*This is not legal advice, if a lawyer wants to spend their time
pro bono to correct me, please do so*
I have
significant experience being in and around National Parks, in almost all of
those experiences I only ever passed through those federal properties. Over
those years, I have also heard numerous reports of federal employees requiring
others to pay the entrance fee of those National Parks even after people have
disclosed their destination was not in the Park. My curiosity getting the
better of me (I should be writing my dissertation, but I need to answer this
before my brain will let it go), leads me to this path.
My legal
basis for this assertion is with the structure of the Constitution and more
specifically, the Court’s ruling in the Slaughterhouse Cases (1873), which in
the very limited understanding of the Federal Privileges and Immunities,
included a right to travel between the states. “The right to move with freedom,
to choose his highway, and to be exempt from impositions, belongs to the
citizen. He must have this power to move freely to perform his duties as a
citizen.”(page 57) This
is where I just might know enough law to get me into trouble, but let’s take
this spontaneous assertion together. It is also worth recognizing the doctrine
concerning the Right to Travel is not entirely clear. My contention is under my
federal right to travel, I ought to be able to freely travel through the federal
property without paying a fee. Mind you, there are collections of
anti-government extremists known as Sovereign Citizens, who can be dangerous
and are generally confused about the legitimacy of
the American legal system. I am writing this in real-time, the ending TLDR
conclusion may result in me being wrong. At no point am I advocating or arguing
that one does not need to have a state-issued Driver’s License or current
vehicle registration for this exercise.
The National Parks are governed by the National Parks Service, which is under
the Department of the Interior (This link does a
pretty good job of explaining the hierarchy of laws, rules, and regulations).
They, like most executive branch agencies, are authorized by Congress to make
rules and regulations which carry the force of law. Additionally, executive
orders can “fine-tune” the laws passed by Congress to interpret the execution
of such laws in a more specific (or not) manner. So the aspects of governance
over National Parks are based on Federal statutory law (US Code), the Code of Federal Regulations (CFR), and Executive Orders. I want to confirm, if my legal
understanding/analysis is correct, that under federal law, I can freely travel
through National Parks, without having to pay a fee for a pass. This is
specific, I cannot stop on the federal land to park or enjoy any of the sights,
this is ONLY to pass through. If my findings confirm my
suspicions, to use this knowledge to avoid paying entrance fees and park use is
wholly unethical and one can and ought to be fined for not paying said fees if
they use the National Park without paying the proper fees.
Let me
start with the Executive Orders because this will be the easiest thing to
address. Of the list provides by National Parks Service, none of the executive
orders would apply to my inquiry.
Next up,
the Federal Law, I predict it will provide for broad authorization, and the
specifics will be addressed, defined, and enforced via the Code of Federal
Regulations.
54 U.S. Code § 100101 - Promotion and regulation
(2) 1978 reaffirmation.—
Congress reaffirms, declares, and directs that the promotion and regulation of
the various System units shall be consistent with and founded in the purpose
established by subsection (a), to the common benefit of all the people of the
United States. The authorization of activities shall be construed and the
protection, management, and administration of the System units shall be
conducted in light of the high public value and integrity of the System and
shall not be exercised in derogation of the values and purposes for which the
System units have been established, except as directly and specifically
provided by Congress.
In the link, one will see “System” and “System Units” are hyperlinked terms,
which refers to “section 100501” for definition. This path leads us to “The System shall include
any area of land and water administered by the Secretary, acting through the
Director, for park, monument, historic, parkway, recreational, or other
purposes.” So basically, this is the grand authorization by Congress to the
Department of the Interior to do all the details. This is going way too
smoothly so far, in your best Billy Mays voice, say to yourself “but wait
there’s more!”
Now I am
on to the fun (tedious) part! In case you did not know, the Code of Federal
Regulations dwarf the US Code (federal statutes) by at least 20x, to be
honest, no one actually knows. The truly fun part is
this, not only does the Department of Interior get to write the rules, but they
also get to enforce the rules, and interpret the rules. If you are thinking
this may violate the separation of powers, then welcome to the debate
concerning the Administrative State, it has been going within the Conservative
legal movement for over 30 years, call it the best-kept secret in American
government. At a more layperson level, this is known as the federal
bureaucracy. Before I continue a rabbit trail on this broader issue, let me
dive into the CFR and see what I can find.
The bulk
of the relevant rules and regulations are found in Title 36 Chapter 1 Part 71. In addition to
the CFR, there are also the Management Policies of the National Parks System which
references the Park Roads Standards. I might just be bragging
about how much research I did for this... Let us begin with a look at the
relevant CFR concerning the National Park entrance fees.
My prompt
is only concerned with entering the National Park for the purpose of passing
through. Of the three types of fees authorized in the CFR, only the Designated
Entrance Fee Area (DEFA) would apply. No recreational activities or special
recreation is to take place in this hypothetical. Therefore, the only potential
legitimate fee would be the DEFA. As one continues reading the CFR, the
designated areas are described and defined. My interest perks up at subsection
71.3. There is a helpful carveout, “(3) In no event shall any of the
following, whether used singly or in any combination, be designated as
facilities for which recreation use fees shall be charged: Drinking water,
wayside exhibits, roads, overlook sites, visitors' centers, scenic drives,
toilet facilities, picnic tables, and boat ramps.” To further solidify the
position, at subsection 71.13, exemptions to the text above (71.1-71.12)
include,
(b) No entrance fee shall
be charged for travel by private noncommercial vehicle over any National
Parkway, or any road or highway established as part of the National Federal-Aid
System, which is commonly used by the public as a means of travel between two
places, either or both of which are outside the Designated Entrance Fee Area;
(c) No entrance fee shall be charged for travel by private noncommercial
vehicle over any road or highway to any land in which such person has any
property right if such land is within any Designated Entrance Fee Area.
Therefore,
between 71.3 and 71.13, the CFR clearly states one can use the “roads” and
“scenic drives” without having to pay the DEFA, particularly if you are
traveling between two places outside of the National Park. To answer my
question, “Can I travel through a National Park without paying
the Entrance Fee?” Yes.
I also checked Part 7, for special instructions
of the Parks I have experience with, Sequoia and Kings Canyon and recently
Joshua Tree, no relevant information about my inquiry is in that section.
