Proposed Regulation on Native American Plant Collection
July 15, 2015
Mr. Joe Watkins
Office of Tribal Relations and American Cultures
U.S. National Park Service
1201 Eye Street, N.W.
Washington, DC 20005
Re: Proposed Rule – Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional Purposes: RIN 1024-AD84
Dear Mr. Watkins:
We are writing to comment on the proposed amendments to National Park Service (NPS) regulations in 36 CFR Part 2 that were published in the Federal Register on April 20, 2015, regarding the gathering of certain plants or plant parts by federally-recognized tribes in units of the National Park System (RIN 1024-AD84). We appreciate the opportunity to comment on this important public policy. The Coalition to Protect America’s National Parks (Coalition) is a not-for-profit, non-partisan membership organization comprised of over 1,000 former and current NPS employees who collectively represent more than 30,000 years of NPS management experience. The Coalition studies, educates, speaks, and acts on behalf of the preservation of America’s National Park System (System).
This Proposed Rule addresses a sensitive public policy question; we recognize that and applaud the NPS’s interest in addressing this long-standing issue. Many Coalition members have substantial experience as park managers, interpreters, rangers, and program administrators in working with tribal governments as well as individual tribal members. We are all too aware of the tragic history and cultural loss of America’s Native Peoples over the last 400+ years and would like to see some measure of their patrimony restored to them.
The Coalition supports, in concept, the intended policy goal underlying the proposal. Regrettably, however, we must oppose the Proposed Rule itself. Our opposition is based largely our belief that the proposed gathering activities clearly conflict with the conservation mandate expressed in the NPS Organic Act and the Redwoods amendment. We believe that creating the authority for NPS to allow the proposed gathering activities requires a change in statute, not merely a regulatory amendment. We are concerned that the Proposed Rule fails to adequately address other statutory requirements. Lastly, there are numerous deficiencies in the proposed action. The Proposed Rule, as written, provides inadequate policy guidance for managing what would be a complex service-wide program. Our comments and concerns are further described below:
1. Threshold Issue: NPS ignores, without reasonable explanation, its own long-standing belief under the previous regulations that the proposed Native American gathering policy requires statutory change, not regulatory amendment. The current NPS rules in 36 CFR Part 2 were based on the position that such activity would be prohibited in the absence of express authorization and that, in the case of Native American collecting (i.e., gathering) park resources, such authorization does not exist.
Under this premise, it has long been assumed that consumptive use will cause impairment and hence express authorization is required in law. This principle is based primarily on 16 USC § 1a-1, which provides that “authorization of activities shall be construed and the protection, management and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress”.
This provision contains three key elements: 1) derogation; 2) values and purposes; and 3) direct and specific authorization by Congress. The existing NPS rules are based upon the premise that: 1) Most consumptive uses, including collecting by Native Americans for cultural and traditional purposes, are “in derogation”; 2) The Organic Act itself does not establish “values and purposes” that accommodate Native American collection; and 3) The enabling legislation of some parks does specifically provide for Native American collection, and in such areas it is permissible, but otherwise it must be prohibited.
Accordingly, we believe it is clear that these proposed changes must be made in statute, since currently the express authority to allow Native American collections does not exist.
2. Proposed Rule Fails to Adequately Address Other Statutory and Policy Requirements:
A. Endangered Species Act (ESA): Depending on the circumstances, the proposed gathering activities have the potential to adversely affect federally-listed threatened or endangered species or designated critical habitat. The ESA prohibits any action that would “remove or reduce possession of any such species from areas under federal jurisdiction” 16 USC § 1538(a)(2)(B). Potential impacts of the proposed gathering activity include not only the removal of listed plants but also habitat destruction. Due to the potential for adverse effects on listed species, consultation must occur under Section 7 of the ESA.
B. National Environmental Policy Act: The National Environmental Policy Act (NEPA), the “basic national charter for protection of the environment,” 40 CFR § 1500.1(a), requires federal agencies to take a “hard look” at the environmental consequences of their projects before taking action 42 U.S.C. § 4332(C). Council on Environmental Quality (CEQ) regulations for implementing NEPA require that Federal agencies “to the fullest extent possible integrate the requirements of NEPA with other planning” so that “all such procedures run concurrently” rather than consecutively (40 CFR § 1500.2(c)); and use the NEPA process “to identify and assess the reasonable alternatives to proposed actions” that will avoid or minimize adverse effects of these actions (40 CFR § 1500.2(e)). An agency shall commence preparation of an environmental impact statement “as close as possible” to the time the agency is developing… a proposal (40 CFR § 1502.5). For instance, for informal rulemaking, “the draft environmental impact statement shall normally accompany the proposed rule” (40 CFR § 1502.5(d)). Despite these clear requirements, NPS has neither evaluated the potential environmental impacts of the Proposed Rule, nor identified or assessed any reasonable alternatives to the proposed action.
NPS states that it has categorically excluded the proposed rulemaking from a more detailed NEPA review under the Department of the Interior (DOI) NEPA implementing regulation at 43 CFR § 46.210(i). As explained by NPS, the “environmental effects [of the rule] are too… speculative” and NPS “can only speculate at this point about which Indian tribes will request an agreement, which parks will be effected, and what specific resources specific Indian tribes will request to collect.” The Preamble also states, without providing any explanation or analysis, that NPS has “determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR § 46.215 that would require further analysis under NEPA.”
The rationale provided by NPS to justify its use of the categorical exclusion does not withstand scrutiny. The NPS’s burden under NEPA to take a “hard look” at the environmental consequences of its projects before taking action is greater than simply examining whether environmental impacts are too speculative under the Proposed Rule. NPS is required to consider all direct, indirect, and cumulative impacts that are reasonably foreseeable as a result of the Proposed Rule. See 40 C.F.R. § 1508.8 (defining “indirect effects” to include those that are “reasonably foreseeable”). Even “[i]ndirect impacts need only to be ‘reasonably foreseeable’ to require an assessment” under NEPA.
Given the level of Native American interest in the rule (e.g., NPS reports that representatives of 50 tribes attended the NPS consultation meetings) and the notable lack of NPS service-wide guidance regarding management of the proposed plant gathering activities, the Proposed Rule clearly has the potential to cause adverse environmental impacts at multiple parks across the System. If one views the potential impacts of the Proposed Rule in the full context, as well as the letter and intent, of CEQ and DOI NEPA implementing regulations, it is clear that the NPS use of the categorical exclusion, along with the complete lack of alternatives in the proposal, is, at best, inappropriate and, at worst, a violation of the regulations. For example, 43 CFR § 46.210 allows use of the listed categorical exclusions (including the one used by NPS) only if none “…of the extraordinary circumstances in § 46.215 apply”. Of the extraordinary circumstances listed in § 46.215, several clearly apply to the Proposed Rule since the NPS proposal would: (d) Have highly uncertain and potentially significant environmental effects or involve unique or unknown environmental risks; (e) Establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects; and (f) Have a direct relationship to other actions with individually insignificant but cumulatively significant environmental effects.
Given the broad and foreseeable effects of the Proposed Rule, the Coalition recommends that NPS prepare a programmatic environmental impact statement (PEIS) to analyze potential environmental impacts, consider alternatives, and develop the guidance need to effectively implement the proposed gathering program. CEQ’s “Memorandum for Heads of Federal Departments and Agencies” regarding “Effective Use of Programmatic NEPA Reviews,” dated December 18, 2014 (attached), describes the PEIS as the appropriate level of NEPA review for broad programs and regulations. The PEIS is a well-established process within DOI for developing guidance for new programs that would have broad impact. For example, the Bureau of Land Management prepared a PEIS to analyze potential environmental impacts and develop a management framework for solar energy development on federal lands; and the Bureau of Ocean Energy Management prepared a PEIS to analyze potential environmental impacts and develop a management framework for off-shore wind energy development; then NEPA review(s) for subsequent site-specific planning were or are being tiered off the respective PEIS.
The policy guidance needed, and that would be developed through the PEIS planning process, should be similar in the level of detail to, if not in fact, a director’s order that includes adequate definitions of terminology, criteria for which plants and plant parts may be included or should be excluded from the program, standard operating procedures, best management practices (BMPs), monitoring protocols, mitigation guidelines, and other measures. After the overarching policy framework is in place, subsequent park-specific NEPA reviews should tier off the PEIS to analyze the park-specific impacts, without each park having to develop its own guidelines and procedures. See our comments below under “Sufficiency of Rule” for more detail regarding the kinds of guidance needed.
C. National Historic Preservation Act (NHPA): No mention is made in the Proposed Rule of compliance with Section 106 of the NHPA. Since many, if not all, of the traditional gathering sites in parks will or may be, by definition, eligible for inclusion in the National Register of Historic Places, the draft rule must be supported by a programmatic analysis under 36 CFR Part 800, particularly when an adverse effect of the gathering is likely.
D. Wilderness Act: The proposed collecting of plant or plant parts on park lands that are designated, proposed, determined to be eligible, or otherwise managed as wilderness has the potential to adversely impact wilderness character and related wilderness values as described in the Wilderness Act (P.L. 88-577) and Eastern Wilderness Act (P.L. 93-622). We believe that, should the proposed gathering activities be authorized by statute, pertinent policy and other guidance must be modified to assure that any such removal of plants or plant parts would be in full compliance with relevant legal, policy, and philosophical principles of wilderness stewardship. Such guidance should include well-established wilderness management concepts such as minimum tool and leave no trace.
3. Sufficiency of Rule: If the threshold issue were to be addressed through legislation, the provisions of the regulation do not provide sufficient guidance to adequately protect park resources or effectively administer a System-wide program. Because plant gathering for religious or ceremonial purposes has been expressly prohibited in parks for many years, except where specifically authorized by federal statute or treaty, there is very little, if any, guidance, knowledge, or experience available to parks regarding the effective management of the proposed activity. There are numerous shortcomings and omissions in the processes described in the Proposed Rule that would leave far too many open-ended questions to the interpretation and discretion of individual park superintendents. We believe that such activity, if authorized by new law, should be managed programmatically by NPS under comprehensive service-wide guidance that would be similar in the level of detail to, if not in fact, a director’s order. As a minimum, we recommend the following be addressed in the director’s order to ensure adequate guidance for effective implementation of such a program:
A. Improve the Administrative Framework of Agreements and Permits: NPS proposes a two-tiered process for administering and managing the proposed new gathering activities. First, there would be a formal agreement between NPS and a traditionally associated tribe that provides a general framework for the proposed gathering activities. Then there would be a special use permit (or series of permits) issued to provide more detailed terms and conditions authorizing specific gathering activities in specific locations. Provided NPS achieves the statutory authority to allow the proposed gathering activities, the proposed two-tiered administrative process makes sense to us. NPS commonly uses an overarching agreement with other government agencies, partners, and other entities to establish a formal working relationship with that entity; then under the umbrella of such an agreement NPS issues permits, as appropriate, to authorize and manage specific activities conducted in the park by that entity consistent with existing policies and guidelines. However, because of the potential sensitivities and the cultural and natural resource management complexities of the proposed program, we believe that NPS should develop a new director’s order specifically for “Native American collecting activities” that includes a model NPS-tribal agreement (or template) establishing the required format and content of such an agreement with the tribes, and containing a similar level of detail (though different content) as the model agreements for fundraising or for partnership construction projects. With regard to permits for religious and ceremonial gathering of plants, the new director’s order should include guidance to a level of detail that we presume will be included in Director’s Order 74 – Scientific Research and Collecting.
B. Better Define the Scale and Scope of the Issue: The Proposed Rule provides no information regarding the potential number of parks that may be affected by the rule. The Preamble indicates that the gathering program would be limited to “those Indian Tribes traditionally associated with specific park lands”. While it remains to be seen which of those tribes might actually submit gathering requests if authority to do so were established, NPS must already know which tribes have traditional associations and which parks could be affected. We believe this information should have been included in the Preamble in order to provide the public with the background information necessary to understand the potential scale and scope of the proposal. Furthermore, in the Paperwork Reduction Act section of the Preamble, the “Estimated Number of Respondents” is identified as 20. Is that the full extent and number of the Indian Tribes “traditionally associated with specific park lands” that could potentially submit gathering requests; and which parks specifically do those 20 tribes associate with? The missing information, if provided, would contribute significantly to the public understanding of the potential scale, scope, and administrative workload required to effectively manage the proposed activity. Lacking such information, it appears NPS is glossing over the likely substantial workload and organizational costs that the proposed program will require.
C. Reassess and Correct Faulty Fundamental Assumptions: The purpose of the Preamble is to lay the foundation and set the tone for how the proposed gathering program would be managed. It fails to do so. In fact, NPS makes several statements in this section that are inherently dismissive of potentially serious and valid concerns and that are suggestive that NPS intends to take a de minimis approach to managing it. For example, the NPS asserts on a number of occasions that the proposed activity would not lead to an impairment of park resources. NPS also asserts that the proposed gathering may even “contribute to the protection and stewardship of parks.” Given that no environmental impact analysis has yet been completed, neither conclusion is credible or defensible on the face of it. NPS appears to be minimizing, perhaps even denying, the very real possibility that the proposed activities will likely cause adverse impacts. It would be far more responsible and appropriate for NPS to acknowledge the significant probability that plant gathering on a multi-park scale, as described in the proposed rule, could cause significant impacts, perhaps even impairment, unless consistently and effectively managed. If plant gathering for religious and ceremonial purposes is going to become a service-wide program, then NPS must do a much better job of setting the tone and reinforcing the foundation principle that, in the context of the proposed activity, resource conservation shall take precedence over resource use, and that it will be necessary to establish detailed guidance to minimize impacts and to effectively manage the program across the System.
D. Acknowledge that Plant Gathering Is a Consumptive Use: Another bizarre assertion in the Preamble is the NPS statement that “the sustainable uses envisioned by the proposed rule would approximate some part of the pre-existing, pre-European environment of the park and thus would not be considered to be consumptive use” (emphasis added). This assertion is completely unfounded and inconsistent with NPS’s own longstanding belief that such gathering is, in fact, a consumptive use. While there is no definition of consumptive use in current NPS regulations, the description of consumptive uses in Management Policies 2006, Sections 8.3 and 8.9, clearly considers potential gathering of natural resources by Native Americans as a consumptive use. And both sections reinforce the long-standing decision that gathering plants for religious and ceremonial purposes is prohibited, “except where specifically authorized by federal statute or treaty rights”. The illogical NPS determination that such gathering would not be a consumptive use implies that NPS believes there would be no loss of park resources or any potential for significant impacts or impairment, which appears to us as completely speculative – and indefensible. It would be more credible if NPS were to acknowledge the obvious, that the proposed gathering would, in fact, be a consumptive use.
E. Provide Guidance on What is Meant By “Certain Plants and Plant Parts”: Surely the use of the word certain in the title was intentional, so it must have meaning and appears intended to set some sort of limit on the scope of what is being contemplated. However, the Proposed Rule fails to define or explain the word certain and provide meaningful guidance regarding what kinds of plants or plant parts could be gathered. Is NPS saying that anything and everything plant-related is on the table? And does that mean that NPS intends to leave it to individual parks to decide? We realize that NPS cannot list every conceivable plant species that may be gathered under the proposed policy change – nor is that what we are proposing. However, the establishment of some level of service-wide standards or criteria for determining what can and cannot be collected is essential to providing the foundation for effective management. For example, does the proposed gathering apply primarily to edible and medicinal plants and plant parts, such as berries, nuts, flowers, greens, shoots, bark, bulbs, and roots? Or would it also include mature and healthy, perhaps even rare, tree species (such as redwood, sequoia, bristlecone pine, chestnut, or cypress), or the woody parts thereof (such as branches, burls and “knees”) that may be used to make traditional religious or ceremonial objects, such as totem poles, pipes, or related items? Such basic concerns are not addressed in the Proposed Rule, and the probability of inconsistent application of vaguely defined terms and non-existent exclusions is a significant concern. Therefore, we recommend that NPS provide a general description of, or criteria regarding, the kinds of plants or plant parts that may be gathered and what kinds of plants or plant parts would be excluded from gathering. In essence, we ask that NPS define the word certain.
F. Clarify What is Meant by Traditional Methods of Gathering: The term is not defined in the Proposed Rule. As a result, it is open to broad interpretation that could lead to inconsistent implementation of a service-wide program. While gathered by hand may seem clear to some, without further guidance it can be interpreted many ways. Arguably, one cuts a tree by hand whether holding a chainsaw or crosscut saw. The target plants that were traditionally gathered by tribal members before a park was established should only be gathered by hand using traditional, not modern, methods. As such, it should be clearly established that any use of mechanical, motorized, electrical, gasoline or gas-powered tools or similar power implements or tools would be prohibited in any legally authorized gathering, harvesting, and on-site processing of plants or plant parts.
G. Establish Inventory and Monitoring Guidance: Because the proposed activities would, fact, be a new consumptive use of park resources that would occur on a multi-park scale, NPS needs to develop a well-organized and coherent resources management program necessary to avoid unacceptable resource impacts or impairment and in order to effectively manage the activity. As a minimum, for any new gathering activities being considered in a park, we recommend that there be a thorough baseline inventory of plant and wildlife species in any locations where gathering activity is being contemplated. If gathering is allowed, a monitoring protocol should be developed to ensure effective management of the program.
H. Establish Mitigation and Restoration Guidance: In certain circumstances, gathering traditions may result in significant ground, understory, and/or tree canopy disturbance or destruction. If NPS is given the statutory authority to allow new gathering activities, clear instructions are needed to ensure that the respective tribe avoids or minimizes potential impacts, and mitigates, remediates, and/or restores actual impacts caused by the activity. In essence, this should be managed similar to the leave no trace program. The appropriate kind(s) of mitigation needed should be considered in the respective park’s NEPA analysis of potential gathering activities, and then incorporated into the terms and conditions of the agreement or permit.
I. Establish Guidance on How to Evaluate If the Proposed Gathering Activities Would Compound Existing Resource Protection Problems: It is well known that numerous parks already have significant and ongoing problems with illegal gathering of plants and plant parts, often for commercial purposes. For example, many Appalachian mountain parks already have great difficulty dealing with longstanding problems involving the illegal digging and removal of ramps (Allium tricoccum or Allium tricoccum var. burdickii, Alliaceae) and ginseng (Panaxquinquefolius), and sometimes other species with monetary value. Any time there is market demand, whether legal or not, for plant products (such as exists for ramps, ginseng, and certain mosses used in the hobby industry), the likelihood of illegal poaching of those plants in protected areas significantly increases. The ramp and ginseng populations in some parks are already stressed from illegal activity, yet the proposed action includes no guidance or mechanism to factor that into NPS decisions regarding the potential authorization of additional gathering of the target species in those same parks by traditionally associated tribes. While we understand the intent of the proposed action is simply to allow limited gathering specifically for traditional religious and ceremonial practices, doing so at parks with known illegal take of those same plant species will further impact stressed plant populations, complicate the monitoring of those impacts, make law enforcement even more difficult, and inevitably increase the total volume of plants removed. Because of the potential cumulative effects of illegal gathering and the proposed legal gathering, NPS needs to provide supplemental guidance that would inform and support decisions, if appropriate, to deny permission to remove additional plant gathering in parks or at specific park locations that are already being adversely impacted by illegal commercial gathering.
In summary, while the Coalition supports, in concept, the intended policy goal, we must oppose the Proposed Rule itself, as it is insufficient and flawed in many aspects and should not be implemented as described. Our key concerns are as follows:
• The Proposed Rule is inconsistent with the NPS Organic Act and Redwoods amendment. If NPS plans to proceed with the proposed plant gathering program, we believe that a legislative remedy is the appropriate means to provide specific authority for the program.
• The Proposed Rule fails to adequately address other statutory and policy requirements.
• The Proposed Rule fails to provide adequate guidance to effectively administer as System-wide program.
• The categorical exclusion of the Proposed Rule from further NEPA review is not justified. A programmatic environmental impact statement (PEIS) should be prepared to analyze the potential environmental impacts of the Proposed Rule and to develop the comprehensive guidance needed to effectively administer the program.
This important issue deserves NPS’s best effort to develop a sound, professional management program that is fully consistent with the NPS mission and its longstanding tradition of resource conservation. If you have any questions or require additional information, please do not hesitate to contact me.
Sincerely,
Maureen Finnerty Chair, Coalition to Protect America’s National Parks
Email: maureen_finnerty@protectnps.org
Mailing: 5625 North Wilmot Road, Tucson, AZ 85750-1216
Web: www.protectnps.org