NATIONAL PARKS, INCORPORATED.

• Author: Light, Sarah E.

INTRODUCTION 34 I. CONSERVATION, PRESERVATION, AND THE NATIONAL PARKS 43 II. PUBLIC AND PRIVATE IN THE PARKS 48 A. The Value of Publicness in the Parks 49 B. Protecting the Public from the Private 54 C. A Role for Private Enterprise--But Not Too Much 62 1. The Early Years 63 2. The Organic Act 65 III. NON-EXTRACTIVE CORPORATE ACTIVITY WITHIN THE PARKS 67 A. A Hotel by Any Other Name: Ownership of Intangible Property 67 B. Corporate Philanthropy and Cause-Related Marketing 78 1. Corporate Philanthropy and Cause-Related 78 Marketing Generally 2. Philanthropy and Cause-Related Marketing in the 80 National Parks 3. Corporate Cause-Related Marketing in State Parks 83 IV. THE BENEFITS AND HARMS OF CORPORATE ACTIVITY WITHIN THE 89 PARKS A. Benefits to Corporations from Relationships with the Parks 89 B. Potential Effects on the Parks 96 1. Benefits on the Parks 96 2. Harms to the Parks 97 a. Co-optation 97 b. Associative Risk 100 c. Erosion in Support for Public Funds 102 d. Exclusion of the Public 104 V. IMPLICATIONS AND CONCLUSION 105 INTRODUCTION

In 2019, an Advisory Committee to the Department of the Interior made several recommendations designed to "improve the quality of National Park Service (NPS) facilities:" (1) "Our recommendations would allow people to opt for additional costs if they want, for example, Amazon deliveries at a particular campsite.... We want to let Americans make their own decisions in the marketplace." (2) Consistent with this characterization of national parks as a marketplace, the Committee noted that "evidence suggests that occupancy rates at many campgrounds could grow and additional services, from WiFi to utilities, equipment rentals and camp stores" among others would "substantially boost net agency revenues, especially when operational costs are transferred to private sector partners." (3) In addition, the Committee recommended allowing concessioners (4) both to make improvements to campgrounds and to benefit financially from these improvements. (5) The prospect of Amazon deliveries and privatized campgrounds led some conservation advocates to reject these proposals as a "transfer of public assets to private industry." (6)

Public lands and private enterprise have long existed in an uncomfortable equilibrium. (7) Since the creation of the national parks, the relationship between people and these unique public lands has often been mediated and facilitated by corporations and other business firms. In the nineteenth century, major railroad companies actively supported the creation of the national parks, convinced that these attractions would pull eastern populations westward via rail. (8) In the statutes creating the national parks, Congress specifically authorized the provision of accommodations by private firms to bring visitors and tourists to enjoy their beauty. (9) Indeed, Stephen Mather, the first director of the National Park Service, observed that "[s]cenery is a hollow enjoyment to the tourist who sets out in the morning after an indigestible breakfast and a fitful night's sleep on an impossible bed." (10)

Extractive corporate practices like mining, timbering, and fossil fuel development, (11) or even less extreme examples like recreational snowmobiling tours that are merely noisy, (12) physically harm nature and exclude members of the public from enjoying these wonders. Some of these activities also physically extract commodities from the parks for sale in private markets. These activities are core to the notion of private property rights. Indeed, many scholars of property law would argue that the right to exclude is the sine qua non of private property rights. (13) Others have focused on the right to destroy. (14) Such values associated with private property--exclusion, commodification, and destruction--many would argue, have no place in the parks, which must remain open to the public. (15)

However, not all commercial activity within the parks excludes the public or destroys nature. Indeed, many commercial activities like providing accommodations and recreational opportunities, corporate philanthropy to the parks, and corporate cause-related marketing of associations with the parks do not, on their face, appear to cause such physical harm. (16) Nor do they remove anything tangible from the parks and seek to commercialize or commodify it for sale in markets. Marketing campaigns that call on the feeling of being in the woods and philanthropy to the parks that may benefit corporations by association do not deplete resources or ruin aesthetic experiences like a strip mine would. Some of these corporate activities--like philanthropy and cause-related marketing--actually contribute substantially to park funding. Likewise, they do the opposite of exclusion--they bring members of the public to the parks. Yet even such arguably benign actions still raise objections about the proper role of corporations and other private actors within the parks. The concern appears to be that these relationships in some way dilute the essential publicness of the national parks. Commercial activity within the parks that neither physically harms nature nor removes physical assets for sale in markets thus focuses a spotlight on essential questions about the proper boundary between public and private in the national parks, the nature of publicness itself, and the purpose of the parks. (17)

This Article therefore seeks to highlight as a distinct phenomenon a set of corporate interactions with the national (and in some cases, state) parks that are commercial, but non-extractive and not physically harmful. It identifies three case studies of such corporate interactions with the parks as examples of this larger phenomenon: (1) corporate concessions within the national parks for hotel accommodations; (2) corporate claims to ownership of the names to historic hotels and other property; and (3) corporate philanthropy to and cause-related marketing with national and state parks.

Each of these forms of interaction raises questions regarding the proper balance between public and private when it comes both to ownership and profit. A recently settled dispute over ownership of the trademarks to the historic names of landmarked hotels within Yosemite National Park exemplified the serious concerns about this boundary. (18) Corporate philanthropy to and cause-related marketing with both national and state parks has led some conservation advocates to worry that these entanglements will lead to the renaming of Coca-Cola Yellowstone or Amazon Grand Canyon National Park. (19) The states have adopted a continuum of approaches to corporate philanthropy and cause-related marketing with state parks. At the most restrictive end of the spectrum, California requires a nexus between the donor firm's business and outdoor recreation. (20) At the opposite end, Tennessee has entered into an agreement with a local brewery that sells "State Park Blonde Ale" with an image of the state naturalist on the label, and with a portion of the proceeds going to benefit the Tennessee State Park system. (21)

Corporations benefit from these relationships through direct profit (in the case of hotel accommodations) and, more indirectly, by building brand awareness and improving the broader perception of their brands through a "halo effect" of association with these beloved national icons. (22) These benefits for the corporations come, in some cases, with corresponding benefits to the parks in the form of cash or in-kind donations. Indeed, these forms of corporate activity offer an arguable counterpoint to the twin harms of exclusion and destruction. They provide lodging for visitors, funding for enhanced access for underserved populations, and can fund trail repairs. But they can also impose intangible harm on the national parks and their reputations. At the very least they raise the risk of "stigma by association" (23) if ever these corporate partners were to suffer an injury to their reputation or corporate scandal. And they raise concerns about co-optation of public priorities by private interests. Considered together, these interactions require a deeper exploration of the proper scope of corporate activity within the parks, and how prescriptive the law should be about expanding or limiting that role in different contexts.

These issues are significant. The national parks are big business. A recent report by the U.S. Department of the Interior found that national park visitors generated $40.1 billion in economic output in 2018, supporting 329,000 jobs both within the parks themselves, and in surrounding communities near national parks, in industries like hotels, restaurants, transportation and recreation. (24) That figure represents a fifty percent increase in visitor spending since 2012. (25) According to a Report by the Government Accountability Office (GAO), in 2015, 488 commercial concessioners within the national parks earned total gross revenues of $1.4 billion, yet paid only approximately $104 million in franchise fees to the NPS. (26) In 2015, each of the five largest concession contracts for lodging, food, and retail services in the parks generated more than $50 million in gross revenues. (27) With respect to corporate philanthropy and cause-related marketing, for fiscal year 2018, corporations contributed $31.1 million to the parks. (28) And while the COVID-19 pandemic may affect these numbers for 2020, there is no doubt that reopening of the national parks during the pandemic has been symbolically important. (29)

Despite the widespread nature and economic significance of these corporate relationships, they have not received sustained attention as such in legal scholarship on the national parks. Within the literature on the national parks, many scholars have examined the appropriate balance between current use and preservation for future generations of these public lands, (30) including between "quiet" and "noisy" forms of...