Myers Response to Govt 2/10/14

[John Quillen]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

 

SOUTHERN FOREST WATCH, INC.,                   )

et al.,                                                                          )

                                                                                    )

                        Plaintiffs,                                           )

                                                                                    )

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

                                                                                    )           (HOOD/GUYTON)

SECRETARY OF THE INTERIOR                         )

SALLY JEWELL, et al.,                                          )

                                                                                    )

                        Defendants.                                       )

 

PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TOMOTION

TO ORDER DEFENDANTS TO PARTICIPATE IN DISCOVERY

            Come plaintiffs, through counsel, and reply to defendants’ response to plaintiffs’ motion to allow discovery to be taken in this case as follows.

            A.        False Statements and Positions       

            Footnote 1 on page 2 of defendants’ response provides an example why discovery is needed in this case.   Defendants state:

“1 The NPS’ decision to implement a backcountry camping fee is separate and distinct from the agency’s decision to implement an online reservation system.  Defendants maintain that APA review is not available as to the latter.”

That statement is impossible to be true.  One of defendants’ reasons for implementing the backpacker tax was to fund the online reservation system.  Plaintiffs refer to defendants’ own document (Doc. 24-5, Page 2 of 6, PageID#226) which is attached as Exhibit E to the Amended Complaint.  To repeat:

“...GRSM is proposing to institute a new fee for backcountry camping and shelter reservation and use. The park currently does not charge for these reservations and is proposing to begin charging a fee to cover the service charges and related costs of putting these sites onto the NRRS. The final actual fee will be determined through the civic engagement process and is likely to align with the total fees charged to the NPS by the NRRS.  Having these sites on the NRRS will improve customer service for visitors wishing to reserve these sites as they will now have 24/7 access to reserve and/or change reservations rather than having to call the park during normal business hours. 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.)

Defendants’ own document shows that the entire backpacker tax was to simply pay for the new reservation system.  The statement in footnote 1 provides evidence that defendants are playing and will play games with the facts.

            Discovery is necessary to corral defendants.

            B.        Administrative Record Review Case

            No administrative record has been filed or provided to plaintiffs.

            To the extent this case is only an administrative record review case, plaintiffs are not seeking a “fishing expedition.”   The court’s review would be limited to the administrative record; however, discovery is needed to determine what really is in the administrative record.  The defendants have shown they are untruthful.

            Plaintiffs’ requests for discovery are limited to developing the administrative record under the circumstances.

            1. Federal Rule of Civil Procedure 36

            For instance, plaintiffs first seek the opportunity to have defendants admit their public pronouncements as set forth in the Requests for Admissions. (Doc. 26-1,Page ID# 250-255)         False pronouncements garnering political support undercut the decision and make the decision arbitrary, capricious, an abuse of discretion and not in accordance with law in violation of 5 U.S.C. § 706.

            The agency’s bad faith is relevant to administrative record reviews in different ways.

            In WildWest Institute v. Bull, 547 F.3d 1162, 1176 (9^th Cir. 1998), the court holds:

We may consider extra-record materials (1) when necessary to determine whether the agency considered all relevant factors in making its decision; (2) when the agency has relied on extra-record materials; (3) when necessary to explain technical terms or complex subject matter; or (4) when the agency has acted in bad faith.  (Citation omitted.) (Emphasis supplied.)

If the defendants acted in bad faith, discovery is needed to find “extra-record materials” that are proof this backpacker tax is illegal.

            2. Federal Rule of Civil Procedure 33

            Defendants held 2 public meetings as required by law.  The meetings were held in such a way to preclude any discussions that defendants’ public assertions were false, that backpacker tax should not be adopted, etc.  Defendants violated 5 U.S.C. § 553 and 16 U.S.C. § 6803.

            3. Federal Rule of Civil Procedure 34

            If anything is missing from the AR, requests to produce documents may be utilized.  Once an administrative record is provided, other needs for discovery may arise.

            C.        Outside The Administrative Record Review Case

            In the event the court holds this case is more than an administrative record review, again, plaintiffs are not on a “fishing expedition.”  Plaintiffs’ requests for discovery are limited to the circumstances.

 

            1. Federal Rule of Civil Procedure 36

            The new reservation system with backpacker tax has resulted in an impairment of the enjoyment of the Smoky Mountains in violation of 16 U.S.C. § 1, et seq.

            Plaintiffs will ask defendants to admit defendants’ own data reflecting backcountry usage of the Great Smoky Mountains Park before and after implementation of its decision.

            For instance, plaintiffs will ask defendants to admit that between 2012 and 2013 the backcountry stays decreased by 25.37%. 

            Plaintiffs will ask defendants to admit that comparing 2013 numbers to 2011 numbers the backcountry stays decreased by 30.5%.

            The defendants’ data also reflects that the October 2113 government shutdown affected the numbers minimally.

            There are more defendants’ statistics to be admitted.  Attached as Exhibit A hereto is a copy of proposed Requests for Admissions with exhibits. 

            2. Federal Rule of Civil Procedure 34

            This case includes defendants’ illegal practices of allowing a private resort and associated individuals exclusive access to portions of the Great Smoky Mountains National Park.  The private resort’s trail map reflects the private resort’s trails are within the boundary of the Great Smoky Mountains National Park.  (Doc.24-7,PageID# 234)

            Plaintiffs may provide defendants with requests for admissions to admit the incursions, defendants’ knowledge of the incursions and defendants’ consent to the incursions.  If defendants deny the requests for admissions, plaintiffs may need to request to enter upon land to survey the borders and the trails.  Requests to produce documents and interrogatories may also be sought.

            This case also involves defendants illegally closing camp sites and moving a trail away from a former politician’s home adjacent to the national park’s boundary and possibly illegally conveying property rights and interests from within the Great Smoky Mountains National Park to this former politician.  Requests for admissions and/or requests to enter upon land to survey borders and trails may be sought.  Requests to produce documents and interrogatories may be provided. (Doc. 24, PageID#:205,206)

            In this case, plaintiffs seek a declaration defendants’ exclusive licensing and rights to the Great Smoky Mountains National park to private entities and political elites to the exclusion of the public violates 16 U.S.C. § 3.  (Doc. 24, Page 23, PageID#211)  Requests to produce documents and interrogatories may be provided.

            Plaintiffs seek more in this lawsuit.  To the extent the court rules the backpacker tax is legal, plaintiffs seek a declaration that 16 U.S.C.A. § 6802(d)(4), does not limit plaintiffs to defendants’ areas designated for collection of recreation fees. (Doc. 24, Page 24,25, PageID#212, 213)  Plaintiffs seek a declaration that 16 U.S.C.A. § 6802(g), does not allow defendants to charge a backpacker tax without providing any specific or specialized facility, equipment or servicer. (Doc. 24,Page 26, 27,PageID#214,215)  The plaintiffs seek a declaration that defendants exceeded their authority as set forth in Memorandum F5419(5072). (Doc. 24, Page 27 of 31, PageID#215)

            D.        Reservations

            On page 2, defendants seem to attribute a position to plaintiffs that does not exist.

“...However, Defendants continued to maintain that the remaining, Counts I-VI, VIII, and those claims imbedded in Counts VII and IX that challenge the National Park Service’s (NPS) decision to require reservations for all backcountry camping and to implement an online reservation system must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)...”

            The decision to require reservations was made decades ago.  Plaintiffs challenge the decision to scrap the decades existing registration system and implement an online reservation system and adding a fee to pay for it.

            E.        Remand

            Plaintiffs alternatively request this court remand the proceedings for further and corrected agency consideration.   (See Amended Complaint, Doc. 24, Page 31 of 31, PageID#219)

            Respectfully submitted this10th day of February, 2014.

                                                                                    /s/ J. Myers Morton

                                                                                    J. Myers Morton       BPR#: 013357

                                                                                    MORTON & MORTON, PLLC

                                                                                    Attorney for Plaintiffs

1518 N. Broadway

Knoxville, Tennessee, 37917

Telephone: [phone]

                                                                                    Facsimile: [phone]

[e-mail]                                                                                   

 

 

CERTIFICATE OF SERVICE

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

          This10th day of February, 2014.

                                                                                      /s/ J. Myers Morton