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Natural Resources Journal Current Issue

Winter 2016, Vol. 56 No. 1

Front Matter

This article examines the National Park Service’s past and future presence in urban America. Scholars, conservationists, and park administrators agree that urban park spaces and programming must be a focus of the National Park Service in its second century. This article explains the motivations behind the National Park Service’s first urban parks and describes the National Park Service’s recent emphasis on urban areas. From designations such as Pullman Park in Chicago, to initiatives like the Urban Agenda, the National Park Service is poised to engage urban America and create a new generation of park visitors.

National parks have been characterized as a democratic institution, a window on natural and cultural history open to all. Over its first century, however, the National Park Service’s (NPS) approach to participatory democracy has evolved. In its early years, NPS professionals applied their expertise to make decisions about park policy, administration and management with little input from the public aside from the interests of businesses that operated within the parks. Public participation in the parks was limited to using the facilities that the NPS provided for public enjoyment. Beginning in the 1930s, the NPS expanded public participation by adding management categories that included a greater range of uses, appealing to a wider public. Later, reflecting changing approaches in law, policy and political theory on how to operationalize participation effectively, the NPS increased opportunities for the public to participate in administrative and management decisions. Consulting with the public increased responsiveness to a broad range of public desires and helped the NPS develop effective management plans. In the 1980s, the NPS extended public participation even further by collaborating as partners with local communities and organizations in national heritage areas (NHAs). As a partner in NHAs, the role of the NPS moved beyond land manager as the agency took on new responsibilities in community development. Although Congress designates NHAs, they are administered by local entities with the goal of organizing heritage-based education and tourism. NHA management entities partner with the NPS to draw on its expertise in heritage tourism, interpretation and landscape management. NHAs represent a twenty-first century approach to public administration, emphasizing collaboration, partnerships, and sharing costs and responsibilities through federal-local cooperation. They expand the National Park Service’s role as guardian not only of American heritage, but also of American democracy.

For Native peoples, sacred sites and other traditional cultural properties are of critical importance to the preservation of their culture, society, and overall tribal sovereignty. Often these traditional cultural resources are part of present day national park landscapes. Today, tribes have unprecedented opportunities to reclaim a presence on their aboriginal lands, and in turn the National Park Service has an opportunity to ensure that parks remain a sanctuary for the practice of native traditions by accommodating and prioritizing native interests in the implementation of Indian policies and government-to-government obligations. This Article provides an overview of the tribal-NPS relationship, a discussion of the National Park Service Indian policies, and the application of trust obligations to accommodate tribal interests in the national parks. This Article advocates that the National Park Service should prioritize tribal interests to enable tribal peoples to access aboriginal lands where timehonored traditions and practices are celebrated and life is renewed.

Biscayne National Park is the largest marine national park in the United States. It contains four distinct ecosystems, encompasses 173,000 acres (only five percent of which are land), and is located within densely populated Miami-Dade County. The bay has a rich history of natural resource utilization, but aggressive residential and industrial development schemes prompted Congress to create Biscayne National Monument in 1968, followed by the designation of Biscayne National Park in 1980. When the dust settled, Florida retained key management powers over the Park, including joint authority over fishery management.

States and the federal government occasionally share responsibility for regulating natural resources, but Biscayne National Park represents a unique case study in cooperative federalism. This article explores these cooperative federalism contours in order to assess whether the park’s management paradigm provides a model worthy of replication. A diverse range of materials were reviewed for this project, including literature and jurisprudence on traditional models of cooperative federalism, federal natural resources laws, national park regulations and policy, Biscayne National Park’s statutory frameworks and legislative history, state and federal management plans, inter-agency communications, and direct stakeholder interviews.

These materials combine to tell a story of cooperative federalism that has been frustrating and, at times, incoherent. But the story also demonstrates that shared responsibility over fishery management has produced beneficial results for the Park and its stakeholders by forcing state and federal officials to work together on planning and enforcement, diversifying human and financial resources, and incorporating federal, state, and local interests into park management and policy. The research suggests that future applications of the Biscayne National Park model of cooperative federalism, in which states and the federal government share joint authority over marine resources in some capacity, may enjoy similar success.

Invasive species are a significant environmental and economic threat throughout the United States. Over 6,500 non-native species have been documented on national park lands. To adequately address invasive species issues, the National Park Service must work cooperatively with state governments to prevent the introduction and spread of non-native species. A variety of mechanisms, both formal and informal, are available to the National Park Service to cooperatively manage park ecosystems with their neighboring land management agencies. Coordination of programs can be achieved through simple informal working relationships between agency staff, incorporation of state laws into park policies, or negotiation of formal memoranda of agreement imposing contractual obligations. This article will highlight, through the lens of invasive species management, the legal options available to facilitate federal-state cooperation across National Park System boundaries.

While a great deal of public attention addresses the Halliburton loophole of the Energy Policy Act of 2005 and Bureau of Land Management efforts to regulate hydraulic fracturing on public lands, less attention has been paid to the National Park Service “9B Regulations,” which provide a national regulatory framework governing the exercise of oil and gas rights in national parks. This article begins with a review of law pertaining to oil and gas drilling in national parks. The article examines the tension in striking a balance between environmental protection, conservation of national lands, and achieving energy independence, including National Park Service proposals to revise the 9B regulations. The article concludes that because it is impractical to purchase the mineral rights in NPS units, it is critical to revise the 9B rules to: (1) raise the bond and financial assurance requirements; (2) create protocols that bring exempt operations within the 9B regulations (3) create access and user fees that reflect fair use; (4) allow administrative fines to be assessed for minor violations; (5) ensure all drilling meets modern safety standards including measures to preclude park damage after well closure; (6) require a baseline environmental assessment as a permit condition; and (7) require operators to map both surface and subsurface operations and record in land records the exact location of all pipes and other equipment installed in the land.

This article examines the future of the National Park Service Organic Act in a changing climate. Managers and scholars have raised questions about whether the Organic Act gives the Park Service sufficient authority to undertake the steps necessary to adapt to climate change. This article concludes that the Organic Act and park-specific enabling acts, as interpreted by the courts, grant the Park Service wide discretion to pursue management options for adaptation to climate change impacts on national park resources. It also concludes that the Organic Act, properly understood, does impose some necessary constraints on agency decision-making, constraints that prevent inappropriate development projects and that require thoughtful decision-making to minimize the risk of unintended management consequences. Overall, the Organic Act will remain relevant into the next century.

Book Reviews

Romancing the Wild: Cultural Dimensions of Ecotourism by Robert Fletcher (Duke University Press Books; 264 pages; 2014)
Reviewed by Julianna Maes, Class of 2017, University of New Mexico School of Law

The Science of Open Spaces: Theory and Practice for Conserving Large Complex Systems by Charles G. Curtin (Island Press; 264 pages; 2015)
Reviewed by Richard Moore, Class of 2017, University of New Mexico School of Law

Wolves, Courts, and Public Policy: The Children of the Night Return to the Northern Rocky Mountains by Edward A. Fitzgerald (Lexington Books; 242 pages; 2015)
Reviewed by Mark Peralta-Silva, Class of 2017, University of New Mexico School of Law

Crimes Against Nature: Squatters, Poachers, Thieves, and the Hidden History of American Conservation by Karl Jacoby (University of California Press; 352 pages; 2014)
Reviewed by Rachel Woods,, Class of 2017, University of New Mexico School of Law