kepPNW wrote: ↑
July 16th, 2019, 9:54 am
You knew the word analysis would come to bear, right? Would the suggested "toilet rule" apply to porta-potties, which by their very name don't seem to be a "permanent toilet facility" as written in the law, or...?
I may have been a bit too hasty in endorsing the "Toilet Rule." Mirror Lake Toilet definitely qualifies. Old "toilet" at Bull of the Woods Lookout...maybe. Cat hole I dug to avoid using amenities at the trailhead...who knows!?
Water wrote: ↑
July 16th, 2019, 10:10 am
How do you interpret the bolded text Jerry? I don't understand how you actually arrive at a different interpretation from what is written there.
One thing that should have been mentioned in my previous post is that the Adams case was an "as-applied" challenged by the Plaintiffs. That means they challenged a specific implementation plan for a specific area and the fees as they were applied to them (not a fun sentence, sorry). There is a curious footnote at end of the case discussing the Sherar case (10th Circuit) which was an unsuccessful facial challenge to fees in a Colorado wilderness area. A facial challenge attempts to invalidate the entire implementation plan. These types of challenges have different standards and the rulings create different ramifications. Cool/uncool fact, Sherar was authored by good ole Neil "Enemy of the Long Haul Trucker" Gorsuch!
This means Adams does not control whatever implementation plan created the NW Forest Pass system. Sure the bolded language you reference makes it seem like it does, but that language is "dicta" and cannot be relied on as the law for purposes of the NW Forest Pass. Only the specific legal conclusions are "controlling." So. We have no idea if the NW Forest Pass would survive an as-applied challenge or a facial challenge for that matter, although I suspect it would survive a facial challenge for reason we don't need to get into here.
Water wrote: ↑
July 16th, 2019, 10:10 am
I have to plainly disagree. These are the judge's words. Adams is not misinterpreted with this perspective. It's that in other cases there came a settlement which designated places to park and 'pay', is a settlement a ruling on the statute?
The settlement in Fragosa and Wiechars is binding on the areas it relates to as it was published by the court. The fact that Plaintiffs agreed to settle creates a lot of questions too. If the fees for non-amenity use don't apply, why not take it to the 9th Circuit and get an Adams type ruling? Definitely food for though.
I brought up those cases because they discuss the practicality of enforcing fee programs if each individuals specific "use" or "intent" had to be evaluated. I am of the opinion that if the 9th circuit has to rule on the NW Forest Pass they would be hard pressed to say no fee can be charged for parking at a developed trailhead if you don't use the amenities because courts typically don't like to interpret statutes in ways that make them unworkable. The point of the REA (Congress' intent) was to allow for the implementation of fees in certain areas. The court will take that into account. Although the statute may have been clear on its face as it related to the facts in Adams it could very well not be as they relate to the NW Forest Pass facially or as-applied.
I realize that wasn't the case in Adams. But the USFS was making some pretty bold arguments saying their fee program applied to people who parked on the side of the road (not a trailhead with amenities) just because they were in an area that had amenities. I think the Court was pushing back against their brazen attempts to justify a patently illegal fee scheme. I also think rulings might differ between schemes where you pay at an entrance versus buying a pass to display at select sites.
Whew! That was a lot. Apologies.
Circling back to our original discussion. Until there is a ruling on the NW Forest Pass, the USFS is probably within its rights to charge fees for parking at a developed trailhead even if you are not using the amenities. If you get a ticket you can even pay the fine in opposition and still have standing to sue if you want to get this sorted out for us...PLEASE DO! Gosh, at this point maybe I'll forgo mine this year and do us all a favor and take this thing to the TOP! Comin' back for ya Neil!