds; allocation ofNational Park Service funds.

(I) (A) Except in the case offees collected by the United States Fish and Wildlife Service or the Tennessee ValleyAuthority, all receipts from fees collected pursuant to this section by any Federal agency (or by any public or privateentity under conttact with a Federal agency) shall be covered into a special accouot for that agency established in theTreasury ofthe United States. Fees collected by the Secretary of Agriculture pursuant to this subsection shall continueto be available for the purposes ofdistribution to States and couoties in accordance with applicable law.

(B) Notwithstanding subparagraph (A), in any fiscal year, the Secretary of Agriculture and the Secretary of the Interior may withhold from the special accouot established uoder subparagraph (A) such portion ofall receipts collectedfrom fees imposed uoder this section in such fiscal year as the Secretary of Agriculture or the Secretary of the Interior,as appropriate, determines to be equal to the fee collection costs for that fiscal year: Provided, That such costs shall notexceed 15 percent of all receipts collected from fees imposed uoder this section in that fiscal year. The amouots sowithheld shall be retained by the Secretary of Agriculture or the Secretary of the Interior, as appropriate, and shall beavailable, without further appropriation, for expenditure by the Secretary concerned to cover fee collection costs in thatfiscal year. The Secretary concerned shall deposit into the special accouot established pursuant to subparagraph (A) anyamouots so retained which remain uoexpended and uoobligated at the end of the fiscal year. For the purposes of thissubparagraph, for any fiscal year, the term "fee collection costs ll means those costs for personnel and infrastructure directly associated with the collection of fees imposed uoder this section.

(2) Amounts covered into the special account for each agency during each fiscal year shall, after the end of suchfiscal year, be available for appropriation solely for the purposes and in the mauoer provided in this subsection. Nofunds shall be transferred from fee receipts made available uoder this Act to each unit of the national park system [National Park System]: Provided, however, That in making appropriations, funds derived from such fees may be used forany purpose authorized therein. F1IDds credited to the special account shall remain available until expended.

(3) For agencies other than the National Park Service, such fuods shall be made available for resource protection,research, interpretation, and maintenance activities related to resource protection in areas managed by that agency atwhich outdoor recreation is available. To the extent feasible, such funds should be used for purposes (as provided for inthis paragraph) which are directly related to the activities which generated the funds, including but not limited to waterbased recreational activities and camping.

(4) Amounts covered into the special accouot for the National Park Service shall be allocated among park systemnnits in accordance with subsection U) for obligation or expenditure by the Director of the National Park Service for thefollowing purposes:

(A) In the case ofreceipts from the collection of admission fees: for resource protection, research, and interpretation at units of the National Park System.

(B) In the case of receipts from the collection of user fees: for resource protection, research, interpretation, andmaintenance activities related to resource protection at units of the National Park System.

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USCS § 4601-6a

(j) Funds available to National Park Service; required allocations; computations; unexpended funds.

(I) 10 percent of the funds made available to the Director of the National Park Service under subsection (i) in eachfiscal year shall be allocated among units of the National Park System on the basis of need in a manner to be detenninedby the Director.

(2) 40 percent of the funds made available to the Director of the National Park Service under subsection (i) in eachfiscal year shall be allocated among units of the National Park System in accordance with paragraph (3) of this subsection and 50 percent shall be allocated in accordance with paragraph (4) ofthis subsection.

(3) The amount allocated to each unit under this paragraph for each fiscal year shall be a fraction of the total allocation to all units under this paragraph. The fraction for each unit shall be determined by dividing the operating expensesat that unit during the prior fiscal year by the total operating expenses at all units during the prior fiscal year.

(4) The amount allocated to each unit under this paragraph for each fiscal year shall be a fraction of the total allocation to all units under this paragraph. The fraction for each unit shall be determined by dividing the user fees and admission fees collected under this section at that unit during the prior fiscal year by the total of user fees and admission feescollected under this section at all units during the prior fiscal year.

(5) Amounts allocated under this subsection to any unit for any fiscal year and not expended in that fiscal year shallremain available for expenditure at that unit until expended.

(k) Selling ofpermits and collection of fees by volunteers at designated areas; collecting agency duties; suretybonds; selling ofannual admission permits by public and private entities under arrangements with collecting agencyhead. When authorized by the head of the collecting agency, volunteers at designated areas may sell permits and collectfees authorized or established pursuant to this section. The head of such agency shall ensure that such volunteers haveadequate training regarding--

(1) the sale ofpermits and the collection offees,

(2) the purposes and resources of the areas in which they are assigned, and

(3) the provision ofassistance and information to visitors to the designated area.

The Secretary shall require a surety bond for any such volunteer performing services under this subsection. Fundsavailable to the collecting agency may be used to cover the cost of any such surety bond. The head of the collectingagency may enter into arrangements with qualified public or private entities pursuant to which such entities may sell(without cost to the United States) annual admission permits (including Golden Eagle Passports) at any appropriate location. Such arrangements shall require each such entity to reimburse the United States for the full amount to be received from the sale of such permits at or before the agency delivers the permits to such entity for sale.

(I) Charge for transportation provided by National Park Service for viewing National Park System units; charge inlieu of admission fee; maximum charge; apportionment and expenditure of charges.

(1) Where the National Park Service provides transportation to view all or a portion of any unit of the National ParkSystem, the Director may impose a charge for such service in lieu of an admission fee under this section. The chargeimposed under this paragraph shall not exceed the maximum admission fee under subsection (a).

(2) Notwithstanding any other provision of law, half of the charges imposed under paragraph (I) shall be retainedby the unit of the National Park System at which the service was provided. The remainder shall be covered into the special account referred to in subsection (i) in the same manner as receipts from fees collected pursuant to this section.Fifty percent of the amount retained shall be expended only for maintenance of transportation systems at the unit wherethe charge was imposed. The remaining 50 percent of the retained amount shall be expended only for activities relatedto resource protection at such units.

(m) Admission fee at National Park System units where primary public access is provided by concessioner; maximum fee. Where the primary public access to a unit of the National Park System is provided by a concessioner, the Secretary may charge an admission fee at such units only to the extent that the total of the fee charged by the concessionerfor access to the unit and the admission fee does not exceed the maximum amount of the admission fee which couldotherwise be imposed under subsection (a).

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USCS § 4601-6a

(n) Establishment of commercial tour fees; periodical adjustment ofcommercial tour fees; vehicles exempt fromfee; application of fee to certain aircraft.

(I) In the case of each unit of the National Park System for which an admission fee is charged under this section,the Secretary of the Interior shall establish, by October I, 1993, a commercial tour use fee to be imposed on each vehicle entering the unit for the purpose ofproviding commercial tour services within the unit. Fee revenue derived fromsuch commercial tour use fees shall be deposited into the special account established under subsection (i).

(2) The Secretary shall establish the amount of fee per entry as follows:

(A) $ 25 per vehicle with a passenger capacity of25 persons or less, and

(B) $ 50 per vehicle with a passenger capacity of more than 25 persons.

(3) The Secretary may periodically make reasonable adjustments to the commercial tour use fee imposed under thissubsection.

(4) The commercial tour use fee imposed under this subsection shall not apply to either of the following:

(A) Any vehicle transporting organized school groups or outings conducted for educational purposes by schools orother bona fide educational institutions.

(B) Any vehicle entering a park system unit pursuant to a contract issued under the Act ofOctober 9,1965 (16Us. C. 20--20g) entitled "An Act relating to the establishment ofconcession policies in the areas administered by theNational Park Service and for other purposes.".

(5) (A) The provisions of this subsection shall apply to aircraft entering the airspace of units of the National ParkSystem identified in section 2(b) and section 3 of Public Law 100-91 [16 uses§ la-l note] for the specific purpose ofproviding commercial tour services within the airspace of such units.

(B) The provisions ofthis subsection shall also apply to aircraft entering the airspace ofother units of the NationalPark System for the specific purpose of providing commercial tour services if the Secretary detennines that the level ofsuch services is equal to or greater than the level at those units of the National Park System specified in subparagraph(A).

HISTORY: (Sept. 3,1964, P.L. 88-578, Title I, § 4, as added July II, 1972, P.L. 92-347, § 2, 86 Stat. 459; Aug. I,1973, P.L. 93-81, §§ 1,2,87 Stat. 178, 179; June 7,1974, P.L. 93-303, § 1,88 Stat. 192; Sept. 8,1980, P.L. 96-344, §9,94 Stat. 1135; Dec. 22,1987, P.L. 100-203, Title V, Subtitle e, § 5201(a)-(c), 101 Stat. 1330-263,264.)

(As amended Aug. 10, 1993, P.L. 103-66, Title V, § 5001(b), Title X, Subtitle A, §§ 10001, 10002, 107 Stat. 379,402; Nov. 2, 1994, P.L. 103-437, § 6(p)(I), 108 Stat. 4586; Dec. 21, 1995, P.L. 104-66, Title I, Subtitle H, § 1081(1),109 Stat. 721.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

REFERENCES IN TEXT:"This Act", referred to in this section, is Act Sept. 3, 1964, P.L. 88-578,78 Stat. 897, popularly known as the Land

and Water Conservation Fund Act of 1965, which appears generally as 16 uses §§ 4601-4 et seq. For full classificationof such Act, consult USCS Tables volumes.

As used in subsec. (a)(4), "three years after the date ofenactment of this Act", refers to the enactment of Act Sept. 3,1964, P.L. 88-578, 78 Stat. 897. Act Sept. 3,1964, which enacted 16 uses§§ 4601-4 et seq., was approved Sept. 3,1964; Act July II, 1972, the Act which enacted this section was approved July 11, 1972.

With respect to the Committee on Natural Resources of the House of Representatives, referred to in this section, §l(a)(8) of Act June 3, 1995, P.L. 104-14, which appears as a note preceding 2 uses § 21, provides that any reference tosuch Committee in any provision oflaw enacted before January 4, 1995, shall be treated as referring to the Committeeon Resources of the House of Representatives.

EXPLANATORY NOTES:The bracketed words "Committee on Natural Resources" were inserted in subsec. (a)(6)(A) on the authority of House

Resolution No.5, Jan. 5, 1993, One Hundred Third Congress, which provided that the Committee on Interior and Insu-

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USCS § 4601-6a

"(B) the feasibility ofencouraging more even seasonal distribution of visitation."(2) The study shall include a pilot project to be carried out in Yosemite National Park. For purposes of such pilot

project, the Secretary may reduce the fees for admission of various classes or categories of visitors to Yosemite NationalPark and may reduce the admission fees imposed at the park during seasons with low visitation. A report containing theresults of the study shall be transmitted to the Committee on Interior and Insular Affairs of the United States House ofRepresentatives and to the Committee on Energy and Natural Resources of the United States Senate within 3 years afterthe enactment of this Act.".

Recreatioualfee demonstration program. Act April 26, 1996, P.L. 104-134, Title I, § IOI(c) [Title III, § 315], 110Stat. 1321-200; May 2,1996, P.L. 104-140, § I(a), 110 Stat. 1327; Sept. 30, 1996, P.L. 104-208, Div A, Title I, §101(d) [Title I; Title III, § 319],110 Stat. 3009---, provides:

"(a) The Secretary of the Interior (acting through the Bureau of Land Management, the National Park Service and theUnited States Fish and Wildlife Service) and the Secretary of Agriculture (acting through the Forest Service) shall eachimplement a fee program to demonstrate the feasibility of user-generated cost recovery for the operation and maintenance of recreation areas or sites and habitat enhancement projects on Federal lands.

"(b) In carrying out the pilot program established pursuant to this section, the appropriate Secretary shall select fromareas under the jurisdiction ofeach of the four agencies referred to in subsection (a) no fewer than 10, but as many as100, areas, sites or projects for fee demonstration. For each such demonstration, the Secretary, notwithstanding anyother provision oflaw--

"( I) shall charge and collect fees for admission to the area or for the use ofoutdoor recreation sites, facilities, visitorcenters, equipment, and services by individuals and groups, or any combination thereof;

"(2) shall establish fees under this section based upon a variety of cost recovery and fair market valuation methods toprovide a broad basis for feasibility testing;

"(3) may contract, including provisions for reasonable connnissions, with any public or private entity to provide visitor services, including reservations and information, and may accept services of volunteers to collect fees charged pursuant to paragraph (I);

"(4) may encourage private investment and partnerships to enhance the delivery of quality customer services and resource enhancement, and provide appropriate recognition to such partners or investors; and

"(5) may assess a fme of not more than $ 100 for any violation of the authority to collect fees for admission to the areaor for the use ofoutdoor recreation sites, facilities, visitor centers, equipment, and services.

"(c)( I) Amounts collected at each fee demonstration area, site or project shall be distributed as follows:"(A) Ofthe amount in excess of I04%of the amount collected in fiscal year 1995, and thereafter annually adjusted

upward by 4%, eighty percent to a special account in the Treasury for use without further appropriation, by the agencywhich administers the site, to remain available for expenditures in accordance with paragraph (2)(A).

"(B) Of the amount in excess of 104%ofthe amount collected in fiscal year 1995, and thereafter annually adjustedupward by 4%, twenty percent to a special account in the Treasury for use without further appropriation, by the agencywhich administers the site, to remain available for expenditure in accordance with paragraph (2)(B).

"(C) For agencies other than the Fish and Wildlife Service, up to 15%ofcurrent year collections ofeach agency, butnot greater than fee collection costs for that fiscal year, to remain available for expenditure without further appropriationin accordance with paragraph (2)(C).

"(D) For agencies other than the Fish and Wildlife Service, the balance to the special account established pursuant tosubparagraph (A) of section 4(i)(I) ofthe Land and Water Conservation Fund Act [subsec. (i)(1) of this section], asamended.

"(E) For the Fish and Wildlife Service, the balance shall be available to the Secretary of the Interior until expended tobe used in accordance with clauses (i), (ii), and (iii) of section 20 I(c)(A) of the Emergency Wetlands Resources Act of1986 (16 Us.c. 3911(c)(A)).

"(2)(A) Expenditures from site specific special funds shall be for further activities of the area, site or project fromwhich funds are collected, and shall be accounted for separately.

"(B) Expenditures from agency specific special funds shall be for use on an agency-wide basis and shall be accountedfor separately.

"(C) Expenditures from the fee collection support fund shall be used to cover fee collection costs in accordance withsection 4(i)(I)(B) of the Land and Water Conservation Fund Act [subsec. (i)(I)(B) of this section], as amended: Provided, That funds unexpended and unobligated at the end of the fiscal year shall not be deposited into the special account established pursuant to section 4(i)(I)(A) of said Act subsec. (i)(I)(A) ofthis section] and shall remain availablefor expenditure without further appropriation.

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USCS § 4601-6a

"(3) In order to increase the quality of the visitor experience at public recreational areas and enhance the protection ofresources, amounts available for expenditure under this section may only be used for the area, site or project concerned,for backlogged repair and maintenance projects (including projects relating to health and safety) and for interpretation,signage, habitat or facility enhancement, resource preservation, annual operation (including fee collection), maintenance, and law enforcement relating to public use. The agencywide accounts may be used for the same purposes setforth in the preceding sentence, but for areas, sites or projects selected at the discretion of the respective agency head.

"(d)(I) Amounts collected under this section shall not be taken into account for the purposes of the Act of May 23,1908 and the Act of March I, 1911 (16 US.c. 500), the Act ofMarch 4, 1913 (16 US C. 501), the Act of July 22, 1937(7 USc. 1012), the Act of August 8, 1937 and the Act of May 24, 1939 (43 US C. 1181fet seq.), the Act ofJune 14,1926 (43 Us.c. 869-4), chapter 69 oftitle 31, United States Code [31 uses§§ 6901 et seq.], section 401 of the Act ofJune 15, 1935 (16 USC. 715s), the Land and Water Conservation Fund Act of 1965 (16 US.c. 4601), and any otherprovision of law relating to revenue allocation.

"(2) Fees charged pursuant to this section shall be in lieu of fees charged under any other provision of law."(e) The Secretary of the Interior and the Secretary of Agriculture shall carry out this section without promulgating

regulations."(I) The authority to collect fees under this section shall commence on October I, 1995, and end on September 30,

1999. Funds in accounts established shall remain available through September 30, 2002.".

NOTES:

CODE OF FEDERAL REGULATIONSNondiscrimination in federally-assisted programs of the Department of the Interior, 43 CFR Part 17.Use authorizations, 43 CFR Part 8370.Law enforcement-criminal, 43 CFR Part 9260.

CROSS REFERENCESThis section is referred to in 16 uses §§ 450bb-2, 4601-9, 3911.

INTERPRETIVE NOTES AND DECISIONSDepartment oflnterior is enjoined from charging fee under 16 uses (4)60/-6(a)(4) to those residents traveling road

way through Colorado National Monument but not using Monument for recreation purposes where (I) action ofSecretary oflnterior in authorizing 36 CFR § 71.13(d) for payment offees by residents using roads solely for transportationand not recreation exceeds his statutory authority, and (2) charging fee constitutes arbitrary and capricious regulationsince Interior could place fee collection stations at another location so as not to interfere with those not making recreational use of Monument. Wilkenson v Department ofInterior (1986. DC Co/a) 634 F Supp 1265.

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H.R. REP. 108-790(I)


H.R. REP. 108-790(I), H.R. Rep. No. 790(I), 108TH Cong., 2ND Sess. 2004, 2004 WL 2920863 (Leg.Hist.)

*1 *1 FEDERAL LANDS RECREATION ENHANCEMENT ACT

HOUSE REPORT NO. 108–790(I)November 19, 2004

Mr. Pombo, from the Committee on Resources, submitted the following

REPORT

[To accompany H.R. 3283] The Committee on Resources, to whom was referred the bill (H.R. 3283) to improve recreational facilities and visitoropportunities on Federal recreational lands by reinvesting receipts from fair and consistent recreational fees and passes,and for other purposes, having considered the same, report favorably thereon with an amendment and recommend thatthe bill as amended do pass.The amendment is as follows:Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

(a) Short Title.–This Act may be cited as the “Federal Lands Recreation Enhancement Act”.(b) Table of Contents.–The table of contents of this Act is as follows:Sec. 1. Short title and table of contents.Sec. 2. Definitions.Sec. 3. Recreation fee authority.Sec. 4. Public participation.Sec. 5. Recreation passes.Sec. 6. Cooperative agreements.Sec. 7. Special account and distribution of fees and revenues.Sec. 8. Expenditures.Sec. 9. Reports.Sec. 10. Sunset provision.Sec. 11. Volunteers.Sec. 12. Enforcement and protection of receipts.Sec. 13. Repeal of superseded admission and use fee authorities.Sec. 14. Relation to other laws and fee collection authorities.In this Act:(1) Standard amenity recreation fee.–The term “standard amenity recreation fee” means the recreation fee authorizedby section 3(f).(2) Expanded amenity recreation fee.–The term “expanded amenity recreation fee” means the recreation fee authorizedby section 3(g).(3) Entrance fee.–The term “entrance fee” means the recreation fee authorized to be charged to enter onto lands

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(13) The Act of February 25, 1920 (30 U.S.C. 181 et seq.; commonly known as the Mineral Leasing Act).(14) Section 4(e) of the Southern Nevada Public Land Management Act of 1998 (Public Law 105–263; 31 U.S.C. 6901note).(15) Section 5(a) of the Lincoln County Land Act of 2000 (Public Law 106–298; 114 Stat. 1047).(16) Any other provision of law relating to revenue allocation.(c) Consideration of Other Funds Collected.–Amounts collected under any other law may not be disbursed under thisAct.(d) Sole Recreation Fee Authority.–Recreation fees charged under this Act shall be in lieu of fees charged for the samepurposes under any other provision of law.(e) Fees Charged by Third Parties.–Notwithstanding any other provision of this Act, a third party may charge a feefor providing a good or service to a visitor of a unit or area of the Federal land management agencies in accordancewith any other applicable law or regulation.*12 (f) Migratory Bird Hunting Stamp Act.–Revenues from the stamp established under the Act of March 16, 1934(16 U.S.C. 718 et seq.; commonly known as the Migratory Bird Hunting Stamp Act or Duck Stamp Act), shall not becovered by this Act.

PURPOSE OF THE BILL

The purpose of H.R. 3283 is to improve recreational facilities and visitor opportunities on federal recreational landsby reinvesting receipts from fair and consistent recreational fees and passes, and for other purposes.

BACKGROUND AND NEED FOR LEGISLATION

Congress authorized, via the Fiscal Year 1996 Interior Appropriations Act (Section 315 of Public Law 104–134), theimplementation of the Recreation Fee Demonstration Program (“Fee Demo Program”). The program provides theNational Park Service (NPS), the Bureau of Land Management (BLM), the U.S. Department of Agriculture ForestService (USFS), and the U.S. Fish and Wildlife Service (FWS) with the authority to test a variety of new fees and toretain the majority of the revenue raised for local management purposes. Prior to the Fee Demo Program, severaldifferent statues gave the agencies authority to collect fees. The difference between the Fee Demo Program and otherfee authorities is that Fee Demo provides the agencies with the flexibility to test different types of fees and retain mostof the revenue at the site where the fee was collected. The program allows 80% of the revenues to be retained in the unitwhere they are collected. The other 20% of the revenue is sent back to the General Treasury and is used on anagency-wide basis under the discretion of the appropriate Secretary. To date, over $900 million in Fee Demo funds havebeen collected by the agencies.

*16 The primary objectives for all the agencies was to raise revenues to eliminate the backlog of deferred maintenance,increase the quality and quantity of visitor services, provide critical resource protection, and meet other high-priorityneeds. Congress recognized that the program was primarily developed in response to the land management agencies'concern over their growing backlog maintenance needs. Backlogged maintenance and infrastructure needs for theseagencies is substantial, and estimates reach into the billions of dollars.

At the beginning of Fiscal Year (FY) 2002, NPS had 233 Fee Demo projects; FWS had 104 projects; BLM had 100projects; and USFS had 92 projects under the program. Because one of the major goals of the Fee Demo program wasto delegate responsibility for spending fee revenues to project and site managers, discretion in establishing priority andguidelines for the allocation and spending of revenue has largely been entrusted to these managers. All of the agenciescurrently participating in the program have guidelines in place to govern the Fee Demo projects. After evaluating theFee Demo Program, the agencies found that fees are a very useful revenue raising tool. Over $175 million dollars werecollected in FY 2002 under the Fee Demo program. Fee demo revenues have increased in the BLM, have held steadyin the FWS and the USFS, while declining slightly for the NPS. A majority of approved revenue projects address thebacklog of deferred maintenance.

*13 A major concern with implementing the Fee Demo Program was the possibility of creating an unreasonable barrier

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to public use. The agencies have concluded that fees do not present such a barrier to public use. Visitation to recreationsites participating in the Fee Demo Program appears unaffected in any significant way due to the implementation of newfees. The total visitors to Fee Demo sites in FY 2002 was 252 million for Department of the Interior sites. Researchindicates that new fees altered a very small percentage of visitation decisions across the full spectrum of income levels,as recreation fees are such a small part of the overall expense for a visit to a recreation site that indeed, they play almostno role in the decision-making process. In response to concerns that the fees create barriers to public use, mitigationmeasures such as providing reasonably priced annual passes and free days have been put in place.

Undoubtedly, the visitor experience is paramount, and one of the main purposes of H.R. 3283 and the Fee DemoProgram is to enhance the visitor experience by investing fees in improving recreation opportunities. The agenciescontinue to improve how quickly recreation fee revenues for projects are approved and obligated. Further, they trackobligations by project category using a four-category sorting system. These project categories include: visitor services,resource protection, health and safety maintenance, and other. In FY 2002, $159 million of Fee Demo revenues wereobligated for projects within these categories. The aggregate of all four agency collection costs since the program'sinception have averaged approximately 20%. In some cases, the agencies agree that collection efficiency needs to beincreased. However, concluded that, high collection costs which occur at particular locations, does not mean that costsare not appropriate.

*17 H.R. 3283 would implement a permanent federal recreation fee collection system for recreation opportunitiesintended to enhance visitor experience by investing fees in improving recreation opportunities and technology. Thelegislation would direct the Secretaries of the Interior and Agriculture to establish fair and equitable recreation fees atareas of substantial agency investment. The Secretaries would be directed to take into consideration the cost and benefitto the federal government as well as the visitor. H.R. 3283 would authorize three fees–“Basic” recreation fee,“Expanded” recreation fee, and “Special” recreation fee–and includes specific restrictions to ensure that any establishedfee would be for managed recreation purposes that contain substantial federal investment for the visitor.

The legislation was drafted to encourage streamlining, simplifying and improving the recreation fee program and theinteragency National Pass Program. To fulfill this purpose of the bill, the proposed legislation introduces the “Americathe Beautiful–The National Parks and Federal Recreational Lands Pass Program.” The “America the Beautiful Pass”would cover any basic recreation fee at all units or areas for which a basic recreation fee is charged, the price being setjointly by the Secretaries. The Pass would be provided to citizens 62 years or older for ten dollars and would be providedfree of charge to any citizen permanently disabled.

*14 The bill also affords the Secretaries the ability to jointly enter into cooperative agreements with government andnon-governmental entities for the development and implementation of the National Parks and Federal Lands PassProgram. Congress intended the Fee Demo program to encourage collaboration within federal agencies and amongfederal and non-federal entities. In November 1998 the General Accounting Office reported that there were a numberof instances where agencies had implemented collaborative approaches to collecting fees that resulted in greaterconvenience to the public and improved efficiency to the agencies. The public benefits from collaborative efforts thatminimize multiple fees, or allow visitors to pay a single fee or coordinate fee arrangements for entrance into adjacentrecreation areas operated by different agencies or levels of government.

COMMITTEE ACTION

H.R. 3283 was introduced on October 8, 2003, by Congressman Ralph Regula (R–OH). The bill was primarily referredto the Committee on Resources, and additionally to the Committee on Agriculture. Within the Committee on Resources,the bill was referred to the Subcommittees on National Parks, Recreation and Public Lands; Forest and Forest Health;Fisheries Conservation, Wildlife and Oceans; and Water and Power. On May 6, 2004, the Subcommittee on Nationalparks, Recreation and Public Lands held a hearing on the bill. On September 22, 2004, the Full Resources Committeemet to consider the bill. The Subcommittees all were discharged from further consideration of the bill by unanimousconsent. Congressman Richard Pombo (R–CA) offered an amendment in the nature of a substitute that made a numberof changes to the original text.

*18 First, the amendment clarified where a fee may and may not be charged while also establishing types of fees. Thissection was overly prescriptive to alleviate concerns of those who no longer trust certain federal land managementagencies with the recreation fee authority. For example, the amendment made clear that the USFS and the BLM will not

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be permitted to charge solely for parking, scenic pullouts, and other non-developed areas while the NPS and the FWSmay continue to charge an entrance fee.

Second, the amendment added a new section of the bill that would establish Recreation Advisory Committees (orRACs), which would ensure public participation in the decision making process when it comes to recreation fees andsites. These RACs would be composed of a balanced and broad representation from the recreation community as wellas local government. The RACs would make recommendations to the relevant Secretary regarding the establishment,elimination, or adjustment of a fee. Should the Secretary not accept a RAC's recommendation, the Secretary must issuea notice identifying the reasons for rejection to the Resources Committee no later than 30 days before implementing adecision.

Third, the amendment would consolidate passes, creating a federal lands pass that would cover any entrance fee andstandard amenity fee charged at a recreational site. There would be no change to the current age or disability discountedpass program. The Secretary would also have the authority to develop site-specific or regional multientity passes.

*15 Fourth, for those jurisdictions that contain national forests, the amendment addressed those instances where 25%of the fees collected are to be granted to the counties in which the national forest is located. The amendment allowscounties to petition the Secretary of Agriculture to enter into a fee management agreement and requires the Secretaryto respond in writing if the offer is not accepted.

Finally, the amendment clarifies the expenditures of the bill by making clear that fees collected are limited to veryspecific purposes that directly benefit the visitor. No funds under the bill, for example, could be used for any biologicalmonitoring on federal recreational lands under the Endangered Species Act for listed or candidate species. Theamendment authorizes the fee authority for ten years.

Congressman Rick Renzi (R–AZ) offered an amendment to the Pombo amendment in the nature of a substitute. TheRenzi amendment would prohibit the Secretaries from charging a standard or expanded amenity fee to persons horsebackriding through federal lands administered by BLM or USFS without using the facilities or services. The amendment wasadopted by unanimous consent.

No further amendments were offered. The Pombo amendment in the nature of a substitute, as amended, was adoptedby voice vote. The bill, as amended, was ordered favorably reported to the House of Representatives by voice vote.

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

*19 Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII of the Rules of the House of Representatives,the Committee on Resources' oversight findings and recommendations are reflected in the body of this report.

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States grants Congress the authority to enact this bill.

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimateand a comparison by the Committee of the costs which would be incurred in carrying out this bill. The Committee onResources believes that enactment of this bill would not alter the existing budgetary impact of recreational fees chargedin connection with federal public lands by a significant amount given the existing program.

2. Congressional Budget Act. As required by clause 3(c)(2) of rule XIII of the Rules of the House of Representativesand section 308(a) of the Congressional Budget Act of 1974, this bill does not contain any new budget authority, creditauthority, or an increase or decrease in tax expenditures. The bill will provide for the collection of fees, resulting inrevenue to the United States. The bill also authorizes the direct expenditure of a portion of these fees by the chargingagencies.

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