Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

TIMBERLINE MOUNTAIN OPERATIONS, LLC,

TIMBERLINE PROPERTY MANAGEMENT, LLC, and

VALLEY SCENIC VIEW, LLC,

Plaintiffs,

v. CIVIL NO. 2:25-CV-19

(KLEEH)

THE COUNTY COMMISSION OF

TUCKER COUNTY,

Defendant.

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

Pending before the Court is a motion to dismiss filed by the

Defendant, the County Commission of Tucker County, West Virginia

(“TCC”). For the reasons discussed below, the motion is DENIED.

I. INTRODUCTION AND PROCEDURAL HISTORY

The Plaintiffs, Timberline Mountain Operations, LLC,

Timberline Property Management, LLC, and Valley Scenic View, LLC

(together, “Plaintiffs”), filed their original complaint for

declaratory judgment against TCC on August 13, 2025. See ECF No.

1. They filed an amended complaint on August 14, 2025. See ECF

No. 3. In the amended complaint, Plaintiffs ask the Court to

invalidate all or part of Tucker County’s emergency ambulance fee

ordinance (the “Ordinance”).

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

In the amended complaint, Plaintiffs assert the following

claims:

(1) In Count One, that TCC’s additional

2% hotel/lodging ad valorem tax exceeds the

6% maximum under state code;1

(2) In Count Two, that the Ordinance

violates the Commerce Clause of the United

States Constitution; and

(3) In Count Three, that the Ordinance

does not comply with the Emergency

Ambulance Act.

On September 16, 2025, TCC filed a motion to dismiss. See ECF No.

5. It is fully briefed and ripe for review. The Court held a

hearing on the motion on January 7, 2026.

II. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows

a defendant to move for dismissal upon the ground that a complaint

does not “state a claim upon which relief can be granted.” In

ruling on a 12(b)(6) motion to dismiss, a court “must accept as

true all of the factual allegations contained in the complaint.”

Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007)

(citations omitted). A court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Papasan v.

Allain, 478 U.S. 265, 286 (1986) (citation omitted).

1 Plaintiffs assert that Tucker County has already imposed the maximum 6%

occupancy tax on hotels. See Am. Compl., ECF No. 3, at 3.

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

A court should dismiss a complaint if it does not contain

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Factual allegations must be sufficient “to raise a right to relief

above the speculative level on the assumption that all of the

complaint’s allegations are true.” Id. at 545. Plausibility

exists “when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citation omitted). A motion to dismiss “does not resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). Dismissal

is appropriate only if “it appears to a certainty that the

plaintiff would be entitled to no relief under any state of facts

which could be proved in support of its claim.” Johnson v.

Mueller, 415 F.2d 354, 355 (4th Cir. 1969) (citation omitted).

III. BACKGROUND

Emergency Ambulance Service Act of 1975

In West Virginia, “[c]ounty commissions have no inherent

authority to levy taxes and have only that authority expressly

granted to them by the Legislature.” W. Va. Code § 7-22-9(a). In

1975, the West Virginia Legislature (the “Legislature”) enacted

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

the Emergency Ambulance Service Act of 1975, which empowered county

commissions to “impose upon and collect from the users of emergency

ambulance service within the county a special service fee, which

shall be known as the ‘special emergency ambulance service fee.’”

Id. § 7-15-17.

West Virginia Hotel Occupancy Tax

In 1985, the Legislature empowered counties and

municipalities to “impose and collect a privilege tax upon the

occupancy of hotel rooms located within [their] taxing

jurisdiction[s].” Id. § 7-18-1(a).2 Since 2007, the maximum rate

for a hotel tax by a county has been 6%. See id. § 7-18-2(b).

The 2024 Tucker County Ambulance Fee Ordinance

The Ordinance became effective on January 31, 2025. See

Ordinance, ECF No. 3-1, at 8. Article Two of the Ordinance

establishes the Special Emergency Ambulance Service Fee:

Each Special Emergency Ambulance Service Fee

imposed under this Ordinance shall be for

Tucker County emergency ambulance services for

a fiscal year beginning July 1st through June

30th.

The Special Emergency Ambulance Service Fee

shall be two percent (2%), imposed on all

2 “Hotel” is defined as “any facility, building, or buildings, publicly or

privately owned (including a facility located in a state, county, or municipal

park), in which the public may, for a consideration, obtain sleeping

accommodations. The term includes, but is not limited to, boarding houses,

hotels, motels, inns, courts, condominiums, lodges, cabins, and tourist homes.

The term ‘hotel’ includes state, county, and city parks offering accommodations

as herein set forth.” W. Va. Code § 7-18-3(c).

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DENYING MOTION TO DISMISS [ECF NO. 5]

sales, short-term rentals, admissions, fees

and covers as described [in Article One] paid

by any individual user to be collected by all

individuals or businesses within Tucker County

as specified in the determination of Special

Emergency Ambulance Service Fee, less

exemptions.

Id. at 5. In Article One, the Ordinance defines the “Special

Emergency Ambulance Fee” as follows:

A two percent (2%) fee to be collected by any

business or individual located within Tucker

County from any individual user that engages

in any one or more of the following types of

amusement, entertainment and/or recreational

activities as previously defined. The

activities include, but are not limited to,

the following:

1. All recreational and amusement

activities including the rental of

equipment in use of said activities,

whether indoor or outdoor such as:

 Short-term rentals such as:

hotel/motel, cabin,

condominium, AirBnb, VRBO or

private rentals;

 RV or tent camping;

 Boat, paddle boat, kayak,

canoe, floating tube rental;

 ATV, UTV, motorcycle, bicycle

rental;

 Bus excursions, charters;

 Downhill ski

equipment/clothing rental, ski

lift fees;

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

 Cross-country ski

equipment/clothing rental,

fees;

 Sledding, tubing, ice skating;

 Snowboarding fees, lift

tickets, equipment/clothing

rental;

 Scenic chair lift rides;

 Swimming, tennis, pickleball,

court and equipment rentals;

 Guided hunting or fishing

excursions and

clothing/equipment rental;

 Zip line, rock climbing,

paddle boarding, horseback

riding, skeet shooting,

paintball and other similar

outdoor adventure activities

and clothing/equipment rental

for the same;

 Virtual Reality and/or AI

gaming fees;

 Putt-putt golf;

 Golfing and golf cart rental

fees; and

2. Any and all admission charges or

cover fees including, but not

limited to, music events and/or

concerts, comics, movies, plays,

professional sports or gaming

events; mud bogs or

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

motorcycle/ATV/4-wheel drive racing

or trail riding.

Id. at 3–4. In Article One, the Ordinance also lists the following

exemptions:

Registered non-profit organizations are

exempted from this Ordinance; more

specifically exempted are volunteer fire

departments, schools, churches, senior

centers, Tucker County Fair, Tucker County 4H,

and Tucker County Animal Shelter.

Id. at 5.

According to data from the Tucker County Ambulance Authority,

there were a total of 1,346 emergency ambulance unit responses in

2024. Am. Compl., ECF No. 3, at 6. During that period, the

largest hotels and recreational centers (Timberline Mountain,

Canaan Valley Lodge, and Blackwater Lodge) were responsible for a

combined total of 70 emergency ambulance unit responses. Id. at

6-7. On the other hand, a single senior center in Tucker County

accounted for at least 213 emergency ambulance unit responses.

Id. at 7. Various medical facilities accounted for 94 ambulance

unit responses, and three other senior apartment complexes

collectively accounted for 75 ambulance unit responses. Id. There

were 17 ambulance unit responses to the Tucker County High School

football field, and nearly 24 private residences were responsible

for over 10 ambulance unit responses. Id.

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

IV. DISCUSSION

In the motion to dismiss, TCC argues that Count Two, the

dormant Commerce Clause claim, is insufficiently pled under Rule

12(b)(6). TCC argues that the Court should dismiss Count Two and

choose not to exercise supplemental jurisdiction over the

remaining state law claims. For the reasons discussed below, the

Court finds that Count Two is sufficiently pled, and the Court

will exercise supplemental jurisdiction over the remaining claims.

A. Dormant Commerce Clause (Count Two)

TCC argues that the Ordinance does not violate the dormant

Commerce Clause because it applies solely to activities engaged in

by individuals within a single county in a single state. It also

argues that the Ordinance requires only local enterprises to

collect the emergency ambulance fee from their customers. In

response, Plaintiffs argue that the Ordinance is not exclusively

local, and even if it were, exclusively local or intrastate

activity can be subject to Commerce Clause scrutiny.

The Commerce Clause of the United States Constitution

provides that “[t]he Congress shall have Power . . . [t]o regulate

Commerce . . . among the several States[.]” U.S. Const., Art. I,

§ 8, cl. 3. “Though phrased as a grant of regulatory power to

Congress, the Clause has long been understood to have a ‘negative’

aspect that denies the States the power unjustifiably to

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

discriminate against or burden the interstate flow of articles of

commerce.” Oregon Waste Sys., Inc. v. Dep’t of Env’t Quality of

State of Or., 511 U.S. 93, 98 (1994) (citations omitted).

“The dormant Commerce Clause restrains ‘the several States’

by limiting ‘the power of the States to erect barriers against

interstate trade.’” McBurney v. Young, 667 F.3d 454, 468 (4th

Cir. 2012) (citation omitted). It “is exclusively designed to

address the ‘differential treatment of in-state and out-of-state

economic interests that benefits the former and burdens the

latter.’” Colon Health Ctrs. of Am., LLC v. Hazel, 813 F.3d 145,

154 (4th Cir. 2015) (citation omitted). “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.” Commonwealth Edison Co. v. Montana, 453 U.S. 609, 615

(1981) (citations omitted).

The “first step in analyzing any law subject to judicial

scrutiny under the negative Commerce Clause is to determine whether

it regulates evenhandedly with only incidental effects on

interstate commerce, or discriminates against interstate

commerce.” Oregon Waste, 511 U.S. at 99 (citations and internal

quotation marks omitted). “[D]iscrimination” in this context

“means differential treatment of in-state and out-of-state

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

economic interests that benefits the former and burdens the

latter.” Id. “If a restriction on commerce is discriminatory, it

is virtually per se invalid.” Id. (citations omitted). “By

contrast, nondiscriminatory regulations that have only incidental

effects on interstate commerce are valid unless ‘the burden imposed

on such commerce is clearly excessive in relation to the putative

local benefits.’” Id. (citing Pike v. Bruce Church, Inc., 397

U.S. 137, 142 (1970)). “[A] state law is not discriminatory

because it will apply most often to out-of-state entities in a

market that has more out-of-state than in-state participants.”

Just Puppies, Inc. v. Brown, 123 F.4th 652, 667 n.9 (4th Cir. 2024)

(citations and internal quotation marks omitted).

“[O]ne of the central purposes of the [dormant Commerce]

Clause was to prevent States from ‘exacting more than a just share’

from interstate commerce.” Oregon Waste, 511 U.S. at 102

(citations omitted). “It is well established . . . that a law is

discriminatory if it taxes a transaction or incident more heavily

when it crosses state lines than when it occurs entirely within

the State.” Id. (citations and internal punctuation omitted). A

State may not “impose a tax which discriminates against interstate

commerce either by providing a direct commercial advantage to local

business, . . . or by subjecting interstate commerce to the burden

of multiple taxation[.]” Northwestern States Portland Cement Co.

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

v. Minnesota, 358 U.S. 450, 458 (1959) (citations and internal

quotation marks omitted). “For over 150 years,” the Supreme Court

has “concluded that the imposition of a differential burden on any

part of the stream of commerce — from wholesaler to retailer to

consumer — is invalid[.]” Camps Newfound/Owatonna, Inc. v. Town

of Harrison, 520 U.S. 564, 580 (1997) (citation omitted).

In Camps Newfound, Maine enacted a statute creating a general

exemption from real estate and personal property taxes for

“benevolent and charitable institutions” incorporated in Maine.

Id. at 568. The statute, however, provided that institutions

“conducted or operated principally for the benefit of persons who

are not residents of Maine” qualified only for a more limited tax

benefit. Id. The operator of a church camp serving primarily

out-of-state residents (95% out-of-state) challenged the

constitutionality of the statute. Id. at 568–69, 573. The statute

failed scrutiny under the Commerce Clause. Id. at 580-81. The

Supreme Court recognized that the tax burden was “imposed on the

out-of-state customer indirectly by means of a tax on the entity

transacting business with the non-Maine customer.” Id. at 580.

It wrote that the burden was “felt almost entirely by out-of-

staters, deterring them from enjoying the benefits of camping in

Maine.” Id. at 581. The Court found that such prohibitions on

out-of-state access to in-state resources encourage economic

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DENYING MOTION TO DISMISS [ECF NO. 5]

isolationism and “serve the very evil that the dormant Commerce

Clause was designed to prevent.” Id. at 578. It wrote, “As a

practical matter, the statute encourages affected entities to

limit their out-of-state clientele, and penalizes the principally

nonresident customers of businesses catering to a primarily

interstate market.” Id. at 576. The Camps Newfound Court also

wrote,

Summer camps are comparable to hotels that

offer their guests goods and services that are

consumed locally. In Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241, 13 L. Ed.

2d 258, 85 S. Ct. 348 (1964), we recognized

that interstate commerce is substantially

affected by the activities of a hotel that

“solicits patronage from outside the State of

Georgia through various national advertising

media, including magazines of national

circulation.” Id., at 243. In that case, we

held that commerce was substantially affected

by private race discrimination that limited

access to the hotel, and thereby impeded

interstate commerce in the form of travel.

Id., at 244, 258.

Id. at 573.

Here, Timberline has proffered that 75% of those who engage

in recreational activities at Timberline are from out of state.

Am. Compl., ECF No. 3, at ¶ 9. The Ordinance also explicitly

excludes a number of local organizations from its application.

See Ordinance, ECF No. 3-1, at 5. If, for example, Tucker County

4H wanted to host a recreational activity, which would presumably

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

be primarily attended by Tucker County residents, the tax would

not apply. If Timberline, Canaan, or Blackwater Falls wanted to

host a recreational activity, which would presumably be attended

by out-of-state tourists, the tax would apply. Timberline has

pled that most of its customers “buy digital ski lift passes,

equipment rentals, and hotel reservations before traveling to

Tucker County.” Am. Compl., ECF No. 3, at ¶ 9.

This case, as pled, is similar to Camps Newfound, in which

Maine engaged in discriminatory taxation of Maine charities

operating primarily to serve out-of-state residents. The tax

burden is “imposed on the out-of-state customer indirectly by means

of a tax on the entity transacting business with the non-[West

Virginia] customer.” Camps Newfound, 520 U.S. at 580. The burden

is “felt almost entirely by out-of-staters, deterring them from

enjoying the benefits of” recreating in Tucker County, West

Virginia. Id. at 581. 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.

Id. at 578. As pled, to quote from Plaintiffs’ brief, the

Ordinance “confer[s] the benefits of an emergency ambulance

service upon residents and visitors alike, but plac[es]

the . . . burden of an emergency ambulance service user fee almost

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DENYING MOTION TO DISMISS [ECF NO. 5]

entirely upon the visitors by selectively taxing the very

activities that draw them to visit.” Resp., ECF No. 8, at 10.

TCC asserts that this case is similar to American Trucking

Associations, Inc. v. Michigan Public Service Commission et al.

because the tax applies evenhandedly. The Court disagrees. In

American Trucking, the State of Michigan imposed a flat fee upon

trucks undertaking point-to-point hauls between Michigan cities.

545 U.S. 429, 431 (2005). The petitioners argued that the statute

discriminated against interstate carriers and imposed an

unconstitutional burden upon interstate trade. Id. at 432. The

Supreme Court wrote found that the “neutral” flat assessment did

not unfairly discriminate against interstate truckers. Id. at

434–35. The Ordinance at issue here is distinctly different. The

Ordinance’s definition of “users” is not neutral and is not

connected to a population who actually uses ambulance services.

The Ordinance, rather, focus on tourism-based activities and the

exempts activities presumably attended by Tucker County residents.

The Ordinance excludes senior centers from its application, which

is evidence of discrimination, given the amount of ambulance

services used by their residents. Moreover, to the extent TCC

argues that the taxed activities are all recreational, hotels are

unrelated to recreation, and their inclusion in the tax is, at

least arguably, evidence of discrimination as well. In short, the

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

Ordinance defines “users” of ambulance services in a way that

disproportionately imposes the tax on out-of-state individuals.

The factual allegations here have raised Plaintiffs’ right to

relief above the speculative level. See Twombly, 550 U.S. at 545.

For these reasons, the Court finds that Count Two is sufficiently

pled.

B. Supplemental Jurisdiction

Where “the district courts have original jurisdiction, the

district courts shall have supplemental jurisdiction over all

other claims that are so related to claims in the action within

such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution.”

28 U.S.C. § 1367(a). Because the Court has denied the motion to

dismiss Count Two, the motion is also denied with respect to the

remaining claims.

V. CONCLUSION

For the reasons discussed above, the motion to dismiss is

DENIED [ECF No. 5]. The motion to stay discovery is DENIED AS

MOOT [ECF No. 21].

It is so ORDERED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record.

TIMBERLINE V. TCC 2:25-CVv-19

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO DISMISS [ECF NO. 5]

DATED: March 17, 2026

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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