By: Jeffrey Dixon[*]
Published: February 28, 2023
I. INTRODUCTION
National park visitor numbers continue to grow.[1] In 2015, for the first time, the national park system saw over 300 million visitors in a year.[2] This is a number that has continued to increase every year except for 2020.[3] In 2021, 44 parks set new visitor records.[4]
No two parks are alike, and even the most innocent recreational activities may damage certain parks in the long run.[5] While a single visitor’s fishing outing may not eliminate an entire species of fish, millions of visitors’ outings might.[6] As visitor numbers continue to grow, rule-makers are faced with two legitimate, seemingly irreconcilable goals of encouraging recreation while protecting the park lands from this same recreation.[7] But it is possible to achieve both goals; in fact, Mount Rainier National Park’s newest Special Regulation is a model of how to balance visitor engagement and conservation in national parks.[8]
II. BACKGROUND
The Organic Act of 1916 created the National Park Service.[9] The agency’s mission is “to conserve the scenery and the natural and historic objects and the [wildlife] 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.”[10] To set boundaries for sustainable enjoyment, the National Park Service creates rules, found in Title 36, Chapter I of the Code of Federal Regulations, that impose reasonable limits on responsible activities and proscribe irresponsible activities.[11]
Given the diverse terrain across the 424 national parks in all 50 states,[12] Part 7 outlines Special Regulations, which set forth park-specific rules.[13] Special Regulations provide important safeguards against transgressions specific to certain parks.[14] Most commonly, Special Regulations require permits for recreational activities, designate airstrips and transportation routes, or establish limits on camping, fishing, and hunting.[15] But other rules are more niche. For example, Sequoia, Kings Canyon, and Yellowstone National Parks limit the distance that domesticated pets can stray from main roadways.[16] In Grand Teton National Park, one cannot idle a snowmobile for more than five minutes.[17] At Mount Rushmore National Memorial, stated simply, “[c]limbing Mount Rushmore is prohibited.”[18]
In some cases, visitors and community stakeholders have pushed back, claiming that the National Park Service created arbitrary or counterproductive rules.[19] In Organized Fishermen of Florida v. Hodel, commercial fisherman sought declaratory and injunctive relief from an Everglades National Park rule limiting the taking of fish, outlining sanctuaries for endangered fish species, and prohibiting commercial fishing.[20] Both the trial and appellate courts, however, held that the fishermen did not have a property right to commercial fishing in the park, and that the National Park Service had the right to create and enforce such rules.[21] Thus, the rule did not constitute an abuse of discretion.[22]
The single rule in Canyonlands National Park—“[m]otorized vehicles are prohibited in Salt Creek Canyon above Peekaboo campsite”[23]—came under attack in 2011.[24] In San Juan County v. United States, the state of Utah and one of its counties disagreed with the National Park Service about whether to prohibit vehicles from using a road that was historically used to access Angel Arch, one of the park’s most popular landmarks.[25] While Utah and the county agreed that traffic on this road should be restricted to a maximum number of vehicles per day, they also argued that banning traffic altogether eliminated a vital path for locals and visitors to access the park.[26] But the court disagreed and allowed the Special Regulation to stand.[27]
Special Regulations continue to evolve in the interest of both conservation and recreation.[28] In 2007, in response to visitor spikes, the National Park Service amended the rule for Dry Tortugas National Park after nearly 40 years, redefining vessel operation and fishing methods and restricting interaction with shipwrecks and coral reefs.[29] During the rulemaking process, 99% of public comments supported the establishment of a Research Natural Area, a 42-square-mile area of the park where anchoring and fishing would be prohibited.[30] As this rule indicates, balancing visitor engagement and park conservation are two crucial—and sometimes conflicting—goals of Special Regulations.[31]
But is it possible to draft a rule that achieves both goals? In short, yes: a brand-new rule amendment for Mount Rainier National Park effectively balances the two goals and should serve as a model for future Special Regulations.[32]
III. ANALYSIS
Broader rule language that allows park management to exercise discretion in the nonlinear pursuit of specific conservation goals, rather than all-encompassing bans, supports conservation efforts without sacrificing visitor enjoyment.[33] In addition, flexible standards allow visitors to stay informed when visiting certain parks, as management can directly communicate and track the rule’s objectives.[34]
The Mount Rainier National Park rule amendment, effective February 21, 2023, serves as a model of what future Special Regulations should look like.[35] Instead of listing exact bodies of water where fishing is prohibited and enumerating size, catch, and possession limits, “[f]ishing closures and restrictions [will now be] established by the Superintendent based on management objectives for the preservation of the park’s natural resources.”[36] Specifically, the Superintendent may establish limits on “species of fish that may be taken, seasons and hours during which fishing may take place, methods of taking, and size, creel, and possession limits.”[37]
This amendment advances the 2018 Fish Management Plan, which aims to “restore aquatic ecosystems” and “conserve native fish” by “reducing or eliminating nonnative fish.”[38] Draftees claim that the revised rule will “increase compliance, strengthen enforcement, and decrease public confusion and frustration,” as both park visitors and the state of Washington frequently ask the National Park Service for clarity on fishing rules.[39] This rule will also enhance the visitor experience, opening new areas of the park to fishing.[40] Simply put, by eliminating rigidity and prioritizing flexible rules that conform to current park initiatives, the amendment adequately balances conservation goals and visitor enjoyment, and it should serve as the blueprint for future park-specific rules.
IV. CONCLUSION
The National Park Service is tasked with balancing short-term and long-term interests in national parks.[41] While the parks exist so that people can appreciate historic lands, enjoyment without boundaries reduces the quality of the lands for future generations.[42] Special Regulations help to achieve balance on a local level because rules cannot be one-size-fits-all for inherently different parks.[43] Mount Rainier National Park’s recent amendment serves as a reminder that thoughtful changes can enhance both conservation and recreation instead of sacrificing one for the other.[44]
Footnotes
[1] See Visitation Numbers, Nat’l Park Serv., https://bit.ly/3JxCasI (last updated Feb. 16, 2022).
[2] See id.
[3] See id.
[4] Most Famous National Parks Set Visitation Records in 2021, Nat’l Park Serv. (Feb. 16, 2022), https://bit.ly/3X0dVXg.
[5] See Charlotte Simmonds et al., Crisis in Our National Parks: How Tourists Are Loving Nature to Death, Guardian, https://bit.ly/2S3KUZD (last visited Feb. 18, 2023).
[6] See Craig Pittman, Study Claims Overfishing Has National Park Fisheries on “Brink of Calamity,” Nat’l Parks Traveler, https://bit.ly/3lOsvEA (last visited Feb. 18, 2023).
[7] See, e.g., Dry Tortugas National Park—Special Regulations, 71 Fed. Reg. 76154, 76163 (Dec. 20, 2006) (codified at 36 C.F.R. § 7.27) (“[T]he statutory mission of the [National Park Service is] to provide long-term protection of park resources and values while allowing for visitor use and enjoyment.”).
[8] See infra Part III.
[9] Organic Act of 1916, Nat’l Park Serv., https://bit.ly/3YdNpuH (last visited Feb. 1, 2023).
[10] Id.
[11] See 36 C.F.R. §§ 1.1–79.18 (2023).
[12] See About Us, Nat’l Park Serv., https://bit.ly/3k4M7ns (last visited Feb. 18, 2023).
[13] See, e.g., 36 C.F.R. § 7.63 (Dinosaur National Monument); id. § 7.75 (Padre Island National Seashore); id. § 7.16 (Yosemite National Park).
[14] For example, the park-specific regulation for Hot Springs National Park prevents the taking of the park’s water for any purpose other than personal drinking. See id. § 7.18(b).
[15] See id. § 7.15; id. § 7.56; id. § 7.28.
[16] See id. § 7.8(a); id. § 7.13(h).
[17] See id. § 7.22(g)(11)(i)(A).
[18] Id. § 7.77(a).
[19] See, e.g., Organized Fishermen of Fla. v. Hodel, 775 F.2d 1544, 1547 (11th Cir. 1985) (“Some groups advocated an immediate ban on commercial fishing and stricter limits on the recreational catch while some perceived no problem at all and believed, therefore, that restrictions on fishing would be meaningless, if not counterproductive.”).
[20] See id. at 1546.
[21] See id. at 1548–50.
[22] See id. at 1550.
[23] 36 C.F.R. § 7.44(a).
[24] See San Juan Cnty. v. United States, No. 2:04-CV-0552, 2011 WL 2144762, at *15–16 (D. Utah May 27, 2011), aff’d, 754 F.3d 787 (10th Cir. 2014).
[25] See id. at *1.
[26] See id. at *17.
[27] See id. at *36.
[28] See Dry Tortugas National Park—Special Regulations, 71 Fed. Reg. 76154, 76154 (Dec. 20, 2006) (codified at 36 C.F.R. § 7.27).
[29] See id.
[30] See id. at 76156.
[31] See id. at 76163 (noting that the “statutory mission” of the National Park Service is “to provide long-term protection of park resources and values while allowing for visitor use and enjoyment”).
[32] See infra Part III.
[33] See infra Part III.
[34] See infra Part III.
[35] See 36 C.F.R. § 7.5 (2023).
[36] See id. § 7.5(a)(1).
[37] See id. § 7.5(a)(2).
[38] Mount Rainier National Park; Fishing, 87 Fed. Reg. 1374, 1374 (Jan. 11, 2022) (codified at 36 C.F.R. § 7.5).
[39] Id. at 1376-77.
[40] See id. at 1376 (“Removing these closures and restrictions would create new angling opportunities for nonnative species . . . .”).
[41] See supra Part II.
[42] See supra Part II.
[43] See supra Part II.
[44] See supra Part III.
About the Author
Jeffrey Dixon is a first-year J.D. candidate at Penn State Law. After living in Pittsburgh, Pennsylvania and Arlington, Virginia, Jeffrey graduated from The George Washington University with a Bachelor of Business Administration, where he was on the Division I Men’s Rowing team and served as a team representative on the NCAA Student-Athlete Advisory Committee. Jeffrey was placed on the GW Athletics Dean’s List and Intercollegiate Rowing Association All-Academic Team and honored by GW and the White House for community service efforts. Before enrolling at Penn State Law, Jeffrey worked in Washington, D.C. as a Senior Account Executive for Clutch.co and interned with the U.S. Securities and Exchange Commission and U.S. Senate Sergeant at Arms.
Suggested Citation: Jeffrey Dixon, Balancing Conservation with Recreation: National Park Special Regulations, Penn St. L. Rev.: F. Blog (Feb. 28, 2023), https://www.pennstatelawreview.org/the-forum/balancing-conservation-with-recreation-national-park-special-regulations/.