Park Service Encourages Violation of Plant Removal Rules

Contrary to long-standing rules, national park managers are allowing
Native Americans, even those not affiliated with any
federally-recognized Tribes, to gather entire plants, roots or other
plant parts from parks, according to agency documents reviewed by Public
Employees for Environmental Responsibility (PEER). This widespread
noncompliance occurs with the support of the National Park Service (NPS)
Director who has declared the rules to be "wrong" and vowed their
repeal.

There has been a general prohibition against removing plants,
wildlife and other resources since the very first park system rules in
1936. The current version of the regulation was adopted during the
Reagan administration in 1983, following the 1978 American Indian
Religious Freedom Act (AIRFA).

Documents obtained by PEER under the Freedom of Information
Act evidence widespread violation of these rules. Some park managers
have done so by permits. Other parks such as Zion, Bryce and Pipe
Springs entered into Memoranda of Understanding, without public
involvement or required environmental reviews, and improperly citing
AIRFA as authority, in open contradiction of the NPS' official rules.
Many of other violations are under the table without a paper trail,
however. For example in 2009, the acting Superintendent of Yosemite
National Park advised a gathering of Indians that they could take any
plant they wished and did not need either a permit, or to report what or
how much they had taken.

"In clear defiance of regulations, the Park Service has
adopted a 'don't ask, don't tell' posture on Indian removal of plants,"
stated PEER Executive Director Jeff Ruch, pointing to a formal legal
opinion by the Interior Office of the Solicitor underlining that NPS is
legally required to protect park resources absent an explicit
congressional waiver. "Any decision made by the Park Service to
completely reverse course on protecting plants has direct implications
for park wildlife, minerals and cultural artifacts. As with plants, a
number of Tribes still claim hunting or other gathering rights on a
score of iconic national parks."

This unofficial rejection of the "no-gather" regulation
appears to be led by Jon Jarvis, both as a Regional Director and now as
NPS Director. At a Tribal Consultation meeting with Cherokee officials
on July 16, 2010 concerning the gathering of ramps (a wild onion) in
Great Smoky Mountains National Park, Jarvis declared that the regulation
is "just wrong" and would be changed soon: "It became a mission of
mine to fix this. Now, that I'm director, I'm in a position to fix it."

Director Jarvis cannot unilaterally change a federal
regulation. Document requests by PEER have not yielded any evidence
that the complicated process for regulatory rewrite has even begun.
There are also questions about whether Indians would be subject to
limits of sustainability and who would enforce those limits. Moreover,
it not at all clear that NPS is entitled to okay harvest of plants
without a change in law.

"Director Jarvis's sentiments may be heartfelt but our
national park system cannot be governed by sentiment," added Ruch, who
today asked the Interior Office of Inspector general to review the
conduct of Jarvis and other senior NPS managers. "Jon Jarvis took an
oath to uphold the law and he may not selectively ignore the regulations
he does not personally appreciate."