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Dec 19, 2016
Caitlin Brown is a 3L at Berkeley Law and Co-Editor in Chief of Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate (ELRS).
The National Park Service manages over 84 million acres of land divided between 413 different sites, and in 2015 alone, served 307.2 million visitors. Their management goals are based on the 1916 National Park Service Organic Act (“the Act”). Section 1 of the Act defines the Park Service’s purpose as “to 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.” How are conservation and impairment from section 1 of the Act defined in the legislative history? How did these concepts originally enter the legislation, and what did Congress think the implications of the standards were? Professor Eric Biber of Berkeley Law posed these questions to me to assist with his research for an article he wrote with Elisabeth Long Esposito, The National Park Service Organic Act and Climate Change. Given that 2016 is the centennial of the National Park Service’s founding by the Organic Act, a deep dive into the legislative history of the National Park Service seemed timely.
In the legislative history, Congress never explicitly defined conservation or impairment. However, the concerns of the Congressmen and the experts who influenced the legislation allow inferences about what these provisions mean. Generally, one can interpret these terms by reference to the differences between National Parks and National Forests. In comparison to National Forests, managed for consumptive use of their resources, National Parks were to be preserved for their scenic value and protected for the benefit of future generations.
As the Park Service manages millions of acres of land vulnerable to the impacts of climate change, these questions are important. The Organic Act and subsequent amendments could offer leeway to Park Service managers as they try to respond to those impacts. Because neither the Organic Act nor its amendments set out specific management directives, I searched the legislative history for any evidence from the debates, conferences, and hearings that was useful in interpreting the extremely broad language of section 1. Ultimately, nothing in these documents prohibits active management by the Park Service to conserve and protect against the effects of climate change.
My research encompassed the legislative history of the National Park Service including hearings beginning in 1912 on what would become the 1916 Organic Act, the 1970 General Authorities Act, and the Redwood Amendments in 1978. I read the related hearings, reports, and floor debates to better understand the usage and meaning of conservation and impairment as terms in the Act.
The Secretary of the Interior and the American Civic Association first suggested the mandate to prevent detrimental uses of the parks in a proposed bill in 1912. The hope was that this section would define “clearly and definitely the purposes for which the public parks [should] be maintained and . . . to prohibit any uses which would be detrimental to these purposes.” The language of the proposed bill read:
That the parks, monuments, and reservations herein provided for shall not at any time be used in any way contrary to the purpose thereof as agencies promoting public recreation and public health through the use and enjoyment by the people of such parks, monuments, and reservations, and of the natural scenery and objects of interest therein, or in any way detrimental to the value thereof for such purpose.
This ‘purpose’ language, however, did not quite accomplish Congress’s goal of clarity because it did not specify any detrimental uses or create a hierarchy when any of the enumerated purposes conflicted.
However, the legislative history in 1912 explained how the parks, monuments and reservations differed from other public lands, which in turn provides a glimpse into the purpose of the parks. For example, the Secretary of Agriculture, James Wilson, emphasized the difference between national forests and national parks, namely that national forests “should be managed with a view to their fullest possible development and use, in order that the industries dependent upon them may secure necessary supplies.” Conversely, “the national parks should be managed with a view to preserving their scenic interest and furnishing a recreation ground for the people, only allowing such use of their resources as may be necessary to improve and protect them.” He recommended against including “large bodies of heavy timber” because “there would ultimately be a pressure on the park bureau to cut it on a commercial basis.” However, if parks had to be in “timber country,” they should still be managed with “reference to their scenic beauty.” This recommendation makes it clear that the scenic beauty of parks was to be put ahead of commercial use. It was for this reason that Secretary Wilson also recommended amending section 4 of the bill which, at the time, allowed for the Secretary of Interior to:
[S]ell or dispose of dead or insect-infested timber and of such matured timber as in his judgment may be disposed of without detriment to the scenic or other purposes for which such parks, monuments, or reservations are established, grant leases and permits for the use of the lands the development of the resources, or privileges for the accommodation of visitors in the various parks, monuments, and reservations herein provided for, for periods not exceeding twenty years.
His amendment struck the language above and only allowed the Secretary of Interior to:
[G]rant leases and permits for such use of the land and such development of its resources as may be necessary for the improvement and protection of such parks, monuments, and reservations, or for privileges for the accommodation of visitors to the various parks, monuments, and reservations herein provided for, for periods not exceeding twenty years.
He narrowed the Secretary of Interior’s authority because he believed the original language authorized “a fuller use than should be allowed.” Under the original bill the Secretary could have authorized harvest of mature timber and only had to explain that in his judgment it was not detrimental to the park. Wilson’s amendment flipped the requirement to only allow timber harvest (or other uses of resources) when it was necessary to improve and protect the parks.
Similar inferences can be drawn from the testimony of the Chief Forester of the Department of Agriculture in 1914 when discussing the Grand Canyon. At that time the Grand Canyon was a National Forest. However, it was recognized that it should be a National Park instead. The Chief Forester noted that the Department of Agriculture was working “with the Interior Department in getting methods and outlining boundary lines,” preparing for it to become a National Park. The Forest Service was already “administering it with reference to its park features” so that when it became a park it would “go right along without any change of policy” and there would not be “any shacks along the rim.” This discussion suggests that the conservation and nonimpairment purposes meant allowing parks to retain their wild characteristics—their “park features”—and remain free of scenery marring structures. In addition to these references in the 1912 and 1914 hearings, the general tone indicates it was obvious that the parks were special and different and needed particular management. Neither these bills nor their legislative history defined the difference between these management practices in any detail.
The driving force, instead, behind these bills leading up to the passage of the Organic Act was not to clearly define conservation and nonimpairment to guide future Park Service leaders, but rather to “to bring the administration of the various parks and monuments under one head, thus substituting uniformity of law and administration for the present disorganized condition.” It is therefore unsurprising that much of this early legislative history concerns the administrative organization and funding of the park system, rather than the meaning of particular terms.
In 1916, unified administration of the Park Service and the challenge of making that happen were still the driving force behind the bill. However, this was also when Congress incorporated language regarding the fundamental purpose of the Park Service:
[It s]hall be determined the fundamental object of the aforesaid parks, monuments, and reservations is to conserve the scenery and the natural and historical objects therein and to provide for the enjoyment of said scenery and objects by the public in any manner and by any means that will leave them unimpaired for the enjoyment of future generations.
This language, framed by Frederick Law Olmstead, was included to “explain what the parks were for.” In testimony, J. Horace McFarland, President of the American Civic Association, discussed what this language meant to him. However, he never specifically defined conservation or impairment; instead his statements allow inferences to be drawn about what these terms meant to him. He considered establishing the Park Service to be of utmost importance because the purpose of the parks was “unrelated to any other purpose carried out by any other bureau or department in the whole Government scope or service.” The parks were the “Nation’s pleasure grounds and the Nation’s restoring places” while the forests were “the nation’s wood lots.” The national parks needed to be “dignified by a separate handling” in order to be “freer from the assaults of selfishness.” And the “two ideas of the parks” (conservation and enjoyment by the public) should never be weakened, only strengthened. Once again, in distinguishing between the National Parks and National Forests, it is clear that parks were different and special. It was of the utmost importance to “preserve for [the people] wide spaces of fine scenery for their delight” and “perpetual enjoyment.”
Glimpses into what the purpose of the Park Service meant to Congress can be found in the House Public Lands Committee’s discussion of conservation of wildlife and the protections of national monuments and reservations. Because the parks were free of “public lumbering” and “protected by law from hunting of any kind,” they alone “had the seclusion and other conditions essential for the protection and propagation of wild animal life” and would become “great public nature schools.” Further, the national monuments and reserves were to be “administered in connection with the national parks, which they strongly resemble.” The “protection and preservation” was “of great interest and importance, because a great variety of objects, historic, prehistoric, and scientific in character, are thus preserved for public use intact, instead of being exploited by private individuals for gain and their treasures scattered.” These discussions recognize conservation and nonimpairment of resources for future generations as the purpose of the Act, despite the lack of express definitions.
In later versions of the bill, Congress slightly changed the fundamental purpose language to “[to] 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.” In this committee report, the purposes of the park service are further defined in relation to the management of national forests: “It was the unanimous opinion of the committee that there should not be any conflict of jurisdiction as between” the two departments which could hinder the management of the parks “set apart for the public enjoyment and entertainment” as opposed to the forests which were “devoted strictly to utilitarian purposes.” This “segregation of national park[s]” required “the preservation of nature as it exists.” As such, the conservation and nonimpairment standards were what set the parks apart from the national forests. The discussion of this difference in the legislative history was as close as Congress got to defining the terms.
The General Authorities Act of 1970 was not a “glamorous bill” and was intended to clarify that the National Park System’s fundamental purpose extended to all of the different areas managed by the Park Service and not just the parks and monuments. Between 1916 and 1970 the concept of the national park system had “broadened to include battlegrounds and historic places, as well as areas primarily significant for their outdoor recreation potential.” The aim of the bill was to make sure that all park system units were “appropriately administered so that the long-term interests of the public [could] be served.” Congress reiterated that the “objective of the national park system [was] to conserve and protect for the edification and enjoyment of the American public—now and in the future—areas and places of national significance.” Again, this bill offered no definition of conservation.
The Redwood Amendment reaffirmed Congress’s support that decisions by the Park Service would be based on the criteria provided by 16 U.S.C. § 1—the conservation and nonimpairment language—and that this language would also guide courts when resolving conflicts between “competing private and public values and interests in the areas surrounding Redwood National Park and other areas of the National Park System.” Surprisingly, this transboundary reach was not disputed by the minority views published in the report.
The amendment added the following language to the end of the General Authorities Act:
Congress further reaffirms, declares and directs that the promotion and regulation of the various areas of the National Park System . . . shall be consistent with and founded in the purpose established by the first section of the Act of August 25, 1916, to the common benefit of all the people of the United States. 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.
It was necessary to reaffirm the purpose of the National Park System because the committee was “concerned that litigation with regard to Redwood National Park and other areas of the system may have blurred the responsibilities articulated by the 1916 Act creating the National Park Service.” “Accordingly,” the committee reported, the “Secretary is to afford the highest standard of protection and care to the natural resources within . . . [the] National Park System. No decision shall compromise these resource values except as Congress may have specifically provided.” While not specifically identifying this as the conservation and nonimpairment mandate, it can be inferred as such given that conservation and nonimpairment were the purposes of the National Park Service defined in section 1 of the Act.
Congress meant for the Redwood Amendment to establish “once and for all that the administration of our great park resources is a preeminent responsibility of the United States.” Further, it “elevates and strengthens the management standards establishing the National Park Service in 1916 to requirements of law.” And, importantly for Park Services managers, the Redwood Amendment “insures that management decisions affecting our park system must square with this standard and that competing interests not consistent with the first section of the act of August 25, 1916, may only be approved if specifically authorized, either previously or through subsequent legislation, by Congress.” In sum, the Redwood Amendment clarified that Congress intended for Park Service managers to have authority to manage the lands for conservation and nonimpairment in order to comply with the legally-mandated management standards.
The Organic Act and subsequent legislation granted the Secretary of Interior authority to manage the National Parks System consistently with the fundamental purpose language. Neither the statute nor the legislative history defines the terms “conservation” or “impairment” clearly. The Redwood Amendment’s legislative history comes closest to explaining the intent behind these mandates, offering guidance for both Park Service managers and courts when considering disputes between public and private interests and always putting conservation before a detrimental use unless specifically directed by Congress.
When considering the impacts of climate change on the National Parks, the legislative history behind the conservation and nonimpairment mandate supports active management to conserve and protect all units within the Park Service. At the time the Act was passed, the legislators could not have contemplated the potential impacts of climate change. Instead, they planned protection for the parks against detrimental human uses. But it is from the legislators’ protective language that Park Service managers can justify their authority to protect against the detrimental impacts of climate change.
 Nat’l Park Serv., National Park Service Overview (2016), https://www.nps.gov/aboutus/news/upload/NPS-Overview-09-01-2016.pdf.
 16 U.S.C. § 1 (1916) (codified at 54 U.S.C. § 100101(a)) (emphasis added).
 Eric Biber & Elisabeth Long Esposito, The National Park Service Organic Act and Climate Change, 56 Nat. Resources J. 193, 208 n.84 (2016). My research was used to support the point that “[i]f any lesson can be drawn from the Organic Act's legislative history, it is probably that Congress intended the Park Service to have broad discretion to protect the scenic nature of its lands, and prioritize protection of scenery over other goals (such as commercial timber harvesting).” Id. at 208.
 This was the framing for Professor Biber and Ms. Esposito’s article. Biber & Esposito, supra note 3.
 The American Civic Association (“the ACA”), led by J. Horace McFarland, promoted “the beautification of cities and the preservation of national treasures, such as Niagara Falls and Yosemite’s Hetch Hetchy Valley.” Ellen Terrell, John Horace McFarland: Unsung Hero of the National Park Service, Library of Congress (August 25, 2016) https://blogs.loc.gov/inside_adams/2016/08/john-horace-mcfarland-unsung-hero-of-the-national-park-service/. McFarland and the ACA promoted creation of the National Parks Bureau—which would become the National Park Service—arguing that national management of the parks was critical to protect them. See John Horace McFarland, Address of Mr. J. Horace McFarland, 1911 Proceedings of the National Parks Session of the American Civic Association 10 https://babel.hathitrust.org/cgi/pt?id=loc.ark:/13960/t8tb1gb0j;view=1up;seq=5.
 When I use the word ‘parks’ in this memo, I am referring to all the different types of units the Park Service managed at the time of the legislation (in 1916, for example, National Parks, National Monuments and National Reservations).
 S. Rep. No. 62-676, at 1–2 (1912). It was at this time, too, that the Secretary of Interior and the ACA recommended, “the name of the organization should be the National Park Service instead of Bureau of National Parks.” Id. at 1.
 Id. at 2.
 Id. at 1.
 Establishment of a National Park Service: Hearing on H.R. 22995 Before the H. Comm. on the Public Lands, 62nd Cong. 5 (1912).
 Id. at 3 (emphasis added). Section 4 of this version of the bill would eventually become section 3.
 Id. at 5 (emphasis added).
 National Park Service: Hearing on H.R. 104 Before the H. Comm. on the Public Lands, 63rd Cong. 77 (1914).
 See S. Rep. No. 676 (1912); Establishment of a National Park Service: Hearing on H.R. 22995 Before the H. Comm. on the Public Lands, 62nd Cong. (1912); National Park Service: Hearing on H.R. 104 Before the H. Comm. on the Public Lands, 63rd Cong. (1914).
 S. Rep. No. 62-676, at 2 (1912).
 See, e.g., Bureau of National Parks: Hearing on S. 3463 Before the H. Comm. on Public Lands, 62nd Cong. (1912) (explaining why the Service needs an engineer and an assistant attorney; issues with salaries of these positions); Establishment of a National Park Service: Hearing on H.R. 22995 Before the H. Comm. on the Public Lands, 62nd Cong. (1912) (lack of coordination between the parks and consistent appropriations means that facilities and roads are not well developed); National Park Service: Hearing on H.R. 104 Before the H. Comm. on the Public Lands, 63rd Cong. (1914) (the parks all have similar needs but are not managed as one unit leading to very expensive local administration).
 Congressmen were particularly upset at the lack of visitors to the western parks after the 1915 Panama-Pacific International Exposition in San Francisco. Instead of returning by way of Yosemite and Glacier, “75 percent of them returned by the Canadian Pacific thanks to the very efficient advertising which Canada [had] done.” National Park Service: Hearing on H.R. 434 and H.R. 8668 Before the H. Comm. on the Public Lands, 64th Cong. 35 (1916). They took it as a personal affront and attributed it to a lack of a National Park Service, which Canada had, which would have been coordinated enough to lure people to the American parks: “the Canadian national parks, because of their exploitation and because of the things that had been done to make them ready for the comfort and convenience and safety of the tourists, drew the great, wholesale travel. . . That meant thousands upon thousands of dollars of cold American cash for Canada, to be credited to its parks.” Id. at 6. See also S. Rep. No. 64-662 (1916) (discussing why Park Service is necessary and appropriations needed); 53 Cong. Rec. 12, 150 (1916) (hiring decisions given to Secretary of Interior rather than Congress).
 National Park Service: Hearing on H.R. 434 and H.R. 8668 Before the H. Comm. on the Public Lands, 64th Cong. 52 (1916) (emphasis added).
 Id. at 53.
 Id. Selfishness was seen as a threat because “[t]he places of scenic beauty do not increase, but, on the contrary, are in danger of being reduced in number and diminished in quantity, and the danger is always increasing with the accumulation of wealth, owing to the desire of private persons to appropriate these places.” Id. at 54.
 Id. at 54.
 Id. (quoting the British ambassador in November 1912).
 Id. at 43-44.
 Id. at 46.
 H.R. Rep. No. 64-700, at 1(1916).
 Id. at 3.
 116 Cong. Rec. 24,955 (1970); see also A Bill Relating to the Administration of the National Park System: Hearing on H.R. 14114, Before the H. Subcomm. on National Parks and Recreation of the Comm. on Interior and Insular Affairs, 91st Cong. (1969).
 S. Rep. No. 91-1014 (1970); see H.R. Rep. No. 91-1265 (1970).
 S. Rep. No. 91-1014 (1970).
 Id. at 1–2.
 S. Rep. No. 95-528, at 8 (1978).
 See id. at 50-57.
 Id. at 24.
 Id. at 14.
 124 Cong. Rec. H2017 (daily ed. March 14, 1978) (statement of Rep. Burton).