[GeoStL] Re: Challenging the NPS ban on geocaching RE: Re: FW: ohiobill c...
- From: "Jim Bensman" <jbensman1@xxxxxxxxxxx>
- To: <geocaching@xxxxxxxxxxxxx>
- Date: Wed, 28 Aug 2002 10:34:47 -0500
Thanks for all the suggestions. I am enclosing another draft. I worked on
the tone quite a bit.
As to the suggestions of leaving out lots of the legal stuff. I am not
going to do that. If this was a real "first contact" situation, I would
agree addressing the legal issues like this would probably not be the best
way to go. But this is not the first contact with the NPS. They have
already had lots of contact with geocachers and the NPS has already banned
it in National Parkland. If I do not address the legal issues, I am going
to get back the same kind of response the other geocahers have already got
(i.e., it is not allowed on NPS land). I intend to challenge the nationwide
policy with this letter. So I think it is vital to bring up the legal
challenge to their actions at this point. I suspect, my letter will cause
them to reassess their national policy and see they made a mistake.
I also think it is important to get in more letters in support of
geocaching. They can be short and they do not need to address the legal
issues.
Anyway here is my most recent draft: If you have any more comments, feel
free to give them
Superintendent
Ozark National Scenic Riverways
404 Watercress Drive
PO Box 490
Van Buren, MO 63965
OZAR_Superintendent@xxxxxxx
Dear National Park Service:
I am writing about Ranger William O'Donnell's preventing geocaching in the
Ozark National Scenic Riverways. Geocaching is a relatively new recreational
activity. It is a high-tech treasure hunt. The way it works is you hide a
cache and determine its location with a GPS unit. The cache contains a log
book for people to sign when they find it. Sometimes caches will also
contain trinkets for people to exchange. Once you hide the cache, you go to
www.geocaching.com and report the cache. The cache's location and
description is then posted on www.geocaching.com. After getting the
description and location on the web site, people use their GPS unit to go
and search for the cache. If they find the cache, they make a note and
comments in the cache's log book. You can also go to the web site for the
cache and log a find. In your log entry you can express your opinions about
the cache or the area. To find out more about the activity go to the web
site.
I am aware that the National Park Service has taken the position that
geocaching is not allowed anywhere on NPS managed land. Geocaching is an
activity that can be conducted in such a way to protect park resources and
enhance citizens' use and enjoyment of their parks. Therefore, this policy
does not make any sense. Additionally, this policy is also contrary to
Federal law, NPS regulations, NPS policies, and the First Amendment.
I have been a regular recreational user of the Ozark National Scenic
Riverways for more than 30 years. My recreational pursuits on the ONSR
include canoeing, backpacking, hiking, wildlife observation, camping,
exploring caves, photography, orienteering, climbing, rappelling,
geocaching, and swimming. I make several trips a year.
I have been geocaching for over a year now. I have hidden 93 caches and
found more than 200. I am always very careful where I place my caches to
make sure they do not cause resource problems. I hide most of my caches in
nice areas. I believe a good way to get people to support protection of
public lands is to show them nice places. Time after time you see log
entries of people saying they would have never gone to an area if it was not
for goecaching. I also enjoying expressing my opinion about an area and
reading what other people think about an area or how the area is managed. My
caching name is "Myotis" for the Indiana bat.
For the record, I have no problem with and support reasonable regulation to
protect sensitive park resources. Like any other recreational activity,
there is always a possibility of resource problems. Hiking, canoeing, and
geocaching could all cause problems under certain circumstances. While I
enjoy recreational activities, I believe environmental protection comes
before recreational enjoyment. If this was a case of the NPS trying to
protect resources, I would be supporting the NPS. I have been an
environmental activist for most of my life and I work for an environmental
group. I also worked two summers in Grand Teton National Park. If a land
manager ever told me there was a resource problem with a specific location
of one of my caches, I would not hesitate to correct the problem.
On November 9, 2001, I hid a geocache near Round Springs. I chose an
environmentally benign location: the thin strip of woods between the
campground and lower take out. Since campers and canoeists are always in
these woods, placing a cache there is surely appropriate. I found the spot
when I was going from my campsite to the river. This was the cache
description:
This cache is at the lower Round Springs take out on the Current River. It
is in the woods between the campground and parking area. (Sounds like a hint
to me!) You can reach it by canoe or car. It is well concealed so please
make sure you recover the cache so it cannot be seen as it is close to the
parking area.
My favorite float on the Current River is the Pulltight to Round Springs
stretch. The cache contains a log and a pencil. It is a tupperware
container. This is a WAAS differential reading, so it is extremely accurate.
This is the 59th cache I have hidden.
Discussion question: What do you think about the way the National Park
Service manages the rivers? Do you think there are too many people on the
rivers? I remember years ago when there were lots less people on the river.
I tend to now avoid weekends in the summer. I am not sure if I think the NPS
should place more controls, but I think it is time to consider it. What do
you think? Speak your mind in your log entries.
It's cache page is at:
http://www.geocaching.com/seek/cache_details.asp?ID=10199.
On or about April 16, 2002, Ranger O'Donnell removed my geocache. He entered
this log entry on the cache page:
Hey Myotis, This cache has been found and confiscated by the National Park
Service. Please do not place further caches on public lands, as we consider
this littering and you may be cited if it's found by someone more hardcore
than me. Ranger Bill
Since he did not give his full name or title, I did not think he was really
from the NPS. I emailed him through the geocaching site asking him who he
was. He did not respond or identify himself. Since Ranger O'Donnell failed
to identify himself, it took a long time to figure out who he was. I was
finally able to figure out who he was using Internet search engines. I was
then able to find him listed on the NPS web site. If I would have known who
he was sooner, I would have written to you sooner.
I have seen letters posted on the Internet to other geocachers where the NPS
explains why it does not allow geocaching on any NPS managed land. The NPS
makes the argument that since they are supposed to protect the land, they
cannot allow geocaching. Thus, we have the NPS contending geocaching is such
a destructive activity there is absolutely nowhere on NPS managed land that
this activity can occur. On the other hand, we have the NPS building lodges,
lakes, dams, roads, trails, campgrounds, offices, cabins, homes, stores, and
many other things in our National Parks. How does the NPS reconcile this? If
there is a place for these uses, how can there not be a single place that is
appropriate for a geocache?
Let's look at what the NPS allows in the ONSR. Jet boats and their two-cycle
engines spew oil in the river. They cause much more damage than geocaching
could ever cause. I've been chased by them before and they rarely slow down
when they zip by you in your canoe. Their nosie also disrupts the peace and
quite of the river. I also recall the NPS authorizing large horse rides on
the ONSR in spite of environmental problems in the past. I also note how the
NPS has allowed snowmobiling in Yellowstone and Grand Teton when the NPS's
analysis has found it is damaging the park. Yet we are told there is
absolutely no where on NPS managed land that geocaching can occur.
Please explain to me how the NPS can allow all these other kinds of
activities and then claim there is absolutely no where on NPS managed land
where geocaching can occur. Please explain what is wrong with the site I hid
my cache in. If the site is too sensitive for caching, how can the NPS have
a campground and canoe launching area right by it? Allowing all of these
activities and not allowing geocaching anywhere is arbitrary and capricious.
This Administrative Procedures Act prohibits arbitrary and capricious agency
action. 5 USC ? 706(a)(2). As such, the NPS's policy is illegal.
Additionally, the APA requires the NPS to go through formal rule-making
process before adopting such a policy.
There certainly are places in NPS managed lands where having a geocache or
even a trail is inappropriate. A spot with endangered species is a good
example. If the NPS was wanting to prohibit geocaching or other recreational
activities in a place like this, I would support the NPS. There are very few
places on NPS land (particularly in the ONSR) where placing a geocache would
cause problems.
I have seen many areas where hikers and backpackers have caused
environmental problems. Some areas are overused. Some people cut
switchbacks. Some people litter. In tracking down Ranger O'Donnell, I found
out he is a photographer. Photographers can cause environmental problems
too. For example, they could trample sensitive resources to get a good
vantage point for a picture. Many photographers also chase and disturb
wildlife. Yet the NPS does not outright ban these activities everywhere on
NPS managed land. If the NPS applied the standard that has been applied to
goecaching to all other uses, no one would be allowed in a National Park. I
want to stress I would support the NPS taking actions to protect resources
from any recreational use that is causing a problem. But that is not what we
are dealing with. We are dealing with an arbitrary and capricious banning of
a recreational activity that can be done in a way that does not cause
unacceptable damage to the park.
Ranger O'Donnell indicates he is concerned about littering. I am offended by
comparing placing a geocache to littering. I pick up litter all the time.
Whenever I see someone throw a cigarette butt out a window, I blast my horn
at them. I regularly participate in picking up litter along a National
Scenic Byway. I have set up caches in areas with lots of litter to get
catchers to pick up the trash. In this cache, about 10 people reported
removing a big back of trash:
http://www.geocaching.com/seek/cache_details.asp?ID=8788&logs=y&decrypt=
Geocaching has a program of "cache in, trash out." Geocachers pick up
litter. Whenever I go to ONSR, I always pick up lots of trash. Would not it
be a better use of our tax dollars to have NPS employees pick up litter
instead of tracking down and removing a cache that is not causing any
problems?
Before I placed my cache, I checked NPS regulations to see if there was any
regulation that would prohibit geocaching. I could not find any, so I hid
the cache. I then started reading where the NPS was arguing geocaching was
not allowed on any NPS land. I researched the basis the NPS was giving and
found them to be ridiculous, illegal and prior restraint of First Amendment
rights. It appears the NPS reacted with a knee jerk reaction instead of
carefully considering the issue. I hope the NPS will now rethink its
position.
Ranger O'Donnell claimed placing a cache is "littering." I have also seen
other places where the NPS claims placing a cache is illegal because it is
littering. Neither Ranger O'Donnell nor anything else I have seen from the
NPS have cited a regulation that defines doing something like geocaching as
littering. Please cite this regulation and definition of littering that
supposedly prohibits geocaching. The regulation's definition section does
not define the term. Therefore, under rules of statutory construction, it
has its ordinary dictionary meaning. The American Heritage Dictionary
defines littering as, "carelessly discarded refuse, such as wastepaper."
There is no credible way to argue hiding a cache for others to find is
littering. For one thing, a cache in only temporarily placed. If Ranger O'
Donnell had not taken my cache, I would have eventually removed it. It is
also hidden, so it is not carelessly discarded.
I have also seen the NPS claim, hiding a cache is "abandoning property"
which is prohibited by 36 CFR ? 2.22(a)(1). NPS Regulations, however, state,
"Abandonment means the voluntary relinquishment of property with no intent
to retain possession." 36 CFR ? 1.4(a). Placing a cache certainly does not
meet this definition. When I placed it, I intended to retain possession of
it. Furthermore, I would have eventually achieved the cache (i.e., removed
it from the web site) and then retrieved the cache.
The prohibition that comes closest to prohibiting geocaching is the
prohibition against:
Leaving property unattended for longer than 24 yours, except in locations
where longer time periods have been designated or in accordance with
conditions established by the superintendent.
36 CFR ? 2.22(a)(2).
The regulations do not define, unattended, so the dictionary definition is
controlling, "Not being attended to, looked after, or watched: an unattended
fire." American Heritage Dictionary. I was attending to, looking after, and
watching the cache.
I would also point out that regulations cannot be interpreted in such a way
that it results in absurd results. If placing a cache is against the
regulations, leaving your car at the takeout over the weekend would also be
illegal.
I hope the NPS will reconsider its position. Please either indicate
geocaching is allowed, or cite which regulations placing a cache supposedly
violates. Please point to a definition of terms that applies to something
like hiding a geocache.
Even if the NPS is correct about the regulations, the regulations would be
unconstitutional as applied. Geocaching is an expressive activity protected
by the First Amendment. While the NPS can reasonably regulate it, it cannot
categorically prohibit it from NPS managed land. The Supreme Court has held:
The First Amendment provides that "Congress shall make no law . . .
abridging the freedom of speech . . . ."
* * *
It is also true that "public places" historically associated with the free
exercise of expressive activities, such as streets, sidewalks, and parks,
are considered, without more, to be "public forums." See Perry Education
Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983); Carey v.
Brown, supra, at 460; Hudgens v. NLRB, 424 U.S. 507, 515 (1976); Cox v. New
Hampshire, 312 U.S. 569, 574 (1941); Hague v. CIO, 307 U.S. 496, 515 (1939).
In such places, the government's ability to permissibly restrict expressive
conduct is very limited: the government may enforce reasonable time, place,
and manner regulations as long as the restrictions "are content-neutral, are
narrowly tailored to serve a significant government interest, and leave open
ample alternative channels of communication." Perry Education Assn., supra,
at 45. See, e. g., Heffron v. International Society for Krishna
Consciousness, Inc., 452 U.S. 640, 647 , 654 (1981); Grayned v. City of
Rockford, 408 U.S. 104, 115 (1972); Cox v. Louisiana, 379 U.S. 559 (1965)
(Cox II). Additional restrictions such as an absolute prohibition on a
particular type of expression will be upheld only if narrowly drawn to
accomplish a compelling governmental interest. See, e. g., Perry Education
Assn., supra, at 46; Widmar v. Vincent, 454 U.S. 263 (1981).
United States v. Grace, 461 U.S. 171, 176-7 (1983).
While geocaching is a recreational activity, it is also "expressive
conduct." People write their thoughts and opinions in the logs for others to
read. Expressive conduct also can occur in the make up of the cache. The
removed cache specifically sought expressive conduct in the cache logs as
the cache page states:
Discussion question: What do you think about the way the National Park
Service manages the rivers? Do you think there are too many people on the
rivers? I remember years ago when there were lots less people on the river.
I tend to now avoid weekends in the summer. I am not sure if I think the NPS
should place more controls, but I think it is time to consider it. What do
you think? Speak your mind in your log entries.
Some people only write their entries in the cache log at the site. I found
the Calling My Bluff Cache
(www.geocaching.com/seek/cache_details.asp?ID=7185) near Sutton's Bluff.
Someone before me expressed themselves by writing about his dislike of the
ATVs in the cache log (but did not log it on the Internet). I wrote in the
cache log and the Internet log that I agreed with him. Therefore, there is a
significant amount of expressive conduct occurring in geocaching.
The Supreme Court has held that National Park Service managed lands are
public forums where the First Amendment protects expressive conduct. Clark
v. Community for Creative Non-Violence, 468 U.S. 288 (1984). Generally
banning geocaching and banning it everywhere in National Parks is not a
reasonable time, place, and manner regulation. Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 295 (1984). Therefore, Ranger O"Donnell
's actions constitute prior restraint of First Amendment rights under the
color of law.
NPS Regulations also prohibit the arbitrary closure of the ONSR to
geocaching. The regulations state:
(a) Consistent with applicable legislation and Federal administrative
policies, and based upon a determination that such action is necessary for
the maintenance of public health and safety, protection of environmental or
scenic values, protection of natural or cultural resources, aid to
scientific research, implementation of management responsibilities,
equitable allocation and use of facilities, or the avoidance of conflict
among visitor use activities, the superintendent may:
(1) Establish, for all or a portion of a park area, a reasonable schedule of
visiting hours, impose public use limits, or close all or a portion of a
park area to all public use or to a specific use or activity.
* * *
(c) Except in emergency situations, prior to implementing or terminating a
restriction, condition, public use limit or closure, the superintendent
shall prepare a written determination justifying the action. That
determination shall set forth the reason(s) the restriction, condition,
public use limit or closure authorized by paragraph (a) has been
established, and an explanation of why less restrictive measures will not
suffice, or in the case of a termination of a restriction, condition, public
use limit or closure previously established under paragraph (a), a
determination as to why the restriction is no longer necessary and a finding
that the termination will not adversely impact park resources. This
determination shall be available to the public upon request.
36 CFR ? 1.5.
Agencies are required to consider the "relevant factors"when making its
decision. Bensman v. United States Forest Service, 984 F.Supp. 1242, 1246
(W.D.Mo. (1997)) citing Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). There must be a
"rational connection between the facts found and the choice made." Motor
Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 103
S.Ct. 2856, 463 U.S. 29, 43, 77 L.Ed.2d 443 (1983). There is no way the NPS
could meet these requirements to close the ONSR to geocaching. If this
written determination has been issued, please provide a copy. If it has not,
please explain how my geocache could be removed without such a written
determination.
NPS Management Policies state, "The National Park Service will encourage,
allow, or not allow recreational activities according to the criteria listed
in section 8.2." MP 8.2.2. The criteria state:
The Service will allow other visitor uses that do not meet all the above
criteria1 if they are appropriate to the purpose for which the park was
established and they can be sustained without causing unacceptable impacts
to park resources or values.
MP 8.2 Visitor Use.
One of the purposes the ONSR was established for was "[f]or use and
enjoyment of the outdoor recreation resources thereof by the people of the
United States . . ." 16 USC ? 460m. If canoeing and jet boats can be
sustained without causing unacceptable impacts to park resources or values,
geocaching certainly can. Therefore, banning geocaching violates NPS policy.
NPS Management Polices also state:
Management controls must be imposed on all park uses to ensure that park
resources and values are preserved and protected for the future. If and when
a superintendent has a reasonable basis for believing that an ongoing or
proposed public use would cause unacceptable impacts to park resources or
values, the superintendent must make adjustments to the way the activity is
conducted, so as to eliminate the unacceptable impacts. If necessary, the
superintendent may (1) temporarily or permanently close a specific area; (2)
prohibit a particular use; or (3) otherwise place limitations on the use to
ensure that impairment does not occur.
MP 8.2 Visitor Use.
Thus, before the NPS could close the ONSR to geocachng, the NPS was required
to have a "reasonable basis" that geocaching would cause unacceptable
impacts to park resources. This clearly did not occur.
Closing the ONSR to geocaching also violates the law that set up the park:
For the purpose of conserving and interpreting unique scenic and other
natural values and objects of historic interest, including preservation of
portions of the Current River and the Jacks Fork River in Missouri as
free-flowing streams, preservation of springs and caves, management of
wildlife, and provisions for use and enjoyment of the outdoor recreation
resources thereof by the people of the United States, the Secretary of the
Interior (hereinafter referred to as the "Secretary") shall designate for
establishment as the Ozark National Scenic Riverways
16 USC ? 460m. (Emphasis added.)
Not allowing the use and enjoyment of the outdoor recreational resources is
illegal.
Check case on ths section:
? 460m-5. Administration
The Ozark National Scenic Riverways shall be administered in accordance with
the provisions of sections 1 and 2 to 4 of this title, as amended and
supplemented, and in accordance with other laws of general application
relating to the areas administered and supervised by the Secretary through
the National Park Service; except that authority otherwise available to the
Secretary for the conservation and management of natural resources may be
utilized to the extent he finds such authority will further the purposes of
this subchapter.
Finally, please tell me where my cache and its contents are. I would be
happy to discuss this or meet with you. I would also be happy to take you
out to look for a geocache so you can better understand what is involved. I
look forward to your response.
Sincerely,
Jim Bensman
585 Grove Ave
Wood River, IL 62095-1615
(618)259-3642
jbensman1@xxxxxxxxxxx
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