Court Ruling on SFW lawsuit 3/25/2014

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

 

SOUTHERN FOREST WATCH, INC.,      )

et al.,                           )

                                  )

Plaintiffs,                  )    Civil Action No.

                             )    3:13-cv-116-JMH-HBG

v.                                )

                                  )    MEMORANDUM OPINION

SECRETARY OF THE INTERIOR,        )         AND ORDER

SALLY JEWELL, et al.,             )

                                  )

Defendants.                  )

 

***

This matter is before the Court upon the Joint Motion to

Dismiss for Lack of Jurisdiction [D.E. 14] filed by Defendants

Sally Jewell, Secretary of the Interior, Jonathan B. Jarvis,

Director of the National Park Service, Dale A. Ditmanson,

Superintendent of the Great Smoky Mountains National Park, and

Patricia Wissinger, Assistant Superintendent of the Great Smoky

Mountains National Park, as well as Plaintiffs’ Motion for

Discovery. [D.E. 25]. Each motion has been fully briefed. [D.E.

18; 27; 30; 31]. This matter being fully briefed, and the Court

being otherwise sufficiently advised, it is now ripe for review.

I. Procedural Background

The National Park Service (NPS) approved a $4.00 per

person, per night fee for backcountry camping and shelters,

pursuant to the Federal Lands Recreation Act (FLREA), 16 U.S.C.

§ 6801, et seq. Additionally, the NPS instituted an online

reservation system for obtaining permits and paying the $4.00

permit fee to camp in the backcountry of the Great Smoky

Mountains.

Plaintiffs allege that, of the backcountry campsites within

the Great Smoky Mountains National Park, eighty percent “are

unrestricted on use other than registering the party and

vehicles upon arrival at certain trailheads and designating

destinations and itineraries for backcamping trips.” [D.E. 24 at

11]. The other twenty percent of campsites, according to

Plaintiffs, are reservation campsites. Plaintiffs claim that

under the old reservation system there were no fees, and

reservations could be made in advance by calling the park or by

registering in person the day of the trip. [D.E. 24 at 12-13].

Plaintiffs allege that this system “worked perfectly and

seamlessly.” [D.E. 24 at 14].

Plaintiffs filed this action challenging the imposition of

the new permit system, specifically the implementation of an

online reservation system and backcountry camping fee in the

Great Smoky Mountains National Park. Plaintiffs allege that

Defendants

manufactured false justifications and assertions . . .

in order to dissolve the current working permit system

for access to the backcounty [sic] sections of the

Smoky Mountains and to replace it with another

reservation system in order to assert more control and

limit access to the backcountry sections of the Smoky

Mountains.

[D.E. 24 at 3-4]. Plaintiffs claim that the new reservation

system and fee “is onerous and burdensome to those who wish to

backpack” and that Defendants “implemented new and absurd rules

and regulations.” [D.E. 24 at 4-5].

Under the new system, Plaintiffs allege, a camper must have

internet access and a credit card, reservations are allowed

thirty days in advance, and the process requires clicking

through multiple webpages, which must be done within 15 minutes.

[D.E. 24 at 20]. Plaintiffs also note that if you do not have

internet access, “reservations can be made by telephone or by

personally appearing at Sugarland Visitor Center.” [D.E. 24 at

20].

Based upon the imposition of the new online reservation

system and $4.00 charge for camping in the backcountry of the

Great Smoky Mountains National Park, Plaintiffs bring several

claims seeking a declaratory judgment from this Court. In Count

I, Plaintiffs seek a declaratory judgment that Defendants

violated 16 U.S.C. § 1a-1 by intentionally making public

misrepresentations and false assertions. [D.E. 24 at 22-23]. In

Count II, Plaintiffs seek a declaratory judgment that the grant

of free, exclusive, and privileged use of portions of the park,

to the exclusion of the public, violates 16 U.S.C. § 3. [D.E. 24

at 23]. In Count III, Plaintiffs seek a declaratory judgment

 

that Defendants are not allowed to charge a backpacker fee under

the Federal Lands Recreation Enhancement Act, 16 U.S.C. § 6801,

et seq. [D.E. 24 at 23-24]. In Count IV, Plaintiffs seek a

declaratory judgment that they are free to backpack anywhere

within the Great Smoky Mountains National Park and are not

limited to areas designated for collection of the backpacker

tax. [D.E. 24 at 24-25]. In Count V, Plaintiffs seek a

declaratory judgment that Defendants are not entitled to charge

a backpacker fee under 16 U.S.C. § 6802(g) and that the

implementation of the online reservation system is in violation

of 16 U.S.C. § 1. [D.E. 24 at 25-27]. In Count VI, Plaintiffs

seek a declaratory judgment that the online reservation system

and backpacker tax exceeds the authority provided to Defendants.

[D.E. 24 at 27]. In Count VII, Plaintiffs seek a declaratory

judgment, under the Administrative Procedures Act, that the

decision to implement the online reservation system and

backpacker tax was arbitrary and capricious. [D.E. 24 at 28-29].

In Count VIII, Plaintiffs seek a declaratory judgment that

Defendants failed to comply with 16 U.S.C. § 6803 and 5 U.S.C. §

553, which require public participation before agency action.

[D.E. 24 at 29]. In Count IX, Plaintiffs seek a declaratory

judgment that the promulgation of the online reservation system

and backpacker tax was arbitrary, capricious, an abuse of

 

discretion, and in violation of 5 U.S.C. § 706(2)(A). [D.E. 24

at 30].

Defendants have filed a Motion to Dismiss alleging that

Plaintiffs lack standing to challenge the imposition of the

online reservation system and backpacker tax, that Plaintiffs’

claims are barred by sovereign immunity, and that the Plaintiffs

have not asserted an independent cause of action that would

allow the Court to issue a declaratory judgment. Plaintiffs

respond by asserting that they have concrete injuries, as they

have used the online reservation system and paid the backpacker

fee, and that sovereign immunity does not apply.

Plaintiffs have filed a Motion for Discovery requesting

that this Court allow discovery to go outside the administrative

record. [D.E. 25]. Plaintiffs believe discovery on this matter

should go forth based on the possibility that portions of the

administrative record have been deleted and that some of the

causes of action do not focus on the online reservation system

and backpacker registration fee. [D.E. 25] In response,

Defendants make many of the same arguments found within their

Motion to Dismiss and also argue that review of agency

decisions, instituted pursuant to the Administrative Procedure

Act, is limited to review of the administrative record. [D.E.

30].

 

II. Standard of Review

A party may assert a claim of lack of subject-matter

jurisdiction by motion. Fed. R. Civ. P. 12(b)(1). “The plaintiff

has the burden of proving jurisdiction in order to survive the

motion.” Mich. S. R.R. Co. v. Branch & St. Joseph Cntys. Rail

Users Ass’n, Inc., 287 F.3d 568, 573 (6th Cir. 2002) (citing

Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269

(6th Cir. 1990)). “The plaintiff must show only that the

complaint alleges a claim under federal law, and that the claim

is ‘substantial.’ A federal claim is substantial unless ‘prior

decisions inescapably render it frivolous.’” Musson Theatrical,

Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996)

(quoting Transcon. Leasing, Inc. v. Mich. Nat’l Bank of Detroit,

738 F.2d 163, 165 (6th Cir. 1984)). “The plaintiff will survive

the motion to dismiss by showing ‘any arguable basis in law’ for

the claims set forth in the complaint.” Mich. S. R.R. Co., 287

F.3d at 573 (citations omitted).

A party may present the defense of failure to state a claim

upon which relief can be granted through motion. Fed. R. Civ. P.

12(b)(6). A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the sufficiency of the plaintiff’s

complaint. The Court views the complaint in the light most

favorable to the plaintiff and must accept as true “well-pleaded

facts” set forth in the complaint. Morgan v. Church’s Fried

Chicken, 829 F.2d 10, 12 (6th Cir. 1987) (citations omitted). “A

complaint must contain either direct or inferential allegations

with respect to all material elements necessary to sustain a

recovery under some viable legal theory.” Weiner v. Klais & Co.,

108 F.3d 86, 88 (6th Cir. 1997) (citations omitted). If it

appears beyond doubt that the plaintiff’s complaint does not

state facts sufficient to “state a claim to relief that is

plausible on its face,” then the claims must be dismissed. Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542 (6th Cir.

2007). Further, the complaint must establish “enough fact to

raise a reasonable expectation that discovery will reveal

evidence” to show the averments are factually plausible.

Twombly, 550 U.S. at 556. While the Court presumes all factual

allegations to be true and makes all reasonable inferences in

favor of Plaintiffs, the Court does not have to “accept

unwarranted factual inferences.” Total Benefits Planning Agency,

Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th

Cir. 2008) (citations omitted). If the “complaint does not

contain any factual allegation sufficient to plausibly suggest”

each essential element of the averred violation, it does not

contain enough factual content to nudge the claim across the

line from conceivable to plausible, and must be dismissed.

Ashcroft v. Iqbal, 556 U.S. 662, 680-83 (2009).

III. Analysis

A. Motion to Dismiss

Plaintiffs have not alleged a factual basis to create an

injury in fact due to the NPS’ decision to create an online

reservation fee, but have alleged an injury in fact to create

standing to challenge the imposition of a backcountry permit

fee. Plaintiffs have asserted claims under the Administrative

Procedure Act, creating subject-matter jurisdiction under 28

U.S.C. § 1331, and the NPS has not made discretionary decisions

falling under the narrow exception to the grant of jurisdiction

found in 5 U.S.C. § 702(a)(2). Therefore, Plaintiffs claims

seeking declaratory relief on the subject of the backcountry

camping fee may go forth.

1. Standing

Defendants allege that Plaintiffs do not have standing to

challenge the online reservation system implemented at the Great

Smoky Mountains National Park. To meet the constitutional

requirements of standing, Plaintiffs must show that they

have suffered an ‘injury in fact’ – an invasion of a

legally protected interest which is (a) concrete and

particularized and (b) ‘actual or imminent, not

conjectural or hypothetical’[;] . . . there must be a

causal connection between the injury and the conduct

complained of – the injury has to be ‘fairly traceable

to the challenged action of the defendant, and not the

result of the independent act of some third party not

before the court[;] . . . [and] it must be ‘likely,’

as opposed to merely ‘speculative,’ that the injury

will be ‘redressed by a favorable decision.’

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

(citations omitted). “An association,” such as Southern Forest

Watch, Inc.,

has standing to bring suit on behalf of its members

when: (a) its members would otherwise have standing to

sue in their own right; (b) the interests it seeks to

protect are germane to the organization’s purpose; and

(c) neither the claim asserted nor the relief

requested requires the participation of individual

members in the lawsuit.

 

Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343

(1977). Defendants do not claim that Plaintiffs have not met the

“prudential requirements for standing developed by the Supreme

Court,” and the Court finds that they are not at issue in this

case. See Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d

197, 206 (6th Cir. 2011).

Defendants argue that the Plaintiffs have not shown an

injury in fact, and, thus, have no standing to challenge the

online reservation system. Plaintiffs do not explicitly set

forth the concrete injury they have suffered, but state that the

“new registration system, in and of itself, is an impairment or

a burden, especially when compared with the registration system

that has been employed for decades.” [D.E. 19 at 4]. Plaintiffs

go on to claim that “[t]he new backpacker registration system is

more onerous, difficult, an impairment, etc.” [D.E. 19 at 5].

However, Plaintiffs also note, in their Amended Complaint, that

 

if one does not have email or internet access,

reservations can be made by telephone or by personally

appearing at Sugarland Visitor Center in the Smoky

Mountains to pay cash and manually pick up a camping

permit. Defendants are advising callers they can also

fax a copy of the camping permit to a backpacker.

 

[D.E. 24 at 20].

These particular Plaintiffs have not alleged an injury such

that they have standing to challenge the online reservation

system. Plaintiffs assert that they have been injured because

the online reservation system is “burdensome,” especially when

compared to the old system. However, a review of receipts

provided by Plaintiffs shows that all individual Plaintiffs were

able to access the online reservation system and obtain a permit

through the use of the online reservation system. Thus,

Plaintiffs have not stated an injury in fact for purposes of

standing because they have not shown that the online reservation

system is so burdensome that they cannot use the system to

obtain a permit.

The facts of this case can be analogized to those in a case

brought under the Americans with Disabilities Act. In Sharp v.

Capitol City Brewing Co., a quadriplegic brought suit because a

portable trash can in a water closet did not leave enough room

for a person in a wheelchair to transfer herself to the water

closet. 680 F. Supp. 2d 51, 58 (D.D.C. 2010). However, the

district court found that there was no injury in fact because

the “plaintiff’s disability [was] such that he [could not]

transfer himself to a water closet whether a trash can was in

his way or not.” Id. Thus, “the trash can [did] not prevent

plaintiff from engaging in any activity he could otherwise

perform.” Id. Similarly, Plaintiffs have not alleged that the

online reservation system burdens them to such a degree that

they cannot obtain a permit to camp in the backcountry of the

Great Smoky Mountains. In fact, Plaintiffs have provided

receipts showing they were able to utilize the online

reservation system to obtain permits. [D.E. 24-11 at 1-3]. Thus,

the online reservation system has not prevented Plaintiffs from

engaging in an activity in which they could otherwise engage.

Plaintiffs may prefer the old reservation system to the

online reservation system, but Plaintiffs desire for the old

voluntary reservation system does not allege an injury in fact

that creates a case or controversy, thereby giving this Court

jurisdiction. See Ingraham v. Wright, 430 U.S. 651, 674 (1977)

(“There is, of course a de minimis level of imposition with

which the Constitution is not concerned.”); Sierra Club v.

Morton, 405 U.S. 727, 740 (1972) (“[The goal of putting review]

in the hands of those who have a direct stake in the outcome . .

. would be undermined were we to construe the APA to authorize

judicial review at the behest of organizations or individuals

 

who seek to do no more than vindicate their own value

preferences through the judicial process.”).

The Court stresses that it is not holding that no person

has standing to challenge the online reservation system. See

United States v. Students Challenging Regulatory Agency

Procedures, 412 U.S. 669, 688 (1973) (“To deny standing to

persons who are in fact injured simply because many others are

also injured, would mean that the most injurious and widespread

Government actions could be questioned by nobody. We cannot

accept that conclusion.”). Rather, the Court is holding that

these particular Plaintiffs have not set forth an injury in

fact. For example, a party who could show that they could not

operate the online reservation system to obtain a permit may be

able to show an injury in fact, but these particular Plaintiffs

have provided evidence that they could competently use the

online reservation system in such a way to obtain a permit.

As the individual Plaintiffs do not have standing to

challenge the online reservation system, the Court will not

grant a declaratory judgment pertaining to the implementation of

the online reservation system under any of the claims for

declaratory relief. Furthermore, Plaintiff Southern Forest

Watch, Inc. has not shown that “its members would otherwise have

standing to sue in their own right,” so it also does not have

 

standing to challenge the implementation of the online

reservation system. See Hunt, 432 U.S. at 343.

In their Reply, Defendants assert that they no longer

contest Plaintiffs standing to challenge the imposition of the

backcountry camping fee established under the FLREA. As

Plaintiffs have actually incurred the cost of the new camping

fee, the Court agrees with Defendants assessment, and finds that

the individual Plaintiffs have suffered an injury in fact

through the payment of the fee. See Williams v. Redflex Traffic

Sys., Inc., 582 F.3d 617, 620 (6th Cir. 2009) (“[W]ithout having

been injured by these procedures, she resembles a mere outsider

with a non-justiciable ‘general grievance.’” (citing United

States v. Hays, 515 U.S. 737, 743 (1995))).

Plaintiff Southern Forest Watch, Inc., as an association,

also meets the requirements to have standing to challenge the

imposition of the backcountry tax. First, as has been

established, individual members have standing to sue in their

own right. While not found in the pleadings, the “primary

purpose” of the organization appears to be “to stop the illegal

backcountry tax in its tracks.” Southern Forest Watch,

http://www.southernhighlanders.com/Backcountrytax.html (last

visited Mar. 18, 2014). Finally, while individual members are

involved in the suit, there is no reason their participation

should be required.

Plaintiffs also seek a declaratory judgment based on, what

they describe as, Defendants’ decision to grant licenses and

rights “to private entities and political elites on such terms

to interfere with the free access” to the Great Smoky Mountains

National Park. [D.E. 24 at 23]. Plaintiffs have met the standing

requirements to challenge this decision. Plaintiffs, by alleging

that they wish to use this portion of the park for hiking, have

alleged a concrete injury. See Jackson Hole Conservation

Alliance v. Babbitt, 96 F. Supp. 2d 1288, 1293 (D. Wyo. 2000)

(“[T]he proximity of Mr. Sheahan's residence to the site of the

Proposed Action, and his frequent use of the area, demonstrate

his concrete interest in the dispute by virtue of his

‘geographical nexus to’ and ‘actual use of’ the area affected by

the Proposed Action.” (quoting Comm. to Save the Rio Hondo v.

Lucero, 102 F.3d 445, 450-51 (10th Cir. 1996))); [D.E. 24 at 5]

(“Plaintiffs have offered many solutions and tried repeatedly by

any number of efforts to resolve this issue with the defendants

in order to continue backpacking unimpaired in the Smoky

Mountains.”). Further, the injury can be traced to the

Defendants’ decision to grant a license to the private entities,

and a declaratory judgment that the decision did not comply with

relevant law will redress the injury. See Lujan, 504 U.S. at

560-61.

 

2. Sovereign Immunity

Defendants next assert that Plaintiffs cannot challenge the

discretionary decision of the NPS to implement an online

reservation system and to charge a backcountry camping fee due

to the operation of sovereign immunity. Defendants claim that

these were decisions committed to agency discretion by law, and,

therefore, sovereign immunity has not been waived under the

Administrative Procedure Act (APA). As the Court has found

Plaintiffs do not have standing to challenge the creation of an

online reservation system, the Court’s analysis of sovereign

immunity will focus on the backpacker permit fee and decision of

the NPS to lease or license portions of the park.

Plaintiffs and Defendants agree that the decision of the

NPS to implement a fee and online reservation system is governed

by the APA. The APA provides judicial review of agency

decisions, 5 U.S.C. § 702, but makes an exception for “agency

action . . . committed to agency discretion by law. 5 U.S.C. §

701(a)(2); see Interstate Commerce Comm’n v. Bhd. of Locomotive

Eng’rs, 482 U.S. 270, 282 (1987) (quoting 5 U.S.C. § 701(a)(2))

(“[I]t is the Administrative Procedure Act (APA) that codifies

the nature and attributes of judicial review, including the

traditional principle of its unavailability ‘to the extent that

agency action is committed to agency discretion by law.’”).

Subsection (a)(2) applies “in those rare instances where

‘statutes are drawn in such broad terms that in a given case

there is no law to apply.’” Citizens to Pres. Overton Park, Inc.

v. Volpe, 401 U.S. 402, 410 (1971) (quoting S. Rep. No. 752,

79th Cong., 1st Sess., 26 (1945)); see also Diebold v. United

States, 947 F.2d 787, 789 (6th Cir. 1991) (“Agency action

generally is considered committed to agency discretion where

there is ‘no law to apply.’” (citations omitted)). Thus,

sovereign immunity applies only if there is no law to apply.

To determine if there is law to apply the Court must look

to the statutory authority and regulations issued pursuant to

the relevant statutes. See Diebold, 947 F.2d at 796 (finding

that, to determine if the 5 U.S.C § 701(a)(2) exception applies,

a court must first look to general statutes, then specific

statutes, and, finally, regulations issued pursuant to those

statutes).

First, the Court must look to the general statute, 16

U.S.C. § 1. This statute creates the NPS, the position of

Director, Deputy Director, and allows for “subordinate officers,

clerks, and employees as may be appropriated for by Congress.”

16 U.S.C. § 1. The purpose of the creation of national parks “is

to conserve the scenery and the natural and historic objects and

the wild life therein and to provide for the enjoyment of the

same in such manner and by such means as will leave them

unimpaired for the enjoyment of future generations.” Id.

Additionally, Congress has passed a specific statute allowing

for the imposition of recreation fees, based on specific

criteria, and imposing limitations on the ability to charge fees

for camping at undeveloped sites. 16 U.S.C. § 6802.

The regulations governing the NPS provide that “the

superintendent may . . . [d]esignate areas for a specific use or

activity, or impose conditions or restrictions on a use or

activity.” 36 CFR § 1.5(a)(2). That section also provides that:

Except in emergency situations, a closure,

designation, use or activity restriction or condition,

or the termination or relaxation of such, which is of

a nature, magnitude and duration that will result in a

significant alteration in the public use pattern of

the park area, adversely affect the park’s natural,

aesthetic, scenic or cultural values, require a longterm

or significant modification in the resource

management objectives of the unit, or is of a highly

controversial nature, shall be published as rulemaking

in the Federal Register.

 

Id. § 1.5(b). “To implement a public use limit, the

superintendent may establish a permit, registration, or

reservation system.” Id. § 1.5(d). The next section, 36 CFR §

1.6 provides requirements for a permit system. Further, “[t]he

superintendent may require permits, designate sites or areas,

and establish conditions for camping.” 36 CFR § 2.10. One type

of fee allowed to be charged is a “[d]aily recreation use fee[]

for the use of specialized sites, facilities, equipment or

services furnished at Federal expense.” 36 CFR § 71.2.

 

There are also statutes and regulations governing the NPS’

decision to grant a license to a private party. “No natural,

curiosities, wonders, or objects of interest shall be leased,

rented, or granted to anyone on such terms as to interfere with

free access to them by the public.” 16 U.S.C. § 3. Further, the

Code of Federal Regulations provides multiple requirements the

NPS must comply with when deciding whether to lease park areas.

36 C.F.R. §§ 18.1 – .12.

Therefore, as the statutes and C.F.R. clearly lay out

standards by which to judge the superintendent’s conduct, the

superintendent’s decision to implement a backpacker registration

fee and decision to lease part of the park does not fall within

the limited exception for sovereign immunity granted by 5 U.S.C.

§ 701.

3. Lack of Subject-Matter Jurisdiction

Defendants further argue that Plaintiffs’ claims should be

dismissed for lack of subject-matter jurisdiction because the

Declaratory Judgment Act does not provide an independent basis

of subject-matter jurisdiction. However, Plaintiffs do not rely

on the Declaratory Judgment Act as a means for subject-matter

jurisdiction. Rather, Plaintiffs, in the first paragraph of

their amended complaint, state that the Court has subject-matter

jurisdiction pursuant to 28 U.S.C. § 1331.

 

The Court has subject-matter jurisdiction over the claims

under 28 U.S.C. § 1331, through operation of the APA.

[W]e note that . . . the National Park Service organic

statute, 16 U.S.C. § 1 et seq. [does not] provide[]

directly for judicial review, and [does not] create[]

a private right of action. . . . However, even absent

a statutory cause of action, [plaintiff] may challenge

the agency’s authority under the APA. [Plaintiff] may

therefore challenge the National Park Service’s 9B

regulations under the APA, and this Court will have

federal question jurisdiction under 28 U.S.C. § 1331.

 

Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 112

F.3d 1283, 1286 (5th Cir. 1997) (citations omitted). Thus,

Plaintiffs may challenge the superintendent’s decision to

implement the backpacker registration fee under the APA, and

this Court will have jurisdiction under 28 U.S.C. § 1331.1

B. Motion for Discovery

Plaintiffs ask this Court to allow discovery outside of the

administrative record. However, as Plaintiffs provide no

evidence, other than bare assertions of possible misconduct,

with which this Court can decide whether supplementation of the

record is necessary, the motion for discovery beyond the

administrative record must be denied.

_____________________

1 Although not raised by either party, the Court notes that

Plaintiffs were not required to exhaust their administrative

remedies because neither the statutes nor regulations require

exhaustion before pursuing judicial review. See Conservation

Force v. Salazar, 919 F. Supp. 2d 85, 89 (D.D.C. 2013) (“Under

the APA, administrative exhaustion is required when it is

mandated by statute or agency rule.” (citing Darby v. Cisneros,

509 U.S. 137, 146 (1993))).

 

As a general matter, courts confine their review

to the administrative record, which includes all

materials compiled by the agency that were before the

agency at the time the decision was made. Several

reasons justify supplementation of the administrative

record, such as when an agency deliberately or

negligently excludes certain documents, or when the

court needs certain background information in order to

determine whether the agency considered all of the

relevant factors. Courts have suggested that in order

to justify supplementation, a plaintiff must make a

strong showing of bad faith.

 

Sierra Club v. Slater, 120 F.3d 623, 628 (6th Cir. 1997)

(internal quotation marks omitted) (citations omitted).

Plaintiffs simply have not put forth the evidence required

for the Court to allow discovery beyond the administrative

record. Plaintiffs’ bald assertions and questions about the

possibility of bad faith on the part of the NPS is simply not

enough for the Court to allow discovery beyond the

administrative record. See, e.g., [D.E. 26 at 3] (“How does the

Court know what has been deleted from and/or added to the

federal administrative record maintained by the government,

particularly in the time frame the issues arose?”). If, after

review of the administrative record, Plaintiffs have evidence

with which they can put forth a good faith claim to justify

supplementation, Plaintiffs may renew their motion.

IV. Conclusion

Accordingly, for the foregoing reasons, IT IS ORDERED:

     1) that Defendant’s Motion to Dismiss [D.E. 14] be, and

the same hereby is, GRANTED IN PART, in that Plaintiffs do not

have standing to challenge the imposition of an online

reservation system, and DENIED IN PART, in that Plaintiffs may

proceed on their claims challenging the imposition of the

backpacker permit camping fee and decision to grant a license;

(2) that Plaintiff’s Motion for Discovery [D.E. 25] be,

and the same hereby is, DENIED WITHOUT PREJUDICE.

This the 24th day of March, 2014.

Sitting by designation:

 

Signed By:

Joseph M. Hood JMH

Senior U.S. District Judge

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