By: Lydia Crawley
The Parsons Advocate
Chief Judge Thomas S. Kleeh of the Northern District of West Virginia issued a Memorandum Opinion and Order Denying Motion to Dismiss on March 17th in the ongoing case in federal court over the controversial Tucker County 2% Emergency Ambulance Fee Ordinance.
The fee, enacted by the Tucker County Commission became effective in January of 2025. The fee was imposed to fund the County’s struggling ambulance service. The Ordinance imposed a 2% fee to the following in Tucker County: short term rentals, camping, boat and other water based rentals, motorized off-road rentals, bus excursions and charters, downhill ski equipment and rentals including lift fees, cross country ski equipment and fees, other winter slope activities, scenic chair lift rides, outdoor game equipment rentals such as tennis, pickleball or swimming, hunting and fishing excursions, outdoor adventure activities such as zip line, rock climbing, paddle boarding, horseback riding, skeet shooting and paintball, virtual reality and/or AI gaming fees, mini-golf, golf and golf cart related rentals and fee, as well as any and all admission charges or cover fees for such events as music, concerts, comics, movies, plays, professional sports, gaming events, mud bogs, off road racing or trail riding. Registered non-profits are exempted from the Ordinance.
On September 16, 2025, the Tucker County Commission had filed a motion to dismiss in the case brought by Timberline Mountain Operations, LLC, Timberline Property Management, LLC and Valley Scenic View, LLC in the United States District Court for the Northern District of West Virginia on August 13th of that year. A hearing on the motion to dismiss was held on January 7th of this year.
In the motion, attorneys for the Commission argued that the Ordinance did not violate Count Two of the case involving the Dormant Commerce Clause. According to the Library of Congress, the Dormant Commerce Clause is, “a legal doctrine inferred from the U.S. Constitution’s Commerce Clause, preventing states from passing laws that discriminate against or unreasonably burden interstate commerce. It ensures a national market by limiting states’ ability to erect economic barriers or “Balkanize” trade.”
The Commission’s attorney’s argued that because the fee applied to activities engaged in solely within the confines of Tucker County, it did not violate the clause. It was further argued that the Ordinance required local enterprises to collect the fee from their customers. The plaintiff’s countered that even if the Ordinance were exclusively local, local or intrastate activity could be subject to Commerce Clause scrutiny.
The memorandum states in its decision, “The [Supreme] Court has … rejected any suggestion that a state tax or regulation affecting interstate commerce is immune from Commerce Clause scrutiny because it attaches only to a ‘local’ or intrastate activity.” The statement was referenced to a court case called Commonwealth Edison Co. v. Montana from 1981.
The decision further went on to discuss the subject of discrimination as it applied to how the Ordinance applied to out of area versus locals. One case examined in the decision by Judge Kleeh was Camps Newfound/Owatonna, Inc. v. Town of Harrison. In this case from Maine, a statute was enacted, “creating a general exemption from real estate and personal property taxes for ‘benevolent and charitable institutions’ incorporated in Maine.” The statute further went on to provide those that were, “conducted or operated principally for the benefit of persons who are not residents of Maine” with a more limited tax benefit. It was a burden the decision said was felt mostly by those from outside the State and deterred them from, “enjoying the benefits of camping in Maine.”
“The Court found that such prohibitions on out-of-state access to in-state resources encourage economic isolationism and ‘serve the every evil that the dormant Commerce Clause was designed to prevent,’” Judge Kleeh wrote.
The decision further stated that Timberline’s attorneys argued that 75% of those who engage in recreational activity at the resort are from out of state. Timberline also argued that the Ordinance explicitly excludes a number or local organizations from the fee such as non profits, the Tucker County 4-H and the County Senior Centers. The decision stated that if the 4-H or one of the Senior Centers hosted an event, it would be attended by locals and not subject to the fee, but if Timberline, Canaan or Blackwater Falls hosted an event, it would be attended mostly by those from out of state and subject to the fee.
The decision found that the case was similar to the Camp case in Maine, “in which Maine engaged in discriminatory taxation of Maine charities operating primarily to serve out-of-state residents” by indirect means of a tax on the entity transacting business with the customer. It further stated that the burden is felt hardest by out-of-state visitors.
“This amounts to a discouragement of ‘out-of-state access to in-state resources’ and the same type of economic isolationism that was found invalid in Camps Newfound,” Judge Kleeh wrote.
The Order to Dismiss also addressed the Ordinance’s use of the word “user.” The Order said that the definition of “user” in the Ordinance was not neutral and not connected to the population who actually uses ambulance services.
“The Ordinance, rather, focus on tourism-based activities and the exempts activities presumably attended by Tucker County residents,” Judge Kleeh wrote.
Judge Kleeh further states that the exclusion of the area Senior Centers from the Ordinance was evidence of discrimination, “given the amount of ambulance services used by their residents.” The Order also states that while the Commission claims that all activities related to the fee are recreational, hotels, “are unrelated to recreation, and their inclusion in the tax is, at least arguably, evidence of discrimination, as well.”
This denial of the motion does not end the case against the Tucker County Commission, however. It is just one of likely many legal battles to come over the controversial fee. Timberline has been one of the most outspoken opponents of the fee since its inception.
The plaintiffs are represented by David F. Nelson of Hendrickson & Long in Charleston and Joseph White of White Law Canaan, PLLC in Davis.
The Tucker County Commission is represented by Greyson Cole Teets, Jeffrey S. Zurbuch and Robert C. Chenoweth of Busch Zurbuch & Thompson, PLLC in Elkins.
