13.9106.01000 Prepared by the North Dakota Legislative Council staff for the Natural Resources Committee September 2011 FEDERAL DESIGNATIONS - BACKGROUND MEMORANDUM Section 1 of 2011 Senate Bill No. 2234 (attached federal government would take over the state program as an appendix) directs the Legislative Management due to the delay resulting from the Legislative to consider various mechanisms for improving Assembly meeting once every two years. coordination and consultation regarding federal The opponents to the bill as introduced argued that designation over land and water resources in this the bill would be preempted by federal law. The state. As introduced, the bill would have prohibited supremacy clause of the United States Constitution the federal government from establishing a federal basically states that federal law preempts state law. If designation over land or water resources in this state a state adds a requirement that the federal without the approval of the Legislative Assembly by government needs approval to implement federal law concurrent resolution. in this state, that law is contrary to the supremacy clause and is preempted by federal law. These LEGISLATIVE HISTORY opponents cited an Attorney General Letter Opinion-- The bill's proponents included the North Dakota 2011-L-01--which opined that it is likely that Stockmen's Association, the North Dakota Farm 2011 House Bill No. 1286 would be preempted by Bureau, the Landowners Association of North Dakota, federal law. The opinion summarized House Bill and certain landowners. The proponents argued that No. 1286 as making it a crime for federal or state federal designations diminish property rights and are employees to apply federal law, including federal the first step in further regulation. Proponents regulations and rules, when determining a North provided a list of federal designations to which the bill Dakota resident's right of access to medical services should apply: and health insurance coverage, unless the federal • National forests; government had received approval from the • National parks; Legislative Assembly. In a footnote of the opinion, the • Wilderness areas; Attorney General identified two other bills that raise similar concerns--one of which was Senate Bill • Roadless areas; No. 2234. • Wild, scenic, and recreational rivers; • National monuments; • National conservation areas; NORTHERN PLAINS NATIONAL • National recreation areas; HERITAGE AREA • National heritage areas; One area of contention in recent history regards • Scenic byways; the Northern Plains National Heritage Area. Congress authorized the program in 2009. The Northern Plains • National wildlife refuges; National Heritage Area encompasses approximately • Wilderness study areas; 800 square miles of land along both sides of the • Municipal watersheds; Missouri River in five counties from Huff to Stanton. • Conservation easements; The counties include Burleigh, McLean, Mercer, • Grasslands; Morton, and Oliver. The purpose of the Northern • Wetlands; and Plains National Heritage Area is to preserve history in • Prairie potholes. an area of distinct human impact on the landscape. The proponents listed the Dakota Grassland The program provides matching grants. Conservation Area as the latest example of a federal The Northern Plains Heritage Foundation is the designation. This is a designation in which the United nonprofit organization that functions as the States Fish and Wildlife Service seeks to conserve coordinating entity for the Northern Plains National 12 million acres in South Dakota, North Dakota, and Heritage Area. The Northern Plains Heritage Montana. This program was proposed by the United Foundation was charged with writing a management States Fish and Wildlife Service for conservation of plan for the heritage area. The management plan grasslands through the purchase of conservation must identify ways in which the federal funds will be easements. matched, as well as the guidelines the Northern Plains The State Department of Health expressed Heritage Foundation will follow when awarding grants, concern with the bill as introduced. The concern was and anything else determined important to the over which federal designations would require successful management of the heritage area. The approval. Some designations are made through management plan has been made and applications determinations. For example, there are for grants have been received by the Northern Plains determinations in which the federal government Heritage Foundation. designates whether the state program is in The main concern by landowners was that they did compliance with federal regulation. The concern was not have notice of the potential designation. When that if state legislative approval were required, the notified of the designation, many landowners approval may not be able to be given before the expressed concern that the program would threaten 13.9106.01000 2 September 2011 private property rights. In response to these Secretaries of the Interior, but most have been concerns, the law authorizing the program provided authorized by Acts of Congress. for an opt-in provision for landowners. • National historical park - This designation generally applies to historic parks that extend INVENTORY OF FEDERAL beyond single properties or buildings. DESIGNATIONS IN THIS STATE • National memorial - A national memorial is The following is a list by federal agency of commemorative of a historic person or episode; designations, especially those designations, listed by it need not occupy a site historically connected proponents of this study. These agencies are the with its subject. Department of the Interior, the Department of • National battlefield - This general title includes Transportation, and the Environmental Protection national battlefield, national battlefield park, Agency. The Department of the Interior is divided into national battlefield site, and national military the National Park Service, the Fish and Wildlife park. In 1958 a National Park Service Service, the Forest Service, the Bureau of Land committee recommended national battlefield as Management, and the Bureau of Reclamation. the single title for all such parklands. • National cemetery - There are presently Department of the Interior 14 national cemeteries in the National Park National Park Service System, all of which are administered in The national park system comprises 394 areas conjunction with an associated unit and are not covering more than 84 million acres in every state, accounted for separately. except Delaware. These areas include national parks, • National recreation area - Twelve national monuments, battlefields, military parks, historical recreation areas in the system are centered on parks, historic sites, lakeshores, seashores, recreation large reservoirs and emphasize water-based areas, scenic rivers and trails, and the White House. recreation. Five other national recreation areas If one of these areas is in this state, it is listed are located near major population centers. following a brief description of the area in general. Such urban parks combine scarce open spaces • National park - These are generally large with the preservation of significant historic natural places having a wide variety of resources and important natural areas in attributes, at times including significant historic locations that can provide outdoor recreation for assets. Hunting, mining, and consumptive large numbers of people. activities are not authorized. • National seashore - Ten national seashores In this state, there is the Theodore have been established on the Atlantic, Gulf, and Roosevelt National Park - North and South Pacific coasts; some are developed and some Units. Part of this park includes the Theodore relatively primitive. Hunting is allowed at many Roosevelt Wilderness. The wilderness is of these sites. 29,920 acres managed by the National Park • National lakeshore - National lakeshores, all Service. The land is owned in fee title by the on the Great Lakes, closely parallel the United States Department of the Interior. seashores in character and use. • National monument - The Antiquities Act of • National river - There are several variations to 1906 authorized the President to declare by this category--national river and recreation public proclamation landmarks, structures, and area, national scenic river, wild river, etc. The other objects of historic or scientific interest first was authorized in 1964, and others were situated on lands owned or controlled by the established following passage of the Wild and government to be national monuments. Scenic Rivers Act of 1968. • National preserve - National preserves are • National parkway - The title parkway refers to areas having characteristics associated with a roadway and the parkland paralleling the national parks, but in which Congress has roadway. All were intended for scenic motoring permitted continued public hunting, trapping, along a protected corridor and often connect and oil and gas exploration and extraction. cultural sites. Many existing national preserves, without sport • National trail - National scenic trails and hunting, would qualify for national park national historic trails are the titles given to designation. these linear parklands (over 3,600 miles) In this state there is the Sullys Hill National authorized under the National Trails System Act Game Preserve that consists of 1,674 acres. of 1968. • National historic site - Usually, a national • Affiliated areas