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."

Comments

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 southernforestwatch.org 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 Recreation.gov. 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.

Somehow, I get the idea that this is a done deal. I feel like Ditmanson is thumbing his nose at anyone who disagrees with his plan. If this is going to be his legacy, then he will leave NPS to spend countless tax dollars to defend it. It seems like, he is saying this is the way it's going to be - take it or leave it or more specifically, we will not change and we will not compromise, to hell with the public-the Ditmanson plan is far superior to the lowly publics ability to comprehend and it will be implemented.

For an attorney, Mr. Myers Esq. has a stunning misunderstanding of the law and policy surounding the fee issue.

Hey "Anonymous" What are your legal credentials? Why don't you rebut his legal brief instead of just throwing out criticizm? Why? because you cant. Anonymity is the refuge of cowards.

Ditmanson is getting what he deserves for ignoring the public wishes. This is a national park and it doesn't belong to him, it belongs to the people. Targeting backpackers to the exclusion of all other user groups is not just wrong, it IS illegal. Study FLREA, buddy.

Its funny that you mention "Anonymity is the refuge of cowards", when you do the same thing John.

Don't try to deny it.

This "lawsuit" will make a mockery of the Southern Forest Watch.

This lawsuit will have implications for all of the National Park System and wherever they charge similar fees. It is apparent by your posting that Southern Forest Watch has achieved their goal. Getting the National Park Services attention. I suspect it has already made a mockery of Dale Ditmanson. Soon it may do the same for the rest of Jarvis clan.

This lawsuit won't get any further than the clerk's recyling bin. It's truly a laugh.

The groundswell of disapproval of present Smokies management is a real headache for the DOI. I wouldn't be surprised if they didn't re assign Ditmanson and Fitzgerald, bring new faces that aren't resented so widely and rescind the fee to buy some community capital in the region before an embarrasing lawsuit further widens the gap between the NPS and locals. When you throw a rock into a pack of dogs, the only one that yelps is the one that gets hit, partner.

The problem with this fee issue is the way diaper dale went about it. I've stayed at numerous campsite in the last couple of years and not one time have i seen an overcrowded site! In fact, very rarely have i seen anyone other than my party there. Don't pee down our backs and then tell us its raining! We are smarter than that.

Yes, a few of these comments from someone that can't even announce his or her name reminds of the days on www.gosmokies.com inregards to the backcountry fee. Many half truths were said to gain acceptance for the fee and to turn people against the www.southernforestwatch.org. Actually to the point were they shut down the page.

It really sickens me of all the straight face lies from the very beginning.

Martin

Uh Anonymous.

You are not paying attention.

The back packer tax RAISES NO EXCESS FUNDS. The back packer tax merely pays for the NEW reservation system. PERIOD.

The government want to charge me a fee, over and above my taxes, to sleep on the ground in the middle of the woods miles from amenities.

Is there an extra charge for using a rock as a pillow?

That's right to sleep on the ground! I've got a bad feeling about this. I've been to several national parks and its always good to come back to the beauty of the smokes, where i can smell the red spruce in the air, drink from the purest of springs, gaze over the horizon and see the smoky vapors arise from the depths of the valleys; oh wait a minute, huh, what's that no officer i mean ranger im just setting here enjoying my day in the mountains , my i.d. What for ? just shut up and let me see your permit!

Thank you redstateguy, that was a question I had. If the fee is for a reservations service, I am comfortable with that. But I think it is pushing it to charge a fee for hiking the trail itself, ie first come first serve. Another question perhaps you can answer, are the daily quotas all by reservation or is there still a % for walkins? Thank for your informative post.

Mackie,

There is no allowance for walk ins, the elderly, boy scout groups or senior citizens. Ditmanson made this clear in a meeting with opposition members. He refused to negotiate, modify or adopt any of the suggestions made during the public comments. It is his way or the highway. All sites are reserved so they can pocket more cash. Most campsites average two campers per night. And they will be even more empty after this debacle. They want people out of the backcountry, it's just that simple. Backpackers are just an annonyance. They could be smoking pot back there, according to the assistant superintendent, Fitzgerald.

John, thanks. I would be opposed to the Smokies proposal if walkins are not part of the policy. Walkins should be held back for at least 50% in my view. The alleged comment by the Great Smokies Assistant Supt. is reprehensible in my opinion. There is no place in professional public service for such a comment to be made while on duty at public meeting, if in fact such a statement was made.

For me, it's not about the money. It's about the loss of ability to decide to go backpacking in the GSMNP on the spur of the moment. Now I can't decide on a beautiful Saturday morning to go camping 40 minutes from my house because I have not made a reservation days or weeks in advance and recieived permission from the Canadian owned reservation company. It's also about tyranny.This land is the property of THE PEOPLE of the United States of America. NOT the property of Dale Ditmanson and Blackberry Farms. I'll give Dale $4 to go away. How about that? His reasons for "needing" the money are pure lies and manipulation of the local people who love this very special and unique place. And Mr. Anonymous you are a coward. If you are ashamed of your opinion then you should probably keep it to yourself.