S. Forest Watch, Inc. v. Sec'y Interior
| Decision Date | 30 March 2015 |
| Docket Number | No. 3:13-CV-116,3:13-CV-116 |
| Parties | SOUTHERN FOREST WATCH, INC., et al., Plaintiffs, v. SECRETARY OF THE INTERIOR, SALLY JEWELL, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
Phillips/Guyton
On February 22, 2012, the National Park Service ("NPS") approved a $4.00 per-person, per-night backcountry camping fee ("BCF") for all backcountry campsites and shelters in the Great Smoky Mountains National Park ("GRSM" or the "Park"). Southern Forest Watch, Inc., and individual plaintiffs brought this declaratory judgment action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., to challenge the establishment of the BCF. Plaintiffs allege that the BCF violates the Federal Lands Recreation Enhancement Act ("FLREA"), 16 U.S.C. § 6801, et seq., and the NPS Organic Act, 54 U.S.C.A. § 100101, et seq., and that the process and decision to implement the BCF was arbitrary and capricious. Plaintiffs also complain of unrelated NPS decisions to re-route the Ace Gap Trail off private land and the alleged granting of permission to a private resort to maintain and utilize their own network of trails on Park property for the exclusive use of the resort.
The parties have filed cross motions for summary judgment1 with supporting briefs and affidavits [Docs. 44, 45, 48, 64, 65, 66, 67, 68, 72, 76, 84, 88] based on the administrative record. Having carefully considered the parties' briefs in light of the entire record, the Court will DENY the plaintiffs' motion [Doc. 44] and GRANT the defendants' motion [Doc. 64].
Plaintiffs' motion requests that the Court "[a]llow discovery to proceed" [Doc. 44 at ¶ 6]. Plaintiffs argue that the administrative record is incomplete, records are missing, and "persistent problems were swept under the rug" [Doc. 48 at p. 27]. Plaintiffs request that the Court order discovery on all matters or alternatively vacate the decision to implement the BCF and remand the proceedings for proper administrative adjudication and allowing Freedom of Information Act searches [Id.].
Defendants argue that the APA permits judicial review only of a "final agency action," 5 U.S.C. § 704, based on the administrative record of the materials compiled by the agency that were before it at the time it made the decision at issue. Camp v. Pitts, 411 U.S. 138, 142 (1973). Defendants also rely on the presumption that the agency properly compiled the administrative record absent clear evidence to the contrary. See Bullwinkelv. U.S. Dep't of Energy, No. 11-1082, 2013 WL 384902, at *1 (W.D. Tenn. Jan. 16, 2013); California v. U.S. Dep't of Labor, No. 2:13-cv-02069, 2014 WL 1665290, at *4—5 (E.D. Cal. Apr. 24, 2014). Defendants contend that supplementation of the administrative record is appropriate only when (1) an agency deliberately or negligently excludes documents or (2) the reviewing court needs background documents to determine whether the agency considered all relevant factors. Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir. 1997) . Defendants contend that the plaintiffs have not made the strong showing of bad faith required to permit discovery [Doc. 72 at pp. 65—67].
In response [Doc. 76], plaintiffs point to Fed. R. Civ. P. 56(d)(2) that they cannot present facts essential to justify their opposition to the defendants' motion and therefore they should be allowed to take discovery. Plaintiffs' counsel has submitted an affidavit in which he references the following types of information relied on by the defendants but which does not appear in the administrative record: "verbal complaints" about the backcountry reservation system; the absence of published statistics reflecting backcountry campsite usage; the absence of certain email replies; media interview requests; documentation of verbal comments from political officials; notices of the BCF and civic engagement guidelines published in the Federal Register; any contacts to local chambers of commerce; and references to unidentified "partners, concessioners, and incidental business permittees" who support the BCF [Doc. 76-3 at ¶¶ 4—12].
Defendants reply by arguing that the Court should focus on whether the record is sufficient for purposes of judicial review under the APA [Doc. 84 at pp. 22—27].Pointing to the volume and type of documents contained in the administrative record, defendants contend that additional documents would make no difference if the record as it exists is adequate to explain the NPS's decision and that the NPS is not required to include in the administrative record every piece of paper "peripherally related but not material" to the BCF decision [Id. at p. 22]. Defendants point out that some of what plaintiffs seek, e.g., documentation of verbal complaints and comments, media interviews, or notes of phone conversations, may not exist or are not required to be included in the administrative record. Similarly, defendants argue that post-decisional information, such as statistics regarding backcountry campsites or notes of meetings which occurred after implementation of the BCF would not be relevant; they were not considered by the NPS at the time of its decision and thus should not be part of the administrative record.
As the defendants correctly point out, the standard of review for an APA case is whether the agency decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" 5 U.S.C. § 706(2)(A). Thus, the Court's focus is on "the administrative record already in existence, not some new record made initially in the reviewing court." Camp, 411 U.S. at 142. Supplementation of the administrative record may be appropriate when an agency deliberately or negligently excludes certain documents, or when the court needs certain "background information" in order to determine whether the agency considered all of the relevant factors. Sierra Club, 120 F.3d at 638. In order to justify the "exceptional circumstances" to supplement the administrative record, Charter Twp. of Van Buren v. Adamkus, No. 98-1463, 1999 WL701924, at *4 (6th Cir. Aug. 30, 1999), a plaintiff must make a "'strong showing' of bad faith." Sierra Club, 120 F.3d at 638. Further, reviewing courts have been cautioned "not to allow such evidence to change the character of the hearing from one of review to a trial de novo." United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1428 (6th Cir. 1991) (quoting Town of Burlington v. Dep't of Educ., 736 F.2d 773, 791 (1st Cir. 1984)).
Upon careful review of plaintiffs' request, the Court concludes that they have not made a strong showing of bad faith or exceptional circumstances to justify supplementation of the record. Some of the allegedly missing information is after-the-fact data, such as backcountry statistics after the BCF was implemented, pre-suit correspondence from the plaintiffs, and information as to why certain Park employees are no longer at GRSM [Doc. 48 at pp. 19—20]. Information that was not part of the agency's decision-making process at the time is not relevant to whether that decision was arbitrary and capricious and should not be included in the administrative record. Camp, 411 U.S. at 142.
Moreover, much of the information plaintiffs are seeking is hypothetical and may not exist. See California, 2014 WL 1665290, at *4—5 () (quoting City of Duluth v. Jewell, No. 12-cv-1116, 2013 WL 5422453, at *5 (D.D.C. Sept. 29, 2013)). For example, plaintiffs seek documentation of the verbal complaints GRSM employees received about the backcountry reservation system or verbal comments from politicians, but there is no evidence that any documentation of such verbal conversations exists.Thus, if there is no written record of these conversations, they could not be included in the administrative record for consideration by the NPS. See Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 1308—09 (W.D. Wash. 1994), aff'd, 80 F.3d 1401 (9th Cir. 1996) (). Similarly, if there are no documents evidencing media interview requests or contacts to local chambers of commerce, there is nothing with which to supplement the administrative record. Further, plaintiffs have presented no evidence of bad faith or that the agency has deliberately or negligently withheld documents from the record. The request for discovery is denied.
The NPS was created by Congress in 1916 as part of the Department of the Interior, with its purpose "to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." 54 U.S.C.A. § 100101 (2014).2
The Great Smoky Mountains National Park is comprised of approximately half of a million acres of public park lands in North Carolina and Tennessee. GRSM includes over 800 miles of maintained hiking trails and approximately 100 backcountry campsitesand shelters maintained by the NPS [AR 132].3 The Park also contains hundreds of miles of unmarked trails, referred to as "manways," that are not currently maintained by the NPS [Doc. 67, Looney Dec. at ¶ 5].4 Prior to 2013, permits for use of the backcountry sites and shelters were available free of charge. Reservations could be made by telephone to the Park's backcountry office or in person at the Backcountry Information office in the Sugarlands Visitors Center [AR 132].
The record reflects that beginning at least in 2009 and continuing through 2011, the NPS...
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