February 2014 - Parks & Recreation - 34

L AW R E V I E W

NPS Authority
In this particular instance, plaintiffs
claimed NPS " never had the authority to undertake the restoration in the
first place based on the relevant statutory authority. "
As cited by the federal district
court, the " Administration " subsections in the Lakeshore Act were
significant in " evaluating the extent
of the Park Service's authority to restore Cowles Bog. " In particular, the
court noted subsection 6(a) regarding
the " [u]tilization of authorities for
conservation and management of
natural resources " conferred broad
authority and discretion on the secretary of the Interior, working through
NPS, to manage and conserve natural resources consistent with the purposes of the Lakeshore Act.

In order that the lakeshore shall
be permanently preserved in its present state, no development or plan for
the convenience of visitors shall be
undertaken therein which would be
incompatible with the preservation
of the unique flora and fauna or the
physiographic conditions now prevailing or with the preservation of
such historic sites and structures as
the Secretary may designate.
Further, as cited by the federal district court, " the only subsection of
the Lakeshore Act that specifically
addresses Cowles Bog was passed
in 1976 as part of an amendment to
the Act, " which provided, in relevant
part, as follows:
By July 1, 1977, the Secretary
shall prepare and transmit to the
Committees on Interior and Insular

According to the court, plaintiffs' characterization
of the phrase " permanently preserved in its present
state " ignored the limitation on projects " for the
convenience of visitors. "
Moreover, as described by the
court, the legislative intent of the
Lakeshore Act is " to preserve for
the educational, inspirational and
recreational use of the public certain
portions of the Indiana dunes and
other areas of scenic, scientific, and
historic interest and recreational value in the State of Indiana " (16 U.S.C.
§ 460(u)). To do so, Administration
subsection 6(b) provides, in pertinent
part, that " preservation of the lakeshore " restricts " developments for
public uses " and " visitor conveniences " in providing for " public enjoyment and understanding " :

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Parks & Recreation

Affairs of the United States Congress a study of [designated] areas...
and report concerning the following
objectives: (a) preservation of the
remaining dunes, wetlands, native
vegetation and animal life within the
area; (b) preservation and restoration
of the watersheds of Cowles Bog and
its associated wetlands (16 U.S.C. §
460u-18(a)).
As a result, under Section 6(a), under this " hugely expansive grant of
authority, " the secretary of the Interior could determine " the restoration
of Cowles Bog to be an appropriate
way to manage the natural resources

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of the Indiana Dunes. " In so doing,
however, the court acknowledged
that " subsection 6(b) constrains
the secretary's authority " because
" Congress was explicit " that " the
lakeshore shall be permanently preserved in its present state " (16 U.S.C.
§ 460u-6(b)).
Preserved in Present State
As characterized by the plaintiffs,
subsection 6(b) provided " clear,
plain, mandatory language " that
Congress had " plainly decreed "
that " the Lakeshore was to continue
without fundamental change or destruction in its existing condition. "
Accordingly, plaintiffs contended
NPS lacked the authority for the restoration of Cowles Bog because the
planned removal of trees violated
" Congress's mandate to permanently preserve the property in its present
state. " The federal district court rejected this argument.
In the opinion of the court, the broad
legislative authority under subsection
(a) to manage the Lakeshore as the secretary " deems appropriate " was only
restricted to a " development or plan "
involving " the convenience of visitors. "
For such plans and developments, the
court found they must be " compatible
with the preservation of the unique flora and fauna or the physiographic conditions now prevailing " such that the
Lakeshore will be " permanently preserved in its present state. "
According to the court, plaintiffs'
characterization of the phrase " permanently preserved in its present
state " ignored the limitation on projects " for the convenience of visitors. "
More importantly, the court found
plaintiffs' " interpretation of the statute means that the Secretary would
have to manage those resources in a
very specific way - to preserve the
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