12 December 2005Mr. Bernard Fagan
On behalf of the history and archival organizations that comprise the National Coalition for History (the NCH is a federation of more than 70 of this nation's largest and most influential history and archives organizations and is a leading advocate for historic and archival professions), we are pleased to comment on the most recent rewrite of Management Policies that is now under consideration for adoption by the National Park Service (NPS), a bureau of the Department of the Interior (DOI). After some preliminary observations, our comments will focus more narrowly on provisions of this management document that impact history, historic preservation, and other cultural heritage resource policy under the stewardship of the National Park Service.
From the outset, we wish to express our conviction that we see no imperative to issue a new edition of NPS Management Policies. The current document (2001 edition) is adequate and provides managers with the needed guidance when confronting park management challenges. Existent Director's Orders deal with those issues not addressed in the 2001 edition, and because the number of such orders are so few, one must question the logic in going to the expense of issuing a new Management Policies document when fiscal resources for the parks are so strained.
The document now being advanced by the NPS/DOI for adoption does not provide adequate or appropriate guidance to enable a typical agency manager to do his/her job better. The proposed changes, in essence, re-interpret (and incorrectly at that) the National Park Service Organic Act of 1916; they disregard provisions of amendments to that legislation that provide for conservation and preservation above visitor use and ignores current judicial interpretation of standing case law. If implemented in its present form, the document will undoubtedly be challenged in court, as would actions by superintendents in countless parks throughout the system who would attempt to apply the guidelines in this document to real life situations. This issuance of Management Policies stands on a shaky interpretation of the corpus of federal case law as it applies to national park preservation and use. Bottom line, the document is not an improvement: it substitutes what was clear guidance for field managers in the 2001 edition and replaces it with unfocused, unclear, and at times, unsound guidance. We urge you to withdraw this version from further consideration.In the event this document is advanced forward, we provide the following specific comments:
The language in this version of Management Policies weakens the agency's mandate to preserve and protect historic sites, battlefields, landscapes, and other elements of our cultural heritage. From the very first page of the document's introduction, it seeks to put the National Park Service on a new track with respect to management of park heritage resources. For example, the newly added definition of "impairment" (Introduction, p. 4 lines 24-27) defined as an action that "in the professional judgment of the responsible NPS manager, would harm the integrity of park resources or values, including the opportunity that otherwise would be present for the enjoyment of those resources or values in violation of the NPS Organic Act," violates the spirit if not the letter of the NPS Organic Act (as amended) itself. We believe managers must base their actions solely in accordance with the body of law (not opinion), a law in which preservation trumps visitor use and enjoyment. Decisions on what constitutes "impairment" cannot be left to the individual managers, impairment is a term of art that has a specific legal meaning. If there is a need to define "impairment" in this document, it we recommend a rephrasing to the following: "Impairment means an impact that would harm or otherwise diminish the integrity of park resources or values in violation of the NPS Organic Act as amended."
Similarly, the new definition for "appropriate use," (Introduction, p. 4, line 34) defined as anything that does "not cause unacceptable impacts on park resources and values," makes no reference to the statutory mandate to leave park resources "unimpaired for future generations." The definition effectively ignores the implications of the Redwood Act amendments.
Also included in the introduction are a series of provisos for defining what constitutes inappropriate impacts. One proviso (Introduction, p.6, lines 4-14) should be added to reference as an inappropriate impact an action that causes "denigration of an atmosphere of peace and tranquility, where the natural soundscape is not maintained in wilderness and natural historic or commemorative locations within the park.”
Language in section 1.3.3 (p. 13, line 32) pertaining to the "willingness of landowners to sell their land or interests therein" is satisfactory, provided that landowner concerns are evaluated on an equal basis with the other factors being considered. However, the passage (p. 14, lines 8-10) on "projected availability of funding and personnel and the priority of maintaining and conserving existing national park service units" should be removed, as the current ability of the government to fund operations should not be a critical factor in judging the worthiness of an area for inclusion into the National Park System.
In section 1.4.3, (p. 16, line 32) instead of substituting the word "unacceptable" for the word "adverse," the latter should remain in place, as it has a legal definition in case law. The term "unacceptable" is much more subjective in nature. The suggested changes in the second paragraph of section 1.4.3 (p.16, lines 42-45; p. 17, lines 1-5) also need a strong statement regarding the Park Service leaving the land "unimpaired for future generations."
In the first proviso of section 188.8.131.52, (p. 17, line 12) substitute "contrary to park purposes or values," or "divergent with park purposes or values" for the word "inconsistent." The second proviso should be rewritten to read: "individually or cumulatively degrade or diminish resource conditions so as to preclude existing or future generations from enjoying the resource in as good or better condition."
In the first provision of section 184.108.40.206, (p. 17, line 33) stronger wording is needed than "inconsistent." For example, "contrary to park purposes or values," or "divergent with park purposes or values" would be better. Additionally, (p. 18. lines 1-2) the second proviso should include both the terms "individually and cumulatively" so as to be consistent with the provisos for unacceptable impacts outlined in the Introduction.
In section 1.4.5, (p. 18, line 40) delete the phrase "a significant" in the first sentence. It should be removed, as it has no legal definition in case law.
There are two new qualifiers in section 1.4.7, (p. 20, line 16) such as "reasonable and" and "mitigate the impacts so as to eliminate the impairment, or reduce impacts as needed to," located in the third paragraph (p. 20, lines 20-21). Both of these qualifiers should be deleted.
Section 1.9 on partnerships follows the pattern of a natural resource bias. Instead, it needs to give cultural resource partnerships equal emphasis. To this end, (p. 29, line 41) it is recommended that the phrase "and preservation" be added in the first sentence of the section after the word "conservation." In addition, (p. 29, lines 43-45) the second sentence should read, "The service maintains partnerships (strike "successful" as many are not) with individuals." The natural resource bias appears again in the fourth paragraph of section 1.9 (p. 30, line 21) with the phrase "The Park Service encourages conservation through consultation. . . .” rephrase to read "conservation and preservation through . . .”
The second paragraph in section 1.10 (p. 31, lines 18-20) would be more accurate if the second sentence were recast to read: "The Service's commitment to protecting the national parks and ensuring appropriate public enjoyment for present and future generations..." The addition of the word "appropriate" would make this statement more consistent with the various policies that have been outlined throughout this particular chapter.We have no comments on chapters 2-3.
Section 4.9 deals with a term of art characterized as "soundscape management." The first two sentences present in the 2001 edition in section 4.9 (see 2001 edition, p. 44, lines 33-35) should be reinserted back into the draft. Soundscape is an essential part of a park's "historic landscape" environs and this should be addressed in Management Policies-at present it is not. In addition, the new language in paragraph three (p. 40, lines 11-12) which begins "level of noise is consistent with the park's enabling legislation..." should be deleted. The fact is that few parks or national monuments created in the 19`h and early 20th century by Congress even address this issue in its enabling legislation as it was never deemed as a problem or issue of concern. Within the same paragraph, (p. 40, lines 14-15) the new language that begins "less in undeveloped areas and similarly..." needs to have a statement that addresses the importance of maintaining the atmosphere of serenity and contemplation at battlefield parks.
We note that the preamble to chapter 5 found in the 2001 version of Management Policies has been removed; it should be restored in its entirety (see 2001 edition, p. 45). It is especially important that a clear statement be reinserted stating that the NPS will continue to support its cultural resource professionals "in maintaining and improving their disciplinary knowledge and skills and promoting their professionalism though continuing education, graduate level courses, seminars, training, teaching, attendance at professional conferences and other programs sponsored by professional and scholarly institutions."
The new version of Management Policies makes repeated references to "the principles of civic engagement" (p. 4, lines 27-29); the term has no relevance to a policy guideline section that pertains to "research" and should be deleted.
The first sentence in the second paragraph of section 220.127.116.11.3 (p. 8, line 32) should be rephrased to "World Heritage List shall consult," instead of "must" consult. Here again, the words have specific legal meanings derived from years of application of case law. It would be wise for the entire document to be reviewed by Bureau and Departmental attorneys to catch such errors of fact and omission.
In section 5.2, (p. 9, line 19; p. 10, line 3) the words "unacceptable" and "conservation," which have been added in the new draft, and should both be deleted. The addition of "unacceptable" weakens standards from one that requires planners to seek to avoid harm to one that could potentially enable planners to seek acceptable harm. Even in some cases where limited amounts of harm to a park might be inevitable, planners should always begin by seeking to avoid it. With respect to "conservation," here again all references are again not appropriate for cultural resources (references appear again in paragraphs three and five, p. 9, line 21; p. 9, line 30; p. 10, line 3).
Within section 5.2.1, (p. 10, line 17) the addition of the phrase "communicate, cooperate, and..." in paragraph two and (p. 10, lines 28-29) "cooperation, consultation, and..." in paragraph three are problematic and should be removed. The word "cooperation" makes the implication that outside parties have equal standing with the National Park Service in resolving issues; this is not the case. This effectively eliminates the NPS's ability to make a responsible decision unless there is a consensus with all other parties.
The inappropriate term "conservation" yet again appears again in paragraph two of section 18.104.22.168 (p. 13, line 25) and should be deleted for the same reasons discussed above.
In the first paragraph of section 5.3.3 (p. 16, line 2) there should be a specific reference to an "NPS historic property lease," instead of just a "lease." A more accurate reference is needed to insure compliance with the National Park Service's program guidelines.
The original paragraph two of section 5.3.3, (see 2002 edition, p. 53-54) which has been deleted in the new draft of the management policy, should be restored. There are potential dangers that by removing restrictions, such as one limiting a lease to fifty years, the door to privatizing parts of the nation's heritage might be opened.
In our view NPS stewardship of human remains and burials transcends the present legal requirements mandated under current federal law (specifically, NAGPRA) that at present relate only to Native American remains. Management Policies should include specific guidance to park managers mandating the respectful treatment of human remains of combatants who died on American battlefields. This means that graves of battlefield combatants should not be considered "interpretive" exhibits (as is currently the case at Saratoga Battlefield) but rather remains should be treated with respect; that consultation with veteran groups will take place when battlefield remains are inadvertently encountered on park lands; that actual human remains of battlefield combatants will not be displayed in park visitor centers, and that only historic photographs will be used to depict war dead in interpretive displays.
Finally, absent entirely from the discussion of planning in Chapter 5 is collections planning, which will be important for those NPS units seeking accreditation or re-accreditation by the American Association of Museums in the future. In "Expectations Regarding Collections Stewardship," approved in June 2002, the AAM Accreditation Commission states that museums need to plan intelligently as they collect, ideally within the framework of a carefully developed collections plan. Not a collections management policy or a collecting plan, a collections plan applies the principles of strategic planning to collections, establishing collections goals, how they will be achieved, who will implement the plan, when it will happen, and what it will cost.We have no comments on chapter 6.
The original language of section 7.4 (p. 74 of the 2001 edition) should be restored. The Interpretive Competencies program ensures that the National Park Service maintains its standard of excellence in providing first-rate educational programs.
Section 8.1.1 should address the issue of inappropriate recreational use at historic sites and battlefield parks. Currently there is no such language included in the new draft of the management policy.
The second paragraph of section 8.1.2, (p. 4, line 24) which begins with "When a use is causing or would cause unacceptable impacts..." should be deleted completely. It is negative and too prescriptive in nature. Rather than try to guess at what is "unacceptable," it is better to define the desirable goal and leave the rest to the professional park managers to interpret.
The word "enthusiastically" in the first paragraph of section 8.2 is unnecessary and can be deleted (p.5, line 28). Additionally, the 2001 edition of Management Policies states that the National Park Service will not allow activities that "unreasonably interfere with... the atmosphere of peace and tranquility, or the natural soundscape maintained in wilderness and natural, historic, or commemorative locations with in the park." The new draft makes no such references to natural soundscapes, even in its list of examples of "authenticity" in the parks.
Also, in section 8.2, (p. 6, lines 16-17) the phrase "historical events and places presented accurately and without contrivance or judgment" under the heading "examples of this authenticity" is unclear. What in the view of the Management Policies drafters should be the role of historical site interpretation based on ever-changing evidence and lack of consensus opinion of professional historians on some matters (i.e. the cause of the Civil War)? In our view, site interpreters "should be given the freedom and latitude to base their programs and presentations on current scholarship" and leave it at that.
The first line in section 8.2.2 (p. 9, lines 13-14) regarding recreational activities, should be reworded as "The National Park Service will encourage, allow, or otherwise permit recreational activities in accordance with a unit's authorizing legislation." Furthermore, there needs to be added language to the effect that "recreational activities will generally not be permitted at historical parks, battlefields, and other units of the NPS." Additionally, within the fourth paragraph, (p. 10, line 24) the third restriction of appropriate recreational uses, should delete "To the extent reasonable and practicable" should be deleted and the sentence should begin "Public use limits established by the Service..." The phrase "public involvement" in the same sentence (p. 10, lines 25-26) should be deleted.Thank you for providing us the opportunity to comment.