National Parks: For Use and Enjoyment or for Preservation? and the Role of the National Park Service Management Policies in That Determination
| Author | Harmony A. Mappes |
| Position | J.D. Candidate, The University of Iowa College of Law, 2007; B.S., Biology, Indiana University, 2004 |
| Pages | 603-636 |
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J.D. Candidate, The University of Iowa College of Law, 2007; B.S., Biology, Indiana University, 2004. I would like to thank Professor John-Mark Stensvaag for providing invaluable assistance in helping me to select a Note topic and for reading an early draft. I would also like to thank my editors, Jeff Scudder and Justin McCarty, for their helpful comments. Lastly, a big thanks to my family and friends, in particular my parents, Ann and Terry Mappes, for being ceaselessly supportive. All remaining errors and omissions are my own.
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America's national parks provide breathtaking views and spectacular scenery. They are cultural landmarks and historic battlefields. To some citizens they are sources of inspiration, for others, sources of exercise. They provide homes to some of the most valued species, protecting precious habitats. National parks unite our country with senses of both pride and humility. They can also be affordable family vacation destinations. It is amazing that one system of parks can provide all of these things. But the availability of these values and experiences is not assured.
When park founders conceived of the national parks, they sparked a great debate that continues to this day: Are national parks primarily for preservation or for use and enjoyment? This dispute permeates the parks' histories1 and legislation.2 The keystone of the park system, the Organic Act, itself immortalizes this controversy by mandating both goals as a single, somewhat contradictory, purpose.3 The National Park Service document, Management Policies 2001,4 resolved the debate, to a certain extent, by prioritizing preservation. However, issuance of a proposed Management Policies 2006-2006 Policies Draft-gave new life to the debate, representing nearly a complete reversal of position, favoring use and enjoyment.5 ThatPage 604 policy document was available for public comment for a 120-plus-day period, ending in February 2006.6 Remarkably, over 45,000 commenters responded, prompting a drastic revision of the proposal.7 This Note tracks the debate from its beginnings, discussing both preservation8 and use and enjoyment9 in the parks. The Note analyzes the National Park Service Management Policies and the proposed and amended versions,10 concluding no policy will truly satisfy the mandate, or the American people, unless both goals of the Organic Act's mandate are met.
Arguably, the United States system of national parks was born in 1864 when President Lincoln signed a bill giving Yosemite Valley and the Mariposa Grove of Giant Sequoias to the State of California as an inalienable public trust.11 In 1872, Congress took the idea one step further by designating Yellowstone as the nation's first true national park.12 The federal government was not only interested in park land. In 1890, Congress created the first national battlefield13 and, in 1906, passed the Antiquities Act.14 The Antiquities Act gave the President the sole power to set aside objects andPage 605 structures of historic and scientific interest as national monuments.15 Congress also created national forests during this period, establishing the National Forest Service in 1905.16 A trend had clearly begun, with Congress creating fourteen national parks and twenty-one national monuments17 by the time it passed The National Park Service Act of 1916 (the "Organic Act").18
Authors cite different historical actors and both public and private motivations as catalysts for the creation of national parks. These alternative, or more likely, contributing, purposes are important in understanding the historical development of the parks and ultimately the less-than-clear purpose underlying park legislation. One rationale was to create sites of national pride.19 Compared to European countries with rich cultural and architectural histories, the United States appeared uncultured and uneducated.20 In response to this pompous critique from Europeans, America looked to create national unity by "flaunting" her own national treasures.21
Another related influence, frequently cited by advocates for preservation within the parks, was the development of Niagara Falls.22 Profiteers exploited this natural national monument.23 What was once aPage 606 national treasure, even drawing Europeans to the United States, became shameful; America needed to preempt other similar occurrences.24 Another factor leading to the creation of national parks was the expansion of railroads.25 In particular, Jay Cooke and the Northern Pacific Railroad wanted to capitalize on the tourist possibilities that Yellowstone would provide.26 He proved to be influential in the creation of Yellowstone National Park. Other individuals, such as artist George Catlin, also played significant roles.27
By 1910, rumblings could be heard in Washington calling for a national bureau or organization to manage the parks.28 President Taft, Richard Ballinger, then Secretary of the Interior, and the American Civic Association were loud voices advocating for a bureau.29 Congress passed the National Park Organic Act in 1916.30 The Act established the National Park Service ("NPS"), an agency under the direction of the Secretary of the Interior.31 This created unity among the parks under a national management system.32 As with the creation of the first parks, the motivations for this legislation were diverse. Goals of both preservation and a push for tourism prompted the passage of the Organic Act.33 Congress revisited34 these goals in some respects with amendments to the Organic Act in 197035 and 1978.36
While the Organic Act unified park management in a national system, national parks also have individual legislation and management systems.37
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Each park is created by an individual legislative act of Congress.38 In this way Congress can address specific goals and needs with respect to a particular park. This, however, results in a very complicated system; officials must run each park in accordance with the overarching national system as well as the park's own legislation and policies. In addition to these congressional acts dealing specifically with the parks, many other acts affect the creation and management of national parks.39 These acts include the Endangered Species Act,40 the Antiquities Act,41 the Wilderness Act,42 the Wild and Scenic Rivers Act,43 and the National Environmental Policy Act ("NEPA"),44 to name only a few.
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The park system has grown substantially since the Organic Act of 1916.45 By 2004, there were 388 units administered by the National Park Service.46 The total gross acreage in the National Park System in 2003 was 84,398,239.81.47 This represents roughly 3.5% of the entire United States.48 Of that, 51,888,804.44 acres were specifically park acreage.49 In 2004, thePage 609 yearly number of visits reached 276,908,337.50 One third of all adults in the country have visited an NPS unit within the last two years.51
In addition to an increase in visitors, national parks have been in the spotlight with increasing frequency. Various interest groups have objected to park practices.52 There have been trials in courts of law as well as trials in courts of public opinion. Some of the most notable issues include debates about wolves in Yellowstone,53 snowmobiles in some parks,54 fire control,55 effects of diseased bison on neighboring ranchland,56 and limits to flights over the Grand Canyon.57 Gaining less public notoriety, but similarly divisive, are issues regarding concessionaries58 and biological-research concerns.59 Park attendance continues to rise, and ecological concerns become increasingly critical worldwide. With these continuing pressures, debates regarding park use will continue. How should these conflicts be resolved? By whom? And under what guiding principles? This Note seeks to explore these concerns.
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The Organic Act60 sets out the purpose of the national parks as follows:
The [National Park] service thus established shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations . . . by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.61
This commands the Director of the Service not only to conserve the parks "unimpaired" but also to provide for the use and "enjoyment" of the parks.62 Legal scholars have labeled this a "contradictory mandate,"63 suggesting that the two goals are mutually exclusive...
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