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
i
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
ii
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.
(c) Public involvement
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
Register as a FLREA “new recreation fee area” because the issue was raised in
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.)
3
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-
4
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]
5
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
6
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:
7
“...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
8
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.
9
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
10
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
11
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.
12
“...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
email from the undersigned.
This 10th day of September, 2015.
/s/ J. Myers Morton
15
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