Southern Forest Watch, Inc. v. Sally Jewell, 817 F.3d 965

Background

Great Smoky Mountains NP planned a new $4 per-person, per-night backcountry permit/reservation fee for 101 campsites, announced after technology supporting the prior reservation system was discontinued.
Park staff developed a public-engagement plan (press releases, two open houses, stakeholder outreach) and received 230 written comments and ~69 open-house attendees; most comments opposed fees.
The Park Service approved the fee after regional and national review; Park announced the fee in March 2012 to begin Jan 1, 2013.
Southern Forest Watch sued under the Administrative Procedure Act and FLREA, alleging failures to (1) publish required Federal Register/local notices for a “new recreation fee area,” (2) provide required public participation and follow agency guidance (Manual 22A), and (3) that the Park misrepresented the fee’s justification; it also sought discovery beyond the administrative record.
District court denied discovery and granted summary judgment for the Park Service; Sixth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FLREA’s 6-month Federal Register notice for a “new recreation fee area” applied	SFW: any park establishing a fee under FLREA for the first time (even if it charged fees pre-FLREA) is a new fee area, so §6803(b) notice required	Park Service: Great Smoky charged fees pre-FLREA, so it was not a "new" fee area and §6803(b) does not apply	Court: Park was not a new fee area; agency interpretation persuasive; no Federal Register notice required
Whether Park failed to provide adequate public participation or violated Manual 22A	SFW: Park ignored Manual 22A requirements (stakeholder contacts) and misled public about fee rationale, depriving meaningful participation	Park: conducted outreach (press releases, open houses, stakeholder contacts); Manual 22A is nonbinding internal guidance; Park accurately disclosed rationale	Court: substantial public participation occurred; Manual 22A is nonbinding guidance; no arbitrary-and-capricious violation
Whether Park misrepresented reasons for fee (reservation complaints, overcrowding, ranger funding)	SFW: Park exaggerated reservation problems, crowding, and falsely promised funds for additional rangers	Park: administrative record contains contemporaneous complaints, crowding reports, and documented plan to use revenues to support staffing; agencies may refine rationale during process	Court: record supports Park’s explanations; changes during process lawful if reasoned; no deception shown
Whether district court abused discretion by denying supplementation/discovery beyond administrative record	SFW: agency omitted relevant documents and deliberative emails; needed to review omitted materials	Park: missing items were undocumented, post-dated, or irrelevant; record contains sufficient contemporaneous materials	Court: denied supplementation; Park did not deliberately exclude material necessary for review; no abuse of discretion

Key Cases Cited

Christensen v. Harris Cty., 529 U.S. 576 (agency guidance entitled to respect only to extent it is persuasive)
Skidmore v. Swift & Co., 323 U.S. 134 (weight given to agency interpretations depends on persuasiveness)
Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199 (notice-and-comment required for binding substantive rules)
Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (agency manuals not binding when intended as nonbinding guidance)
Wilderness Soc’y v. Norton, 434 F.3d 584 (D.C. Cir. — Park Service policies are nonbinding internal guidance)
River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. — Park Service policies not judicially enforceable)
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (agencies may change positions during decisionmaking so long as not arbitrary and capricious)
Camp v. Pitts, 411 U.S. 138 (review focuses on administrative record in existence when agency made decision)