The road cannot be justified as giving access to some spot of monumental significance. It will not lead to some grove of magnificent trees, or to some spot of geologic rarity, to name two examples. Nor does it extend to some destination not otherwise reachable by road. It meets no transportation need of any sort.

Three national forests, the Cherokee, Nantahala and Pisgah, nearby with hundreds of miles of roads, provide unlimited opportunities for scenic (recreational) driving to both tourists and nearby residents. Desecration of the Smokies and fragmentation of the largest mountain roadless east of the Rocky Mountains for this purpose cannot be justified under any pretense. It meets no transportation need of any sort.

The Supreme Court has already considered the terms of the 1943 Agreement and concluded that the federal government is not obligated to build a road. “All parties felt that the United States had neither a legal nor moral duty to build a new road of the superior type and quality needed.” United States v. Welch, 327 U.S. 546, 549-550 (1946). The parties to which the Court refers are the Tennessee Valley Authority, the State of North Carolina , Swain County , and the Department of Interior. The Supreme Court defined the interests of each of these parties in Welch. The State's interest in a highway existed only “so long as its citizens continued to live within the area.” Id. At 549. Swain County 's interest was similar, but also extended to the lost investment in bond issue that was still outstanding to pay for the existing road, which was “narrow, dangerous, and far below modern standards.” Id. The purpose of the original agreement was to ensure that the County was not stuck with the bill for a road which was under water. Now there is a road—NC 28, and compensation will address the years when the County was paying on bonds for the old road and did not yet have NC 28 to serve regional transportation needs.

NC has built NC 28 south of Fontana Lake that effectively replaced NC 228.

There are plenty of scenic roads that already convey one to each end of the proposed road's route.

Nor has NPS identified a need for the full build alternative as required by NPS policy. NPS has conceded at public hearings that the full build alternative would serve no regional transportation need. The Existing Conditions Report notes that there are “relatively low volumes of traffic” within the study area, even during the peak summer months. ECR at 2.3.1.