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
The Great American Entitlement Syndrome is on full display here.
Reading the court document left the clear impression the judge was seriously underwhelmed about trail issues at Blackberry Farms or the Ace Gap Trail. If there was a smoking gun at Blackberry Farms, it was a BB gun, and the issues seem to have been resolved.
Information on pages 14 - 16 of the court document about the relocation of a section of the Ace Gap Trail leaves me wondering why this was an issue at all as part of this lawsuit. According to that document, a section of the trail left park land and crossed private property for about 500 feet, then returned to park land. The landowner, not unreasonably, requested that it be relocated off of his property, and the park hired a surveyor to determine where the boundary was located. The subsequent trail relocation first went through the standard NEPA review.
It doesn't matter who the landowner is in such cases. If it had been my property, I'd likely have had the same request. The park's approach, cited in the testimony, seems very reasonable: "...it has been the practice of the Park to voluntarily relocate sections of a trail from private land to Park land when a landowner requests such action and when there is reasonable evidence that the trail is indeed on private land ....this practice is based on a respect for private property and a landowner’s legitimate concerns about trespass, privacy, liability, and potential vandalism."
If the park had ignored any such request from an adjoining landowner to correct what amounted to trespass on private property, then there would be ample cause for complaint about the feds co-opting private land for public use. Sounds like the NPS did the right thing in this case, so where's the beef?
I don't believe the judge used the word "frivolous" to describe the Blackberry Farms and Ace Gap Trail "complaints," but that word sure came to my mind after reading the above document.
[AR 257]. Although there are no written notes or other documentation of these contacts, the presumption of regularity afforded to agencies leads the Court to conclude that defendants did what they claim to have done.
A federal judge trusts the NPS, a federal bureaucrat. RAT is the key word here.
It's ok JThomas that you ignore the public comments, though. Best to try and attack something else. Like Blackberry Farms, those kinds of elephants in the room are quite glaring. I suppose there are two types of people in the world. Folks who are concerned that a private resort can cut their own trails on NPS land, and those who don't.
The only information I have about the Blackberry Farms question is what's in the court document, and the judge didn't identify any lingering issues. You're correct, private parties should never have the right to "cut their own trail" in a park. Yes, it sounds like the resort did some unauthorized maintenance on a previously existing trail - which is much different from "cutting their own trails on NPS land" - and they put up some signs on NPS property that should not have been there. Should not have happened, but ironically, park visitors seem to have benefitted from a trail that was in better condition that it was under park maintenance. I believe some SFW folks are the same ones who complain about the park not getting trails reopened fast enough after storm damage :-)
It seems significant even the NPS staff wasn't sure exactly where the park boundary was in this area as it affects this trail until the ranger got a top quality GPS from the lands office. In heavily wooded and mountainout terrain, such boundary questions don't seem to be uncommon. The court did not find, as the SFW claimed, that the resort gave any impression they treated the trail as their "private" route.
The court seems satisfied the park staff resolved this issue by working with the adjacent landowner, which is how such problems should be handled if at all possible. It's interesting that some who criticize the park for not taking a heavier-handed approach in this situation have also been quick to criticize the staff as being too focused on "law enforcement" when it comes to other activities.
Blackberry Farms, as well as the trail relocation off of private property were either mere diversions to skirt from the main issue, or these guys are very lost in delusions of grandeur .... It's funny listening to these guys though. They lost the suit, and in the judges ruling they labeled in black and white that most of these falsehoods were inaccurate, and they still go on like their word is gospel.... [perhaps] they are just trying to pull the wool over peoples eyes to divert attention to their organization by pretending they have some vast understanding of the "wrongdoings between Superintendents and the kings and aristocrats" when it's evident it's just a bunch of powder puff fluff. (This comment has been edited slightly to remove disparaging language. Ed. staff)
Blackberry farms and Sundquist were not part of the suit. They were only examples of the gross mismanagement of the administration. I am no lawyer, but it is my understanding that if someone uses a road,path or highway across your property, and you do not object to it in a certain period of time then it is an acknowledged route. Of course in the case of the imperial feral government,and the former guvnah, what does the law have to do with anything? (This comment has been edited slightly to remove language intended to bait other participants. Ed. staff.)
Whatever. What if someone came on your property started drinking all your well water, and cutting down your trees for firewood? Would you like it?