Opinion
Case No.: 2:20-cv-01957-JAD-EJY
2021-06-29
Thomas X. KOTAB, Plaintiff v. BUREAU OF LAND MANAGEMENT, Angelita Bulletts, and Catrina Williams, Defendants
Thomas X. Kotab, Winchester, NV, Pro Se. Rachel Kent, Las Vegas, NV, for Defendants.
Thomas X. Kotab, Winchester, NV, Pro Se.
Rachel Kent, Las Vegas, NV, for Defendants.
Order Granting in Part Defendants’ Motion to Dismiss and Lifting Stay on Summary-Judgment Briefing
[ECF No. 19]
Jennifer A. Dorsey, United States District Judge
Thomas Kotab sues the Bureau of Land Management (BLM)—through its officers Angelita Bullets and Catrina Williams—under the Administrative Procedure Act, claiming that it violated multiple statutes by implementing an online reservation system and mandatory processing fee for visitors to access a recreation area without first providing the public an opportunity to weigh in on the change. BLM moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Kotab lacks Article III standing to challenge the policy change and that implementation of the reservation-and-fee system did not require public comment under federal law. Kotab opposes that motion and moves for partial summary judgment. I previously stayed the parties’ summary-judgment briefing until after I had resolved BLM's motion to dismiss.
ECF No. 18 (complaint).
ECF No. 19 (motion to dismiss).
ECF No. 22 (motion for partial summary judgment).
ECF No. 25 (minute order).
I find that Kotab has sufficiently alleged that BLM's conduct caused him a concrete and imminent injury, thus permitting this court to exercise jurisdiction over his claims. I also find that BLM was not required to seek public comment on the implementation of its reservation-and-fee system under the Red Rock Canyon NCA Establishment Act of 1990, Federal Land Policy and Management Act, or National Environmental Policy Act. So I dismiss those claims with prejudice and without leave to amend. But BLM has failed to show that its online-reservation "service fee" is not an "entrance fee" within the meaning of the Federal Land Recreation Enhancement Act, which would require public comment before its imposition. So I decline to dismiss this claim and give BLM 14 days to file a response to Kotab's partial summary-judgment motion.
Background
BLM manages the Red Rock Canyon National Conservation Area, a unique recreation site bordering Las Vegas that is known for its distinctive, red-sandstone peaks and stunning, scenic-loop drive. On September 16, 2020, BLM announced a change in policy for visitors to Red Rock, noting that it would soon require people to make "timed[-]entry reservations" if they wished to visit the park during the "mild weather" months of the year. These "mandatory" reservations could only be purchased online, and BLM required visitors to pay a "$2 processing fee," in addition to the cost of a daily pass, if they wished to drive into the park. According to BLM, the reservation-and-fee system would address "capacity issues during busy seasons," "improve human health and safety," "streamline entry," and "help [BLM] effectively protect resources." This policy went into effect on November 3, 2020.
ECF No. 18 at ¶ 11.
Id. at ¶ 12; ECF No. 18-1 at 2.
ECF No. 18-1 at 2.
Id.
Id.
Kotab, a Nevada resident and avid hiker, believes that these fees are excessive and illegal, and that they fail to achieve their stated goals. A frequent patron of Red Rock, Kotab has long explored the gullies, ravines, and mountains of the canyon. And he "reluctantly" paid the reservation fee to enter the park on multiple occasions, only to be confronted by backed-up traffic, long wait times, and stuffed parking lots. Frustrated by these conditions, he claims that he is less likely or able to visit the park, less able to fully enjoy his hikes, and concerned that others might be deterred from visiting the area. So he sues BLM under the Administrative Procedure Act (APA), claiming that the bureau implemented this policy change without appropriate public comment and review, in violation of the Red Rock Canyon NCA Establishment Act of 1990 (Establishment Act), the Federal Land Policy and Management Act (FLPMA), the National Environmental Policy Act (NEPA), and the Federal Land Recreation Enhancement Act (FLREA). He seeks declaratory relief and for this court to "set aside" the illegal portions of BLM's policy, while eschewing a desire for any damages stemming from the reservation-and-fee system.
ECF Nos. 18 at ¶ 7; 18-2 at 3.
ECF No. 18-2 at 3–4.
ECF No. 18 at ¶¶ 7, 29.
ECF No. 18 at ¶ 38.
ECF No. 20 at 3 ("A class action decision mandating the refund of those fees would further reduce funding for the NCA and Defendants’ response to such reductions have historically been to further limit visitation of the NCA, which is the last thing I would want.").
Discussion
BLM moves to dismiss Kotab's suit under Rules 12(b)(6) and 12(b)(1). District courts employ a two-step approach when evaluating a complaint's sufficiency on a Rule 12(b)(6) motion to dismiss. The court must first accept as true all well-pled factual allegations in the complaint, recognizing that legal conclusions are not entitled to the assumption of truth. Mere recitals of a claim's elements, supported by only conclusory statements, are insufficient. The court must then consider whether the well-pled factual allegations state a plausible claim for relief. A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. "Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." I address BLM's challenge to Kotab's standing under Rule 12(b)(1) and the remaining issues under the Rule 12(b)(6) standard.
Ashcroft v. Iqbal , 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Id.
Id. at 679, 129 S.Ct. 1937.
Id.
St. Clair v. City of Chico , 880 F.2d 199, 201 (9th Cir. 1989).
I. Jurisdiction
BLM argues that this court lacks jurisdiction to hear Kotab's claims because he cannot show that the Red Rock reservation-and-fee system caused him a concrete, imminent injury. Article III of the Constitution limits the federal judicial power to adjudicate cases and controversies. This limitation "is founded in concern about the proper—and properly limited—role of the courts in a democratic society." "One of the essential elements of a legal case or controversy is that the plaintiff have standing to sue," which "ensures that litigants have ‘a personal stake in the outcome of the controversy as to justify the exercise of the court's remedial powers on their behalf.’ " The Supreme Court has long held that a person suing under the APA must satisfy both "Article III's standing" and prudential-standing requirements. Courts have "an obligation to ensure" that a plaintiff has established these jurisdictional baselines "before proceeding to the merits."
U.S. Const. Art. III, § 2 cl. 1.
Summers v. Earth Island Ins. , 555 U.S. 488, 492–93, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (quoting Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ) (internal quotation marks omitted).
Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2416, 201 L.Ed.2d 775 (2018).
Town of Chester v. Laroe Ests., Inc. , ––– U.S. ––––, 137 S. Ct. 1645, 1650, 198 L.Ed.2d 64 (2017) (citations and internal alterations omitted).
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. 209, 224, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp , 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ).
East Bay Sanctuary Covenant v. Trump , 932 F.3d 742, 763 (9th Cir. 2018) (citing Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 93–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ).
A. Article III standing
To demonstrate Article III standing, a plaintiff must "have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." The injury must be "concrete and particularized," as well as "actual or imminent, not conjectural or hypothetical." To be particular, "it must affect the plaintiff in a personal and individual way"; and to be concrete, the injury "must actually exist." But when a plaintiff seeks " ‘to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs,’ the plaintiff can establish standing ‘without meeting all the normal standards for redressability and immediacy.’ "
Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).
Id. at 1548 (internal quotation marks omitted).
Id. at 1548–49 (internal quotation marks and emphasis omitted).
Hall v. Norton , 266 F.3d 969, 975 (9th Cir. 2001) (quoting Lujan , 504 U.S. at 572, 572 n.7, 112 S.Ct. 2130 ).
In Summers v. Earth Island Institute , the Supreme Court addressed whether an agency's failure to follow notice-and-comment procedures, which resulted in the sale of public lands that the plaintiffs enjoyed visiting, could cause injury sufficient to confer Article III standing. While declining to find standing for plaintiffs in that instance after their underlying dispute resolved itself, the Court noted that the plaintiffs had previously shown injury-in-fact by alleging that they "repeatedly visited" the site, "had imminent plans to do so again," and attested that their "interests in viewing the flora and fauna of the area would be harmed." And in Citizens for Better Forestry v. United States Department of Agriculture , the Ninth Circuit reasoned that a plaintiff challenging an agency's failure to follow environmental rule-making procedures need merely allege a "reasonable probability" that the action will threaten his concrete interest.
Summers , 555 U.S. at 490, 129 S.Ct. 1142.
Id. at 494, 129 S.Ct. 1142.
Citizens for Better Forestry v. U.S. Dep't of Agric. , 341 F.3d 961, 975 (9th Cir. 2003).
I find that Kotab has adequately alleged injury-in-fact, caused by BLM's conduct, under Article III. Kotab asserts that the reservation-and-fee system has cost him money, which federal courts have long deemed a sufficiently concrete injury. He also follows the direction of the Summers Court, asserting both that he has visited and plans to visit Red Rock, and that the reservation-and-fee system has threatened his enjoyment of the canyon by decreasing the likelihood that he will be able to visit in the future. That is equally sufficient to show a concrete injury. And contrary to BLM's assertions otherwise, Kotab need not allege at this stage that the agency's failure to follow its procedural rules was the sole cause of his injuries. As the Citizens for Better Forestry court made clear, a plaintiff need merely allege that agency action will "likely result in less environmental protection at the regional and site-specific levels." Kotab thus sufficiently demonstrates that the reservation-and-fee system has impeded his ability to frequently visit Red Rock, has cost him and may cost him money in the future, caused longer waits and crowded parking lots, and decreased his ability to enjoy this natural attraction.
BLM does not challenge whether Kotab has adequately shown redressability, so I do not address it here.
Czyzewski v. Jevic Holding Corp. , ––– U.S. ––––, 137 S. Ct. 973, 983, 197 L.Ed.2d 398 (2017) ("For standing purposes, a loss of even a small amount of money is ordinarily an ‘injury.’ "). Even the temporary loss of use of one's money is sufficient to confer Article III standing. Van v. LLR, Inc. , 962 F.3d 1160, 1162–63 (9th Cir. 2020).
ECF No. 18 at ¶¶ 7, 22, 29.
BLM argues, without relying on precedent, that Kotab must eliminate alternate causalities for his injuries, like "staffing issues" or "other drivers causing the delay." ECF No. 19 at 4.
Citizens for Better Forestry , 341 F.3d at 974–75.
B. Prudential standing
In addition to showing injury in fact, a party seeking review under the APA must challenge "a final agency action," as well as establish that "the interest sought to be protected [is] arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." The parties appear to agree that Kotab challenges a final agency action, so I address whether he satisfies the zone-of-interests test. This test "is a ‘prudential’ inquiry that asks ‘whether the statute grants the plaintiff the cause of action that he asserts.’ " In an APA suit like this one, the relevant zone of interests is not that of the APA itself, but rather the statutes under which Kotab seeks redress—the Establishment Act, NEPA, FLPMA, and FLREA. "The test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff." In Lujan v. National Wildlife Federation , the Supreme Court reasoned that " ‘recreational use and aesthetic enjoyment’ are among the sorts of interests that [statutes like NEPA and FLREA] were specifically designed to protect." Kotab alleges just such a threat to his recreational use and aesthetic enjoyment, so I find that he has met this jurisdictional threshold and I proceed to his substantive claims.
Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
Ass'n of Data Processing Serv. Orgs., Inc. , 397 U.S. at 153, 90 S.Ct. 827.
BLM does not discuss this issue in its briefing.
East Bay Sanctuary Covenant , 932 F.3d at 767 (internal citations omitted).
See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians , 567 U.S. at 224, 132 S.Ct. 2199.
Clarke v. Sec. Indus. Ass'n , 479 U.S. 388, 399–400, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987).
Nat'l Wildlife Fed'n , 497 U.S. at 886, 110 S.Ct. 3177.
II. Claims under the Establishment Act, NEPA, FLPMA, and FLREA
Kotab claims that BLM violated the Establishment Act, NEPA, FLPMA, and FLREA in identical fashion: it failed to provide the public an opportunity to participate in discussions about the implementation of Red Rock's new reservation-and-fee system. Under the APA, an agency's decisions must be upheld unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." This standard is "highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." While I find that Kotab cannot state a claim under the Establishment Act, FLPMA, or NEPA, I permit his FLREA claim to proceed past the pleading stage.
ECF No. 18 at ¶¶ 31 ("Accordingly, in disregarding the public, the Defendants" are "violating Red Rock Cyn NCA Establishment Act."); 33 ("In implementing the reservation system, Defendants are violating the National Environment Protection Act," which requires agencies to "[m]ake diligent efforts to involve the public."); 35 ("Defendants are violating the Federal Land Policy and Management Act" because "no opportunity for public involvement was given."); 37 ("Defendants are violating the Federal Lands Recreation Enhancement Act ... because the public was never provided with opportunities to participate in this increase of a fee.").
Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric. , 499 F.3d 1108, 1115 (9th Cir. 2007).
A. Claims under the FLPMA and Establishment Act
When it enacted the FLPMA, Congress declared that it is the policy of the United States to manage public lands "in a manner that will protect the quality of scientific, scenic, historical, ecological, air and atmospheric, water resource, and archeological values." To accomplish the "enormously complicated task of striking a balance among the many competing uses to which land can be put," FLPMA requires that land-use plans (also known as resource-management plans) be developed with "public involvement," and it directs agencies to "establish procedures, including public hearings where appropriate, to give ... the public adequate notice and opportunity to comment" on land-use plans. Similarly, the Establishment Act requires "full public participation" in the development of a "management plan," which must "describe the appropriate uses and development of the conservation area." "[I]f BLM wishes to change a resource[-]management plan, it can only do so by formally amending the plan," which may require "public involvement." But "maintenance" of the plan, which does "not result in expansion in the scope of resource uses or restrictions, or change the terms, conditions, and decisions of the approved plan ... shall not require [ ] formal public involvement."
Norton v. S. Utah Wilderness All. , 542 U.S. 55, 58, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).
Id. §§ 1739(e); see also id. §§ 1701(a)(5), 1712(f).
16 U.S.C. §§ 460 ccc-3(a)(2).
Klamath Siskiyou Wildlands Ctr. v. Boody , 468 F.3d 549, 556 (9th Cir. 2006).
Kotab fails to show that the Red Rock reservation-and-fee system required amending or otherwise altering the park's resource-management plan, or that the plan somehow prevents BLM from managing visitation patterns at the park. Not only is Kotab's complaint devoid of allegations about the park's resource-management plan, but he concedes in his briefing that BLM has "authority to manage" the recreational use of the park. This indicates that BLM's use of a reservation-and-fee system is maintenance of its management plan and not, as Kotab would have it, an amendment or modification requiring public comment. So I find that Kotab's claims under the FLPMA and Establishment Act fail as a matter of law, and I dismiss them with prejudice.
ECF No. 20 at 4.
B. NEPA
"In NEPA, Congress recognized the ‘profound impact’ of human activities" on "the environment," establishing " ‘action-forcing’ procedures that require agencies to take a ‘hard look’ at environmental consequences." Chief among these procedures is the preparation of an environmental-impact statement, which (1) must be developed for "major [f]ederal actions significantly affecting the quality of the human environment" and (2) be "made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." But as the Ninth Circuit noted in Idaho Conservation League v. Bonneville Power Administration , "when an agency, responding to changing conditions, makes a decision to operate a completed facility ‘within the range originally available’ to it, the action is not major." That court echoed this reasoning in an unpublished decision, Lauran v. United States Forest Service , upholding a district court's finding that a national park's new "display requirement" and "five-dollar fee" did not constitute a major federal action because the "fee is minimal" and merely authorized "a user-generated cost recovery plan" that does "not affect the quality of the human environment."
Ctr. for Biological Diversity v. U.S. Dep't of Interior , 623 F.3d 633, 642 (9th Cir. 2010) (internal citations omitted).
Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 768, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004).
Idaho Conservation League v. Bonneville Power Admin. , 826 F.3d 1173, 1175 (9th Cir. 2016).
Lauran v. U.S. Forest Serv. , 141 F. App'x 515, 520 (9th Cir. 2005) (unpublished).
Guided by the Lauran and Idaho Conservation League decisions, I find that BLM's reservation-and-service fee, while affecting thousands of Red Rock visitors, is just the type of change for which the Ninth Circuit finds an environmental-impact statement unnecessary. Like the Lauran fee, this $2 service fee has a de minimis impact. And the agency's decision to regulate the flow of entrants to the park, which Kotab concedes is within its purview, also does not appear to alter the inherent authority BLM has always exercised. It has long been authorized to charge entrants a fee to enter the park and to regulate visitors’ travel to the park. Additionally, requiring BLM "to prepare an [impact statement] every time it takes an action consistent with past conduct would grind agency decisionmaking to a halt." So I dismiss this claim with prejudice as well.
Idaho Conservation League , 826 F.3d at 1177.
C. The FLREA
I find that BLM has failed to demonstrate that Kotab's FLREA claim cannot proceed as a matter of law. "Admission into the nation's national forests is free," but the FLREA authorizes the Secretary of the Interior to charge amenity and recreation fees for using federal recreational lands and waters, and it gives the public opportunities to participate in the imposition of new recreation fees. Under the statute, the term "recreation fee" includes "an entrance fee, standard amenity recreation fee, expanded amenity recreation fee, or special recreation permit fee." It further defines an "entrance fee" 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." "Notwithstanding any other provision of this chapter," the FLREA also permits "a third party" to "charge a fee for providing a good or service to a visitor of a unit or area" in "accordance with any other applicable law or regulation."
Bailey v. United States , No. 19-5541, 2020 WL 2565318, at *1 (6th Cir. Feb. 28, 2020) (unpublished) (citing 16 U.S.C. § 6802(e)(2) ; Scherer v. U.S. Forest Serv. , 653 F.3d 1241, 1242 (10th Cir. 2011) ).
Id. § 6803(c).
Id. § 6801(8).
Id. § 6801(3).
Id. § 6813(e).
BLM argues that the "service fee" charged to make a reservation to enter Red Rock is not an "entrance fee" within the meaning of the FLREA because (1) it is collected by its online-reservation-service-provider website, recreation.gov, and not the Secretary; and (2) BLM is authorized to enter into fee-management agreements "for the purpose of obtaining fee[-]collection and processing services." Interpretation of an administrative agency's guiding statute is a two-step process. "First, always, is the question [of] whether Congress has directly spoken to the precise question at issue." Keeping in mind that the "legislature says in a statute what it means and means in a statute what it says," my inquiry "begins with the statutory text" and "ends there as well if the text is unambiguous." But if Congress "has not directly addressed the precise question at issue," then "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Where, as here, the statute has not delegated authority to the agency to promulgate rules carrying the force of law, agency interpretations of a statute are persuasive and not entitled to deference "beyond the meaning that the statute can bear." A court assesses the persuasiveness of an agency's interpretation based on such factors as the agency's thoroughness, consistency, formality, or expertise in issuing the interpretation.
ECF Nos. 19 at 9; 21 at 5.
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Id.
BedRoc Ltd., LLC v. United States , 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (quoting Conn. Nat'l Bank v. Germain , 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ) (internal quotation marks omitted).
Satterfield v. Simon & Schuster, Inc. , 569 F.3d 946, 951 (9th Cir. 2009) (internal citations and quotation marks omitted).
Chevron , 467 U.S. at 843, 104 S.Ct. 2778.
MCI Telecomms. Corp. v. Am. Tel. & Tel. Co. , 512 U.S. 218, 229, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994) ; see also Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ("We consider that the rulings, interpretations[,] and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.").
Bark v. U.S. Forest Serv. , 37 F. Supp. 3d 41, 52 (D.D.C. 2014) (collecting cases).
BLM devotes little briefing to this issue, it cites no precedent or agency guidance to support its interpretation of the FLREA, and its position finds little toehold in the statute's explicit terms. While the FLREA states that the Secretary "may establish, modify, charge, and collect recreation fees," it does not specify that an entrance fee includes only those fees directly collected by the Secretary. The statute, in fact, defines an entrance fee to broadly include those fees "charged to enter" onto lands like Red Rock. As Kotab alleges, this service fee appears to be just such a fee: all visitors are required to pay it to enter the park—either in advance online or outside the park's entrance. And it is not, as BLM would have it, the sort of discretionary fee charged by third parties for additional services or goods that are incidental to entering the park. Unlike the fees charged by concessioners, this fee is an unavoidable entrance cost.
16 U.S.C. § 6802.
Bark , 37 F. Supp. 3d at 54 (discussing fees that a "concessioner" might charge at a federal park).
Similarly unavailing is BLM's argument that this is only a "service fee" for its booking website, which the FLREA permits it to charge "for the purpose of obtaining fee[-]collection and processing services." The Ninth Circuit has long proscribed agency interpretations of the FLREA that give "the agency complete discretion to dictate a fee's so-called purpose," thus allowing it to "entirely evade the prohibition" on certain fees "by simply declaring that its fees are ‘for’ something else." While BLM is correct that it may enter into contracts for fee-collection services, there is nothing in that provision of the statute that authorizes it to recoup those fee-collection costs by implementing a new fee without a hearing. And BLM's argument that this service fee is only "for" its collection-service website sounds suspiciously like the type of reclassification the Ninth Circuit censures. It also runs afoul of the FLREA's admonition that the Secretary "avoid the collection of multiple or layered recreation fees for similar uses, activities, or programs." Finally, BLM's position just does not make sense, as it implies that the government could impose any fee it wants on the visiting public without a hearing, so long as it hires a third party to collect that fee. It is unlikely that Congress intended this result in enacting the statute. So I decline to grant BLM's motion to dismiss Kotab's FLREA claim.
ECF No. 21 at 5 (citing 16 U.S.C. § 6805(a)(1) ).
Adams v. U.S. Forest Serv. , 671 F.3d 1138, 1145 (9th Cir. 2012).
Id. § 6802(c).
Conclusion
IT IS THEREFORE ORDERED that the defendants’ motion to dismiss [ECF No. 19] is GRANTED IN PART. Kotab's claims under the Establishment Act, NEPA, and FLPMA are dismissed with prejudice and without leave to amend. The motion is denied in all other respects.
IT IS FURTHER ORDERED that the stay on summary-judgment briefing [ECF No. 25] is LIFTED. The defendants are ordered to file any response to Kotab's summary-judgment motion by July 13, 2021.