APPENDIXES

APPENDIX 1.-BACKGROUND DATA RELATING TO MASTER PLANNING

PART A.—SUBCOMMITTEES' MEMORANDUM OF DECEMBER 18, 1974

[SUBCOMMITTEE NOTE.-The exhibits referred to in this memorandum are printed elsewhere in the hearing.]

STAFF MEMORANDUM OF DECEMBER 18, 1974, CONCERNING NATIONAL PARK SERVICE'S ADMINISTRATION AND PLANNING PROCEDURES RELATIVE TO CONCESSION OPERATIONS IN THE NATIONAL PARK SYSTEM

SUMMARY

A. In September 1973, MCA Recreation, Inc., a subsidiary of the Music Corporation of America, Inc., acquired 96.5 percent of the stock of Yosemite Park and Curry Company (YP&CCO.) which had been the principal concessioner at Yosemite National Park in California since 1925. In doing so, MCA Recreation, Inc. also assumed responsibility for the concession operations under a 30-year National Park Service (NPS) contract (NPS-WASO-IX-63-2) dated May 9, 1963. Considerable controversy has arisen about MCA Recreation's administration of that contract.

B. Prior to this changeover, the NPS in 1969 initiated a planning process for Yosemite Valley, and in 1971 published for public review a proposed Master Plan. After public hearings, the NPS professional planners began a process of revising and updating that plan and related documents. But when MCA Recreation took over the contract in 1973 it began vigorous efforts to have NPS change the plan. Considerable controversy has developed over this planning and MCA Recreation's influence, particularly after NPS Director Ronald H. Walker in a July 25, 1974 letter to MCA Recreation, made a “commitment" that by January 20, 1975, NPS would complete the planning process and decisions on upgrading various concessioner facilities at Yosemite.

In an October 21, 1974, letter to Secretary Morton (Exhibit A), Chairman Reuss and Chairman Dingell criticized this commitment as "unreasonably precipitous" and urged that all planning documents and related materials be made available to the public for at least 90 days and that public hearings thereafter be held on them. Presumably, the NPS, based on the hearing record, could revise the documents, give the public a second opportunity to review and comment thereon, and, if acceptable, adopt them by mid-1975.

We have never received a reply to this letter, although the Chairmen requested that NPS reply by November 21, 1974.

However, on December 13, 1974, Director Walker issued a press release (Exhibit B) announcing that “all” planning documents for this Park “have been rejected" and that a "new and complete planning process" for the Park will "be initiated immediately." He said the Master Plan was "somewhat ambiguous” and the environmental impact statement failed "to describe fully the environmental impacts" to be expected from implementation of the Plan.

He also promised that two versions of the Master Plan, including comments thereon by MCA Recreation, would be available to the public. This does not conform with the request by Chairmen Dingell and Reuss that the NPS make available to the public all eight versions of the Master Plan (dated January 1970: July 1971: June 1972; February 1974: July 1974; July 19, 1974; July 31, 1974: and August 12, 1974), as well as the draft environmental statement (EIS), the development concept plan (DCP), and all MCA Recreation letters and NPS letters and memoranda relating to the plan. The Sierra Club and several other (355)

organizations, including newspaper reporters, have asked the NPS for these materials under the Freedom of Information Act, but have not yet obtained them.

Question. Is it wise and in the public interest to reject all work done to date and start over on a long and costly "new and complete" planning process? According to the NPS, it expended over $230,419.85 for such planning from January 1, 1974, through October 31, 1974, in personnel services, travel and overhead. Additional sums were spent prior to January 1, 1974.

Please note that Mr. Walker has resigned as NPS Director effective January 1, 1975.

C. The NPS regulations (43 CFR 5.1) prohibit commercial filming in a National Park without a permit. Since January 1971, the NPS has issued at least 20 commercial filming permits (1971-1; 1972-4; 1973-3; 1974-12) for many purposes, including advertising of Stag cigars, the Datsun automobile, Goodyear Tire and Rubber Co., Kaiser Aluminum, Ford Motor Co., a record album cover, a calendar, and other purposes.

Two of the permits issued in 1974 were for the filming of a television series, originally called "Park Ranger" and later called "Sierra."

The first permit was issued on February 12, 1974, to Universal Studios of California, to film for one month in Yosemite Valley and Badger Pass. Universal Studios is also a subsidiary of Music Corporation of America, Inc.

The second permit was issued to Universal on July 8, 1974, for filming in the "entire" area of the Park for an indefinite period.

There has been considerable public controversy about the filming of this series. The second permit was terminated after Universal advised the NPS on October 29, 1974, that the NBC-TV series had been cancelled and that it would do no further filming at Yosemite.

A. Statutory

I. BACKGROUND

Prior to 1965, the NPS entered into contracts for the operations of concession facilities in areas of the National Park Service System under the Park Service's Organic 1916 Act. This Act, in very general terms, authorized the Secretary of the Interior to make contracts, without advertising or competitive bidding, for up to 30 years with "responsible" persons or firms to provide accommodations for visitors to the parks. The act prohibited transfer of the contract without the Secretary's approval. It also provided that the Secretary may authorize the contract holder to "execute mortgages . . . and other evidences of interest in or indebtedness upon their rights, properties, and franchises, for the purposes of installing, enlarging, or improving plant and equipment and extending facilities for the accommodation of the public within such national parks and monuments." (16 U.S. Code, sec. 3).

The generality of this Act gave the Department considerable discretion in formulating and administering concession operations. To restrict this discretion, many concessioners urged the Congress to enact into law a more detailed compilation of policies and procedures to govern the Department's administration of concession operations. On October 9, 1965, Congress enacted Public Law 89-249 (16 U.S.C. 20-20g).

The 1965 Act contains various provisions designed to protect concessioners from loss of their investment resulting from the Departments actions, to provide the concessioner "a reasonable opportunity... to realize a profit," to establish criteria for determining the reasonableness of the concessioners rates and charges to the public and for setting the franchise fees, to authorize concessioners to furnish new or additional services or facilities for visitors, to establish preferential rights on renewal of concession contracts, to provide that concessioners have "possessory interests" in structures or improvements constructed by the concessioner on park lands, etc.

However, the 1965 Act adhered to the basic principle of the 1916 Act (16 U.S.C. 1) that the National Park Service "shall promote and regulate the use" of areas within the National Park System "by such means and measures as conform to the fundamental purpose" of these areas "which purpose is to conserve the scenery and the natural and historic objects and the wildlife therein" and to provide for their enjoyment "in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." Thus, section 1 of the 1965 Act specifically declares "that the preservation of park values

requires that such public accommodations, facilities, and services as have to be provided within those areas should be provided only under carefully controlled safeguards against unregulated and indiscriminate use, so that the heavy visitation will not unduly impair these values and so that development of such facilities can best be limited to locations where the least damage to park values will be caused." (Emphasis supplied.) This section 1 also directs

"... that such development shall be limited to those that are necessary and appropriate for public use and enjoyment of the national park in which they are located and that are consistent to the highest practicable degree with the preservation and conservation of the areas." (Emphasis supplied.)

Section 2 of the 1965 Act specifies that the facilities and services operated in the parks by private persons and companies shall be only those that the Secretary of the Interior "deems desirable for the accommodation of visitors" to these areas. (Emphasis supplied.)

B. Yosemite National Park

John Muir, the "father" of Yosemite National Park, first saw the valley in 1868. His speeches and writings about Yosemite catalyzed public demand to make it a national park. The Federal Government established the park in 1890, under the administration of the Army, and Congress made it a national park in 1906.

II. ISSUES

A. In 1973, the NPS Director ordered the Park Service to involve concessioners in "master planning at all stages, in "further detailed planning," and also in planning on special projects, but did not afford the public the same opportunities. In the summer of 1973, the Conference of National Park Concessioners, which represents various concessioners, complained to the NPS that concessioners were not being "involved" in NPS planning. Director Walker sent a memorandum to all NPS officials on September 20, 1973, stating:

"The Director informed the Concessioners' representatives that he will insist that they be brought in on master and other planning processes and that we will work together in this important phase of park management. Therefore, this is to reaffirm the stated policy that concessioners are to be involved in master planning at all stages and in further detailed planning as appropriate. They are also to be involved in special projects involving planning when their operations are affected, such as in the current on-going Planning and Development Backlog Review. We expect each Superintendent to take steps to assure that this policy is implemented to the maximum extent." (Emphasis supplied.)

In a November 29, 1973 memorandum, the NPS Western Regional Director Howard Chapman said:

"We are now stressing concessioner involvement in the master plan process by seeking their input while planning is going on * * * This may not have always gone as well as it should and we have had some complaints that concessioners have not been involved in the planning of concession activities. It is our intent to include the concessioner in all planning and action sessions where concession matters are to be discussed. This includes not only the master plan but the DCP as well. It seems to me that we cannot develop a real master plan for any park unless the concessioner is personally involved in the planning process, particularly as it relates to concession matters.

None of these policy statements provided for equal "involvement" by the public in NPS planning efforts.

B. Concessioner involvement in planning at Yosemite resulted in the concessioner influencing the plan.

(i) The NPS, despite public objection, agreed to approve 150 new units. Soon after MCA Recreation took over the Yosemite concessioner operations in August 1973, it sought approval, as part of the planning process, to replace 150 living units without baths at Curry Village with 150 units with baths. Earlier, in December 1971, the previous concessioner (YP&CCo.) had requested approval to build only 50 units for summer use only. The new MCA proposal would eliminate 150 moderately priced tents and cabins with 150 year-round more luxurious modern-type units.

On November 14, 1973, the Environmental Defense Fund asked about this proposal. The NPS responded on December 3, 1973, that MCA Recreation's proposal

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would increase the Park's "total overnight capacity" and had not yet been approved "pending the preparation of an environmental assessment."

Because of concerns about the adequacy of the existing sewage system at Yosemite to handle wastes from 150 units, the NPS prepared a draft environmental assessment document which recommended that only 76 units be built. This document was shown to MCA Recreation's Chief Operating Officer Ed Hardy before it was made public. He wrote to Park Superintendent Arnberger on February 21, 1974, that the utility capacities mentioned in the environmental assessment draft was "based on factual errors and erroneous interpretations." After consulting with the engineering firm of Metcalf & Eddy, Mr. Arnberger wrote to Regional Director Chapman on March 12, 1974, that "it would appear that the existing sewage system could handle the effluent from 150 replacement units providing the units are equipped throughout with low-flow fixtures." But he stressed that this conclusion should not be read as implying that "major rehabilitation of the sewage system is not still required, for it is."

According to a March 11, 1974, memorandum from Mr. Chapman to the Superintendent, NPS officials met with MCA officials on March 1, 1974, in Los Angeles and agreed that the environmental assessment document would recommend construction of the 150 units (74 units adjacent to the ice rink and 76 units adjacent to the Cafeteria). A public meeting was later held on May 7, 1974 at Yosemite National Park, at which the public generally objected to the 150 unit proposal. On June 3, 1974, the Department's Field Solicitor in San Franciso advised Regional Director Chapman as follows:

"In view of the overwhelming number of objections, it is more than just likely that if this project proceeds in its present form, litigation will result. And based on the court decisions on NEPA and the nature of the present statement such litigation is quite likely to succeed." (Emphasis supplied.)

However, the next day (June 4), Mr. Chapman advised Washington NPS that he had decided to authorize the concessioner to proceed with the 150 unit project. Director Walker informed Assistant Secretary Reed that day as follows: "Basically, the concessioner has come to us with a proposal to replace approximately one-half of the old, antiquated units with better facilities. There is absolutely no proposal or thought to increasing the overnight capacity currently authorized for Yosemite Valley." (Emphasis supplied.)

There seems to have been some gap between the Department's Field Solicitor and Washington NPS, as indicated by a memorandum "to the files" dated June 5, 1974, by Associate Director John E. Cook, which said:

"It may be anticipated we will receive criticism from conservation organizations and possibly face a NEPA lawsuit. In our best judgment and upon advice of counsel, we feel that the requirements of NEPA have been met. It is further felt that Mr. Chapman's decision is the right decision." (Emphasis supplied.)

However, the NPS staff objected to the decision. On June 5, Mr. Arnberger wrote a memorandum "to the file" that "during a recent visit to the regional office" it became painfully evident that many of our projects "including the 150 units" are "in serious jeopardy because of lack of approved basic planning documents." On June 6, Assistant Director La Covey advised Director Walker that at a staff meeting on June 5, 1974, Mr. Chapman reversed himself. She said:

"Despite the negative public reaction [at the public hearing of May 7], on June 4 RD Chapman made the determination to proceed immediately with the project. On June 5, he called his staff together to brief them on the rationale behind the decision. A discussion of considerable consequence developed, with the staff unanimously opposed to the decision. The following summarizes their

reasons:

"1. The NPS had gone through the exercise of a pubic meeting, and had in fact a negative reaction. We could not ignore it. While only one town was represented, it was certainly logical to assume that there were many other people outside the area of the meeting who would react negatively.

"2. NPS has problems enough with NEPA, conservation organizations, and our public image; that to ignore public reaction and NEPA requirements in this instance would generate considerably more public reaction to the detriment of the Service than good that would be gained by proceeding with the proposal. "3. For years we have been working on a master plan for Yosemite. We would be short changing ourselves by ignoring it and proceeding with this proposal. The master plan is scheduled to be revised and completed by September. It will address itself to the Curry Village proposal and may approve such a project. We