A legal challenge to a backcountry user fee at Great Smoky Mountains National Park has failed, with a federal judge ruling the National Park Service was within its rights to levy the $4 per night per person fee.
Whether Southern Forest Watch will appeal the ruling hasn't been decided; the group was examining its options in the wake of the ruling Monday to grant the government summary judgment (attached below) in the case.
The challenge to the user fee, filed last summer, raised many issues. Among the charges was that the park staff concocted complaints about the existing backcountry reservation system, that minutes of public meetings were missing from the administrative record, and that some staff discussions of the matter were conducted on private, not government, email accounts. It also argued that federal regulations prohibited fees for backcountry campsites unless they come with "drinking water, access, road, refuse containers, toilet facilities ... (and) reasonable visitor protection," none of which exist, short of privies, in the park's backcountry.
More so, the lawsuit, contended that federal law prohibits the National Park Service at Great Smoky from charging "an entrance or standard amenity recreation fee ... unless fees are charged for entrance into that park on main highways and thoroughfares."
Southern Forest Watch also contended that "(A) 25 percent drop in backcountry camping (from 84,236 in 2012 to 62,863 the following year) since full implementation of this fee is dramatic evidence that this fee has impaired this generation's use of the Smoky Mountains ... "
Great Smoky officials maintained the fee was necessary to afford a better reservations system for backcountry campsites and to police the backcountry.
In his 59-page ruling, U.S. District Judge Thomas W. Phillips cast aside each point raised by Southern Forest Watch, at times saying the group's legal counsel didn't adequately buttress his arguments against the fee and the Park Service.
"Plaintiffs’ initial reply brief states that 'defendants’ pattern of consistent failure to follow the law in fulfilling their duties is the issue' with respect to these claims. This allegation does not state a valid claim for relief," the judge wrote at one point.
At another point Judge Phillips seemed to agree with Southern Forest Watch that a majority of the public did not support the implementation of the fee. Yet he also seemed to acknowledge the Park Service's longstanding position that public comment periods are not the equivalent of a vote on an issue.
"... the record contains evidence of substantial support for the BCF from the public, including GRSM employees. The support is not overwhelming, or even a majority of the responses received. Nevertheless, there is evidence of more than minimal support for the BCF proposal and 'support for the change' is all that the NPS public participation guidelines require," he wrote. "Neither the plaintiffs nor the defendants have provided any authority to suggest how such 'support' must be measured, nor has the Court found any. Accordingly, in the absence of any such guidance, the Court must reasonably interpret the guidelines as written and not 'substitute its judgment for that of the agency.'
"On this record and under the (Administrative Procedure Act's) narrow standard of review, the Court must conclude that the record does show 'support' for the BCF plan. Plaintiffs’ dispute of the characterization of the level of support does not mean that the facts themselves are in dispute."
The judge wrote that the passion in the case made it understandable to question whether the Park Service shouldn't have found a different solution for caring for the park's backcountry, but said that question was not one for him to answer.
"The plaintiffs and those opposed to the (backcountry fee) are understandably disappointed in (the park's decision to implement the fee) and could easily assume that defendants did not truly consider the public comments. After all, if so much of the public response was negative, how could the defendants have considered that input and still decided to proceed with the BCF?," he wrote. "Indeed, the passionate opposition to the BCF leads a reasonable mind to question whether another conclusion should have been reached, or why the Park management placed such emphasis on benefits for the 'less represented stakeholder group' rather than benefits for the frequent, local Park visitors.
"The legal question for this Court, however, is whether that decision was arbitrary or capricious."
In the end, he found, it was not.
Comments
This topic has generated lots of discussion over many months, and you're welcome to offer your opinions, pro and con, about the court's decision. However, you need to do so in a civil manner, minus personal attacks on other individuals or organizations on either side of the issue. If you posted a comment that's disappeared, just reword it in light of our Code of Conduct. Thanks, eds.
Thank you Traveler for the informative post. I am disappointed that the NPS is now able to charge fees for hiking and backpacking, In my own years in wilderness management I opposed these efforts strenuously. Thank you Southern Wilderness Watch for your efforts.
Thanks to NPT for your continuous coverage of this story. I wonder how many times a citizens group has challenged the NPS and won? We knew from the beginning it was a long shot. This article points out that public comments and sentiment have no bearing in the NPS policy. And we know the NPS cares little about what the public wants. If you read the ruling, Phillips states that the NPS employees favored the proposal. And in the end, the NPS employees got their way. If that doesn't represent what is wrong with the NPS, then nothing can further illustrate this point any better. From a member of the "less represented stakeholder group" referenced by the federal judge I am proud of what SFW has accomplished through this lawsuit including the outing of blackberry farms private trail system and land swap between a former TN governor from the NPS. Those are victories in this lawsuit.
Southern Forest Watch doesn't lay down because of one opinion. You haven't heard the last of this issue. Stay tuned!
Backcountry overnight stays were back up (above above 2012 numbers) to 86,153 in calendar year 2014 (http://bit.ly/1BIICiP) for Great Smoky Mountains National Park. More than 10,000 of those backcountry overnight stays were in the month of October 2014 versus October 2013 when the park was shutdown for 3 weeks (like the rest of the federal government) and only 3700 backcountry nights were logged.
It's one thing to challenge the NPS with rational valid arguments. It's another thing altogether to challenge the NPS, and then target, harass, and threaten employees and people that work in the park because they may have said that they approved of the fee, or that certain SFW claims weren't valid. SFW is an "organization" (and I use that term loosely) with little credibility, and obviously without a credible law firm or group of credible people behind them. There are many credible organizations out there that do challenge and win lawsuits against the government, but SFW is not going to be one of them. Obviously, just about every conspiracy theory they presented over the years in an ad nauseum manner was shot down and debunked, and it's not any surprise that their claims were dismissed. You can only be the "boy that cries wolf" for so long, before no one takes you seriously. Well, they long since past that point. This group only costs taxpayers money in lawyer fees, so they could debunk their conspiracies. This site gives way too much credibility to these groups, and that's why it does at times tend to feel like the Faux News of NPS related news.
Obviously, smokiesbackpacker didn't even read the judges ruling, because it pretty much stated that his conspiracies "of outing a land swap with a governor, and those of private trails being built and maintained in the park" were not true and rendered moot. Who cares. Into the dustbin of history this lawsuit goes.
So basically to sum everything up. The NPS was very clever to write their own rules on how they don't have to accept the sentiment of the majority of the public, as long as they have some support. How ridiculous considering that one could generate some support for virtually anything. This ensures that no one can challenge them on any legal grounds and possibly win, because essentially they can do whatever they want. The public majority has no recourse whatsoever to deal directly with the NPS and get meaningful results unless the powers that be within decide from the good of their heart to listen. Until that changes it will be the same old story.
I think maybe this should be pursued from a different avenue. Like trying to get a change in how public comments are used to being on a majority basis. It certainly would be the fair way to go. But then again, im sure their rules would prevent anyone from challenging that either.
Also in 2012 the main road from the park slid off the side of a mountain creating a 4 month period where people couldn't bypass through the main road in the park. It cut into spring, which is also another popular period. Of course, they only use the statistics but don't talk about the weather or the other factors that ensued that year. Last year was one of the 4th busiest on record, and backcountry usage was also up. Of course, they claim the "NPS is trumping" up the numbers. If that was the case, why didn't they trump up 2012 too? This year is off to a great start too. But, hey... more conspriacies, i'm sure will be brought out from those without an iota of credibility..
If local public sentiment drove EVERY single National Park rule and law, there would not be any National Parks and many of these areas would be ran like county parks. The parochial locals that are around many national parks tend to never understand that. If you read the ruling, the organic act is discussed in some detail.