[*PG243]THE NATIONAL PARK SERVICE’S PROPOSED BAN: A NEW APPROACH TO PERSONAL WATERCRAFT USE IN THE NATIONAL PARKS

Karen D’Antuono*

Abstract. Personal watercraft, with their capacity for high speed and easy maneuverability, generate considerable safety and environmental concerns at the national, state, and local levels. These vessels, more commonly known as jet skis and waverunners, are currently present in thirty-two of the eighty-seven units of the National Park System that allow motorized boating. Responding to high accident rates as well as to harms caused to aquatic wildlife and vegetation by the vessels, the National Park Service proposed a general ban on personal watercraft within units of the National Park System. The proposed ban is the first comprehensive solution to personal watercraft use on the national level. It is expected to be finalized sometime in the year 2000. This Comment suggests that such a ban is both legal and desirable. It also suggests that exemptions from the ban should be granted on a very limited basis.

Introduction

Personal watercraft (PWC), more commonly known as jet skis and waverunners, are increasingly common sights at National Park System units (System units) which accommodate motorized boating.1 Considering that there are currently more than one million PWC in operation with estimated sales of 250,000 vessels a year, this increase is not surprising.2

Concurrent with the increase in PWC use in national parks is the rising number of visitors to System units, leading to inevitable conflicts over competing uses.3 In addition, environmentalists and [*PG244]members of the public continue to voice concerns about potentially severe safety and environmental problems caused by PWC.4 Among the most frequently cited environmental problems are damage to shallow-water aquatic vegetation, wildlife “flight” caused by noise emitted by the vehicles, and water pollution due to the discharge of oil and gas mixtures from PWC engines.5

In response to these conflicts and concerns, the National Park Service (NPS)¾the federal agency charged with managing the National Park System (System)¾proposed a general ban on PWC use in System units on September 15, 1998.6 According to the proposed rule, PWC will be banned from most System units.7 In those units, NPS could only authorize PWC use on a unit-by-unit basis by passing special regulations which appear in the Federal Register.8 Thirteen System units would be permitted to forego this Federal Register rulemaking and utilize more locally-based procedures to authorize PWC use.9 While the PWC industry and PWC users criticize the proposed rule as overprotective and beyond the authority of NPS, environmentalists and other members of the public applaud the agency’s efforts.10 As of the date of publication of this Comment, the proposed rule had not yet been finalized, but final approval is expected sometime in the year 2000.11

This Comment examines the legality and desirability of the NPS System-wide ban on PWC use. Section I outlines the management authority of NPS, including its balancing of competing visitor uses, its [*PG245]reconciliation of dual statutory mandates, and the interaction between the National Park Service Act of 1916 (Organic Act) and individual System units’ enabling legislation. Section II provides a brief overview of PWC characteristics and their effects. Section III summarizes the current status of PWC law, primarily at the federal level. Section IV discusses the proposed rule in more detail by highlighting its text and NPS’s stated reasoning for its provisions.

Section V suggests that the NPS System-wide ban is both legal and desirable because it is a reasonable statutory interpretation of the Organic Act. Section V also recommends that NPS use extreme caution in foregoing Federal Register rulemakings in the case of the thirteen exempted units in the proposed rule.

I.  The National Park System

A.  The National Park Service Act of 1916 and Subsequent Amendments

NPS manages the more than 370 System units, ranging from parks to recreation areas to seashores, that currently comprise the System.12 The System is the largest, most complex, and most specific system of government preserves in the world.13 In 1916, Congress passed the Organic Act and created NPS within the Department of the Interior to:

promote and regulate the use of the Federal areas known as national parks . . . by such means and measures as conform to the fundamental purpose of the said parks . . . which purpose is to conserve the scenery and the natural and historic objects and the wildlife therein to provide for the enjoyment [*PG246]of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.14

Historical accounts of the Organic Act point to a myriad of explanations for the creation of NPS, including the desire on the part of the railroad industry to preserve magnificent scenery along their routes.15 The railroad industry intended the preservation to promote tourism and to prevent haphazard development and other invasive commercial uses that could discourage the American public from traveling to these majestic areas.16 In addition to profit motives, the possibility of using park units to teach the public about nature, geology, fossils, or sedimentation also motivated the creation of NPS.17 Regardless of the exact motivation for the System, rhetoric urging its development painted national parks as the “nation’s playgrounds” or “nature’s cathedrals,” capable of instilling patriotism in the American public.18

In what would be the beginning of an ongoing debate about whether the fundamental purpose of national parks was “preservation” or “use,” Franklin Lane, Secretary of the Interior in 1918, interpreted the Organic Act’s language as charging NPS with a dual mandate.19 Under that mandate, NPS was to maintain the national parks in an “absolutely” unimpaired form for future generations while simultaneously providing the public with opportunities to enjoy the parks through individual pursuits.20

Congress authorized NPS to fulfill its dual mandate through rules and regulations promulgated by the Secretary of the Interior.21 NPS’s [*PG247]authority includes establishing regulations “concerning boating and other activities on or relating to waters located within areas of the National Park System.”22 These regulations appear in the Code of Federal Regulations and have the force of law.23 The nature of NPS rules and regulations varies: some are very broad and apply System-wide, while others are very specific and pertain only to particular System units.24

Since 1916, two series of Organic Act amendments extended the discussion about the management role of NPS.25 The first series of amendments was included in the General Authorities Act of 1970.26 The amendments declared that, although individual park units were distinct in character, they were “united . . . into one national park system as cumulative expressions of a single national heritage; [and] that . . . these areas derive increased national dignity and recognition of their superb environmental quality through their inclusion jointly with each other in one national park system.”27 The amendments also directed that, except for statutes specifying treatment for particular park units, laws pertaining to park administration should be consistently applied to all units throughout the System.28 A System unit’s designation as a park, monument, or recreation area was irrelevant.29

Legislative history accompanying the amendments acknowledged that the concept of national parks had broadened from natural and scientific areas to include battlegrounds and historic locations, as well as outdoor recreational areas.30 Recognizing that the new and expanded park uses could pose threats to the natural resources of the System units, Congress proclaimed NPS’s objective to be conserving and protecting the parks for the edification and enjoyment of the American public.31 Congress emphasized that despite the diversity of the System, all laws relating to its management should be applied uniformly.32 Courts and commentators characterize the 1970 amendments as a disapproval of NPS management policies that, at the time, [*PG248]divided park administration into three management categories¾natu-ral, historical, and recreational¾with policies contingent upon the nature of the areas and their historical uses.33

In 1978, Congress again amended the Organic Act and discussed how NPS was to best achieve its underlying goals.34 These amendments provided in part that “the authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System.”35 The amendments also included what is widely known today as the “exceptions clause,” a declaration that System units not be managed in derogation of the values and purposes for which they were established “except as may have been or shall be directly and specifically provided by Congress.”36

Congress passed this series of amendments as a rider to the Redwood National Park Expansion Act, declaring that the promotion and regulation of the System must be consistent with the Organic Act, and that management of areas within the System should not compromise their resource values unless specifically provided by Congress.37 This declaration, in turn, led Congress to conclude that the Secretary of the Interior was to afford the highest standard of protection and care to the lands within Redwood National Park.38 More broadly, the United States Senate directed that “the Secretary has an absolute duty, which is not to be compromised, to fulfill the mandate of the 1916 Act [and] to take whatever actions and seek whatever relief as will safeguard the units of the National Park System.”39

Accompanying the House Report was the favorable report of the Department of the Interior: a report in which then-Secretary of the [*PG249]Interior Andrus supported the Organic Act amendment.40 Secretary Andrus reasoned that it was necessary to further define the duties of the Secretary of the Interior and the limitations in the administration of the System, and underscored that these duties and limitations must be consistent with the “high purposes” established in the 1916 Organic Act.41 There appears to be a general consensus that the 1978 amendment was intended to strengthen the Secretary of the Interior’s ability to protect national park resources.42

B.  Park Unit Enabling Legislation

A natural, historical, or recreational area becomes a unit of the National Park System by an act of Congress, more commonly known as enabling legislation, or by presidential proclamation through an executive order.43 Typical enabling legislation explains the purpose of a particular System unit, sets forth the boundaries of a System unit, and dictates any other operating conditions that may apply to it.44 As part of its statement of purpose, certain uses may be specified, including a provision allowing the continuation of preexisting uses (e.g. hunting or waterskiing).45 In the case of recreation areas, NPS and System unit superintendents may allow a wider range of activities, such as winter or water sports, depending on the location and nature of the System unit.46

As provided in both the 1970 and 1978 amendments to the Organic Act, NPS must manage each System unit in accordance with its enabling legislation.47 The enabling legislation¾as an example of a direct and specific mandate from Congress¾is the only acceptable circumstance under which NPS can activate the exceptions clause and derogate the high public value and integrity of the System.48

Following are some excerpts from System unit enabling legislation particularly relevant to this Comment. In establishing Padre Island National Seashore, Congress named its goal as saving and pre[*PG250]serving¾for purposes of public recreation, benefit, and inspiration¾a portion of undeveloped and diminishing seashore.49 After describing its boundaries, the Interior Secretary’s power to acquire property within the System unit, and other administrative responsibilities, Congress also provided that NPS should manage Padre Island in light of the Organic Act’s mandate.50 However, the System unit’s enabling legislation qualified NPS’s adherence to the mandate when it stated that “authority otherwise available to the Secretary for the conservation and management of natural resources may be utilized to the extent . . . [that] such authority will further the purposes of sections [of this enabling legislation].”51 There is no explicit authorization for preexisting uses in the legislation.52

The System unit enabling legislation for Bighorn Canyon National Recreation Area followed a similar format.53 In addition to providing for public outdoor recreation use and enjoyment, Bighorn was established for the preservation of the scenic, scientific, and historic features contributing to the enjoyment of the waters.54 More specifically, it authorized the Crow Indian Tribe to develop and operate water-based recreational facilities, including landing ramps, boathouses, and fishing facilities.55

Finally, the System unit enabling legislation for Amistad National Recreation Area also reflected a dual mandate of public outdoor recreation use and enjoyment on the one hand, and protection of scenic, scientific, and cultural resources on the other.56 Like Padre Island, the enabling legislation also directed NPS to administer the System unit in a manner consistent with the Organic Act’s dual mandate.57 The Secretary of the Interior may also utilize statutory authority to protect natural and cultural resources.58 Hunting and fishing are permitted in Amistad.59

[*PG251]C.  Judicial Interpretations

1.  The Scope of NPS’s Authority to Regulate

Although the 1916 Organic Act expressly delegated rulemaking authority to NPS, it is otherwise silent about how the agency should implement the Act’s preservation and use mandates.60 In reviewing NPS regulations, courts generally afford the agency broad discretion in management decisions, analyzing rules to ensure that they are not arbitrary, capricious, or manifestly contrary to the statute.61 This deferential review has led courts to uphold restrictions on, and allowances for, visitor uses in the System so long as the decision has a rational basis in the Organic Act and accompanying legislative histories, System unit enabling legislation, and/or appropriate regulations.62

In addressing challenges to NPS’s interpretation of the Organic Act, courts generally apply the two-part analysis developed in Chevron, U.S.A., Inc. v. Natural Resources Defense Council.63 First, a reviewing court employs traditional tools of statutory construction to examine whether Congress has unambiguously addressed the issue in question.64 If it has, effect must be given to Congress’s clear intent.65 If Congress has not addressed the issue or is ambiguous about its intent, a court must defer to the agency’s expertise so long as the agency’s interpretation is based on a permissible construction of the statute.66 There may be more than one permissible construction of a statutory mandate.67

Courts have relied upon this two-part analysis to uphold a “closed-unless-designated-open” approach to off-road bicycling in Sys[*PG252]tem units.68 It was also used to reject a challenge to NPS’s decision to prohibit hunting and trapping in the System except where specifically contemplated by Congress.69 In both contexts, reviewing courts relied on the language of the Organic Act and its amendments as well as legislative histories to arrive at their conclusions.70

One issue that is embedded in most challenges to NPS’s statutory interpretations in the context of prohibiting or allowing visitor activities is the perceived conflict between the Organic Act’s “preservation” and “use” mandates.71 Generally, it appears that the “preservation” mandate is deemed superior to the “use” mandate.72 Again, the language of the Organic Act, its amendments, and legislative histories, as well as the interaction between the Organic Act and subsequent unit enabling legislation, are all relied upon to draw this conclusion.73 Such a finding provides a solid foundation on which courts then base, at least in part, approval of NPS restrictions upon visitor uses.74

Despite this consensus, however, some courts appear to be reluctant to elevate the “preservation” mandate above the “use” mandate.75 Rather, courts seem to inquire whether the proposed prohibition (or allowance) is a reasonable accommodation of conflicting mandates.76 [*PG253]An accommodation is reasonable unless a statute or legislative history indicates it is not one Congress would have sanctioned.77 Also relevant to a balancing of the two mandates are the nature and extent of actual or potential damage to a System unit’s natural resources and NPS’s efforts to mitigate such damage.78 This approach has led courts, for example, to uphold NPS decisions allowing snowmobiling and off-road vehicles in particular System units, despite System-wide bans, because actual or potential damage was minimal and temporary.79

Two other closely-related issues that are often discussed by courts in deciding whether NPS’s actions are arbitrary and capricious are the sufficiency of the administrative record and/or the adequacy of the agency explanation.80 Although deferential to agency decisions under the arbitrary and capricious standard, the agency decision will be held invalid if the agency has offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.81 Essentially, the evidence in the administrative record needs to provide a rational foundation upon which NPS may base its action.82

In practice, courts seem reluctant to strike down NPS’s record or explanation as unsatisfactory.83 For example, despite both a Fish and Wildlife Service biological opinion that concluded that snowmobiling was not by itself harmful to wildlife and enabling legislation that permitted the activity, anecdotal evidence was enough to support NPS’s decision to prohibit snowmobiling in a particular System unit.84 In another decision, a court found that NPS’s reference to “public safety, resource protection, and the avoidance of visitor conflicts” was an [*PG254]adequate explanation of the agency’s decision to ban off-road bicycling throughout the System.85

2.  The Scope of the Exceptions Clause

One of the principal ways NPS’s broad authority to regulate can be harnessed is if a System unit’s enabling legislation specifically provides for, or prohibits, a particular use.86 Such a provision fulfills the directive in Section One of the Organic Act that the System shall not be managed in “derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress.”87 Although there is unquestioning adherence to a congressional mandate calling for a particular use, courts continue to grapple with questions of how narrow a congressional mandate must be to fall within the exceptions clause and how to handle the situation of conflicting mandates within enabling legislation.88

Relevant case law seems to indicate that the exceptions clause is only triggered if enabling legislation explicitly authorizes a particular activity or pertinent legislative history mentions it.89 Courts appear to reject arguments that an activity in question is a subset of a previously authorized activity.90 Similarly, if enabling legislation other than the legislation in question has explicitly authorized an activity, the exceptions clause does not apply.91 One of the strongest examples of this reasoning is Michigan United Conservation Clubs v. Lujan, a Sixth Circuit case which rejected the claim that enabling legislation of two national lakeshores which explicitly permitted hunting also implicitly permitted trapping.92

[*PG255] Statutory language appears to be the key when analyzing enabling legislation that cites multiple purposes.93 If enabling legislation discusses preserving a System unit’s scenic and scientific natural resources while simultaneously maintaining that the unit be used for recreational opportunities, such dual mandates appear to limit reliance on the exceptions clause.94 Also preventing the complete derogation of resource values in favor of recreational pursuits is a direction in System unit enabling legislation to administer the unit in a manner consistent with Section One of the Organic Act and, impliedly, its focus on resource protection.95

The Ninth Circuit case of Bicycle Trails Council v. Babbitt illustrates these principles of construction.96 In addition to deciding whether a general ban on off-road bicycling was reasonable, the Ninth Circuit also addressed whether NPS’s proposed off-road bicycle trail plan in the Golden Gate National Recreation Area (GGNRA) was reasonable.97 The court found that the plan was reasonable and rejected the plaintiff’s contention that bicyclists were not given priority as required by enabling legislation.98 While acknowledging that recreational issues were the predominant concern of NPS and GGNRA officials, language in GGNRA enabling legislation, which called for preserving the area as much as possible in its natural setting, prevented a complete derogation of any interest other than recreational use.99 In addition, the GGNRA Act provided that NPS should administer the area in accordance with Section One of the Organic Act and its emphasis on natural resource protection.100

D.  NPS Management Policies

NPS Management Policies function as the agency’s internal guidelines for administrative decisions.101 In addition to covering such [*PG256]specific topics as land management, natural resource management, and visitor use, the policies outline three broad principles articulated by then-Secretary of the Interior Franklin K. Lane to the first director of NPS.102 The three principles provide: (1) the national parks must be maintained in absolutely unimpaired form for the use of future generations as well as those of our own time; (2) the national parks must be set apart for the use, observation, health, and pleasure of the people; and (3) the national interest must dictate all decisions affecting public or private enterprise in the parks.103

In the “Introduction” to these policies, NPS addresses the tension between Congress’s mandate to conserve resources while also providing for visitor enjoyment.104 Despite this conflicting mandate, NPS permits park superintendents, if and when there is a reasonable basis to believe a resource is or will become impaired, to temporarily close a specific area or otherwise place limitations on public use.105

In the situation of recreational areas, NPS manages System units so as to protect park resources, provide for public enjoyment, promote public safety, and minimize conflicts with other visitor activities.106 NPS seeks consistency in recreation management policies and procedures, to the extent practicable, while still acknowledging that differences in individual park enabling legislation may mean that an activity entirely appropriate for one location may be inappropriate if conducted in another location.107 Unless a use is mandated by statute, NPS will not allow a recreational activity in a System unit if it has an unacceptable impact on System unit resources or natural processes, if it is inconsistent with the System unit’s enabling legislation or proclamation, or if it results in a derogation of the values or purposes for which the System unit was established.108

[*PG257]II.  The Characteristics and Effects of Personal Watercraft

PWC are a type of recreational boat commonly known as jet skis or waverunners.109 PWC are powered by two-cycle gasoline engines and in-board motors, and are less than sixteen feet in length.110 They feature both sit-down and stand-up styles and include one-, two-, and three-person models.111 The PWC industry is the fastest growing segment of marine business and represented thirty-six percent of all new powerboat sales in 1997.112 The United States Coast Guard estimates that more than one million PWC were in operation during the 1997 boating season.113 Between 1987 and 1997, PWC annual sales increased from 29,000 vessels to more than 176,000 vessels.114 According to industry statistics, most PWC owners are male, in their early forties, and previous owners of powerboats.115

One of the biggest concerns about PWC use shared by government agencies, the boating industry, and members of the general public is the PWC safety record. A recent study conducted by the National Transportation Safety Board determined that the number of PWC fatalities more than tripled between 1993 and 1997.116 In addition, the leading cause of death in PWC accidents is blunt force trauma; in other recreational boating accidents the leading cause of death is drowning.117 According to United States Coast Guard (USCG) reports, PWC account for eleven percent of all watercraft registered in the United States, but are involved in thirty-five percent of all boating accidents.118

Also of concern to the public and environmental groups alike, is the destruction PWC cause to water, aquatic vegetation, and wildlife. [*PG258]PWC two-stroke engines not only pollute water and air by discharging twenty to forty percent of consumed fuel into their environs, but also emit a loud noise that disturbs fish, wildlife, and other recreationists.119 In addition, the shallow-draft design of PWC enables the vessels to operate in water less than one foot deep, allowing PWC to sweep close enough to shore to disrupt bird and wildlife habitats.120 Operation in shallow water may also stir up the water’s floor, causing cloudiness and limiting light penetration and oxygen needed by fish and bird populations.121 Shallow water PWC use also threatens sea grass.122

III.  The Current Status of Personal Watercraft Law

A.  Federal Law

Turning from PWC characteristics and effects to the current law governing the vessels, PWC are regulated by USCG as Class A vessels.123 Under this classification, which also applies to motorboats in general, USCG sets forth uniform minimum requirements such as life preserver and fire extinguisher equipment standards.124 In the Organic Act, Congress qualified NPS’s ability to regulate the waters within the System by directing that “any regulations adopted pursuant to this subsection shall be complementary to, and not in derogation of, the authority of the United States Coast Guard to regulate the use of waters subject to the jurisdiction of the United States.”125

Legislative history accompanying the amendment extending NPS’s authority to water indicates that the purpose of NPS’s regula[*PG259]tory power in this sphere was to protect natural, wildlife, cultural, and historical resources in light of significant increases in recreational boating.126 The legislative history also illustrates that USCG, while agreeing that NPS should have some authority to regulate water, wanted to retain ultimate authority over issues such as boat design, safety and numbering, and vessel documentation and inspection requirements.127

Although the proposed ban on PWC marks the first time NPS has addressed PWC use System-wide, the agency or individual System unit superintendents banned or severely restricted the use of these motorized vehicles in at least seven System units prior to the rulemaking.128 For example, NPS banned PWC use in Everglades National Park because activities such as waterskiing and the use of PWC were incompatible with preserving serenity and other “wilderness” qualities.129 Such activities, NPS reasoned, undercut the unit’s purpose of protecting a unique natural system.130

NPS also banned PWC use on Lake Crescent located in Olympic National Park in Washington State.131 Although NPS acknowledged that current PWC use was low (but increasing), it based its decision on conflicts with other visitor uses caused by the crafts, including their frequent proximity to boats and the shoreline and the noise emitted by their engines.132 NPS interpreted this type of by-product as a direct contravention of the unit’s purpose as set forth in the Olympic Na[*PG260]tional Park Master Plan.133 The Plan portrayed the unit as providing “special peace and renewal of the human spirit that undeveloped, unspoiled land can offer. . . .”134

Adverse environmental impacts also motivated the ban.135 PWC use displaced Lake Crescent wildlife, such as river otters and other waterfowl, and threatened shoreline vegetation.136 Additionally, NPS cited the discharge of non-combusted oil into the waters of Lake Crescent.137

To date, there has been only one reported case involving a federal agency and a PWC ban. In Personal Watercraft Industry Ass’n v. Department of Commerce, the D.C. Circuit confirmed an administrative agency’s authority to limit the use of PWC.138 The National Oceanic and Atmospheric Administration (NOAA), under authority granted to it by the Secretary of Commerce, promulgated regulations limiting the operation of PWC to four designated zones in the Monterey Bay National Marine Sanctuary (Sanctuary).139 The regulation did not restrict the use of other types of vessels used in the Sanctuary.140 The plaintiff, an organization representing PWC manufacturers and distributors, challenged the regulation as arbitrary and capricious, alleging it was based on inadequate evidence and that there was no basis for regulating PWC but not other vessels.141

The court rejected this challenge, primarily focusing on NOAA’s ability to single-out PWC for different treatment.142 It found that NOAA could treat PWC differently because agencies can confront problems one step at a time so long as the treatment is reasonable.143 In this case, according to the court, it was reasonable to ban PWC from all but fourteen of the 4000 square nautical miles encompassing the Sanctuary because the craft interfered with the public’s recreational safety and enjoyment of the Sanctuary and threatened its flora [*PG261]and fauna.144 This interference undercut the concept of a sanctuary that encompassed the elements of serenity, peace, and tranquility.145

The Personal Watercraft court went on to reason that the distinction NOAA drew between PWC and other vessels was acceptable because of the differences in size and maneuverability of PWC.146 The smaller size and greater maneuverability of PWC allowed them to operate closer to shore, in areas of high concentrations of kelp forests, marine mammals, and sea birds which larger, slower crafts could not enter.147

Finally, the D.C. Circuit also rejected the challenger’s claim that NOAA did not satisfactorily explain its actions.148 The court reasoned that NOAA fulfilled the requirement under the Administrative Procedures Act149 to provide a “concise general statement” of the regulation’s “basis and purpose” when it highlighted the destruction caused only by PWC and its intention to protect natural resources.150

B.  State and Local Law

Currently, at least thirty-four states have implemented or are contemplating some type of legislation or regulation specific to PWC use.151 Many of these laws impose minimum age, education, and training requirements, as well as wake-jumping and area use restrictions, speed limits, and limitations on night use or required adult supervision.152 In addition, some counties and cities have also begun to regulate PWC use along their shorelines.153

[*PG262]IV.  The NPS Proposed Ban on Personal Watercraft

A.  Text of the Proposed Rule

On September 15, 1998, NPS announced a System-wide ban on PWC.154 In its proposed rule, it defines PWC in part as

a vessel, usually less than 16 feet in length, which uses an inboard, internal combustion engine powering a water jet pump as its primary source of propulsion. The vessel is intended to be operated by a person or persons sitting, standing or kneeling on the vessel, rather than within the confines of the hull.155

The proposed rule mandates that the use of PWC is allowed only in designated areas within the System.156

Generally, designation of areas allowing PWC use requires the promulgation of a special regulation.157 However, thirteen units may forego this procedure and authorize PWC use under the procedures of 36 C.F.R. sections 1.5 and 1.7.158 For the thirteen specified units, the provisions of the proposed rule do not apply until two years after a final regulation is issued.159 NPS also provides a two-year grace period for an additional twelve park units, if appropriate, to promulgate special regulations to designate use areas for PWC.160 During the two years, these twelve units can authorize PWC use under the procedures of 36 C.F.R. sections 1.5 and 1.7.161

[*PG263]B.  Background

NPS invoked its regulatory powers and responsibilities under the Organic Act’s mandate to propose the System-wide ban.162 In the supplementary information accompanying the proposed rule, NPS characterized its approach to PWC use in the System as conservative.163 NPS presumes, as a general matter, that PWC use is inappropriate in most units of the System.164 NPS based its decision, in part, on safety concerns (particularly the high accident rates of the vessels).165

NPS also cited adverse environmental impacts as a reason for the rule, including the ability of PWC to penetrate aquatic vegetation in shallow areas, elevated noise levels, and discharge of oil and gas mixtures into water.166 Wildlife harms included interruption of normal activity and alarm or flight, loss of habitat use, decreased reproductive success, and direct mortality.167

In explaining its decision to regulate PWC but not other conventional watercraft in this manner, NPS made several distinctions.168 First, the agency pointed to general differences in design, use, safety record, controversy, and visitor and resource impacts.169 Next, NPS distinguished the purpose of PWC, reasoning that while conventional watercraft provide access and enjoyment, PWC are often referred to as “thrill crafts,” used only for their excitement value.170

NPS explained its provision of two methods of authorizing PWC use as a recognition that a System unit’s enabling legislation, resources and values, other visitor uses, and overall management objectives may make their use appropriate in certain areas.171 According to NPS, the first group of thirteen units specified in the rule¾which do not have to apply the rule until two years after its final regulation¾were all established for water-related recreation and are characterized by substantial motorized use.172 In these System units, a park superintendent would be able to use the locally-based procedures authorized in 36 C.F.R. sections 1.5 and 1.7 in order to “maintain[] [*PG264]public health and safety, protection of environmental or scenic values, protection of natural or cultural resources, . . . or the avoidance of conflict among visitor use activities.”173

However, if opening up a park unit to PWC use would result in a significant alteration in the public use pattern of the park area; adversely affect the park’s natural, aesthetic, scenic, or cultural values; or be highly controversial in nature, the superintendent must elevate the authorization process by participating in a rulemaking published in the Federal Register.174 To satisfy these locally-based procedures, a superintendent must prepare a written determination, available to the public upon request, justifying the action.175 A superintendent must also notify the public about the action through posted signs, maps, publication in a local newspaper, or through another appropriate method.176

A unit-specific rulemaking through the Federal Register is the process required for all park units besides the thirteen specified by NPS.177 NPS pointed out that such an approach is similar to approaches taken in regulating activities such as off-road bicycling and snowmobiling.178 Acknowledging that the promulgation of unit-specific regulations can be time consuming, however, NPS provided twelve System units with a two-year grace period during which the ban would not be effective.179 All twelve System units are characterized by current PWC use and, according to the NPS, should use the reprieve to develop and finalize special regulations as appropriate.180 During this two-year period, System unit superintendents can authorize PWC use under the procedures of 36 C.F.R. sections 1.5 and 1.7.181

C.  Criticism

The Personal Watercraft Industry Association (PWIA), an organization representing manufacturers in the PWC industry, leads the [*PG265]criticism of the NPS proposed ban on PWC.182 In a document written by Executive Director John Donaldson, PWIA outlined three perceived flaws in the NPS approach.183

First, PWIA argues that NPS should not ban PWC use on a System-wide level.184 PWIA characterizes the System as diverse, with each System unit making a unique contribution.185 The organization advocates a case-by-case examination of the natural resources and visitor expectations of each System unit which has a boat ramp.186 It believes that if a System unit has a tradition of powerboats and accompanying water contact sports, such as water skiing and wake boarding, PWC use is compatible.187

Second, PWIA contends that NPS reneged on its commitment to public participation in its planning process.188 It points to NPS’s management policies, which require the agency to involve the public in decision-making about park resources.189 PWIA maintains that NPS should follow these management policies.190

Finally, PWIA criticizes NPS’s reliance on a ban to address PWC concerns, arguing that a ban should be a last resort.191 The organization suggests alternatives such as designation of slow-speed, no-wake areas or prohibiting early morning riding as ways to eliminate user conflicts and protect sensitive habitats.192 As a whole, PWIA characterizes the NPS approach as capricious.193

[*PG266]V.  Analysis

A.  NPS’s Proposed Ban Is a Reasonable Solution to a System-Wide Problem

1.  A General PWC Ban Is Appropriate

In deciding how to address increasing PWC use within its System units, NPS opted to implement a System-wide ban, just as it had in the hunting, off-road bicycling, and snowmobiling contexts.194 A System-wide ban is a significant change from its heretofore ad hoc or unit-by-unit approach to PWC management.195 The Organic Act’s language and legislative history support the proposed approach, as does relevant case law.196

Both Congress’s broad directive to the NPS to “make and publish such rules and regulations . . . necessary or proper for the use and management of the parks . . .” and its description of the System as “cumulative expressions of a single national heritage . . .” illustrate that not only does NPS have the authority to ban PWC from park units in general, but to not do so would risk vitiating Congress’s clear intent that NPS adopt uniform management policies.197 This argument is bolstered by legislative history of the amendment, which explicitly rejected the notion that because the System had grown to include recreation areas¾the very areas in which PWC use occurs¾dif-ferent management policies were appropriate.198

Case law interpreting the Organic Act, its amendments, and accompanying legislative histories also support the idea that a System-wide ban is preferable to examining PWC use on a unit-by-unit basis.199 Invoking the typical Chevron analysis that most courts seem to apply to System-wide bans, the relevant inquiry is whether Congress, in the Organic Act, unambiguously intended to outlaw PWC use in all units of the System.200 Since the Organic Act is silent on this issue,201 [*PG267]the next question is whether NPS’s “closed-unless-designated-open” strategy is a permissible interpretation of the Organic Act.202

Based on both National Rifle Ass’n v. Potter and Bicycle Trails Council v. Babbitt, discussed earlier, the System-wide PWC ban is a permissible interpretation of the Organic Act because it is sufficiently reasonable and not manifestly contrary to the statute.203 First, the same deference that reviewing courts afforded to NPS’s expertise in its System-wide bans of off-road bicycling and hunting respectively, should be given to NPS in the PWC context.204 This deference, in large part, should be based on the fact that the Organic Act is silent as to the specifics of park management.205 Instead, the Organic Act provides NPS with broad discretion in deciding what uses of park resources are proper.206 Implicit in this silence and broad discretion to promulgate regulations is the ability of NPS to decide whether a rule should apply throughout the System or to individual units.207

Second, the reasonableness of NPS’s statutory interpretation is underscored by what the Organic Act does say.208 The same language cited by the Ninth Circuit in Bicycle Trails Council emphasizing the Secretary of the Interior’s responsibility to administer all System units “in light of the high public value and integrity of the National Park System” is applicable in the PWC context.209 Additionally, it is also clear from the Organic Act’s language that Congress envisioned the System as a single system that derives its stature¾at least in part¾from its management as an integrated whole, with each System unit adding to “increased national dignity.”210 This type of language strongly supports NPS’s “closed-unless-designated-open” approach to PWC use.211

[*PG268] Relevant case law also indicates that the record NPS relied upon and the explanation provided in proposing a System-wide ban of PWC are sufficient to survive an arbitrary and capricious challenge.212 NPS went beyond general references to “public safety, resource protection, and the avoidance of visitor conflicts” that courts have previously deemed a rational and reasoned analysis for System-wide bans by citing specific accident statistics and adverse environmental impacts caused by PWC.213 It also matched the explanation the D.C. Circuit deemed satisfactory in Personal Watercraft Industry Ass’n v. Department of Commerce, to date the only case involving a federal agency and a PWC ban.214

The sufficiency of NPS’s record is underscored further when compared to the sufficiently “rational” administrative record in Mausolf v. Babbitt, a case in which the Eighth Circuit, despite describing the record as “not overwhelming,” upheld a ban on snowmobiling in a park unit based primarily on anecdotal evidence.215 NPS offers more than anecdotal evidence in support of its decision to prohibit PWC throughout the System, and does not face allegations that PWC do not pose the dangers alleged by the agency claims (as was the situation in Mausolf).216

2.  The PWC Ban Does Not Violate the Organic Act’s “Use” Mandate

A continuing topic of discussion among both commentators and the courts interpreting the Organic Act is the conflicting “preservation” and “use” mandates contained in Section One.217 This discussion is relevant to NPS’s current proposal because of the probable argument that the PWC ban completely sacrifices the “use” mandate in favor of “conserv[ing] the scenery and the historic objects and wildlife . . . [so as to] leave them unimpaired.”218 Such an argument fails because there is clear evidence that “preservation” was the paramount congressional mandate.219 Alternatively, even if a case can be made [*PG269]that the mandates need to be balanced against each other, it is acceptable for an agency to resolve conflicting goals in favor of one of those goals so long as the accommodation is reasonable.220

The language and structure of the Organic Act’s mandate clause illustrate the dominance of the protectionist role of NPS.221 Although Congress mentioned “enjoyment” twice, both references are qualified by language emphasizing conservation of natural resources and, at least implicitly, limiting the type of acceptable enjoyment to that which will not degrade natural resources.222 The first “enjoyment” refers to scenery, natural resources, and wildlife that NPS has “conserved.”223 The second “enjoyment” again refers to the System units’ natural resources, but this time also applies to future generations who will enjoy them in their “unimpaired” state.224 Such strong language supports placing preservation ahead of use and suggests that PWC use is not acceptable if it degrades water quality, destroys aquatic vegetation, and disrupts wildlife habitats.225 All of these adverse environmental impacts prevent future generations from enjoying the System’s natural resources that have been kept in an unimpaired state.

Also confirming NPS’s decision to safeguard System units’ natural resources from PWC use are the 1978 amendment and the accompanying legislative history.226 While the amendment itself discussed “protection” of the System’s integrity, the legislative history contained even stronger language that forbids, in general, management practices which compromise resource values.227 Read against this backdrop, NPS is merely fulfilling its congressional mandate by prohibiting PWC use within the System.228

In addition to fulfilling its congressional mandate, NPS is also following its own management policies that direct System unit superintendents to err on the side of resource protection in situations of [*PG270]user conflicts.229 It supplies this directive despite naming “use” as one of its broad operating principles.230 All that is required to limit public use of System resources is a reasonable basis to believe a resource is or would become impaired.231 NPS satisfied this low threshold by outlining current environmental impacts caused by PWC as well as a desire to prevent further destruction as recreational activity continues to gain popularity.232

Finally, case law also supports elevating the Organic Act’s preservation mandate above the use mandate.233 National Rifle Ass’n v. Potter, discussed throughout this Comment, is often cited for this proposition because of unequivocal statements that “the paramount objective of the park system . . . was, from the beginning, one of protectionism” and “[the] primary management function with respect to Park wildlife is its preservation unless Congress has declared otherwise.”234 Courts have relied upon Potter to reject arbitrary and capricious challenges in the hunting, trapping, off-road bicycling, and snowmobiling contexts.235 Language such as this can and should also be applied to the PWC context to arrive at a conclusion that a System-wide ban is consistent with NPS’s overarching duty to protect natural resources.236

Even assuming, arguendo, that resource protection is not necessarily the higher mandate of the Organic Act or that environmental damage inflicted by PWC is not severe enough to justify ignoring the use mandate, the proposed ban remains a reasonable solution to a System-wide problem.237 NPS satisfied the judicial requirement of providing “a reasonable accommodation of conflicting mandates” in primarily two ways.238 First, recalling the emphasis placed on preservation in the Organic Act, its 1978 amendment, and the amendment’s [*PG271]legislative history, the ban is consistent with Congress’s intent to protect the System’s natural resources.239 Therefore, it is likely that Congress would sanction the ban.240

Second, NPS has provided two methods for designating PWC use within System units when certain conditions are satisfied.241 Analytically, this accommodation of the “use” mandate is similar to NPS’s allowance of jeep trails in certain System units where unique resources would not be severely or permanently impaired.242 Both situations reflect good faith attempts to provide a meaningful balance between the preservation and use mandates of the Organic Act.243

As illustrated in Southern Utah Wilderness Alliance v. Dabney, possible qualifications on such an accommodation appear to be the nature and extent of damage to the System’s natural resources, as well as the effectiveness of NPS’s efforts to mitigate this damage.244 Unwilling to forego a general ban because of the serious safety and environmental threats PWC pose to System units, NPS nonetheless attempted to accommodate the use mandate by allowing more relaxed authorization procedures in units that were created for water-related, recreational purposes rather than preservation purposes.245 For other units, the process of promulgating a special regulation will help ensure thoughtful, and possibly narrow, PWC authorizations that hopefully will mitigate possible damage.246

3.  Singling Out PWC Use Is Within NPS’s Discretion

Another likely attack on the PWC ban, also challenging the reasonableness underlying the ban, may focus on NPS’s decision to target only PWC and not other motorized watercraft.247 Adding fuel to this attack would be USCG’s classification of PWC as Class A vessels, [*PG272]the same classification which applies to motorboats in general.248 However, when the nature of USCG’s Class A regulations and case law are considered, NPS’s decision to single out PWC is not arbitrary and capricious.249

The Organic Act mandates that NPS can regulate the waters of the System only in a manner consistent with the authority of the USCG to regulate waters of the United States.250 As discussed earlier, the purpose of NPS’s regulatory powers over water is to protect natural, wildlife, cultural, and historical resources.251 USCG retains clear authority over issues such as boat design, safety, numbering, vessel documentation, and inspection requirements.252 Since NPS’s motivation in banning PWC is, in large part, an attempt to reverse and prevent environmental problems, it does not conflict with USCG’s authority to oversee the more physical and mechanical aspects of motorboats or violate the Organic Act.253

The one reported federal case on point, Personal Watercraft Industry Ass’n v. Department of Commerce, also confirms the reasonableness of NPS’s proposed ban on PWC.254 In that case, the court embraced the established principle that agencies can address issues one step at a time so long as the remedy is reasonable.255 The same factors which made the distinction reasonable in Personal Watercraft Industry Ass’n¾in particular, the smaller size and increased maneuverability of PWC¾also make NPS’s distinction reasonable.256 Additionally, the PWC ban was proposed more than three years after NOAA’s prohibition was challenged unsuccessfully. If it were reasonable to ban PWC when the activity was a “new phenomenon,” then the NPS ban seems even more reasonable when, presumably, the agency has had three years to observe and confirm the destruction witnessed in areas such as the Monterey Bay National Marine Sanctuary.257

[*PG273]B.  NPS Should Favor the Special Regulation Alternative for Authorizing
PWC Use

As detailed earlier in this Comment, NPS provides two ways in which units can authorize PWC use.258 Generally, authorization occurs through a special regulation which requires notice in the Federal Register and an opportunity for public comment.259 However, NPS exempted thirteen units from this procedure, requiring only that they follow the locally-based procedures outlined in C.F.R. chapter 36, sections 1.5 and 1.7.260 NPS’s justification for this more relaxed procedure is that these System units were all established for water-related recreation and are characterized by substantial motorized use.261 Despite this reasoning, however, the language of the regulations in question, the exceptions clause of the Organic Act, and case law all suggest that NPS should exercise extreme caution in allowing System unit superintendents to avoid a Federal Register rulemaking.262 There are also strong policy considerations that support such a rulemaking instead of unilateral action on the part of System unit superintendents.

1.  Applicable Regulations Should Be Read Narrowly in PWC Context

According to C.F.R. chapter 36, section 1.5(a), System unit superintendents may only designate areas for a specific activity if such designation is “necessary” for the maintenance of certain conditions, including equitable allocation and use of facilities or the avoidance of user conflicts.263 “Necessary” does not suggest a balancing of user conflicts but implicitly requires a finding by superintendents that allowing PWC use is the only way user conflicts can be avoided.264

The difficulty of making such a determination is compounded by the fact that as soon as a superintendent decides that PWC use is necessary to avoid user conflicts, he or she triggers other conditions in section 1.5(a) that then make the prohibition of PWC use necessary.265 Namely, in light of the high accident rate of PWC and the [*PG274]damage they cause to wildlife habitation and aquatic vegetation, the prohibition of PWC use would be necessary to maintain public health and safety, as well as to protect environmental and scenic values.266

Even if such a literal translation of section 1.5(a) is not undertaken, section 1.5(b) also restricts superintendents in relying on these locally-based procedures to authorize PWC use.267 The degradation of water quality inflicted by PWC, the destruction of sea grass when PWC operate in shallow water, and the “flight” of wildlife caused by PWC can be viewed as examples of adverse effects on a System unit’s natural values.268 Such adverse impacts require a Federal Register rulemaking.269 Also supporting a Federal Register rulemaking is the highly controversial nature of PWC use, as evidenced, in part, by the widespread media coverage of NPS’s proposed ban.270

2.  A PWC Ban in Units Established for Water-Related Recreation Does Not Per Se Violate Specified System Units’ Enabling Legislation

NPS’s contention that less demanding procedures are required for System units established for water-related recreation may not be sufficient to avoid a Federal Register rulemaking.271 First, the Organic Act directs that the System cannot be managed in derogation of NPS’s preservation mandate unless “directly and specifically provided by Congress.”272 Second, case law indicates that courts interpret the Organic Act’s exceptions clause narrowly and literally.273

Therefore, unless the enabling legislation of the thirteen units specifically provides for PWC use, it seems reasonable to conclude that NPS cannot use the exceptions clause to justify the less demand[*PG275]ing designation procedures.274 At least three of the thirteen units named by NPS¾Amistad National Recreation Area, Bighorn Canyon National Recreation Area and Padre Island National Seashore¾do not specifically mention PWC use.275 In fact, the enabling legislation of Amistad and Padre Island do not even explicitly or impliedly authorize pleasure boating, an activity of which NPS could at least argue that PWC is a subset.276 If the exceptions clause does not apply, then these System units are in the same position as the other System units and, like the other units, should only be permitted to authorize PWC use through Federal Register rulemakings.

Even if broad language such as the purpose clause in Amistad’s legislation stating the unit was established to “provide for public outdoor recreation use and enjoyment of the lands and waters . . .” does trigger the Organic Act’s exceptions clause, NPS would not automatically be able to rely on it to permit less demanding authorization procedures.277 Another possible limitation on invoking the exceptions clause is the presence of multiple purposes in a System unit’s enabling legislation.278 According to Bicycle Trails Council, if there is language in a System unit’s enabling legislation that calls for the preservation or protection of natural resources or scenic beauty, such language prevents a complete derogation of any interest other than recreational use.279

Both Amistad and Bighorn Canyon’s enabling legislation contain such language.280 This language should at least indicate to NPS that the preservation mandate of the Organic Act still applies.281 Given that the preservation mandate appears to be dominant and that NPS has a clear responsibility to manage System units uniformly, the Federal Register Rulemaking that occurs on a national level is a better choice than relying on locally-based procedures.282

[*PG276]3.  Policy Considerations Support a Stricter Approach

In addition to purely legal issues, there are also several policy reasons why NPS should favor the stricter alternative for authorizing PWC use in System units. First, PWC are still a relatively new phenomenon.283 As safety and environmental issues continue to surface and environmentalists and members of the general public voice concerns about the vessels, an increasing number of cities, states, and System units are banning or severely restricting PWC use in their jurisdictions.284 NPS’s System-wide PWC ban represents a comprehensive solution to a far-reaching problem before irreparable harm occurs.285 Application of the locally-based procedures would chip away at this comprehensive solution. It could also lead to overcrowding and substantial environmental degradation of System units that do allow PWC use.286 Such a concern was expressed by a Golden Gate National Recreation Area official in explaining why unit officials decided to permanently ban PWC.287

Second, the special regulation alternative is a better idea from a policy standpoint because the American public as a whole has a vested interest in the System and its uses.288 If authorization of PWC use occurs through a special regulation, the proposed rule is published in the Federal Register, as NPS’s proposed PWC ban was, and it is open to comment from all sectors of American society.289 In contrast, if locally-based procedures are used, a System unit superintendent is required only to prepare a written justification for his or her actions, to make the justification available to the public, and to notify the “af[*PG277]fected” public through the posting of signs or through local newspapers.290 The Federal Register rulemaking is more consistent with Congress’s insistence that the System units are part of an integrated, national system.291 It is also more consistent with the popular image of the System as America’s “playgrounds,” areas that belong to all Americans.292

Finally, policy reasons support the special regulation alternative because of NPS’s own statements when initially proposing the System-wide ban.293 When NPS proposed outlawing PWC use in all System units, it stated that, as a general matter, it presumed that PWC use was inappropriate in most units of the System.294 In its background section, NPS also estimated that PWC use had been observed in about thirty-two System units that allowed motorized boating.295 The result is that more than forty percent of the System units which are characterized by the most PWC use¾and therefore are subject to the most harm¾are able to continue their use most easily.296 Such a result undercuts the “conservative” approach taken by NPS.297

The result is even more disturbing when the additional twelve units in which NPS has authorized the use of locally-based procedures for a two-year period are considered.298 For two years after the NPS PWC ban is finalized, seventy-eight percent of park units will be allowed to continue PWC use if a superintendent believes it is warranted.299 Although it may be within NPS’s authority to invoke the locally-based procedures, and superintendents should have some flexibility in management practices because they are the most familiar with their units’ circumstances and use patterns, NPS should still exercise caution in allowing the use of locally-based authorization procedures in the PWC context.300 If it does not, the presumption of PWC inappropriateness will be whittled away.301

[*PG278]Conclusion

PWC pose significant safety and environmental hazards to boaters, swimmers, wildlife, aquatic vegetation, and to water bodies themselves.302 To date, most of these issues have been dealt with on an ad hoc basis at city and state levels.303 In addition to state laws establishing age limits and licensing requirements for PWC use, some states and agencies have banned or severely limited PWC from particular stretches of water.304

The PWC ban, proposed by NPS in September, 1998, represents the first System-wide and comprehensive attempt to address the destruction caused by these recreational vessels.305 The System-wide ban is both a legal and effective remedy. It reflects the preservationist mandate of the Organic Act, its amendments, and legislative history. It is also consistent with the Organic Act’s directive that System units be managed as an integrated whole.

To remain true to its assumption that PWC use is inappropriate for most System units, the thirteen units that can authorize use through locally-based procedures should rely on these procedures with extreme caution. In most cases, a Federal Register rulemaking ¾the default authorization process of the proposed rule¾would seem to be the more appropriate option. The System-wide and permanent ban, coupled with a strict authorization procedure, effectively address increasing PWC use in the System while simultaneously supporting and setting an example for cities and states grappling with similar issues.

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