Impairment - Spotlight on an Old Word

The purpose of this primer is to provide additional information and to inspire discussion about the guidance addressing impairment in Chapter 1 of the new Management Policies. It is organized to address the following questions:

What can we learn from our past?
On August 25, 1916, President Wilson signed into law the NPS Organic Act. The core challenge for park decision-making endures based upon the language addressing the purpose of the Service. It is contained in a single sentence in the preamble to the Act, which declares that the Service is established:

" to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."

Based upon these words, the Organic Act has often been judged to provide a "contradictory mandate," one that requires us to perform a balancing test between resource protection and public enjoyment. Others have argued, however, that while perhaps ambiguous, the intent of such language was not, in fact, contradictory. Rather, that our mandate from the outset has been to conserve the scenic, natural, and historic resources and that this goal has precedence over access and development for the purpose of public enjoyment.

Even so, this language has seemed to authorize interpretation of purpose to the extent that developing the means of access and visitor accommodation was long deemed appropriate. Such development occurred in most all parks. Arguably, these impacts, and perhaps some of the various visitor activities they supported, may have impaired park resources in some instances. Much has been written indicating such development reflected public expectations of national parks over the years.

Over time, we came to better understand natural processes and learn more about cultural and historic resources. More and more, decisions where impact to resources was anticipated were made based upon new information and appreciation of resource values. Public awareness grew as well and, perhaps accordingly, the Congress amended and further clarified the language of the 1916 Act. And, from time to time, the courts have been called upon to referee disputes involving park decisions that may or may not cause impairment of park resources. While such judicial intervention has usually been about regulations and policies, some cases have broader application to our policies and decision-making.


Why are we talking about Impairment now?
Recently a significant court case occurred involving Canyonlands National Park. It was based upon decisions documented in a Backcountry Management Plan (BMP) for that area. Informally referred to as the SUWA case, it became a catalyst for action because it is the first case where the court judged that the Service had violated the Organic Act by failing to protect park resources. In doing so, the Court articulated a new standard for determining such a violation, which was, in essence, that actions that would result in "permanent impairment of a unique resource" could not be allowed.

The court's decision also happened to coincide with the ongoing revision of updated Management Policies for the National Park Service. Such a process provided an opportunity for the Service to decide whether the Court's standard should be adopted or whether another approach should be identified.

The following briefly summarizes this case:

When Canyonlands became a park in 1964 motorized travel already existed along the Salt Creek drainage as well as along a variety of other unimproved routes or roads in the newly created park. There is at least some support in the legislative history for the park indicating that Congress expected such recreational opportunities to continue.

Over time, visitor use records showed that motorized vehicle levels were increasing throughout the backcountry, and it became evident that such use was adversely impacting park resources and harming the visitor experience. Accordingly, a Backcountry Management Plan ( BMP) was initiated in 1992. Over a two-year period this project resulted in substantial public comment and environmental evaluation.

A draft Environment Assessment (EA) released in late 1993 included a preferred alternative that would have closed the upper 10-mile portion of the Salt Creek Road to vehicles. The administrative record documented that Salt Creek was the only perennial freshwater stream in Canyonlands - except for the Green and Colorado Rivers. It was also noted that the element of the proposed plan indicating closure of this route sparked much debate and opposition from four-wheel driving enthusiasts.

The final BMP, released in early 1995, adopted a plan that would allow some limited continued use under a permit system. It further specified conducting monitoring and assessment activities that would determine whether a reduced level of use still caused harm to the area. The park was then sued by the Southern Utah Wilderness Alliance (SUWA) on several issues, including the decision specific to the Salt Creek Road. Groups supporting four-wheel motorized recreation intervened in support of the NPS decision to allow continued motorized access, albeit on a limited basis. Park decisions prevailed on most of the contested issues. But the District Judge agreed with the Plaintiff (SUWA) regarding the Salt Creek route, as described below:

District Court. In these kinds of cases, the court applies what the Supreme Court has established as the "Chevron 2-step test" (named for the case known as Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.) to determine whether an agency's reading of a statute it administers is correct. Under step 1, if Congress has spoken to the precise question at issue, then that controls the court - and the agency's - interpretation of the statute. At that point, there is no need to go to step 2. However, if the statute is silent or ambiguous, the court defers under step 2 to the agency's interpretation so long as it is a reasonable interpretation of the statute. The NPS defense contended that Canyonlands was a "Chevron 2" case, whereby NPS is allowed to strike a balance between competing mandates of resource conservation and visitor enjoyment. The District Court ruled where there is "permanent impairment of unique park resources," then the Organic Act is not ambiguous; the activity cannot be allowed. The District Court ordered that the park could not allow motorized vehicle use on the 10-mile section of trail.

The Appeal. The groups supporting motorized vehicle recreation then appealed the District Court's decision. This caused the Service to consider whether the Court had properly articulated the standard for determining when the NPS is in violation of the Organic Act. The timing of the ruling allowed the Assistant Secretary's Office and NPS to consider the issue in the context of the revision of the Management Policies (in which Chapter 1 outlines the legal and philosophical foundations of the national park system) and use SUWA as an opportunity to articulate an official DOI/NPS interpretation of the Organic Act. So the Department filed a brief to advise the court of it's views on the proper interpretation of the Organic Act. This interpretation was different than the interpretation NPS had offered previously (to the District Court) wherein NPS contended that the law authorizes the Service to balance between competing mandates of resource conservation and visitor enjoyment. Since the policy interpretation offered by DOI was technically still in draft form (Management Policies had not yet been approved), the Court of Appeals did not consider the updated position.

The Court of Appeals ruled that the District Court erred in its decision, and found that:

  • The Organic Act is a Chevron 2 case, not a Chevron 1 case, and
  • That the type of motorized access characterized in this case is not explicitly prohibited by the Organic Act.

The appeals court also wrote that "we read the Act as permitting the NPS to balance the sometimes conflicting policies of resource conservation and visitor enjoyment in determining what activities should be permitted or prohibited." But the court added: "The test for whether the NPS has performed its balancing properly is whether the resulting action leaves the resources 'unimpaired' for the enjoyment of future generations."

The park is now re-working that portion of the BMP addressing Salt Creek Road in light of the court's decision. The road remains closed pending a new Environmental Assessment. The EA will consider ongoing studies and monitoring which are taking place on the road since the District Court ordered it closed in 1998. The EA will also include an impairment finding consistent with new Management Policies and DO-12 (Planning).

A New Policy Emerges…what is really new?
Chapter 1 of the 1988 Management Policies acknowledges the significant role played by the word impairment, but does not attempt to fully define the word as it may apply to park decisions. It directed that whether an individual action is or is not an "impairment" is a management determination. In reaching it, the manager should consider such factors as the spatial and temporal extent of the impacts, the resources being impacted and their ability to adjust to those impacts, the relation of the impacted resources to other park resources, and the cumulative as well as individual effects.

The 1988 Policy also required that potential impairments be treated as known impairments, and unless it was known a proposed action would not impair resources, the action should not be taken.

Language prepared for the new Management Policies, which were approved December 22, 2000, built upon and significantly amplified the 1988 standards. Consideration was given to the standard prescribed by the Court in the SUWA case and, predictably, there was substantial debate as the new policy evolved through many and much-reviewed drafts. Ultimately, words and language were carefully selected to achieve certain goals, among them:

  • To maximize resources protection by assuring focus on the impairment question.
  • To help ensure that we are consistent in the way we make decisions.
  • To demonstrate to the courts that we have thoroughly analyzed the legal mandates of the Organic Act and that our interpretation of the law is so logical and reasonable that it should be shown deference.

Section 1.4 of Chapter one, Management Policies 2001, documents the new interpretation of the laws as well as prescribes criteria and process for decision making. The components of this new policy are summarized below; however, all decision-makers are urged to read the full body of new language contained in Section 1.4.

  • The no-impairment requirement of the Organic Act and the no-derogation requirement of the Redwoods Act amendment were reconciled as a single standard.
  • The no-impairment requirement of the Organic Act and the no-derogation requirement of the Redwoods Act amendment were reconciled as a single standard.
  • The NPS obligation to conserve and provide for enjoyment of park resources and values (independent of the no-impairment requirement) is explained.
  • The terms "Impairment" and Park Resources and Values" are defined in detail.
  • The prohibition on Impairment of Park Resources and Values is assertively documented.
  • Determination of whether an impact would cause impairment is a decision left to the "professional judgment" of the NPS decision-maker.
  • Before approving a proposed action that could lead to an impairment of park resources an NPS decision-maker must declare, in writing, that the activity will not lead to an impairment.
  • When an NPS decision-maker becomes aware that an ongoing activity might have led or might be leading to an impairment, he or she must investigate and determine if there is, or will be, an impairment. If impairment is determined, "appropriate" action is called for to the extent "reasonably possible."

How does this new policy fit with requirements of NEPA and Section 106?
For more than 30 years we have confronted the requirements of Section 106 of the National
Historic Preservation Act as well as those of the National Environmental Policy Act.
These laws require that we fully analyze the potential consequences of proposed actions, and call for public comment. For nearly as long, we have followed procedures established to achieve these mandates.

However, these statutes do not specifically forbid impairment. They require that we adhere to a prescribed process and call for mitigation where indicated. Our compliance program will continue under these laws. However, under the new policy, there is added one more critical step in the decision-making process - the declaration of no-impairment. Presumably, this determination can be based in part on the information gathered as part of the compliance process.
  • A complete Administrative Record is critical

When a decision made by an NPS manager faces legal challenge, the courts rely on the administrative record as evidence that the Service adhered to applicable law(s), regulations, and policy and also followed proper procedures and reached a reasonable decision. The administrative record, which is required under the Administrative Procedures Act, is the paper trail that documents the Service's decision-making process and the basis for the decision. It consists of all documents and materials directly or indirectly considered by persons involved in the decision-making process. This includes all documents, regardless of whether they favor the decision that was finally made, favor decisions other than the final decision, or express criticism of the final decision.

Among the materials included would be a finding that there would not be impairment, and any documents that helped lead to that conclusion. If there are documents that contend the decision made would lead to impairment, then there must be other evidence refuting that contention, and an indication of how the decision-maker weighed the competing evidence. As one court has described its review process, "Generally, an agency decision will be considered arbitrary and capricious if the agency had [1] relied on factors which Congress had not intended it to consider, [2] entirely failed to consider an important aspect of the problem, [3] offered an explanation for its decision that runs counter to the evidence before the agency, or [4] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."

The tough questions….how will this new policy work in the parks?
The new policy is a carefully crafted effort to assure better protection of park resources. It defines much more fully the terms Impairment and Park Resources and Values. It is absolutely clear in the prohibition of impairment, but does permit impacts - even those deemed adverse when it is clear that they may be the minimum necessary, unavoidable, and mitigated to the extent reasonable.

Rarely, however, will there be clear-cut evidence that impairment will occur. And, already, the tough questions are emerging:

  • How can we really know when a proposed action may cross the threshold that separates impact (even adverse) from impairment?

  • How can we address the argument that most of what we do might, at some point, result in some form of impairment?

  • Is there more or less authority to approve actions that may have adverse impact, but don't rise to the level of impairment?

  • If one also considers potential additions to the administrative record, how much more paper work is really required?

  • Will our focus on impairment result in allegations that we are de-emphasizing opportunities for public enjoyment?

  • How do we reconcile the mandates of other laws, ie the Endangered Species Act and the Wilderness Act, which prescribe specific actions as well?

  • How does the new policy influence our capacity to respond to external threats?

  • The standard is absolute when proposed actions are considered. But what about past decisions and actions that resulted in development or activities now determined to result in impairment? What are the parameters of a "reasonably possible" response?

  • What about impairment that occurred before the park was established?

  • At what point does our judgment rise to a "professional" level? Should there be standards of training, experience, or other knowledge to assure credibility of the decision-maker?

  • Does the existing long-term research, inventory and monitoring protocols in place provide the information needed to fulfill this new policy?

  • Etc, etc, etc……..

Those searching for absolute answers to these and yet more questions will almost certainly be frustrated. The variety of what-ifs surrounding each decision is infinite. Even so, the following is recommended, and may be anticipated in the future:

  1. Careful reading of the Organic Act (as amended), park enabling legislation, and the new Management Policies (including updated DO-12) is essential.
  2. Task groups of specialists in natural and cultural resources management are now developing the best possible guidance to help identify the basic questions in their professions and suggest how to make distinctions between impact and impairment.
  3. A Web site is being established where such guidance as well as discussion of this issue can be posted. The URL is www.nps.gov/protect.
  4. The training community is engaged and will be incorporating information about this new policy and how it is best implemented in all appropriate training opportunities.
  5. The legal community is engaged to assure compliance as well as to assure the most consistent interpretations possible throughout the System.

Finally, however, it must be recognized that our potential to best implement the new Policy is in the future. We will become better through training, collaboration, and the advice of experts in the resources and legal communities. Court decisions may well intervene with precedent-setting decisions. It is a work in progress.

 

Impairment  home page

 

Section 1.14 of the Management Policies

 

Impairment Primer

 

Impairment Questions and Answers

 

NLC Journal, April 2000

 

Dr. Robin W. Winks' Treatise on the "contradictory mandate"  within the Organic Act

 

The Organic Act, 16 USC 1-1a-1


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