13.9106.01000 Prepared by the 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 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; 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 , 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. , 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 - In an Act of August 18, 1970, historic site contains a single historical feature the national park system was defined in law as that was directly associated with its subject. "any area of land and water now or hereafter Derived from the Historic Sites Act of 1935, a administered by the Secretary of the Interior number of historic sites were established by through the National Park Service for park, monument, historic, parkway, recreational or 13.9106.01000 3 September 2011

other purposes." The affiliated areas comprise protect wetlands done on a voluntary basis a variety of locations in the United States and with landowners. Canada that preserve significant properties outside the National Park System. Some of United States Forest Service these have been recognized by Acts of The Forest Service administers the national Congress, and others have been designated grasslands in this state. The grasslands are called national historic sites by the Secretary of the the Dakota Prairie Grasslands and consist of Interior under authority of the Historic Sites Act 1,259,000 acres in three separate grasslands--the of 1935. All draw on technical or financial aid Little Missouri National Grasslands, the Sheyenne from the National Park Service. National Grasslands, and the Cedar River There are two historic sites in this state--Fort Grasslands. The land is owned in fee title by the Union Trading Post National Historic Site and United States Department of Agriculture and is Knife River Indian Villages National Historic managed by the Forest Service. National forest Site. roadless areas are designations within the national • Other designations - Some units of the grasslands. national park system bear unique titles or Municipal watersheds are managed by the Forest combinations of titles, like the White House and Service through a program that applies if a national Prince William Forest Park. forest watershed supports a municipal water supply. The National Park Service also administers the National Historic Landmark Program. There are Bureau of Land Management six landmarks in this state--Big Hidatsa Village Site, The Bureau of Land Management manages the Fort Union Trading Post, Frederick A. and Sophia national conservation system and recreational areas. Bagg Bonanza Farm, , As part of the national conservation system, the Menoken Indian Village Site, and . Bureau of Land Management administers the national In addition, the National Park Service administers scenic and historic trails. There is one trail in this the National Register of Historic Places. There are state--the Lewis and Clark National Historic Trail. 416 historic places in this state. There are not any national conservation areas in this state. This state has one recreational area--the United States Fish and Wildlife Service Schnell Recreation Area. • National Wildlife Refuges The Fish and Wildlife Service administers Bureau of Reclamation 63 national wildlife refuges in North Dakota. The Bureau of Reclamation manages a number of The most popular refuges in North Dakota areas in this state. The largest areas include the include Arrowwood, Audubon, Chase Lake, Dickinson Dam, the Heart Butte Dam, and the Des Lacs, J. Clark Salyer, Lake Alice, Lake Jamestown Dam and associated reservoirs. Ilo, Long Lake, Lostwood, Upper Souris, and Tewaukon. The land is owned by the Wild, Scenic, and Recreational Rivers Department of the Interior, United States Fish Some designations do not fit neatly into one and Wildlife Service. agency. One example is the wild, scenic, and • Wilderness Study Area recreational rivers designation. The wild, scenic, and Wilderness study area is a designation by recreational rivers system protects rivers with scenic, Congress and affects federally owned land as recreational, fish and wildlife, and other values. The to limit activities. The Fish and Wildlife rivers may be designated by Congress or the states. Service administers two wilderness study The program is generally administered by the federal areas in this state: agency with jurisdiction over the property surrounding The is 5,577 acres the river, usually the National Park Service or Fish within the 26,902-acre Lostwood National and Wildlife Service. There are not any wild, scenic, Wildlife Refuge. and recreational rivers in this state.

The is Department of Transportation 4,155 acres. The Federal Highway Administration administers Grassland and Wetland Easements • the national scenic byways. This program provides The Fish and Wildlife Service purchases funding to certain highways. The program is a grassland and wetland easements. collaborative effort established to help recognize, Grassland easements are perpetual preserve, and enhance selected roads throughout the easements by the Fish and Wildlife Service to United States. There are two highways in this protect native grasslands done on a voluntary state--Sheyenne River Valley National Scenic Byway basis with landowners. The easement and Standing Rock National Native American Scenic prevents using the land for crop and early Byway. haying. Wetland easements are a perpetual

easement by the Fish and Wildlife Service to

13.9106.01000 4 September 2011

Environmental Protection Agency Under Section 20.1-02-18, the Governor's approval The Environmental Protection Agency is included is required for the acquiring of land by the federal in the list although the Environmental Protection government under the Migratory Bird Conservation Agency regulates more than it designates. The Act. Under Section 20.1-02-18.1, the Governor and Environmental Protection Agency regulates wetlands, the director of the Game and Fish Department must including prairie potholes, as to pollution prevention submit the proposed acquisition of land waterfowl and control under the Clean Water Act and is closely production areas, wildlife refuges, or other wildlife tied to related designations by other agencies. purposes to the board of county commissioners of the affected counties. The board must give notice and STATE LAW have a public hearing. A detailed impact analysis The following are instances in which the state has from the federal agency involved must be given to the control or cooperation over the acquisition of land by board. In addition, the county agent of the affected the federal government in the North Dakota Century counties must prepare an impact analysis, and these Code. These instances arise because federal law documents must be given to the Department of allows state involvement. Commerce to circulate within state government. The Section 10-06.1-10 provides that a nonprofit department must forward the analysis and comments organization may not acquire farmland or ranchland to the federal agency and state decisionmakers. unless, among other things, the Governor approves of Under Section 54-01-15, the federal government the proposed acquisition. The nonprofit organization may acquire land for national forests with the consent must notify the Agriculture Commissioner who of the Legislative Assembly. The legislative consent convenes an advisory committee consisting of is required in the form of a bill. members from or of: Under Section 55-10-10, this state recognizes the • The Parks and Recreation Department; National Historic Preservation Act. The State • The Agriculture Commissioner; Historical Society is the state entity that carries out the program. The State Historical Society may acquire • The State Forester; title or interest in any district, site, building, structure, • The Game and Fish Department; or object in compliance with federal law. • The North Dakota Farmers Union; • The North Dakota Farm Bureau; SUGGESTED STUDY APPROACH • The Stockmen's Association; and Because of the supremacy clause of the United • Affected board of county commissioners. States Constitution, it is difficult for the state to require The advisory committee has a meeting with the any coordination or consultation by the federal board of county commissioners and makes a government in making any designations. A great recommendation to the Governor. majority of designations either involve the state or an Under Section 20.1-02-17.1, the director of the Act of Congress as to the particular property. As Game and Fish Department is required to submit such, the political process provides the coordination proposed wildlife and fish restoration programs or and consultation. If the designation involves the projects involving the acquisition of wetlands, water, purchase of land, there appears to be at least notice or land to the board of county commissioners in and a hearing. affected counties for approval before agreement with The committee may desire to focus the study to the and approval by the Secretary of the Interior. The actions by certain federal agencies or to certain board of county commissioners must inspect the designations. The result of an approach focused on a property, hold a public hearing, and give an approval particular agency or program, especially if there have or disapproval. The Game and Fish Department and been previous issues with the agency and program, county agent must provide the board a detailed impact may be more effective. analysis. The Department of Commerce must circulate the analysis within state government for ATTACH:1 comment and forward the comment to the Game and Fish Department.