*

 Pursuant to Fed. R. App. P. 43(c)(2) David Gaouette is substituted as

United States Attorney for John F. Walsh. 

FILED

United States Court of Appeals

Tenth Circuit

August 9, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID P. SCHERER; JOHN H.

LICHT; MIKE LOPEZ; BARBARA

BRICKLEY; and AARON JOHNSON,

Plaintiffs - Appellants,

v.

UNITED STATES FOREST

SERVICE; GLENN P. CASAMASSA,

Forest Supervisor for Arapaho &

Roosevelt National Forest; and

DAVID GAOUETTE, United States

Attorney,*

Defendants - Appellees.

No. 10-1418

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:08-CV-00917-MEH-KMT)

Matt Kenna, Durango, Colorado (Mary Ellen Barilotti, Hood River, Oregon, with

him on the briefs), for Plaintiffs-Appellants.

Nicholas A. DiMascio, Attorney, Environment & Natural Resources Division

(Ignacia S. Moreno, Assistant Attorney General; Andrew C. Mergen, Attorney,

Environment & Natural Resources Division; and David C. Shilton Attorney,

Environment & Natural Resources Division, with him on the brief), United States

Department of Justice, Washington, D.C., for Defendants-Appellees.
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Before HARTZ, McKAY, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Everyone enjoys a trip to the mountains in the summertime. One popular

spot is Mount Evans — a fourteen thousand foot peak just a short drive from

Denver and with a paved road that goes right to the summit. When the snow

melts and the road thaws, the national forest around Mount Evans teems with

hikers and sightseers eager to take in the breathtaking views. But first they have

to stop and pay. That’s because the Forest Service maintains an entrance station

along the road where it charges many visitors what it calls an “amenity fee.” 

Wanting everyone to be able to hike Mount Evans and take in its scenery without

charge, the plaintiffs in this case ask us to strike down the Service’s fee policy as

facially inconsistent with Congress’s directions, to hold it null and void in all

applications. This, however, we agree with the district court we cannot do. For

better or worse, the Legislature has said that the Service may — sometimes —

charge visitors to Mount Evans. So some lawful applications of the policy do

exist. But saying this much shouldn’t be misconstrued as saying more. In

rejecting the plaintiffs’ facial challenge we hardly mean to suggest that the

Service’s policy can’t be attacked at all. It might well be susceptible to a winning
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challenge as applied to certain particular visitors, perhaps even the plaintiffs

themselves. But that’s a path the plaintiffs haven’t asked us to explore and so one

we leave for another day. 

As a general rule Congress has decreed that anyone may enter this

country’s great national forests free of charge. See 16 U.S.C. § 6802(e)(2). But

in 2004 Congress included an important exception in what it called the Recreation

Enhancement Act (“REA”). The REA allows the Forest Service to impose

“amenity fees” in areas that “provide[] significant opportunities for outdoor

recreation,” where there are “substantial Federal investments” and certain

“amenities” — amenities defined to include, among other things, interpretive

exhibits, a permanent toilet, and security services. See 16 U.S.C. § 6802(f). Soon

after the REA’s adoption, the Forest Service invoked this very provision and

adopted a “Mount Evans Clear Creek Ranger District Federal Lands Recreation

Enhancement Act Implementation Plan” imposing an amenity fee at Mount Evans. 

But not without stirring up a bit of controversy — controversy that

ultimately led to this lawsuit. David Scherer and his fellow plaintiffs are outdoor

enthusiasts who enjoy visiting Mount Evans — or at least used to before the

Forest Service started with this amenity fee business. Now, they say, they pay the

fee reluctantly, visit less frequently, and in some cases have risked criminal

prosecution by refusing to pay. Citing these harms, Mr. Scherer brought suit

seeking a declaration that the Service’s Implementation Plan is unlawful. But the
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district court entered judgment for the Forest Service all the same, and it is this

that Mr. Scherer seeks to undo on appeal.

How? Proceeding under the Administrative Procedures Act (“APA”), Mr.

Scherer says the Forest Service’s Implementation Plan exceeds the statutory

authority given to the Service by Congress in the REA. See 5 U.S.C. § 706. He

draws our attention to § 6802(d)(1), noting that the statute prohibits the Service

from “charg[ing] . . . [s]olely for parking, undesignated parking, or picnicking

along roads or trailsides[,] . . . [f]or persons who are driving through, walking

through, boating through, horseback riding through, or hiking through Federal

recreational lands and waters without using the facilities and services[,] . . . [f]or

camping at undeveloped sites[,] . . . [or] [f]or use of overlooks or scenic

pullouts.” 16 U.S.C. § 6802(d)(1)(A), (D), (E), & (F). Yet, Mr. Scherer says, the

Implementation Plan disregards these legislative limits by sometimes charging

people who seek to do only these things. In this way, he says, the Implementation

Plan exceeds the Forest Service’s statutory mandate.

But Mr. Scherer and his fellow plaintiffs don’t seek to enjoin enforcement

of the Implementation Plan only as to them and their particular circumstances —

the hallmark of an as-applied challenge. See Reno v. Flores, 507 U.S. 292, 300

(1993) (an as-applied challenge is limited to review of how the regulation or

statute has been “applied in a particular instance”); Colo. Right to Life Comm.,

Inc. v. Coffman, 498 F.3d 1137, 1146 (10th Cir. 2007) (an as-applied challenge is
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limited to testing “the application of [a regulation or statute] to the facts of a

plaintiff’s concrete case”). Instead, they seek a ruling that the Implementation

Plan violates the rights of the public and that strikes down the Plan for the benefit

of all. See, e.g., Aplt. App. at 37, 39 (complaint seeking a declaration that the

Implementation Plan “exceeded the scope of [the Service’s] legislative authority”

and asking the court to “[e]njoin the Service from any further implementation of

its policy and from posting signs that mislead the public” and “[r]etain

jurisdiction over this matter to ensure that the Service complies with the

provisions of the REA”). 

By proceeding in this fashion — by asking us only to decide whether the

Implementation Plan is facially invalid, that is invalid as applied to more than

them and their particular circumstances — the plaintiffs have set before

themselves a formidable task. To prevail in this and any facial challenge to an

agency’s regulation, the plaintiffs must show that there is “no set of

circumstances” in which the challenged regulation might be applied consistent

with the agency’s statutory authority. See Reno, 507 U.S. at 301; Pub. Lands

Council v. Babbitt, 167 F.3d 1287, 1293 (10th Cir. 1999).

And this is a demanding standard Mr. Scherer and his colleagues simply

cannot meet. Under the Implementation Plan, the Forest Service charges a fee for

entering an area where, by everyone’s admission, the Service provides various

amenities and services for which a fee may be lawfully charged under § 6802(f). 
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And in this area, the amenities come as a sort of package deal: paying the fee

entitles a visitor to use them as much or as little as she chooses. So whether this

results in the Forest Service charging for an activity that’s supposed to be free

under § 6802(d)(1) depends on what a particular visitor chooses to do. If a visitor

drives close enough to Mount Evans, parks to have a picnic on the side of the

road, and then calls it a day, she’ll have paid the amenity fee only for picnicking

and undesignated parking — activities for which no fee is supposed to be charged

under § 6802(d)(1). But if that same visitor lingers a bit longer and stops by the

nature center, she’ll have paid a fee that the REA expressly allows the Service to

charge. And the record shows that many paying visitors do take advantage of

legally chargeable amenities while at Mount Evans. In fact, the Forest Service

estimates (and Mr. Scherer does not contest) that in 2007 over 22,000 people

visited the nature center or received information from interpretative guides. Aple.

Supp. App. at 49. Another 900 received roadside assistance from the Forest

Service’s security patrol. Id. All these visitors did more than partake of

§ 6802(d)(1)’s freebies — they availed themselves of Mount Evans’s federally

furnished (and legally chargeable) “amenities.” So it’s just not the case that every

time the Forest Service collects the amenity fee it exceeds its statutory authority. 

And given this, Mr. Scherer can’t meet the burden of showing that there are no set

of circumstances where the Implementation Plan’s fee is lawfully collected. 
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Rather than dispute any of this, rather than try to surmount the difficulties

of a facial challenge, Mr. Scherer suggests that our usual standard for facial

challenges shouldn’t apply in his case. He begins by arguing that having to carry

the burden ordinarily imposed on a facial challenge would render § 6802(d) a

dead letter, that it would let the Forest Service flaunt the statute with impunity. 

But this simply is not so. Plenty of fee arrangements could violate § 6802(d)(1)

on their face. Take, for example, a policy under which the Forest Service charged

for access to an area that only included unimproved camping sites, or charged

extra to park in undesignated areas even after the standard amenity fee had been

paid. Those charges would violate § 6802(d)(1) under every possible scenario

and so could be the subject of a winning facial challenge. And even the current

Implementation Plan may be vulnerable to an as-applied challenge under § 6802. 

We do not pass on the issue today, but it seems an individual might have a good

defense if he were prosecuted for participating in only those activities listed in

§ 6802(d)(1). 

To this Mr. Scherer doesn’t reply by suggesting that his suit involves an asapplied challenge. Instead, he asserts that we should treat his facial challenge

with special solicitude because an as-applied challenge isn’t practical or even

possible here. It isn’t, he says, because the Forest Service only issues informal

warnings and never prosecutes violations of the Mount Evans Implementation

Plan — a bluff tactic that coerces visitors to pay the fee while ensuring no one
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will ever have standing to bring an as-applied challenge. But this argument rests

on a false premise — that the only way a plaintiff can bring an as-applied

challenge to a fee is by refusing to pay it and awaiting criminal prosecution. 

That’s just not the law. To the contrary, and as we have previously held, paying a

fee under protest itself can sometimes be enough to confer standing to challenge

its collection. See, e.g., Schutz v. Thorne, 415 F.3d 1128, 1133 (10th Cir. 2005). 

So if, as he alleges, Mr. Scherer is a “frequent visitor” who has “reluctantly paid

the fees demanded of him,” Aplt. App. at 21-22, he may already have standing to

bring an as-applied challenge. The problem thus is less that he can’t bring an asapplied challenge so much as it is that he hasn’t. 

Alternatively, Mr. Scherer calls on us to endorse a new and hybrid category

of challenge that might be easier for him to pursue — something between a facial

and an as-applied challenge that he calls a “site-specific” challenge. And to

support his cause Mr. Scherer invokes Colo. Wild, Heartwood v. U.S. Forest

Serv., 435 F.3d 1204 (10th Cir. 2006). In that case, however, we noted that the

plaintiffs’ challenge was strictly facial because they were contesting the terms of

a nationally applicable regulation. See id. at 1212 n.2. We never said the

opposite was true — we never even implied that a challenge to a “site-specific”

final agency action (like the Mount Evans Implementation Plan) can’t also be a

facial one. Of course it can. The nature of a challenge depends on how the

plaintiffs elect to proceed — whether they seek to vindicate their own rights based
- 9 -

on their own circumstances (as-applied) or whether they seek to invalidate an

agency action based on how it affects them as well as other conceivable parties

(facial). In this case, Mr. Scherer and his colleagues chose the latter course and

we see no legal authority (or need) that might allow us to invent a third sort of

hybrid challenge, mixing and matching bits of as-applied and facial rules just so

one side might have a better time of it.

Still fighting settled law, Mr. Scherer draws our attention to United States

v. Arizona, 641 F.3d 339 (9th Cir. 2011). He argues that case suggests an

unlawful regulation shouldn’t be sustained in a facial challenge simply because

there might be some hypothetical “permissible applications of it.” Id. at 346. In

this way, Mr. Scherer hopes to flip the burden in his facial challenge so that the

Forest Service must prove its regulation is always lawful rather than the plaintiffs

having to prove it’s never lawful. But Arizona effected no such reversal of settled

law. To the contrary, in the very portion Mr. Scherer cites the Ninth Circuit

acknowledged (just as we do today and has long been the law) that “the

challenger must establish that no set of circumstances exists under which the Act

would be valid.” Id. at 345-46 (internal quotation omitted). 

In a last try, Mr. Scherer seeks to expand the nature of his challenge. For

the first time on appeal, he offers various other intriguing arguments as to why

the Implementation Plan should not survive judicial scrutiny even in a facial

challenge. He says, for example, that the Forest Service’s explanations for its
- 10 -

current policy are self-defeating and internally inconsistent and thus arbitrary and

capricious within the meaning of the APA. See 5 U.S.C. § 706(2)(A). But none

of this is relevant to the legal theory the plaintiffs pursued in the district court —

that the Implementation Plan exceeds the Forest Service’s statutory authority

under § 6802. If Mr. Scherer and his fellow plaintiffs now believe the

Implementation Plan is facially invalid for some other reason, it’s a possibility

that — like the possibility of an as-applied challenge — they or others might seek

to pursue in a future lawsuit. But we may not reverse the district court’s

judgment in this case based on theories coined for the first time only on appeal

unless Mr. Scherer makes a showing of plain error — something he has not even

attempted.

Affirmed.