The Organic Act and the Stewardship of Resources within Park Boundaries

by Michael A. Mantell and Philip C. Metzger

Republished with permission from the Conservation Foundation and World Wildlife Fund

Citation

Table of Contents

• Introduction
• The Organic Act Starting Point and Driving Force
• .....The Organic Act Amended, Again
• Enabling Legislation
• Overlay Statutes
• .....Wilderness Areas
• .....Wild and Scenic Rivers
• .....National Scenic and Historic Trails
• Regulations Governing the Park System
• Court Interpretations
• .....The Courts and Activities on Parklands
• ..........Commercial Fishing in Everglades
• ..........Hunting and Trapping throughout the System
• ..........Logging outside Redwood
• ..........ORVs in Cape Cod
• ..........Camping in a Park
• .....The Courts and Activities on Private Property within Park Boundaries
• ..........Cession
• ..........The Property Clause
• Conclusion
• References

INTRODUCTION

Although the National Park Service has been recognized for decades as preserver of some of the nation's most precious places, the methods it uses to implement its basic mission are continually being refined in response to changing needs and increasing scientific awareness. Like the park system itself, which expands and evolves to reflect societal changes and values, the service and its mission continue to evolve as well.

Today, the system and the service grapple both with new issues and with old ones that appear in a new context of changed societal values and fiscal constraints. For many years, the physical isolation of the parks was their greatest defense against internal overuse as well as external pressures on park resources. Both internal resource problems and external pressures, however, have been mounting on the parks in recent years. The expansion of the park system in the 1960s and 1970s to incorporate urban areas and places of mixed land ownership has further heightened the pressures placed on park resources and the opportunities for addressing them.

At such a time, when the responsibilities and burdens of maintaining America's crown jewels are more diverse than ever before, it is crucial to understand the origins and characteristics of the park service's legal obligations and authorities and how these have been interpreted in various actions to manage park natural resources. Moreover, the changing conditions of park management have produced an evolution in hath the interpretation and the very wording of these authorities and obligations, requiring an examination of their meanings today in light of the charge to leave the parks "unimpaired for the enjoyment of future generations." ¹

This chapter discusses the basic laws under which the National Park Service operates and how they have been interpreted over the years in terms of managing park resources within authorized boundaries. How has the park service interpreted its legislative authority? What powers does this authority give and what constraints, if any, does it impose? What have court decisions held?

When examined together, these laws and court rulings reveal that, when the park service's decisions are consistent with authorizing statutes and based on well-articulated resource needs, plans, and studies, the service has significant authority to take actions to protect resources within the authorized boundaries of park units, regardless of who actually owns the property affected.

THE ORGANIC ACT STARTING POINT AND DRIVING FORCE

The National Park Service Organic Act remains after some 70 years the core of park service authority and the definitive statement of the purposes of the parks and of the National Park Service's mission. That mission is to: promote and regulate the use of the federal areas known as national parks, monuments, and reservations hereinafter specified, . . . by such means and measures as conform to the[r] fundamental purpose . . . to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such a manner and by such means as will leave them unimpaired for the enjoyment of future generations.

The Organic Act warrants frequent rereading. Several issues are raised by its eloquent charge:

 • It says that actions by the park service must conform to the "fundamental purpose," not purposes, of the parks. What is the "fundamental purpose"?

 • What does "conserve" mean in the context of a 1916 statute? Is it the same as "preserve" today?

 • Does "unimpairment" mean absolutely no alteration or is some unspecified, minimal level of degradation contemplated?

 • Is there a built-in conflict or ambiguity between conserving these areas "unimpaired" and providing for their "enjoyment?" areas, though distinct in character, are united through their inter-related purposes and resources into one national park system as cumulative expressions of a single national heritage; . . . and that it is the purpose of this Act to include all such areas in the System and to clarify the authorities applicable to the system. [emphasis added.]²

Each park system unit, the 1970 Act continued, was to be administered not only under the terms of its own authorizing law but also under a unified standard, all other system-wide laws, "including but not limited to the" Organic Act.

These legislative additions to the Organic Act were an affirmation that, unless Congress specified otherwise for a particular unit, all units were to be governed under the same mission and were subject to the same management obligations as set forth in the Organic Act. Moreover, they reinforced the idea that units of the National Park System were all to be viewed as special places, "expressions of a single national heritage." ³

The Organic Act Amended, Again

Litigation concerning Redwood National Park in the mid-1970s raised congressional interest in clarifying the importance of park resources system-wide. When Redwood was enlarged in 1978 to include some of the watershed lands omitted 10 years earlier and to address the resource problems that were the basis of a series of suits brought by the Sierra Club (see discussion below), a provision amending the basic Organic Act was also included:

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 for by Congress.4

The language in this amendment is not particularly easy to follow. It talks about activities construed and conducted "in light of the high public value" of the park system. It uses the phrase "protection" for the first time in the legislative context of the parks and the Organic Act. A key phrase is that activities "shall not be exercised in derogation of the values and purposes for which these areas have been established." Finally, it is applicable unless Congress has "directly and specifically provided" otherwise. Such language raises some important questions:

 • What is this amendment intended to do? What was in the lawmakers' minds when they enacted it? What was going on in the parks and outside them that gave rise to its passage?

 • What is its effect on the Organic Act language?

 • What are the "values and purposes" of the units of the system?

 • Is the clause that exempts it from being applied where Congress has specifically provided otherwise to be read narrowly, only in those situations where Congress explicitly authorizes an activity that threatens park resources, or more broadly to include, for example, the general authorization of multiple-use management on neighboring federal lands that can affect park resources?

When the 1978 amendment was put into law, it was part of the legislative package to expand Redwood National Park. Congress was concerned over the threats to resources in Redwood from outside its boundaries as well as the apparent lack of authority Redwood and other parks had to deal with such threats. Congress wanted to strengthen the ability of the U.S. secretary of the interior to protect park resources. It has been read in this context, with the intent of clarifying the Organic Act and as elaborating on both that act and the "single system" amendment of 1970.

Part of the legislative record that existed when it was enacted states:

The Secretary has an absolute duty, which is not to be compromised, to fulfill the mandate of the 1916 Act to take whatever actions and seek whatever relief as will safeguard the units of the National Park System. 5

Another part of the legislative history of this amendment also states that:

The protection of the units of the system is to be carried out in accordance with the maintenance of the integrity of the system, and management of these areas shall not compromise these resource values except as Congress may have specifically provided. 6

The clause limiting the exceptions to those "directly and specifically provided for by Congress" has been the subject of much debate as to whether it is to be interpreted broadly to cover all kinds of activities generally authorized by Congress or limited to only those cases where Congress has expressly permitted the threatening activity. Several legal scholars and commentators contend that it is to be construed narrowly to apply only to those situations where Congress has explicitly authorized a threatening activity. Court decisions have not addressed this issue directly.

ENABLING LEGISLATION

One of the key ways Congress explicitly authorizes the type of activity that can derogate park values and purposes as contemplated by the 1978 Organic Act Amendment is through the legislation creating individual parks, so-called enabling legislation. Specific enabling legislation for a park unit, for example, may provide for the continuation of preexisting uses of an area (such as hunting, grazing, or mining) following park establishment. In these cases, Congress has "directly and specifically" provided for an activity, even if it is "exercised in derogation of the value and purposes for which" an area has been established, to use the language of the 1978 statute.

Every park unit is created by congressional legislation or presidential proclamation through an executive order. Such enabling legislation (including executive orders) generally sets forth the boundary of the unit, the reasons for creating it, be they significant natural, historical, and/or recreational resources, and any other specific conditions that apply to the area. Provisions in enabling legislation are thus very relevant to managing that unit. Moreover, those that permit hunting or other preexisting uses of the area to continue set forth a key rationale for the area's designation or specifically reference some other factor about a unit that can act to restrict, expand, or refine in some way the interpretation of the Organic Act as it is applied to that particular unit. Therefore, it is important to be familiar with individual park enabling legislation and to read it in light of and as part of the Organic Act charge to manage park resources.

OVERLAY STATUTES

Several acts of Congress add additional policies to and requirements for managing park natural resources beyond those embodied in the Organic Act, specific enabling legislation for each unit, and more general federal environmental laws. These laws, wilderness, wild and scenic rivers, and scenic and historic trails, designate certain areas within parks for specific additional values and management purposes. While their legal authority to require the park service to take concrete action has not been tested and remains questionable, these laws do give the service added means and rationales for increasing protection of particular natural resources.

Wilderness Areas

Passage of the Wilderness Act (P.L. 88-577) in 1964 gave Congress the authority to designate public lands as part of the National Wilderness Preservation System. Lands designated as wilderness are managed by one of four agencies: Forest Service, National Park Service, Fish and Wildlife Service, and Bureau of Land Management. Of the 89.1 million acres in the federal wilderness system as of 1986,36.8 million are in the National Park System units.

Certain criteria are mandatory in order to include land within the wilderness system. A wilderness area must provide opportunity for primitive and unconfined types of recreation, be largely untouched by human activities, be of sufficient size to be preserved in an unimpaired state, and possess features of scientific interest. Restrictions on activities allowed in wilderness areas (subject to valid existing rights) protect them from drilling, logging, mechanized forms of transportation, and permanent development, including roads. Principal recreational activities in designated wilderness areas are hiking, primitive camping, cross-country skiing, non-motorized boating, and horseback riding.

The passage of the Alaska Native Interest Lands Conservation Act (ANILCA) in 1980 made a significant contribution to wilderness acreage, especially for national parks and national wildlife refuges. 7 A total of 56.4 million acres were added, including 5.4 million acres in national forests, 32.4 million acres in National Parks and 18.6 million acres in national wildlife refuges. The act also required the review of an additional 80 million acres of public lands in Alaska for possible inclusion as wilderness.

Wild and Scenic Rivers

The Wild and Scenic Rivers Act (P.L. 90-542) was enacted in 1968, establishing a system to protect rivers with outstanding scenic, recreational, geologic, wildlife, historical, cultural, or similar values in a free-flowing condition. Eight river systems were designated by this legislation. The Wild and Scenic Rivers System includes three categories of rivers based on the level of disturbance to the river and its surrounding habitat: wild, scenic, and recreational. Of the nearly 3.6 million miles of rivers in the United States, there are 72 rivers or river segments, totaling 7,365 miles, protected in the system.

The Wild and Scenic Rivers Act established a federal-state system of river conservation. The main protection tool is planning, although a designated river also can be protected through federal land acquisition of surrounding land and prohibition of federal dam building. Designations are made by an act of Congress or by a state request and the approval of the secretary of the interior. A river may continue to be overseen by state and local governments and, where appropriate, be managed in partnership with the federal government. Rivers designated for protection by Congress are managed under plans approved by the secretary of the interior or secretary of agriculture. No federal agency can then permit or financially assist the construction of water-resource projects that might adversely affect a designated river segment.

Section 11 of the Wild and Scenic Rivers Act authorizes the National Park Service to assist local, state, and federal government agencies; private groups; and landowners interested in developing river conservation plans. Regional offices of the park service provide this assistance on request, subject to the availability of congressional funding. 8

National Scenic and Historic Trails

The National Trail System was created by Congress in 1968 (P.L. 90-543) to promote the development of a national network of scenic trails. (It was amended later to include historic trails.) The National Trail System Act immediately designated the Appalachian Trail (AT) and the Pacific Crest Trail (PCT) and named 14 others for study. The act consolidated management of these two trails, giving the park service primary responsibility for the AT (it is now a unit in the park system) and the Forest Service the lead for the PCT. By their very nature, designated trails are devoted primarily to hiking and primitive camping.

The National Trail System Act encourages federal, state, and local agencies to work together to establish scenic trails, preserve their natural setting and protect them from incompatible development. As with wild and scenic rivers, federal ownership is not mandated. The Appalachian Trail, for example, is protected by a variety of means including the acquisition of land and easements by federal and state governments and private land trusts and trail clubs. As of 1986, 8 national scenic trails (about 14,500 miles) and 6 national historic trails (about 10,500 miles) had been designated. 9

REGULATIONS GOVERNING THE PARK SYSTEM

The basic laws governing the park system are, for the most part, relatively silent about how the service is to implement the statutory mandate contained in them and its overall statutory mission. Thus, another element in resource management beyond a statute that authorizes action or control is a regulation issued by the service specifying how that action is to take place or that control is to be carried out.

Park service authority to regulate activities within park areas comes from a provision enacted as part of the original Organic Act in 1916:

The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service 10

The park service has issued numerous regulations flowing from this authority; most of them appear in volume 36 of the Code of Federal Regulations (CFR). Properly issued regulations have the force of law. If a statute, such as the Organic Act, is sufficiently clear about the powers available to or obligations imposed on the agency, and the regulation is clearly related to furthering those objectives, courts are generally satisfied and the agency is free to act accordingly.

As might be expected, regulations and their relationship to parent statutes differ in terms of specificity. In several park system units, Congress has provided enabling legislation that contains provisions explicitly governing certain aspects of park use; many of the regulations concerning these areas slightly enlarge on or simply reiterate the statute. The regulation on scientific study at Mesa Verde National Park (36 C.F.R.7.39[a]), for example, closely reflects a provision in that park's enabling act (16 U.S.C. 113).

Sometimes, a regulation will take a simple approach in implementing congressional intent. The enabling statute for Voyageurs National Park (16 U.S.C. 16 g[a]), for example, authorizes the interior secretary to regulate fishing in Voyageurs in accordance with applicable state and federal law, and, in consultation with the state, to designate no-fishing zones where resource management and visitor interests warrant. The applicable regulation (36 C.F.R. 7.33 [a]) simply reads, in full: "Unless otherwise designated, fishing in a manner authorized under applicable State law is allowed."

In contrast, regulations governing off-road vehicle use typically go into extensive technical detail for one or more full pages. See, for instance (in 36 C>F.R.), 7.20(a), Fire Island National Seashore; 7.65(b), Assateague Island National Seashore; and 7.67(a), Cape Cod National Seashore.

The Organic Act, especially in the absence of specific enabling legislation, gives authority and imposes a duty on the park service that is broad and sweeping without being specific. While management regulations can be and have been drafted based on such a broad mandate, they may be either fairly narrow in focus and straightforward or not very helpful in resolving difficult resource-management problems. One example of the former is alcoholic beverage regulations. In contrast, off-road vehicle regulations are among those that give little help in resolving the real management problems, noting only that "[t]he designation of [off-road vehicle] routes shall be in accord with the procedures and criteria" (36 C.F.R. 4.19[b]) given elsewhere in the regulations and in the applicable executive order. That order, in turn, states that designation "shall be based upon the protection of...resources,...the promotion of...safety,...and the minimization of conflicts among the various uses" (E.O. 11644, 3 [a]), a directive that adds little, if anything, to the Organic Act mandate.

As the examples illustrate, there is rarely a magic legal formula that can instantly resolve use conflicts and fulfill the obligation to prevent impairment of park resources. In light of this, the bases on which the park service may act need to be understood more clearly, so as to appreciate better the opportunities for and the constraints on effective resource management.

COURT INTERPRETATIONS

Specific resource management actions in the parks serve to give meaning to, refine, and reconcile the eloquent language and uncertainties inherent in the Organic Act, as amended; the various pieces of enabling and overlay legislation; and relevant park service regulations. Courts act as the ultimate interpreters of these laws and rules when specific actions or nonactions by the park service are challenged. Key questions include:

1. What has the Organic Act, with its amendments, come to mean when specific decisions made by the service regarding park resources are reviewed by the courts?
2. How have enabling legislation provisions been factored into court decisions concerning the Organic Act?
3. What types of authority do these laws give the park service to manage activities within park boundaries on federally owned land?
4. What types of authority do these laws give the service to manage activities within park boundaries on privately or state owned lands?

The Courts and Activities on Parklands

Court decisions involving five different areas and actions by the park service illustrate how the questions above have been addressed. They also give meaning to the Organic Act, as amended, define its relationship to specific park enabling legislation, and reinforce the role of regulations in implementing various laws. These cases involve commercial fishing in Everglades, hunting and trapping systemwide, the damaging effects on park resources of logging activities outside Redwood, off-road-vehicle use in Cape Cod, and a prohibition on camping in sections of the National Capital Parks.

Commercial Fishing in Everglades

In Organized Fishermen v. Watt, the park service was challenged by commercial fishermen for prohibiting commercial fishing in Everglades National Park. 11 Also challenged were regulations to establish sanctuaries for endangered and threatened species within the park by closing off areas to public entry and restricting recreational shellfish harvest.

Issues. Two key issues were presented in this case, one factual and one legal:

1. Did the park service have sufficient evidence of harm and resource degradation to ban commercial fishing and significantly restrict recreational uses of certain areas of the park?
2. Did the park service have sufficient legal authority under the enabling legislation and the Organic Act to take such actions?

Ruling. The court found the park service action to be factually and legally supportable. The court methodically reviewed the steps taken by the park service that led to the regulations banning commercial fishing:

1. the receipt of 5,000-name petitions expressing concern over the diminishing sport fish population and requesting that bag limits be set on certain species;
2. a management study of options to address the problem that included a projection of catch rates and a socioeconomic analysis of various actions;
3. extensive public workshops, comments, and consultation with various federal and state agencies;
4. a review of management alternatives indicating the preferred use and a decision not to do an environmental impact statement under the National Environmental Policy Act (NEPA);
5. proposed rule making and extensive public hearings and comments; and
6. publication of the final regulations.

The court observed that while there seemed to be general agreement from all interested parties, park service, commercial fishermen, state of Florida, environmentalists, and so forth, "that the fish resources needed protection, there was substantial disagreement on the extent of the problem and its cause." Despite this disagreement, the court found that the careful process followed in making the decision warranted strong deference to the actions of the service, noting that:

The task of weighing the competing uses of federal property has been delegated by Congress to the Secretary of the Interior. As such, the Secretary has "broad discretion in determining what actions are best calculated to protect park or public land resources."

In examining the governing legal authorities, namely, the Organic Act and its amendments plus the enabling act creating Everglades, the court ruled that actions taken by the park service were consistent with the purposes of these laws:

Commercial exploitation of the natural resources is not one of the purposes for which Congress established the Park. The Secretary, as a matter of policy, can implement measures such as those challenged herein, which, in effect, eliminate one predator from the park and enhance the use of the park by recreational users.

Interestingly, the court went on to indicate that the relevant laws would have permitted the Secretary of the Interior, through the Park Service, to go further to restrict fishing activities, if he had found such action necessary. Because the secretary had taken significant action, though, the court did not want to "second guess" his decision since "Congress has entrusted [to him] the authority to make these judgements."

Hunting and Trapping throughout the System

In National Rifle Association v. Potter, the park service was similarly challenged for being over-protective. 12 The National Rifle Association challenged park service regulations that banned hunting and trapping in all units of the park system, unless such activity was clearly provided for in a park's enabling legislation.

Issue. Since the facts concerning the ban and its implications were not disputed by the parties, only one issue--a legal one--was presented by this case:

• Is the 1983 Park Service regulation that prohibits hunting and trapping throughout the National Park System, except where such activities are specifically authorized by Congress, valid under the Organic Act as amended?

Ruling. The court found the regulations to be valid and supported by the Organic Act. It upheld the park service interpretation of the law to require preservation of wildlife except where Congress expressly provided for the consumption of such resources.

As in the Everglades case, the court reviewed the legislative authorities governing the system and particular parks, as well as the reason for the change in park service policy. In this case, the change in policy came about because of the emphasis Congress placed on a unified system and resource protection in the 1970 and 1978 amendments to the Organic Act, respectively.

The court concluded that nowhere in the legislative history of the Organic Act did Congress contemplate "consumptive" uses of the park system. More important, the court specifically equated the charge to conserve in the Organic Act with preservation, declaring that:

the paramount objective of the Park System with respect to indigenous wildlife, and the philosophy which came to pervade the new Park Service to whom it was entrusted, was, from the beginning, one of protectionism.

In very strong language, the court ruled that the park service was correct in concluding that its "primary management function with respect to Park wildlife is its preservation unless Congress has declared otherwise."

Like the court in the Everglades case, the court in NRA v. Potter was highly respectful of the park service decision to change policy and become more protective of park resources. It found ample authority in the relevant statutory authorities for the service to do so, and concluded that a sufficient relationship existed between the purpose of the parks and the specific action taken. The court made clear, however, that where the enabling legislation for various parks expressly provided for hunting or trapping, these activities were to continue in those specific units.

Logging outside Redwood

The third case involved a series of suits brought over resource damage at Redwood National Park. The boundaries of most park system units are not based primarily on ecological principles. 13 Political and economic concerns often predominate. Perhaps the archetypal example of such boundaries is Redwood National Park, where part of the Redwood Creek watershed was originally excluded from the park in a compromise between concerns for preservation and for timber harvest.

In awareness of this compromise, Congress also ordered the park service, within the specific statute creating Redwood, to "afford as full protection as is reasonably possible" to resources within the park. To do this, Section 3(e) of the Redwood Park Act authorized the interior secretary to acquire easements from and conclude management agreements with the timber companies that owned the adjoining lands in the watershed (16 U.S.C. 79c [e]). But the park service took no effective action under this provision, and damage to the park resulted from lumbering practices outside the boundaries.

A series of lawsuits followed, brought by the Sierra Club against the interior secretary. Three decisions resulted, all of which were significant for illuminating the scope of the park service's duty to protect park resources.

Redwood I Issues. The first suit, decided in 1974, was in a real sense the most significant of the three cases. 14 Two issues were presented in this initial litigation over Redwood:

1. Could an environmental group sue the park service (through the Secretary of the interior) for not taking--what it claimed--appropriate action under the law to protect park resources?
2. Was there a legal responsibility on the part of the park service to take action against activities outside the park that were threatening park resources?

Ruling. The court decided that a suit by an outside organization to challenge the interior secretary's management decisions was permissible. The court also determined that the secretary's responsibility to protect the parks, imposed under the Organic Act and the 1968 Redwood Enabling Act, turned an authorization to take out-of-park actions at Redwood, under Section 3(e), into a "paramount legal duty . . . to utilize the specific powers given to him whenever reasonably necessary to protect the park."

The court found that, in this context, the Organic Act and the enabling act imposed "a general trust duty" to maintain park resources unimpaired. While the enabling act Section 3(e) itself defined the terms of the duty in the case and made it clear that the duty extended to lands beyond the park's borders, the Organic Act directive to "leave" park resources "unimpaired" gave 3(e) the special force needed to make an action that the park service could initiate on its own into a duty that it could be compelled to undertake by the courts.

Redwood II Issue. Having won the right to sue on the issue, and having established a park service duty to protect resources, the Sierra Club returned to court to challenge the substance of the interior secretary's actions at Redwood. There was principally one issue involved in the second Redwood suit:

• Had the park service (or interior secretary) taken the appropriate actions to protect the park?

Ruling. This challenge was also successful, as the court found that the Secretary had not taken in good faith any of the actions authorized in Section 3(e) or recommended by a Park Service task force on the issue.15 That is, the Secretary had not adequately sought modification of the park boundary in light of damages occurring to park resources or agreements with applicable landowners to prevent future damages.

The decision is important not only for the specific terms of the interior secretary's duty or even for that duty's application beyond park borders, for both were spelled out in Section 3(e). It is also important because it demonstrated that in certain cases the Organic Act's obligations, combined with the language in a park's enabling statute, can be real and enforceable and that the park service, at times, must take affirmative action to maintain park resources "unimpaired" in the face of a clear threat to them.

Redwood III Issue. In the third of these suits, the court determined that the specific elements of the paramount duty to act, the authorities spelled out in Section 3(e) to seek modifications of the boundary and agreements with neighboring landowners, were also the limits to that duty as an obligation. 16 In essence, the issue in this third case concerned the outer limits of park service authority:

• What additional steps, if any, could the park service be compelled to take, under the law, to protect park resources?

Ruling. The court concluded that the park service could be required to take only those steps specifically authorized by the statute. Additional ones could not be compelled.

By the time this suit was decided by the court, the park service had taken the good faith steps required by the second decision, and that having been done, the court decided it could not direct the service to do more. In effect, once the interior secretary had asked Congress for help, he was held to have complied with the court's ruling and to have fulfilled his statutory duties, notwithstanding a lack of congressional response. (The court, however, did not address the issue of whether the park service had the authority to do more had it so chosen to take action on its own.)

Thus, the Redwood suits stand for three important principles:

• The park service has, under the Organic Act (and any other directives relevant to the specific unit), "a paramount legal duty" to protect the resources of its parks from fundamental impairment.
• The actions necessary to carry out that duty may be specified by the courts. Courts will do so where Congress has written a provision enumerating the acts or standards, as in Redwood, and those actions may be given the force of a requirement by the dictates of the Organic Act. The extent to which this principle may, in practice, be applicable to other park units depends in some part on the legislation authorizing that unit. For example, in authorizing legislation for a park, Congress may have articulated what amounts to park-specific resource protection standards when it states the rationale for creating the new unit and the resources to be protected in it. Often, however, enabling legislation may be fairly general, leaving it unclear as to whether a court would find a park service obligation to prevent impairment inside park boundaries.
• Good faith efforts and relevant statutory provisions define the limits of how far a court will require the park service to go to carry out its paramount duty to prevent fundamental impairment of the parks. The extension of this obligation outside the park in the Redwood cases was defined by and limited to Section 3(e) of the Redwood Enabling Act.

ORVs in Cape Cod

Regulations concerning the use and resource impacts of off-the-road vehicles (ORVs) at Cape Cod National Seashore and other units have long been controversial. The case concerning Cape Cod in a sense summarizes the ones discussed above, as it illustrates both the extent of park service discretion and the significance of language in enabling legislation as a limit to the exercise of that discretion. Here, three New England environmental organizations challenged a management plan adopted by the park service to regulate ORV use, contending that their use was too disruptive to be allowed to continue, even under the limited conditions specified in the plan.

Issues. The case presented two key issues.

• Was the interior secretary's management plan for Cape Cod National Seashore compatible, as a factual matter, with the preservation of the seashore's ecological and physiographic condition as required by the law, embodied in the Organic Act, the enabling legislation, and various presidential executive orders on ORV use?
• Was ORV use of the seashore an "appropriate public use" under the seashore's enabling act and the executive orders on ORVs?

Ruling. On the factual question on the impact of ORVs, the court found that the ORV management plan adequately protected the ecology of the seashore. The court, however, returned the case to the park service for it to determine whether ORV use, both generally and as regulated under the plan, was an "appropriate use" of the unit. 17

The court concluded that the plan, the process and studies that went into designing it, and the subsequent monitoring of environmental effects during its implementation met the needs of resource protection. The case is noteworthy, in part, because the court placed great emphasis on the process used by the park service to support continued ORV use on the seashore, while noting the strong philosophy of protection that it found articulated in the Cape Cod enabling statute, along with the Organic Act.

The court noted that the act creating Cape Cod "gives primacy to preservation of the Seashore as it existed in 1961." It went on to conclude that, like the Seashore enabling act, the Organic Act:

emphasizes the preservation of park lands in their natural, scenic, and historic condition... . Both statutes allow for a balancing of preservation and development only to the extent that such development does not derogate from the overriding preservation mandate. Considering this strong preservation mandate and the well-recognized effects of ORV use on dune areas, the court generally upheld the park service's actions allowing ORV use in certain areas and under certain conditions based on resource management grounds. What mattered most to the court was that park service decisions were the result of carefully designed, scientifically based studies and continuing monitoring efforts. The court found a "rational basis" for the service's actions and a more thorough factual basis than the evidence presented by the outside groups challenging the service.

The court, however, faulted the Park Service for not considering whether continued ORV use was an "appropriate use" of the park and returned the case to the agency to examine the issue from this perspective. The court held that the appropriateness of ORV use in Cape Cod was called into question by both the National Seashore's own enabling act and the Organic Act. The Seashore's enabling act stated that:

. . . no development or plan for the convenience of visitors shall be undertaken therein which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing and that the Secretary may develop for appropriate public uses such portions of the seashore as he deems especially adaptable for camping, swimming, boating, sailing, hunting, fishing, the appreciation of historic sites and structures and natural features of Cape Cod, and other activities of similar nature. 18

The court contested the seashore superintendent's decision that ORVs, as a "traditional" use of the area, were necessarily "of similar nature" to the other, non-mechanized activities listed and therefore an appropriate park use: "the mere fact of traditional use should not weigh heavily in a present day determination of appropriateness." Under this case, the "paramount duty" to "leave" park resources "unimpaired" first enunciated in the Redwood cases is given substance, under the amended Organic Act, by the specific language of each park's authorization. This applies not only in terms of park resources, but also in terms of park use.19

Camping In A Park

The park service was challenged all the way to the U.S. Supreme Court over its regulations that restrict camping to designated areas only. It had granted a permit to homelessness activist Mitch Snyder's Community for Creative Non-Violence (CCNV) to demonstrate in Washington, D.C., in Lafayette Park across from the White House and on the Mall to call attention to the needs of the homeless. Yet relying on its camping regulations, the park service denied CCNV's request that demonstrators be allowed to sleep in these areas in symbolic tents. CCNV sued the park service, largely on grounds that the action violated its First Amendment rights to freedom of expression.

• Issue. Since the actions of the demonstrators previously had been held to constitute expression, the case presented a constitutional question within the context of the park service's overall authority to take action:
• Did a park service regulation prohibiting camping, except in carefully designated areas, violate the First Amendment when it was applied to prevent "Reaganville" demonstrators from sleeping in noncampmg areas in connection with a demonstration intended to call attention to the plight of the homeless?

Ruling. The court decided that the regulation limiting camping is valid and that such camping can be prohibited in this case and others, showing striking deference to the park service's judgment on "how much protection of park lands is wise and how that level of conservation is to be attained." 20

The case is noteworthy because the U.S. Supreme Court strongly endorsed park service action to protect and manage resources, even in the face of potentially restricting long-recognized constitutional rights. The court's decision largely revolved around weighing the infringement of constitutional rights-to free speech in this case--against the authority of the Park Service to manage and protect valuable public resources adequately.

Even with a constitutional question presented, the park service action (a regulation, in this case) is presumed to be authorized by statute and otherwise valid. The court found that the regulation legitimately and narrowly focused on the park service's strong interest in maintaining parks in an attractive condition. "To permit camping" the court said, "would be totally inimical to these purposes, as would be readily understood by those who have frequented the National Parks across the country and observed the unfortunate consequences of the activities of those who refuse to confine their camping to designated areas." It went on to say that:

All those who would resort to the parks must abide by otherwise valid rules for their use, just as they must observe the traffic laws, sanitation regulations, and laws to preserve the public peace.

The Courts and Activities on Private Property within Park Boundaries

What happens to park service authority under the Organic Act when it attempts to protect resources from activities on private lands within park boundaries? Have the courts permitted the park service to regulate activities on these lands when necessary to protect park resources?

Recent court interpretations have clarified park service authority to control activities on nonfederal property within park boundaries in the course of managing and protecting park resources. As a result, the service can also exercise sovereign or governmental authority over nonfederal property within its borders separate from the management decisions it makes concerning federal land. This authority over lands within park boundaries derives from two principal sources, the Cession and Property clauses of the U.S. Constitution.

Cession

One source of park service authority over nonfederal lands within park boundaries is cession--that is, the ceding (giving up) of state police power to the federal government (the park service) within park boundaries. 21 Under our federal system of government, the states traditionally have held and exercised police power over the day-to-day, private activities of most individuals' lives. (Police power is the authority to protect and promote public health, safety, and general welfare.)

The 20th century, however, has seen the federal government increasingly involved in police-power-related areas such as labor, safety, and environmental laws. 22 Once federal power is exercised (by a statutory grant of authority to a federal agency from Congress), the Supremacy Clause of the Constitution then acts to preempt any conflicting or competing exercise of state power when constitutional, federal laws conflict with state or local ones. In essence, federal laws override state and local ones when a conflict arises.

Nevertheless, as a matter of deference to states' traditional role, the park service has typically sought cessions of state police power within the boundaries of park system units after their establishment. Where such cessions are "exclusive" with the state giving up total authority within the unit's borders, the park service may exercise all powers of a sovereign state government. These powers can include zoning or any constitutionally acceptable form of land-use controls as well as more mundane regulation of motor vehicles. alcoholic beverages, and the like. As of 1988, approximately 35 of the units then in the National Park System had received a cession of exclusive jurisdiction from states.

As this number suggests, states more often choose to cede something less than exclusive jurisdiction. As a consequence, many parks operate under what is known as partial or concurrent jurisdiction, with both the park service and the applicable state-government body having specified authority over selected issues or activities.

The courts have held that states must explicitly withhold specific authorities in their cession statutes enacted for each park, if they wish to continue to exercise them. Thus, for example, in Collins v. Yosemite Park and Curry Co., California was found to have given up the power to regulate liquor use or licensing but to have retained power to extract excise taxes for liquor sales.23 More broadly, and more important, courts have decided that states' cession statutes must clearly withhold jurisdiction over private land in a park if the state does not want to cede all general legislative authority over such lands to the United states. 24

Thus, if there is either a cession of exclusive jurisdiction or a cession that fails to specify explicitly the authority retained by a state, the park service's authority over lands within park boundaries (the subject of the cession) is complete.

The Property Clause

Even if a cession is explicitly less than exclusive (that is, "partial" or "concurrent"), the park service may not be prohibited from acting with regard to privately owned land within park boundaries. In addition to having authority to act on its own, the park service may be able to supersede state law as a result of the Property Clause of the U.S. Constitution. This clause provides the clearest source of authority for the management and protection of all federal lands:

The Congress shall have the power to make all needful rules and regulations respecting the Territory or other property belonging to the United States. 25

This seemingly simple sentence enabled Congress to create many national parks in the first place and to provide for their management by a National Park Service under the Organic Act. While the park service has thus been delegated the effective power to manage the park system on a continuing basis, Congress retains the authority to make, at any time, more specific provision for the particulars of park administration in a given unit or system-wide.

Not only did the Property Clause provide the constitutional basis for enactment of the Organic Act; it also is the key to interpreting the broad mandates of this act by outlining the scope of the powers available to the park service in implementing it. Though the powers granted by the Property Clause have been clearly defined in some respects, its limits, combined with the purposes of the Organic Act, are still very much untested.

One of the earliest major cases, and still to some degree the leading case in defining the powers granted to the federal government by the property clause, is Camfield v. US., decided by the U.S. Supreme Court in 1897.26 A western landowner, whose tracts were checkerboarded with public lands, enclosed the entire area, public lands and private, with a fence located only on his own lands. In upholding the enforcement of a federal law prohibiting enclosure of the public lands, the Court decided that the Property Clause vested the federal government with power to protect the management and uses of its own lands. While the Court held that the offender's action amounted to a common law "nuisance" interference with the use and enjoyment of one's property of the sort that an ordinary landowner would have grounds for suit--it also clearly upheld the right of Congress to pass its own laws to protect federal property, even if state law was to the contrary: "A different rule would place the public domain of the United States completely at the mercy of state legislation." A more recent case involving wild roaming burros also affirmed federal authority to regulate activities on private lands in pursuit of legitimate management purposes on public lands, even where no direct damage from those private activities was alleged.

Thus, from an early stage, and recently reaffirmed by the U.S. Supreme Court, the law has been clear that "the power granted by the property clause is broad enough to reach beyond territorial limits.28 Other questions have not been answered definitively, however. For example: How far beyond such territorial limits may that power reach? What subjects may it encompass? For what protective purposes? (Such issues are explored in chapter 14.) But for regulation of actions on private (or any nonfederal) land within a unit of the park system, the leading Property Clause cases and subsequent park service management actions seem at this point to leave little doubt that park service authority is complete.

This authority was clarified in United States v. Brown, when the Federal Court of Appeals for the 8th Circuit sustained a conviction for hunting in Voyageurs National Park. 29 The defendant had claimed that, being on a lake within the park at the time, he was on state-owned waters (a fact the park service admitted) which federal regulations could not reach. The court, however, had no hesitation in affirming the basic point that the park service's prohibition on hunting even on nonfederal property within the park was "a constitutional exercise of congressional power under the property clause" and, as such, a power delegated to the park service by the Organic Act. It also expressly adopted the rationale articulated in Kleppe that such regulation could be valid not only if needed to protect the park's resources (a point established by Camfield 80 years earlier) but simply if the regulation was deemed useful "to promote the purposes" of the park.

This finding is especially important. If, to fulfill the requirements of any legitimate management purpose under the Organic Act, nonfederal land within a park must be regulated, Kleppe and Brown clearly state that the Constitution poses no obstacle. This was articulated further in the context of a case involving a Forest Service wilderness area, in which a court ruled that a federal ban on motorized craft on lands and water under state jurisdiction was permissible. In that decision, the court stated:

under this authority [the property clause to protect public land] Congress' power must extend to regulation on or off the public land that would threaten the designated purpose of federal lands. 30

Thus, in legal concept if not practical effect, the presence or absence of state cession may no longer be a relevant concern in exercising park service management authority within park borders. In practice, of course, the refusal of a state to cede police power might suggest caution, and a due awareness of political and economic concerns, in pursuing regulation of private land in a park. But it certainly should not bar such regulation where resource management needs require that it be done. 31

If there were any lingering doubts about the legal ability of the park service to impose all needful regulations within park boundaries, they were effectively put to rest by the decision in Free Enterprise Canoe Renters Association of Missouri v. Watt. 32

A group of private canoe liveries challenged the park service's power to require them to obtain concessioner's permits, arguing that their only presence within the Ozark National Scenic Riverway was to retrieve canoes using non-federal (state and private) access roads and lands. Rejecting that argument, the appellate court gave sweeping approval to park service regulation of "everything within the outer boundaries" (emphasis added) of the unit, expressly including "state and county roads." Indeed, the park service's authority to regulate nonfederal lands in a park must be taken as settled, at this point. This was the conclusion reached by the appeals court in the Free Enterprise Canoe case, which did not even see a need to cite other cases in support of the "recognized federal power to regulate nonfederal land."

CONCLUSION

The park service has been challenged during the last decade in various cases, both by those who would like greater protection of park resources and by those who view a particular decision as going too far in protecting resources. Generally courts have interpreted the Organic Act to authorize and require the protection of park natural resources.

Courts have been uniformly supportive of measures to ensure greater protection of park natural resources. In particular, courts:

• find adequate authority in the Organic Act, as amended, and various enabling laws to enable the park service to take strong actions to protect park natural resources;
• show strong deference to park service actions to protect natural resources within park boundaries, regardless of who owns the land;
• give even greater support to park service actions when they are based on well-articulated plans and studies; and
• have compelled the park service to take specific actions to protect natural resources, consistent with the mandates of enabling legislation for a particular unit.

The courts, however, have not completely defined the extent to which the Organic Act can require the park service to take action to protect natural resources, beyond that specified in relevant enabling legislation. In other words, it is not clear whether the Organic Act alone, without such park-specific legislative directives as in the case of Redwood, can be used to compel the park service to take actions to prevent impairment. 33 In the Organized Fisherman of Florida case, for example, the authority of the Organic Act alone was found to provide sufficient support for park-service-initiated action to protect Everglades fish populations by prohibiting commercial fishing in park waters. It may be that, if the park service failed to act in such a case, similar factual findings would support a legal challenge to that inaction. But the findings would have to be clear and strong to outweigh the deference normally given by courts to agency discretion.

Beyond these basic messages, court decisions-like the natural resource management actions of the park service itself-will continually define the meaning and outer limits of the Organic Act and other related laws. For the manner in which agency management discretion is exercised is, like the pressures on park resources, subject to evolutionary change over time. Because demands on park resources evolve in response to changes in society, the reconciliations made by one generation must always be reconsidered by the next.

In all likelihood, some earlier reconciliations of conflicting demands will seem surprising-or clearly inappropriate-to later observers. People today may cringe, for example, on hearing that park service staff once entertained visitors by feeding grizzly bears in sight of the dining room in Yellowstone, knowing now that these practices endangered visitors and led to difficult management choices that have come to threaten the very survival of the bears in the park. The flagstonerimmed road that entirely surrounds Crater Lake contrasts starkly with the more sensitive recent treatment of the world's tallest redwood, where the visitor drives part of the way but approaches the tree on foot.

By the same token, some of today's responses to changing demands would have been unacceptable only a few years ago. Visits to the back country in some popular wilderness areas are limited and available by advance reservation, and visitors are prohibited from using some coastal dune areas due to severe erosion problems. Similarly, controls that might not be politically acceptable today because neither the uses to be controlled nor the effects on park resources have emerged may become commonplace in the future.

During the 1960s, a consensus arising from the lessons of ecology began to alleviate the resource disruption that had previously resulted from some well-intentioned but inadequately informed interventions by park managers. Responding to increasingly sophisticated understanding and the pressures of resource scientists and conservationists, park service policy began to recognize that preservation of resources requires more respect for natural processes. Though often controversial in application, this standard represents another fundamental step in the evolution of the park ideal.

Clearly, the setting for management in the national parks has changed dramatically in the last 25 years. Not only has the National Park System expanded to include new units in more populous, growthprone areas, but development itself has moved to the very brink of formerly isolated parks. In response, both legal and administrative interpretations of the park service's Organic Act mandate have of necessity endorsed a more active stance than had previously been either acceptable or required.

The ability of the courts to support such action without major new legislation is testimony to the virtues of the Organic Act, its underlying foundation in the Property Clause, and language in specific park enabling legislation. The Organic Act is, like the Constitution, general enough to adapt to changing conditions without being vague or meaningless, and yet it is still clear enough to enunciate a lasting statement of the system's fundamental values. These qualities are essential if the park system is to survive, for they contain the promise of future adaptation to changing needs and values. Regardless of management demands, it is clear that the Organic Act will support active park service responses to protect park resources.

Key to this support will be decisions based on studies, sound research, and well-articulated policies and plans. The need for technical study and documentation is not new, but it has become much more urgent with the proliferation of pressures on park natural resources and the need for management decisions in response to such threats. Whether the park service decides to act in a particular situation and however it decides to act, the service must have both clear technical analyses assessing any relevant resource problem and an equally clear and complete record of its decision on how to address the problem. Courts repeatedly have given broad discretion to the park service in deference to its administrative expertise, but there must be evidence of that expertise in action. The ban on commercial fishing in Everglades is a primary example of well-reasoned park service decisions that courts have had little trouble supporting.

To the need for clear technical thinking must be added a responsiveness to specific statutory duties to safeguard park resources. Congress' two amendments to the Organic Act in the 1970s were an explicit directive to the park service that its "management . . . shall not compromise these resource values," that "unimpaired" was not a rhetorical flourish but a "paramount duty." The Organic Act thus not only empowers but also inspires the National Park Service to be a steadfast and active guardian of park resources.

REFERENCES

1. 16 U.S.C. 1 et seq., (1988).

2. General Authorities Act, 16 U.S.C. 1a-1(1988).

3. 16 U.S.C. 1c. (1988).

4. Redwood National Park Expansion Act Sec lOl(b), P.L.95-250, 16 U.S.C. 1a-1.

5. Sierra Club v. Andrus, 487 F. Supp. 443 (D. D.C. 1986), quoting S. Rep. No. 95-528, 95 Cong. Ist Sess. 9 (Oct. 21, 1977).

6. H. Rep. No. 95-581, p. 21.

7. The Conservation Foundation, State of the Environment: A View toward the Nineties (Washington, D.C.: The Conservation Foundation, 1987), p. 286.

8. See Rolf Diamant, J. Glen Eugster, and Christopher J. Duerksen, A Citizen's Guide to River Conservation (Washington, D.C.: The Conservation Foundation, 1984).

9. The Conservation Foundation, State of the Environment: A View toward the Nineties, p. 286.

10. 16 U.S.C. •3.

11. 590 F. Supp. 805 (S.D. Fla. 1984); affirmed, 775 F. 2d 1544 (11th Cir. 1985).

12. 628 F. Supp. 903 (D.D.C. 1986).

13. See, for example, Alfred Runte, National Parks The American Experience (Lincoln, Neb.: University of Nebraska Press, 1979); and Joseph L. Sax, "Buying Scenery: Land Acquisition for the National Parks" Duke Law Journal (1980):709, 712.

14. 376 F. Supp. 90 (N.D. Calif. 1974).

15. 398 F. Supp. 284 (N.D. Calif. 1975).

16. 424 F. Supp. 172 (N.D. Calif. 1976).

17. Conservation Law Foundation v. Clark, 590 F. Supp. 1467 (D. Mass. 1984).

18. 16 U.S.C. 459b-6(b)(1) (1984).

19. The issue of appropriate use of parks is more fully addressed in chapter 14.

20. 468 U.S. 288 (1984).

21. Article I, Section 8, Clause 17.

22. Federal authority to act has come largely from the Commerce Clause of the U.S. Constitution, with promoting the flow of interstate commerce as the primary rational for such legislation.

23. 304 U.S. 518 (1938).

24. See Joseph L. Sax,"Helpless Giants: The National Parks and the Regulation of Private Lands ' Michigan Law Review 75 (1976):246, N. 43.

25. Article IV, Section 3, Clause 2.

26. 167 U.S. 518 (1897).

27. Kleppe v. New Mexico, 426 U.S. 529 (1976)

28. Ibid.

29. 552 F.2d 817 (8th Cir. 1977).

30. State of Minnesota by Alexander. Block, 660 F.2d 1240, 1249 (8th Cir.1981).

31. See, US. v. Moore, 640 F. Supp. 164 (S.D. W.Va., 1986), where a federal court ruled that the Property Clause required the state of West Virginia to get a park service permit to spray pesticide within the New River Gorge National River, irrespective of the cession agreement and the fact that the service did not own the land within the authorized boundary of the area.

32. 711 F.2d 852 (8th Cir. 1983).

33. The most recent case on this issue involved a challenge by the National Wildlife Federation to the park services' decision to keep the Fishing Bridge campground in Yellowstone open, pending completion of an environmental impact statement. The court ruled that the Organic Act, absent specific enabling act language in this case, gave the park service discretion to decide what was in the best interest of the park and refused to compel the service to close the campground. National Wildlife Federation v. National Park Service, 669 F. Supp. 384 (D. Wyo. 1987).

Source citation:

Mantell, M. A., and P. C. Metzgar. 1990. The Organic Act and the Stewardship of Resources within Park Boundaries. Chapter 2 in M. A. Mantell, ed. Managing the National Park System: A Handbook of Legal Duties, Opportunities, and Tools. The Conservation Foundation, Washington, D. C.