By: Lydia Crawley
The Parsons Advocate
A lawsuit has been filed in United States District Court for the Northern District of West Virginia in Elkins on August 14th by attorneys for Timberline Mountain Operations and Valley Scenic View against the Tucker County Commission over the Tucker County, West Virginia Special Emergency Ambulance Fee that took effect January 1, 2025.
“This fee is not only unjust, it’s a blunt instrument that unfairly scapegoats the tourism industry while ignoring the true drivers of EMS demand in Tucker County,” said Tom Price, General Manager of Timberline Mountain in a statement released to the press. “Timberline and other tourist centers account for less than 10% of the EMS calls in the county, yet Timberline and other recreational centers are being forced to shoulder a disproportionate share of the burden. That’s fundamentally unfair.”
In court documents obtained by the Parsons Advocate, the suit seeks a Declaratory Judgment by Jury Trial to invalidate all of the ordinance from imposing hotel and lodging fees with out authorization from the West Virginia Legislature and other fees “in a manner prohibited both under West Virginia law and under the dormant Commerce Clause of the United States Constitution.”
The suit maintains that the Commission overstepped their authority by imposing the fee on lodging establishments, including short term rentals such as Airbnb units. The suit argues that the 2% fee equates to an additional, unlawful tax that exceeds the 6% State cap on Hotel/Motel tax already in place within the County by raising the rate on lodging to 8%.
“Timberline Mountain wants to be part of the solution, but it is not the problem. Most clearly, the ordinance is pre-empted by the Hotel Tax Act because it results in an 8% hotel/motel occupancy tax. Further, the Emergency Ambulance Act empowers a county to impose a fee on EMS users,” said attorney David Nelson, who represents Timberline Mountain in a statement released to the press. “Yet Tucker County’s ordinance attempts to evade the statute’s purpose by limiting the definition of ‘users’ to a narrow slice of businesses and individuals, mostly engaged in interstate commerce, who use EMS infrequently, while at the same time exempting the highest users from any fee burden. The ordinance fees are not reasonably connected to the services provided to recreational activity participants, or to the majority of persons who do use them. This creates an untenable legal issue both under the West Virginia statute and under federal constitutional law.”
The suit also claims that the ordinance is discriminatory against Interstate Commerce and thereby is violating the Constitution by disrupting interstate commerce. The suit alleges that because the plaintiffs engage in online commerce with customers from across the country, this constitutes Interstate Commerce and is thereby regulated by Congress and federal law.
An additional complaint in the suit alleges that the ordinance is not compliant with the Emergency Ambulance Act by which the ordinance’s authority is derived. The suit alleges, “there is an insufficient nexus between the payment of the fees and the use of the ambulance service, as the fee deliberately burdens those least likely to use the service while excluding those most likely to use the service from contributing.”
“We welcome fair solutions to funding EMS services,” said Jonathan Davis, Executive Director of Timberline Mountain in a written statement released to the press. “But this fee, as constructed, punishes businesses that contribute to the local economy and EMS system, while ignoring those who use the service most and often pay nothing at all. This approach risks undermining both our industry and the quality of EMS for Tucker County residents.”
The Emergency Ambulance Service Act of 1975 was established to allow counties to raise funds to support emergency ambulance services within the county. The suit alleges that by imposing the fee on entertainment establishments, especially lodging, the Commission overstepped the bounds of the law. The suit claims that until November of 2024, Counties simply relied on imposing fees on residents alone to fund ambulance services by, “reasonably devised ordinances that impose emergency ambulance fees in a uniform and rational manner, such as by making assessments uniformly against all properties with dwellings and other locations where business is conducted in person within the county.”
The suit further alleges that Tucker County residents make up less that .007% of those engaging in recreational activities, but do not provide a source for the figure. The suit also alleges that the ordinance also provides safeguards to shield residents from fees while participating in locally centered recreation fees because the ordinance excludes registered non-profit organizations, schools, churches, senior centers, the Tucker County Fair, Tucker County 4-H and the Tucker County Animal Shelter.
In the suit, the plaintiffs allege that out of 1,346 emergency ambulance responses in 2024, the three largest hotel and recreation centers of Timberline Mountain, Canaan Valley Lodge and Blackwater Lodge saw a combined total of 70 emergency unit responses or 6% of the total EMS ambulance runs for the year.
The suit further asserted that the senior center outside Thomas accounted for 213 emergency ambulance responses that year. It went on to claim that the various St. George Medical Clinic locations accounted for 94 calls while other senior apartment complexes collectively accounted for 75 and the high school football field saw 17.
To date, according to the court documents, Timberline has paid more than $92,000 into the Special Fee Fund under the ordinance with $75,683 paid under protest. A footnote attached to the statement said that Timberline and the County Commission had entered into a separate EMS contract to have equipment and personnel stationed on location during peak ski visitor times. The note stated, “Timberline paid more than $17,000 for the privilege of having emergency ambulance services immediately available at its facility and to its customers.”
A written statement released to the press states that, “For years, Timberline Mountain has invested heavily in self-funded emergency medical coverage, including contracting ALS-level EMT services during peak periods and sharing resources with neighboring resorts and residents. Timberline’s ski patrol manages most incidents internally, and EMS transports originating from Timberline represent a fraction of total county calls.”
The statement also states that the ordinance potentially damages the region’s tourism economy by increasing cost to visitors and placing businesses at a competitive disadvantage.
The suit seeks a declaration that the hotel fee and short term rental fee within the ordinance is preempted by West Virginia Code, a declaration enjoining Tucker County from enforcing the ordinance because it is violating the Commerce Clause of the Constitution, that the Court issue a declaration that the Tucker County Commission exceeded the limited scope of authority in enacting the ordinance and the Court grant any further relief it sees fit. The documents also request a jury trial for all matters so triable.
