In order to answer this question, my blog post first of all provides the analytical and positive legal framework of what characterizes a national park. It outlines how U.S. law distinguishes (1) national from subnational parks as well as (2) national parks from other protected units, such as monuments and memorials. On this basis, my blog post explores the (3) motivations and (lacking) rationale behind the redesignation of Gateway Arch. It argues that what truly matters is not nominally upgrading units to national parks but rather (4) seriously protecting (and, where possible and viable, expanding) those areas, regardless of their official title.

National versus subnational parks

What’s in a name? In the case of a national park, the answer seems obvious: both an institutional component (the “park”, which shall be explained in the next paragraph) and a geographical element (the “national”, to be explored hereinafter). In U.S. law, that “national” character manifests itself in several features which elevate national parks above state parks (and, historically, above the once prevalent county and municipal parks).

First, national parks are established by the national government. As explained in detail later on, whilst national monuments might also be created by the President, national parks must be designated by Congress. This authority traces back to the Property Clause (U.S. Const. art. 4, § 3, cl. 2), vesting Congress with the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”, such as federal land owned by the U.S. government.

Second, national parks are governed by national regulations. Therefore, in principle, only federal law but no state law applies on their premises. Pursuant to the Property Clause, this principle of federal law’s exclusive applicability is valid not only in national parks but on most federal land. However, out of that very authority “over the public land(s) […] without limitation(s)” (United States v. Gratiot, 39 U.S. 526 (1840); United States v. San Francisco, 310 U.S. 16 (1940); Kleppe v. New Mexico, 426 U.S. 529 (1976)), Congress can provide for exemptions to the applicability of federal law and stipulate that state law or local law should apply. For instance, since 2010, federal law commands national park firearm regulations to reflect state law (see, 36 C.F.R. § 2.4). Therefore, if a state allows open carry or concealed carry, the respective form of carrying firearms is also permitted inside national parks located in that state.

Thirds, national parks are regulated, managed, and maintained by national institutions. Based on its regulatory authority, Congress has mandated the National Park Service (hereinafter, “NPS”), a federal agency, to manage and maintain Gateway Arch and other national parks. The NPS might also administer other units forming part of the National Park System, such as several national monuments, memorials, historic sites, battlefields, etc. Now, what is special and curious about Gateway Arch is that it constitutes the only national park within the borders of a city: St. Louis, Missouri. On such city territory, we individuals are regularly subject to at least three different legal layers: federal, state, and local law. But once we enter Gateway Arch, due to its national park status, we find ourselves on a legal island in the middle of Downtown St. Louis where we, in principle, only need to comply with federal law.

National parks versus monuments and memorials

The latter point leads us to the second, and decisive, question: What is “parklike” about Gateway Arch? Put differently, what makes Gateway Arch a national park, thus an “elite” site in the National Park System, and distinguishes it from the abovementioned “lesser” units like national monuments and memorials?

The law does not provide much meaningful guidance, as it merely defines a national park as “any unit of the National Park System the organic act of which declares it to be a ‘national park’” (36 C.F.R. § 17.2). Beyond this formalistic, if not tautological, definition, the NPS has developed substantive criteria of categorization: “[A] national park contains a variety of resources and encompasses large land or water areas to help provide adequate protection of the resources”. Gateway Arch, however, does not include and protect various resources. It merely consists of a flat grass field with three attractions of man-made and urban character: a 630-foot catenary arch completed in 1965; an underground museum; and the Old Courthouse, where the first two trials of Dred Scott v. Sandford, 60 U.S. 393 (1856), were held. Moreover, the premises span an area of not more than 91 acres. Therefore, in substantive terms, Gateway Arch does not fit the profile of a national park. During the legislative process, the NPS itself officially stated “that the Jefferson National Expansion Memorial is too small and limited in the range of resources the site protects and interprets to be called a national park”.

Whilst Gateway Arch is thus “smaller than a national park and lacks its diversity of attractions”, it at least preserves “one nationally significant resource”: the arch as such, which is the tallest monument in the country. Hence, Gateway Arch fulfils the NPS definition of a national monument (as argued on this and this blog). In addition, Gateway Arch meets the NPS standards of a national memorial—exactly as which it was previously classified—because it serves “primarily commemorative” purposes: Through the arch, it memorializes the Lewis and Clark Expedition and U.S. westward expansion. From a jurist’s perspective, however, it should also remind us of the Dred Scott landmark case, which, according to Bernard Schwartz, “stands first in any list of the worst Supreme Court decisions”. The judgement claimed that the U.S. Constitution conceptualized the “negro race as a separate class of persons” which “are not included […] under the word ‘citizens’ in the Constitution” and that people of African descent, whether free or enslaved, “can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens”. The Old Courthouse at Gateway Arch could function as a memorial of this dark period in U.S. legal history.

Political decisions and motivations

To cut a long story short, from a substantive point of view, the curios case of Gateway Arch’s designation as a national park is clear—that is, clearly mistaken. However, from a realist perspective, the creation of national parks as well the promotion of national memorials and monuments to parks have always been political decisions. The abovementioned benchmark for designating national parks entails a value judgement, which makes even supposedly hard criteria like the area size bendable. For example, the Grand Staircase–Escalante in Utah is only listed as a national monument, although it spans across 1.87 million acres and is thus larger than Utah’s five national parks combined. The basic rationale of the designation system consists in reserving the national park status for the “best of best” and “crown jewels of America” in terms of natural beauty. Put differently, national parks are gradually but not categorically different from monuments and memorials. As a consequence, the true particularity and curiosity of Gateway Arch does not lie in the fact that it misses the official size and resource requirements for becoming a national park—but rather that it so clearly misses them.

So, what was the motivation for then-President Trump to sign and seal the status elevation of Gateway Arch? This question is all the more salient for two reasons: First, the procedural requirements for becoming a national park are significantly higher than for other NPS units. National monuments, for example, can also be created by the President, using the authority granted by Congress in the Antiquities Act of 1906. In contrast, national parks, as explained above, must be designated by Congress. (Sure enough, this was not an obstacle in 2018, when due to the Republican Party’s trifecta of President, House, and Senate, the Gateway Arch National Park Designation Act did not depend on bipartisan support.) Second, the legal consequences of upgrading a site to national park status are neither huge nor legally (!) particularly beneficial. The upgrade does not influence the level of legal protection but might merely change the potential institutions in charge: Whilst national parks are always managed by the NPS, national monuments, for example, might also be jointly or exclusively run by other federal agencies such as the Bureau of Land Management or the Forest Service. Yet, Gateway Arch has always been administered by the NPS, which means that its promotion to a national park has not affected the leadership of its premises.

Consequently, we need to search for the reasons and motives behind the legal upgrade of Gateway Arch not in the law but in practice. Mainly three explanations for the redesignation have been suggested (here and here): First, tourism and thus economic interest. Whilst the designation as a national monument might already boost visiting and spending, national parks tend to generate even more revenue. Following the status elevation, visitor numbers at Gateway Arch increased from 1.40 million in 2017 to 2.02 million in 2018. Second, political prestige. Gateway Arch was not only the first national park proclaimed during Trump’s presidency but also remains the only park in the state of Missouri. Third, political tactics. Some commentators believe that Senate, where the act was introduced, has been tricked into voting for Gateway Arch’s promotion to a national park. Senator Roy Blunt of Missouri, introducing the bill, announced that it “rename[d] and grant[ed] the Gateway Arch and surrounding area its proper recognition as part of the National Park System”. This statement can indeed be considered misleading: Not only does it suggest that the primary issue was a mere “name change”. (The same has been claimed for the Indiana Dunes, which were upgraded from national lakeshore to national park in 2019.) But also, and most importantly, Senator Blunt’s announcement misrepresents the status of Gateway Arch before its redesignation: The site already formed full part of the National Park System because it has always been managed by the NPS. Hence, it even appears questionable whether Trump was fully aware of the act he was signing, or whether rebranding Gateway Arch was a purely local maneuver by Missouri’s Senator.

Truly protecting protected areas

One explanation, however, we can refute with certainty: That Trump or Blunt promoted the upgrade of Gateway Arch’s status because they were fond of environmental protection. As outlined, Gateway Arch does not entail important natural resources. Also, as just explained, the elevation from national memorial to national park does not per se significantly increase the level of protection of those resources. And most importantly, Trump’s general, much-criticized policy on the National Park System consisted in significantly reducing the number and size of protected areas, especially of national monuments. In 2017, Trump directed the Interior Department to review every larger monument designated since 1996 as well as other monuments deemed worth reconsideration (Executive Order 13792). Following this review, Trump ordered, inter alia, to shrink the abovementioned Grand Staircase–Escalante’s size by nearly 50% (Proclamation of December 4, 2017). Various interest groups filed suit to block this reduction, as the President’s authority under the Antiquities Act to revoke or reduce national monuments is hotly debated in legal academia (pro and contra) and practice (pro and contra). However, for the time being, those cases have become obsolete because now-President Joe Biden restored the original boundaries of the national parks concerned through proclamations. (In addition, on Veterans Day 2022, Biden announced to provide military veterans and Gold Star Families with free lifetime passes to more than 2,000 federal recreation sites, including national parks.)

Until, if ever, the Supreme Court decides on those or similar issues of dismantling and rolling back environmental protection, the removal and reduction of NPS units—just as their creation, expansion, and elevation—will remain a political decision. It behooves us administrative, constitutional, and environmental lawyers to defend these protected sites, regardless of whether they are designated as national parks, monuments, or memorials.