Can You Drive Through a National Park without Paying the Fee?

*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.