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Our Common Lands
Defending the National Parks
By Joseph L. Sax, David J. Simon
ISLAND PRESSCopyright © 1988 National Parks and Conservation Association
All rights reserved.
EXTERNAL PARK THREATS AND INTERIOR'S LIMITS: THE NEED FOR AN INDEPENDENT NATIONAL PARK SERVICE
William J. Lockhart
Any sound study of the effectiveness of legal protections for our national parks must begin by examining the institutional and political framework in which the law must be applied. But the pervasive threats and increasing imminence of irreversible damage to our parks give special urgency to that inquiry. The author of this first chapter demonstrates that the Park Service response to these threats is severely limited by political and institutional constraints that stymie protective action and impede evolution and application of needed legal standards. Exploring the possibilities for more effective protection under existing laws, the author argues that adequate long-term protection is unlikely unless the Park Service is given substantial independence in policy formulation, administration, administrative initiatives, and legal representation.
Americans deeply value the natural and cultural heritage preserved for their inspiration and enjoyment in our national parks and monuments. Almost universally, Americans want their national parks vigorously protected. Yet it is increasingly evident that unless we better protect our parks, a mounting accumulation of internal abuse and external threats will degrade and impair the landscapes, resources, values, and experiences that embody "the best idea we ever had."
Assuring the protection of our parks, however, has increasingly become a legal problem. Legal and regulatory solutions must be adequate to prevent damaging impacts from a wide range of land uses and activities not only within the parks, but also those generated on adjacent lands or, sometimes, at great distances. This book offers a detailed review of the scope and application of the diverse legal protections available for national parks. As the contributions to this book make clear, effective park protection depends upon applying an expanding and eclectic body of law involving a variety of statutes, regulations, guidelines, and judicial or administrative precedents.
Americans wishing to preserve their parks must become familiar with this diverse body of law because no single system of legal protections or institutions is adequate to avert the engulfing accumulation of threats. Statutes designed specifically for park protection--particularly the National Park Service Organic Act--set promising standards for protection, but their reach and effect remain uncertain because of a paucity of interpretive precedents. For that reason, it may frequently prove more helpful to rely on statutes requiring broad environmental review or public land planning, because comprehensive consideration of resources and impacts may provide context and focus for the application of basic park protection standards.
Similarly, the protection offered by comprehensive planning requirements may often be strengthened by the application of specialized statutes that require special planning attention or impose concrete standards for protection of particularly vulnerable or significant resources or values. Still other laws may aid park protection by imposing procedures or standards designed to reduce the impacts of specific types of intrusions. Finally, important legal tools to protect specific resources or to supplement statutory remedies may be found in other statutes or common law concepts not necessarily designed for protection of parks or related resources.
Review of these legal protections available for our parks, however, also highlights disturbing and fundamental inadequacies of the current legal framework:
* The basic laws protecting our national parks use general language, which can be given specific content and application only through interpretation in judicial precedents, agency regulations, or operating guidelines that recognize fundamental protective standards and priorities. Yet development of that needed body of park protection law has been stunted because the National Park Service confronts institutional and political constraints that seriously restrict its role in the litigation or rulemaking that could generate concrete legal standards.
* The lack of detailed, specific, and concrete interpretive precedents and standards seriously handicaps the National Park Service (and other park advocates) in asserting the priority that Congress intended for park protection. Those limitations frequently hobble park protection in the face of conflicting state or private development. But the problem may be even more serious where external threats are generated by other federal resource development programs on adjacent lands. The result, too often, is that Park Service officials may politely question, but seldom directly challenge, those conflicting programs or their impacts--even where intrusions threaten at the very borders of the parks.
To a major extent, these inadequacies of the legal structure are both caused and compounded by institutional and political obstacles in the Department of the Interior that severely handicap effective response to the increasing external threats that face our national parks. Those obstacles, their impact on park protection, and possible solutions are explored in this essay.
Beginning with exploration of the pervasive and serious threats facing our parks, particularly as summarized by the Park Service's 1980 State of the Parks report, this essay focuses on obstacles to effective park protection revealed by the institutional response to those threats. While some important preliminary steps have been taken, the Park Service has been handicapped in translating those steps into specific programs or initiatives that could strengthen the legal and institutional defenses available to protect our parks.
Too often, the Park Service responses are characterized by constrained, inward-looking strategies that are the predictable result of the limited role permitted the Park Service within the Department. Particularly during the Reagan years, from 1980-88, Department of the Interior officials have discouraged or resisted management or regulatory initiatives that would control, avoid, or minimize threatened impairments or promote development of more rigorous park protections standards. Confronted with threats generated by the conflicting missions and politically-supported demands of other agencies, the Park Service is confined to addressing those threats through low-key efforts at "conflict avoidance and resolution." Yet that approach virtually guarantees that any solutions will reflect the lowest common denominator that can be negotiated with competing agencies.
Without a departmental priority for park protection and without the ability to enhance or enforce park protection standards, it will be impossible for the Park Service to resist the engulfing tide of development that threatens continuing, incremental, serious impairment of our national parks. Inevitably, then, America's future generations will inherit parks whose well-defined boundaries cannot protect their own captive geography.
Is the Interior Department's lack of support for park protection based on legitimate legal doubts--doubts about the protective reach of the governing statutory and case law that preclude it from implementing effective initiatives for park protection? Surprisingly, in view of Interior's reluctance to take park protection initiatives, even the Department, sometimes, acknowledges that it has adequate authority to provide the needed protection.
This essay argues that fundamental institutional change is essential if we are to fulfill our commitment to preserve our national parks. The Park Service must have a substantial measure of independence to establish protective policies and pursue remedies for park threats free of the intradepartmental political demands and conflicts of interest that are endemic in the Department of the Interior. Furthermore, it is critical to recognize that remedies for park threats necessarily must be sought in a complex legal environment involving local, state, Indian, and federal jurisdictions and programs, as well as a multitude of private legal interests. For that reason, and to assure effective advocacy uncompromised by conflicting loyalties, the Park Service must have independent legal counsel. Finally, that advocate must have resources and authority to conduct administrative and court litigation to challenge park threats and to seek protective interpretation and application, or revision, of basic legal standards.
These changes are urged in the belief that most Americans will demand better protection for their national parks when they understand the serious inadequacy of the current legal structure. We hope this book will aid that understanding and will stimulate a national call for more effective legal protection.
II. THE BASIC PROBLEM: A NEED FOR EFFECTIVE INSTITUTIONAL AUTHORITY TO AVERT THREATS TO OUR PARKS ARISING OUTSIDE THEIR BOUNDARIES
A. The Reality of Cumulating Threats Beyond Effective Reach of the National Park Service
This collection of legal essays is grounded in an obvious premise. If we are truly committed to preserving "the scenery and the natural objects and the wildlife" in our national parks, leaving them "unimpaired for the enjoyment of future generations," the legal and institutional framework for protecting our parks must reflect reality.
The reality is that our parks are being impaired, and are increasingly threatened with impairment, by a wide range of activities and projects occurring both within the parks and on other public or private lands. Ordinarily, of course, impairing activities inside the parks are within the established authority of the Park Service to control. But it is not yet widely understood that the external threats, which arise from activities on adjacent (or sometimes, distant) lands, are often beyond the present legal or political capacity of the Park Service to resolve. Protection of our parks requires solutions for external threats that are ubiquitous, diverse, and often severe. The threats range from the familiar problems of logging or oil and gas drilling on adjacent lands to a gargantuan proposal for a nuclear waste disposal facility; from dam construction and water rights disputes to strip mining, water pollution, scenery-obscuring plumes, regional haze, and acid rain; from road construction and off-road vehicle damage to insecticide spraying, condo developments, and TV transmitter stations at the very boundaries of the parks.
It is the cumulative effects of these threats, even more than their individual impacts, that most endanger our parks. For example, Canyonlands National Park, a pristine wilderness park in southeastern Utah, has recently faced a combination of threats including (at least):
* A complex proposal for a huge nuclear waste disposal facility near the entrance road and less than a mile from the park boundary.
* Proposals for massive drilling and in situ development of tar sands near the most remote and scenic part of the park.
* Unrestricted oil and gas leasing, with high probability of exploratory drilling and potential field development in vulnerable viewsheds along other boundaries.
* Continuing demands by local boosters for an expanded network of roads both within the park and through adjacent de facto wilderness.
* Potential expansion of tourist facilities and services, including an airport and runway for "scenic flights," in the immediate scenic foreground to the park on adjacent state property.
* Significant visibility reductions from haze caused by distant sources of man-made pollution, now occurring in all Colorado Plateau parks more than 90 percent of the time.
Any of those projects could have severe impacts on the park. Yet all are serious proposals or are at various stages of processing for approval. All have a strong special-interest constituency; all are based on arguable, though seldom invincible or controlling legal positions; and all are potentially vulnerable to appropriate legal challenges. Their complexity and diversity are not unusual among external threats.
Unfortunately, it also is not unusual, particularly in the West, that every one of these threats arises from activities that are promoted by, or significantly involve, programs or decisions of other federal agencies--including sister agencies of the Park Service in the Department of the Interior. While certain of the threats are unique or may have doubtful prospects, some or all of them could be approved and begin the inevitable degradation of a park that is now relatively free of serious impacts.
Effective park protection against such external threats requires aggressive administrative action by the responsible agency--the Park Service--and a capacity to back up those steps with independent legal action. This book suggests that a wide range of administrative steps or legal defenses may be available to protect the parks. But though the Park Service often takes some initial steps, those steps tend to be tentative or politically constrained, and seldom involve invocation of available legal remedies.
To a substantial degree, the reasons for that hesitancy lie in restraints imposed by the internal politics and conflicting missions of the Department of the Interior.
B. The Severity and External Origin of Many Park Threats
The extent, complexity, and seriousness of the external threats to our parks have been fully acknowledged and broadly documented by the Department of the Interior and the National Park Service. In its State of the Parks--1980 report to Congress, the Park Service explained the results of a comprehensive, park-by-park survey of the threats they confronted. The report concluded that "without qualification, it can be stated that the cultural and the natural resources of the parks are endangered both from without and from within" by a broad range of threats "which have the potential to cause significant damage to park resources or to seriously degrade important park values or park experiences."
The State of the Parks report emphasized the expanding scope and severity of the threats:
Many previously pristine areas today have become surrounded by and exposed to an ever growing array of incompatible and threatening activities on adjacent lands ... ranging from trespassing livestock which trample vegetation to acid rain from remote industrial facilities which causes severe damage to park terrestrial and aquatic systems and historic structures.
It is clear that events are taking place that are causing demonstrable and severe damage to the natural and the cultural resources of the nation's national parks, monuments, historic sites and other units. The survey suggests that no area is immune. Although some impacts are subtle and not immediately obvious, long-term consequences can be disastrous.
The Park Service analysis of the sources of those threats also showed that more than half were traceable to external origins:
[M]ore than 50 percent of the reported threats were attributed to sources or activities located external to the parks, [particularly] industrial and commercial development projects on adjacent lands; air pollutant emissions, often associated with facilities located considerable distances from the affected parks; urban encroachment; and roads and railroads.
Although the report traced many threats to external sources, it did not attempt to determine what federal or state agencies may have been responsible for specific threatening activities, or under what legal authority they may have been conducted. Yet, as this book repeatedly demonstrates, the jurisdiction or authority under which specific threats arise may significantly affect the availability of, and the need for, legal or institutional remedies.
No systematic survey or analysis has yet catalogued the legal authorities or agencies responsible for the various identified sources of external threats. But the examples and problems analyzed in the following essays, as well as the experience of the National Parks and Conservation Association (NPCA) and of this author in challenging park threats, demonstrate that:
* A substantial portion of the most serious external threats arise from activities on other public lands, authorized or promoted by other federal agencies, and conducted by both public and private entities.
* A significant portion of the remainder of the external threats involve incompatible land use or zoning practices encouraged or permitted by local or state government with little regard for their park impacts.
These conclusions about the jurisdictional origins of the threats are also well supported by summaries of significant threats recited by a group of Park Service regional directors and park superintendents who testified in 1982 at oversight hearings following up on the State of the Parks report.
Excerpted from Our Common Lands by Joseph L. Sax, David J. Simon. Copyright © 1988 National Parks and Conservation Association. Excerpted by permission of ISLAND PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
ABOUT ISLAND PRESS,
PART I - THE REALITIES OF PARK PROTECTION,
Chapter 1 - EXTERNAL PARK THREATS AND INTERIOR'S LIMITS: THE NEED FOR AN INDEPENDENT NATIONAL PARK SERVICE,
PART II - General Authorities,
Chapter 2 - NATIONAL PARK PROTECTION: PUTTING THE ORGANIC ACT TO WORK,
Chapter 3 - COMMON LAW PROTECTION FOR OUR NATIONAL PARKS,
Chapter 4 - NEPA AND THE PARKS: USE IT OR LOSE IT,
Chapter 5 - THE FEDERAL LAND POLICY AND MANAGEMENT ACT: THE BUREAU OF LAND MANAGEMENT'S ROLE IN PARK PROTECTION,
Chapter 6 - INTERNATIONAL LAW AND PARK PROTECTION: A GLOBAL RESPONSIBILITY,
Chapter 7 - GLACIER NATIONAL PARK AND ITS NEIGHBORS: A STUDY OF FEDERAL INTERAGENCY RELATIONS,
PART III - Protecting Specific Park Resources,
Chapter 8 - THE CLEAN WATER ACT: STILL VITAL TO THE PARKS,
Chapter 9 - THE ENDANGERED SPECIES ACT: PROTECTING THE LIVING RESOURCES OF THE PARKS,
Chapter 10 - WATER RIGHTS AND THE DUTIES OF THE NATIONAL PARK SERVICE: A CALL FOR ACTION AT A CRITICAL JUNCTURE,
Chapter 11 - PARK PLANNING, HISTORIC RESOURCES, AND THE NATIONAL HISTORIC PRESERVATION ACT,
Chapter 12 - THE CLEAN AIR ACT: NEW HORIZONS FOR THE NATIONAL PARKS,
Chapter 13 - NO HOLIER TEMPLES: PROTECTING THE NATIONAL PARKS THROUGH WILD AND SCENIC RIVER DESIGNATION,
PART IV - Regulating Development in and Around National Parks,
Chapter 14 - OIL, GAS, AND PARKS,
Chapter 15 - THE MINING IN THE PARKS ACT: THEORY AND PRACTICE,
Chapter 16 - THE GEOTHERMAL STEAM ACT: UNLOCKING ITS PROTECTIVE PROVISIONS,
Chapter 17 - HYDROPOWER, DAMS, AND THE NATIONAL PARKS,
Chapter 18 - THE SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977: TEN YEARS OF PROMISE AND PROBLEMS FOR THE NATIONAL PARKS,
PART V - APPENDICES,
Also Available from Island Press,