INTRODUCTION 986 I. BACKGROUND 989 II. RESPONSE TO THE 1978 AMENDMENTS 992 A. Channel Islands National Park 992 B. Dry Tortugas National Park 993 C. Everglades National Park 994 D. Saguaro National Park 995 III. RAMIFICATIONS OF NONRESPONSE 996 A. Zion National Park 996 B. Pinpointing Contributing Factors 1000 IV. POSSIBLE FIXES NOW 1002 A. Effecting Compliance with the Federal Statute 1003 1. Revocation of Federal Funding 1003 2. Removal of Executive Branch Officials 1004 3. Individual Lawsuits 1005 B. Possible Fixes for Overcrowding 1008 1. Mandatory Use of Shuttle Systems in Other Parks 1008 2. Reservation Systems 1010 3. Changing the Focus of Advertising Campaigns 1012 4. Charging Children Entrance Fees 1013 5. Consider Technology Limitations 1014 CONCLUSION 1016 INTRODUCTION
President Trump's proposed $400 million budget cuts are not the most destructive thing happening to the national parks system this year. (1) Overcrowding at the national parks (2) is turning "America's Best Idea" (3) into an administrative headache, and year to year the visitation numbers continue their meteoric rise. (4) From 2015 to 2017, the parks have seen nearly an eleven percent increase in the number of visits made annually. (5)
While at first blush increasing visitation might sound like a good thing--particularly in light of the National Park Service's recent celebration of its centennial in 2016 (6)--this is a paradigmatic case of too much of that good thing. When Congress created the National Park Service (NPS) in 1916, the parks were meant to accomplish two goals: (1) to preserve the scenery, natural and historic objects, and wildlife within, and (2) to provide for the enjoyment of those things by current and future generations. (7)
Congress recognized the generality in the statute, and amended the National Park Service Organic Act in 1978, urging the NPS to adopt carrying capacities and general management plans for each of the national parks. (8) Unfortunately, William Whalen, the Director of the NPS at the time, (9) appears not to have demanded immediate follow-through from the parks system. For the most part, parks did not adopt carrying capacities or general management plans. (10) Now overcrowding poses a challenge to both of the NPS's core aims.
Because the parks (11) have not set out restrictive carrying capacities, those trails and activities open to the general public are being used exhaustively and, in some cases, unsafely. (12) If carrying capacities are not determined in the near future, the unlimited visitation stands a good chance of negatively affecting the parks in the long run. In some parks, overcrowding on limited trail space leads to erosion or to the creation of visitor-made trails, which can be destructive to the existing ecosystem and wildlife within the park. In addition, the parks are feeling the effects of too many human visitors. For example, human waste pollutes the parks in some areas where washrooms are either unavailable or unable to keep up with the extreme demand. Although the most pressing concern is the negative physical impact on the parks, permitting negative visitor experiences also fails to meet the goals the 1916 Congress set out in establishing the NPS.
It is important to note that not all parks suffer from overcrowding, and that not all parks are suffering a similar level of overcrowding. The parks system consists in part of fifty-nine congressionally-designated national parks. (13) Within the national parks system, certain parks' visitation statistics rise to the top year in and year out. In 2017, the top-ten list included, in this order: the Great Smoky Mountains, the Grand Canyon, Zion, the Rocky Mountains, Yosemite, Yellowstone, Acadia, Olympic, Grand Teton, and Glacier. (14) Those ten parks combined accounted for almost fifty-seven percent of the recreational visits made to national parks for the year (15)--but made up only 16.9% of the specially designated national parks. (16) The funneling effect of visitors toward the best-known parks makes establishment of these parks' carrying capacities even more of a priority.
Inspiring the parks to begin compliance with their 1978 (and renewing yearly) statutory duties is no small task, particularly in light of the Trump administration's massive proposed budget cuts. The lack of direction given to the NPS by Congress likely exacerbates the issue, as the statute includes very little suggestion about how to determine visitor carrying capacity. (17) The most useful statutory text hints at possible reliance on visitor circulation and transportation patterns as the parks develop. (18) With that said, the NPS's abdication of its statutory duties is inappropriate and increasingly destructive to the parks system, and the time has come for the NPS to assess at least rough carrying capacities for immediate implementation. Even construed in the most positive light--which would be to suggest that the parks are taking their time to ensure they come to the best possible answer--forty years have passed without result. The carrying capacities initially identified do not need to be flawless; indeed, the statute contemplates revisions and yearly reports on the general management plans and carrying capacities of the parks. This ought to alleviate some of the park system's hesitancy in taking action.
Assuming the NPS remains reluctant toward identifying general management plans and carrying capacities, a handful of potential solutions exist. First, there is the possibility of legislative action. This could take many forms, some more extreme than others. This Note will discuss the possibility of legislating a pay cut for the top-earning employees within each national park until carrying capacities are established. It will also briefly consider the feasibility of paring down federal funding until the parks are in compliance with the law. Second, the executive branch could take action by removing and replacing the Director of the NPS. The Trump administration delayed for nineteen months before nominating Raymond David Vela as the director of the NPS, (19) so this option is unlikely to make a significant difference in the NPS's overall operation in the near future. Finally, individuals could potentially bring lawsuits to compel the NPS to take action on the issue. Those lawsuits would face both standing issues and reviewability issues under the Administrative Procedure Act (APA), but this Note will argue that it is possible to thread the needle in a manner that makes individual lawsuits feasible.
In order to fix the overcrowding issues plaguing parks, carrying capacities will not only need to be identified, but will also need to be implemented. Possible implementation methods include the much-debated reservation system, adoption of public transportation systems within parks (and banning of private vehicular travel), special-use permits, or general advertising campaigns that direct people away from the most visited parks and toward the less well-known parks. These and other implementation strategies will be presented for consideration in Part IV.
This Note focuses on the NPS's failure to act in adopting a carrying capacity for each park specifically, and discusses some of the negative effects this failure has had on individual parks. Part I provides a general background of the national parks system and will more fully explore the dual aims of its Organic Act. Part II discusses the NPS's affirmative response to the 1978 amendment requiring carrying capacities, while Part III focuses on the ramifications of the widespread nonresponse by many of the parks. Part IV considers possible fixes, including not only inspiring the NPS to adopt carrying capacities, but also pragmatically responding to the current overcrowding dilemma.
The first national park created was Yellowstone National Park in 1872, predating the creation of the NPS. When the United States laid aside land for Yellowstone, it did so with the express purpose of providing "a public park or pleasuring ground for the benefit and enjoyment of the people," (20) and dedicated the land to the control of the Secretary of the Interior. (21) Congress created several other parks before commissioning the NPS, including Mount Rainier, Sequoia, Yosemite, and Glacier. (22)
Congress created the NPS in 1916, and its Organic Act contemplated two different but closely related aims: "[T]o 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." (23) This enumeration of purpose burdens the NPS with no small task; the two goals can be conceived of as working at cross-purposes. The public's enjoyment might need to be limited in order to fully preserve the parks.
In the 2006 NPS Management Policies, the agency explicitly recognized the need to prioritize conservation at the expense of public engagement with the federal lands:
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. (24) Commenters have also agreed that the plain meaning of the statutory text prioritizes the conservation goal above that of providing enjoyment to the public. (25) This line of thinking has long predated the 2006 guidelines. The Secretary of the Interior in 1918, Franklin Lane, wrote similarly in laying out his expected administrative policy to the first NPS Director, Stephen Mather:
This policy is based on three broad principles: First that the national parks must be maintained in absolutely unimpaired form for the use of Future generations as well as those of our own time...