Coalition Provides Additional Comments on Cumberland Island National Seashore Proposed Visitor Use Management Plan

The Property Clause of the U.S. Constitution empowers Congress to regulate conduct on non-federally owned land and waters to protect federal land.⁸See, e.g., State of Minn. by Alexander v. Block, 660 F.2d 1240, 1251 (8th Cir. 1981). In Block, the Eighth Circuit Court of Appeals held that a portion of the Boundary Waters Canoe Area Wilderness Act of 1978 restricting the use of motorized boats on waters within a federal wilderness area was constitutional as applied on state-owned waters. Id. In turn, Congress may empower federal agencies to make rules that apply on non-federally owned land and waters.⁹See United States v. Lindsey, 595 F.2d 5, 6 (9th Cir. 1979) (holding that a United States Department of Agriculture rule regulating fires near national forests was constitutional as applied on state-owned land). In the National Park Service Organic Act of 1916 and its 2014 replacement, Congress authorized the Park Service to regulate non-federally owned land and waters within the National Park System.¹⁰See High Point, LLP v. Nat’l Park Serv., 850 F.3d 1185, 1199 n.13 (11th Cir. 2017). In High Point, the Eleventh Circuit Court of Appeals held that the National Park Service Organic Act of 1916 gave the Park Service authority over non federally owned marshland within the boundary of Cumberland Island National Seashore. Id. The court reasoned that the 1916 Act defined the Park Service’s authority in relation to federal areas, not federal ownership-and noticed that the relevant language in the 2014 replacement statute “remains materially unchanged.” Id. at n.13. The current organic statute directs the Secretary of the Interior to “promote and regulate the use of the National Park System” and defines the System to “include any area of land and water administered by the Secretary ….” 54 U.S.C. §§ 100101(a), 100501 (emphasis added). The Park Service has exercised that authority in regulating the use of the National Park System. In the 1970s, the Park Service banned hunting within Voyageurs National Park, and the Eighth Circuit Court of Appeals upheld the ban as applied on waters possibly owned by the state of Minnesota.¹¹United States v. Brown, 552 F.2d 817, 821 (8th Cir. 1977). Currently, the Park Service regulates the use of waters within Dry Tortugas National Park despite Florida claiming title to submerged lands within the park.¹²See 36 C.F.R. § 7.27(h) (requiring permits for the use of non-commercial vessels engaged in recreational activities within Dry Tortugas National Park); Dry Tortugas National Park— Special Regulations, 71 Fed. Reg. 76154, 76155 (Dec. 20, 2006) (to be codified at 36 C.F.R. pt. 7) (explaining that both Florida and the United States claimed title to submerged lands within the Dry Tortugas National Park, and that rather than litigating the issue of ownership, the two parties opted to enter into a management agreement in 2005). And in all areas of the National Park System, the regulations in 36 C.F.R. chapter I apply on navigable waters up to the mean high tide line, regardless of whether the submerged lands under those waters or the tidelands that the waters reach are federally owned.¹³See 36 C.F.R. § 1.2(b) (providing that the regulations in chapter I do not apply on non-federally owned lands and waters within National Park System boundaries except as provided in § 1.2(a)); § 1.2(a) (providing that all regulations in 36 C.F.R. chapter I apply to “all persons entering, using, visiting, or otherwise within . . . [w]aters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters and areas within their ordinary reach (up to the mean high water line in places subject to the ebb and flow of the tide . . .) and . . . without regard to the ownership of submerged lands, tidelands, or lowlands”) (emphasis added). Under the current National Park Service organic statute, all areas within the National Park System are subject to the jurisdiction of the United States. See supra note 3. Therefore, the regulations in 36 C.F.R. chapter I apply on all navigable waters within the boundaries of the National Park System, irrespective of ownership. We believe that the Seashore boundary extends into the ocean and that the Park Service’s authority extends as far as the boundary, notwithstanding the state of Georgia’s ownership of the tidal lands and submerged lands seaward of the mean high tide line. A 2005 legislative map shows the boundary of Cumberland Island National Seashore extending beyond the mean high tide line.¹⁴See S. 1913, 109th Cong. § 204 (as passed by Senate, September 29, 2006) (replacing a 2004 map of the wilderness area on Cumberland Island National Seashore with a map numbered 640/20,038K and dated September 2005); CUIS Wilderness Map K, numbered 640/20,038K (Sept., 2005) (depicting the boundary of the Cumberland Island National Seashore extending into the ocean). Park maps in the Environmental Assessment also show the boundary in the ocean.¹⁵ENVIRONMENTAL ASSESSMENT, supra note 1, at 29, 35. If the boundary is as depicted in these maps, the Park Service clearly has jurisdiction to regulate boating on South End Beach, including on the tidelands and ocean seaward of the mean high tide line.¹⁶Under 54 U.S.C. §§ 100101(a) and 100501, the Park Service has jurisdiction over any area within the boundaries of the Seashore, and under 36 C.F.R. § 1.2(a), Park Service rules apply on the ocean outside of South End Beach and on the beach up to the mean high tide line. See supra notes 10, 13. This conclusion is consistent with the Park Service’s agreement with Georgia to exercise concurrent jurisdiction over the entire Seashore.¹⁷See Memorandum of Agreement for Concurrent Jurisdiction at National Park Service Units Within the State of Georgia, Amendment I (December 14, 1982) (providing for concurrent state and federal jurisdiction over “all lands and waters within the exterior boundaries of the Cumberland Island National Seashore”).

Additionally, the Park Service has the authority, whether under current rules or a rulemaking, to require permits for vessels within the Seashore or even to ban vessels near SouthEnd Beach. Park Service regulations provide that “the superintendent may require a permit for use of a vessel within a park area.”¹⁸36 C.F.R. § 3.33. In Dry Tortugas National Park, the Park Service has promulgated rules prohibiting vessels in some areas¹⁹36 C.F.R. § 7.27(f)(1). and requiring permits in others.²⁰36 C.F.R. § 7.27(f)(1).

We feel that it is incumbent upon the Park Service to use this authority to protect the ecological integrity of South End Beach. Crowds at South End Beach pose the most significant adverse visitor threat to wildlife on the island. South End Beach, approximately 1,500 feet inland and 1,100 feet out to sea, is critical habitat for threatened piping plovers.²¹ENVIRONMENTAL ASSESSMENT, supra note 1, at 49. The beach is also critical habitat for loggerhead sea turtles, which are endangered in Georgia.²²Id. at 192 (describing the eastern shore and southern tip of the Seashore as critical habitat for loggerhead sea turtles); 60 (noting loggerhead sea turtles’ status as endangered in Georgia).

As the Park Service notes in the Environmental Assessment, the Seashore is “one of the most important loggerhead sea turtle nesting areas in Georgia,” accounting for 25% to 30% of the statewide nesting total each year.²³Id. at 51. The southern end of the island has recently been increasing in importance as a loggerhead turtle nesting area.²⁴Id. at 68. The Park Service warns that when pedestrians, dogs, ebikes, and vehicles approach, piping plovers fly or run away to hide, and that “[p]ersistent increased pedestrian presence may initiate aversive behavior . . . to the level where the birds seek more remote feeding and resting sites” [and thereby] “exert energy needed for migration or searching for food . . . .”²⁵Id. at 34. The high visitor count can also compromise nesting success for numerous other winter migratory shore and wading birds that frequent the South End Beach.²⁶Id. at 49-50 (noting that the beaches on the Seashore provide “important habitat to winter migratory shore and wading birds and “[a]t South End Beach, the high volume of visitors along the whole beach and the frequent presence of dogs disturbs nesting and foraging birds and can compromise nesting success”).

Already, as the Park Service notes, as many as 418 people have congregated on this beach at once along with their unleashed dogs and beached boats.²⁷Id. at 111. Park staff have noted a “significant increase” in the number of visitors arriving by private vessel on South End Beach.²⁸Id. at 103. Yet the Park Service admits in the Environmental Assessment that it is not managing the private  boaters who frequent the beach²⁹Id. at 27. despite the area’s maximum visitor capacity of 60 people at one time.³⁰Id. at 17. 

In the Plan, the Park Service proposes designating a “visitor access and boat landing and anchoring area of the beach” approximately 1900 feet wide in which visitors could beach their boats.³¹Id. at 175. The area would include signage providing information about sensitive species and directing visitors to pay park entrance fees.³²Id. Dogs would be banned, and visitors would not be allowed to anchor boats overnight.³³Id. The Plan does not specify whether beaching boats overnight would be allowed.³⁴See id. The Park Service explains that by guiding visitors into the designated area, the Park Service would “guide visitor use away from sensitive natural resources.”³⁵Id.

These proposed actions are insufficient to protect the critical habitat on the beach and surrounding water. Designating an area for beaching boats may slightly reduce the impacts across the beach. But the Plan stops short of clearly banning boats outside of the designated area.³⁶Compare id. at 32, 239 (“No anchoring or beaching of boats would be permitted outside of the designated area.”) with id. at 175 (omitting that sentence and stating that signage and other markers would inform visitors of “accessible/non-accessible areas”). Furthermore, it is not possible to designate an area for boat landing without guiding visitors into critical habitat for piping plovers and loggerhead sea turtles; all of South End Beach is critical habitat for the species.³⁷See id. at 49, 192. We welcome the signage and the dog ban, which is essential to protect piping plovers, loggerhead sea turtles, and other wildlife in the area. However, as we noted in our earlier comments, enforcement is necessary for signage about wildlife protections to be effective.³⁸E-mail from Mike Murray, Chair, The Coal. to Protect Am.’s Nat’l Parks, to William Sapp, Sr. Att’y, S. Env’t. L. Ctr. (Dec. 26, 2022) (on file with author). Given longstanding budget and staffing challenges at many parks including Cumberland Island, it is unlikely that the Seashore has or will have sufficient law enforcement staff to routinely patrol the beach.³⁹See ENVIRONMENTAL ASSESSMENT, supra note 1, at 69.

Moreover, the Plan would put the Park Service’s imprimatur on behavior that harms protected species and that is currently unauthorized.⁴⁰See id. at 27 (noting that “[t]here are no designated visitor use areas . . . along the NPS-managed portion of the beach”). Because the designation would prevent the critical habitat from improving, it would violate the Endangered Species Act.⁴¹As we noted in our December, 2022 comments, the designation is likely to ‘‘destroy or adversely modify’’ critical habitat, which includes any action that alters the critical habitat in such a manner that it “prevent[s] it from improving over time relative to its previous condition.” Interagency Cooperation—Endangered Species Act of 1973, as Amended; Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg. 7,214, 7,216–17 (Feb. 11, 2016). It would also allow for far more than 60 visitors at one time, exceeding South End Beach’s visitor capacity. In short, the Plan would sanction large crowds carousing and partying in the critical habitat of piping plovers and loggerhead sea turtles. Since the Park Service has jurisdiction over the entire beach and adjacent water, we suggest that it regulate the area in a manner that does not sanction adverse impacts to critical habitat and does not cause the beach to exceed capacity.

Legal Implications

Beyond the National Environmental Policy Act, the Endangered Species Act, and Executive Order 13,175, the Park Service must follow the requirements of 36 C.F.R. §1.5(b). §1.5(b) requires the Park Service to follow the requirements of the Administrative Procedure Act before making certain changes in park management. Specifically, any “designation” or new or relaxed “restriction” on activity or use must be published as rulemaking in the Federal Register if it “is of a nature, magnitude and duration that will 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, require a long-term or significant modification in the resource management objectives of the unit, or is of a highly controversial nature.⁴²36 C.F.R. § 1.5(b). Even changes to single park rules or closures of single areas of parks can trigger the rulemaking requirement in §1.5(b).⁴³See Barley, 405 F. Supp. 2d at 1124 (invalidating a leash requirement for dogs in park areas where off-leash dogs had been allowed and the requirement was highly controversial); Ft. Funston Dog Walkers v. Babbitt, 96 F. Supp. 2d 1021, 1039 (N.D. Cal. 2000) (holding that the closure of a single bluff area in a park raised “serious questions” about whether the closure significantly affected the public use pattern of the park).

Aspects of the proposed Plan likely trigger the rulemaking requirement in §1.5(b). For instance, the designation of a boat-beaching area on South End Beach would adversely affect the Seashore’s natural, aesthetic, scenic, and cultural values by degrading piping plover and loggerhead sea turtle critical habitat and disturbing the primitive nature of the beach. In addition, increasing the ferry schedule likely necessitates rulemaking under §1.5(b) because the change would have a major impact on visitor-use patterns. Indeed, one of the Park Service’s goals in adopting §1.5(b) was to trigger the requirements of the Administrative Procedure Act for actions that would have a major impact on visitor-use patterns.⁴⁴United States v. Barley, 405 F. Supp. 2d 1121, 1124 (N.D. Cal. 2005). As the Park Service explained in 1983,

“[§1.5(b)] requires superintendents to rely on notice and comment rulemaking for actions that will have a major impact on the visitor-use patterns for all or a portion of a park area, adversely affect the park’s natural, aesthetic, scenic or cultural values, require a long-term or significant modification in the resource management objectives (or traditional visitor-use patterns of that unit), or are of a highly controversial nature.”⁴⁵Id. (quoting 48 Fed. Reg. 30252, 30254 (June 30, 1983)).

The Plan proposes to increase the number of visitors the Park Service ferries to the Seashore from 300 to 700 per day.⁴⁶ENVIRONMENTAL ASSESSMENT, supra note 1, at 26. As the Environmental Assessment explains, the Park Service manages the ferry schedule to restrict the number of visitors who access the Seashore each day.⁴⁷Id. (“Management of daily ferry delivery to the island is crucial to maintaining and protecting the desired experience and resource conditions of the park. It is also an important aspect to managing the amounts and types of use in the identified visitor capacities for key areas and ensuring thresholds are not exceeded.”). By increasing the frequency of ferry trips, the Park Service would be relaxing this use restriction. Since that relaxation would effect a major change to visitor-use patterns for the entire park area, §1.5(b) applies.

Conclusion

As I stated in our earlier comments, during your tenure as the Superintendent of the Cumberland Island National Seashore, you have addressed many complex issues in a thoughtful manner, involved the public in your decision-making, and built strong relationships with some of your most ardent critics. We know that you will give considerable thought to the comments that we provide in this letter and trust that you are open to further public involvement. We also trust that you desire to develop a strong foundation for future management decisions involving the Seashore.

We appreciate that the management process we suggest above and in our earlier comments will be challenging and will take longer than you would like. However, we commit to helping you make this planning process less onerous and time-consuming. We recognize that you are skilled at balancing the different demands associated with managing the Seashore and that at times this work is both physically and emotionally taxing. We also know that you recognize that the Seashore is unique within the National Park System. All that makes Cumberland Island special could be destroyed if it is not managed well.

If you have questions concerning these comments, please do not hesitate to contact me.

Sincerely,

William W. Sapp
Senior Attorney