UNITED STATES DISTRICT COURT  EASTERN DISTRICT OF TENNESSEE  AT KNOXVILLE    SOUTHERN FOREST WATCH, INC., )  et al., )  Plaintiffs, )  )  v. ) CIV. NO. 3:13-CV-116  ) (PHILLIPS/GUYTON)  )  SECRETARY OF THE INTERIOR, )  SALLY JEWELL, et al., )  )  Defendants. )   DEFENDANTS’ REPLY TO  PLAINTIFFS’ RESPONSE TO DEFENDANTS’ BRIEF   Federal Defendants (Defendants), by and through William C. Killian, United States  Attorney for the Eastern District of Tennessee, hereby respectfully reply to Plaintiffs’ Response  to Defendants’ Brief [Doc. 76]. Plaintiffs raise five points in their memorandum (sections B-G,  see Pls.’ Resp., pp. 1-2), each of which Defendants will briefly address as follows.   1. 36 C.F.R. § 71.9 does not apply because it has been superseded by FLREA.  In 2004, Congress enacted FLREA, 16 U.S.C. §§ 6801 to -14, which repealed prior  recreation fee authorities, including certain provisions in the Land and Water Conservation Fund  Act of 1965 (LWCFA) 16 U.S.C. §§ 460l-4 to -11. Prior to 2004, section § 460l-6a(b) of the  LWCFA set forth the legal authority for Federal agencies within the Department of Interior  (DOI) to charge recreation use fees. Pursuant to LWCFA (see section § 460l-6a(e)), the DOI  promulgated 36 C.F.R. § 71.9 (a)-(c) to guide the establishment and administration of recreation  use fees in the national park system. Now, however, 36 C.F.R. § 71.9 (a)-(c) is superseded  because those fee authority provisions in LWCFA -- section §§ 460l-6a(b) and (e) – that are the  legislative underpinnings of 36 C.F.R. § 71.9 (a)-(c) have been explicitly repealed. FLREA  states: “Subsections (a), (b), (c), (d), (e), (f), [and] (g) . . . of section 460l-6a of this title are  repealed . . . .” 16 U.S.C. § 6812(a) (emphasis added).   Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 1 of 29 PageID #:  1787     As Plaintiffs correctly acknowledge, FLREA makes clear that certain regulations  promulgated under the repealed sections of LWCFA will be superseded, stating that:   A regulation or policy issued under a provision of law repealed by this section   shall remain in effect to the extent such a regulation or policy is consistent   with the provisions of this chapter until the Secretary issues a regulation,  guideline, or policy under this chapter that supersedes the earlier regulation.  16 U.S.C. § 6812(f) (emphasis added). 36 C.F.R. § 71.9 (a)-(c) was issued under provisions of  LWCFA that FLREA repealed. As the terms of section § 6812(f) indicate, 36 C.F.R.  § 71.9 can remain in effect under only two circumstances, neither of which is present. First,  section § 6812(f) states that until a regulation, guideline or policy is issued by NPS that replaces  36 C.F.R. § 71.9, the regulation will remain in effect to the extent it is consistent with the  provisions of FLREA. 36 C.F.R. § 71.9(c) is not consistent with FLREA’s provisions because,  by its terms, FLREA does not impose on NPS the limitations found in the regulation. 1   36 C.F.R. § 71.9(c) n.1 prohibits charging a fee when a visitor uses a campsite at a  campground unless certain amenities are provided at the campground. With the passage of  FLREA, however, NPS’s authority to establish an expanded amenity fee does not include the  same limiting language contained in the regulation and its authorizing legislation, 16 U.S.C.  § 460l-6a(b). FLREA authorizes the NPS to establish an expanded amenity fee “when the  Secretary of the Interior determines that the visitor uses a specific or specialized facility,  equipment, or service.” 16 U.S.C. § 6802(g)(1). Notably, the fee authority FLREA gives to  other Federal land management agencies, such as the Forest Service, the Bureau of Land  Management and the Bureau of Reclamation, closely resembles the limiting criteria found in 36   1 Defendants would bring to the Court’s attention an error in Defendants’ main brief that  should be corrected here for the record. In arguing that 36 C.F.R. § 71.9 is inconsistent with  FLREA, Defendants’ main brief incorrectly states that 36 C.F.R. § 71.9 “uniformly applied to all  DOI components. . . .” See Defs.’ Mem. in Supp. of Fed. Defs.’ Cross Mot. for Summ. J. and in  Resp. to Pls.’ Mot. to Vacate (Defs.’ Mem.), [Ct. Doc. 72], p. 31, first full paragraph. In  actuality, 36 C.F.R. § 71.9 only applied to NPS and its agencies, not to other DOI components.  Defendants apologize for this error and ask the Court and Plaintiffs to disregard the discrete  argument related to that statement, as found only in the first full paragraph of Defs.’ Mem, p. 31   32. Nonetheless, Defendant continue to maintain that 36 C.F.R. § 71.9 is inconsistent with  FLREA, for the reasons stated in the instant Reply.  2  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 2 of 29 PageID #:  1788     C.F.R. § 71.9. See 16 U.S.C. § 6802(g)(2). Had Congress desired to subject the NPS to a fee  authority that was similar to the authority found in the repealed provisions of the LWCFA, it  easily could have done so, but Congress unambiguously expressed its intent not to do so by  enacting a broader, less restrictive authority as found in section 6802(g)(1). 36 C.F.R. § 71.9(c)  n.1 is inconsistent with the fee authority granted the NPS by FLREA, and the regulation is thus  superseded pursuant to 16 U.S.C. § 6812(f).  Second, 36 C.F.R. § 71.9 no longer can be applicable if NPS has issued guidelines that  supersede the regulation. As has been previously explained (see Defs.’ Mem., p. 32), the NPS  has issued fee guidelines in the form of a “Director’s Order #22: Recreation Fees (Director’s  Order #22 or DO-22),” and a “Reference Manual 22A, Recreation Fee Collection and  Appendices, (Reference Manual #22A or RM-22A),” which provides supplementary guidance to  DO-22, including more specific direction regarding the setting and management of fees. These  documents interpret FLREA and give guidance to NPS agencies that desire to establish  recreation fees, including the expanded amenity fee at issue in this case. The Director’s Order  #22 interprets and sets forth guidance and policy statements related to the establishment and  administration of entrance and expanded amenity fees under FLREA, thereby superseding 36   C.F.R. § 71.9, a result consistent with Congress’ intent as expressed in FLREA. See 16 U.S.C. §  6812(f) (“A regulation . . . issued under a provision of law repealed by this section shall remain  in effect . . . until the Secretary issues a regulation, guideline, or policy under this chapter that  supersedes the earlier regulation.”).  Plaintiffs have offered no persuasive argument in response to Defendants’ position.  Plaintiffs cite to Bark v. United States Forest Service, et al., Civ. No. 12-1505, 2014 WL  1289446 (D.D.C. Mar. 28, 2014), but the case is inapposite. Bark does not involve DOI or the  establishment of an expanded amenity fee under FLREA. Moreover, the case does not mention  the regulation at issue, 36 C.F.R. § 71.9. Rather, the case involves the issuance of special use  permits by the United States Forest Service (a component of the U.S. Department of Agriculture,  not DOI) to third-party concessionaires who operate within the National Forests. Plaintiffs quote   3  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 3 of 29 PageID #:  1789     two-paragraphs from Bark, characterizing it as a holding, but the quote merely represents the  court’s summary of the historical development of FLREA and does not illuminate the discussion  here. Plaintiffs’ statement that “Congress made its intent clear that FLREA continued restricting  defendants’ authority to charge fees . . . [and that] there was no “draw back” or retraction of  restrictions lifted on defendants’ authority,” is vague, conclusory and unsupported. What  Congress did do through the passage of FLREA was repeal prior admission and use fee  authorities, such as those found in LWCFA, and thereby provide new authority and limitations  for the establishment, charging, and collection of “recreation fees” by Federal land management  agencies. The NPS has issued new guidelines and policies that give the agency direction and  guidance about the establishment and collection of recreation fees. Thus, pursuant to the  directive in 16 U.S.C. 6812(f), 36 C.F.R. § 71.9 has been superseded by the issuance of such  guidelines. Plaintiffs’ arguments to the contrary should be rejected.    Alternatively, assuming arguendo that 36 C.F.R. § 71.9(c) n.1 has not been superseded, it  still does not apply to the backcountry camping fee at issue in this case. By its clear terms,  subsection 71.9(c) n.1 (“Tent, trailer and vehicle sites”), applies to fees charged for using  campsites in “campgrounds,” and it prohibits charging a fee unless certain amenities are  provided. 36 C.F.R. § 71.9(c) n.1. The backcountry camping fee (BCF) was never intended as a  charge for using a campsite in a “campground.” Rather, the BCF applies to camping in the  GRSM backcountry and was implemented based upon a determination that there was a need to  restructure the outdated backcountry reservation and permitting processes, as well as to provide a  greater backcountry presence of law enforcement rangers, and to also improve trip planning  services for backcountry visitors.   A campground is not the same type of Federal recreational area as the backcountry. As  was explained in Defendants’ previously filed memorandum (see Defs.’ Mem., pp. 32 n.15, 37),  there is a difference between the campgrounds referenced in the subsection 71.9(c) n.1,  otherwise known as “frontcountry” campgrounds, and backcountry camping. The NPS  unquestionably differentiates between frontcountry campgrounds and backcountry camping. On   4  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 4 of 29 PageID #:  1790     a GRSM website, the NPS describes GRSM frontcountry campgrounds as providing campsites  that can accommodate tents, pop-up-trailers and RVs, and provide restrooms with water and  flush toilets, fire grates and picnic tables. See  http://www.nps.gov/grsm/planyourvisit/frontcountry-camping.htm. A separate GRSM webpage  addresses backcountry camping. See http://www.nps.gov/grsm/planyourvisit/backcountrycamping. htm . Moreover, and most importantly, the NPS separately addresses campgrounds and  backcountry campsites in its Management Policies 2006. The term “backcountry” is used to  “refer to primitive, undeveloped portions of parks.” See NPS Management Policies 2006,  www.nps.gov/MP2006 at §§ and To preserve the primitive, undeveloped  character of the backcountry, “the number and types of facilities to support visitor use . . . will be  maintained at a minimum . . . .” Id. at § On the other hand, campgrounds may offer  such amenities as recreation-vehicle camping, tent camping, utility hook-ups, showers, play  areas for small children, and sanitary dumps. NPS Management Policies 2006, §  Plaintiffs’ argument that subsection 71.9(c) n.1 applies to the BCF, a fee intended for use to  update the reservation system and related services, provide ranger services, and improve trip  planning services in the GRSM backcountry, is incorrect and should be rejected.   2.  The NPS properly solicited public participation and considered public input  in implementing the BCF.  Plaintiffs contend that NPS failed to comply with public participation and civic  engagement law. Pls.’ Resp., pp. 5-11. The record refutes Plaintiffs’ allegations.  As Defendants previously argued, FLREA only requires that the public be given “opportunities  to participate in the development of or changing of a recreation fee,” and that the Secretary  publish notices in “local newspapers and publications located near the site at which the  recreation fee would be established or changed.” 16 U.S.C. § 6803(a)-(b). There is no dispute  here that NPS satisfied these statutory requirements.   Beyond FLREA’s specific requirements, however, the NPS recognizes FLREA’s intent  to promote public participation in the development of recreation fees and has set forth guidelines  to assist parks in engaging the public to better inform the decision-making process. See   5  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 5 of 29 PageID #:  1791     RM-22A, App’x L, (AR 50-54) [Doc. 39-1 ID# 419-423]. Here, in addition to complying with  FLREA’s public participation requirements, NPS also conducted many activities set out in NPS  guidelines to involve the public in the fee development process. It is important to note that,  although the statutory requirements for public participation found in FLREA, 16 U.S.C. §  6803(a), -(b), are mandatory, NPS guidelines regarding public participation do not create any  right or benefit that is enforceable against the United States or its agencies by any party.2 See  RiverRunners for Wilderness v. Martin, 593 F.3d 1064, 1071-73 (9th Cir. 2010) (finding that  “[t]he text of the 2001 [NPS Management] Policies makes clear that they are intended only to  provide guidance within the Park Service, not to establish rights in the public generally” and  concluding that NPS’s management policies, which were “written in mandatory language” did  not have the force and effect of law because they “do not purport to prescribe substantive rules”  and their text “makes clear that they are intended only to provide guidance within the Park  Service, not to establish rights in the public generally”); Greater Yellowstone Coalition v.  Kempthorne, 577 F. Supp. 2d 183, 206 (D.C. Cir. 2008) (stating that NPS 2006 “Management  Policies are not independently judicially enforceable, however, they are relevant insofar as NPS  puts forth the Policies as justification for the decision under review”); Wilderness Society v.  Norton, 434 F.3d 584, 595-97 (D.C. Cir. 2006) (holding that NPS 2001 Management Policies are  only for internal guidance of managers and staff and do not establish binding rules, even though  the use of such words as “will” and “must” occasionally appear in the document). Thus, the  Court need not engage in further analysis as to whether NPS complied with its civic engagement   2 This principle is clearly set forth in several NPS policy documents and director’s orders.  “As is the case with all components of the NPS directives system, this order is intended only  to improve the internal management of the NPS and it is not intended to, and does not, create any  right or benefit, substantive or procedural, enforceable at law or equity by a party against the  United States, its departments, agencies, instrumentalities or entities, its officers or employees, or  any other person.” Director’s Order #75A: Civic Engagement and Public Policy (emphasis  added); see also NPS Management Policies 2006, Introduction, Compliance, Accountability and  Enforceability, p. 4; and, Director’s Order #22, p. 2. Reference Manual #22A, including its  Appendix L, are companion documents to Director’s Order #22. RM-22A and App’x L are  considered components of the NPS directives system and do not create rights for private  individuals, but rather only provide internal guidance to NPS managers and staff.   6  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 6 of 29 PageID #:  1792     requirements. NPS clearly satisfied its statutory duty under FLREA and any rights Plaintiffs  may believe they have under Appendix L are judicially unenforceable. Nevertheless, Defendants  maintain that the record clearly shows that the NPS not only met FLREA’s statutory  requirements for civic engagement, but also followed NPS guidelines in that regard, as well.   The Park was quite intentional about creating a civic engagement plan. The plan outlined  goals (increase customer service in trip planning services, replace outdated reservation system,  increase NPS presence in the backcountry); set out objectives (to actively and meaningfully  listen, to inform NPS decision-making, to demonstrate a “no surprise” ethic); listed key  messages to stakeholders, including what the effects of more rangers in the backcountry would  be; and, listed written materials to be developed to support the NPS message. (See AR 55) [Doc.  39-1 ID# 424]. A Public Scoping Contact list was created to identify groups and offices that the  Park would contact about the fee proposal, including the Congressional delegations of North  Carolina and Tennessee; various other federal, state and local officials; local chambers of  commerce; commercial businesses connected with backcountry camping; and other park partners  and interested groups. (AR 56-57) [Doc. 39-1 ID# 425-26]. After developing its list, the Park  began the process of making contacts. (AR 61, 125-27) [Doc. 39-1 ID# 430; Doc. 39-2 ID# 49496].  An external briefing document, (see (AR 128-31) [Doc. 39-2 ID# 497-500]), was produced  and distributed to the groups listed in the Public Scoping Contact list. News releases were also  distributed. (AR 132-34) [Doc. 39-2 ID# 501-03]. The news releases stated that the Park was  soliciting public comments online, by mail, and through two public open houses. Newspapers  near the GRSM reported the story. See Defs.’ Mem., p. 48 n.21. A Park website was publicized,  where details of the proposal could be seen and comments could be sent electronically and where  the dates and places of the public open houses were listed. The first open house was held at  Oconaluftee, North Carolina, on August 16, 2011. (AR 135-36) [Doc. 39-2 ID# 504-05]. At  least 30 members of the public attended the August 16 meeting, and, on August 18, 2011, at least  40 other people attended a second meeting at Park headquarters in Gatlinburg, Tennessee. (AR  136-37) [Doc. 39-2 ID# 504-06]. Staff members were on hand to interact with attendees and   7  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 7 of 29 PageID #:  1793     answer questions. See Defs.’ Mem., pp. 46-49 for a comprehensive description of NPS’s civic  engagement activities.   A. Director’s Order #75A  Although Plaintiffs’ responsive arguments are somewhat difficult to discern, it seems  they first assert that Defendants failed to follow the law regarding civic engagement by not  conducting civic engagement “before creating the BCF.” Pls.’ Resp., Pt. C. 1, p. 5 (emphasis in  original) (citing Director’s Order #75A).3 Plaintiffs’ assertion is obviously incorrect because  extensive civic engagement took place before the BCF Implementation Plan was submitted and  approved. Civic engagement began as early as July 29, 2011, when Park management issued its  first press release to the public regarding the proposed BCF. (AR 132-33.) [Doc. 39-2 ID# 50102.]  It was not until November 8, 2011, some three months after civic engagement began, that  the BCF Implementation Plan was submitted (AR 159) [Doc. 39-2 ID# 528], and not until three  months after that, that the BCF was finally approved on February 22, 2012. (AR 256-57) [Doc.  39-2 ID# 625-26]. Plaintiffs are clearly mistaken in asserting that NPS did not conduct civic  engagement before creating the BCF Implementation Plan.   B. 16 U.S.C. § 6803(c) and “new recreation fee area” do not apply  Plaintiffs also cite to 16 U.S.C. § 6803(c) with no meaningful explanation or  argumentation. See Pls.’ Resp., p. 5, Pt. C. 1. 16 U.S.C. § 6803(c) is inapplicable in the instant  case because it applies only to situations involving a “new recreation fee area.” The GRSM is  not a new recreation fee area. A new recreation fee area is established when a park that has  never charged an entrance or an expanded amenity fee under FLREA decides to begin charging  an expanded amenity fee for the first time. See RM-22A, App’x L, (AR 51) [Doc. 39-1 ID#  420]. The BCF Implementation Plan lists other expanded amenity fees that already were in use  at the GRSM at the time the BCF Implementation Plan was submitted. (AR 178) [Doc. 39-2 ID#  547]. Hence, the existence of other expanded amenity fees demonstrates that the GRSM was not  a “new recreation fee area.” Thus, 16 U.S.C. § 6803(c)(1) was not triggered and there was no   3 As stated supra at n.1, Director’s Order #75A creates no enforceable law upon, or rights  against, the NPS.   8  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 8 of 29 PageID #:  1794     need to issue new guidelines for public involvement. The applicable civic engagement  guidelines were already set forth in Reference Manual 22A, Appendix L. Furthermore, because  the GRSM was not a new recreation fee area, there was no need to publish notice of a new  recreation fee area (which did not exist) in the Federal Register, as required by 16 U.S.C. §  6803(b) and as mentioned in Appendix L. See App’x L, “NOTE” (AR 51) [Doc. 39-1 ID# 420].  Plaintiffs’ arguments to the contrary should be rejected. See Pls.’ Resp., p. 7.   C. NPS followed the Public Participation Guidelines in Appendix L  Plaintiffs contend that the NPS neglected to make necessary contacts with governmental  officials and chambers of commerce during the civic engagement period in accordance with  various sections of the “Public Participation and Notification Guidelines.” See RM-22A,  App’x L. Although the guidelines are nonbinding, the record nonetheless demonstrates that NPS  accomplished the civic engagement requirements found in Appendix L.    The Administrative Record indicates that by July 20, 2011, the GRSM staff planned to  contact the various federal, state and local delegations. See (AR 56) [Doc. 39-1 ID# 425]. On  July 29, 2011, as civic engagement was about to begin and GRSM’s briefing document for the  public was in its final stage of review, the GRSM staff prepared to contact delegations in  Tennessee and North Carolina through phone calls and personal meetings. (AR 128) [Doc. 39-2  ID# 497]. The then Deputy Superintendent of the Park emailed other GRSM senior staff as  follows:   Attached is the final version [referring to the Backcountry Permit Fee briefing  document] ready for use. Dale will be making calls to the NC and TN delegations  staffs this week. We are also going to offer to meet with them in person on  August 8 and 10, but the calls may suffice. He is also going to make select calls  to local constituents around the park later this week. . . . Before the press release  is issued and this document is sent to the mailing list that you have developed,  some calls need to be made to the partner organizations/other groups you have  listed and a coordinated effort to share with the CUA holders also needs to take  place . . . .   Id. Also, on November 9, 2011, the BCF Implementation Plan, as submitted by the GRSM,  reported that:  During the weeks of July 25th and August 1st a detailed briefing of the fee  proposal, including instructions for submitting comments, was widely distributedto all potentially interested park partners and other NGO’s, CUA holders, local   9  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 9 of 29 PageID #:  1795     Congressional delegations, and state and local elected representatives and  government officials. This briefing was also posted by a recipient onto a popular  local public blog site. . . . No written comments were received, though verbal  comments were generally positive with the exception of the Swain County, NC  commissioners (one of seven counties neighboring the park) who were against  any backcountry camping fees in principle.   (AR 167) [Doc. 39-2 ID# 536]; (AR 254) [Doc. 39-2 ID# 623]. As of December 9, 2011,   summary charts from the files of the NPS headquarters in Washington DC indicate that senior   decision makers understood that the GRSM staff had “[n]otified congressional delegations, state   and local officials, park partners, and CUA holders via briefing paper distribution and phone   calls.” (AR 214) [Doc. 39-2 ID# 583].   i. Chambers of Commerce  Plaintiffs assert that “defendants did not contact any chambers of commerce.” Pls.’  Resp., p. 6 (emphasis in original). But the record shows the GRSM staff included 12 local  chambers of commerce on their list of entities to contact. (AR 56) [Doc. 39-1 ID# 425]. And,  the Fee Implementation Plan reports that “[d]uring the weeks of July 25th [2011] and August 1st  [2011] a detailed briefing of the fee proposal, including instructions for submitting comments,  was widely distributed to all potentially interested park partners . . . .” (AR 243) [Doc. 39-2 ID#  612]. The BCF Implementation Plan stated that “[n]o written comments were received from  local Chambers of Commerce. . . .” That this Administrative Record shows intent to contact 12  chambers, and the affirmative statement that potentially interested park partners were, in fact,  sent the fee proposal is a sufficient demonstration that the communications were made. There  are no statutory or regulatory provisions that require the NPS to include in the Administrative  Record the names and addresses of all chambers of commerce to which it sent the BCF briefing  proposal or to somehow show proof of receipt. Here, the NPS is accorded a presumption of  regularity in its procedures, and Plaintiffs unsupported one-sentence assertion, “[t]hat by this  record defendants did not contact any chambers of commerce,” does not overcome the  presumption. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971) (noting  that agencies are entitled to a “presumption of regularity”); Burkholder v. Peters, 58 F. App’x   10  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 10 of 29 PageID #:  1796     94, 99 (6th Cir. 2003) (stating under the arbitrary and capricious standard of review, agency   action is accorded a “presumption of regularity”).   ii. County Commissions and the Tennessee Speaker of the House  Plaintiffs further claim that Defendants did not contact “state and local elected   representatives and government officials in Blount County.” Pls.’ Resp., p. 6. In support of this   assertion, Plaintiffs cite to their previously filed Declaration of Ted Burkhalter, Jr. Id., citing   [Doc. 45-3; ID# 1103-06]. Additionally, through attachment of various resolutions and a   proclamation, Plaintiffs assert that the Commissioners of Blount County, Tennessee, as well as   the Commission for Knox County, Tennessee, the Commissioners of Swain County, North   Carolina, and Tennessee House Speaker Beth Harwell and State Representative Harry Brooks,   were against the BCF.4   As an initial matter, it is noted that these resolutions and the proclamation are dated   within days or just a few weeks of the initiation of this lawsuit, March 2, 2013. Much of the   language in these resolutions is identical. The timing of these documents implies that they were   obtained for the purposes of this lawsuit. The public officials who signed the documents did so   some 18 months after the BCF comment period ended, and, it is reasonable to assume that they   4 The Court’s APA review regarding the BCF is limited to the Administrative Record as  it existed at the time the NPS decision makers approved the BCF. See Camp v. Pitts, 411 U.S.  138, 142 (1973) (“In applying that standard [under 5 U.S.C. § 706(2)(A) ], the focal point for  judicial review should be the administrative record already in existence, not some new record  made initially in the reviewing court.”). With few exceptions not present here, judicial review of  Plaintiffs’ claims is limited to the administrative record on which NPS relied in making its  decision. Plaintiffs’ attempt to introduce this new evidence should be rejected. This Court has  not given Plaintiffs permission to supplement the record with any exhibits, including these  resolutions and proclamation. As the Court considers the issues in this case, Defendants ask that  the Court summarily disregard these exhibits. Defendants will, however, address the relevance  of the exhibits and Plaintiffs’ related arguments.   Plaintiffs improperly attached to their Brief in Support of Motion to Vacate, i.e.,  Burkhalter Declaration [Doc. 45-3; ID# 1103-04]; Resolution of Board of Commissioners,  Blount County, Tennessee, 2/27/2013 [Doc. 45-3; ID# 1105-06]; Resolution of Board of  Commissioners, Swain County, North Carolina, 3/12/2013 [Doc. 45-3; ID# 1101-02]; Resolution  of the Commission of Knox County, Tennessee, 3/25/2013 [Doc. 45-3; ID# 1107-09]; and, a  Proclamation by Tennessee House Speaker Beth Harwell and Representative Harry Brooks,  4/9/2013 [Doc. 45-3; ID# 1110].   11  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 11 of 29 PageID #:  1797     may not have been fully and fairly informed about the merits of the BCF from GRSM’s point of  view because public discussion about the BCF proposal had long since ended.   Moreover, these resolutions and the proclamation carry no weight in establishing that the  GRSM staff did not follow the public participation guidelines by sending notice of the BFC fee  proposal to local, state and federal officials. The resolutions and the proclamation were  prepared, at a minimum, one and a half years after the BCF comment period ended on August  26, 2011, and one year after the BCF was approved on February 22, 2012. They are too far  removed in time to have been considered in the civic engagement process. Moreover, there is no  indication in these resolutions and proclamation that the BCF briefing proposals were not sent to,  or received by, points of contact for the respective commissions. Nor is there any statutory  requirement that NPS include in the Administrative Record the names and addresses of all mail  recipients for the BCF briefing proposal and proof of receipt. Mr. Burkhalter’s statement  regarding then Superintendent Dale Ditmanson’s alleged acknowledgment that he did not  “directly” contact the Blount County Commission does not prove that members of the Blount  County Commission did not receive notice of the BCF proposal in some fashion. There is  nothing about these resolutions and the proclamation that is relevant to this Court’s  determination of whether the NPS implementation of the BCF was arbitrary or capricious, given  the Administrative Record that existed at the time the fee decision was made and which must be  the sole focus of this Court’s record review.   Clearly, the common theme of the resolutions and the proclamation is that the signers  expressed opposition to the BCF, albeit many months after the BCF was approved. Such  opposition, however, is merely duplicative of what already exists in the Administrative Record.  GRSM staff was aware of, and openly acknowledged, the opposition registered against the BCF  during, and immediately following, the comment period,5 and the staff considered the opposing  and other views in developing their BCF fee proposal. See (AR 138, 146-49, 196)[Doc. 39-2  ID# 507; 515-18, 565]. The BCF Implementation Plan itself recognized that more public   5 The public comments accepted and reviewed after the formal comment period ended  can be viewed at (AR 592-696) [Doc. 39-6 ID# 961-1065].   12  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 12 of 29 PageID #:  1798     comments were against the fee than were for it: “Though a number of respondents supported the  concept that such a fee is appropriate to be collected and used as proposed, the majority of  respondents were opposed to any new fee.” (AR 243)[Doc. 39-2 ID# 612]. The senior decision  makers at the NPS Southeast Regional Office and the Washington DC headquarters also were  aware of opposition to the BCF. See (AR 230, 232, 234-36, 245) [Doc. 39-2 ID# 599, 601, 60305,  614]. Notably, a named Plaintiff in this case, Mr. John W. Quillen, expressed his  disagreement directly to Jane Moore, the NPS Washington Office Fee Program Manager, and his  email was forwarded to the final decision maker, Peggy O’Dell, Deputy Director of Operations  in the Director’s Office, who ultimately approved the BCF. See (AR 245) [Doc. 39-2 ID# 614].   Plaintiffs mistakenly interpret the NPS public participation guideline to mean that there  must be majority support for a new fee before a Superintendent can submit a fee proposal. See  Pls.’ Resp., p. 8. However, Appendix L states only that to submit a request for approval of new  fee, the Superintendent must initiate civic engagement which “show[s] support” for the change.  App’x L, (AR 51) [Doc. 39-2 ID# 420]. There is no mention of a need to show “majority”  support. In fact, the guidelines provide the Superintendent with considerable discretion by  stating that “[t]he park may decide to submit the rate as planned or alter it due to public input.”  App’x L, (AR 52) [Doc. 39-2 ID# 421]. In other words, the Superintendent has the discretion to  submit a fee proposal despite the existence of dissenting views and negative comments.   Plaintiffs also erroneously claim that “a Member of Congress” communicated his  personal negative opinion about the BCF. Pls.’ Resp., p. 11.6 To the contrary, the  Administrative Record does not show that a member of Congress was against the fee, but only  that Congressman David Roe asked that the GRSM staff assist him in responding to a  constituent’s inquiry about the fee. (AR 156-58) [Doc. 39-2 ID# 525-27]. It is noteworthy that  in this particular letter, where Congressman Roe had the opportunity to criticize any aspect of the  BCF fee proposal, he offered no criticism.   6 Plaintiffs’ AR and CM/ECF citations do not relate to this assertion.   13  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 13 of 29 PageID #:  1799     Public reaction to the BCF proposal, both positive and negative, was taken into account  by the GRSM in forming the final BCF Implementation Plan. The lowest amount of the fee  alternatives considered and the option most favored by the public -- $4.00 -- was selected in  response to public reaction. The record demonstrates, and Plaintiffs have admitted, that the  GRSM’s reservation system software was obsolete. Plaintiffs do not dispute that prior to the  implementation of the BCF, dedicated ranger presence in the backcountry was largely absent.  NPS’ decision to update the reservation system and related services, provide ranger services, and  improve trip planning services was based on concerns for visitor convenience, safety, and the  protection of park resources. The decision to fund these services was a rational decision based  on evidence in the record and was neither arbitrary nor capricious. Plaintiffs challenge to the  BCF decision based on claims that the NPS did not follow the FLREA provisions and Appendix  L guidelines related to civic engagement are meritless and should be disregarded.   3.  16 U.S.C. § 6802(d)(1)(E) and (g)(2)(A), in clear and unambiguous language,  pertain only to the Forest Service, the Bureau of Land Management, and the  Bureau of Reclamation. Because these provisions do not relate to the NationalPark Service, they do not apply in this case.  Plaintiffs assert that 16 U.S.C. § 6802(d)(1)(E) and (g)(2)(A) prohibit the implementation  of the BCF. See Pls.’ Resp., pp. 11-14. This assertion is wrong; neither provision applies to the  NPS, and, therefore, neither has relevance or application in this case. It is well-settled law in the  Sixth Circuit that “when interpreting statutes, the language of the statute is the starting point for  interpretation, and it should also be the ending point if the plain meaning of that language is  clear.” United States v. Boucha, 236 F.3d 768, 774 (6th Cir. 2001) (citation and internal  quotation marks omitted); see also Chrysler Corp. v. Comm’r, 436 F.3d 644, 655 (6th Cir. 2006).   16 U.S.C. § 6802(d) imposes certain limitations on various land management agencies  regarding the establishment of recreation fees. Subsection 6802(d), has four parts. Subsection  6802(d)(1), entitled “Prohibition on fees for certain activities or services,” confines its  application to the Bureau of Land Management, the Forest Service, and the Bureau of  Reclamation. The introductory sentence of subsection 6802(d)(1) states in pertinent part:   14  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 14 of 29 PageID #:  1800     The Secretary shall not charge any standard amenity recreation fee or expanded  amenity recreation fee for Federal recreational lands and waters administered by  the Bureau of Land Management, the Forest Service, or the Bureau of  Reclamation under this chapter for any of the following:   (A) – (D) * * *  (E) For camping at undeveloped sites that do not provide a minimum number of  facilities and services as described in subsection (g)(2)(A).  (F) – (K).  16 U.S.C. § 6802(d)(1) (emphasis added). Also cited by Plaintiffs, 16 U.S.C. § 6802(g)(2),   entitled “Expanded amenity recreation fee/Other Federal land management agencies,” in clear   and unambiguous language applies only to the Bureau of Land Management, the Forest Service   and the Bureau of Reclamation. In relevant part, it states:   Except as limited by subsection (d), the Secretary may charge an expanded  amenity recreation fee, either in addition to a standard amenity fee or by itself, at  Federal recreational lands and waters under the jurisdiction of the Forest Service, the Bureau of Land Management, or the Bureau of Reclamation, but only forthe following facilities or services: (A)-(J).   16 U.S.C. § 6802(g)(2) (emphasis added). This provision makes no reference to the NPS.   Although Plaintiffs urge that a plain reading of subsections 6802(d)(1)(E) and (g)(2)(A) limits   Defendants’ authority to establish the BCF, they simply ignore the plain words of these   provisions, which specifically restrict their application to agencies other than the NPS.   As Defendants have previously explained, NPS’ authority to establish an expanded   amenity recreation fee is grounded in 16 U.S.C. § 6802(g)(1), entitled “Expanded amenity   recreation fee/NPS and USFWS authority.” Subsection 6802(g)(1) states that:   Except as limited by subsection (d), the Secretary of the Interior may charge an  expanded amenity recreation fee, either in addition to an entrance fee or by itself,  at Federal recreational lands and waters under the jurisdiction of the National Park  Service or the United States Fish and Wildlife Service when the Secretary of the  Interior determines that the visitor uses a specific or specialized facility, equipment, or service.   The reference to the limitations in subsection 6802(d) must be construed to refer only to those   parts of subsection 6802(d) that, by their terms, apply to the NPS, such as subsections   6802(d)(2)-(4).7 Plaintiffs reliance on subsection 6802(d)(1)(E) is entirely misplaced because,   7 The phrase “Except as limited by subsection (d)” as found in subsection 6802(g)(1) is not  superfluous. For example, while subsection 6802(g)(1) generally allows the NPS and the USFW  to charge an expanded amenity recreation fee in addition to an entrance fee, the GRSM is   15  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 15 of 29 PageID #:  1801     by its terms, it applies only to the Forest Service, the Bureau of Land Management, or the Bureau  of Reclamation. See Pls.’ Resp., p. 14. Likewise, Plaintiffs’ statement that “16 U.S.C. § 6802  (g)(2)(A) puts dramatic limits on defendants’ authority to charge this BCF for backcountry  camping” is also incorrect because the provision’s plain language restricts its operation to the  Forest Service, the Bureau of Land Management, or the Bureau of Reclamation.  The Court should reject Plaintiffs’ inaccurate interpretation of 16 U.S.C. § 6802, which does not  comport with the plain, unambiguous language of the statute.   4.  The NPS did not grant a license to Don Sundquist or Blackberry Farm, nor did  NPS improperly reroute the Ace Gap Trail off privately owned property.  Plaintiffs entitle Part E of their Response, “Licensing.” Pls.’ Resp., p. 14. The words  “license” or “licensing,” however, do not appear anywhere in the body of Plaintiffs’ argument.8   A.  Plaintiffs lack standing to bring their claims in Count II  The gravamen of Plaintiffs’ argument in Part E is that NPS illegally rerouted the Ace Gap  Trail off of former governor Don Sundquist’s private property instead of complying with  28 U.S.C. § 2409a. See Pls.’ Resp., p. 15. As with their previous filings, in their Response,  Plaintiffs fail to identify any imminent or present injury, nor do they request any sort of redress  for the alleged improper grant of licenses to Mr. Sundquist and Blackberry Farm. Indeed,  Plaintiffs begin and end their argument by asserting that the sole issue is whether Defendants   specifically prohibited from charging an entrance fee by subsection 6802(d)(3)(E). Subsection  6802(d)(3)(E), which unlike 6802(d)(1)(E), clearly applies to the NPS and prevents the GRSM  from charging an entrance fee at the Park’s “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.” Hence, under subsection 6802(g)(1), the GRSM may  charge an expanded amenity recreation fee, but without the option of charging an entrance fee.   8 Indeed, Plaintiffs do not refute any part of Defendants’ argument that no license from NPS was  ever sought by, or granted to, Don Sundquist or Blackberry Farm. As Defendants’ previously  explained, in order to establish jurisdiction under the APA, a plaintiff must challenge either a  “failure to act” under § 706(1) or a “final agency action” under § 706(2). Here Plaintiffs have  done neither. There is no evidence that Mr. Sundquist or Blackberry Farm ever applied for, or  were granted, a license or lease to property inside the GRSM. Because there is no final agency  action subject to judicial review under 5 U.S.C. 704, Plaintiffs have failed to establish  jurisdiction. See Defs.’ Mem., pp. 62-65 regarding Plaintiffs’ failure to identify a “final agency  action” or “failure to act” under the APA.   16  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 16 of 29 PageID #:  1802     have exhibited a pattern of consistent failure to follow the law. Id. at 14-15. In essence,  Plaintiffs seek only an advisory opinion from this Court, and, in so doing, again demonstrate that  they lack standing to bring this claim. Article III courts may not issue merely advisory opinions.  As the Sixth Circuit has said:   Article III of the United States Constitution empowers the judiciary to adjudicateonly actual cases or controversies, and not to issue advisory opinions.  Accordingly, at no stage of review may a federal court “‘give opinions upon moot  questions or abstract propositions, or . . . declare principles or rules of law whichcannot affect the matter in issue in the case before it.’”   In re Clean Earth Kentucky, LLC, 312 F. App’x 718, 719 (2008) (citations omitted). In finding  no standing in Friends of Tims Ford v. TVA, 585 F.3d 955, 971 (6th Cir. 2009), the Sixth Circuit  also stated:   “The real value of the judicial pronouncement -- what makes it a proper judicialresolution of a ‘case or controversy’ rather than an advisory opinion -- is in  the settling of some dispute which affects the behavior of the defendant towards  the plaintiff.” Hewitt v. Helms, 482 U.S. 755, 761, (1987); see also Steel Co. v.  Citizens for a Better Env’t, 523 U.S. 83, 107 (1998), (noting that “[r]elief that  does not remedy the injury suffered cannot bootstrap a plaintiff into federal  court; that is the very essence of the redressability requirement”).   (Emphasis added). Because Plaintiffs have not suffered an injury in fact, nor have they even  attempted to articulate one, and because there is no redress that they seek other than a declaration  from this Court that the NPS failed to follow the law, subject matter jurisdiction is lacking and  Count II must be dismissed. See Defs.’ Mem., pp. 55-57 regarding standing and lack of subject  matter jurisdiction.   B.  The GRSM did not acquire a property interest in the segment of the Ace Gap  Trail that encroached upon Don Sundquist’s private property.  Throughout this litigation and with virtually no argumentation, Plaintiffs have made  vague and nonspecific claims that Ace Gap Trail (AGT) “became property” of United States.  See Am. Compl., ¶ 68; Pls.’ Br. in Supp. of Mot. to Vacate (Pls.’ Br. in Supp. of Mot.), [Doc.  48]9, p. 20-21; id. at 26; and, Pls.’ Resp., pp. 14-15. These statements are based on faulty  assumptions about property rights and eminent domain. Conceivably, the public’s continued use   9 Note that Plaintiffs filed two briefs in support of their Motion to Vacate [Docs. 45 &  48]. In the instant Reply, references to Plaintiffs’ brief in support are to Document 48, unless  otherwise noted.   17  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 17 of 29 PageID #:  1803     of a Park trail that inadvertently encroaches on adjacent private property might create a claim of  a public prescriptive easement under State law. However, the title to such a public easement  would not belong to the Park. There is no evidence that the Park has ever maintained that it  acquired fee simple ownership of adjacent property through the public’s use of adjacent land as a  walking path.   If a public easement is created on another’s property through continued use that meets the  state law requirements for a prescriptive easement,10 the property interest in the pathway would  be an easement authorizing passage on another’s land, not any greater title. Plaintiff’s claim that  a segment of AGT on adjacent property “became property” of the Park is mistaken, in part  because it fails to identify or analyze the type of property interest involved. Under the  circumstances, the nature of the property interest potentially obtained by the public was a mere  right of passage (a prescriptive easement11), not ownership or any greater title. A right of way  across another’s property is the most common form of easement. Shew v. Bawgus, 227 S.W.3d  569, 578 (Tenn. Ct. App. 2007) (citation omitted). Therefore, had the Park attempted to  formalize the potential easement rights regarding the encroaching trail segment (assuming that  the encroachment met all requirements of Tennessee prescriptive easement law), the property  interest it might have obtained on behalf of the public was an easement for passage. Upon  receiving communication from Mr. Sundquist about the encroachment of the AGT on his land,   10 The creation of a prescriptive easement requires that the use of the property be, for the full  prescriptive period, “adverse, under a claim of right, continuous, uninterrupted, open, visible, exclusive,  and with the knowledge and acquiescence of the owner of the servient estate.” Pevear v. Hunt, 924  S.W.2d 114, 116 (Tenn. Ct. App. 1996) (citations omitted).   11 “While . . . prescriptive easement and adverse possession have some elements in  common, there are, nevertheless, some fundamental differences.” Michael v. Jakes, 2002 Tenn.  App. LEXIS 489, 11-12 (Tenn. Ct. App. July 12, 2002), citing House v. Close, 48 Tenn. App.  341, 346 S.W.2d 445 (1961). Easement by prescription differs distinctly from title by adverse  possession. The latter may ripen into an absolute fee simple title. The former does not arise from  absolute possession and control, but from a persistent and continuous use of a privilege less than  that of ownership. The most common form of easement is a right of passage only which leaves  the owner of the underlying estate free to use the property in any way that does not interfere with  the easement right. Star Enter. v. Warner, 1995 Tenn. App. LEXIS 432, at *14-*15 (Tenn. Ct.  App. June 28, 1995).   18  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 18 of 29 PageID #:  1804     the Park decided to resolve the issue by relocating a section of trail, and abandoned the former  encroaching location of the trail.   C. The NPS had management discretion to relocate the AGT encroaching segment.  Plaintiffs argue that the AGT should not have been rerouted. The implication of this  argument is that, when a National Park boundary trail inadvertently encroaches on adjacent  private property, the NPS must, without exception, leverage the encroachment to take private  property. Such an approach would be contrary to NPS management policies. Moreover, Plaintiff  fails to identify any statute or regulation that compels such an adversarial approach to conflicts  between Park lands and the lands of adjacent owners. There is, however, both statutory authority   and published national policies that permit discretion in dealing with an inadvertent trail  encroachment.   A decision by a superintendent to close or relocate a trail is a discretionary decision  authorized by statute. See 16 U.S.C. § 1 (“The service thus established shall promote and  regulate . . . national parks . . . by such means and measures as conform to the fundamental  purpose of the said parks. . . .”), and 16 U.S.C § 8 (“The Secretary of the Interior, in his  administration of the National Park Service, is authorized to construct, reconstruct, and improve  roads and trails, inclusive of necessary bridges, in the national parks and monuments under the  jurisdiction of the Department of the Interior.”). See Isle Royale Boaters Ass’n v. Norton, 330  F.3d 777, 782 (6th Cir. 2003) (“Organic Act makes no reference to the placement of docks . . . .  [a]ccordingly, the National Park Service has broad discretion to determine where docks are  located on Isle Royale and, indeed, whether to permit docks at all . . . .”); New York Coastal  Partnership, Inc. v. United States Dep’t of Interior, 341 F.3d 112 (2d Cir. N.Y. 2003) (“While  plaintiffs-appellants interpret these statutes [including 16 U.S.C. § 1] as imposing general duties,  there is no indication that the federal defendants-appellees’ exercise of discretion violates any  specific requirement or prohibition, as Congress afforded them considerable discretion in  exercising their authority to remedy shore erosion on Fire Island.”). Clearly, the superintendent   19  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 19 of 29 PageID #:  1805     has the authority to build and relocate trails. If a superintendent ordered that a trail be relocated  pursuant to his/her opinion that the visitor experience is enhanced by limiting exposure to  adjoining landowners and private development, that would fit precisely with Congress’s directive  that NPS “promote and regulate” park resources with the purpose “to conserve the scenery and  the natural and historic objects and the wild life therein, as set forth in 16 U.S.C. § 1. This  approach also allows NPS to be respectful of adjacent private property owners in the  management of these areas.    Moreover, the superintendent’s discretion is not contradicted by any statute or regulation  and is consistent with published management policies. The published national management  policy in effect at the time of the AGT relocation included the following guidance:   Park Service activities may have impacts outside park boundaries. Recognizing  that parks are integral parts of larger regional environments, the Service will work  cooperatively with others to anticipate, avoid, and resolve potential conflicts;  protect park resources and values; provide for visitor enjoyment; and addressmutual interests in the quality of life of community residents.   NPS Management Policies, 2001, § 1.5. See https://archive.org/details/managementpolici01nati .  In this case, the intent of the above policy was furthered by the NPS decision to relocate the trail  away from Mr. Sundquist’s property. The trail relocation simultaneously resolved a potential  property conflict with a neighbor, provided for visitor enjoyment by enhancing the wilderness  experience, and addressed the natural and mutual interests in the quality of life of community  residents.   D. The Quiet Title Act does not dictate a different result.  Plaintiffs state that “legally, Governor Sundquist had one method to dispute title to the  property over which Ace Gap Trail passed, 28 U.S.C. § 2409a [the Quiet Title Act].” Pls.’  Resp., pp. 14-15. The United States does not dispute that the Quiet Title Act would have been an  available avenue to seek judicial relief if the United States had ever asserted an interest in the  subject property. However, 28 U.S.C. § 2409a does not automatically preclude, as Plaintiffs  suggest, non-judicial and less formal approaches to resolving property conflicts. This is  particularly true when, as here, the issue involved merely a minor encroachment. Moreover, §   20  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 20 of 29 PageID #:  1806     2409a(g) requires that an action be brought within twelve years of the date upon which it  accrued:  Such action shall be deemed to have accrued on the date the plaintiff or his  predecessor in interest knew or should have known of the claim of the United   States.  Thus, if the events of 2000 (see Defs.’ Mem., pp. 16-17) triggered the accrual provisions of the  Quiet Title Act, the issue was resolved well before the limitations period expired.   5. Plaintiffs are not entitled to discovery or supplementation of the Administrative Record.  In their Response, Plaintiffs argue they are entitled to discovery to inquire about “verbal  complaints,” post-decisional statistics they allege are in dispute, emails they claim are missing  from the record, civil engagement guidelines that they claim were not published in the Federal  Register, and chambers of commerce contacts they claim were not made. Pls.’ Resp., pp. 16-17.  Plaintiffs, however, have not overcome the presumption in this case that the Administrative  Record was properly designated and completed, and they offer no valid justification for  discovery to complete or supplement the record.   It is well-recognized that judicial review of an agency’s APA decision is limited to the  administrative record. Camp v. Pitts, 411 U.S. 138, 142 (1973); Sierra Club v. Slater, 120 F.3d  623, 638 (6th Cir. 1997). An administrative record consists of the materials compiled by the  agency that were before it at the time it made the decision at issue. Camp, 411 U.S. at 142. In  Tennessee Clean Water Network v. Norton, No. 3:05-CV-214, 2005 WL 2464675, at *6 (E.D.  Tenn. Oct. 4, 2005) (Varlan, J.), a sister court in this division has stated:   The administrative record consists of all the materials compiled by the agency that  were before the agency at the time of the decision at issue. Supplementation of  the administrative record may be appropriate “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.” Supplementation of the record may also be permitted if  the plaintiff has made a strong showing of bad faith on the part of the agency.  Such situations are generally considered to be “exceptional circumstances.”   Id. (citations omitted). In Bullwinkel v. U.S. Dep’t of Energy, No. 11-1082, 2013 WL 384902, at  *1 (W.D. Tenn. Jan. 16, 2013) (unpub.) it was stated:  “The complete administrative record consists of all documents and materials  directly or indirectly considered by the agency.” Courts are to apply a   21  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 21 of 29 PageID #:  1807     presumption that the agency properly compiled the administrative record “absent   clear evidence to the contrary.”  Id. (citations omitted).   NPS has assembled an Administrative Record that contains all the documents that were  relied upon in making the decision to approve the BCF. Notwithstanding the many rhetorical  questions that appear in Plaintiffs’ briefing and the affidavit of their attorney (e.g., Pls.’ Br. in  Supp. of Mot., p. 18-20; Morton Decl., pp. 1-3) , there has been no credible evidence showing  that the NPS deliberately or negligently excluded from the Administrative Record documents  that were directly or indirectly considered by the agency. And, there most assuredly has been no  strong showing of bad faith to justify discovery.   The single issue on which the Court should focus is whether the record is sufficient for  the purposes of judicial review under the APA. The approximately 700-page Administrative  Record contains the documents upon which the NPS decision makers relied in approving the  BCF, and it is adequate for the Court’s review. There are numerous briefing papers and drafts  proposals that show the development of the idea to institute a BCF before it was presented to the  public during civic engagement. Public reaction is documented by the inclusion of over 200  written comments, both positive and negative. Other methods of civic engagement are  referenced, both directly and indirectly. Twenty-nine email threads showing the development  path of the BCF, including the agency’s awareness of dissenting views, are contained in the  record. The final Fee Implementation Plan, with its final explanation and rationale for the BCF  is included. That additional documents might provide a fuller record makes no difference if the  record as it exists is adequate to explain the NPS decision and the factors weighed in reaching it.  Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir. 1986) (finding that that discovery  might provide fuller record but was unnecessary because it would not address issues already  present and considered in the record); Griffin v. Yuetter, No. 90-55368, 1991WL178134, at *1  (9th Cir. Sept. 11, 1991) (same); Ctr. for Biological Diversity v. Jewell, No. CV-12-02296, 2014  WL 116408, at *1 ( D. Ariz. Jan. 13, 2014) (same). The agency is not required to include in the  administrative record every piece of paper peripherally related but not material to the decision at   22  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 22 of 29 PageID #:  1808     issue. “Personal files and notes are not required to be contained in an administrative record. . . .  [Where the administrative record] “is sufficient to show the decision-making process and to  permit judicial review under the APA . . . the absence of some documents that could have been  included does not justify invalidating the agency action or changing the standard of review.”  Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 1308-09 (W.D. Wash. 1994), aff’d, 80  F.3d 1401 (9th Cir. 1996) (internal citation omitted). “[T]he record need not be a trail  emblazoned every few yards with signposts detailing every minute fact that went into the  Secretary’s decisional process.” C.K. v. Shalala, 883 F. Supp. 991, 1004 (D.N.J. 1995).   Discovery is not appropriate for any items identified by Plaintiffs in their briefing, as  explained below:   a) Verbal complaints and comments See Pls.’ Resp., p. 16; Pls.’ Br. in Supp. of Mot., p.  18; Declaration of Myers Morton (Morton Decl.), ¶¶ 4-5, 9.  Among other things, civic engagement contemplates talking with individuals and groups  interested in the BCF, whoever they may be. There is no requirement that every verbal  encounter, no matter wherever or whenever it occurs, should have been committed to writing by  GRSM staff for inclusion in the Administrative Record. Such an expectation is unreasonable  and should be rejected by the Court. Moreover, this Administrative Record already contains  over 200 written comments from the public that express views opposed and in favor of the BCF.  b) Statistics See Pls.’ Resp., p. 17; Pls.’ Br. in Supp. of Mot., p. 20; Morton Decl., ¶ 6.  By Plaintiffs’ own admission, the statistics regarding use of backcountry campsites relate  to a period of time after 2012. These statistics are, therefore, post-decisional. They were not a  part of the Administrative Record considered by the agency in making its decision to approve the  BCF and thus, cannot be a part of the Court’s record review under the APA.  c) Emails See Pls.’ Resp., p. 17; Pls.’ Br. in Supp. of Mot., p. 19; Morton Decl., ¶ 7.  Plaintiffs have identified certain emails included in the Administrative Record that  contain, in the email heading, the sentence: “This message has been replied to.” Plaintiffs  conclude that this sentence must mean there are “pertinent” emails missing from the  Administrative Record. That some emails, which were part of an email thread related to the   23  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 23 of 29 PageID #:  1809     BCF, were not included in the Administrative Record does not mean the Administrative Record  is incomplete. Not every email in a thread would necessarily contain information relevant to the  development of BCF Fee Implementation Plan or the decision to approve it. This record amply  demonstrates its completeness as discussed above, especially with the inclusion of many  documents expressing a variety of views about the BCF, including disapproval. All documents  that were located through a good faith, thorough search of records were included in the  Administrative Record based on their substance and relevance to the BCF. Chief Ranger  Clayton Jordan, in certifying the record stated:   A thorough effort was made by me and others under my coordination to gather  documents that were before the NPS at the time the decision was made. . . . I  hereby certify that, to the best of my knowledge, the documents identified and  described in the index accompanying this Declaration include all materialsretained in the NPS files that were considered, either directly or indirectly, by therelevant decision-makers in the NPS with respect to the decision to implement a  backcountry camping fee, as challenged in Plaintiffs’ Amended Complaint.   Declaration of Clayton F. Jordan, (certifying and designating the Administrative Record) [Doc.  36], ¶¶ 3, 5. “Courts are to apply a presumption that the agency properly compiled the  administrative record “absent clear evidence to the contrary.” Bullwinkel, 2013 WL 384902, at  *1. Plaintiffs have not overcome this presumption.   d) Publishing guidelines in the Federal Register See Pls.’ Resp., p. 17; Pls.’ Br. in Supp.  of Mot., pp. 18, 20; Morton Decl., ¶ 10.  Plaintiffs assert that Defendants had a legal duty to publish guidelines related to the BCF  in the Federal Register. It has already been shown, however, that no such legal duty existed and  respectfully refer the Court to Defendants’ earlier discussion of the issue. See infra, 8. As to  Plaintiffs passing reference to the “conveyance” to Mr. Sundquist and the supposed need to  publish said conveyance, Plaintiffs have misconstrued the facts and their consequence. There  simply was no conveyance of any kind to Mr. Sundquist and Plaintiffs do not identify the  publishing requirement to which they refer.  e) Chambers of Commerce See Pls.’ Resp., p. 17; Morton Decl., ¶ 11.  Plaintiffs maintain that the NPS did not contact Chambers of Commerce during the civic  engagement process. The Administrative Record reflects that such contacts were made as was   24  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 24 of 29 PageID #:  1810     discussed above. See infra, p.11.   f) Media Interviews See Pls.’ Br. in Supp. of Mot., p. 18; Morton Decl., ¶ 8.   Plaintiffs note that the Administrative Record references media interviews that were  granted during July and August 2011 to explain the BCF proposal. Plaintiffs rhetorically ask,  “Are those media interviews not part of the defendants’ required civic participation in deciding  whether or not to implement the BCF?” The response is that while NPS was required to engage  in civic engagement, guidelines make clear that “[m]ethods for engaging the public are not “one  size fits all.” App’x L, (AR 52) [Doc. 39-1 ID# 421]. Media interviews were a discretionary  civic engagement method employed in this case and they were appropriately referenced in the  Administrative Record, showing the decision-maker the type of proactive outreach made by the  GRSM. There is no legal requirement to include in the Administrative Record notes of requests  for interviews, nor is there an obligation for GRSM staff to acquire transcripts of public remarks  and statements made during interviews to include in the record.   g) Employee’s personal email exchanges; Thank you notes; Notes of phone  conversations See Pls.’ Br. in Supp. of Mot., p. 19.  Plaintiffs seek purported personal email exchanges between GRSM employees regarding  the unreleased BCF fee proposal, thank you notes, and unknown notes from a phone  conversation Plaintiffs only can speculate took place between Chief Ranger Clayton Jordan and  an unidentified person. Plaintiffs completely disregard the principles articulated in known case  law as to what is included in an administrative record. The record “consists of all the materials  compiled by the agency that were before the agency at the time of the decision at issue.”  Tennessee Clean Water Network, 2005 WL 2464675, at *6. However, courts have recognized  reasonable parameters in defining what must be in an administrative record and held that  “[p]ersonal files and notes are not required to be contained in an administrative record.” See  Seattle Audubon Soc., 871 F. Supp. at 1309. Most assuredly, in this case, any personal email  exchanges or thank you notes and other notes Plaintiffs seek are not properly a part of the  Administrative Record, and Plaintiffs’ arguments to the contrary should be rejected.   25  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 25 of 29 PageID #:  1811     h) Meeting notes and SFW letter to Defendants See Pls.’ Br. in Supp. of Mot., p. 19.  Plaintiffs assert that notes taken by a GRSM employee during a May 31, 2012 meeting  with local backpackers regarding the BFC should be a part of the Administrative Record.  Likewise, they claim that a letter sent by Plaintiffs to Defendants, dated August 28, 2012, should  be included as well. The BCF was approved months earlier on February 22, 2012. These notes  and the letter, being post-decisional, were not part of the Administrative Record considered by  the agency and, thus, cannot be a part of the Court’s record review under the APA.  i) “Director’s Memo” See Pls.’ Br. in Supp. of Mot., p. 18.  Plaintiffs note that the “Director’s” memo is not included in the Administrative Record.  Plaintiffs presumably reference the Director’s January 31, 2011, that was mentioned in the  Southeast Regional Director’s Memorandum, dated November 22, 2011. See (AR 171-72) [Doc.  39-1 ID# 540-41]. The Director’s January 31, 2011 Memo did not need to be included in the  Administrative Record. In Southeast Regional Director’s November 2011 Memorandum, the  Regional Director, David Vela, states that he is conveying his formal approval of the BCF, as  required by the Director’s January 31, 2011 Memo, and further states that:  Copies of both park’s implementation plans are attached to this memo. Each parkhas identified the reasons for their request . . . . Both park plans have been  reviewed and approved by the Southeast Region.  Id. at (AR 172) [Doc. 39-1 ID# 541]. The Director already had in his official possession his own  January 31, 2011 Memorandum, a memo which Vela understood required formal approval from  a regional director in order to advance a fee implementation plan to Washington for approval.  Vela’s November 2011 Memorandum constituted the formal approval of a regional director, to  which he attached the GRSM’s BCF Implementation Plan. These latter two documents were  crucial documents submitted to the final decision-makers for review. They are in the  Administrative Record for the Court’s APA review. “Courts are to apply a presumption that the  agency properly compiled the administrative record “absent clear evidence to the contrary.”  Bullwinkel, 2013 WL 384902, at *1. Plaintiffs have not overcome this presumption by merely  noting the mention of the Director’s Memo of January 31, 2011. All critical documents related   26  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 26 of 29 PageID #:  1812     to the reasons and rationale for the approval of the BCF are presently before the Court. The  Administrative Record is complete, and Plaintiffs’ contrary arguments should be rejected.  j) The Court should not permit discovery in any form. See Morton Decl., ¶ 16.  Plaintiffs state that they “should be able to ask [Clayton Jordan, who certified and  designated the Administrative Record] by deposition, interrogatories or supplemental affidavit to  reconcile these missing documents with the current Administrative Record.” As has already  been explained in this Reply and Defendants’ prior memoranda, Plaintiffs have failed to show  that the Administrative Record is incomplete. Plaintiffs desire nothing more than to engage in a  fishing expedition, which the Court should not permit. Plaintiffs should not be granted leave to  take general discovery, through interrogatories, requests for production, or depositions,  especially when Plaintiffs have made absolutely no showing of bad faith on the part of NPS. The  Sixth Circuit has stated that, “Even were the [defendant]’s determination unsupported by the  record, the proper remedy would be to remand to the agency for additional investigation or  explanation, because ‘[t]he reviewing court is not generally empowered to conduct a de novo  inquiry into the matter being reviewed and to reach its own conclusions based  on such an inquiry.’” Kroger Co. v. Reg’l Airport Auth. of Louisville and Jefferson County, 286  F.3d 382, 387 (6th Cir. 2002) (quoting Florida Power & Light, 470 U.S. at 744). Although  Defendant’s incorporate by reference as part of this Reply their prior briefings, the Court is  specifically referred to Defs.’ Mem., pp.65-67, for further treatment of the discovery issue.   6. Integrity  As they have in previous filings, Plaintiffs assert in their Response that Defendants were  not “forthright and honest in representations about the need for the BCF and about the benefits of  the BCF.” Pls.’ Resp., Section G. pp. 18-20. Nothing could be further from the truth. The  comprehensive, transparent, balanced nature of the Administrative Record demonstrates the   27  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 27 of 29 PageID #:  1813     honor and reliability of the GRSM staff. Plaintiffs refuse to acknowledge what the record   clearly shows, which is that the reasons for, and the contours of, the BCF developed over time   until a detailed draft plan was proposed to the public, ultimately adjusted to accommodate public   opinion regarding the fee rate, and then finally proposed to NPS decision-makers. Most   organizational programs unfold and develop in just this way. A review of the Administrative   Record reveals that there were no inconsistencies or confusion as to the nature of the proposal   presented to the public for their feedback. Plaintiffs’ confusion seems to be rooted in their   misunderstanding of the development of the fee proposal, which occurred before civic   engagement began. Plaintiffs’ desire to find nefarious intent is simply misguided and   unjustified. Plaintiffs have repeated the bases for these particular arguments in previous briefs,   and Defendants have fully responded. The Court is specifically directed to Defs. Mem., pp. 49   54, for a fuller discussion of the issues presented in this section.   CONCLUSION   For all the foregoing reasons, Defendants’ Cross Motion for Summary Judgment should   be granted and Plaintiffs’ Motion to Vacate should be denied in all respects.   Respectfully submitted,   WILLIAM C. KILLIAN  United States Attorney   s/Loretta S. Harber   Loretta S. Harber (BPR No. 007221)  Assistant United States Attorney  Attorney for Defendant  800 Market Street, Suite 211   Of Counsel for the Defendants: Knoxville, Tennessee 37902  John P. Coleman, Esq. Telephone: (865) 545-4167  Nicklas Holt, Esq. Email: loretta.harber@usdoj.gov  Office of the Field Solicitor   U.S. Dept. of Interior  800 S. Gay Street, Suite 800  Knoxville, TN 37929  28  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 28 of 29 PageID #:  1814     CERTIFICATE OF SERVICE   I hereby certify that on February 27, 2015, a copy of foregoing Reply was electronically   filed. Notice of this filing will be sent by operation of the Court’s electronic filing system to   plaintiff=s attorney, J. Myers Morton, who is registered as a user of the electronic case filing   system as indicated on the electronic filing receipt. Parties may access this filing through the   Court’s electronic filing system.   s/ Loretta S. Harber__________  Loretta S. Harber  TN BP#: 007221  Assistant United States Attorney  800 Market Street  Suite 211  Knoxville, TN 37902   29  Case 3:13-cv-00116-TWP-HBG Document 82-1 Filed 02/27/15 Page 29 of 29 PageID #:  1815    

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