fourth watch is here this morning the think i'm pleased to point him out to you please the smoky mountains national park was created not teen twenty six it was fully constituted and open for business in n thirty four there are approximately one hundred undeveloped back country campsites that people use there's nothing there it's the ground there bare cables that we were you hang your packs to keep the bears can get your  bear cables were not put there by the national park they were put there with money raised from friends of the great smoky mountains in other words these back country camps that have no amenities you sleep on the ground we understood that from your br nothing was provided nothing was paid for the congress passed a law call floria sixteen u s c sixty eight zero one that gives the national park service the power to charge for using things and in that statute sixty three this title public participation gloria specifically say is the national park service is required to have public participation in any decisions to implement a new fee that sixty eight zero three additionally requires in a new fee area that  this record the court can conclude this is a new fear you well but new area is a statutory term tell me if i'm area so it's a statutory term it's not define but it's been interpreted and the interpretation is that you look at the area and the area is the park and if you've previously charged fees in the park then it's not a new fee area it's a new feat that's correct your honor and where is your authority to the contrary well first of all the court please that authority that you just described is an appendix and all of the pin big sale is the are the guidelines that the national park service adopted pursuant to florida on how you participate and so on the one hand in the wrong document is that what is that your point there there were lying on appendix sale here but over here they're saying they don't have to but let me as you question i'm sorry there's a new fee and there's a new fee area and there are two different things and there are certain requirements for both i mean they both have their requirements but there are additional requirements for a new fee area now the first question is is it a new fee area and you're saying that it is and what is that based on or how do you undermine their definition of new fee area this is the first time but this is the first phase passed under floria there's been no other fee passed under the authority of flurry and all these and every single other fee ever charged mount a gr smoky mountains national park has been for a pavilion for a campground a car camping where amenities are provided that is and then is my sole source of authority from our in that this is a new for the past ever before is it because it's the first one and after the statute was passed if your are ok so then it's a matter of statutory interpretation whether new means n there's ok so then you get to the public and gauge when sufficiency and they didn't do it i mean we the background information includes a resolution from knox county saying we oppose this swine county north carolina saying we oppose right but those all came after the fact there's only one that made a contemporaneous objection is that correct or not swing county had some had some commissioners from north carolina that made written objections yes your honor that's it ok and as far as you're correct they're not contemporaneous but it is evidence as background information it's proof that the national park service did not contact local officials but those people you have affidavits from individuals who nobody contacted me he's commissioner for blunt county is your own right but do you think you have to contact each commissioner separately or do you send notice to the commission or the commissions agent or whatever and say this is what we're doing and then you wait to see if they if they respond the a local officials and local there in a deliberative body they made they make decisions they hear things that's where you go you go to the body and the statute doesn't say if you send out the notice and people don't like it you have to go by what people want that's correct your honor however under these guidelines is say is i mean i'm paraphrasing i don't have the quote in front of me but can occur there and that the civic engagement can come back saying we don't like this and it's still civic engagement and they don't have to do what what the response is i mean this is you don't decide this thing by taking a poll is right i'm trying to use your arm but with the civic engagement if they done it the record would include their objections in this court would know that it just e mails not from the body itself not from swing county commission from two commissioners on on the commission if i remember correctly there's no that the swing county commission passed a resolution against it a year later nobody they didn't nobody the park service did not approach the swing county commission and say it can the guidelines say you have to provide information and give them an ability to respond they didn't do that the two commissioners found out about it and said don't do it and send it in but they they ignored they bob passes deliberative body of the county commission all around the park they didn't do it in the good first of all the guidelines say they do and second of all i can tandem assert respectfully that florida requires public participation sixty eight zero three is titled the public participation in the park service new good in well there was objection to this and there were reasons not to do it and they avo contacting the people that would object to it for the very reason we're standing here today they didn't want to interact heard you say sometimes or yes you are seven minutes of time thank you good morning may it please the court my name is robert stockman here on behalf of the national park service we ask this court to affirm the district's very thorough and well reasoned opinion before diving into the details of plaintiff's actual challenges i'd like to emphasize that in the parks view this fee has allowed us to provide much better services to the public in the back country this is only a four dollar fee but under the old system park service was repeatedly receiving complain orally and via electronic email about the difficulty of making reservations and also about lots of rules violations in the back country additionally the system they use for recording reservations was going to be outdated and had to be replaced and with this four dollar fee we've been able to create a twenty four seven online reservation system the system is highly convenient it provides people with maps of each campsite location as well as information about those sites informs them about the rules for camping in the back country and allows the park service to provide people with immediate updates about various hazards like bear activity inclement weather it adds a safety benefit it's also allowed the park service to increase trip planning assistance in the back country and t places first we know who this wayne county letters are in the record not the resolution that was passed later but the there's a letter from swing county and also a letter from one individual commissioner and those are administrative records sites six forty four which is page eighty ten thirteen and two seventy one page id six forty that the other ones so here what we have is the internal notes of the process and there's three sets of pages i don't identify an i five fifty four and six twelve and in those we find the notes from this internal process and you have who from one of one of them i'm quoting now from page i d five fifty four notified congressional delegation state and local officials park partners and  holders via briefing paper distribution and phone calls period one of seven county commissioners against back country feeds in general period so here can see commissioners are clearly encompassed within local officials and they say we call these people and we got back one negative result which is exactly what happened and then the next page you once again have them summarizing they say we sent out we distributed our briefing paper widely to state local elected representatives and government officials phone calls were made to local officials and once again it somewhere rises the reports and says we got one negative report and that was from swing county so this all shows that there was an effort to reach out to the counties out if they're right or deposed or should they be able to come back with that the whole county commission we have absolutely no record of any communication and therefore we did not vote we did not communicate because we were not i don't think they should be allowed to in this case because they didn't they didn't raise any objection a motion for summary judgment stage that they needed the ability to collect more affidavits from other people and i don't think you get to best for discovery of government officials so i guess those two categories you're asking about the first is can they deposed government officials and that is a very heavy burden you don't get to do that just because you assert there may be some irregularity the second question is could they have tried to affirmatively prove they weren't contacted by for example say the county suing notably none of the none of the plaintiffs here say they didn't know about this they all had notice because there was a lot of public notice and second the counties themselves aren't suing but let's say they went and they brought in affidavits from every single county commissioner and lots of evidence that might have that would present a very different question right that would be maybe maybe that would finally hit the clear and convincing evidence you might need to overcome the presumption of irregularity but all they have here is one person saying that he wasn't caught and then he says as far as he knows his fellow commissioners were called  didn't do any investigation and he didn't make any effort that we know of from what they submitted to actually find out if they were called and then we go on and he doesn't he also then says well the superintendent admitted to me that he didn't call me but of course there's a lot of people who work for the park service and a lot of the outreach was other people so even if we assume everything in book cultures affidavit is true and he remembers everything correctly it just doesn't come close to showing that the county wasn't contacted and that's what i mean i also would note the later resolutions they all have very similar language it looks like people went and asked people to move for this which is fine but one thing none of those resolutions claim is the counties want contacted and none of those resolutions claimed that the state government wasn't contacted so you have no evidence they for vi did no evidence that really shows they weren't contacted and here you have government records that show officials there and that they're you know three local officials well first the record itself says they contact local officials and then says one of seven county commissioners which suggests that they contacted county commissioners i mean i think that's the natural reading the other thing i'd say is that here the parks are set up and engaged in incredibly aggressive public outreach right day it was published in multiple newspapers they did multiple media interviews it was in the television it was on the radio they had to public open houses they accepted comments v e mail regular mail they did everything the statute requires in the statute only requires that they show publish notice in local newspapers and publication and then shall provide the public with opportunities to participate in the development and this record shows there was a huge outreach to try to get the public to participate and the undoubtably met their statutory obligations so that their conduct was an arbitrary increased even if a mistake were made which we don't think it was i mean we think the record shows they contacted the county commissioners but even if there weren't they met their statutory obligations and the internal guide on this you could very seriously and manuals are very helpful they seek to the government wants to do as good a job as a can we want to reach out to everyone possible but it's well established on the precedent that this kind of internal manual isn't binding on the agency and for exactly this reason which is that would really discourage agencies from developing detail manuals that set higher up goals then they have to actually meet under the law and that was what the supreme court said in schweiker that's what this court said in the magnet mag and man aga s and avail in and that's what other circuits to consider the park services internal guidelines and regulations have found that was in river runners in the nine and the wilderness society which is that these are binding on the agency in that sort of way so one it's not what we want the park service don't have a legal binding obligation to contact them on second the record shows they did and i just think it bears emphasis that the records filled with tons of contacts from lots of other people as well which seems to emerge here is just that there wasn't so much interest by the county officials at least not at the time i also think it's obvious that the public's participation did affect the fee the park selected the fee structure that had the most support of all the fee structures it was the four dollar fee structure and they also made adjustments they brecker clear evidence of the dissatisfaction yes that  prompted the park service to get interested in charging a fee that's in there and i think we document this at length in our brief i don't won't give you each site but one there's the dissatisfaction ahead of time but second reading through the comments that came in this is satisfaction is palpable people complaining about how hard it was to make a reservation some people never got to make reservations at all but also people chopping down woods in the forest because they're not following the rules people messing up campsites campsites being overcrowded and i think it's easy to think a reservation may not be a big deal to everyone but some people really like to know they will have a place they can sleep and they will have the right to say to someone else you know i i have a reservation statutory arguments that weren't really presented in the briefs one is whether this is in a men beefy it is and second whether this is a new recreation ferry and in our view they forfeited that issue by not developing it at all in their opening brief and their opening brief in the argument drops a footnote that says has the report for the f l area it shows that area is at least in many ways the equivalent of park i mean park would be listed in in lots of other types of ministry of units and then area so the the interpretation is reasonable and there's nothing in that that's the only consequence and i'd also note that even if we even even assuming we'd had to do so and i don't think we did i think there'd be a harmless error argument that's pretty resilient because the whole point of federal register notice is to provide notice and this was really well known there were a lot of efforts a lot of public outreach through the press through the media and online and you got a lot of reaction we got a lot of reaction this specially considering it's a four dollars fee i mean it's not it's you know it's time to force plan for example this is this is a relatively minor change so for all those reasons the agency met its obligations we think the fee is really important to doing a good job and we think it's been very successful and sixty four dollars that's perhaps a bit of well actually the fee looks rather modest in terms of what they're charging in other national parks i understand there's been no fee for the mo untain national park so people get a little excited when the possibility of a theorizes but folks in other parks have been paying those fees for ever and the parks are still being if if it does nothing but make the reservation system better everybody should be happy well first of all out afaik those other parks provide something with that fate and as far as the reservation system council went outside the record which is fine saying that it's a better service it doesn't work it's there was no there was not one it's not on the record i don't know how far i can go with this but there was not one back country camper last not in great smoky mountains national park other than in the shelters in a problem based on this reservation system but i don't want to go beyond the record because that's what the focus is i'm silent just about as far as your to the public to sail this this fee they lied cheated and stole what they did honestly your are they said that do rude previous reservation system didn't work well first of all you didn't have to get reservations for eighty percent of the sides twenty percent of the sites you had to make a reservation by phone call and it worked they said that the fee would cover the back country rangers to go monitor didn't the their authority had nothing to do with back country right they adopted a fee they would only find the reservation system they knew that they misrepresented to the public why they needed this feed on the front end he brought it patients it's a remand for compliance compliance with the law the law says that they have to let the public participate in the adoption of this fee and  it's it is prejudice larry air because they're keeping in there making people pay to go to sleep on the ground well this particular volume of the thing that i have is a lot of public participation i don't know how many couple hundred e mails and it looks like most of them are in opposition to the fe they're petitions with i would say hundreds of names on them that's public participation but it doesn't mean they have to do what the vote is by the people who are publicly participating they can ignore e mails they can ignore political people that are in charge of the of the local area they have to listen to this they have to they can listen to him but it doesn't mean they have to do what those people want him to do we don't know what they did that we don't know what the national park service would have done had they contacted the can't local county deliberate deliberative bodies who would oppose this they may not have done this if they to followed the public ok but participation requirements that this isn't summary judgment i mean we was dismissed on summary judgment there's some evidence that they didn't do it they're supposed to do and the superintendent of the great smoky mountains national park say that he did not contact block county officials he said burkholder that's in this record enough to remand it right there yes your honor i because there's been in view of the evidence the counter evidence of compliance there is no evidence in the record with regard to blount county right that's craig but he other miss one county for who knows what reason and you missed calling them because i understand it was on t v it was on the radio there are all these other efforts should we discount those every when you miss blount county you ought to they can they missed a swing can there's only seven counting ok only seven so within which the park lies and plus don't forget we've got a resolution from the speaker of the tennessee house of representatives saying they're against this they didn't contact state officials either block appendix ale says they're required to and plus th by this record they did not the speaker of the state house of representatives or in the record it's is one of those background documents that say we would have a pup i don't i don't want to i'm paraphrasing i don't have the resolution but they oppose the this backpacker tax or this my words your arms or they oppose this fee unless the park service