Future Land and Water Recreation Resources and the Fund that Supports Them

Susanne C. Howard

[I]n the last third of the 20th century, we can look forward to a near future when an increased leisure will be available to a large percentage of people and that in such a life, recreation can perform a purposeful role…. Opportunities lost now — particularly in areas dealing with our natural resources — mean opportunities lost forever.¹

Former Secretary of the Interior Walter Hickel included the above statement in the 1970 draft of the first nationwide outdoor recreation plan. The "Hickel Plan," entitled "A Recreation Imperative," took seven years to complete at a cost of $7 million.² It contained a comprehensive study of recreation needs and suggested a number of policies for meeting them. It gave highest priority to providing recreational opportunities in "the Nation's major urban areas — where most of the people spend most of their time" but also noted the importance of looking beyond the fringes of cities and preserving unique wilderness and other natural resources.³ In addition, it stressed that massive funding was necessary to save these natural resources for recreation.

The Hickel plan was not approved and not even made public until 1974. In its place, the Nixon administration in 1973 released a revised version of the plan entitled "A Legacy for America."⁴ This document was recently described in a congressional report as so lacking in data as to be "virtually useless as a guide for Congressional action."⁵

In the absence of a viable overall plan, enhancement of outdoor recreation has progressed on an ad hoc basis chiefly through the Land and Water Conservation Fund (the Fund)⁶ which allocates money to state and federal agencies for acquisition and development of outdoor resources. A new national outdoor recreation plan, however, is due from the Bureau of Outdoor Recreation (BOR) in 1978.⁷

It is the intent of this note to clarify the issues which must be addressed by the revised plan by looking at the Act which created the Fund, the Fund's performance, and the changes that amendments enacted in 1976 have worked upon it.

Background

The Land and Water Conservation Act of 1965⁸ was a response to recommendations from the Outdoor Recreation Resources Review Commission,⁹ the increasing recreation needs of an expanding population, especially those in or near urban centers,¹⁰ and the lack of money available for public acquisitions.¹¹ The Act provides that certain revenues would be placed in a separate fund¹² for disbursement to state and federal agencies for the purpose of "preserving, developing and assuring accessibility … of outdoor recreation resources."¹³

Initially, the Fund was limited to the fees collected for the use of federal recreation areas, the proceeds from the sale of surplus federal property, and the revenues from the federal tax on motorboat fuel.¹⁴ By 1968, however, it [7 ELR 50035] was clear that the original sources were insufficient in view of rapidly escalating land costs.¹⁵ Congress then authorized the appropriation from uncommitted Treasury funds of such amounts as were necessary to bring the Fund to $200 million and made the receipts from lease sales under the Outer Continental Shelf Lands Act (OCS)¹⁶ available to the Fund.¹⁷ In 1970, the Fund was raised to $300 million.¹⁸ The monies earmarked for the Fund are available only upon appropriations by Congress and must be authorized within three fiscal years.¹⁹

The Original Distribution Formula

In the absence of special direction to the contrary, 60 percent of the Fund was to be made available to the states²⁰ on a one-for-one matching basis for statewide recreation land use planning and state and local acquisition and development of recreational land and water resources.²¹ Upon approval of a "comprehensive outdoor recreation plan"²² by BOR, a state receives its allocation from the Fund based on a statutory formula. Of the 60 percent of the Fund made available to the states, two-fifths is divided among all states equally, and the remaining three-fifths is allocated to the states on the basis of need as determined by the Secretary of the Interior.²³ Before the formula is applied, however, three to five percent of the overall state portion of the Fund is traditionally set aside in a Contingency Reserve for experimental projects and emergencies, and is assigned "by the [7 ELR 50036] Secretary on a project-by-project determination of need."²⁴ States have employed the Fund for a wide range of projects including the acquisition or development of natural areas²⁵ for nature study, wildlife preservation, camping, bicycling, boating, hunting, and snowmobiling, and projects for non-natural recreation areas such as tennis courts, playgrounds, outdoor plays, skating rinks, and pistol and archery ranges.²⁶

The remaining 40 percent of the Fund was made available to the National Park Service, the Fish and Wildlife Service, the Bureau of Land Management, and the Forest Service for acquisition of federal recreation property and for certain water development projects.²⁷ The original Act contemplated federal use of the Fund for additions to existing parks, recreation areas, and forests through the purchase of privately-owned land within or adjacent to established areas.²⁸ Also authorized was the acquisition of areas necessary for the preservation of "threatened species," and those areas which are "incidental to fish and wildlife-oriented recreational development."²⁹ In 1973, however, Congress broadened the Secretary's authority to acquire any real property found to be "necessary for the purpose of conserving, protecting, restoring or propagating any endangered or threatened species."³⁰ The 1973 amendment also permits the use of the Fund for habitat acquisitions even if the authority for such purposes is found in other legislation.³¹

To date, there has been no significant litigation regarding the Fund. As of September 1976, over $2 billion had been authorized since the inception of the Fund in 1965.³² The accomplishments to the Fund in that period include the purchase of 1.5 million acres by the federal government at a cost of $800 million and the acquisition and development of 1.4 million acres by the states at a cost of $1.2 billion.³³

The 1976 Amendments

On September 28, 1976, President Ford signed into law amendments to the Fund which (a) adjust the Fund's present income level and triple it to $900 million by 1989; (b) eliminate congressional and presidential discretion to adjust the federal share of the Fund below 40 percent; (c) change the state distribution formula to favor more populous states; (d) permit limited state use of the Fund for indoor swimming pools and skating rinks; (e) clarify the authority of the Fish and Wildlife Service to acquire wildlife refuges; (f) broaden the acquisition authority of the Forest Service; (g) increase public participation in the preparation of state outdoor recreation plans; (h) step up evaluation of the Fund's use through new reporting requirements for the states and the Secretary of the Interior; and (i) ensure access to federally funded recreation areas to all visitors, regardless of residence.³⁴

Tripling the Funding Level

For fiscal year 1977, $397 million has been appropriated.³⁵ Beginning in 1978, however, the amount of money in the Fund and thus available for appropriation will increase first to $600 million, then in 1979 to $750 million, and by 1980 to at least $900 million.³⁶ These sums are in addition to the revenues initially put into the Fund and supplemented by the OCS receipts (to the extent that the uncommitted resources of Treasury are insufficient to reach the stated level).³⁷ In addition, some $62 million, which otherwise would be repaid to the Treasury, will remain in the Fund as a result of the repeal of the Act's advance appropriations and repayment provisions.³⁸

The Congress will soon act on a supplemental appropriations bill for $141 million which represents a backlog in the Fund of monies not appropriated in prior years.³⁹ President Ford had proposed that the unappropriated [7 ELR 50037] balance in the Fund be allocated entirely to federal agencies for the acquisition of new parks, wildlife refuges, recreation areas, and historic sites as part of his Bicentennial Land Heritage Program.⁴⁰

An argument in support of the Ford proposal is that the federal agencies were denied their share when the backlog accrued in 1974.⁴¹ The Carter Administration, however, may well conclude that it was the federal agencies failure to obligate its funds that brought on the 1974 cut and that the present excess in the Fund should be distributed according to the statutory formula, 60 percent to the states and 40 percent to the federal agencies. The new administration might also take the opportunity to give the kind of leadership suggested by conservation groups,⁴² that is, encourage the states to pursue acquisitions rather than development by making the $141 million available for state acquisitions only. President Carter might further stipulate that the supplemental monies be used for the purchase of urban parks and open spaces.

The reasons for the recent increase in the funding level are not substantially different from those that motivated Congress in 1968 and 1970. Rapidly rising land costs, inflation, and the enthusiastic response of states all indicate the need for increased support.⁴³ Federal demands upon the Fund have also increased. The national park system, for which "the fund has become the sole Federal funding source for land purchases within the system," is authorized to acquire over $500 million worth of land.⁴⁴ The Fish and Wildlife Service, which, with certain exceptions,⁴⁵ is also dependent on the Fund for acquisition money, needs at least $453.7 million.⁴⁶ The cost of lands slated for addition to the Forest Service is estimated to be in excess of $1 billion.⁴⁷

Likewise, a recent survey of the states showed that $600 million worth of projects could be activated if matching funds were available.⁴⁸ Congress also took note of the "increasing rate of allocation and development of lands for other purposes" and the availability of more substantial revenues from the sale of offshore oil leases as well as its desire to recycle those receipts.⁴⁹ Thus, the increase itself appears reasonable, if not overdue.⁵⁰ The real issues are who will receivethe funds and how they will be used.

Adjusting the Federal-State Ratio

The first decision involves dividing the Fund between federal agencies and the states. The original Act established the 60-40 state-federal distribution formula but allowed Congress to change that ratio in its appropriations bills and authorized the President to adjust the percentages 15 points either way to meet the "current relative needs" of the two groups of recepients.⁵¹ The amendment eliminates presidential discretion and modifies Congress's ability to adjust the appropriation. The new section provides simply that "[n]ot less than 40 per centum of such appropriations shall be available for Federal purposes."⁵²

The conferees, rejecting a mandatory 60-40 division proposed by the House because of its "inflexibility," indicated that they were chiefly concerned with avoiding future backlogs of unappropriated funds like the one which occurred in 1974 and which affected most heavily the federal portion of the Fund.⁵³ They reasoned that if the states are unable to match their full share then the balance should be available for federal acquisitions.⁵⁴

This guarantee to federal agencies appears necessary in light of past experience to assure that the money intended for federal acquisitions is available and that its expenditure can be anticipated. What is not clear is why such assurances would not be equally valuable to the states. The creators of the Fund, and later proponents for increased financing, argued that the Fund would encourage states to take an active role in outdoor recreation planning by enabling them to gauge in advance a reasonable share of the Fund.⁵⁵ State planning efforts [7 ELR 50038] would be seriously undercut if Congress exercises the discretion granted by the new amendment to decrease the state share of the Fund below 60 percent in any given year.

The Conferees' evaluation that the states may be unable to match Fund dollars is also questionable. As noted above, the House committee which studied the amendments found that $600 million worth of projects could be activated by the states in the next year if federal assistance were available.⁵⁶ This finding comports with information supplied by BOR's Division of State Programs that most states have proposed projects far in excess of their portion of the Fund.

Even if a state is not able to match its apportionment immediately, it has three fiscal years to obligate its funds from the time of notification of its share.⁵⁷ After the three-year period, unobligated dollars revert to the Secretary for reapportionment among the states on the basis of need.⁵⁸ In a like manner, unexpended balances of obligated funds at the end of the period are placed in the Contingency Reserve.⁵⁹ Thus, it appears that the desired effect of rapidly channeling unused state funds to the federal agencies will not be realized under current laws.

Tinkering with the State Formula

After the state share of the Fund is appropriated, the new state distribution formula is applied. In essence the amendment provides that after the overall state share of the Fund reaches $225 million, the percentage which is distributed equally among the states will decrease and the percentage available for distribution by the Secretary on the basis of need will increase.⁶⁰ Implicit both in the original⁶¹ and the new state formula is the concept that since need is determined by population⁶² and large populations are found in urban centers, the formula will foster growth of recreation for people in or near cities.⁶³ Although the more populous states will receive more money under the new formula, there is no statutory or administrative guarantee that a state with a large population will use its greater share for urban recreation projects. Each state decides how the money can be best used in light of present fiscal, and presumably political, realities.⁶⁴ BOR representatives, however, indicate that an increasing number of states have successfully spent their funds on urban projects.

Practically, the formula change will mean an increased percentage of the Fund for 14 states and a decreased percentage for 36 states.⁶⁵ To date, there has been no litigation to compel payment of funds, and given the statute's statement of criteria for determining need, it is doubtful that a state would be disadvantaged by the increased amount of the fund left to the agencies' discretion by the new formula.⁶⁶

No Checks on the Secretary's Fund

Perhaps most significant is the new formula's effect on the Contingency Reserve and Congress's failure to limit the use of the Reserve as a political tool. Although the [7 ELR 50039] Secretary of the Interior has no specific statutory authority to do so, he "customarily" retains three to five percent of the state's share for "unseen emergency needs of the states."⁶⁷ Money that has reverted to the Fund from expired apportionments are also placed in the Reserve.⁶⁸ These funds are disbursed at the Secretary's discretion on a project-by-project basis.⁶⁹ Generally, priority is given projects which "save cirtical, unique, or unusual recreation lands from less to competing or incompatible use."⁷⁰ In the past, the Reserve has been used to fund trails in urban areas for joggers and to reclaim lands destroyed by surface mining or hurricanes.⁷¹ In 1976, $8 million (3 percent) of the $176 million state share was set aside in the Contingency Fund.⁷² There were approximately $30 million worth of emergency project applications in that year. Since most of the projects satisfy the BOR criteria, decisions on the basis of political considerations become inevitable. Former Secretary Kleppe proved the usefulness of the Reserve for such purposes when shortly before the Georgia presidential primary he announced a $1.1 million emergency grant to Georgia for the purpose of expanding the Chattahoochee River State Park.⁷³

Congress is not unaware that the increased funding levels will cause the Contingency Reserve to expand. The House sought to extend statutory approval to a five percent Contingency Reserve and also to encourage the Secretary to establish guidelines so that as the Fund grew the Reserve would be maintained "at a level comparable to the average amount reserved during the years prior to fiscal year 1977."⁷⁴ The conferees, however, eliminated any reference to the emergency coffer.⁷⁵ In the absence of further amendments the Reserve will continue to operate without statutory authorization and may triple with the Fund by 1989.⁷⁶

Acquisition Plan Eliminated

Another amendment which would have affected the states' share was one to change the federal-state matching formula for acquisitions to 70-30 from the present 50-50.⁷⁷ The Senate provision,⁷⁸ which was rejected in conference, was supported by conservation groups who hoped to encourage state acquisition of natural resource lands by making the Fund competitive with other development-oriented federal grant programs.⁷⁹ The failure to encourage acquisitions appears to reflect congressional indecision on the question of whether acquisition or development should be given priority by the states. Since 1965 some $200 million more has been expended by the states for development than for acquisition, and environmentalists fear the trend may continue to the detriment of more natural recreation resources.⁸⁰ Increase use of the Fund for non-natural recreation areas was also an issue in the debate regarding the amendment which permits use of the Fund to shelter swimming pools and skating rinks.

Indoor "Outdoor Recreation"

If the Secretary determines that a swimming pool or skating rink is in an area where "the severity of climatic conditions and the increased public use thereby made possible justifies the construction of … [a shelter]," then a state may now use up to ten percent of its annual federal allocation for such facilities.⁸¹ Thus, the Fund will, for the first time, be used for indoor rather than outdoor recreation facilities. This departure was not made without considerable debate,⁸² and the underlying conflicts have yet to be resolved. As in the controversy over the supplemental appropriations bill,⁸³ the broad issue is whether priority should be given to acquisition of [7 ELR 50040] natural areas which tend to be outside urban areas or to development of existing recreation resources found chiefly within urban centers.

There are several variations on this basic issue. For example, some would favor acquisition over development, or give urban needs priority over non-urban concerns in all instances, while others would oppose any use of an outdoor recreation fund for indoor facilities. Interest groups reflecting these concerns are making themselves known on both the federal and state levels.⁸⁴ Federal urban parks, for example, such as Golden Gate National Recreation Area, New York's Gateway National Recreation Area, and Cuyahoga Valley National Recreation Area in Ohio, until recently received widespread support of conservation groups.⁸⁵ Now, however, organizations such as the National Parks and Conservation Association suggest that only the state share of the Fund should be spent for urban areas, while the federal share be saved for purchase of the great scenic parks.⁸⁶

To follow the Associations's plan would create a conflict with those who feel the state share of the Fund would be best expended for development, rather than acquisition of recreation areas. At the state level these differences are often exhibited by the various agencies which compete for the state share of the Fund. In the absence of coordination through an effective department of environmental planning, fish and game departments, recreation departments, and urban planners may influence state planning and haphazardly carve up the state allotment.

Congress has given little direction to the various interests which vie for the Fund. A Sierra Club representative recently suggested that all interests might be better served by creating two funds — one for conservation and the other for recreation. Indeed, the unifying principle of the single Fund may be illusory in the wake of the 1976 amendments. Can the overriding purpose of the Fund be outdoor recreation after the enactment of the shelter provision? Can the goal be just recreation after the 1973 expansion of the Fund for endangered species habitat? In its clarification of the authority of the Fish and Wildlife Service, Congress appears to be opting for "recreation" as the primary object of the Fund.

Wildlife Refuges as Recreation

The amendments allow the Fish and Wildlife Service to use the Fund for the acquisition of any property necessary for the protection of "natural resources" under the Recreation Act, of national wildlife refuge areas under the Fish and Wildlife Act of 1956, and of "any areas authorized for the National Wildlife Refuge System, by specific Acts."⁸⁷ Prior to the amendment, the Fish and Wildlife Service had to show that the wildlife areas in question had "incidental recreation" value (usually a recreational facilitity),⁸⁸ or obtain special statutory authorization to use the Fund for refuges.⁸⁹ Although the Fish and Wildlife Service was often successful in convincing Congress that nature walks and other means of interpreting the environment at wildlife refuges were "recreational development," the new amendment will mean that such acquisitions can be made more quickly and with greater legal certainty. The Senate committee eliminated the recreational development requirement because "[r]ecreation is a product of each unit of the National Wildlife Refuge System …; [it] is one of the many values of wetlands and natural areas."⁹⁰ Thus, Congress brought the acquisition of wildlife refuges within broad principals of recreation.

Such explicit references to recreation stand in contrast to the extension of funding to habitat acquisitions for endangered species in 1973.⁹¹ In the latter instance, Congress did not argue that wildlife preservation was inherently recreational, but rather sought to preserve wildlife as an integral part of the "balance of nature."⁹² Congress could have rationalized the present change on the same grounds, that is, that wildlife areas, wetlands, and natural areas are necessary to the ecosystem. It is perhaps a recognition of the need for a unified object for the Fund, however broad, that led Congress to articulate the inherently recreational approach.

A Second Look at Shelters

If Congress is sincerely interested in assuring the integrity of the Fund, not only for recreation, but for outdoor recreation in particular, it might well reconsider its extension of support to indoor pools and rinks. Although the exception for indoor facilities is narrow, it opens the Fund for further amendment to support nonoutdoor activities. In addition, sheltered facilities pose distinct administrative problems which might be better [7 ELR 50041] dealt with by the Department of Housing and Urban Development (HUD). For example, HUD's Community Planning and Development Block Grant Program⁹³ also provides federal funds⁹⁴ for acquisition and development of recreation areas and may be in a better position to coordinate sheltered facilities with other indoor community projects.⁹⁵ Similar intragovernment funding and management conflicts may also be present at the state level. Given the availability of other funds from a more appropriate agency, the inclusion of the sheltered facilities within the purview of the Fund is less than sensible.

Steps Toward Establishing Priorities

Congress has made several efforts to gather information on the merits of the acquisition and development of urban and non-urban recreational resources and to assess the federal role in expanding those opportunities. As noted above, there exists no approved truly comprehensive report or set of recommendations on outdoor recreation. Presumably, the revised Outdoor Recreation Plan due in 1978 will contain site-specific proposals.

One of the recent amendments is aimed at accelerating the reporting process with respect to urban areas. The Secretary of the Interior must prepare and submit a "comprehensive review and report" on urban recreation by September 1977.⁹⁶ The explicit language of the statute underscores Congress's stated desire for specific information on the "options which can be directly related to resources," from "full Federal acquisition and management as a part of the National Park System to total financial and operating responsibility at the local level or in the private sector."⁹⁷

Requiring an urban recreation study at this time is apparently the result of difficulties experienced in the past year in obtaining voluntarily urban recreation data from the Department of the Interior.⁹⁸ The lack of information is also keyed to the fact that the urban study prepared in 1968-70 as part of the "Hickel Plan" was part of the material omitted when in 1973 the Hickel "Recreation Imperative" became "A Legacy for America."⁹⁹ The urban material from the 1973 plan is now published. A directive from the President to the Department of the Interior that the former study should serve as a basis for the 1977 urban report would result in a substantial saving and at the same time provide a meaningful model of the kind of report that is necessary if Congress is to have the information it needs to legislate.

Congress has also stepped up the reporting requirements for states and provided them with 50-50 matching funds for the preparation of annual evaluations of their grant programs.¹⁰⁰ It remains to be seen whether this new evaluation system will be more than a bureaucratic exercise and significantly contribute to the information available to Congress and thereby encourage the setting of national priorities for use of the Fund.

The addition of public participation as quid pro quo for approval of state plans adds still another approach to decisions regarding use of the Fund. The new amendment requires the governor of a state to certify that the public has been given ample opportunity for participation in plan development and revision.¹⁰¹ The Secretary of the Interior is directed "to develop in consultation with others, criteria for public participation."¹⁰² The import of this provision, if it is implemented effectively, is that conflicting interest groups will be brought together at the planning stage, thus minimizing disagreement when funds are awarded.

The public participation provision cannot be a substitute for establishing a national framework for Fund expenditures. In order to work effectively with a federal bureaucracy, states must be given some guidance regarding the national need for acquisition or development, in urban or non-urban areas, and a clearer statement of federal roles.

[7 ELR 50042]

Conclusion

Despite congressional attempts to streamline the use of the Fund for recreational purposes, two distinct categories or use emerge: expenditures for the preservation of natural resources and for man-made recreation facilities. In 1962, the Outdoor Recreation Review Commission suggested that the federal government be responsible for preserving natural resources of national significance while the states concentrate on areas of local or regional importance.¹⁰³ Applying these concepts to the current urban-nonurban dichotomy would place the acquisition and development of urban recreation areas in the hands of the states. A national policy which fostered this division through the Land and Water Conservation Fund would eliminate local competition over the use of the Fund, while maintaining a national policy in favor of acquisition of natural resource and wildlife areas. Shared federal-state ownership and management of natural areas would be one way of assuring continued state interest in their preservation.

Several other parts of the Fund are also in need of improvement. The vulnerability of the states' share to downward adjustment is apparent. Exploitation of this condition may be averted, however, by careful monitoring of appropriations.The growth of the Contingency Reserve could be remedied by a detailed amendment which narrowed the amount of the Fund not immediately programmed; the political use of the Reserve is a policy problem, which may be minimized but probably not stopped altogether.

Most evident is the need for a comprehensive national outdoor recreation policy to govern disbursement of the Fund. Resurrection of the "Hickel Plan" would certainly facilitate disbursement decisions at considerable savings to the public. Once current data are accumulated and a national policy set, it will be clearer whether a change in the matching formula or the bifurcation of the Fund is advisible. There is little question that regardless of the general policy immediately adopted, the shelter provision should be repealed to preserve the integrity of the Fund as the conserver of outdoor recreation resources.

1. Department of the Interior, Bureau of Outdoor Recreation, "The Recreation Imperative" — The Nationwide Outdoor Recreation Plan (July 1970), printed by the Senate Committee on Interior and Insular Affairs, 93rd Cong., 2d Sess. 3 (1974). The report was prepared pursuant to 16 U.S.C. § 460l-1(c) (1970).

2. Id. at (seven) (Memorandum of the Chairman, Senator Jackson).

3. Id. at 7.

4. See note 2 supra.

5. H.R. Rep. No. 94-1468, 94th Cong., 2d Sess. 18 (1976).

6. 16 U.S.C. § 460l-4 to 460l-11 (Supp. V, 1975), ELR 41417.

7. 16 U.S.C. § 460l-1(c) (1970). The statute states that the recreation plan shall be revised every five years.

8. See note 6 supra.

9. In 1958, Congress established the Outdoor Recreation Resources Review Commission (ORRRC) to evaluate current and future outdoor recreation needs and resources and to recommend policies and programs to ensure that those needs would be met. Act of June 28, 1958, Pub. L. No. 85-470, 72 Stat. 238. The scope of the Commission's work was statutorily limited to land, water, and open space areas, and specifically excluded "recreation facilities programs, and opportunities usually associated with urban development such as playgrounds, stadia, golf courses, city parks and zoos." 72 Stat. 238. In 1962 the Commission recommended (1) the establishment of a national outdoor recreation policy, (2) a management system which classifies recreation lands, (3) "expansion, modification and intensification of present programs," (4) creation of a Bureau of Outdoor Recreation, and (5) federal grants-in-aid program for the states. ORRRC, "Outdoor Recreation for America" — A Report to the President and Congress, GPO, January 1962, p. 5-10. Congress indicated that the creation of the Fund was in large measure a response to the Commission's proposal for a grant-in-aid program. S. Rep. No. 1364, 88th Cong., 2d Sess. 5 & 6 (1964).

10. S. Rep. No. 1364, supra note 9.

11. H.R. Rep. No. 1847, 88th Cong., 2d Sess. 5 (1964).

12. 16 U.S.C. § 460l-5 (1970). Precedents for specifically earmarked funds include the Pittman-Robertson Wildlife Restoration Act, 16 U.S.C. § 669 et seq. (Supp. V, 1975) (percentage excise tax on the sale of firearms, ammunition, bows, and arrows; money returned to states for wildlife restoration projects), Dingell-Johnson Fish Restoration Act, 16 U.S.C. § 777a-777k (1970) (ten percent excise tax on the sale of sport-fishing tackle; money returned to states for fish restoration and management) and the Pribilof Islands Fund, 72 Stat. 339 (receipts from the sale of sealskins and other wildlife products is made available for the administration of the islands). For a discussion of pros and cons of earmarking, see 114 Cong. Rec. 10304, 10305 (1968) (remarks of Senator Ellender).

13. 16 U.S.C. § 460l-4 (1970).

14. 16 U.S.C. § 460l-5 (1970). By 1968, the contribution of the recreation area user fees was recognized as negligible. S. Rep. No. 1071, 90th Cong., 2d Sess. 15 (1968). In 1972, collection of admission fees was limited to designated units of the National Park System ("Golden Eagle Passport Program"); other federal agencies administering recreation sites were authorized to charge fees for use of facilities and equipment. The monies so collected are "covered into a special account in the Treasury … to be administered in conjunction with, but separate from, the revenues of the Land and Water Conservation Fund …" and to be available for "any authorized outdoor recreation function of the agency by which the fees were collected." Act of July 11, 1972, Pub. L. No. 92-347, 86 Stat. 459, as amended, 16 U.S.C. §§ 460l-6, 460l-6a (Supp. V, 1975), see H.R. Rep. No. 92-742, 92d Cong., 1st Sess. (1972).

Surplus federal property, including military lands which have recreational value, may be designated, sold, or leased to a state or political subdivision under the Federal Surplus Lands for Parks and Recreation Act of 1970, 40 U.S.C. § 484 (1970). Prior to the creation of the Fund, revenues from the motor boat fuel tax were placed in the Highway Trust Fund, 23 U.S.C. § 120 (Supp. V, 1975).

15. Although appropriations from the Fund for 1966, 1967, and 1968 were $122,114,649; $95,006,590; and $113,131,359, respectively, the availability of these funds to state and federal agencies was reduced due to a deficiency of receipts. BOR, Administrative and Legislative Directives to [BOR] 29 (Jan. 1975). See S. Rep. No. 1071 supra note 14.

16. 43 U.S.C. § 1331 et seq. (1970), § 1333 (Supp. V, 1975).

17. Act of July 15, 1968, Pub. L. No. 90-400, 82 Stat. 354, as amended, 16 U.S.C. § 460l-5 (Supp. V, 1975). The use of OCS leasing revenues was viewed by its proponents as a furtherance of the Act's initial premise of recycling natural resource proceeds, yet others questioned whether the use of OCS funds should not be more directly related to their source and employed, for example, to enhance ocean resources. 114 Cong. Rec. 10509-10511, 10514-10517 (1968) (remarks of Senators Long and Inouye).

Other measures taken in 1968 to combat escalating land values were embodied in new sections of the Act which gave the Secretary advance contract authority, option acquisition authority, and the right to convey and exchange real property. 16 U.S.C. § 460l-10a (1970), § 460l-10b (Supp. V, 1975).

18. Act of October 22, 1970, Pub. L. No. 91-485, 84 Stat. 1084, as amended, 16 U.S.C. § 460l-5(c) (Supp. V, 1975). The rationales offered for the 1970 increase are as follows: (a) the 1968 guaranteed annual income "produced a stable program allowing a reasonable rate of progress" and thus should be continued; (b) state interest in and capacity to keep pace with the fund is high; (c) new interstate planning complexes are beyond any one state's financial capabilities; (d) increasing land values and backlog of lands slated for federal acquisition place the projected needs over the next five years (exclusive of new areas) at $165 million for the National Park Service and $320 million for the Bureau of Sport Fisheries and Wildlife and the Forest Service; (e) "[i]t is anticipated that the [Fund] will be the principal source of land acquisition monies" for new urban and rural recreation areas. H.R. Rep. No. 91-1224, 91st Cong., 2d Sess. 7, 8 (1970).

The 1970 Act also amended a section of the Federal Property and Administrative Services of 1949, 40 U.S.C. § 484 (Supp. V, 1975, to permit the transfer of federal lands which are suitable for recreation to state or local agencies.

19. 16 U.S.C. § 460l-6 (1970).The appropriations from the Fund in 1969 and 1970 did not reach the $200 million mark but rather were $111,500,000 and $131,100,000 respectively. In 1971, the statutory standard was met for the first time with an appropriation of $357,400,000. From 1971 through 1976, appropriations were at or above $300 million except for 1974 when only $76,223,000 was allocated. At present, some $140 million remains to be appropriated before the three-year limitation expires in fiscal year 1977. BOR, Administrative and Legislative Directives to [BOR] 29 (Jan. 1975).

Regarding the appropriation requirement, a Montana district court recently ruled that the Land and Water Conservation Act itself provides sufficient authority to condemn and acquire private lands when a general appropriations bill has been passed by Congress. The decision, which enabled the National Park Service to acquire holdings within Glacier National Park, culminates the only litigation to date involving the Act. United States v. .37 Acres of Land, 414 F. Supp. 470 (D. Mont. 1976).

20. 16 U.S.C. § 460l-7(a) (1970).

21. 16 U.S.C. § 460l-8(c) (1970).

22. 16 U.S.C. § 460l-8(d), (f), (g) (1970); Bureau of Outdoor Recreation Grants-In-Aid Manual (BOR Manual) §§ 630, 631, and 635 (rev. Aug. 15, 1975).

The states may opt for either a five-year plan or plans of a shorter duration. Federal financial assistance may be available for the preparation of the plans, and states are encouraged to consult with relevant state and federal agencies. After the plan is reviewed for consistency with other federal funding programs by a state clearinghouse, it is submitted to a BOR regional office for approval. In 1975, BOR summarized for Congress the standards for review set forth in § 631 of the BOR Manual as follows: "the comprehensiveness of the plan; the relationship of demand supply and deficiency; and the degree to which it provides for program implementation." Full environmental impact statements are generally not required. A state must, however, provide sufficient information to enable BOR to determine whether a full statement is required for compliance with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (Supp. V, 1975), ELR 41009. Each state sets its own goals, and the plans are not reviewed for their conformance with national priorities. To date, no state plans have been rejected although some states have temporarily lost funds while the plans are revised. Monitoring the implementation of the plan is left primarily to the states with some oversight by BOR. Hearings on H.R. 2763 Before Subcom. on Nat'l Parks and Recreation of the House Comm. on Interior and Insular Affairs, 94th Cong., 1st Sess., Ser. 94-31, 84 (1975). The statewide comprehensive plans are also used as a standard against which to measure other federal projects which impact on outdoor recreation opportunities, such as the Federal Water Project Recreation Act, 16 U.S.C. §§ 460l-12 to 460l-21 (1970).

23. 16 U.S.C. § 460l-8(b)(1970).

24. BOR Manual § 620.3 See text accompanying note 67 infra.

25. Natural areas include flood plains, wetlands, and wildlife areas. BOR Manual § 640.2.1.

26. BOR Manual § 640 sets forth criteria for acquisition and development projects including projects which will and will not be assisted. BOR personnel confirmed that the manual reflected the kinds of projects which have been instituted by the states.

27. 16 U.S.C. § 460l-7(a) (1970).

28. 16 U.S.C. § 460l-9(a)(1) (1970).

29. Id.

30. S. Rep. No. 93-307, 93rd Cong., 1st Sess. 2 (1973); 16 U.S.C. 460l-9(a) (Supp. V, 1975) (originally enacted as the Endangered Species Act § 5, Pub. L. No. 93-205, 87 Stat. 889 (1973).

31. 16 U.S.C. § 460l-9(a) (Supp. V, 1975). The Secretary may, for example, use the Fish and Wildlife Act of 1956, 16 U.S.C. § 742(a) et seq. (1970), ELR 41801, or, where appropriate, the Migratory Bird Conservation Act, 16 U.S.C. § 715 et seq. (Supp. V, 1975).

32. 12 Weekly Compilation of Presidential Documents, No. 40 (Sept. 28, 1976) (presidential statement).

33. Id. "Few programs have been as well received or as successful as the Land and Water Conservation Fund." 122 Cong. Rec. 3920 (daily ed. May 5, 1976) (remarks of Representative Johnson).

34. Pub. L. No. 94-422, 90 Stat. 1313, amending, 16 U.S.C. §§ 460l-4 to 460l-11 (Supp. V 1975).

35. For fiscal year 1977, the new amendment does not change the $300 million income of the Fund which was established in 1970. See note 18 supra. The 1977 appropriations act states that a total of $397,056,000 shall be distributed so that $6,686,000 goes to BOR for administrative expenses, $175,516,000 is available to the states, $144,603,000 is available to the National Park Service, $52,506,000 is available to the Forest Service, $15,745,000 is available to the Fish and Wildlife Service and $2,000,000 is available to the Bureau of Land Management. Act of July 31, 1976, Pub. L. No. 94-373, 90 Stat. 1045.

36. Pub. L. No. 94-422, § 2(c), amending, 16 U.S.C. § 460l-5 (Supp. V, 1975).

37. Id.

38. Pub. L. No. 94-422, § 5, amending, 16 U.S.C. § 460l-7 (1970).

39. The current backlog in unappropriated funds is due primarily to the 1974 appropriation which authorized only $76,223,000 out of a possible $300 million. The apparent rationale for the low authorization was that $146 million remained unobligated from previous years and that those unobligated moines should be used for the federal land acquisition program while the entire 1974 appropriation should go to the states. H.R. Rep. No. 93-322, 93rd Cong., 1st Sess. (1973). Whether forcing federal and state agencies to spend appropriated funds immediately upon receipt results in more efficient utilization of the Fund or further exacerbates delays in acquisition remains an open question. Each year since 1974, however. Congress has appropriated more than $300 million. Historical data sheet provided by BOR. See Appendix to the [U.S.] Budget for Fiscal Year 1978, p. 438.

40. Ford announced his Bicentennial Program on August 29, 1976, just two months before the election. His plan also included an immediate appropriation of $700 million for development of new and existing parks and wildlife refuges, $459 million for improving and increasing staff at current parks and refuges, and $200 million to the Community Development Bloc Grant Programs at HUD to be distributed to recipients who will be "urged to give high priority to upgrading existing parks, particularly in urban areas." (White House Fact Sheet, Aug. 28, 1976).

41. See note 39 supra.

42. See text accompanying note 79 infra.

43. H.R. Rep. No. 94-1021, 94th Cong., 2d Sess. 3, 4 (1976); S. Rep. No. 94-367, 94th Cong., 1st Sess. 5 (1975). See note 18 supra.

44. H.R. Rep. No. 94-1021, supra note 43, at 4.

45. Where appropriate, the Migratory Bird Conservation Fund Act, 16 U.S.C. §§ 701-718 (Supp. V, 1975) and the Wetlands Loan Act, 16 U.S.C. §§ 715k-3 to 715k-5 (1907) have been utilized.

46. S. Rep. No. 94-367, supra note 43, at 10.

47. H.R. Rep. No. 94-1021, supra note 43, at 4.

48. Id.

49. 122 Cong. Rec. 3933 (daily ed. May 5, 1976) (remarks of Representative Taylor).

On the contrary, Representative Skubitz, in a separate View to the House Report, questioned whether OCS receipts would in fact meet Congress' expectations. H.R. Rep. No. 94-1021, supra note 43, at 37. Interior Secretary Andrus' cancellation of a proposed lease sale in Lower Cook Inlet in Alaska, 42 Fed. Reg. 8723 (Feb. 11, 1977), and Judge Weinstein's recent ruling that a $1.13 billion lease sale in the Atlantic is void, Suffolk County v. Secretary of the Interior, 7 ELR 20230 (E.D.N.Y. Feb. 17, 1977), may prove Representative Skubitz correct.

50. 122 Cong. Rec., supra note 49, at 3933.

51. 16 U.S.C. § 460l-7(a) (1970).

52. Pub. L. No. 94-422, § 5, amending, 16 U.S.C. § 460l-7 (1970).

53. H.R. Rep. No. 94-1468, 94th Cong., 2d Sess. 16 (1976); H. Rep. No. 94-1021, supra note 43, at 7.

54. H.R. Rep. No. 94-1468, supra note 53, at 16.

55. S. Rep. No. 1364, supra note 9, at 10, noted that the Fund "will furnish reasonable assurance both to the State and Federal agencies, even though the money is not available for expenditure until appropriations are made …, that their approved programs will not depend on a stop-and-go system." See also 110 Cong. Rec. 16520-16524 (1964) (remarks of Representatives Aspinall and Saylor). Representative Saylor stated that one of the principal objects of the Act is to encourage the states to assume a leading role in outdoor recreation.

56. H.R. Rep. No. 94-1021, supra note 43, at 4.

57. 16 U.S.C. § 460l-8(b) (1970).

58. Id. See also BOR Manual §§ 620.17, 620.18.

59. BOR Manual § 620.18. Project under-runs within the three-year period may be reobligated by the states. If a project is cancelled by the state within the three-year period and prior to the commencement of any work, the appropriated dollars revert to BOR for reapportionment. Id.

60. Pub. L. No. 94-422, § 6(b), amending, 16 U.S.C. § 460l-8(b) (1970). The relevant parts of the new section state that:

(1) Forty per centum of the first $225,000,000; thirty per centum of the next $275,000,000; and twenty per centum of all additional appropriations shall be apportioned equally among the several States; and

(2) At any time, the remaining appropriation shall be apportioned on the basis of need to individual States by the Secretary in such amounts as in his judgment will best accomplish the purposes of this Act. The determination of need shall include among other things a consideration of the proportion which the population of each State bears to the total population of the United States and of the use of outdoor recreation resources of individual States by persons from outside the State as well as a consideration of the Federal resources and programs in the particular States.

(3) The total allocation to an individual State under paragraphs (1) and (2) of this subsection shall not exceed 10 per centum of the total amount allocated to the several States in any one year.

(4) … Any amount of any apportionment that has not been paid or obligated by the Secretary during the fiscal year in which such notification is given and for two fiscal years thereafter shall be reapportioned by the Secretary in accordance with paragraph (2) of this subsection, without regard to the 10 per centum limitation to an individual State specified in this subsection.

61. See text accompanying note 23 supra.

62. S. Rep. No. 94-367, supra note 43, at 6. H.R. Rep. No. 94-1468, supra note 53, at 16. The 1965 Senate Report notes that the "greatest emphasis should be given to those areas with a large concentration of people." S. Rep. No. 1364 at 7. See note 9 supra.

63. BOR personnel indicate that the current method of compliance with 16 U.S.C. § 460l-8(b)(2) is to distribute 30 percent based on general population figures, 25 percent based on figures reflecting urban concentration, and 5 percent based on emergency considerations.

64. Hearings on H.R. 2763, supra note 22, at 85.

65. After the overall state share of the Fund reaches $225 million, the following states will gain under the new formula: California, Florida, Illinois, Indiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania, Texas, and Virginia, and the District of Columbia, Puerto Rico, Virgin Islands, Guam, and American Samoa, H.R. Rep. No. 94-1021, supra note 43, at 40, 41.

66. Compare Udall v. Wisconsin, Colorado and Minnesota, 306 F.2d 790 (D.C. Cir.), cert. denied, 371 U.S. 969 (1962), where the court held that the Secretary's duty to apportion Pittman-Robertson funds to the States according to a statutory formula is non-discretionary and a writ of mandamus may issue. The court said, however, thatt the "later stages of the administrative process … for instance … approval or disapproval of a conservation project submitted by a state … [may involve] an administrative judgment which is not judicially reviewable by mandamus." 306 F.2d at 793 n. 15.

67. H.R. Rep. No. 94-1021, supra note 43, at 8, 43.

68. BOR Manual § 620.3.1.

69. Id.

70. BOR Manual § 620.3.2. Additional criteria include those projects which (a) have high priority in the State Plan; (b) avoid the significant loss of opportunity; (c) involve outstanding recreational opportunities or present a unique resource; (d) are "easily accessible to large numbers of people in crowded urban areas;" or, (e) embody a new idea.

71. Information supplied by BOR, Division of State Programs.

72. H.R. Rep. No. 94-1021, supra note 43 at 43.

73. Washington Post, May 2, 1976, at A10. Secretary Kleppe confirmed to the press that "everything I do is political." Id.

74. H.R. Rep. No. 94-1021, supra note 43, at 8. The House report indicates that "[w]hile a flexible reserve of moderate size can be useful in responding to emergency needs, the Committee believes that most matching funds should be regularly programmed." Id.

75. The conferees may have been influenced by Representative Roncalio who applauded Secretary Kleppe's overtly political use of the Fund:

I compliment the Secretary of the Interior for being boldly candid. I am sorry the primary results from Georgia failed to reflect this grant. I hope the park money … in the State of Georgia will be a classic example of the good purposes to be served through the use of such discretionary funds. I might add that when Harold Ickes put thousands of unemployed to work to build Rock Creek Park, that a good deal of the reason was so as to help [F.D.R.] stay in office. This does not detract from the altogether excellence of the park program.

122 Cong. Rec. 3925 (daily ed. May 5, 1976).

76. H.R. Rep. No. 94-1021, supra note 43.

77. See text accompanying note 21 supra.

78. S. Rep. No. 94-367, supra note 43, at 15.

79. Hearings on S.327 Before the Subcomm. on Nat'l Parks and Recreation of the Senate Comm. on Interior and Insular Affairs, 94th Cong., 1st Sess. (Feb. 11, 1975) (statement by Sierra Club).

80. Funds obligated for development for the life of the program until December 31, 1976, totaled $775,865,135, while monies for acquisition totaled $574,879,667 and moines for planning totaled $15,691,993. Information supplied by BOR, Division of State Programs. See note 79 supra.

81. Pub. L. No. 94-422, § 6(e)(2), amending, 16 U.S.C. § 460l-8(e) (Supp. V, 1975). "The conferees understand severity of climate to mean extreme cold, heavy snow, or high winds with respect to ice skating rinks; warm weather is not contemplated as justification. For swimming pools the conferees again are concerned with the onset of cold weather which unduly restricts the available days …" of use. H.R. Rep. No. 94-1468, supra note 53, at 17.

82. 122 Cong. Rec. 3944-3955 (daily ed. Amy 5, 1976) (remarks of Representatives Sebelius, Maguire, Seiberling, Ottinger, Pettis, and others), H.R. Rep. No. 94-1021, supra note 43, at 42, 45.

83. See text accompanying note 39 supra.

84. See BOR, Protecting Nature's Estate — Techniques for Saving Land (Dec. 1975).

85. Council on Environmental Quality, Environmental Quality — The Sixth Annual Report 247 (Dec. 1975).

86. Id. See also Smith, Problems in the Parks, 49 National Parks & Conservation J. 2 (1975).

87. Pub. L. No. 94-422, § 7(a)(1), amending, 16 U.S.C. § 460l-9(a)(1) (Supp. V, 1975). The amendment enumerates the acquisitions which may be made with the Fund:

(a) [Areas authorized by] … Sectionn 5(a) of the Endangered Species Act of 1973; (b) areas authorized by Sectionn 2 of the Act of September 28, 1962, as amended (16 U.S.C. § 460k-1; (c) national wildlife refuge areas under Sectionn 7(a)(5) of the Fish and Wildlife Act of 1956 (16 U.S.C. § 742f(a)(5)) except migratory waterfowl areas which are authorized by the Migratory Bird Conservation Act of 1929, as amended (16 U.S.C. §§ 715-715s); (d) any areas authorized for the National Wildlife Refuge System by Specific Acts.

88. 16 U.S.C. § 460l-9(a) (Supp. V, 1975).The original act stated that the Fund could be used for the acquisition of certain areas including "Recreation at Refuges — For the incidental recreation purposes of Sectionn 2 of the Act of September 28, 1962. (Refuge Recreation Act) (76 Stat. 653, 16 U.S.C. § 460(k)-1)…." Sectionn 2 of the Refuge Recreation Act authorizes the Secretary "to acquire limited areas of land for recreational development adjacent to the said conservation areas in existence or approved by the Migratory Bird Conservation Commission as of the date of this enactment." See S. Rep. No. 94-367, 94th Cong., 1st Sess. 9 (1975).

89. FWS obtained special authorization for the San Francisco Bay National Wildlife Refuge. 16 U.S.C. §§ 668ff-668ii (Supp. V, 1975).

90. S. Rep. 94-367, supra note 43, at 9.

91. See note 30 supra.

92. S. Rep. 93-307, supra note 30, at 2.

93. 42 U.S.C. §§ 5301-5317 (Supp. V, 1975) (originally enacted as Housing and Community Development Act of 1974, Title I, 88 Stat. 633).

94. In fiscal year 1977, $3.2 billion will be available for state use under HUD's block grant program. Id.

95. The Land and Water Conservation Fund Act contemplated coordination with federal agencies when it provided that:

[i]n order to assure consistency in policies and actions under [this Act], with other related Federal programs and activities (including those conducted pursuant to [Title VII of the Housing Act of 1961 and Sectionn 701 of the Housing Act of 1954]) and to assure coordination of the planning, acquisition and development assistance to States under this section with other related programs and activities, the President may issue such regulations with respect thereto as he deems desirable and such assistance may be provided only in accordance with such regulations.

16 U.S.C. § 460l-8(a) (1970).

The President issued Executive Order No. 11237 which called for coordination of outdoor recreation and the open space programs. 30 Fed. Reg. 9433 (July 27, 1965). Since the replacement of the open space programs with the block grant, however, no further order has issued.

96. Pub. L. No. 94-422, § 12, adding new section, 16 U.S.C. § 460l-10(d).

97. H.R. Rep. No. 94-1468, supra note 53, at 18.

98. Id. at 17.

99. Id. at 18. In a memorandum accompanying the Committee print of the "Recreation Imperative" in 1974, Senator Jackson explained that:

[b]y 1968, a plan had been formulated. That plan was then revised to increase the emphasis on the needs of urban areas. In 1970 … Secretary Hickel had prepared a final draft of the plan, which by then was two years overdue. That version, however, was never transmitted to the Congress or made public but was subsequently revised and released in December 1973 as the final plan "A Legacy for America…." What is significant is that the product of the expenditure of $7 million, the massive inventorying and classification, the recommendations and expertise of those who worked on the plan from 1963 to 1970 are all missing from the final plan.

See note 2 supra.

100. Pub. L. No. 94-422, § 8(f), amending, 16 U.S.C. § 460l-8(f) (1970). The state reports are to be summarized and sent to Congress by BOR.

101. Pub. L. No. 94-422, § 6(d), amending, 16 U.S.C. § 460l-8(d) (1970).

102. Id.

103. See note 9 supra.