Senator Craig Thomas
Senator Craig Thomas — Opening Statement
Oversight Hearing on
National Park Service Management Policies
Subcommittee on National Parks
Tuesday, November 1st , 2005
Good morning. I want to welcome our witnesses to today’s Subcommittee Hearing.
Our purpose for this hearing is to review the National Park Service’s proposed management policies including potential impact of the policies on park operations, park resources, interaction with gateway communities, solicitation and collection of donations, and revised manager hiring practices.
National Parks are special places that symbolize the American spirit. Each park was established by Congress for a specific purpose and must be managed to sustain that purpose. The management policies we are here to discuss are intended to guide employees as they seek to maintain the resources for current and future public enjoyment.
We were all reminded of the public interest in National Parks when people were made aware of plans to revise the management policies. Some overreacted by concluding that an internal working document was destined for implementation. We now know that it is a work in progress.
I would like to commend Steve Martin and the members of the National Park Service policy development team for being responsive to public concerns. The purpose of this hearing is to continue to obtain public input and to ensure the National Park Service is well-informed as they complete the document.
Again, I’d like to thank all of the witnesses for being here today. I look forward to hearing the testimony being presented.
Witness Panel 1
Mr. Steve MartinDeputy DirectorNational Park Service
STATEMENT OF STEPHEN P. MARTIN, DEPUTY DIRECTOR, NATIONAL PARK SERVICE BEFORE THE SUBCOMMITTEE ON NATIONAL PARKS, SENATE COMMITTEE ON ENERGY AND NATURAL RESOUCES, CONCERNING THE NATIONAL PARK SERVICE DRAFT MANAGEMENT POLICIES, INCLUDING POTENTIAL IMPACT OF THE POLICIES ON PARK OPERATIONS, PARK RESOURCES, INTERACTION WITH GATEWAY COMMUNTIES AND SOLICITATION AND COLLECTION OF DONATIONS.
NOVEMBER 1, 2005
Mr. Chairman, thank you for the opportunity to appear before your subcommittee at this oversight hearing on recent draft revisions to the National Park Service (NPS) Management Policies.
The NPS Management Policies provide guidance for managing the National Park System and offer the public an understanding of our management practices and goals. These policies are based on laws, Executive orders, proclamations, and regulations that govern NPS as well as departmental policies and longstanding NPS practices. This document, like the Management Policies that have preceded it, pursues the highest standard of conservation and enjoyment of our 388 park units, which now welcome over 287 million visitors a year.
The current draft document strengthens the guidance to park managers in order to ensure that there is an unequivocal commitment to the fundamental purpose of the National Park System, as set out in the NPS Organic Act of 1916, “to conserve the scenery and the natural and historic objects 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.”
The overarching message of this draft document is to continue improving how we manage parks “to protect park resources and values to ensure that these resources and values are maintained in as good or better condition for the enjoyment of present and future generations.” Toward this end, we allow and welcome the appropriate use of parks. While we may quote particular sentences from the revised Management Policies to emphasize certain points, the document is designed to be used by managers, as a whole, to implement the mission of the NPS to protect, conserve and provide for the enjoyment of this nation’s incredible cultural and natural heritage. If something in this draft document seems inconsistent with that goal, we will certainly address it.
These new draft policies maintain our strong commitment to the fundamental mission of the NPS to protect and allow for appropriate enjoyment of the parks. The policies clearly underscore that when there is a conflict between use and conservation, the protection of the resources will be predominant. For example, the draft states that “when there are concerns as to whether an activity or action will cause impairment the Service will protect the resources,” and it also states that “when proposed park uses and the protection of park resources come into conflict, park managers are obligated to ensure that the purposes for which the park was created are not diminished.” This is logical because inspiration and enjoyment cannot occur without the preservation of the resources.
The revision defines and welcomes “appropriate uses” and establishes a clear process for managers to use to determine what are appropriate uses. Appropriate uses are defined as “a use that is suitable, proper or fitting for a particular park, or to a particular location within a park.” This definition rests within the broader park system mission mentioned above of conserving park resources and values while providing for their enjoyment so as to leave them unimpaired for the enjoyment of future generations.
The question that has been asked about this revision is “why now?” The answer is simple, yet multi-faceted. The world is changing, and we continue to strive for excellence. Excellence means improving our guidance on not only preventing impairment but on preventing “unacceptable impacts” to ensure that impairment will not be reached. Excellence means increasing the understanding of “appropriate use” and making certain that this component of the fundamental mission is not overlooked. Excellence means keeping the key management decisions in the hands of the managers by better defining “professional judgment.”
Another answer to the “Why now?” question is that the existing management policies do not address “management excellence” and “sustainability” with clarity. We face an evolving context of new technologies, new homeland security challenges, and public demands for efficient and transparent management practices that affect our stewardship responsibilities. The NPS must keep pace with these changes. With changing demographics and with the ever increasing importance of our NPS stewardship, cooperative conservation, civic engagement and 21st century relevance are critical. One final answer to the “why now?” question is that some members of Congress have also expressed an interest in seeing the NPS review its policies.
Revised and improved policies are also needed because managers face continuing challenges as we preserve the parks while striving to serve our visitors and partner with our local communities. Every day, without fail, we are tested when we make decisions on what to do or what not to do; what to build or what not to build; what to allow or what not to allow. From these challenges we learn and improve our practices.
The men and women who manage our parks are some of the best in government. We ask a lot of them and they deserve good guidance. The courts have recognized that the NPS Organic Act confers on the NPS broad discretion to manage the National Park System and have left to its expertise the determination of the best approaches to achieving the Organic Act’s mandate. Within the parameters of the Organic Act’s “fundamental purpose,” the courts have recognized that NPS may balance resource conservation and visitor enjoyment in determining where and when activities are appropriate in park areas.
The ability of an agency to remain healthy and sustainable over time lies with its willingness to honestly examine its own management practices and update them periodically to more efficiently and effectively fulfill the underlying mission. To this end, the NPS held a series of meetings with field professionals and Department of the Interior officials over the last few months. More than 100 key professional staff have worked on the document, including all of the NPS career national leadership team, many field and program managers, and the National Wilderness Steering Committee. The revised management policies, now available for public review, recognize new challenges facing the NPS, such as homeland security and greater accountability and transparency, and incorporate advancements in technology with management tools such as Facility Condition Index. The revised policies also bring existing guidance up to date with new laws such as those related to fees; new Executive Orders such as “Preserve America” and “Facilitating Cooperative Conservation”; new Director’s Order #75A: Civic Engagement; and new initiatives such as the “NPS Legacy Initiative: Doing Business in the 21st Century”; and the Secretary of the Interior’s “4C’s of communication, cooperation, and consultation, all in the service of conservation.”
The NPS Management Policies have traditionally served as the foundation for day-to-day park management decisions. For that reason, it is of paramount importance that the Management Policies provide clear and useable guidance that encourages consistency across the National Park System while celebrating the unique aspects of individual park units. In the draft Management Policies, managers will find detailed definitions of key management terms, enabling them to more clearly anticipate how resources can best be conserved while providing a positive visitor experience. These definitions ensure that park managers will always seek ways to avoid or minimize to the greatest extent practicable, adverse impacts on park resources and values.
In this draft, managers are given guidance on the NPS decision-making procedures. This includes engaging the public and using the best scientific information available when parks are planning for facilities or activities. This concept is further clarified by setting forth a list of criteria that park managers must apply, using their professional judgment, to determine what uses are appropriate in a particular park. Such criteria include, among others, ensuring that uses do not cause unacceptable impacts, create an unsafe or unhealthful environment for visitors or employees, or result in significant conflict with other appropriate uses. For example, in applying the criteria, a park manager may determine initially that a proposed activity would “result in significant conflict with other appropriate uses” and must therefore be disallowed. However, by applying a more sophisticated planning process, the manager may conclude that even small adjustments in the time or location of activities can avoid or adequately mitigate the conflict. The revised policies encourage this kind of forward-thinking management.
Another term of critical importance to park managers is impairment. The impairment standard comes from the most important statutory directives for the NPS, the NPS Organic Act of 1916 and the General Authorities of 1970, as amended. The revised Management Policies rectify an apparent inconsistency in the definition of impairment between the glossary and chapter one of the 2001 Management Policies. The draft Management Policies maintain a firm commitment to not only protect park resources and values from impairment but also to leave them in as good or better condition then they currently exist. They further describe the manager’s responsibility to incorporate civic engagement, the best available scientific, scholarly, and technical information to ensure that parks are managed for appropriate use and to prevent impacts from ever reaching the level of impairment.
The revised policies place a new emphasis on management excellence in other areas, as well. One of the most important of our new initiatives, the NPS Legacy Initiative, sets goals and objectives for management excellence, sustainability, conservation, outdoor recreation, and 21st century relevancy. These goals, as incorporated into the revised policies, will direct efforts toward areas of vital importance to the fulfillment of our mission. The revised policies have been updated by taking into account changing demographics, improving technology, new ways to enjoy parks, and better science to inform decision-making. Better baseline data on resource conditions, an improved understanding of the interrelationships within ecosystems, the use of best available technology, the application of adaptive management, and the practice of cooperative conservation may allow new uses and result in greater enjoyment, with reduced visitor use conflicts, while maintaining high conservation standards and leaving the resources in as good, or better, condition for the enjoyment of future generations.
In addition to improving the internal processes used by park managers, the revised policies recognize the benefits of external relationships, particularly in regard to partnerships and other collaborative activities. The NPS commitment to civic engagement is founded on the central principle that preservation of the nation’s heritage resources relies on continued collaborative relationships between the NPS and American society. The revised policies reflect a renewed commitment to civic engagement, and collaboration with states, communities, and tribes through effective consultation, participation, and the use of science in key decision-making processes. The revised policies incorporate the guidance published in NPS Director’s Order #75A: Civic Engagement and strengthen our commitment to effective public involvement. For the NPS, true civic engagement is an institutional responsibility to actively involve communities in our mission. In the revised policies, inclusive and collaborative public participation will be emphasized in the planning process, and in interpretive and educational programming. By enhancing the NPS focus on partnering with communities and neighbors, we intend to ensure that sites representing the fullness of the American experience are preserved.
National park units conserve our national treasures, and it is these unique settings that draw millions of visitors to enjoy these special places. One result of this high demand is that, at times, the NPS must make decisions that are not popular with every group and every individual. Simply put, the national parks cannot accommodate everyone’s wants and needs. However, we have nearly 300 million satisfied customers each year who tell us that our decisions are most often the right ones. The NPS will work hard to maintain this high level of customer satisfaction. In addition, our partners at the state, local, and private levels also provide a wide array of opportunities for the public to enjoy the activities that cannot be accommodated in the national parks. The NPS is committed to working closely with these partners in a coordinated effort to meet the nation’s needs for healthy and enjoyable recreational opportunities. The revised policies will incorporate forward-thinking, Servicewide initiatives to ensure the continued fulfillment of the mission as entrusted to us in the Organic Act of 1916.
In summary, the Organic Act continues to guide virtually all of our management actions. It creates a single NPS mission with several components, including that future generations will be able to enjoy National Park System resources only if we successfully conserve them and protect them from impairment. We think this makes good sense. In 1925, Stephen T. Mather, the first Director of the NPS agreed by saying, “The primary duty of the National Park Service is to protect the national parks and national monuments under its jurisdiction and keep them as nearly in their natural state as this can be done in view of the fact that access to them must be provided in order that they may be used and enjoyed.” By managing park resources wisely, by evolving and adapting our policies to keep the parks relevant to the public we serve, we ensure that future generations will have the same opportunities for enjoyment of park resources that we have today.
The revised management policies focus on the protection of park resources and provide a clear reflection of the agency’s longstanding commitment to public enjoyment. The proposed areas of change will improve the way parks are managed, conserved, and enjoyed for the benefit of present and future generations.
That concludes my statement, and I will be happy to answer any questions you or other members of the subcommittee may have.
Mr. Don CastleberryFormer Midwest Regional DirectorNational Park Service (Retired)
STATEMENT OF DON H. CASTLEBERRY, MEMBER, EXECUTIVE COUNCIL, COALITION OF NATIONAL PARK SERVICE RETIREES, FORMER DIRECTOR, MIDWEST REGION, NATIONAL PARK SERVICE
SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES
SUBCOMMITTEE ON NATIONAL PARKS
OVERSIGHT HEARING ON PROPOSED MODIFICATIONS TO
MANAGEMENT POLICIES OF THE NATIONAL PARK SERVICE
NOVEMBER 1, 2005
Mr. Chairman and members of the Subcommittee, my name is Don Castleberry. Thank you for holding this hearing on a subject so vital to our nation, and thank you for allowing me to express these views. I had the privilege of a 32-year career in the National Park Service, during which I held such positions as Park Ranger, Park Manager (of five different parks), Deputy Director, Mid-Atlantic Region, Director, Midwest Region and (acting) Associate Director- Operations, in Washington. I served six years as member, Board of Trustees, National Parks Conservation Association and am now a member of the Executive Council, Coalition of National Park Service Retirees.
The Coalition of National Park Service Retirees is over 430 individuals, all former employees of the National Park Service, with more joining us almost daily. Together we bring to this hearing more than 12,000 years of experience. Many of us were senior leaders and many received awards for stewardship of our country’s natural and cultural resources. As rangers, executives, park managers, biologists, historians, interpreters, planners and specialists in other disciplines, we devoted our professional lives to maintaining and protecting the National Parks for the benefit of all Americans-those now living and those yet to be born. In our personal lives we come from a broad spectrum of political affiliations and we count among our members, five former Directors or Deputy Directors of the National Park Service, twenty-three former Regional Directors, or Deputy Regional Directors, twenty-seven former Associate or Assistant Directors and one hundred and eight former Park Superintendents or Assistant Superintendents.
The proposed changes to National Park Management Policies provide one of the clearest examples of why this coalition, which never seemed necessary until two and a half years ago, has come together. Believe me, there are few among us who would not prefer to be writing our books, tending our roses, enjoying grandchildren, or volunteering at a National Park. We have coalesced because this is a critical time for the treasures to which we devoted our careers. It is a time when this nation may decide whether to retain the benefits of victories painfully won over 130 years of National Park history or to risk losing them to narrow, short-term, and private interests.
The parks are often called national treasures—the crown jewels of our republic—but they are far more than that. They are repositories of information against which human progress—or its opposite—can be gauged. They are touchstones of who we are as a people and even as members of the human race. They are the best hope for preserving the cultural record that defines American civilization and the biological diversity upon which life itself depends. For evidence that the people of the United States know this, simply recall the times a few years back when the Federal government was shut down due to budget disputes. Network news explained the meaning of that crisis to ordinary citizens by answering just four fundamental questions:
- will the nation be defended
- will the Social Security checks be issued
- will the mail be delivered, and
- will the National Parks be open?
Congress, in its Act of August 25, 1916 created the National Park Service and charged it with a duty to provide for enjoyment of the parks “in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” If that left doubt of Congressional intent, the Redwoods Act Amendments of 1978 clarified that when use conflicts with preservation for future generations, preservation must prevail. Since 1916 nine Republican and seven Democratic administrations have followed these directions in reasonably consistent and evenhanded ways. Management Policies of the National Park Service, through which law is applied in detailed and specific ways to what actually happens in the parks, have been revised occasionally, although not frequently, the last two times in 1988 and 2001.
The draft of proposed Management Policies of the National Park Service that was released for comment on October 19, like its earlier version—Deputy Assistant Secretary Paul Hoffman’s rewrite that became public information in August—is a drastic and dangerous departure from a longstanding national consensus. It is driven neither by law, by any conservation need, or by any failure of practical application. Little has changed since the present Policies became effective only four years ago.
The Department of Interior has suggested that the present policies need improvement, but section 184.108.40.206 provides abundant evidence that improvement is not the goal of these proposed revisions. That section, dealing with access to and use of cultural resources, in both the present policies and the proposed revision, contains the statement: “These regulations are currently under review, and NPS policy is evolving in this area.” If improvement of policy were really the goal, this nearly four-year-old statement surely would by now have been supplanted by some actual new policy.
If improvement cannot be demonstrated as the goal, one must conclude that the motivation stems from the personal agendas of a few nearly anonymous appointees in the Department of Interior who know that they could not achieve the same goals by asking the Congress to change the laws.
This is the first time since Assistant Director Tolson started writing administrative policies back in the 1940’s that superintendents and their staffs have not been included in any proposed re-writes of such policy documents. Under the new process the vast majority of superintendents and staff members only input into the proposed revisions would be to comment, as members of the general public, after the policies have been developed.
During this past summer, Deputy Assistant Secretary Paul Hoffman labored quietly to create a draft of Management Policy revisions, carefully limiting knowledge of his work to a small number of others and forbidding them to share it broadly.
Since the need for a revised policy did not originate from NPS career employees, nor from the visiting public, a reasonable question emerges, as to its origin. When asked, the political employee, Mr. Hoffman declined to identify anyone who had urged the changes.
After Hoffman’s disastrous proposals were exposed in August, public reaction was so powerful that the Department of the Interior quickly disavowed them, calling the draft “devil’s advocacy,” and “intended to promote discussion.”
Aside from noting that the national parks are more in need of the advocacy of an angel than of a devil, one can only wonder how much real discussion might be generated by a draft passed hand to hand among a gagged and silent few.
In a chilling parallel action, new personnel policies, instituted by the NPS director, subject career employees to a “litmus test” of loyalty to this administration’s political objectives, as a condition for promotion, further limiting candid input from knowledgeable professionals.
One also might ask “what is the rush?” Why a 90 day process when in the past, such efforts could take years, and involve a wide range of NPS employees, in an open, participatory process. With rushing can come mistakes. In matters of such overriding importance, should not the guiding principle be “first do no harm?”
The next step of an appointee who had been embarrassed by exposure but who remained determined to have his way was entirely predictable, he would assemble a group of National Park Service professionals, dictate the goals of changes to be made, direct them to find language that the public would accept but that would still achieve the goals, and require them to come back and negotiate even the palliative language with him. That, Mr. Chairman, is what we are reviewing today. Although the October draft is being attributed to 100 National Park Service employees, it is in fact the Hoffman draft, forcibly and uncomfortably dressed in a rumpled and ill-fitting Ranger uniform.
Although entire sections, such as the ones dealing with wilderness and grazing, still look much like the Hoffman draft, for the most part the October draft simply uses softer language to make the same changes.
1. The Hoffman policies deleted from section 1.4.3 include two critically important policy directives from congress that are included in the existing 2001 policies:
Present Park Service policies deleted by Hoffman: “Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant.”
(This mandate) –“is independent of the separate prohibition on impairment, and so applies all the time, with respect to all park resources and values, even when there is no risk that any parks resources and values may be impaired.”
From the 1916 Organic Act of Congress creating the National Park Service: “The – National Park Service – shall promote and regulate the use – of national parks – as provided by law, by such means and measures as conform to the fundamental purpose to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment for the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”
A 1978 act of congress further emphasized preservation in the Redwoods Amendment “Congress further reaffirms, declares and directs the promotion and regulation of various areas of the National Park System –shall be consistent with and founded in the purpose established by the first section of the Act of August 25, 1916, to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these area 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 by congress.”
The effect of the Hoffman deletion of these two paragraphs deletes the clear mandate of congress in the management of national parks that the primary purpose of managing parks is preservation of the resources.
2. A specific application of the Hoffman changes that weaken the Park Service mandate to preserve resources includes this change to planning for cultural resources.
Present Park Service management policies direct park planners to “always seek to avoid harm to cultural resources.” The Hoffman rewrite directs park planners to “always seek to avoid ‘unacceptable’ harm to cultural resources.”
The effect of this Hoffman rewrite is to direct that there is acceptable harm to cultural resources, in direct conflict with current policies that direct planners to always seek to avoid harm.
3. A Hoffman deletion allows visitor activities to degrade the experience of other visitors to the park.
Present Park Service management policy deleted by Hoffman: “the Service will not allow visitors to conduct activities that unreasonably interfere with –the atmosphere of peace and tranquility, or the natural soundscape maintained in wilderness and natural, historic or commemorative locations within the park.”
The effect of the Hoffman deletion allows uses by some visitors to unreasonably interfere with the experience of the park by other visitors.
4. The Hoffman rewrite weakens the protection of natural soundscapes in a park:
Present Park Service management policy deleted by Hoffman: “The National Park Service will preserve to the greatest extent possible, the natural soundscapes of parks.”
The Hoffman rewrite adds: “The National Park Service will restore degraded soundscapes wherever practicable and will protect natural soundscapes from degradation due to unacceptable noise.”
The effect of the Hoffman deletion and change requires the park to determine what is unacceptable noise, and practicable restoration, rather than a simple directive to preserve the natural landscape.
5. The Hoffman rewrite deleted a clear direction on use of equipment, vehicles and transportation systems.
Present Park Service policies deleted by the Hoffman rewrite: “Use of motorized equipment: where such use is necessary and appropriate, the least impacting equipment, vehicles, and transportation systems should be used.”
The effect of this Hoffman deletion removes the direction to use the least impacting equipment in a park including all vehicles and transportation systems.
6. Strong words that require “preservation” of resources have either been adjoined to or supplanted by weaker words like “conservation,” or diluted by adding “as appropriate.”
7. Previously clear sentences have been replaced by vague language that will be more subject to error or challenge in court.
8. Present Management Policies provide examples that help a park manager identify “traditionally associated peoples” such as tribal groups. The proposed draft replaces the examples with fuzzy guidance that might place a gateway city’s chamber of commerce on an equal footing with native peoples who have occupied a park’s lands since time immemorial.
9. New requirements to “cooperate” with outside groups, in lieu of present requirement to “collaborate,” threaten a park manager’s ability to protect park resources on behalf of all the people of the United States when a small number of park neighbors have different ideas.
In not one single instance does a proposed change increase the likelihood of park natural or cultural resources being preserved unimpaired, but they do significantly decrease THAT likelihood.
Former Director Roger Kennedy has accurately identified the Hoffman strategy. The August draft threatened to take off a leg. The October draft says “no, no, we will only take off a foot,” and hopes we will be relieved and grateful at the somewhat diminished harm. It was the bitter duty of the career National Park Service employees to whom the Department of Interior is now attributing this draft to diminish the severity of the amputation. They did the best they could, but harm has only been diminished or masked, not eliminated. Fortunately, there are over 430 National Park Service retirees whose jobs are not at risk, and we can say what the career employees cannot—that there is NO need for any amputation at all, and any amputation is unacceptable.
Mr. Chairman, the Coalition of National Park Service Retirees challenges the Department of the Interior to explain why this revision is needed. The public certainly did not ask for it—95percent of American park visitors rate their visits good to excellent. Perhaps the Department, instead of telling us that 100 National Park Service employees worked on the draft could tell us what percentage of National Park Service career professionals believes the October proposal is actually needed—specifically whether it is better or worse than the policies now in effect. We have been there and we know the answers—they are not needed and they are not only worse than the present policies but if adopted they will place the heritage of all Americans in extreme jeopardy.
Thank you for allowing this testimony, thank you for your continued vigilance on behalf of the national parks, and thank you for the actions you will take to assure that they can continue to be enjoyed by this and all future generations in unimpaired condition.
I will be happy to answer any questions.
Mr. Denis GalvinFormer Deputy DirectorNational Park Service
TESTIMONY OF DENIS GALVIN
DEPUTY DIRECTOR, NATIONAL PARK SERVICE (RETIRED)
ON BEHALF OF
BOARD OF TRUSTEES, NATIONAL PARKS CONSERVATION ASSOCIATION
BEFORE THE SENATE SUBCOMMITTEE ON NATIONAL PARKS
NOVEMBER 1, 2005
Mr. Chairman, and other distinguished Members of the Subcommittee; it is a pleasure to be back before this Subcommittee again. I recently retired from the National Park Service after a 38-year career, during which I served as, among other positions, park engineer, manager of the professional architecture and design center, associate director, and deputy director. I have actively participated, as a career professional, in the agency’s interpretation and implementation of the 1916 NPS Organic Act, and all of the other laws given to the NPS to carry out, at the field, regional, and headquarters levels on a day-to-day basis for more than three decades, including development of the 1988, and 2001 editions of NPS Management Policies, the official manual that guides the agency’s day-to-day work under these laws.
As is valid for all public laws and all public agencies, it is appropriate for this Subcommittee to exercise its oversight responsibilities to periodically assess how the National Park Service is doing in carrying out the statutory mandates that it has been given by the Congress and Presidents, and NPCA is pleased to play a role in supporting that effort on your part. We welcome your oversight, but strongly believe that the Administration has shown NO need for the broad and comprehensive changes that they propose to make in NPS Management Policies.
NPS is On Target Under the Law, But Losing Ground
The fundamental re-interpretation of the Organic Act that is being proposed in the rewrite of the Management Policies does not make it a better document for agency manager’s guidance. In fact, the proposed changes would remove the clear guidance of the 2001 edition, and replace it with muddy, unclear, and too-broad discretion left to NPS managers and Administration appointees, to judge what is and is not appropriate use of the national parks. A clear service-wide standard for day-to-day management decision-making is proposed to be replaced with a much broader range of choices.
There is clearly NO need to amend the NPS Organic Act, or any of the other laws governing how our national parks are intended to be managed. The Organic Act has endured soundly for 90 years, and will probably be good for another 90 years, at least.
Likewise, there is NO need to re-write Management Policies. For those narrow subjects that the Administration has asserted were not addressed in the 2001 edition (homeland security, cell towers, succession planning, etc,) the issuance of specific Director’s Orders is the operative process already in place to take care of it.
What is needed is for the broad constituency of interests that are engaged with the National Park Service– recreation, tourism, gateway communities, conservation, preservation, and regular “good citizens” – to step up their support for their national parks as they are, and as they are intended to be, preserved unimpaired for future generations to enjoy. Special interests must give way to the national interest if the national parks are to flourish in the future.
In 1918, Secretary of Interior Franklin Lane articulated the core management policy for the NPS, which endures today, “First, that the national parks must be maintained in absolutely unimpaired form for the use of future generations as well as those of our time; second, that they are set apart for the use, observation, health, and pleasure of the people; and third, that the national interest must dictate all decisions affecting public or private enterprise in the parks.”
The Threat of Generica
At the White House Tourism Conference here in Washington D.C. several weeks ago, attended by invited state delegates and key tourism industry leaders from all 50 states, the opening day keynote speaker said that the greatest threat to American tourism is the “Threat of Generica” – the homogenization of natural and cultural landscapes across the Nation by commercialization. Another major speaker said that the counter force to the threat of generica is “geo-tourism” – more than eco- or sustainable-tourism, this new philosophy being adopted and embraced by the tourism industry itself, calls for sustaining the real places in America, retaining, restoring and sustaining the geographical character and integrity of a place. That is what will continue to draw tourists – and the units of the National Park System are already the very core, the essence, of this geo-tourism. The national parks can, if adequately funded and staffed, continue to lead this economic engine for America into the future.
For high quality tourism to be sustained in America, already the second or third largest economic driver in the USA, nothing is more important that preserving the unique natural and cultural places that make up the National Park System, unimpaired.
Nearly 300 million people visited the parks last year, and we know from surveys that they “enjoyed” them. NPS concessionaires grossed over $1 Billion in 2004; surrounding gateway communities and businesses grossed over another $11 Billion attributable to national park visitors. Despite this, there are those who suggest that NPS management of the parks it TOO RESTRICTIVE, or that the parks are LOCKED UP, or lack ACCESS. Nothing could be further from the truth.
Nevertheless, some want to engage in thrill-type recreation activities, mostly in various types of motorized vehicles, in the national parks. Some (but far from all) park gateway communities complain that they could draw in more tourists if the NPS were “less restrictive” of various uses. These types of demands would seek to kill the goose that lays the golden egg, and must be rejected or ignored.
The national parks do not have to sustain all recreation; that is why we have various other federal, state, local, and private recreation providers to share the demand, and to provide for those types of recreation that generally do not belong in the national parks, or that must be carefully limited. The 1916 NPS Organic Act, emphasizing conservation for future generations, is substantially different from the organic laws of the Bureau of Land Management, the US Forest Service, the US Fish and Wildlife Service, the Army Corps of Engineers, or any other federal agency. The NPS mission is also different from that of state park agencies, or of county or city park agencies. Together, these agencies provide for many forms of public recreation – but not all forms of recreation are appropriate in national parks.
Balancing Use with Preservation in Day-to-Day Management of National Parks
Over the 90 years history of the NPS, there has been much debate over whether the NPS is achieving the proper balance between uses of the parks for today, and conserving them unimpaired for future generations. These conflicts usually erupt over day-to-day management of particular parks, and the decisions that the NPS makes as it goes through periodic management planning. It is crucial to this discussion, however, to note that there is no credible debate over whether parks should be used by the American people, the debate centers on how the use occurs, or sometimes when or where.
• The snowmobile controversy in Yellowstone would be far less significant if there were no impacts on wintering bison and trumpeter swans;
• The off-road vehicle debate at Cape Hatteras would be moderated if there were no impacts on breeding birds, or if more of the beaches were limited to pedestrian use;
• Shenandoah National Park staff could be less involved with opposition to adjacent power plants if emission controls under the Clean Air Act were being enforced at a higher standard, and if the scenic vistas from the park’s overlooks were as clear as they were 50 years ago;
• NPS staff at Mojave National Preserve, where hunting is allowed by law, oppose the artificial wildlife watering holes, known as guzzlers, not because they oppose hunting, but because these devices dry up the natural springs at higher elevations, and concentrate wildlife unnaturally, exposing them as easier targets to both natural and human hunters;
• Professional NPS staff at Glacier Bay National Park limit the number of cruise ships allowed in the park at a time, both due to impacts on whales and other wildlife, and to maintain the quality of the visitor experience, both for cruise ship passengers and other park boaters;
• The buildings and associated utility lines for the Giant Forest Lodge in Sequoia National Park were killing the big trees, so NPS had them removed, and had its concessions partner, Delaware North, build a brand new lodge in a better location, still serving the visitors, but without impact to the giant Sequoias.
For the NPS professionals, conserving the parks unimpaired for future generations is synonymous with offering park visitors today a high quality experience. Scenic vistas should be clear, natural sounds should dominate over man-made noises, native wildlife should be abundant and visible for visitors, historic sites such as battlefields should look like they did when the historic events occurred, park visitor facilities should not be located so as to disturb the natural scene or the cultural landscape.
Viable alternatives to expanded use and commercial development in parks should be provided outside the parks, on other public lands, or in gateway communities. Natural and cultural resources of the units of the National Park System must be maintained and in some cases improved. Preservation is the key to continued success of the NPS in fulfilling its statutory mandate, and also to sustaining the core destinations that fuel the tourism industry.
Interpreting the NPS Organic Act
It is the task of professional NPS managers, through the public process, to determine what is appropriate and what is not in the National Park System units. The “litmus” test for distinguishing between the permissible and the impermissible begins with the 1916 NPS Organic Act itself, and the key statutory provision that states that:
“(The National Park Service) shall 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 fundamental purpose of the said parks, monuments and reservations, which purpose is 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 manner and by such means as will leave them unimpaired for the enjoyment of future generations.”
Simply put, the NPS Mission is to provide for enjoyment of the parks in a manner that leave them unimpaired. Uses that impair the parks are illegal. Giving a precise definition to the term “impairment” is the job of the NPS career managers who are charged with implementation. In addition, federal courts have also rendered opinions that interpret the “impairment” provisions, and in every case, have agreed with the current interpretation.
Congress has clarified its intent in statutory use of the term “impairment” only once, in the 1978 amendment to the NPS General Authorities Act, which states that
“Congress declares that the national park system, which began with establishment of Yellowstone National Park in 1872, has since grown to include superlative natural, historic, and recreation areas in every major region of the United States, its territories and island possessions; that these 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; that, individually and collectively, these areas derive increased national dignity and recognition of their superb environmental quality through their inclusion jointly with each other in one national park system preserved and managed for the benefit and inspiration of all the people of the United States; 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. Congress further reaffirms, declares, and directs that the promotion
and regulation of the various areas of the National Park System, as defined in section 2 of this Act, shall be consistent with and founded in the purpose established by the first section of the Act of August 25, 1916 to the common benefit of all the people of the United States. 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 by Congress.”
Current NPS policy is to interpret the 1916 “non-impairment” standard, and the 1978 “non-derogation” standard as having the same meaning and intent. That little has changed since the NPS was established and given the task of managing the national parks can be seen in the similarities between the first NPS policy statement interpreting the Organic Act, which stated that:
“Every activity of the Service is subordinate to the duties imposed upon it to faithfully preserve the parks for posterity in essentially their natural state,”
and the language from the 1978 Senate Committee Report on the General Authorities Act amendment that stated that:
“The Secretary has the 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.”
In the concluding paragraph to “The National Park Service Act of 1916: A Contradictory Mandate?” the late Dr. Robin Winks, Yale History Dean and former Chairman of both the National Park System Advisory Board and NPCA Board of Trustees, clearly articulates his conclusion that there is no contradiction in the clear intent of Congress in the 1916 Act, and that resource preservation trumps access and use when the two conflict in the determination of the professional managers of the parks.
“Arguably the intent of Congress with respect to any single act cannot be perfectly divined or proven. The intent of Congress across a number of related acts, and as adumbrated by other acts that bear upon the related group, may more nearly be understood. The paper has attempted to judge that intent. It has argued that the language contained in the preamble to the National Park Service Act of 1916 is not, in fact, contradictory; and that Congress did not regard it as contradictory…. Further, it is argued that subsequent legislation, and numerous interpretations of related legislation by the courts… sustain the view that there was and is not inherent contradiction in the preamble to the Act of 1916. The national Park Service was enjoined by that act, and the mission placed upon the Service was reinforced by subsequent acts, to conserve the scenic, natural, and historic resources, and the wild life found in conjunction with those resources, in the units of the National Park System in such a way as to leave them unimpaired; this mission had and has precedence over providing means of access, if those means impair the resources, however much access may add to the enjoyment of future generations.”
(Attached to this testimony is a copy of Dr. Winks’ paper, “The National Park Service Act of 1916: A Contradictory Mandate?”, submitted for the Hearing Record.) www.nature.nps.gov/Winks/
Day-to day management of a national park is complex, as is determining whether a particular type or amount of use would cause impairment, and thus not be allowed to occur in the park. The sound judgment of the career NPS park professional is the best means we have to make this determination, coupled with a public process that allows the American people to understand the complications and competing interests. Putting the national interest, and the long-term benefit to the park’s resources, ahead of the immediate accommodation of use has always been and should continue to be, the primary factor indicating the right decision for park managers to make.
The Administration Has NOT Made a Case for Proposed Revisions to Management Policies, Chapter I, The Foundation
From the first NPS Management Polices, issued in 1918, up until the most recent edition, issued in 2001, the process of policy development has followed a fairly common routine, with the periodic (every 10 years or so) review of existing NPS policies being initiated by the professional rank and file employees of the NPS, due to recent changes in law, federal court decisions interpreting law, or exposure to new scientific information.
Management Policies are primarily to give clear direction to the professional managers of the NPS so that there is consistent adherence to policy service-wide, and so that each manager has a clear and comprehensive basis for understanding what he/she is to consider when making management decisions. On the other hand, regulations are promulgated to enable enforcement of laws and policies on park users. These two tools, policies and regulations, must be consistent and clear, if NPS managers are to be able to do their jobs.
For purposes of this hearing, we will focus our comments on a comparison of Chapter 1: The Foundation from the 2001 edition of Management Policies to the changes proposed in the current draft of Chapter 1 that are out for public comment. During the public comment period, we will develop a thorough and detailed, line-by-line analysis; for the present, a review of Chapter 1 will be sufficient.
The interpretation of the NPS Organic Act that is contained in the proposed new version of NPS Management Policies is misguided. It misinterprets the intent of Congress, it ignores numerous federal court decisions, and it greatly weakens the professional judgment of the NPS career mangers that have worked under the various NPS laws for over 90 years. Our analysis of key sections of Chapter 1 follows:
Chapter One of the 2001 edition of Management Policies is entitled The Foundation and is intended to give additional clarity to the clear purpose of the National Park Service as stated in the 1916 NPS Organic Act.
The 2001 edition of Management Policies gave a very detailed and clear articulation of how to interpret the 1916 Organic Act’s basis mandate. In contrast, the new draft significantly muddies the waters, and has the effect of letting each manager judge for him/herself whether a particular use or form of enjoyment is appropriate or not, and will or won’t cause impairment, without the clear guidance that the 2001 edition of Management Policies provide.
The fundamental purpose of NPS, as set by the 1916 Act, is to promote and regulate uses that do not impair parks, and prohibit all others. Yes, the NPS mission is about use and enjoyment, but these are types, amounts, and even timing of uses that are first judged to be compatible with conserving park resources unimpaired.
By all accounts, including NPS-commissioned visitor surveys, the hundreds of millions of people who visit the parks annually enjoy these parks. But, due to NPS management, certain uses that certain people might also enjoy in the parks are prohibited. It seems that these new proposed changes to Management Policies are intended to make it more difficult for NPS to prohibit some types of uses that it heretofore has done. The changes lower the standard by which appropriate uses are judged, by adding a variety of qualifiers, modifiers, and vague, fuzzy guidelines to what were previously much more clear guidelines for judging appropriateness.
1.4.3 The NPS Obligation to Conserve and Provide for Enjoyment of Park Resources and Values
The 2001 edition of Management Policies clearly defines the 1916 Organic Act’s “fundamental” purpose of the NPS as two-fold:
1) to affirmatively conserve park resources and values all the time, even where there is no particular threat or risk at the moment; this is a mandate for proactive, not just reactive park natural and cultural resource management. When Congress added the mandate for reliance on scientific research to guide park management in the 1998 Thomas Bill (P. L. 105-391), Congress was essentially directing the NPS to assure that its actions would continue to conserve park resources and values, based on the findings of park-based applied research, not just in response to user-caused impairments.
2) To provide for enjoyment, but only enjoyment that occurs in a manner or means that leaves the park’s resources and values unimpaired.
The 2001 Edition further states, ”NPS managers must always seek ways to avoid, or to minimize to the greatest extent practicable, adverse impacts on park resources and values.” Avoiding adverse impacts is necessitated by both the first element of the single purpose, as well as the second element.
The proposed draft significantly revises the interpretation of the Organic Act by treating its mandate as a balancing act between conservation of resources and values and visitor enjoyment. “The Park Service recognizes that activities in which park visitors engage can cause impacts to park resources and values, and the Service must balance the sometimes competing obligations of conservation and enjoyment in managing the parks.”
This interpretation of the Organic Act’s fundamental purpose for the NPS is not accurate. While there is clearly a difference between impacts and impairments – NPS may permit certain impacts to park resources and values so long as they are not impairments – the professional judgment that is called for to distinguish between impacts and impairments is clearly different than one that seeks to balance use with conserving…unimpaired.
By eliminating the separate Organic Act requirement to conserve park resources and values, the proposed draft relaxes the standards by which a park manager would judge the condition of park resources and values. The draft replaces the phrase “adverse impacts” used in the 2001 edition with the term” unacceptable impacts,” a far more indefinite term, that leaves the park manger with little guidance, broad discretion, and an expectation that he or she will “balance” use with conserving…unimpaired.
In fact, the park manager does not have “broad discretion” as it is defined in the proposed draft. While federal courts have shown deference to the federal decision-maker in questions about defining impairment, these same courts have universally upheld the paramount mandate of the Organic Act to conserve park resources and values unimpaired, even to the extent of reducing or eliminating a particular form of use.
The proposed draft adds two new subsections, on “220.127.116.11 Appropriate Use,” and “18.104.22.168 Unacceptable Impacts,” both of which seek to emphasize that balance is required under the Organic Act. Both subsections are comprised of lists of items that would be acceptable or unacceptable uses, but this approach is only valid if you assume that the NPS park manager’s only obligation is to balance use with resource conservation.
Another new subsection “22.214.171.124 Park Purposes and Legislatively Authorized Uses” in the proposed draft properly distinguishes between mandated uses and authorized uses, but fails to note that authorized uses are discretionary with the NPS manager and may be prohibited if the manager judges the impacts of such use to be unacceptable.
Curiously, this section fails to note the important fact that individual park enabling statutes sometimes have the effect of modifying the applicability of the Organic Act to a specific park or aspect of management of that park. This was a hallmark feature of the 1988 edition of Management Policies which was carried forward into the 2001 edition. The proposed draft seems much more intent on allowing maximum manager discretion than in adhering carefully to the intent of Congress.
1.5 External Threats and Opportunities
This section of the 2001 edition of Management Policies has been completely eliminated from the proposed draft, apparently in keeping with the Administration’s policies that the NPS authority and responsibility stops at the park boundary. While it is true that NPS’ direct authority is much reduced outside park boundaries, there are numerous other laws, including the Clean Air Act and the Surface Mining Act that mandate special protections for national parks, and that afford the NPS a measure of responsibility in determining the extent of impacts to park resources and values.
Elimination of this section is a significant deficiency of the proposed re-write of Management Policies.
In substitution, the new draft adds a new section entitled “Cooperative Conservation Beyond Park Boundaries.” While this is a good addition as it is proposed, it in no way substitutes for the 2001 edition’s section on External Threats. They address two very different things. As noted in numerous previous studies, the majority of external threats to national park resources and values are caused by the actions, or inactions, of other federal agencies, and need a directed and aggressive response from the NPS.
“Cooperative Conservation” as it has been defined by Secretary Norton has been primarily focused on actions that can be taken by the NPS, and other land managing agencies, to work constructively with neighboring landowners, especially private landowners, and adjacent gateway communities. This is a good policy as far as it goes, but does not address the elimination or mitigation of external threats to park resources from other federal agencies. Both sections are needed in Management Policies.
1.7 Management Excellence
This section of the proposed draft is greatly expanded from the 2001 edition of Management Policies, some of it appropriate, and some of it curiously inappropriate, and most of it better placed elsewhere in the follow-on Chapters of the document.
1.7.2 Accessibility for Persons with Disabilities
This subsection, while important overall to NPS facility design, belongs in portions of Chapter 8 Use of the Parks, and Chapter 9 Park Facilities, rather than in the Foundation Chapter, which should remain focused on interpretation of the Organic Act. This subsection will also likely be subject to significant re-writing in the near future, when the federal Access Board promulgates its long-awaited regulations and guidelines on access to recreation facilities, and to outdoor developed areas.
126.96.36.199 Facilities Management, 188.8.131.52 Business-like Concession Program,184.108.40.206 Budget Performance and Accountability Programs, 1.7.5 Human Capital, 220.127.116.11 Career development, Training and Management, 18.104.22.168 Succession Planning, 22.214.171.124 Workforce Planning, 126.96.36.199 Employee Safety and Health, and 188.8.131.52 Workforce Diversity
These are all new subsections of the proposed draft, and do not belong in Chapter 1, some do not belong in Management Policies at all, but certainly are misplaced, and seem only to serve to dilute the focus of Chapter 1 away from what was heretofore its main purpose, to explain and interpret the fundamental law of the NPS, the 1916 Organic Act.
While the Partnership section is generally good and parallels the 2001 edition, a significant addition has been proposed which could impact the integrity of the National Park System if it were to be implemented as stated.
The problematic statement reads “In the spirit of partnership, the Service will also seek opportunities for cooperative management agreements with state or local agencies that will allow for more effective and efficient management of the parks, as authorized by section 802 of the National Park Omnibus Management Act of 1998.”
However, section 802 of the National Park Omnibus Management Act of 1998 specifically and exclusively authorizes cooperative agreements with adjacent state and local park agencies, not just any state or local agency, and was intended to appropriately take advantage of opportunities for shared management responsibilities where adjacent land managers have similar missions and purposes.
As proposed, the language of this subsection is much too broad, opening the proverbial Pandora’s box of opportunities to dilute and diminish the resources and values of the national parks.
Thank you for the opportunity to testify here today, and I would be happy to answer any questions.
Mr. William P. HornBirch, Horton, Bittner, and Cherot
STATEMENT OF WILLIAM P. HORN
SUBCOMMITTEE ON NATIONAL PARKS
COMMITTEE ON ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
November 1, 2005
Mr. Chairman: My name is William P. Horn and I appreciate the invitation to appear before the Subcommittee to discuss National Park Service (NPS) Management Policies.
It was my privilege to serve as Assistant Secretary for Fish, Wildlife and Parks under President Reagan and work on the development and articulation of appropriate NPS management policies consistent with the 1916 National Park Organic Act. We are blessed with an incomparable National Park System that millions of our citizens use, enjoy and cherish. Maintaining and enhancing this broad public support for our Park System through sound management is the key to assuring the conservation of its resources for future generations.
Any inquiry into NPS Management Policies must start first with the 1916 Act. Its basic mandate 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” and management policies and actions must adhere to and fulfill that mandate. Unfortunately, there are interests and advocates who seek to effectively rewrite this basic statutory mandate and impose park policies that focus on only one half of the original Congressional admonition. These same interests often pose the basic policy issue in a form overtly hostile to traditional visitor use: “are we wise enough to support” management that “preserves natural wonders for our children by preserving them from us.” Contrary to these interests, Congress has never intended that parks be managed as “biospheres under glass” or managed in an exclusionary manner.
Management policies that genuinely reflect the law must provide an appropriate balance that recognizes both elements of this single mandate. To achieve this goal, it is critical that the 2001 NPS Policies be rewritten in manner consistent with the Organic Act. As detailed later in this statement, the 2001 Policies misrepresented the 1916 Act from the outset and irretrievably set those policies on a wrong and illegal course. I commend the leadership at NPS and Interior for engaging in the legally necessary rewrite of NPS policies.
The 1916 Act was the product of four years of intense Congressional deliberations involving critical opinion leaders of the day such as Frederick Law Olmstead, Jr. (the designer of New York City’s Central Park) and Stephen Mather (later first Director of the National Park Service). Although National Park units had been in existence since 1872 (i.e., Yellowstone), there was no unified management of these units nor any mission statement to govern and direct management. Indeed, there was no National Park Service and units like Yellowstone were administered by the U.S. Army. A battle was also underway to resolve whether parks management should be lodged within the Department of the Interior or committed to the U.S. Forest Service, created in 1905, then headed by Chief Gifford Pinchot. The 1916 Act was designed to correct these deficiencies and resolve this critical bureaucratic dispute.
In addition, President Teddy Roosevelt’s bold actions and articulation of conservation policy were already a decade old. The National Forest System and the U.S. Forest Service had been created. Similarly, Roosevelt had begun the National Wildlife Refuge System in 1903 dedicated to conserving biological (i.e., fish and wildlife) resources. The nascent Park System had just suffered the bruising Raker Act battle that authorized the construction of Hetch Hetchy Dam within Yosemite National Park. Park proponents wanted to maintain the impetus from the Roosevelt years and protect against other Hetch Hetchy’s.
Two of the primary interests supporting the 1916 Act were the railroad and automobile industries. The Act was seen as a means of facilitating opportunities to enjoy scenic vistas and encourage tourism. Only the year before, Yellowstone’s road system, built by the U.S. Army, had been opened to auto traffic with much fanfare.
It is reported that Olmstead authored the basic mandate included in the Act: “...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 them unimpaired for the enjoyment of future generations. “ 16 U.S.C. § 1, Aug. 25, 1916. Particular attention must be paid to the specific language adopted by Congress. Note first that it is articulated as a SINGLE PURPOSE (i.e., “which purpose is”); it is not two purposes with one primary and the other subordinate. Congress also prescribed that resources be “conserved” rather than “preserved.” The term “conservation,” as articulated in that era by the likes of Teddy Roosevelt, included elements of use in contrast to the more preservation-oriented rhetoric of John Muir, founder of the Sierra Club. Note too that the resources singled out for conservation are tangible matters: scenery, natural and historic objects, and wild life. Of critical importance is the express purpose of conserving resources and leaving them unimpaired: to leave them in that state “for the enjoyment of future generations.”
Public use and enjoyment is inextricably embedded in the single fundamental purpose of our Park System. Moreover, ensuring future use is the underlying purpose of the non-impairment standard. To argue that “resource preservation” is the single, dominant overarching purpose of the 1916 Act, to the detriment of visitor use and enjoyment, is simply wrong and not borne out by a close reading the actual statutory language.
The debate over section 1 always focuses on its famous last phrase. Additional meaning, however, can be gleaned from earlier parts of the provision. The beginning of the sentence gives the charge to the then new National Park Service: “The service thus established shall PROMOTE AND REGULATE THE USE of the Federal areas known as national parks.” (Emphasis added.) A statute that expressly admonishes NPS to promote use and assure visitor use and enjoyment can hardly be read to authorize exclusionary preservation policies.
A close reading of section 3 of the Act further demonstrates “preservation” per se was far from the minds of the 1916 Congress. Section 3, still part of the U.S. Code (16 U.S.C. § 3), expressly authorizes forest management when needed to “control the attacks of insects of diseases or otherwise conserve the scenery or the natural or historic objects” in any park. Similarly, it provides authority for the “destruction of such animals and of such plant life as may be detrimental to THE USE OF any said parks.” (Emphasis added.) In addition, the section provides the original authorization for the concessions program to facilitate public use and allows grazing within parks, except Yellowstone, when deemed “not detrimental” to the primary purpose for which a park is created. Overall this is a mandate for an active management program to facilitate public use and enjoyment of the Park system. No intellectually honest reading of this Act can support the notion of treating large “natural” units of the Park System as unmanaged, untouched biological preserves with visitors to be kept on the other side of the glass or fence.
Congress supplemented the 1916 mandate with 1978 amendments to the Organic Act by enacting a key sentence in a new section: “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 these areas have been established....” 16 U.S.C. § 1a-1. Federal courts have essentially deferred, pursuant to the Chevron standard, to a permissible agency interpretation that this language provides more emphasis on resource conservation. I would note though that Congress did not amend the original section 1 language and added this supplemental provision in a separate section of the law. It creates no conflict with the original mandate other than to add a new term, “derogation”, which many construe as a synonym for “impairment.” The proposed Management Policies appropriately, and permissibly, treat these terms as one standard. (See 1.4.2).
It is critical the NPS Management Policies 2001 be rewritten consistent with the 1916 Act. Those policies got the law wrong from the very outset: the opening “Foundation” of the policies states “The National Park Service must manage park resources and values in such a manner and by such means as will leave them unimpaired for the enjoyment of future generations.” It is intellectually dishonest, and contrary to law, to deliberately delete from this paraphrase of the Organic Act the express references to the “enjoyment of the same.” The 2001 Policies distort the law from the very beginning and never recover. In contrast, the proposed Policies accurately reflect the actual law and Congressional intent. (See 1.1). By getting it right from the start, the proposed Policies do not veer off from the course charted by Congress nearly a century ago.
The only substantive prescription in the 1916 Act is to assure that park resources are “unimpaired” and definition of this term has become key. Those seeking to restrict public use and enjoyment invariably define “impairment” so broadly that a vast array of traditional park visitor activities can be deemed to cause impairment and, therefore, be prohibited. For example, the Clinton Administration’s rewrite of NPS Management Policies stated “AN IMPACT TO ANY PARK RESOURCE OR VALUE may constitute impairment.” (Emphasis added.) NPS Management Policies 2001, 1.4.5.
The same policies go on to provide that an “impact” that simply “affects” a resource or value can also constitute impairment. Id. Lastly, any impact that “would harm the integrity of park resource or values” is proscribed although “integrity” is never defined. Id. The 2001 Policies disturbingly note only three kinds of activities that might cause impairment: “visitor activities”; “NPS activities in the course of managing a park”; and “activities undertaken by concessioners, contractors, and others operating in the park.” These are the specific activities expressly authorized in sections 1 and 3 of the 1916 Act (public use and enjoyment, park management to facilitate use, and concessions). Policies that contradict specific Congressional directives are clearly illegal and a rewrite of these misdirected provisions is needed.
As previously noted, the purpose of the non-impairment standard is to conserve resources for future visitor enjoyment. Clearly, the Organic Act was enacted with specific contemplation of active programs to facilitate use and enjoyment and with the clear understanding that some levels of impact or effects on resources would be fully acceptable in pursuit of this objective. It is noteworthy that Yellowstone’s road system was upgraded and opened to automobiles in 1915. At the same time, that Park included a number of grand Victorian hotels to accommodate the public. Demonstrably this kind and level of development was deemed fully acceptable by the drafters of the non-impairment standard especially since Stephen Mather went on to press successfully for similar development in other parks during his post-1916 tenure as NPS Director. One legal historian has written “‘enjoyment reasonably required access and at the time roads, trails, hotels, campgrounds and administrative facilities did not seem unduly invasive. The act cannot have meant that ‘unimpaired’ was to be taken in its strictest sense, particularly since the act included specific approval for certain inevitably compromising actions: leasing for tourist accommodation was the most obvious example.’”
In contrast, imagine today trying to build a fraction of Yellowstone’s road system or even one of its historic hotels or lodges. It is an absolute certainty that “impairment”, especially the very low impact threshold in the Clinton-era policies, would be THE basis for objections. Obviously the 233 miles of pavement associated with the famous “Loop” road system and six major visitor services centers (Mammoth, Roosevelt, Canyon, Lake, Grant Village, and Old Faithful) have an “impact” on Yellowstone’s resources. Undoubtedly, the roads, parking lots, boardwalks to thermal features, bridges, cabins, hotels, restaurants, visitor centers, support facilities, employee housing, ranger stations, and headquarters offices have some adverse impact on the natural environment and compromise in some fashion the “integrity” of the same environment. Yet it was decided years ago, fully consistent with the 1916 Act, that such impacts were acceptable to facilitate public use and enjoyment of our first National Park. I would submit that the vast majority of American citizens would still agree that the effects and consequences of these developments do not constitute an illegal impairment of Yellowstone’s wonderful resources.
The 1916 Act clearly contemplates a professional balancing exercise to achieve both parts of its mandate and NPS Management Policies must reflect the same. To that end, the term “impairment” must be defined reasonably and consistently so it does not become a weapon to be used against traditional use and enjoyment. Most Americans find satisfactory the present on-the-ground state of affairs in our Parks regarding visitation and use and would be aghast if they realized that the 2001 NPS management policies effectively define many of these uses as illegal. I would suggest that an appropriate definition of impairment would recognize that some adverse effects are acceptable to facilitate use and enjoyment so long as those effects do not materially or significantly alter ecological processes or have appreciable adverse impacts on scenery, wildlife, and other natural resources. This would be consistent with the“material” impact standard used to define permissible activities on units of the National Wildlife Refuge System (that standard was first adopted by the U.S. Fish and Wildlife Service in the mid-1980's and affirmed by Congress in 1997).
Fortunately, the definition of “impairment” in the proposed Policies (see § 1.4.5) is consistent with the 1916 Act, its obvious intent, and practical experience derived from a century of park operations. The proposed definition ensures that use and enjoyment will be managed to assure that what we see and enjoy today in our Park System can be seen and enjoyed by our children and grandchildren.
Resources and Values
The 1916 Act references the conservation of tangible resources: scenery, natural and historic objects, and wild life. In 1978, Congress added that NPS management “shall not be exercised in derogation of the values and purposes” for which Park System units were created. 16 U.S.C. § 1a-1. The same provision makes references to the “high public value” of the System. Id. Since then it has become common for some to refer to “resources and values” as if the two are synonymous. See NPS Management Policies 2001; 1.4.6. Advocates have similarly seized on this language to press for more social management by NPS. For example, one commentator writing about “loving them to death” (i.e., Parks) argued that “NPS must refuse the whims and desires of popular demand and instead exert a strong hand ...to create an [visitor] EXPERIENCE worthy of this  mandate.”(Emphasis added.) This and other references to “experiences” are illustrative of an efforts to insist on more and more social management in the name of resource preservation.
A greater measure of intellectual rigor is needed to ensure that policy decisions regarding public use and enjoyment distinguish properly between tangible resources and more subjective, intangible values including the subjective personal “experiences” of different park users. For example, clean water is a tangible resource. A healthy elk herd is a tangible asset as is a stand of red mangrove trees. In contrast, subjective aesthetic appreciation falls into the category of values. A mountain climber on Denali gets dropped off by ski plane and relishes the silence when the plane departs; he later is disturbed and upset when another plane carrying flightseers passes by prompting him to write NPS demanding restoration of “natural quiet”. In my experience, many of the most contentious Park System management battles involve “values” – disputes among and between user groups over the most appropriate way to enjoy our parks.
Unfortunately, there is a trend toward treating the personal aesthetic values of some users as a resource. By the alchemy of politics, those values get transmuted into “resources” and become the basis for management actions detrimental to other traditional user groups. It is fully appropriate, and necessary, to conserve genuine resources to fulfill the mandate of the Organic Act. That Act should not, however, be misconstrued and be the basis for giving one user group preferred status and prohibiting the activity of another because the former raises aesthetic objections. A public institution such as NPS has an obligation to all of our citizens and should strive to accommodate a variety of park uses and users as long as they do not impair bona fide resources. The authors of the Policy rewrite should be applauded for making clearer distinctions between uses (and users) and resources and values. Both the Natural Resource Management sections (Chapter 4) and the “unacceptable impact” provisions distinguish between resources and values and “appropriate uses.” (See 8.1.1; 8.1.2). The improved intellectual clarity that arises from the new language is overdue.
Management of Uses
The proposed NPS Management Policies also do an excellent job in curbing the tendency for managers to opt first for “lock the gate” decisions. A disturbing trend in recent years has been the inclination of park managers to almost immediately select closures or prohibitions in dealing with use management issues. Instead of seeking to manage uses to conserve resources or to accommodate different users, it has been too easy to simply post a “closed” sign. The proposed rewrite takes a far more professional, and refreshing, approach. It prescribes intermediate steps to manage, mitigate or avoid resource impacts or user conflicts. Only when management cannot correct a problem are closures or prohibitions prescribed. (See 8.1.2). This is such elemental common sense that it is sure to become controversial.
Thank you again for the opportunity to appear today and present this overview of NPS Management Policies and the 1916 National Park Service Organic Act.