Wednesday, January 20, 2016

BMP & DEIS: Comment on Park Access Across the Havasupai Reservation Addition

Comment on Grand Canyon National Park Backcountry Management Plan, 
with respect to Access to the Park Across the Addition to the Havasupai Reservation
January 15, 2016

Jeffrey Ingram        
Tucson, Arizona
In passing the 1975 Grand Canyon National Park Enlargement Act, Congress created a singular ownership/management arrangement for the south side of the central portion of the Grand Canyon (river miles 116.5 to 164.5). Subject to fierce debate, capping a near century-long struggle by the Havasupai, the 1975 Act mandated a complex compromise of the desires of National Park advocates and the Havasupai, an arrangement that envisioned a permanent relationship between the Havasupai, the National Park Service, both under the aegis of the Secretary of the Interior, and the public.

The compromise recognized: 
the 1882 Havasupai Reservation; 
a 185,000-acre addition to that Reservation; 
to the north and east of the addition, the National Park; 
and between the Reservation addition and the Colorado River, a 95,300-acre zoning of the Park labelled the Havasupai Use Lands, which parkland the Havasupai were permitted to use for “grazing and other traditional purposes”, subject to Secretarial “reasonable regulations” to protect the lands’ scenic, natural, and wildlife values. The reasonable regulations covering the Havasupai Use Lands were worked on between Park Service and the Havasupai in the late 1970’s, resulting in a Memorandum of Understanding referred to in the BMP as being finalized on 20 Sep 1982.
  The boundary between the Reservation addition and the Use Lands in the Park was set by the 1975 Act to be ¼-mile back from the outer gorge rim, roughly paralleling the course of the Colorado.

The addition was made subject to seven provisions; these three are pertinent:
  (7) except for uses specified in the Act, the addition was to remain “forever wild”;
  (4) the Secretary, in consultation with the Havasupai, was to develop a Land Use Plan which shall not be inconsistent with, or detract from, park uses and values. This plan was to be subject to public review and hearings, and submission to Congress. Any plan revisions shall be subject to the same procedures. (The Secretarial Land Use Plan was effective January 1982; it has not been revised.)
  (6) In order to visit Park land adjacent to the addition, nonmembers of the tribe shall be permitted to have access across the addition at locations established by the Secretary in consultation with the Tribal Council; 
  (6) A second part of this provision, applying only to the addition, says that with the consent of the tribe, nonmembers may be permitted to enter and temporarily utilize for recreation purposes addition lands in accordance with the approved Secretarial land use plan. This provision does NOT affect lands in, or use of, any part of the Park; it was included to remove any doubt that the Havasupai could provide remunerated recreation services for visitors on their addition. This provision is not involved in any determination of  park uses covered by the Park’s Backcountry Plan.

Both the Havasupai and the National Park Service seem to have lost sight of the public access aspects of the hard-won 1975 compromise. There seems to have been little significant interaction or consultation between Havasupai and NPS over the past 30-40 years, in spite of 1975 Act encouragement of such interaction. As a result the situation for access to the Park across the Havasupai addition is at best ambiguous, at worst hostile, to those wishing to visit the Park. Under this “policy” of minimal interaction, the BMP has gone in the wrong direction with respect to Park access.

Here is what the BMP (pp 53-4) says:
“NPS would work with the Havasupai Tribal Council to determine appropriate level of access across Great Thumb on the Havasupai Reservation. A pilot program is being developed by Grand Canyon and the Havasupai Tribe to permit ten small groups (1-6 people per group) access across Great Thumb Mesa to backcountry areas in the park from March through May. Some permit conditions being considered to protect tribal natural and cultural resources include requirements for tribal escort on reservation lands, two vehicle maximum per group, four-wheel drive and high clearance vehicles, and assigned parking.”

This entire program is wrongly faced, since the implication here is that access designation might become a joint endeavor of the Park Service and the Havasupai (and without visitor participation). The correct approach understands that establishing access to the Park over the addition is a Park Service responsibility & mandate as set up by the 1975 Act. The Havasupai are only to be “consulted”, not empowered to determine access. As shown by the word “pilot”, the Park Service has neither data nor organized experience to judge whether 10 groups of 4 or 40 groups of 7 will be adequate.  Instead of this baseless pilot program, the Park Service should make an intensive effort during the BMP comment period to identify and learn from the visitors who are concerned & knowledgeable about access to the Park across the addition. The Great Thumb is one of the Canyon’s great viewing platforms. Getting to the rim, along it at various points, and down from it into the interior of the Canyon should be a major Park Service goal for this area of the Canyon. 

It was fully the intention of those working on the 1975 legislation that the public’s interest in, and visitation to, the Grand Canyon National Park was to be honored as one of the provisions of the Havasupai being granted its addition. That is why the zoning called “Havasupai Use Land” was kept as part of the Park, and it is why the public was to have permanent, unimpeded access across the addition to the Park. That is, under the provisions of the 1975 law, access across the addition MUST NOT be shut off. The Havasupai are certainly in violation of the law that granted them the addition by their erecting a steel gate at the Topacoba road cutoff and arbitrarily locking it with a chain and padlock, even if at other times the gate is left unlocked.

To repeat, there is no way in the legislative consideration of the Havasupai grant that an interpretation can be found that permits the Havasupai to close off access to national park lands across their addition. Moreover, it is the Secretary (through NPS, in the usual course of affairs) who sets where the access is to be; — consulting with the Havasupai, yes, but not in any way that closes off access. 
Given that the Havasupai cannot prevent access to the Park across the addition, two obvious problems still arise: Can the Havasupai encumber access to the Park 1) by charging prohibitive fees, and 2) by so defining travel over the addition that some areas in the Park cannot practicably be reached by the public? Yet these two crucial matters, of which the Park Service is aware, are not considered in the draft BMP-DEIS. Interested users of the parkland adjacent to the addition are therefore left in limbo as to what they may encounter from the Havasupai when such users attempt to exercise their legislated right to cross the addition to reach the park. 

The Havasupai attitude toward public use was laid down some 35 years ago in the part of their Land Use Plan on recreation use on the addition (p 30):
There would be three primitive campsites “all located within easy walking distance of the rim along existing trails and offer a variety of views, which, the tribe feels, should amply satisfy the most avid outdoorsmen”. (my underlining)
The lack of empathy and understanding from the Havasupai toward those of us who enjoy the Canyon is all too evident in this insulting mischaracterization. It is not an attitude that the Park Service should allow itself to be guided or limited by, since the Havasupai have not shown themselves to be scrupulous about the compromise that is the foundation of the 1975 legislation.

Even more misleading is the Land Use Plan’s error on public access to the Park (p 27), when it claims access to the “Havasupai Traditional Use Area” within the Park will be available above the Canyon’s rim “over routes designated by the Tribe and the Secretary”. However, the routes are NOT to be designated by the Tribe, but by the Secretary (Park Service), which is to consult the Havasupai. The legislation was framed to prevent the Havasupai from being able to veto Park access. 

And still more erroneous is the Havasupai  Use Plan’s further statement on 27 that access below the Grand Canyon’s rim will be limited to (1) Havasu Creek from the Colorado River to “below” Beaver Falls. (An error: Beaver Falls is inside the Park, and was not made Havasupai land in the 1975 legislation.)
(2) The Apache Point Trail, and 
(3) the Great Thumb Deer Trail. 

Since the Havasupai have only limited uses in the “Use Area”, and since public visitors have accumulated a large amount of experience and information about lands below the rim, this illegal attempt by the Havasupai to drastically curtail access below the rim provides reinforcement for the need by the Park Service to carry out its responsibility to designate, on behalf of the Secretary, access to the Park; consulting the Havasupai by informing the Tribal Council; and working with the public to implement the two-way effort between Park Service and public user to protect the park and provide access.

Page 27 of the Havasupai Plan offers further reinforcement for Park Service action on access to the Park over the addition in two further statements. (1) The Havasupai consider the Great Thumb as “both remote and dangerous”. Perhaps for Havasupai in the 1970’s this was true. Today, visitor use to this area, as to most of the Park, from the river up through to the rimlands, has expanded public knowledge from scattered to widely spread. As always, care by visitors for themselves and the Canyon is essential, but the notion is outdated that Havasupai scrutiny of access is needed for safety and environmental protection.
(2) By closing off ANY access to the Grand Canyon west of Havasu Canyon the Land Use Plan further illustrated the need to protect public access from Havasupai over-reaching.
It is most unfortunate that the Havasupai have not observed the terms of the hard-won compromises in the 1975 enlargement Act. For 40 years, the opportunity has been ignored to establish positive relations with the public wishing to visit the Park and therefore needing to cross the addition, an opportunity in which the public could have been educated as well about the Havasupai.

The Park Service should use the occasion of producing an updated BMP to establish the 1975 Act as its guide to the way the visiting public exercises its right to access the Park. The requirement laid on the Havasupai is to NOT PREVENT visitor access to the Park.  The Park Service has the opposite requirement, to ENABLE the visitor to gain and use access over the addition in a way that avoids the possibility of difficulties like fires, public endangerment, environmental destruction, poaching, and other problems that the Park Service has a duty to prevent from degrading the Grand Canyon. 

The Great Thumb has certain characteristics that require Park Service alertness — the presence of bighorn, for instance. The stated concern by Havasupai that they fear wildlife poaching, hunting season safety, and sensitive cultural site disturbance (p 472, BMP) are no different from concerns for such matters on the Park. No doubt there is also concern about grazing activities (traditional or not) in the area and their potential to disturb cultural sites, wildlife habitat, and other Canyon resources.  The basic step for the Park Service to take is to provide for access across to the Park in ways that educate visitors about concerns of both the Park and the Havasupai. 

It might be worthwhile for the GCNP administration to consider what would be necessary to replace the hostility of the Havasupai toward Park visitors. The attitude of the Havasupai is mired in a long history of being mistreated. Park visitors should not be the ones to bear the brunt of Havasupai resentment, no matter how justified by differing historical perspectives. The Park Service should be striving to see that visitors using the Havasupai addition for Park access enjoy treatment equivalent in respect and support to other Park areas. The point of the 1975 Act’s provision for access was not to enthrone the Havasupai as a gauntlet to be run by the Park visitor, but to ensure that Park visitors would be able to cross the Havasupai addition in order to get to the Park as if the land were another sort of federal land. This stance toward the addition as access to the Park is embedded in the compromise that is the foundation for the 1975 Act.

Therefore, the Park Service needs to revise the BMP to follow the mandates of the 1975 Act, by designating locations across the addition, thus establishing access by the Secretary, as the Act mandates. To satisfy consultation with the Tribal Council, and given the difficulties the Park Service has had in carrying out this provision of the 1975 Act over the years, the Park Service should interpret “consultation” as informing the Tribal Council of proposed designated locations as part of the BMP, and informing the Council of its finalized locations after the BMP is approved. It goes without saying that the Havasupai and the public would be able to comment on access locations during the process of BMP public review. As I showed above, the process of designating access across the addition is NOT a function of the Secretarial Land Use Plan, and is NOT, and ought not to be, under the control of the Havasupai. Such designation can only practically and sensibly be handled under the initiative of the Park Service as authorized by Secretary. 

Unfortunately, in the current Draft EIS for the proposed Grand Canyon National Park BMP, the Park Service announces that it has abandoned its duty as the appropriate agency to insure public access by accepting the Havasupai’s unlawful closure of the road onto the Great Thumb. Visitors trying to access the Park on and under Great Thumb Mesa already pay $25 (at this writing) to enter through the Havasupai’s eastern entrance to the 1975 addition. No doubt, the question of financial barriers to National Park visitation, as noted above, is a live one, but whether that is an apposite argument to make with respect to this area, there is no question that shutting off all access to the Park in the Great Thumb area is a violation of the law, which the Park Service, under the 1975 law’s mandate and as the Secretary’s agent, should be working to render moot, rather than appearing to endorse the Havasupai’s actions that undermine the compromise they agreed to and that made possible their obtaining the addition. The BMP should be amended to make the statutory position clear, and to effectuate that position by designating access locations. 

Possibly the Park Service has been intimidated about following the 1975 Act because of the above-described erroneous wording in the Secretarial Land Use Plan, in which, on p. 27, the 1975 Act is mis-read to mean that public access to the Park is to be “over routes designated by the Tribe and the Secretary”. Whatever might have been intended by this provision, the past 40 years have made it moot, and it is time to return to the 1975 Act as guide: the Secretary designates; the Tribe is consulted, consultation that would be satisfied by notification. Consultation cannot constitute a veto over access. 

The Land Use Plan goes further, as I pointed out, limiting routes to reach parkland below the rim to the Great Thumb Deer and Apache Point Trails. Even broadly interpreted, this means that land off the western side of the Thumb and off the western section of the addition would be unavailable if the Land Use Plan were to be considered as other than offering the opinion of the Havasupai as to adequate access. The Park Service should, of course, take this opinion of the Havasupai into consideration, just as it should consider the opinions of the user public as to whether such limitations on access are sensible. 

The point is, and here is the crux of the matter, it is the job of the National Park Service to designate access to its lands, including access across the Havasupai addition. The Park Service cannot surrender its legal duty through inapplicable formulations like the statement in the BMP DEIS  that “The Havasupai Tribe does not currently permit access across Great Thumb Mesa (Havasupai Reservation) to backcountry users.”  The Park Service needs to face up to its responsibility to designate access, instead of seeming to validate the Havasupai’s illegal denial of access.

A sensible, legal, approach would be for a corrected BMP to lay out a set of appropriate access locations. The Havasupai and the public may then comment, and NPS can finally settle on the access locations (including explanations for why any desirable and practicable access is omitted). After that point, the Park can bring forward limitations if needed on trips based on consideration of the Grand Canyon as a resource and recreational source, and perhaps even lead the way toward improving attitudes and relations between the public and the Havasupai.  Such efforts would be in order, of course, only after the legal requirement for access location designation is satisfied.

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