The National Park Service in Law Reviews
and Law Journals: A Third Update
Thomas W. Lucke
eginning in 1982, I have published in The George Wright FORUM brief annotated bibliographies of legal periodical literature on subjects pertaining to the National Park Service. Park managers and planners as well as interested individuals at universities and in conservation organizations have recommended to me that I continue producing this type of article. They indicated that it is a worthwhile contribution to their conservation/preservation work and that this is one of the few sources on legal literature that is readily available to them. Consequently, I felt that it would be appropriate to produce this third update, covering articles printed in legal journals this past year.
As in past years, Joseph L. Sax, Professor of Law at the University of Michigan, has continued to produce articles on the Park Service. Two of his recent works are: "The Almost Tragic Tale of Boxley Valley: A Case History in the Management of the National Parks," Law Quadrangle Notes, University of Michigan Law School (Volume 29, No. 2, Winter 1985, pp. 30-36) and "The Rights of Communities: A Blank Space in American Law," Occasional Paper Series, Natural Resources Law Center, University of Colorado (1984, pp. 1-16). Both papers are a modified version of a presentation by Professor Sax in the Distinguished Mellon Scholar Lecture Series of the University of
Volume 4 ® Number 4 15
Pittsburgh under the title "This Valley Shall Not Die: Managing Resources as if People Mattered." All three of these efforts by Sax center on the cultural landscape in Boxley Valley, Buffalo National River, Arkansas. Using Boxley Valley as a case example, Professor Sax takes a look at the situation where functioning villages and communities are located within the boundaries of recently authorized NPS areas. He analyzes the issues, concerns and cultural values that need to be considered by the Service in its planning and decision-making processes.
Park Superintendents and planners interested in the various collective values that public ownership of land embody should read a third article by Joseph L. Sax published this past year. It is "The Legitimacy of Collective Values: The Case of the Public Lands" in the Colorado Law Review, Volume 56, Number 3, Spring 1985, pp. 537-557. In this article, Sax maintains that there are certain distinctive values—the preservation of a grizzly population and maintenance of democratic institutions, as examples—that can be expressed only through the political community to which we belong. And, while the grizzly could possibly be saved by powerful and high-minded organizations, such action would still not have the added value of demonstrating that the United States (our political community) cares. Private action done in the name of an individual and the actions of the political community acting in the name of the American people have different effects both at home and abroad. The article is must reading for anyone interested in the future of the preservation movement.
In recent years, a number of Native Americans have requested permission to erect ceremonial lodges, visit sacred sites and collect certain natural resources within units of the National Park System. Big Bend, Bandelier, and Olympic are examples. The question of access to sacred sites by Navajos at Glen Canyon NRA and Rainbow Bridge NM was litigated in Badoni v. Higginson. This issue can find the preservation and visitor use mandates of the Service pitted against the religious freedom clause of the First Amendment to the Constitution. Managers who anticipate that this problem will have to be addressed in their particular park areas would do well to read "Eagles and Indians: The Law and the Survival of a Species" by Kenneth P. Pitt, The Public Land Law Review (Volume 5, Spring 1984, pp. 100-109) and "Indian Worship v. Government Development: A New Breed of Religion Cases" by Cynthia Thorley Andreason, Utah Law Review (1984, Number 2, pp. 313-336). Both articles acknowledge the importance of religious freedom, but both also acknowledge that preservation statutes must be enforced against all people if the goals of preservation are to be met.
Two recent articles speak to external cultural resource programs of the National Park Service. They are "Current Tax Trends Affecting Historic Rehabilitation: Catalyst or Obstacle to the Preservation of Our
16 The George Wright FORUM
Nation's History?" by William P. Van Saders, Fordham Urban Law Journal, Volume XIII, Number 1, 1984-85, pp. 231-280, and "The Protection, Salvage, and Preservation of Underwater Cultural Resources in the Chesapeake Bay" by Charles A. Szypszak, Virginia Journal of Natural Resources Law, Volume 4, Number 2, 1985, pp. 373-395. Both articles speak to the need for increased efforts and additional legislation to insure that cultural resources on State and private land be preserved and protected.
"Wyoming School Trust Lands Trapped Inside Grand Teton National Park—Alternative Solutions for the Commissioner of Public Lands" by Clinton D. Beaver appears in Land and Water Law Review, Volume XX, Number 1, 1985, pp. 207-220. The State of Wyoming currently owns 1,366 acres of school lands within Grand Teton National Park. This article describes the conflicts faced by the State of Wyoming in administering school lands within the Park, reviews the concept of school trust obligations, examines the land use restrictions imposed on these lands by the NPS, and suggests various alternatives to resolve the conflict between the school trust obligations and the Park's restrictions.
One of the personal benefits I receive from publishing these summaries of legal periodical literature is that various readers are thoughtful enough to send me copies of literature that comes to their attention. One delightful piece that was sent to me this past year was "Gateways to Nowhere: A Recent History of Federal Urban Parks" by Rolf Dismant, Master of Landscape Architecture Thesis, 1973, 66pp. The thesis describes and details the legislative history, political maneuvering and politics behind the establishment of three urban recreation areas: Cuyahoga, Golden Gate and Gateway. He concludes his thesis with these words: "Future urban recreation policy is too critical an issue to leave in the hands of OMB, or worse, to allow the White House to use as a political football. In place of the 'Legacy of Parks' which Nixon promised, the American people were left a legacy of politics and political appointees." The thesis is well written, well researched and a delight to read.
In the western United States today, there is intense competition for water, a limited resource. Growing sun-belt cities, ranchers, miners and manufacturers all need water to operate, but that same water is also needed to preserve fisheries and riparian values in National Park System areas. This competition over water in the west is described in two recent articles. They are "The Future of Western Water Law" by David H. Getches, Resource Law Notes, University of Colorado, Number 6, September 1985, pp. 1-7, and "Taming the Rapids: Negotiations of Federal Reserved Water Rights in Montana" by Jody Miller, The Public Land Law Review, Volume 6, Spring 1985, pp. 167-182.
Volume 4 ® Number 4 17
"The Cape Cod National Seashore: A Case Study of Federal Administrative Control Over Traditionally Local Land Use Decisions" by Charlotte E. Thomas appears in the Boston College Environmental Affairs Law Review, Volume 12, Number 2, 1985, pp. 225-272. Ms. Thomas concludes that the Cape Cod system of controlling land use in the several villages within the boundaries of the Seashore has been partially successful in preserving the natural and scenic resources. However, she does make specific proposals and recommendations to make that system even more successful.
The issue of Park Protection or Park Threats continues to receive attention in legal literature. The most recent article is "On Protecting the National Parks from the External Threats Dilemma" by Robert B. Keiter, Land and Water Law Review (Volume XX, Number 2, 1985, pp. 355-420). By using Glacier National Park as a case example, Professor Keiter shows that under existing legislation the Park Service is unable to deal adequately with the various external threats facing America's national parks. He concludes by presenting legislative proposals which would enable the National Park Service to protect its natural resources.
The Fall 1984 issue of Environmental Law (Volumbe 15, Number 1) contains three articles pertaining to the National Park Service. They are "A Reinterpretation of National Park Legislation" by John Lemons and Dean Stout (pp. 41-66); "The Columbia River Gorge Needs Federal Protection" by Bob Packwood (pp. 67-70); and "Proposed Federal Land Use of the Columbia River Gorge" by Gary D. Meyers and Jean Meschke (pp. 71-113). The last two articles, of course, describe an area that has been proposed as a unit of the Park System. They focus on an analysis of the bills in Congress that would protect the gorge, describe the results of the different bills, and discuss the constitutionality of Federal land use regulation of private lands adjacent to Federal lands. The Lemons-Stout article is a refreshing look at the preservation versus use dilemma in the National Park Service Organic Act of 1916. The authors conclude, after an analysis of the legislation, legislative history and case law, that preservation is an absolute duty.
As I mentioned in the previous two articles, the reading of a few law review articles will not make a lawyer out of a park manager or planner. Yet, we are a litigious people, and Park Service employees face legal questions and litigation on a routine basis. Deaths resulting from a flood in Rocky Mountain National Park, ORV use at Cape Cod National Seashore, mining within park units in Alaska, allowing bison to migrate across the geographic boundaries of Yellowstone National Park, and water rights at Dinosaur National Monument are just a few examples of issues that resulted in the Park Service being taken to the Court House this past year. A firm grasp of law and legal issues by a reading of the available legal literature will make such courtroom encounters more understandable, if not more pleasurable.
18 The George Wright FORUM
Thomas W. Lucke, Chief, Water Resources Division, National Park Service, Fort Collins, Colorado.