DAVIS — The Timberline Mountain ski resort has filed a federal lawsuit against the Tucker County Commission, challenging the new 2% “Special Emergency Ambulance Service Fee.”

The lawsuit, filed Thursday in U.S. District Court in Elkins, charges that the fee, which went into effect Jan. 31 of this year, increases, without statutory authority, the local hotel/motel tax to 8%, “exceeding the 6% maximum rate allowed by the state Hotel Tax Act.”

“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,” Tom Price, general manager of Timberline Mountain, said in a press release Wednesday.

“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.”

The lawsuit is asking that the court issue a declaration that “the hotel fee and short-term rental fee within the Ordinance is preempted by W.Va. Code,” and issue a declaration enjoining Tucker County from enforcing the fee “because it violates the Commerce Clause of the United States Constitution, because it is discriminatory and places an undue burden on interstate commerce.”

The lawsuit also requests that the court issue a declaration stating the Tucker County Commission “exceeded the limited scope of authority granted by W. Va. Code… by enacting the Ordinance and that it is null and void.”

The lawsuit asks for a jury trial.

“Timberline Mountain wants to be part of the solution, but it is not the problem,” said attorney David Nelson, who represents Timberline Mountain. “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. 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,” Nelson said in the release. “This creates an untenable legal issue both under the West Virginia statute and under federal constitutional law.”

Timberline believes that the court declaring the ordinance null and void would be “paving the way for the passage of an ordinance that provides for the funding of the EMS to include all county stakeholders and users, not just a select few,” the release states.

“We welcome fair solutions to funding EMS services,” said Jonathan Davis, executive director of Timberline Mountain. “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.”

Timberline Mountain, located near Davis in Tucker County, has more than 120,000 annual visitors, according to the press release.

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,” the release states. “Timberline’s ski patrol manages most incidents internally, and EMS transports originating from Timberline represent a fraction of total county calls.”