Arthur v. Fry

• Decision Date: 16 May 1969
• Docket Number: Civ. A. No. 6536.
• Citation: 300 F. Supp. 622
• Parties: Jack A. ARTHUR, Jr., et al. v. George FRY.
• Court: U.S. District Court — Eastern District of Tennessee

300 F. Supp. 622

Jack A. ARTHUR, Jr., et al. v. George FRY.

Civ. A. No. 6536.

United States District Court E. D. Tennessee, N. D.

May 16, 1969.

COPYRIGHT MATERIAL OMITTED

Earl R. Hendry, Hendry & Sykes, Gatlinburg, Tenn., Henry F. Swann, Atty. Gen. of the Second Judicial Circuit of Tennessee, Dandridge, Tenn., for plaintiffs.

J. H. Reddy, U. S. Atty., Chattanooga, Tenn., for defendant.

MEMORANDUM

ROBERT L. TAYLOR, Chief Judge.

Plaintiffs, five residents of Sevier County, Tennessee, filed suit for injunction in the state Chancery Court, naming as the defendant George Fry, individually and in his capacity as Superintendent of the Great Smoky Mountain National Park. The action was removed to this Court pursuant to 28 U.S.C. § 1442 on the ground that the defendant was sued for actions taken under color of his office.

Plaintiffs seek to enjoin Fry from enforcing a regulation which prohibits the operation of commercial vehicles inside the Park. Defendant claims that the action is barred by the doctrine of sovereign immunity and has moved that the Court dismiss the suit.

The regulation in question closed to commercial vehicles United States Highway No. 441, which was formerly old State Highway No. 71 that crosses the Park between Gatlinburg, Tennessee and Cherokee, North Carolina, and State Highway 73. Both were constructed by the state or county government. In June 1951 the State of Tennessee deeded the highways to the United States subject to restrictions and reservations. The deed and the statute authorizing the transfer provided that the federal government should not have the right to levy any toll or license fee for the use of the two roads, except that it could regulate the use of commercial vehicles weighing over one and one-half tons during the day-time.

By Act of March 15, 1963, Chapter 163 of Public Acts, Tennessee provided for the eventual cessation of the reserved rights to the United States. The Act stated in relevant part the following:

"* * * the State of Tennessee consents to the United States prohibiting the use by commercial vehicles of U. S. Highway 441 and Tennessee Highway No. 73 west of Gatlinburg, Tennessee, within the Great Smoky Mountains National Park when Interstate Route I-40 is completed from near Newport, Tennessee, to U. S. Highway No. 19 near Waynesville, North Carolina." (Emphasis added)

Plaintiffs contend that the state's reserved rights have not been dissolved because the condition of completion of I-40 has not occurred. A hearing was conducted on plaintiffs' application for injunctive relief. The evidence established that I-40 is completed and open to traffic from near Newport Tennessee to Cove Creek, North Carolina, some eleven miles from Waynesville. A state road connects the temporary end of I-40 to U. S. Highway 19. Although the Interstate never actually intersects U. S. 19 near Waynesville, plaintiffs say that the statute contemplated the completion of I-40 to an interchange east of Waynesville which connects to U. S. 19 by a road of about .9 miles in length. That section of the highway is not expected to be finished for several years.

Superintendent Fry interpreted the statute as ceding Tennessee's reserved rights upon completion to the present extent, and he ordered highways in the Park closed to commercial vehicles. His action was in compliance with the regulations of the Secretary of the Interior which provide in part, 36 C.F.R. § 5.6(b), the following:

"The use of government roads within park areas by commercial vehicles, when such use is in no way connected with the operation of the park area, is prohibited, except that in emergencies the Superintendent may grant permission to use park roads."

Plaintiffs claim special injury because the order has hurt established business relationships between plaintiffs in Gatlinburg and persons in Cherokee, North Carolina. When plaintiffs go to Cherokee on business, they must follow a route around the Park which is more than twice as long as the trip by way of U. S. 441 across the Park.

In the absence of the government's consent to be sued, this action must be dismissed for lack of jurisdiction if the suit is actually a suit against the United States which does not fall within one of the exceptions to the general principle of immunity. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

Although the action is nominally against George Fry, a suit is in legal effect against the sovereign if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration" or "if the effect of the judgment would be to restrain the Government from acting, or to compel it to act." Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). The effect of this action if successful would be to interfere with the government's administration of the Park and to restrain the government from executing the policy of the government as expressed by the Secretary of the Interior. The Court must conclude that the action is one against the sovereign. Cf. Gardner v. Harris, M.D., 391 F.2d 885 (C.A.5, 1968) and Andrews v. White, 121 F.Supp. 570 (E.D.Tenn., N.D., 1954).

Concerning suits for injunctive relief, the Supreme Court has recognized only two classes of cases which are exemptions to the doctrine of sovereign immunity. A suit for specific relief against a government official may be maintained (1) when the official's actions are beyond the limits of his statutory authority or (2) when, although acting within his statutory powers, the powers themselves or the manner in which they are exercised are unconstitutional. Larson v. Domestic & Foreign Corp., supra; Dugan v. Rank, supra.

Plaintiffs strongly contend that George Fry acted outside his statutory authority by closing the road to all commercial vehicles. Their position is that Fry did not have the authority to make a decision on the matter and that he did not have the authority to make the decision which he made.

Congress has granted broad powers to the Secretary of the Interior to control and regulate the lands in the National Park System. 16 U.S.C. § 3; 16 U.S.C. § 403h-3. On their face these statutes authorize the Secretary and his agents to regulate traffic within the parks. See Robbins v. United States, 284 F. 39 (C.A.10, 1922).

Plaintiffs further contend that the authority to regulate extends only over those lands within the park system and that the Tennessee statute of cession to the government reserved a property right which is not subject to federal regulation as park property. The highways have been ceded to the United States and are park lands even though certain rights were reserved by the grantor. That Fry arguably violated those reserved rights does not deprive his acts of their statutory authority. Larson v. Domestic & Foreign Corp., supra; Dugan v. Rank, supra; Gardner v. Harris,...