SFW Response to Govt Motion to Dismiss Lawsuit


et al., )
Plaintiffs, )
v. ) CIV NO. 3:13-cv-116
SALLY JEWELL, et al., )
Defendants. )

Come plaintiffs, through counsel, and respond to the defendants’ motion to dismiss as follows.
I. Facts
Because the issue is a Rule 12 motion to dismiss, the facts contained in the complaint are taken as completely true.
In Dismas Charities, Inc., v. United States Department of Justice, 401 F.3d 666 (6th Cir. 2005), the Court, on page 671 holds:
“...‘For purposes of ruling on a motion to dismiss for lack of standing, a complaint must be viewed in the light most favorable to the plaintiff; all material allegations of the complaint must be accepted as true”...” (Citations omitted.)

Plaintiffs adopt and reference their entire complaint and amended complaint filed contemporaneously herewith as if set forth herein verbatim.
Plaintiffs have been forced to use a cumbersome, internet system to reserve campsites and to pay $4.00, per person for each night to backpack inside the Great Smoky Mountains National Park.
II. Law and Argument
Defendants can only charge for benefits and services (ie., shelters, bathrooms, developed campsites, drinking water, security, etc.) that defendants provide to visitors to the Great Smoky Mountains National Park (hereafter “Smoky Mountains”).
A. Backpacking
Plaintiffs are backpackers in the Smoky Mountains.
For almost a century, defendants never claimed that exercise or use of the trails alone was a “benefit or service” and allowed the trails’ free use.
16 USC § 6802, is titled “Recreation fee authority”, and it gives the defendants the power to charge fees in the Great Smoky Mountains National Park.
“(a) Authority of Secretary
Beginning in fiscal year 2005 and thereafter, the Secretary may establish, modify, charge, and collect recreation fees at Federal recreational lands and waters as provided for in this section.
(b) Basis for recreation fees
Recreation fees shall be established in a manner consistent with the following criteria:
(1) The amount of the recreation fee shall be commensurate with the benefits and services provided to the visitor...”

Also, 16 U.S.C.A. 6802(g), titled “Expanded amenity recreation fee” provides:
“(1) NPS and USFWS authority
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 .” (Emphasis supplied)Defendants have never provided benefits or services to backpackers.

For almost a century, American citizens wanting to walk and camp in the Smoky Mountains voluntarily and simply filled out a short form listing names, vehicle identifications, camp sites and dates, and deposited the form into a box at various trail heads. It has always been free.
There have been and are approximately 800 miles of trails and approximately100 undeveloped, backcountry campsites spread through the Smokies. Backcountry campsites have no amenities or conveniences or services whatsoever other than fire rings and a system of pulleys and cables to hang backpacks out of the reach of bears. (It is to be noted that these “bear cables” were paid for with donations from Friends of the Smokies and installed by volunteers, not the defendants.) The fire rings have historically been made of rocks; however, recently the Park Service has provided round, metal rings in at least some of the backcountry campsites to serve as fire rings. The fire rings are basically useless.
Backcountry campsites are generally flat areas located near creeks and springs where backpackers retrieve, filter and clean their own water. Backpackers cook
food by boiling water on small backpacker stoves and hydrating dehydrated foods or by
cooking food on a campfire.
The backcountry campsites have no designated, developed parking, no
toilet facilities, no refuse containers or receptacles, no interpretive signs, exhibits or
kiosk, no picnic tables*, no security services, no marked tent or trailer spaces, no drinking water, no access roads, no reasonable visitor protection and facilities or amenities of any kind are provided at all the backcountry campsites. (*A handful of campsites have a picnic table.)
Except shelters along the Appalachian Trail and recently added and useless fire rings at the remaining undeveloped campsites, defendants provide no benefits or services for backpackers on the trails or at the backcountry campsites whatsoever.
Plaintiffs have paid the $4.00, per night per campsite fee under protest in order to backpack.
B. Registration System
This new registration system, in and of itself, is an impairment or a burden, especially when compared with the registration system that has been employed for decades.
The old system was completely free. The new $4.00, charge per person per night alone prevents groups from camping for multiple nights in the Great Smoky Mountains National Park.

The previous decades old system of freely and in a completely unimpaired fashion of arriving at the Smoky Mountains, filling out and depositing an information slip in a box at a trailhead and going backpacking was the epitome of a free and unimpaired registration system. In 20% of the campsites, you had to make a reservation either over the phone or in person when you arrived.
The new backpacker registration system is more onerous, difficult, an impairment, etc. The new Backcountry Permit System internet site requires one to have
internet access and a credit card. The website requires one making a campsite reservation to click through five different web pages before you are able to start making a campsite reservation. Thereafter, you must click through five more web pages to make your reservation. One page is a trail map with campsites. Another page is a calendar. Another page is to fill out personal information, and another page is to agree to be bound by old and new backpacking rules. You have to complete the entire reservation process within fifteen minutes, or you have to start over.
16 U.S.C. § 1, the so-called “Organic Act”, provides, among other things:
“There is created in the Department of the Interior a service to be called the National Park Service,...The service thus established shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified,..by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”

The $4.00, per person, per night charge and the reservation system are an impairments of the enjoyment of the Great Smoky Mountains National Park.
C. Procedural Requirements To Charge Backpackers

By law, defendants are required to follow procedural requirements, (5 U.S.C. § 701-706, 16 U.S.C. § 6803, 16 U.S.C. § 1, etc.) before charging a fee to backpack. The defendants have either ignored those procedural constraints or lied about them. This is a power grab by a bureaucracy shown by the following pattern.
Because defendants have not followed the law setting forth the legal procedure to adopt this backpacker tax, the imposition of this backpacker tax should be on no effect whatsoever.
1. The defendants illegitimately resolved to use several false dilemmas in order to limit and restrict use of the Smoky Mountains backcountry. The defendants deliberately and repeatedly presented false pictures and public pronouncements and obfuscated the truth. The defendants’ administrative process included manufacturing false impressions and facts for public consumption and completely disregarding the truth of matters. The defendants actions were beyond what was allowed by law, outrageous and tyrannical. The defendants’ administrative process included manufacturing false impressions and facts for public consumption and completely disregarding the truth of matters. The defendants actions were beyond what was allowed by law, outrageous and tyrannical.
2. Exhibit E to the complaint is defendant’s internal memorandum that provides proof the defendants’ public campaign to disseminate false information was intentional, fraudulent and in derogation of the values and purposes for which the Smoky Mountains was established and the high public value and integrity of the National Park System in violation of law. The memorandum specifically states:
“...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...”

Defendants began falsely asserting and publicly pronouncing a litany of justifications or reasons that were plainly contrary to this memorandum.
3. Defendants’ held sham and meaningless public meetings and thereby precluded exposing the most critical factual materials that purportedly were used to support the defendants’ position on review to refutation. Those factual materials were false and accurate facts were not made public in the proceedings
4. Defendants failed to consider relevant data, ignored evidence placed before it by plaintiffs and other interested parties and manufactured false data lacking evidentiary support to support pre-conclusions.
5. Defendants have abused their discretion by failing to provide a full ventilation of the issues and making a decision to impose the backpacker reservation system and backpacker tax without a reasonable basis.
6. 16 U.S.C. § 6803 is titled “Public participation,” and it sets forth steps defendants must take to obtain input from a locality before charging a recreation fee. Attached as Exhibit 10 to the complaint is a resolution from the Blount County Commission passed after the backpacker tax was implemented decrying the failure to provide appropriate public participation.
7. Serious procedural errors have occurred precluding meaningful commentary because defendants failed to allow accurate and sufficient bases for the proposed backpacker reservation system and backpacker tax. Defendants’ explanations lack evidentiary support and cannot be regarded as “reasoned” or “rational.”
8. Defendants also considered irrelevant data and factors Congress did not
intend for it to consider.
D. Other Management Practices Affecting Backpackers
1. 16 U.S.C. § 3, provides, among other things:
“...No natural curiosities, wonders, or objects of interest shall be leased, rented, or granted to anyone on such terms as to interfere with free access to them by the public...”

Defendants have voluntarily and illegally diverted and rerouted Ace Gap Trail off of a former politician’s private real estate neighboring the National park, further back into the park away from the third party/former politician’s home. Defendants have also closed at least two separate campsites that were apparently too close to the third party/former politician’s property.
To the exclusion of the public, defendants have apparently given permission to a neighboring, private resort to maintain and utilize their own separate, exclusive network of trails into, on and within the boundaries the Smoky Mountains to the exclusion of everyone else. This local, private resort has erected their own trail signs which appear to be within the Smoky Mountains’ borders. The trail signs include boxes with this private resort’s own trail map. A copy of this private resort’s trail map showing their trails inside the boundaries of the National Park are attached as Exhibit G to the complaint.
At the same time, free access to the public is limited by at times closing trails to this portion of the park.
Pictures of this private resort using 4 wheelers and chain saws to maintain trails with the National Park are attached as Exhibit H to the complaint.
Additionally, there is apparently a private “outfitter” company with defendants blessings who is over-booking and pre-booking trips to backcountry shelters in the Smoky Mountains.
2. Other issues to be resolved in these proceedings include whether or not 16 U.S.C.A. § 6802(d)(3)(E), alone prevents or forbids defendants from charging any fees whatsoever, including this backpacker tax. For instance: 16 U.S.C.A.§ 6802(d)(3)(E) provides:
“The Secretary shall not charge an entrance fee or standard amenity recreation fee for the following:
“...(E) 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...”(Emphasis supplied.)

Understanding that deed restrictions do preclude charging “entrance fees” on the roads conveyed from the State of Tennessee, does “...or any part thereof...” mean entrance routes to any part thereof, or does “...or any part thereof...” mean any part thereof? A plain reading of the statute may mean no fees anywhere in the Great Smoky Mountains National Park.
Plaintiffs are entitled to an order pursuant to 28 U.S.C. §§ 2201-2202, declaring and adjudging that the restrictions of record precluding defendants’ the right to charge for the use the donated roads within the Smoky Mountains combined with those restrictions set forth in 16 U.S.C.A. §§ 6802(d)(3)(E), together and separately, legally preclude defendants from charging any fees whatsoever inside the Smoky Mountains on
“any part thereof”, including in the backcountry.
3. Another 28 U.S.C. §§ 2201-2202 declaratory judgment question is whether 16 U.S.C.A § 6802(d)(4), titled “No restriction on recreation opportunities,” that the plaintiffs are not limited to backpacking in, on and around designated campsites and are free to backpack in areas beyond areas designated for collection of the backpacker tax
4. Another 28 U.S.C. §§ 2201-2202 declaratory judgment question is if defendants’ adoption of the new reservation system and backpacker tax is in excess of authority granted to defendants in Memorandum F5419(5072), in that defendants were only authorized to implement the new reservation system and backpacker tax in order to fund the internet reservation system alone, and not to fund anything further. See Exhibit E to the complaint.
E. Standing
Plaintiffs were charged $4.00, to backpack in the Great Smoky Mountains National Park. The 3 individual plaintiffs paid the $4.00, to backpack in the Great Smoky Mountains National Park. Their receipts are attached as Exhibit K to the amended complaint. Plaintiffs had concrete injuries.
Irrespective of the amended complaint, backpackers clearly must pay $4.00, and reserve campsites through the muddled website.
Likewise, plaintiffs are backpackers in the Great Smoky Mountains National Park, and Southern Forest Watch, Inc., is a Tennessee corporation with members who are backpackers in the Great Smoky Mountains National Park.
The zone of interest as defined by 16 U.S.C. § 1, plaintiffs, as backpackers, are users of the national parks. Backpackers are the “future generations” for which the National Park Systems was created.
FLREA was not passed into law nor designed for the purpose to provide defendants with taxes or revenue. FLREA also set limits on defendants’ ability to charge money for use of the national parks. FLREA made clear certain charges would be illegal.
Plaintiffs as backpackers and users of the Great Smoky Mountains National Park are within the zone of interests the laws are designed to protect.
The corrupt process in adopting this backpacker tax and reservation system also provides plaintiffs with a cause of action. 5 U.S.C. § 702, provides:
“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein
(1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or
(2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.”

An actual controversy presently exists between the parties concerning the
validity of various regulations and actions in adopting a reservation system in order to
charge fees and levy a tax for backpacking in the Great Smoky Mountains National Park.
That controversy is justiciable in character.
16 U.S.C. § 1, the so-called “Park Service Organic Act,” requires defendant to manage the Great Smoky Mountains National Park according to the following standard:
“...The service thus established shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified,...by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations...”

Backpackers and plaintiffs are future generations.
Defendants have implemented a first time tax to backpack in the Smoky Mountains. The defendants have implemented a backcountry reservation system
that is onerous and burdensome to those who wish to backpack and implemented new and
absurd rules and regulations, all of which unfortunately do exactly what was intended to do; to wit: restrict and impair use of the Smoky Mountain backcountry, a clear violation
of law.
F. Sovereign Immunity/Discretionary Actions
Defendants suggest their own decision making process and their decision to implement this backpacker tax and reservation system is beyond reproach because it is a discretionary action.
The legal logic to take that position completely ignores limits Congress and the President put into these laws constraining what these federal bureaucracies do.
A perfect definition of “tyranny” is where a government or an agency of a government can pick and chose which limitations and conditions set forth in particular laws they want to ignore and which they are willing to follow.
If Congress and the President wanted to pass a law that provided complete discretion upon and autonomy to a federal bureaucracy, the law would have no limits or conditions. The Administrative Procedures Act, 5 U.S.C. § 702, the Federal Lands Recreation Enhancement Act, 16 U.S.C. §§ 6801-6814, and the “Organic Act” 16 U.S.C. § 1, among many others, would not be law.
Plaintiffs respectfully urge this Court to overrule defendant’s motion to dismiss this case.
Today, this backpacker tax is $4.00. If the Court upholds this, what is to keep the backpacker tax from being $100.00, tomorrow?

Respectfully submitted this 16th day of October , 2013.
/s/ J. Myers Morton
J. Myers Morton BPR#: 013357
Attorney for Plaintiffs
1518 N. Broadway
Knoxville, Tennessee, 37917
Telephone: (865) 523-2000
Facsimile: (865) 546-4860

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.
This 16th day of October, 2013.
/s/ J. Myers Morton

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Comment by Erik Gerhardt on November 15, 2013 at 12:52am

Thanks for all the work you've put into this, Myers.

Comment by steve george on October 18, 2013 at 5:04pm

Thanks Myers and all. 

Comment by Andrew Sisson on October 18, 2013 at 2:00pm

I read the response submitted by Myers.  Job well done.  Thank you Myers, John, Gregg & Rob.  You all are indicative of what it means to be a Tennessee Volunteer!  You rise up to the plate and face adversity whatever the cost...  Proud to be part of the SFW even though I am not from your neck of the woods. 

Comment by John Quillen on October 17, 2013 at 1:58pm

Great Job, Myers! 

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