Public Land Acquisition for Environmental Protection: Structuring a Program for the Lake Tahoe Basin
Total Page：16
File Type：pdf, Size：1020Kb
Public Land Acquisition for Environmental Protection: Structuring a Program for the Lake Tahoe Basin Richard J. Fink* CONTENTS Introduction ................................................... 486 I. The Context of Land Acquisition at Lake Tahoe ........... 493 A. The Lake and Its Basin ............................. 493 B. Land Ownership and Use in the Basin ................ 494 C. Urbanization of the Tahoe Basin and Its Consequences ........................................ 500 D. Planning and Regulation at Lake Tahoe .............. 504 1. Sewage Export .................................... 504 2. The 1969 Interstate Compact ...................... 505 3. The 1980 Interstate Compact ...................... 507 E. Summary: Impact of the Context of Lake Tahoe on Public Land Acquisition Programs .................... 511 II. The Modem Role of Public Land Acquisition at Lake T ahoe .................................................... 512 A. Genesis of the Current Acquisition Programs ......... 513 1. Proposals for Expanding Public Land Acquisition.. 513 2. Forest Service Acquisitions Under the Land and Water Conservation Fund ......................... 518 3. State Park Acquisitions at Lake Tahoe and At- tempts at Interstate Cooperation .................. 520 4. Summary: Lessons from Tahoe Basin Acquisitions Before 1980 ...................................... 522 Copyright © 1991 by ECOLOGY LAW QUARTERLY * Associate Professor, California Western School of Law, San Diego; J.D. 1974, Stan- ford Law School; A.B. 1970, Stanford University. The author gratefully acknowledges the assistance of Dennis Machida, Executive Officer of the California Tahoe Conservancy, who generously provided primary materials and shared his insights, and numerous other people who work at Lake Tahoe, including Bruce Emmens, Richard Grimes, Jonathan Hofer, Law- rence Hoffman, Susan Scholley, and Wayne Shepard. This work was supported by the Califor- nia Western School of Law faculty research grants program. Dennis Machida and John Gussman, Staff Counsel to the 'Conservancy, made helpful comments on prior drafts of this article. Any errors are solely the author's. ECOLOGY LAW QUARTERLY [Vol. 18:485 B. The California Lake Tahoe Acquisitions Bond Act and Tahoe Conservancy ................................... 523 1. Land Acquisition Programs of the Conservancy .... 527 2. The Conservancy's Approaches to Acquisition and Resource Objectives ............................... 530 3. Acquired Property Interests ....................... 532 4. Property Valuation Standard ...................... 533 III. Structuring Implementation of the Tahoe Conservancy Acquisition Program ...................................... 535 A. Causal Theory: How Tahoe Water Quality Can Be Protected ............................................ 538 B. Precision and Clear Ranking of Legal Objectives ...... 542 C. Initial Allocation of Financial Resources .............. 545 D. Integration Within and Among Implementing institutions .......................................... 548 E. Officials' Commitment to Statutory Objectives, Access by Outsiders, and Decision Rules of the Implementing Agency .............................................. 552 Conclusion ..................................................... 553 INTRODUCTION Efforts to increase public ownership of land have grown dramat- ically in the last decade. State governments throughout the United States have established programs to acquire privately held land and have au- thorized the expenditure of billions of dollars for such purposes. For example, state and local governments in the Northeast have allocated more than $1 billion for land preservation since 1986.1 In 1988, Califor- nia voters passed a $770 million bond issue for a broad range of land acquisitions, 2 and in June 1990, Florida adopted legislation creating a trust fund which will provide up to $3 billion for the purchase of environ- mentally sensitive land and recreation areas.3 Although the current land acquisition movement reflects a broad variety of concerns, including preservation of farmland and creation of new parks 4 the primary focus 1. Northeast: State, Local Agencies Take Lead in Land Conservation, 4 CAL. PLAN. & DEV. REP., Sept. 1989, at 4. These efforts include designation of $150 million for land acquisi- tion in the 1987 Massachusetts environmental bond issue, An Act Providing for an Environ- mental Enhancement and Protection Program for the Commonwealth, 1987 Mass. Acts 564, $20 million authorized for land preservation in New Hampshire, Land Conservation Invest- ment Program Act, N.H. REV. STAT. ANN. ch. 221-A:1 to :13 (1989), and $35 million allo- cated for local government acquisition of recreation and open space areas in Maine, Land for Maine's Future Fund, ME. REV. STAT. ANN. tit. 5, §§ 6200-6210 (1989 & Supp. 1990); North- east: State, Local Agencies Take Lead in Land Conservation, supra, at 6. 2. California Wildlife, Coastal, and Park Land Conservation Act, CAL. PUB. RES. CODE §§ 5900-5938 (West Supp. 1991). 3. Florida Preservation 2000 Trust Fund Act, FLA. STAT. § 375.045 (1990). 4. See, e.g., 1987 Mass. Acts 564, § 12 (parks); ME. REV. STAT. ANN. tit. 5 § 6207 1991] LAKE TAHOE LAND ACQUISITION of most contemporary programs is environmental protection. The envi- 5 ronmental objectives include protection of open space and forests, natu- 7 ral areas with special environmental qualities, 6 wildlife habitat, diversity in plant and animal species s and water quality.9 The surge in public land acquisition at the state and local levels dur- ing the 1980's coincided with serious challenges to the federal govern- 0 ment's well established policy of significant federal land acquisition. 1 A national policy favoring greater public land ownership emerged early in this century when federal agencies began selective reacquisition of land once owned by the United States government.II This federal acquisition accelerated with the adoption of the Land and Water Conservation Fund Act of 1965 (LWCF), which created a mechanism for financing acquisi- tion of recreational land. 12 The $3.9 billion federal share of monies ap- its inception through fiscal year 1989 propriated from the LWCF from 13 financed the acquisition of over 3.8 million acres of land. (1989) (farmland). 5. See, e.g., Implementation of Environmental Quality Bond Act of 1986, N.Y. ENVTL. CONSERV. LAW § 52-0701 (McKinney Supp. 1991); Scenery Preservation Council, VT. STAT. ANN. tit. 10, §§ 421-425 (1984 & Supp. 1989). 6. See, e.g., Arizona State Parks Board, ARIz. REV. STAT. ANN. § 41-511.03 (1990); Arkansas Environmental Quality Act, ARK. STAT. ANN. §§ 15-20-301 to -319 (1987 & Supp. 1989); Colorado Natural Areas Act, COLO. REv. STAT. §§ 33-33-101 to -113 (Supp. 1989); Natural Heritage Fund Act, ILL. ANN. STAT. ch. 105, paras. 731-738 (Smith-Hurd 1987); Nature Preserves, IND. CODE ANN. §§ 14-4-5-1 to -11 (West Supp. 1990); Natural Lands Protection Act, N.M. STAT. ANN. §§ 75-5-1 to -5-6 (Supp. 1989); Division of Natural Areas and Preserves, OHIO REV. CODE ANN. §§ 1517.01-.99 (Anderson 1986 & Supp. 1990); Vir- ginia Natural Area Preserves Act, VA. CODE ANN. §§ 10.1-209 to -217 (1989); Washington Natural Resources Conservation Areas, WASH. REV. CODE ANN. § 79.71.010-.900 (1991); Wisconsin Natural Areas Heritage Program, Wis. STAT. ANN. § 23.29 (West 1989). 7. See, e.g., ARK. STAT. ANN. § 15-20-310(3), (5) (1987); Wildlife and Natural Areas Conservation Program, CAL. FISH & GAME CODE §§ 2700-2729 (West Supp. 1991); Recrea- tion and Natural Heritage Trust Program, CONN. GEN. STAT. ANN. §§ 23-73 to -80 (West 1990); see also Owens, Land Acquisition and Coastal Resource Management: A PragmaticPer- spective, 24 WM. & MARY L. REv. 624, 655-66 (1983). 8. See, e.g., Massachusetts Nature Preserves Act, MASS. GEN. LAWS ANN. ch. 131, §§ 10A-10D (West 1990); MINN. STAT. ANN. § 84.943-.944 (West Supp. 1991) (Minnesota critical habitat matching account). 9. See, e.g., 1987 Mass. Acts 564, § 3; Heritage Conservation Fund, MD. NAT. RES. CODE ANN. §§ 5-1501 to -1506 (1989). 10. See infra notes 14 and 15. 11. Glicksman & Coggins, FederalRecreational Land Policy: The Rise and Decline of the Land and Water Conservation Fund, 9 COLUM. J. ENVTL. L. 125, 134-38 (1984). 12. 16 U.S.C. §§ 4601-4 to -11 (1988). 13. H.R. REP. No. 148, 101st Cong., 1st Sess. 2 (1989). During the same period over $3.1 billion was appropriated for matching grants by state governments permitting the acquisi- tion of approximately 2.4 million acres. Id. at 3. These acquisitions made possible the creation of national parks, e.g., National Redwood Park Act of 1968, Pub. L. No. 90-545, 82 Stat. 931 (codified as amended at 16 U.S.C. §§ 79(a)-(q) (1988)); national recreation areas and sea- shores, e.g., Golden Gate National Recreation Area Act of 1972, Pub. L. No. 92-889, 86 Stat. 1299 (codified as amended at 16 U.S.C. §§ 460bb to 460bb-5 (1988)); Gateway National Recre- ation Area Act of 1972, Pub. L. No. 93-592, 88 Stat. 1308 (codified as amended at 16 U.S.C. §§ 460cc to 460cc-4 (1988)); national preserves, e.g., Big Cypress National Preserve Act of ECOLOGY LAW QUARTERLY [Vol. 18:485 The Reagan administration took steps to discontinue, and even re- verse, the policy of selective federal reacquisition. In 1981, Secretary of the Interior James G. Watt imposed a moratorium on spending funds already appropriated from the LWCF for land acquisition.' 4 Although Mr. Watt's successor partially lifted the moratorium following strong congressional criticism, administration budget requests