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
Well said, Alfred.
Sometimes it's hard to hear around here over a phenomena we Southerners call a "red eyed hissy fit".
It is interesting that other news outlets have deemed the Blackberry Farm private trail system as newsworthy enough to take a camera crew a do a lead video story of the event. (Of course that means they must not be credible news outlets as well:) If you watch this from WATE channel 6 in Knoxville, you can see that the reporter clearly demonstrates that the private resort with ties to Sen Lamar Alexander have clear cut hundreds of trees within the GRSM. What you won't see in the video is the GSMA refuting the obvious.
https://www.youtube.com/watch?v=YFIPDYW1ba0
I didn't see anything in that video about clear cutting... or that the trail was "exclusive to the resort". Am I missing something? That journalist also never talked about the history of the trail and left out a lot of somewhat pertinent information (ie that this trail was created in the 1930's) and almost the entire thing borders BBF property. She obviously didn't do thorough research, kind of like SFW. But, I know you like to be in the media, Johnny. It helps boost that very fragile ego of yours.
And seriously, you look a little foolish in that video now that all the information is out, but you obviously don't see it. Anyway, this circular logic cycle you like to get into is very old. You lost, your conspiracies are shot, and you just look a little insane the longer you keep running with this.
Public watchdog groups can perform an invaluable service in society, but their value depends in large measure upon their credibility. Unfortunately, as this discussion unfolds, SFW is increasingly falling short in that regard.
I've watched the video cited above, and sadly, it's a great example of a reporter with little apparent knowledge about natural resources being given a heavy dose of misinformation. The post above says "the reporter clearly demonstrates that the private resort with ties to Sen Lamar Alexander have clear cut hundreds of trees within the GRSM."
Well, no she didn't. Here's one of many very similar definitions of "clear cut": "Clearcutting means the felling and removal of all trees from a given tract of forest."
When the average person – or a resource professional—hears the word "clearcutting" they have a mental picture of serious ecological changes - a sizeable piece of ground being stripped clean of every standing tree. No evidence in the news video or elsewhere that this has occurred, but that's the mental image SFW wants to leave with the public about this situation.
Sorry folks, but that's a serious misrepresentation of the facts, and cutting some sections out of some dead and down trees that have fallen across a previously existing trail is NOT clear cutting by any reasonable definition. Were "hundreds" of such dead trees cut to allow hiker access? Sure couldn't tell that from the video. Even if they were cut over a length of trail, where's the ecological damage?
The SFW spokesperson also continues to compare the Blackberry situation to someone going into totally undisturbed terrain in the park and "cutting a trail" where one never existed before. That wording, too, is intended to create a mental image of activity which would be absolutely wrong and would demand serious legal action.
Again, that's not what happened here, and the court certainly didn't buy that claim in the recent case. I certainly couldn't see any "resource damage" from the trail work shown in the video. Should unauthorized maintenance of an abandoned trail be done by anyone in a park? No, but such work is light years away from the picture being painted by SFW – and the court was clearly satisfied that the park has taken appropriate action to deal with it.
Just one more example of lack of accuracy by this group: Fluffybunny claims above that "Blackberry farms and Sundquist were not part of the suit." Sorry, not true. See page 54 of the court document which says " Count II of the Amended Complaint concerns the defendants’ alleged grant of a license to former Governor Sundquist by relocating a portion of the Ace Gap Trail from his property and the alleged grant of a license to Blackberry Farm which allows the exclusive use of Park trails by Blackberry Farm guests..."
The court, incidentially, rejected those claims by SFW.
Despite some great PR spin, statements by this group just don't pass any reasonable test of credibility.
Ok, folks, we're going to close this one down. We just don't have the time to police the bickering between local parties, and it's not benefiting the readership as a whole.