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
Okay folks, we'll ask that you tone down the personal references, and stick to the primary subject at hand. Kurt has enlisted some volunteer help with moderation, so we'll do our best to keep things civil and focused. Several recent comments have been edited, and one unpublished. If you feel we're being too restrictive, our apologies, but we're doing our best to encourage a responsible conversation.
So, am I allowed to say God bless America?
There is no campsite, as far as I know no "well",and probably no credible claims of hikers cutting down trees on the former guvnah's property.
For the continual "Blackberry Farms Deniers" out there. Here is a quote and newslink.
In a letter dated June 13, 2014 from Chief Ranger Clayton Jordan to Blackberry Farm Executive Vice President Matt Alexander, it is clear the park service has been aware of trails maintained by Blackberry Farms since 2009.
http://wate.membercenter.worldnow.com/story/26631327/watchdog-group-alle...
Having been there and seen it myself, I still anxiously await the oft touted scouting report we have all been hearing about for over a year now to prove it doesn't exist.
Ohh back to the diversionary rhetoric, I see. Since you realize the backcountry permit system is here to stay, you have to resort to other tactics hoping it sticks. The boundary trail is an old park trail built by the CCC in the 30s. Maps showing the old trail are in existence. Trying to state an old trail that was cut by the CCC, and only moderately maintained by property owners bordering the park by calling it a "brand new trail blazed by blackberry farms so that they can run ATV's and horses through it making it exclusive to kings and artistocrats" was unfounded and untrue, just like the report stated. Good luck with that angle. I think the only ones that buy into that are SFW.
So, I guess it is OK to"moderately maintain" old trails if you are a "property owner" aligned with a flannel shirt wearing senator. Who knew? I feel pretty sure I would be hauled into court if I had property adjacent to the park and started cutting blow downs on old trails. It's good to be/know the king.
There's no kings involved, fluffer. If you guys are so concerned about manways, then why do so many of you hike them, or even go off trail? Most of us that use the backcountry do use older decommissioned trails (called manways in the south). Some people dedicate a lot of their hiking time doing just that. So let's cut to the chase - really this is just a diversionary tactic, because Lamar Alexander once was tied with BBF, and you folks see that as "pure evil" and so there has to be some sort of heinous conspiracy, right? Kind of ironic that Lamar supports wilderness in Tennessee, and has pushed another bill trying to get more wilderness in our state, but hey.
Yet, you somehow think this was tied into the backcountry fee? How? I don't even see the connection. Can you explain what this has to do with anything related to the fee, fluffer? If anything, this is just a diversionary tactic on SFW part. This is a seperate issue altogether, and it's shown that the NPS has not allowed BBF to have their own 'private trails" in the park. In fact, that claim is almost laughable, and i'm sure the judge was like "seriously, I have to waste my time ruling on this". You guys are really backpeddling at this point. This issue has gone from Lamar Alexander demanding that BBF create new trails into the park that is exclusive only to their resort, to simply maintaing downed trees on an old manway trail. I could hear him now with the executive order, "DUDE, get some crews out there and cut me a new trail through MY park." to just someone, perhaps (but more than likely) at BBF mainting an older manway by cutting away downed trees that fell on the trail (and trust me, this isn't the only manway i've seen with downed trees cut or pushed aside). So, the goalposts have shifted a lot here. It's gone from Kings and Aristocrats riding ATV's (impossible to do by the way) along the newly cut trail that BBF supposedly recently cut through the park over the last few years (this was a NPT headline for an article, by the way, which will forever taint this site in my book), to just someone at BBF maintaining an old manway (called the Boundary trail in maps that predate 1940) that has bordered their property for almost a century, and was decommissioned sometime back in the late 70s to early 80s.
And again, what does this have to do with the BCF? NOTHING! Not a single thing. It's just a diversionary tactic from SFW looking for any angle to somehow try and make Ditminson look heinous, when in reality, the SFW folks more than likely owe him an appology for all the false accusations and BS tactics that SFW threw at him over the years.
To fee or not to fee? Ah, that is the question!
Let's get some cultural perspective into this. Americans don't like fees. Our forebears threw tea in Boston Harbor, and you people are slinging mud about this "tax" with equal furor. You don't like the government (the fee collector) because you believe (know) that government is just about perpetuating itself.
Here in Washington State, our gas tax is about to go up 12 cents a gallon, and the bars are filled with people protesting "government." Forget that those protesting the loudest own the heaviest vehicles in the neighborhood doing the greatest damage to our public roads. How do they think those roads get repaired? But of course, a previous generation sold those roads by calling them "freeways." Free? Then I want it free!
I say raise the price at the gate and collect no backcountry fees. After all, the people doing the greatest damage to the park are the people driving in. But yes, everyone using the backcountry would have to register so the Park Service would know where they are.
No doubt, the Park Service spends the bulk of its budget maintaining and policing roads. Backcountry maintenance is in the toilet in the vast majority of our parks. Now, write that letter to your "Congressperson" and she what she has to say. In so many words, mine have told me to take a hike--and pay the fee. After all, the automobile is still KING. And no, Hillary Clinton will never change that. After all, she is hoping to be QUEEN.