July 27, 2021
| The Honorable Joe Manchin, Chairman Committee on Energy and Natural Resources U.S. Senate, 304 Dirksen Senate Office Building Washington, DC 20510 | The Honorable John Barrasso, Ranking Member Committee on Energy and Natural Resources U.S. Senate, 304 Dirksen Senate Office Building Washington, DC 20510 |
Subjects: 1) Opposition to S. 1526, a bill to authorize the use of off-highway vehicles in certain areas of the Capitol Reef National Park, Utah; and 2) Opposition to S. 1527, a bill to amend Title 54, United States Code, to provide that State law shall apply to the use of motor vehicles on roads within a National Park System unit.
Dear Chairman Manchin and Ranking Member Barrasso:
I am writing on behalf of over 1,900 members of the Coalition to Protect America’s National Parks (Coalition), whose membership is comprised of retired, former, or current National Park Service (NPS) employees. As a group we collectively represent over 40,000 years of experience managing and protecting America’s most precious and important natural and cultural resources. Among our members are former NPS directors, regional directors, superintendents, resource specialists, rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.
The Coalition strongly opposes S. 15261https://www.govinfo.gov/content/pkg/BILLS-117s1526is/pdf/BILLS-117s1526is.pdf, which would authorize the use of off-highway vehicles (OHVs) on certain park roads in Capitol Reef National Park in south-central Utah. The Coalition also strongly opposes S. 15272https://www.govinfo.gov/content/pkg/BILLS-117s1527is/pdf/BILLS-117s1527is.pdf, which would amend Title 54, United States Code, to provide that State law shall apply to the use of motor vehicles on roads within a National Park System unit.
We echo the concerns already expressed by the Department of the Interior in testimony submitted at the Subcommittee on National Parks legislative hearing3https://www.energy.senate.gov/hearings/2021/6/national-park-subcommittee-legislative-hearing on June 23, 2021. In addition, we believe that neither bill is necessary nor appropriate, as we will explain below.
BACKGROUND
The Organic Act of 1916 (39 Stat. 535)4https://www.nps.gov/foun/learn/management/upload/1916%20ACT%20TO%20ESTABLISH%20A%20NATIONAL%20PARK%20SERVICE-5.pdf created the National Park Service and established its authority to regulate park uses in order to ensure the conservation of park resources and values. Specifically, Section 1 of the Act provides that:
[T]he fundamental purpose of the said parks, monuments, and reservations… is 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.” (Emphasis added.)
The above section is the basis for what is known as the Park Service’s “conservation mandate.” As explained in NPS Management Policies 20065https://www.nps.gov/policy/mp/policies.html, Section 1.4.3:
Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. This is how courts have consistently interpreted the Organic Act. (Emphasis added.)
Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. This is how courts have consistently interpreted the Organic Act. (Emphasis added.)
Since 1916, the NPS has exercised this rulemaking authority to establish various System-wide and park-specific regulations that are found in Title 36 of the Code of Federal Regulations (CFR), Chapter I6https://www.law.cornell.edu/cfr/text/36/chapter-I. Several sections of the NPS regulations adopt “the applicable and nonconflicting State laws, statutes, regulations, ordinances, infractions and codes of the State(s) and political subdivision(s) within whose exterior boundaries a park area or a portion thereof is located.” See definition of “State law” at 36 CFR §1.4.
However, under Section 3 of the Organic Act and as made clear in specific provisions of the NPS regulations, NPS retains the authority to regulate, limit or prohibit activities that are otherwise permitted under State law but would be in conflict with the NPS conservation mandate. Specific sections of Title 36 CFR that adopt but limit the applicability of State law in parks include the following: §2.2 (b)(4), hunting and trapping; § 2.3(a), fishing; § 2.18(b), snowmobiles; § 3.2(b), boating; and § 4.2(a) vehicles and traffic safety.
Title 36 CFR Part 4 regulations apply to traffic and the use of motor vehicles in parks. The most recent revision of Part 4 occurred in 1987. See 52 FR Vol. 52 No. 63, Apr. 2, 1987 7https://tile.loc.gov/storage-services/service/ll/fedreg/fr052/fr052063/fr052063.pdf The applicability of State traffic code in a national park area is addressed in §4.2(a)8https://www.law.cornell.edu/cfr/text/36/4.2, which states:
Unless specifically addressed by regulations in this chapter, traffic and the use of vehicles within a park area are governed by State law. State law that is now or may later be in effect is adopted and made a part of the regulations in this part. (Emphasis added.)
The NPS intent behind this provision is made plain in the preamble to the 1987 final rule on FR p. 10670, which states:
The NPS intends that the foundation of its vehicle and traffic safety regulations be the nonconflicting provisions of the respective State vehicle codes, which are adopted in § 4.2. NPS regulations supplementing those codes are limited to ones that are necessary to resolve visitor safety and/ or resource protection concerns that cannot be satisfied on a Servicewide basis by applying and enforcing State vehicle code provisions. (Emphasis added.)
In other words, the vast majority of respective State traffic laws governing the use of motor vehicles do, in fact, already apply throughout the National Park System. The only exception(s) to those State laws occur if/when NPS exercises its Organic Act authority to regulate park uses differently than State law(s) would otherwise allow in order to “resolve visitor safety and/or resource protection concerns.” In essence, it is the NPS, not any State, that is responsible for and has the statutory authority to regulate and limit park uses in order to conserve national park resources and values in accordance with the NPS Organic Act.
Given the above information as context, we provide the following comments regarding the proposed legislation.
1. We oppose S. 1526 as it would adversely impact resources and values, including natural soundscapes and wilderness characteristics, in Capitol Reef National Park.
Capitol Reef was proclaimed a national monument in 1937 and redesignated a national park in 1971 with several boundary changes in its history. Over 90% of the park’s 242,000 acres are Federal; and of that, a 1973 wilderness study and 1974 wilderness recommendation identified 179,815 acres of wilderness and 4,050 acres of potential wilderness at Capitol Reef (approximately 75% of the park). See map #158-20,016, dated October 1974.
Under NPS Management Policies 2006, Section 6.3, NPS “will take no action that would diminish the wilderness eligibility of an area possessing wilderness characteristics until the legislative process of wilderness designation has been completed.” Thus NPS manages approximately 75% of Capital Reef NP to preserve its wilderness characteristics, which are described in the park’s January 2018 Foundation Document9https://www.nps.gov/care/learn/management/upload/CARE-Foundation-Document-508.pdf (see p. 8):
Capitol Reef National Park offers a remote wilderness expanse free from modern human manipulation and development… The natural acoustical environment, dark night skies, and wholly undeveloped nature of Capitol Reef National Park’s wilderness lands are unique resources that contribute to the area’s outstanding wilderness character. (Emphasis added.)
The possibility of OHV use on national park roads in Utah has been a significant concern since Utah Senate Bill 18110https://le.utah.gov/~2008/bills/static/SB0181.html was enacted in 2008 and subsequently codified in Utah Criminal and Traffic Code, Section 41-6a-10211https://le.utah.gov/xcode/Title41/Chapter6A/41-6a-S1509.html?v=C41-6a-S1509_2019051420190514. This law allows “street legal” all-terrain vehicles (ATVs) to use all state roads and highways. Since the passage of this law, the use of street legal OHVs has proliferated across the State, while the NPS has generally prohibited such use on park roads in Utah via park-specific closures imposed under 36 CFR § 1.5 (with the notable exception of certain roads in Glen Canyon National Recreation, which were opened to street legal ATVs under the 2018 Record of Decision 12https://parkplanning.nps.gov/document.cfm?parkID=62&projectID=19520&documentID=90225for Glen Canyon’s final off-road vehicle management plan).
The § 1.5 closure determination for Capitol Reef NP states the following:
The addition of off-road vehicle traffic on park roads will inevitably result in injury and damage to park resources (Emphasis added.) These specialized vehicles are designed and marketed for the purpose of off-road travel, and they are uniquely capable of easily leaving the road and travelling cross-country. No reasonable level of law enforcement presence would be sufficient to prevent ATV and OHV use off roads. Park rangers will have no ability to pursue and apprehend vehicle users off-road without adding to the damage they cause to park resources. (See Superintendent’s Compendium13https://www.nps.gov/care/learn/management/upload/Compendium-2021.pdf, dated May 2021.)
Although the above NPS determination is relatively brief, the potential adverse impacts of ATVs/OHVs on public lands are diverse and well documented. For example, one U.S. Geological Survey (USGS) report alone, titled “Environmental Effects of Off-Highway Vehicles on Bureau of Land Management Lands”14https://pubs.usgs.gov/of/2007/1353/report.pdf cited over 300 (i.e., 313) studies and reports describing multiple adverse effects to natural resources including soils and watersheds, vegetation, wildlife and habitats, water quality, and air quality.
In addition, it is well known that ATVs are designed for off-road performance and, as a result, are distinctly noisier than conventional motor vehicles that are designed for highway use. As explained at www.dirtwheeler.com:
ATVs are so loud because their engines rev at very high RPMs, they have shortened exhaust systems, have poorly insulated or non-existent engine compartments, and are generally ridden very fast wherever they go. (Emphasis added.)
Numerous other pro-ATV websites similarly acknowledge that because ATVs are designed for off-road performance, not highway use, all-terrain vehicles are very noisy. So, while we concur with the NPS determination for Capitol Reef that ATVs have the potential to illegally travel off-road and damage park resources, we are also very concerned that S. 1526 would undoubtedly introduce significant levels of ATV noise onto park roads in relatively remote locations of the park. In Capitol Reef NP many of the roads border areas that NPS manages to preserve wilderness characteristics. Our concern about noise is magnified by the observation that it is common social behavior for ATV/OHV users to travel in groups of multiple vehicles, which invariably compounds the noise impacts. Such noise would not only impair the natural soundscape, a protected wilderness characteristic at Capitol Reef, it would also be very disruptive to other park visitors and to wildlife.
In brief, we strongly oppose S. 1526 because of the adverse impacts that street legal OHV use would inevitably cause at Capitol Reef NP if allowed on park roads. This includes adverse impacts to the natural soundscape and wilderness characteristics of the park even if OHVs were to stay on park roads, along with the potential for other resource impacts if ATVs were to be illegally driven off of park roads.
2. We oppose S. 1527 for many of the same reasons stated above for opposing S. 1526. In addition, it would set a harmful precedent of Congress retroactively and selectively limiting NPS authority to regulate park uses as provided in Section 3 of the Organic Act of 1916.
While S. 1526 applies only to Capital Reef NP, S. 1527 is obviously a thinly veiled attempt to require the NPS to allow OHVs on park roads in all other national parks in Utah, as well as throughout the National Park System wherever states have authorized such vehicles for general use on public roads within state jurisdiction.
In Utah alone, this bill would require the NPS to allow OHV use of park roads in Arches, Bryce Canyon, Canyonlands, Capital Reef, and Zion National Parks, as well as other NPS units. Noise from ATVs is already famously “making life miserable in Moab” (UT), as reported by the Salt Lake Tribune.15https://www.sltrib.com/news/2021/02/25/his-baby-cant-sleep-he/ Moab serves as the gateway community to Arches and Canyonlands National Parks. Opening these parks’ roads to a similar high level of OHV use would predictably be highly disruptive to natural soundscapes and visitor experiences at Arches and Canyonlands; and would likely violate the impairment clause of the NPS Organic Act. OHV rentals and tours are also readily available in or near other Utah national park gateway communities, such as Springdale (UT)16https://www.yelp.com/search?cflt=atvrentals&find_loc=Springdale%2C+UT+84767 near the heavily visited Zion NP, where the noise impacts of OHVs on park roads would be similarly predictable and disruptive.
Putting the Utah situation aside, our on-line research17https://atvman.com/streets/ indicates18https://atvhelper.com/are-atvs-street-legal-state-by-state-requirements-plus-d-c/#45_Vermont, indicates that a majority of states (approx. 33/50) generally prohibit state-wide use of OHVs on public streets and roads. However, many of those states do allow on-highway OHV use in limited circumstances, such as crossing or using the shoulders of public roads for short distances to connect travel between designated off-road vehicle trails. In many cases, local jurisdictions may authorize (or prohibit) local OHV use of streets and roads even if such use is generally prohibited (or allowed) state-wide.
Of the states that allow broad use of OHVs on public roads and streets, usually with certain registration or licensing requirements, Wyoming is a good example to consider. That state allows ATVs/UHVs to obtain a “multi-purpose vehicle” (MPV) permit19http://www.dot.state.wy.us/home/titles_plates_registration/multipurpose_vehicles.default.html, which allows them to be legally operated on any public street or road, except for interstate highways. As a result, if S. 1527 were to become law, then large portions (i.e., the Wyoming portions) of Yellowstone National Park’s vast but already crowded public road system would be open to any/all ATVs/OHVs/UTVs bearing a Wyoming MPV permit, regardless of the adverse impacts that may occur in America’s first national park.
Also worrisome would be the effect of S.1527 on 36 CFR Part 4 as a whole. That part includes fourteen (14) long-standing and extensively implemented NPS traffic regulations that are specifically developed for park conditions, including those for traffic control devices, commercial vehicle restrictions, and special park speed limits. In addition, many individual parks have adopted park-specific limits and closures under the authority of 36 CFR 1.5 in order to manage specific, local traffic conditions or vehicle use issues. Those regulations would be negated or, at least, confused by the passage of S. 1527. To recklessly apply such sweeping legislation to all 423 park units across our nation without due consideration to the individual and local impacts of the measure would be irresponsible.
In closing, since 1916 it has been extremely rare for Congress to pass legislation that would retroactively require NPS to allow use(s) at a specific park or across the National Park System that NPS had already prohibited using its discretionary authority under Section in 3 of the NPS Organic Act. Proposing to do so now in S. 1526 and S. 1527 would set a horrible precedent that is in direct conflict with NPS regulatory authority and its conservation mandate, if such legislation were to pass.
It seems intuitively obvious but evidently needs to be said now – it makes no sense for Congress to pass a bill that would automatically allow ATV/OHV use in heavily visited, highly congested national parks located across our Nation without consideration of local conditions. Such determinations are best accomplished by local park managers working with local authorities to preserve and protect park resources and visitors. This is why NPS authority under Section 3 of the Organic Act to regulate and manage park uses, including vehicle uses, must be preserved.
For the reasons stated above, we strongly oppose S. 1526 and S. 1527. Thank you for your consideration.
Sincerely,
Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
cc:
The Honorable Angus King, U.S. Senate, Chairman, National Parks Subcommittee
The Honorable Steve Daines, U.S. Senate, Ranking Member, National Parks Subcommittee
The Honorable Mike Lee, U.S. Senator, Utah
The Honorable Mitt Romney, U.S. Senator, Utah
Shawn Benge, Acting Director, National Park Service
Mike Reynolds, Intermountain Regional Director, National Park Service
Sue Fritzke, Superintendent, Capital Reef National Park