Vol. 52-1 Federal Casenote

Federal Casenote 

United States Fish and Wildlife Services et. al. v. Sierra Club, Inc.


This case arose when the Sierra Club submitted Freedom of Information Act (FOIA) requests for records concerning consultations between the United States Environmental Protection Agency (EPA), and the U.S. Fish and Wildlife Service and National Marine Fisheries Services (together, the Services).[1] The primary document considered by the Court’s decision is a “draft biological opinion” prepared by the Services’ staff pertaining to EPA’s proposal concerning “cooling water intake structures.”[2]

Between 2011 and 2013, EPA promulgated a proposed rule regarding “cooling water intake structures” to minimize potential harm to marine animals that are protected under the Endangered Species Act (ESA).[3] The Services’ prepared a “draft biological opinion” that determined the 2013 rule would still jeopardize the animal populations at risk.[4] As such, decisionmakers at the Services’ determined that more consultation and work with the EPA was necessary to develop a sufficient proposal.[5] Following this, the EPA abandoned its initial 2013 rule and began development on a new proposed rule, which was finalized in 2014.[6] There was never an official draft or final opinion issued on EPA’s 2013 proposal.

Sierra Club sued the Services and claimed that the Services’ invocation of the deliberative process privilege was a way of shielding their draft opinions that ultimately expressed their final view on EPA’s 2013 rule.[7] The Ninth Circuit affirmed, agreeing with Sierra Club’s argument.[8] Judge Wallace dissented on the Ninth Circuit’s opining that “the drafts were part of the ongoing consultation process,” and protected by the privilege which is relevant to the Court’s decision here.[9] 

Court’s Analysis 

The Court began its analysis with the purpose of the deliberative process privilege. Specifically, the Court established that the deliberative process privilege exists to encourage candid discussions between agencies, resulting in an improved decision-making process, and to prevent agencies from operating under a microscope.[10] It follows that the deliberative process privilege must protect documents that are indeed deliberative and pending. The privilege, however, does not extend to a final decision, as the deliberations are complete at that point.[11]

            The fact that a document is not followed by any further drafts or deliberations does not, alone, make the document itself a final document because “[s]ometimes a proposal dies on the vine.”[12] This is what happened with the Services’ “draft biological opinion” on the EPA’s 2013 rule–it died on the vine.[13] In making this determination, the court pointed to various factors regarding the Services’ “draft biological opinion” on EPA’s 2013 proposed rule.

First, and most importantly, the Court pointed to the fact that the Services’ never formally approved or adopted the opinion, nor did they send the EPA their opinion on the proposed 2013 rule as is typical practice when for draft and final biological opinions.[14] The Court actually pointed to this as a further indication that the “draft biological opinion” at question in this case was more likely a “draft of a draft” because of the Services’ internal determination that further work needed to be done before even issuing a draft opinion.[15]

Next, the Services and the EPA had an agreement to allow for further changes following the circulation of the “draft biological opinion” to the EPA.[16] Because the drafts were allowed to change following EPA’s opportunity to comment, then the “draft biological opinion” could not have exhibited the agencies’ final decision on the matter and as such, was deliberative.[17]

Moreover, in determining the finality of an opinion, courts must examine whether the opinion led to any “direct and appreciable legal consequences” as is a necessary result of an agency’s final opinion on a matter—the practical consequences of a decision is not indicative of an opinion’s finality.[18] Here, there were no legal consequences of the Services’ internally, unapproved draft opinion—nothing from the draft opinion made its way into practice either at the Services or at the EPA, nor was either agency tied to anything within the draft opinion.

The Court confirms, nonetheless, that agencies cannot simply “stamp every document ‘draft,’” to protect their decisions, because the inquiry that the courts make is a functional inquiry rather than a formal one.[19]  In other words, the court will have to examine the facts of each individual case to make a determination as to whether or not a “draft” opinion is indeed considered by the agency to be “draft,” or if it is rather a final opinion and thereby not protected by the deliberative process privilege. The Court does not indicate how future courts should make this determination. 

 Implications of the Decision 

The Supreme Court’s decision broadens the scope of what is considered a “draft” document for the purposes of applying the deliberative process privilege. However, the Court left the scope of the decision rather open-ended, meaning that it will come down to the district and appellate courts to determine what documents fall under the exclusion. In turn, this will likely lead to circuit splits in how to treat certain kinds of documents under deliberative process privilege. Following such a split, forum-shopping may arise as a concern.

As the Court indicated in the decision, courts will have to examine exactly how an agency treats a document to see if it reflects its final view on the subject in question and if the document results in any appreciable change to the legal requirements or actions of an agency. For example, a proposed rule that an agency informally adopts that alters how the agency responds to a situation could be seen as final, even if there was no “final opinion” issued concerning the adoption of the new rule. 

This will likely result in an increased strain on the judiciary, requiring a case-by-case review and determination as to whether a document is indeed a “draft” and thus protected by the deliberative process privilege or if the agency treated the document as final by publishing the rule or by enforcing the changes required by the rule, and, as such, not protected.

            Regardless, the decision provides agencies with more freedom in their use of the deliberative process privilege to protect draft work product. This could very likely increase internal deliberations within agencies and increase the candor of intra-agency discussions regarding forthcoming rules or decisions. Furthermore, agencies may be more willing to increase their solicitation of public comments and input since internal deliberations on such comments will be protected, even when pulling together a draft opinion in response to public comments. However, as the Sierra Club suggested, this is a double-edged sword as this increased candor and usage of the deliberative process privilege could result in government agencies being less forthcoming in working with non-agency groups.[20] This is especially true if an opinion results in the abandonment of the proposed rule and further intra-agency deliberations, as in the case of the proposed rules in US Fish and Wildlife v. Sierra Club.


Amy Rodriguez is an Assistant Attorney General for the State of Texas. Her work centers on counseling state agencies on prosecution and defense litigation strategy. She is a 2017 graduate of the University of Texas School of Law.

Evan Kudler is a 2L who joined TELJ in his fall 1L year. He is from El Dorado Hills, California and studied Economics at the University of California, Santa Barbara for undergrad. Before coming to law school, he worked at Pacific Gas & Electric Company in San Francisco working on the decarbonization effort of the electricity sector. He will be joining Baker Botts Environmental litigation group this summer before he goes off to get his LLM in Global Environment and Climate Change Law at the University of Edinburgh in the fall. He hopes to focus his work on the intersection between environmental justice and climate change.

 [1] U.S. Fish and Wildlife Service et. Al. v. Sierra Club, Inc., 141 S. Ct. 777, 784-85 (2021) [hereinafter “US Fish and Wildlife”].

[2] Id. at 785.

[3] Id. at 784.

[4] Id.

[5] Id.

[6] US Fish and Wildlife, supra note 1, at 784.

[7] Id.  at 785.

[8] Id. (holding that the “draft biological opinions…represented the Services’ final opinion that the EPA’s 2013 proposed rule was likely to have an adverse effect on certain endangered species.”).

[9] Id.

[10] See id.; see also Department of Interior v. Klamath Water Us­ers Protective Assn., 532 U. S. 1, 8 (2001) (determining in relevant part that “officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.”).

[11] US Fish and Wildlife, supra note 1, at 786.

[12] Id. “[Dying] on the vine” simply means that the rule was neither denied or approved, and, for the case herein, the Services did not officially adopt an opinion nor was an opinion issued to EPA on EPA’s proposed 2013 rule.

[13] Id. at 788

[14] Id.

[15] Id.

[16] US Fish and Wildlife, supra note 1, at 787.

[17] Id.

[18] Bennett v. Spear, 520 U.S. 154, 170, 178 (1997) (holding that a final biological opinion “leads to direct and appreciable legal consequences…[when it] alters the legal regime to which the action agency is subject.”).

[19] US Fish and Wildlife, supra note 1, at 788.

[20] Sierra Club warns that there is a risk of agencies overusing the term “draft” for purposes of protecting internal deliberations, even if the agency practically intends for such an opinion to be a final decision.

Vol. 52-1 Water Rights

Water Rights

Brazos River Auth. v. City of Houston, 628 S.W.3d 920 (Tex. App.—Austin 2021, pet. filed)


This case arose over a dispute from the right to construct and operate a reservoir on Allens Creek.[1] The City of Houston sued the State of Texas and the Brazos River Authority (“BRA”), seeking to block the implementation of a new law that would force the City to sell its water rights in the proposed Allens Creek Reservoir to the BRA for up to $23 million by the end of 2021.[2] Specifically, the site of the proposed reservoir is a tract of about 9,5000 acres located in Austin County near the confluence of Allens Creek and the Brazos River.[3] This site was designated “a site of unique value for the construction of a dam and reservoir on Allens Creek” and “that construction and development of the Allens Creek Reservoir project” would be “in the public interest and would constitute a beneficial use of the water.”[4]

For over two decades, the City and the BRA have jointly held a water-appropriation permit authorizing them to construct the reservoir and to use the impounded water.[5] In 2019, however, the Texas State Legislature passed House Bill (H.B.) 2846, which instructed Houston to enter into a contractual agreement with the BRA to transfer its entire interest in the proposed reservoir, including its permit rights, to the Authority.[6] H.B. 2846 was intended to encourage development of the reservoir by transferring the City’s entire interest in the reservoir and all rights to the BRA.[7]

        Houston responded by suing the State of Texas and the BRA, asserting that H.B. 2846 is invalid on multiple grounds.[8] The district court granted declaratory relief, finding that H.B. 2846 is “unconstitutional, void, and unenforceable” because it violates the Texas Constitution’s prohibition of retroactive laws, local or special laws, and the forced sale of government property.[9] In a separate order, the district court sustained Houston’s evidentiary objections in part and overruled them in part.[10] The State and the BRA appealed the decision.[11]

 The Third Court of Appeals’ Decision and Discussion

The Texas Third District Court of Appeals upheld the lower court’s decision to protect the City of Houston’s interest in the unbuilt reservoir by striking down a state law and declaring it unconstitutionally retroactive based on its impairment of Houston’s water rights.[12]  

First, the appellate court discussed why H.B. 2846, as a later-enacted and more specific statute, controls regardless of a conflict with the Local Government Code.[13] Next, the court examined the constitutional challenges to H.B. 2846 and elaborated on its conclusion that there was a failure to demonstrate an overriding public interest in violating the water rights of the City in the unbuilt reservoir.[14] Despite a presumption that the statute was valid, the court construed H.B. 2846 “as a whole” to determine that it had retroactive effect.[15] Thus, the analysis turned to whether the law was unconstitutionally retroactive.[16]

The City argued the law is unconstitutional in part because it violates prohibitions on retroactive laws and on forced sales of municipal property that have a public use.[17] On the other hand, the BRA argued that H.B. 2846 is in the public interest because it is necessary to discharge the legislature’s constitutional duty to conserve the state’s natural resources.[18] In its decision, the appellate court relied on the three-factor test established in a 2010 Texas Supreme Court decision, Robinson v. Crown Cork & Seal Co., to review whether a statute violates the state’s constitutional prohibition on retroactive laws under the following factors: (1) the nature and strength of the public interest served by the statute; (2) the nature of the prior right violated by the statute; and (3) the extent of the impairment.[19]

Although the court agreed that constructing the reservoir is in the public interest, concerns regarding the law remain unaddressed and, according to the majority, “nothing in the record supports a conclusion that H.B. 2846 resolves these concerns.”[20] The conclusion is bolstered by the fact that H.B. 2846 itself does little to advance construction of the reservoir without further action from the Legislature or the Commission.[21] Ultimately, the majority determined the legislature lacked justification to retroactively apply the state statute to Houston’s interest in the unbuilt reservoir because the legislation served a minimal public interest while having a significant impact on Houston’s settled property rights.[22] Therefore, even though H.B. 2846 could serve a compelling interest, the court concluded the statute was unconstitutionally retroactive in balancing the law’s “purpose against the nature of the prior right and the extent to which the statute impairs that right.”[23]

In affirming the trial court’s judgment and granting declaratory relief, the court found H.B. 2846 to be “unconstitutional, void, and unenforceable.”[24] However, dissenting Justice Melissa Goodwin said that the legislature’s action should carry a presumed constitutionality and require Houston to demonstrate the need to strike down the law.[25] Justice Goodwin points to the City of Houston’s failure to do so, and questioned Houston’s proof of its vested water rights in the reservoir because it received permits for the project’s development decades earlier but failed to move forward on construction.[26] Additionally, although Justice Goodwin admits to the questionable policy reasons behind the legislation, her dissent notes that the law’s constitutionality should be evaluated, rather than its policy.[27]

Implications of the Decision

This court’s decision restores the City of Houston’s interest in the Allens Creek reservoir project and affirms the state prohibition against retroactive statutes. This decision appears to be an obstacle to the legislature’s ability to take away rights and property from a city and transfer those interests to another governmental entity. This decision could be used in the future to prevent the legislature from using its powers to require the involuntary transfer of property from a city to another governmental entity. The court’s application also reinforces the Robinson factor test established by the Texas Supreme Court and provides insight into the courts’ decision-making process on issues involving the constitutionality of retroactive statutes.[28]

It remains to be seen how durable this finding, and its implications, will be—the State of Texas and the BRA filed petitions for review with the Texas Supreme Court on October 15, 2021.

Carlo Lipson is a second-year student at the University of Texas School of Law. He joined TELJ in the Spring of his 1L year, and has enjoyed being a part of the journal and learning about the many current environmental law issues and policies. Carlo is from San Francisco, attended undergrad at the Claremont Colleges outside of Los Angeles, and is planning to return to California after law school.

Emily Rogers is the Managing Partner of Bickerstaff Heath Delgado Acosta LLP and represents public and private clients in water rights, water quality, utility, and environmental law matters.           

Kimberly Kelley is an attorney at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of municipal, open government, water, and environmental law. She earned her undergraduate degree from Texas A&M University and graduated Texas Tech University School of Law, where she served on the editorial board of the Law Review.


[1] Brazos River Auth. v. City of Houston, 628 S.W.3d 920 (Tex. App.—Austin 2021, pet. filed).

[2] Id. at 925.

[3] Id. at 923.

[4] Id.; Act of May 22, 1999, 76th Leg., R.S., ch. 1291, § 1.01, 1999 Tex. Gen. Laws 4426, 4426 (S.B. 1593).

[5] Brazos River Auth., 628 S.W.3d at 922.

[6] See id.; See Act of May 16, 2019, 86th Leg., R.S., ch. 380, § 1, 2019 Tex. Gen. Laws 688, 688 (H.B. 2846).

[7] Brazos River Auth., 628 S.W.3d at 924.

[8] Id. at 925.

[9] Id. at 922.

[10] Id. at 925.

[11] Id.

[12] Id. at 936.

[13] Id. at 927; See Tex. Loc. Gov’t Code Ann. §§ 272.001(a), 552.020 (West 2019).

[14] Brazos River Auth., 628 S.W.3d at 936.

[15] Id. at 928.

[16] Id.

[17] See id. at 928.

[18] See Tex. Const. art. XVI, § 59(a); See Brazos River Auth., 628 S.W.3d at 929.

[19] Id. at 929; see Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 145 (Tex. 2010).

[20] Brazos River Auth., 628 S.W.3d at 930.

[21] Id. at 931

[22] Id. at 936.

[23] See id. at 931.

[24] Id. at 936.

[25] See id. at 937.

[26] Id. at 930.

[27] See id. at 945.

[28] See id. at 929.

Vol. 52-1 Natural Resources & Land Use

Natural Resources & Land Use

NPS Responses to Overcrowding in National Parks Post-Lockdown


            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.


            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/. 

[2] See Kyle Paoletta, Give the People What They Clearly Need: More National Parks, N.Y. Times, August 28, 2021, https://www.nytimes.com/2021/08/28/opinion/national-park-nature.html (quoting Cameron Stoley, superintendent of Yellowstone National Park, on the effect of the spike in visitation post-lockdown: “You put a million more people a year in Yellowstone — what does that mean when you’re emptying 2,000 garbage cans five times a day instead of three?” he said. “What does a million more people flushing toilets five times a day do to wastewater?”). 

[3] Benjamin Beddoes, Shenandoah National Park Looks to Address Overcrowding, WHSV, (Oct. 15, 2021, 5:18 PM), https://www.whsv.com/2021/10/15/shenandoah-national-park-looks-address-overcrowding/ (quoting Shenandoah National Park’s superintendent on overcrowding at Old Rag mountain hiking trails: “[w]hat we would like to do is set a cap of 800 people a day, see how that works out[]”).

[4] Andrew R. Chow, National Parks Are Getting Trashed During COVID-19, Endangering Surrounding Communities, TIMES, (July 22, 2020 3:19 PM), https://time.com/5869788/national-parks-covid-19/.; National Parks Service, Visitation Numbers, Feb. 25, 20221, https://www.nps.gov/aboutus/visitation-numbers.htm.

[5] Visitation Numbers, supra note 4.

[6] Id

[7]  See Id.; (327,516,619 – 285,579,941) and (41,936,678 ¸ 327,516,619 * 100); Richard J. Ansson, Jr. & Dalton L. Hooks, Jr., Protecting and Preserving Our National Parks in the Twenty First Century, 62 Mont. L. Rev. 213, 214 (2001) (arguing the need for large scale reform to cope with the increasing overcrowding problem at National Parks); Richard J. Ansson, Funding Our National Parks in the 21st Century: Will We Be Able to Preserve and Protect Our Embattled National Parks?11 Fordham Envtl. L. J. 1, 2 (1999) (Noting the increasing problem of overcrowding at National Parks, suggesting increased funding to NPS).

[8] Abraham J. Miller-Rushing et al., COVID-19 Pandemic Impacts on Conservation Research, Management, and Public Engagement in US National Parks, 257 Biological Conservation 1, 3 May 2021.

[9] Id.

[10] Id. at 4. 

[11]Visitation Numbers, supra note 4.; Mai Tran, ‘It’s Not Sustainable’: Overcrowding is Changing the Soul of US National Parks, The Guardian, Sept. 10, 2021, https://www.theguardian.com/environment/2021/sep/10/


[12] Pohle, supra note 1.; Brooks, supra note 1.; Paoletta, supra note 2.

[13] Brooks, supra note 1.

[14] Paoletta, supra note 2.

[15] Id.

[16] Alicia Johnson, US National Parks are Overcrowded – Here’s What Experts Say to do Instead, Lonely Planet, (June 25, 2021), https://www.lonelyplanet.com/articles/overcrowding-at-us-national-parks.

[17] Greg Iacurci, National Parks are Booming. That May Ruin Your Next Trip, CNBC, (Aug. 22, 2021 8:00 AM), https://www.cnbc.com/2021/08/22/national-parks-are-booming-that-may-ruin-your-next-trip.html.

[18] Michael Charboneau, All the Major Closures and Restrictions at National Parks Due to COVID-19, Men’s J., https://www.mensjournal.com/adventure/national-parks-closures-covid-19/.

[19] National Parks Service, Entrance Fees by Park, Sept. 28, 2021, 

https://www.nps.gov/aboutus/entrance-fee-prices.htm.; National Parks Service, 2021 User Fees Increase Proposal, Sept. 27, 2021, https://www.nps.gov/shen/planyourvisit/2021-user-fees-increase-proposal.htm (detailing fee increase proposal for sake of public comment period for Shenandoah National Park). 

[20] 54 U.S.C.A. § 100101.

[21] See S. Forest Watch, Inc. v. Jewell, 817 F.3d 965, 972 (6th Cir. 2016)

[22] See, e.g., Bluewater Network v. Salazar, 721 F. Supp. 2d 7, 21 (D.D.C. 2010) (granting in part plaintiff’s challenge to the reintroduction of jetskis to two national parks); S. Utah Wilderness All. v. Dabney, 222 F.3d 819, 821 (10th Cir. 2000) (holding that NPS’s final rule barring the use of motorized vehicles in a portion of the Canyonlands National Park was based on a permissible construction of the Organic Act).  

[23] See, e.g., Wilkins v. Sec’y of Interior, 995 F.2d 850, 853 (8th Cir. 1993) (finding NPS’s decision to remove wild horses from Ozark River National Parks to not be arbitrary and capricious as they relied on evidence that the horses’ continued presence would potentially impair the perpetuation of the Park’s natural resources.). 

[24] See S. Utah Wilderness All. v. Nat’l Park Serv., 387 F. Supp. 2d 1178, 1183, 1199 (D. Utah 2005).

[25] Id. at 1194.

[26] See Tran, supra note 11. 

[27] See S. Forest Watch, 817 F.3d at 970-74.

[29] S. Forest Watch, 817 F.3d at 972.

[30] Id.

[31] Infrastructure Investment and Jobs Act of 2021, H.R. 3684, 117th Cong. § 11101(3)(B)(ii) (2021).   

[32] Department of the Interior, Interior Invests $1.6 Billion to Improve Infrastructure on Public Lands and Tribal Schools, Apr. 4, 2021, https://www.doi.gov/news/interior-invests-16-billion-improve-infrastructure-public-lands-and-tribal-schools (funding made possible by the National Parks and Public Land Legacy Restoration Fund established in 2020 by the Great American Outdoors Act).

[33] Id.; National Parks Conservation Association, Congress Passes Bipartisan Infrastructure Bill to Help Build Back and Strengthen National Parks and Communities, Nov. 5, 2021, https://www.npca.org/articles/3002-congress-passes-bipartisan-infrastructure-bill-to-help-build-back-and. 

[34] Marcia Argust, Cost of Unaddressed National Parks Repairs Grows to Nearly $12 Billion, Pew Trusts, (Apr. 9, 2019, 7:11 AM),   https://www.pewtrusts.org/en/research-and-analysis/articles/2019/04/09/cost-of-unaddressed-national-park-repairs-grows