Federal Law in Land Use

Federal Court Upholds Permit Fee for Backcountry Sheltering in Great Smoky Mountains National Park

There is a constant, and I believe growing, tension between the government and the governed as to whether taxes should be used for or user fees should be charged for myriad services.

The use of National Park land is no exception.

Great Smoky Mountains National Park has a significant amount of backcountry, including approximately 100 backcountry campsites and shelters maintained by the National Park Service. 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 National Park’s backcountry office or in person at the National Park’s Backcountry Information office.

Beginning at least in 2009 and continuing through 2011, the NPS received complaints from backcountry campers in the National Park about difficulties in making backcountry camping reservations.  NPS staff also received complaints about backcountry campers who were not following Park rules, such as using backcountry campsites without a permit, bringing dogs into the backcountry, and trash left at campsites.

In order to address these and other issues, after certain processes, the NPS mandated a permit fee for use of the backcountry campsites and shelters in the National Park.  The proposal identified a $4 per-person, per-night fee for backcountry campsites and shelters “to recover the direct costs for providing a reservation system with both internet and phone-in reservation capability, increased public access to trip planning assistance and permit compliance monitoring”.

In 2013, a group call the Southern Forest Watch filed suit in federal court challenging the fee and other actions on varied statutory bases.

This week, the federal court in Tennessee granted summary judgment on all claims in favor of the federal government and its officials.

We view the following as the most telling portion of the Court’s opinion supporting the decision in the government’s/fee’s favor:

Plaintiffs do not appear to argue that the fee is not commensurate with the benefits and services provided; rather, they seem to argue that they do not want or need the services. While the statute provides no mathematical formula or other interpretation for determining how much or what type of services are sufficient to be “commensurate” with the recreation fee, the Court finds that the NPS adequately considered the benefits to be provided by implementation of the fee as required by § 6802(b)(1) and that the NPS’s determination that the benefits and services would be commensurate with the amount charged is not arbitrary or capricious. The Court further concludes that the amount charged, $4 per-person, per-night, does not unlawfully “impair” the public’s enjoyment of the Park.

Southern Forest Watch intends to appeal, telling the Knoxville News-Sentinel that they “expos[ed] a corrupt system” in the course of the lawsuit.

Mike Thelen practices in Womble, Carlyle’s Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and real estate development litigations and transactions in state and federal venues throughout North Carolina.

Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw here and on Instagram at NCLandUseLaw here.

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