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.