St. John Taxi Association v. Gale A. Norton

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 02-4182
ST. JOHN TAXI ASSOCIATION,
Appellant
v.
GALE A. NORTON, in her official capacity as the
Secretary of the Interior;
JOHN KING, in his official capacity as the
Superintendent of the Virgin Islands National Park;
NATIONAL PARK SERVICE, an agency of the
Department of the Interior
On Appeal from the District Court
of the Virgin Islands
(D.C. Civil No. 02-cv-00002)
District Judge: Hon. Thomas K. Moore
Argued April 30, 2003
BEFORE: ROTH, MC KEE and COWEN, Circuit Judges
(Filed: September 15, 2003)
Vincent A. Colianni, II, Esq. (Argued)
Colianni & Colianni
1138 King Street
Christiansted, St. Croix
USVI, 00820
Counsel for Appellant

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Barbara C. Biddle, Esq.
United States Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W.
Room 9124
Washington, DC 20530
Joycelyn Hewlett, Esq.
Office of United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6924
Steven I. Frank, Esq.
Michael S. Raab, Esq. (Argued)
United States Department of Justice
Civil Division, Appellate Staff
60l D Street, N.W.
Room 9534
Washington, DC 20530
Counsel for Appellees
OPINION
COWEN, Circuit Judge.
The St. John Taxi Association (“Association”) appeals from the order of the
District Court of the Virgin Islands granting defendants’ motion to dismiss and dismissing
this case with prejudice. The District Court ruled that the National Park Service
possesses the statutory authority to charge a fee for the commercial use of the roads,
overlook sites, and scenic drives in the Virgin Islands National Park. We will affirm.

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1 The Management Act was enacted as title IV of the National Parks Omnibus
Management Act of 1998.
3
I.
The Association consists of sixty taxi drivers operating on St. John, U.S. Virgin
Islands. In addition to taking people to and from various destinations, the Association
and its members provide driving tours along the public roads of the Virgin Islands
National Park. The sightseeing tours include brief stops at the park’s scenic overlooks.
Following the adoption of the National Park Service Concessions Management
Improvement Act of 1998 (“Management Act”), the National Park Service promulgated a
Commercial Services Plan to regulate commercial activities in the Virgin Islands National
Park.1 16 U.S.C. § 5966(b)(2)(A) directs the Secretary of the Interior (“Secretary”) to
“require payment of a reasonable fee for issuance” of a commercial use authorization.
Under the Commercial Services Plan, a commercial use authorization or permit must be
obtained in order to provide driving tours of the park. It appears that a taxi association
may pay for an umbrella permit authorizing its members to offer taxi and touring services.
A permit is not required for rental cars used for personal transport, public buses operating
on a fixed route according to a published schedule, and taxis transporting passengers
“from point a to point b and not providing ‘tours’.” App. at 41. These requirements
became effective on January 1, 2002.
On the next day, the Association commenced this action for declaratory and
injunctive relief under the Administrative Procedure Act. It named the National Park

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2 The Association also alleged that the fee is contrary to 16 U.S.C. § 398e(b), which
provides that “no fee or charge shall be imposed for entrance or admission into the Virgin
Islands National Park.” The District Court correctly noted that this case does not involve
an entrance or admission fee, and the Association does not contend on appeal that the fee
scheme violates this particular prohibition.
4
Service, Secretary Gale A. Norton, and John King, the superintendent of the Virgin
Islands National Park, as defendants. According to the Association, the fee scheme
violates the amended Land and Water Conservation Fund Act of 1965, specifically the
enactment’s alleged prohibition in 16 U.S.C. § 460l-6a(b) against charging for the use of
roads, overlook sites, and scenic drives.2
The Association moved for summary judgment, and defendants likewise filed a
motion to dismiss for failure to state a claim. The District Court granted defendants’
motion to dismiss, denied plaintiffs’ summary judgment motion, and dismissed this case
with prejudice in an order entered on October 18, 2002. In an accompanying
memorandum, the District Court concluded that § 460l-6a(b)’s restriction applies only to
recreational users and thereby does not provide a basis for overturning the National Park
Service’s fee requirement. St. John Taxi Ass’n v. Norton, 227 F. Supp. 2d 451, 452-54
(D.V.I. 2002). The Association timely appealed.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331 and 48 U.S.C. §
1612(a). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We must

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exercise de novo review over the District Court’s dismissal of this action. See, e.g., Pryor
v. NCAA, 288 F.3d 548, 559 (3d Cir. 2002).
The Association asserts that § 460l-6a(b) prohibits the National Park Service from
imposing a fee on taxi drivers offering driving tours of the Virgin Islands National Park.
This provision provides in relevant part:
(b) Recreation use fees; collection; campgrounds at lakes or reservoirs
under jurisdiction of Corps of Engineers; fees for Golden Age Passport permittees
Each Federal agency developing, administering, providing or furnishing at
Federal expense, specialized outdoor recreation sites, facilities, equipment,
or services shall, in accordance with this subsection and subsection (d) of
this section, provide for the collection of daily recreation use fees at the
place of use or any reasonably convenient location: Provided, That in no
event shall there be a charge by any such agency for the use, either singly or
in any combination, of drinking water, wayside exhibits, roads, overlook
sites, visitors' centers, scenic drives, or toilet facilities, nor shall there be
any such charge solely for the use of picnic tables[.]

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3 Subsection (d) establishes criteria for these fees:
All fees established pursuant to this section shall be fair and equitable,
taking into consideration the direct and indirect cost to the Government, the
benefits to the recipient, the public policy or interest served, the comparable
recreation fees charged by non-Federal public agencies, the economic and
administrative feasibility of fee collection and other pertinent factors. Clear
notice that a fee has been established pursuant to this section shall be
prominently posted at each area and at appropriate locations therein and
shall be included in publications distributed at such areas. It is the intent of
this part that comparable fees should be charged by the several Federal
agencies for comparable services and facilities.
16 U.S.C. § 460l-6a(d).
6
16 U.S.C. § 460l-6a(b).3 On the other hand, the Management Act states that “the
Secretary, upon request, may authorize a private person, corporation, or other entity to
provide services to visitors to units of the National Park System through a commercial use
authorization.” 16 U.S.C. § 5966(a). § 5966(b)(2)(A) directs the Secretary to “require
payment of a reasonable fee for issuance of an authorization under this section.” The
Association contends that the only reasonable way to resolve the apparent conflict
between these two provisions is to find that businesses whose park activities are limited to
the use of roads and overlooks are not subject to the § 5966(b)(2)(A) fee requirement.
We, however, agree with the District Court that § 460l-6a(b) does not apply to
commercial park users.
The Association’s argument rests on an understanding of § 460l-6a(b) as prohibiting
the assessment of fees for commercial as well as recreational uses. Contrary to the
Association’s suggestion, there are several indications that the scope of this provision is

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restricted to recreational users. The prohibition against charging for the use of roads,
overlook sites, and scenic drives represents a proviso to a general imposition of fees for the
recreational use of federal recreation sites or facilities. Every federal agency “developing,
administering, providing or furnishing at Federal expense, specialized outdoor recreation
sites, facilities, equipment, or services shall . . . provide for the collection of daily recreation
use fees at the place of use or any reasonably convenient location.” Id. (emphasis added).
The statutory text omits any reference to commercial or any other purposes. The proviso
therefore only forbids certain charges that take the form of daily recreation use fees. The
section headings further emphasize this notion of recreation use. § 460l-6a is entitled
“[a]dmission and special recreation use fees,” and the heading of the actual subsection refers
to “[r]ecreation use fees.”
The Association, relying on the provision’s reference to recreation sites and facilities,
contends that the term “recreation” indicates the nature of the site or facility and not the
user’s identity or purpose. Such an interpretation would make any repetition of this term in
the discussion of the imposed fees unnecessary because the provision otherwise enumerates
the sites to which it applies. Furthermore, § 460l-6a(b) actually refers to “daily recreation
use fees” as opposed to mere “recreation fees.” This terminology clearly indicates that
commercial users fall outside the scope of the statutory provision.
The District Court held that another aspect of § 460l-6a demonstrates that the proviso
benefits only recreational users. 16 U.S.C. § 460l-6a(n)(1) provides:

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4 Because there is no fee for admission into the Virgin Islands National Park, see 16
U.S.C. § 398e(b), the National Park Service does not impose a commercial tour use fee
for this specific park.
5 The Association further challenges this understanding of § 460l-6a(b) on the
grounds that commercial operators will simply pass on any fees to the passengers. It
contends that Congress could not have intended such discrimination between recreational
patrons touring the park by taxi or other commercial vehicles and those using private cars.
8
In the case of each unit of the National Park System for which an admission
fee is charged under this section, the Secretary of the Interior shall establish,
by October 1, 1993, a commercial tour use fee to be imposed on each vehicle
entering the unit for the purpose of providing commercial tour services within
the unit. Fee revenue derived from such commercial tour use fees shall be
deposited into the special account established under subsection (I) of this
section.
According to the Association, this commercial tour fee is not a charge for the use of the park
roads. It contends that the fee, based on the passenger capacity of the vehicle, essentially
constitutes a substitute for the admission fees that would be received from the individual
passengers if they had not taken the tour.4 See 16 U.S.C. § 460l-6a(n)(2). But the
commercial tour provision still constitutes further evidence that § 460l-6a(b) and its proviso
are exclusively concerned with recreational activities. The clear difference in language
between “commercial tour use fee” and “daily recreation use fees” highlights the
congressional intent to limit the scope of § 460l-6a(b) to charges for the recreational use of
park facilities.
The proviso therefore only applies to recreational patrons who otherwise would be
assessed a daily use fee. Its terms do not cover the fee for a commercial use authorization
allowing taxi drivers to provide tours of the Virgin Islands National Park.5 Because this

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We reject any suggestion that such billing practices mean that the National Park Service
requires the customers to pay a recreation use fee. The commercial entities remain solely
responsible for any payments to the National Park Service. The fact that they recoup
these payments as well as other costs of doing business by charging more to passengers is
of no consequence to our analysis.
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provision is not contrary to § 5966(b)(2)(a)’s requirement of a reasonable fee to receive a
commercial use authorization, this Court is not confronted with any apparent conflict. Even
if such a conflict existed, we would still reject the Association’s assertion that §
5966(b)(2)(a) must be read as not applying to businesses that merely use the park roads and
overlooks. Such a proposed exception lacks any basis in the text of the provision or
otherwise. The distinction between commercial and recreational uses, however, is well
supported by the terms of § 460l-6a. The National Park Service did not violate federal law
by implementing the Management Act and requiring the payment of a fee to obtain
permission to conduct driving tours of the Virgin Islands National Park.
III.
For the foregoing reasons, the judgment of the District Court entered on October 18,
2002 will be affirmed.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Robert E. Cowen
United States Circuit Judge

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