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: 
  1. 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
  2. Grand Teton National Park in Wyoming and the Triangle X Ranch
  3. National Mall and Memorial Parks in Washington, D.C. with the Tourmobile
  4. Point Reyes National Seashore in California with the Drakes Bay Oyster Farm
  5. Mount Rainier National Park in Washington with Rainier Mountaineering Inc.
  6. 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.

1.  Independence National Historical Park in Pennsylvania involving the dispute between the NPS and its agent - the Independence Visitor Center Corporation with The Constitutional Walking Tour of Philadelphia

This is a David v. Goliath fight between a small business - The Constitutional Walking Tour and its entrepreneurial owners vs. the National Park Service and its agent, the Independence Visitor Center Corporation (IVCC). At the nearly 400 national parks across the country where commercial visitor services occur (i.e., Yellowstone, Yosemite), the concessions award process as required by the National Parks Omnibus Management Act of 1998 (Concessions Act) is followed - however, that is not the case in Philadelphia.

In fact, the NPS and Independence Visitor Center have negotiated back-room deals and arbitrarily dictated which vendors can do business at the Independence Visitor Center complex (inside of Independence National Historical Park), thereby suppressing consumer choice and the free market in the pursuit of random and unfair regulation cloaked as their "significant discretionary authority".

On April 27, 2009, Congressman Robert Brady wrote to Interior Secretary Ken Salazar,
“[e]qually disturbing is that these [concessions] opportunities have not been offered equally and on reasonable and non-discriminatory terms to other vendors at the IVC [Independence Visitor Center] including The Constitutional, which conducts its tours in the INHP area.”
The NPS and Independence Visitor Center have not followed the Federal laws for awarding concessions contracts at INHP, including at the Independence Visitor Center, which call for transparent processes that are competitive, independent and appealable.

Rather than grant the National Park Service discretion in its dealings with concessioners, Congress established “carefully controlled safeguards against unregulated and indiscriminate use” of the parks in the National Parks Omnibus Management Act of 1998, which governs all national park public accommodations, facilities and services, including guided tours such as those offered by The Constitutional Walking Tour.

The arbitrary and capricious actions of the National Park Service caused The Constitutional Walking Tour to file litigation in July 2009 in Federal Court in the Eastern District of Pennsylvania. (For some examples of the NPS's arbitrary and capricious actions, watch the video that The Constitutional Walking Tour published on this blog.)

Unfortunately, by Order and Opinion dated March 31, 2011, the United States District Court for the Eastern District of Pennsylvania granted the National Park Service's Motion to Dismiss. The Honorable C. Darnell Jones, II dismissed Plaintiffs’ Federal claims for violations of the Administrative Procedures Act and violations of the Plaintiffs' Constitutional rights. Judge Jones declined supplemental jurisdiction over Plaintiffs’ state law claims against the Independence Visitor Center Corp. To that end, Judge Jones dismissed without prejudice all claims against the Independence Visitor Center Corp. and remanded all claims against the Independence Visitor Center Corporation to be brought in the Philadelphia Court of Common Pleas.

Judge Jones ruled that while the National Park Service is governed by the NPS Organic Act, the Omnibus Management Act and the Concessions Management and Improvement Act, the NPS, for all intents and purposes, is not bound to follow any of these acts since the NPS can rely on its own discretionary judgment instead. This is a fundamental blow to the confidence that any national park concessionaire or commercial service operator can have in the stability of its agreement with the NPS, and moreover how the NPS is governed to by laws, regulations and policys to equitably deal with commercial operations.

The Case Documents can be found here for both:
  • United States District Court for the Eastern District of Pennsylvania - Case Number: 2-09-cv-03083
  • United States Court of Appeals for the Third Circuit Court- Case Number: 11-2146
As previously detailed in this blog, the National Park Service and its agent - the Independence Visitor Center Corporation in Philadelphia - have conspired together in various ways, all to circumvent the laws, regulations and policies governing the NPS:
  
2. Grand Teton National Park in Wyoming with the Triangle X Ranch

On October 19, 2011, the Jackson Hole News & Guide reported,
"Three members of the Turner family should be able to inhabit and operate the National Park Service-owned Triangle X Ranch for the rest of their lives, according to suit filed Monday. The lawsuit arose after the Park Service on Sept. 30 began soliciting proposals for the Triangle X Ranch concession, which can accommodate up to 80 guests at one time. The winning concessionaire would continue operating the dude ranch near Moran, an operation that has been a part of the Turner family for 85 years... Members of the Turner family have tried for more than a year to make their case to officials at Park Service headquarters in Washington, D.C., and the regional office in Denver, to no avail, John Turner said. 'We were just shocked and surprised that the Park Service in Washington suddenly launched the entire operation into a national competitive process without the decency of even a response to our requests,' he said."
On November 18, 2011, The New York Times reported,
"In September [2011], the National Park Service, citing a 1998 federal law requiring competition for business concessions in the parks [National Parks Omnibus Management Act of 1998], finally threw open the contract for running the Triangle X Ranch, which includes back-country camping, horseback riding and wrangling, to bidding. Until then, the family had been granted extensions of its previous contract."
"The family, led by John F. Turner, the director of the U.S. Fish and Wildlife Service in the administration of the elder President George Bush, fired back last month with a lawsuit in Federal District Court in Cheyenne. The suit accuses the Park Service of violating contractual promises first made by Mr. Rockefeller’s land agents in 1929 when the family sold the Triangle X property to Mr. Rockefeller’s Snake River Land Company -- promises that the suit says were made concrete and inviolate in the 1950 act of park incorporation [Grand Teton National Park Act, September 1950]."
The irony is that in Grand Teton National Park, the National Park Service is involved in a lawsuit because it claims that a 1988 Federal law [National Parks Omnibus Management Act of 1988 or "Concessions Act"] requires competition for business concessions. However, at Independence National Historical Park in Philadelphia, the National Park Service has circumvented the same National Parks Omnibus Management Act of 1998 that calls for concessions to be awarded via open processes that are competitive, independent and appealable. This is a classic example of the random and arbitrary treatment by the National Park Service.

Specifically, the NPS has argued that Public Law 106-131 (Gateway Visitor Center Authorization Act) controls the operation of the Independence Visitor Center inside of Independence National Historical Park in Philadelphia, and as such, the Gateway Visitor Center Authorization Act supersedes the Concessions Act at Independence National Historical Park.  To that end, NPS has argued in Federal court,
"'[i]t is a well established canon of statutory construction that when two statutes cover the same situation, the more specific statute takes precedence over the more general one.' Coady v. Vaughn, 251 F3d 480, 484 (3d Cir. 2011) citation omitted." (Document 18-2, Filed 11/23/99 by NPS, Federal Defendants' Motion for Leave to File Reply in Support of Motion to Dismiss).
In other words, the NPS has argued that the Concessions Act, Management Act and Organic Act are all superseded by the Gateway Visitor Center Authorization Act, and as a result, the NPS does not have to follow the Concessions Act at Independence National Historical Park in Philadelphia.

The Constitutional Walking Tour has argued that Public Law 106-131 does not supersede the Concessions Act.  However, in the Grand Teton case, it certainly appears that the Grand Teton National Park Act supersedes the Concessions Act, specifically for the Triangle X Ranch since the Grand Teton National Park Act recognizes the rights of the Turner family that pre-existed the Grand Teton National Park Act of 1950.

The bottom line is that in the Triangle X case, the National Park Service has argued that the Concessions Act trumps the Grand Teton National Park Act of 1950, but in the case of The Constitutional Walking Tour, the NPS has successfully argued that the Gateway Visitor Center Authorization Act trumps the Concessions Act. It seems that the NPS cannot have it both ways.


3. National Mall and Memorial Parks in Washington, D.C. with 
Tourmobile

On November 22, 2011, Joseph D. West, Esq., counsel to the National Coalition to Save Our Mall, requested that Mary Kendall with the Office of the Inspector General of the U.S Department of the Interior investigate the issue of transportation and circulation on the National Mall,
"It is fast becoming readily apparent that the biggest impediment to solving the transportation and circulation problem on the National Mall is none other than the [National] Park Service. Perhaps this should not come as a surprise given that, after all, this is the same Park Service that improperly and illegally supported a single concessionaire's exclusive rights to provide transportation services on the Mall for over two decades, going as far as to allow its officials to publicly state that Tourmobile "by law has full rights within the park," and that "[t]hey're our concessionaire ... [t]hey are us," while generating $1,660,990 in franchise fees for itself from 2004 through 2008. [4] The events of the past two weeks, viewed in the context of the past two decades, at the very least raises the specter of a self-interested Park Service that does not act in the best interest of the public. And given what we view as a rather incestuous relationship between the Park Service and the Tourmobile over decades (which inured to the economic benefit of both parties), this process could be viewed cynically as one designed to confer some vestige of propriety and legality upon the formerly improper and illegal contract with the Tourmobile." (emphasis added)
"In light of the seriousness of the ongoing deficiencies in, or even absence of, fair and open competition for transportation services on the Mall, we feel compelled to bring this issue to your immediate attention as yet another example of the Park Service's "culture of expediency" that "values expediency in contracting over protecting both the best interest of the public and the accountability, integrity and transparency in [ ] acquisition practices." [5] (emphasis added)
On July 23, 2011, The Washington Post published an Opinion by David Alpert, the founder and editor of the Greater Greater Washington blog, entitled "The Grand Canyon or Logan Circle? It's all the same to the Park Service",
"Millions of people visit the [National] Mall each year, and this weekend, visitors will struggle with stifling heat and humidity. Wouldn’t it be great if they could pick among several options to get around, including taking a bus or riding a bike? What’s stopping them? A bureaucratic mentality at the National Park Service that insists on applying the same regulations at the Grand Canyon and Logan Circle, without recognizing the vastly different role that parks play in urban settings..."
"The Park Service justifies much of this inflexibility by declaring that it’s essential to apply an identical set of rules to every park, from Yellowstone to the tiniest triangle on Pennsylvania Avenue." (emphasis added)
In spite of the National Park Service having insisted that an identical set of rules is required to be consistently applied from one unit of the NPS to another unit across the United States, the National Park Service has nonetheless acted randomly and arbitrarily once again, and its actions are improper.

On October 31, 2011, after 42 years of enjoying its monopoly service, Tourmobile ceased operations in Washington, D.C.


4. Point Reyes National Seashore in California with the 
Drakes Bay Oyster Farm

On March 24, 2011, The New York Times, reported,
"The question at the core of the seven-year-old feud in California’s Marin County is whether an oyster farm [Drakes Bay] at Point Reyes National Seashore should be allowed to continue operations after 2012."
On August 11, 2011, three former Northern Californian legislators wrote to the Secretary of the Interior, Ken Salazar,
"It seems highly possible to us that the there are elements in the [National] Park Service Administration, which have bad a secret agenda for some years to drive out not only the oyster farm, but the privately-leased ranches as well."
On September 2, 2011, Senator Dianne Feinstein wrote to Secretary of the Interior, Ken Salazar,
"Given the ongoing controversy about the [National] Park Service's use of scientific data at Point Reyes National Seashore, I believe it is very important that all scientific papers in this environmental review are independently evaluated. The Marine Mammal Commission asked statisticians to review a recent paper by Point Reyes scientist Ben Becker. Director Tim Ragen is convening a meeting with Marine Mammal Commission statisticians to review and discuss the findings. I believe that the Commission must have an opportunity to report their findings before the Draft Environmental Impact Statement is released. The Park Service has refused to delay its release in order to incorporate this review. This action shows a continued lack of accountability at the Point Reyes National Seashore." (emphasis added)
On October 20, 2011, Congressman Darrell Issa, Chairman of the Committee on Oversight and Government Reform from the United States House of Representatives, wrote to the Secretary of the Interior, Ken Salazar,
"It has come to my attention that scientific misconduct by National Park Service (NPS) personnel may be jeopardizing the right of a small business to operate in Marin County, California. Since 2007, the NPS has been advocating that the Drakes Bay Oyster Company (DBOC) cease operations at Point Reyes National Seashore because - according to NPS - the oyster farm is harming the local harbor seal population. Allegations that NPS knowingly relied on flawed science to support that conclusion as part of an effort to remove DBOC have come from a wide range of stakeholders and disinterested parties. [1] If true, the NPS, a bureau of the Department of the Interior (DOl), will have closed the doors of a family-owned small business without a valid scientific basis... In this matter, the alleged misconduct is serious, and it could result in the loss of the Lunny family's business, which employs a number of local residents."  [1] See, e.g, Felicity Barringer, A Park, an Oyster Farm and Science, N.Y. TIMES, Mar. 24, 2011. (emphasis added)

5. Mount Rainier National Park in Washington with Rainier Mountaineering Inc.

On October 1, 2011, The Seattle Times reported,
"In 2002, the [Mount Rainier's] park's superintendent [David Uberuaga] sold his home to the man [Peter Whittaker] who had a multimillion-dollar monopoly offering climbing-guide services [Rainier Mountaineering Inc.] at the park [Mount Rainier National Park]. Details of the questionable land deal came to light only recently."
"Details of the questionable land deal came to light only recently ­ through Seattle Times federal public-records requests in 2010 that eventually produced several hundred pages of redacted documents. A Times investigation, which also included numerous interviews and other public records, offers a rare look at the business side of Mount Rainier National Park, the state's iconic tourist draw and a global climbing mecca."
"It also raises questions about National Park Service promotion practices. This summer, Uberuaga was rewarded with one of the most prestigious posts in the Park Service: superintendent of Grand Canyon National Park, which boasts some of the nation's richest concessions contracts, with $145 million in gross annual revenues."
"Accusations of untoward chumminess between Mount Rainier National Park and RMI are not new. Competing guide companies had groused about RMI's virtual monopoly on Rainier long before the climbing concession became the $4 million-plus annual business it is today."
"RMI, founded in 1969 by Peter Whittaker's father, Lou, and a partner, had a stranglehold on paid Rainier climbing-guide services for more than three decades. Uberuaga was a park administrator for much of that time."
Given the considerable problems with the "public-private partnership" between the National Park Service and Independence Visitor Center Corporation in Philadelphia (as detailed above), it is striking to note that on October 1, 2011, The Seattle Times also reported the following:
“But Whittaker also concedes the timing of the transaction 'looks very cozy and close. I understand how people could look at that and think there was something going on. But I have nothing to hide.'"
"He did pay a 'premium' price for the property, he said. He had hoped to use the property for a new welcome center and climbing museum, a public/private partnership that for now, at least, lacks any public financing." (emphasis added)

6. Grand Canyon in Arizona with The Coca-Cola Company

On November 9, 2011, The New York Times reported,
"Weary of plastic litter, Grand Canyon National Park officials were in the final stages of imposing a ban on the sale of disposable water bottles in the Grand Canyon late last year when the nation’s parks chief abruptly blocked the plan after conversations with Coca-Cola, a major donor to the National Park Foundation."

Economic Impact
To provide some perspective on the economic impact of the of the National Park Service system, when the Federal government shutdown was looming in April 2011, CNN reported that "[a]n average of $32 million a day in national parks revenue could be shut off if the Beltway showdown results in a government shutdown, officials say." and that a government shutdown would impact "some 800,000 daily visitors" to NPS units.

CNN also reported that David Barna, a spokesman for the National Park Service, said the following regarding the micro level economic impact of many parks,
"These parks are the economic engines of some communities,... They're often the largest employer in an area," referencing a network of restaurants, shops and hotels that often surround historic sites.”
  
Exhibits

Overview
Independence National Historical Park
Grand Teton National Park
National Mall and Memorial Parks
Point Reyes National Seashore
Mount Rainier National Park
Grand Canyon

Notes
Citations from National Mall and Memorial Parks/Tourmobile section above:
[4] "See Jessica Gould, Park Service Can't Advertise DC Circulator, THE CURRENT (Wash., D.C.), July 15, 2009, at 3, 20; see also Full Access to the Mall, NORTHWEST CURRENT (Wash., D.C.), Aug. 5, 2009, at 8. Steve Lorenzetti, Deputy Superintendent for the National Mall and Memorial Parks, is quoted as saying: "It's an awkward situation ... We have a concessionaire who by law has full rights within the park. It's not allowed for anyone else but Metro [at its Smithsonian station] to collect fares ... It's not our intent to have an insular park in the center of the city ... But currently, Tourmobile views the Circulator as competition." Id. Lorenzetti later added, "[t]hey're our concessionaire ... [t]hey are us." Id.

[5] "U.S. Department of Interior, Office of Inspector General, Sole Source Contracting: Culture of Expediency Curtails Competition in Department of the Interior Contracting, Report No. W-EV-MOA-0001-2007 (February 2008)."
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Posted by The Constitutional Walking Tour of Philadelphia at 10:26 AM
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