Analyzing the DV Moratorium

Picture pulled from the Death Valley National Park website.

Damon pointed out the Death Valley moratorium on organized events pending the outcome of a safety study.  Here from the Death Valley National Park website:

• Sporting Event—Bicycle or Running - Effective immediately Death Valley National Park will temporarily discontinue issuance of running and bicycling event permits. Future event permits will not be considered until a thorough safety evaluation of this type of activity has been completed. Activities that already have a fully-executed permit will go on as planned. Our website will be updated once we have completed this safety evaluation.

This obviously includes Badwater and Furnace Creek 508, as well as other events organized by the same promoter (Adventure Corps), and, one must assume, other promoters as well.  When Sam and I were there last March we chatted with a couple who were on a van-supported tour, which may have been this REI tour, run six times in consecutive fall and winter months.  If REI is having permit trouble it is not yet advertising that reality on its adventure travel website, which as of December 25 continues to allows scheduling of 2014 Death Valley bike tours.

I was curious whether the park would tell me anything more, so I sent this e-mail to the contact person for special use permits in Death Valley:

• Dear Ms. Wehmeyer:
• I am investigating the possibility of a permit for a long-distance duathlon race in Death Valley in late 2014.  I see the restriction on running and biking events.  Would Park management apply that restriction to a multi-sport event like duathlon (running, cycling, running) as well?
• Many thanks for your assistance.
• Max

Perhaps obviously, my assertion of a planned new event was a complete fabrication.  Debbie Wehmeyer's reply:

• Max,
• If you have checked our website recently you will see that we are now accepting applications for sporting events that will occur after October 2014.  Please feel free to submit an application, however, since we have not completed our safety evaluation of these types of events, I am not able to tell you what conditions might apply to your event.
• Debbie Wehmeyer
• Office of Special Park Use
• Death Valley National Park - Park Headquarters
• PO Box 579 or 271 Highway 190
• Death Valley, CA  92328
• 760-786-3241
• Web: http://www.nps.gov/deva/parkmgmt/businesswithpark.htm

What does all this mean?  How can it be explained?  Is it justifiable?  In short, what does a lawyer say about this?  Based on a morning's digging, here's my tentative analysis.

Park Governance

Under federal law (16 USC ss. 1-__), National Parks are mini-kingdoms run by Park Superintendents, who are themselves hired and subject to termination at will by the Director of the National Park Service.  The NPS Director is a presidential appointee who appears to answer directly to the Secretary of the Interior and who has ultimate "supervision, management, and control" of the parks.  (16 USC s. 2.)

Death Valley National Park is, as of 1994, a National Park subject to the above governance structure.  It has been a federally protected area and part of the park system since being named a national monument in 1933.  According to the Desert Protection Act:

• The Congress hereby finds that--
• (1) proclamations by Presidents Herbert Hoover in 1933 and Franklin Roosevelt in 1937 established and expanded the Death Valley National Monument for the preservation of the unusual features of scenic, scientific, and educational interest therein contained;
• (2) Death Valley National Monument is today recognized as a major unit of the National Park System, having extraordinary values enjoyed by millions of visitors;
• (3) the monument boundaries established in the 1930's exclude and thereby expose to incompatible development and inconsistent management, contiguous Federal lands of essential and superlative natural, ecological, geological, archeological, paleontological, cultural, historical ad [sic] wilderness values;
• (4) Death Valley National Monument should be substantially enlarged by the addition of all contiguous Federal lands of national park caliber and afforded full recognition and statutory protection as a National Park; and
• (5) the wilderness within Death Valley should receive maximum statutory protection by designation pursuant to the Wilderness Act.

(16 USC 410aaa (error in original).)

It is not unambiguous how plenary is a Superintendent's derived power.  In some places Congress legislated with incredible specificity in the manner of a Congress regulating federal real property assets before the modern regulatory state was born.  For example:  16 USC s. 17e, passed in 1930, titled "Care and removal of indigents; disposition of dead persons," instructs: 

• The Secretary of the Interior is authorized, in his discretion, to provide, out of moneys appropriated for the general expenses of the several national parks, for the temporary care and removal from the park of indigents, and in case of death to provide for their burial in those national parks not under local jurisdiction for these purposes, this section in no case to authorize transportation of such indigent or dead for a distance of more than fifty miles from the national park.

The image of a Park Service van dumping a load of dead -- or indigent -- Badwater runners 50 miles outside the DVNP boundary is amusing if macabre!  Section 15 of Title 16 permits the purchase of waterproof footwear and considering it to be Park Service equipment.  A few other amusing hyptechnical examples are spread throughout Chapter 1 of Title 16.

At least one such specific instruction is not irrelevant.  According to section 18 of Title 16, the Secretary of Commerce "shall encourage, promote, and develop travel within the United States, including any Commonwealth, territory, and possession thereof, through activities which are in the public interest and which do not compete with activities of any State, city, or private agency."  Legislative history of the section indicates the Commerce Secretary in 1940 received power that had previously belonged to the Secretary of the Interior.  "Shall" is a word frequently used in federal legislation meaning "does not have discretion not to."  My quick and dirty analysis of that amendment:  Congress instructed in unambiguous terms that National Park resources were to be marketed and sold to enhance nationwide tourism.  (One wonders, though it is beyond my scope here, who were the lobbyists pushing such a legislative provision.  Railroads?  Oil companies?  Even airlines?)

Despite specific statutory commands and consistent with regulatory authority granted under section 3, the National Park Service has promulgated a healthy set of regulations, contained with Title 36 of the Code of Federal Regulations, with this purpose:

• §1.1   Purpose.
• (a) The regulations in this chapter provide for the proper use, management, government, and protection of persons, property, and natural and cultural resources within areas under the jurisdiction of the National Park Service.
• (b) These regulations will be utilized to fulfill the statutory purposes of units of the National Park System: to conserve scenery, natural and historic objects, and wildlife, and to provide for the enjoyment of those resources in a manner that will leave them unimpaired for the enjoyment of future generations.

Permitting Races

The regulations also make clear that races like Badwater and Furnace Creek require a Superintendent-issued permit, which may be issued subject to a handful of vague limitations.  The Park Service calls these "Special Use Permits," or "SUP"s.

Park Service regulations define the "special events" for which permits may be issued to include "sporting events."  Limits on permits for special events include the necessity that there be "a meaningful association between the park area and the events."  Permits may not be issued if the special event "would . . . present a clear and present danger to the public health and safety."

• §2.50   Special events.
• (a) Sports events, pageants, regattas, public spectator attractions, entertainments, ceremonies, and similar events are allowed: Provided, however, There is a meaningful association between the park area and the events, and the observance contributes to visitor understanding of the significance of the park area, and a permit therefor has been issued by the superintendent. A permit shall be denied if such activities would:
• (1) Cause injury or damage to park resources; or
• (2) Be contrary to the purposes for which the natural, historic, development and special use zones were established; or unreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic, or commemorative zones.
• (3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the National Park Service; or
• (4) Substantially impair the operation of public use facilities or services of National Park Service concessioners or contractors; or
• (5) Present a clear and present danger to the public health and safety; or
• (6) Result in significant conflict with other existing uses.

(Bolded language mine.)  As written, the regulation leaves substantial discretion to the Superintendent.

Authority to Impose Moratorium

The governing portions of the CFR expressly grant the park Superintendent the power to impose a closure for, among other things, the protection of public health and safety.  36 CFR s. 1.5 reads in pertinent part:

• §1.5   Closures and public use limits.
• (a) Consistent with applicable legislation and Federal administrative policies, and based upon a determination that such action is necessary for the maintenance of public health and equitable allocation and use of facilities, safety, protection of environmental or scenic values, protection of natural or cultural resources, aid to scientific research, implementation of management responsibilities, or the avoidance of conflict among visitor use activities, the superintendent may:
• (1) Establish, for all or a portion of a park area, a reasonable schedule of visiting hours, impose public use limits, or close all or a portion of a park area to all public use or to a specific use or activity.
• (2) Designate areas for a specific use or activity, or impose conditions or restrictions on a use or activity.
• (3) Terminate a restriction, limit, closure, designation, condition, or visiting hour restriction imposed under paragraph (a)(1) or (2) of this section.

(Bolded language mine.)  The permitting regulation, section 2.50, is more directly on point.  Because special events require a permit and a permit "shall be denied" if one of the six listed bases exists, the Death Valley National Park Superintendent need not rely on the closure regulation and may simply deny special event permits outright.

Whether a Superintendent's discretion exercised under Sections 1.5 and 2.50 is defensible depends on (1) whether the regulations are consistent with the Park Service's legislative authority, under the Supreme Court's famous Chevron v. Natural Resources Defense Counsel authority, (2) whether the closure is "consistent with applicable legislation and Federal administrative policies," (3) whether the closure meets one of the bases for imposing a use restriction under section 1.5, and (4) whether the closure is free from one of the required bases for permit denial under section 2.50.

An aggressive challenge to the closure attacks it on all four grounds.  As discussed below, my quick conclusion is that such a challenge would be difficult to mount but might be pursued both politically and on narrow legal grounds.

Chevron

The Supreme Court's 1984 decision in Chevron v. Natural Resources Defense Council, 467 U.S. 837, addressed the issue of how much a court should defer to an agency regulation promulgated under statutory authority.  Per Chevron:

• When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.  If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.  [Second], if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. 

(Notes omitted, bolded language mine.)  A Chevron argument would assert that Congress spoke unambiguously to outline the extent of the Director's, thus the Superintendent's, administrative authority, and actions beyond that express outline exceed congressionally granted authority.  The argument would hold that "clear congressional intent" limits the Park Service's regulatory authority to narrow areas like disposing of dead bodies and buying waterproof footwear.

Played out that far, the argument is demonstrably pretty lame.  Particularly one must recognize Congress's broad grant of regulatory authority in 16 USC s. 3.  In pertinent part:

• The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service . . . .

The Park Service does not stretch that language to set closures and public use limits as allowed by 36 CFR s. 1.5.

Consistency with Applicable Legislation and Federal Administrative Policies

The Park Service's own regulations limit any closures or use limitations to those "consistent with applicable legislation and Federal administrative policies."  Actions by the DVNP superintendent that exceeded her charge would violate the regulation.

It is difficult to see how this regulatory provision adds anything to the rule of federal law announced in Chevron and discussed above.  If an action was inconsistent with applicable legislation but was permitted by regulation, it would be impermissible as exceeding the Parks Director's statutory mandate.

The only seemingly obvious basis for inconsistency with federal law is the instruction that the Secretary of Commerce promote tourism.  A moratorium on races is the antithesis of such a requirement.  Unfortunately, the Park Superintendent does not report to the Secretary of Commerce.  Nothing about failing to issue certain Special Use Permits undermines the Secretary of Commerce's tourism-promotion obligations.  That said, one seeking to challenge the Death Valley race moratorium might gain from petitioning the Secretary of Commerce under its tourism-promotion authority.  A jurisdictional squabble at the Cabinet level between Secretary Penny Pritzger (Commerce) and Sally Jewell (Interior) might raise this issue from the weeds of wacky ultra-endurance athletes to decision-makers' eye level.

Regulatory Provisions

Finally, the moratorium must be consistent with section 1.5 and not be required by section 2.50 of 36 CFR.

Section 1.5 allows closures and limits "for the maintenance of public health" and "safety." The closure or limit may include closing the park to an activity or otherwise imposing conditions on the activity.  Consistent with that, Section 2.50 requires that permits be denied if the activity would "[p]resent a clear and present danger to the public health and safety."

One obvious challenge is to assert that the race in no way implicates "public health and safety," impacting instead only the participants in the race.  Entry into Adventure Corps events is tightly controlled.  "The Badwater 135 is, and always has been, an invitational race."  As an example, I am capable-enough marathoner to be able to run Boston pretty much whenever I choose, but I do not even approach the minimal entry standards for Adventure Corps' flagship race, the Badwater 135 ultramarathon.  Adventure Corps is pretty -- make that very -- hard-nosed about this:

• Those submitting an application to compete in the 2014 Badwater Ultramarathon must meet at least ONE or more of the following THREE Qualifying Standards. Please review these Qualifying Standards to determine which standard(s) describes you, if any. You will be required to select at least one of these when you submit your race application. Those who do not meet at least one of these standards MAY NOT apply.

• Let us be more clear on that last point:

• To protect the integrity of the event and the safety of those involved, as well as be fair and consistent in the enforcement of all rules and regulations, we don't make exceptions for anybody. If you do not meet one of the Minimum Qualifying Standards, DO NOT APPLY and please do not ask us for permission to apply.

(Emphasis theirs.)  Yowza.  Entry into the Furnace Creek 508 is not quite as challenging but nor is it trivial.  With this kind of entry control, can these in any way be called "public" races?  A far-reaching analogy immediately jumps to mind:  one loophole to drinking and smoking in places of public accommodation laws in localities that had them used to be to establish "private clubs," such that by paying a $5 entry fee I could drink, or smoke, in private.  (Clarification:  drinking clubs in Salt Lake City, the example most prominent in my mind, are described in the linked page as "a think of the past."  Too bad, too.  One used to feel like he or she was frequenting a speak-easy.)

Consistent with my tentative interpretation of the phrase "public heath and safety" to exclude private events, at a few places in the U.S. Code the phrase is used to mean something other than harm to a particular individual.  Example one:  there is a Sentencing Guideline enhancement for a "threat to health and safety, or injury to any person," under the Cyber Security Enhancement Act of 2002 (6 USC 145(b)(2)(B)(viii)).  It's a real stretch to learn much from a Cyber Security law and even more to import meaning from the United States Code into the Code of Federal Regulations, but courts do tend to interpret legislative phrases consistently.  Example two: in 10 USC s. 1034, protected communications by members of the armed forces (whistleblowers) include those made to an Inspector General relating to threats to the public health and safety as well as those that threaten the life of a person.  (10 USC 1034(c)(2)(B), (C)).  And in example three, potential paydirt:  in Title 16 itself, "public health and safety" is at least once used in conjunction with "protect[ing] the interests of individuals living in the general area."  (16 USC 3167(a)(4)(C), (5).)  This example still is not perfect -- it's a US Code section, not a Code of Federal Regulations section, and it seems specifically targeted to parks near or coincident with Native Alaskan subsistence lands -- but it does continue to suggest that "public health and safety" does not mean private uses.  (A similar search in the CFR, with particular attention to Title 36, would be valuable.)

Summary

Adventure Corps seems to have moved on for 2014, scheduling a new Badwater route (which looks, if anything, harder than the original) and "a brand new race route" for the FC508.  We won't know until the completion of the safety study whether organized competitive events will return to Death Valley in 2015.  Should it be necessary to challenge a permanent or semi-permanent moratorium, strategies and legal arguments do exist.  To my view two approaches are the strongest:  first is to petition the Commerce Department based on the tourist impact of Adventure Corps event and second is to challenge, both administratively and in court, the Superintendent's authority to limit park use to such closely controlled events as those Adventure Corps is promoting.

Why do I care?  I'm just now 40.  The new five-year plan definitely includes a crack at both of these signature races.