August 8, 2008

National Park Service

Department of the Interior

Washington, DC

RE: 1024-AD70; NPS firearm regulation

Dear Sir or Madam:

I would like to submit the following comments on the Department of the
Interior\'s proposed firearm regulations that would revise those now
governing firearms in the national parks, which are presently codified
at 36 CFR part 2. The comments represent my professional views based
upon a 32 year academic career in legal education where I have taught
and researched constitutional law, public land law, and natural
resources law; my comments do not represent the views of the University
of Utah or the S.J. Quinney College of Law, which are referenced only
for professional identification purposes. My publications include
several book chapters and journal articles addressing the laws and
policies governing the national parks. I also have served on the Board
of Trustees for the National Parks Conservation Association, and spoken
at several National Park Service conferences and training events.

In my professional judgment, the Department of the Interior is seeking
to revise an existing national parks firearm policy that has worked well
over the years and is not presently broken. The explanation for the rule
change contained in the April 30, 2008, Federal Register notice does not
identify or discuss any existing problem regarding the presence of
firearms in the national parks. (I note that seven former National Park
Service directors, as well as the Coalition of NPS Retirees, the
Association of National Park rangers, and the Ranger Lodge of the
Fraternal Order of Police, have all expressed the view that the present
regulations are working quite well and stated their opposition to
proposed changes.) Indeed, the only explanation offered for the proposed
change is to align national park concealed weapons policy with those of
the states, which though perhaps defensible as a matter of political
ideology, makes for bad law and poor policy.

As a matter of constitutional law, in light of the U.S. Supreme Court\'s
recent Second Amendment decision in District of Columbia v. Heller, 128
S.Ct. 2783 (2008), the federal government (including the NPS) still
retains significant regulatory authority over firearms. According to the
Court, the individual right to keep and bear arms \"is not unlimited.\"
Id. at 2816. Indeed, the Court\'s decision only invalidates the District
of Columbia\'s \"absolute prohibition on handguns held and used for self
defense in the home.\" Id. at 2822. The existing national park firearm
regulation does not prohibit the possession of firearms in national
parks, nor is it focused on the home; rather, it allows possession
(albeit disassembled and stowed) of weapons, and it only regulates
firearm possession in the national parks, clearly not a setting
comparable to the home setting. In short, the Heller decision does not
call into question either the NPS\'s regulatory power over firearms in
national parks, nor does it call into question the NPS\'s existing
firearm regulations.

When it comes to the national parks, the Secretary of the Interior\'s
primary legal responsibility is \"to conserve the scenery and the
natural and historic objects and the wildlife therein and to provide for
the enjoyment of the same \... as will leave them unimpaired for the
enjoyment of future generations.\" 16 U.S.C. § 1. This statutory
priority for protecting national park resources has been strongly
reinforced by Congress (16 U.S.C. § 1a-1), consistently confirmed by the
courts, and is reflected in the NPS\'s Management Policies (2006). The
proposed firearm regulation is decidedly not designed to do this. The
only references in the Federal Register notice to the management of park
resources are a couple conclusory assertions, with no further
explanation, that the new regulations will promote resource protection.
It is difficult to see how that will occur, given that hunting and other
firearm uses are expressly prohibited in nearly all national park units.
Knowledgeable former NPS directors and employees have expressed concern
that the presence of loaded and available firearms in the national parks
will put wildlife and other resources at risk, through poaching,
accidental discharges, pot-shooting, and the like.

Besides resource protection, the NPS is responsible for providing park
visitors with a safe and pleasurable experience, as part of its
statutory obligation to provide for public enjoyment of these unique and
special places. The proposed firearm regulation is inconsistent with
this obligation. The presence of loaded and available weapons will put
law-abiding park visitors at increased risk without any factual showing
(or even an assertion) that the ready presence of loaded concealed
weapons is necessary to promote public safety in the national park
environment. In fact, there has been no showing of an increased or
heightened threat to visitor safety within the parks. Moreover, the NPS
is responsible for providing its employees with a safe working
environment. Nearly every NPS law enforcement organization has stated
that the revised regulation will have the opposite effect: The presence
of loaded and available concealed weapons will put NPS law enforcement
officers at greater risk of personal harm. Anyone familiar with
backcountry law enforcement knows the lethal potential that attaches to
an encounter when loaded firearms are readily available. The Secretary
need look no further than his own state of Idaho, where an armed Claude
Dallas notoriously gunned down two state game and fish officers in a
remote location a couple decades ago.

The Federal Register notice expresses a desire to align national park
firearm regulations with state law and policy, suggesting that this will
promote uniformity and is otherwise consistent with federal public land
policy. Nothing could be further from the truth. First, the explanation
does not acknowledge or address the fact that most national parks enjoy
federal enclave status, which gives them exclusive (not concurrent)
jurisdiction over park lands and resources. (The exact nature of
national park jurisdiction is defined in the enabling legislation
creating each park unit.) Even on state-owned lands within national park
boundaries, the courts have held that the NPS has full authority to
regulate firearms to protect park resources. United States v. Brown, 431
F.Supp. 56 (D. Minn. 1976). Second, the NPS has a long and appropriate
tradition of promulgating uniform national regulations for resource
management and visitor use purposes. Prime examples are the Park Service
regulations prohibiting hunting and trapping in the parks, absent
express congressional approval of these activities; these regulations
that have been repeatedly sustained by the federal courts. See Michigan
United Conservation Clubs v. Lujan, 949 F.2d 202 (6th Cir. 1991);
National Rifle Association v. Potter, 628 F.Supp. 903 (D.D.C. 1986).
Third, it is difficult to see how the revised firearm regulation will
promote uniformity when national park firearm policy will then vary in
accord with state law, which differs widely from one state to another.
In fact, according to the Federal Register notice, there is little
uniformity in state background checks or safety course requirements.
Fourth, given the paramount federal interests reflected in the national
park organic legislation, it seems irrational to effectively subordinate
national park policy to state park policy in the absence of a compelling
reason for doing so. I can think of no other instance in which important
national park policies have been subordinated to those adopted at the
state level.

The proposed firearm regulation represents bad policy by unduly
complicating the NPS\'s resource management and visitor safety
responsibilities. As noted, rather than enforcing a single uniform
firearm regulation, NPS personnel will have to learn the nuances of
ever-changing state concealed weapons laws, not only the basic law but
also whether and how it applies to state park units. Further, that
portion of the proposed firearm regulation that continues to prohibit
\"the carrying of concealed weapons in federal facilities in national
parks\...\" (Fed. Reg. p. 23389) does nothing to promote uniformity and
will only create confusion and uncertainty. What exactly constitutes a
\"federal facility\" in a national park: NPS headquarters? Visitor
centers? Dam sites? Law enforcement offices? Jails or other holding
facilities? Unlike the proposed regulation, the existing regulation is
clear and uniform: Loaded concealed weapons are not allowed in any area
within national park boundaries.

With the potential impact that the presence of loaded weapons could have
on park resources, it is apparent that the proposed firearm regulation
will require compliance with NEPA and other laws. Because the national
parks generally prohibit hunting and trapping and because the national
parks promote wildlife viewing that may put visitors face-to-face with
wild animals, there is a real likelihood that the firearm regulation
will have a significant impact on the human environment. This means that
the Department of the Interior is obligated to prepare an Environmental
Impact Statement before promulgating a final regulation. Moreover, given
the presence of endangered species in many parks and the fact that these
species may be put in jeopardy or \"taken\" if loaded guns are readily
available to park visitors, the Department must comply with the
Endangered Species Act and seek appropriate consultation with the U.S.
Fish & Wildlife Service under sections 7 and 9 of that law.

In short, the proposed firearm regulation runs counter to the NPS\'s
legal conservation and visitor enjoyment responsibility, will not
promote uniformity but rather injects uncertainty and arbitrariness into
the agency\'s management responsibilities, and creates difficult and
unnecessary enforcement problems. No justification other than an
ideological commitment to federalism has been offered to support the
proposed change, which renders it arbitrary and capricious when measured
against the purpose of the national parks and the NPS\'s primary
resource management responsibilities. The proposed regulation may
therefore be illegal and plainly represents bad policy; it should be
jettisoned and the existing regulation, which has served the NPS and the
nation\'s parks well over the years, should be reaffirmed. Thank you for
considering my views and concerns.

Sincerely,

Robert B. Keiter

Wallace Stegner Distinguished Professor of Law

Director, Wallace Stegner Center for Land,

Resources and the Environment

University of Utah S.J. Quinney College of Law

332 South 1400 East

Salt Lake City, UT 84112