Myer's Appeal to Sixth Circuit 6/29/15

[John Quillen]

Case Number 15-5413
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
___________________________________________
SOUTHERN FOREST WATCH, INC. et al.,
Plaintiffs-Appellants,
vs.
SECRETARY OF THE INTERIOR
SALLY JEWELL, et al.,
Defendants-Appellees.
____________________________________
Appeal From the United States District Court
For The Eastern District of Tennessee
Docket Number 3:13-cv-00116-TWP-HBG
____________________________________________
APPELLANTS’ BRIEF
J. Myers Morton
MORTON & MORTON, PLLC
One Morton Place
1518 N. Broadway
Knoxville, Tennessee 37917
[phone]
[e-mail]
Attorney for Appellant
ORAL ARGUMENT REQUESTED
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DISCLOSURE OF CORPORATE
AFFILIATIONS AND FINANCIAL INTEREST
1. Are Appellants Southern Forest Watch, Inc., John Walton Quillen, Robert
Earl Cameron and Gregory D. Bostick, a subsidiary or affiliate of a publicly
owned corporation? No.
2. Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? No.
ii
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT IN SUPPORT OF ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . 1
JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Agency Administrative Proceedings . . . . . . . . . . . . . . . . . . . . 3
a. Grant of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
b. Great Smoky Mountains National Park . . . . . . . . . . . . . . . . 4
c. Need For The BCF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
d. Public Participation/“Word Smithing” . . . . . . . . . . . . . . . . . 6
e. Open Houses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
f. Elected Political Leaders . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
g. Public Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
h. Outcome of Civic Engagement . . . . . . . . . . . . . . . . . . . . . . 15
i. Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
iii
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C. Disposition Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
B. Review of Agency Action/Standard of Review . . . . . . . . . . . . . . . . 21
C. Procedures For Civic Engagement/Public Participation . . . . . . . . . . 21
1. United States Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2. Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
D. The Administrative Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
E. Consideration of Information Outside The Record . . . . . . . . . . . . . 26
1. Deliberate Or Negligent Exclusion . . . . . . . . . . . . . . . . . . . . . . . 27
2. Background To Determine Factors Were Considered . . . . . . . . . 28
3. Background To Make Clear Conduct and Grounds . . . . . . . . . . . 30
Agency Pronouncements/Testimony Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SHORT CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
iv
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TABLE OF AUTHORITIES
CASES: Brief Page
Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980) . . . . . . . . . . . . . . . . . . 30
Bates v. Sponberg, 547 F.2d 325 (C.A.6 (Mich.), 1976) . . . . . . . . . . . . . . . . . . . 26
Camp v. Pitts 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) . . . . . . . . 36,37
Chrysler Corporation v. Department of Transp., 472 F.2d 659, 669,
(6th Cir., 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,26
Citizens to Preserve Overton Park vs. Volpe, (1971) 401 U.S. at 414-415,
91 S.Ct. 814, 28 L.Ed.2d 136. . . . . . . . . . . . . . . . . . . . . . . . . . . 25,26
James Madison Ltd. By Hecht v. Ludwig, 82 F.3d 1085, 1095
(D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,28
Latin Ams. for Soc. & Econ. Dev. v. Adm'r of the Fed. Highway Admin.,
756 F.3d 447, (6th Cir., 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Norwich Eaton Pharmaceuticals, Inc. v. Bowen, 808 F.2d 486
(C.A.6 (Ohio), 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197,
61 S.Ct. 845, 853, 85 L.Ed. 1271, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80,
63 S.Ct. 454, 87 L.Ed. 626 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir. 1997) . . . . . . . . . . . . . . . . 26,28
STATUTES:
5 U.S.C. § 552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,26
16 U.S.C. § 1(Repealed December 19, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
16 U.S.C. § 1a-1 (Repealed December 19, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . 3
16 U.S.C. § 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
16 U.S.C. § 403g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
16 U.S.C. §§ 6801 to -14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,4,6,17
16 U.S.C. § 6803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,22,23,28
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 2412. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
v
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CODE OF FEDERAL REGULATIONS
38 C.F.R. Part 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
FEDERAL RULES OF CIVIL PROCEDURE:
Federal Rule of Civil Procedure 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
FEDERAL RULE OF APPELLANT PROCEDURE
Federal Appellate Rule 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
OTHER AUTHORITY
Appendix L, Public Participation and Notification Guidelines . . . . . . . . . . 23,24,25
vi
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BEFORE THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SOUTHERN FOREST WATCH, INC., )
et al., )
Appellants, )
)
v. ) Case No. 15-5413
)
SECRETARY OF THE INTERIOR )
SALLY JEWELL, et al., )
)
Appellees. )
APPELLANTS’ BRIEF
Come appellants, John Quillen, Rob Earl Cameron, Gregg Bostick and
Southern Forest Watch, Inc. (hereafter “SFW”), through counsel, file this appellate
brief and respectfully show as follows:
STATEMENT IN SUPPORT OF ORAL ARGUMENT
SFW respectfully requests oral argument in this case due to the fact-driven
nature of the issue on appeal. Oral argument would allow the attorneys to address
all factual and/or legal questions.
JURISDICTIONAL STATEMENT
A. The Trial Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. § 1331 as a federal question.
B. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291, in
1
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reviewing all final decision of the District Courts.
C. SFW filed a notice of appeal on April 24, 2015 [Doc92;PageID
#1926] from the final judgment on March 30, 2015, dismissing the lawsuit on
summary judgment. [Doc89,PageID#1863-1921;Doc90,PageID# 1922]
D. This appeal is from a final order that disposes of all parties’ claims.
ISSUES PRESENTED
In summary, there are a statute, procedures, guidelines, detailed instructions,
rules and requirements that require civic engagement/public participation prior to
the Agency adopting a Back Country Camping tax or Back Country Fee (hereafter
“BCF”). Though the Agency claims it followed the law when it instituted the
BCF, the Agency failed to follow the statute, procedures, guidelines, detailed
instructions, rules and requirement.
On this appeal, SFW is asking for a finding that the appellees’ (hereafter
“Agency”) decision to charge this BCF is a wrong decision. SFW is asking this
Court to find that the Agency process in making the decision was illegal, vacate the
Agency decision and order the Agency to honestly participate in civic engagement/
public participation as required by law.
STATEMENT OF THE CASE
A. Nature Of The Case
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There are statutes, regulations, directives and procedures that call for civic
engagement/public participation before this federal agency has authority to adopt
the backcountry fee or tax (hereafter “BCF”). Effectively, there was no such
process or procedure in this case.
B. Course of Proceedings
1. Agency Administrative Proceedings
The following is a chronology leading up to this federal agency’s adoption
of the back country fee or tax (hereafter “BCF”).
a. Grant Of Authority
Appellee National Park Service (hereafter “Agency”) was created within the
existing appellee 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. (Repealed December 19, 2014)
This Agency were also required to honestly 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. (Repealed December 19, 2014)
Most recently in 2004, Congress enacted FLREA, 16 U.S.C. §§ 6801 to -14,
3
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which, among other things, allowed the Agency to pass the BCF under certain
circumstances.
b. Great Smoky Mountains National Park
The Great Smoky Mountains National Park (hereafter “Smoky Mountains”)
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.
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]
Because of this deed restriction, the Agency has therefore never charged an
entrance fee in the Smoky Mountains.
Within the Great Smoky Mountains National Park, there are approximately
800 miles of trails and, excluding about a dozen shelters along the Appalachian
Trial, approximately 100 undeveloped, backcountry campsites in the park.
[Doc.24;PageID#199]
Backcountry campsites are undeveloped except for fire rings and bear cables
(donated by a 3rd party) for hanging packs. [Doc-24;PageID#199,200]
For almost a century, citizens, except for paying their taxes, have camped at
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those undeveloped backcountry campsites and shelters for free. Some citizens
backcountry camp in order to visit “cemeteries and home places of their ancestors.”
[Doc 24;PageID#201; Doc39-4; PageID# 809;Doc39-6;PageID#1013]
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]
For the most part these 80% campsites were not 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#204]
The Smoky Mountains lie completely in Blount, Sevier and Cocke Counties,
Tennessee, and Swain and Haywood Counties, North Carolina.1
c. Need For The BCF
During or about January 2011, the Agency initially set about to replace the
old reservation system and expand its coverage to include 100% of the campsites.
1The seven County names are apparently absent from the AR. [Doc39-2;
PageID#536]
5
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The Agency sought the recreation fee to cover the cost of the new reservation
system. It was understood, intended, planned, represented and authorized
internally that funds raised by the BCF would only cover the costs of the
reservation system. Nothing else could or would be funded. [Doc39-1;PageID#
391-395,397,398,402,403,405,415; 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”). This
was apparently the Smoky Mountains’ first recreation fee charged pursuant
FLREA authority (ie, this was a 16 U.S.C. § 6803(c) new fee area.) [Doc32,Page
ID#320;Doc39-1; PageID #399,417,419-423;Doc39-2; PageID#508,509,529-535;
532,540,620]
d.Public Participation/“Word Smithing”[Doc39-2;PageID#600]
Pursuant to 16 U.S.C. § 6803(C), the Agency began civic engagement/
public participation pursuant to “Fee Guidelines.” The “Intention” included “...2.
Notify the public about fee rates and how recreation fee revenues are used...”
6
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(Emphasis supplied.) [Doc39-1;Page ID#419-423]
The Agency embellished the reasons for the recreation fee and how the
revenues would be used.
The first “Restructuring Proposal” included the following false statement:
“...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#414-416]
But, the Agency had only received seven emails over two years with visitor
complaints about problems with the backcountry reservation system. That is 7 out
of 66,000. [Doc39-1; PageID# 377-383,409]
Based upon paragraph 5 of Chief Ranger Jordan’s affidavit, there were no
other complaints about reservation and/or planning. [Doc36;PageID# 356,357,
358]
It is a false statement to assert the Agency consistently received complaints
about the reservation system.
It is to be noted this first version of the “Restructuring Proposal”, under
“Other Benefits,” says nothing about funding backcountry rangers. [Doc39-1;
7
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PageID# 414,415,416]
The Agency continued to be inconsistent.
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]
This next rewrite only mentions 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
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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]
The next rewrite mentions using the fee 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]
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.)
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“...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#499-503]
The fees would only cover the reservation system costs, not backcountry
Rangers. [Doc-24;PageID#204; Doc39-1; PageID#402,403]
80% of the campsites were not overcrowded. [Doc39-4;PageID#731,817,
868, 861,862,864,865,902,906,907,910,923; Doc39-6;PageID#965,1009,1014]
A July 29, 2011, press release includes:
“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
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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
this Agency’s website that appears to have been “scrubbed” from the internet. [Doc
45-1; Page ID#1099,1100])
An August 8, 2011, press release includes:
“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]
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All the Agency’s public pronouncements that the BCF will fund
backcountry Rangers were false. [Doc-24;PageID#204; Doc39-1; PageID#402,
403]
The Agency again falsely 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]
The only importance of this issue is to show that the Agency’s public
pronouncements were false.
Unless the undersigned is mistaken, the AR appears to reflect there was no
public desire for more backcountry Rangers until after the Agency suggested it.
e. Open Houses
There was an “Open House” at Ocanaluftee on or about August 16, 2011,
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and another “Open House” 2 days later in Gatlinburg. [Doc39-2;PageID#502-506,
536]
f. Elected Political Leaders
This Agency summarized its purported civic engagement/public
participation. It contains falsehoods.
“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, through a deliberative, representative
body, belatedly passed a resolution in opposition of this fee. [Doc45-2; PageID#
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1101,1102]
Secondly, the Agency 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. The Agency 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. [Doc45-3;PageID# 1103-1106]
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 Commission, another deliberative, representative body, was
against the fee. [Doc45-4; PageID#1107-1109]
State of Tennessee officials were against the fee. [Doc45-5;PageID# 1110]
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;Doc
39-6;PageID#1020]
This record reflects the Agency never contacted any Chambers of
Commerce.
g. Public Opinion
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A vast majority was against the fee.
This record includes comments reflecting at best 75, in favor of the BCF,
and at least 3,600, against the BCF. [Doc39-2;PageID# 521,522; Doc39-3;PageID
#632-669; Doc39-4; PageID# 672-1013; Doc39-5;Page ID#944-958;Doc39-6;
Page 963-1064]2
There were no petitions in favor of the fee.
h. Outcome of Civic 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
2 181 comments, 705 petition signatories, 900 North Shore Road Association, 1,500
Appalachian Long Distance Hiking Association, 400 Benton MacKay Trail Association
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supplied.) [Doc39-2;PageID#623,624] [ARP 254,255]
There is an appearance of the pot calling the kettle black.
The Agency made the following observations:
“...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
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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]
i. Approval
The Agency approved this fee in its November 22, 2011, Memorandum
F5419 (5072). [Doc39-2;PageID #540]
“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.
The Agency’s implementation plan was attached to this approval
memorandum.
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“...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]
The Agency agreed a majority oppose the fee. [Doc39-2;PageID# 555]
C. Disposition Below (Relevant)
On or about March 2, 2013, SFW filed a complaint for declaratory and
injunctive relief against the Agency seeking, among other things, an order
declaring the BCF void or alternatively a remand for more appropriate
administrative adjudication. [Doc1;PageID#1-63]
On or about September 25, 2013, the Agency filed a motion to dismiss
SFW’s complaint. [Doc14,PageID#86,87;Doc15;PageID#88-102]
On or about October 16, 2013, SFW responded to the motion to dismiss and
moved to amend the complaint. [Doc16,PageID#103-158;Doc17,PageID#159-
161;Doc18,Page ID#162-163]
On or about December 12, 2013, the trial court ordered SFW’s complaint
amended. [Doc23,PageID# 187-188]
On or about December 19, 2013, SFW’s filed a motion to allow discovery.
[Doc25; PageID#244-245] and a response to the Agency’s motion to dismiss.
[Doc26;PageID#246-249]
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On or about March 24, 2014, the trial court granted the Agency’s motion to
dismiss as it related to the online reservation system, but denied the Agency’s
motion to dismiss the remaining proceedings. The trial court also denied SFW’s
motion for discovery without prejudice. [Doc32; PageID#320-340]
On or about May 7, 2014, the Agency filed a response to the amended
complaint [Doc.35, Page ID#344-355].
Also, on or about May 7, 2014, the Agency filed the Administrative Record
(hereafter “AR”) and supporting documents. [Doc.36,PageID#356-365; Doc37,
Page ID#366,367; Doc39; PageID#370-1065]
On or about May 19, 2014, the trial court set a briefing schedule. The Court
ordered, among other things:
“...1. Plaintiffs shall file a dispositive motion and a brief in support
thereof within forty-five (45) days from the date this order is filed;
2. Defendants shall have forty-five (45) days after the plaintiffs’
motion and brief have been filed within which to file their response.
3. Specific references to the page numbers in the administrative record
shall be made in the briefs to support all factual assertions of the
parties;...” [Doc41;PageID#1068, 1069]
On or about July 18, 2014, SFW’s filed a “Motion to Vacate” and
supporting documents. [Doc44,PageID#1072,1073; Doc45,PageID#1074-1120;
Doc46,PageID#1121]
On or about September 19, 2014, this Agency filed an Amended Answer to
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the Amended Complaint. [Doc53,PageID#1178-1189]
On or about November 19, 2014, the Agency filed a motion for summary
judgment, supporting affidavits and response to SFW’s motion to vacate.
[Doc64,PageID#1221-1223; Doc65, PageID#1224-1228;Doc66,PageID#1229-
1248;Doc67,PageID#1249-1253;Doc68; PageID#1269-1273]
On or about December 13, 2014, SFW filed a supplemental response with
supporting documents. SFW also filed, among other things, the undersigned’s
affidavit pursuant to Federal Rule of Civil Procedure 56(d), pointing out
discrepancies in the AR and asserting SFW was being precluded from presenting
facts essential to justify its opposition to the Agency’s motion for summary
judgment. [Doc76,PageID#1730-1749;Doc76-3;PageID# 1769-1772]
On or about March 3, 2015, the Agency filed a supplemental response.
[Doc84,PageID# 1817- 1845]
On or about March 9, 2015, SFW filed a last response. [Doc88,PageID#
1858-1862]
On or about March 30, 2015, the trial court granted the Agency’s motion for
summary judgment. The court found on a directed verdict that the Agency
complied with all civic engagement/public participation requirements despite clear
evidence in the record to the contrary. [Doc89,PageID#1863-1921;Doc90,PageID#
20
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1922]
On or about April 24, 2015, SFW appealed. [Doc92;PageID#1926]
ARGUMENT
A. Summary of Argument
The Agency violated the law by failing to follow binding civic engagement
procedures before adopting this BCF.
The Court should look beyond the Administrative Record because it is
incomplete.
This BCF should be vacated and the entire matter remanded to the Agency
to legally reevaluate.
B. Review Of Agency Action/ Standard of Review
5 U.S.C. § 706, provides:
“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;
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(D) without observance of procedure required by law;...”
In Latin Ams. for Soc. & Econ. Dev. v. Adm'r of the Fed. Highway Admin.,
756 F.3d 447, 465 (6th Cir., 2014), this Court holds:
“...Normally, a court's review of an agency action under the APA to
determine whether the agency decision was arbitrary and capricious is
limited to the administrative record, which includes materials
compiled by the agency at the time its decision was made. Slater, 120
F.3d at 638. However, certain circumstances justify supplementation
of the administrative record. Such circumstances include when an
agency has deliberately or negligently excluded certain documents
from the record, or when a court needs certain “background”
information to determine whether the agency has considered all
relevant factors. Id. The burden is on the plaintiff to justify
supplementation of the record and plaintiff must make a “strong
showing” of bad faith. Id. (citing James Madison, 82 F.3d at 1095)...”
C. Procedures For Civic Engagement/Public Participation
1. United States Code
16 U.S.C. §6803. Public participation, includes:
(a) In general
As required in this section, the Secretary shall provide the public with
opportunities to participate in the development of or changing of a
recreation fee established under this chapter.
(b) Advance notice
The Secretary shall publish a notice in the Federal Register of the
establishment of a new recreation fee area for each agency 6 months
before establishment. The Secretary shall publish notice of a new
recreation fee or a change to an existing recreation fee established
under this chapter in local newspapers and publications located near
the site at which the recreation fee would be established or changed.
(c) Public involvement
Before establishing any new recreation fee area, the Secretary shall
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provide opportunity for public involvement by—
(1) establishing guidelines for public involvement;
(2) establishing guidelines on how agencies will demonstrate on an
annual basis how they have provided information to the public on the
use of recreation fee revenues; and
(3) publishing the guidelines in paragraphs (1) and (2) in the Federal
Register.3
2. Guidelines
Appendix L, Public Participation and Notification Guidelines, is in the
administrative record. [Doc 39-1,PageID #419-423; Doc 72,PageID #1688] It
includes the following:
“Background
The Federal Lands Recreation Enhancement Act of2004 (FLREA)
requires that the public have opportunities to participate in the
development of, or change to, a recreation fee established under the
Act. Requirements of public participation for the National Park
Service (NPS) and Fish and Wildlife Service are less stringent than
those for Bureau of Land Management, Bureau of Reclamation, and
Forest Service, which are required to establish Recreation Resource
Advisory Committees. However, the intent of the law is clear in that
the public must be given opportunities to become involved with the
process...
...Intention of the Fee Guidelines
1. Assist the parks in complying with legal public participation
requirements for changing existing fees, adding new fees, or
3While the time period is not in this record, the Agency has charged fees for
“front country camping” in developed, car camping sites and for picnic pavilions
for decades prior to the enactment of FLREA, 16 U.S.C. § 6803(c) may therefore
have required publication of this BCF as a“new recreation fee area” in the Federal
Register. [Doc.39-2; PageID#547]
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establishing new fee areas...
...Applicability and Definitions
These guidelines apply to the following actions: changing an existing
fee, adding a new fee, or...” (Emphasis supplied.) [Doc 39-1,
PageID#419]
Some of these guidelines are required to be followed.
“...Requirements...
However, a site changing an existing fee, adding a new fee, or
establishing a new fee area must accomplish the following five steps.
The Superintendent must:
1. Engage the public about any proposed changes. The annual
instructions will include whether or not civic engagement must be
completed before proposed changes are submitted to WASO.
2. Once the results of civic engagement show support for the change
submit a request for approval through the Regional Director (RD) to
WASO...” [Doc 39-1, PageID#420]
Some of those required guidelines are explicit, detailed and mandatory.
“...Detailed Instructions
Step 1 Public Participation/Civic Engagement
Prior to changing an existing fee, adding a new fee, or establishing a
new fee area, the park must engage the public about proposed
changes. Changes to fees cannot be implemented if civic engagement
has not occurred...” (Emphasis not supplied.) [Doc 39-1, PageID#420]
The guidelines include more mandatory and explicit actions be taken.
“...All Superintendents proposing a change in fees, adding a new fee,
or establishing a new few area must notify and obtain input from their
• Congressional delegation for the local area,
• Federal, state and county officials,
• Local chamber of commerce (or equivalent), and
• Commercial tour operators...” (Emphasis not supplied.)[Document
39-1 Page ID#421]
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Other guidelines become less stringent and mandatory.
“...In addition, the park must engage in a minimum of one of the
following activities:
• Public meeting/open house...” [Document 39-1 Page ID#421]
SFW asserts the Agency was bound by these guidelines prior to inflicting
this BCF on citizens.
D. The Administrative Record
The Supreme Court, in Securities and Exchange Commission v. Chenery
Corporation, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943), starting on page 95,
holds:
“...In either event the orderly functioning of the process of review
requires that the grounds upon which the administrative agency acted
by clearly disclosed and adequately sustained. 'The administrative
process will best be vindicated by clarity in its exercise.' Phelps
Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197,
61 S.Ct. 845, 853, 85 L.Ed. 1271, 133 A.L.R. 1217. What was said in
that case is equally applicable here: 'We do not intend to enter the
province that belongs to the Board, nor do we do so. All we ask of the
Board is to give clear indication that it has exercised the discretion
with which Congress has empowered it...”
In Chrysler Corporation v. Department of Transp., 472 F.2d 659, 669, (6th
Cir., 1972), this Court describes how the Agency’s discretion is limited.
“... In this case, however, the Agency's freedom of action in regard to
the rules it may promulgate is limited by a Congressional mandate
which also requires the Secretary to compile a record. As observed
in Overton Park, supra, the substantial evidence test may be applied to
agency action even when the agency is performing a rulemaking
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function. 401 U.S. at 414-415, 91 S.Ct. 814, 28 L.Ed.2d 136.
Accordingly, the reviewing court must ‘engage in a substantial
inquiry’ and a ‘thorough, probing, in-depth review,’ yet at the same
time must be mindful that the ultimate scope of its review is narrow
and that it may not substitute its judgment for that of the agency's. 401
U.S. at 416, 91 S. Ct. 814, 28 L.Ed.2d 136. (Emphasis supplied.)
Also, in Chrysler, on page 671, this Court requires, among other things, that
“...the Agency must have complied with all applicable procedural requirements...”
In Bates v. Sponberg, 547 F.2d 325 (C.A.6 (Mich.), 1976), this Court, on
page 331, describes a 5 U.S.C. § 706(2)(D), review to encompass procedural
discrepancies.
“...In addition, disregard of procedural rights is frequently corrected
by resort to statutory review powers granted to federal and state
courts...”
E. Consideration of Information Outside The Record.
To reiterate, in Sierra Club v. Slater, 120 F.3d 623, 638, (C.A.6 (Ohio),
1997), this Court holds:
“...The APA requires courts to ‘review the whole record or those parts
of it cited by a party.’ 5 U.S.C. § 706. 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.’...” (Citations omitted.)
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1. Deliberate Or Negligent Exclusion
This AR includes information that does not exist, “written complaints [of
overcrowding] that had not been archived or could not otherwise be found,” and
“verbal complaints” of the reservation system and overcrowding. [Doc. 35,
PageID#351;Doc.72,PageID#1388]
The Agency purports to rely upon feedback from “verbal comments” of
political officials that were “generally positive. [Doc39-2;PageID# 536]
There are deliberative email communications missing from the AR. [Doc39-
1;Page#ID 437,442, 447,450,456,463,470,476,477, 485,487,491; Doc39-4;PageID
#672,673,845]
There is an email exchange between Melissa Cobern and another
governmental employee on a personal email account discussing the upcoming,
unreleased, new fee proposal between. [Doc39-4;PageID#672] This
communication on a personal email appears to be an attempt to avoid disclosure
pursuant to the Freedom of Information Act, 5 U.S.C. § 552, and 38 C.F.R. Part 2.
More importantly, this type of deceptive behavior is utilized only when the actors
know what they are doing is just wrong.
Missing from the AR are “Numerous media interviews [which] were granted
with television, radio, internet and print media during late July and August.”
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[Doc39-2;PageID#536, 621]
There is a July 27, 2011, GSMNP pronouncement that was originally posted
on this Agency’s website that appears to have been “scrubbed” from the internet.
[Doc45-1; Page ID# 1099,1100; Doc48;PageID#1134]
Information about frontcamping fees predating 16 U.S.C. § 6803(c),
requiring BCF publication in the Federal Register is absent from the record. [Doc
39-2; PageID#547]
The Agency certifies the Administrative Record comprised the entire record
upon which it made their decision to adopt the BCF. [Doc.36,PageID#356-358]
2. Background To Determine Factors Were Considered
The trial court below notes when supplementation of the administrative
record is allowed.
“...Defendants contend that supplementation of the administrative
record is appropriate only when (1) an agency deliberately or
negligently excludes documents or (2) the reviewing court needs
background documents to determine whether the agency
considered all relevant factors. Sierra Club v. Slater, 120 F.3d 623,
638 (6th Cir. 1997) (quoting James Madison Ltd. By Hecht v. Ludwig,
82 F.3d 1085, 1095 (D.C. Cir. 1996))...” (Emphasis added.)
[Doc89,PageID#1865]
Tad Burkhalter’s declaration is a background document that shows, among
other things, the Agency actually did not consider local county officials as a factor
at all in deciding to adopt the BCF, and procedure was not followed. [Doc. 45-3;
28
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PageID# 1103-04]
The Knox, Blount and Swain County Resolutions are background
documents that show there were other local county officials likewise not
considered as factors in the decision. This also provides a background on the
altering reasons for the BCF in the first place.
“...there is no demonstrated justification for the fee and indeed the
justifications have changed repeatedly during the course of the
movement toward imposition of the fee;...” [45-2; PageID# 1102]
The Proclamation of Tennessee House Speaker Beth Harwell and
Representative Harry Brooks is a background document that shows the Agency did
not consider state officials as a factor in deciding to adopt the BCF, and procedure
was not followed. [Doc. 45-5; ID# 1110].
There was no civic engagement with local county and state officials despite
mandated procedures. Congress knew full well that local governments had their
own administrative processes, were experts on its own economy and “its own
backyard,” and knew what was best for a local economy and community. The
purpose of the statute, procedures, guidelines, detailed instructions, rules and
requirements (ie, civic engagement/public participation) was to take into account
of and defer to local administrative processes. The Agency knew full well local
and state leaders were opposed to this BCF. At best 75, turned out in favor of the
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BCF, and at least 3,600, turned out against the BCF. [Doc39-2;PageID# 521,522;
Doc39-3;PageID #632-669; Doc39-4; PageID# 672-1013; Doc39-5;Page ID#944-
958;Doc39-6; Page 963-1064]
The Agency chose to ignore the locals in violation of law.
3. Background To Make Clear Conduct and Grounds
This Court, in Norwich Eaton Pharmaceuticals, Inc. v. Bowen, 808 F.2d 486
(C.A.6 (Ohio), 1987), on page 489 holds:
“...The District Court did not conduct a trial de novo here. The District
Court did admit evidence not in the administrative record. The
Government objected, and the District Court responded that it could
not determine whether the administrative record was adequate without
seeing the documents that Norwich was offering. As the Ninth Circuit
has recognized:
It will often be impossible, especially when highly technical matters
are involved, for the court to determine whether the agency took into
consideration all relevant factors unless it looks outside the record to
determine what matters the agency should have considered but did
not.
Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980). Thus,
consideration of evidence outside the administrative record is proper
under some circumstances, e.g., ‘for background information ... or for
the limited purposes of ascertaining whether the agency considered all
the relevant factors or fully explicated its course of conduct or
grounds of decision.’ Id. (citations omitted)...” (Emphasis supplied.)
The AR includes the Agency’s own incorrect representations about civic
engagements possibly in order to mislead a later reviewing court to believe that all
these guidelines were met.
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Agency Pronouncements/Testimony Contradictory Evidence/Testimony
1. Reservation System Complaints
“...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-
416] *
*At this point, nothing was said about
the BCF funding backcountry rangers.
[Doc39-1; PageID# 414,415,416]
1. Reservation System Complaints
a. The Agency had only received seven
emails over two years with visitor
complaints about problems with the
backcountry reservation system. That is
7 out of 66,000. [Doc39-1; PageID#
377-383,409]
b. There were no other complaints in
the AR about reservation and/or
planning. [Doc36;PageID# 356,357,
358]
c. 80% of those backcountry campsites
did not require reservations. Campers
filled out and deposited forms into
kiosks, and hiked to the campsite. [Doc-
24; PageID#199]
d. The old reservation system worked.
The software developer alerted the
Agency the reservation system was
obsolete, not “customers” or “visitors.”
[Doc39-1; PageID# 384-386]
e. Swain County, North Carolina,
Proclamation confirms pretextual
justifications for the BCF. [45-2;
PageID#1102]
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Agency Pronouncements/Testimony Contradictory Evidence/Testimony
2. Crowded Campsites
“...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.)
[Doc39-2,PageID#499-503]
----------------------------------------------
3. Pay For Rangers
a. “...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]
b. “...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...at least
2 seasonal commissioned Rangers to
patrol the backcountry...” [Doc39-1;
PageID# 414,427-429,434,435]
2. Crowded Campsites
a. 80% of backcountry campsites did
not require reservations. Campers
deposit forms into kiosks and hike to
the campsite. [Doc24,PageID#199]
------------------------------------------------
3. Pay For Rangers
a. “...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]
b. “...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...”
[[Doc-24;PageID#204; Doc39-1;Page
ID# 391-395,397,398,402,403,405,415;
Doc39-2;PageID# 510,530-537,533]
32
Case: 15-5413 Document: 16 Filed: 06/29/2015 Page: 38
Agency Pronouncements/Testimony Contradictory Evidence/Testimony
3. Pay For Rangers (continued)
c. “...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...
...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; Page
ID#499-503]
33
Case: 15-5413 Document: 16 Filed: 06/29/2015 Page: 39
Agency Pronouncements/Testimony Contradictory Evidence/Testimony
4. Political Contact
a. “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...
Phone calls were made to the
delegations, CUA holders, partners
and local officials...” [Doc39-2;
PageID#536,537]
4. Political Contact
a. The Agency admittedly did not
distribute or contact state and local
elected representatives and government
officials. See Affidavit of Ted Austin
Burkhalter, Jr. [Doc45-3;PageID# 1103
-1106]
“...1. From October of 2010 to the
present, I have been a member of the
Blount County Commission.
2. During that time that I have served as
a Blount County Commissioner, and
prior to the implementation of the fee
for backpacking and camping inside the
Great Smoky Mountains National Park,
no one from the U.S. Department of
Interior, the Great Smoky Mountains
National Park, nor the
Superintendent of the Great Smoky
Mountains National Park notified
me, as a Blount County
Commissioner, or any other Blount
County Commissioner (based upon
my information and belief) that there
was a proposed new fee for
backpacking and camping inside the
Great Smoky Mountains National
Park...” (Emphasis supplied.) [Doc45-
3,PageID#1103]
Superintendent Dale Ditmanson
admitted he did not contact Blount
County Commission. [Doc45-3,
PageID#1103
34
Case: 15-5413 Document: 16 Filed: 06/29/2015 Page: 40
Agency Pronouncements/Testimony Contradictory Evidence/Testimony
b. “...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]
b. Written comments were received
from Swain County, North Carolina.
[Doc39-3; PageID#640;Doc39-
4;PageID#809;Doc39-6;PageID#1013]
c. The Agency did not contact, nor
provide any detailed briefing of the fee
proposal, nor provide any instructions
for submitting comments prior to BCF
implementation.[Doc45-3;PageID#
1103-1106]
d. Knox County Commission was
against the fee. [Doc45-4; PageID#
1107-1109]
e. State of Tennessee officials were
against the fee. [Doc45-5;PageID#
1110]
Had the Agency notified and obtained input from Blount County and Knox
County officials, the Agency could not have put in this AR that comments were
“generally positive.”
Had the Agency notified and obtained input from State of Tennessee
officials, this Agency could not have put in this AR that comments were “generally
positive.” [Doc45-5; PageID #1110]
35
Case: 15-5413 Document: 16 Filed: 06/29/2015 Page: 41
“...I, Beth Harwell, Speaker of the House of Representatives of the
One Hundred Eight General Assembly of the State of Tennessee, at
the request of and in conjunction with Representative Harry Brooks,
do hereby proclaim that we express our opposition to the imposition
of any backcountry camping fees in the Great Smoky Mountain
National Park that are not directly associated with the use of amenities
or a commercial purpose and strongly urge an immediate repeal of any
such imposed fee...” [Doc45-5;PageID# 1110]
This is no evidence in this AR that reflects the Agency ever contacted any
Chambers of Commerce.
It would be inappropriate to assume the Agency did what affirmative
evidence shows the Agency did not do.
SHORT CONCLUSION
Civic engagement/public participation was required of local and state
political leaders/legislative bodies which was not done. The Agency circumvented
the civic engagement/public participation because of the staunch opposition (75
for, 3,600+ against) to the BCF. [Doc39-2;PageID# 521,522; Doc39-3;PageID
#632-669; Doc39-4; PageID# 672-1013; Doc39-5;Page ID#944-958;Doc39-6;
Page 963-1064]
Even the Agency cannot ignore the administrative process in place when
implementing any type of fee. The district court is obliged to give deference to
that kind of administrative process.
As in Camp v. Pitts 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), on
36
Case: 15-5413 Document: 16 Filed: 06/29/2015 Page: 42
page 143, SFW respectfully urges this Court not to ignore the administrative
process and to likewise determine, in the light of the Administrative Record, that
further Agency consideration and explanation are necessary for the trial court to
eventually provide a proper assessment of the Agency’s decision to implement the
BCF, and on remand SFW be awarded attorney fees pursuant to 28 U.S.C. § 2412.
Respectfully submitted this 29th day of June, 2015.
/s/ J. Myers Morton BPR# 013357
MORTON & MORTON, PLLC
1518 N. Broadway
Knoxville, Tennessee, 37917
[phone]
E-mail: [e-mail]
Attorney for appellants
CERTIFICATE OF COMPLIANCE PURSUANT TO
FEDERAL RULE OF APPELLATE PROCEDURE 32(A)(7)
I certify that this document contains ~7,919 words, as determined by my
word processing system used to prepare this brief pursuant Federal Appellate Rule
32(a)(7)(B).
/s/ J. Myers Morton BPR# 013357
Attorney for appellants
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been furnished to
Robert P. Stockman, attorney for defendant, by the Court’s electronic system and
email from the undersigned.
This 29th day of June, 2015.
/s/ J. Myers Morton
37
Case: 15-5413 Document: 16 Filed: 06/29/2015 Page: 43
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS
Record Entry
No.
Description PageID#
1 Complaint for Declaratory and
Injunctive Relief
1-63
12 Order Allowing Amended Complaint 187-188
14 The Agency’s Motion To Dismiss 86-87
16 SFW Motion To Amend Complaint 103-158
23 Order Amending Complaint 187-188
25 SFW Motion To Allow Discovery 244-245
32 Order Granted the Agency’s Motion to
Dismiss as to the Online Reservation
System, and Denying Agency’s
Remaining Motion to Dismiss. Order
Denied SFW Motion For Discovery
Without Prejudice
320-340
35 The Agency’s Answer To The Amended
Complaint
344-355
36 Affidavit Certifying Administrative
Record
356-365
37 Notice Of Filing Administrative Record 366-367
39 Administrative Record 370-1065
41 Order Setting Briefing Schedule 1068-1069
44 SFW Motion To Vacate/Summary
Judgment
1072-1073
45-1 The Agency’s Expunged Website
Pronouncement
1099-1100
Case: 15-5413 Document: 16 Filed: 06/29/2015 Page: 44
45-2 Swain County, North Carolina
Resolution
1101-1102
45-3 Burkalter Affidavit and Blount County,
Tennessee Resolution
1103-1106
45-4 Knox County, Tennessee Resolution 1107-1109
45-5 State of Tennessee Officials
Proclamation
1110
53 Agency’s Amended Answer to
Amended Complaint
1178-1189
64 Agency’s Motion For Summary
Judgment
1221-1223
65 Agency’s Affidavit in Support of
Summary Judgment
1224-1228
66 Agency’s Affidavit in Support of
Summary Judgment
1229-1248
67 Agency’s Affidavit in Support of
Summary Judgment
1249-1253
68 Agency’s Affidavit in Support of
Summary Judgment
1269-1273
76-3 Appellant’s Counsel’s Rule 56(d)
Affidavit
1768-1772
84 Agency’s Last Response 1817- 1845
88 Appellant’s Last Response 1858-1862
89 Trial Court Memorandum Opinion 1863-1921
90 Trial Court Final Order 1922
92 Notice Of Appeal 1926
Case: 15-5413 Document: 16 Filed: 06/29/2015 Page: 45