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How Did The National Park Service Err So Badly On the Yellowstone Winter-Use Plan?

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Why is it so difficult to protect Yellowstone in the winter?

How did the National Park Service err so badly in developing a winter-use plan for Yellowstone and Grand Teton national parks? According to a federal judge who blocked the plan from taking effect, the agency overlooked its own science and its own mission.

"According to NPS's own data," writes U.S. District Judge Emmet Sullivan, "the (winter-use plan) will increase air pollution, exceed the use levels recommended by NPS biologists to protect wildlife, and cause major adverse impacts to the natural soundscape in Yellowstone. Despite this, NPS found that the plan's impacts are wholly 'acceptable,' and utterly fails to explain this incongruous conclusion."

In his damning, 63-page ruling, handed down September 15, the judge picked apart, one by one, the National Park Service's rationales for determining that Yellowstone's resources -- the wildlife, air, water, soundscape, even employees and visitors -- could endure upwards of 540 snowmobiles and 83 snowcoaches a day during the winter months.

Not only did the agency botch its responsibilities under the National Environmental Policy Act, according to Judge Sullivan, but it failed to follow the federal government's Administrative Policies Act, ignored its own National Park Service Organic Act, and couldn't "articulate why the plan's 'major adverse impacts' are 'necessary and appropriate to fulfill the purposes of the park.'"

Indeed, the National Park Service -- at least when it comes to snowmobiling in Yellowstone and Grand Teton -- seems to have lost its way in the woods in deciding that playing in the parks is more important than conserving the parks and their resources for the enjoyment of future generations.

"This is not blanket permission to have fun in the parks in any way the NPS sees fit," the judge wrote in referring to the Organic Act.

This is not to say the a national park visit shouldn't involve fun. Rather, it's reinforcement that the National Park System harbors some wonderfully magical places that are special on their own merits, that enjoyment should flow directly from their resources, that they are not simply playgrounds open to any and all forms of recreation.

"As Plaintiffs articulated at the hearing, the 'enjoyment' referenced in the Organic Act is not enjoyment for its own sake, or even enjoyment of the parks generally, but rather the enjoyment of 'the scenery and natural and historic objects and the wild life' in the parks in a manner that will allow future generations to enjoy them as well," noted Judge Sullivan. "Accordingly, while NPS has the discretion to balance the 'sometimes conflicting policies of resource conservation and visitor enjoyment in determining what activities should be permitted or prohibited, that discretion is bounded by the terms of the Organic Act itself.

"NPS cannot circumvent this limitation through conclusory declarations that certain adverse impacts are acceptable, without explaining why those impacts are necessary and appropriate to fulfill the purposes of the park."

Indeed, it seems the National Park Service ignored the very legislation that established Yellowstone when it reached its winter-use decision.

"The Yellowstone Enabling Act, the federal statute governing the agency's administration of Yellowstone, requires that the NPS preserve 'from injury or spoliation' the 'wonders' of the park and insure 'their retention in their natural condition,'" the judge noted.

So what happened? How did the National Park Service get so off-track? Why, when National Park Service Director Mary Bomar told the Traveler last fall that sound science would guide the agency's decisions and that "we make good decisions based on good information," did the winter-use plan fail to hold up under judicial scrutiny?

The answer isn't so mysterious or elusive. Political agendas, short and simple, were driving the process at Yellowstone, not science. That's not an earthshaking revelation. Indeed, Director Bomar's predecessor, Fran Mainella, told us last fall that Interior Department officials were calling the shots when it came to snowmobiling in Yellowstone. And politics again were cited when Yellowstone Superintendent Suzanne Lewis bowed to the wishes of the state of Wyoming and Cody, Wyoming, to agree to keep the park's East Entrance open to snowmobiling no matter the cost.

No, what's more disturbing is that these trends persist, that top Park Service managers won't refuse to let science be trampled by politics, that the general public's wishes are being trumped by special interests. The process of managing the national parks might not be irretrievably broken, but it certainly seems to be jeopardizing the health and well-being of the National Park System.

"They either went willingly or unwillingly," Tim Stevens, the Yellowstone program manager for the National Parks Conservation Association, replied when asked how the National Park Service in general and Yellowstone officials specifically arrived at the wrong solution to managing winter use. "Given the massive, proven intervention shown on Sylvan Pass, I think you can more than speculate about which it was."

At the Coalition of National Park Service Retirees, Bill Wade adds that the kowtowing to special interests is not a new phenomenon.

"We have been extremely disappointed that the Yellowstone superintendent, the Intermountain Regional Director (Mike Snyder) and the NPS directors (Ms. Bomar and Ms. Mainella) have failed to exercise the required levels of principled leadership in defending the resources of the park against the efforts by special interests and the political leadership of the Department of the Interior and above," says Mr. Wade, who chairs the group's executive council.

"There were several opportunities during the past seven years to do exactly that – by standing up, selecting the right alternative in the EISs or, in the face of the political pressure saying, 'this proposed decision is inconsistent with the law, with the science, with the NPS policies and with what the American people want Yellowstone to be,'" he adds. "They failed at every turn to do that, and by doing so, encouraged a continuation of the inconsistencies and perpetuated a huge expenditure of scarce dollars to keep 'studying' the issue, in hopes of finally getting a solution that the political leadership and special interests wanted.

"In our judgment, that is unforgivable. There is no right way to do the wrong thing."

Is the problem confined to the Yellowstone snowmobiling decision? If the National Park Service thought it could ignore its own science and manipulate the Environmental Impact Statement process in Yellowstone -- not just the world's first national park but arguably its most iconic -- what's driving decision-making in the other 390 units of the National Park System?

"Rather than protect Yellowstone, they decided to justify harming it. Judge Sullivan picked up on this at the oral argument and stated it in the decision," points out Kristen Brengel, a director at The Wilderness Society who long has followed not just the Yellowstone snowmobile issue but also the use of personal watercraft and off-road vehicles in national park units.

"The Park Service prioritized snowmobiling over protecting the Park’s visitors, employees, wildlife, and air," adds Ms. Brengel. "One of the key areas the DOJ attorneys focused on was the 'unacceptable impacts' section of the NPS Management Policies. This shows the true intent of that standard that was added to the Management Policies (in 2006). It was a way to justify negative impacts to parks-- not uphold the conservation mission of the agency.

"During the debate of the Management Policies, the Park Service kept telling me that it was a way to improve management, including to allow adaptive management. Now, it is clear, that it was a political move and should be taken out of the policies in future iterations."

Removing politics from the process won't be easy. In fact, it probably can't be completely accomplished. But steps must be taken to ensure a process that not only is more fair, but which, in the words of Interior Secretary Dirk Kempthorne and Director Bomar, is driven by sound stewardship and science.

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Removing politics from the process won't be easy. In fact, it probably can't be completely accomplished.

It can be completely accomplished, but it requires a radical rethinking of management structure and philosophy. But as long as interest groups (of every stripe--including CNPSR) pressure bureaucrats and politicians and achieve their desired results, you're right; it probably won't happen.


The most commonly-cited clause from the National Park Service Organic Act of 1916 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 manner and by such means as will leave them unimpaired for the enjoyment of future generations."

Less commonly cited passages include:

"[The Secretary of the Interior] may also, upon terms and conditions to be fixed by him, sell or dispose of timber in those cases where in his judgment the cutting of such timber is required in order to control the attacks of insects or diseases or otherwise conserve the scenery or the natural or historic objects in any such park, monument, or reservation."

Thus, the Organic Act provides for the logging of Parks, under certain conditions. As Sec. of Interior:

"He may also provide in his discretion for the destruction of such animals and of such plant life as may be detrimental to the use of any of said parks, monuments, or reservations." (emph. added)

Which suggests that Parks were intended to be used. And:

"He may also grant privileges, leases, and permits for the use of land for the accommodation of visitors in the various parks...

... may, under such rules and regulations and on such terms as he may prescribe, grant the privilege to graze live stock within any national park [except Yellowstone]...

... may grant said privileges, leases, and permits and enter into contracts relating to the same with responsible persons, firms, or corporations without advertising and without securing competitive bids...

The usual impression we receive of the Organic Act, that it conveys a single message, clearly, forcefully & unambiguously, is not well-supported by the rest of the document.

If the remainder of the Act (beyond the popular quote used to support contemporary environmental positions) is still part of the law, then indeed the Parks have considerable legal latitude - under the Organic Act per se - to take a wide array of decisions which environmentalists will decry.

Citing chapter & verse under the Organic Act 1916 looks risky, once it is actually read.

To protest that all those 'stupid' things the Act says are just so much old-fashioned noise, and that the only part that really matters is the cherry-picked excerpt that happens to match our viewpoint, well ...


Yes, it is dangerous to quote the law. What drives people nuts with snowmobiles is not the law but the incoherence of the policy and the process that brings it about. That leads groups to pursue various strategies to deal with the incoherence. One common strategy is to use the courts, and courts presumably base their decisions in law. Unfortunately, we often forget in these legal discussions that the impetus for our action is rarely a love for the law but rather a love for what makes sense to us. But, as those discussions are even more treacherous, people often stick with what's safest for them.

I've tried to in my own thinking, writing, and advocacy go to the more dangerous places. In the case of national parks - particularly Yellowstone National Park - I have questioned the rationale for its own existence (see this series of essays), not because I don't believe that the national parks aren't places worth adoring but because we need to justify our beliefs on the firmest grounds possible. These places are too important for us to be lazy, for us not to pursue truth and justice with the utmost seriousness.

While I am glad at a practical level if we are rid of snowmobiles - not only in the parks but in the forests as well and every place except where the poor depend upon them for survival - I am wary of the reliance on the strategy of legal parsing in order to achieve the ends of environmentalists. We have to understand that use of the courts should be merely seen as a tactic not a strategy in the overall fight and understand that there is something disingenuous about using the law as a means of protecting places that have no reason to be chained by any national or state law. I'm afraid that the success of the tactic of using the courts has convinced some of the ultimate good of it. But, when we look carefully at what gave rise to the law, what the law actually says, the incoherence and ambiguity in the law, and the worldview entailed by the law (in general, or in particular looking at the Organic Act or Yellowstone's Act of Dedication), I think we are left lacking. Our motivation has to come from somewhere else. It had better be for justice, truth, and love; that's why we fight. That's why we use the law; it's best that we not let the law use us.

Ironically, that suggests I'm all for cherry picking so long as we are honest about why we are doing it. That may rip people of the motivation of cherry picking; if so, so be it. At least there are a lot of other ways to fight against injustice, but all of them are messy at some level (this is a dirty earth).

Jim Macdonald
The Magic of Yellowstone
Yellowstone Newspaper
Jim's Eclectic World


We have to understand that use of the courts should be merely seen as a tactic not a strategy in the overall fight and understand that there is something disingenuous about using the law as a means of protecting places that have no reason to be chained by any national or state law. I'm afraid that the success of the tactic of using the courts has convinced some of the ultimate good of it.

It is a correct statement that use of the courts has become a strategy over a tactic, if not a mantra. Our litigation-happy society now sees this as the norm. "I don't like what you're doing, and you won't change it for me, so I'll sue to make it happen".

This cannot long stand. A tipping point will eventually be reached, and the ability to sue so readily may be taken away. There is now enough national attention to these issues to bring about such change, but I would not look for anything substantial until after the election/New Year.

It is also true that the parks are made to be used, by humans, for their own enjoyment, while ensuring that the indeginous wildlife is not harmed. While I advocate conservation alongside access, I find it totally unpalatable to think that many wish for the parks to become vast widlife refuges, with humankind completely excluded. That would be a travesty.


Jim Macdonald says:

"Ironically, that suggests I'm all for cherry picking so long as we are honest about why we are doing it."

Yes, you're right - 'discretion' is part of both law enforcement by cops, and law interpretation by courts, and that word is just another way of saying 'cherry picking'. The Organic Act is liberally peppered with the word 'discretion'.

So, true enough, it's not that we aren't supposed to ... use our judgement to fit the law the situation and vice versa (we are), but that we shouldn't delude ourselves or deceive others, that there isn't more latitude & flexibility in a statute such as the Organic Act than our own preferred passage. Obviously, there is plenty of latitude in the Act for decisions & actions that run counter to 'modern environmentalism' - some of them very dramatic.

But Jim also stumbles, saying:

"While I am glad at a practical level if we are rid of snowmobiles - not only in the parks but in the forests as well and every place except where the poor depend upon them for survival."

  • Snowmobiles are enjoying an explosive period of technical improvement & innovation, and market enthusiasm. Everywhere there is decent snow, these machines are growing in popularity. (Clean, quiet (fuel-injected, turbocharged, computer-managed) 4-strokes are quickly setting new standards, and attracting new market-sectors.)
  • The snowmobile industry is primarily driven by purely recreational values. It is the entertainment-motive that pays the bills for developing new & better types of machines. And the new machines are considerably more expensive. From the wealthy rancher who runs his fences and moves his cattle to open pastures with a snowmobile, to the impoverished subsistence northerner who run his muskrat trap line with a snowmobile, and everyone in between, utility-users make-do with equipment design choices and model-selections created for the entertainment market. Even overtly utility-oriented models such as the outstanding Ski-Doo Skandic line are adaptations of equipment developed with recreationists in mind.
  • No, we are anything but rid of snowmobiles, and it is not some feeble & tattered underdog who is served by them, but the Bull of the modern economy, the almighty discretionary-income consumer to owns & runs the snowmobile industry.

Finally, Jim plea-bargains:

"What drives people nuts with snowmobiles is not the law but the incoherence of the policy and the process that brings it about."

Actually, I think what drives people nuts about snowmobiles is snowmobiles, pure & simple.

People hate them, period. Neither the law, nor the policy & process mess is what gets people's goat. It's the infernal contraption itself. It's rhetorically the muddy boots, clomping into their church. "You should wear slippers, like me! And mince thusly down the aisle, like me! You should be in a state of rapture, like me!"

That's what it really is: one group insisting their own way of looking a things is the only way.

Ain't gonna happen. No reason why it should. People 'of a certain perspective' - environmentalism - have [s]convinced[/s] deluded themselves that only one special mental posture is 'right' for those entering the National Parks, and that all other are offenders.

The snowmobile defies the 'sanctity' of their 'church', and that's what 'drives them nuts'.

Problem is, the unwashed are too numerous, have too much money, and way too many rights under the law.

I entirely agree with dapster:

"This cannot long stand. A tipping point will eventually be reached, and the ability to sue so readily may be taken away. There is now enough national attention to these issues to bring about such change, but I would not look for anything substantial until after the election/New Year."

Obviously, right at half the citizens of the USA would like to see President Palin and her ol' side-kick calling the shots.


@dapster: sorry, but that is nonsense. To succeed in court, the other side must have violated the law. If you use a lawsuit just as a weapon, you need very deep pockets, because if your claim is unfounded, you will lose the lawsuit and lots of money. Environmental organizations are not known for suing lightly. But if a government agency is acting in violation of the law, a lawsuit might be necessary to stop them.


Ted says:

People 'of a certain perspective' - environmentalism - have deluded themselves that only one special mental posture is 'right' for those entering the National Parks, and that all other are offenders.

I think that's an awful broad brush you're using, Ted. I consider myself an environmentalist, but also would like to think I'm open-minded enough to consider each case on its own merits, whether it's snowmobiling, Jet Skiing, or what not.

That said, these machines have their places, and I don't think one is delusional, as you put it, to believe they're inappropriate in many national park settings. Is one delusional to oppose snowmobiles in the parks, but willing to endorse snowcoaches? Is one delusional because they think park resources should be protected from the heavy erosional forces of off-road vehicles, such as those witnessed in Big Cypress?

As for the case at hand, I would have a hard time arguing against snowmobile use in Yellowstone if the park only allowed electric machines. The technology exists, but for some reason is not being encouraged, either by the NPS or the snowmobile industry.


Kurt,

I swung my brush at "environmentalism", not at an environmentalist. Please check the spelling. Sure, there are plenty of us around who know how to squirm out of any stereotype. But there an awful lot of folks who fall in with the herd mentality, too ... and they are indeed assembled into herds that swing institutional and highly politicized brushes. This is the problem I was pointing at.

You illustrate the problem I'm speaking of in a recent & closely related post, "Federal Judge Blocks Recreational Snowmobiling in Yellowstone National Park", saying:

"The winter-use plan was challenged by the Greater Yellowstone Coalition, the National Parks Conservation Association, the Sierra Club, The Wilderness Society, the Winter Wildlands Alliance, and the Natural Resources Defense Council."

This is a who's-who of 'My way or the highway' environmentalism organizations. These are the folks who don't care that the Organic Act contains plenty of "discretion" to nuance the single message they want to be heard.

You may well be an independent-thinking "environmentalist", Kurt, but the "environmentalism" that I criticize is indeed attempting to assert a single 'correct' mental posture ... while ignoring legal (Act of Congress) language that disputes their claim to control of talking-points.

I made clear in my comment that the "delusion" I was referring to is the idea that a single mental posture or attitude is the only appropriate way to view & interact with our Park resources. I stand by that as the core problem - and weakness - of environmentalism.
[hr]
For sure, Kurt, electric vehicles are very interesting, and I'd say, "promising"**. I had visited this reference you provide on the topic, only days ago. At the present time, these machines are woefully underpowered, and will fail to provide satisfactory range. Of course, when (useful) electric snowmobiles cause zero pollution or auditory disturbance, there will still be those (individuals & institutions) who oppose them ... eh? ;-)

** My specialty in the nuke plants was 'electrical operator', and my specialty as an electrician was the submarine battery. I have followed electric vehicle technology with acute 'professional' & personal interest for many years.


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