Mather had spared no expense in outfitting his guests. Each man had a new sleeping bag and air mattress which combined to make a classy and perfectly comfortable wilderness bed. There were horses to carry the men and mules to carry the supplies, which included a bountiful stock of fresh fruit, fresh eggs and other delicacies. . . . As camp was pitched, Tie Sing, a marvelous camp cook whom Mather had borrowed from the U.S. Geological Survey for the occasion, would construct a dining table, usually out of logs, and then . . . a linen table cloth would show up, and real napkins for everybody. Tie Sing would put together his collapsible stoves and calmly prepare soup, lettuce salad, fried chicken, venison and gravy, potatoes, hot rolls, apple pie, cheese, tea and coffee.
Just as Mather had hoped, generous support and lavish publicity in favor of the parks began to roll out; the April 1916 issue of National Geographic was wholly devoted to the national parks. By August 25, right on schedule, President Wilson signed the bill creating the National Park Service and Mather became its first director.
As one reviews the early history of the national parks, what at first seems an astonishing anomaly begins to take shape as a series of events very much in tune with contemporary American attitudes, helped along mightily by friends of extraordinary skill, ability, and influence.
The attractiveness and success of the idea of creating national parks, however, is easier to understand than the content of “the national parks idea.” In recent years, as tourism has grown, the parks have been at the center of many controversies over the question, What kinds of recreational uses ought the national park system serve? All agree that the parks are for public use and that their great scenery must be protected from destruction. To recognize these fundamentals, however, is hardly to begin to deal with the questions raised by the competing claims of the many constituencies of park users. Should hotels and other accommodations be permitted within the parks or should they be located outside the park boundaries? Should the park service put in more camping facilities and supportive services to accommodate the ever growing number of people who want to use the parks or should access and use be limited so as to provide an uncrowded recreational experience? Is it proper to open the parks to snowmobiles or elaborate downhill skiing operations? Other, less obvious questions arise, such as, Should the park service permit concessionaires to advertise to attract business conventions to the parks—even in the off-season when their facilities are not otherwise full?
The usual place to look for answers to such questions is in the history of congressional enactments establishing the national parks, for it is Congress that is supposed to make national park policy. A detailed examination of that history, however, would not only be tedious but fruitless because in the many decades that have passed since Yosemite was first established, Congress has never resolved or even grappled with these hard questions.
Congress long ago established that the parks should be protected against destruction and that they should be made available to the ordinary citizen, rather than preempted as a preserve for the rich. But to say that the parks are for the people is not necessarily to say that they are for intensive mass recreational use.
All we really know about congressional intent is that there were some activities that Congress did not want in the parks. With rare exceptions, mining and dam building have been prohibited in the parks for many years. Unlike the national forests, the parks have not been set aside for multiple use—recreation and grazing, timber harvesting and wildlife conservation. Gifford Pinchot, then chief forester of the United States and a spokesman for scientific forest management, fought and lost that battle against the conservationists—he called them “nature fakirs”—in 1916. In that year, despite Pinchot’s best efforts, Congress enacted the only general policy mandate it has ever issued for the parks, and it continues to be the central statement of park policy today. The so-called Organic Act is a clear repudiation of those who wanted the parks to be used for industrial purposes as well as conservation and recreation, but it says nothing about the balance to be drawn between preservation and use so as to resolve the issues that are being raised today by MCA and other aggressive concessionaires. The Organic Act simply says:
The [National Park Service] shall promote and regulate the use of the Federal areas known as national parks . . . by such means and measures as conform to the fundamental purpose of said parks . . . which is 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.
Conservation for posterity is the stated purpose of the parks, but that hardly tells us whether ski lifts, winterized roads, and improved hotels are appropriate. A more recent law, enacted in 1965, adds nothing to our understanding; it merely says it “is the policy of the Congress that such development [in the parks] shall be limited to those that are necessary and appropriate for public use and enjoyment of the national park area in which they are located and that are consistent to the highest practicable degree with the preservation and conservation of the areas.” The intent of Congress is simply not known. It would probably be more accurate to say that there does not exist any explicit intention.
To understand national parks legislation, we must adopt a rarely taken approach. In passing laws, Congress often does not initiate the ideas that it transforms into statutes; rather it acquiesces in, and associates itself with, the views of private citizens who have urged those ideas on it. Without fully exploring those ideas for itself, Congress acts to give legitimacy to a point of view that has captured the imagination of the public. It would be impossible to appreciate the legislative battles in England over factory reform legislation in the early decades of the Industrial Resolution without understanding the impact on public thought of an Adam Smith, on the one hand, or of social-reform novelists such as Charles Dickens and Elizabeth Gaskell, on the other. Nor, as scholars of constitutional law have long understood, can cryptically stated provisions in the Bill of Rights be appropriately interpreted without a thorough knowledge of the historical experience out of which they grew.