ELKINS – Timberline Mountain has sued the Tucker County Commission claiming a new 2 percent ambulance fee on tourists isn’t fair.
Timberline Mountain Operations LLC dba Timberline Mountain, Timberline Property Management LLC and Valley Scenic View LLC filed its complaint in federal court August 13 against the county.
In the amended complaint, the plaintiffs ask the court to invalidate part or all of the Tucker County Special Emergency Ambulance Service Fee ordinance from imposing hotel and lodging fees without authorization from the state Legislature and imposing other fees in a manner prohibited under state law and the dormant Commerce Clause of the U.S. Constitution.
Tucker County is home to Canaan Valley, Blackwater Falls and Dolly Sods. It is one of the most popular tourist destinations in the state.
The county recently enacted a 2 percent EMS fee, but Timberline says the fee is improper for several reasons. It says a county commission doesn’t have inherent authority to levy taxes or fees, and it says the county already imposes the maximum 6 percent hotel/lodging occupancy tax.
The plaintiffs also say the fee discriminates against interstate commerce, is not compliant with the Emergency Ambulance Service Act of 1975.
In the complaint, Timberline says the many visitors to the county each year are less likely to use an ambulance service than the county’s 6,700 or so residents.
“Instead of creating a fee for the likely ‘users’ of ambulance services, it (the Tucker County Commission) excluded almost all of the most probable ‘users’ from bearing the burden of a fee directly supporting the emergency ambulance service,” the complaint states. “Instead, it placed nearly the entire burden on a population that, although having access to the services, is least likely to use them.
“The ordinance solely targets individuals involved in various tourist recreational activities, as well as hotel and motel guests. The TCC did not conceal its intentions in the ordinance, as it expressly stated in the first three sentences of its purpose:
“‘Tucker County is a wonderful place to live, work and play. It is home to just 6,759 residents, but yet has 1 million plus visitors per year. Tucker County has a unique combination of natural recreational activities, as well as amusements, fairs and festivals available throughout the year. It is a short drive from anywhere within West Virginia and the surrounding states, making it an ideal day trip or weekend destination.’”
The complaint says Tucker County residents make up less than 0.007 percent of people visiting to engage in recreational activities.
“The ordinance is not an ambulance user service fee, but rather an ad valorem tourism tax with no reasonable connection to the actual users of emergency ambulance services permitted by the Ambulance Act, and is targeted at businesses and individuals unpopular with local decision-makers,” the complaint states, noting Commission President Michael Rosenau declared tourists and tourism “are a blight upon the county” at a December 2024 public hearing on the ordinance.
The complaint also notes that in 2024, there were 1,346 emergency ambulance unit responses in the county. Of those, 70 calls were from the three largest hotels and recreation centers, or less than 6 percent. Meanwhile, it says one senior center near Thomas accounted for 213 responses.
The plaintiffs ask the court to declare the fee within the ordinance is preempted by state code, to issue a declaration enjoining the county from enforcing the ordinance because it violates the Commerce Clause, because it is discriminatory and places an undue burden on interstate commerce, to issue a declaration that the county exceeded the limited scope of authority by enforcing the ordinance and for other relief.
The plaintiffs are being represented by David F. Nelson of Hendrickson & Long in Charleston and by Joseph White of White Law Canaan in Davis.
U.S. District Court for the Northern District of West Virginia case number 2:25-cv-19
