Southern Forest Watch, Inc. et al v. Salazar et al

Filing 32

ORDER granting in part 14 the Defendant's Motion to Dismiss in that Plaintiffs do not have standing to challenge the imposition of an online reservation system, and DENIED IN PART, in that Plaintiffs may proceed on their claims challenging the imposition of the backpacker permit camping fee and decision to grant a license; denying without prejudice 25 Plaintiff's Motion for Discovery. Signed by District Judge Joseph M Hood on March 24, 2014. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

SOUTHERN FOREST WATCH, INC.,
et al.,

)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
SECRETARY OF THE INTERIOR,
SALLY JEWELL, et al.,
Defendants.

Civil Action No.
3:13-cv-116-JMH-HBG
MEMORANDUM OPINION
AND ORDER

***
This matter is before the Court upon the Joint Motion to
Dismiss for Lack of Jurisdiction [D.E. 14] filed by Defendants
Sally Jewell, Secretary of the Interior, Jonathan B. Jarvis,
Director

of

the

National

Park

Service,

Dale

A.

Ditmanson,

Superintendent of the Great Smoky Mountains National Park, and
Patricia Wissinger, Assistant Superintendent of the Great Smoky
Mountains

National

Park,

as

well

as

Plaintiffs’

Motion

for

Discovery. [D.E. 25]. Each motion has been fully briefed. [D.E.
18; 27; 30; 31]. This matter being fully briefed, and the Court
being otherwise sufficiently advised, it is now ripe for review.
I. Procedural Background
The
person,

National
per

night

Park
fee

Service
for

(NPS)

backcountry

approved

a

camping

and

$4.00

per

shelters,

pursuant to the Federal Lands Recreation Act (FLREA), 16 U.S.C.
§

6801,

et

seq.

Additionally,

the

NPS

instituted

an

online

reservation system for obtaining permits and paying the $4.00
permit

fee

to

camp

in

the

backcountry

of

the

Great

Smoky

Mountains.
Plaintiffs allege that, of the backcountry campsites within
the Great Smoky Mountains National Park, eighty percent “are
unrestricted
vehicles

on

upon

use

other

arrival

at

than

registering

certain

trailheads

the
and

party

and

designating

destinations and itineraries for backcamping trips.” [D.E. 24 at
11].

The

other

Plaintiffs,
under

the

are
old

twenty

percent

reservation
reservation

of

campsites,

campsites.
system

according

Plaintiffs

there

were

no

claim
fees,

to
that
and

reservations could be made in advance by calling the park or by
registering in person the day of the trip. [D.E. 24 at 12-13].
Plaintiffs

allege

that

this

system

“worked

perfectly

and

seamlessly.” [D.E. 24 at 14].
Plaintiffs filed this action challenging the imposition of
the new permit system, specifically the implementation of an
online reservation system and backcountry camping fee in the
Great

Smoky

Mountains

National

Park.

Plaintiffs

allege

Defendants
manufactured false justifications and assertions . . .
in order to dissolve the current working permit system
for access to the backcounty [sic] sections of the
Smoky Mountains and to replace it with another
reservation system in order to assert more control and
limit access to the backcountry sections of the Smoky
Mountains.
2

that

[D.E. 24 at 3-4]. Plaintiffs claim that the new reservation
system and fee “is onerous and burdensome to those who wish to
backpack” and that Defendants “implemented new and absurd rules
and regulations.” [D.E. 24 at 4-5].
Under the new system, Plaintiffs allege, a camper must have
internet
thirty

access
days

in

and

a

credit

advance,

and

card,
the

reservations
process

are

requires

allowed
clicking

through multiple webpages, which must be done within 15 minutes.
[D.E. 24 at 20]. Plaintiffs also note that if you do not have
internet access, “reservations can be made by telephone or by
personally appearing at Sugarland Visitor Center.” [D.E. 24 at
20].
Based upon the imposition of the new online reservation
system and $4.00 charge for camping in the backcountry of the
Great Smoky Mountains National Park, Plaintiffs bring several
claims seeking a declaratory judgment from this Court. In Count
I,

Plaintiffs

violated

16

seek

a

declaratory

U.S.C.

§

1a-1

by

judgment

intentionally

that

Defendants

making

public

misrepresentations and false assertions. [D.E. 24 at 22-23]. In
Count II, Plaintiffs seek a declaratory judgment that the grant
of free, exclusive, and privileged use of portions of the park,
to the exclusion of the public, violates 16 U.S.C. § 3. [D.E. 24
at 23]. In Count III, Plaintiffs seek a declaratory judgment

3

that Defendants are not allowed to charge a backpacker fee under
the Federal Lands Recreation Enhancement Act, 16 U.S.C. § 6801,
et seq. [D.E. 24 at 23-24]. In Count IV, Plaintiffs seek a
declaratory judgment that they are free to backpack anywhere
within

the

Great

Smoky

Mountains

National

Park

and

are

not

limited to areas designated for collection of the backpacker
tax.

[D.E.

24

at

24-25].

In

Count

V,

Plaintiffs

seek

a

declaratory judgment that Defendants are not entitled to charge
a

backpacker

fee

under

16

U.S.C.

§

6802(g)

and

that

the

implementation of the online reservation system is in violation
of 16 U.S.C. § 1. [D.E. 24 at 25-27]. In Count VI, Plaintiffs
seek a declaratory judgment that the online reservation system
and backpacker tax exceeds the authority provided to Defendants.
[D.E. 24 at 27]. In Count VII, Plaintiffs seek a declaratory
judgment,

under

decision

to

the

Administrative

implement

the

online

Procedures

Act,

reservation

that

the

system

and

backpacker tax was arbitrary and capricious. [D.E. 24 at 28-29].
In

Count

VIII,

Plaintiffs

seek

a

declaratory

judgment

that

Defendants failed to comply with 16 U.S.C. § 6803 and 5 U.S.C. §
553, which require public participation before agency action.
[D.E. 24 at 29]. In Count IX, Plaintiffs seek a declaratory
judgment that the promulgation of the online reservation system
and

backpacker

tax

was

arbitrary,

4

capricious,

an

abuse

of

discretion, and in violation of 5 U.S.C. § 706(2)(A). [D.E. 24
at 30].
Defendants have filed a Motion to Dismiss alleging that
Plaintiffs

lack

standing

to

challenge

the

imposition

of

the

online reservation system and backpacker tax, that Plaintiffs’
claims are barred by sovereign immunity, and that the Plaintiffs
have not asserted an independent cause of action that would
allow

the

Court

to

issue

a

declaratory

judgment.

Plaintiffs

respond by asserting that they have concrete injuries, as they
have used the online reservation system and paid the backpacker
fee, and that sovereign immunity does not apply.
Plaintiffs

have

filed

a

Motion

for

Discovery

requesting

that this Court allow discovery to go outside the administrative
record. [D.E. 25]. Plaintiffs believe discovery on this matter
should go forth based on the possibility that portions of the
administrative record have been deleted and that some of the
causes of action do not focus on the online reservation system
and

backpacker

registration

fee.

[D.E.

25]

In

response,

Defendants make many of the same arguments found within their
Motion

to

Dismiss

and

also

argue

that

review

of

agency

decisions, instituted pursuant to the Administrative Procedure
Act, is limited to review of the administrative record. [D.E.
30].

5

II. Standard of Review
A

party

may

assert

a

claim

of

lack

of

subject-matter

jurisdiction by motion. Fed. R. Civ. P. 12(b)(1). “The plaintiff
has the burden of proving jurisdiction in order to survive the
motion.” Mich. S. R.R. Co. v. Branch & St. Joseph Cntys. Rail
Users Ass’n, Inc., 287 F.3d 568, 573 (6th Cir. 2002) (citing
Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269
(6th

Cir.

1990)).

“The

plaintiff

must

show

only

that

the

complaint alleges a claim under federal law, and that the claim
is ‘substantial.’ A federal claim is substantial unless ‘prior
decisions inescapably render it frivolous.’” Musson Theatrical,
Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996)
(quoting Transcon. Leasing, Inc. v. Mich. Nat’l Bank of Detroit,
738 F.2d 163, 165 (6th Cir. 1984)). “The plaintiff will survive
the motion to dismiss by showing ‘any arguable basis in law’ for
the claims set forth in the complaint.” Mich. S. R.R. Co., 287
F.3d at 573 (citations omitted).
A party may present the defense of failure to state a claim
upon which relief can be granted through motion. Fed. R. Civ. P.
12(b)(6). A motion to dismiss pursuant to Federal Rule of Civil
Procedure
complaint.

12(b)(6)
The

tests

Court

the

views

sufficiency

the

complaint

of

the

plaintiff’s

in

the

light

most

favorable to the plaintiff and must accept as true “well-pleaded
facts” set forth in the complaint.
6

Morgan v. Church’s Fried

Chicken, 829 F.2d 10, 12 (6th Cir. 1987) (citations omitted). “A
complaint must contain either direct or inferential allegations
with respect to all material elements necessary to sustain a
recovery under some viable legal theory.” Weiner v. Klais & Co.,
108

F.3d

86,

88

(6th

Cir.

1997)

(citations

omitted).

If

it

appears beyond doubt that the plaintiff’s complaint does not
state

facts

sufficient

to

“state

a

claim

to

relief

that

is

plausible on its face,” then the claims must be dismissed.

Bell

Atl.

also

Corp.

v.

Twombly,

550

U.S.

544,

570

(2007);

see

Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542 (6th Cir.
2007). Further, the complaint must establish “enough fact to
raise

a

reasonable

evidence”

to

show

expectation
the

that

averments

Twombly, 550 U.S. at 556.

discovery

are

will

factually

reveal

plausible.

While the Court presumes all factual

allegations to be true and makes all reasonable inferences in
favor

of

Plaintiffs,

the

Court

does

not

have

to

“accept

unwarranted factual inferences.” Total Benefits Planning Agency,
Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th
Cir.

2008)

(citations

omitted).

If

the

“complaint

does

not

contain any factual allegation sufficient to plausibly suggest”
each essential element of the averred violation, it does not
contain enough factual content to nudge the claim across the
line

from

conceivable

to

plausible,

and

must

Ashcroft v. Iqbal, 556 U.S. 662, 680-83 (2009).
7

be

dismissed.

III. Analysis
A. Motion to Dismiss
Plaintiffs have not alleged a factual basis to create an
injury in fact due to the NPS’ decision to create an online
reservation fee, but have alleged an injury in fact to create
standing to challenge the imposition of a backcountry permit
fee. Plaintiffs have asserted claims under the Administrative
Procedure

Act,

creating

subject-matter

jurisdiction

under

28

U.S.C. § 1331, and the NPS has not made discretionary decisions
falling under the narrow exception to the grant of jurisdiction
found

in

5

U.S.C.

§

702(a)(2).

Therefore,

Plaintiffs

claims

seeking declaratory relief on the subject of the backcountry
camping fee may go forth.
1. Standing
Defendants allege that Plaintiffs do not have standing to
challenge the online reservation system implemented at the Great
Smoky

Mountains

National

Park.

To

meet

the

constitutional

requirements of standing, Plaintiffs must show that they
have suffered an ‘injury in fact’ – an invasion of a
legally protected interest which is (a) concrete and
particularized and (b) ‘actual or imminent, not
conjectural or hypothetical’[;] . . . there must be a
causal connection between the injury and the conduct
complained of – the injury has to be ‘fairly traceable
to the challenged action of the defendant, and not the
result of the independent act of some third party not
before the court[;] . . . [and] it must be ‘likely,’
as opposed to merely ‘speculative,’ that the injury
will be ‘redressed by a favorable decision.’
8

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(citations omitted). “An association,” such as Southern Forest
Watch, Inc.,
has standing to bring suit on behalf of its members
when: (a) its members would otherwise have standing to
sue in their own right; (b) the interests it seeks to
protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief
requested requires the participation of individual
members in the lawsuit.
Hunt

v.

Wash.

State

Apple

Adver.

Comm’n,

432

U.S.

333,

343

(1977). Defendants do not claim that Plaintiffs have not met the
“prudential requirements for standing developed by the Supreme
Court,” and the Court finds that they are not at issue in this
case. See Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d
197, 206 (6th Cir. 2011).
Defendants

argue

that

the

Plaintiffs

have

not

shown

an

injury in fact, and, thus, have no standing to challenge the
online

reservation

system.

Plaintiffs

do

not

explicitly

set

forth the concrete injury they have suffered, but state that the
“new registration system, in and of itself, is an impairment or
a burden, especially when compared with the registration system
that has been employed for decades.” [D.E. 19 at 4]. Plaintiffs
go on to claim that “[t]he new backpacker registration system is
more onerous, difficult, an impairment, etc.” [D.E. 19 at 5].
However, Plaintiffs also note, in their Amended Complaint, that

9

if one does not have email or internet access,
reservations can be made by telephone or by personally
appearing at Sugarland Visitor Center in the Smoky
Mountains to pay cash and manually pick up a camping
permit. Defendants are advising callers they can also
fax a copy of the camping permit to a backpacker.
[D.E. 24 at 20].
These particular Plaintiffs have not alleged an injury such
that

they

have

standing

to

challenge

the

online

reservation

system. Plaintiffs assert that they have been injured because
the online reservation system is “burdensome,” especially when
compared

to

the

old

system.

However,

a

review

of

receipts

provided by Plaintiffs shows that all individual Plaintiffs were
able to access the online reservation system and obtain a permit
through

the

use

of

the

online

reservation

system.

Thus,

Plaintiffs have not stated an injury in fact for purposes of
standing because they have not shown that the online reservation
system

is

so

burdensome

that

they

cannot

use

the

system

to

obtain a permit.
The facts of this case can be analogized to those in a case
brought under the Americans with Disabilities Act. In Sharp v.
Capitol City Brewing Co., a quadriplegic brought suit because a
portable trash can in a water closet did not leave enough room
for a person in a wheelchair to transfer herself to the water
closet.

680

F.

Supp.

2d

51,

58

(D.D.C.

2010).

However,

the

district court found that there was no injury in fact because

10

the

“plaintiff’s

disability

[was]

such

that

he

[could

not]

transfer himself to a water closet whether a trash can was in
his way or not.” Id. Thus, “the trash can [did] not prevent
plaintiff

from

engaging

in

any

activity

he

could

otherwise

perform.” Id. Similarly, Plaintiffs have not alleged that the
online reservation system burdens them to such a degree that
they cannot obtain a permit to camp in the backcountry of the
Great

Smoky

receipts

Mountains.

showing

they

In

fact,

were

able

Plaintiffs
to

have

utilize

the

provided
online

reservation system to obtain permits. [D.E. 24-11 at 1-3]. Thus,
the online reservation system has not prevented Plaintiffs from
engaging in an activity in which they could otherwise engage.
Plaintiffs may prefer the old reservation system to the
online reservation system, but Plaintiffs desire for the old
voluntary reservation system does not allege an injury in fact
that creates a case or controversy, thereby giving this Court
jurisdiction. See Ingraham v. Wright, 430 U.S. 651, 674 (1977)
(“There is, of course a de minimis level of imposition with
which

the

Constitution

is

not

concerned.”);

Sierra

Club

v.

Morton, 405 U.S. 727, 740 (1972) (“[The goal of putting review]
in the hands of those who have a direct stake in the outcome . .
. would be undermined were we to construe the APA to authorize
judicial review at the behest of organizations or individuals

11

who

seek

to

do

no

more

than

vindicate

their

own

value

preferences through the judicial process.”).
The Court stresses that it is not holding that no person
has standing to challenge the online reservation system. See
United

States

Procedures,

v.

412

Students

U.S.

669,

Challenging

688

(1973)

Regulatory

(“To

deny

Agency

standing

to

persons who are in fact injured simply because many others are
also injured, would mean that the most injurious and widespread
Government

actions

could

be

questioned

by

nobody.

We

cannot

accept that conclusion.”). Rather, the Court is holding that
these particular Plaintiffs have not set forth an injury in
fact. For example, a party who could show that they could not
operate the online reservation system to obtain a permit may be
able to show an injury in fact, but these particular Plaintiffs
have

provided

evidence

that

they

could

competently

use

the

online reservation system in such a way to obtain a permit.
As
challenge

the

individual

the

online

Plaintiffs

reservation

do

not

system,

have

the

standing

Court

will

to
not

grant a declaratory judgment pertaining to the implementation of
the

online

declaratory

reservation
relief.

system

under

Furthermore,

any

of

Plaintiff

the

claims

Southern

for

Forest

Watch, Inc. has not shown that “its members would otherwise have
standing to sue in their own right,” so it also does not have

12

standing

to

challenge

the

implementation

of

the

online

reservation system. See Hunt, 432 U.S. at 343.
In

their

Reply,

Defendants

assert

that

they

no

longer

contest Plaintiffs standing to challenge the imposition of the
backcountry

camping

fee

established

under

the

FLREA.

As

Plaintiffs have actually incurred the cost of the new camping
fee, the Court agrees with Defendants assessment, and finds that
the

individual

Plaintiffs

have

suffered

an

injury

in

fact

through the payment of the fee. See Williams v. Redflex Traffic
Sys., Inc., 582 F.3d 617, 620 (6th Cir. 2009) (“[W]ithout having
been injured by these procedures, she resembles a mere outsider
with

a

non-justiciable

‘general

grievance.’”

(citing

United

States v. Hays, 515 U.S. 737, 743 (1995))).
Plaintiff Southern Forest Watch, Inc., as an association,
also meets the requirements to have standing to challenge the
imposition

of

the

backcountry

tax.

First,

as

has

been

established, individual members have standing to sue in their
own

right.

While

not

found

in

the

pleadings,

the

“primary

purpose” of the organization appears to be “to stop the illegal
backcountry

tax

in

its

tracks.”

Southern

Forest

http://www.southernhighlanders.com/Backcountrytax.html

Watch,
(last

visited Mar. 18, 2014). Finally, while individual members are
involved in the suit, there is no reason their participation
should be required.
13

Plaintiffs also seek a declaratory judgment based on, what
they describe as, Defendants’ decision to grant licenses and
rights “to private entities and political elites on such terms
to interfere with the free access” to the Great Smoky Mountains
National Park. [D.E. 24 at 23]. Plaintiffs have met the standing
requirements to challenge this decision. Plaintiffs, by alleging
that they wish to use this portion of the park for hiking, have
alleged

a

concrete

injury.

See

Jackson

Hole

Conservation

Alliance v. Babbitt, 96 F. Supp. 2d 1288, 1293 (D. Wyo. 2000)
(“[T]he proximity of Mr. Sheahan's residence to the site of the
Proposed Action, and his frequent use of the area, demonstrate
his

concrete

interest

in

the

dispute

by

virtue

of

his

‘geographical nexus to’ and ‘actual use of’ the area affected by
the Proposed Action.” (quoting Comm. to Save the Rio Hondo v.
Lucero, 102 F.3d 445, 450-51 (10th Cir. 1996))); [D.E. 24 at 5]
(“Plaintiffs have offered many solutions and tried repeatedly by
any number of efforts to resolve this issue with the defendants
in

order

to

continue

backpacking

Mountains.”).

Further,

the

injury

unimpaired
can

be

in

the

traced

to

Smoky
the

Defendants’ decision to grant a license to the private entities,
and a declaratory judgment that the decision did not comply with
relevant law will redress the injury. See Lujan, 504 U.S. at
560-61.

14

2. Sovereign Immunity
Defendants next assert that Plaintiffs cannot challenge the
discretionary

decision

of

the

NPS

to

implement

an

online

reservation system and to charge a backcountry camping fee due
to the operation of sovereign immunity. Defendants claim that
these were decisions committed to agency discretion by law, and,
therefore,

sovereign

Administrative

immunity

Procedure

Act

has

not

(APA).

been

As

the

waived
Court

under
has

the

found

Plaintiffs do not have standing to challenge the creation of an
online

reservation

system,

the

Court’s

analysis

of

sovereign

immunity will focus on the backpacker permit fee and decision of
the NPS to lease or license portions of the park.
Plaintiffs and Defendants agree that the decision of the
NPS to implement a fee and online reservation system is governed
by

the

APA.

The

APA

provides

judicial

review

of

agency

decisions, 5 U.S.C. § 702, but makes an exception for “agency
action . . . committed to agency discretion by law. 5 U.S.C. §
701(a)(2); see Interstate Commerce Comm’n v. Bhd. of Locomotive
Eng’rs, 482 U.S. 270, 282 (1987) (quoting 5 U.S.C. § 701(a)(2))
(“[I]t is the Administrative Procedure Act (APA) that codifies
the

nature

and

attributes

of

judicial

review,

including

the

traditional principle of its unavailability ‘to the extent that
agency

action

Subsection

is

(a)(2)

committed

to

applies

“in
15

agency
those

discretion
rare

by

law.’”).

instances

where

‘statutes are drawn in such broad terms that in a given case
there is no law to apply.’” Citizens to Pres. Overton Park, Inc.
v. Volpe, 401 U.S. 402, 410 (1971) (quoting S. Rep. No. 752,
79th Cong., 1st Sess., 26 (1945)); see also Diebold v. United
States,

947

generally
there

F.2d

is

is

787,

789

considered

‘no

law

to

(6th

Cir.

committed
apply.’”

to

1991)

(citations

action

discretion

where

omitted)).

agency

(“Agency

Thus,

sovereign immunity applies only if there is no law to apply.
To determine if there is law to apply the Court must look
to the statutory authority and regulations issued pursuant to
the relevant statutes. See Diebold, 947 F.2d at 796 (finding
that, to determine if the 5 U.S.C § 701(a)(2) exception applies,
a

court

must

statutes,

first

and,

look

to

general

finally,

regulations

Court

look

statutes,
issued

then

pursuant

specific
to

those

statutes).
First,
U.S.C.

§

the

1.

This

must

statute

to

creates

the

the

general

NPS,

the

statute,

16

position

of

Director, Deputy Director, and allows for “subordinate officers,
clerks, and employees as may be appropriated for by Congress.”
16 U.S.C. § 1. The purpose of the creation of national parks “is
to conserve the scenery and the natural and historic objects and
the wild life therein and to provide for the enjoyment of the
same

in

such

unimpaired

for

manner
the

and

by

such

enjoyment
16

of

means
future

as

will

leave

generations.”

them
Id.

Additionally, Congress has passed a specific statute allowing
for

the

imposition

of

recreation

fees,

based

on

specific

criteria, and imposing limitations on the ability to charge fees
for camping at undeveloped sites. 16 U.S.C. § 6802.
The

regulations

governing

the

NPS

provide

that

“the

superintendent may . . . [d]esignate areas for a specific use or
activity,

or

impose

conditions

or

restrictions

on

a

use

or

activity.” 36 CFR § 1.5(a)(2). That section also provides that:
Except
in
emergency
situations,
a
closure,
designation, use or activity restriction or condition,
or the termination or relaxation of such, which is of
a nature, magnitude and duration that will result in a
significant alteration in the public use pattern of
the park area, adversely affect the park’s natural,
aesthetic, scenic or cultural values, require a longterm or significant modification in the resource
management objectives of the unit, or is of a highly
controversial nature, shall be published as rulemaking
in the Federal Register.
Id.

§

1.5(b).

superintendent

“To
may

implement
establish

a
a

public
permit,

use

limit,

registration,

the
or

reservation system.” Id. § 1.5(d). The next section, 36 CFR §
1.6 provides requirements for a permit system. Further, “[t]he
superintendent may require permits, designate sites or areas,
and establish conditions for camping.” 36 CFR § 2.10. One type
of fee allowed to be charged is a “[d]aily recreation use fee[]
for

the

use

of

specialized

sites,

facilities,

equipment

services furnished at Federal expense.” 36 CFR § 71.2.

17

or

There are also statutes and regulations governing the NPS’
decision to grant a license to a private party. “No natural,
curiosities, wonders, or objects of interest shall be leased,
rented, or granted to anyone on such terms as to interfere with
free access to them by the public.” 16 U.S.C. § 3. Further, the
Code of Federal Regulations provides multiple requirements the
NPS must comply with when deciding whether to lease park areas.
36 C.F.R. §§ 18.1 – .12.
Therefore,

as

the

statutes

and

C.F.R.

clearly

lay

out

standards by which to judge the superintendent’s conduct, the
superintendent’s decision to implement a backpacker registration
fee and decision to lease part of the park does not fall within
the limited exception for sovereign immunity granted by 5 U.S.C.
§ 701.
3. Lack of Subject-Matter Jurisdiction
Defendants further argue that Plaintiffs’ claims should be
dismissed for lack of subject-matter jurisdiction because the
Declaratory Judgment Act does not provide an independent basis
of subject-matter jurisdiction. However, Plaintiffs do not rely
on the Declaratory Judgment Act as a means for subject-matter
jurisdiction.

Rather,

Plaintiffs,

in

the

first

paragraph

of

their amended complaint, state that the Court has subject-matter
jurisdiction pursuant to 28 U.S.C. § 1331.

18

The Court has subject-matter jurisdiction over the claims
under 28 U.S.C. § 1331, through operation of the APA.
[W]e note that . . . the National Park Service organic
statute, 16 U.S.C. § 1 et seq. [does not] provide[]
directly for judicial review, and [does not] create[]
a private right of action. . . . However, even absent
a statutory cause of action, [plaintiff] may challenge
the agency’s authority under the APA. [Plaintiff] may
therefore challenge the National Park Service’s 9B
regulations under the APA, and this Court will have
federal question jurisdiction under 28 U.S.C. § 1331.
Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 112
F.3d

1283,

Plaintiffs

1286
may

(5th

Cir.

challenge

1997)
the

(citations

omitted).

superintendent’s

Thus,

decision

to

implement the backpacker registration fee under the APA, and
this Court will have jurisdiction under 28 U.S.C. § 1331.1
B. Motion for Discovery
Plaintiffs ask this Court to allow discovery outside of the
administrative
evidence,

other

record.
than

However,

bare

as

assertions

Plaintiffs
of

possible

provide

no

misconduct,

with which this Court can decide whether supplementation of the
record

is

necessary,

the

motion

for

discovery

beyond

the

administrative record must be denied.
1

Although not raised by either party, the Court notes that
Plaintiffs were not required to exhaust their administrative
remedies because neither the statutes nor regulations require
exhaustion before pursuing judicial review. See Conservation
Force v. Salazar, 919 F. Supp. 2d 85, 89 (D.D.C. 2013) (“Under
the APA, administrative exhaustion is required when it is
mandated by statute or agency rule.” (citing Darby v. Cisneros,
509 U.S. 137, 146 (1993))).
19

As a general matter, courts confine their review
to the administrative record, which includes all
materials compiled by the agency that were before the
agency at the time the decision was made. Several
reasons justify supplementation of the administrative
record, such as 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. Courts have suggested that in order
to justify supplementation, a plaintiff must make a
strong showing of bad faith.
Sierra

Club

v.

Slater,

120

F.3d

623,

628

(6th

Cir.

1997)

(internal quotation marks omitted) (citations omitted).
Plaintiffs simply have not put forth the evidence required
for

the

record.

Court

to

allow

Plaintiffs’

bald

discovery

beyond

assertions

and

the

administrative

questions

about

the

possibility of bad faith on the part of the NPS is simply not
enough

for

the

Court

to

allow

discovery

beyond

the

administrative record. See, e.g., [D.E. 26 at 3] (“How does the
Court

know

federal

what

has

administrative

been

deleted

record

from

maintained

and/or
by

added

the

to

the

government,

particularly in the time frame the issues arose?”). If, after
review of the administrative record, Plaintiffs have evidence
with which they can put forth a good faith claim to justify
supplementation, Plaintiffs may renew their motion.
IV. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED:

20

(1)

that Defendant’s Motion to Dismiss [D.E. 14] be, and

the same hereby is, GRANTED IN PART, in that Plaintiffs do not
have

standing

to

challenge

the

imposition

of

an

online

reservation system, and DENIED IN PART, in that Plaintiffs may
proceed

on

their

claims

challenging

the

imposition

of

the

backpacker permit camping fee and decision to grant a license;
(2)

that Plaintiff’s Motion for Discovery [D.E. 25] be,

and the same hereby is, DENIED WITHOUT PREJUDICE.
This the 24th day of March, 2014.

Sitting by designation:

21