American Journal of Law & Medicine

Parks as gyms? Recreational paradigms and public health in the national parks.


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, (l) 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. (2) 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. (3) For instance, some plant species have the potential to be turned into helpful and perhaps life-saving pharmaceuticals. (4) Forest fires pose significant human health risks in addition to harming the environment itself. (5) Risky activities on the public lands can imperil both participants and bystanders. (6) And prohibiting extractive activities such as mining or oil drilling on the public lands may result in lost jobs, in turn causing negative health effects on those who become unemployed. (7)

With respect to the public lands, (8) management policies intended to protect or promote public health might roughly be divided into what I call "preventative" or "proactive" measures. By "preventative" measures, I refer to regulations and policies implemented to prevent harmful things from happening to people on the public lands. These measures predominantly consist of safety regulations that impose limits on what kinds of activities can be engaged in on the public lands or standards on the types of facilities that may be provided for guests. (9) By "proactive" measures, on the other hand, I refer to policies that affirmatively encourage activities that are good for the public's health, adopted for the purpose of promoting public health. (10) Examples might include contracting with vendors to sell health food in the national forests for the purpose of improving visitors' health or designing a system of federally supported and controlled trails for the purpose of improving the nation's collective cardiac fitness, (11)

As for the national parks--the focus of this Article--the National Park Service ("NPS" or "Service") has long been committed to preventative public health and safety policies. (12) These are certainly authorized by the Service's organic statute, (13) and the Service's regulations and policy documents are filled with them. (14) Although safety-motivated limits on certain kinds of risky activities in the parks, such as hunting and platform jumping, can sometimes be controversial, (15) for the most part regulations meant to safeguard the safety of park users are sound and rarely raise the ire of politicians or the public.

In the past two years, however, the Administration of President George W. Bush has moved beyond preventative measures and taken a series of proactive steps designed to promote public health, exercise, and fitness on the public lands, including the national parks. In June of 2002, President Bush signed an executive order outlining steps for promoting fitness in the nation as a whole, including on the public lands. (16) The Director of the NPS praised this effort and pledged her support for it, (17) and soon thereafter, the Secretary of the Interior, who is ultimately responsible for the national parks, entered into a Memorandum of Understanding with a number of other agencies to take a variety of steps to promote fitness and public health on the public lands and elsewhere. (18)

Of course, a few statements, an Executive Order, and a Memorandum of Understanding do not by themselves mark any sort of paradigmatic shift in the recreational paradigm for the national parks, (19) but the developments nonetheless provide a fitting opportunity for considering whether it might make sense to adopt a health and fitness paradigm for the parks. Like most preventative measures, such proactive measures may also seem uncontroversial. After all, what could possibly be wrong with using the parks to promote the public's physical and mental health? Research shows that many Americans are unhealthy (20) and that many kinds of recreational activities that can be enjoyed in the parks have the potential for improving fitness and reducing stress, among other benefits. (21) It is therefore unsurprising that there appears to be no serious criticism of the President's proposal to use the parks as places for improving fitness and public health. (22)

Nonetheless, some caution is in order. This Article suggests that while promoting exercise and fitness in the national parks may be fine in small doses, such a project, to the extent it would actually affect park management decisions, raises important and difficult issues that go to the very purpose and meaning of our park system itself. (23) To understand why this is so, it is helpful to view any real or hypothetical fitness initiative through the lens of Joseph Sax's classic critique of motorized recreation and resort building in the parks, set out primarily in his slim but influential 1980 volume, Mountains Without Handrails: Reflections on the National Parks. (24) In that work, Sax, drawing on the thoughts of Frederick Law Olmsted, argued that the parks should be kept in near-pristine condition and placed off-limits to motorized vehicles and other blights such as ski resorts, tramways, and fancy hotels. (25) Such a management philosophy for the parks, Sax argued, would ensure that the parks remain places for visitors to reflect upon a pure natural setting, to find respite from daily urban life, and to nurture their independent spirit and contemplative faculties. (26)

Although promotion of exercise and fitness in the parks is a far cry from promoting off-road vehicles and extravagant resorts, Sax's lessons are relevant to assessing a recreational paradigm that favors fitness and exercise in the parks as well. Such a paradigm could potentially have significant effects on how the Service communicates with visitors, what facilities and activities are constructed or sponsored in the parks, how limited economic resources are allocated and prioritized within the system, what kinds of new units of parkland are added to the system, and how many people use the parks and their limited environmental and economic resources. What Sax's work teaches is that even small changes of these types can have profound effects not only on how visitors experience the parks, but also on how the parks function symbolically for us as citizens. If Sax is right that our parks ought to be preserved as places that stand in contrast to the conformity and competitive ethos of the cities, then promoting our national parks as national gyms may not be a wise idea. Much depends on what the modern emphasis on fitness signifies. An argument can certainly be made that an emphasis on fitness and exercise is more consistent with the striving and competitiveness of the urban environment than with the calm reflection of the natural environment that Sax endorses. A fitness paradigm, in other words, is subject to the criticism that it replicates our cities within our parks, rather than providing a respite from them. And as will be explained below, such a paradigm is subject to further criticisms derived from Sax's work as well.

My argument here is not necessarily that Sax is completely right in his theory of the parks (though I personally find him quite persuasive), or that even if he is completely right, that a fitness paradigm would necessarily be a terrible idea (though I think it has the potential to be pretty bad). The point is only to demonstrate that the Administration's fitness initiative raises important, interesting, and difficult theoretical questions regarding the basic purposes of our national parks. As a practical matter, these questions mandate that any Administration, including this one, which would seek to take significant steps towards implementing a public health recreational paradigm for the parks, ought to act with a full understanding of the problem and only after serious consideration, relatively formal processes, and an opportunity for meaningful public input.

This Article proceeds in two analytical Parts. Part II of the Article describes the current state of the law regarding public health in the national parks, showing that Congress and the Service have emphasized preventative measures far more than proactive measures, at least in the formal documents governing park management. This Part also describes the Bush Administration's fitness initiative as it relates to the national parks. Part III of the Article then analyzes the initiative from the perspective of Sax's thinking on recreational paradigms in the parks. After first describing Sax's position, this Part explains why promoting fitness and exercise in the parks may raise some of the same problems as promoting motorized recreation and resort-like facilities in the parks. The Article concludes by urging caution towards the fitness initiative as it applies to the parks and with a plea for the use of formal, open, and inclusive administrative procedures in promoting this or any other fitness initiative in these spectacular and historic natural preserves.


Congress established the National Park Service in 1916 to manage the national parks both to "conserve the scenery and the natural and historic objects and the wild life therein," and to "provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." (27) As many have observed, this "dual mandate" sets up a difficult tension for the Service, which must balance conservation with recreation to ensure that the parks can be enjoyed by current and future generations without the sacrifice of natural resources. (28) Although Congress has promulgated a number of statutory provisions governing the Service's management of the parks, both organically (applying to all units of the park system) and with respect to individual units of the park system, (29) it has also left much of the details regarding these management choices to the Service. The Service, in turn, has filled in many of these details through regulations published in the Code of Federal Regulations ("CFR"), management documents applicable to all units of the park system, Director's Orders, and management policies applicable to individual units of the park system. (30) This Part of the Article surveys these legal authorities to illustrate that the Service has been widely committed to preventative measures regarding public health and safety in the national parks but has not necessarily been widely proactive in promoting measures aimed at improving public health, exercise, and fitness. This Part then describes the President's recent fitness initiative as it applies to the park system and notes its departure from the prevailing recreational paradigm in the parks.


Although legislation establishing the Service and the parks themselves leave most management details regarding the parks to the discretion of the Secretary of the Interior, (31) the statutes do contain numerous provisions requiring the Secretary to take measures to keep visitors and park employees safe and healthy. This is true both with regard to organic legislation applying to all parks, as well as to legislation creating and governing specific units of the park system. For instance, the organic statute authorizes the Secretary to designate law enforcement personnel to "protect persons and property within areas of the National Park System," (32) appropriates funds to the Secretary to take steps to "reduce the incidence of violent crime" in the parks, (33) and authorizes the Secretary to contract for medical service for employees, (34) to aid and assist visitors in emergencies, (35) to conduct search and rescue operations in the parks, (36) and to remove and temporarily care for indigent individuals found in the parks. (37) The statutes creating and governing specific units of the park systems often contain even more specific provisions regarding the safety of park visitors. Hunting, for instance, is prohibited in most parks. (38) The statute governing the Grand Canyon National Park authorizes the Secretary to recommend regulatory measures regarding aircraft activity that "is likely to cause an injury to the health, welfare, or safety of visitors to the park." (39) The statute creating the Chesapeake and Ohio Canal National Historical Park requires that individuals crossing the park to reach non-federal lands for hunting purposes keep their dogs on leashes and unstring their hunting bows. (40)

Not surprisingly, Service regulations implement and expound upon these safety provisions. A glance through the relevant volume of the Code of Federal Regulations (Chapter 36, Parts 1 through 199) reveals numerous regulatory provisions intended to protect the safety of park users. These regulations run the gamut from general provisions authorizing park superintendents to close or limit uses in certain areas of their parks if "necessary for the maintenance of public health and safety," (41) to safety regulations governing hunting, (42) weapon use, (43) fires, (44) snowmobiling, (45) skating, (46) alcohol use, (47) explosives, (48) reckless boating, (49) the use of safety belts, (50) and surfing, (51) among others. (52) Regulations in the CFR governing specific parks contain similar restrictions, (53) and the rules promulgated by the superintendents of those parks elaborate on the safety requirements in an even more detailed fashion. (54)

Less formal Service policy documents and sources also evidence a concern for park safety and provide for specific health and safety standards in the parks. For example, the most recent five-year Strategic Plan for the national parks emphasizes as one of its primary mission goals the safe enjoyment of the parks, (55) and it pledges that the Service will conduct "[i]nternal review to assess the Safety program's effectiveness of providing a safe and healthy environment for work and visitation." (56) Likewise, the most recent volume of the Service's Management Policies, (57) the "basic service-wide policy document of the National Park Service," (58) adherence to which is generally mandatory, (59) expresses a strong concern for public safety in the parks. The chapter of that document addressing the use of the parks, for instance, states that "the Service will not allow visitors to conduct activities that ... [c]reate an unsafe or unhealthful environment for other visitors or employees," (60) and proclaims that "[t]he saving of human life will take precedence over all other management actions as the Park Service strives to protect human life and provide for injury free visits." (61) Various provisions of the document implement these general statements (as well as the statutory and regulatory requirements applicable to the parks) through specific safety policies governing such activities and services as backcountry hiking, (62) BASE jumping, (63) search and rescue operations, (64) construction of facilities, (65) and food services. (66)

Worth special note is a document called Director's Order No. 83, issued by Service Director Robert Stanton in August of 1999, concerning public health in the national parks. (67) Director's Orders are policy documents issued from time to time by the Director of the Service on various topics of concern to park managers. (68) These orders "serve as a vehicle to clarify or supplement Management Policies to meet the needs of NPS managers," (69) and "provide specific instructions and outline requirements applicable to NPS functions, programs and activities." (70) Order No. 83 sets out the general policy of the Service "to protect the health and well-being of NPS employees and park visitors through the elimination or control of disease agents and the various modes of their transmission to man and to ensure compliance with applicable federal, state and local public health laws, regulations and ordinances," (71) and then it details specific public health policies relating to a variety of park services, including drinking water supplies, (72) wastewater management, (73) bathing beaches, (74) swimming pools, (75) and hot tubs. (76) A very detailed website related to this Order provides even more specific information regarding public health policies and issues in the national parks. (77)


Although the legal authorities and policy documents relating to the parks are heavy on references to protecting guests and employees from accidents and other risks to their health and safety, (78) these same sources do not evidence much intent on the part of Congress, the Department of Interior, or the Service to use park resources proactively to promote public health or fitness. (79) To be sure, policy documents have very occasionally cited the promotion of public health as a goal of the parks. (80) For example, the Management Policies document provides that the Service will "encourage visitor activities" that, among other things, "[a]re inspirational, educational, or healthful, and otherwise appropriate to the park environment," (81) and a report of the National Park System Advisory Board (82) states, in the context of discussing the goal of promoting outdoor recreation in the parks, that "[o]utdoor recreation has become essential to the mental and physical health of Americans." (83) Moreover, a few statutory and regulatory provisions do appear aimed at promoting the health of certain, very limited populations of park users. (84) For the most part, however, the discourse of public health, exercise, and fitness is absent from the formal documents governing park management. (85)

This absence is particularly notable because of the many other goals, purposes, and factors that are mentioned in these legal authorities. When talking about the purposes of the parks, the statutes refer to "enjoyment," (86) "scenic enjoyment," (87) "benefit," (88) "common benefit," (89) and "inspiration," (90) but not health or fitness. Congress has established parks for a variety of specific purposes, including preservation and promotion of historical, (91) cultural, (92) archaeological, (93) environmental, (94) and even artistic resources, (95) but not specifically for promotion of health or fitness. The statutes list various factors for the Service to consider when proposing new units for inclusion in the park system, but the potential for promotion of health or fitness is not among them. (96 Congress requires each unit of the system to create a management plan, but these detailed plans need not contain provisions for promoting health or fitness. (97) The most recent Strategic Plan issued by the Service contains a variety of goals for the parks, including the promotion of historical, cultural, geological, and archaeological resources, but not health or fitness. (98)

President George W. Bush's recent fitness initiative thus represents a potentially sharp departure from the pre-initiative state of affairs. (99) The President, who is himself known for his rigorous exercise schedule, (100) launched this initiative in June of 2002 with a weekend of activities, including a fitness exposition on the South Lawn of the White House and a charity run for White House employees. (101) Proclaiming that "[b]etter health is an individual responsibility, and it is an important national goal," (102) Bush also announced the signing of two Executive Orders designed to promote national fitness. The first of these orders established a Council on Physical Fitness and Sports, an advisory body consisting of twenty members which is required to advise the Secretary of Health and Human Services "on ways to enhance opportunities for participation in physical fitness and sports." (103) The second order, entitled "Activities to Promote Personal Fitness," encourages federal agencies to take steps to promote exercise and fitness among the American people. (104) After stating his finding that "an increasing number of Americans are suffering from negligible physical activity, poor dietary habits, [and] insufficient utilization of preventative health screenings," (105) the President ordered nine federal agencies, including the Department of the Interior, to "review and evaluate the policies, programs, and regulations of their respective departments and offices that in any way relate to the personal fitness of the general public," and to determine whether to modify those policies or adopt new policies to "improve the Federal government's assistance" to private and state parties to increase physical activity and other forms of health and fitness. (106)

The public lands played a prominent role in the President's general fitness initiative. Interior Secretary Gale Norton, presumably at the President's request, waived all entrance fees for a weekend to the national parks, forests, and other lands. (107) Praising this decision, the President said: "Regular hiking through a park can add years to a person's life . …

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