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Legal Challenge Coming To Backcountry Fee At Great Smoky Mountains National Park


It might not cost you extra to venture off into the backcountry of Great Smoky Mountains National Park for an overnighter next year. That's because the park's intentions to levy a $4 per person per night charge is going to face a legal challenge.

The fee is intended by park officials to help streamline and improve the backcountry permitting process and heighten the presence of rangers in the backcountry. Pinched by an inadequate budget and unable to charge an entrance fee for any of his roughly 9 million yearly visitors, Great Smoky Superintendent Dale Ditmanson sees no way of improving visitor services and protecting backcountry resources without charging users who spend the night in the woods.

“I’ve certainly been quoted as saying that I don’t have the same tools in my toolbox that the superintendents of Yellowstone, Yosemite, and Grand Canyon have. Especially when the (fee) legislation authorizes 80 percent of that money to stay within the park," the superintendent told the Traveler back in February, referring to other parks that are able to charge entrance fees and keep most of the money. "We could do some really great things at the Smokies, but I just don’t have that tool at this time.”

But a contingent of Great Smoky's backcountry users, organized as Southern Forest Watch, maintains park officials overlooked the vast opposition to the fee proposal that was voiced during the public comment period. Now they are turning to attorneys to continue their battle. In a letter sent last week to Interior Secretary Ken Salazar, Park Service Director Jon Jarvis, and Superintendent Ditmanson, attorney J. Myers Morton maintains the fee is "a tax on us without our consent...a tax on us in violation of the law...a tax on us based on deceit."

In the letter, which notified the federal officials that a lawsuit will be forthcoming, Mr. Myers maintains that the Park Service lacks the authority to impose the backcountry fee. He also highlights a section of Great Smokys' enabling legislation that states, “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...”

The letter goes beyond the issue of backcountry fees, charging that the park's administration illegally conveyed a 20-acre parcel of parkland to a former Tennessee governor, has been allowing ATVs from a nearby resort to illegally use a park hiking trail, and gives preference to backcountry trips run by corporations, such as REI.

The letter also notes that under discovery the plaintiffs expect to "uncover agreements and conveyances" pertaining to the property swap, and says that a new survey would show whether the ATVs were on trails inside the national park.

"Interestingly enough, our Declaration of Independence has a section describing various forms of tyranny of the English crown over the colonies. There are over 26 different examples of tyranny listed. One is '...For imposing Taxes on us without our Consent...,'" Mr. Morton wrote. "Your tyrannical action is being conducted in derogation of the values and purposes for which the Great Smoky Mountains National Park has been established."


News of the legal challenge to the NPS decision to implement changes to the backcountry usage rules appears on the surface to be a good thing. Unfortunately, a detailed reading of the letter submitted by legal counsel for Southern Forest Watch shows a "shotgun" approach to the argument against those changes. I feel that many of the arguments listed in counsel's letter to the NPS were trivial and poorly structured. The overal impact of this legal challenge is significantly weakened by this shotgun approach.

Wouldn't it be more effective to focus the legal challenge on the strongest issues and leave most of the trivial issues on the sideline?

Background: I'm one of the many Smokies hikers who submitted written comments to the NPS during the public comment period provided for the proposed backcountry user fee system. I was not confident that my comments would even be seriously considered by NPS management but, nonetheless, gave considerable thought and effort to the process of creating what I thought were detailed, comprehensive replies to all of the items listed by the NPS as problems and potential solutions to the "backcountry camping problem". The end result of this proposed rule change process appears to have turned-out like so many other NPS service proposed rule changes: Changes originally proposed were passed with few, if any, changes--in spite of a plethora of public comments contrary to the original proposal(s).

Difficult issue for the Great Smokies National Park. On the one hand, I can understand the Park Supt. trying to find ways to maintain a backcountry program with declining budgets and the inability to charge entrance fees, thereby restricting his access to the fee demo program. However, I agree with Mr. Al Smith, I do not think it is appropriate to charge hiking fees. It might be one thing to charge for maintaining a reservation system, will compromise there, but to charge for hiking a trail on public land goes against the grain.

I fear that listing too many infractions by the NPS in the complaint would be akin to a freshly minted law enforcement officer who stops someone for drunk driving. Instead of citing him for drunk driving he chooses to cite him for speeding, crossing the center line, failure to yield, running a red light, running a stop sign, failure to signal, public intoxication. failure to obey the orders of a law enforcement officer AND drunk driving. Kind of overkill, eh? I know from experience how judges deal with piling-on of minor infractions when they are incident to the major offense--they throw them out. We don't need that to happen with the complaint against NPS.

I suggest a strong focus on the most important issue here--the one that would reset this entire Notice of Proposed Rulemaking (NPRM) to square one: Failure by the NPS to properly engage the public in a comment process.

Issues as divisive as the backcountry fee proposal should probably have included multiple steps in the public comment period: #1. A Notice of Inquiry (NOI) prior to the Notice of Proposed Rulemaking (NPRM), followed by #2. The formal NPRM with a public comment period and then possibly #3. A Further Notice of Proposed Rulemaking (FNPRM) with yet another public comment period. These multiple steps, if properly implemented and evaluated, would have led to a conclusion much more aligned with the true needs of the public as well as the NPS. Instead, what we got was a don't-bother-us-with-facts-our-minds-are-made-up approach by the NPS. Clearly this was contrary to established federal rules and that should be the argument we choose instead of all the other stuff listed in Counselor Morton's 8/28/2012 letter.

I'm in complete agreement that the NPS needs to be reined-in when it comes to their tendency to favor politically well-connected people/groups over the needs and wants of regular citizens. The Smokies, after all, is the people's park.

Violation of proper procedure for NPRM could have been the NPS's critical mistake on the backcountry fee issue. I wish Southern Forest Watch luck in holding them accountable.

I applaud NPT for covering this issue so thoroughly. The deceit and manipulation that drove this from the beginning is unraveling at every turn. The public neither wants nor needs backcountry fees in the Smokies. The public input was ignored and political patrons have their way with this government entity. It's great fodder for another book. The NPS has a huge image problem right now and the only way to right it is to Drop this Fee, Immediately!

Ditmanson's comments may draw sympathy from some, but I encourage a visit to to read some of the documents obtained through the FOIA that shows a pattern of deceit and lies on his part and others concerning the fees. In his own words, he said the park would not gain anything from the fee because it was to offset expenses from Then, we were told it was to fund two backcountry rangers, which are already funded by Friends of the Smokies. So which version are we to believe? To quote the great William Shakespeare, "Something is rotten in the state of Denmark, or in this case, the GSMNP.

I will start out simply saying that I am strongly opposed to these fees. IMHO, backcountry campers have for the most part been among the greatest contributors to the park and have had the least negative impact upon the park.

As to the approach and "brief" by Myers, the many and varied points made show a number of facts that considered together demonstrate several undeniable and objectionsable points such as the NPS's disregard for the will of the people, their decveptive practices, and favoritism toward certain specific individuals such as politicians or toward groups or organizations such as vendors or coporations. My best guess is that the pursuit of the legal effort will become a bit more focused, yet will find it's support in the established foundation of questionable and possibly illegal actions such as those listed in Myer's initial address. I do hope every one of the points made is eventually addressed or considered becasue of their implications. It's time for the NPS to realize they must honor the will of the people and observe the same laws we each and every one are siubject to.

Why are they charging a fee to backpackers and not the horseback riders and automobiles? The latter 2 drain far more park resources than a backpacker could ever do in a lifetime.

I am not opposed to a small fee to use the park as a hiker or touring by car. As our economy is in decline am sure many of the charities that would normally support the park are unable financially to do that. I am sure other personal donations have dried up as well.

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