K FRIDAY, MAY 27, 1988 mient Woulu Freedom Help the National Park Service? By PHILIP SHABECOFF Special to The New York Times WASHINGTON, May 25 Their contention is that the National Park Service has been treated like an ideological soccer ball, kicked around by political appointees of both Democratic and Republican administrations in the last 20 years. So, some members of Congress, conservationists and former park officials have begun pressing to turn the service Into an independent agency. Political appointees in the Interior Department, including Interior Secretary Donald P. Hodel, contend that this is an unsound idea and that the nation's parks are being well-managed under the existing system. Legislation that would put the Park Service under the authority of an independent three-member review panel has been introduced in recent weeks by Senator Bill Bradley of New Jersey and Representative Bruce F. Vento of Minnesota, both Democrats. The legislation would also have the director of the Park Service appointed by the President, rather than the Interior Secretary, and confirmed by Congress While the service would remain nominally within the Interior Department, the proposed legislation would remove it from the authority of the Secretary of the Interior and other political appointees within the department. Congressional aides said it was Stan Barh Representative Bruce F. Vento, above, introduced bill to make the park service an independent agency. Interior Secretary Donald P. Hodel, right, regards the move as "an old political ploy." Critics say political too early to say whether Congress appointees are will approve the legislation. Serious Breakdown' Is Seen Mr. Vento, who is chairman of the hurting the House Interior Committee's Subcom system. mittee on National Parks and Public Lands, said at a hearing on the bill that the park service, which was established in 1916, had grown to be "one of the most respected professional organizations in the national Government." But he added: "Unfortunately, the wide popularity of the national park system soon attracted the attention of the political opportunists, and in the last 20 years we have seen a serious breakdown of sound, long-term management, designed and built to protect our greatest natural and historical treasures. This breakdown has resulted in a management system designed primarily to meet short-term political goals." Mr. Vento said that, under the Reagan Administration, professionals in the service had been replaced with political appointees, demotions and forced resignations had been carried out for political reasons and an attempt had been made to "privatize" some park units. Senator Bradley complained that "too often, field recommendations have been reversed by higher department officials in accordance with national park policies that are at odds with the preservation of this national resource heritage." "For example," he added, "this Administration refuses to provide sig. nificant funding for land acquisition, historic acquisition or basic construction projects within national park units." Howard H. Chapman, who recently retired as a regional director of the National Park Service,/cited several examples of how the Administra tion's appointees had interfered with the "professionalism of the National Park Service." He reported that an assistant secretary had prevented him from carrying out part of a land protection plan for Yosemite National Park that called for buying out private landholdings inside the park, even though such purchases were au He also charged that William Penn Mott Jr., the director of the park service, had been "directed by the department to give politically motivated testimony" before the parks subcommittee. He said Mr. Mott had testified against a bill to protect the Grand Canyon from low-flying aircraft even though "he had personally stated on many occasions prior to that time that aircraft should be prohibited from flying down in the canyon." In a telephone interview, Mr. Mott confirmed that he had been required by political leaders of the department and the Office of Management and Budget, a White House agency, to give testimony on aircraft in the Grand Canyon and on other issues that was contrary to his own professional judgment. But he added that "everybody knew where I stood." Political Appointees Blamed George B. Hartzog Jr., a former director of the park service, said that in recent years political appointees and their staffs, "who more often than not have neither background nor expertence on their side, have taken upon themselves to usurp park manage ment responsibilities.' In so doing, he told the subcommit tee, they have "undermined the professional foundations of the service, have demoralized its disciplined, dedicated and talented career employees and have created a management house divided against itself pitting career bureacrat against political bureaucrat." Conservationists contend that political interference in the management of the park system is threatening the future of many of the parks. On Tuesday the Wilderness Society. - an environmental group, issued a report on what it considered the 10 most endangered parks and said that "the threats to these parks run the gamut from clear-cutting and oil drilling on their perimeters to low-flying heltcopters and bombers." Listed were the Everglades, Glacier, Grand Can yon, Great Smokies, Olympic, Rocky Mountain, Yellowstone and Yosembe national parks, the Santa Monica Mountains National Recrecreation Area and the Manassas National Bettlefield Park. "This is a shabby way to treat ue very best of our national heritage" said George T. Frampton Jr., the president of the Wilderness Society. Some critics who contend that the park system is being compromised by political meddling say the Bradley-Vento legislation does not go far enough. Paul C. Pritchard, presidest of the National Parks and Conservation Association, a conservation group, said in an interview that the service ought to be "a truly independ ent agency" that is completely re moved from the Interior Department. Department officials deny undue political interference in the manage ment of the park system. They say they are being good stewards of the system and contend that the system grew so rapidly in the 1970's that it re quires a period of consolidation. 'An Old Political Ploy Secretary Hodel said through spokesman, David Prosperi, that the the effort to make the park service an independent agency "is an old polit cal ploy if you can't force you political views on an agency, than make the agency Independent." Mr. Mott told the parks subcommit tee in his prepared testimony that he "emphatically" opposed to making the service a separate entity. He als noted that the park service and other bureaus of the Interior Department were made specifically accountable to the Secretary under a reorganiz tion plan adopted in the Truman Ad ministration in 1950. Mr. Mott said an independent re view board might be just as likely to impose its own political agenda as a Secretary of the Interior. But Mr. Mott agreed that the park service director should be appointed by the President and approved by Congress, and added: "It would be nice if we would be free to express our professional judgment without in Office of Management and Budget terference by the Secretary and the don't know if that is practical, how! ever." This letter presents the views of the Department of Justice on H.R. 3964, a bill to establish a National Park System Review Board ("Board") and create a National Park Service headed by a Director. The Director, who is appointed by the President subject to Senate advise and consent, is removable by the President only for inefficiency, neglect of duty, or malfeasance in office. Sec. 2(a). He is also authorized to communicate with Congress "without review, clearance, of approval by any other administrative authority." Sec. 2(d). Because both these provisions unconstitutionally infringe on the President's constitutional authority, the Department will recommend that the President veto the bill unless it is amended to cure these violations. The bill also provides that the Board must maintain continuing review of the programs and activities of the National Park Service and national park system units; submit annual recommendations for improved management; and transmit the annual report and the budget request and provide any other information on the request of any committee or subcommittee of Congress . . . without review, clearance, or approval by any other administrative authority" except to the extent the Board deems such review appropriate. Sec. 1(a). Because these activities are advisory, not executive, in nature, the restriction on removal, Sec. 1(b), and the provision for independent submissions to Congress do not raise constitutional concerns. Furthermore, while Congress can authorize the Board to secure materials otherwise protected by section 552 through 552 (b) of title 5, Sec. 1(g), the bill cannot be lawfully construed to authorize the Board to deliver to Congress any materials independently protected by executive privilege. United States v. Nixon, 418 U.S. 683 (1974). 2 The language of sections 2(a) limiting removal of the Director to "inefficiency, neglect of duty, or malfeasance in office" makes the constitutional problem unavoidable, as the phrase is precisely the same one used in Humphrey's Executor v. United States, 295 U.S. 602, 619 (1935). It must therefore be assumed The limitations on removal infringe on the President's constitutional responsibility to "take Care that the Laws be faithfully executed." U.S. Const., Art. II, section 3. The functions of the Director of the National Park Service are purely executive. The bill directs the Secretary of the Interior to delegate to the Director "all functions and authorities of the Secretary regarding the administration of the National Park System .. Sec. 2(b). The Director is guaranteed independence from any other administrative authority in submitting budgetary requests or providing any other information to Congress, with the additional guarantee that neither the Director or any officer and employees of the National Park Service is "responsible to, or subject to the supervision or direction of" officers, employees, or agents of the Department of the Interior. Sec. 2(d). Given these powers, the limitations on removal infringe on the President's constitutional responsibility to "take Care that the Laws be faithfully executed." U.S. Const., Art. II, section 3. The functions of the Director clearly involve "[i]nterpreting a law enacted by Congress to implement the legislative mandate," which "plainly entail[s] execution of the law in constitutional terms." Bowsher v. Synar, 106 S. Ct. 3181, 3192 (1986). He does not adjudicate cases concerning individual rights or grants or denies claims of individuals. His functions do not "require absolute freedom from Executive interference, Wiener v. United States, 357 U.S. 349, 353 (1958), nor is he the head of a "quasi-legislative or quasi-judicial" agency, such as the one at issue in Humphrey's Executor, 295 U.S. 602, 630 (1935). Given that the Director would be performing executive functions, the Director must be subject to removal by the President without restriction. Myers v. United States, 272 U.S. 52, 162-64, 177 (1926). Section 2(d)'s guarantee of independence to the Director in providing budget and other information to Congress is similarly infirm. The Director, as a subordinate Executive branch officer, is subject to the complete supervision of the President with respect to carrying out his executive functions. This power 2 (Cont.) that Congress intends to make the Director, like the Chairmen of the Federal Trade Commission or the Interstate Commerce Commission, the head of a so-called "independent agency." 3 Unlike the War Claims Commission at issue in Wiener, the National Park Service is not "established as an adjudicating body with all the paraphernalia by which legal questions are put to the test of proof." Id. at 354. As in the similar provision affecting the Board, Sec. 1(a), we emphasize that Congress cannot require an executive branch officer to provide materials to Congress, or to the Board, Sec. 1(g), that are protected by executive privilege. See supra note 1. - 2 includes the right to supervise and review the work of the Director, which the President can freely delegate to an administrative authority." Because the bill seeks to unconditionally free the Director to transmit information to Congress "without review, clearance, or approval by any other administrative authority," even if such review were required by the President, it is an unconstitutional impairment of the unitary powers of the executive branch. Due to the manifest interference with the President's authority to control executive branch officers, the Department of Justice would be constrained to recommend that the President veto this legislation should it be enacted in its present form. The Office of Management and Budget has advised this Department that it has no objection to the submission of this report to Congress, and that the enactment of H.R.3964 in its current form would not be in accord with the program of the President. Sincerely, Thi Bond Thomas M. Boyd Acting Assistant Attorney General SUBJECT: House Committee on Interior and Insular Affairs, American Law Division Response to Justice Department Comments on the Validity of the For H.R. 3964 would alter the current administrative structure of the Department of Interior by establishing the National Park Service (NPS) as a functionally and legally separate and independent entity within it. It would accomplish this, first, by making the Director of the NPS, who would be appointed by the President with the advice and consent of the Senate for a five year term, removable "only for inefficiency, neglect of duty, or malfeasance in office" (Section 2(a)); and, second, by requiring the Secretary of the Interior to delegate to the Director "all functions and authorities of the Secretary regarding the administration of the National Park Service and all other functions and authorities exercised by the Director of the National Park Service as of the enactment of this Act." (Section 2(b)). The Director is also authorized to directly transmit budget requests for the NPS to Congress, and to provide "any other information by report, testimony, or otherwise, without review, clearance, or approval by any other administrative authority." (section 2(d). Finally, the proposal declares that neither the Director or his subordinates in the NPS shall "be responsible to or subject to the supervision or direction of, any officer or employee, or agent of any part of the Department of Interior" in performing their functions under the bill. (Section ... |