[GeoStL] NPS response to letter on caching in NPS land
- From: "Jim Bensman" <jbensman1@xxxxxxxxxxx>
- To: <geocaching@xxxxxxxxxxxxx>
- Date: Sat, 16 Nov 2002 14:05:34 -0600
Here is the letter I got from the NPS yesterday.
Here is a draft of a response I plan to send Monday. Comments and
suggestions welcome
Noel Poe November 16, 2002
Superintendent
Ozark National Scenic Riverways
404 Watercress Drive
PO Box 490
Van Buren, MO 63965
OZAR_Superintendent@xxxxxxx
Dear Superintendent Poe:
Thank you for your November 13, 2002, letter and returning my cache (minus
some of the contents). I note the NPS returned my cache instead of replacing
it in the place where it was illegally and unconstitutionally removed. I
also note another cache, Children of the Bees,1 was also recently forbidden
in the Ozark National Scenic Riverways. Thus, it appears the NPS have no
intention of complying with the Constitution, Federal law, NPS regulations,
and NPS policies. The letter, however, was not exactly clear as it stated,
"we ask for you cooperation in refraining from placing geocaches in the park
. . . so [geocaching] is discouraged." (Emphasis added.) Please clarify if
the NPS is forbidding me from putting my cache back by the Rounds Springs
take out and campground? Is the NPS saying geocaches will not be allowed
anywhere in ONSR? If the NPS is in fact banning geocaching everywhere in the
OZNR, this is illegal and unconstitutional. I also note the letter did not
address the legal basis I gave why the NPS cannot outright ban geocaching.
Generally I have found when agencies think they are acting legally, they
will not refuse to address the issue like your letter did. Why did not the
NPS address its legal responsibilities?
My first letter asked:
Please explain what is wrong with the site I hid my cache in. If the site
is too sensitive for caching, how can the NPS have a campground and canoe
launching area right by it?
The letter did not mention or address this. Should I take this to mean the
NPS agrees there is no problem with the site I selected? If not, why did not
the letter respond?
My letter also stated:
Let's look at what the NPS allows in the ONSR. Jet boats and their
two-cycle engines spew oil in the river. They cause much more damage than
geocaching could ever cause. I've been chased by them before and they rarely
slow down when they zip by you in your canoe. Their noise also disrupts the
peace and quiet of the river. I also recall the NPS authorizing large horse
rides on the ONSR in spite of environmental problems in the past. I also
note how the NPS has allowed snowmobiling in Yellowstone and Grand Teton
when the NPS's analysis has found it is damaging the park. Yet we are told
there is absolutely nowhere on NPS managed land that geocaching can occur.
Please explain to me how the NPS can allow all these other kinds of
activities and then claim there is absolutely nowhere on NPS managed land
where geocaching can occur.
The letter fails to address this. I believe I deserve an explanation for
this.
What the NPS is proposing to do with snowmobiles in Yellowstone and Grand
Teton (I have visited these parks dozens of times) demonstrates how absurd
and unreasonable the NPS's position is. (I agree with the NPS's previous
decision to ban the snowmobiles.) The NPS is now proposing to allow massive
numbers of snowmobiles in these parks when studies have shown they are
harming wildlife. Additionally, the EPA has found their emissions are
already harming NPS employees. Yet the NPS appears to not be allowing
geocaching anywhere in the ONSR when geocaching can easily be done without
harming park resources and park employees.
The letter stated:
The National Park Service interpretation of the Code of Federal
Regulations indicates that leaving a geocache unattended violates Section
2.22(a) of 36 CFR. Leaving containers with unknown contents strewn about the
landscape is inconsistent with the orderly management of the park area, so
the activity is discouraged. Regulations provide the superintendent some
discretion in allowing individuals to leave property unattended for more
than 24 hours. The intent of providing this discretion was to allow for
necessary activities such as leaving vehicles at trailheads for several
days.
Can you please provide me a copy of the document that contains this NPS
interpretation? Can you also provide me a copy of any NPS guidance2 on
dealing with geocaching?
The use of "strewn about the landscape" is clearly wrong. Geocaches are
hidden and concealed. For example, my cache was hidden in a hollow tree and
covered with rocks, leaves, and sticks. What is the NPS's basis for using
the term "strewn?"
The letter fails to address my point:
The regulations do not define, unattended, so the dictionary definition is
controlling, "Not being attended to, looked after, or watched: an unattended
fire." American Heritage Dictionary. I was attending to, looking after, and
watching the cache.
These are criminal regulations and the 8th Circuit Court of Appeal has
held, "ambiguities in criminal statutes should be resolved in favor of the
defendant." Free Enterprise Canoe Renters Association of Missouri v. Watt,
711 F.2d 852, 856 (8th Cir. 1983). There is no way the NPS's strained
interpretations of these regulations could hold up under this standard.
Please address it.
As to the "orderly management of the park area" comment, the Federal
Register explanation for the regulations state:
Paragraph (b) sets forth the criteria under which property may be
impounded by the superintendent. These criteria are designed to provide
protection for visitor property from fire, flood or other casualty; to
protect park resources from vehicles, vessels or other property that for
reasons of mechanical failure, poor maintenance, or other factors are
damaging park resources or may damage park resources unless removed to a
less sensitive location; to ensure public safety by impounding cars parked
near fire hydrants, on blind curves or other property that may present a
public hazard; to ensure orderly management by impounding vehicles, vessels
or other property that interfere with public transportation systems, are
illegally registered, or impede emergency services or otherwise obstruct
park operations by their illegal presence in a specific area.
48 FR 30252, 30269 (Emphasis added.)
Please explain how a cache hidden in a tree between the canoe launch and
campground is inconsistent with the orderly management of the ONSR.
The letter states:
Section 8.2.2 of the National Park Service Management Policies states,
"The Service will monitor new or changing patterns of use or trends in
recreational activities, and assess their potential impacts on park
resources. A new form of recreational activity will not be allowed within a
park until after an environmental analysis has determined that it will not
result in unacceptable impacts on park resources."
The letter gives no explanation for citing this. Thus, the question is has
the NPS assessed the potential impacts on park resources as required by this
policy? If not, why not? If it has been done, please provide me a copy.
I would point out that this is merely a policy and if it conflicts with the
Constitution, a law, or regulations, the Constitution, law, or regulation
would be controlling. As my previous letter points out a prohibition on
geocaching is unconstitutional and illegal.
Furthermore, this statement cannot be construed as a prohibition against new
forms of recreation. Prohibitions such as this must be in a regulation or
law. More importantly, the Administrative Procedures Act (5 USC ? 503)
requires the NPS to go through a formal rulemaking process (i.e., take
comments, publish notice in the Federal Register, etc.) before prohibiting
activities like this. I cannot find any record of the NPS doing this.
My previous letter points to NPS policies that require the NPS to allow
geocaching. Reading everything in context, this policy merely prohibits
taking action to allow a new recreational activity without first doing an
analysis to show there would not be unacceptable impacts. As I have
previously pointed out, there are no regulations that currently prohibit
geocaching.
The letter stated:
Some cases of geocaching have involved burial of the caches; your cache
however was not buried. Soil and subsequent disturbance of plants is also a
violation of 36 CFR, Section 2.1.
Can the NPS be more specific and give the complete citation to the
regulation you refer to? There are several pages of regulations under 36 CFR
? 2.1. The point also eludes me since you admit my cache was not buried.
The regulations state:
Leaving property unattended for longer than 24 hours, except in locations
where longer time periods have been designated or in accordance with
conditions established by the superintendent.
36 CFR ? 2.22(a)(2),
Has any place (such as canoe parking areas) where property can be left
unattended been established on the ONSR? If so, please identify them and
provide the NPS document designating the area. Has the NPS set up any
conditions allowing unattended property for more than 24 hours? If so,
please provide a copy of the conditions.
Finally, assuming placing a cache is "leaving property unattended for longer
than 24 hours," are you willing to establish conditions to allow it? If not,
why not.
Sincerely,
Jim Bensman
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