The National Trails System: A Model Partnership Approach to Natural Resources Management

Thomas C. Downs

Thomas Downs is an attorney in the Washington, D.C., office of Patton Boggs LLP, which is assisting nonprofit trail organizations and municipal governments involved with statutorily designated national scenic and historic trails. The author would like to thank Steve Elkinton of the National Park Service's National Center for Recreation and Conservation for his guidance and inspiration. Mr. Downs dedicates this Article to communities and grass-roots groups working cooperatively with on-the-ground federal agency trail managers.

[30 ELR 10091]

Our magnificent 40,000-mile National Trails System was established by Congress under the National Trails System Act (NTSA) of 1968¹ through the combined efforts of President Lyndon Johnson, Secretary of the Interior Stewart Udall, and Sens. Henry M. Jackson (D-Wash.) and Gaylord Nelson (D-Wis.). Private and nonfederal public lands make up the lion's share of federally recognized long-distance trail corridors. Consequently, to help administer each of the designated trails, Congress has authorized partnerships with nonfederal interests, principally through cooperative agreements with nongovernmental organizations (NGOs) devoted to trails.

Since the NTSA's enactment, 20 national historic and scenic trails have been designated by Congress, and numerous other potential national long-distance trails have been surveyed and catalogued. A major open space land acquisition and protection program has been implemented for the Appalachian Trail. Thousands of miles of abandoned railroad tracks have been converted into trails, and thousands of miles of completed nonfederal scenic and historic trail segments have been certified by federal agencies. The federal government also has recognized over 800 "national recreation trails."

The NTSA provides for a minimum of regulation while fostering voluntary cooperation with nonfederal entities, especially NGOs. Specifically, under the Act federal agencies "are authorized to encourage volunteers and volunteer organizations to plan, develop, maintain, and manage, where appropriate, trails throughout the Nation."² The NTSA strongly supports the involvement of volunteers and the execution of cooperative agreements with states, nonprofit partners, and landowners.

The NTSA probably is unlike any other natural resources or environmental law in that it expressly authorizes and encourages a partnership role for NGO entities. Under the Act, determined and well-organized NGO trail organizations can play valuable roles in trail program management. Potentially, NGOs can carry out federal agency responsibilities, if delegated specifically under a cooperative agreement with the agency that has jurisdiction over a designated trail corridor or trail program. These provisions apply to all trails in the United States, not only to the 20 designated long-distance trails.

This Article begins with a discussion of the origin and development of the NTSA. Next, the key provisions of the NTSA are addressed, and each of the designated national scenic and historic trails is described. The Article then details the unique statutory authorization and accomplishments of the Act's public-private approach as well as the inherent limitations of a nongovernmental role in managing federal programs. The Article concludes with a discussion of how the NTSA's unique model of public-private cooperative administration may provide a paradigm for other governmental programs, offering the Wild and Scenic Rivers System as one possible area for replicating this partnership approach.

Origins of the National Trails System

Long-distance trails have long been an important feature of the North American environment, culture, and economy. Before the arrival of European immigrants, trails were the principal means for long-distance travel on foot and horseback. Beginning in the late 19th century, trails themselves became destinations for those seeking outdoor recreation, enjoyment of wildlife and natural resources, and an alternative to urban life.

Outdoor Recreation Needs Increase in Post-World War II Era

After World War II, the conservation movement in America expanded through alliances of organizations such as the Sierra Club, Wilderness Society, and regional activist groups. In the 1950s and 1960s, public interest in outdoor recreation, parks, and historic preservation increased as America's population grew and as urban and suburban areas became more densely developed. In 1960, the Outdoor Recreation Resources Review Commission (ORRRC), which oversaw a survey to measure the frequency and types of outdoor recreation in the United States, found great interest in establishing trails nationwide.³ The survey revealed that [30 ELR 10092] there was popular support for expanding trail-related recreation, and as a result, the ORRRC proposed a national "'connector' network of walkways."⁴

Great Society Initiatives Emphasize Federal Role in Outdoor Recreation and Trails

President Lyndon Johnson acknowledged the growing interest in outdoor recreation and trails, and during a 1965 White House Conference on Natural Beauty, he signaled the beginning of a dialogue on the federal government's role in trail recognition and administration:

The forgotten outdoorsmen of today are those who like to walk, hike, ride horseback, or bicycle. For them, we must have trails as well as highways . . . . I am requesting, therefore, that the Secretary of the Interior recommend to me a cooperative program to encourage a national system of trails, building upon the more than one hundred thousand miles of trails in our national forests and parks . . . . We can and should have an abundance of trails for walking, cycling, and horseback riding, in and close to our cities. In the backcountry we need to copy the great Appalachian Trail in all parts of our country, and make full use of rights-of-way and other public paths.⁵

Interior Secretary Stewart Udall was directed to coordinate an interagency committee to study a possible National Trails System. In December 1966, the committee produced a comprehensive review of federal, state, and municipal park and trail resources, and it established a set of policy recommendations.⁶ The Trails for America report echoed the ORRRC's discovery regarding the importance of trails and advocated a National Trails System. It proposed three types of trails: national scenic trails (NSTs) for long-distance hiking and riding; federal and state park and forest trails for hiker access to sites of scenic, historic, and cultural interest; and metropolitan area trails near population centers for walking, cycling, and horseback riding.⁷ It also proposed the Appalachian Trail as the first NST and recommended feasibility studies on the proposed Pacific Crest, Potomac Heritage, and Continental Divide national scenic trails.⁸

A Surge of Legislative Activism

In the 1960s, an increase in federal agency and congressional interest in the environment, natural resources conservation, and outdoor recreation resulted in the passage of several major laws that established a federal role in these matters.

The Wilderness Act of 1964,⁹ for example, created a precedent-setting system of wilderness areas in national forests, setting the stage for the designation of natural areas free of roads and other forms of development. Travel within designated wilderness areas could be only by foot or horseback.¹⁰ The Act also provided for protection of natural areas in national parks, national forests, national wildlife refuges, and other federal lands.¹¹

The Land and Water Conservation Fund Act of 1964¹² established a fund for purchasing and protecting land of natural and recreational significance, subject to congressional appropriations. It authorized matching funds to state and local governments for developing and expanding outdoor recreation facilities.¹³ State and local grantees were required to prevent conversion of parkland to nonrecreational or private uses.¹⁴

The Volunteers in the Parks Act of 1969¹⁵ is another important natural resources law and a key enabling statute for nonfederal partner involvement. This simple, broad statutory provision authorizes the National Park Service (NPS) to recruit, train, and accept the services of volunteers to aid with interpretive functions and other activities at NPS facilities, including national scenic and historic trails. Several years later, Congress built on this model by enacting the Volunteers in the National Forests Act of 1972.¹⁶

The NTSA represents the culmination of these innovative federal activities during the 1960s.

National Trails System Act

Secretary of the Interior Udall in early 1966 transmitted to Congress a proposal for national trails legislation. He stated the Johnson Administration's overall goal:

A nationwide system of trails will open to all the opportunity to develop an intimacy with the wealth and splendor of America's outdoor world for a few hours at a time, or on one-day jaunts, overnight treks, or expeditions lasting a week or more. A system of trails carved through areas both near to, and far from, man and his works will provide many varied and memorable experiences for all who utilize the trails.¹⁷

In early 1967, Senator Jackson, chairman of the Senate Committee on Interior and Insular Affairs, introduced a national trails bill¹⁸ at the request of the Johnson Administration. [30 ELR 10093] Incorporating recommendations set forth in the Trails for America report and many provisions of the Johnson Administration's legislative proposal and Senator Nelson's proposal, the final version of the legislation was signed into law on October 2, 1968.¹⁹ It proposed three trail categories: NSTs, national recreation trails (NRTs), and connecting or side trails. NSTs would be established only by acts of Congress, while NRTs and connecting trails were to be designated by the U.S. Department of the Interior (DOI) and the U.S. Department of Agriculture (USDA). The Appalachian and Pacific Crest Trails were to be designated as the first NSTs, and studies were to be conducted by the DOI and the USDA for possible designation of 14 additional scenic trails.²⁰ Land and Water Conservation Fund grants would be available for states to protect and develop their trails.

The NTSA is unlike most laws prescribing rules for federal land management activities, as the National Trails System is governed by a single statute. It has been amended 20 times, mostly for the purpose of establishing new trails. Today, the NTSA establishes four categories of nationally significant trails: NSTs, NRTs, side and connecting trails, and national historic trails (NHTs).²¹ Designation of a corridor of land as a national scenic or historic trail requires four sequential actions:

(1) a statutory provision requesting a feasibility study for the proposed trail corridor²²

(2) a study of the corridor by the relevant federal agency²³

(3) an amendment to the NTSA designating the corridor as a national scenic or historic trail²⁴; and

(4) publication of a management planning document.²⁵

Since the NTSA's enactment, 8 NSTs, 12 national NHTs, more than 800 NRTs,²⁶ and 2 side and connecting trails²⁷ have been designated under the Act.

The NGO Partner Model: Appalachian Trail Conference

The experience with the Appalachian Trail provided the Johnson Administration and Congress with a model for close NGO involvement with management of a National Trails System. In drafting the NTSA, congressional leaders observed that the Appalachian Trail—the first national trail to be designated under the Act—"enjoys a long history of private initiative and cooperation between government agencies, private landowners, and trail users."²⁸ In fact, legislators viewed the statute as "a pilot program . . . designed to determine whether it is feasible to extend to other areas of the Nation the principles which have already made the Appalachian Trail an outstanding outdoor recreation resource."²⁹

The Appalachian Trail Conference (ATC) was formed in 1925 by a small group of citizens and public agency leaders, led by Benton MacKaye, who supported the idea of establishing a continuous footpath along the ridges of the Appalachian Mountains. The ATC's goal of constructing and marking the original footpath was completed in 1937, just 12 years later.³⁰ Over the ensuing decades, the ATC was involved with extensive trail project implementation along the Appalachian Trail corridor, relying on an extensive network of volunteers. In 1984, the NPS formally delegated to the ATC management responsibility for the lands it acquires for the Appalachian NST corridor.³¹ ATC staff currently operate out of headquarters offices in Harper's Ferry, West Virginia, and regional offices in New Hampshire, North Carolina, Pennsylvania, and Virginia.

The ATC's description of its NST speaks to the NGO's view of its unusual stewardship role: "Though the Trail is technically a unit of the [NPS], it is primarily maintained and managed by volunteers from the [ATC]—a legacy of the Trail's builders, private citizens who dreamed of a footpath for those 'who seek fellowship with the wilderness.'"³² The Appalachian NST passes through 8 national forests, 6 units of the National Park System, and 60 state park, forest, or game lands.³³ The challenge of intergovernmental coordination, and the ATC's unique history, make the NGO's role in facilitating trail efforts indispensable.

NTSA Provisions

The NTSA allows federal agency staff considerable flexibility in administering the federal interest along designated trail corridors. Existing uses of land managing agencies and adjoining landowners such as mining, timbering, and grazing are protected under the Act.³⁴ Management can be transferred among agencies as appropriate to consolidate, control, and regulate trails.³⁵

All trails designated between 1978 and 1983 were prohibited from using federal funds for land acquisition (except for interpretive sites).³⁶ In 1983, Congress authorized land acquisition, but only from "willing sellers," with the exception of the Natchez Trace NHT and the Selma to Montgomery [30 ELR 10094] NHT.³⁷ Condemnation of land for acquisition is prohibited with respect to seven trails.³⁸

Under the 1983 amendments, abandoned rail rights-of-way can be reclaimed for trail use.³⁹ This "rails-to-trails" section of the NTSA was subjected to court challenges. Litigation alleging that the "takings" provisions were unconstitutional was reviewed by the U.S. Supreme Court in Preseault v. Interstate Commerce Commission,⁴⁰ in which the Court unanimously upheld the statutory scheme.⁴¹

The Act also addresses state and locally designated trails, and it expressly encourages state recognition of federally designated and other trails in their comprehensive outdoor recreation plans and historic preservation plans.⁴² Similarly, the Secretary of the Interior is authorized to approve the states' designation and marking of state and metropolitan area trails as parts of the National Trail System, authority that apparently has never been exercised.⁴³ Trails should be uniformly marked,⁴⁴ and trail interpretive sites may be placed at historic sites along scenic and historic trails to provide information to the public at the lowest available cost.⁴⁵

The NTSA authorizes reservation of a trail right-of-way when lands are conveyed to others,⁴⁶ and allows for land exchange and right-of-way control.⁴⁷ Trail managers and nonfederal trail partners employ a wide variety of tools to identify, mark, preserve, and manage long-distance trails, ranging from informal agreements to land trust acquisitions. For historic trails, site and segment certifications provide alternative ways to protect trail lands without federal acquisition. The ongoing involvement of landowning trail partners in trail management provides an open, dynamic process that would not be characteristic of a system involving only federally owned lands.

A number of significant accomplishments can be documented since the enactment of the NTSA, many of them due in large part to the leadership role of NGO partners. Cooperative trail marking programs have been developed for the long-distance trails. The National Trails System has grown tenfold, from 2 scenic trails to 20 scenic and historic trails totaling almost 40,000 miles in length. The NTSA has authorizedover 800 recreation trails, hundreds of rail-to-trail conversions (over 10,000 miles), and 2 side and connecting trails. Among other proposals, legislation is pending to add a new category of "national discovery trails," to create the 6,000-mile American Discovery Trail,⁴⁸ and to authorize a study of a potential Star-Spangled Banner (War of 1812) National Historic Trail.⁴⁹

The National Scenic Trails

The NSTs were the first category of long-distance trails designated under the NTSA.⁵⁰ They must offer maximum potential for outdoor recreation and provide for conservation and enjoyment of scenic, cultural, historic, and natural resources.⁵¹ They are described below, in alphabetical order.

[] Appalachian NST. The first trail designated as a NST in the original NTSA,⁵² the 2,155-mile Appalachian Trail moves north to south from Maine's Baxter State Park, crosses New Hampshire, Vermont, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Maryland, West Virginia, Virginia, and North Carolina, and ends on Springer Mountain in Chattahoochee National Forest, Georgia.⁵³ The NPS bears responsibility for the trail, in partnership with the NGO ATC and a number of regional nonprofit trail alliances and clubs.⁵⁴

[] Continental Divide NST. Designated as a NST in 1978,⁵⁵ this 3,100-mile trail extends from Waterton Glacier International Peace Park, Montana, along the border between Montana and Idaho, and through Wyoming and Colorado to the New Mexico-Mexico border. Under the jurisdiction of the U.S. Forest Service with aid from the Continental Divide Trail Alliance, it traverses national forest lands and national parks in four states.

[] Florida NST. Designated by Congress in 1983⁵⁶ and located entirely within the state of Florida, the trail extends from Pensacola to the Everglades National Park, traversing much of the state's interior. It is the only NST that passes through tropical and subtropical environments. The Forest Service manages the trail in partnership with the Florida Trail Association.⁵⁷

[] Ice Age NST. Designated in 1980,⁵⁸ and located entirely in Wisconsin, the trail follows the edge of the glacial lobes of the last glaciation that occurred between 10,000 and 25,000 years ago.⁵⁹ It runs south from the Door Peninsula, cuts a serpentine path across the southern part of the state, then travels north through central Wisconsin and west until reaching its terminus on the western border at the St. [30 ELR 10095] Croix National Scenic Riverway. The trail is managed by the NPS in cooperation with the NGO Ice Age Park and Trail Foundation.⁶⁰

[] Natchez Trace NST. Designated in 1983,⁶¹ the trail begins in Natchez, Mississippi, crosses western Alabama, and ends in Nashville, Tennessee. The route was used by the Natchez, Chikasaw, and Choctow tribes, by hunters, by French and Spanish explorers, and by European settlers.⁶² Although the trail has national historic significance, it is designated as an NST. The original trail corridor runs close to the present day Natchez Trace Parkway, one of four statutorily designated national parkways. It is under the jurisdiction of the NPS, assisted by the NGO Natchez Trace Trail Conference.⁶³

[] North Country NST. Designated in 1980,⁶⁴ the trail runs easterly from Lake Sakaskawea, North Dakota, close to the Canadian border, through Minnesota, Wisconsin, Michigan, Ohio, and Pennsylvania, to Lake Champlain in New York. The trail encounters a diversity of landscapes and ecosystems, passing through federally owned natural resources, including grasslands, forests, wildlife refuges, and lakeshores. The NPS' principal NGO partner is the North Country Trail Association.⁶⁵

[] Pacific Crest NST. Designated in the original NTSA⁶⁶ and spanning 2,650 miles, the trail's southern point is the Mexican border community of Compo, California. It follows along the crest of several mountain ranges in California, Oregon, and Washington, and ends north of the Canadian border in Manning Park. The trail passes through desert, glacial expanses of the Sierra Nevada, and volcanic and glacial resources within the Cascade mountain range. The Forest Service manages the trail in partnership with the NGO Pacific Crest Trail Association.⁶⁷

[] Potomac Heritage NST. Designated in 1983,⁶⁸ the trail extends from the Allegheny Mountains of western Maryland and follows along the Potomac River to the Chesapeake Bay. It includes riparian corridors in Maryland, Virginia, and the District of Columbia, and a segment in southwestern Pennsylvania. It is the only NST with "heritage" in its official title, indicating multiple links to the nation's past. Prominent areas include the C&O Canal National Historic Park in Maryland and the District of Columbia, George Washington's boyhood home and Mount Vernon estate in Virginia, and many other parks, monuments, and trails. The NPS manages the trail in partnership with the NGO Potomac Heritage Partnership.

The National Historic Trails

Congress established a category for NHTs, which trace original travel routes of national historic significance, in the 1978 amendments to the NTSA.⁶⁹ The following are designated NHTs, in alphabetical order.

[] California NHT. Designated in 1992,⁷⁰ the trail follows the western routes traveled by prospectors in the California Gold Rush of 1849-1852.⁷¹ Overlapping with the Oregon and Mormon Pioneer NHTs, its various branches cross Missouri, Kansas, Nebraska, Wyoming, Utah, Idaho, Nevada, California, and Oregon. The NPS manages the trail with assistance from the Oregon-California Trails Association.⁷²

[] Iditarod NHT. Designated in 1978,⁷³ the 2,000-mile trail extends from Seward to Nome, Alaska.⁷⁴ It follows a network of transportation routes used by Native Alaskans and, later, by gold prospectors with dog teams in the late 1800s and early 1900s. Much of the trail is used today for dogsled races.⁷⁵ The Bureau of Land Management (BLM) has jurisdiction over the trail and works cooperatively with the Iditarod Trail Committee.

[] Juan Bautista de Anza NHT. Designated in 1990,⁷⁶ the trail follows the route of the 1775-1776 expedition of 198 settlers from New Spain (present-day Mexico) across southern Arizona and southern California north to San Francisco Bay along coastal and inland routes. This expedition led to the establishment of the Presidio of San Francisco.⁷⁷ The NPS manages the trail in cooperation with Amigos de Anza.

[] Lewis and Clark NHT. Designated in 1978,⁷⁸ the trail extends from a point near St. Louis, Missouri, to Fort Clatsop National Memorial near the mouth of the Columbia River. It follows the Missouri, Yellowstone, Snake, and Columbia Rivers along the 3,200 mile route of the 1804-1806 expedition led by Merriwether Lewis and William Clark.⁷⁹ The NPS manages the trail with the Lewis and Clark Trail Heritage Foundation, the principal NGO partner.⁸⁰

[] Mormon Pioneer NHT. Designated in 1978,⁸¹ the 1,360-mile trail traces the routes west followed in [30 ELR 10096] 1846-1847 by Church of Jesus Christ of Latter-day Saints leaders and their more than 70,000 followers searching for a region in which to settle and establish the church's new headquarters.⁸² The Mormons traveled by wagon, foot and handcart from Nauvoo, Illinois, through Iowa, Nebraska, and Wyoming to the Salt Lake Basin in what is now Utah. NGO trail partners include the Mormon Trails Association in Utah and the Iowa Mormon Trails Association.⁸³

[] Nez Perce (Ne-Me-Poo) NHT. Designated in 1986,⁸⁴ the trail runs east and north approximately 1,170 miles from the vicinity of Wallowa Lake, Oregon, across central Idaho, southwest through Montana, through Yellowstone National Park, and north to the Bears Paw Battlefield site near Chinook, Montana. It follows the route of the 1877 flight of approximately 750 Nez Perce Indian warriors and families who refused to be placed on the tribal reservation in Idaho and were being pursued by more than 2,000 U.S. Army troops.⁸⁵ Federal trail managers from the Forest Service, the NPS, and the BLM are assisted by the NGO partner Nez Perce National Historic Trail Foundation.

[] Oregon NHT. Designated in 1978,⁸⁶ the 2,170-mile Oregon trail extends from Independence, Missouri, through northeastern Kansas, Nebraska, Wyoming, and Idaho, to Oregon City, Oregon. In the early 1800s the trail across the plains and Continental Divide was used by fur trappers and Christian missionaries. Starting about 1841, it was used by hundreds of thousands of settlers to establish farmlands in the Oregon territory.⁸⁷ The NPS has authority over the trail in partnership with the Oregon-California Trail Association.

[] Overmountain Victory NHT. Designated in 1980,⁸⁸ the 200th anniversary year of the Battle of Kings Mountain, the trail connects Abingdon, Virginia, and Elizabethton, Tennessee, through North Carolina to Kings Mountain, South Carolina. It follows the mobilization routes of volunteer militiamen who decisively defeated a loyalist army, supported by British officers, at Kings Mountain in the fall of 1780.⁸⁹ The victory led to a series of strategic setbacks in the American Revolution for British commander Lord Charles Cornwallis, culminating in his surrender at Yorktown in October 1781.⁹⁰ The NPS manages the trail in cooperation with the Overmountain Victory Trail Association.

[] Pony Express NHT. Designated in 1992,⁹¹ the trail commemorates the famous 19th century mail route connecting Missouri with California. The Pony Express began as a private venture in 1860 and operated for only 18 months when it was rendered obsolete by the telegraph.⁹² Beginning in St. Joseph, Missouri, and passing through Kansas, Nebraska, Wyoming, Utah, and Nevada, it ends in San Francisco. The NPS and the National Pony Express Association are partners in promoting and preserving the trail.

[] Santa Fe NHT. Designated in 1987,⁹³ the 900-mile Santa Fe Trail connects a site near New Franklin, Missouri, with Santa Fe, New Mexico, passing through central Kansas and southeastern Colorado. The trail was used for Native American trade and transportation prior to 1500, by Spanish explorers in the 1500s and 1600s, and by French explorers during the 1700s.⁹⁴ The trail was used extensively for American-Mexican trade following Mexico's independence from Spain in 1821, through the Gold Rush of 1849-1852, and until railroads effectively replaced wagon transportation to Santa Fe in the 1880s.⁹⁵ The NPS works cooperatively with the NGO Santa Fe Trail Association.

[] Selma to Montgomery NHT. Designated in 1996,⁹⁶ the trail includes 54 miles of city streets and U.S. Highway 80 from Selma to the Capitol Building in Montgomery, Alabama. It follows the routes traveled in the March 1965 marches by civil rights activists to draw the nation's attention to the need for voting rights legislation.⁹⁷ The NPS has jurisdiction over the trail.

[] Trail of Tears NHT. Designated in 1987⁹⁸ to honor the tragic removal of Cherokee Native Americans from their ancestral homes in the Southeast, the trail follows several paths west from southeast Tennessee to eastern Oklahoma, including an overland route and a water route on the Tennessee, Mississippi, and Arkansas Rivers. Following enactment of the Indian Removal Act of 1830, thousands of Cherokees were forced to travel by rail, boat, and wagon to Indian Territory (now Oklahoma).⁹⁹ The Trail of Tears Association based in Little Rock, Arkansas, is the principal NGO trail partner with the NPS.

The Public-Private Partnership

A unique aspect of the National Trails System is the express statutory invitation for partnerships involving federal, state, and local governments, NGOs, and others to operate individual trails. This principled approach to trail program operation [30 ELR 10097] and management, which predates the NTSA, is set forth in the statute's statement of purpose:

The Congress recognizes the valuable contributions that volunteers and private, nonprofit trail groups have made to the development and maintenance of the Nation's trails. In recognition of these contributions, it is further the purpose of this chapter to encourage and assist volunteer citizen involvement in the planning, development, maintenance, and management, where appropriate, of trails.¹⁰⁰

The Act makes technical and financial assistance available to partner organizations,¹⁰¹ and as an added incentive, it provides that the conveyance of any interest in land for a national trail qualifies for a conservation tax deduction.¹⁰²

Perhaps due to the fact that much of the designated national trails traverse lands that are not federally owned or controlled, as well as the model offered by the ATC's accomplishments, the NTSA specifically authorizes and emphasizes a role for nonprofit trail organizations and nonfederal governments as partners with federal agencies in program management. The Act authorizes the establishment of 10-year advisory councils to help build partnerships with states and major stakeholders,¹⁰³ and it encourages cooperative agreements to carry out trail functions.¹⁰⁴ Cooperative agreements provide for delegation of responsibilities and funding to NGO partners. Such agreements provide for decisionmaking that is community-driven, accountable, and flexible.

In addition to the authority to enter into cooperative agreements, Congress authorized agency trail managers "to encourage volunteers and volunteer organizations to plan, develop, maintain, and manage, where appropriate, trails throughout the Nation."¹⁰⁵ The NTSA lists several activities that fall within the scope of volunteer work authorized under the Act, including planning, constructing, and maintaining designated long-distance trails and potential trails, but the Act does not impose any limitation on NGO activities.¹⁰⁶ The NTSA also allows federal agencies to provide financial assistance to NGOs and other nonfederal partners.

According to the legislative history, these partnership provisions were intended to "expand the existing role of cooperative agreements between the trail managers . . . and landowners, private organizations, states, and political subdivisions to fund, develop, operate, and maintain lands and facilities within and adjacent to trails."¹⁰⁷ The agency with jurisdiction "may initialize all cooperative agreements and work with governmental and private organizations in the acquisition and protection of trail lands."¹⁰⁸

Cooperative Trail Management in Practice

Routine involvement of nonfederal partner groups is critical because each of the 20 long-distance trails lacks significant federal agency staffing compared to national parks and other public land facilities. Although trail-specific programs include many tasks similar to park and forest management practices, management functions unique to long-distance trails include interstate and interregional coordination, strengthening incentives for sustainable nonfederal land management practices, and reliance on non-profit groups to carry out many of the purposes of the Act.

The specific format and procedures for public-private trail administration vary along the 20 long-distance NHTs and NSTs because each trail has a unique history, geography, and grass-roots constituency. No NGO trail organization rivals the Appalachian NST's network of local trail clubs and volunteers stretching from Maine to Georgia—a network that has been developed and expanded over 60 years. By contrast, some NGO trail groups for NSTs and NHTs currently have few resources and no paid staff. Typically, a principal NGO trail partner assists regional staff of the lead federal agency with the coordination of activities involving outdoor recreation groups, conservation and historic preservation organizations, local government agencies, universities, and others. The lead NGO may take charge of ongoing oversight of the trail in such areas as communications and public outreach, fundraising, public policy, and planning and implementation of trail design, construction, marking, and so on. The recommendations and actions taken by the NGO community potentially can drive the federal agency's priorities and expenditures for the trail.

Long-distance trail management tasks with which non-federal trail partners can be intimately involved under cooperative agreement authority could include the following:

. Managing and analyzing data including maps, property records, and historic and prehistoric records, and developing resource management plans;

. Protecting land within the designated trail corridor by purchase and by acquiring easements and donations;

. Monitoring trail corridor encroachment and damage to historic sites caused by development;

. Conducting logo, signage, and marking programs;

. Assisting local government agencies and community NGO groups, such as by supplying tools and materials, training, and technical assistance in a variety of areas; and

. Promoting public awareness of trails through brochures, maps, guidebooks, and videos, and preparing summaries of trail conditions, accomplishments, and concerns.

Using federal funding, some trail groups take the initiative to provide guidebooks and other user information that they can produce far more quickly and efficiently than can government agencies. Without such cooperating partners, agencies [30 ELR 10098] responsible for long distance trail management would leave many tasks undone, and our National Trails System would not function.

The Limits of Nonfederal Involvement

It is conceivable that NGOs operating under cooperative agreement authority could perform many federal roles in trail administration, using money appropriated by Congress to fund their operations. Yet, there may be inherent limits to the role of NGOs and other nonfederal trail partners in implementing the NTSA. NGO trail partners are not subject to congressional oversight. Limits on NGO trail partners' roles have not been explicitly established by law or regulations, but the issue has been addressed in congressional testimony. During hearings on legislation to establish National Discovery Trails as a new category of long-distance trails, the Forest Service expressed an interest in limiting the statutory role of nonfederal partners in developing comprehensive management plans for national trails:

The bill would require that "the administering Federal agency shall enter into arrangements with a competent trailwide nonprofit organization to submit a plan . . . ." It is unclear who has the ultimate responsibility for preparing and transmitting the comprehensive plan to Congress. It is inherently inconsistent to charge the Secretary with the authority to administer the trail and then relegate that Secretary's role in the essential planning to that of a consultant. Nonprofit organizations are not responsible to the public or the Congress or, for that matter, for Federal appropriations, or for consistency with other trail management policies. Allowing nonfederal organizations to be responsible for land management decisions made in the comprehensive plan also raises concerns under the Federal Advisory Committee Act. Only the administering Secretary can assume those responsibilities and should, therefore, be the one responsible for preparing and submitting any management plan to the Congress. We recommend that the bill be amended to say that the Secretary in consultation with the management entity, and that the Secretary would transmit the plan to Congress.¹⁰⁹

To address the Administration's concerns, the legislation proposing National Discovery Trails subsequently was amended to eliminate the requirement for NGO involvement in developing comprehensive plans.

The concerns about limiting partners' roles in federal natural resource program operation are not new. Under the Volunteers in the Parks Act of 1969, a key statute authorizing roles for nonfederal partners at NPS facilities, among the few areas in which volunteer services are expressly prohibited is involvement with "policy processes."¹¹⁰ More recently, the House Appropriations Subcommittee on Interior and Related Agencies registered its concern about the potential for involvement with NPS operations by NGOs whose focus is local and may not be in the national interest. The following committee report provision was adopted:

The Committee has supported and encouraged partnerships between the [NPS] and other Federal and non-Federal partners. To assist, Congress has even provided new and expanded legislative authorities over the last several years. However, the Committee is concerned about several projects that seem to be driven more by local and regional interests rather than the interests of the [NPS]. As long as there are common goals, and the project fills a high priority Federal need, the Committee will support the project.¹¹¹

Thus, while on the whole Congress continues to support robust public-private partnerships involving natural resource programs, there is a recognition that federal agencies must set policies and priorities and that partners must dedicate themselves to national interests.

Possible Replication of This Approach in Other Policy Areas

The experience with partnerships under the National Trails System merits scrutiny by federal policymakers seeking to improve programs in other areas. There is no doubt that without NGO participation under the NTSA, the achievements of the past three decades would have been far less noteworthy. It provides a possible paradigm for government "reinvention" initiatives—particularly when federal resources are limited and there is a promise of involving nonprofit groups and local government agencies through cooperative agreements supported by cost-share grant funding.

One possible area in which the partnership model could constructively be employed is in the management of significant rivers under the Wild and Scenic Rivers Act,¹¹² a statute that Congress adopted on the same day it passed the NTSA. Under that statute, there are designated "wild river areas," "scenic river areas," and "recreational river areas"¹¹³—not unlike the system of nomenclature for trails employed under the NTSA. Federal agencies are authorized to acquire lands adjacent to designated wild or scenic rivers in order to further protection goals.¹¹⁴ In protecting designated rivers, "primary emphasis shall be given to protecting its esthetic, scenic, historic, archeologic, and scientific features."¹¹⁵ The Act authorizes cooperative agreements¹¹⁶ with and technical assistance to state and local governments,¹¹⁷ but not NGOs.

Unlike the public's and NGOs' involvement with the National Trails System, the Wild and Scenic Rivers System does not benefit from the same high level of public awareness and is not managed in close partnership with NGOs. Congress has designated 160 rivers or river segments as components of the Wild and Scenic Rivers System¹¹⁸ and 136 other rivers for study by federal agencies as potential additions.¹¹⁹ Yet the statutory designation for these rivers probably is not known to the vast majority of the public and [30 ELR 10099] is not the basis for extensive NGO involvement with river initiatives. This may be due to the absence of an express statutory invitation to establish public-private partnerships under the Wild and Scenic Rivers Act. Perhaps as evidence of the lack of active public involvement with the Wild and Scenic Rivers System, Congress provided funding for only one project along a designated river in the Fiscal Year (FY) 2000 appropriations.¹²⁰ In the same appropriations act, Congress funded operation, construction, and land acquisition for several of the long-distance trails designated under the NTSA.

Indirectly related to the Wild and Scenic Rivers Act, the Clinton Administration has experimented with an "American Heritage Rivers Initiative," which invited NGOs and local governments to nominate their rivers for White House recognition.¹²¹ The President designated 14 American Heritage Rivers in 1998, including several with segments previously designated by Congress as wild or scenic or for which studies of potential wild and scenic river designation have been required by law.¹²² This White House initiative has suffered, however, chiefly due to criticism by members of Congress that it was not authorized by law. The future of this Presidential rivers initiative is uncertain because a rider inserted into a FY 2000 appropriations act forbids further White House involvement.¹²³

The statutory system of river protection under the Wild and Scenic Rivers Act could benefit in the long run from the involvement of local conservation organizations by an amendment to the statute authorizing NGO cooperative agreements. Based on the experience under the NTSA, the result should be a greatly enhanced nationwide effort to improve protection of significant rivers and help advance the Wild and Scenic Rivers Act's "vital national conservation purpose" of protecting the water quality of certain rivers in their free-flowing condition.¹²⁴

Conclusion

The leaders of the National Trails System have been engaged in a 30-year experiment with a unique form of public-private resource management. Although the NTSA resulted from activism among federal agencies and members of Congress, rather than from the general public's demands, its full implementation has been driven by NGO groups and other nonfederal partner organizations.

Unlike most other areas of government administration, especially regulatory programs, the National Trails System provides a model of federal partnership with NGOs, involving delegation of federal responsibility and sharing of congressionally appropriated funding. The system is based on a mutual understanding among governmental and nongovernmental entities of overarching goals and objectives, developed through coordinated local planning and implementation under cooperative agreements, rather than through regulation. The result has been meaningful progress in achieving statutory objectives through effective grass-roots involvement in program management, with relatively little friction or discontent on the part of the public or interest groups.

Well-organized, highly motivated NGO trail organizations can carry out many NTSA functions in partnership with and support from federal agencies. Their activities can benefit substantially from cooperative agreements. These activities have included historic research and mapping, organizing volunteers and educating the public, constructing trails, arranging for signs and markings, negotiating rights-of-way and rail-to-trail conversions, historic route identification and mapping, trail corridor cleanup, safety patrolling, and participation in regional, statewide, and local planning. NGO partners are often essential in establishing a long-term dialogue about the importance of trails among public land management agencies, private landowners and the general public. The paradigm of public-private partnerships established under the NTSA could be valuable as Congress and the Executive Branch evaluate the structure of resource management programs and new opportunities for government "reinvention."

1. Pub. L. No. 90-543, 82 Stat. 919 (codified as amended at 16 U.S.C. §§ 1241-1262).

2. Id. § 1250(a)(1).

3. See U.S. DEPARTMENT OF THE INTERIOR, TRAILS FOR AMERICA: REPORT ON THE NATIONWIDE TRAIL STUDY 13 (1966) [hereinafter TRAILS FOR AMERICA: REPORT ON THE NATIONWIDE TRAIL STUDY].

4. Id.

5. Lyndon B. Johnson, Special Message to the Congress on Conservation and Restoration of Natural Beauty (Feb. 8, 1965) (courtesy of the Lyndon Baines Johnson Library and Museum, Austin, Tex.).

6. See TRAILS FOR AMERICA: REPORT ON THE NATIONWIDE TRAIL STUDY supra note 3.

7. See id. at 16.

8. See id. at 14.

9. Pub. L. No. 88-577, 78 Stat. 890 (codified as amended at 16 U.S.C. §§ 1131-1136).

10. See id. § 1133.

11. See id. § 1132.

12. Pub. L. No. 88-578, 78 Stat. 897 (codified as amended at 16 U.S.C. § 460l-5).

13. See id. § 460l-8.

14. See id. § 460l-8(f).

15. Pub. L. No. 91-357, 84 Stat. 472 (codified as amended at 16 U.S.C. § 18g).

16. Pub. L. No. 90-300, 86 Stat. 147 (codified as amended at 16 U.S.C. § 558a).

17. Letter from Stewart Udall, Secretary of the Interior, to Sen. Hubert H. Humphrey (D-Minn.), transmitting proposed national trails legislation (Mar. 31, 1966).

18. NTSA, S. 827, 90th Cong. (1967). The bill was preceded by similar congressional proposals. Efforts to protect the Appalachian Trail became the catalyst for a series of legislative proposals that led to development of the NTSA of 1968. These efforts, spearheaded by Sen. Gaylord Nelson (D-Wis.), began in 1965 when Senator Nelson introduced the Appalachian Trail Bill. See S. 622, 89th Cong. (1965). That bill was intended to preserve and protect the Appalachian Trail using federal land acquisition and to promote cooperation among the various agencies. Senator Nelson subsequently sponsored a bill to create a nationwide system of recreational trails restricted to federal lands. See S. 2590, 89th Cong. (1966). This bill would have established a national hiking trails system on the U.S. Department of the Interior's and the U.S. Department of Agriculture's lands. Money would be allocated to states for their trail planning and construction needs. See id. In 1966, Senator Nelson introduced a bill that proposed a NST designation, with the Appalachian Trail as the first trail to be so designated. S. 3171, 89th Cong. (1966). Citizens were given a role in trail management by establishing an Appalachian Trail Advisory Council composed of federal, state, and private citizens to help ensure uniform, consistent management of the trail. A study of nine additional possible trail routes, several of which played a significant role in frontier history, was also authorized. As a last resort the Secretary of the Interior could condemn land along trail corridors which required protection. See id.

19. Pub. L. No. 90-543, 82 Stat. 919 (codified as amended at 16 U.S.C. §§ 1241-1249).

20. See S. 827, 90th Cong. (1967)

21. See Pub. L. No. 95-625, 92 Stat. 3512-3515 (establishing a category for NHTs).

22. Under 16 U.S.C. § 1244(c), Congress designates potential trail corridors for study by the appropriate federal agency.

23. See 16 U.S.C. § 1244(b).

24. All national scenic and historic trails are so designated under 16 U.S.C. § 1244(a).

25. See 16 U.S.C. § 1244(e) (comprehensive plans for NSTs) and § 1244(f) (comprehensive plans for NHTs).

26. See id. § 1243 (authorization for designation of NRTs).

27. See id. § 1245. One side and connecting trail is a branch of the Iditarod NHT, and the other is attached to the Ice Age NST.

28. 1968 U.S.C.C.A.N. at 3857.

29. Id.

30. See Appalachian Trail Conference, http://www.atconf.org/ANSTAC.html (visited Nov. 30, 1999).

31. See id.

32. Id.

33. See id.

34. See 16 U.S.C. § 1246(a)(2).

35. Id. § 1246(a)(7)(B).

36. See id. § 1249(c)(1).

37. See id. § 1244.

38. See id.§ 1244(a)(11) (Potomac Heritage NST); § 1244(a)(13) (Florida NST); § 1244(a)(14) (Nez Perce NHT); § 1244(a)(15) (Santa Fe NHT); § 1244 (a)(16) (Trail of Tears NHT); § 1244(a)(17) (Juan Bautista de Anza NHT); and § 1244(a)(18) (California NHT).

39. See Pub. L. No. 98-11, 97 Stat. 43 (codified as amended at 16 U.S.C. § 1247(d)).

40. 494 U.S. 1, 20 ELR 20454 (1990).

41. In Preseault, the Court held that, assuming a taking of a reversionary interest of adjacent landowners occurs when railroad rights-of-way are converted to public trail use under the NTSA, a Tucker Act remedy is available for such takings claims, and, thus, the NTSA cannot be construed to take property without just compensation. See id.

42. 16 U.S.C. § 1247(a).

43. See id. § 1247(e).

44. See id. § 1242(c).

45. See id. § 1246(a).

46. See id. § 1246(h)(2).

47. See id. § 1248.

48. See H.R. 2339, and S. 734, 106th Cong. (1999).

49. See H.R. 791, and S. 441, 106th Cong. (1999).

50. See Pub. L. No. 90-543, 82 Stat. 922 (codified as amended at 16 U.S.C. §§ 1244(a)(1), 1249(a)(2)) (designating Appalachian and Pacific Crest NSTs).

51. 16 U.S.C. § 1242(a)(2).

52. See Pub. L. No. 90-543, 82 Stat. 922 (codified as amended at 16 U.S.C. § 1244(a)(1)).

53. See NATIONAL PARK SERVICE, APPALACHIAN TRAIL (1998 brochure).

54. See id.

55. See Pub. L. No. 95-248, 92 Stat. 159 (codified as amended at 16 U.S.C. § 1244(5)).

56. See Pub. L. No. 98-11, 97 Stat. 43 (codified as amended at 16 U.S.C. 1244(a)(13)).

57. See U.S. FOREST SERVICE, A GUIDE TO YOUR FLORIDA NATIONAL SCENIC TRAIL (1997 brochure).

58. See Pub. L. No. 96-370, 94 Stat. 360 (codified as amended at 16 U.S.C. § 1244(a)(10)).

59. See NATIONAL PARK SERVICE, ICE AGE TRAIL (1993 brochure).

60. See id.

61. See Pub. L. No. 98-11, 97 Stat. 43 (codified as amended at 16 U.S.C. § 1244(a)(12)).

62. See NATIONAL PARK SERVICE, NATCHEZ TRACE PARKWAY (1995 brochure).

63. See id.

64. See Pub. L. No 96-199, 94 Stat. 67 (codified as amended at 16 U.S.C. § 1244(a)(8)).

65. See NATIONAL PARK SERVICE, NORTH COUNTRY TRAIL (1997 brochure).

66. See Pub. L. No. 90-543, 82 Stat. 920 (codified as amended at 16 U.S.C. § 1244(a)(2)).

67. See U.S. FOREST SERVICE, PACIFIC CREST TRAIL (1998 brochure).

68. See Pub. L. No. 98-11, 97 Stat. 43 (codified as amended at 16 U.S.C. § 1244(a)(11)).

69. See Pub. L. No. 95-625, 92 Stat. 3512-3515 (codified as amended at 16 U.S.C. § 1242(a)(3)).

70. See Pub. L. No. 102-328, 106 Stat. 845 (codified as amended at 16 U.S.C. § 1244(19)).

71. See National Park Service, National Trails System (visited Oct. 5, 1999) http://www.nps.gov/htdocsl/pub_aff/naltrail.htm.

72. Id.

73. See Pub. L. No. 95-625, 92 Stat. 3512 (codified as amended at 16 U.S.C. § 12449(a)(5)).

74. See 16 U.S.C. § 1244(a)(7).

75. See supra note 71.

76. See Pub. L. No. 101-365, 104 Stat. 429 (codified as amended at 16 U.S.C. § 1244(a)(17)).

77. See NATIONAL PARK SERVICE, JUAN BAUTISTA DE ANZA NATIONAL HISTORIC TRAIL (1996 brochure).

78. See Pub. L. No. 95-625, 92 Stat. 3512 (codified as amended at 16 U.S.C. § 1244(a)(6)).

79. See NATIONAL PARK SERVICE, LEWIS AND CLARK TRAIL (1997 brochure).

80. See id.

81. See Pub. L. No. 95-625, 92 Stat. 3512 (codified as amended at 16 U.S.C. § 1244(a)(4)).

82. See NATIONAL PARK SERVICE, MORMON PIONEER TRAIL (1995 brochure).

83. See id.

84. See Pub. L. No. 99-445, 100 Stat. 1122 (codified as amended at 16 U.S.C. 1244(a)(14)).

85. See U.S. FOREST SERVICE, NEZ PERCE NATIONAL HISTORIC TRAIL (1991 brochure).

86. See Pub. L. No. 95-625, 92 Stat. 3512-3515 (codified as amended at 16 U.S.C. § 1244(a)(3)).

87. See NATIONAL PARK SERVICE, OREGON TRAIL (1997 brochure).

88. See Pub. L. No. 96-344, 94 Stat. 1136 (codified as amended at 16 U.S.C. § 1244(a)(9)).

89. See NATIONAL PARK SERVICE, OVERMOUNTAIN VICTORY NATIONAL HISTORIC TRAIL (1998 brochure).

90. See id.

91. See Pub. L. No. 102-328, 106 Stat. 845 (codified as amended at 16 U.S.C. § 1244(18)).

92. See supra note 71.

93. See Pub L. No. 100-35, 101 Stat. 302 (codified as amended at 16 U.S.C. § 1244(a)(15)).

94. See NATIONAL PARK SERVICE, SANTA FE TRAIL (1995 brochure).

95. See id.

96. See Pub. L. No. 104-333, 110 Stat. 4148 (codified as amended at 16 U.S.C. § 1244(a)(20)).

97. See 16 U.S.C. § 1244(20).

98. See Pub. L. No. 100-192, 101 Stat. 1309 (codified as amended at 16 U.S.C. § 1244(a)(16)).

99. See NATIONAL PARK SERVICE, TRAIL OF TEARS (1996 brochure).

100. 16 U.S.C. § 1241(c).

101. See id. § 1250.

102. See id. § 1246(k).

103. See id. § 1244(d).

104. When deemed to be in the public interest, such Secretary may enter written cooperative agreements with the States or their political subdivisions, landowners, private organizations, or individuals to operate, develop, and maintain any portion of such a trail either within or outside a federally administered area. Such agreements may include provisions for limited financial assistance to encourage participation in the acquisition, protection, operation, development, or maintenance of such trails . . . .

Id. § 1246(h).

105. Id. § 1250(a)(1).

106. See id. § 1250(b).

107. H. R. REP. NO. 98-28, at 6 (1983), reprinted in 1983 U.S.C.C.A.N. 117.

108. Id. at 118.

109. National Discovery Trails Act: Hearings on H.R. 588 Before the House Comm. on Resources, 105th Cong. (1997) (statement of Robert C. Joslin, Deputy Chief, U.S. Forest Service).

110. See 16 U.S.C. § 18g.

111. House Committee on Appropriations, Report to Accompany H.R. 2466, Department of the Interior and Related Agencies Appropriations Bill, 2000. H.R. No. 106-222, at 38-39 (1999).

112. Pub. L. No. 90-540, 82 Stat. 906 (codified as amended at 16 U.S.C. §§ 1271-1287).

113. See 16 U.S.C. § 1273(b).

114. See id. § 1277.

115. Id. § 1281(a).

116. See id. § 1281(e).

117. See id. § 1282.

118. See id. § 1274.

119. See id. § 1275.

120. See Consolidated Appropriations of 1999, Pub. L. No. 106-113 (allocating $ 200,000 for cooperative agreements on the Lamprey Wild and Scenic River).

121. See generally Thomas C. Downs, American Heritage Rivers Initiative: A Harbinger of Future White House Environmental Policy?, 29 ELR 10065 (Feb. 1999).

122. See id. at 10070-71.

123. See Pub. L. No. 106-113, sec. 329:

None of the funds provided in this or previous appropriations Acts . . . shall be transferred to or used to fund personnel, training, or other administrative activities at the Council on Environmental Quality or other offices in the Executive Office of the President for purposes related to the American Heritage Rivers program.

124. See 16 U.S.C. § 1271.