SFW Response 9/10/15

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’ REPLY BRIEF

J. Myers Morton

MORTON & MORTON, PLLC

One Morton Place

1518 N. Broadway

Knoxville, Tennessee 37917

(865) 523-2000

myersmorton@comcast.net

Attorney for Appellant

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

A. No Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Public Participation and Involvement . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. Federal Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. Guidelines for public involvement . . . . . . . . . . . . . . . . . . . . . 3

C. Admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

D. Agency Misrepresentations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1. Difficult reservation system . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2. Backcountry Rangers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3. Syntax error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TABLE OF AUTHORITIES

CASES: Brief Page

Latif v. Obama, 666 F.3d 746, 748 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . 6

Memphis Dist. of Browning-Ferris Industries of Tennessee, Inc. v. Teamsters Local

Union No. 984, 946 F.2d 895 (C.A.6 (Tenn.), 1991) . . . . . . . . . . . . . . . . . . . 14,15

Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007) . . . . . . . . 6

STATUTES:

16 U.S.C. §§ 6801, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,4

16 U.S.C. § 6803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,3

OTHER AUTHORITY

Appendix L, Public Participation and Notification Guidelines . . . . . . . . . . . 3,4,5,6

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’ REPLY BRIEF

Come appellants, John Quillen, Rob Earl Cameron, Gregg Bostick and

Southern Forest Watch, Inc. (hereafter “Southern Forest Watch”), through counsel,

and file this reply to appellees’ (hereafter “the Agency”) brief and respectfully

show as follows:

A. No Evidentiary Hearing

This case was dismissed on summary judgment, and there has never been an

evidentiary hearing in these proceedings.

B. Public Participation and Involvement

This Agency was required to provide public participation and involvement

in deciding to adopt the backcountry tax or fee (hereafter “Fee”). The Fee was established under 16 U.S.C. § 6801, et seq (hereafter “FLREA”). [Doc32, Page ID#320;Doc39-1, PageID #399,417,419-423;Doc39-2; PageID#508,509,529-535; 540,620]

In 16 U.S.C. §6803, titled “Public participation,” Congress described the

public participation scheme that the Agency was required to follow.

(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.

Before establishing any new recreation fee area, the Secretary

shall provide opportunity for public involvement by—

(1) establishing guidelines for public involvement;...” (Emphasis

supplied.)

1. Federal Register

In footnote 2, starting on page 19, and elsewhere in the brief, the Agency

asserts Southern Forest Watch waived the issue of public notice of the Great

Smoky Mountains National Park (hereafter “Smoky Mountains”) in the Federal

such a perfunctory manner, and the Fee does not make the Smoky Mountains a

FLREA “new recreation fee area.”

Southern Forest Watch admits the argument is simple.

By this record, all previous “front country camping” fees in the Smoky

Mountains predated FLREA. [Doc.39-2; PageID#547]

By this record, this Fee was the first recreation fee in the Smoky Mountains

since FLREA was enacted. It is apparently a 16 U.S.C. § 6803(c) new fee area,

and public notice of the BCF in the Federal Register is required. [Doc32,Page

ID#320; Doc39-1; PageID #399,419-423;Doc39-2; PageID#508,509,529-535;

532,540,620] 1

To reiterate, there was no evidentiary hearing.

2. Guidelines for public involvement

Pursuant to 16 U.S.C. §6803(c)(1), the Agency established those guidelines

for public involvement called “Appendix L, Public Participation and Notification

_______________________

1 Ironically, the Agency relies upon Appendix L for legal support that the

Smoky Mountains were not a FLREA new recreation fee area. In footnote 2, on

page 20, it includes:

“...Regardless, it is undisputed that NPS has long charged other fees in

the GRSM for the use of various campgrounds, group campsites,

horse camps, and picnic pavilions. AR178, RE 39-2, Page ID 547

(listing fees in the GRSM); Reference Manual 22A, App’x L 271-73,

RE 72-1, Page ID 1689-91 (explaining that parks that previously

charged fees are not new recreation fee areas). Thus, the Fee did

not make the GRSM a “new recreation fee area” under the FLREA.

See 16 U.S.C. § 6803(b), (c); see Dist. Ct. Mem. Op. 31, 39-40, RE

89, Page ID 1893, 1901-02...” (Emphasis supplied.)

Guidelines” (hereafter “Appendix L”). [Doc 39-1,PageID #419-423; Doc 72,

PageID #1688] Appendix L explicitly applies to new recreation fee areas and adding new fees, among other things.

“Background

The Federal Lands Recreation Enhancement Act of 2004 (FLREA)

requires that the public have opportunities to participate in the

development of, or change to, a recreation fee established under the

Act...

...Intention of the Fee Guidelines

1. Assist the parks in complying with legal public participation

requirements for changing existing fees, adding new fees, or

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 were 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]2

____________________________________________

2 At best 75, turned out in favor of the BCF, and at least 3,600, turned out

against the BCF. [Doc39-2;PageID# 521,522; Doc39-3;PageID #632-669; Doc39-

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.)[Doc.39-1

Page ID#421]

The Agency asserts Appendix L is not binding on the Agency. On page 22,

it states:

“...For several reasons, internal reference manuals and guidance

documents such as Reference Manual 22A, Appendix L are not

binding...”

Southern Forest Watch respectfully asserts these guidelines are binding on

this Agency during its efforts to pass this Fee because Appendix L was

promulgated or established pursuant to Congressional mandate by 16 U.S.C.

§6803(c)(1). Appendix L also explicitly states it applies to new fees this Agency

4; PageID# 672-1013; Doc39-5;Page ID#944-958;Doc39-6; Page ID# 963-1064]

adopts.

Additionally, on page 27, the Agency stated it followed Appendix L.

“...NPS exceeded those statutory minima and followed the nonbinding

guidance of Appendix L by proactively notifying numerous stakeholders and considering their input...”

On page 23, the Agency states “...And NPS complied with Appendix L as

well...”

On pages 27, and 32, the Agency described how it had complied with

Appendix L.

“...The internal agency notes in the administrative record indicate that

the Park staff followed that plan, and ‘[n]otified congressional

delegation, state and local officials, park partners, and CUA holders

via briefing paper distribution and phone calls.’ AR182, RE 39-2,

Page ID 551. Because of these efforts, NPS could summarize the

feedback (or lack thereof) from Congressional delegations, state and

local officials, chambers of commerce, commercial-use authorization

holders, and stakeholder organizations. See AR243, RE 39-2, Page ID

612. ‘The presumption of regularity supports the official acts of public

officers and, in the absence of clear evidence to the contrary, courts

presume that they have properly discharged their official duties.’ Latif

v. Obama, 666 F.3d 746, 748 (D.C. Cir. 2011) (quoting Sussman v.

U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007)). ‘The

presumption applies to government-produced documents no less than

to other official acts.’ Id...”

“...In sum, the record indicates that NPS contacted Congressional

delegations, state and local officials, chambers of commerce,

commercial-use authorization holders, and local organizations. See

AR243, RE 39-2, Page ID 612. NPS correctly summarized the public

input, recognizing that the majority opposed the new Fee. AR243, RE

39-2, Page ID 612; AR254-55, RE 39-2, Page ID 623-24; AR245, RE

39-2, Page ID 614...”

The problem is, that is not correct.

For instance, the Agency never contacted local politicians and apparently,

never contacted chambers of commerce. Commissioner Burkhalter’s affidavit, the Knox County Commission’s resolution, and the State of Tennessee politicians’ opposition to the BCF, among other things, are clear evidence this Agency did not notify state and local officials. [Doc45-2; PageID# 1102;Doc45-3; PageID#1103-1106,Doc45-4;PageID#1103-1106;Doc45-5;PageID1110]

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. [Doc45-3; PageID#1103-1106]

The Agency argues that Commissioner Burkhalter’s affidavit, the Knox

County Resolution and Tennessee politicians’ subsequent opposition should be

ignored by this Court because the evidence did not exist, and the Agency could not

have considered them during the Agency’s process of adopting the BCF.

On page 31, the Agency asserts:

“...SFW suggests that NPS must have failed to contact the local

governments because Blount County, Knox County, and two members

of the Tennessee House of Representatives expressed disagreement

with the fee over a year after NPS issued its final decision. See

Appellants’ Br. at 28-36. But these documents are not in the

administrative record, and this Court should not consider them when

assessing the reasonableness of NPS’s actions in adopting the Fee, as

explained infra in Part II...”

The Agency misses the point.

First, the Agency admitted they did not contact any of the local elected

officials. [Doc45-3; PageID#1103-1106]

Secondly, the rest of the evidence not in the record proves the Agency did

not contact any of the local elected officials. [Doc45-2; PageID# 1102;Doc45-3;

PageID#1103-1106,Doc45-4;PageID#1103-1106;Doc45-5;PageID1110]

This Federal Agency is required to obtain input from local politicians,

among others, before implementing this Fee. This Federal Agency represented to

the trial court and this Court that, despite the lack of supporting evidence in the

record, it did contact local politicians, among others. There is clear evidence in

this record that this Federal Agency did not contact local politicians, among others.

[Doc45-3; PageID#1103-1106]

Almost sarcastically, on page 50, the Agency states:

“...Here, the administrative record reflects NPS’s process for

developing the Fee, which included ‘a full opportunity for comment

and response.’ Id. at 855. The ‘process afforded plaintiffs ample

opportunity to raise criticisms regarding the soundness and propriety’

of the Fee. Id. Here, SFW points to resolutions from government

officials who mostly ‘did not choose to voice their current

concerns during the rulemaking process. If they had, their

criticisms would have been incorporated in the administrative

record for future judicial review.’ Id.5 ‘Having failed to do so, and

thus having failed to afford [the agency] an opportunity to respond to

those criticisms during the rulemaking process, plaintiffs will not be

permitted to introduce new evidence in this judicial proceeding of

their concerns, expressed’ over one year ‘after the completion of the

administrative process.’ Id. at 855-56...” (Emphasis supplied.)

That can be considered essentially the entire point of this appeal.

Commissioner Burkhalter testified:

“...4. Had anyone contacted me as a Blount County Commissioner

regarding the proposed new fee for backpacking and camping, I would

have voiced substantial concerns about and objected to taxing

backpackers with a fee to go camping in the Great Smoky Mountains

National Park...”[Doc45-3;PageID#1104]

That is prejudicial error.

Southern Forest Watch asserts this Agency knew full well the opposition

against the Fee was substantial. The Agency only contacted those people and

entities that would not oppose their efforts and never contacted local officials and

politicians, despite asserting that it had in fact done so. Commissioner Burkhalter’s

affidavit, the Knox County Resolution and the State of Tennessee House of

Representatives Speakers’ condemnation of the Fee prove the Agency never

contacted and considered them, again despite being required to do so.

On page 31, the Agency restates the ultimate issue on appeal in this case.

“...It is not NPS’s fault that these governmental bodies and officials

did not express opposition to the Fee during the comment period...”

These [local] governmental bodies and officials did not express opposition

to the Fee during the comment period because this Agency did not contact them. It

is NPS’s fault.

C. Admission

There is an admission in this record that this Agency did not seek comments

from local political leaders before implementing this backcountry fee.

“...3. During February of 2013, the month in which the backpacking

and camping fee was to become effective, I personally spoke with

Superintendent Dale Ditmanson and he specifically acknowledged to

me that he did not directly contact the Blount County Commission

regarding the proposed new fee for backpacking and camping inside

the Great Smoky Mountains National Park, but did acknowledge that

he had contacted some of the state legislators...” [Doc45-3; PageID#

1103-1104]

D. Agency Misrepresentations

This Agency made several misrepresentations during the public involvement

and participation process, and the Agency’s brief treats those misrepresentations as

true.

1. Difficult reservation system

On page 1, the Agency repeats its assertion of problems with the reservation

system.

“...The National Park Service (NPS) established the Fee following

numerous visitor complaints about the difficulty of obtaining a

reservation to camp overnight at its backcountry campsites, as well as

complaints about people violating rules in the backcountry...”

(Emphasis supplied.)

On page 4, the Agency describes these numerous visitor complaints. Southern Forest Watch edits this Agency assertion by inserting the number of

backcountry camper complaints.

“...Beginning no later than 2009 and continuing through 2011, NPS

received e-mail complaints from backcountry campers about

difficulties in making backcountry camping reservations. AR8-14, RE

39-1, Page ID 377-83. These [7 out 66,000] campers generally

indicated that they had been unsuccessful in getting through the phone

reservation system because of busy signals or an automated response

that no one could take the call. AR8-14, RE 39-1, Page ID 377-83...”

[Doc39-1; PageID# 377-383,409]

First, you only needed reservations for 20% of the backcountry campsites. All other backcountry campsites never required reservations or phone calls to make reservations. [Doc-24;PageID#199]

Secondly, from 2009 through 2011, that was seven complaints out of 33,000

“Total People Per Year,” or 66,000 campers. [Doc39-1; PageID# 377-383,409]

In this record, there were no other complaints. [Doc36;PageID# 356,357, 358]

Southern Forest Watch has many members, all of whom have no knowledge

whatsoever of problems with the previous reservation system. The previous

reservation system worked. [Doc24,PageID#199-202;Doc39-1; PageID# 384-386]

2. Backcountry Rangers

On page 5, the Agency asserts funding backcountry rangers was a factor in

adopting the Fee.

“... The group also considered other topics related to backcountry

management, including the ‘[n]eed for more commissioned rangers in

the backcountry. Enforcement is seen as vital to the integrity and

credibility of the permit system, as well as customer service.’ AR25,

RE 39-1, Page ID 394...”

However, this referenced group additionally understood that the need for

backcountry rangers was not a part of their decision-making process. Backcountry

rangers were not being supported by the proposed Fee.

“...Other Group Discussion

During the course of the task group meeting, several other topics

related to backcountry management were discussed. The group agreed

that these topics were not directly relevant to the goal for the day,

but are important ideas to capture for further consideration... Need for

more commissioned rangers in the backcountry. Enforcement is seen

as vital to the integrity and credibility of the permit system, as well as

customer experience...” (Emphasis supplied.)[Doc39-1,PageID#394]

Their “Ideal Alternative to Status Quo” apparently did not include “back

country rangers.” [Doc39-1, PageID#391-]

On page 6, the Agency suggests the BCF plan evolved and expanded to

include the two backcountry rangers.

“...The GRSM developed a draft proposal for restructuring the

backcountry office and permit system. AR45-47, RE 39-1, Page ID

414-16 (June 2011). As the staff worked on the proposal, it evolved

and developed, going through several iterations before the GRSM

presented it to the public. See AR58-60, RE 39-1, Page ID 427-29;

AR65-67, RE 39-1, Page ID 434-36; AR130-31, RE 39-2, Page ID

499-500...”

This record shows that is impossible.

The Agency intended to charge the Fee to raise sufficient funds to pay for

the new reservation system only.

“...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 Agency chose the lowest possible dollar amount, $4.00, for the Fee.

“...Research indicates that parks with backcountry programs are

currently charging between $5 and $20 for either permits or

reservations...” [Doc39-1;PageID#394]

“... ‘Concern was also raised about the range of fee amounts that were

under consideration and that the resulting revenues may be diverted to

other programs. We have decided to focus our plans around the

lowest and simplest of the fees under study: $4 per night per

person. Most importantly, 100% of the revenue from this program

will be invested in improving back-country services through extended

hours of the back-country office, trip-planning assistance, on-line

reservations, and protection of park resources through increased

ranger staff.’...” (Emphasis supplied.) [Doc39-2;PageID#628]

As the Agency calls it on page 6, how can its “...draft proposal for restructuring the backcountry office and permit system...” evolve to fund two

backcountry rangers when there never would be sufficient funds to pay for them?

The Fee never evolved to pay for two backcountry rangers. The Agency was

misrepresenting to the public that the Fee would fund two backcountry rangers to

drum up support.

3. Syntax error

The Agency’s summary of public participation falsely stated that there were

“...No written comments...” from State and County Officials, when there were.

[Doc39-3; PageID# 640;Doc39-4;PageID#809;Doc39-6;PageID#1013]

In footnote 4, on page 30, this Agency states:

“...In its summary, NPS used poor syntax in one statement, suggesting

that Swain County’s comments were received in verbal form instead

of in writing...”

Southern Forest Watch respectfully asserts an appellate brief is not the

appropriate venue to correct a significant misrepresentation by post-hoc

rationalizations of counsel. In Memphis Dist. of Browning-Ferris Industries of

Tennessee, Inc. v. Teamsters Local Union No. 984, 946 F.2d 895 (C.A.6 (Tenn.),

1991), this Court holds:

“...However, the agency's decision can be affirmed only upon the

grounds set forth by the agency itself, not upon post-hoc

rationalization by counsel, because the agency's judgment is what

Congress intended when it passed the authorizing statute...”

Respectfully submitted this 10th day of September, 2015.

/s/ J. Myers Morton BPR# 013357

MORTON & MORTON, PLLC

1518 N. Broadway

Knoxville, Tennessee, 37917

(865) 523-2000

E-mail: myersmorton@comcast.net

Attorney for Southern Forest Watch, Inc.

CERTIFICATE OF COMPLIANCE PURSUANT TO

FEDERAL RULE OF APPELLATE PROCEDURE 32(A)(7)

I certify that this document contains ~3,183 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

SFW Response 9/10/15

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