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(Official public comments submitted by ANPR)

June 27, 2008

Public Comments Processing
Attn: 1024-AD70
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, Suite 222
Arlington, VA 22203

To whom it may concern:

The paragraphs that follow are the official comments of the Association of National Rangers (ANPR), a 1,150-member, nonprofit organization that advocates for National Park Service (NPS) employees and the National Park System. The majority of our members are current employees of the NPS with the remainder being former NPS employees or persons affiliated with the NPS in some manner. Our members have approximately 10,000 years of experience in operating National Park System sites, and we believe that experience gives us some credibility in understanding what works on the ground in parks and what does not. Our comments are our professional opinions on the proposed revision to Title 36 Code of Federal Regulations (36 CFR) § 2.4 by adding a new paragraph (h) found in the April 30, 2008, Federal Register.

Please understand our position. We are absolutely opposed to this proposed revision to 36 CFR 2.4 for the reasons articulated below.

Since the inception of the national park idea and the creation of the first national park in March 1872, it has been clear in federal statutory law, internal NPS management guidance, and later federal case law that sites administered by the Department of the Interior (DOI) and after 1916 by the NPS were created and operated for the fundamental purpose of preserving the natural and cultural resources found within them. Over 136 years ago the Yellowstone Act of 1872 began to establish the precedent that the DOI was responsible to aggressively pursue the promulgation of rules and regulations that would preserve "from injury or spoliation, of all timber, mineral deposits, natural curiosities, or wonders within said park, and their retention in their natural condition." Congress further emphasized this standard with passage of the 1894 Yellowstone Game Protection Act establishing firmly that National Park System sites are strict sanctuaries for wildlife. The 1916 NPS Organic Act bolstered this statutorily mandated management by specifically describing preservation of "natural and historical objects and wild life therein" as the fundamental purpose of National Park System sites.

With this history in mind and the firearms regulations promulgated for individual parks first and in 1936 on a National Park System-wide basis, it is our perception that making statements such as:

is at best naïve and more likely intentionally misleading, placatory statements whose speculative effects on park resources can never really be quantified, qualified, or verified. It appears to us that the DOI is making these statements as fact, when in reality they are assumptions that are only based in opinion and ideology. Data on total poaching rates in National Park System sites is nonexistent for either planned or opportunistic poaching. So, in our opinion the DOI cannot legitimately state that the existing regulatory prohibitions on poaching that would continue are sufficient to provide the maximum protection to park wildlife that statutory law demands. Studies conducted in remote areas of Idaho in the 1980s indicate that for every one poaching case investigated, 40 cases go undetected. That same study revealed that adequate evidence (enough to prosecute and convict) was found in only one of every 200 known cases of wildlife poaching. Similarly, studies conducted by the California Department of Fish and Game disclosed that only 2% of all poaching cases were even detected by their wardens. Our belief is that the proposed regulation lowers the likelihood of the detection of poaching and the apprehension and successful prosecution of poachers in National Park System sites.

In the professional opinion of ANPR, the described regulation change will have negative impacts on park wildlife. Our experience in operating parks creates disbelief that wildlife poaching rates will not increase under the proposed regulation, and we have several supporting reasons. We believe that if some loaded weapons are legal to possess in parks then rangers will lose some instances of the probable cause necessary to detect or locate hidden wildlife or the parts thereof. If rangers' ability to detect and apprehend poachers is lessened, so too is the deterrent value of the possibility of apprehension to potential poachers. That brings us back to a proposed regulation that does far less than fully support the agency's statutorily mandated fundamental purpose, a troubling proposition.

We believe it is important to distinguish the effects of the existing firearms regulations versus the potential effects of the proposed revision to the firearms regulations. We do agree that the majority of gun owners coming into parks would never use their guns to illegally kill or injure wildlife. We also recognize that a small number of gun owners will illegally use their guns to kill or injure wildlife no matter what the regulations or laws concerning guns in parks say. We also believe that there are a significant number of gun owners that fall in the middle of the two groups mentioned above. They have been in the past and will be in the future tempted into an illegal act if the right opportunity in parks presents itself. Often such illegal acts of opportunity require two elements?desirable wildlife to be present, and a readily-accessible, loaded firearm. When either of these two elements is removed from the equation it dramatically reduces the chances that park wildlife will be harmed. ANPR advises the reading of the June 30, 1983 Federal Register in which the revised current NPS firearms regulation was adopted after a public comment period. The stated reason found in this document for adopting this regulation was "to ensure public safety and provide maximum protection of natural resources by limiting the opportunity for unauthorized use of weapons." Opportunity is the key word in this justification.

There are many laws in our society that have been put in place to limit opportunity such as: Not everyone that drives their car faster than the speed limit will cause an accident and hurt someone, but speeding laws have been enacted to help reduce the opportunity that accidents will happen; not every gun owner that climbs on to a commercial airplane is a terrorist, but preventing firearms on commercial planes reduces the opportunity that a terrorist will successfully use an airplane as a weapon. Limiting the opportunity for the unauthorized use of firearms that destroy park resources is a worthy, reasonable goal in National Park System sites, and we think the DOI's lack of attention to this goal in the proposed revised firearms regulation is a mistake and reveals their true intent.

Parks are strict sanctuaries for wildlife. Previous DOI Secretaries have chosen to uphold this tenet with firearms regulations that legitimately lower the opportunity for opportunistic poaching and resource depredation. The proposed revised regulation fails to recognize the nexus between readily accessible, loaded firearms and harm to park wildlife and other park resources. Our members can recount specific instances in which the person(s) they arrested/cited for killing park wildlife, which until that moment had been "law abiding citizens," did not come to the park with the specific intent of committing such a crime. But once they were in the park with a readily accessible, loaded firearm that had been legally possessed immediately outside the park, and they started seeing easily viewable wildlife conditioned to be less fearful of humans compared to animals outside the parks, and they saw a trophy animal, a unique animal, or an animal that in their world view was classified as "bad" or a "varmint" (i.e. snakes, coyotes, prairie dogs, etc.) they were unable to resist the temptation to take a quick shot believing they would not get caught. In our professional opinion the proposed regulation completely ignores this large group of opportunistic poachers and does not address the depredation this group causes to the resources that parks were established to preserve.

One of the centerpieces of DOI's argument to adopt the proposed revised firearms regulation is the "Federalism" discussion and Executive Order 13132 of August 10, 1999. DOI attempts to bolster this talking point by noting that the NPS sometimes adopts "non-conflicting state authorities" in such areas as "hunting, fishing, and boating." ANPR believes that the DOI is applying this "federalism" talking point selectively to firearms, as opposed to taking a broader view of the states rights/federal rights intersection.

There are other issues within National Park System sites where the states rights/federal rights intersection are present and sometimes contentious. One of the most well-known and well-litigated is the issue of wildlife management on federal lands, including National Park System sites. For much of the 20th century states argued that they owned wildlife found within their borders no matter who owned the land, and that federal agencies could not make wildlife management decisions on the federal lands they administered that were in conflict with state laws or desires. Starting in 1920 with Missouri v. Holland (Supreme Court) and culminating in 1976 in Kleppe v. New Mexico (Supreme Court) the high court has found that federal wildlife management has a solid constitutional foundation in the Property Clause, and where state law and federal law conflict, federal law is supreme under the Supremacy Clause. The current NPS firearms regulation was developed primarily as a wildlife protection measure to lessen the opportunity for the killing of wildlife in parks. It has a solid constitutional foundation and it supports the fundamental purpose that Congress proscribed for the agency in statutory law. The proposed revised regulation does not support the NPS fundamental purpose, and therefore we believe it should be abandoned.

The "non-conflicting" point made by the DOI in the April 30, 2008, Federal Register with regard to hunting, fishing, and boating is misleading. It appears to us to have been wordsmithed to justify the proposed revised firearms regulation by making a favorable comparison. However, we believe a more complete explanation of the "non-conflicting" clause in 36 CFR sections refutes the DOI's talking point. When the NPS applies this clause on the ground in parks it only adopts those state laws that are non-conflicting. They don't adopt all state hunting, fishing, and boating laws, rather they adopt those that fall within the direction of Congress in the individual park's enabling legislation and the NPS Organic Act of 1916, as amended. For instance, many states allow the collection of crawfish by hand or net under state fishing law. The NPS does not adopt this state fishing law because recreational fishing by hook and line only is permitted (by 36 CFR regulation) inside National Park System sites. Likewise, under state hunting laws many states allow the year-round taking of animals that they consider undesirable. The NPS does not always adopt such state laws where hunting is permitted by statute because they conflict with the agency's basic mandate to protect all native species of wildlife equally. The point of these examples is to refute the DOI's implication that the NPS adopts all state hunting, fishing, and boating laws. They do not. Even where the NPS adopts some state hunting, fishing, and boating laws they impose other regulatory restrictions found in 36 CFR to make them more compatible with operation of National Park System sites.

Similarly, the adoption of any "non-conflicting" state firearms laws should be viewed in the same light and the NPS should impose regulatory restrictions that provide the maximum protection to park resources. And, that is exactly what the NPS has done by lessening the opportunity for unauthorized firearms discharges that kill or injure park wildlife. The NPS already recognizes the 2nd Amendment and state firearms laws by allowing firearms to be possessed in parks. They only impose the minor restrictions of "unloaded and not readily accessible" because those conditions do conflict with the federal statutory mandate to provide the maximum protection to park resources, most specifically wildlife.

Another troubling aspect of the DOI's proposed revised firearms regulation is their complete disregard for compliance with National Environmental Policy Act of 1969 (NEPA). Since all federal agencies are required by law to follow the procedures found in NEPA, we need not take the time and length to explain those procedures here. The DOI should be fully aware that the proposed revised firearms regulation is controversial and that there are environmental impacts that would accompany it if it becomes final, especially with regard to park wildlife, but also to a lesser extent other park natural and cultural resources. NEPA "requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. To meet this requirement, federal agencies prepare a detailed statement known as an Environmental Impact Statement (EIS)." It is not our intent to demean the DOI when we say that it does not take 10,000 years of professional experience in operating National Park System sites assembled by ANPR's members to understand that utilizing a categorical exclusion under NEPA for this proposed revised firearms regulation is not even in the same universe with responsible federal land management decision making. Any NPS employee making a similar decision on an individual park level issue would receive either formal disciplinary action, a forced relocation to another duty station, or both.

The DOI should consider the confusion their proposed revised firearms regulation would create with visitors and NPS employees. The current regulation is one simple standard for 391 units of the National Park System. When you enter any National Park System site you know that firearms must be unloaded and not readily accessible - clear, uniform, and easy to understand. Under the proposed revised firearms regulation we count 27 states that allow concealed carry weapons (CCW) in their state parks. In addition, some state parks in Maryland do allow CCW while other state parks don't. On the reciprocity issue some states recognize every other state's CCW permits, some states recognize only a limited number of other state's CCW permits, and some states such as Maine, Nebraska, and Oregon do not recognize CCW permits from any other state. While Texas allows CCW in their state parks, they do not allow loaded weapons in or on vehicles.

The point we are trying to make is the DOI is proposing to move from one clear, nationwide standard to a confusing, hodgepodge of state laws that will require study beforehand by visitors, especially those traveling outside their own home state. There are National Park System sites with acreage in two or more states which will mean two or more sets of regulations to understand. While we could cite some of the more well known parks like Death Valley or Yellowstone as examples, how about an even more vexing example like Saint Croix National Scenic Riverway in Wisconsin and Minnesota? If you are utilizing this National Park System site and are on the river the state boundary between Wisconsin and Minnesota is in the river. So you could be crisscrossing back and forth across the two states hundreds of times without even knowing it. Minnesota allows CCW in its state parks, but Wisconsin does not. How would the DOI expect visitors to realistically comply with the applicable laws here?

This confusion problem also applies to NPS rangers trying to enforce such regulations, Assistant United States Attorneys trying to prosecute such cases, and U.S. Magistrate Judges trying to adjudicate such cases. We can tell you from our experience that federal prosecutors and judges almost always refuse to prosecute or dismiss cases when they believe the defendant is reasonably confused about federal regulations. There are so many opportunities for confusion with the proposed revised firearms regulation from state to state, park to park, and federal judicial district to federal judicial district that we can not even begin to count the ways the NPS would lose such cases.

We think the DOI's statement that the proposed revised firearms regulation "will not cause a major increase in costs or prices for consumers [and] Federal government agencies" is inaccurate and its intention is to be misleading. Implementing the proposed revised firearms regulation would be costly to taxpayers and inconvenient to the majority of park visitors. Did the DOI really think through such implementation? Since firearms will still not be permitted inside NPS buildings because they are federal buildings, what actions will the NPS be forced to take to ensure that firearms stay outside visitor centers, ranger stations, and administrative offices? For years after the 9/11 attacks visitor access was redirected through magnetometers before they could enter the buildings at Independence National Historical Park. The NPS spent tens-of-millions of dollars in personnel and equipment to implement these procedures for one park with multiple buildings and multiple entrances. It seems to us that similar implementation strategies will be required for the majority of National Park System sites, and we speculate these strategies in turn will create lower visitation and/or lower understanding of the reasons National Park System sites exist because visitors will avoid the time it takes to wait in line and pass through checkpoints thereby learning less about National Park System sites and subverting support for the entire National Park System.

Similarly, what implementation strategies does the DOI plan for National Park System sites that have land and buildings in more than one state where the different states have different CCW laws? Does the DOI plan to fund extra NPS commissioned rangers to ensure that visitors in these parks understand where the state lines are and what the differences are between the states CCW laws? Does the DOI plan to fund signage and have it placed at the major locations where visitors cross between states in such parks? We doubt that the DOI has thought through the implementation ramifications and their effect on the majority of NPS visitors the proposed revised firearms regulations would require and have.

Our 10,000 years of experience in operating National Park System sites includes hundreds of years of experience in testifying in federal courts. The proposed revised firearms regulation is so poorly written that a federal judge or magistrate could interpret its meaning to include all loaded and operable firearms whether concealed or not. If all the reasons we've given to quash the proposed revised firearms regulation are ignored and it is adopted as final, we believe that at minimum it should be rewritten so that there can be no mistake in federal court that it covers only CCW. And, a specific regulatory definition for CCW must be added in 36 CFR §1.4 to accompany the proposed revised firearms regulation.

Finally, we believe that the proposed revised firearms regulation fails to recognize that Congress created National Park System sites because they are unique, special areas that have major differences with state parks and other federal lands. Making favorable comparisons to state parks or other federal lands for the purpose of advancing this proposed revised firearms regulation seem misleading and disingenuous to us. Many state parks have a recreational purpose at their core. Other federal lands such as those administered by the Bureau of Land Management and the United States Forest Service have multiple use purposes and are less contiguous with less well identified boundary lines. National Park System sites have a Congressionally mandated preservation purpose. That difference necessitates different regulatory approaches. The detrimental effects, both potentially and in reality, of firearms to park resources were recognized by early DOI employees. Over the last 136 years responsible managers of National Park System sites acted to limit these detrimental effects while minimizing the impact on park visitors and park neighbors by establishing regulations that permit firearms but protect resources. In our opinion this a common sense approach that should be continued.

We close by reiterating that based on our 10,000 years of experience in operating National Park System sites the 1,150 members of the Association of National Park Rangers oppose the adoption as final regulation the new paragraph (h) of 36 CFR §2.4 found in the April 30, 2008 Federal Register. We further request that you address the substantive reasons we have described in our comments in opposition to this poorly thought out and worded proposal.

Sincerely,


/s/ A. Scot McElveen
President, Association of National Park Rangers