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Parks as Gyms? Recreational Paradigms and Public Health in the National Parks

Published online by Cambridge University Press:  06 January 2021

Jay D. Wexler
Jay D. Wexler*
Affiliation:
Boston University School of Law
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Extract

When scholars and policymakers think about the relationship between public health and environmental law and policy, they likely think first about controlling pollution and other toxic substances. As other articles have amply demonstrated, water pollution, air pollution, and other environmental toxins can have significant deleterious effects on the public's health. Scholars rightly pay serious attention to these relationships, and policymakers wisely devise methods and strategies to ameliorate the public health risks posed by these polluting substances.

Although pollution control might be the most obvious and important intersection between environmental policy and public health, legal and policy decisions regarding the management and preservation of the nation's natural resources potentially also significantly affect the public's health. Preserving plant and animal species, allocating water resources, and managing the nation's public lands, just to name a few examples, all potentially bear on matters of public health and safety.

Type
Article
Information
American Journal of Law & Medicine , Volume 30 , Issue 2-3 , June 2004 , pp. 155 - 188
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2004

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References

1 See, e.g., Susan W. Putnam & Jonathan Baert Wiener, Seeking Safe Drinking Water, in RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT 124 (John D. Graham & Jonathan Baert Wiener eds., 1995) (analyzing the relationship between drinking water pollution, treatments for that pollution, and disease); Robert, F. Blomquist, Senator Edmund S. Muskie and the Dawn of Modern American Environmental Law: First Term, 1959-1964, 26 WM. & MARY ENVTL. L. & POLY REV. 509, 580 n.272 (2002)Google Scholar (citing the Senate Air Pollution Study which linked numerous deaths to air pollution); Kristi, Fettig, Criminal and Civil Remedies for Transboundary Water Pollution, 15 TRANSNATL LAW. 117, 121 (2002)Google Scholar (explaining that toxic environmental exposure has been linked to lupus, cancer, and anencephaly); Debra, L. Hart-Munchel, Hybrid Cars: How They Can Reduce American Air Pollution and Oil Consumption, But Why They Are Not Replacing Traditional Gas Guzzling Cars and Trucks Just Yet, 10 PENN ST. ENVTL. L. REV. 35, 36-37 (2001)Google Scholar (listing the effects car pollution has on public health); John, Charles Kluge, Farming by the Foot: How Site-Specific Agriculture Can Reduce Nonpoint Source Water Pollution, 23 COLUM. J. ENVTL. L. 89, 94 (1998)Google Scholar (linking pesticides to cancer); Anthony, D. Moulton et al., Public Health Legal Preparedness for the 21st Century, 30 J.L. MED. & ETHICS 141, 141 (2002)Google Scholar (explaining that one factor in the rise of chronic disease is environmental toxins).

2 The two areaspollution control and natural resource preservationare obviously interrelated in many respects. One area of intersection of particular relevance to this Article is the problem of air pollution in the national parks, long recognized as a significant concern. For more on this problem, see, for example, Richard, J. Annson Jr., Funding Our National Parks in the 21st Century: Will We Be Able to Preserve and Protect Our Embattled National Parks, 11 FORDHAM ENVTL. L.J. 1, 6-12 (1999)Google Scholar (describing pollution in the national parks, including air pollution in the Grand Canyon and Great Smoky Mountain National Parks, water pollution in the Everglades National Park, among others, and the leaking of sewage into waterways and the Old Faithful geyser in Yellowstone National Park); Robert, L. Glicksman, Pollution on the Federal Lands I: Air Pollution Law, 12 UCLA J. ENVTL. L. & POLY 1, 8-12 (1993)Google Scholar; SIERRA CLUB, AIR QUALITY IN MANY NATIONAL PARKS SIMILAR TO MAJOR CITIES, available at http://www.sierraclub.org/cleanair/factsheets/pollutedparks.asp (last visited June 22, 2004).

3 Legal scholars have not written much about using public lands policy to promote public health. For one analysis of the potential benefits of using public lands for public health purposes, see Richard, A. Goodman & Marc, L. Miller, Public Lands for the Public's Health, 33 ENVTL. L. REP. 10217 (2003)Google Scholar. Goodman and Miller focus on state parks rather than national parks. State parks raise somewhat different issues than national parks. In some respects, of course, state (and local) parks are similar to national parks, in that both are public lands presumably set aside for both enjoyment and preservation purposes. In other respects, they are different. For example, national parks, because of their national character, probably play a more substantial symbolic role in how Americans understand their relationship with nature than do state parks.

4 See, e.g., Bradford, C. Mank, Protecting Intrastate Threatened Species: Does the Endangered Species Act Encroach on Traditional State Authority and Exceed the Outer Limits of the Commerce Clause, 36 GA. L. REV. 723, 788-89 (2002)Google Scholar (describing potential pharmaceutical uses for plant species); John, Copeland Nagle, Playing Noah, 82 MINN. L. REV. 1171, 1208 (1998)Google Scholar (noting potential medicinal uses for plant species); John, Copeland Nagle, Biodiversity and Mom, 30 ECOLOGY L.Q. 991 (2003)Google Scholar (describing medicinal use of the Pacific yew tree).

5 See, e.g., Rebecca, W. Watson, Ecosystem Management in the Northwest: Is Everybody Happy?, 14 NAT. RESOURCES & ENV't 173, 175-76 (2000)Google Scholar (citing General Accounting Office report indicating that the risk of forest fires to human health and safety is increasingly grave).

6 See, e.g., Editorial, Ruinous Riders, BOSTON GLOBE, June 29, 2003, at D10 (quoting Interior Department study finding that snowmobile use in Yellowstone National Park would result in risks for employee and visitor health).

7 See, e.g., Philip Harvey, An Analysis of the Principal Strategies That Have Influenced the Development of American Employment and Social Welfare Law During the 20th Century, BERKELEY J. EMP. & LAB. L. 677, 679-80 (2000) (Unemployment is associated with severe mental and physical health problems ); id. at n.6 (citing studies); Colin D. Mathers & Deborah J. Schofield, The Health Consequences of Unemployment: The Evidence, 1998 MED. J. AUSTL. 168, 178-82 (concluding after survey of recent studies that there is reasonably good evidence that unemployment is detrimental to health).

8 One-third of the lands in the United States are public lands under federal control. See ROBERT V. PERCIVAL, ENVIRONMENTAL LAW: STATUTORY SUPPLEMENT AND INTERNET GUIDE 2003- 2004 931 (2003). Four agencies are primarily responsible for managing the public lands. Id. The National Park Service (Park Service or Service), an agency within the Department of the Interior, manages the national parks and other units of the Park Service System, including most national monuments. See National Park Service Organic Act, 16 U.S.C. 1 (2000); infra note 12 (describing various units of the system). The U.S. Fish and Wildlife Service, an agency within the Department of the Interior, manages national wildlife refuges under the National Wildlife Refuge System Administration Act. See 16 U.S.C. 668dd-668ee. The U.S. Forest Service, an agency within the Department of Agriculture, manages the national forests under the Forest and Rangeland Renewable Resources Planning Act, as amended by the National Forest Management Act, id. 1600-1614, and the Multiple-Use Sustained-Yield Act, id. 528-531. The Bureau of Land Management, an agency within the Department of the Interior, manages the remaining lands under the Federal Land Policy and Management Act, 43 U.S.C. 1701-1785.

9 See infra text accompanying notes 29-74.

10 These preventative and proactive measures I discuss here should be distinguished from the host of measures that are taken with respect to the public lands that may have the incidental effect of improving public health or safety but which are not taken with that purpose in mind. These measures are of course important, but they are not the subject of this Article.

11 In 2002, the Interior Department and the Park Service designated twenty-six new trails for public use, and specifically for public health purposes. See Secretary Norton to Announce 26 New National Recreation Trails and Promote Pathways to Health at C&O Canal Tomorrow, U.S. NEWSWIRE, May 30, 2002, available at 2002 WL 22067855. See also Carol Hardy Vincent, National Park Management and Recreation, CONGRESSIONAL RESEARCH SERVICE, Sept. 5, 2003, at 10-11, available at http://www.ncseonline.org/NLE/CRS/abstract.cfm?NLEid=23581 (describing recent legislative activity on trails); CENTERS FOR DISEASE CONTROL AND PREVENTION, PROMOTING PHYSICAL ACTIVITY THROUGH TRAILS, at http://www.cdc.gov/nccdphp/dnpa/physical/trails.htm (last updated June 1, 2004) (praising health benefits of physical activity on trails).

12 The National Park Service is charged with managing not only the national parks and national monuments, but also a bewildering assortment of unit categories, including national preserves, national historic sites, national memorials, national battlefields, national cemeteries, national recreation areas, national seashores, national parkways, and national trails. Robert, L. Fischman, The Problem of Statutory Detail in National Park Establishment Legislation and its Relationship to Pollution Control Law, 74 DENVER U. L. REV. 779, 808-09 (1997)Google Scholar.

13 The Service's organic statute gives the agency great discretion to promulgate rules and regulations to enforce its broad mandate. See 16 U.S.C. 1, 3 (2000) (setting out mandate of the Service and authorizing the Service to make rules and regulations).

14 See infra text accompanying notes 29-74.

15 Platform jumping involves jumping from a tall structure such as a building or a bridge, using a parachute-like apparatus or elasticized cord to prevent hitting the ground at high velocity. For a discussion of such jumping in the national parks, see Alison, Brooke Rubenstein, Comment, The Whole World is Jumpable, Except for the National Parks, 8 U. BALT. J. ENVTL. L. 150, 151-52 (2001)Google Scholar (noting that jumpers continue to jump in the parks in protest despite the Service's ban on such jumping).

16 Activities to Promote Personal Fitness, Exec. Order No. 13,266, 67 Fed. Reg. 42467 (June 20, 2002); see also President's Council on Physical Fitness and Sports, Exec. Order No. 13,265, 67 Fed. Reg. 39841 (June 6, 2002).

17 Press Release, Department of the Interior, National Park Service, NPS Director Lauds President Bush's Initiative to Promote Improved Health Through Visiting National Parks (June 19, 2002), available at 2002 WL 1884327 [hereinafter Press Release].

18 Department of Health and Human Services, Department of Agriculture, Department of the Interior, and Department of the Army, Memorandum of Understanding To Promote Public Health and Recreation, June 19, 2002, available at http://www.usda.gov/news/releases/2002/06/mou0256.htm [hereinafter Memorandum of Understanding].

19 At the time this Article was written, there was no evidence that any widespread changes in actual park management had in fact developed as a result of these actions. For a description of the Administration's current plans with regard to fitness on the public lands, see Gail, Norton & Michael, Suk, America's Public Lands and Waters: The Gateway to Better Health?, 31 AM. J.L. & MED. 237 (2004)Google Scholar.

20 See Goodman & Miller, supra note 3 (describing the obesity problem in the United States); OFFICE OF THE SURGEON GENERAL, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, OVERWEIGHT AND OBESITY: AT A GLANCE, at http://www.surgeongeneral.gov/topics/obesity/calltoaction/fact_glance.htm (last visited June 22, 2004) (relating statistics regarding obesity and related public health risks in the United States) [hereinafter OVERWEIGHT AND OBESITY: AT A GLANCE].

21 See infra text accompanying notes 196-98.

22 For an argument in favor of using state parks to promote the public's health, see Goodman & Miller, supra note 3.

23 Obviously, promoting fitness and exercise in the parks also raises important environmental issues that would be relevant to any comprehensive consideration of whether particular fitness-related projects should be implemented. Although I occasionally refer to environmental issues in this Article, they are not the Article's main concern. My lack of attention to environmental arguments is not intended to denigrate the importance of those arguments in any way.

24 JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS: REFLECTIONS ON THE NATIONAL PARKS (1980). For more on Sax, see infra text accompanying notes 127-62.

25 Id.

26 Id.

27 National Park Service Organic Act, 16 U.S.C. 1 (2000).

28 See, e.g., George, Cameron Coggins & Robert, L. Glicksman, Concessions Law and Policy in the National Park System, 74 DENV. U. L. REV. 729, 734 (1997)Google Scholar (noting that the Service's mission involves an inherent tension between recreation and preservation); Holly, Doremus, Nature, Knowledge, and Profit: The Yellowstone Bioprospecting Controversy and the Core Purposes of America's National Parks, 26 ECOLOGY L.Q. 401, 426 (1999)Google Scholar (Park Service and Department of the Interior officials, as well as commentators, have long described this fundamental mandate as ambiguous at best, paradoxical at worst.); id. at 426 n.124 (citing sources, including one that concludes there is no paradox or contradiction); Fischman, supra note 12, at 780 ([T]he Organic Act sets up an elegant tension between providing for enjoyment (often interpreted as recreation) and leaving units unimpaired (often interpreted as preservation). This tension has stoked the furnace of countless heated arguments over management direction for the Service.); Dennis, J. Herman, Loving Them to Death: Legal Controls on the Type and Scale of Development in the National Parks, 11 STAN. ENVTL. L.J. 3, 8 (1992)Google Scholar ([T]he Act mandated that the parks be open to tourists as well as preserved for future generations, creating a tension that has never been fully resolved.).

29 For an excellent discussion of legislation establishing individual parks, see Fischman, supra note 12, at 789-97.

30 NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE INTERIOR, THINGS TO KNOW ABOUT NATIONAL PARK SERVICE POLICY AND THE NEW DIRECTIVES SYSTEM, at http://www.nps.gov/policy/DOrders/thingstoknow.html (last updated Mar.22, 2004).

31 Congress has specifically given the Secretary of the Interior the authority to promulgate such rules and regulations as he may deem necessary or proper for the use and management of the parks under the jurisdiction of the National Park Service . 16 U.S.C. 3 (2000).

32 Id. 1a-6.

33 Id. 1a-7a.

34 Id. 11, 13.

35 Id. 12.

36 Id. 14d.

37 Id. 17e. For other examples of safety regulations that apply to more than one park unit, see, e.g., id. 460l-22 (prohibiting most solid waste disposal sites within units of the Park System); 460l-14(a) (authorizing exception to certain requirements regarding park facilities for those that are located at specific points and are minimum facilities which are required for the public health and safety); see also Pub. L. No. 100-91, 101 Stat. 674 (1987), as amended Pub. L. No. 106-510 3(a)(2), (b)(2), (2000), 114 Stat. 2363, reprinted at 16 U.S.C.A. 1a-1 (West 2004) (requiring Secretary to conduct study of the impact of aircraft noise on the safety of the park system users, including hikers, rock-climbers, and boaters).

38 See, e.g., id. 26 (Yellowstone National Park); 60 (Sequoia and Yosemite National Parks); 403c-3 (Shenandoah National Park). Clearly there may be other rationales for limiting hunting than safety concerns, but it would seem evident that safety is most likely one of the rationales for the ban on hunting in the parks.

39 Id. 228g. For a discussion of ongoing issues regarding aircraft overflights in the national parks, see Vincent, supra note 11, at 8-10.

40 Id. 410y-3(c).

41 36 C.F.R. 1.5 (2003) (Closures and public use limits). For instances in which the Park Service has exercised this power, see, e.g., 64 Fed. Reg. 19480 (Apr. 21, 1999) (to be codified at 36 C.F.R. pt. 7) (mentioning temporary closure of Kaloko-Honokohau National Historical Park to public nudity under section 1.5); Mausolf v. Babbitt, 125 F.3d 661, 670 (8th Cir. 1997) (upholding closures of certain areas of Voyageurs National Park under 36 C.F.R. 1.5); Fort Funston Dog Walkers v. Babbitt, 96 F. Supp. 2d. 1021, 1022 (E.D. Cal. 2000) (sections of Fort Funston were closed pursuant to 36 C.F.R. 1.5).

42 36 C.F.R. 2.2(b)(2) (authorizing hunting in park areas where hunting is allowed as a discretionary activity by statute if the superintendent determines that such activity is consistent with public safety and enjoyment, and sound resource management principles).

43 Id. 2.4(c) (prohibiting the use of a weapon, trap, or net in a manner that endangers persons or property).

44 Id. 2.13(a)(3) (prohibiting the lighting of a fire, stove, or lantern in a manner that creates a public safety hazard).

45 Id. 2.18(c) (prohibiting the use of snowmobiles except where designated and only when the use of the snowmobile is consistent with safety considerations, among other things).

46 Id. 2.20 (prohibiting the use of roller skates except in designated areas).

47 Id. 2.35 (regulating alcohol use in the parks). The Park Service's regulations regarding alcohol use in the parks are subject to the critique that they insufficiently protect and promote public health and safety. The regulations allow park superintendents to prohibit alcohol consumption within public areas or facilities upon finding that consumption would be inappropriate considering other uses of the location and the purpose for which it is maintained or established, and that [i]ncidents of aberrant behavior related to the consumption of alcoholic beverages are of such magnitude that the diligent application of the authorities in this section over a reasonable time period, does not alleviate the problem. Id. One could argue that superintendents should have broader discretion to prohibit alcohol use within the parks to promote public health. Moreover, the Park Service regulations regarding smoking, which provide that [t]he superintendent may designate a portion of a park area, or all of a portion of a building, structure, or facility as closed to smoking when necessary to protect park resources, reduce the risk of fire, or prevent conflicts among visitor use activities. Id. 2.21(a), is subject to a similar critique. The regulation does not grant discretion to park superintendents to prohibit smoking simply because of a belief that smoking is unhealthy either to the smoker himself or to those who may breathe second hand smoke.

48 Id. 2.38(a) (prohibiting the use, possession, storage, or transportation of explosives, blasting agents, or explosive materials without a permit).

49 Id. 3.6(a) (prohibiting the use of a boat in a reckless or negligent manner, or in a manner so as to endanger or be likely to endanger a person or property).

50 Id. 4.15(a) (requiring use of safety belts by each operator and passenger occupying any seating position of a motor vehicle in a park area).

51 Id. 3.22 (prohibiting the use of surfboards and similar rigid devices at swimming beaches).

52 See, e.g., id. 4.21 (speed limits); 4.22 (unsafe operation of a vehicle).

53 See, e.g., id. 7.16(a)(4) (prohibiting in Yosemite National Park fishing from horseback in any lake or stream); id. 13.46(b) (authorizing superintendent of any Alaskan national park to restrict a route or area to use of dog teams if the superintendent determines that such use is causing or is likely to cause an adverse impact on public health and safety); id. 21.6 (prohibiting the use of hot water therapeutic pools at the Hot Springs National Park by [p]ersons with acute or infectious diseases or discharges of the body, or who lack complete control of their bodily functions).

54 See, e.g., Yellowstone National Park Superintendent's Orders 1.5 (1998) (prohibiting various activities, including [e]ntering into caves, pits or sink holes which are the result of thermal and/or seismic activity, dog sledding, and jumping from the cliffs or from trees in the area known as the Firehold Swimming Area), available at http://www.yellowstoneparknet.com/geninfo/regulations.htm id 2.19 (requiring snowshoe users, when not using trails, to travel only on the left side of the roadway facing traffic and as close as possible to the edge of the roadway).

55 NPS, DOI, FY 20032008 STRATEGIC PLAN 22 (2003), available at http://www.doi.gov/gpra/stratpln.html [hereinafter STRATEGIC PLAN].

56 Id. at 70.

57 NPS, DOI, MANAGEMENT POLICIES 2001 4 (2001), available at http://www.nps.gov/refdesk/mp/ [hereinafter MANAGEMENT POLICIES]. This volume supersedes the previous 1988 volume of management policies. Id. at 5.

58 Id. at 4.

59 Id. (Adherence to policy is mandatory unless specifically waived or modified in writing by the Secretary, the Assistant Secretary, or the Director.).

60 Id. 8.2, at 81.

61 Id. 8.2.5.1, at 85.

62 Id. 8.2.2.4, at 83 (limiting the number and types of facilities to support backcountry hiking to the minimum necessary to achieve a park's backcountry management objectives and to provide for the health and safety of park visitors).

63 Id. 8.2.2.7 (BASE (Buildings, Antennae, Spans, Earth forms) jumpingalso known as fixed object jumpinginvolves an individual wearing a parachute jumping from buildings, antennae, spans (bridges), and earth forms (cliffs). This is not an appropriate public use activity within national park areas, and is prohibited by 36 CFR 2.17(3).).

64 Id. 8.2.5.3, at 85-86 (To provide for the protection and safety of park visitors, the Service will make reasonable efforts to search for lost persons, and to rescue sick, injured, or stranded persons.).

65 Id. 9.1.3.1, at 102 (providing that any hot work [on construction sites], (e.g., welding, use of open flam, grinding) will be done to ensure fire safety at the construction site).

66 Id. 10.2.4.12, at 120 (providing that food concessionaires will be subject to inspections for compliance with applicable health and sanitation requirements).

67 NPS, DOI, DIRECTOR's ORDER 83: PUBLIC HEALTH (Aug. 3, 2003), available at http://www.nps.gov/policy/DOrders/DOrder83.html [hereinafter DIRECTOR's ORDER 83].

68 Directors have issued orders on many topics, including volunteers in the parks (Order 7), fire management (Order 18), uniforms (Order 43), and wetland protection (Order 77-1). See MANAGEMENT POLICIES, supra note 57, at 127.

69 Id. at 5.

70 OFFICE OF POLICY, NPA, DOI, THINGS TO KNOW ABOUT NATIONAL PARK SERVICE POLICY AND THE NEW DIRECTIVES SYSTEM (Feb. 12, 2003), available at http://www.nps.gov/policy/DOrders/thingstoknow.html.

71 DIRECTOR's ORDER 83, supra note 67, IV.

72 Id. V.A (Park managers will reduce the risk of waterborne disease and provide safe drinking water by assuring that drinking water systems are properly operated, maintained, monitored, and deficiencies promptly corrected.).

73 Id. V.B

74 Id. V.D

75 Id. V.E

76 Id. V.F

77 See NPS, DOI, PUBLIC HEALTH PROGRAM, at http://www.nps.gov/public_health/ (last modified Apr. 14, 2004).

78 See supra text accompanying notes 29-74.

79 This is not to say that these bodies are opposed to promoting public health in the parks, or that some members of these bodies have not actually made decisions with regard to park resources at least in part with public health concerns in mind, or that they have not taken steps that have in fact improved the public's health. It is just to say that these bodies have generally not used public health rationales or discourse in the actual documents that set policy for the national parks.

80 Although the original motivations for creating national parks in the first place are a mystery that will never be fully solved, SAX, supra note 24, at 1, some evidence indicates that at least one motivation was to provide the public with somewhere to go to engage in healthy activities. See Doremus, supra note 28, at 441 (The parks were supposed to offer recreation of a kind not available elsewhere, healthful recreation that could inspire, educate and improve those who engaged in it.); Robin, W. Winks, The National Park Service Act of 1916: A Contradictory Mandate?, 74 DENV. U. L. REV. 575, 585 (1997)Google Scholar (noting that the lobbyists for the Park Service often referred to the parks as the nation's playgrounds, as havens of rest, as places where the public might enjoy solitude, recreation, and a sense of good health); Frederick Law Olmsted, The Value and Care of Parks, in AMERICAN ENVIRONMENTALISM: READINGS IN CONSERVATION HISTORY 45, 46-48 (Roderick Frazier Nash ed., 3d ed. 1990) at 45, 46-48 (describing reinvigorative effects of contemplation of natural scenery).

81 See, e.g., MANAGEMENT POLICIES, supra note 57, at 80.

82 This Board is created by statute to advise the Director of the National Park Service on matters relating to the National Park Service, the National Park System, and programs administered by the National Park Service. 16 U.S.C. 463(a) (2000).

83 NPS, DOI, RETHINKING THE NATIONAL PARKS FOR THE 21ST CENTURY 10 (July 2001), available at http://nps.gov/policy/report.htm [hereinafter RETHINKING THE NATIONAL PARKS]; see also id. at 9 (quoting Frederick Law Olmsted as saying that fresh air, contemplation of nature, and a change from everyday habits improved people's physical health and intellectual vigor).

84 See, e.g., 16 U.S.C. 361 (requiring superintendent of Hot Springs National Park to provide and maintain a sufficient number of free baths for the use of the indigent); id. 410jj-1 (declaring a principal purpose of the Kalaupapa National Historical Park in Hawaii to be the provision of a well-maintained community in which the Kalaupapa leprosy patients are guaranteed that they may remain at Kalaupapa as long as they wish); id. 410jj-5 (providing for special needs of leprosy patients in the Kalaupapa settlement); 36 C.F.R. 21.6 (2003) (providing for the use of hot spring pools for therapeutic purposes by patients with prescriptions).

85 I base this conclusion on my own review of the U.S. Code sections located at 16 U.S.C. 1-460LLL, Park Service regulations located at 36 C.F.R. 1-199, and several of the more important policy documents published by the Service. My strong overall impression is that these sources demonstrate nearly no explicit intent to promote public health, exercise, or fitness in the national parks.

86 16 U.S.C. 1 (2000).

87 Id. 460y-1(b)(8).

88 Id. 341 (Acadia National Park); id. 410 (Everglades National Park).

89 Id. 1a-1.

90 Id. For a discussion of the meaning of inspiration in the National Park Service Act, including a suggestion that it might include some notion of public health, see Winks, supra note 80, at 614 (The context makes clear that inspiration refers to the re-creation of the spirit that comes from gazing upon or walking amidst a sublime scene, or from examining an historical remnant relating to an event or achievement presumably inspiring to most Americans; it may, of course, also refer to the inspiration that arises from the healthy use of recreational outlets, mastery over one's body, or simply a sense of well-being.).

91 See, e.g., 16 U.S.C. 81 (2000) (Colonial National Historical Park); id 407bb (National Constitution Center); id. 410nn-1 (San Francisco Maritime National Park).

92 See, e.g., id. 396d(a) (Kaloko-Honokohau National Historical Park, a center for the preservation, interpretation, and perpetuation of traditional native Hawaiian activities and culture).

93 See, e.g., id. 410ii (establishing Chaco Culture National Historical Park to protect archaeological resources).

94 See, e.g., 16 U.S.C. 410qq(b) (2000) (establishing National Park of American Samoa to preserve and protect the tropical forest and archaeological and cultural resources of American Samoa, and of associated reefs, [and] to maintain the habitat of flying foxes).

95 See, e.g., id. 284 (establishing Wolf Trap Farm Park in Virginia [f]or the purpose of establishing in the National Capital area a park for the performing arts and related educational programs); id. 410bbb (establishing New Orleans Jazz National Historical Park to assist in the preservation, education, and interpretation of jazz a it has evolved in New Orleans).

96 Id. 1a-5(c)(3)(A).

97 Id. 1a-7(b). Robert Fischman has pointed out that some statutes establishing specific parks require that management plans for those parks consider additional factors than the ones specified in the organic act, see Fischman, supra note 12, at 792-93, but my review of those establishment statutes revealed no references to public health, fitness, or exercise as a factor that should be included in those plans. This is not to say that fitness, health, or exercise rationales did not motivate members of Congress to create these specific parks, but only to say that these rationales at least did not make it into the text of the establishment statutes. For example, it is quite possible that fitness rationales played some role in motivating members of Congress to create certain recreational areas, such as the Gateway National Recreational Area, which, although not themselves national parks per se, are nonetheless administered by the Park Service. 16 U.S.C. 460cc. But cf. H.R. REP. NO. 92-1391 (1972), reprinted in 1972 U.S.C.C.A.N. 4850-67 (House Report on establishment of Golden Gate National Recreation Area in California, cited at 16 U.S.C. 460cc as legislative history also for the Gateway National Recreational Area, which describes many benefits of the new recreation area but which does not specifically refer to health or fitness as values promoted by the legislation).

98 STRATEGIC PLAN, supra note 55, at 16-20.

99 President Bush is certainly not the first President to encourage citizens to exercise and stay fit. President Kennedy, for example, similarly promoted exercise and fitness. See Ron Hutcheson, Bush's New Workout Program: Trying to Get Americans off the Sofa, MIAMI HERALD, June 20, 2002, at A20 (Four decades after John F. Kennedy tried to whip the country into shape, another White House fitness buff is leading a new effort to get Americans to exercise . Kennedy's fitness campaign in the 1960s had schoolchildren across the country competing in sit-ups, push-ups and other exercises.). Whether President Kennedy's emphasis on fitness had any noticeable impacts on public lands, and the national parks, is unclear. To some extent, Kennedy's initiative in this direction coincided with Mission 66 a program implemented in the 1950s and 1960s to renovate and build new facilities in the parks to keep up with increased use. See Michael McCloskey, What the Wilderness Act Accomplished in Protection of Roadless Areas Within the National Park System, 10 J. ENVTL. L. & LITIG. 455, 458, 458 n.12 (1995). Whether there is any causal relationship between Mission 66 and either President Kennedy's initiative or changing attitudes about fitness is something I have no view on.

100 See Jeff Zeleny, Bush Makes Pitch for Fitter, Healthier America, CHI. TRIB., June 21, 2002, at 11 (observing that the President frequently lifts weights and runs 7-minute miles, completes a hard, fast run every Sunday, a longer run on Thursdays and blends in jogs and indoor exercise in the White House gym during the week).

101 Id.

102 Id.

103 Exec. Order. No. 13,265, 3(b), 67 Fed. Reg. 39,841 (June 6, 2002). Among the members appointed to serve on the Council are Lynn Swann (the Chairman), Marion Jones, and Nomar Garciaparra.

104 Activities to Promote Personal Fitness, Exec. Order No. 13,266, 3 C.F.R. 13266 (June 20, 2002).

105 Id. 1(a).

106 Id. 2(a).

107 Bush Calls for Fitness Activities on Public Lands, ENV't NEWS SERVICE, June 20, 2002, available at 2002 WL 24144264.

108 Id.

109 Id. The Park Service, in connection with the fitness initiative, also opened up a number of trails for use by the public for healthy purposes. See Vincent, supra note 11, at 10-11.

110 Press Release, supra note 17.

111 Id.

112 Memorandum of Understanding, supra note 18, at I.

113 Id.

114 Id. at III

115 Id.

116 Id.

117 Id.

118 Id. at IV. The concluding chapter of the Surgeon General's Report makes some suggestions about how communities and other bodies can promote physical exercise and fitness, including [e]nsuring the availability and accessibility of environments and facilities conducive to exercise, and making sure that such facilities are convenient, affordable, comfortable, and safe. DHHS, PHYSICAL ACTIVITY AND HEALTH: A REPORT OF THE SURGEON GENERAL 247 (1996), available at http://www.cdc.gov/nccdphp/sgr/sgr.htm.

119 Memorandum of Understanding, supra note 18, at IV. It is unclear from the Memorandum exactly what role the national parks are intended to play in the public health initiative. It is possible that the Administration does not intend for them to play a prominent role. The list of legal authorities under which the agreement was entered into does not include the Park Service Organic Act, although it does include the National Trails System Act, another statute administered by the Park Service. Nonetheless, the fee-free weekend, along with the statements made by President Bush and Director Mainella, indicate that the Administration sees the parks as an important part of the initiative. In any event, the analysis provided in this Article is relevant to any sort of reforms of the national parks for public health purposes, whether it be by this Administration or any other future Administration, and regardless of whether the reforms take place under this particular Memorandum.

120 See generally Nathan, L. Scheg, Preservationists vs. Recreationists in Our National Parks, 5 HASTINGS W.-NW. J. ENVTL. L. & POLY 47, 51 (1998)Google Scholar (The determination of which forms of recreation are proper in our national parks has become one of the most volatile controversies in recent history.).

121 See id. at 47 (The controversy revolves around two distinct groups: the preservationists and the recreationists.). Clearly, this way of conceptualizing the conflict is an overgeneralization. See, e.g., SAX, supra note 24, at 115 n.1 (noting that [t]here is no official preservationist position, and obviously no unanimity of view on any controversial question).

122 See Scheg, supra note 120, at 47 (Preservationists see the national parks as unique windows . They believe, therefore, that the national parks should remain pristine. They also believe that limitations on the activities permitted in the parks are necessary in order to accomplish this.).

123 See SAX, supra note 24, at 115 n.1 (By preservationists, I mean those whose inclinations are to retain parklands largely (though not absolutely) as natural areas, without industrialization, commercialized recreation, or urban influences.).

124 See Scheg, supra note 120, at 47 (Recreationists, on the other hand, see the national parks as areas that should be open for everyone to use as they see fit. The recreationists believe that the forms of recreation in which people choose to engage are irrelevant. They resent the preservationists ideals, often referring to the preservationists as elitists.).

125 See, e.g., SAX, supra note 24, at 51 (noting that one element of preservationist advocacy is scientific and truly based on principles of land management); Herman, supra note 28, at 34 (Downhill skiing, golfing, motorized pleasure boating and similar recreational activities are prime examples of the types of activities which may be highly inappropriate for national parks, because they threaten both the natural and social environments of the parks.); Vincent, supra note 11, at 5 (Critics of motorized recreation cite environmental concerns with motorized uses, including noise, air, and water pollution; damage to land, plants, and wildlife ); Ruinous Riders, supra note 6 (noting letter written by eight former Park Service and Interior Department officials to current Interior Secretary Gale Norton, asking her to reverse her policy of allowing snowmobile use in Yellowstone National Park because, among other things, such use would result in air pollution, harm to wildlife, and risks for employees and visitors); SIERRA CLUB, HOW SNOWMOBILES HARM THE PARK, at http://www.sierraclub.org/wildlands/yellowstone/snowmobiles.asp (last visited June 22, 2004) (arguing that snowmobile use in Yellowstone National Park endangers several environmental values).

126 See, e.g., National Parks & Conservation Assn v. Babbitt, 241 F.3d. 722, 727 (9th Cir. 2001) (describing U.S. National Marine Fisheries Service biological opinion that humpback whale population in Glacier Bay Park was being threatened by cruise ship traffic); AMERICAN LANDS ALLIANCE, OFF-ROAD VEHICLES: A GROWING THREAT TO PUBLIC LANDS AND WATERS, at http://www.americanlands.org/forestweb/offroad.htm (last visited June 22, 2004) (explaining that ORV use contributes to soil compaction, destruction of vegetation and the spread of noxious weeds); Dave Havlick, Roaring from the Past: Off-Road Vehicles on America's National Forests, at http://www.wildlandscpr.org/ resourcelibrary/reports/exec_summary.html (last visited June 22, 2004) (stating that a Freedom of Information Act request in 1998 showed that 71% of the responding Forests provided some record of resource damage or motor vehicle violations, and 66% of the responding Forests identified user conflicts (noise, safety and resource disturbances) as a result of ORV use).

127 See, e.g., Herman, supra note 28, at 9-14 (describing negative effects of park overcrowding on natural resources within parks).

128 Although my primary focus in this and ensuing sections of the Article is on raising potential critiques of a fitness paradigm from the perspective of basic park purposes and symbolic functions, rather than from an environmental perspective, I recognize the importance of the environmental issues involved and do not mean to diminish their importance by focusing on these other issues.

129 See, e.g., Holly, Doremus, Nature, Knowledge and Profit: The Yellowstone Bioprospecting Controversy and the Core Purposes of America's National Parks, 26 ECOLOGY L.Q. 401, 407 (1999)Google Scholar (arguing that the National Park Service should not allow commercial bioprospecting in the national parks because it is inconsistent with the inspirational purposes of the parks). See also Douglas, O. Linder, New Direction for Preservation Law: Creating an Environment Worth Experiencing, 20 ENVTL. L. 49, 68-73 (1990)Google Scholar (arguing that decision makers must struggle with tough value conflicts when deciding whether and how to preserve public lands to provide worthwhile experiences for visitors); Fischman, supra note 12, at 811-12 (arguing that the nation must choose among competing goals for the national parks in order to realize the potential of the vast majority of national park system lands which ought to be valued not simply for their individual attributes but also for their contribution toward a larger systemic goal).

130 In a recently published article, Sarah Krakoff draws partially on the work of Sax to critique recent trends in wilderness recreation, such as commercialized mountain climbing, backpacking speed competitions, and adventure programs for business executives. Sarah, Krakoff, Mountains Without Handrails Wilderness Without Cellphones, 27 HARV. ENVTL. L. REV. 417, 426-53 (2003)Google Scholar. Krakoff's article also critiques Sax for adopting an overly anthropocentric view of nature. See id. at 448 (Yet is this inevitable drift toward extremity also embodied in the Sax ideal? The depiction of nature as a place to go to seek improvement, a place guarded closely in national parks and other designated public lands, creates a conceptual gap between nature and humans that obscures the essence of what we seek to experience in naturea dissolution of the self.). Although our articles offer somewhat different perspectives on similar issues, I view our arguments as complementary in large part. For example, Krakoff's argument that the commodification of wilderness experiences erodes the moral-improvement argument articulated by Sax, in that there is wide-spread support for the proposition that the essential contemplative or reflective aspects of wilderness activities have been undermined, id. at 426, is consistent with my position that policy-makers ought to consider the contemplative aspects of the national parks when determining whether to change the dominant paradigm within. Generally speaking, Krakoff applies Sax's thought to wilderness activities generally and seems (at least in my reading of her work) to be speaking primarily to those who engage in wilderness activities, while I am applying Sax's thought to a more limited set of problems (fitness in the parks), and addressing primarily policymakers rather than park visitors. Nonetheless, both articles point out the continuing validity and importance of Sax's work to a broad range of issues. Of course, I do not in this Article explore the possible limitations of Sax's work as Krakoff does, but that is simply because I am using Sax's theories as a way to probe possible limitations of a current policy trend rather than engaging in a full-fledged evaluation of his normative positions.

131 Of course, resources relating to all types of lands (including federal lands that are not national parks) are limited, and thus land managers of all types face problems similar to those that park managers do. Management decisions in national parks might arguably be more difficult than management decisions related to other types of public lands, however, because national parks include some of the most unique and resource-rich public lands in America, and because Congress has given park managers a difficult and arguably paradoxical mandate to balance enjoyment with preservation.

132 Joseph, Sax, Fashioning A Recreation Policy for our National Parklands: The Philosophy of Choice and the Choice of Philosophy, 12 CREIGHTON L. REV. 973, 975 (1979)Google Scholar.

133 SAX, supra note 24, at 2.

134 Id. at 21 (describing recognition by Frederick Law Olmsted that parks established for their scenery would not be as popular as amusement parks).

135 Id. at 13 (describing objection of preservationist Edward Abbey to seeing people using the parks as they use Disneyland, simply as places to be entertained while they are on vacation); id. at 87 (rejecting as a paradigm for the national parks an obtrusive program imprinted on the landscape as at a Disneyland, a completely self-enclosed world where the management affirmatively sets the agenda); see also Robin W. Winks, National Parks Aren't Disneylands, N.Y. TIMES, Apr. 19, 1993, at A19.

136 SAX, supra note 24, at 2.

137 Id. at 12.

138 Id. at 11; see also id. at 14 (The preservationist is like the patriot who objects when someone tramples on the American flag. It is not the physical act that offends, but the symbolic act.); id. at 51 (explaining that objections to snowmobiles and off-road vehicles may be based in value judgments, by attaching symbolic importance to the way people relate to nature). For more on the importance of the parks as national symbols, see Doremus, supra note 28, at 406 (The symbolism of the national parks is nearly as important to the nation as the natural resources they harbor.).

139 SAX, supra note 24, at 33.

140 Olmsted is most well known for designing Central Park in New York City, although as Sax points out, he also played an important role in the early formation of the national parks. See id. at 19- 20. Sax draws heavily on a report written by Olmsted in 1865 entitled The Yosemite Valley and the Mariposa Big Trees, which according to Olmsted's biographer, formulated a philosophic base for the creation of state and national parks. Id. at 19 (quoting Laura Wood Roper).

141 See id. at 12 (criticizing [t]ourism in the parks today as often little more than an extension of the city); id. at 23 (citing with approval Olmsted's argument that people ought not to be allowed to view Niagara Falls from their carriages because this would interpose an urban, artificial element plainly in conflict with the purpose for which the Reservation had been made); id. at 42 (Engagement with nature provides an opportunity for detachment from the submissiveness, conformity, and mass behavior that dog us in our daily lives.); id. at 63 (arguing for a park management policy that would result in a reduction of urbanizing influences); Joseph L. Sax, America's National Parks: Their Principles, Purposes, and Prospects, NAT. HIST., October 1976, at 57, 77 (describing with approval Olmsted's view of the parks as places where [m]odern man [can] have an opportunity to contrast the pace, setting, values and activities that dominate his daily life); id. (quoting Olmsted as saying: We want the greatest possible contrast with the streets and the shops and the rooms of the town . We want, especially, the greatest possible contrast with the restraining and confining conditions of the town.); id. at 81 ([T]he purpose of the parks is to draw people out of the routine of daily life, to create a total and encompassing experience, to change the entirety of their pace and permit the rhythm of the park to take over.).

142 SAX, supra note 24, at 42.

143 See id. at 51-55 (describing process of self-transformation); id. at 61 (arguing that park managers [sh]ould encourage all visitors to try more challenging and demanding recreation); id. at 62 (A policy committed to promoting reflective recreation as one of its major goals would focus on the individual who might be willing to try such an experience, but who is neither experienced nor ready to make a substantial commitment.); id. at 79 (The purpose of reserving natural areas is not to keep people in their cars, but to lure them out.).

144 See id. at 24-25 (describing with approval Olmsted's theory of the parks which would discourage passivity and serve as a prescription for the mass man unreflectively doing what he is told to do).

145 See id. at 45-46 (arguing for reflective or contemplative recreation); id. at 66-67 (If the goal is to encourage contemplative recreation in the parks, the way to do it is diligently to look for ways to meet other recreational demands more effectively at existing sites, and to scrutinize more carefully claims of need and demand.).

146 See id. at 20 (For Olmsted the preservation of scenery is justified precisely because it provides a stimulus to engage the contemplative faculty.); id. at 21 (It is precisely to give the ordinary citizen an opportunity to exercise and educate the contemplative faculty that establishment of nature parks as public places is justified and enforced as a political duty.); id at 25 (describing Olmsted's understanding of contemplative); id. at 61 ([S]timulating the appetite [for reflective recreation] should be a primary function of national parks.).

147 See id. at 33-34 (criticizing off road vehicles as symbols of speed, power, and spectacle); id. at 37 (noting that in some sense, mountain climbing, like off road vehicle use, is characterized by the competitive striving that Olmsted sought to work aside).

148 See id. at 88 (arguing that there is [no] reason to abolish campgrounds suitable for those who do not wish to pay, or cannot afford, nightly hotel prices).

149 See id. at 30-31 (describing backpacking in admiring terms).

150 See id. at 14 (noting that the preservationist sees mountain climbing as promoting selfreliance, as opposed to going up a mountain in an electrified tramway, which is a passive and dependent activity); id. at 35-40 (describing mountain climbing as mainly, though not exclusively, an admirable activity).

151 See id. at 14 (noting that the fly-fisherman is engaged in reducing his technological advantage in order to immerse himself in the natural system); id. at 27-30 (praising fishing).

152 See id. at 14 (arguing that the preservationist associates the motorcyclist roaring across the desert with aspirations to power and domination); id. at 31 (The kind of encounter that routinely takes place in the modern motorized vehicle, or in the managed, prepackaged resort, is calculated to diminish such intensity of experience.); id. at 51 (objecting to snowmobiles and off road vehicles); id. at 75 (If the preservationist does not succeed in reducing the taste for [power-based recreation], he will fundamentally have failed.).

153 See id. at 22 (arguing that Olmsted would have found the modern ski resort an anomaly in the parks because of the crowding, commercialism, obtrusive social pressures, and the inducements to participate in entertainments planned and structured by others.); id. at 67-70 (describing controversy over proposed ski resort in Mineral King Valley); Sax, supra note 141, at 83 (describing why downhill skiing is objectionable but not cross-country skiing).

154 See Sax, supra note 141, at 84-85 (subtly mocking Stephen Mather's early suggestion that the parks should try to attract visitors by building golf courses and tennis courts).

155 Id. at 80-81; see also SAX, supra note 24, at 88 (What do not belong in [national parks] are facilities that are attractions in themselves, lures that have nothing to do with facilitating an experience of the natural resources around which the area has been established.).

156 See SAX, supra note 24, at 80-90.

157 See id. at 14 (The preservationist is like the patriot who objects when someone tramples on the American flag. It is not the physical act that offends, but the symbolic act. Nor is the offense mitigated if the trampler points out that the flag belongs to him, or that flag trampling is simply a matter of taste, no different than flag waving.).

158 See also id. at 13 (For the preservationist is at least as much interested in changing the attitudes of other park users as in changing their activities.); id. at 15 (explaining that the preservationist wants to say to the non-believer: follow me and I will show you how to become the sort of person you really want to be); id. at 59 (arguing that the preservationist's claim is that he knows something about what other people ought to want and how they can go about getting it, and he should not back away from, or conceal that claim).

159 For one such critique, see A.E., Keir Nash, Reflections on the Exclusionary Zoning of American Nature, 79 MICH. L. REV. 1299, 1311-13 (1981)Google Scholar (reviewing Sax's book, Mountains Without Handrails: Reflections on the National Parks).

160 Because my argument in this Article is only that Sax's work raises important questions about fitness in the parks that decision-makers ought consider, and not that Sax's work decisively casts doubt on the fitness initiative, I need not defend Sax in any thorough manner against claims that he is illegitimately paternalistic. Instead, it is sufficient to note only that his arguments are not clearly rendered irrelevant by their arguably paternalistic character, an observation supported by the fact that many government policiesincluding President Bush's fitness initiative itselfare paternalistic in nature.

161 See 43 C.F.R. 11.83(c)(2)(vii) (2002).

162 For a description of these techniques and an application of them to valuation of public lands, see Jan, G. Laitos & Thomas, A. Carr, The Transformation on Public Lands, 26 ECOLOGY L.Q. 140, 226-40 (1999)Google Scholar.

163 SAX, supra note 24, at 88.

164 Id. at 89.

165 Id. at 90.

166 Id. at 88-89 (This, of course, is a matter of setting a tone for a place, but creating the appropriate tone is very much at the heart of the matter. The problem is not hypothetical, as even the most casual observer will notice.); id. at 24 (explaining that Olmsted's attention was focused on the attitude that the visitor brought to the park, and upon the atmosphere that park managers provided for the visitor).

167 Sax, supra note 141, at 82; see also SAX, supra note 24, at 62 (The paradox is that an effective policy will not be advanced simply by establishing more wilderness areas, for no matter how much we enlarge the backcountry, and no matter how small the areas devoted to city-type development and motorized nature-loop drives, those latter places will remain the principal magnets for most park visitors.).

168 When I use the term paradigm here, Im not necessarily referring to a policy that is focused solely on a particular objective, but rather one that is significantly more focused on that objective than the previous policy. Thus, for example, when I refer to parks as schools, I refer to a way of thinking about the parks that would emphasize, to a relatively (and significantly) greater degree than does present thinking, the educational potential for the parks, not a policy that conceives of the parks exclusively as educational institutions (which would be absurd in any event).

169 SAX, supra note 24, at 3.

170 See supra text accompanying notes 129-62.

171 I use the term oases here to signify that the parks are places which provide a respite from the everyday world, much as an oasis in the desert provides a greatly needed source of water in the surrounding dry conditions. See, e.g., THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1210 (4th ed. 2000) (defining oasis as 1. A fertile or green spot in a desert or wasteland, made so by presence of water. 2. A situation or place preserved from surrounding unpleasantness; a refuge). The natural surroundings of an oasis, like those of a park, are critical because of their effects on the human being who enjoys them, not because of their effects on the park. It is unclear to me exactly where Sax falls as between these two poles. It is clear that Sax reveres nature, but most of his argument is focused on managing the parks to promote human flourishing and virtue. For a discussion of this distinction and a critique of Sax for adopting an overly anthropocentric view of nature, see Krakoff, supra note 130, at 453-67.

172 See 16 U.S.C. 1 (2000) (requiring consideration of both preservation and use values).

173 Of course, even under this paradigm, human use may need to be limited because at some point human use degrades the natural environment, thus making the parks unsuitable for their transformative project.

174 For example, if the purpose of the parks is primarily to pay homage to nature rather than to provide respite to humans, park literature (signs, websites, brochures, etc.) might emphasize the natural characteristics of the parks themselves rather than the possible benefits to humans from use of the parks.

175 For example, a parks as temples paradigm might tolerate far less impairment to natural resources than a parks as oases paradigm, if some impairment is consistent with human improvement but not with natural preservation. This might affect whether some activities are allowed in the parks. For instance, biking might have some negative effects on the environment. Those effects might not be so great that the Service would be legally required to prohibit it, so the Service would have discretion to either prohibit the activity or allow it. If the paradigm for the parks is focused primarily on paying homage to the natural environment rather than human flourishing, the Service would be far less likely to allow biking in the parks.

176 RETHINKING THE NATIONAL PARKS, supra note 83, at 1, 3; see also STRATEGIC PLAN, supra note 55, at 3, 36 (noting goal of making sure visitors understand the nation's cultural and national heritage from the parks, as well as improving educational programs linked to school curricula).

177 See Doremus, supra note 28, at 417-18, 417 n.84 (describing long-standing recognition that the parks have a unique potential for scientific research and observing, with citations, that [t]he national parks have been described since their inception as natural laboratories). But see id. at 419 (reporting author's own opinion that the parks do not exist in order to perform or facilitate scientific research and that research itself is not their mission).

178 Id. at 441-42.

179 For a discussion of the theory of civic education, see Jay, D. Wexler, Preparing for the Clothed Public Square: Teaching About Religion, Civic Education, and the Constitution, 43 WM. & MARY L. REV. 1159, 1191-200 (2002)Google Scholar.

180 Memorandum of Understanding, supra note 18, at III.

181 Id. at IV.

182 The Park Service maintains a tremendously informative and easy-to-use website at http://www.nps.gov.

183 The website at http://data2.itc.nps.gov/hafe/bookshop/index.cfm allows users to search for Park Service brochures, charts, handbooks, and posters.

184 See 36 C.F.R. 1.10 (2003) (depicting various symbolic signs that the Park Service will use to designate allowed and prohibited activities, and noting the use of other types of signs is not precluded).

185 For information on interpretive activities in the parks, see MANAGEMENT POLICIES, supra note 57, at 73-77.

186 See id. (describing education and interpretation activities in the parks). For examples of ranger-led activities, see NPS, DOI, YELLOWSTONE NATIONAL PARK, RANGER-LED PROGRAMS: SUMMER 2004, at http://www.nps.gov/yell/planvisit/todo/ranger/index.htm (last updated May 17, 2004).

187 This is only to say that the Service advertises the impressive nature of the lands under its jurisdiction. See, e.g., NPS, DOI, CELEBRATE THE NATIONAL PARKS, at http://data2.itc.nps.gov/release/Detail.cfm?ID=366 (Apr. 21, 2003) (National Park Week 2003 provides an opportunity to reflect on the richness that is our national parks. They remind us of our past and challenge us to preserve our future. National parks honor our heroes and celebrate the accomplishments of all Americans.); id. (America's parks conserve many of the most spectacular natural areas in the world.); NPS, UDOI, LEARNING FROM HISTORIC PLACES, at http://data2.itc.nps.gov/release/Detail.cfm?ID=359 (Feb. 26, 2003) (quoting NPS Director as saying, America's history is found in our national parks. From Minute Man to Manzanar, from Wright Brothers to Klondike Gold Rush, the places that shaped our nation are protected and preserved as touchstones for us all.).

188 16 U.S.C. 1a-5(b) (Supp. 2003) (providing that the Secretary of the Interior, when developing the list, must consider (A) those areas that have the greatest potential to meet the established criteria of national significance, suitability, and feasibility; (B) themes, sites, and resources not already adequately represented in the National Park System; and (C) public petition and Congressional resolutions.). These factors might preclude the Service from putting an area on the list solely because of its potential for use for fitness or exercise purposes, but the Service is certainly not precluded from considering these purposes when determining whether to list the area.

189 Id. 1a-5(c).

190 Congress's power stems from the Property Clause of the Constitution. U.S. CONST. art. IV, 3, cl. 2.

191 An example of such an area is the John F. Kennedy National Historic Site in Brookline, Massachusetts. See NPS, DOI, JOHN F. KENNEDY NATIONAL HISTORIC SITE, at http://www.nps.gov/jofi/index.htm (last visited June 22, 2004).

192 Parks have been notoriously underfunded, and this lack of funding has resulted in vast backlogs in maintenance of park infrastructure. See, e.g., Vincent, supra note 11, at 3-4 (reporting estimate of 5.4 billion shortfall for maintenance activities for the national parks, as a result of decades of funding shortfalls).

193 The current Memorandum of Understanding does not itself indicate there will be any additional funding specifically for fitness activities on the public lands or that the Administration will seek such funding from Congress. Cf. Memorandum of Understanding, supra note 18, at IV (Specific work projects or activities that involve the transfer of funds, services, or property among the parties to this MOU will require the execution of separate agreements or contracts, contingent upon the availability of funds from the cooperating agencies or as appropriated by Congress.).

194 See supra text accompanying notes 175-77.

195 See supra text accompanying note 108.

196 See supra text accompanying note 107.

197 See AMERICAN HEART ASSOCIATION, WHY SHOULD I EXERCISE?, at http://www.americanheart.org/downloadable/heart/4003_Exercise.pdf (1998) (citing hiking and climbing as exercises that provide health benefits).

198 See AMH, PHYSICAL ACTIVITY CALORIE USE CHART, at http://www.americanheart.org/presenter.jhtml?identifier=756 (last visited July 23, 2004) (noting that a 150-pound person can burn 275 calories per hour swimming at a moderate pace and 400 calories per hour playing tennis).

199 See, e.g., Olmsted, supra note 80, at 46-48 (describing mental health benefits of the parks). Indeed, the Memorandum of Understanding recognizes the promotion of mental health as one of its goals. See Memorandum of Understanding, supra note 18, at I (mentioning the enhancement of psychological health as a purpose of the agreement).

200 See CDC, PREVENTING OBESITY AND CHRONIC DISEASES THROUGH GOOD NUTRITION AND PHYSICAL ACTIVITY, at http://www.cdc.gov/nccdphp/pe_factsheets/pe_pa.htm (last reviewed Apr. 6, 2004) (noting that in the year 2000, healthcare costs associated with physical inactivity were more than 76 billion and that a 10% weight loss would reduce an overweight person's lifetime medical costs by between 2,200 and 5,300).

201 Inconsistency with Sax's theory of the parks is not necessarily a reason to reject a particular paradigm or management decision; I discuss these issues here only to show that a fitness paradigm for the parks is not unproblematic and that it raises important issues that should be confronted directly.

202 See supra text accompanying notes 161-62 (discussing the idea that the most accessible areas of the parks are most important).

203 It is worth noting that building a fitness station in such a place that other visitors experiences of the natural surroundings would be impaired might violate the Service's current Management Policies, which provide that the Service will not allow visitors to conduct activities that [u]nreasonably interfere with [t]he atmosphere of peace and tranquility, or the natural soundscape within the park. MANAGEMENT POLICIES, supra note 57, 8.2, at 81. These policies suggest that if the Service were to promote such recreation activities, it might have to use a sort of zoning of those activities within the park to ensure that potentially disruptive recreational activities do not take place in areas of the park that are best suited to enjoying the park's atmosphere of peace and tranquility.

204 Sax, supra note 141, at 82.

205 See supra text accompanying note 135.

206 SAX, supra note 24, at 37-38.

207 Sax, supra note 141, at 81.

208 Id.

209 See supra text accompanying notes 165-70.

210 See supra text accompanying notes 165-70.

211 See supra note 166; see also Krakoff, supra note 130, at 453 ([Saxs] argument, like Olmsted's before him, is anthropocentric.). I agree with Krakoff that Sax's work is anthropocentric in that it emphasizes the use of nature for human flourishing, but I also see in his work a reverence for nature that at least injects a bit of ambiguity into whether Sax is entirely anthropocentric in his approach to the subject.

212 Here, of course, I refer not to the economically depressed portions of many of our cities, which are certainly substantial, but rather to those parts of the cities that are economically vibrant.

213 SAX, supra note 24, at 12.

214 See id. at 14 (The preservationist does not condemn the activities he would like to exclude from the park. He considers them perfectly legitimate and appropriate and believes that opportunities for conventional tourism are amply provided elsewhere parks have a distinctive function to perform ); id. at 105 (arguing that demands for conventional recreation ought to be accommodated at places other than the parks).

215 MANAGEMENT POLICIES, supra note 57, 8.2, at 80.

216 Id. Clearly, part of the rationale for this position is environmental in naturethose forms of recreation that can be enjoyed elsewhere may very well be environmentally dangerous forms of recreation. Environmental concerns are certainly important ones for evaluating any sort of fitness or exercise paradigm, even though they are not the primary focus of this Article.

217 See id. at 6. Although in Croplife America v. EPA, 329 F.2d 876 (D.C. Cir. 2003), the D.C. Circuit has recently held that a reversal of a long-standing policy can itself require notice and comment rulemaking even if the original policy was not implemented through notice and comment rulemaking, the Park Service is basically exempt from the notice and comment requirement under the Administrative Procedure Act, which exempts from this requirement rules relating to public property. 5 U.S.C. 553(a)(2) (2002).

218 It is also worth noting that the Administration has alternative means for promoting fitness and exercise without affecting the uses and design of public lands. One example might be for the Administration to propose increased funding for physical education in public schools. Another might be to provide funding to state and local governments for development of after-school recreational activities. There are many possibilities.

219 See SAX, supra note 24, at 48 (Blue-collar workers account for only 5 percent of all wilderness visits. One study revealed that two-thirds of wilderness users were college graduates and one-fourth of them had done graduate work.).

220 See id. at 50-59.

221 EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, COMMONWEALTH OF MASSACHUSETTS, NEARLY HALF OF ALL MASSACHUSETTS RESIDENTS OVERWEIGHT OR OBESE, at http://www.state.ma.us/dph/media/2002/pr0723.htm (July 23, 2002).

222 OVERWEIGHT AND OBESITY: AT A GLANCE, supra note 20.

223 Id.

224 INTERNATIONAL HEALTH, RACQUET, AND SPORTSCLUB ASSOCIATION, CLUB MEMBERSHIP BY ANNUAL HOUSEHOLD INCOME, at http://www.ihrsa.org/industrystats/income.html (2001).

225 Supporters of a parks-as-gyms paradigm could raise another argument against the critique from elitism as well. They might argue that even if people do associate exercising for fitness with the lifestyle of the well-off and well-educated (an assumption that, as I note above, will not be explored further here), they still might not perceive it to be elitist for the well-educated and well-off to promote exercise for fitness in the parks for the benefit of the less well-off and less well-educated. People might perceive such promotion as paternalistic, without concluding that it is also elitist and objectionable. Promotion of fitness might, for example, be regarded as a positive counterweight to a general existing perception that fitness is of no consequence or interest to the poor. Only a public dialogue between policymakers and interested parties will be able to reveal the prevailing opinion on these matters, which is why the Article suggests that the Service open up such a dialogue if it goes further toward implementing a parks-as-gyms paradigm. See infra text accompanying notes 232-36.

226 See Herman, supra note 28, at 9-14.

227 Sax, supra note 141, at 83.

228 See supra text accompanying notes 191-92.

229 See supra text accompanying notes 193-96.

230 See supra text accompanying notes 196-99.

231 Clearly, some changes in park design or activities will be more problematic when viewed from the perspective of Sax's work than others. To the extent that the Park Service makes relatively minor (rather than paradigmatic) changes in certain park facilities or activities, it should try to minimize conflicts with contemplative or reflective recreational values. Indeed, it might even be possible for the Park Service to take actions that both promote fitness values and promote opportunities for contemplative or reflective recreation. One possibility in this regardsuggested to me by Bret Birdsongmight be to place or move parking lots some distance away from certain visitor attractions, such as scenic overlooks, to promote fitness (by requiring people to walk to the attraction) while also enhancing visitors experience of their surroundings (by requiring them to get out of their cars). Another example might be to lay out the popular simple trails that are often found near visitor's centers in more circuitous and longer routes. In any event, the Service could get ideas for how to harmonize these interests by opening up its decision making process to public input and suggestions. See infra text accompanying notes 235-39.

232 For example, some of the objections turn on whether people perceive exercise and fitness to be competitive activities, uniquely urban activities, and/or activities generally engaged in by people of high education levels and economic attainment.

233 See supra text accompanying notes 157-65.

234 Sax, supra note 132, at 975; see also id. at 974 (explaining why economic and environmental considerations cannot be decisive).

235 See Franklin v. Massachusetts, 505 U.S. 788, 976 (1992) (holding that the President is not an agency for APA purposes).

236 See 5 U.S.C. 553(a)(2) (2000) (exempting from notice and comment rulemaking matters relating to public property); see also Coggins & Glicksman, supra note 28, at 745 (describing the Park Service position that it is exempted from APA requirements, although it occasionally does voluntarily comply with them).

237 If the Park Service takes a major Federal action significantly affecting the quality of the human environment, it is required to prepare an environmental impact statement (EIS)under the National Environmental Policy Act (NEPA), which generally involves seeking public input. 42 U.S.C. 4332 (c) (2000) (NEPA provision); 40 C.F.R. 1503 (2003) (regulation of Council on Environmental Quality requiring public input during EIS process).

238 MANAGEMENT POLICIES, supra note 57, 2.1.3, at 18.

239 But see supra note 47 (describing possible critiques of the Park Service's regulations regarding smoking and drinking alcoholic beverages within the parks).