Revising Hoffman's Revisions: Let the Haggling Begin
There is an incredible amount of news coming out of the national parks these days, and it doesn't all revolve around the Bush administration and Paul Hoffman and Congressman Richard Pombo.
Unfortunately, items such as a proposed road in Great Smoky Mountains National Park, problems with the Going-to-the-Sun Road in Glacier National Park, higher entrance fees in some Western parks, and arguments by NRA fans that they should be able to pack in the parks will have to take a backseat while I continue to follow the odyssey of how the National Park Service's Management Policies will be rewritten.
Listen closely enough and you just might be able to hear the gnashing of teeth reverberating out of Denver. That's because the "Career Park Professionals" are going back and forth this week over the revisions that Hoffman, an assistant secretary in the Interior Department, made to the National Park Service's Management Policies.
I understand things are so bad that the career professionals are essentially "negotiating against themselves" in an effort to tone down Hoffman's revisions. What do I mean by that? Well, they're basically giving away a piece here and a piece there of the policies with hopes of minimizing the overall damage.
According to a copy of the career professionals' negotiating points that I've seen, they would be willing to insert more "flexibility" into the Management Policies. "Stress policies as important guidelines," reads the plan of attack, "but not inflexible."
And they would be willing to support "greater accommodation/acceptance of tourism and visitor enjoyment." And then there's this curious provision: "Increased recognition of, and respect for, non-traditional user groups."
Unfortunately, the document doesn't have a glossary that defines just exactly what is a "non-traditional user group." So you'll just have to use your imagination.
What, you might wonder, is going on with the career professionals?
"They are trying to anticipate how many changes they would have to make to satisfy Hoffman and get him to back off on his draft," says Don Barry, the executive vice president of The Wilderness Society. "They start offering up stuff you shouldn't be offering up in an attempt to get him to back off. Psychologically, he's getting them to do the dirty work."
What Paul Wants
Hoffman's vision, as has been widely reported, is to open up the national parks to more motorized recreational activities, such as more snowmobiling and ATVs. He also has subtly dropped some words here, and inserted others there, to lower the park service's standard of what constitutes an "impact" on a park and how to define an "impairment."
What's interesting about his efforts, is that on first glance you wouldn't think they could withstand a court challenge. That's because the dictates of the National Park Service Organic Act of 1916 long have been interpreted, by agency officials and the courts, to place preservation of park resources above public recreation.
For instance, back in 1998 when the Southern Utah Wilderness Alliance sued the National Park Service over off-road-vehicle use of the Salt Creek drainage in Canyonlands National Park, the courts held that under the Organic Act the park service had to place protection of resources above recreation. In another, more recent, ruling involving Yosemite National Park, the courts also ruled in favor of preservation over recreation.
So, if the Bush administration's Interior Department succeeded in implementing Hoffman's revisions, you would think that the provisions placing recreational use above preservation in national parks wouldn't stand a chance in court.
"That would appear to be the case," says Robert Keiter, the Wallace Stegner Professor of Law and director of the Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah's S.J. Quinney College of Law.
Courts, says Keiter, in general have interpreted the Organic Act to require the park service to preserve landscapes "unimpaired" for the enjoyment of future generations.
"Basically, the courts have said that if there is an obvious conflict between use and conservation, that the agency should err on the side of preservation," says Keiter.
Ahh, But What If You Can Keep the Courts Out of It?
When you start talking about law, you usually have to factor in lawyers, and you can bet plenty will be involved if the Hoffman revision stands. What court arguments likely would focus on, according to Keiter, is whether there is a clear conflict in a revised set of Management Policies and the Organic Act.
That said, there are concerns that among Hoffman's revisions is a poison pill that, if not tossed out, could make the Management Policies immune to third-party legal challenges. And that means the general public or park advocacy groups would be left without a voice in contesting the revised policy document.
Along those lines, the career professionals, in their list of negotiating points, indicate that they would agree to language that "our policies are not third-party enforceable."
Over in The Wilderness Society's Washington offices, Barry is keenly focused on what is transpiring. You see, during the Clinton administration Barry worked in the Interior Department as assistant secretary for fish, wildlife and parks, the position now held by Craig Manson.
And from where he sits, Barry says Hoffman, through his rewrite of the Management Policies, "is making it very clear that they don't want the policies to be enforceable. They don't want them to be accountable to the public...they are trying once and for all to close off the courthouse doors to the general public."
Of course, those in the environmental advocacy business wouldn't sit idly by and let that happen. Barry says challenges would be mounted on two fronts: one, arguing that the Management Policies as revised are inconsistent with the park service's Organic Act, and; two on a specific on-the-ground action, such as snowmobiling in Yellowstone.
Would Pombo Dare To Rewrite the NPS Organic Act?
While all the attention currently is focused on what will happen to the Hoffman draft, there continue to be rumors that Congressman Richard Pombo, the brash California Republican who has proposed selling off national park properties, plans to call for hearings that would look into a rewrite of the Organic Act itself to make recreation the No. 1 mandate of the National Park Service, with protection and preservation of resources a distant second.
Can he succeed? Professor Keiter doesn't think so.
"Politically, I think he'd (Pombo) be nuts to do that," the professor told me. "That's the last thing the Republican Party needs, to be perceived as going after the national parks."