Academic journal article Washington Law Review

Ain't Nothing like the Real Thing: Enforcing Land Use Restrictions on Land and Water Conservation Fund Parks

Academic journal article Washington Law Review

Ain't Nothing like the Real Thing: Enforcing Land Use Restrictions on Land and Water Conservation Fund Parks

Article excerpt

Abstract: Congress created the Land and Water Conservation Fund (LWCF) in 1965 to provide resources for states and federal agencies to acquire and develop land for public outdoor recreation. Over the past forty years, the LWCF has quietly become one of the most successful conservation programs in United States history. The federal government and states have used the LWCF to preserve unique landscapes for their natural beauty, scientific value, and wildlife habitat, as well as to encourage traditional recreational pursuits. The LWCF Act prohibits the conversion of LWCF-funded state and local parks to uses other than public outdoor recreation unless approved by the National Park Service under strict conditions. Nevertheless, state and local LWCF grantees have illegally converted numerous LWCF parks. As pressure grows on state and local governments to develop parkland for nonrecreational uses, illegal LWCF park conversions threaten unique landscapes and the integrity of the LWCF program. This Comment argues that federal common law and statutory rights in LWCF-funded lands enable the United States to seek an array of coercive remedies to prevent, remedy, and deter illegal conversions of LWCF parks.

The continued preservation of American parkland depends upon the effective enforcement of land use restrictions on Land and Water Conservation Fund (LWCF) parks. The LWCF is one of the most successful land conservation programs in U.S. history.1 Over the past forty years, the LWCF has provided more than $14.4 billion to acquire and develop parkland for public outdoor recreation.2 The LWCF has been particularly successful in stimulating state conservation programs.3 Approximately 10,500 LWCF grants have enabled states to acquire more than 2.6 million acres of parkland.4

Despite the program's many achievements, the challenge of enforcing development restrictions on LWCF-funded parks jeopardizes the future success of the LWCF.5 The LWCF Act provides that a grantee may not convert an LWCF-funded park to a use other than public outdoor recreation without the approval of the secretary of the Interior.6 Nevertheless, illegal conversions have been a consistent issue throughout the life of the LWCF.7 These conversions threaten unique landscapes and undermine the effectiveness of the program.8

The LWCF Act enables the National Park Service (NPS) to provide matching grants to states to acquire and develop unique recreational resources.9 LWCF grant agreements impose substantive land use obligations on LWCF grantees.10 Both the LWCF Act and LWCF grant agreements prohibit conversion of LWCF lands to non-recreational use without the consent of NPS.11 NPS may only approve a conversion under strict conditions including the substitution of reasonably equivalent parkland.12 While NPS asserts broad authority to ensure grantee compliance with federal LWCF requirements,13 the agency has neither defined nor tested the full extent of its enforcement powers.14

This Comment argues that NPS can and should prevent, restore, and deter illegal conversions by bringing suit to enjoin pending illegal conversions and to force states to restore illegally-converted parks.15 These coercive remedies are necessary to protect the broad preservationist purpose of the LWCF Act from unauthorized and inadequately substituted conversions of LWCF lands.16 The common law supports coercive remedies to protect federal contract and property rights in LWCF-funded parks.17 Moreover, federal courts must order coercive remedies where violations of the LWCF Act threaten the preservationist purpose of the law.18 Therefore, where illegal conversions threaten unique recreational resources, NPS should request injunctive relief for imminent conversions and seek restoration of illegally converted parks.19

Part I of this Comment provides an overview of the general framework of the LWCF. Part II discusses the broad preservationist purposes of the LWCF Act. Part III evaluates the LWCF Act's conversion provision and the history of illegal conversion of LWCFfunded parks. …

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