June 14, 2023
Ms. Michelle Wheatley, Superintendent
Mount Rushmore National Memorial
13000 Highway 244
Building 31, Suite 1
Keystone, SD 57751
Subject: Proposed Air Tour Management Plan and Environmental Assessment for Mount Rushmore National Memorial
Dear Superintendent Wheatley:
I am writing on behalf of over 2,400 members of the Coalition to Protect America’s National Parks (Coalition), all of whom have worked or volunteered for the National Park Service (NPS) and who collectively represent more than 45,000 years of national park management experience. The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. 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.
We offer the following comments for your consideration regarding the proposed Air Tour Management Plan (ATMP) and Environmental Assessment (EA) for Mount Rushmore National Memorial (MORU or Park).
- First, we commend the agencies for preparing a proper environmental assessment (EA) for the proposed ATMP that considers a range of alternatives and evaluates the potential impacts of those alternatives –When considering a proposed agency action, such as a new ATMP, NPS must comply with the National Environmental Policy Act (NEPA) and related guidance, including the Council on Environmental Quality (CEQ) NEPA implementing regulations (40 CFR Parts 1500-1508) and with the agency’s own NEPA guidance found in the NPS NEPA Handbook 2015. We have been deeply concerned that NPS has failed to comply with basic NEPA guidance by issuing numerous previous “proposed ATMPs” for other parks without considering a reasonable range of alternatives and without preparing any sort of NEPA analysis for public review. We applaud you and the planning team for following the appropriate NEPA process requirements that the MORU proposal deserves.
- Compliance with the NPS Organic Act (54 USC §100101) is integral to compliance with the National Parks Air Tour Management Act (49 USC §40128), yet the EA barely mentions the Organic Act or its relevance – Section 802 (Findings) of the National Parks Air Tour Management Act (NPATMA) states, in part: “Congress finds that—
(1) the Federal Aviation Administration has sole authority to control airspace over the United States;
(2) the Federal Aviation Administration has the authority to preserve, protect, and enhance the environment by minimizing, mitigating, or preventing the adverse effects of aircraft overflights on public and tribal lands;
(3) the National Park Service has the responsibility of conserving the scenery and natural and historic objects and wildlife in national parks and of providing for the enjoyment of the national parks in ways that leave the national parks unimpaired for future generations” (Emphasis added)
The NPS “responsibility for conserving” park resources and values mentioned in subsection # 3 of the NPATMA above derives directly from the NPS Organic Act of 1916 and is often referred to as the NPS “conservation mandate.” As described in NPS Management Policies 2006, Section 1.4.1: “The most important statutory directive for the National Park Service is provided by interrelated provisions of the NPS Organic Act of 1916 and the NPS General Authorities Act of 1970, including amendments to the latter law enacted in 1978.” As further stated in Management Policies Section 1.4.3:
The fundamental purpose of the national park system, established by the Organic Act and reaffirmed by the General Authorities Act, as amended, begins with a mandate to conserve park resources and values. This mandate is independent of the separate prohibition on impairment and applies all the time with respect to all park resources and values, even when there is no risk that any park resources or values may be impaired… 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)
Given that both the proposed ATMP and EA are or should be focused on evaluating potential impacts of commercial air tours on the Park’s natural and cultural resources, visitor experiences, and tribal lands within and adjacent to the Park, we would expect the NPS conservation mandate to serve as a key basis for evaluating those impacts. However, we are quite concerned that the EA barely mentions the Organic Act (e.g., it is mentioned once at EA p. 78). In our view, the NPS conservation mandate is so important to the management of air tours in national parks that Congress chose to embed a key portion of the Organic Act in Section 802(3) of the NPATMA. To address this concern, we recommend that a section summarizing applicable laws relevant to the proposed action, including the NPS Organic Act, be added to Chapter 1 or as an appendix.
- The EA appropriately considers the 2015 Foundation Document for Mount Rushmore National Memorial, which provides important context for the planning process regarding the Park’s significance and fundamental resources that could be adversely affected by commercial air tours – As described in the Foundation Document, fundamental resources and values help focus planning and management efforts on what is truly significant about the Park. Fundamental resources and values are “those qualities that are essential (fundamental) to achieving the purpose of the park and maintaining its significance.” (Emphasis added)
MORU’s fundamental resources and values include “the Natural Setting,” which is described in document as:
The Black Hills of South Dakota provide a dramatic natural setting for the sculpture at Mount Rushmore National Memorial. The pine forest, landscaping, natural soundscape, and night sky that comprise this setting are important not only for their aesthetic appeal, but also represent a place of great spiritual and cultural significance to the American Indian tribes who have connections to the land. (Emphasis added)
In brief, protecting the Park’s “natural setting” from visual and noise intrusions of low-flying air tours is fundamental to conserving the resources, values, and visitor experience opportunities that make Mount Rushmore a special place.
- Consistent with NPS Management Policies Section 1.5, the EA should include an “appropriate use analysis” for the proposed action – Management Policies Section 1.5 states, in part: “An ‘appropriate use’ is a use that is suitable, proper, or fitting for a particular park, or to a particular location within a park. Not all uses are appropriate or allowable in units of the national park system, and what is appropriate may vary from one park to another and from one location to another within a park…When proposed park uses and the protection of park resources and values come into conflict, the protection of resources and values must be predominant. A new form of park use may be allowed within a park only after a determination has been made in the professional judgment of the superintendent that it will not result in unacceptable impacts.” (Emphasis added)
The NPATMA established procedural requirements for allowing air tours over parks; however, the Act does NOT mandate that commercial air tours are appropriate and must be allowed. In fact, section (b)(3)(A) of the Act provides that the agencies “may prohibit commercial air tour operations over a national park in whole or in part.” Under the Act, air tours are essentially a discretionary activity subject to agency approval. As far as we know, NPS has never formally considered or determined whether commercial air tours are an appropriate use of (or over) MORU. As a result, we strongly recommend that the EA be amended (e.g., through errata or as an appendix) to include an appropriate use analysis as described in Management Policies Section 1.5. Given the many adverse impacts of air tours that are described in the EA, we would expect that such an analysis would find that commercial air tours are NOT an appropriate use of (or over) MORU.
- The eventual decision document for the ATMP should include an “impairment determination” for the proposed action – NPS Management Policies Section 1.4.7, states, in part: “Before approving a proposed action that could lead to an impairment of park resources and values, an NPS decision-maker must consider the impacts of the proposed action and determine, in writing, that the activity will not lead to an impairment of park resources and values. If there would be an impairment, the action must not be approved.” (Emphasis added) Furthermore, “[t]he impact threshold at which impairment occurs is not always readily apparent. Therefore, the Service will apply a standard that offers greater assurance that impairment will not occur. The Service will do this by avoiding impacts that it determines to be unacceptable. These are impacts that fall short of impairment, but are still not acceptable within a particular park’s environment.” (Emphasis added) As a result, we strongly recommend that the eventual decision document, presumably a Finding of No Significant Impact (FONSI), includes an impairment determination as described in Management Policies Section 1.4.7.
- Section 8.0 (“Amendment”) of the ATMP itself should be revised – We have a significant concern about Section 8.0 in the proposed ATMP. This section of the ATMP is not described in the EA. The boilerplate language used in Section 8 (ATMP p. 5) states that “the ATMP may be amended at any time” (emphasis added) if either NPS or the FAA notifies the other agency. We imagine that the Amendment clause is intended to convey the concept that the ATMP could be updated and revised if/when the agencies determine it is needed and appropriate; and we fully understand that all management plans are subject to future change.
However, the use of the words “at any time” creates the distinct impression that reversal of the ATMP decision and/or resumption of air tours at MORU could happen on relatively short-notice (i.e., “at any time”). Such wording suggests there is little certainty that elimination of air tours at MORU would be a durable decision (since it could be changed “at any time”). In our view, creating such uncertainty in the ATMP unnecessarily invites industry appeals and/or political intervention on behalf of air tour operators. Our observation has been that many NPS management decisions that curtail or eliminate controversial recreational and commercial activities in parks, such as off-road vehicle (ORV) use, hunting, and in this case commercial air tours, are often subject to industry lobbying and/or political reversal, especially if/when there is a change in administration.
Over 20 years after the passage of the NPATMA, litigation was needed to force the agencies to finally prepare the required ATMPs. Moving forward, it is critical that the new ATMPs are widely viewed as providing for reliable long-term air tour management at the individual parks involved, rather than leave room for uncertainty about their longevity. Toward that end, we recommend that the agencies revise the wording of Section 8.0 of the ATMP itself to state the following:
(add new first sentence) This ATMP will remain in effect until amended or terminated by mutual agreement of the agencies. This ATMP may be amended at any time (i.e., delete: “at any time”): if the NPS, by notification to the FAA and the operator(s), determines that the ATMP is not adequately protecting Park resources and/or visitor enjoyment; if the FAA, by notification to the NPS and the operator(s), determines that the ATMP is adversely affecting aviation safety and/or the national aviation system; or, if the agencies determine that appropriate changes to this ATMP are necessary to address new information or changed circumstances.
These minor revisions would affirm the intended stability and longevity of the ATMP; and refocus the Amendment provision on the limited circumstances that could justify reconsideration of the ATMP, rather than on the infinite possibility of amending the ATMP.
SECTION-BY-SECTION COMMENTS ABOUT THE EA
- Section 1.4 Purpose and Need – As explained in General Comment # 2 above, compliance with the NPS Organic Act (54 USC §100101) is an integral component of the National Parks Air Tour Management Act (49 USC §40128), yet the EA barely mentions the Organic Act or its relevance. As stated in EA section 1.4, “The purpose of the ATMP is to comply with the Act and other applicable laws…” (Emphasis added) This would seem to be the perfect opportunity to identify the “other applicable” laws, such as the NPS Organic Act and the MORU enabling legislation, that the agencies may have considered during the development of the ATMP. This could be addressed by providing a brief summary of “other applicable laws” in Chapter 1 or as an appendix to the EA.
- Section 1.5 Environmental Impact Categories Not Analyzed in Detail – As described in this section, the agencies have appropriately identified a number of impact categories that were considered but not analyzed in detail. In our view, the dismissed categories are generally not relevant or significant to the analysis; and the impact categories that have been carried forward for detailed analysis in the EA include the most relevant or significant impact topics for the analysis that follows in Chapter 3 of the EA.
- Section 2.1 Alternatives Development – We appreciate the detailed description of how the ATMP preliminary alternatives were developed primarily by an NPS inter-disciplinary team and then reviewed by the FAA. We also appreciate the detailed references to the park’s Foundation Document purposes and management objectives, which helped inform development of the alternatives. In general, we believe that the agencies have developed and considered an appropriate range of alternatives. It is also very appropriate that the alternative of “Air Tours Above Existing Levels or Air Tours at Existing Levels with Current Operating Parameters” was eliminated from further study for the reasons stated in Section 2.2.1.
- Section 2.4 Alternative 1 (No Action Alternative) – As described in this section, “[t]he No Action Alternative represents a continuation of what is currently flown under existing conditions…” We strongly agree with the statement that “[t]he No Action Alternative provides a basis for comparison but is not a selectable alternative because it does not meet the purpose and need for the ATMP (refer to Section 1.4, Purpose and Need).” (Emphasis added) It is evident from the impact analysis of the No Action Alternative in Chapter 3 that the existing air tour situation at MORU is causing unacceptable impacts to park resources and values that are supposed to be conserved unimpaired under the NPS Organic Act.
- Section 2.5 Alternative 2 (Preferred Alternative) – As described, Alternative 2 would prohibit commercial air tours within the ATMP planning area no later than 180 days after the ATMP is signed by all required signatories from both agencies. We strongly support the selection of Alternative 2 as the Preferred Alternative for the reason described in the EA, which is: “Alternative 2 provides the greatest level of protection for the purpose, resources, and values of the Park.”
- Section 2.6 Alternative 3 – Alternative 3 would authorize 3,657 commercial air tours per year within the ATMP planning area. Thus, it would authorize approximately 93% of the existing number of flights based on the three-year average of reporting data from 2017-2019 (see Table 2). Alternative 3 includes four routes for the helicopter operator and one route for the fixed-wing operator, all with varying distances and altitudes across the ATMP planning area. Flights would be permitted to operate one hour after sunrise until one hour before sunset, as defined by the National Oceanic and Atmospheric Administration (NOAA). Helicopter tours would be conducted within an altitude range from 5,500 ft. to 7,000 ft. MSL, which would result in a minimum altitude 900 ft. AGL. Commercial air tours on fixed-wing aircraft would be conducted at a minimum altitude of 6,500 ft. MSL which results in minimum altitudes that range from 1,300 ft. to 2,100 ft. AGL. Alternative 3 also includes other operating parameters such a daily caps on the number of flights. As described in the impact analyses in Chapter 3, Alternative 3 would result in reduced impacts compared to the No Action Alternative, but Alternative 3 would provide considerably less resource protection than the Preferred Alternative, elimination of air tours at MORU.
Chapter 3 includes comparative analyses of the respective alternatives on various impact categories (i.e., resources or uses that would be affected by air tours) at MORU. Nearly every analysis indicates that Alternative 2, the elimination of air tours at MORU, would provide the greatest level of protection and/or restoration of resources at the park. Our comments below are focused on the impact categories that we believe would receive the most significant benefits of implementing Alternative 2.
- Section 3.1 Noise and Noise-Compatible Land Use – This section includes appropriate references to relevant FAA and NPS policies. Specifically, FAA Order 1050.1F, paragraph 11-5.b(10) defines a noise sensitive area as “[a]n area where noise interferes with normal activities associated with its use. Normally, noise sensitive areas include residential, educational, health, religious structures and sites, parks, recreational areas, areas with Wilderness characteristics, wildlife refuges, and cultural and historical sites.” (Emphasis added) In other words, the entirety of MORU is considered a noise sensitive area under the FAA order.
NPS Management Policies (2006) Section 4.9, Soundscape Management, directs the NPS to preserve soundscapes and the acoustic environment to the greatest extent possible and to restore these resources to their natural condition wherever they have become degraded by noise and unwanted sounds. In other words, NPS management polices direct NPS to restore the natural soundscape at MORU that has been adversely impacted by air tour noise.
Section 3.1’s comparative analysis of the noise levels likely to be caused by the respective alternatives strongly supports Alternative 2 (the NPS Preferred Alternative) as the alternative with the greatest likelihood of restoring the natural soundscape at MORU, consistent with FAA Order 1050.1F and NPS Management Polices Section 4.9. In contrast, both Alternatives 3 and 4 would perpetuate some level of air tour noise impacts.
- Section 3.3 Biological Resources – This section includes analyses of the potential impacts of air tours on biological resources, specifically birds and mammals, including multiple species that are federally listed as threatened or endangered. As described in the analysis, multiple protected bird and mammal species are adversely impacted by aircraft noise. Alternative 2 (elimination of air tours) would provide the greatest level of protection to the park’s biological resources and would likely “have no effect on federally listed threatened or endangered species.” See EA Appendix H. For this reason, we fully support selection and implementation of Alternative 2.
- Section 3.4 3.4 Cultural Resources – The National Historic Preservation ACT (NHPA), 54 U.S.C. §§ 300101 et seq., is comprehensive federal preservation legislation intended to protect cultural resources. Section 106 of the NHPA (54 U.S.C. § 306108), as implemented in 36 CFR Part 800, requires federal agencies to consider the effects of undertakings on historic properties, should any such properties exist. In addition to Section 106 of the NHPA, the NPS’s Organic Act* and Section 110 of the NHPA apply to and provide for the preservation of historic, ethnographic and cultural resources on parkland. (*This is a rare instance in which the EA actually mentions the NPS Organic Act.)
Table 15 in the EA identifies 17 cultural resources within the Area of Potential Effect (APE), inclusive of ethnographic resources, traditional cultural properties (TCPs), sacred sites, cultural landscapes, historic districts, and prehistoric and historic buildings and structures. Cultural resources of importance to Native American tribes are particularly noteworthy. The Lakota and many other tribes consider the Black Hills sacred; Bear Butte at the northeast edge of the Black Hills is a popular worship site. The region was used by numerous Native American groups for resource gathering, including food, medicine, and timber, and for religious purposes. For the purposes of this draft EA, the agencies assume that all lands within the Park have spiritual and sacred qualities and consider the entire Park a TCP.
As described in the EA, the elimination of commercial air tours from the ATMP planning area would reduce the direct noise and visual intrusions on feeling and setting of cultural resources within the APE and result in beneficial impacts to ethnographic resources and sacred sites, TCPs, archeological resources, cultural landscapes, historic districts, and prehistoric and historic buildings and structures compared to existing conditions. In other words, Alternative 2 would provide the greatest level of protection for the diverse cultural resources within the APE. For this reason, we fully support the selection and implementation of Alternative 2 as it would be the most appropriate alternative to implement under applicable NHPA, FAA, and NPS cultural resource guidelines and policies.
- Section 3.5 Wilderness – The Wilderness Act of 1964 is the primary federal legislation regulating the management of designated Wilderness areas. While Wilderness is not an impact category the FAA traditionally examines, the Black Elk Wilderness to the south and west of the Park is managed by the U.S. Forest Service (USFS) and is inside the ATMP planning area. The USFS agreed to be a cooperating agency and has participated in the development of the draft ATMP, this draft EA, and associated planning efforts. The USFS manages Wilderness for the following qualities of Wilderness character (Forest Service Manual 2300, 2021):
- Untrammeled; Unhindered and free from the actions of modern human control or manipulation.
- Natural: Ecological systems are substantially free from the effects of modern civilization.
- Undeveloped: Retaining primeval character and influence without permanent improvements or modern human occupation.
- Solitude or Primitive and Unconfined Recreation: Ability to provide outstanding opportunities for solitude or primitive and unconfined type of recreation.
- Other features of value: Wilderness preserves other features of value that are of scientific, educational, scenic, or historical value.
Air tours would have no direct effect on the “untrammeled” and undeveloped” qualities of the Black Elk Wilderness; while potential impacts to “other features” (e.g., cultural resources) are evaluated elsewhere in the EA. As a result, the EA analysis focuses on potential impacts to the “natural” and “solitude” qualities of Wilderness character. The analysis indicates that Alternative 2 (elimination of air tours) would provide the lowest level of air tour noise intrusion into Wilderness areas within the planning area adjacent to park and therefore would provide the greatest level of protection to Wilderness character. As a result, we fully support Alternative 2 as the most appropriate alternative to implement under applicable USFS wilderness stewardship policies.
- Section 3.6 Visitor Use and Experience and Other Recreational Opportunities – While visitor experience is not an impact category the FAA traditionally examines, the NPS has agency wide guidelines for managing visitors within the National Park System (e.g., NPS Management Policies § 8.2, 2006). This section also examines impacts to air tour customers.
As described in the EA, visitors come to the Park from all around the U.S. and the world to view the 60 ft. tall granite faces of four American presidents carved out of Mount Rushmore and framed by the natural scenery of the Black Hills. Between 2017 and 2019, the Park averaged 2.2 million visitors annually; and visitation was approximately 2.5 million in 2021 (NPS, 2021b). Nearly 500,000 visitors participate in interpretive programs at the Park each year, representing a substantial portion of the Park’s overall visitation. Approximately 90% of visitors remain within the immediate vicinity of the sculpture and visitor services, while 10% explore the backcountry areas (Littlejohn and Le, 2014).
In contrast to the 2.5 million people who visited the park on the ground in 2021, an average of 19,570 air tour customers per year (less than 0.8% of total park visitors) currently experience the park by air. The air tour experience generally focuses on viewing the sculpture from a variety of angles, typically from south- to-southeast of the sculpture. Existing air tour routes at MORU (see Figure 17) are concentrated over the southern portion of the Park near the visitor center and sculpture and directly impact the most highly visited areas of MORU.
As a result, every alternative that would allow continued commercial air tours at MORU at any level would adversely impact the experiences of a high number of park visitors on the ground, while providing an air tour experience to a comparatively limited number of air tour customers annually. How is it acceptable for the possibly positive experiences of several people on a helicopter tour to negatively impact dozens or hundreds of other park visitors on the ground? For these reasons, we fully support the “elimination of air tours” as the most appropriate alternative to select and implement at MORU.
- Section 3.8 Visual Effects – As described in this section, “visual resources include buildings, sites, traditional cultural properties, and other natural or manmade landscape features that are visually important or have unique characteristics…Visual character refers to the overall visual makeup of the existing environment where the alternatives would be located.” Within the Park, visual resources include the sculpture and forested areas. Viewer sensitivity to the carving is very high due to the massiveness of the sculpture and the historical and social significance of the presidents memorialized by the sculpture.
Studies indicate that aircraft noise in national parks can impact human perceptions of aesthetic quality of viewsheds (Weinzimmer et al., 2014; Benfield et al., 2018). Impacts to visual resources and visual character relate to a decrease in the aesthetic quality of the park resulting from air tours. In general, commercial air tours detract from the visitor’s opportunity to observe these resources when commercial air tours are present (which currently occurs 38 times per day during a peak month average day).
The comparative analysis clearly indicates that Alternative 2 (elimination of air tours) would provide the greatest level of protection to the park’s visual resources. For this reason, we strongly support the selection and implementation of Alternative 2, which would eliminate air tours at MORU.
- Section 3.10 Summary of Environmental Consequences – Table 18 provides a side-by-side comparison of the environmental consequences for each of the alternatives considered across each environmental impact category. This comparison provides overwhelming evidence that Alternative 2 would provide the greatest level of protection to or within the various impact categories analyzed in the EA. For this reason, we strongly support selection and implementation of Alternative 2, the elimination of air tours at MORU.
In closing, we greatly appreciate that the agencies have prepared a proper EA that evaluates the impacts of a range of air tour alternatives at Mount Rushmore National Memorial. The information and analysis provided in the EA provide overwhelming evidence that Alternative 2, elimination of air tours, is the most appropriate alternative to implement at the Park. We appreciate the opportunity to comment on this important issue.
Michael B. Murray, Chair
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE, Unit 77436
Washington, DC 20013
Bert Frost, Director of Regions 3, 4, and 5, National Park Service
Ray Sauvajot, Associate Director for Natural Resource Stewardship and Science, NPS
Karen Trevino, Chief, Natural Sounds and Night Skies Division, National Park Service