Scherer vs U.S. Forest Service – Mt Evans

Mt Evans, Arapaho-Roosevelt National Forest

Arapaho_NF_Entrance_StaNear Idaho Springs, Colorado, you can drive State Highway 5 to the summit of Mt Evans. It’s the highest paved road in the country, and it is owned by the people of the state of Colorado. It was built and is maintained by the Colorado Department of Transportation. The highway is 15 miles long, bordered for most of its length by the Arapaho National Forest. It provides access to trailheads into the Mt Evans Wilderness Area and numerous scenic pullouts alongside the highway. Partway up the mountain is Summit Lake Park, owned by the City of Denver. The road terminates at a developed overlook at nearly 14,000 feet.

In 1997, under Fee Demo, the Forest Service erected an entrance station at the bottom of the highway and began charging a $10 entrance fee. This was legal under Fee Demo, which contained almost no restrictions on where fees could be charged. The fee was unpopular, but it was legal.

Fee Demo was repealed in December, 2004, and replaced with the Federal Lands Recreation Enhancement Act. Because entrance fees on National Forests had proven unpopular, FLREA contains language that prohibits the Forest Service from charging them. It also prohibits fees for scenic overlooks, parking, and driving or walking through federal public lands without using any facilities or services.

Under this new, more restrictive, language, the Mt Evans fee should have been discontinued since it was being charged for entrance, parking, driving or walking through undeveloped backcountry, and scenic overlooks. The Mt Evans fee, however, continued unchanged.

In 2007, under pressure from the Colorado Transportation Commission, the Forest Service began allowing free use of the highway as long as you didn’t stop your car at any point. No stopping to photograph wildlife. No stopping to enjoy the view. No stopping to take a walk. If you stopped, you had to pay.

Daves Mt Evans Photos 026In this legal challenge, five residents of Colorado filed suit to have the Mt Evans fee declared unauthorized under federal law. The original Complaint failed on a legal technicality, but a subsequent followup case was successful. Today you can freely enjoy driving Colorado State Highway 5 and do not owe the Forest Service a fee unless you use the developed facilities at two specific locations along the way.

Map of Mt Evans BEFORE
Map of Mt Evans in Colorado showing the 2,600-acre High Impact Recreation Area where the Forest Service charged an access fee from 1997 through 2011.

Mt Evans Settlement Agreement
Final settlement agreement detailing changes the Forest Service made to its fee program at Mt Evans Colorado, including maps of the three individual fee sites. Fees are required only for parking within one of these sites, not along the roadside anywhere else. In addition, the fee for bicycles and pedestrians is discontinued. No fees anywhere between 6:30 pm and 8:00 am.

Note that after the settlement agreement was signed, the City of Denver withdrew their permission for the Forest Service to charge a fee within Summit Lake Park, which is city property. The City may charge their own fee there in the future, but for now parking there is free.
Mt Evans Settlement Agreement

Map of Mt Evans NOW
After being challenged by a lawsuit, the Forest Service agreed to settle by scaling back the Mt Evans fee to apply only at specific developed sites, and only between 8:00 am and 6:30 pm, when they normally have personnel on the mountain. If you are not parked within one of these sites during those hours, you owe no fee.
Mt Evans NOW


Thompson Memo
December 2004 memo to all Forest Service officials from Deputy Chief Tom Thompson. The memo was issued immediately after enactment of the FLREA. It directs that all fees for scenic overlooks should stop immediately. The fee for the scenic overlook at the summit of Mt Evans continued unchanged when the road opened on Memorial Day weekend, 2005.
E00120 Thompson Memo

Mt Evans FLREA Review Chart
The Forest Service says that in 2005 they reviewed the fee program at Mt Evans for compliance with the restrictions in the (then-new) FLREA, and found it to be compliant. They submitted this chart to the federal court to show their due diligence. But look at the chart – it actually shows the exact opposite!
E00127 Mt Evans FLREA Review Chart

DeVore Email
This 2005 email from Region 2 fee program director Pam DeVore to local fee program managers shows that she was well aware of the prohibitions in the new law, but did not want visitors to be informed about where they should and should not have to pay. An honest reading of the FLREA should have caused fees to cease at Mt Evans everywhere except at the Visitor/Nature Center (which was not yet open in 2005). But the Forest Service continued to charge the same entrance fee at the same entrance station (now re-named the convenient pay station) as they had under Fee Demo.
E00128 DeVore Email

2008 Mt Evans Operating Plan
By 2008 the Forest Service was getting heat from both the public and the Colorado Dept of Transportation (which owns and maintains the Mt Evans Highway) about charging for all entrance. In response they began reluctantly telling visitors that if they do not stop they do not have to pay. But according to this operating plan issued that season, the information given to visitors continued to be misleading. In addition, this document shows that the Forest Service knows it has no jurisdiction to issue tickets at Summit Lake (it belongs to the City and County of Denver, not the Forest Service), but the law enforcement plan called for continuing to issue Notices of Non-compliance there. Technically, a Notice of Non-compliance is not a ticket, but it sure does look like one. The average person is certainly not able to tell the difference.
E00454 2008 Mt Evans Operating Plan

Cruz Declaration
Sworn declaration (under penalty of perjury) of Arapaho National Forest Recreation manager Paul Cruz, which is riddled with contradictory and disingenuous statements about the Mt Evans fee program.
E00609 Cruz Declaration

Legal filings

Mt Evans Complaint
Mt Evans Defendant Answer to Initial Complaint
Revised Complaint
Govt Motion to Dismiss
Response to Motion to Dismiss
Mt Evans Govt Reply in Support of MTD

Mt Evans Order Granting Motion to Dismiss
Mt Evans Motion to Reconsider
Motion to Reconsider Govt Response
Mt Evans Plaintiff Reply to Response to MTR
Order Altering Judgment
Altered Judgment
Mt Evans Second Amended Complaint
Mt Evans Govt Answer to Second Amended Complaint
Plaintiffs Opening Brief On The Merits
Defense Response To Opening Brief
Mt Evans Plaintiffs Reply to Defendants Response To Opening Brief
Mt Evans Decision
Notice of Appeal
10th Circuit Appeal Opening Brief
10th Circuit Forest Service Response
10th Circuit Reply
10th Circuit Ruling
Mt Evans As-Applied Complaint


2008 05 26 Fee Fight Goes to Court
2010 05 28 Mt Evans CBS Denver TV News
2010 06 03 Why Do So Many Still Pay?
2012 07 09 Looking Is Free At Mt Evans