Vol. 52-1 Natural Resources & Land Use

Natural Resources & Land Use

NPS Responses to Overcrowding in National Parks Post-Lockdown

 Introduction          

            As the federal government and states have loosened COVID-19 lockdown restrictions and allowed greater opportunity for recreation, National Parks (Parks) have become increasingly inundated with visitors. The National Parks Service (NPS) has reported severe congestion in many of the nation’s most popular Parks, echoed by major news outlets and Park visitors.[1] This overcrowding has done more than just diminish the experience of visitors—it has harmed the Parks’ natural resources.[2] NPS has implemented a reservation system, capped the number of visitors and cars allowed in each Park, and levied additional fees, but these policies have not been uniformly applied and overcrowding remains an issue.[3] 

            The actions taken by NPS over the last year to minimize overcrowding raise concerns over the potential conflict with NPS’s legal mandate under the National Parks Service Organic Act (Organic Act) and its ability to levy additional fees under the Federal Land Recreation Enhancement Act (FLREA). 

 Overcrowding National Parks – Before, During, and After Lockdown

            Even before the pandemic, Parks were frequently overcrowded to the detriment of both recreation and conservation.[4] In 2019 alone, over 327.5 million people visited the nation’s 400 Parks, marking a 2.9% increase from 2018.[5] That is consistent with the relatively steady increase in visitation over NPS’s lifespan.[6] This continued growth compounds the concerns of scholars, who have described visitation rates as intolerably high as early as 2009.[7]  

            During the COVID lockdown, starting in March 2020, most Parks closed through the end of April, with many staying closed over the summer as well.[8] These closures decreased visitation by more than 100 million compared to 2019, with varied drops depending on each State’s lockdown guidelines. [9] Nevertheless, most of the Parks that saw a precipitous drop in visitation saw their attendance return to 2019 levels or higher by Fall of 2020.[10] Nearly half of all recreational visitors in 2020 were concentrated in the nation’s top twenty-three most popular Parks, forecasting the overcrowding that has become the norm for Parks in 2021.[11]

            While the 2021 visitation statistics for all Parks are unavailable (NPS attributes the delay to the pandemic) there have been widespread reports of overcrowding and a few targeted statistics about visitation increases in select Parks.[12] In early June, an NPS spokesperson warned that NPS was “anticipating one of [their] busiest summers ever in the most popular destination—Nationals Parks[.]”[13] This prediction has proven accurate. As the superintendent of the Grand Teton National Park noted in late August, “[e]very month except one has been record setting in terms of visitation numbers since the August before.”[14] The nation’s most popular Parks like Acadia, Grand Canyon, Joshua Tree, and Yellowstone, are bearing the brunt of this surge and the damage that comes with it.[15] 

            The high concentration of visitors at these Parks have pushed NPS to attempt to diffuse recreational visitors over the other 400 Parks in America.[16] Encouragement, however, has not been enough to solve overcrowding. NPS has also taken direct measures to curtail access to the Parks with the highest congestion. NPS has instituted reservation systems on recreation.gov to cap the amount of daily visitors and balance visitation over the course of the day.[17] Some Park administrators, rather than implement a reservation system, simply set a cap for either the number of people or the number of cars allowed in the Park or particular areas.[18] In some cases, NPS has instituted additional fees to bring motor vehicles onto Park grounds or to roam backcountry areas.[19] 

 Legality of NPS Responses

            According to NPS’s legal mandate under the Organic Act, the Service “shall promote and regulate” use of the Parks “to conserve the scenery, natural and historic objects, and wildlife . . .  and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[20] This language has commonly been read to create dichotomous goals for NPS: to promote the public’s recreational enjoyment of the Parks and to leave the Parks unimpaired for future generations.[21] These goals have occasionally conflicted, most notably regarding the use of motorized vehicles on Park grounds.[22] Where enjoyment of the Parks has clashed with NPS’s requirement to preserve the Parks’ relatively unimpaired condition for future generations, NPS has repeatedly attempted to balance the two concerns, resulting in legal challenges to NPS decisions.[23]

            NPS and the courts have clarified that while both promoting recreation and preserving natural resources must be accounted for in NPS decisions, the latter takes supremacy.[24] As long as NPS considers promoting enjoyment of the Parks, courts grant broad deference to enact policies that limit the impairment of natural resources.[25] Given this broad deference, it is unlikely that the reservation systems or visitor caps would be deemed arbitrary and capricious since these decisions are meant to limit overcrowding. Furthermore, as balancing the visitor rates across all Parks will decrease congestion, improve views, and decrease noise pollution, doing so should also promote the enjoyment of the Parks for all recreation visitors.[26]

            The fee increases, on the other hand, will be subject to the FLREA’s requirements. As long as the Park in question follows the procedure for increasing a fee outlined by the FLREA, the increase will likely not be found arbitrary and capricious.[27] Under the FLREA, Parks interested in levying additional fees must “provide the public with opportunities to participate in the development of or changing of a recreation fee.”[28] Although an “opportunit[y] to participate” is not defined in the statute, NPS has an internal (albeit non-binding) fee-collection manual that details the steps a Park needs to follow.[29] In the case of a fee increase at the Great Smokey Mountains National Park, undergoing a notice and comment period, coupled with direct notice to chambers of commerce and public officials, satisfied the FLREA.[30] As such, as long as any Park interested in a fee increase satisfactorily “provide[s] the public with opportunities to participate[,]” in the same vein as the Great Smoky Mountains National Park, then the fee increase will likely not be ruled arbitrary and capricious.

Conclusion

            Overcrowding remains a serious concern at National Parks which, given the increasing rate of visitors over the last thirty years, will remain a concern unless NPS fundamentally changes the way it regulates visitation. The implementation of reservation systems, hard caps on visitors, and additional fees are all important steps, but more are necessary. 

            To further encourage Americans to visit some of the lesser-known and visited Parks, Congress recently allocated approximately $1.7 billion to NPS over the next five years to repair and modernize the transit systems in and around Parks.[31] Furthermore, in 2021, the Department of the Interior will invest $1.6 billion to “address critical deferred maintenance projects and improve transportation and recreation infrastructure in national parks . . . ” alongside other public land projects.[32] In theory, these repairs will provide visitors better access to the parks and other public lands, reducing emissions and congestion in some of the most visited parks.[33] Whether this will be enough to functionally alleviate some of the issues associated with NPS’s estimated $12 billion repair backlog remains to be seen.[34]

Adam Greiner is a third-year law student at the University of Texas School of Law. Before coming to Texas, Adam went to undergrad in his home state of Virginia at the College of William and Mary, where he studied History and Global Business. Adam has been a staff editor for the Texas Environmental Law Journal since the beginning of his second year, and is interested in working in mass tort and complex commercial litigation after he graduates.

Francesca Eick is an Associate with Baker Botts in Austin. Ms. Eick’s practice focuses on regulatory compliance, permitting, litigation, and transactions involving environmental, land use, natural resource, and energy issues. Ms. Eick has advised public and private clients on matters relating to a range of environmental statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the Clean Air Act (CAA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

 [1] See, e.g., Brody Ford, National Parks Are So Crowded That Congress Is Getting Involved, Bloomberg, July 29, 2021, https://www.bloomberg.com/news/articles/2021-07-29/national-parks-are-so-crowded-that-congress-is-getting-involved; Allison Pohle, National Parks Are Overcrowded and Closing Their Gates, Wall St. J., June, 13, 2021,   https://www.wsj.com/articles/national-parks-are-overcrowded-and-closing-their-gates-11623582002; Khristopher J. Brooks, After a Year of Pining, Visitors are Overcrowding National Parks like Yellowstone and Yosemite, CBS News, June 18, 2021, https://www.cbsnews.com/news/national-parks-overcrowding-yellowstone-yosemite/.