Introducing "Cooperative Federalism in Biscayne National Park"

 Stiltsville homes in Biscayne National Park.  Photo: Ryan Stoa.

Stiltsville homes in Biscayne National Park.  Photo: Ryan Stoa.

For the past few months I've been working on an article about Biscayne National Park.  More specifically, I've been looking at the unique relationship between the state and federal government when it comes to fishery management.  With the National Park Service releasing its Final General Management Plan for the park last month, I'll be excited to post my draft on SSRN sometime next week.  In the meantime, here is an early draft of the introduction: 

The National Parks of the United States are nothing if not unique.  Active volcanoes, the world’s longest cave system, geothermal geysers, the largest island of the world’s largest lake, and the tallest trees on Earth can be found in the National Park System, among other natural wonders.  Some parks receive millions of visitors and are international tourist destinations – Grand Canyon National Park receives over 4.5 million visitors each year.    Others are so remote they don’t have park facilities and receive around a thousand visitors monthly.  

Biscayne National Park is neither remote nor highly frequented.  Despite its location within Miami-Dade County (population 2.66 million), the park receives only slightly more than half a million visitors annually.  That’s less than Denali National Park in Alaska, which is serviced by a single gravel access road.  North of Biscayne National Park lies the highly developed barrier islands of Key Biscayne and Miami Beach, as well as the Port of Miami, the world’s largest cruise port.  To the south lie the Florida Keys, and to the west the city of Miami, including a solid waste landfill and nuclear power plant visible from the park.  

Nestled between these bustling coastal developments is Biscayne National Park, the largest marine national park in the United States with 95% of its 173,000 acres located underwater.  The marine nature of the park sets it apart in various ways.  Much of BNP’s waters can only be accessed with a boat; on the other hand, with a boat nearly all of BNP can be accessed.  The park has four distinct ecosystems, including mangrove shorelines, estuarine shallows, barrier islands, and coral reefs.  These ecosystems sustain more than 100 species targeted by recreational and commercial fisheries.  In fact, BNP’s lucrative marine resources are what prompted Congress to protect the area in the first place.  As a result, management of the park and its resources plays an out-sized role in the South Florida tourism and fishing industries.  It also becomes highly controversial.

Aside from its marine character, Biscayne National Park is unique in the National Park System for the way in which its implementing legislation dictates the relationship between the National Park Service and the State of Florida.  With respect to fishing, Congress decreed that “the waters within the park shall continue to be open to fishing in conformity with the laws of the State of Florida.”  In other words, the state retains jurisdiction over fishing regulation and management in the park.  For a park that is mostly underwater and whose primary natural resource is fish, this reservation is a significant concession.  The reserved power notwithstanding, Congress simultaneously authorized the Secretary of the Interior to “designate species for which, areas and times within which, and methods by which fishing is prohibited, limited, or otherwise regulated in the interest of sound conservation to achieve the purposes for which the park was established,” giving the NPS the ability to impose their own fishing regulations in the park.  But, in waters donated by the state after establishment of the park, fishing must be regulated in conformity with state law. 

While these seemingly overlapping and contradictory mandates are confusing, Florida and the NPS have agreed in principle to manage fisheries uniformly within park waters.  That is likely a wise approach, as fishing compliance and enforcement would be challenging for all stakeholders involved if a multitude of marine jurisdictions in close proximity to each other had their own regulatory requirements.  On the other hand, it forces the state and federal government into a unique partnership, with each having arguably equal bargaining power over fisheries management. 

States and the federal government have been engaging in “cooperative federalism” for decades, through state implementation of federally-funded programs or state compliance with minimum federal standards.  In the field of environmental law, cooperative federalism takes place through state-managed compliance with the Clean Air Act and Clean Water Act, or the development of Coastal Zone Management Plans.  Cooperative federalism is less common in natural resources law, which is more place dependent and therefore subject to jurisdictional and territorial divides.  It is especially rare in the National Park System, where responsible park management must include state and local stakeholder involvement, but rarely provides so much legal authority to the state.  Biscayne National Park is therefore unique for both its marine and governance characteristics.

This article explores Biscayne National Park’s federalism contours in order to assess whether its management paradigm provides a workable model for replication in waters (or lands) of the United States and around the world.  Materials supporting this research include implementing legislation, state and federal regulations, management policies, inter-agency documents and communications, and direct stakeholder interviews (including consultations with federal, state, and local officials).  Ultimately there are some clear drawbacks to the BNP cooperative federalism model: namely, that dual control over fisheries management lengthens and increases the cost of the joint policy-making process. However, the synergistic effect of joint management is that NPS planning is more integrated with local legal frameworks, is more responsive to stakeholder needs, and receives the sense of ownership from surrounding communities that is so critical to the long-term sustainability of natural resources management.  Cooperative federalism in BNP has expanded the role and influence of the park beyond its borders, producing an overall positive outcome for stakeholders and the marine environment.  The research suggests that, while BNP may be unique geographically and politically, a similar governance model could produce similar benefits for other public lands, waters, and natural resources.