Running head: UNDER FIRE 1

Under Fire: The Environmental Degradation of National Park Service Lands

Jack Jacobs

First Colonial High School

Legal Studies Academy

UNDER FIRE 2

Abstract

This paper will uncover the issue of private developers extracting resources from and damaging

the lands of the National Park Service (NPS). NPS lands, unlike the joint-use areas of the U.S.

Forest Service and Bureau of Land Management, are solely intended, and legally required, to

serve as sanctuaries of ecological preservation and human recreation. Despite this, operations

such as oil and gas drilling and mining, surrounding and within park borders, are thriving, mainly

due to confusing, outdated legislation and the lack of communication between developers and the

Park Service. This issue is developing against a backdrop of enormous and consistent public

support for the Park Service.

Keywords: park, land, service, drill, environmental

UNDER FIRE 3

Under Fire: The Environmental Degradation of National Park Service lands

The celebration of the National Park Services (NPS) centennial instilled a renewed sense

of appreciation among the American people for its ability to symbolize our nation and hold

universal appeal. However, it also served as a time for reflection about the state of the lands and

resources under the Park Services watch (Milman, 2016). In 1918, the Secretary of Interior gave

the first NPS director three guidelines for managing NPS sites, defining their purpose:

1 . The National Parks should be maintained in absolutely unimpaired form for the use of

future generations as well as those of our own time.

2. They should be set apart for the use, observation, health, and pleasure of the people.

3. The national interest must dictate all decisions affecting public or private enterprise in

the parks (Loomis, 2002).

Unfortunately, this legally-established mission of preservation and recreation is now threatened

by private companies seeking to exploit the natural resources of and surrounding National Park

Service lands despite substantial public support for their environmental, historical, and cultural

benefits and as a result of conflicting legislation and the Park Services limited ability to defend

its own policies.

Public Opinion

According to polling, 8 in 10 American voters are past visitors of a National Park

(NPCA, 2012). Ninety percent of those polled would like to visit a Park Service site in the future

(NPCA, 2012). Gundars Rudzitis, Professor Emeritus of geography at the University of Idaho,

(2016) states National Parks are essential to the nations economy, particularly the Wests,

because of their ability to bring a diverse range of revenue, including tourism, innovative
UNDER FIRE 4
entrepreneurship, and housing due to the quality of life. Harvard University (2016) conducted a

study showing 95% of Americans wish to keep the National Parks in their current state.

According to the study, American taxpayers would be willing to pay an additional $92 billion in

taxes to keep the NPS. Clearly, the National Park Service is one of the most universally admired

institutions in the nation. One aspect underlying this admiration are the proven physical and

psychological health benefits of the natural environment: research performed by Nilsson et. al

(2011) suggests the serenity of enjoying the outdoors reduces stress, improves concentration, and

can lead to overall personal development. However, Will Rogers (2016), president of the Trust

for Public Land, explains how, despite constant bipartisan support for the numerous

environmental and and economic benefits of public lands, debates are raging over whether

private developers should be allowed to extract resources from public lands, which include NPS

sites and parks. Clearly, there is a disconnect between American voters confidence in the

carrying out of the Park Services original mission and the actions being taken by governmental

authorities and private interests.

The voting records of an alarming number of Congresspeople prove this schism exists.

Led by Utah Representative Rob Bishop (who, according to Oil Change International (2016), is

accepting $452,610 and counting almost entirely from oil and gas interests), a group of around

20 members of Congress are leading efforts, including the creation of a Public Lands Initiative

law, to undermine legislation such as the Organic Act and the Wilderness Act of 1964, which

define Park Service lands purpose and establish areas where the earth and its community of life

are untrammeled by man, (National Park Service, 2016), many of which are found in National

Parks, respectively (CAP, 2016). Some, such as South Carolina Representative Jeff Duncan, are

sponsoring bills to further violate the legally-established, founding principles of the NPS by
UNDER FIRE 5
allowing more opportunities for oil drilling on public lands and giving state governments the

right to regulate this drilling, despite offering far less protection against developers than the

federal government and possessing limited budgeting dedicated to managing public lands (Las

Vegas Sun, 2016). Evidence of the weakness of state park protection of lands can be seen in

Texas, where, in 2016, Balmorhea State Park officials did not research any of the possible effects

of oil drilling on both the park and its famous artesian springs, mainly due to a simple breakdown

in communication about the research sources consulted (Hunn, 2016).

The best case scenario argues the public lands these representatives mention are joint-

use lands such as those of the Bureau of Land Management or the US Forest Service, which

involve techniques and methods of resource planning and analysis...to determine how much of

each resource to produce from a...public land (Loomis, 2002). However, recent activities at a

large number of the 413 areas managed by the NPS suggest the openness to ecology-destroying

activities exhibited by the proposed legislation of these representatives most likely extends to

NPS lands solely established for preservation and recreation.

Environmentally Detrimental Activities

A diverse range of hazards to the environment and historical significance of areas within

and surrounding National Park Service units are becoming more prevalent and dangerous. These

activities range from the blatantly disruptive presence of oil and gas rigs to the subtle negative

impacts of noisy construction sites (Milman, 2016). Regardless, every source of pollution and

damage is making it more and more difficult to label the land unimpaired (National Park

Service, 2016).

Drilling & Mining

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One of the most common threats to NPS lands is oil & gas drilling (Milman, 2016). 534

oil and gas operations exist on 12 NPS lands (Shogren, 2016). Currently, 30 NPS areas contain

privately-owned minerals underground which, ideally, are drilled by their owners in a detailed

process complete with a permit and outline of operations (Geltman, 2016). However, as will be

discussed later, the Park Services narrow ability to enforce its guidelines oftentimes results in

the permit process being ignored (Geltman, 2016), which can result in serious environmental

damage (Kaplan, 2014). This issue only adds to the inherent conflict resulting from a policy of

private-public co-ownership of underground and aboveground land. One of the clearest examples

of NPS lands under threat by oil drilling is at Theodore Roosevelt National Park, where North

Dakotas recent natural gas surplus is ensuring almost no unobstructed sightlines in the park and

the presence of rigs and pumps mere miles from the parks borders (Milman, 2016) (See Figure

A in Appendix). In Florida, the NPS itself was sued by a coalition of environmental groups for

violating the National Environmental Policy Act, the Administrative Procedures Act and its own

rules by allowing Burnett Oil Co. to conduct oil and gas drilling operations within the

boundaries of Big Cypress National Preserve, despite the Park Services claim that Burnetts

2015 testing results were "clearly a failure" (Staats, 2016). A similar example of the NPS being

sued by environmental groups for not providing adequate protection to its lands occurred in

Sierra Club v. Mainella, where the NPS approved plans of a drilling company which would

severely damage the environment of Big Thicket National Preserve (Geltman, 2016). A rather

bizarre case was seen in Texas on Padre Island National Seashore, when Australian company

Sprint Energy drilled secret wells before escaping in the middle of the night under orders from its

parent company (Shogren, 2016). As stated before, these are not isolated cases of drilling, and

they are certainly not isolated cases of environmental damage being done to the Parks.
UNDER FIRE 7
A major threat to NPS lands is mining. According to Colorado State Professor John

Loomis, mining is allowed within park boundaries as long as the companies possess a permit

which outdates the park itself (Professional Interview, 2016). However, activity centered just

outside park lands (and therefore without a pre-existing or NPS permit) poses the greatest danger

because its pollution seeps into the natural environment of the Parks, unrestricted; a perfect

example of this is in and near Grand Canyon National Park, where toxic uranium levels were

found in five of its watersheds wells and fifteen springs from both existing and closed mines

(Udall, 2016). Former US Senator Mark Udall found this activity went unnoticed mostly because

of the lack of requirement for mining companies to measure pollution below 1000 feet, even

though aquifers that are sources of groundwater for the Grand Canyon exist this deep. Udall

claims this blind-eye approach by mining companies on the borders of park lands is exploitive

and dangerous because it is essentially a loophole to the slim protection the government affords

NPS lands. Grand Canyon is not the only National Park fighting the loophole; in November

2016, the Obama administration announced protection from mining for 30,000 acres of land just

outside of Yellowstone National Park, when a Canadian company stated its intentions to explore

for gold on the land (MTN News, 2016).

Other Threats

Countless more examples exist of threatened National Parks, some from issues (other

than drilling and mining) which tend to violate the half of the Park Services mission related to

recreation. LA Times correspondent Jacques Leslie reports Colonial National Historical Park in

Jamestown, VA is under consideration to be the site of a 17-mile Dominion Power line, whose

towers would be visible within the sightline of the location of the New Worlds first permanent

English settlement. The Western Airborne Contaminant Assessment Project (WACAP) (2010)
UNDER FIRE 8
found many western National Parks are experiencing pollution from airborne semivolatile

organic compounds (such as pesticides and combustion byproducts), particularly dangerous

because their sources do not necessarily need to be close to the parks to affect them. The

Keystone XL pipeline could potentially disrupt portions of the Lewis and Clark National Historic

Trail, while a Tennessee gas pipeline is threatening to damage Mammoth Cave National Park in

Kentucky (Milman & Bose, 2016). The National Park Service is yet to approve a TransCanada

natural gas pipeline which could run under Chesapeake & Ohio Canal National Historical Park,

near the Potomac River (Mokhiber, 2016).

Another example showing the diversity of threats to the Park Services mission can be

found at Californias Mojave National Preserve, where three massive solar energy farms are

obstructing some of the preserves vistas and disrupting populations of the endangered bighorn

sheep (Leslie, 2016). The latter example is complicated on many levels. For one, the solar project

is approved by agencies including the Bureau of Land Management and US Forest Service (other

subsidiaries of the Department of Interior) for its coalescence with President Barack Obamas

energy goals despite its impact on Mojave (Leslie, 2016). Secondly, it is completely unnecessary

for the farms to be placed on the Parks borders, as the Interior Departments Renewable Energy

Conservation Plan outlined over 100,000 acres of California land where solar projects could

conduct operations (Leslie, 2016). Therefore, blame cannot solely be placed on private

companies for violating the mission of the NPS; fault also lies amidst the conflicting interests of

the Department of the Interior.

Another less obvious negative impact on NPS lands is noise pollution, which disrupts

both the preservation of the natural environment and the recreation of park visitors (National

Park Service, 2016). Most of the time, sounds harm the natural environment in subtle ways. A
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recent study showed males of some frogs species (including several native to NPS lands) call at a

higher pitch when close to traffic, despite their female counterparts mating preference for a

lower pitch; a similar but stronger effect is observed in birds (Parris, K., Velik-lord, M., & North,

J., 2009). This phenomenon may seem arbitrary, but, in the long term, could seriously disrupt

wildlife mating patterns and therefore birth rates (National Park Service, 2016). In addition to

mating, noise pollution can negatively affect hunting and migration patterns; evidence of this can

be found in observing bats and the Sonoran pronghorn, respectively (Barber et. al, 2009).

Research done by Barber, et. al found bats keep clear of hunting areas close to traffic noise,

while Sonoran pronghorns will go against their own instincts to avoid moving to areas they know

to be loud, such as those near construction sites or constantly passed over by military jets. As

NPS lands face an increase in sources of loud noise, the wildlife they are required to protect may

become endangered, as illustrated by these studies (National Park Service, 2016). Construction

sites and pump jack operations are two examples of equipment used in oil and gas drilling

operations frequently found on NPS lands; Earthworks detailed a Bureau of Land Management

study stating these two noise sources amount to decibel levels of 83 and 82, respectively, when

500 ft from the source (Earthworks, 2006). In comparison, the Center for Hearing, Speech, and

Language (2014) states 85 dB is the cutoff for requiring humans to wear ear protection.

The extraction of resources through environmentally damaging processes on protected

lands is a widespread issue facing the National Park Service. Drilling, mining, and other forms of

resource withdrawal are not only destroying the physical and biological landscape of NPS lands;

they are detracting from the sacred and legally protected visitor experience and, through the

sheer sound of their presence, are disturbing the natural patterns of wildlife within the lands.

Clearly, the current protections offered to the Park Service are not sufficient in preventing
UNDER FIRE 10
outside entities from leaving a stain of pollution and disruption on the borders and within NPS

lands.

Conflicting Legislation and Legal Precedence

The most fundamental legislation relating to the purpose of the National Park Service is

also its most confusing. Part of 43 U.S. Code 1701 calls for management of public lands in an

environmentally, scenically, and historically beneficial manner; within the same subsection, the

law states management must take into consideration the national need for domestic resources

such as timber and minerals (Cornell Legal Information Institute, 2016). 43 U.S. Code 1712(c)

adds some detail in terms of the Secretary of Interior, stating they must give priority and

protection to lands of critical environmental concern (no specification is made over what lands

should be deemed a critical environmental concern) (Cornell Legal Information Institute,

2016). In addition, 43 U.S. Code 1711 states a Congressional inventory on public lands

environmental preservation and resource allocation holds no sway in terms of land management;

similarly, Mackay v. Dillon (Justia) found a private survey by no means binds the government,

and does not take land away from the federal government. This ambiguity essentially leaves the

decision-making process regarding the presence of private entities in public lands up to the

companies themselves and managing bodies such as the Park Service or the US Fish and Wildlife

Service (Professional Interview, 2016). However, in most cases, this only leads to further

consternation because of the conflicting laws backing both parties.

Disagreement between National Park Service and Private Developers

As mentioned before, the two major resource-extraction activities occurring in NPS lands

are drilling and mining, governed by 36 Code of Federal Regulations Part 9, Subpart B, or 9B

Regulations, and the Mining in the Parks Act of 1976, respectively (National Park Service,
UNDER FIRE 11
2016). Both are responsible for the lack of clarity surrounding the interactions between private

companies and the National Park Service. The 9B Regulations issues reside in the feeble

protections they offer to the Park Services lands; the regulations offer a loophole of total

exemption from NPS regulations to 60% of oil and gas drilling operators and only require a

maximum of $200,000 in restoration payment by operators once they complete their procedure

(Shogren, 2015). Currently, the NPS is undergoing reform for the regulations to fix these two

issues, as well as adding fines for companies who commit minor infractions (Shogren, 2015).

The Mining in the Parks Act of 1976 banned all new mining activities on Park Service lands;

however, it did not relinquish the right of operations established before 1976 to continue

operating (National Park Service, 2016). This means 1100 mining claims in 15 Park Service units

are solely operating under an outdated policy, similar to the plight of drug prisoners still

incarcerated for actions their state now deems legal (National Park Service, 2016). The conflict

between developers and federal land managers is clearly deeply entrenched in the confusing

legislation backing both parties literal and figurative claims.

The closest the justice system came to regulating the dispute came with the decision of

U.S. v. Vogler. This United States Court of Appeals case affirmed many of the powers granted to

Congress by the Property Clause and powers granted to the National Park Service by the

Secretary of the Interiors regulations. In the appeals case, an Alaskan placer miner, Joseph

Vogler, challenged the pure rule of law governing the decision of his district court case, which

was to nullify all of his claims to mine the land of Yukon-Charley Rivers National Preserve

(mining which caused severe environmental damage). The rule of law Vogler challenged

concerned the right of Congress to possess and regulate public lands according to the Property

Clause (which he deemed was a temporary measure the Framers created only for original
UNDER FIRE 12
members of the union), the requirement for miners to have a permit in order to operate on NPS

lands, and the power of the Secretary of the Interior to manage National Parks. The court ruled

against all three of Voglers claims. The Property Clause extends to public lands; miners are

required, according to NPS regulations and the Mining in the Parks Act of 1976, to possess a

permit so as not to unknowingly damage Park lands; Congress gives the Secretary broad power

to regulate and manage the lands of the Park Service. This case established NPS and Department

of the Interior regulations as defensible pieces of legislation. It gave Congress and the Park

Service dominance over private interests in terms of presence in NPS sites. Finally, it served as a

precedent that the land of the federal government, and the purpose of that land, are protected

from the influence of individual interests, mainly to prevent damage being done to this property.

Despite this ruling, the Park Service is still plagued by its limited enforcement authority

of its mission and regulations; though these are legally established policies, the Park Service

itself cannot take any action toward violators unless their actions are worthy of a suspension or

revocation of plans (Geltman, 2016). An example of this limited enforcement authority occurred

in Aztec Ruins National Monument, where an improper use of a saturated dirt road by vehicles

of a drilling operation resulted in erosion damage, which was in violation of the companys plan

itself. However, because the violation was technically minor, no action was taken against the

company (Geltman, 2016). Violations at historically significant NPS lands such as Aztec Ruins

National Monument are particularly dangerous because their damaging effects can go beyond

being environmental; Aztec Ruins was also witness to archaeological damage when a grader

performing road resurfacing exposed ancient remains (Shogren, 2016). An attempt to protect the

archaeology of the parks was made by Representative Paul Cook of California with the

submitting of a bill known as the Protecting our National Parks Act of 2015, which created
UNDER FIRE 13
punishments of fines and imprisonment for anyone willfully damaging property of the National

Park Service (Congress.gov, 2015). Congress reports the bill was sent to the Subcommittee on

Crime, Terrorism, Homeland Security, and Investigations, where it now resides. Loomis

(Professional Interview, 2016) claims the best defense the NPS can muster is resource damage

conducted by economists on-site of a companys operations, whose suggestions of penalties and

land restoration requirements may fall prey to the previously mentioned loopholes of the 9B

Regulations and Mining in the Parks Act.

Loomis claims another issue plaguing NPS lands is the breakdown in communication

among federal land managers on the borders of the units. One high-profile case of this occurred

on the outskirts of Canyonlands National Park, where activist Tim DeChristopher discovered the

Bureau of Land Management was selling leases of land to private developers, whose operations

could possibly seep in and damage portions of the park (Williams, 2015). Terry Tempest

Williams writes DeChristopher bid without the means of paying at the leasing auction and was

arrested; however, his disruption led to a federal investigation of the auction itself, where it was

revealed the Bureau's actions were illegal. The BLM violated 43 U.S. Code 1713, which states

tracts of public land can only be sold if they are not part of the National Wilderness Preservation

System, National Wild and Scenic Rivers Systems, or National System of Trails and no longer

serve their original purpose (Cornell Legal Information Institute, 2016).

Ideally, the situation at Canyonlands should be resolved in a manner similar to the best

management practices and integrated lands management (monikered by Professor John Loomis)

performed to combat phosphorus pollution from fertilizers in Everglades National Park. These

management techniques, in the Everglades case, combine university training for farmers and
UNDER FIRE 14
state-federal agency cooperation to form a three-step process of evaluation to prevent phosphorus

pollution:

Soil testing before fertilizing to see how much fertilizer, if any, is necessary; --

Regulating when and how much water can be pumped off of the farms; -- And cleaning

out sediment from the canals before farm water is released into a maze of waterways that

lead into the Everglades. (University of Florida, 2015)

The University of Florida reported these approaches resulted in a remarkable phosphorus

reduction of 79% in the Everglades. In 1986, the South Florida Water Management District

found 500 parts per billion of phosphorus in the water; in 2015, the count dropped to 94 ppb

(University of Florida, 2015).

Despite the management options available to them, many NPS units and developers

continue to fight unnecessary battles based off conflicting and outdated legislation. Without more

transparency both in the relationship between the NPS and private companies and the laws

governing the relationship, situations similar to the midnight escape of Sprint Energy will

continue to occur. The twofold damage to the integrity of both the natural environment and ethics

of corporate America will plague the nations public lands.

Conclusion

Drilling, mining, noise pollution, and countless other forms of environmental degradation

are putting immense pressure on the lands of the National Park Service. The wildlife, ecology,

and geological integrity they are legally required to preserve are at risk simply because of

misunderstandings and ignorance of the purpose of the over 400 units of the Park System, 59 of

which are National Parks (National Park Service, 2016).

UNDER FIRE 15
It is important to remember all of the environmental damage discussed in this paper is not

occurring on lands designated for resource extraction, but on those intended to preserve

unimpaired the natural and cultural resources and values of the National Park System for the

enjoyment, education, and inspiration of this and future generations (National Park Service,

2016). National Parks are a special type of public land, consistently and legally defined as

environmental and cultural sanctuaries. This is why the federal government distinguishes them

from the immense landholdings of the Forest Service or Bureau of Land Management: they are

to be shared with the people, not developers. Though they can partially blame contradictory

legislation, private companies must be more aware of their footprint on protected lands and the

National Park Service must fulfill its mission by enforcing its given powers against those who,

indirectly or directly, will damage its lands.

UNDER FIRE 16

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UNDER FIRE 21

Appendix

Active oil well sites surrounding Theodore Roosevelt National Park and their potential

impact radius 2005-2013 (Kaplan, 2014)