Do Trees Have Trustees? National Park Service Has Fiduciary Duty to Protect Redwood National Park

The recent case of Sierra Club v. Department of Interior¹ may supply a legal basis for compelling the Department of Interior to curtail activities on lands peripheral to any National Park when such activities have an adverse effect on it. The case may even permit the National Park Service to force the Secretary of Interior to go to Congress for funds for such environmentally protective actions if the Office of Management and Budget fails to provide them. On the other hand, on a narrower reading, the case may only apply to the Redwood National Park, because of unique features of the Act² which created it.

The recent opinion follows Judge Sweigert's original decision filed in 1974,³ in which plaintiff's complaint, which alleged that logging activities on peripheral lands were damaging the Park, survived a motion to dismiss. In Redwood I the court held that the Secretary of Interior has a general fiduciary obligation under the National Park System Act⁴ which provides that the Park Service shall "promote and regulate the national parks … and to provide for the enjoyment of same by such manner and by such means as will leave them unimpaired for future generations." Redwood I also relied on language in an 1891 Supreme Court case, Knight v. United Land Association which proclaimed that:

The Secretary is the guardian of the public lands. [He is obliged] … to see that the law is carried out and that none of the public domain is wasted or disposed of to a party not entitled to it.⁵

Redwood I also found the Secretary of the Interior to have "certain specific powers and obligations in connection with the unique situation of the Redwood National Park."⁶ In its view three subsections of the Redwood National Park Act empowered the Secretary to protect the Park from activities on adjacent lands and even imposed a judicially enforceable duty on him to do so.The court concluded that if Sierra Club could show that the Park was being damaged by activities on peripheral lands, the Secretary's failure to exercise the powers granted him by those subsections could be found to be an abuse of discretion within the meaning of the Administrative Procedure Act (APA).⁷ In Redwood II the plaintiff succeeded in making such a showing. According to Judge Sweigert the Sierra Club's evidence established that the Secretary had failed to exercise the powers granted him by the Redwood Act, and this failure to act violated the APA. The court granted the declaratory and mandatory relief sought, ordering the Secretary of the Interior to take "reasonable steps within a reasonable time" (defined as 60 days) to exercise the powers vested in him by 16 U.S.C. §§ 76b(a), 79c(e) and 79c(d).

Redwood II sets forth in detail what these "expressly stated powers" entail and how the Secretary has neglected them. The first, contained in subsection 79b(a), authorizes the Secretary to modify the boundaries of the Park "with particular attention" to minimizing siltation of streams and damage to timber within the Park. The Secretary may increase the size of the Park to [5 ELR 10200] as much as 58,000 acres from its original size of 56,205 acres. It was undisputed that the Secretary has not exercised this option despite five reports done by the Department of Interior or the National Park Service between April, 1969 and April, 1972, all of which recommended that "buffers" be established around the Park and recommended acquisition of certain lands adjacent to the Park.

A second power vested in the Secretary by the Redwood Act is contained in 16 U.S.C. § 79c(e), which authorizes him:

to acquire lands from, and to enter into contracts and cooperative agreements with, the owners of land on the periphery of the park and on watersheds tributary to streams within the park … in order to assure that the consequences of forestry management, timbering, land use and soil conservation practices conducted [on such peripheral lands] will not adversely affect the timber, soil, and streams within the Park….

The court found that all the reports prepared or commissioned by the Department of Interior had recommended some sort of acquisition from and/or contracts with the owners of peripheral lands to lessen the danger to the park caused by activities on that land. Nevertheless, no such contracts had been executed. The government claimed that "co-operative agreements" had been negotiated between the Department of Interior and the three timber companies whose logging operations constituted the alleged threat to the Park, and that the companies' operations conformed to those agreements. The court, however, held that these agreements were not contracts within the meaning of the Act and that even if they were, the restraints they imposed on the companies would not prevent damage to the Park.

The court also addressed itself to § 79c(d), which grants the Secretary power to acquire lands and interest in land on both sides of the highway near the town of Orick "to a depth sufficient to maintain or to restore a screen …" Again the court found that while National Park Service recommendations had included the acquisition of this land, the recommendations were not implemented.

The remedy ordered by Redwood II includes a number of actions which the Secretary must take in exercise of the powers granted him by the Redwood National Park Act. The most significant — and unusual — of these provisions is a requirement that the Secretary's action "shall include, if reasonably necessary, resort to Congress for a determination whether further authorization and/or appropriation of funds will be made for the taking of the foregoing steps…." The evidence of the case indicated that when the Secretary consulted the Office of Management and Budget concerning the recommendations in the studies that certain lands near the Park be acquired in fee, the Office of Management and Budget had advised against this acquisition and the matter had apparently been dropped. The opinion indicates that the Secretary of Interior has an affirmative duty to go to Congress if there is compelling evidence of a need for funds to protect the Park, and the Office of Management and Budget has nonetheless recommended that the funds not be spent. Thus, the Sierra Club case may provide a basis for "resort to Congress" for funds needed by the Department of Interior to protect a National Park even when the Office of Management and Budget has denied an earlier Department request for such funds. Further, mandamus may lie against the Secretary to compel him to resort to Congress for funds to protect any Park, since according to the court's opinion, such protection is a trust duty imposed by the National Park System Act.

The major question raised by the Redwood opinions is the scope of the "trust" or "fiduciary"⁸ duty imposed on the Secretary.Can it be used to require him to interfere with activities on lands adjacent to any national park, or is such a remedy available to plaintiffs only where, as here, the statute establishing that particular park provides for such interference? As guardian of the public lands, the Secretary may be said to have a fiduciary duty to protect any park threatened by such activities. The court in the Redwood opinions speaks of the Redwood Act as imposing duties "in addition to" those imposed by § 1 of the National Park System Act, which provides in mandatory terms that the Secretary shall so "regulate" the parks as to leave them "unimpaired for future generations." Knight v. United Land Association also states that the Secretary is a "guardian of the public lands," obliged to see that "none of the public domain is wasted."

If the Secretary has a fiduciary relationship toward the American public, holding in trust all public lands, well established principles of the law of trusts would arguably require that he act to protect the national parks from activities on adjacent lands which might "impair" the parks. It is almost axiomatic, for example, that a trustee has a duty to protect and preserve trust property from loss or damage.⁹ As a trustee, therefore, the Secretary not only can, but must, take action to halt activities which threaten any national park.¹⁰ But only future litigation will tell whether courts will accept the principle that mandamus will lie to compel the Secretary in the exercise of his general trust obligation to act to halt activities both on and off park lands which might impair a national park.

Whatever the outcome of future litigation the Redwood opinions do indicate that if express powers are specifically granted the Secretary to interfere with activities [5 ELR 10201] on lands adjacent to national parks, he may be compelled to exercise such powers. The Redwood Act thus provides a model for future legislation (or amendments to past legislation), creating a national park. Armed with statutory provisions similar to those contained in the Redwood Act, conservationists will, if the precedent of the Redwood opinion is followed, be able to compel the Department of Interior to bring a halt to activities which threaten the ecological integrity of other national parks.

1. __ F. Supp. __, 5 ELR 20514 (N.D. Cal. 1975). Herinafter Redwood II.

2. 16 U.S.C. §§ 79a-79j. Hereinafter the Redwood Act.

3. 376 F. Supp. 90, 4 ELR 20444 (N.D. Cal. 1974). Hereinafter Redwood I. See also Comment, Using the Public Trust Doctrine to Impose Non-discretionary Duties on Government Officials, 4 ELR 10089 (July 1974).

4. 16 U.S.C. § 1 et seq.

5. 142 U.S. §§ 161, 181 (1891). Quoted at 4 ELR 20445.

6. 376 F. Supp. 90, 93; 4 ELR 20444, 20445.

7. 5 U.S.C. § 706(2)(A).

8. Redwood I uses both terms; Redwood II refers only to a "general trust duty."

9. See generally: Restatement (Second) of Trusts, § 176 (1959); Bogert, The Law of Trusts (5th Ed.) § 99 (1973) and cases cited therein.

10. In a study quoted in Redwood II, the National Park Service noted:

Protecting a few acres of trees will not have much significance if the lands surrounding the trees are barren … and the waters entering the park are polluted. 5 ELR 20514, 20516.