00-23732. Notice of New Policy Interpreting the National Park Service (NPS) Organic Act

AGENCY:

National Park Service, Interior.

ACTION:

Notice of new policy.

SUMMARY:

The Director of the NPS has approved “Director's Order #55: Interpreting the National Park Service Organic Act.” This Director's Order adopts section 1.4 of NPS “Management Policies” in advance of adopting the entire 10-chapter volume. We have done this so that all NPS employees will have access to our official interpretation of the 1916 NPS Organic Act (16 U.S.C. 1) and the 1978 amendment to the National Park System General Authorities Act of 1970 (16 U.S.C. 1a-1). These statutes, taken together, are the primary source of guidance for managing the national parks. All NPS personnel must conduct their work activities and make decisions affecting the national park system in conformance with the interpretation in this Director's Order.

ADDRESSES:

Director's Order #55 is available on the Internet at http://www.nps.gov/​refdesk/​DOrders/​index.htm#new. Requests for paper copies should be sent to: NPS Office of Policy, Room 2414, Main Interior Building, Washington, DC 20240. Copies may also be obtained by calling [phone].

FOR FURTHER INFORMATION CONTACT:

Mr. Chick Fagan at [phone].

SUPPLEMENTARY INFORMATION:

A draft of proposed revisions to NPS “Management Policies” was issued for a 60-day public review and comment period, beginning January 19, 2000 [65 FR 2984]. We subsequently considered all the comments received, and will adopt the year 2000 edition of Management Policies in the near future. However, due to the importance of instituting as soon as possible a Service-wide interpretation of the most salient provisions of the Organic Act and General Authorities Act, we have issued Director's Order #55 as a means of adopting section 1.4 of “Management Policies.” This Service-wide interpretation will help all NPS employees understand their legal duties in managing the national park system, and will help ensure the law is properly and consistently applied throughout the national park system.

Comments on Draft Section 1.4

Sixteen organizations and individuals commented on section 1.4 of the draft “Management Policies.” Their comments and our responses are summarized below. Most of the comments listed are summaries or consolidations of comments that shared similarities.

Comment #1: The NPS Organic Act gives equal weight to the NPS's obligation to conserve park resources unimpaired, and to the NPS's obligation to provide opportunities for public enjoyment. This is not properly reflected in the NPS's proposed policy.

Our response: Congress, recognizing that the enjoyment by future generations of the national parks can be assured only if the superb quality of park resources and values is left unimpaired, has provided that when there is an unavoidable conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. This is how courts have consistently interpreted the Organic Act, in decisions that variously describe it as making “resource protection the primary goal” or “resource protection the overarching concern,” or as establishing a “primary mission of resource conservation,” a “conservation mandate,” “an overriding preservation mandate,” “an overarching goal of resource protection,” or “but a single purpose, namely, conservation.”

Comment #2: It is virtually impossible to provide opportunities for enjoyment without causing at least some degree of impairment. The NPS should acknowledge this fact and not use the Organic Act as a pretext for curtailing the level of public use and enjoyment allowed in national parks.

Our response: The Organic Act and the General Authorities Act prohibit impairment of park resources and values, not all impacts to park resources and values. We have revised section 1.4 to make that distinction clearer.

Comment #3: The definitions of “enjoyment,” “resources and values,” and “impairment” are critically important to how the NPS will implement the policy. As written, they are too unclear; or will allow too much (or too little) discretion by decision-makers.

Our response: We have revised the definitions to make it easier to understand how these words apply within the context of the overall policy. We have also revised text at other key points to help make the overall policy clearer and, in the process, reduced the need for more explicit definitions.

Comment #4: Some parks were established because of their natural qualities, some because of their historic qualities, and some because of their recreational qualities. Since these parks and their resources are not all the same, the policies should not treat them as if they are all the same. (Conversely, another commenter felt that a stronger statement should be included to remind readers that all parks deserve the same level of protection, regardless of what they are called.)

Our response: The Organic Act states the “fundamental purpose” of all national parks, national monuments, and reservations managed by NPS. A 1978 amendment to the NPS General Authorities Act “further reaffirms, declares, and directs that the promotion and regulation of the various units of the National Park System. * * * shall be consistent with and founded in the purpose established by” the Organic Act, and that, “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.” These statutory provisions make it clear that the mandates of the Organic Act and the General Authorities Act apply equally to all units of the National Park System, except as Congress may have directly and specifically provided otherwise.

Comment #5: Federal courts have consistently reaffirmed the policies interpretation that, when there is a conflict between conserving resources and values and providing for public enjoyment, conservation is to be predominant.

Our response: This point has been added to the policy text.

Comment #6: The proposed policy presumes that the first line of defense against impairment should be to limit public enjoyment. The NPS should instead examine other remedies before placing unnecessary restrictions on public enjoyment.

Our response: This interpretation of these laws makes it clear that NPS may not allow the impairment of park resources and values, but it does not establish any presumptions or preferences as to what management steps must be taken to avoid those impairments. However, other parts of “Management Policies,” particularly Chapter 8: Use of the Parks, include NPS policies that are relevant.

Comment #7: Impairments caused by actions that were reviewed and approved as acceptable in the past should be exempt from eliminating the impairment.

Our response: The Organic Act and the General Authorities Act do not include any provisions to exempt prior authorized activities from the prohibition on the impairment of park resources and values.

Comment #8: The policy should be clear that as-yet undiscovered resources must be protected from impairment, in the same way that known resources must be protected.

Our response: We agree that the resources and values which the Organic Act protects are not limited to those that we happen to know about today. We believe the policy is sufficiently clear on this point.

Comment #9: The new policy requirement for an “impairment review” by the NPS will be costly, contentious, and burdensome.

Our response: For the past 30 years the NPS has been complying with the requirement of the National Environmental Policy Act that we evaluate the environmental consequences of our proposed actions. We plan to integrate into the NEPA compliance process the new requirement for a determination that there would be no impairment of park resources and values from a proposed activity. We do not expect it to make the management decision-making process appreciably more costly, contentious, or burdensome.

Comment #10: The policies set forth in section 1.4 need to be supplemented by additional directives and procedures to help ensure their effective implementation.

Our response: We will judge over the coming months whether field managers have difficulty applying the policy, and we will issue supplemental guidance, as necessary.

Dated: September 8, 2000.

Loran Fraser,

Chief, Office of Policy.