The impact of the road has not been considered in light of the requirements of the National Parks Organic Act. That law says the fundamental purpose of parks is to conserve their scenery, and natural and historic objects, and wild life, and to provide for their enjoyment in such manner as will leave them unimpaired for the enjoyment of future generations. The Redwood Amendments added to the purposes to emphasize that parks must be managed for the common benefit of all the people. Construction of this road across a portion of the park clearly violates the mandate of the law. Yet, there is not a hint in the study material so far assembled and shown to the public to indicate that building the north shore road can meet this legal requirement.

The impact of the road has not been considered in light of earlier National Park Service decisions and policy. The 1982 General Management Plan of the Park, after extensive public comment, made the decision not to build this road. All of the road alternatives and optional routes pass across land categorized in the General Management Plan as Natural Environment Class I subzone. The management prescription for this land is stated: “Visitor uses and park management practices are to be of a transient nature and non-motorized.” Nothing has changed since that 1982 decision. In addition to that, on October 16, 2001, before the issue became politicized, the park management issued an official position against the road, saying: “The NPS believes that adverse impacts to natural and cultural resources outweigh the benefits that might accrue if the road is constructed.” The EIS study has not revealed any fact or reason why these well considered decisions should be changed.

The study to this date has produced nothing to show how building a road can comply with the NPS promulgated Management Policies (MP2001).

The National Park Service Organic Act directs that Public lands must be preserved and managed for the benefit and inspiration of all the people of the United States . 16 U.S.C. la-i. The NPS must 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 manner and by such means as will leave them unimpaired for the enjoyment of future generations. 16 U.S.C.S. 1. Congress has reinforced these goals in a rider to the Redwood National Park Expansion Act: The promotion and regulation of the various areas of the National Park System [. . .] shall be consistent with and founded in the purpose established by [the Organic Act], to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress. 16 U.S.C. I 1a-1.

Courts have helped define what actions are and are not in the national interest. The discretion accorded the Secretary in discharging his duty of managing and protecting Park and Bureau of Land Management resources is not unlimited however. When Congress provided that the protection, management and administration of National Park resources shall not be exercised in derogation of the values and purposes for which these various areas have been established, it clearly set some limit on the Secretaries discretion in discharging his statutory duties. Thus, it is not within the Secretary's discretion to make management decisions based on the needs or wants of a few people. Park management should be driven by the needs of all Americans.

Actions that the Park Service takes that reflect the “protectionism” philosophy behind the creation of the parks will be upheld by courts. See Nat'l Rifle Ass'n v. Potter, 628 F. Supp. 903, 912 (D.D.C. 1985) (holding that regulations prohibiting hunting and trapping in national parks is consistent with section la-i of the Organic Act). Thus the Park Service can stand firm when decisions are made with the good of the Park in mind, but courts will not allow the Secretary to hide behind the broad language of the Act to the detriment of the Park System.

Over the years, in document after document, the Park Service has clearly stated a policy of opposition to construction of the North Shore Road. A National Park Service Briefing Statement regarding the road published October 16, 2001 clearly states National Park Service's opposition to construction of the road: The NPS believes that adverse impacts to natural and cultural resources outweigh the benefits that might accrue if the road is constructed. The Park is one of the most biodiverse places in North America and the section of the Park that would be impacted by the proposed road is one of the largest remaining roadless areas east of the Mississippi River. Through a Park resource inventory, 134 new species have been discovered within the Park, many more expected as the inventory is completed.

This position is forcefully restated in the National Park Service Major Management Issues/Decision published on April 9, 2002. That policy statement reads in pertinent part:

Since 1980, the NPS position has been to settle the claims arising from the 1943 agreement through a cash settlement to Swain County in lieu of the road.

The roadless and wilderness values and resources of this portion of the park are widely recognized nationally and internationally. These roadless and wilderness values have been recognized by the National Park Service, have been incorporated in wilderness recommendations to Congress, have been incorporated in the management plan, in the National Heritage nomination, in performance plans, and in numerous public declarations and promotions. It is abundantly clear that building a road in the north shore area would be an impairment and derogation of this invaluable resource and value.

Environmental concerns center on the strong probability that road construction would expose extremely acidic Anakeesta rock, which produces acids and heavy metals that are leached by rainfall into streams and kill aquatic life. While recent road construction has occurred on nearby Forest Service lands, concerns remain regarding road construction through Anakeesta formations. Road building, when it occurs, also causes a reduction in wildlife, especially bears, in a natural area. The road would cross-successive ridges in an area containing crumbling, faulted, and unstable rock which would require extensive cuts and fills. The proposed road would pass through one of the largest remaining roadless areas in the eastern United States. (emphasis added). The current material provided by NPS simply does not address this long-standing policy.

In the very first North Shore Road Newsletter in 2003, the Park Service acknowledged the long-standing policy and offered no reason for its abandonment now.

Between 1980 and 2000, the NPS adopted the policy not to resume the road's construction due to environmental concerns and the lack of funds. In 1982, GSMNP finalized its general management plan. The plan's preferred alternative, developed with strong public involvement, does not call for the road to be constructed. The position not to build the road remained in place through 2000. The current Administration has not taken a formal position on this issue. North Shore Road : Environmental Impact Statement Newsletter, Great Smoky Mountains National Park , National Park Service Newsletter 1 (Feb. 2003).

These recent statements reflect the conclusions resulting in the abandonment of the original attempt to build the Road. “The committee is of the opinion that continuation of such damage to natural park values if indefensible from either the standpoint of conservation or visitor use.” Report of the Technical Committee for the Completion of the Bryson-Fontana Road Construction Great Smoky Mountains, Exhibit A.

How would the Park Service defend a sudden change in policy to favor road construction with over 50 years of statements, studies and evidence all to the contrary?

The responsibility of the NPS is clearly articulated in the Organic Act of 1916. It requires that the NPS promote and regulate the use of the national parks by such means and measures as conform to the fundamental purpose of the parks. The purpose of the national parks is to conserve the scenery and the natural and historic objects and the wildlife therein. The DOT is directed to provide for the enjoyment of the resources in the parks in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

Congress through the Redwood Amendments reaffirmed, declared, and directed that the promotion and regulation of the various areas of the national park system shall be consistent with and founded on the purpose established by the Organic Act to the common benefit of all the people of the United States. Through the Organic Act, the NPS is prohibited from exercising its authority in derogation of the values and purposes for which the national parks have been established.

According to the 1982 General Management Plan (GMP) of the Great Smoky Mountains National Park, the legislation that authorized the establishment of the Park in 1926 states that the Park was being set apart for the benefit and enjoyment of the people and that administration, protection, and development were to be subject to the Organic Act of 1916. In this way, GSMNP came under the directive of the Organic Act. Thus the primary purpose for the establishment of GSMNP is to conserve the scenic, natural and cultural resources within the Park and to provide for the enjoyment of those resources in such manner and by such means as will leave them unimpaired for the enjoyment of future generation. Under any reasonable interpretation, construction of a road through the largest, unfragmented tract of mountain terrain in the eastern United States will significantly impair the many important resources associated with that tract and the Park as a whole. Thus, the build or partial build alternatives appear to violate the dictates of the both the Organic Act and the specific legislation that established GSMNP.

The Preliminary Alternatives Report indicates in Table 2 that of the build alternatives are consistent with the General Management Plan, legislative and executive mandates and/or NPS policies.

Also lacking is an analysis of NPS' own Management Policies 2001 (MP 2001) regarding road construction in national parks. Section 9.2 of MP 2001 addresses transportation systems in units of the park system. Many of the requirements in the policy are highlighted by the NPS Major Management Issues/Decision quoted above. For example, NPS has stated its concern about impairment of wildlife from road construction. Section 9.2 states: The Service will also advocate corridor crossings for terrestrial and aquatic wildlife, and other accommodations to promote biodiversity, and to avoid or mitigate (1) harm to individual animals, (2) the fragmentation of plant and animal habitats, and (3) the disruption of natural systems.

This resource or value is necessary to fulfill specific purposes identified in the establishing legislation or proclamation of the park. According to the 1982 General Management Plan (GMP) of the Great Smoky Mountains National Park (GSMITP), the legislation that authorized the establishment of the Park in 1926 states that the Park was being set apart for the benefit and enjoyment of the people and that administration, protection, and development were to be subject to the Organic Act of 1916. In this way, GSMITP came under the directive of the Organic Act. Thus the primary purpose for the establishment of GSMNP is to conserve the scenic, natural and cultural resources within the Park and to provide for the enjoyment of those resources in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

Under any reasonable interpretation, the park's unique and valuable roadless and wilderness qualities constitute scenic, natural and cultural resources. Construction of a road through the largest, roadless tract of mountain terrain in the eastern United States will significantly impair the many important resources associated with that tract and the Park as a whole. The build or partial build alternatives would clearly violate the dictates of the both the Organic Act and the NPS Policies designed to interpret the Act.

The purpose of the National Park Service is to conserve the scenery, natural and historic objects, and the plants and wildlife of these unique and beautiful areas of this country, so that they are not ravaged by chainsaws and roads. All of these things should be left unimpaired for the enjoyment of future generations.

The law that created the National Park Service set forth the fundamental purpose of national parks. This purpose is to conserve scenery, natural and historic objects, and wildlife and to provide for their enjoyment in such a manner that leaves them unimpaired for future enjoyment of generations to come. None of the road construction alternatives meet this standard. By definition, a road imp airs the integrity of the park permanently. These alternatives will destroy the right of future generations to enjoy an unimpaired natural environment. Cultural resources in the park will also be at risk from construction of any of the road alternatives. Many of the archeological sites are currently kept undisclosed to prevent looting and vandalism. However, a new road will open the known cemeteries to vandalism and expose the archeological sites to discovery and looting.

Building the Northern Shore Corridor alternative would certainly not satisfy the Park Services' mandate to protect the cultural and natural resources of the GSMNP. Even if the road is built in the most environmentally sensitive way possible, it would have a negative impact on the plants and animals living there. Cars produce air pollution, a serious and growing problem in this region. And cars produce non-point source water pollution, which would have a negative impact on the water quality of Fontana Lake and the numerous streams which would be impacted by the road. A road would provide easy access for poaching of plant and animal species. It would also provide easy access for those who would plunder or vandalize cultural resources. It would create a barrier to the free movement of animals in the Park resulting in increased roadkill. And roadways create corridors for the dispersal of invasive exotic species, a serious problem in this region. What of the costs to the local community?

My wife and I live in Durham, NC, and prior to this lived in NJ. Regardless, we absolutely love the Great Smoky Mountains NP, and are frequent visitors. Our point is that this Park belongs to all Americans, and its management should never be dictated or even significantly influenced by one county (Swain).

Some places are too wild and special for road building. Great Smoky Mountains National Park belongs to all Americans, and the people who live nearby in Swain County don't want this new road. Please cancel the plan to build the North Shore Road .

I was born and raised in North Carolina. The Great Smokies are a local and national treasure that need to be permanently protected not developed! This is one of the most ridiculous, disastrous and ecologically and culturally dangerous things I've seen in a long time!

What are you doing? I thought the Forest Service and Park Service were here to protect this land. More and more, I hear you are giving drilling rights, road-way rights, and building rights in areas you should be protecting.

Perform your entrusted duties faithfully, and serve the people.

The General Management Plan identifies the core significance of the Park as turning on “the extraordinary diversity and abundance of its plants and animals, the beauty of its mountain terrain and waterways, the quality of its remnants of pioneer culture, and the sanctuary it affords those resources and for its modern users.” GMP at 5. As defined by the General Management Plan, the fundamental purpose of the Park is to “preserve these exceptionally diverse resources and to provide for public benefit from and enjoyment of them in ways that will leave the resources — and the dynamic natural processes of which they are components — essentially unaltered.” GMP at 5 (emphasis added). Accordingly, a core management objective for the Park is to keep the “significant and diverse natural resources and ecosystems” found in the Park “as free as possible from the adverse influences of human intrusion.” GMP at 53. As described below, the full build and partial build to Bushnell alternatives would cause significant adverse alteration to each of these core resources including (1) threats to rare and unique species, (2) degradation of scenic vistas and water quality, and (3) taking of archeological and historical resources. The cumulative effect of these impacts to individual resources constitutes a prohibited impairment of the core nature and significance of the Park. In addition, the full build alternative would significantly impair the backcountry and wilderness resource values that are fundamental to the Park's character and purpose.

Even if the adverse impacts associated with the full build and partial build to Bushnell alternatives fell short of the impairment standard, the full build and partial build to Bushnell alternatives would be inconsistent with NPS' legislative mandate under the Organic Act and the Redwood Amendment which impose an affirmative duty to manage the Park “to conserve the scenery and the natural and historic objects and the wild life therein,” 16 U.S.C. 1, and to administer the Park “in light of the high public value and integrity of the National Park System.” 16 U.S.C. 1a-1. NPS has construed these statutory directives to mean that “when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant.” MP at 1.4.3. NPS has already concluded that the full build and partial build to Bushnell alternatives do not satisfy these standards. PAR at 13. NPS has identified no park or NPS value served by construction of the full build alternative that would counterbalance the adverse impacts to park resources that would result from that alternative. NPS policy provides that “major actions or commitments aimed at changing resource conditions or visitor use in a park, and major new development or rehabilitation, will be consistent with an approved general management plan and will be linked to a long-term goal in a current strategic plan.” Directors Order 2 at 3.3.3.4. Although NPS has noted that the full build alternative “may generate moderate increases in the number of visitors to the study area,” PAR at 21, NPS has not identified any goal or value within the management plan or strategic plan for the GSMNP that would be served by that outcome. Indeed, the 2005-2008 strategic plan for the GSMNP notes that the GSMNP already experiences heavy visitation.

NPS management policy requires NPS to “avoid the construction of buildings, roads, and other development that will cause unacceptable impacts on park resources and values” and to avoid the “costs of unnecessary or ineffective facilities.” MP at 9.1. Accordingly, NPS policy prohibits the service from developing a facility within a park “until a determination has been made that the facility is necessary and appropriate.” MP at 9.1 (emphasis added). In making such a determination, “the protection of each park's resources and values will be the primary consideration.” MP at 9.1.1. To that end, the proposed facility must “not cause unacceptable adverse impacts to natural and cultural resources” and be “fully consistent with the park's general management plan.” MP at 9.2. The General Management Plan for the GSMNP, in turn, states as a management objective that the NPS will “ensure that all developments for park administration, visitor use, and concessionaire operations are the minimum necessary for safe, efficient park administration and essential visitor services.” GMP at 55 (emphasis added). Because the full build alternative is not necessary or appropriate to serve any Park value or objective identified by NPS, does not address any transportation need, will cause unacceptable adverse impacts to park resources, and is inconsistent with the General Management Plan for the Park, selection of the full build alternative is prohibited by NPS policy.

For these reasons, NPS has repeatedly concluded that construction of the North Shore Road cannot be justified. NPS' position since 1980 has been “to settle the claims arising from the 1943 agreement through a cash settlement to Swain County in lieu of the road.” NPS Major Management Issues/Decision published on April 9, 2002. The General Management Plan for the Park declined to include the North Shore Road on its list of long-term developments, proposing construction of a day use facility at the tunnel terminus instead. GMP at 42. Similarly, an NPS Briefing Statement regarding the road published October 16, 2001, clearly states NPS' opposition to construction of the road:

The NPS believes that adverse impacts to natural and cultural resources outweigh the benefits that might accrue if the road is constructed. The Park is one of the most bio-diverse places in North America and the section of the Park that would be impacted by the proposed road is one of the largest remaining roadless areas east of the Mississippi River.

Reversal of this position in the absence of significant new evidence undermining the basis for the conclusion reached would be arbitrary. NPS has identified no new information suggesting that the cost of the road or the adverse impacts to park resources that it would cause are less than previously believed. In fact, the more detailed studies completed as part of this environmental review process have only revealed the full scope and magnitude of that cost and of those impacts. Thus, NPS must adhere to its longstanding position against construction of the North Shore Road and select the Monetary Settlement alternative as its preferred alternative because construction of the North Shore Corridor alternative would violate the prohibition against impairment of park resources, NPS' affirmative duty to conserve park resources, and NPS policy.

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