Motion to vacate Fee Brief filed by Myers part 2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

SOUTHERN FOREST WATCH, INC., )

et al., )

Plaintiffs, )

)

v. ) CIV NO. 3:13-cv-116

)

SECRETARY OF THE INTERIOR )

SALLY JEWELL, et al., )

)

Defendants. )

PLAINTIFF’S BRIEF IN SUPPORT OF

MOTION TO VACATE ADMINISTRATIVE DECISION TO

IMPLEMENT BACKCOUNTRY CAMPING FEE

Comes plaintiff, Southern Forest Watch, Inc. (hereafter “plaintiff”), through counsel, and shows the implementation of the backpacker camping fee (hereafter “fee”) inside the Great Smoky Mountains National Park (hereafter “Smoky Mountains” or “park”) is illegal.

I. Synopsis

A. This fee is not allowed by law.

36 C.F.R. § 71.9, Footnote 1, specifically forbids defendants from charging this fee.

16 U.S.C.A.§ 6802(d)(3)(E), provides defendants shall not charge a recreation fee on “any part” of the park unless entrance fees are charged; therefore, this fee is likewise forbidden.

Defendants’ engaged in providing incorrect information and facts to the public which violated 16 U.S.C. § 1a-1, and 16 U.S.C. § 6803(C).

The Administrative Record reflects that the decision to implement this new fee was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law in violation of 5 U.S.C. § 706(2)(A); in excess of statutory jurisdiction, authority, or limitations, or short of statutory right in violation of 5 U.S.C. § 706(2)(C); and without observance of procedure required by law in violation of 5 U.S.C. § 706(2)(D).

This fee is an impairment of use of the Smoky Mountains in violation of 16 U.S.C. § 1.

B. Alternatively, backcountry camping is not limited to designated campsites.

16 U.S.C.A § 6802(d)(4),provides plaintiffs are not limited to designated campsites and are free to backpack in areas beyond those designated for collection of this fee.

C. Licensing or Permission to the Political Elite

Defendants are illegally providing exclusive access and ownership of land within the boundaries of the Smoky Mountains to political elites in violation of 16 U.S.C. § 3.

D. Discovery

This Court can order discovery, or alternatively, vacate the decision and remand for

proper administrative adjudication and allowing plaintiff Freedom of Information Act searches.

II. Facts

A. 1916 through 2010

Defendant National Park Service was created within the existing United States Department of the Interior in 1916, to “promote and regulate” national parks,

...which purpose is to conserve the scenery and 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...” See 16 U.S.C. § 1.

Defendants were also required to conduct their duties:

...in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established...” See 16 U.S.C. § 1a-1.

The park was first legally established by law on or about May 22, 1926, and “completed for park administration” on June 15, 1934. See 16 U.S.C. §§ 403, and 403g.

The park was the first created from land not previously owned by the federal government.

In 1951, the State of Tennessee conveyed its roadways within the park boundaries to the United States of America subject to a restriction and reservation to the State that no “toll or license fee” could ever be imposed for using those highways. [Doc39-1; PageID#376]

The Smoky Mountains previously had backcountry Rangers, and due to budget shortfalls the program was dissolved. [Doc39-1; PageID#483,484]

There are approximately 800 miles of trails and, excluding about a dozen shelters, approximately 100 undeveloped, backcountry campsites in the park. [Doc.24;PageID#199]

For almost a century, citizens, except for paying their taxes, have camped at those backcountry campsites and shelters for free. [Doc24;PageID#201]

Backcountry camping peaked with 115,300 “camper nights” in 1976, and generally declined for 10 years. “Camper nights” again peaked in 1997 with 106,244, and has been declining since. During 2010 there were 72,214 camper nights. [Doc39-2;PageID#585]

Campsites are not crowded. For a 5 year period preceding 2011, there were, on average, 13,000 permits per year issued for 33,000 people per year. Total “camper nights,” were 73,000 per year. That is approximately 2 people per night per campsite.[Doc39-1; PageID#409]

Backcountry campsites have no drinking water, access road, refuse containers, toilet facilities and reasonable visitor protection. While rarely completely level, every backcountry campsites has tent spaces. (Some shelters have toilet facilities.) Some, but not all, have recently been provided simple devices (metal fire rings) for containing a campfire. Historically, every campsite had rock fire rings. [Doc-24;PageID#199,200]

For 80% of those backcountry campsites, no reservations were required. Campers filled out and deposited forms into kiosks, and hiked to the campsite.[Doc-24; PageID#199]

The Administrative Record is disputed whether or not these 80% campsites were ever trashed. [Doc39-1; PageID#387-390; Doc39-2;PageID#485,496;Doc39-3,PageID#634,666,669, Doc39-4;PageID#695,852;Doc39-6;PageID#976,981]. The Administrative Record reflects for the most part that these 80% campsites were never overcrowded. [Doc39-4;PageID#731,817,868, 861,862,864,865,902,906,907,910,923;Doc39-6;PageID#965,1009,1014]

Because 20% of the campsites were close to roadways, easily accessible and could become overcrowded occasionally, reservations by phone or in person were required for camping in those campsites and shelters. [Doc-24;PageID#200]

The Record is disputed if these 20% campsites were ever trashed [Doc39-1; PageID#387-390;Doc39-2;PageID#485,496;Doc39-3;PageID#634,666,669;Doc39-4;PageID# 695,852,906, 907,910;DOc39-6;PageID#976,981,1009]. It is undisputed that shelters can become crowded from “thru-hikers.” These 20% campsites can at times become overcrowded. [Doc39-4; Page ID# 731,817,868,861,862,864,865,884,887,902,906,907,910,923; Doc39-6;PageID#965,1009, 1014]

As of May 2010, defendants utilized a “Wilderness Trakker software program by Glosoft” to keep reservations for those 20% busy backcountry campsites and shelters. However, the software was “a bit long in the tooth.” [Doc39-1; PageID# 384-386; Doc39-2;PageID#507]

Defendants received seven emails over two years with complaints about the amount of time and effort to get a backcountry reservation and/or acquire backcountry planning information. [Doc39-1; PageID#377-383]

That is 7 out of 66,000.[Doc39-1;PageID#409] Those are not“consistent” complaints.

B. 2011 and 2012

1. New Reservation System/Backpacker Camping Fee

During or about January 2011, defendants set about to replace the old reservation system and expand its coverage to include 100% of the campsites. [Doc39-1; PageID#391-395,398]

The proceeds from new backpacker camping fee were to only pay for the new reservation system. No further or otherwise. It was understood, intended, planned, represented and authorized internally that funds raised by the backcountry camping fee would only cover the costs of the reservation system. Nothing else could or would be funded. [Doc39-1;PageID#394, 397,402,403,405,415;Doc39-2;PageID#510,530-537,533]

...Like BICY, GRSM is requesting to establish a fee to cover the costs of putting their backcountry permits on the NRRS...” [Doc39-1; PageID#402]

...There will be no increase in overall annual revenue as the result of this proposed increase as this will simply be a new fee to cover the recreation.gov service fees...” (Emphasis supplied.) [Doc39-1; PageID#403]

The exclusive authority for this fee was the Federal Lands Recreation Enhancement Act of 2004, 16 U.S.C. § 6801, et.seq., (hereafter “FLREA”). [Doc32,PageID#320;Doc39-1; PageID #399,417,419-423;Doc39-2;PageID#508,509,529-535; 532,540,620]

2. “Word Smithed” [Doc39-2;PageID#600]

Pursuant to 16 U.S.C. § 6803(C), defendants began public engagement pursuant to “Fee Guidelines.” The “Intention” included “...2. Notify the public about fee rates and how recreation fee revenues are used...” (Emphasis supplied.) [Doc39-1;Page ID#419-423]

The superintendent was to contact constituents about the fee. [Doc39-2;PageID#497]

a. “Restructuring Proposal” Number 1 [Doc39-1; PageID#414-416]

...Backcountry Office & Permit System Restructuring Proposal June 2011

Issues of Concern Regarding Backcountry Reservations & Permitting

1. The park consistently receives visitor complaints about the amount of time and effort it takes to get a backcountry reservation and/or acquire backcountry planning information. This is a reflection of insufficient staffing for the volume of customers requiring reservations and/or trip planning...” (Emphasis supplied.) [Doc39-1; PageID#414]

Defendants had only received seven emails over two years. [Doc39-1; PageID#377-383]

(Based upon Chief Ranger Jordan’s affidavit [Doc36;PageID# 356,357,358], there were no other complaints about reservation and/or planning. Counsel’s post hoc rationalization in paragraph 60 [Doc35,PageID# 351] of the answer about oral and discarded complaints should be disregarded pursuant to Alpharma, Inc., v. Leavitt, 460 F.3d 1,6 (D.C. Cir., 2006).)

It is to be noted this first version of the “Restructuring Proposal”, under “Other Benefits,” says nothing about funding backcountry rangers. [Doc39-1; PageID# 414,415,416]

b. Idea To Fund 1 then 2 Backcountry Rangers

The first suggestion of funding backcountry Rangers is on an altered “Reservation System Civic Engagement Plan” under “Internal Project Statement.” “Other” is added in a green font:

...3. How we want the project to be perceived by the public: An improvement in customer service that will make obtaining backcountry reservations quick, easy and convenient for them, as well as increase their access to Backcountry Office personnel for backcountry trip planning information. Other?...” [Doc39-1; Page ID#424]

followed by the new language again in a green font:

...Key Messages to Stakeholders

1. An online reservation system will dramatically improve the public’s ability to obtain backcountry reservations and trip planning information quickly, easily and conveniently (24/7 reservation capability).

2. Customers will have increased access to Backcountry Office personnel for trip planning.

3. Effects of more rangers in BC

4. Fee structure and how fees will be used...” [Doc39-1; Page ID#424]

No one’s name is attached to these alterations.

c. Restructuring Proposal Number 2 [Doc39-1; PageID#414, 427-429]

The first “...Restructuring Proposal...” above has now been rewritten adding one backcountry Ranger as a “Benefit.”

Backcountry Office & Permit System Restructuring Proposal July 2011

Issues of Concern Regarding Backcountry Reservations & Permitting

1. The park consistently receives complaints about the amount of time it takes to get a backcountry reservation. Customers frequently report calling for days before they can reach someone. This is a reflection of insufficient staffing and telephone infrastructure currently assigned to the function...

...Other Benefits...

...7. An LE position would increase park presence in the backcountry and improve permit and reservation compliance...” (Emphasis supplied.) [Doc39-1; PageID#414, 427-429]

d. Restructuring Proposal Number 3 [Doc39-1; PageID# 414,427-429,434,435]

The next rewrite now states the fee would be used to fund 2 backcountry rangers.

GRSM Employee Briefing Paper

Backcountry Office & Permit System Restructuring Proposal

July 15, 2011

...Cost Recovery

The Park would collect fees to cover the cost of making reservations and issue permits, and to fund backcountry office staffing and backcountry ranger positions. A GRSM backcountry staffing scenario, similar to those in other parks, would include at least 2 Visitor Use Assistants for the Backcountry Office and at least 2 seasonal commissioned Rangers to patrol the backcountry...” [Doc39-1; PageID# 414,427-429,434,435]

e. Restructuring Proposal Number 4 [Doc39-2;PageID#499-503]

The next version, among other things, states:

“...Background and Scope of Problem...”

...The park also frequently receives feedback from the public that they desire to see more Rangers in the backcountry to address problems such as dogs on trails, permit and camping violations. This includes overcrowding of backcountry campsites by non-permitted campers. A greater National Park Service presence is also desired in the Backcountry Information Office to provide trip planning services...”

...Non-reserved sites currently comprise over half the park’s backcountry campsite inventory. Because they are non-reserved, capacities are frequently exceeded, which results in food storage violations, increased wildlife encounters and the need to close campsites to protect visitors and wildlife...” (Emphasis supplied.)

...2. Create a cost recover fee structure for reservations that will generate revenue to cover both the contractor cost of the reservation system and support an increased National Park Service presence in the Backcountry Information Office and in the park’s backcountry...”

...Similarly, beyond providing access to a more convenient reservation/permitting service, Great Smoky Mountains National Park proposes using these fees to increase ranger presence in the backcountry and improve customer access to trip planning services through the Backcountry Information Office...”

...By placing all sites on the reservation system and having an increased ranger presence in the backcountry, negative impacts to both the natural environment and to the visitor experience from overcrowding and other conflicts will be reduced...” (Emphasis supplied.) [Doc39-2;PageID#499]

The highlighted language is not correct. [Doc39-1; PageID#402,403]

f. July 29, 2011, Press Release *

Friday July 29, 2011

GSMNP news release

Managers at the GSMNP are considering some changes in the process by which backpackers make reservations for overnight camping at the Park’s nearly 100 backcountry sites and shelters. The proposed changes, which would update the reservation procedure as well as increasing Ranger presence in the Park’s 800 miles of trails, would be covered by a minimal user fee. No fees are being contemplated for day hiking...” (Emphasis supplied.) [Doc39-2;PageID#501]

...Once backpackers do obtain their reservations and arrive at their campsites, they often find the area filled by individuals without permits. In addition site capacities are frequently exceeded, which results in food storage violations, increased wildlife encounters and the need to close campsites to protect visitors and wildlife. Lack of staff in the backcountry severely limits the Park’s ability to resolve these issues...

...In addition, the Park would hire additional Rangers who would exclusively patrol the backcountry to improve compliance with Park regulations as well as helping to curb plant and wildlife poaching and respond more quickly to visitor emergencies...

...Park Superintendent Dale Ditmanson said ‘We feel that the proposed changes offer better customer service to backpackers, as well as reducing impacts to Park resources. In order to implement these changes we are considering several fee structures that would cover both the reservation contractor’s fee and the cost of field Rangers and staff at the Backcountry Information Center...” [Doc39-2;PageID#502]

(*There is a July 27, 2011, GSMNP pronouncement that was originally posted on defendants’ website that appears to have been “scrubbed” from the internet. See Exhibit 1.)

g. August 8, 2011, Press Release

GSMNP News Release August 8, 2011...

...Open Houses to Discuss...

Park managers are proposing changes to the system by which backpackers make reservations for the use of the Park’s remote campsites and shelters and they also plan to increase the presence of Rangers in the backcountry. If implemented, the changes will include charging a reservation fee. No fees are being contemplated for day hiking. Details of the proposal may be found at the Park’s website: http://www.nps.gov/grsm/parkmgmt/indeix.htm...” (Emphasis supplied.) [Doc39-2;PageID#503]

h. Reservation System Proposal Open House

Either 35 or 69 people attended the open house at Ocanaluftee on or about August 16, 2011. [Doc39-2;PageID#504-506,536]

Likewise at the Gatlinburg open house, “45 citizens” attended while 69 signed in.[Doc39-2;PageID#502-506;536]

Defendants again told the public their proposal for the backcountry camping fee and reservation system were “...primarily in response to customer feedback...” and one reason for the proposal was “...4. Public desire for more Rangers and improved conditions in the backcountry...” [Doc39-2;PageID#507]

Actually, the new reservation system was deemed necessary in anticipation of the old reservation system software crashing. There is not one word about customer feedback. As a matter of fact, it was the software developer himself, not customer feedback, that instigated the alert. Plus, “...the program has functioned as intended and has met park needs...” There was nothing for the “customers” to complain about. It worked! [Doc39-1; PageID# 384-386]

Additionally, the only time there was as public desire for more backcountry Rangers was after defendants suggested the fee would pay for them.

3. Elected Political Leaders

Defendants summarized its public engagement.

Summary of GRSM Civil Engagement Process and Outcome

...Public Scoping Process

During the weeks of July 25th and August 1st a detailed briefing of the fee proposal, including instructions for submitting comments, was widely distributed to all potentially interested park partners and other NGO’s, CUA holders, local Congressional delegations, and state and local elected representatives and government officials. This brief was also posted by a recipient onto a popular local public blog site.

Phone calls were made to the delegations, CUA holders, partners and local officials...

...●Numerous media interviews were granted with television, radio, internet, and print medial during Late July and August...”

Outcome of Public Scoping

Feedback of Congressional Delegation and Nearby Federal, State & County Officials: No written comments were received, though verbal comments were general positive with the except of the Swain County NC commissioners (1 of 7 counties neighboring the park) who were against any backcountry camping fees in principle...” [Doc39-2;PageID#536,537]

First, written comments were received from Swain County, North Carolina. [Doc39-3; PageID#640;Doc39-4;PageID#809;Doc39-6;PageID#1013] Additionally, Swain County, North Carolina, passed a resolution in opposition of this fee. See Exhibit 2.

Secondly, defendants admittedly did not contact any Blount County Commissioners in any manner, nor provide them with any detailed briefing of the fee proposal, including instructions for submitting comments, prior to its implementation. Defendants even failed to call them on the telephone. The superintendent of the Smoky Mountains admitted he did not. See Affidavit of Ted Austin Burkhalter, Jr., attached hereto as Exhibit 3.

Third, it is also incorrect to belittle and discredit Swain County, North Carolina, as the only county of seven counties neighboring the park to oppose the fee when defendant never contacted Blount County in the first place.

Knox County was against the fee. (See Exhibit 4)

The State of Tennessee House of Representatives was against the fee. (See Exhibit 5)

There was also negative feedback from a Member of Congress [Doc39-2;PageID#525-527] and to a Member of Congress. [Doc39-4;PageID#882,919;Doc39-6;PageID#1020]

4. Public Opinion

A vast majority was against the fee.

a. Individual Written Comments

There were purportedly 230 “Total Public Written Comments Received” from individuals. [Doc39-2;PageID#515-518,519]

Apparently 75 favored of the fee. (Some appear repetitive, but are still included.)

[Doc39-3;PageID#633,634,635,645,647,648,649,650,652,656,657,663,664; Doc39-4;PageID# 672,678,679,681,682,683,684,685,692,693,695,696,698,700,703,705,707,709,711,713,715,724, 725,729,730,743,750,754,758,759,760,765,776,785,793,797,800,806,814,817,821,831,845,847, 848,856,860,861,868,874,885,886,889,895,920,921,937,938,939; Doc39-5;Page ID#942;Doc39-6; PageID#963;982,989,992,993,1007,1008]

43 of those 75 favorably cited the fee as funding backcountry Rangers or backcountry enforcement directly or by reference to the “proposal” as a reason for supporting the fee.

For instance, among others, Vesna Plankanis wrote “We are so happy to finally have backcountry rangers!” [Doc39-3;PageID#648] Eric Plankanis wrote: “It is great that the park is working on funding the protection of the backcountry...” [Doc39-3;PageID#649] Samantha Ray wrote:

...Furthermore, I fully support the proposal in that it would allow for backcountry rangers to be in the areas they’re needed most. This is the most visited Nat’l Park; it stands to reason there should be back-country rangers.” [Doc39-3;PageID#652]

Without counting those individuals’ comments, 32 were in favor of the fee.

[Doc39-3;PageID 634,635,645,647,648,649,652,664, Doc39-4;PageID#683,684,703,705,707, 709,715,724,725,743,750,760,765,785,793,797,817,821,845,848,868,886,889,895,920,939;

Doc39-5;Page ID#942;ID#942;Doc39-6; PageID# 942,963,982,989,992,993,1007,1008,1018]

An anonymous comment was “...Please enforce it or don’t do it...”[Doc39-3;PageID#651] There were 181 written individuals’ comments opposing the fee. [Doc39-3;PageID#

632,636,637,638,639,640,641,644,646,653,654,655,658,660,661,666,668,669;Doc39-4,PageID# 673,675,676;687,690,691,697,699,701,702,704,706,710,712,716,718,719,720,721,723,726,727,728,731,732,734,736,737,739,740,742,744,745,746,747,748,749,751,752,753,755,757,762,764,

766,767,768,769,770,771,772,774,775,777,778,779,778,781,783,784,787,788,789,790,791,792,

795,798,799,803,804,805,807,808,809,810,811,812,813,815,816,818,819,822,823,824,825,826,

828,829,830,832,834,835,836,837,838,839,840,841,842,844,852,854,855,857,859,862,863,865,

867,869,870,872, 873,875,876,880,882,883,888,890-894,900,902,904,905,906,907,909,910,917, 918,919,922,923,930,941;Doc39-6;PageID#961,964,965,967,968,969,972,974,979,983,984,985, 986,987,988,990,997,998,999,1000,1004,1005,1009,1011,1013]

b. Petitions

There were 2 petitions in which 705 individuals opposed the fee. (There are signatories that also wrote emails) [Doc39-5;PageID# 944 -958;Doc39-6,1023-1061]

There were no petitions in favor of the fee.

c. Associations’ Written Comments

The Tennessee Izaak Walton League summed up their support for the fee as follows:

...However, we only support this fee program if the NPS is aggressive in using the fees to enforce backcountry rules and regulations. If a backpacking party pays $20.00 to reserve a backcountry campsite, that party should not go in to find a bunch of folks on foot or horseback who have not reserved the site. This is currently commonplace in the park and it is totally unacceptable.

The backcountry of Great Smoky Mountains National Park is a very special place. Visitors should expect to have a quality wilderness experience in the park’s backcountry. A strong fee program with aggressive backcountry patrols and enforcement will go a long way in achieving this. We would also propose that the fees help support backcountry patrols to enforce the rules against horse parties using trails that are supposed to be for hiker use only...” (Emphasis supplied.) [Doc-39-6;PageID#1018]

This association was misinformed.

Most other associations were against the fee. Plaintiff and its members are against the fee.

The 900 plus members of the North Shore Road Association opposed the fee. [Doc39-3;PageID#641]

The 1,500 members of the Appalachian Long Distance Hiking Association opposed the fee. [Doc39-2;PageID# 521,522; Doc39-6;PageID#977]

The Southern Appalachian Back Country Horsemen opposed the fee. [Doc39-6;PageID# 1019,1020]

Appalachian Trail Conservancy opposed the fee. [Doc39-6;PageID#1021,1064]

The 400 members of the Benton MacKaye Trail Association implied with their concerns of the fee that they were against it. [Doc39-6;PageID#1014-1017]

d. Outcome of Civil Engagement

“● Nature of Feedback: Concerns generally fell within one or more of several areas:

Fee: While some respondents supported a fee to support backcountry operations, the majority were opposed to the concept of paying a new fee at the Smokies. Sometimes this was based on the inaccurate perception that charging a fee was inconsistent with the founding principles when the park was established...”

...○ Reservation System:...Other opponents disagreed with the premise altogether that overcrowding of campsites occur and that any reservation system is necessary at all...”

...○ Desired outcome if proposal is implemented: Some respondents expressed distrust that funds would be used as proposed, while others were supportive of the fee as long as used as indicated...”

Extent of Controversy...”

...○ After an initial flurry of comments on several blog sites, of which there was a mix of positive and negative comments, there remains one active blog where three opponents to the proposal are attempting to maximize any negative feedback in order to defeat the proposal. Misinformation is one tactic employed...” (Emphasis supplied.) [Doc39-2;PageID#623,624]

There is an appearance of the pot calling the kettle black.

Defendants made the following findings:

...Feedback of General Public: Of the approximate 33,000 backcountry campers expected to benefit or be impacted by the proposal, a total of 230 written comments and two petitions were received from the general public. Of the responders, more expressed specific concerns than support for the proposal. However, a significant number of responses received either showed support for the proposal or offered substantive comments toward improving it. Based upon discussions at the open houses, reviews of the local blogs, and statements contained within the written comments, it appears that most respondents are likely to be relative local, frequent overnight users, who are well familiar with the park’s backcountry. As less represented stakeholder group appears to be the less frequent backcountry users who travel from outside the area. These stakeholders, though substantial in number, are less likely to have learned of the proposal, are less familiar with the park, and as such, would be expected to be the major benefactors of improved backcountry trip planning services, an important component of this proposal.

Two petitions were received expressing opposition to the proposal. However, it is unclear for one petition what information signers received about the proposal other than the possibility of a fee. A second petition, coordinated online, lists as its most important tenant the misperception that the Park cannot collect an expanded amenity fee for backcountry camping due to a belief that there exists a deed restriction that prohibits the park from charging an entrance fee. There is no such limitation nor is there any other legal impediment to implementing a new user fee...”

...Management position: After evaluating all comments received, park management feels that the benefits from the services proposed outweigh the concerns expressed over imposing a new fee. It appears that most issues of concern that go beyond the philosophical issue of imposing any fee can be satisfactorily addressed in the design of a reservation system and its subsequent implementation. The Park has learned much by engaging the public in this process and that many real concerns and constructive recommendations came out of it. The Park plans to work closely with partners to ensure continued input into the evolution of the proposal if this Fee Plan is approved...” [Doc39-2;PageID#564]

5. Approval

Defendants approved this fee in its November 22, 2011 Memorandum F5419 (5072).

This formal approval is provided in response to the Director’s January 31, 2011, memo requiring Regional Director’s approval of implementation plans for parks that plan on increasing or establishing new fees under the Federal Lands Recreation Enhancement Act (FLREA).

The Southeast Region is recommending that ...GRSM... be granted final approval to proceed with the implementation of increasing fees...

...GRSM is proposing to institute a new fee for backcountry camping and shelter reservation and use. The park currently does not charge for these reservations and is proposing to begin charging a fee to cover the service charges and related costs of including these sites on the National Recreation Reservation Services (NRRS). Having these sites on the NRRS will improve customer service for visitors wishing to reserve these sites as they will now have 24/7 access to make and/or change reservations rather than having to call the park during normal business hours...” (Emphasis supplied.) [Doc39-2;PageID#540]

This approval memorandum says nothing about funding backcountry Rangers.

Defendants’ implementation plan was attached to this approval memorandum.

...Each park has identified the reason for their request and have included projections for the additional revenue expected and proposed uses for this new revenue. Both park plans have been reviewed and approved by the Southeast Region. Each park will implement the increased fee in January 2012 or later...” [Doc39-2;PageID#540-549]

Defendants acknowledge a majority oppose the fee. [Doc39-2;PageID# 555]

D. Administrative Record

Clay Jordan’s swore this was a “complete Administrative Record.” [Doc36;PageID#357]

A “Federal Register Process” was initiated because this was a “New Fee Area.” [Doc39-2;PageID#533] That appears to be missing from the record.

The “Director’s” memo is referenced and absent from the record. [Doc39-2;PageID#540]

“Numerous media interviews [which] were granted with television, radio, internet and print media during late July and August.” [Doc39-2;PageID#536,621] Where are those requests, interviews, transcripts, notes, etc? That appears to be missing from the record.

Feedback from political officials included “...though verbal comments were generally positive...” [Doc39-2;PageID# 536] Who? What? Where? When? Etc. That appears to be missing from the record.

Also, in paragraph 60 of defendants’ answer to the complaint, there is referenced “...many verbal complaints were received by Park staff regarding overcrowding at some campsites...” and “...written complaints that had not been archived or could not otherwise be found...” Why is that information not in the Administrative Record? That appears to be missing from the record.

There are emails that have in their “History” section the following: “This message has been replied to.” [Doc39-1;Page#ID437,442,447,450,456,463,470,476,477,485,487,491; Doc39-4;PageID#672,673] Where are these replies? That appears to be missing from the record.

There is an email exchange between Melissa Cobern and another governmental employee on a personal email account, “jqhiker37@aol.com” discussing the upcoming, unreleased, new fee proposal between. [Doc39-4;PageID#672] Why is that? What other governmental business has been done on personal email accounts? This email reflects “This message has been replied to.” Was it replied to? Where is that reply? That appears to be missing from the record.

Further, the superintendent stated in an email “I sent Sutton a thanks note.” (Doc39-4;PageID# 845) Why? That appears to be missing from the record.

There was a meeting with local backpackers regarding backcountry fee proposal May 31, 2012, at the GRSM Headquarters Conference Room in which notes were taken by Melissa Cobern. Where are those meeting notes? That appears to be missing from the record.

Southern Forest Watch, Inc., sent a letter to defendants prior to filing suit dated August 28, 2012, pursuant to law, and that letter is absent from the record.

One email states: “...did you see Clayton suggested calling his cell?...” [Doc39-2;PageID# 552] Were there notes taken of phone conversations? Was there anything confirming the conversation in writing? That appears to be missing from the record.

There is nothing in the Administrative Record about moving Ace Gap Trail or conveyances to Governor Sundquist. Was there anything in the Federal Register about this conveyance? These things appear to be missing from the record.

Defendants published park use statistics. While not in this Record, during 2012, when the fee was implemented, there were 84,236 backcountry camping visits. During 2013, there were 62,863 backcountry camping visits. That appears to be missing from the record.

Why do the principal players of this fee imposition, Superintendent Ditmanson, Deputy Fitzgerald, Spokesman Miller and “backcountry specialist” Coburn, all no longer work for the Great Smoky Mountains National Park? That appears to be missing from the record.

E License

a. Governor Sundquist (as identified in defendants’ answer)

In paragraph 67 of defendants’ answer, there is an admission that sometime before 2004, Ace Gap Trail was removed or “legally located” from former Tennessee Governor Don Sundquist’s “privately owned tract of land.” [Doc35;PageID#352]

The U.S. Government has been in possession of this portion of his or his predecessors in interest privately owned tract of land over which Ace Gap Trail has passed for decades. Inverse condemnation has a statute of limitations.

Plaintiff refers to Mark Cooke’s affidavit filed contemporaneously herewith as if set forth herein verbatim. See Exhibit 6. Apparently, park boundary lines are fluid.

b. Blackberry Farms (as identified in defendants’ answer)

In paragraphs 71 and 72 of defendants answer, defendants admit that Blackberry Farms erected trail signs for Blackberry Farms’ own trail system within the Park boundaries which have “since been removed,” apparently Defendants also admit that until April 2013 that this same portion of the park had been closed to the general public. [Doc35;PageID#352]

Recently, someone has erected a new Blackberry Farms’ sign announcing the end of the trail. There has been a Park boundary sign removed from the same vicinity. See Exhibit 6.

II. Law and Argument

This Court has found plaintiff has standing. [Doc32,PageID#332]

A. The Law Does Not Allow This Backpacker Tax

36 CFR Chapter I, is titled “NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR.” Chapter I applies specifically and entirely to the National Park Service.

Defendants’ other agencies or bureaus have their own distinct CFR sections.

36 CFR 71.9, is titled “Establishment of recreation use fees,” and deals with another

allowable fee to be charged by the National Park Service, “recreation fees.”

(a) Recreation use fees shall be established by all outdoor recreation administering agencies of the Department of the Interior in accordance with the following criteria:

(1) The direct and indirect cost to the government,

(2) The benefit to the recipient,

(3) The public policy or interest served,

(4) The comparable recreation fees charged by other Federal agencies, non-Federal public agencies and the private sector located within the service area of the management unit at which the fee is charged,

(5) The economic and administrative feasibility of fee collection, and

(6) Other pertinent factors.

(b) With the approval of the Secretary of the Interior recreation use fees may be established for other types of facilities in addition to those which are listed below.

(c) Types of recreation facilities for which use fees may be charged:

Tent, trailer and recreation vehicle sites 1

Footnote(s):

1 Provided, That in no event shall there be a charge for the use of any campsite and adjacent related facilities unless the campground in which the site is located has all of the following: Tent or trailer spaces, drinking water, access road, refuse containers, toilet facilities, personal collection of the fee by an employee or agent of the bureau operating the facility, reasonable visitor protection, and simple devices for containing a campfire (where campfires are permitted).” (Emphasis supplied.)

Backcountry campsites in the Smoky Mountains have no drinking water, access road,

refuse containers, toilet facilities and reasonable visitor protection. [Doc-24;PageID#199,200]

Apparently from this regulation, defendants cannot charge a fee for backcountry camping the Great Smoky Mountains National Park.

16 U.S. Code § 6802, is titled “Recreation fee authority,” and it provides:

(a) Authority of Secretary

... Secretary may establish, modify, charge, and collect recreation fees at Federal recreational lands and waters as provided for in this section...

...(d) Limitations on recreation fees...

...(3) Prohibition on fees for certain persons or places

The Secretary shall not charge an entrance fee or standard amenity recreation fee for the following:...

...(E) Entrance on other routes into the Great Smoky Mountains National Park or any part thereof unless fees are charged for entrance into that park on main highways and thoroughfares.

(F) Entrance on units of the National Park System containing deed restrictions on charging fees...”

Defendants shall not charge a recreation fee on “any part” of the Smoky Mountains unless entrance fees are charged. Entrance fees cannot be charged [Doc39-1; PageID#376]; therefore, apparently from this regulation, defendants cannot charge a fee for backcountry camping in the Great Smoky Mountains National Park.

Providing the public with incorrect information precluded appropriate public participation as required by 16 U.S.C. §6803. Defendants made incorrect statements that campsites were overrun, crowded and trashed; that defendants received “consistent” complaints about the old reservation system; that proceeds from this fee would fund first one then two backcountry Rangers to patrol the backcountry; that the only county opposing this fee was Swain County, North Carolina; that defendants had contacted Blount County Commission with a detailed briefing of the fee proposal, including instructions for submitting comments prior to its implementation; implied that plaintiffs employed misinformation as a tactic to fight the fee; and that issues of concern could be satisfactorily addressed in the design of the new reservation system and its subsequent implementation, among other things.

Also, the use of misinformation to corral support for this fee violates defendants’ 16 U.S.C. § 1a-1, obligation to administer the Smoky Mountains “in light of the high public value and integrity of the National Park System.”

16 U.S.C. § 6802(d)(4), provides:

(4) NO RESTRICTION ON RECREATION OPPORTUNITIES

Nothing in this chapter shall limit the use of recreation opportunities only to areas designated for collection of recreation fees.”

To the extent the court rules the fee is legal, plaintiffs alternatively assert a plain reading of this statute allows backcountry camping outside and beyond designated campsites. While there is a regulation, 36 C.F.R. § 2.10, in which backcountry campers are required to exclusively camp in designated campsites, this statute is unambiguous and passed by Congress.

A 25% drop in backcountry camping since full implementation of this fee is dramatic and evidence that this fee has impaired this generation’s use of the Smoky Mountains in violation of 16 U.S.C. § 1, especially when there is no evidence in this Administrative Record that limiting backcountry camping could somehow preserve or “conserve” the Smoky Mountains.

§5 U.S.C. § 706, provides, among other things:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;...”

Defendants made a managerial decision to replace an obsolete, but still functioning, reservation system; however, defendants put forth different reasons for the decision to have a new reservation system. Defendants asserted there were “consistent” complaints about the old reservation system when there were none. Defendants asserted that campsites were overrun, crowded and trashed, when they were not. Defendants asserted that they had planned to charge this backcountry camping fee in order to raise money to pay for needed backcountry Rangers to save the Smoky Mountains, when they had not planned on hiring backcountry Rangers. The reasons put forth were incorrect and reveal a belief that the public would not be in favor of a fee for backcountry camping. This is arbitrary, capricious and an abuse of discretion.

Not only was the initial disinformation campaign arbitrary and capricious, defendants failed to follow proper procedure. Defendants did not properly allow the public to participate. Blount County and Swain Counties were also ignored. A vast majority of those participating in the process, who opposed this fee, were marginalized and ignored. Defendants do not have the opportunity, right or privilege to “go it their own way.” Public participation is a statutorily required procedure. In Chrysler Corporation v. Department of Transp., 472 F.2d 659 (6th Cir., 1972), the court requires, among other things, that “...the Agency must have complied with all applicable procedural requirements...”

Additionally, defendants’ rationalizations and explanations of public opinion against the fee were illogical, unreal and calculated to allow them to ignore a majority the public. To assert that the public’s issues of concern could be satisfactorily addressed in the design of the new reservation system and its subsequent implementation, among other things, is an arbitrary and capricious determination, an abuse of discretion and not in accordance with law. Defendant awkwardly translates the word “opposition” into “concern.” It was not reasoned decisionmaking.

In Coburn v. McHugh, 679 F.3d 924, (D.C. Cir., 2012), the court on page 934 holds:

...Indeed, the Board's decisions lack coherence and, thus, make it impossible for this court to determine whether the judgments of the Board survive arbitrary and capricious review under the APA. Therefore, the ABCMR decisions fail the test of ‘reasoned decisionmaking.’ See Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)...”

In Motor Vehicle Manufacturers Association of United States, Inc v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29, (1983), the court, on page 48, holds:

"...There are no findings and no analysis here to justify the choice made, no indication of the basis on which the [agency] exercised its expert discretion. We are not prepared to and the Administrative Procedure Act will not permit us to accept such . . . practice. . . . Expert discretion is the lifeblood of the administrative process, but 'unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.' New York v. United States, 342 U.S. 882, 884 [72 S.Ct. 152, 153, 96 L.Ed. 662] (dissenting opinion).’ (footnote omitted)...”

In Interstate Commerce Commission v. Transport Company Transport, Inc v. Transport Company, 368 U.S. 81,(1961), the court, on page 93 holds:

...We intimate no opinion on the merits, for it is the Commission, not the courts, that brings an expertise to bear on the problem, that makes the findings, and that grants or denies the applications. Yet that expertise is not sufficient by itself. Findings supported by substantial evidence are required. Public Service Comm'n v. United States, 356 U.S. 421, 427, 78 S.Ct. 796, 799, 2 L.Ed. 886; United States v. United States Smelting Co., 339 U.S. 186, 193, 70 S.Ct. 537, 542, 94 L.Ed. 750...” (Emphasis supplied.)

This administrative record does not provide substantial evidence supporting this new fee to camp in the Smoky Mountains backcountry.

Additionally, defendants were only authorized to charge a fee to pay for the reservation system, not hire and pay two backcountry Rangers. [Doc39-1;PageID#403]

Plaintiffs first respectfully urge the court to vacate this fee and declare the law forbids its existence. Alternatively, plaintiffs urge that the fee should be vacated and the matter remanded for appropriate administrative adjudication. See F.P.C. v. Transcon. Gas Pipe Line Corp. 423 U.S. 326, 331 (1976), and Commonwealth of Pa. v. U.S. HHS, (C.A.3d, 1996), 80 F.3d 796, 810

B. Licensing or Permission to the Political Elite

16 U.S.C. § 3, among other things, provides:

...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...”

The Government has possessed this property over which Ace Gap Trail has passed for decades. Defendants gave away property from within the borders of the Smoky Mountains.

If people of political import get something to which they are not entitled, ordinary citizens should get what they are entitled to and not be penalized.

Apparently, others bordering the Smoky Mountains are staking their claim to property within the borders of the Smoky Mountains also. See Exhibit 6.

C. Discovery

In Sierra Club v. Slater, 120 F.3d 623, (6th Cir. 1997), the court, on page 638, holds:

...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...” (Internal quotation marks omitted.) (Citations omitted.)

Plaintiff has pointed to factors that do more than suggest the administrative record was inadequate. Not only are records absent, persistent problems were swept “under the rug.”

The explanation of evidence stacked against the fee and decision to implement the fee is muddled. There are documents missing from the record. There is not any technical “knowhow” in charging a fee for camping on the ground that earns defendants any deference. Defendants failed to follow procedure, utilized incorrect information and broadcast incorrect information.

Plaintiff respectfully urges the incomplete Administrative Record allows this Court to order discovery in this case on all matters, or alternatively, vacate the decision to implement the fee and remand the proceedings back to defendants for proper administrative adjudication and allowing plaintiff Freedom of Information Act searches.

Respectfully submitted this 18th day of July, 2014.

s/J. Myers Morton BPR#: 013357

MORTON & MORTON, PLLC

Attorney for Plaintiffs

1518 N. Broadway

Knoxville, Tennessee, 37917

Telephone: (865) 523-2000

Facsimile: (865) 546-4860

myersmorton@comcast.net

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document has been furnished to William C. Killian and Loretta S. Harber, US Attorneys by the Court’s electronic system and email from the undersigned.

This 18th day of July, 2014. /s/ J. Myers Morton

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