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1-2), each of which Defendants will briefly address as follows. 1. 36 C.F.R. § 71.9 does not apply because it has been superseded by FLREA. In 2004, Congress enacted FLREA, 16 U.S.C. §§ 6801 to -14, which repealed prior recreation fee authorities, including certain provisions in the Land and Water Conservation Fund Act of 1965 (LWCFA) 16 U.S.C. §§ 460l-4 to -11.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 Now, however, 36 C.F.R. § 71.9 (a)-(c) is superseded because those fee authority provisions in LWCFA -- section §§ 460l-6a(b) and (e) – that are the legislative underpinnings of 36 C.F.R. § 71.9 (a)-(c) have been explicitly repealed.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 of section 460l-6a of this title are repealed .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29 PageID #: 1787 As Plaintiffs correctly acknowledge, FLREA makes clear that certain regulations promulgated under the repealed sections of LWCFA will be superseded, stating that: A regulation or policy issued under a provision of law repealed by this section shall remain in effect to the extent such a regulation or policy is consistent with the provisions of this chapter until the Secretary issues a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16 U.S.C. § 6812(f) (emphasis added). 36 C.F.R. § 71.9 (a)-(c) was issued under provisions of LWCFA that FLREA repealed.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 §§ 8.2.2.4 and 9.3.2.2. 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 § 8.2.2.4. 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, § 9.3.2.1. 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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