THE NATIONAL PARK SERVICE IN LAW REVIEWS

          AND LAW JOURNALS: A SECOND UPDATE

 

                             Thomas W. Lucke

 

         n the Summer 1982 and 1983 issues of The George Wright          FORUM, I published what were brief annotated bibliographies of legal          periodical literature on subjects pertaining to the National Park Service. Judging from the number of telephone and memoranda requests I received from park managers, planners, and rangers for copies of various individual articles, I can safely say that quite a number of people read and gave thought to the two FORUM articles. Heartened by this type of response, I felt it would be beneficial to produce a second update, covering articles printed since the 1983 FORUM  appeared.

         "Status of Mining Claims Within National Rivers of the United States" by Daniel Viramontes. Natural Resources Journal 24(1)(January, 1984):221-227. The article discusses the litigation over the 101 1872 Mining Law claims filed by Tom Brown's predecessor in interest within Buffalo National River, Arkansas. While the article is somewhat disjointed and lacks clarity, it does present the reasons used by various courts to declare that National Park Service areas are closed to any future entry under the 1872 Mining Laws.

         "Water Rights for Expanded Uses on Federal Reservations" by Kirk S. Samelson. Denver Law Journal 61(1)(1983):67-76. In November of 1982, the Colorado Supreme Court decided United States v. City and County of Denver, a leading case in the area of Federal reserved water rights. Mr. Samelson discusses the case in general, but he focuses mainly on the instream flow questions that involved Dinosaur National Monument. In deciding that Dinosaur National Monument purposes did not include water for recreational boating and that national monuments were more limited in purpose than national parks, the Colorado Supreme Court laid the foundations for severely limiting water rights in NPS areas. The implications and ramifications of the decision are discussed in detail.

         "The Acquisition of National Parkland: A Challenge for the Future" by Rosemary E. Nation. Dalhousie Law Journal  7(1983):260-296. With the exception of Grasslands National Park in Saskatchewan in 1982, there has been almost no expansion of the Canadian national park system in recent years. Ms. Nation's article examines the steps involved in establishing a Canadian natural park and the problems which arise during the process. She examines possible ways to alleviate the problems and to facilitate the process in order to "end the present standstill in land acquisition and produce a truly representative national park system in Canada." Anyone interested in expansion of the U.S. park system would find this a worthwhile comparative study.

         "Power of Congress Under the Property Clause to Give Extraterritorial Effect to Federal Lands Law: Will 'Respecting Property' Go the Way of 'Affecting Commerce'?" by Ronald F. Frank and John H. Eckhardt. Natural Resources Lawyer  XV(4)(1983):663-686. The power of the National Park Service to reach out beyond its boundaries to regulate or stop activities or projects negatively impacting on park resources is being much discussed. The authors of this article focus on this issue. The history of the extraterritorial powers of various Federal agencies, the case of United States v. Brown  at Voyageurs National Park, and the Siberling Park Protection Bill are discussed in detail. They conclude by recommending a set of standards and criteria which, if written into the law, would make the Park Protection Bill and any implementing regulations workable.

         "Federal Recreational Land Policy: The Rise and Decline of the Land and Water Conservation Fund" by George Cameron Coggins and Robert L. Glicksman. Columbia Journal of Environmental Law 9(2)(1984): 125-236. This article gives a detailed analysis of the Land and Water Conservation Fund Act, which serves as the main funding mechanism for acquisition of Federal and state park, preservation, and recreation lands. The authors then discuss the moratorium on land acquisition imposed by Secretary of the Interior James Watt. They argue that unilateral  withholding of appropriated funds violates the letter and spirit of the Land and Water Conservation Fund Act, the Federal anti-improvement law and the Secretary of the Interior's common-law duty as trustee of the public lands.

         "Tax Incentives for Land Conservation: The Charitable Contribution Deduction for Gifts of Conservation Easements" by Janet L. Madden. Boston College Environmental Affairs Law Review 11(1)(1983): 105-148. Until recently, the approach taken by the National Park Service to effectuate conservation and preservation has been to purchase outright the particular parcels of land or historic properties in question. With the advent of Land Protection Plans, the Service has begun to rely on scenic/preservation/conservation easements. The use of such easements is endorsed by the Federal tax system, which provides for a charitable deduction for contribution of this less-than-fee interest. The park manager or planner who will be working with possible donations of easements can gain a good working knowledge of this aspect of the law .by spending some time with this article.

         Two law review articles on cultural resources protection in other countries have been published recently. They are "Conservation, Control and Heritage: Public Law and Portable Antiquities" by G. J. Bennett and C. M. Brand, Anglo-American Law Review 12 (3) (July/September, 1983):141-173 (England) and "The Whys and Wherefores of Historic Places Legislation" by Simon Reeves, New Zealand Law Journal  (June, 1983):172-174, 184. The articles present concepts as to how two different countries view and deal with cultural resources.

         A final piece of literature that came to my attention this past year is The Politics of Parklands: Resource Decision Making in the National Park Service  by Rosemary Nichols (1981). It is a Ph.D. dissertation, Duke University, Department of Forestry and Environmental Studies. While it is not a law review/journal article, it contains the information on which such articles are based. Utilizing case examples of the Le Conte Lodge at the Great Smokies and shoreline stabilization at Cape Hatteras, she analyzes the NPS decision-making process. She suggests that the organizational structure and administrative processes developed by the NPS in the early 1900s have endured with only minor modifications to this day. Adaptation to today's legal, administrative, and political environment could have taken several different courses, but the NPS chose to take none. Consequently, the central problem of today's National Park Service may well be its failure to adapt to its environment.

         As a final note, I would again like to remind readers that the ideas and concepts presented in the various articles do not represent the official position of the National Park Service or the Department of the Interior. They are the personal views of the individual authors and/or the institutions they represent.

 

Thomas W. Lucke, Chief, Water Resources Branch, National Park          Service, Ft. Collins, Colorado.

 

 

        THE NATIONAL PARK SERVICE IN LAW REVIEWS

              AND LAW JOURNALS: A THIRD UPDATE

 

                               THOMAS W. LUCKE

 

         ver the past several years, I have found that the legal profession is is          is becoming more and more concerned with the problems and          issues surrounding the National Park Service (NPS). This concern is evidenced by the increasing number of law review and law journal articles that speak directly to NPS policy questions and disputes. However, this body of literature is usually not made available to park managers, planners or resource management specialists. In several past issue of The George Wright FORUM  (see Vol. 2, No. 3, 1982; Vol. 3, No. 3, 1983; and Vol. 4, No. 2, 1985), I have tried to bridge this gap by preparing an annotated bibliography of the legal periodical literature that is available. This article is an update of the legal literature that has appeared this past year.

         Ever since publication of The State of the Parks Report in 1980, much has been written and said about how to protect park resources from adverse impacts resulting from activities occurring outside of park boundaries. Anyone interested in or involved with this policy issue would do well to read Blake Shepard's "The Scope of Congress' Constitutional Power Under the Property Clause: Regulating Non-Federal Property to Further the Purpose of National Parks and Wilderness Areas," Boston College Environmental Affairs Law Review 11(3)(1984):479-538 and "Protecting National Parks from Developments Beyond Their Borders," University of Pennsylvania Law Review 132(5)(June 1984):1189-1216. The two articles examine the various park protection bills introduced in Congress over the past several years, review recent court decisions involving resource damage caused by adverse peripheral development, and asses the viability of several alternatives for protecting national park areas from developments beyond their borders.

         In July of 1980, then Governor Edmund Brown, Jr., nominated 4,000 miles of California's North Coast rivers for inclusion in the National Wild and Scenic River System. By 1984, after expensive litigation and extensive campaigning, the North Coast river designations had been stalled. What had looked like a casebook example of federal-state cooperation to achieve long-standing and well-defined state and national goals had turned into an unpredictable stewpot of shifting economic interests, changing government personnel, and conflicting public policies. The entire North Coast rivers designation history is delightfully and adeptly told by Sally K. Fairfax, Barbara T. Andrews and Andrew P. Buchsbaum in "Federalism and the Wild and Scenic Rivers Act: Now You See It, Now You Don't," Washington Law Review 59(3)(July 1984):417-470. Any manager or park planner involved in the planning, establishment, or designation of a wild and scenic river or even a national trail would benefit from a thorough reading of this article.

         Many natural resource issues do not respect national boundaries. What happens in one country can affect parks and resources in a second country. People interested in such international natural resource problems can find interesting reading in a number of articles that appeared in 1984:

         a. "Cabin Creek and International Law--An Overview" by David K. W. Wilson, Jr., The Public Land Law Review  5(Spring 1984):110-127. In British Columbia, Sage Creek Ltd. plans to extract 150 million tons of coal along Cabin Creek, which flows into the North Fork of the Flathead River which forms the western boundary of Glacier National Park. Fears are that silt and pollution from the mine will flow downstream and adversely affect Glacier National Park. This article gives a history of the controversy surrounding the Cabin Creek mine issue and describes the role that will be played by the International Joint Boundary Waters Commission in resolving the dispute.

         b. "A Comparative Analysis of Land Preservation Incentives: Brazil and the United States" by Frederick A. B. Meyerson, Columbia Journal of Transnational Law 22(2)(1984):389-411. Mr. Meyerson details the various nonprofit and charitable activities in the United States. He claims that "a combination of governmental and private efforts has resulted in one of the most extensive and well-managed systems of national, state and local parks and preserves in the world." He cites Acadia, Redwoods, Crater Lake and Grand Tetons as examples of private philanthropy. He then compares land donation activities in Brazil which has tax deduction legislation similar to what the United States has. He discovers that the Brazilian tax incentives have not been particularly effective in stimulating charitable giving and concludes that a variety of historical, cultural, and political circumstances are limiting factors in the private preservation movement in Brazil.

         c. The Fall, 1983, issue of The Kansas Law Review (Vol. 32, No. 1) is dedicated to "a Symposium on Transboundary Problems In Natural Resources Law." In the opening article, "Grizzly Bears Don't Stop at Customs" (pp. 1-6) George Cammeron Coggins summarizes much of the litigation and legal commentary inspired by transboundary problems. Professor Charles F. Wilkinson and Daniel Keith Connor, in "The Law Of The Pacific Salmon Fishery: Conservation and Allocation Of A Transboundary Common Property Resource" explore the problem of allocating the anadromous fish resources in the Pacific Northwest. They argue strongly that interjurisdictional cooperation is necessary to save this resource from extinction. Alistair R. Lucas' article, "Acid Rain: The Canadian Position" (pp. 165-180), provides a Canadian perspective on the transboundary issue of acid rain. Professor Lucas finds the United States' response to this problem inadequate. These are just a few examples of the numerous articles contained in this issue of The Kansas Law Review.

         To preserve our history and to foster civic pride, the Federal government, through the National Park Service, and states confer landmark status on buildings of historic or architectural significance. For some owners of such properties, landmark designation may prove more a burden than a blessing. Compelled to maintain the building and often restrained from enlarging it, the owner may suffer spatial and financial strain. And, if the landmark is a church, the burdens of landmark designation raise first amendment concerns. Evelyn B. Newell's article, "Model Free Exercise Challenges For Religious Landmarks," Case Western Reserve Law Review 34(1)(1983):144-169 examines the conflict between a congregation's right to free exercise of religion and the state's interest in historic preservation. It applies the constitutional standards for infringement of free exercise to four hypothetical fact patterns and concludes that the first amendment provides a viable means of challenging burdensome landmark status.

         The Wilderness Act of 1964 opened an era of legislative proposals designed to protect rivers, tails, endangered species, air, water and the environment in general. What has occurred over the past twenty years by wilderness enthusiasts, what yet remains to be done for this country to have a viable wilderness system, and what values are derived from wilderness are presented in Michael Frome's "The Twentieth Anniversary Of The Wilderness Act: Still In Pursuit Of The Promised Land," XXIV, The Horace M. Albright Conservation Lectureship, Berkeley, California, April 26, 1984, pp. 1-12.

         Joseph L. Sax, in his "Why We Will Not (Should Not) Sell The Public Lands: Changing Conceptions Of Private Property," Utah Law Review 1983(2):313-326, discusses recent proposals to sell public lands and shows that the various "privateization" initiatives generate enthusiasm in the abstract and reluctance at the concrete level. He feels that we are not going to see widespread public land sales nor a significant relaxation of controls over developmental activities. Professor Sax's article is an excellent philosophical discussion on the evolving conceptions of land use control and practices in the United States.

         Another article by Joseph Sax appeared in the University of Pittsburgh Law Review 45(3)(Spring 1984):499-511. Entitled "Do Communities Have Rights? The National Parks As A Laboratory Of New Ideas," the article analyses the conflicting values and policies at work in situations where a community exists within the exterior boundaries of a National Park Service area. Professor Sax speaks to those things that are usually associated with a community: distinctiveness, stability, a strong association of the people with the landscape, maintenance of traditions and historical structures. Using Boxley Valley at Buffalo National River as his main example, he develops criteria for use by decision makers in determining when it would be appropriate to allow a community to continue to exist within a Park Service area.

         In "The National Natural Landmark Program: A Natural Areas Protection Technique For The 1980s And Beyond," UCLA Journal Of Environmental Law And Policy  3(1)(1982):119-160, Russell A Cohen discusses the National Park Service's Natural Landmark Program, its history, its development, its shortcomings and its strengths. He concludes with a number of recommendations as to how to make the program a more effective tool in preserving nationally significant natural resources. The article draws heavily on interviews with Park Service staff such as Mike Lamb and Frank Ugolini.

         The National Park System areas in Alaska total over 54 million acres, most of which were set aside when President Carter signed the Alaskan National Interest Lands Conservation Act on December 2, 1980. On January 26, 1983, Senator Ted Stevens (R-Alaska) introduced Senate Bill 49 which called for the reclassification of 12,778,000 acres of park land as national preserves in order to legalize sport hunting. Senator Steven's bill is discussed in detail in David M. Roseberg's "The Concept of National Preserves In Senate Bill 49: A Dangerous Precedent," Harvard Journal On Legislation 21(2)(Summer 1984):549-557. The author's conclusion is that Senate Bill 49 "would convert the national preserve from a shield that is used to accomplish increased protection to a sword that decreases protection and destroys the stability of current land classifications."

         Water rights and water law are becoming important issues for the park manager and resource management specialist, particularly for those in the arid west and southwest where water is considered the life-blood of all activity. Today, westerners, and some easterners, face an exceptionally acute problem: they must decide how to allocate the limited quantity of available water among all users and uses. Managers involved in water rights litigation or adjudications could gain insights into the confusing world of water law by reading "The Metamorphisis Of The Federal Non-Reserved Water Rights Theory" by Lisa L. O'Sullivan and Marjorie Thomas, The Public Land Law Review 4(Spring 1983):114-133 and "The Winters Of Our Discontent: Federal Reserved Water Rights in the Western States" by Todd A. Fisher, Cornell Law Review  69(5)(June 1984):1077-1093.

         Every year a number of visitors to National Park Service areas suffer injuries or even death. While many accidents are beyond the Service's control, some result from negligence in failing to give adequate warnings or to protect visitors against hazardous conditions. When such negligence or wrongdoing occurs, the Federal Tort Claims Act comes into play, and there may well be a lawsuite instituted against the U. S. Government as well as against individual employees and managers. Two recent publications concerning tort claims have appeared this past year. They are: "Law Related Issues for Park and Recreation Managers," Trends 21(3)(1984):1-48 and "Protecting Visitors To National Recreation Areas Under The Federal Tort Claims Act" by Paul A. Svoboda, Columbia Law Review 84(7)(November 1984):11792-1812. The issue of Trends contains eleven brief articles on various aspects of tort claims, including standards of liability, necessity for regular safety inspections and what types of activities are exempt from tort claims. The Svoboda article gives a history of the Federal Tort Claims Act. He points out that the Act defines liability by reference to state liability standards and that, because most states have recently enacted recreational use statutes that vastly limit landowner liability, it is now exceedingly difficult for injured visitors to receive compensation. His conclusion is that courts should not apply recreational use statute standards but should apply a standard of "reasonable care" in deciding whether or not a visitor should receive compensation for injuries sustained due to alleged government wrongdoing or negligence. The Svoboda article also contains an excellent and extensive list of citations for court decisions on tort claims involving injuries in Park Service areas.

         I would like to remind the reader that the reading of a law review article or two is no substitute for a briefing by or formal opinion from a solicitor. However, the legal literature cited above presents policy options, provides background data to insure a full understanding of an issue, and increases the level of awareness concerning the nuances and implications of various pieces of legislation that form the basis of the National Park Service mission of preservation and management of natural and cultural resources.

        

Thomas W. Lucke, Chief Water Resources Branch, National Park          Service, Ft. Collins, Colorado.