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A U.S. district judge in Knoxville has ruled that a lawsuit over a backcountry user fee in the Great Smoky Mountains National Park can go forward. However, the ruling has denied the plaintiff the right to examine records beyond the public administrative level.

The decision is the latest in a year-long legal battle waged by Southern Forest Watch, an organization that is opposed to a $4 backcountry user fee implemented in the park on Feb. 13, 2013. The group filed a lawsuit on March 2, 2013, in U.S. District Court alleging that the fee is unlawful.

Officials have said that the park will use the funds to provide increased customer service for backcountry trip planning, reservations, permits and to enhance the backcountry experience.

However, the fee’s proposal in 2011 ignited a backlash from residents of eastern Tennessee and Western North Carolina whose opposition may be influenced by decades of past politics, economics and history that altered land-use practices and access to Southern Appalachian forests.

Read a two-part series on the issue from Carolina Public Press here: New Smokies fee prompts modern echo of historic culture clash and Smokies enacts $4 fee amid tangle of politics, history, criticism.

Southern Forest Watch has argued that there is no legal basis for charging a fee in the park and that the park implemented the fee without adequate public input. The organization’s founder, John Quillen, said his review of the public comments were “18-to-1 in opposition of the fee.”

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In October, the U.S. government filed a motion asking the courts to dismiss the lawsuit. The motion to dismiss, which was filed by the U.S. Attorney General’s office in Knoxville, Tenn., cites the Federal Lands Recreation Enhancement Act of 2004 that authorizes the U.S. Department of the Interior to implement fees and use the revenue to improve the delivery of recreational amenities.

The federal government’s request for dismissal argued that the lawsuit fails to name an actual harm caused by the backcountry fee and the backcountry permit system and that the plaintiffs have only identified inconveniences and policies in which they disagree. The motion said that the superintendent of the park has the authority and discretion to require a reservation for all backcountry camping and to regulate the backcountry with certain rules.

The dismissal also argued that the plaintiffs have no right to go beyond the administrative record in discovery. According to the American Bar Association, discovery is the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial.

Southern Forest Watch has argued that the case should go beyond just an administrative record review. The organization asserted that all records to the case should be reviewed to support its argument that portions of the administrative record have been deleted and that the defendants have “orchestrated a corrupt and dishonest administrative practice” leading up to the implementation of the fee.

The March 24 decision upheld the motion to deny discovery and the case will be limited to the review of the administrative record. The court’s decision also denied the plaintiff’s assertion that the park does have the authority to implement the fee.

Essentially, the court has said that the only portion of the case that can go forward is their challenge of the $4 fee.

Park spokesperson Caitlin Worth said that the park can’t comment on the case while it is pending. However, she said that the first year of the system has been successful.

“There were initial hiccups with users getting used to the system, but we are seeing increased usability,” Worth said.

In addition, she added, the new system and revenue has allowed “backcountry rangers [to get] out of the office and into the park to keep sites clean and to get law enforcement in to enforce laws we weren’t able to in the past.”

Nevertheless, Quillen’s organization has alleged that the fee will make the backcountry of the park less accessible.

“It was our fear that the imposition of this tax would decrease access to the backcountry of the Great Smoky Mountains National Park,” Quillen said in an email to Carolina Public Press. “The significant documented decline by the National Park Service’s own numbers have borne that fact dramatically.”

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Quillen is referring to a drop in overnight stays from roughly 85,000 visits in 2012 to just over 70,000 visits in 2013 based on NPS visitor use data.

However, Worth says the NPS data is not accurate and are estimates based on an antiquated model for determining visitation. Worth said that the actual number of permits manually collected by backcountry rangers from permit boxes tell a different story.

In 2012, there were 75,791 backcountry users and 77,430 in 2013. In 2011 there were 74,510 users. The most recent annual figure was compiled using information from the online reservation system implemented last year.

Still the 2013 figure may also be skewed too, said Worth, and that the increase from 2012 to 2013 reflects “increased compliance to the new procedure and people who never actually got on trail but failed to cancel their trip, since no refund is offered.”

Regardless of the numbers, Quillen and his organization are steadfast in their opinion that the the fee is unjust. The judge’s decision to allow the case over the fee is welcomed news, he said, and he is cautiously optimistic.

“This only means the case goes forward,” he said. “We are only getting started again.”

Jack Igelman

Jack Igelman is a contributing reporter with Carolina Public Press. Contact him at jack@igelman.com.

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