National Park Service: 2012

Thursday, January 12, 2012

Problems Permeate the National Park Service's Most Iconic Parks from Coast to Coast

Commercial Visitor Services - Doing Business in the National Parks is Problematic Due to the Systemic Random and Arbitrary Actions by Senior National Park Service Managers Acting in their Official Capacities

Overview
On December 17, 2008, The Washington Post reported that then President-elect Barrack Obama nominated Senator Ken Salazar as the new Secretary of the Interior,

"In response to questions, Obama said the Interior Department has been 'deeply troubled' under the Bush administration and 'too often has been seen as an appendage of commercial interests as opposed to a place where the values and interests of the American people are served.'... 'I also want an Interior Department that, very frankly, cleans up its act,' Obama said. 'There have been too many problems and too much emphasis on big-time lobbyists in Washington and not enough emphasis on what’s good for the American people, and that’s going to change under Ken Salazar.'" (emphasis added)

Unfortunately, more than three years later, the Interior Department is still "deeply troubled" under the Obama Administration and not focused on "what's good for the American people," and no where is this more prevalent than with the management of the Interior Department's National Park Service bureau, including for example, at these iconic parks:

Independence National Historical Park in Pennsylvania involving the dispute between the NPS and the NPS's agent - the Independence Visitor Center Corporation with The Constitutional Walking Tour of Philadelphia
Grand Teton National Park in Wyoming and the Triangle X Ranch
National Mall and Memorial Parks in Washington, D.C. with the Tourmobile
Point Reyes National Seashore in California with the Drakes Bay Oyster Farm
Mount Rainier National Park in Washington with Rainier Mountaineering Inc.
Grand Canyon in Arizona with The Coca-Cola Company

While the issues vary somewhat from one unit of the National Park Service to another unit, the common denominator across all of these national parks is that the NPS's random and arbitrary actions in terms of Commercial Visitor Services have adversely impacted the economy, jobs, small businesses, visitor experience, the environment, etc. For example, in the case with The Constitutional Walking Tour, the National Park Service has successfully argued that the Gateway Visitor Center Authorization Act trumps the National Parks Omnibus Management Act of 1988 (or Concessions Act), but in in the Triangle X case, the National Park Service has argued that the Concessions Act trumps the Grand Teton National Park Act of 1950. As detailed below, it seems that the NPS cannot have it both ways. To these ends, the NPS's actions have amplified the need for Congressional oversight to address the unfettered discretion that manifests itself in terms of vast inconsistencies in NPS's policies across the United States.

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Background on The Constitutional’s disputes with the NPS and Independence Visitor Center

The Constitutional Walking Tour of Philadelphia (“The Constitutional”) offers guided walking tours of the Independence National Historical Park area by providing a primary overview of Independence Park and visiting more than 20 of Independence Park’s most historic sites including the Liberty Bell, Independence Hall, Carpenters’ Hall, Declaration House, etc.

From 2005 to 2010, the Independence Visitor Center Corporation sold tickets for The Constitutional’s various tours only at the IVC’s main information and sales desk. The IVCC has received a 20.0% (twenty percent) sales commission on each ticket that it has sold for The Constitutional (ranging on average in gross price from $12.50 to $17.50). Since 2005, The Constitutional has requested to also license a dedicated ticket sales booth from the National Park Service and IVCC on fair, reasonable and non-discriminatory terms commensurate with Ride the Ducks and Philadelphia Trolley Works, for example. Additionally, since 2005, The Constitutional has requested to also license marketing opportunities and commercial use authorizations from the National Park Service and IVCC on fair, reasonable and non-discriminatory terms.

The Independence Visitor Center (“IVC”) is owned and operated by the United States of America - National Park Service (“NPS”), which then sub-contracts with the Independence Visitor Center Corporation (“IVCC”), a taxpayer supported public charity, to manage the IVC.

The IVCC and NPS have preferenced third parties including Ride the Ducks and Philadelphia Trolley Works, and the IVCC and NPS have discriminated against The Constitutional Walking Tour. The National Park Service has enabled the creation of this unfair business environment. The National Park Service and the IVCC have ignored and circumvented Federal management and concessions laws for the sale of goods and services at Independence National Historical Park that require open, transparent, competitive and appealable processes awarding concessions contracts for the sale of goods and services including tours.

To facilitate the administration of the National Park Service System, the Secretary of the Department of the Interior, acting through the NPS, is authorized under the National Park Service Organic Act (“Organic Act”) to carry out twelve categories of activities, none of which include transferring administrative responsibility to a private party [i.e., IVCC] or engaging in cooperative administration with a private party [i.e., IVCC]. 16 U.S.C. § 1a-2(a)–(l). Rather than grant the NPS discretion in its dealings with park concessioners, Congress established “carefully controlled safeguards against unregulated and indiscriminate use” of the parks in the National Parks Omnibus Management Act of 1998 (“Management Act”), which governs all national park public accommodations, facilities, and services. 16 U.S.C. § 5951 et seq.; see also 36 C.F.R. Part 51.2 (“policy underlying concessions contracts”). The safeguards are not limited to nationwide policy: Congress also manages the parks with significant visitor traffic on a park-by-park basis. See, e.g., 16 U.S.C. §§ 21–40c (Yellowstone), §§ 91–110d (Mount Rainier), §§ 212–218a (Abraham Lincoln’s Birthplace), and §§ 410z–410z-5 (Boston National). One of the dozens of national parks managed by specific statutes is Independence National Historical Park (“INHP”). 16 U.S.C. §407m–407s. As such, compliance here going forward would require the NPS, first, to reassume from the private IVCC the NPS’s duties “to administer, operate, manage, lease, and maintain” properties at INHP pursuant to 16 U.S.C. § 407s; second, to award “all proposed concessions contracts … through a competitive selection process” pursuant to 16 U.S.C. § 5952; and, third, to issue commercial use authorizations in a rational manner pursuant to a reasonable interpretation of 16 U.S.C. § 5966(c).

The IVCC and NPS have arbitrarily and randomly selected business partners in a non-competitive and clandestine manner; as such, the actions of the NPS and IVCC have from an economics perspective stifled competition, innovation and consumer choice. Ultimately the IVCC’s actions have enabled prices to increase for its preferred vendors to strengthen the for-profits’ financial performance. Visitors to Philadelphia will be better served when the IVCC’s management, manners and methods are fundamentally changed. This would include having the National Park Service abide by Federal concessions management laws. Specifically, this will entail only having the NPS award concessions sales contracts and not having the IVCC involved in any of the selecting, awarding, contracting and managing of Independence Park’s third party concessions, including inside the Independence Visitor Center. This is the model that is practiced in virtually every other of the 390 (three hundred ninety) National Park Service units across the United States (in 49 states) including at Yosemite, Yellowstone, Statue of Liberty, etc. Additionally, visitors and all stakeholders will be better served once the operation of the taxpayer funded IVCC is totally transparent and accountable. While part of the issue centers on a publicly funded charity competing against the private sector (i.e., by offering guided tours and services), it more so has to do with the manner in which the IVCC and NPS operate and discriminate against third party concessionaires, tour operators and vendors in a random and arbitrary fashion (i.e., with the licensing and leasing ticket sales kiosks by the IVCC to third party companies, for example).