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Centennial Series | How Strong Is A Conservation Mandate In National Park Service Legislation?*

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Editor's note: As part of National Parks Traveler's Centennial Series, a collection of papers and essays commemorating the National Park Service Centennial, Dr. John Lemons, Emeritus Professor of Biology and Environmental Science at the Department of Environmental Studies University of New England, takes a look at the "Meaning of National Park Service Legislation."

The nation’s first national park was founded in 1872; in 1916, Congress founded the National Park Service (NPS) to administer and manage parks. Since then, the NPS and parks have been mired in policy and management controversies.

Many controversies revolve(ed) around the meaning and purpose of the NPS (Mantell 1983; McCarthy 2004; Runte 1990; Lemons and Stout 1976; Lemons 2010). In 1916 the US Congress passed the Organic Act of 1916 (Title 16 United States Code [USC Sec 1–4 et seq.] Relevant portions of the Act are:

[P]romote and regulate the use of the … national parks, monuments, and reservations hereinafter specified …by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose 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.

As will be discussed, neither Congress nor the NPS ever defined ambiguous words of the legislation, such as ‘conserve,’ ‘scenery,’ ‘natural,’ ‘unimpaired,’ or ‘enjoyment’ and this fact, combined with peoples’ and organizations’ own views of what is an appropriate meaning and purpose of parks, historically has been at the root of many of the controversies.

Yellowstone National Park/Kurt Repanshek

In 1970, through the General Authorities Act and again in 1978 through the ‘Redwood Amendment Act’ (Title 16 USC Sec. 1a–1), Congress reinforced that management of parks shall be consistent with the Organic Act. In 1998 Congress established the National Parks Omnibus Management Act of 1998. This and other legislation reaffirmed the basic language and purposes of parks and the reaffirmation has been ruled by several courts and commentators as upholding the primary fiduciary duty of the NPS is conservation of parks’ natural and scenic resources.

This all sounds good for those trying to foster conservation in national parks. However, lurking behind this masquerade of optimism is the fact that The Administrative Procedures Act of 1970 (APA) Title 5 USC Sec 500 et. seq.) grants NPS policy makers and managers lenient decision making authority, wherein they must only demonstrate that decisions are based on rational, but not necessarily perfect, scientific information. As long as an NPS policy maker or decision maker avoids being arbitrary and capricious and have reasonably sound reasons for decisions the NPS laws mentioned above have been satisfied. Said differently, if the NPS states in a management plan or other policy document that some action will cause ‘impairment,’ typically a court will rule that the decision is illegal; if the NPS does not conclude an action will cause ‘impairment’ then NPS decisions have a good chance of prevailing. However, when an individual outside the NPS challenges decisions, the reasons and factual information must meet a much higher burden of proof and, in fact, the burden of proof is on the person(s) contesting an NPS decision.

Parenthetically, the NPS understandably adopted development policy for automobiles and roads and trains to parks based on a promotional policy of encouraging tourism that was needed in order to achieve needed support for the fledgling agency and its parks. For the most part, such promotion had support from conservationists because it was in everyone’s interest to create greater public support for parks. But with time, it became apparent that contemporary tourism and park visitation unraveled as accommodations, roads, visitors, and other development increased.

Although an exact definition of conservation is wanting, it seems fair to say that the proponents of conservation value nonconsumptive uses of parks and the more spiritual or communal opportunities with parks’ resources. This contrast might be likened to the differences between being in Yosemite Valley with 20,000 other people and its accoutrements of hotels, recreational vehicles and traffic jams, gift shops, and restaurants compared to a day wherein one only experiences opportunities for solitude and contemplation in a setting that we might call more natural, i.e., devoid of said accoutrements Lemons, 2007; 2010).

Weakening of Yosemite and Yellowstone Legislation

There is no question that today conservationists are not aligned with the NPS; two examples suffice.

The first concerns Yosemite National Park. In the early 1970s the NPS began development of the Yosemite Master Plan to guide resource protection and development and visitor use. From the very beginning, the Plan was controversial because conservationists were unhappy with alternatives that would provide more development and use within the park; they also were incensed that development alternatives favorable to the park’s concessionaire at the time (Music Corporation of America) were included in the plan under pressure from the corporation. Advocates of more development and use were unhappy with alternatives that might limit development and use.

Consequently, the NPS’s first modern attempt in Yosemite National Park to juggle or resolve resource protection and development and visitor use failed because the NPS did not want to make difficult choices to better protect the park’s resources, and therefore subsequently embarked on the General Management Plan (GMP)—first promulgated in 1980 (NPS 1980a, 1980b). Initially, the GMP called for a reduction by 1990 in traffic congestion; removal of some facilities such as tennis courts, golf courses, ice–skating rinks, and some overnight accommodations; restoration of large areas of Yosemite Valley; and an emphasis on leaving resources unimpaired.

After ‘‘gathering dust’’ for almost twenty years, the NPS released a revision of the GMP–the Draft Valley Implementation Plan (VIP)–that initially was to be finalized in 2000 in order to procedurally and substantively implement provisions of the GMP (NPS 2000a,b). Interestingly, the devastating winter floods that occurred in Yosemite Valley in 1997 and the damage to facility and visitor infrastructure provided the NPS with a sound opportunity to implement the GMP, especially alternatives that called for removal of facilities and increased restrictions on visitor use in ecological sensitive areas of the park.

However, the NPS failed to take advantage of this opportunity. None of the reductions in visitor use or accommodations and other facilities have occurred and, in fact, overnight accommodations and visitor use have increased, at least until the recent 9th Circuit Court of Appeals decision in Friends of Yosemite v. Kempthorne (2008) that denied a NPS appeal to allow continued development and use of visitor facilities. Currently, the NPS has revived the GMP and still is receiving public comments on it, almost thirty years after promulgation of the 1980 GMP.

Yosemite National Park/Jean Bjerke

The second example concerns Yellowstone National Park, where since 1997 the federal District Court for the District of Columbia has been involved in litigation over NPS plans to allow continued use of snowmobiles in the park (USDCDC 2008). Over the years, environmental and recreational groups have challenged the NPS’s restrictions on the number of snowmobiles that can enter the park as either being too high, or too low, respectively. In reviewing the NPS’s ‘‘Records of Decision’’ supporting its own Winter Use Plans (WUP) for the number of snowmobiles the agency would allow in Yellowstone National Park (NPS 2000a, 2007), the District Court for the District of Columbia concluded that the NPS’s approved level of use of snowmobiles harmed the integrity of the park’s natural resources and values and therefore that it violated the Organic Act as well as Yellowstone’s Enabling Act (Title 16 Section 22) and, further, that the agency’s own studies supported this conclusion.

The Court also criticized the NPS for recommending a (high) level of snowmobile use that could be detrimental to the park’s wildlife and environment in contravention to the agency’s Management Policies. In its decision, the District Court for the District of Columbia remanded to the NPS that it develop proceedings and a final WUP that is consistent with the findings of the Court; namely, that an approved WUP be consistent with the Organic Act insofar as elevating conservation over use and not approve actions that by the agency’s own admission harm the park’s natural resources (McCarthy (2004).

At first glance, the Yellowstone case might seem to strengthen the conservation mandate of the Organic Act, and perhaps it does given that the District Court for the District of Columbia interpreted the Act in a manner that served as a ‘‘check’’ against apparent violations by the NPS. On the other hand, much of the ruling in the Yellowstone case concerns procedural issues, which is to say that the NPS acted ‘‘arbitrarily and capriciously’’ in deciding to allow a relative high level of snowmobile use despite findings of harm to the parks’ natural resources. In other words, although the Court found that the NPS’s snowmobile plans were wholly unacceptable, a primary (not sole) reason was because the agency failed to rationally support conclusions about the acceptability of recommended snowmobile use levels.

If the NPS had provided sufficient reasons for its decision to allow a relative high level of snowmobile use, then presumably the Court would have ruled in the agency’s favor, although out of necessity this is speculative based on interpretation of the record. To the extent such speculation is founded, then the case for a strong conservation prescription mandate of the Organic Act would be less because NPS decisions would rest more on procedural than substantive issues. Not only do the examples of Yosemite and Yellowstone help to weaken the strong preservation of the NPS discussed above, but they also show the deep division between preservationists and other users of national parks.

The Question Of NPS Governance

Complicating the question of the extent the Organic Act prescribes conservation of natural resources and scenery is the issue of national park governance: Is Congress or the bureaucracy of the NPS within the Department of Interior responsible for resolving controversies within parks (Nei 2004)? As we have seen, on several occasions Congress passed and reaffirmed the initial language in the Organic Act and, despite aforementioned case law that interprets the primary fiduciary responsibility of the NPS to be conservation, the responsibility admittedly is very broad, and, given lack of a precise meanings of ‘‘conservation’’ or “unimpaired” the NPS has extensive discretion.

What is of interest here is that the periodic restatements and reaffirmations by Congress of the Organic Act’s language can be taken on the one hand to reaffirm the broad goal of conservation, but on the other can be inferred, because of the broadness of the language, to leave to the NPS almost full discretion for resolving conflicts. For example, Congress never has challenged the NPS’s interpretations or decisions that focused more on development and use compared to conservation. On the one hand, former Secretary of Interior James Watt claimed that if he were to err, it would be on the side of people and use; on the other, former NPS Director William Penn Mott claimed that if he were to err it would be on the side of preservation (Nei 2004). Is the Organic Act neutral about such conflicting statements by NPS policy and decision-makers?

If, indeed, Congress through its legislation defines unambiguously the NPS’s responsibility and discretion, or if courts interpret that the NPS has a strong duty to first and foremost conserve parks’ natural resources and scenery, this is the ‘‘law of the land.’’ But if Congress leaves legislation vague or broad, as is the case with the Organic Act, then this constitutes deference to the executive branch of government and through this branch the head of the NPS. Accordingly, despite Congressional reaffirmations of the Organic Act and aforementioned case law supporting the conservation mandate of the Act, arguably both the vague language of the Act and the broad discretion granted to the NPS by the courts can have two consequences. One is that within its broad mandate the NPS can decide conflicts in clear favor of conservation or, two, it can decide the conflicts in a manner that favors more development and use as long as decisions are consistent with the APA and within the broad confines of recent case law pertaining to the Act (National Parks 2006).

It is doubtful whether Congress would be willing to provide more detailed legislative guidance to the NPS; after all, on numerous occasions it has declined to do this and, instead, has reaffirmed the original language of the Organic Act despite its inherent vagueness and Congress’s presumed knowledge of conflicts between conservation of natural resources and scenery and development and use within parks.

Conclusion

Although some case law and other analyses support that the primary responsibility of national parks is to conserve their natural resources and scenery, NPS decision–makers hold considerable discretion regarding how to balance conservation with development and visitor use and, in this sense, the mandate of the Organic Act only weakly prescribes the conservation of natural resources and scenery. Perhaps this is the best that can be hoped for—at least it is a mandate for conservation. Yet, at the same time a weak interpretation of the Organic Act promotes endless controversy about national parks and allows considerable development and use.

This fact should give pause to those who might assert because of recent case law or other proclamations that conservation of natural resources and scenery is the primary mandate of the Organic Act, which is to say that people need to consider that within broad limits the NPS has considerable discretion in resolving conflicts between conservation and development and use. For those interested in greater conservation of parks’ natural resources, all of this is a conundrum. After all, to the extent the conservation of parks’ resources is ‘‘weak,’’ what is to be done? I have no good answer. One response would simply be to understand this point, and not be deluded about the extent to which the Organic Act strongly mandates conservation of parks’ natural resources.

Great Smoky Mountains National Park/Harold Jerrell

This point of view is somewhat cynical with its implication that controversies within national parks will continue with the likelihood that over time the quality of parks’ resources and scenery will decline due to inevitable development and use. Another response would be for stakeholders in national parks to try to build on case law that reaffirms the conservation mandate of national parks, e.g., as in the recent Yellowstone and Yosemite National Parks’ cases.

Finally, a ‘‘wishful’’ sort of solution might be found beyond the decades–old debates about NPS legislative meaning (Lemons 2007). Specifically, this solution would act on the appeal of inspirational works that speak about the values and ethics of national parks. Lest we forget, national parks often are referred to as ‘‘America’s Best Idea.’’ The Organic Act is value–laden, and on reading forces us to think deeply about the inspirational and motivational value of parks and their naturalness. In this sense, writers and philosophers such as Leopold (1949), Sax (1980), Rolston (1990), and Livingston (2007), to name a few, help us to better understand and articulate the fundamental reasons behind our wanting to advance the idea of preserving nature in the national parks. And to the extent their message is retold, perhaps there will be greater appeal to NPS stakeholders and administrators.

Livingston (2007) wrote about wildlife conservation and the extent it was rooted in anthropocentric interests, and he reminds us that the human assault on places like national parks is not lessened until we humans change in a manner such that we recognize that we are not separate from—not better than—animals. We are only different. Livingston reminds that the onus is on each of us to make an inner change, to accept relatively undeveloped national parks for the benefit of the animals and not for our own selves in a setting of developed accommodations for our comfort. With respect to national parks, technology and politics having to do with complicated public transportation schemes around Yosemite Valley or highly controlled snowmobile use in Yellowstone will not provide the solution because, ultimately, if we humans insist on having preeminence in national parks the wildlife and the scenery ultimately will lose; rather, the solution requires a change in our own values and what we accept as our place in nature.

In his insightful book, Sax (1980) reminds that national parks should serve but one purpose insofar as human satisfaction: non–consumptive or contemplative enjoyment such as appreciation of scenery or the knowing of nature through observation. Rolston (1990) articulates that the value of national parks is in the protection of the intrinsic value that species and ecosystems have for evolution and, further, his works defend why we should preserve the naturalness of national parks as much as possible because of their inspirational and motivational value in helping us to understand the importance of having a few places where ecocentric outlooks and policies prevail against the onslaught of our anthropocentrically–dominated world.

Finally, Leopold (1949) wrote:

There must be some force behind conservation, more universal than profit, less awkward than government, less ephemeral than sport, something that reaches into all times and places where men live on land, something that brackets everything from rivers to raindrops, from whales to hummingbirds, from land–estates to window boxes I can see only one such force: A respect for land as an organism, a voluntary decency in land–use exercised by every citizen and every land–owner out of a sense of love for and obligation to that great biota we call America. This is the meaning of conservation, and this is the task of conservation education.

The purposes of national parks continue to be debated, those who value the natural resources and scenery of national parks need be mindful of legal interpretations of the Organic Act, of what is actually happening in national parks, but also of the task of conservation education that others remind us. It might be somewhat naive to believe national parks can be saved from development and use. Yet, national parks are the embodiment of an ideal about Americans’ relations with nature and although difficult to achieve the ideal is worth believing in.

*The terms “conservation” and “preservation” have stipulative but not constitutive meanings, and the meanings have diverged since the 1916 Organic Act. I have generally used the word “conservation” because it has been the word of choice in the documents I have used.

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Comments

Very thoughtful article John.  It reminds me of many conversations we had in the Mather Ranger Club of Yosemite some decades ago.  It also reminds me of PJ Ryan's excellent article in NPT entitled, "How Hard Can it Be!"  http://www.nationalparkstraveler.com/2013/02/view-overlook-how-hard-can-....  Even with legal mandates in place to give priority to resource preservation and protection over visitor use, I fear that the ever powerful forces of industrial tourism will dominate decisions made by park management.  Why else has the Yosemite General Management Plan of 1980 gathered dust for the past 36 years?


The 1916 Organic Act is scarcely the last, nor is it the strongest, legislation directing Park conservation.  Its conservation goal is "for the enjoyment of future generations".  The Wilderness Act and legislation designating specific Parks are perhaps more significant.

To offer one example, the Washington Park Wilderness Act of 1988 designates Mt. Rainier, North Cascades and Olympic NP Wildernesses.  Its sponsors testified on the diverse natural resources to be conserved, then conclude "By enacting this legislation, we will be doing a great deal to guide future park management.  Congress will be setting firm policy that it intends careful management of the three parks...  However, the object of this bill is not in any way to discourage recreational use.  All recreational activities now associated with these park and recreational areas will continue.  Wilderness boundaries in the legislation would be drawn to accomodate existing transportation corridors within the parks, including campgrounds and lodges.  New trail development will also continue to be a high priority... This bill is certainly not intended to be a license to lock-out public use and enjoyment of the parks.  Public areas for all, including youngsters, senior citizens and the disabled, will continue to be a high priority.  People in the parks will continue to be the highest priority.  Parks are for the people.- Congressional Record - House, Volume 134, Part 18, page 25390, September 26, 1988.

Rules of statutory construction require that express legislative intent, particularly by sponsors before the whole Congress immediately prior to their vote, be given great weight.  And that those of Leopold and others the author cites above as inspirational, be given none.  Although this essay is thought-provoking, might a lawyer, judge or legislator be better qualified to offer more illuminating essay on law?

Park managers and plans have instead abandoned roads to campgrounds, built no new trails, and cut trail maintenance so many trail bridges are not replaced and trails have deteriorated or been abandoned.  Visitation is concentrated in fewer areas, and more often is limited by backcountry quotas and full campgrounds.  Does this fulfill the intent of the Organic Act ("for the enjoyment" of the people) or their Wilderness designation ("Parks are for the people")?


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