DENVER - A federal appeals court ruled Tuesday the U.S. Forest Service can keep charging a $10 fee to drive the nation's highest paved road on a peak west of Denver.
The 10th U.S. Circuit Court of Appeals upheld a lower court's ruling that the Forest Service can charge the "amenity fee" to visitors who flock to the 14,264-foot Mount Evans. The paved road takes visitors less than three dozen feet from the summit, making it the easiest hike to one of Colorado's "fourteeners," or mountains above 14,000 feet.
The Mount Evans Scenic Byway is open only Memorial Day through mid-September because of heavy snowfall, but spectacular views make it a popular summer destination.
Mount Evans is part of the Arapahoe and Roosevelt National Forests, and Congress has decreed that anyone may enter a national forest without charge. However, the three-judge panel unanimously concluded that the Forest Service can charge a fee at Mount Evans because some use amenities including a nature center.
"By everyone's admission, the Service provides various amenities and services for which a fee may lawfully be charged," Judge Neil Gorsuch wrote for the court.
But the ruling also gave what fee opponents see as a possible opening. The outdoor enthusiasts who brought the lawsuit should have challenged the fees on a personal level, the court said, instead of challenging the fee for everybody, the ruling said.
"We hardly mean to suggest that the Service's policy can't be attacked at all. It might well be susceptible to a winning challenge" if the plaintiffs had framed their challenge differently, the court wrote.
"It's a mixed bag. It certainly doesn't give the Forest Service a blank check," said Kitty Benzar, president of the Western Slope No-Fee Coalition, a group that supported the lawsuit but wasn't a plaintiff.
A lawyer for the plaintiffs, Matt Kenna (kuh-NAY), said the plaintiffs may consider a "motion for rehearing," in which the same 10th Circuit, not the U.S. Supreme Court, is asked to look again at the case.
"The court seemed to agree with us on the Forest Service charging a fee for undeveloped recreation," Kenna said Tuesday.
The court pointed out that plaintiffs want to waive fees for all, even people who use amenities.
"If a visitor drives close enough to Mount Evans, parks to have a picnic one 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," Gorsuch wrote. "But if that same visitor lingers a bit longer and stops by the nature center, she'll have paid a fee that the (law) expressly allows the Service to charge."
A spokesman for the Forest Service, John Bustos, insisted that gate agents tell visitors they don't have to pay if they don't intend to stop the car.
"People still have the right to drive without stopping and leave without paying a fee," he said. Bustos said fees pay for restrooms and the nature center, which is staffed by a guide during the short summer season.
Mount Evans is about 40 miles west of Denver, making it the city's closest "fourteener." It's visible from about 100 miles to the east.
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Mount Evans Scenic Byway: http://goo.gl/0DtBw