What’s in a Name: Preserve-ing the Buffalo River

Editor’s Note: Tyler Mlakar is a litigation associate at the Rose Law Firm in Little Rock, Arkansas. Tyler is an Alma, Arkansas native and an avid outdoorsman. The information in this article, including any legal opinions, is for informational purposes only and should not be construed as legal advice. A redesignation of the Buffalo National River would involve complex considerations beyond legal issues, such as economic, environmental, and social factors. All photos courtesy of the Arkansas Department of Parks, Heritage and Tourism.

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The Buffalo River is Arkansas’s Garden of Eden. Its towering limestone bluffs, crystal-clear waters, and vibrant foliage inspire awe in all who behold them. The river boasts abundant wildlife and world-class recreational opportunities for outdoor enthusiasts of all stripes. And it is an area chock-full of history, culture, tradition, and—believe it or not—politics. The Buffalo River has engendered some of Arkansas’s most potent political crises of the past half-century.

In the 1960s, the U.S. Army Corps of Engineers sought to dam the river in furtherance of a hydroelectric project (the “Dam Crisis”). The issue provoked so much controversy that Congress stepped in—passing a law that made the Buffalo River America’s first national river in 1972.[1] Of course, such recognition came at a substantial price: many locals lost generational family farms in the process. Then, in the 2010s, C&H Farms (backed by Cargill, Inc.) obtained a permit to operate a concentrated animal feeding operation (“CAFO”) near one of the Buffalo’s tributaries.[2] Once the public realized what was happening, all-out war ensued for nearly a decade. It ended only after extensive legal wrangling and an agreement by the State of Arkansas, in conjunction with the Nature Conservancy, to pay C&H Farms $6.2 million.

Arkansans are passionate about the buffalo., and it is against that backdrop that we enter the present controversy. On October 5, 2023, the Madison County Record ran a story titled, “Changes floated for land on Buffalo River,” immediately igniting the dormant embers of past Buffalo River controversies.[3] In it, journalist Ellen Kreth reported that a group called the “Coalition for Buffalo River National Park Preserve” (the “Coalition”) was floating the idea of redesignating the Buffalo National River as the Buffalo River National Park and Preserve.[4] According to proponents, such redesignation would bring additional funding to the Buffalo and economic benefits accompanying increased tourism.[5] This and subsequent reports revealed the involvement of the Runway Group, a Walton-owned enterprise; Congressman Bruce Westerman’s office; and the Sarah Huckabee Sanders administration.[6] Once the story broke, many Arkansans—particularly Buffalo River locals—were up in arms, especially because talks about redesignating the Buffalo had begun in secret as early as July 2022.[7] Consequently, on October 26, 2023, the Remnants Project, a historical and cultural heritage preservation group, held a town hall in Jasper at which more than 1,000 people appeared to voice their dissent.[8] Dissidents primarily complained about the Coalition’s (i) lack of transparency regarding the project and (ii) refusal to involve local stakeholders.[9] Opponents also complained that redesignation could involve substantial land-use restrictions.[10] Not long after the town hall, the Runway Group retracted the idea of redesignating the Buffalo.[11]

Notwithstanding this retraction, many questions remain regarding the legal consequences of redesignating the Buffalo National River. This Article attempts to answer them. Like many Arkansans, I was skeptical of redesignation given the secrecy with which the initial conversations were shrouded. But my research has belied my skepticism. Hopefully, after reading this Article, you will find that redesignating the Buffalo National River as the Buffalo River National Park and Preserve is not such a bad thing after all. Provided, of course, that we do it the right way.

I. The National Park Service, Congress, and names. 

The National Park Service (“NPS”) currently manages 429 individual “units”—commonly referred to as “parks”—covering more than 85 million acres of land in all 50 states, the District of Columbia, and U.S. Territories.[12] It boasts an annual budget exceeding $3 billion and hundreds of millions of visitors every year from all corners of the globe.[13] Most do not realize that this sprawling colossus of conservation—the impetus for the worldwide national park movement and concomitant salvation of the most beautiful lands, waters, and animals on the planet—all began in Arkansas. Long before the NPS (1916), Yellowstone National Park (1872), or even the Department of the Interior (1849), the 22nd Congress passed a law establishing the “Hot Springs Reservation” in “the territory of Arkansas” as the very first protected area in the United States in 1832.[14] Why name it the “Hot Springs Reservation” you ask? Simple: Congress could not think of a better name. Almost 100 years later, following Congress’s creation of the NPS in 1916, the 67th Congress redesignated the Hot Springs Reservation as the “Hot Springs National Park” in 1921.[15]

Since then, surprisingly not that much has changed regarding the establishment and redesignation of National Park System units. Now, as then, the federal government cannot create a new unit or redesignate an old one absent Congressional act, often known as “enabling legislation.”[16] And, in the enabling legislation, as Congress did with Hot Springs, Congress can refer to a unit by whatever name it desires. In other words, no law limits the designations available to Congress, and Congress has the discretion to create a new designation whenever it pleases. For example, following the Dam Crisis on the Buffalo in the 1960s, Congress passed Public Law 92-237 providing:

That for purposes of conserving and interpreting an area containing unique scenic and scientific features, and preserving as a free-flowing stream an important segment of the Buffalo River in Arkansas for the benefit and enjoyment of present and future generations, the Secretary of the Interior . . . may establish and administer the Buffalo National River.[17]

This was the first time Congress ever used the “National River” designation.[18] New designations abounded during this period. Perhaps that is why, today, there are more than 20 different designations for National Park System units.[19] Some of the more popular designations include National Park, National Preserve, and National Historic Site, while lesser-known designations include National Scenic Trail or Ecological and Historic Preserve.[20] A single unit, such as the New River Gorge National Park and Preserve, can even have multiple designations.[21]

Relatedly—and this is crucial, as there is no statute limiting the designations available to Congress, neither is there an overarching statute governing the activities that may occur within any particular designation, nor is there any automatic funding increase simply because a unit receives a new designation.[22] What this means is that, notwithstanding a particular unit’s formal designation, Congress can mandate, authorize, or restrict essentially any activity it wants in the unit’s enabling legislation—regardless of what activities Congress has mandated, authorized, or restricted in an identically designated unit in the past. So too can Congress authorize whatever appropriations it desires for a particular unit, regardless of that unit’s designation.[23] In other words, a unit’s name is just a name; it has no legal effect in and of itself. If you take one thing away from this entire Article, it should be this: a unit’s enabling legislation controls regardless of the formal designation Congress gives the unit, and Congress can make that enabling legislation say whatever Congress—acting through the People—wants that legislation to say.[24]

Importantly, however, there is a caveat. A unit’s designation, while having no direct legal consequences, can nonetheless be meaningful in at least three ways. First, in practice, “Congress has grouped similar units under similar titles, and often has followed precedents regarding the activities authorized in particular types of units.”[25] In other words, units with like designations often have like enabling legislation. Second, the NPS, in interpreting its mandate to “promote and regulate the use of [designated units] by such means and measures as conform to the fundamental purpose of the said [designated units] by such means as will leave them unimpaired for the enjoyment of future generations[,]” looks to how identically designated units are and historically have been managed (including the types of activities typically authorized or restricted in such units) when determining how to govern the unit at issue.[26] And third, as some proponents of the Buffalo River National Park and Preserve have claimed, a unit’s designation can influence visitation patterns, particularly if the unit is designated as a National Park.[27] Thus, it is worth looking into what secondary legal effects can result from redesignating the Buffalo National River as the Buffalo River National Park and Preserve.

II. Land-use restrictions in National Parks and National Preserves.

The NPS’s Organic Act gives the NPS extraordinary discretion in managing land and its accompanying uses, especially when those uses might damage or consume limited resources (often referred to as “consumptive-use activities”—hunting or mining, for example).[28] However, that discretion is cabined by the unit’s enabling legislation. There are essentially three categories of uses Congress can refer to in the enabling legislation: (i) mandated, (ii) authorized, and (iii) restricted. In administering mandated uses—i.e., when Congress states in the enabling legislation that the NPS shall or must allow a certain use within a particular unit—unit managers “must allow the use; however, they do have the authority to and must manage and regulate the use to ensure, to the extent possible, that impacts on park resources from that use are acceptable.”[29] When a use is mandated, the NPS’s discretion on limiting that use is severely restricted. A prime example of a mandated use is in Section 3 of the Buffalo National River’s enabling legislation, in which Congress provides that “[t]he Secretary shall permit hunting and fishing on lands and waters under his jurisdiction within the boundaries of the Buffalo National River.”[30]

In administering authorized uses—i.e., when Congress provides that the NPS may allow a certain use within a particular unit—the NPS has “the discretionary authority to allow and manage the use, provided that the use will not cause impairment or unacceptable impacts.”[31] In other words, the NPS can exercise its discretion to entirely disallow an authorized use if the NPS finds that such a restriction is in the best interests of the unit. A good example of an authorized use is found in Section 4 of the Oregon Caves National Monument and Preserve enabling legislation, in which Congress states, “the Secretary may allow the grazing of livestock within the National Preserve.”[32] Finally, as to restricted uses, if Congress merely imposes a limit on the use, the NPS has the discretion to permit it. But if Congress prohibits the use entirely, the NPS must abide by the statute.

The NPS also has certain guideposts for when Congress is silent as to a particular use. For example, if Congress does not expressly provide that hunting, trapping, or other methods of harvesting wildlife by the public are authorized or mandated within a unit, the NPS generally prohibits such uses.[33] Similarly, the NPS generally bars mineral exploration unless Congress specifically authorizes it.[34] Thus, although the NPS’s website states that “the extraction of minerals and fuels may be permitted [in National Preserves] if they do not jeopardize natural values,” that is only true under specific circumstances, and such uses would be outright prohibited if Congress restricted them within the unit’s enabling legislation.

Let’s turn to what Congress and the NPS typically allow and prohibit in National Parks versus in National Preserves. In the enabling legislation for National Parks, Congress is often silent as to consumptive-use activities. For example, in Grand Teton National Park’s enabling legislation, Congress does not mention hunting.[35] Consequently, the NPS generally prohibits hunting in Grand Teton National Park.[36] That has not always been the case in National Parks, however. In the Mount McKinley National Park enabling legislation (later redesignated as Denali National Park and Preserve), Congress provided, “[t]hat prospectors and miners engaged in prospecting or mining in said park may take and kill therein so much game or birds as may be needed for their actual necessities when short of food[.]”[37] Even today, Congress permits “subsistence uses by local residents,” to include hunting and trapping, in many of Alaska’s National Parks.[38]

In the enabling legislation for National Preserves, Congress almost always mandates hunting and fishing and typically authorizes a wide variety of other consumptive-use activities. My study of the enabling legislation for National Preserves revealed the following examples:[39]

Unit	Enabling Legislation
All Alaska National Preserves (including Denali National Park and Preserve)	Public Law 96-487: “A National Preserve in Alaska shall be administered and managed as a unit of the National Park System in the same manner as a national park except as otherwise provided by this Act and except that the taking of fish and wildlife for sport purposes and subsistence uses, and trapping shall be allowed in a national preserve.”   As to the Bering Land Bridge National Preserve, the legislation even authorizes the Secretary to issue regulations “to continue reindeer grazing.”
Great Sand Dunes National Park and Preserve	Public Law 106-530: The Secretary “may permit the continuation of grazing” and “shall permit hunting, fishing, and trapping on land and water within the preserve in accordance with applicable Federal and State laws.”
Mojave National Preserve	Public Law 103-433: “Notwithstanding any other provision of law, the Secretary shall permit the holder or holders of mining claims identified on the records of the Bureau of Land Management . . . to continue exploration and development activities on such claims for a period of two years after the date of enactment of this title.”
New River Gorge National Park and Preserve	Public Law 116-260: “Hunting within the New River Gorge National Preserve shall be administered by the Secretary— (i) in the same manner as hunting was administered on the day before the date of enactment of this Act in those portions of the New River Gorge National River” and “Fishing within the New River Gorge National Park and Preserve shall be administered by the Secretary— (i) in the same manner as fishing was administered within the New River Gorge National River.”
Timucuan Ecological and Historical Preserve	Public Law 100-249: “The Secretary shall permit boating, boating-related activities, hunting, and fishing within the Preserve in accordance with applicable Federal and State laws.”

All this to say: redesignating the Buffalo National River as the Buffalo River National Park and Preserve does not necessarily mean strict land-use restrictions will follow. Rather, the extent and nature of such restrictions primarily depends on the enabling legislation. Even then, using history as a guide, while Congress can restrict consumptive-use activities (such as hunting) within the Buffalo River National Park portion, it will not necessarily do so if Arkansans petition for the enabling legislation to say otherwise. And, in any event, Congress is almost certain to expressly mandate such uses within the Buffalo River National Preserve portion.[40]

III.       Would redesignation lead to entrance fees or permitting requirements? 

Part of what makes the Buffalo National River so special is its ease of access; the river is for all people at all times. There are no entrance fees and few restrictions on when and where people can access the river.  The Buffalo stands for everything a public treasure should be. Will that change with redesignation? It depends.

Long story short, the NPS’s Organic Act, the Federal Lands Recreation Enhancement Act (“FLREA”),[41] and regulations promulgated under Title 36 of the Code of Federal Regulations afford the NPS wide discretion in deciding whether to charge fees, such as entrance fees or general recreation fees, and whether to impose public-use limits[42] on certain recreational activities. Importantly, however, the NPS already has this discretion in the Buffalo National River and has simply decided, in interpreting the previously-referenced authorities, that no such fees or limits should be imposed at this time.

Redesignating the Buffalo National River as the Buffalo River National Park and Preserve will not necessarily change that decision. Just look to the New River Gorge National Park and Preserve, for example. Under the formerly designated New River Gorge National River, the NPS did not charge entrance fees, and it likewise does not charge entrance fees for the New River Gorge National Park and Preserve today.[43] That being said, if redesignation of the Buffalo National River as the Buffalo River National Park and Preserve caused a spike in visitor activity—which it almost certainly would—that could cause the NPS to exercise its discretionary authority to start charging entrance fees and impose public-use limits in order to protect the river’s limited resources.

IV. Moving forward.

Looking ahead, it is important to consider the potential consequences of redesignating the Buffalo National River as the Buffalo River National Park and Preserve. While redesignation would not result in an automatic funding increase, it would result in additional funding if the enabling legislation required it. Redesignation might result in additional land-use restrictions and fees, but it does not have to result in additional land-use restrictions and fees. It is all in the enabling legislation, and, as a condition of any redesignation of the Buffalo National River, Arkansans can petition for that enabling legislation to say what they want it to. For example, Arkansans can petition for it to say, “the Secretary shall permit hunting, fishing, trapping, boating, camping, and other recreational uses to the fullest extent as previously enjoyed under the formerly designated Buffalo National River.” Arkansans can petition for additional funding for roads, infrastructure, and boat launches as a condition of the Act’s passing. And, as a first step, Arkansans can petition Congress to require an NPS area study[44] before any formal efforts to redesignate the Buffalo National River are undertaken. Such studies require public involvement, an assessment of “the level of local and general public support,” and an analysis of a litany of other important factors such as the potential impact to the area’s resources.[45]

At the end of the day, redesignating the Buffalo National River as the Buffalo River National Park and Preserve could be a great thing for Arkansas, but only if we do it the right way. On the one hand, that means having robust, wide-open public discussions about the costs and benefits of redesignation and ensuring that the Buffalo River remains true to itself and what makes it special—not operating in secret. On the other hand, and equally important, it means staying disciplined to the opportunity, engaging in the process, and avoiding emotionally-charged positions without the benefit of complete understanding and analysis. Let’s really think about the potential that redesignation has for the Buffalo River and not get stuck in the short term. We all want what is best for the Buffalo, and we have the grave responsibility of protecting it for present generations and all posterity. Redesignating the Buffalo National River as the Buffalo River National Park and Preserve might not be the right answer, but I hope that after reading this Article, you will conclude that Saving the Buffalo River and Preserving it are not mutually exclusive.

[1] Act of Mar. 1, 1972, Pub L. No. 92-237, 86 Stat. 44, 44-46.

[2] Brian Thompson, Save the Buffalo River Again: A Story About a National River and a Hog Farm 9-12 (2022).

[3] Ellen Kreth, Changes Floated for Land on Buffalo River, Madison Cnty. Rec., Oct. 5, 2023, at 10A.

[4] Id.

[5] Id.

[6] Ellen Kreth, Buffalo River Land Tangled in Crosscurrents, Madison Cnty. Rec., Oct. 26, 2023, at 10A.

[7] Id.

[8] Bill Bowden, More than 1,100 People Attend Meeting on Redesignating Buffalo National River, Ark. Democrat Gazette, Oct. 26, 2023. Another 2,000 appeared online via Zoom and Facebook.

[9] Id.

[10] Id.

[11] Kreth, supra note 6, at 1A, 10A.

[12] About Us, Nat’l Park Serv. (Feb. 14, 2024), https://www.nps.gov/aboutus/national-park-system.htm.

[13] NPS Budget, U.S. Dep’t of Interior (May 10 2023), https://www.doi.gov/ocl/nps-budget-2#; National Park Visitation Sets New Record as Economic Engines, U.S. Dep’t of Interior (Aug. 21, 2023), https://www.doi.gov/ pressreleases/national-park-visitation-sets-new-record-economic-engines.

[14] Act of Apr. 20, 1832, ch. 70, 4 Stat. 505; S. Res. 160, 110th Cong. (Apr. 18, 2007).

[15] Act of Mar. 4, 1921 , ch. 161, 42 Stat. 1367, 1407.

[16] Laura B. Comay, National Park System: Establishing New Units, Cong. Rsch. Serv. (Apr. 6, 2022), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://crsreports.congress.gov/product/pdf/RS/RS20158. There is one exception to this general rule. The President may proclaim National Monuments on federal lands under the Antiquities Act of 1906. 54 U.S.C. § 320301(a).

[17] Act of Mar. 1, 1972, Pub L. No. 92-237, 86 Stat. 44, 44-46.

[18] Congress could have designated the Buffalo River the “National Best Place on Earth,” with the same net effect.

[19] About Us, supra note 12.

[20] Comay, supra note 16.

[21] The enabling legislation then refers to maps of the land in question, designating part of the property as a National Park and the remainder as a National Preserve.

[22] An automatic funding increase would only occur if a unit’s redesignation sparked increased visitation, which in turn sparked the payment of additional fees. Such is not the case for the Buffalo River, where the NPS currently does not charge entrance fees.

[23] For example, even absent redesignating the “Buffalo National River” as the “Buffalo River National Park and Preserve,” nothing stops Congress from immediately appropriating much needed funds for the improvement of roads, visitor centers, etc. in the Buffalo National River. Of course, equally as true, it would be easier to muster the national political will necessary to appropriate such funds if the Buffalo were redesignated as a National Park and Preserve. Something about the National Park title gets folks fired up.

[24] As an extreme example, Congress could redesignate the “Buffalo National River” as the “Woo Pig River,” and, if the enabling legislation contains the same provisions, nothing would change substantively. Congress’s discretion in this regard is of course cabined by the U.S. Constitution.

[25] Laura B. Comay, National Park System: What Do the Different Park Titles Signify, Cong. Rsch. Serv. (Nov. 15, 2023), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://sgp.fas.org/crs/misc/R41816.pdf.

[26] National Park Service Organic Act, 39 Stat. 535 (1916) (emphasis added).

[27] Ray Rasker, National Monuments Redesignated as National Parks, Headwaters Econs. (May 2018), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://headwaterseconomics.org/wp-content/uploads/national-monuments-redesignated-national-parks-white-sands.pdf.

[28] Comay, supra note 25.

[29] Management Policies 2006, Nat’l Park Serv. (2006), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/ https://www.nps.gov/subjects/policy/upload/MP_2006.pdf.

[30] Act of Mar. 1, 1972, Pub L. No. 92-237, 86 Stat. 44, 44-46 (emphasis added).

[31] Management Policies 2006, supra note 29.

[32] Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act, Pub. L. No. 113-291, § 3041, 128 Stat. 3789, 3789-92 (2014).

[33] Management Policies 2006, supra note 29.

[34] Id.

[35] Act of Feb. 26, 1929, ch. 331, 45 Stat. 1314, 1314–16.

[36] That being said, legislation in 1950 added certain lands to Grand Teton National Park and permitted the NPS to jointly administer an elk reduction program with the Wyoming Game and Fish Department. Pursuant to this legislation, the NPS sometimes allows hunters to take elk in limited areas of the National Park. See, e.g., Elk Reduction Program Begins November 18, Nat’l Park Serv. (Nov. 14, 2023), https://www.nps.gov/grte/learn/news/ elk-reduction-program-begins-november-18.htm.

[37] Act of Feb. 16, 1917, ch. 121, 39 Stat. 938, 938–39.

[38] Alaska National Interest Lands Conservation Act, Pub. L. No. 96-487, 94 Stat. 2371, 2383 (1980).

[39] This is not an exhaustive list.

[40] The National Park portion of a National Park and Preserve is typically much smaller than the National Preserve portion. For example, the National Park portion of the New River Gorge National Park and Preserve consists of only about 7,000 of the approximately 70,000 total acres.

[41] 16 U.S.C. §§ 6801, et seq.

[42] See, e.g., 36 CFR §§ 1.5–1.6 (2024).

[43] New River Gorge: Fees & Passes, Nat’l Park Serv. (May 11, 2023), https://www.nps.gov/neri/planyourvisit/ fees.htm#:~:text=There%20is%20NO%20FEE%20to,not%20available%20for%20purchase%20here.

[44] Such a study requires “specific authorization of an Act of Congress.” 54 U.S.C. § 100507(b)(4).

[45] 54 U.S.C. § 100507.