The problem of statutory detail in National Park establishment legislation and its relationship to pollution control law

Denver University Law Review

Volumn 74, Issue 3, 1997, Pages 779-814

  Fischman, Robert L ^a,b,c  

^a INDIANA UNIVERSITY   (United States)

^b PRINCETON UNIVERSITY   (United States)

^c UNIVERSITY OF MICHIGAN   (United States)

Author keywords

[No Author keywords available]

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EID: 13544250961     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (225)

1. 16 U.S.C. § 1 (1994) [hereinafter Organic Act].
2. See, e.g., Dennis J. Herman, Loving Them to Death: Legal Controls on the Type and Scale of Development in the National Parks, 11 STAN. ENVTL. L.J. 3, 4 (1992); Robert B. Keiter, National Park Protection: Putting the Organic Act to Work, in OUR COMMON LAMDS: DEFENDING THE NATIONAL PARKS 75 (David J. Simon ed., 1988); John Lemons & Dean Stout, A Reinterpretation of National Park Legislation, 15 ENVTL. L. 41, 42 (1984); William Andrew Shutkin, Note, The National Park Service Act Revisited, 10 VA. ENVTL. L.J. 345, 361 (1991); see also Clayton L. Riddle, Comment, Protecting the Grand Canyon National Park from Glen Canyon Dam: Environmental Law at Its Worst, 77 MARQ. L. REV. 115, 126-29 (1993) (describing constraints on NPS power to protect parklands).
3. See, e.g., Dennis J. Herman, Loving Them to Death: Legal Controls on the Type and Scale of Development in the National Parks, 11 STAN. ENVTL. L.J. 3, 4 (1992); Robert B. Keiter, National Park Protection: Putting the Organic Act to Work, in OUR COMMON LAMDS: DEFENDING THE NATIONAL PARKS 75 (David J. Simon ed., 1988); John Lemons & Dean Stout, A Reinterpretation of National Park Legislation, 15 ENVTL. L. 41, 42 (1984); William Andrew Shutkin, Note, The National Park Service Act Revisited, 10 VA. ENVTL. L.J. 345, 361 (1991); see also Clayton L. Riddle, Comment, Protecting the Grand Canyon National Park from Glen Canyon Dam: Environmental Law at Its Worst, 77 MARQ. L. REV. 115, 126-29 (1993) (describing constraints on NPS power to protect parklands).
4. See, e.g., Dennis J. Herman, Loving Them to Death: Legal Controls on the Type and Scale of Development in the National Parks, 11 STAN. ENVTL. L.J. 3, 4 (1992); Robert B. Keiter, National Park Protection: Putting the Organic Act to Work, in OUR COMMON LAMDS: DEFENDING THE NATIONAL PARKS 75 (David J. Simon ed., 1988); John Lemons & Dean Stout, A Reinterpretation of National Park Legislation, 15 ENVTL. L. 41, 42 (1984); William Andrew Shutkin, Note, The National Park Service Act Revisited, 10 VA. ENVTL. L.J. 345, 361 (1991); see also Clayton L. Riddle, Comment, Protecting the Grand Canyon National Park from Glen Canyon Dam: Environmental Law at Its Worst, 77 MARQ. L. REV. 115, 126-29 (1993) (describing constraints on NPS power to protect parklands).
5. See, e.g., Dennis J. Herman, Loving Them to Death: Legal Controls on the Type and Scale of Development in the National Parks, 11 STAN. ENVTL. L.J. 3, 4 (1992); Robert B. Keiter, National Park Protection: Putting the Organic Act to Work, in OUR COMMON LAMDS: DEFENDING THE NATIONAL PARKS 75 (David J. Simon ed., 1988); John Lemons & Dean Stout, A Reinterpretation of National Park Legislation, 15 ENVTL. L. 41, 42 (1984); William Andrew Shutkin, Note, The National Park Service Act Revisited, 10 VA. ENVTL. L.J. 345, 361 (1991); see also Clayton L. Riddle, Comment, Protecting the Grand Canyon National Park from Glen Canyon Dam: Environmental Law at Its Worst, 77 MARQ. L. REV. 115, 126-29 (1993) (describing constraints on NPS power to protect parklands).
6. See, e.g., Dennis J. Herman, Loving Them to Death: Legal Controls on the Type and Scale of Development in the National Parks, 11 STAN. ENVTL. L.J. 3, 4 (1992); Robert B. Keiter, National Park Protection: Putting the Organic Act to Work, in OUR COMMON LAMDS: DEFENDING THE NATIONAL PARKS 75 (David J. Simon ed., 1988); John Lemons & Dean Stout, A Reinterpretation of National Park Legislation, 15 ENVTL. L. 41, 42 (1984); William Andrew Shutkin, Note, The National Park Service Act Revisited, 10 VA. ENVTL. L.J. 345, 361 (1991); see also Clayton L. Riddle, Comment, Protecting the Grand Canyon National Park from Glen Canyon Dam: Environmental Law at Its Worst, 77 MARQ. L. REV. 115, 126-29 (1993) (describing constraints on NPS power to protect parklands).
7. William J. Lockhart, External Park Threats and Interior's Limits: The Need for an Independent National Park Service, in OUR COMMON LANDS: DEFENDING THE NATIONAL PARKS 3, 3 (David J. Simon ed., 1988) (quoting Wallace Stegner, The Best Idea We Ever Had, 46 WILDERNESS 4 (1983)).
8. William J. Lockhart, External Park Threats and Interior's Limits: The Need for an Independent National Park Service, in OUR COMMON LANDS: DEFENDING THE NATIONAL PARKS 3, 3 (David J. Simon ed., 1988) (quoting Wallace Stegner, The Best Idea We Ever Had, 46 WILDERNESS 4 (1983)).
9. List of Units in the National Park System (visited Nov. 10, 1996) 〈http://www.nps.gov/legacy/npslist.html〉 [hereinafter List]. All of the reserved lands managed by the Service, not just designated "national parks," are part of the national park system. 16 U.S.C. § 1c(a) (1994). All national park system units are subject to the same organic legislation to the extent that it does not conflict with provisions specifically applicable to them. Id. § 1c(b)7. Specifically applicable provisions generally appear in establishment legislation.
10. 16 U.S.C. § 1c(b). Units of the park system range from the modest, such as Fort Stanwix National Monument, New York, to the vast, such as Wrangell-St. Elias National Park, Alaska. List, supra note 4. Delaware is the only state unrepresented in the over 80 million acres of the national park system. Id.
11. Compare Herman, supra note 2 (arguing for narrow Service discretion in balancing competing interests), with Douglas O. Linder, New Direction for Preservation Law: Creating an Environment Worth Experiencing, 20 ENVTL. L. 49, 49 (1990) (arguing for a new balancing approach emphasizing the human experience), and Riddle, supra note 2 (arguing for legislative restructuring of park management), and Robin Winks, Dispelling the Myth, NAT'L PARKS, July/Aug. 1996, at 52 (arguing that the tension is contrived because unimpairment concerns supersede all else). See generally, George Cameron Coggins, Protecting the Wildlife Resources of National Parks from External Threats, 22 LAND & WATER L. REV. 1, 15-27 (1987) (proposing legislative changes and approaches to reduce external threats); Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. COLO. L. REV. 293, 296-312 (1994) (discussing the current state of ecosystem management under the Organic Act).
12. Compare Herman, supra note 2 (arguing for narrow Service discretion in balancing competing interests), with Douglas O. Linder, New Direction for Preservation Law: Creating an Environment Worth Experiencing, 20 ENVTL. L. 49, 49 (1990) (arguing for a new balancing approach emphasizing the human experience), and Riddle, supra note 2 (arguing for legislative restructuring of park management), and Robin Winks, Dispelling the Myth, NAT'L PARKS, July/Aug. 1996, at 52 (arguing that the tension is contrived because unimpairment concerns supersede all else). See generally, George Cameron Coggins, Protecting the Wildlife Resources of National Parks from External Threats, 22 LAND & WATER L. REV. 1, 15-27 (1987) (proposing legislative changes and approaches to reduce external threats); Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. COLO. L. REV. 293, 296-312 (1994) (discussing the current state of ecosystem management under the Organic Act).
13. Compare Herman, supra note 2 (arguing for narrow Service discretion in balancing competing interests), with Douglas O. Linder, New Direction for Preservation Law: Creating an Environment Worth Experiencing, 20 ENVTL. L. 49, 49 (1990) (arguing for a new balancing approach emphasizing the human experience), and Riddle, supra note 2 (arguing for legislative restructuring of park management), and Robin Winks, Dispelling the Myth, NAT'L PARKS, July/Aug. 1996, at 52 (arguing that the tension is contrived because unimpairment concerns supersede all else). See generally, George Cameron Coggins, Protecting the Wildlife Resources of National Parks from External Threats, 22 LAND & WATER L. REV. 1, 15-27 (1987) (proposing legislative changes and approaches to reduce external threats); Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. COLO. L. REV. 293, 296-312 (1994) (discussing the current state of ecosystem management under the Organic Act).
14. Compare Herman, supra note 2 (arguing for narrow Service discretion in balancing competing interests), with Douglas O. Linder, New Direction for Preservation Law: Creating an Environment Worth Experiencing, 20 ENVTL. L. 49, 49 (1990) (arguing for a new balancing approach emphasizing the human experience), and Riddle, supra note 2 (arguing for legislative restructuring of park management), and Robin Winks, Dispelling the Myth, NAT'L PARKS, July/Aug. 1996, at 52 (arguing that the tension is contrived because unimpairment concerns supersede all else). See generally, George Cameron Coggins, Protecting the Wildlife Resources of National Parks from External Threats, 22 LAND & WATER L. REV. 1, 15-27 (1987) (proposing legislative changes and approaches to reduce external threats); Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. COLO. L. REV. 293, 296-312 (1994) (discussing the current state of ecosystem management under the Organic Act).
15. The proprietary strand of environmental law governs management of publicly owned resources.
16. See infra note 53 and accompanying text.
17. The establishment legislation for Haleakala National Park illustrates this bare-bones approach. See 16 U.S.C. § 396b, c (1994).
18. The establishment legislation for Great Basin National Park for instance, discusses zoning waters for fishing and limiting grazing. See id. § 410mm-1(b), (c) (1994).
19. The establishment legislation for Channel Islands National Park, for instance, provides a deadline for a management plan, requires consultation with certain interested parties, mandates certain contents of the plan, requires public hearings in particular locations to discuss certain issues, specifies low-intensity and limited entry management, prohibits entry fees, and mandates certain studies. See id. § 410ff, ff-2, ff-3, ff-6.
20. Id. § 1c(b); NATIONAL PARK SERVICE, U.S. DEP'T OF THE INTERIOR, MANAGEMENT POLICIES 2:6 (1988) [hereinafter MANAGEMENT POLICIES] ("Congressionally directed plans will be given a priority that enables their completion within the required time frame."). See, e.g., NATIONAL PARK SERVICE, U.S. DEP'T OF THE INTERIOR, FINAL GENERAL MANAGEMENT PLAN/ENVIRONMENTAL IMPACT STATEMENT: CARLSBAD CAVERNS 4 (1996) [hereinafter FINAL GENERAL MANAGEMENT PLAN] (recognizing establishment legislation to describe park purpose); Todd Wilkinson, Crowd Control: With a Pilot Program at Arches National Park, the National Park Service Is Charting a Promising New Course for Visitor Management, NAT'L PARKS, July/Aug. 1995, at 36, 39 (describing a resource management program in Arches National Park that begins with a re-examination of the establishment legislation).
21. See Robert B. Keiter, The Old Faithful Protection Act: Congress, National Park Ecosystems, and Private Property Rights, 14 PUB. LAND L. REV. 5, 5-8 (1993); Linder, supra note 6, at 63-69.
22. Organic Act reform could, say, mandate restoration and preservation of biological diversity. If Congress provided that this mandate superseded all establishment legislation provisions incompatible with achieving the biological diversity goals, it might solve the problem of amending each establishment statute separately. This blanket solution, however, would not express congressional intent as clearly as identifying just which establishment legislation provisions should be deemed incompatible. In any event, the existence of the establishment legislation management provisions cannot be overlooked in any reform proposal. See infra Section IV for consideration of a wider range of possible Organic Act reforms.
23. When the NPS celebrated its 75th anniversary, it participated in an intensive evaluation of its performance, commonly identified by the name of the town where the park management syumposium was held: Vail, Colorado. At the time, the results of the study were published in 1993, the core operating budget of the agency had "remained flat in real terms since 1983" while recreational visits to the system had risen 25 percent. NATIONAL PARK SERVICE STEERING COMMITTEE, NATIONAL PARKS FOR THE 21ST CENTURY: THE VAIL AGENDA 11 (1993) [hereinafter THE VAIL AGENDA]. In 1994, the Service fielded one ranger for every 80,000 visitors to the system, compared with one ranger for every 59,000 visitors in 1980. Michael Milstein, National Park Service Is Put on a Starvation Diet, HIGH COUNTRY NEWS, May 16, 1994, at 3.
24. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1823 (3d ed. 1992).
25. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2322 (1986).
26. ALFRED RUNTE, NATIONAL PARKS: THE AMERICAN EXPERIENCE 33-35 (2d ed. 1987).
27. See id. at 65-67; Robert B. Keiter & Mark S. Boyce, Greater Yellowstone's Future: Ecosystem Management in a Wilderness Environment, in THE GREATER YELLOWSTONE ECOSYSTEM: REDEFINING AMERICA'S WILDERNESS HERITAGE 379, 379-82, 402-07 (Robert B. Keiter & Mark S. Boyce eds., 1991).
28. See id. at 65-67; Robert B. Keiter & Mark S. Boyce, Greater Yellowstone's Future: Ecosystem Management in a Wilderness Environment, in THE GREATER YELLOWSTONE ECOSYSTEM: REDEFINING AMERICA'S WILDERNESS HERITAGE 379, 379-82, 402-07 (Robert B. Keiter & Mark S. Boyce eds., 1991).
29. See 141 CONG. REC. H9085 (daily ed. Sept. 18, 1995) (statement of Rep. Hansen); JAMES M. RIDENOUR, THE NATIONAL PARKS COMPROMISED: PORK BARREL POLITICS AND AMERICA'S TREASURES 16-19 (1994).
30. See infra Section III. The broader trend of increasing statutory detail outside of environmental law is undeniable but beyond the scope of this article.
31. U.S. CONST. art. I, § 8, cl. 3.
32. U.S. CONST. art. IV, § 3, cl. 2.
33. Siltation is the leading cause of impairment of rivers and streams in the United States. U.S. ENVIRONMENTAL PROTECTION AGENCY, NATIONAL WATER QUALITY INVENTORY: 1992 REPORT TO CONGRESS 3. In its 1992 inventory, the Environmental Protection Agency [EPA] attributed impairment through silviculture as the source of seven percent, and resource extraction as the source of eleven percent, of the assessed river miles impaired by pollution. Id. at 20. In many states, these activities are managed on federal public lands. Another example of a public land management activity that impacts ambient environment quality is prescribed burning, which contributes to air pollution problems in many parts of the country. See, e.g., GRAND CANYON VISIBILITY TRANSPORT COMMISSION, PROPOSED RECCOMMENDATIONS ii, 49-51 (April 1996 Draft for Public Comment); JANICE PETERSON & DAROLD WARD, USDA FOREST SERVICE PACIFIC NORTHWEST RESEARCH STATION, AN INVENTORY OF PARTICULATE MATTER AND AIR TOXIC EMISSIONS FROM PRESCRIBED FIRES IN THE UNITED STATES FOR 1989.
34. Siltation is the leading cause of impairment of rivers and streams in the United States. U.S. ENVIRONMENTAL PROTECTION AGENCY, NATIONAL WATER QUALITY INVENTORY: 1992 REPORT TO CONGRESS 3. In its 1992 inventory, the Environmental Protection Agency [EPA] attributed impairment through silviculture as the source of seven percent, and resource extraction as the source of eleven percent, of the assessed river miles impaired by pollution. Id. at 20. In many states, these activities are managed on federal public lands. Another example of a public land management activity that impacts ambient environment quality is prescribed burning, which contributes to air pollution problems in many parts of the country. See, e.g., GRAND CANYON VISIBILITY TRANSPORT COMMISSION, PROPOSED RECCOMMENDATIONS ii, 49-51 (April 1996 Draft for Public Comment); JANICE PETERSON & DAROLD WARD, USDA FOREST SERVICE PACIFIC NORTHWEST RESEARCH STATION, AN INVENTORY OF PARTICULATE MATTER AND AIR TOXIC EMISSIONS FROM PRESCRIBED FIRES IN THE UNITED STATES FOR 1989.
35. Atmospheric deposition of mercury interferes with the reproductive success of Florida panthers in Everglades National Park. C. Facemire et al., Impacts of Mercury Contamination in the Southeastern United States, 80 WATER AIR & SOIL POLLUTION 923, 925 (1995).
36. Robert L. Fischman, Biological Diversity and Environmental Protection: Authorities to Reduce Risk, 22 ENVTL. L. 435, 487-88 (1992) (addressing biological resource protection through the use of EPA authorities).
37. 33 U.S.C. §§ 1344(a)-(t) (1994).
38. See, e.g., ROGER W. FINDLEY & DANIEL A. FARBER, CASES AND MATERIALS ON ENVIRONMENTAL LAW v (4th ed. 1995); ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 102-114 (2d ed. 1996); ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY xxvii-xxix (1992); 1 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 3.1A, at 43-44 (Supp. 1996); J. William Futrell, Environmental Law History, in SUSTAINABLE ENVIRONMENTAL LAW 3, 43 (Celia Campbell-Mohn et al. eds., 1993); Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819. See generally, Joseph L. Sax, Environmental Law in the Law Schools: What We Teach and How We Feel About It, 19 ENVTL. L. REP. 10,251 (1989) (discussing professors' frustration with teaching environmental law in light of complex, changing statutes).
39. See, e.g., ROGER W. FINDLEY & DANIEL A. FARBER, CASES AND MATERIALS ON ENVIRONMENTAL LAW v (4th ed. 1995); ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 102-114 (2d ed. 1996); ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY xxvii-xxix (1992); 1 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 3.1A, at 43-44 (Supp. 1996); J. William Futrell, Environmental Law History, in SUSTAINABLE ENVIRONMENTAL LAW 3, 43 (Celia Campbell-Mohn et al. eds., 1993); Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819. See generally, Joseph L. Sax, Environmental Law in the Law Schools: What We Teach and How We Feel About It, 19 ENVTL. L. REP. 10,251 (1989) (discussing professors' frustration with teaching environmental law in light of complex, changing statutes).
40. See, e.g., ROGER W. FINDLEY & DANIEL A. FARBER, CASES AND MATERIALS ON ENVIRONMENTAL LAW v (4th ed. 1995); ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 102-114 (2d ed. 1996); ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY xxvii-xxix (1992); 1 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 3.1A, at 43-44 (Supp. 1996); J. William Futrell, Environmental Law History, in SUSTAINABLE ENVIRONMENTAL LAW 3, 43 (Celia Campbell-Mohn et al. eds., 1993); Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819. See generally, Joseph L. Sax, Environmental Law in the Law Schools: What We Teach and How We Feel About It, 19 ENVTL. L. REP. 10,251 (1989) (discussing professors' frustration with teaching environmental law in light of complex, changing statutes).
41. See, e.g., ROGER W. FINDLEY & DANIEL A. FARBER, CASES AND MATERIALS ON ENVIRONMENTAL LAW v (4th ed. 1995); ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 102-114 (2d ed. 1996); ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY xxvii-xxix (1992); 1 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 3.1A, at 43-44 (Supp. 1996); J. William Futrell, Environmental Law History, in SUSTAINABLE ENVIRONMENTAL LAW 3, 43 (Celia Campbell-Mohn et al. eds., 1993); Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819. See generally, Joseph L. Sax, Environmental Law in the Law Schools: What We Teach and How We Feel About It, 19 ENVTL. L. REP. 10,251 (1989) (discussing professors' frustration with teaching environmental law in light of complex, changing statutes).
42. See, e.g., ROGER W. FINDLEY & DANIEL A. FARBER, CASES AND MATERIALS ON ENVIRONMENTAL LAW v (4th ed. 1995); ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 102-114 (2d ed. 1996); ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY xxvii-xxix (1992); 1 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 3.1A, at 43-44 (Supp. 1996); J. William Futrell, Environmental Law History, in SUSTAINABLE ENVIRONMENTAL LAW 3, 43 (Celia Campbell-Mohn et al. eds., 1993); Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819. See generally, Joseph L. Sax, Environmental Law in the Law Schools: What We Teach and How We Feel About It, 19 ENVTL. L. REP. 10,251 (1989) (discussing professors' frustration with teaching environmental law in light of complex, changing statutes).
43. See, e.g., ROGER W. FINDLEY & DANIEL A. FARBER, CASES AND MATERIALS ON ENVIRONMENTAL LAW v (4th ed. 1995); ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 102-114 (2d ed. 1996); ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY xxvii-xxix (1992); 1 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 3.1A, at 43-44 (Supp. 1996); J. William Futrell, Environmental Law History, in SUSTAINABLE ENVIRONMENTAL LAW 3, 43 (Celia Campbell-Mohn et al. eds., 1993); Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819. See generally, Joseph L. Sax, Environmental Law in the Law Schools: What We Teach and How We Feel About It, 19 ENVTL. L. REP. 10,251 (1989) (discussing professors' frustration with teaching environmental law in light of complex, changing statutes).
44. See, e.g., ROGER W. FINDLEY & DANIEL A. FARBER, CASES AND MATERIALS ON ENVIRONMENTAL LAW v (4th ed. 1995); ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 102-114 (2d ed. 1996); ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY xxvii-xxix (1992); 1 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 3.1A, at 43-44 (Supp. 1996); J. William Futrell, Environmental Law History, in SUSTAINABLE ENVIRONMENTAL LAW 3, 43 (Celia Campbell-Mohn et al. eds., 1993); Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819. See generally, Joseph L. Sax, Environmental Law in the Law Schools: What We Teach and How We Feel About It, 19 ENVTL. L. REP. 10,251 (1989) (discussing professors' frustration with teaching environmental law in light of complex, changing statutes).
45. Sax, supra note 28, at 10,251.
46. WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW § 3.6, at 198 (2d ed. 1994).
47. 33 U.S.C. § 1251(a)(2) (1994).
48. Id. § 1311(b) (1994).
49. Richard J. Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 LAW & CONTEMP. PROBS. 311, 323 (1991) (citing William K. Reilly, The Turning Point An Environmental Vision for the 1990s, Address for the Marshall Lecture before the Natural Resources Defense Council, Nov. 27, 1989, in 20 ENV'T REP. (BNA) 1386, 1389 (Dec. 8, 1989)); see Shapiro & Glicksman, supra note 28, at 828-30 nn.42-48 (citing numerous deadlines established by Congress for the EPA).
50. Richard J. Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 LAW & CONTEMP. PROBS. 311, 323 (1991) (citing William K. Reilly, The Turning Point An Environmental Vision for the 1990s, Address for the Marshall Lecture before the Natural Resources Defense Council, Nov. 27, 1989, in 20 ENV'T REP. (BNA) 1386, 1389 (Dec. 8, 1989)); see Shapiro & Glicksman, supra note 28, at 828-30 nn.42-48 (citing numerous deadlines established by Congress for the EPA).
51. RODGERS, supra note 28, § 3.1A, at 44 ("The 1990 Clean Air Act Amendments call for more than one hundred seventy-five new regulations, in excess of thirty guidance documents, some thirty-five studies and reports, and more than fifty new research and investigation initiatives."). A substantial number of these requirements have deadlines attached to them.
52. Howard Latin, Regulatory Failure, Administrative Incentives, and the New Clean Air Act, 21 ENVTL. L. 1647, 1651-52 (1991) (discussing the many reasons why agencies fail to meet deadlines).
53. E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 122-36 (1977) (upholding the EPA's technology based effluent limitations under § 301 of the Clean Water Act even though they were promulgated without prior adoption of § 304 guidelines to set out the methodology the agency would use in determining § 301 standards).
54. Hazardous and Solid Waste Amendments for 1984, Pub. L. No. 98-616, 98 Stat. 3221 (codified as amended at 42 U.S.C. §§ 6901-6992 (1994)).
55. Pub. L. No. 96-510, 94 Stat. 2767 (1980); Pub. L. No. 99-499, 100 Stat. 1613 (1986) (codified as amended at 42 U.S.C. §§ 9601-9675 (1994)).
56. Act of Nov. 15, 1990, Pub. L. No. 101-549, 104 Stat. 2399 (codified as amended at 42 U.S.C. §§ 7401-7671 (1994)).
57. See, Lazarus, supra note 28, at 340-42 (commenting on congressional prescription).
58. 42 U.S.C. § 6924 (1994).
59. ROBERT L. FISCHMAN ET AL., AN ENVIRONMENTAL LAW ANTHOLOGY 130-31 (1996).
60. Shapiro & Glicksman, supra note 28, at 822.
61. 42 U.S.C. § 6924(e)-(f). "California-list" wastes were regulated at the time under a California state land disposal program. Schedule for Land Disposal, 51 Fed. Reg. 19,300 (1986) (codified as amended at 42 U.S.C. § 6924(d)).
62. 42 U.S.C. § 7412(b)(1). The EPA can modify or accept petitions to modify the list. Id. § 7412(b)(2).
63. See RODGERS, supra note 30, at 135-37.
64. Shapiro & Glicksman, supra note 28, at 822.
65. 42 U.S.C. § 6924(o)(4); see Shapiro & Glicksman, supra note 28, at 837 n.86.
66. Shapiro & Glicksman, supra note 28, at 837.
67. 42 U.S.C. § 6924(c)(1).
68. Id. § 6924(c)(2).
69. Congress frequently amends establishment statutes to adjust boundaries. But, for the purposes of this Article, I am concerned only with amendments that mandate or constrain specific management activities. See. e.g., Acadia National Park, Pub. L. No. 99-420, 100 Stat. 955 (1986) (codified as amended at 16 U.S.C. § 341 (1994)); Voyageurs National Park, Pub. L. No. 97-405, 96 Stat. 2028 (1983) (codified as amended at 16 U.S.C. § 160a-1 (1994)); Redwood National Park, Pub. L. No. 95-250, 92 Stat. 163, 163-66 (1978) (codified as amended at 16 U.S.C. § 79b (1994)); Canyonlands National Park, Pub. L. No. 92-154, 85 Stat. 421 (1971) (codified as amended at 16 U.S.C. § 271a (1994)).
70. Contributing significantly to this surge was the transfer of over 30 military parks and cemeteries from the War Department to the Service in 1933.
71. See infra text accompanying note 173 for a description of many of these categories.
72. See. e.g., 16 U.S.C. §§ 21-460 (1994).
73. Unlike the other categories of reserved units of the National Park System, which are designated by Congress, the President may exercise authority under the 1906 Antiquities Act to reserve as national monuments landmarks, structures, and other objects of historic or scientific interest situated on public lands. Id. § 431 note. Many national monuments, however, have establishment legislation endorsing their designation. Where they do not, the executive orders serve as substitutes for establishment statutes. A small number of national monuments are not managed by the Service and are therefore not part of the national park system. See, e.g., Proclamation No. 4611, 3 C.F.R. § 69 (1978) (establishing Admiralty Island National Monument, managed by the U.S. Forest Service); Proclamation No. 6920, 61 Fed. Reg. 50,223 (1996) (establishing Grand Staircase-Escalante National Monument, managed by the Bureau of Land Management).
74. Some categories, such as national historic sites, national battlefields, and national memorials are too small to be key elements in a system. Other categories, such as military parks, scenic trails, and parkways serve purposes too specific to contribute significantly to understanding the systemic relationship between establishment legislation and the Organic Act. Still other categories, such as national lakeshores, national seashores, national preserves, and national recreation areas, are excluded from the analysis because they contain few units or are relatively recent inventions, and therefore frustrate reasonable comparison of trends through time. See generally 16 U.S.C. §§ 21-460 (identifying the park system categories).
75. MANAGEMENT POLICIES, supra note 12, at 2:6 ("Congressionally directed plans will be given a priority that enables their completion within the required time frame.").
76. An interesting topic for further research would be to determine how many of the congressional deadlines the NPS actually met. If the Service's compliance record is better than the EPA's, it may explain the absence of the more draconian tools, such as hammers, in the establishment statutes.
77. See COMMISSION ON RESEARCH AND RESOURCE MANAGEMENT POLICY IN THE NATIONAL PARK SYSTEM, NATIONAL PARKS: FROM VIGNETTES TO A GLOBAL VIEW 6-8 (1989) [hereinafter VIGNETTES] (calling for broad-based, on-going research by the NPS); THE VAIL AGENDA, supra note 15, at 32 ("The National Park Service must engage in a sustained and integrated program of natural, cultural, and social science resource management and research aimed at acquiring and using the information needed to manage and protect park resources."); Herman, supra note 2, at 6-11 (discussing that from the inception of the National Park System, preservationists warned of the dangers of excessive use); National Parks and Conservation Association, Parks in the Next Century, NAT. PARKS, Mar./Apr. 1988, at 18, 20 (calling for a threefold increase in natural, cultural, and social science research staff).
78. See, e.g., Grand Canyon National Park, Pub. L. No. 93-620, 88 Stat. 2090 (1975) (codified as amended at 16 U.S.C. § 228b(c) (1994)).
79. See, e.g., Death Valley National Park, Pub. L. No. 103-433, 108 Stat. 4485 (1994) (codified as amended at 16 U.S.C. § 410aaa (1994)); Conagree Swamp National Monument, Pub. L. No. 100-524, 102 Stat. 2606 (1988) (codified as amended at 16 U.S.C. § 431 note (1994)); Biscayne National Park, Pub. L. No. 96-287, 94 Stat. 600 (1980) (codified as amended at 16 U.S.C. § 410gg-3 (1994)); Channel Islands National Park, Pub. L. No. 96-199, 94 Stat. 77 (1980) (codified as amended at 16 U.S.C. § 410ff-5 (1994)); Voyageurs National Park, 84 Stat. 1972 (codified as amended at 16 U.S.C. § 160f(b)).
80. See, e.g., Grand Canyon National Park, 88 Stat. 2091 (codified as amended at 16 U.S.C. § 228b(c)) (regulating dangerous or detrimental aircraft use); Arches National Park, Pub. L. No. 92-155, 85 Stat. 422 (1971) (codified as amended at 16 U.S.C. § 272c (1994)) (designating driveways); Voyageurs National Park, 84 Stat. 1973 (1971) (codified as amended at 16 U.S.C. § 160j(1) (authorizing provisions for roads); Canyonlands National Park, Pub. L. No. 88-590, 78 Stat. 938 (1964) (codified as amended at 16 U.S.C. § 271c (1994)) (providing for construction of roads).
81. See, e.g., Petroglyph National Monument, Pub. L. No. 101-313, 104 Stat. 276 (1990) (codified as amended at 16 U.S.C. § 431 note (1994)) (establishing a Rock Art Research Center); Channel Islands National Park, Pub. L. No. 96-199, 94 Stat. 75 (1980) (codified as amended at 16 U.S.C. § 410ff-2 (1994)) (providing for a natural resources study report); Capitol Reef National Park, Pub. L. No. 92-207, 85 Stat. 740 (1971) (codified as amended at 16 U.S.C. § 273b (1994)) (discussing grazing privileges); Redwood National Park, Pub. L. No. 90-545, 82 Stat. 931 (1968) (codified as amended at 16 U.S.C. § 79c(e) (1994)) (discussing erosion and sedimentation).
82. Olympic National Park Wilderness Act, Pub. L. No. 100-668, 102 Stat. 3961 (1988).
83. 16 U.S.C. § 1a-7(b).
84. Id.
85. Act of Oct. 7, 1976, Pub. L. No. 94-458, 90 Stat. 1942 (codified as amended at 16 U.S.C. § 1a-7 (1994)).
86. MANAGEMENT POLICIES, supra note 12, at 2:8.
87. Congress has mandated additional details in comprehensive planning for units established or expanded under the Alaska National Interest Lands Conservation Act of 1980. 16 U.S.C. § 3191. Also, the National Environmental Policy Act requires that the Service consider a range of alternatives and their environmental consequences when proposing a major federal action significantly affecting the quality of the human environment. 42 U.S.C. § 4332 (1994). Service policy is to prepare environmental impact statements for all GMPs. 42 U.S.C. § 4332(2)(C).
88. 2 GEORGE CAMERON COGGINS & ROBERT L. GLICKSMAN, PUBLIC NATURAL RESOURCES LAW § 10F.02[3] (1995).
89. Congaree Swamp National Monument, 90 Stat. 2518 (codified as amended at 16 U.S.C. § 431 note) (requiring the Service to prepare a management plan indicating: property adjacent or related to the monument which is necessary to fulfill monument purposes, the number of visitors and the uses which the monument should accommodate, and the location and cost of facilities on the monument site).
90. 16 U.S.C. § 79m(b)(4) (1994).
91. 42 U.S.C. § 1996, as amended by Pub. L. No. 103-344, 108 Stat. 3125 (1994).
92. 104 Stat. 276 (codified as amended at 16 U.S.C. § 431 note (1994)).
93. See supra Section IIA.
94. See Joshua Tree National Park, Pub. L. No. 103-433, 108 Stat. 4487 (1994) (codified as amended at 16 U.S.C. § 410ff-3(c) (1994)) (requiring that the Secretary of State consult with the Metropolitan Water District in developing emergency access plans); Petroglyph National Monument, 104 Stat. 272 (1990) (codified as amended at 16 U.S.C. § 461 note (1994)) (stating that the management plan be prepared in consultation with the New Mexico Preservation Office, an advisory committee, and other interested parties); El Malpais National Monument, Pub. L. No. 100-225, 101 Stat. 1539 (1987) (codified as amended at 16 U.S.C. § 460uu-41 (1994)) (requiring management plans to be developed in consultation with the Advisory Council on Historic Preservation, local Indian people, the New Mexico Historic Preservation Office, and the State of New Mexico); Acadia National Park, Pub. L. No. 97-335, 96 Stat. 1627 (1982) (codified as amended at 16 U.S.C. § 341 note (1994)) (requiring the preparation of a report establishing the carrying capacity for the Isle au Haut portion of Acadia National Park in consultation with the town); Channel Islands National Park, 94 Stat. 76 (codified as amended at 16 U.S.C. § 410ff-3(c)) (stating that the Secretary must consult with the Nature Conservancy and the State of California in preparing a GMP); Congaree Swamp National Monument, 90 Stat. 2517 (1976) (codified as amended at 16 U.S.C. § 431 note (1994)) (requiring consultation with the governor of South Carolina in preparing GMP).
95. See Channel Islands National Park, 94 Stat. 75 (codified as amended at 16 U.S.C. § 410ff-2(a)) (requiring consultation with the Secretary of Commerce, the State of California, and others on a study of natural resources); Arches National Park Establishment Act, 85 Stat. 422 (codified as amended at 16 U.S.C. § 272) (requiring consultation with appropriate State and Federal entities on a study of road alignments); Canyonlands National Park, 85 Stat. 421 (codified as amended at 16 U.S.C. § 271) (requiring consultation with the Secretary of Commerce, the State of California, and others on a study of natural resources).
96. Great Basin National Park, Pub. L. No. 99-565, 100 Stat. 3181, 3182 (1986) (codified as amended at 16 U.S.C. § 410mm-1 (1994)) (prohibiting adoption of GMP provisions relating to grazing, and fish/wildlife management until after consultation with the State agency having jurisdiction over fish and wildlife).
97. See Great Basin National Park, 100 Stat. 3181; Biscayne National Park, 94 Stat. 599 (codified as amended 16 U.S.C. § 410gg-2(a)); Congaree Swamp National Monument, 90 Stat. 2517 (codified as amended at 16 U.S.C. § 410mm-1); Voyageurs National Park, 84 Stat. 1970 (1971) (codified as amended at 16 U.S.C. § 160g).
98. See Death Valley National Park, 108 Stat. 4487 (codified as amended at 16 U.S.C. § 410aaa-6); Joshua Tree National Park, 108 Stat. 4489 (codified as amended at 16 U.S.C. § 410aaa-27); Little Bighorn Battlefield National Monument, 105 Stat. 1631 (1991) (codified as amended at 16 U.S.C. § 431 note); American Samoa National Park, 102 Stat. 2879, 2882 (1988) (codified as amended at 16 U.S.C. § 410qq-2(g)); Poverty Point National Monument, 102 Stat. 2803, 2804 (1994) (codified as amended at 16 U.S.C. § 431 note (1994)); Acadia National Park, Pub. L. No. 99-420, 100 Stat. 955, 959 (1986) (codified as amended at 16 U.S.C. § 341 note).
99. Little Bighorn Battlefield National Monument, 105 Stat. 1631 (1991) (codified as amended at 16 U.S.C. § 431 note).
100. See American Samoa National Park, 102 Stat. 2882 (codified as amended at 16 U.S.C. § 410qq-2(g) (1994)); Acadia National Park, 100 Stat. 959 (1986) (codified as amended at 16 U.S.C. § 341 note).
101. See Joshua Tree National Park, 108 Stat. 4489 (codified as amended at 16 U.S.C. § 410ff-27); Death Valley National Park, 108 Stat. 4487 (codified as amended at 16 U.S.C. § 410aaa-6).
102. See Petroglyph National Monument, 104 Stat. 276 (codified as amended at 16 U.S.C. § 431 note) (requiring report to Congress on location, condition, and technical assistance needed for care of related rock art located outside of the monument boundaries); Grand Canyon National Park Enlargement Act, 88 Stat. 2091 (codified as amended at 16 U.S.C. § 228g) (requiring report to Congress of any dangerous or detrimental aircraft use); Canyonlands National Park, 85 Stat. 42 (codified as amended at 16 U.S.C. § 271f) (requiring report to Congress on road alignments).
103. 16 U.S.C. § 79m(b).
104. Id. § 79m(a).
105. Id. § 410ff-6 (1994).
106. See, e.g., Death Valley National Park, 108 Stat. 4486 (codified as amended at 16 U.S.C. § 410aaa-5) (stating that "grazing shall continue at no more than the current level"); El Malpais National Monument, 101 Stat. 1542 (codified as amended at 16 U.S.C. § 460uu-32) (extending existing permits until December 31, 1997); Great Basin National Park, 100 Stat. 3182 (codified as amended at 16 U.S.C. § 410mm-1) (allowing grazing to the same extent as permitted on July 1, 1985); Fossil Butte National Monument, 86 Stat. 1069 (grazing shall be allowed for at least ten years); Capitol Reef National Park, 85 Stat. 740 (codified as amended at 16 U.S.C. § 273(b)) (grazing permits to be allowed for one lease period with the possibility for one renewal); Arches National Park, 85 Stat. 422 (codified as amended at 16 U.S.C. § 272b) (permitting grazing privileges to continue for the remainder of the term and one subsequent period); Canyonlands National Park, 78 Stat. 938 (codified as amended at 16 U.S.C. § 271b) (permitting grazing privileges to continue for the remainder of the term and one period subsequent).
107. See, e.g., Petroglyph National Monument, 104 Stat. 272 (codified as amended at 16 U.S.C. § 431 note) ("is authorized to undertake research and assist in the management and protection of Rio Grande style rock art sites"); Everglades National Park and Expansion Act, 103 Stat. 1947 (codified as amended at 16 U.S.C. § 410r-6) ("is authorized to enter" into concession contracts with owners of tour and airboat facilities); North Cascades National Park, 102 Stat. 3963 (codified as amended at 16 U.S.C. § 1132 note) ("is authorized" to remove and dispose of trees to protect power lines); Olympic National Park, 102 Stat. 3961 (codified as amended at 16 U.S.C. § 1132 note) ("is authorized" to upgrade, maintain, and replace an underground pipeline); El Malpais National Monument, 101 Stat. 1548 (codified as amended at 16 U.S.C. § 460mm-1) ("is authorized and encouraged" to enter into cooperative agreements with other Federal, state, and local agencies, Indian tribes, and non-profit entities; "is authorized" to establish an advisory committee comprised of Indians to help implement access rules); Great Basin National Park, 100 Stat. 3182 (codified as amended at 16 U.S.C. § 410mm-2) ("may" maintain existing water-related range improvements); Kenai Fjords National Park, 94 Stat. 2379 (codified as amended at 16 U.S.C. § 431 note) ("is authorized" to develop access to and allow use of mechanized equipment on the Harding Icefield); Grand Canyon National Park Enlargement Act, 88 Stat. 2090 ("is authorized to" enter into cooperative agreements with other entities to protect the canyon); Voyageurs National Park, 84 Stat. 1970 (codified as amended at 16 U.S.C. § 160 (1994)) (authorizing roads as are needed for public access); Voyageurs National Park, 84 Stat. 1972 (codified as amended at 16 U.S.C. § 160 (1994)) ("may" include subjects of winter sports, seaplane use, and watercraft use in comprehensive plan; "is authorized" to make provisions for any roads as are necessary for public access); Great Smoky Mountains National Park, 83 Stat. 100 (codified as amended at 16 U.S.C. § 403h-15) ("is authorized to" convey rights-of-way to Tennessee; "is authorized to" construct an entrance to the park in North Carolina); Canyonlands National Park, Pub. L. No. 88-590, 78 Stat. 934 (codified as amended at 16 U.S.C. § 271) ("may" select the location(s) for entrance road(s) and construct any structure necessary for the park; "is authorized" to consult with the Secretary of Agriculture on the location and extension of a forest development road); Carlsbad Caverns National Park, 77 Stat. 818 (codified as amended at 16 U.S.C. § 407e-407h) ("is authorized to" convey a right-of-way to New Mexico); Wupatki National Monument, Pub. L. No. 87-136, 75 Stat. 337 ("may" accept donation of a road right-of-way).
108. 16 U.S.C. § 228e (1994).
109. We can also put aside a possible explanation for statutory detail generally, which has little application in pollution control law. When Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 959 (1983), declared unconstitutional the legislative veto, Congress lost a tool of retrospective oversight Although this might contribute somewhat to the greater prospective limitations through statutory mandates, the legislative veto was not a common tool in pollution control law before Chadha. ENVIRONMENTAL LAW INSTITUTE, 1 LAW OF ENVIRONMENTAL PROTECTION 4-9, 4-10 (Sheldon M. Novick, ed. 1996) (citing only two legislative veto provisions in pollution control law: the Federal Insecticide, Fungicide, and Rodenticide Act § 25, 7 U.S.C. § 136(w) (1994), and the Comprehensive Environmental Response, Compensation, and Liability Act § 305, 42 U.S.C. § 9655 (1994)). In natural resources law, the legislative veto appears significantly and repeatedly in the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1784 (1994), but I found no trace of it in NPS establishment legislation. Retrospective oversight through reporting requirements, however, does appear in establishment legislation. See, e.g., Petroglyph National Monument, 104 Stat. 276 (requiring a report to congressional committees of the location, condition, and the technical assistance needed for care of related rock art located outside of the monument boundaries); Redwood National Park, 92 Stat. 170 (codified as amended at 16 U.S.C. § 79m) (requiring Service to submit plan to congressional committees); Grand Canyon National Park Enlargement Act, 88 Stat. 2090 (codified as amended at 16 U.S.C. § 228g) (requiring a report to Congress of any dangerous or detrimental aircraft use); Canyonlands National Park, 85 Stat. 421 (codified as amended at 16 U.S.C. § 2710 (requiring a report to Congress on a road alignment study).
110. Chevron, U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984).
111. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National Wildlife Fed., 497 U.S. 871 (1990).
112. Shapiro & Glicksman, supra note 28, at 845-70.
113. Id. at 842; Robert V. Percival, Checks Without Balance: Executive Office Oversight of the Environmental Protection Agency, 54 LAW & CONTEMP. PROBS. 127, 194-97 (1991); see Environmental Defense Fund v. Thomas, 627 F. Supp. 566, 571 (D.D.C. 1986) (providing a specific example of OMB hostility to environmental regulation). Recent charters for OMB oversight can be found in Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (1981), reprinted as amended in 5 U.S.C. § 601 (1994); and Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (1993), reprinted as amended in 5 U.S.C. § 601.
114. See 2 COGGINS & GLICKSMAN, supra note 71, at §§ 10F.02[3], 14.01, 14.02[2].
115. See, e.g., Sierra Club v. Lujan, 716 F. Supp. 1289, 1293 (D. Ariz. 1989) (enjoining the Service from allowing construction of new facilities on the north rim of the Grand Canyon until it complied with the National Environmental Policy Act and its own management policies).
116. Administrative Procedure Act, 5 U.S.C. § 553 (1994).
117. Id. § 553(a)(2).
118. See supra note 15 and accompanying text (describing NPS budget trends).
119. William D. Ruckelshaus, Risk, Science, and Democracy, ISSUES IN SCI. & TECH., Spring 1985, at 19.
120. NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, SETTING PRIORITIES, GETTING RESULTS: A NEW DIRECTION FOR THE ENVIRONMENTAL PROTECTION AGENCY 8, 131 (1995).
121. James J. Florio, Congress as Reluctant Regulator: Hazardous Waste Policy in the 1980's, 3 YALE J. ON REG. 351, 352-53 (1986); Percival, supra note 96, at 147-54; Erik H. Corwin, Note, Congressional Limits on Agency Discretion: A Case Study of the Hazardous and Solid Waste Amendments of 1984, 29 HARV. J. ON LEGIS. 517, 524-28 (1992). The antecedents to the rise in congressional distrust of the EPA in the 1980s date back to the birth of the agency. See Lazarus, supra note 33, at 323.
122. James J. Florio, Congress as Reluctant Regulator: Hazardous Waste Policy in the 1980's, 3 YALE J. ON REG. 351, 352-53 (1986); Percival, supra note 96, at 147-54; Erik H. Corwin, Note, Congressional Limits on Agency Discretion: A Case Study of the Hazardous and Solid Waste Amendments of 1984, 29 HARV. J. ON LEGIS. 517, 524-28 (1992). The antecedents to the rise in congressional distrust of the EPA in the 1980s date back to the birth of the agency. See Lazarus, supra note 33, at 323.
123. Shapiro & Glicksman, supra note 28, at 826-27.
124. Futrell, supra note 28, at 50.
125. JONATHAN LASH ET AL., A SEASON OF SPOILS: THE REAGAN ADMINISTRATION'S ATTACK ON THE ENVIRONMENT 279-298 (1984); John Kenney, Interior Sub Rosa: Political Appointees Use the Parks as Pawns, NAT. PARKS, Sept./Oct. 1989, at 12.
126. JONATHAN LASH ET AL., A SEASON OF SPOILS: THE REAGAN ADMINISTRATION'S ATTACK ON THE ENVIRONMENT 279-298 (1984); John Kenney, Interior Sub Rosa: Political Appointees Use the Parks as Pawns, NAT. PARKS, Sept./Oct. 1989, at 12.
127. Congress legislated, in part, in response to a high level of public concern about the dangers of toxic pollution. See Shapiro & Glicksman, supra note 28, at 842; Corwin, supra note 104, at 532.
128. See Peter H. Aranson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 43-45 (1982); James P. Hill, The Third House of Congress Versus the Fourth Branch of Government: The Impact of Congressional Committee Staff on Agency Regulatory Decision-Making, 19 J. MARSHALL L. REV. 247, 247-48 (1986); Shapiro & Glicksman, supra note 28, at 841.
129. See Peter H. Aranson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 43-45 (1982); James P. Hill, The Third House of Congress Versus the Fourth Branch of Government: The Impact of Congressional Committee Staff on Agency Regulatory Decision-Making, 19 J. MARSHALL L. REV. 247, 247-48 (1986); Shapiro & Glicksman, supra note 28, at 841.
130. Examples include former representatives Philip Burton and John Seiberling in the area of NPS establishment legislation and former representative James Florio in the area of hazardous waste legislation. Congressional oversight of the EPA is particularly zealous. Richard J. Lazarus, The Neglected Question of Congressional Oversight of EPA, 54 LAW & CONTEMP. PROBS. 205, 206, 210-12 (1991).
131. The 1989 amendments to the establishment legislation expanded the size of Everglades National Park; closed the park to the operation of airboats, subject to certain variances; and modified water delivery projects in the region to restore the natural hydrologic conditions. Everglades National Park, 103 Stat. 1946 (codified as amended at 16 U.S.C. §§ 410r-5 to 410r-8).
132. Other commentators have used the terms "first-generation" and "second-generation" to refer to different aspects of environmental law. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 STAN. L. REV. 1333, 1352-55 (1985) (describing two phases of a reform proposal to create a market-based system of pollution control through tradeable permits).
133. E. Donald Elliott, Environmental Law at a Crossroad, 20 N. KY. L. REV. 1, 10 (1992).
134. Id.; see also, Samuel A. Bleicher, Regulation of Pollution: Is the System Mature or Senile, 10 VA. ENVTL. L.J. i, iii (1990) (noting that the first wave of environmental statutes "quickly ran up against many economic and technical realities that made enforcement politically unacceptable").
135. Id.; see also, Samuel A. Bleicher, Regulation of Pollution: Is the System Mature or Senile, 10 VA. ENVTL. L.J. i, iii (1990) (noting that the first wave of environmental statutes "quickly ran up against many economic and technical realities that made enforcement politically unacceptable").
136. See James E. Krier, The Political Economy of Barry Commoner, 20 ENVTL. L. 11, 17, 23-24 (1990) ("[G]enerally speaking, the marginal costs of control go up the more one has already controlled. It is one thing to cut emissions from a source by ninety percent, for example, and quite another to cut the remaining ten percent by ninety percent again . . . ."); Arnold Reitze Jr., Environmental Policy - It Is Time for a New Beginning, 14 COLUM. J. ENVTL. L. 111, 116-117 (1989).
137. See James E. Krier, The Political Economy of Barry Commoner, 20 ENVTL. L. 11, 17, 23-24 (1990) ("[G]enerally speaking, the marginal costs of control go up the more one has already controlled. It is one thing to cut emissions from a source by ninety percent, for example, and quite another to cut the remaining ten percent by ninety percent again . . . ."); Arnold Reitze Jr., Environmental Policy - It Is Time for a New Beginning, 14 COLUM. J. ENVTL. L. 111, 116-117 (1989).
138. See generally JOHN ISE, OUR NATIONAL PARK POLICY: A CRITICAL HISTORY (1961) (presenting a thoroughly comprehensive history of park administration that describes all of the serious conflicts affecting the first-generation park units).
139. RUNTE, supra note 18, at 1-9.
140. Id. at 48-55.
141. Id. at 60-64.
142. Id. at 65-67.
143. Id. at 67-68.
144. Id. at 193.
145. 16 U.S.C. §§ 1901-1912 (1994).
146. The statute gave the Service authority to regulate mining to ensure that it is conducted so as to prevent or minimize damage to the environment and park resources. Id.
147. Act of Sept. 28, 1976, Pub. L. No. 94-429, 90 Stat. 1342 (codified as amended at 16 U.S.C. § 1905 (1994) (expired two years after enactment)). The California Desert Protection Act, discussed infra notes 151-155 and accompanying text, abolished Death Valley National Monument in 1994. 90 Stat. 1342.
148. RUNTE, supra note 18, at 194.
149. Id. at 213.
150. Professors Krier and Gillette note this problem of collective action in the pollution control context James E. Krier & Clayton P. Gillette, Essay, The Un-Easy Case for Technological Optimism, 84 MICH. L. REV. 405, 426 (1985). See generally, RUSSELL HARDIN, COLLECTIVE ACTION (1982) (analyzing the theory of collective action itself); MANCUR OLSON JR., THE LOGIC OF COLLECTIVE ACTION (1965) (analyzing the general theory of collective action).
151. Professors Krier and Gillette note this problem of collective action in the pollution control context James E. Krier & Clayton P. Gillette, Essay, The Un-Easy Case for Technological Optimism, 84 MICH. L. REV. 405, 426 (1985). See generally, RUSSELL HARDIN, COLLECTIVE ACTION (1982) (analyzing the theory of collective action itself); MANCUR OLSON JR., THE LOGIC OF COLLECTIVE ACTION (1965) (analyzing the general theory of collective action).
152. Professors Krier and Gillette note this problem of collective action in the pollution control context James E. Krier & Clayton P. Gillette, Essay, The Un-Easy Case for Technological Optimism, 84 MICH. L. REV. 405, 426 (1985). See generally, RUSSELL HARDIN, COLLECTIVE ACTION (1982) (analyzing the theory of collective action itself); MANCUR OLSON JR., THE LOGIC OF COLLECTIVE ACTION (1965) (analyzing the general theory of collective action).
153. Tony Davis, Sunbelt Confrontation, HIGH COUNTRY NEWS, Nov. 1, 1993, at 1, 10-13.
154. Id.; Ruth Haas, An Urban Park Is Surrounded by Controversy, HIGH COUNTRY NEWS, Dec. 12, 1994, at 13.
155. Id.; Ruth Haas, An Urban Park Is Surrounded by Controversy, HIGH COUNTRY NEWS, Dec. 12, 1994, at 13.
156. Haas, supra note 130, at 13.
157. Petroglyph National Monument, Pub. L. No. 101-313, § 108, 104 Stat. 272, 276 (1990) (codified as amended at 16 U.S.C. § 431 note (1994)).
158. Id. § 106, 104 Stat. 275. "The Secretary may participate in land use and transportation management planning conducted by appropriate local authorities for lands adjacent to the monument and may provide technical assistance to such authorities and affected landowners for such planning." Id.
159. Id. § 108(c), 104 Stat. 276 (consultation on GMP with Indian tribes); id. § 110, 104 Stat. 277 (establishment of an advisory commission including "one member, who shall have professional expertise in Indian history or ceremonial activities, appointed from recommendations submitted by the All Indian Pueblo Council"); id. § 108(a)(4), 104 Stat. 276 (inclusion in the GMP of a plan to implement the Native American Religious Freedom Act).
160. 16 U.S.C. § 410mm-1(e) (1994).
161. Id. § 410mm-1(c).
162. Id. § 410mm-1(g).
163. Id. § 410mm-1(f).
164. Jon Christensen, A Bitter Rancher and a Failed Compromise, HIGH COUNTRY NEWS, Apr. 3, 1995, at 11 ("Since Great Basin National Park was put on the map, staff have been inundated with complaints" about grazing.).
165. See id.
166. Shapiro & Glicksman, supra note 28, at 844 (citing the benefit of congressional mandates in pollution control statutes).
167. Jean Lafitte National Historical Park, Pub. L. No. 95-625, 92 Stat. 3536 (1978) (codified as amended at 16 U.S.C. § 230(d) (1994)). See note 89 for other examples of congressional grazing prescriptions.
168. Professor Yaffee observed that statutory prohibitions, although they restrict agency discretion, may help agencies that would otherwise not muster the political will to drive a hard bargain with stakeholders. STEVEN LEWIS YAFFEE, PROHIBITIVE POLICY 149-62 (1982).
169. Shapiro & Glicksman, supra note 28, at 830.
170. Professor Latin discusses this as a reason why environmental agencies avoid resolving disputed issues. Latin, supra note 35, at 1659.
171. Richard B. Stewart, Beyond Delegation Doctrine, 36 AM. U. L. REV. 323, 332 (1987).
172. See J. William Futrell, The Administration of Environmental Law, in SUSTAINABLE ENVIRONMENTAL LAW, supra note 28, 93, 97-102.
173. Stewart, supra note 146, at 332.
174. See supra note 128 and accompanying text.
175. See David Schoenbrod, Goal Statutes or Rules Statutes: The Case of the Clean Air Act, 30 UCLA L. REV. 740, 748-51 (1983); Stewart, supra note 146, at 332.
176. Death Valley National Park, Pub. L. No. 103-433, 108 Stat. 4471 (1994) (codified as amended at 16 U.S.C. §§ 410aaa to 410bbb-6 (1994)).
177. Death Valley National Park, 108 Stat. 4491 (codified as amended at 16 U.S.C. § 410aaa-49 (1994)).
178. 16 U.S.C. § 410aaa-6.
179. Id. § 410aaa-27.
180. Id. § 410aaa-58.
181. Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81, 95 (1985).
182. See, e.g., Joseph L. Sax & Robert B. Keiter, Glacier National Park and Its Neighbors: A Study of Federal Interagency Relations, 14 ECOLOGY L.Q. 207 (1987).
183. See 2 COGGINS & GLICKSMAN, supra note 71, at § 10F.02[3].
184. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
185. See Mashaw, supra note 156, at 93.
186. See Mashaw, supra note 156, at 82; Shapiro & Glicksman, supra note 28, at 844; Corwin, supra note 104, at 521-22.
187. Florio, supra note 104, at 379. This may be one of the few issues on which former Democratic Representative Florio and former Republican Senator Symms agreed. Id. at 371.
188. THE VAIL AGENDA, supra note 15, at 11.
189. NATIONAL RESEARCH COUNCIL, SCIENCE AND THE NATIONAL PARKS 2 (1992).
190. Id. at 6; see also VIGNETTES, supra note 60, at 1 (recommending both a new research program to support ecosystem management and a shift in NPS professional staffing from generalists to specialists); THE VAIL AGENDA, supra note 15, at 107 (recommending more research to aid management);.
191. See KAI N. LEE, COMPASS AND GYROSCOPE: INTEGRATING SCIENCE AND POLITICS FOR THE ENVIRONMENT 53 (1993).
192. Keiter, supra note 6, at 302; see also National Parks and Conservation Association, VIGNETTES, supra note 60, at 20 (recommending adequate funding for scientific research to provide effective resource management); NATIONAL RESEARCH COUNCIL, supra note 164.
193. THE VAIL AGENDA, supra note 15, at 36.
194. Marion Clawson identified custodial management as a predominant theme in federal public land policy in the middle of this century. MARION CLAWSON, THE FEDERAL LANDS REVISITED 31-37 (1983). I borrow the term to suggest management focused on responding to particular issues that arise rather than management that takes an active role in setting the agenda for a system of lands.
195. THE VAIL AGENDA notes that, in addition to the hurdles created by statutory details, the "Service, partly through its own inaction and partly due to constraints emanating from the executive branch during the 1970s and 1980s, has lost the credibility and capability it must possess in order to play a proactive role in charting its own course, in defining and defending its core mission." THE VAIL AGENDA, supra note 15, at 11.
196. See, e.g., NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, supra note 103, at 1, 132; Alden F. Abbott, The Case Against Federal Statutory and Judicial Deadlines: A Cost-Benefit Appraisal, 39 ADMIN. L. REV. 171, 192 (1987); Shapiro & Glicksman, supra note 28, at 844.
197. Designation of National Park System Units (visited Nov. 13, 1996) 〈http//www.nps.gov/legacy/nomenclature2.html#top〉. The best discussion of this nomenclature appears in DWIGHT F. RETTIE, OUR NATIONAL PARK SYSTEM 40-58 (1995).
198. 16 U.S.C. §§ 528-531 (1994).
199. Id. §§ 1601, 1602, 1606.
200. Id. § 1604(e).
201. See JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS 108 (1980).
202. RIDENOUR, supra note 20, at 16-19; James M. Perry, A Shrine Suffers As Pork for Parks Is Larded Unevenly, WALL ST. J., Jan. 11, 1991, at A1 (discussing, inter alia, Steamtown and Weir Farm National Historic Sites). Criticism of "park-barrel" politics dates at least as far back as the debate over federal funding of the Blue Ridge Parkway. ISE, supra note 116, at 417.
203. THE VAIL AGENDA, supra note 15, at 9. Dwight Rettie observed that "[f]or all of its history, the national park system has been essentially an improvisation." RETTIE, supra note 173, at 14.
204. 16 U.S.C. §§ 1701-1784 (1994) (creating the Federal Land Policy and Management Act of 1976, which established management scheme for the BLM); Id. §§ 528-531, 1600-1614 (creating the Multiple-Use, Sustained Yield Act of 1960, Forest and Rangeland Renewable Resources Planning Act of 1974, and National Forest Management Act of 1976, which established a management scheme for the U.S. Forest Service).
205. Id. §§ 668dd-668ee (creating the National Wildlife Refuge Administration Act of 1966, which established a management scheme for the national wildlife refuge system).
206. Id. §§ 1131-1136 (creating the Wilderness Act of 1964, which established the scheme for management of the national wilderness preservation system).
207. Robin Winks suggests that "[t]he agency spends 90 percent of its budget servicing visitors (building roads and paving trails, for example) rather than protecting resources. This is the wrong ratio." Robin W. Winks, National Parks Aren't Disneylands, N.Y. TIMES, Apr. 19, 1993, at A19.
208. Dwight Rettie reviews many of the efforts to apply comprehensive blueprints for management of the national park system. RETTIE, supra note 173, at 16-37.
209. See CHARLES F. WILKINSON, THE EAGLE BIRD: MAPPING A NEW WEST 132-86 (1992).
210. See Dave Foreman, Wilderness: From Scenery to Nature, WILD EARTH, Winter 1995/96, at 8; Keiter, supra note 2, at 75.
211. THE VAIL AGENDA, supra note 15, at 108-11.
212. SAX, supra note 177, at 80.
213. See generally Michael McCloskey, Essay, What the Wilderness Act Accomplished in Protection of Roadless Areas within the National Park System, 10 J. ENVTL. L. & LITIG. 455 (1995) (discussing the history and protection of the National Park System under the Wilderness Act); Michael Frome, Protecting Park Values, DIFFERENT DRUMMER, Winter 1995, at 42.
214. See generally Michael McCloskey, Essay, What the Wilderness Act Accomplished in Protection of Roadless Areas within the National Park System, 10 J. ENVTL. L. & LITIG. 455 (1995) (discussing the history and protection of the National Park System under the Wilderness Act); Michael Frome, Protecting Park Values, DIFFERENT DRUMMER, Winter 1995, at 42.
215. Mark Sagoff, On Preserving the Natural Environment, 84 YALE L.J. 205, 206 (1974).
216. Winks, supra note 183, at A19.
217. Lockhart, supra note 3, at 3; Editorial, Serving Two Masters: Park Service's Dilemma, ARIZ. REPUBLIC, Oct. 15, 1991, at A12.
218. CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE WEST 17 (1992).
219. See, e.g., Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882); Owen L. Anderson, et al., Prior Appropriation, in 2 WATERS AND WATER RIGHTS 65-446 (Robert E. Beck, ed. 1991).
220. 30 U.S.C. §§ 21-42 (1994).
221. 16 U.S.C. § 1.
222. RETTIE, supra note 173, at 47.
223. H.R. 260, 104th Cong., § 103 (1995).
224. See, e.g., Hope M. Babcock, Dual Regulation, Collaborative Management, or Layered Federalism: Can Cooperative Federalism Models from Other Laws Save Our Public Lands?, 3 WEST-NORTHWEST 193 (1996) (applying federalism lessons from pollution control law to natural resource management).
225. See, e.g., Fischman, supra note 26, at 439 (addressing biological resource protection through the use of EPA authorities).