Native Hawaiian Land Rights

NATIVE HAWAIIAN LAND RIGHTS

NEIL M. LEVY

Neil M. Levyt

Professor Levy traces the historical displacement of Native Hawaiians from their land and explores the problems of preserving the landhold ings and cultural heritage of the Native Hawaiian community. He suggests that the problems require legislative solutions similar to those afforded to Native Americans and Alaskan Natives. In less than 200 years of contact with Western civilization, Native Hawaiians, descendants of Polynesians who inhabited the Islands prior to 1778, have lost control of the great bulk of their homeland. Today they face a new period of crisis. This article focuses on the historical displacement of Native Hawaiians from their land—a displacement ac complished primarily through legal mechanisms rather than military ac tions—and then explores the current problems facing the Native Hawaiian community in its attempt to conserve and expand its presently limited landholdings. The article suggests that Native Hawaiians, as an indigenous people, occupy a unique status akin to that of Indians and Alaskan Natives, and that their problems accordingly require spe cial legal solutions.

A H is t o r y o f N a t iv e H a w a iia n L andholdings U n t i l 1920

A. Traditional Land Tenure

When Captain Cook arrived in Hawaii in 1778, he found a com plex land tenure system,1 which has been compared to the feudal sys-

f Associate Professor of Law, Golden Gate University; A.B. 1963, Cornell Uni versity; J.D. 1966, University of Chicago. Preliminary research for this article was begun under a summer grant from the Na tional Endowment for the Humanities. The author wishes to thank Rhoda Haberman, J.D. 1975, Golden Gate University, and Sandra Pechter, J.D. 1974, Golden Gate Uni versity, for their invaluable assistance in the preparation of this article. 1. For detailed discussions of early Hawaiian land tenure, see generally J. C h i n e n , T h e G r e a t M a h e l e (1958) [hereinafter cited as T h e G r e a t M a h e l e ]; G . D a w s , S h o a l o f T im e (1968) [hereinafter cited as S h o a l o f T im e ]; J. H o b b s , H a w a ii— A P a g e a n t o f t h e S o il (1935) [hereinafter cited as P a g e a n t ]; 1 R. K u y k e n d a l l , T h e H a w a iia n K in g d o m 1778-1854 (1938) [hereinafter cited as 1 H a w a iia n K in g d o m ]; A. L in d , A n I s l a n d C o m m u n i t y (1938) [hereinafter cited as I s l a n d C o m m u n i t y ]; M. Kelly, Changes in Land Tenure in Hawaii, 1778-1850, June, 1956 (unpublished thesis in University of Hawaii Library) [hereinafter cited as Kelly].

848 1975] HAWAIIAN LAND 849

tem of medieval Europe.2 This system successfully sustained an ex tremely dense population3 and provided surplus goods sufficient to support chiefs and priests and to replenish Cook’s expedition.4 Al though there were larger administrative divisions,3 the basic landhold ing unit was the ahupuaa, which ranged in size from 100 to 100,000 acres and usually had natural boundaries.6 The ideal ahupuaa was an economically self-sufficient,7 pie-shaped unit which ran from mountain tops down ridges to the sea. Most ahupuaa were in turn divided into ili, some of which were virtually independent while others were mere operating subdivisions of the ahupuaa. A hierarchical society par alleled this pattern of land division. At the top, a chief controlled each ahupuaa', land agents (konohiki) and subchiefs subordinate to the chief controlled smaller amounts of land; and at the bottom of the hierarchy common farmers worked land for the chiefs personal benefit. Com moners also had plots for their own use and had certain gathering rights in the noncultivated lands of the ahupuaa.8 No concept similar to the fee simple absolute existed at this time and landholdings were considered revocable. On the death of a high chief, his successor was free to redistribute the land among the low chiefs and, when any chiefs died, the lands were not necessarily passed on to the decedent’s heirs. Frequent warfare often brought new chiefs who could reassign the conquered land to their followers, rather than leave it with the conquered nobles. These changes in control usually affected neither the boundaries of the ahupuaa and the ili9 nor the ten ure, such as it was, of common farmers.10 Although a commoner in Hawaii owed a work obligation to those higher in the structure, he was free to leave an ahupuaa if unhappy with his landlord. This situation, which distinguished pre-Cook land patterns from the European feudal system, may have been a major factor in ameliorating abuses by the chiefs, who were anxious to keep ample work forces on their lands.11

2. See, e.g., P a g e a n t , supra note 1, at 1. 3. An estimated three hundred thousand people lived on 6,415 square miles. R. S c h m it t , D e m o g r a ph ic St a t is t ic s o f H a w a ii: 1778-1965, at 10-11 (1968). 4. See 1 H a w a iia n K in g d o m , supra note 1, at 12-20. 5. The island (mokupuni) was the primary division, followed by a geographic di vision called the mokuaina. Although this was not a political unit, modern Hawaiian judicial districts tend to follow old mokuaina boundaries. T h e G r e a t M a h e l e , supra note 1, at 3. 6. Id. at 1-3; see discussion of boundary setting practices in In re Boundaries of Pulehunui, 4 Hawaii 239 (1879). 7. But see Kelly, supra note 1, at 32. Occasional trade fairs were held for goods not available in all localities. 8. See id. at 20-26. 9. Id. at 3. Today many large estates follow the boundaries of old ahupuaa and ili kupono. 10. See P a g e a n t , supra note 1, at 7. 11. See Kelly, supra note 1, at 42. 850 CALIFORNIA LAW REVIEW [Vol. 63:848

B. Transitional Period 1778-1846 The arrival of Westerners completely altered socio-economic pat terns as Hawaii became a major refreshment stop for European vessels sailing the Pacific and a major supplier of the sandalwood trade.12 Par tially through the use of European arms, Kamahameha I had expanded his rule by 1795 to all of Hawaii except the island of Kauai.13 A pro liferation of administrative levels and a rise in palace court life accom panied this unification. The king and his court were attracted to newly available European and Oriental goods, so that the Hawaiian economy had to supply a now enlarged aristocratic class with imported luxuries. While the economy thus turned from one primarily aimed at subsis tence to one enmeshed in international trade, the commoners’ condition worsened as Western diseases destroyed much of the population,14 trad itional notions of feudal responsibility were disrupted, and an onerous tax system was instituted.15 Land tenure patterns reflected and served this new economy. Kamehameha II, who acceded to the throne in 1819, considered it po litically unwise to revoke the holdings of his predecessor’s subchiefs. Foreign traders were anxious to codify this new stability, fearing that changes in landholdings might lead to civil wars and disruption of com merce. When Kamehameha III acceded to the throne at the age of twelve, the council of chiefs, under the tutelage of an English frigate captain, extracted from the regent a formal policy, later characterized as the Law of 1825, which allowed chiefs to keep their lands upon a king’s death.16 At the same time, Westerners entered Hawaii’s land usage patterns as foreign settlers were “given” lands by the king or chiefs in return for services or merely out of traditional Hawaiian gen erosity.17 After overharvesting collapsed the sandalwood trade, West erners with substantial capital accumulated in that trade began large- scale plantations on the Islands.18

12. Is l a n d C o m m u n i t y , supra note 1, at 9-11. 13. See 1 H a w a iia n K in g d o m , supra note 1, at 29-60, for description of Kame- hameha’s conquest of other kingdoms within the Islands. The independence of Kauai was eroded over the next several decades. 14. I sl a n d C o m m u n i t y , supra note 1, at 94-99. 15. Id. at 41. 16. 1 H a w a iia n K in g d o m , supra note 1, at 119-22. 17. See Keelikolani v. Robinson, 2 Hawaii 514 (1862) for a description of one such land transfer in 1827. See also P a g e a n t , supra note 1, at 17-19. 18. Three Americans started the first venture in 1835 under the name of Ladd & Co., by obtaining a fifty-year lease, signed by both the king and his governor on Kauai, for a 1000-acre parcel on that island. The lease contained no terms concerning the rights of tenants but provided that Ladd & Co. might hire native laborers to work the land if it made adequate payments to the laborers, the governor and the king. The transaction thus combined the modern Western lease for a term of years with a partially 1975] HAWAIIAN LAND 851

Hawaii’s first written constitution, adopted in 1840, and the laws immediately enacted pursuant to it,19 attempted to adjust land rights to the new relationships between Hawaiian chiefs and commoners and Hawaiians and Westerners. The constitution and the laws are fre quently viewed as liberalizing forces20 because they announced tenants’ rights in land and lowered labor taxes. They also represent, however, a final attempt to preserve the non-mercantile land system and to re verse the tide of Hawaiians who were leaving their traditional homes for the booming towns of Honolulu and Lahaina. For example, one statute provided that, “No man living on a farm whose name is recorded by his landlord, shall without cause desert the land of his landlord. Nor shall the landlord causelessly dispossess his tenant.”21 Native Hawaiians who had already left the land were offered an opportunity to return by apply ing to a governor or the king for any uncultivated lands.22 The constitution also attempted to deal with two areas of conflict between Hawaiians and Westerners: attempts by chiefs to vest land rights in Westerners without the approval of the crown, and attempts by Westerners, who had received land rights from the king, to transfer those interests to other foreigners without the king’s express permis sion. The traditional Hawaiian land system did not confront these is sues, since landholdings before the law of 1825 had been revocable at the pleasure of the king. In disputes over land rights between the king and foreigners, the foreign community had distinct advantages.

feudal labor arrangement. Lease agreement reproduced in part at 1 H a w a iia n K in g d o m , supra note 1, at 175. 19. These documents frequently evidence a strong missionary flavor. See, e.g., Law of Nov. 9, 1 8 40, ch. 3, § 5, in T r a n sl a t io n o f t h e C onstitution a n d L a w s o f t h e H a w a iia n I sl a n d s E s t a b l ish e d in t h e R e ig n o f K a m e h a m e h a III (1842) 32 [hereinafter cited as T r a n s l a t io n ]; (T h e F u n d a m e n t a l L a w o f H a w a ii 18 (L. Thurston ed. 1 9 0 4 ) [hereinafter cited as Thurston]). “As for the idler, let the indus trious put him to shame, and sound his name from one end of the country to the other.” Thurston at 18. The statute book cited above is the first compilation in English of the constitution of 1840 and the laws enacted within the two years following its passage. Hawaii has reproduced its early statutes in other volumes. Since statute books for the Hawaiian Kingdom are now extremely rare, this article will give a parallel citation where appli cable to Thurston and to 2 R e v ise d L a w s o f H a w a ii 1925 [hereinafter cited as R e v ise d L a w s 1925]. 20. See, e.g., 1 H a w a iia n K in g d o m , supra note 1, at 167. 21. Act of Nov. 9, 1840, ch. 3, § 6, in T r a n s l a t io n at 33; (Thurston at 18-19). This attempt proved futile: “Neither the laws of 1839 nor of 1840 were found ade quate to protect the inferior lords and tenants, for although the violators of law, of every rank, were liable to its penalty, yet it was so contrary to ancient usage, to execute the law on the powerful for the protection of the weak, that the latter often suffered, . . .” Principles Adopted by the Board of Commissioners to Quiet Land Titles, Act of Oct. 26, 1846, [1846] Hawaii Laws 87 (R ev ise d L a w s 1925 at 2127). For further discus sion of the Principles see text accompanying note 36 infra. 22. Act of Nov. 9, 1840, ch. 3, § 6, in T r a n s l a t io n at 34 (Thurston at 19). 852 CALIFORNIA LAW REVIEW [Vol. 63:848

First, foreign gunboats frequently came to Hawaii to enforce the mer chants’ views.23 Second, Westerners had assumed many of the most important positions and thus were able to influence government deci sions.24 Native Hawaiians had come to fear the foreigners’ accumulation of land.25 The chiefs realized that such holdings would increase the power exercised by foreigners and decrease their own ability to receive labor dues from commoners who became part of the Western planta tion economy. In attempting to delimit the Westerners’ claims to land, the con stitution of 1840 reaffirmed that the king could lose no land without his consent;26 thus he could prevent alienation to foreigners. However, fearing a confrontation with Westerners, the king provided in the con stitution that property already held by them would not be reclaimed by the crown.27 In 1841, Kamehameha III again sought to forestall con flict with the foreign community by proclaiming a plan of accommoda tion allowing the Islands’ governors to enter into fifty-year leases with the foreigners.28 Neither the constitution nor the accommodation plan put to rest Western-Hawaiian land disputes. In 1843, partially in re sponse to a lease dispute involving the British Consul, Richard Charlton, the British warship Carysfort entered Honolulu and its captain took over virtually all functions of government for five months.29 The British

23. In 1837, one prominent American merchant wrote: Property is much safer here than formerly— the visits of the American, English and French men-of-war during these sixteen months have established invio lability of property and persons, and the natives taught and made to fear the “laws of the Nations”; and that a sovereign and a government come under the ban of laws as well as subjects or individuals. Letter from Henry A. Pierce to James Hunnewell, Aug. 6, 1837, in 1 H a w a iia n K in g d o m , supra note 1, at 153. 24. See Kuykendall, American Interests and American Influence in Hawaii in 1842, 1930 A n n . R e p o r t o f t h e H a w a iia n H ist o r ic a l S o c ’y 61 (1930). 25. See, e.g., petition from natives of Molokai and Maui to the King, July, 1845, objecting to the land being sold to Westerners, Legislative File Folder # 2 , Hawaii State Archives. 26. The constitution of 1840 stated: K a m e h a m e h a I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own pri vate property. It belonged to the chiefs and people in common, of whom Kam ehameha I. was the head, and had the management of the landed property. Wherefore, there was not formerly, and is not now any person who could or can convey away the smallest portion of land without the consent of the one who had, or has the direction of the kingdom. Constitution of 1840, in T r a n sl a t io n at 11-13 (Thurston at 3). 27. Preamble to constitution of 1840, in T r a n s l a t io n at 10 (Thurston at 1). This preamble had been proclaimed by Kamehameha III in 1839 in virtually the same form'as it appeared in the constitution and is frequently referred to as the Declaration of Rights. 28. Royal Proclamation, May 31, 1841, in 1 H a w a iia n K in g d o m , supra note 1, at 275. 29. See generally S h o a l o f T im e , supra note 1, at 112-120. 1975] HAWAIIAN LAND 853 government, upon learning of this action, repudiated it and ordered the Carysfort to leave Hawaii. To the Hawaiian Kingdom the lesson must have been clear: its independence was at the whim of great Western powers, whose nationals increasingly desired to own the lands of Hawaii.

C. Era of the Mahele By 1845, the land tenure system could neither maintain itself in the face of a hostile foreign world nor accommodate itself to the wishes of that world. The government’s response to these problems was a time honored one: appoint a commission. The Land Commission was charged to undertake “the investigation and final ascertainment or re jection of all claims of private individuals, whether natives or foreigners, to any landed property acquired anterior to the passage of this Act. . . .”30 Its decisions, subject only to appeal to the Hawaii Supreme Court, were to be based on existing land law of the kingdom, including “native usages in regard to landed tenures.”31 Its ethnic composition illuminates the hold which non-Hawaiians had obtained on important government positions: of the Commission’s five members, two were Hawaiians, one was half-Hawaiian, and two were Westerners.32 Under the traditional land system, especially after the constitution of 1840, holdings of the king, chiefs and commoners were intertwined and undivided. Lacking guidelines to undertake the division of those interests, the Commission at first did not act on the bulk of Hawaiian lands. Instead it focused its immediate attention on building lots in Honolulu and Lahaina since this land had already left the feudal pro duction scheme.33 Claimants proving rights in these lands received Land Commission Awards specifically stating that the Commission found “no native rights of occupancy in this plot.”34 Although the con cept of fee simple was not part of the Hawaiian land system at that time, the Minister of Interior was authorized to issue fee patents based upon these awards.35 The Commission was thus able to resolve a num ber of land disputes which had developed with the foreign community.

30. Act of Dec. 10, 1845, ch. 7, § 1, 2 [1847] Hawaii Laws 107, in R e v ise d L a w s 1925 at 2120 (Thurston at 137). 31. Id. § 7 at 109, in R e v is e d L a w s 1925 at 2123 (Thurston at 138-39). 32. 1 H a w a iia n K in g d o m , supra note 1, at 280. 33. See 2 [1847] Hawaii Laws 84, in R e v ise d L a w s 1925 at 2127 (Thurston at 143). 34. For English language copies of early land Commission Awards and Royal Patents, see J. C h i n e n , O r ig in a l L a n d T it l e s i n H a w a ii 8-9 (1953). 35. Act of Dec. 10, 1845, ch. 7, § 9 [1846] Hawaii Laws 109, in R e v ise d L a w s 1925 at 2123 (T h u r s t o n at 139). But see 1 H a w a iia n K in g d o m , supra note 1, at 282- 84 for discussion of the limited government experiment in 1845 of selling small lots with fee simple title in the Makawao district of Maui and the Manoa valley on Oahu. 854 CALIFORNIA LAW REVIEW [Vol. 63:848

In 1846, the Commission adopted Principles,36 ratified by the leg islature,37 to guide its work with land still under the traditional system. The Westerner-dominated Commission perceived its goal to be a total defeudalization and partition of undivided interests.38 In discussing a fair and equitable division between king, chiefs, and tenants, the Prin ciples stated: If the King be disposed voluntarily to yield to the tenant a portion of what practice has given to himself, he most assuredly has a right to do it; and should the King allow to the landlord one-third, to the ten ant one-third and retain one-third himself, he, according to the uni form opinion of the witnesses, would injure no one unless himself; . . . According to this principle, a tract of land now in the hands of landlord and occupied by tenants, if all parts of it were equally valu able, might be divided into three equal parts . . . ,39 The specifics for fulfilling the Principles were much debated until a formulation drafted by a Westerner, Justice William Lee, was accepted by the king and chiefs in Privy Council on December 18, 1847. The Lee formulation distinguished the king’s private lands (those he held directly as noble) from lands he held as king and provided that he should retain all his private lands, with a right in his tenants “to a fee simple title to one-third of the lands possessed and cultivated by them” whenever the king or tenants desired.40 The remaining land of the kingdom was to be divided into thirds: one-third to the Hawaiian government, another third to the chiefs and land agents, and the final third to the tenant farmers.41 By paying the government, a chief or konohiki could also retain his proportional share of the one-third that was to go to the government.42

36. Principles Adopted by the Board of Commissioners to Quiet Land Titles in their Adjudication of Claims Presented to Them, Act of Oct. 26, 1846, 2 [1847] Hawaii Laws 81, in R e v ise d L a w s 1925 at 2124 (Thurston at 140). 37. The ratification declared that “all claims for landed property in this kingdom shall be tested by those principles and according to them be confirmed or rejected.” Resolution of the Legislative Council, 2 [1847] Hawaii Laws 94, in R e v ise d L a w s 1925 at 2137 (Thurston at 154). 38. Act of Oct. 26, 1846, 2 [1847] Hawaii Laws 81, 92, in R e v ise d L a w s 1925 at 2134 (Thurston at 151). 39. Id. at 83, in R e v ise d L a w s 1925 at 2126 (Thurston at 142-43). 40. Rules adopted by the Privy Council, Dec. 18, 1847, § 4, 4 P r iv y C o u n c il R e c o r d (1847), quoted in Alexander, A Brief History of Land Titles in the Hawaiian Kingdom, in T h r u m ’s H a w a iia n A l m a n a c a n d A n n u a l f o r 1891 at 112. 41. Id. at § 2. 42. Id. § 6 at 112-13. The commutation was often reduced or virtually eliminated by Privy Council action. Cf. 1 H a w a iia n K in g d o m , supra note 1, at 288. Moreover, many konohiki simply failed to make the payment. In 1892, after much of the land had passed into non-Hawaiian hands, a statute was passed setting the commutation as one-third the value of the land at the time of the Mahele, without interest. Act of Dec. 16, 1892, ch. 68, § 1 [1892] Hawaii Laws 165, in R e v is e d L a w s 1925 at 2151. 1975] HAWAIIAN LAND 855

The “Great Mahele”—or division—began January 27, 1848, and ended March 7. In the “Mahele Book,” the interests of 245 chiefs and konohiki were divided from the king’s private interest and the king quit-claimed his interest in specific ahupuaa and ill under each chiefs control. The chiefs reciprocally quit-claimed to the king their interests in the balance of the divided lands, which then became the king’s pri vate land subject only to commoners’ claims to one-third of that which they possessed and cultivated. Nevertheless, on March 8, 1848, the day after the last mahele between king and chiefs, the king “set apart forever to the chiefs and people of my Kingdom” approximately 1,500, 000 acres,43 retaining for himself, his heirs and successors approxi mately 1,000,000 acres. The latter were subsequently referred to as Crown lands and the former as Government lands. The Land Com mission then awarded the remaining 1,500,000 acres of the kingdom to the chiefs44 though these awards stated specifically that they were “re serving the rights of the people.”45 Total defeudalization of landholdings required the Commission to divide and parcel out the interests of the common people. An 1850 act46 allowed each tenant to apply for his own kuleana. The kuleana could come from the Crown lands, from the Government lands created by the king, or from the other 1,500,000 acres of the kingdom, and could only include land which a tenant had “really cultivated”47 plus a houselot of not more than a quarter of an acre.48 The tenant received a fee title to this land if the claim was proved before the Land Com mission and survey costs were paid.49 The Commission, the legisla ture, and the king had previously promised the commoners an un

Even then, a statute had to be adopted in 1909 to provide for enforcement of the pay ments. Act of April 20, 1909, Act 90, § 1, [1909] Hawaii Laws 118. 43. The division was affirmed by legislation. Act of June 7, 1848, [1848] Hawaii Laws 22, in R e v is e d L a w s 1925 at 2152. 44. See I sl a n d C o m m u n i t y , supra note 1, at 46; S h o a l o f T i m e , supra note 1, at 127. 45. An English language copy of such a patent can be found in J. C h i n e n , O rigi n a l L a n d T it l e s in H a w a ii 9 (1953). Because of this reservation, a kuleana award made later in time was good against an earlier patent. See Kekiekie v. Dennis, 1 Hawaii 69 (1851). 46. Act of Aug. 6, 1850, § 1 [1850] Hawaii Laws 202, in 2 R e v is e d L a w s 1925 at 2141. Actually, a joint resolution of the Legislature of Nov. 7, 1846 had similarly allowed the Minister of the Interior to divide out the interests of tenants. §§ 4-5 2 [1847] Hawaii Laws 71. However, little came of that power, probably because of insufficient government mechanisms to deal with it. 47. Act of Dec. 21, 1849, § 6, [1850] Hawaii Laws 203, in R e v is e d L a w s 1925 at 2142. 48. Id. § 5, in R e v ise d L a w s 1925 at 2142. 49. Except for houselots in Honolulu, Lahaina and Hilo, kuleana recipients did not have to pay any commutation in order to receive their titles. Id. § 2, in R e v ise d L a w s 1925 at 2141-42. 856 CALIFORNIA LAW REVIEW [Vol. 63:848 divided one-third interest in most of Hawaii.50 Although many his torians have viewed the Kuleana Act as a beneficent one,51 creating more than 8,000 yeoman holdings,52 commoners received divided title to fewer than 30,000 acres, less than one percent of the land.53 Many reasons have been advanced for the scant quantity of land that commoners received. One suggestion is that most commoners lacked even the small capital needed for the required survey. Another is that commoners did not apply for kuleana because they feared re prisals by chiefs and land agents.54 While these suggestions explain the number of commoner families receiving grants, the more cogent reason why commoners received so little kuleana land is that kuleana grants were severely limited by the “really cultivated” clause of the Kuleana Act. Furthermore, an act of the legislature barred all com moners’ land claims not proved by 18 54.55 Thus, the great bulk of Hawaiian people was separated from the lands of Hawaii. Trans ferable title to almost two-thirds of Hawaii was concentrated in the hands of the king and the 245 recipients of mahele grants. The failure of the kuleana to provide an adequate land base for Native Hawaiians was not merely a function of kuleana size. Historically, commoners had only small fields to work for their own benefit, but they also were able to use other non-cultivated lands within the ahupuaa in return for labor dues. In 1847, the legislature had specifically confirmed the

50. See text accompanying notes 39-41 supra. 51. See, e.g., L y d g a te , The Vanishing Kuleana, T h r u m ’s H a w a iia n A l m a n a c a n d A n n u a l f o r 1915 a t 103. 52. Recent research by Marion Kelly, historian, Bishop Museum, Honolulu, Ha waii determined the number of recipients to be 8205. Letter from Marion Kelley to Neil Levy, February 18, 1975. 53. 1 H a w a iia n K in g d o m , supra note 1, at 294. Compare the effect of the Gen eral Allotment Act, ch. 119, 24 Stat. 388 (1887) on mainland Indian tribes. Under the guise of turning Indians into yeomen farmers, that act gave interests in tribal prop erty to individual Indians and distributed the “excess” to non-Indians. See D. O ns, T h e D a w e s A c t a n d t h e A l l o t m e n t o f I n d ia n L a n d s (1973). 54. See, e.g., M o r g a n , H a w a ii— A C e n t u r y o f E c o n o m ic C h a n g e 1778-1876, at 137 (1948). 55. An Act Relating to the Board of Commissioners to Quiet Land Titles, [1853] Hawaii Laws 26, in R e v ise d L a w s 1925 at 2145. Under Hawaiian case law, decisions of the Land Commission could not later be collaterally attacked. Kaai v. Mahuka, 5 Ha waii 354 (1885); Kukiiahu v. Gill, 1 Hawaii 90 (1851). In the 1850’s one might have argued that the Kuleana Act merely divided out a small portion of the commoners’ interests under the Lee formulation and that the com moners should have been entitled to the remainder of those interests. If such a govern mental taking argument was made before the Land Commission or the Supreme Court of Hawaii, it did not succeed. It must be recalled that the Hawaiian Constitution of 1840 had no clause requiring compensation for the taking of property. The closest pro vision to a due process clause was the preamble which stated that “nothing whatever shall be taken from any individual except by express provision of law.” T r a n s l a t io n at 10 (Thurston at 1). 1975] HAWAIIAN LAND 857 common people’s right to grow crops for their own use and to pasture animals on unoccupied lands.56 The Kuleana Act withdrew the right to grow crops and pasture and merely provided some gathering rights,57 which meant little to a weak tenant surrounded by large fenced landholdings. Thus the foreigners heightened the hierarchical struc ture of Hawaiian society by removing its ameliorative qualities. The transformation to the modem Hawaiian land system was com pleted by creating formalized mechanisms for the sale of government lands and by allowing aliens to own land in Hawaii. Acts in 184658 authorized government land sales approved by the king and Privy Council and, by May 1, 1850, the government had sold over 27,000 acres under these laws.59 Subsequently, the Kuleana Act directed that portions of government land be set aside in lots of one to fifty acres for purchase by natives who did not qualify for kuleana60 and fixed a minimum price of 50 cents per acre.61 Although these laws allowed common people who had not received kuleana the chance to own land, they did so at the price of establishing the principle that government land could be sold off. By 1852, thousands of acres of prime Hawaiian land were in the hands of foreigners. More importantly, Western prop erty concepts were imposed on the legal structure and would facilitate the rapid, steady takeover of Hawaiian-owned lands during the next several decades. Moreover, the government’s commitment to selling its remaining land put Westerners, with their access to capital, in a position to take Hawaiian land through the legal procedures they had estab lished.62 Western Imperialism had been accomplished without the usual bothersome wars and costly colonial administration. Apologists for missionaries and other early Westerners might ar gue that the introduction of nineteenth-century Western property no

5 6 . Resolution of November 7, 1 8 4 6 , §§ 1-2, 2 [1847] Hawaii Laws 7 0 . 57 . Act of August 6, 1850, § 7, [1850] Hawaii Laws 2 0 3 , in R e v is e d L a w s 1925 at 2 1 4 2 . Oni v. Meek, 2 Hawaii 8 7 ( 1 8 5 8 ) interpreted the Kuleana Act as implicitly repealing all former gathering rights. 5 8 . Law of April 2 7 , 1 8 4 6 , ch. 7, §§ 1-3, [1846] Hawaii Laws 9 9 -1 0 3 , in R e v ise d L a w s 1925 at 2190; Resolution of Nov. 7, 1846, § 6, 2 [1847] Hawaii Laws 7 1 . 5 9 . P a g e a n t , supra note 1, at 54. 6 0 . Act of August 6, 1850, § 4, [1850] Hawaii Laws 2 0 3 , in R e v is e d L a w s 1 9 2 5 at 2 1 4 2 . 6 1 . Act of July 11, 1851, [1851] Hawaii Laws 5 2 -5 3 . 62 . An 18 4 7 amendment of the Land Commission law permitted foreigners to re ceive title to lands in which they had had an interest before 1 8 4 5 . Act of June 2 8 , 1847, 2 [1847] Hawaii Laws 7 8 , in R e v ise d L a w s 1 9 2 5 at 2 2 3 3 . A limitation in that amendment, which provided that Western-held land could only be resold to Native Ha- waiians, was negated by legislation in 1 8 5 0 : Act of July 10, 1850, [1850] Hawaii Laws 1 4 6 -1 4 7 , in R e v ise d L a w s 19 2 5 at 2 2 3 3 -3 4 . The 1 8 5 0 legislation allowed any resident of Hawaii to own land regardless of citizenship. The sole disability against foreign property owners, concerning escheatment, was removed in 1 8 5 4 . Act of June 2 8 , 1854, [1854] Hawaii Laws 15, in R e v is e d L a w s 1 9 2 5 at 2 2 3 5 . 858 CALIFORNIA LAW REVIEW [Vol. 63:848 tions helped break a pernicious feudal system, or that the Western com munity in Hawaii could not have foreseen the harsh effects of defeudalization and the difficulties which a people face in turning from a feudal to a capitalist economy. A more realistic observer can conclude, how ever, that the foreigners were motivated by greed. Rev. Richard Arm strong wrote to his brother on January 15, 1850: The government has lately granted fee simple titles to all the natives, for the land they have lived on and occupied. This gives the final blow to the old feudal system and makes this a nation of freeholders. It is a point for which I have long contended and finally on my own motion it was carried by the King and Council. On their part it lost a great struggle as it cuts them off, at once, from the labour of all their tenants, and they must now work their lands by hired labour. This will compel them to sell their waste lands of which they have an abundance.63 D. The Plantation Economy With a permanent population of fewer than two thousand, West erners took over most of Hawaii’s land in the next half-century64 and manipulated the economy for their own profit.65 They had already stripped the land of its only readily exploitable resource, sandalwood.66 After the Reciprocity Treaty of 1876,67 which allowed Hawaiian sugar to enter the United States duty-free, Western-owned sugar plantations dominated the Hawaiian economy.68 That the local population did not participate in this economy proved no obstacle; laborers were imported from the Orient and Europe.69 By the turn of the century Hawaiians were a minority in their own homeland.70

63. Letter on file in Library of Congress, Armstrong-Chapman papers; copy on file, Hawaiian Mission Children’s Society, Honolulu, Hawaii (emphasis added). 64. In 1897, the Western 9 percent of the population, owned 67 percent of the taxable lands, while Hawaiians and part-Hawaiians owned only 24 percent. I s l a n d C o m m u n i t y , supra note 1, at 57. 65. For detailed histories of Hawaii during this period see generallyR. H o r o w it z , L. V arg h a , I. F i n n , & I. C e a s e r , P u b l ic L a n d P o l ic y i n H a w a ii: A n H is t o r ic a l A n a l y s is (Legislative Reference Bureau Report No. 5, 1965) [hereinafter cited as H ist o r ic a l A n a l y s is ]; 2 R. K u y k e n d a l l , T h e H a w a iia n K in g d o m 1854-74 (1953) [hereinafter cited as 2 H a w a iia n K in g d o m ]; 3 R. K u y k e n d a l l , T h e H a w a iia n K in g d o m 1874-93 (1967) [hereinafter cited as 3 H a w a iia n K in g d o m ]; I. M o r g a n , H a w a ii: A C e n t u r y o f E c o n o m ic C h a n g e (1948) [hereinafter cited as C e n t u r y o f E c o n o m ic C h a n g e ]. 66. C e n t u r y o f E c o n o m ic C h a n g e , supra note 65, at 61-68. 67. Treaty with Hawaiian Islands, January 30, 1875, [1875] 19 Stat. 625, T.S. No. 161; Act of July 18, 1876, ch. 2, [1876] Hawaii Laws 4-6. 68. By 1898, 125,000 acres were in cane sugar. See 3 H a w a iia n K in g d o m , supra note 65, at 62. This acreage was the best on the Islands and its economic importance was greater than its proportion of land. 69. C e n t u r y o f E c o n o m ic C h a n g e , supra note 65, at 188-194. 70. In 1896, Hawaiians and part-Hawaiians constituted about 35 percent of the population. A. L in d , H a w a h ’s P e o p l e 27 (1967). 1975] HAWAIIAN LAND 859

Plantations were made possible by legislation enabling Westerners to purchase large tracts of government land,71 pursuant to which the kingdom sold over 600,000 acres by 1893 at an average price of 92 cents per acre.72 Although Native Hawaiians made the largest number of purchases, the bulk of the acreage went to Westerners. For ex ample, before 1864, more than 320,000 acres were sold to only 213 Westerners.73 In the following year the entire island of Niihau, over 61,000 acres, was sold to one Western entrepreneur.74 Westerners also accumulated Crown lands via leasehold arrangements despite the fact that the Crown lands had been made inalienable in 18 65.75 By 1890, 76 lessees controlled 752,431 acres of Crown and government land by leasing at an annual rate of pennies per acre.76 Some Westerners acquired large amounts of acreage for planta tions by overreaching or actual fraud. In 1880, Claus Spreckels, the California sugar baron, purchased from a descendant of Kamehameha I all her rights in the Crown lands.77 Although this claim had no legal value since Crown lands were inalienable, Spreckels persuaded the 1884 legislature to give him 24,000 acres of high quality sugar land in ex change for his asserted claim.78

71. Statutes cited notes 58 and 62 supra. Until the Act of September 25, 1876, [1876] Hawaii Laws 118-119, such sale did not have to be at auction. 72. See H ist o r ic a l A n a l y s is , supra note 65, at 186. 7 3 . Compare the purchase during the same period of approximately 90,000 acres by 33 3 Native Hawaiians. Statistics compiled by the author from C ommissioner o f P u b l ic L a n d s o f t h e T e r r it o r y o f H a w a ii, I n d ic e s o f A w a r d s (1929), containing entries of grantees and acreage for all Royal Hawaiian government land grants. 74. C ommissioner o f P u b l ic L a n d s o f t h e T e r r it o r y o f H a w a ii, In d ic e s o f A w a r d s 10 (1929). 75. Upon the death of Kamehameha IV in 1865, Queen Emma applied under the intestate succession laws for a one-half interest in the estate and a right of dower in the remaining half. Ruling against her, the Hawaiian Supreme Court declared that de spite the clear intent of Kamehameha III during the Mahele to have the Crown lands treated as private property, they belonged to the possessor of the Crown, subject only to a dower right. In re Kamehameha IV, 2 Hawaii 715 (1864). This litigation led to legislation which affirmed the decision of the court and further declared that all land remaining with the Crown “shall be henceforth inalienable, and shall descend to the heirs and successors of the Hawaiian Crown forever.” Act of January 3, 1865, § 3 [1864] Hawaii Laws 70, in R e v is e d L a w s 1925 at 2178. This act also substituted an income of $6,000 for the Queen’s dower and provided for bonds to redeem existing mortgages. 7 6 . H ist o r ic a l A n a l y s is , supra note 65, at 137. 77. S h o a l o f T i m e , supra note 1, at 225. 78. Act of July 21, 1882, ch. 10, [1882] Hawaii Laws, in R e v is e d L a w s 1925 at 2179. Under a statute that authorized government land exchanges, Act of August 14, 1895, § 17, [1895] Hawaii Laws 56-57, Charles Gay exchanged slightly fewer than 300 acres on Oahu for 48,000 acres on Lanai. R. H o r o w it z , P u b l ic L a n d P o l ic y in H a w a ii: L a n d E x c h a n g e s (Legislative Reference Bureau Report No. 2, 1964) 14-15. McCandless v. Carter, 18 Hawaii 221 (1907) upheld this questionable transaction. 860 CALIFORNIA LAW REVIEW [Vol. 63:848

In 1865, Joseph H. Morrison measured the dimensions of an ahupuaa of almost 50,000 acres, reported to the Hawaiian owner that the ahupuaa was only 1,200 acres, and then purchased it for a mere $600. The court set aside the transaction, relying not only upon the disparity between the sales price and the true value, but also on the relationship of trust between the buyer and seller.79 In other cases, however, courts upheld transactions where the evidence strongly sug gested an illiterate seller sold property for far less than its true value, or was confused about the nature of the transaction.80 Intermarriage between Western men and the daughters of land- rich Hawaiians also resulted in the loss of Native Hawaiian control over land.81 The courts facilitated this loss of land. For example, one de cision voided an attempt by a Hawaiian woman to transfer land to her brother and thus out of the control of her Western husband.82 The administration of the Bishop Estate illustrates another instance in which Native Hawaiians lost control of the land.83 When Bernice Pauahi Bishop, the last descendant of Kamehameha I, died in 1884, her estate included more than 375,000 acres.84 The bulk of her estate was be queathed to a charitable trust, administered by five named Westerners, whose successors were to be appointed by a majority of the justices of the supreme court.85 Thus, even if the charitable estate had been ef ficiently managed for the benefit of Native Hawaiians, as the testator intended, control of almost 10 percent of the land of Hawaii passed out of Hawaiian hands as a result of the disposition. As Rev. Armstrong had predicted,86 the chiefs who had been accustomed to the feudal la bor dues system were unable to manage cash plantations and many large estates were lost through debts and mortgage foreclosures.87

79. Kapaakea v. Morrison, 2 Hawaii 272 (1860); see also Ainini v. Kala, 6 Ha waii 16 (1869); Kapea v. Moehonua, 6 Hawaii 49 (1871). 80. See, e.g., Kanakanui v. Leslie, 7 Hawaii 223 (1888); Namomi v. Ah Nui, 5 Hawaii 441 (1885); Kapaukea v. Lawrence, 4 Hawaii 674 (1873). 81. Although the descendants are obviously part-Hawaiian, subsequent marriages to Westerners have led to a present landholding class whose cultural identity differs from the bulk of landless Hawaiians. 82. Mutch v. Holau, 5 Hawaii 316 (1885). 83. For discussion of present problems of the Bishop Estate, see text accompany ing notes 171-217 infra. 84. This accumulation of land in the estate of one person occurred because of the scarcity of heirs in the Kamehameha line. See Midkiff, The Kamehameha Schools and the Bishop Estate, in T h e K a m e h a m e h a S c h o o l s— 7 5 t h A n n iv e r s a r y L e c t u r e s 163- 64 (1965). 85. Will of Bernice Pauahi Bishop, 14, Equity file No. 2048 (Hawaii Cir. Ct., 1st Cir., December 2, 1884). Cited in relevant part in Kekoa v. Supreme Court, 55 Hawaii 174, 516 P.2d 1239, 1241 (1973). 86. See text accompanying note 63 supra. 87. For account of an early mortgage granted by Native Hawaiians, see, e.g., May v. Haalelea, 2 Hawaii 191 (1859). 1975] HAWAIIAN LAND 861

As Westerners gained control over government lands and holdings of the Native Hawaiian aristocracy, the kuleana became easier to ob tain and the majority of these minimal holdings were soon lost.88 The kuleana owners were frequently harassed by the illegal diversion of water and by foraging cattle from large ranches.89 Without the former concomitant rights to grow crops and pasture animals on unoccupied land in the rest of the ahupuaa,m the kuleana could not provide their owners with a subsistence living. The economic difficulties in main taining them, plus the absence of restraints on alienation, frequently led to sales at nominal prices.91 Kuleana which had been leased to Westerners were never returned92 because natural landmarks disap peared when the kuleana became part of plantations.93 Kuleana were lost to larger surrounding landholders by frequent invocation of the doc trine of adverse possession.94

E. The Republic and the Annexation

Westerners, having asserted economic dominance over the Islands by the 1880’s, turned to the establishment of complete political con trol.95 Influential Western growers formed the Hawaiian League in 1887, whose stated goals were to end corruption in the Hawaiian gov ernment and to reduce the monarch’s power.96 The group staged a coup d’etat on July 6, 1887, forcing the king to promulgate a new con stitution to replace the constitution of 1864. The “Bayonet Constitu tion” substituted the power of Western landowners for that of the king.97 The upper class of legislators, previously appointed by the king from the Native Hawaiian nobility,98 was now to be elected by those

88. For discussion of the current problems of remaining kuleana, see text accom panying notes 145-70 infra. 89. See discussion of the history of cattle on the Islands in Davis v. Green, 2 Ha waii 367 (1861). See also C e n t u r y o f E c o n o m ic C h a n g e , supra note 65, at 169. 90. See text accompanying notes 56-57 supra. 91. Cf. I s l a n d C o m m u n i t y , supra note 1, at 47-52. 92. Id. 93. See Wise, History of Land Ownership in Hawaii, in A n c i e n t H a w a iia n C iv il iz a t io n 89-90 (1956). 94. See text accompanying notes 160-70 infra. 95. See generally S. S t e v e n s , A m e r ic a n E x p a n s io n in H a w a ii, 1842-1898 (1945) [hereinafter cited as A m e r ic a n E x p a n s io n ]; M. T a t e , T h e U n it e d St a t e s a n d t h e H a w a iia n K in g d o m (1965) [hereinafter cited as U.S. a n d t h e H a w a iia n K in g d o m ]. 96. See 3 H a w a iia n K in g d o m , supra note 65, at 347-49. 97. For example, the absolute veto power of the monarch under the constitution of 1864, art. 31, was reduced to a limited veto power in the constitution of 1887, art. 48, in Thurston at 173, 187. 98. Constitution of 1864, art. 45, in Thurston at 174. 862 CALIFORNIA LAW REVIEW [Vol. 63:848 who paid taxes," from a field of candidates limited to wealthy land owners.100 Americans and Europeans residing in Hawaii, who were literate in any Western language and met the taxpaying criteria, did not have to be citizens to vote,101 while illiterate Hawaiians under the age of 47 were barred from voting.102 The political victory of 1887 did not satisfy the desires of those Americans who wanted Hawaii annexed to the United States; and in the 1890’s they formed the Annexation Club.103 In 1893, when Queen Liliuokalani threatened to proclaim another constitution increasing the crown’s power,104 the American merchant community organized to overthrow the monarchy. Even after the Queen had clearly abandoned her plan,105 the Americans continued their opposition under the name of the Committee of Public Safety. On January 16, 1893, John L. Ste vens, the United States Minister in Hawaii and a long-term friend of the annexationists,106 ordered marines to land in Honolulu. His excuse for invading was to protect American citizens and property.107 The in surrectionists proclaimed a provisional government which Stevens re cognized even before the Queen’s chief lines of defense had surren dered. The Queen realized that her forces could not defeat the aimed merchants and the United States Marines. In order to prevent futile bloodshed, she relinquished her governmental authority. The reaction on the mainland against United States military involvement in the rev olution temporarily prevented the annexation which the merchant revo lutionaries had planned.108 The provisional government therefore es tablished the Republic of Hawaii, which lasted until annexation in 1898.

99. Constitution of 1887, art. 59, in Thurston at 189. 100. Constitution of 1887, art. 56, in Thurston at 188. 101. Constitution of 1887, art. 59, in Thurston at 189. 102. Constitution of 1887, art. 62, in Thurston at 190. 103. A m e r ic a n E x p a n s io n , supra note 95, at 206-08. 104. See U.S. a n d t h e H a w a iia n K in g d o m , supra note 95, at 155-91. 105. Id. at 173. 106. A m e r ic a n E x p a n s io n , supra note 95, at 187. 107. See U.S. a n d t h e H a w a iia n K in g d o m , supra note 95, at 176. 108. For example, President Cleveland, in refusing to submit a treaty of annex ation to the Senate in 1893, pointed to the unethical role the United States had played. But for the notorious predilections of the United States Ministei for Annexation, the Committee of Safety, which should be called the Committee of Annexation, would never have existed. But for the landing of the United States forces upon false pretexts respecting the danger to life and property the committee would never have exposed themselves to the pains and penalties of treason by un dertaking the subversion of the Queen’s Government. But for the presence of the United States forces in the immediate vicinity and in position to afford all needed protection and support the 1975] HAWAIIAN LAND 863

The constitution of the Republic expropriated109 the Crown lands, without compensation to the monarch,110 and made them available to Westerners for purchase. Although leaving Mahele lands to the de scendants of lesser chiefs and their transferees,111 the Western minority had secured control over another vast part of Hawaii. The Land Act of 1895112 provided for the disposition of some former Crown lands as homesteads.113 Only citizens could apply for homesteads114 and the exclusion of most Orientals from citizenship115 limited homesteading to Hawaiians and Westerners.116 The portion of the Act most suited to Native Hawaiians provided for 999-year leases of small acreage at no cost.117 The leases, however, were inalienable and could not be de

committee would not have proclaimed the provisional government from the steps of the Government building. P r e s id e n t ’s M e ssa g e R e l a t in g t o t h e H a w a iia n I s l a n d s , H .R . E x e c . D o c . N o . 4 7 , 53d Cong., 2d Sess. XIII (1893). 109. See constitution of 1894, art. 95, [1895] Hawaii Laws 118, in Thurston at 237. 110. Queen Liliuokalani brought suit against the United States for compensation, but this claim was denied. Liliuokalani v. United States, 45 Ct. Cls. 418 (1910). 111. King Kamehameha III had separated his private lands from those of the gov ernment to safeguard them from Western takeover. In debate in the Privy Council, June 6, 1848, G.P. Judd had stated that it was necessary for the King to divide his private lands from the lands of the government because, “If no explanation of this kind is made, it will mix matters later on, and some of the foreigners will come later on and say they have an interest in the lands too.” Debates of the Privy Council in 1848 at 42, June 6, 1848, on file in Hawaii State Archives. 112. Act of August 14, 1895, Act 26, [1895] Hawaii Laws Spec. Sess. 49-83. 113. Homesteading had been previously provided for by Act of August 29, 1884, ch. 45, [1884] Hawaii Laws 86, in R e v ise d L a w s 1925 at 2200. However, only 527 homesteads were taken out under this previous act and subsequent amendments, and of those only 337 were patented. H o u s e C o m m , o n t h e T e r r it o r ie s G o v e r n m e n t f o r th e T e r r it o r y o f H a w a ii, H.R. R e p . N o . 305, 56th Cong., 1st Sess. 65 (1900). The 1895 Land Act provided for continued auction sales of land, but limited the size of par cels to 1000 acres. Act of August 14, 1895, Act 26, § 17, [1895] Hawaii Laws 56. 114. Act of August 14, 1895, Act 26, § 31 [1895] Hawaii Laws Spec. Sess. 62. 115. Constitution of 1894, art. 17-18, [1895] Hawaii Laws 79, in Thurston at 205- 206. The constitution provided citizenship for only those Orientals bom or naturalized in the Republic of Hawaii. The effect of this naturalization requirement was to exclude most Orientals from homesteading eligibility. 116. The Land Act was conceived by plantation owners as a means to attract white labor and to prevent an Oriental takeover by the Chinese and Japanese plantation work ers they had imported. See essays by Hawaiian President Sanford B. Dole in 2 H a w a iia n K in g d o m , supra note 95, at 192. Dole wrote, “The problem of population is only to be worked out through far more comprehensive efforts, which shall aim to bring settlers and citizens rather than convicts and coolies . . . .” 117. Act of August 14, 1895, Act 26, §§ 28-55, [1895] Hawaii Laws Spec. Sess. 61. The Land Act of 1895 also provided a right of purchase lease designed for impoverished potential agricultural entrepeneurs (id. §§ 59-64 at 75) and a cash freehold for those who had capital (id. §§ 65-70 at 78). The Commissioners of Public Land also sold land for cash plus credit (id. § 17 at 56) and thus fashioned what have frequently been referred to as “Special Homestead Agreements,” primarily with Westerners. 864 CALIFORNIA LAW REVIEW [Vol. 63:848 vised, but would descend to statutory heirs.118 An analysis of home steading in the first years after the Land Act indicates that Native Hawaiians were not the main beneficiaries.119 Changing attitudes in the United States concerning imperialism permitted Hawaiian annexation in 18 9 8,120 but annexation did not im mediately affect the homesteading program. Although the joint New- lands Resolution of Annexation ceded all public lands of the Republic ■of Hawaii to the United States,121 it affirmed the validity of “municipal legislation of the Hawaiian Islands”122 and the public land laws of the United States were made inapplicable to Hawaii.123 Ironically, a 1910 amendment to the Organic Act,124 which was designed to facilitate the homesteading programs, became the precursor of their demise. It di rected the Territory to open land in a given locality when 25 or more qualified homesteaders applied for that land.125 For the sugar inter ests, this amendment could not have come at a less opportune time. A large number of long-term leases on crown lands were due to expire during the 1920’s and 1930’s, and thus could become open to home steading under the 1910 amendment.120 For example, a prime sugar tract previously leased to the Waiakea Mill Company near Hilo had been opened to homesteading in 1918.127 Although the Mill Company leased back virtually all the land within several years, the industry un doubtedly wished to avoid the costs of regaining homestead land. An entirely different problem provided the rationale for legislation to protect the sugar industry from homesteading. During this period,

118. Act of August 14, 1895, Act 26, § 43, [1895] Hawaii Laws Spec. Sess. 67. Under Public Law No. 746 (1950) these 999-year leases can be converted to fee at the holder’s option. Act of Sept. 1, 1950, ch. 833, 64 Stat. 572, as amended, Act of Aug. 23, 1954, ch. 824, 68 Stat. 764. 119. H ist o r ic a l A n a l y s is , supra note 95, at 11, 14. Although homesteading continued into the twentieth century, the initial benefits to Hawaiians were ultimately lost. By 1951, fewer than 10 percent of the homestead leases remained in Native Hawaiian hands. G. L u t e r , R e p o r t o n H omesteading in H a w a ii 1839-1961 (Jan. 3, 1961) at 15, on file Hawaiian State Dept, of Land and Natural Re sources. The lack of capital to fulfill the development condition of the leases and the ban on testamentary disposition were partly responsible for these relinquishments. 120. A m e r ic a n E x p a n s io n , supra note 65, at 293-99. 121. Joint Resolution of July 7, 1898, No. 55, 30 Stat. 750 (1898). 122. Id. § 1. 123. The Newlands Resolution had transferred fee title to the United States but the Territorial Government interpreted the Resolution as allowing continued disposal of pub lic lands. The Organic Act specifically validated those problematic transactions, but it did not significantly affect homesteading. Act of April 30, 1900, ch. 339, §§ 73, 91, 31 Stat. 141. 124. Act of May 27, 1910, ch. 258, § 5, 36 Stat. 443. 125. Id. 36 Stat. 443, 446. 126. See generally R e p o r t o f t h e W aiak ea H o m e s t e a d C o m m is s io n (1926). 127. Id. at 12. 1975] HAWAIIAN LAND 865 racial consciousness was rising among Hawaiians and part-Hawaiians, and the Hawaiian leadership perceived that the Hawaiians were a dying race.128 The Hawaiian Protective Association suggested that Native Hawaiians be “rehabilitated” by removing them from the influences of city tenements and returning them to the land.129 The result was the Hawaiian Homes Commission Act of 1920130 which, by its terms, pur ported to mitigate the perceived racial problem. Although the act may be cited as a humanitarian effort for the surviving descendants of an in digenous people, it was enacted by sugar barons who would not tolerate accelerated homesteading.131 A deal was struck: some second-class lands would be put aside for Native Hawaiians under the new program and, in return, all cultivated sugar lands would be withdrawn from home steading.132 Although the Commission was authorized to lease parcels to Na tive Hawaiians for 99 years at nominal rates,133 the land made available was arid and of marginal agricultural value.134 Hawaiians, in many in stances several generations removed from agricultural life, were thus to rehabilitate themselves on land that experienced farmers would not touch.135 Furthermore, homesteaders’ land rights were limited: they could not sublet, transfer or mortgage the land to non-Hawaiians and they even needed Commission approval to transfer to Hawaiians.136 Finally, the Act provided little financial assistance to Native Hawaiians desiring to erect homes and begin farming operations.137

128. Cf. A. L in d , H a w a ii’s P e o p l e 17-18 (1955). Hindsight demonstrates that b y 1920, the population of part-Hawaiians was increasing faster than the population of pure Hawaiians was decreasing. Id. 129. M. Vause, Hawaiian Homes Commission Act, 1962 (unpublished thesis in Uni versity of Hawaii Library) 119. 130. Act of July 9, 1921, ch. 42, 42 Stat. 108. 131. See generally M. Vause, Hawaiian Homes Commission Act, 1962 (unpublished thesis in University of Hawaii Library). 132. Withdrawal was authorized by Congress in the Act of July 9, 1921, ch. 42, §§ 203, 212, 42 Stat. 109, 112. 133. Id. §§ 207(a), 208(2), 42 Stat. 109-11. 134. Approximately 200,000 acres of public land were “made available” to the Ha waiian Homes Commission, which was a branch of the territorial government. Act of July 9, 1921, ch. 42, § 203, 42 Stat. 109. See text accompanying notes 218-52 infra for discussion of current problems of the Hawaiian Homes program. 135. At that time, Governor McCarthy of Hawaii stated that if better lands were made available to Hawaiians, “the main object of the measure would be defeated as the Hawaiians would not work the land themselves but would have the work done by Japa nese.” Letter from Governor McCarthy to Secretary of the Interior Payne, June 30, 1920, in M. Vause, Hawaiian Homes Commission Act, 1962 (unpublished thesis in Uni versity of Hawaii Library) 117. 136. Act of July 9, 1921, ch. 42, § 208(5), 42 Stat. 111. 137. The Commission could lend prospective homesteaders up to $3,000. Id. §§ 214-15, 42 Stat. I l l , 112. 866 CALIFORNIA LAW REVIEW [Vol. 63:848

In return, the Organic Act was amended to provide that non-home stead leases of public land would be for 15 years and that those leases could not be withdrawn to meet new demands for homestead leases.138 Since no one could outbid the sugar interests for these leases, the indus try obtained the use of the best lands in Hawaii. In fact, the sugar interests had bought virtually permanent use of government-owned sugar lands. Homesteading, except by Native Hawaiians under the Hawaiian Homes program, came to an end.139 Poorer Caucasians and Hawaiian- born Orientals, who as United States citizens would have been eligible for homesteading, were denied access to public lands since only persons possessing “not less than one-half part of the blood of the races inhabit ing the Hawaiian Islands previous to 1778”140 were eligible under the Act. II

P r e s e n t L a n d P r o b l e m s o f N a t iv e H a w a iia n s Almost 20 percent of Hawaii’s population has some Native Hawaiian ancestry.141 Great variation in wealth and degree of assimi lation exists among Native Hawaiians, but generally that community is one of the poorest ethnic groups within the State today.142 As real es tate values in Hawaii rise, the number of geographic areas in which Na tive Hawaiians are able to purchase land or can afford to live decreases. Since Native Hawaiian culture has been tied to the land,143 a land base is necessary for those Hawaiians who choose a traditional way of life. In addition, sufficient urban homeland must be assured so that economic necessity will not force Native Hawaiians to leave the Islands that form the basis of their cultural identity.144 In exploring possible methods to preserve and increase the land base of Native Hawaiians, this section will focus on the problems faced by Native Hawaiian kuleana holders: these problems are representa tive of those confronting other Native Hawaiian owners of small acreage fee interests. The section will then examine the Bishop Estate and the Hawaiian Homes program, the two most important potential land bases

138. Compare Act of April 2, 1908, ch. 124, 35 Stat. 56 with Act of July 9, 1921, ch. 42, § 304, 42 Stat. 117. 139. From 1921 to 1946 only one tract of land was opened for general homestead in g . H a w An (T e r r it o r y ) L a n d L a w s R e v is io n C o m m is s io n , F in a l R e p o r t 44 (1946). 140. Act of July 9, 1921, ch. 42, § 2 0 1 (a )(7 ), 42 Stat. 108. 141. See T. F is h e r , H a w a ii: G r o w in g P a in s in P a r a d ise 12 (1973). 142. See generally D. Tuttle, Hawaii Voting Behavior: A Guide to Estimated Social and Economic Characteristics, 1972 (unpublished thesis in University of Hawaii Li brary). 143. See generally Handy, Handy & Pukui, Native Planters in Old Hawaii, in B er n ic e P. B is h o p M u s e u m B u l l . N o . 233. 1 4 4 . Today most Native Hawaiians live in or near Honolulu. S t a t e o f H a w a ii, T h e S t a t e o f H a w a h D a t a B o o k , A S t a t ist ic a l A b s t r a c t 8 ( 1 9 7 4 ) . 1975] HAWAIIAN LAND 867

for Native Hawaiian utilization. Finally, it will analyze the current land reparation claim of Native Hawaiians.

A. Protection of Kuleana Rights

Despite the loss of many kuleana,145 a significant number are still held by Native Hawaiians, particularly in rural areas such as East Molokai. Inherited kuleana constitute an important source of land held in fee by impoverished Native Hawaiians.146 These plots, and the gathering rights they confer,147 have provided adequate homesites for nuclear or extended Hawaiian families. However, three major legal obstacles bar full use of many kuleana.

1. Fractionated Ownership

A kuleana that one person received in the 1850’s may now be owned by dozens of individuals if, in the intervening generations, the property passed by intestate succession.148 Although each joint owner has a legal right to enter and use the land,149 no one has much incentive to improve the land or pay taxes150 if title is so clouded that ownership is perceived as only temporary. Even if estate counseling were feasible and effective for the future, legal assistance would be necessary to un tangle those kuleana interests which are already fractionated. If the number of joint owners is relatively small, there are three pos sible remedies. First, one joint owner can buy out the others. Second, the kuleana can be partitioned and each joint owner given title to a

145. Several studies indicate how few kuleana were retained by Native Hawaiians. One estimate is that no more than one-third of the 937 kuleana on Kauai were securely held by Hawaiians in 1915. J. Lydgate, The Vanishing Kuleana, in T h r u m ’s H a w a iia n A l m a n a c a n d A n n u a l f o r 1915 at 109. Although the percentage was likely to have been greater on the outer islands, a recent survey indicated that in densely populated Oahu less than 6.6 percent of the kuleana were still in Hawaiian hands as of 1936. I s l a n d C o m m u n i t y , supra note 1, at 49. 146. Interview with Fred Bicoy, West Molokai Community Advisor, Office of Eco nomic Opportunity, in East Molokai, July 27-29, 1973. 147. The ahupuaa historically ran from the mountains to the sea, with gathering rights for residents extending throughout this area. Today, lawful occupants of kuleana retain these rights. They may take firewood, house timber, aho cord, thatch and ki leaf for their own use. H a w a ii R e v . S t a t s . § 7-1 (1968). 148. As with mainland Indians, the imposition of a foreign inheritance scheme has led to ownership patterns neither traditional nor typical of Western landholding. See Comment, Too Little Land, Too Many Heirs—The Indian Heirship Problem, 46 W a s h . L . R e v . 709 (1971). 149. See Moranho v. De Aguiar, 25 Hawaii 267, modified, 25 Hawaii 271 (1920); Lui v. Kaleikini, 10 Hawaii 391 (1896). 150. The nonpayment of taxes is a recurrent cause of loss of kuleana. Interview with Fred Bicoy, East Molokai Community Adviser, Office of Economic Opportunity, in East Molokai, July 28, 1973. 868 CALIFORNIA LAW REVIEW [Vol. 63:848 portion of the land.151 Finally, if joint owners prefer to retain un divided ownership, title can be assigned to a mutually-owned corpora tion, trust, or partnership with the power to assure payment of taxes and to enforce agreed-upon land use patterns. The owners of a kuleana, however, may be so numerous as to ren der the latter two solutions infeasible. Effective use of the land may require one or more of the joint owners to purchase the interests of others. The risk inherent in this approach is that impoverished Native Hawaiians may lose their only access to land ownership as they are bought out by more financially able Hawaiians. Only infusion of money from government or charitable sources will allow financially needy joint owners to undertake acquisition. Perhaps if kuleana ownership is viewed as a base of self-support for people who might otherwise need continual financial assistance, public funding is politically possible.

2. Inadequate Access Since large plantations and developments surround kuleana, many roads leading to them are indirect or in such poor condition as to ren der them impassable to modem transportation. Legal tools already ex ist to remedy this problem: the doctrine of easements by necessity, for example, has been consistently recognized by Hawaiian courts.152 In applying this doctrine, the courts have not required prior ownership by a single person of both the servient and dominant estates,153 nor, if the property is landlocked, have they required that the right-of-way be ab solutely necessary.154 The easement must be “reasonably” necessary; that is, other access must be either difficult or expensive to use.155 Thus, convenient right-of-way presently used by a kuleana holder can usually be upheld even if the user cannot establish a prescriptive ease ment. In addition, statutory sanction exists for rights-of-way to kuleana. Hawaiian law still retains the 1850 statute establishing kuleana, which declares that, “the people shall have . . . the right of way. . . . The roads shall be free to all, on all lands granted in fee simple.”156 This provision has been used as historical evidence to strengthen the theory

151. H a w a ii R e v . S t a t s . § 6 6 8 (1968) provides procedures for partition of real es tate. Of course, compliance with zoning laws concerning subdivision of property would also be necessary. 152. See Palama v. Sheehan, 50 Hawaii 298, 440 P.2d 95 (1968). 153. Henry v. Ahlo, 9 Hawaii 490 (1894). 154. Palama v. Sheehan, 50 Hawaii 298, 301, 440 P.2d 95, 98 (1968); Enos v. Wa Sing, 4 Hawaii 457 (1882). 155. See, e.g., Kalaukoa v . Keawe, 9 Hawaii 191, 193 (1893). 156. H a w a ii R e v . St a t s . § 7-1 (1968) (originally enacted as Act of August 6, 1850, § 7, [1850] Hawaii Laws 202); R e v ise d L a w s 1925 at 2142. 1975] HAWAIIAN LAND 869 of right-of-way by necessity.157 It should also be used as an inde pendent ground to establish access to land. There is precedent using an cient Hawaiian custom and usage to determine modern property rights. For example, the court has considered the purpose of laws enacted at the time of the Great Mahele in order to resolve a current water rights issue.158 Since the problems of the kuleana also stems from the Great Mahele, a similar approach should be taken to preserve access.159

3. Adverse Possession

Fractionated ownership and lack of access often lead to disuse of kuleana plots which, in turn may lead to permanent loss of possessory rights through adverse possession. The doctrine of adverse possession denies to the legal owner of land the ability to use the courts to eject one who has occupied that land for a statutory period160 in an open, hostile, notorious, and exclusive manner.161 Doctrines developed in other jurisdictions that would stay this trend, and limit the application of adverse possession, have not been adopted in Hawaii.162 Rather, adverse possession has been used primarily by large landholders to ab sorb the enclosed kuleana of Native Hawaiians.163 Although a large

157. Palama v. Sheehan, 50 Hawaii 298, 300, 440 P.2d 95, 97 (1968). 158. McBryde Sugar Co. v. Robinson, 54 Hawaii 174, 504 P.2d 1330, aff’d on re hearing, 55 Haw. 260, 517 P.2d 26 (1973), appeal dismissed, 417 U.S. 962 (1974). 159. Traditional rights of kuleana owners might also be used to control resource-de structive aspects of development and to extend rights-of-way throughout the ahupuaa to reach the mountains and beaches. It could be argued that since the people have rights to gather resources within the ahupuaa, any future development that would destroy these natural resources must be halted. See note 147 supra. As a modest note, the legislature passed a public access statute, H a w a ii R e v . S t a t s . § 46-6.5(a) (1968). It provides that all developers, as a condition precedent to final approval of a subdivision where public access is not already established, must dedicate land for public access from public highways to the coastal shoreline, mountain trails, and existing facilities for hiking, hunting, fruit-picking, ti-leaf sliding, and other recrea tional purposes. See Comment, Hawaiian Beach Access: A Customary Right, 26 H a st in g s L.J. 823 (1975). 160. H a w a ii R e v . S t a t s . §§ 657-31, 669-1 (1968). The statute of limitations was originally 20 years. Act of July 18, 1870, ch. 22, § 1, [1870] Hawaii Laws 28. This period was reduced to 10 years in 1898. Act of April 22, 1898, Act 19, § 1, [1898] Hawaii Laws 22. See note 165 infra for the 1973 amendment which changed the period back to 20 years. 161. For example, Hawaiian courts have not been strict in demanding that the ad verse possessor enter under claim of title. See Deponte v. Ulupalakua Ranch, Ltd., 47 Hawaii 17, 395 P.2d 273 (1964); Lalakea v. Hawaiian Irrigation Co., 36 Hawaii 692 (1944). Nor have they always required the adverse possessor faithfully to pay taxes. See Gomes v. Upchurch, 50 Hawaii 125, 432 P.2d 890 (1967); Deponte v. Ulupalakua Ranch, Ltd., 48 Hawaii 17, 395 P.2d 273 (1964). 162. Thomas v. State, 55 Hawaii 30, 514 P.2d 572 (1973); Oahu Ry. and Land Co. v. Kaili, 22 Hawaii 673 (1915); Booth v. Beckley, 11 Hawaii 518 (1898). 163. See Town & Yuen, Public Access to Beaches in Hawaii, “A Social Necessity,” 10 H a w a ii BJ. 5, 21 (1973). 870 CALIFORNIA LAW REVIEW [Vol. 63:848 landholder cannot gain title by merely showing non-use of the ku leana, i t may be relatively easy to cultivate the lands of an enclosed kuleana and to begin occupying the land through adverse possession. Reduction of adverse possession claims to paper title is then a simple matter165 and opens the door to development. Native Hawaiians have been less able to use the doctrine to secure land for themselves. For example, if a native tenant remained on cultivated lands after 1850, but never applied for a kuleana, his continued possession was deemed permissive rather than adverse.166 Thus it became practically impos sible for a commoner to adversely possess land owned by a konohiki. There are two approaches for kuleana owners who want to avoid this loss. One alternative, suggested by Chief Justice William Richard son of the Hawaii Supreme Court, is that more Native Hawaiians regis ter their lands to prevent them from being taken by adverse posses sion.167 A second approach is Native Hawaiian pressure to reform the adverse possession laws. In 1973, the statutory period for adverse possession was changed from 10 to 20 years,168 thus allowing land owners a longer period in which to evict a potential adverse possessor. The legislature also passed a bill which would have required an adverse claimant to have entered the land in good faith.169 Although this bill would merely have prevented successful claims by those who had not acted in good faith, it was vetoed by the governor.170

B. The Bishop Estate The Bishop Estate171 is the largest and most important of Hawaii’s landed charitable estates.172 Its holdings on all major Islands except

164. Akowai v. Lupong, 4 Hawaii 259 (1880). 165. Title can be established pursuant to the Land Court Registration Act, H aw a ii R e v . St a t s . § 501 (1968), Hawaii’s enactment of the Torrens System. That Act has had very limited use because of its complex procedures; an application must include a boundary survey and a complete abstract of title. Expense, in fact, limits use of the Act to wealthy landowners and large developers. Most landholders rely instead on ac tions to quiet title, which are simple to bring, especially when unopposed. H a w a ii R e v . S t a t s . § 669 (1968). See D. Dauthet, Clearing Land Titles in Hawaii, Sept. 23, 1974 (unpublished paper). 166. See, e.g., Dowsett v. Maukeala, 10 Hawaii 166 (1895). 167. Hawaii Advertiser, Feb. 9, 1974, at A-2, col. 1. 168. H a w a ii R e v . S t a t s . § 657-31 (Supp. 1974). 169. H.B. 15, S.B. 879, Reg. Sess. (1973); legislative passage, April 11, 1973. 170. Governor’s veto, June 1, 1973. S e v e n t h L e g is l a t u r e o f t h e S t a t e o f H a - w a h , F in a l S t a t u s o f B il l s a n d R e s o l u t io n s 202 (1974). 171. See text accompanying notes 83-85 supra for discussion of the formation of the Bishop Estate. 172. Other major landed charitable estates include Queen’s Hospital, Queen Liliuo- kalani Trust, and The Bernice P. Bishop Museum. See R. H o r o w it z , P u b l ic L a n d P o l ic y i n H a w a ii: M a jo r L a n d o w n e r s 17 (Legislative Reference Bureau Report No. 3, 1 9 6 7 ) [hereinafter cited a s M a j o r L a n d o w n e r s ], 1975] HAWAIIAN LAND 871

Lanai comprise nine percent of the state.173 The will of Princess Ber nice Pauahi Bishop established the Estate and named five Westerners as trustees; their successors were to be named by the members of the Hawaii Supreme Court.174 The trustees were authorized “to sell and dispose of any lands of the . . . estate and to exchange lands and other wise dispose of the same” to further the trust purposes.175 Approxi mately 90 percent of the Estate’s land is leased for long terms for resi dential, agricultural, commercial, and industrial purposes.176 But the Estate has failed to put its resources to effective use. Although the Estate’s total landholdings are valued conservatively at more than $500, 000,000,177 its annual income is under $9,000,000,178 or less than two percent of its capital. Such a minimal return raises the question of wheth er the trustees are fulfilling their statutory obligation to manage the Es tate in the “manner in which men of ordinary prudence, discretion, and judgment would act in the management of their own affairs.”179 More importantly, the low return has prevented the Estate from realizing its benevolent aims. Princess Bishop’s will directed the trust ees to hold the corpus upon the following trusts: to maintain two schools, and to support orphans and other indigents, “giving the prefer ence to Hawaiians of pure or part aboriginal blood. . . .”180 Despite

173. Id. at 17, 44. 174. Will of Princess Bernice Pauahi Bishop, para. 14, Equity file No. 2048 (Hawaii Cir. Ct., 1st Cir. Dec. 2, 1884). For the decision that Justices, when appointing Trustees, are acting as individuals rather than as members of the judiciary, see Kekoa v. Supreme Court, 59 Hawaii 174, 516 P.2d 1239 (1973); In re Bishop Estate, 23 Hawaii 575 (1917), aff’d, 250 F. 145 (9th Cir. 1918). 175. Will of Princess Bernice Pauahi Bishop, para. 13, Equity file No. 2048 (Hawaii Cir. Ct., 1st Cir. Dec. 2, 1884). Codicil No. 1, para. 17 further states: “I give unto the trustees named in my will the most ample power to sell and dispose of any lands or other portions of my estate . . . but [direct them] to continue and manage the same, unless in their opinion a sale may be necessary for the establishment or maintenance of said schools, or for the best interest of my estate.” Quoted in Midkiff v. Koba- yashi, 54 Hawaii 299, 330, 507 P.2d 724, 742 (1973). 176. M a j o r L a n d o w n e r s , supra note 172, at 20, 23-24. 177. The Bishop Estate reported the basis of its tax assessment of July 1, 1972 was $360,592,000. See Honolulu Advertiser, Aug. 1, 1973, at A-7, col. 1. The state assesses property at 70% of real market value. Pr o p e r t y T e c h n ic a l O f f ic e , D e p ’t o f T a x a t io n , H a w a ii’s A s s e s s m e n t -S a l e s R a tio S t u d y 1973 at 1 (1974). Compare for example, the endowment of Stanford University at $365,000,000, S t a n f o r d U n iv e r s it y , F a c t s : S t a n f o r d U n iv e r s it y , 1973-1974, and the Carnegee Corporation at $284,- 000,000, M. L e w i s , T h e F o u n d a t io n D ir e c t o r y 258 (1971). 178. “In 1971-1972 the annual rents totaled $8,775,805. There was additional in come of $666,968, from interest, dividends and other sources.” Honolulu Advertiser, Aug. 1, 1973, at A-7, col. 1. 179. H a w a h R e v . St a t s . § 557-2(a)(3) (Supp. 1974). 180. Will of Princess Bernice Pauahi Bishop, para. 13, Equity file No. 2048 (Hawaii Cir. Ct., 1st Cir. Dec. 2, 1884), cited in In re Bishop Estate, 53 Hawaii 604, 609-10, 499 P.2d 670, 674 (1972). 872 CALIFORNIA LAW REVIEW [Vol. 63:848 this broad directive to support and educate indigent Native Hawaiians, the Estate has limited its activities almost exclusively to maintaining the Kamehameha Schools.181 Moreover, the Kamehameha Schools receive only 85 percent of their expenses from the Estate; the balance is col lected in tuition from students— all of whom are part-Hawaiian.182 To combat the low return on its capital, the Estate has begun to lease large tracts of land to private companies which develop and sublet that land. These transactions, however, have sparked resentment among those Native Hawaiians who no longer believe that develop ment is always beneficial. In 1969, for example, a broad-based politi cal coalition opposed the eviction of a pig farmer from Bishop Estate land slated by the trustees for a Kaiser Aetna development.183 It is ironic and unfortunate that a charitable estate would have prevented a traditional Hawaiian activity in order to produce revenue to educate Native Hawaiians. During the past five years, the Estate has attempted to raise capital by large acreage sales.184 A 1970 sale of 2,300 acres to a developer was set aside as against the best interest of the Estate, because the trustees had not insured that the sales price was ade quate.185 In 1973, the Estate agreed to sell 15,000 acres on the island of Hawaii for $6,200,000,186 a price of about $413 an acre. The trustees have attempted to minimize public inquiry about Estate finances by pointing to the difficulties of running a tax-exempt foundation.187 Their activities are shrouded in an accounting system that has been described as difficult to understand;188 and, in the past,

181. Zalborg, Bishop Estate-Kam Schools Relations, Honolulu Advertiser, Aug. 1, 1973, at A-7, col. 1. 182. Statement of Trustee Matsuo Takabuki in Honolulu Advertiser, July 31, 1973, at A-13, col. 1; The Kamehameha Schools, Providing Education Services for Hawaii’s Youth (1973) (brochure to parents from the schools). 183. See R. Pedersen, The Ad Hoc Committee for a Hawaiian Trustee 28, August, 1972 (unpublished thesis in University of Hawaii Library) [hereinafter cited as Peder sen]. 184. Nevertheless, the trustees recently claimed that tax consequences made the sale of small plots of Estate land prohibitive, thereby justifying their low cash flow. Hawai ian Advertiser, Aug. 1, 1973, at A-7, col. 1. On the other hand, in the early 1960’s, the Estate vigorously opposed legislation that would have allowed long-term lessees of residential property to purchase the re mainder interests in leased lands. See, e.g., H.B. 16, Reg. Sess. (1961). For discussion of the political battle see R. H o r o w it z & N. M il l e r , L a n d a n d P o l it ic s i n H a w a ii (1963). The Estate marshaled Native Hawaiian opposition to the legislation by point ing to the potential shrinkage of Estate holdings. See generally Pedersen. 185. Midkiff v. Kobayashi, 54 Hawaii 299, 329-34, 507 P.2d 724, 743 (1973). 186. Honolulu Star-Bulletin, July 11, 1973, at A -l, col. 2. 187. Zalborg, Bishop Estate-Kam Schools Relations, Honolulu Advertiser, Aug. 1, 1973, at A-7, col. 1. 188. Report of the Master on the Petition of the Trustees for Approval of the 83rd Annual Report at 30, Equity file No. 2048 (Hawaii Cir. Ct., 1st Cir. Sept. 25, 1970) [hereinafter cited as Master’s Report]. 1975] HAWAIIAN LAND 873 they have breached their legal obligation to publish annually a list of the Estate’s assets in a Honolulu newspaper.189 The trustees could amplify the Estate’s benefits to Native Hawai ians, consonant with the Bishop will, by making land available directly to Native Hawaiians. The Estate’s sale of land to developers for $413 an acre indicates that the same or comparable land could have been made available to Native Hawaiian groups at a similar rate. Although the price may have been inadequate for a third party, it is arguably proper for a beneficiary.190 This procedure would ease the problems of landless Native Hawaiians without lessening Estate revenues. Further more, the will directed the trustees to “devote a portion of each year’s income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians. . . .”191 Case law is clear that trustees have latitude in implementing the intent of the testator as determined from a will in its entirety.192 Under this author ity the Estate could support indigent Native Hawaiians by leasing land to them at a nominal rate. In a narrower application of this principle, land and homes could be made available to indigent parents of students and potential students of the Kamehameha Schools.193 Since trustees have enormous discretion under the will, lawsuits probably cannot force them to take innovative action such as allowing Native Hawaiians free use of Estate land or deciding against develop ment projects that might disrupt Native Hawaiian communities. Action by the trustees themselves is the best hope for such policy changes. The appointment of trustees sympathetic to the needs of Native Hawai ians is the surest means of effecting major changes within the Bishop Estate. Consequently, the Native Hawaiian community has attempted to reform the appointment of trustees. In 1971 the Ad Hoc Committee for a Hawaiian Trustee was formed to prevent the appointment of a non-Hawaiian to fill a vacancy on the Board of Trustees.194 Although both the political movement and corollary lawsuits195 were unsuccess ful, when another vacancy opened up in 1974, the Supreme Court ap pointed a Native Hawaiian to the position.196

189. In re Bishop Estate, 16 Hawaii 804 (1905). 190. See text accompanying note 193 infra. 191. Will of Princess Bernice Pauahi Bishop, para. 13, Equity file No. 2048 (Cir. Ct., 1st Cir. Dec. 2, 1884); cited in In re Bishop Estate, 53 Hawaii 604, 609-10, 499 P.2d 670, 674 (1972) (emphasis added). 192. See Estate of Weill, 48 Hawaii 553, 406 P.2d 718 (1965); Hawaiian Trust Co. v. Breault, 42 Hawaii 268 (1958). 193. For a discussion of the interrelation of poverty and education, see C. Je n c k s , I n e q u a l it y — A R eassessment o f t h e E f f e c t o f F a m il y a n d S c h o o l in g i n A m e r ic a (1972). 194. See generally Pedersen, supra note 183. 195. Kekoa v. Supreme Court, 53 Hawaii 174, 516 P.2d 1239 (1973). 196. Honolulu Star-Bulletin, Aug. 14, 1974, at A -l, col. 5. 874 CALIFORNIA LAW REVIEW [Vol. 63:848

However, lawsuits by Native Hawaiians are a proper means of en forcing the trustees’ non-discretionary duties to account and to make the trust productive.197 To date, Native Hawaiians have been reluctant to prosecute such suits for fear that, if brought into issue, the entire Estate program might be challenged as granting an unconstitutional preference on the basis of race. This concern was exacerbated in 1972 by a concurring opinion in an appeal to the Hawaii Supreme Court from a routine order approving an accounting by the trustees.198 Justice Abe took the occasion to opine that the Bishop will does not require the Estate to prefer Native Hawaiians for admission to Kamehameha Schools,199 even though this interpretation of the will conflicts with that of the original trustees, including the testator’s husband.200 More over, the opinion concluded that such a preference for Native Hawai ians would be unconstitutional.201 The majority refused to discuss the question of preference since it had not been raised at the trial.202 However, the issue will surely be judicially considered in the future. Interpreting the will to require preference for Native Hawaiians in admission to the Kamehameha Schools raises the question of the con stitutionality of such a provision in a charitable trust. The Equal Pro tection Clause of the Fourteenth Amendment forbids discrimination against a racial minority by a private school established by a state-administered will.203 The United States Supreme Court has not yet de cided whether providing special benefits to an economically disadvan

197. The Hawaiian Supreme Court has assumed without discussion that Native Ha waiians, as special beneficiaries of the Estate, have standing to sue. See, e.g., Kekoa v. Supreme Court, 53 Hawaii 174, 516 P.2d 1239 (1973); see also 4 Sc o t t o n T r u s t s § 391 (2d ed. 1956). The Attorney General of the State also has authority to bring suit to protect the interests of beneficiaries of charitable estates. See Midkiff v. Koba- yashi, 54 Hawaii 299, 335, 507 P.2d 724, 745 (1973). 198. In re Bishop Estate, 53 Hawaii 604, 499 P.2d 673 (1972). 199. He stated that the will provides simply for the erection of “two schools, each for boarding and day scholars, one for boys and one for girls . . .” The only racial limitation is contained in the direction “to devote a portion of each year’s income to the support and education of orphans, and others in indigent circumstances, giving preference to Hawaiians of pure or part aboriginal blood . . .” Id. at 610, 494 P.2d at 674 (Abe, J., concurring). 200. S h o a l o f T im e 299-301. Although the interpretation of the will by Bernice’s husband as trustee is not bind ing on a court, much is known of the allegiance which Bernice, the last of the Kame hameha line, felt towards Native Hawaiians. See H. K e n t , C h a r l e s R e e d B is h o p : M a n o f H a w a ii (1969); C. B lac k & K. M e l l e n , P r in c e s s P a u a h i B is h o p a n d H er L eg acy (1959). Her testamentary intent would be carried out most faithfully by inter preting the preference clause as referring to all the charitable aims of the Estate. 201. 53 Hawaii at 611, 499 P.2d at 674. 202. Id. at 608, 499 P.2d at 673. 203. See, e.g., Pennsylvania v. Board of Trusts, 353 U.S. 230 (1957) (The Girard College Case). See also Lusky, National Policy and the Dead Hand: The Race Conscious Trust, in 112 T r u s t a n d E s t a t e s 554 (1973). 1975] HAWAIIAN LAND 875 taged minority groups can justify racial criteria in admissions.204 Even if such programs are generally declared unconstitutional,205 the Bishop Estate program should be considered constitutional as reasonably re lated to a legitimate concern for an indigenous people. United States statutes and case law206 have traditionally applied special rules to American Indians. Congress has passed Indian legisla tion in the fields of education,207 health,208 civil liberties,209 and general welfare.210 Morton v. Mancari211 upheld a statute212 which required that Indians be preferred for employment within the Bureau of Indian Affairs. The Court specifically enunciated what had been implicit in earlier decisions:213 Indian legislation is constitutional if . . the spe cial treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians . . . ,”214 Although Native Hawaiians cannot properly be called “American Indians” in an anthro pological sense, the plight of both groups as indigenous peoples within the United States calls for analogous legal treatment.215 The phrase “Hawaiians . . . of pure or part aboriginal blood”216 in the Bishop will is not as exclusive as the term “white.” Our society tends to define one as white only if he or she has no other identifiable racial ancestry.

204. In the past term, the Court ruled moot a case which challenged an admission policy designed to increase minority enrollment at a law school. DeFunis v. Odegaard, 416 U.S. 312 (1974). 205. For arguments supporting the necessity for and constitutionality of minority admissions programs, see Bell, In Defense of Minority Admissions Programs: A Re sponse to Professor Gaglia, 119 U. P a. L . R e v . 364 (1970); Morris, Equal Protection, Affirmative Action and Racial Preferences in Law Admission: DeFunis v. Odegaard, 49 W a sh . L. R e v . 1 (1973). For a general discussion of considering race in order to correct racial imbalance and discrimination, see Vieria, Racial Imbalance, Black Separa tism, and Permissible Classification by Race, 67 M ic h . L . R e v . 1553 (1969). 206. See, e.g., Morton v. Mancari, 417 U.S. 535 (1974); Board of Comm’rs v. Seber, 318 U.S. 705 (1943). 207. Sec, e.g., 25 U.S.C. § 452 (1970), formerly Act of Apr. 16, 1934, ch. 147, § 1, 48 Stat. 596. 208. 42 U.S.C. §§ 2001-2005(f) (1970), formerly Act of Aug. 1, 1954, ch. 658, 68 Stat. 674 (Indian Hospitals and Health Facilities). 209. 25 U.S.C. §§ 1302-1303 (1970), formerly Act of Apr. 11, 1968, Pub. L. No. 90-284, §§ 202-03 (Indian Civil Rights Act). 210. See, e.g., 25 U.S.C. §§ 631-632 (1970), formerly Act of Apr. 19, 1950, ch. 92, §§ 1, 2, 64 Stat. 44 (Navaho and Hopi Tribes: Rehabilitation). 211. 417 U.S. 535 (1974). 212. Indian Reorganization Act of 1934, 25 U.S.C. § 472 (1970). 213. See Board of Comm’rs v. Seber, 318 U.S. 705 (1943); Simmons v. Eagle Seelat- see, 244 F. Supp. 808 (E.D. Wash. 1965). 214. Morton v. Mancari, 417 U.S. 535, 555 (1974). 215. The United States Supreme Court has never defined the term “Indian” but has implicitly expanded its meaning to include Alaskan Aleuts and Eskimos, non-Indians under an “anthropological” meaning. See Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918), aff’g 240 F. 274 (9th Cir. 1917). See also Alaska v. Annette Island Packing Co., 289 F. 671 (9th Cir. 1923). 216. See text accompanying note 180 supra. 876 CALIFORNIA LAW REVIEW [Vol. 63:848

One who has any Hawaiian blood is by definition part-Hawaiian. Thus- although all of the students at the Kamehameha Schools have some Hawaiian blood, 83 percent have Caucasian ancestry, 67 percent have Chinese ancestry, 24 percent have Japanese ancestry, and 10 percent have Filipino ancestry.217 In sum, the Native Hawaiian preference regarding admission to the Kamehameha Schools is probably constitutional. Since the issue will undoubtedly be raised, remedial lawsuits aimed at correcting Estate deficiencies should not be avoided for fear that the preference clause will be declared unconstitutional.

C. Hawaiian Home Lands Formed more than fifty years218 ago to return Native Hawaiians to a pastoral life, the Department of Hawaiian Home Lands219 has yet to provide the Native Hawaiian community with a substantial land base.220 Although there are 190,000 acres under its jurisdiction,221 less than 15 percent of that acreage is currently under lease to Native Hawaiian homesteaders.222 Today, only 69 families live on ranch-size

217. The Kamehameha Schools, Providing Education Services for Hawaii’s Youth (1973) (brochure to parents from the schools). 218. See text accompanying notes 126-142 supra on the formation of the Hawaiian Homes program. Problems of the Department of Hawaiian Home Lands have been ex tensively studied. See generally D. C le g g , P ro g r a m S t u d y a n d E v a l u a t io n o f t h e D e p a r t m e n t o f H a w a iia n H o m e L a n d s , S t a t e o f H a w a ii (1971) [hereinafter cited as P r o g r a m S t u d y ]; H . D o i, L e g a l A s p e c t s o f t h e H a w a iia n H o m e s P r o g r a m (Legislative Reference Bureau Rep. No. 1A, 1964) [hereinafter cited as L eg a l A s p e c t s ]; D . H a n s e n , T h e H o m e s t e a d P a p e r s : A C r it ic a l A n a l y s is o f t h e M a n a g e m e n t o f t h e D e p a r t m e n t o f H a w a iia n H o m e L a n d s (1971) [hereinafter cited as H o m e st e a d P a p e r s ]; A . S p it z , L a n d A s p e c t s o f t h e H a w a iia n H o m e s P r o g r a m (Legislative Reference Bureau Rep. No. 1C, 1964) [hereinafter cited as L a n d A s p e c t s ]; A. S p it z , O rganization a n d A dministration o f t h e H a w a iia n H o m e s P r o g r a m (1963). 219. The Federal government gave title to Hawaiian Homes property to the state in Hawaii Admission Act, Pub. L. No. 86-3, § 5(b), 73 Stat. 5 (1959). The name of the administrative organization was then changed from the Hawaiian Homes Commission to the Department of Hawaiian Home Lands. The Department is a state executive branch directed by a Commission, whose seven members are appointed by the Governor and must include four Native Hawaiians of at least one-fourth native blood. H a w a ii C o n s t ., Hawaiian Homes Commission Act, 1920, § 202. Provisions governing the Ha waiian Homes Commission Act are now part of the state constitution as required by the Hawaii Admission Act, § 4, 48 U.S.C. Prec. § 491 (1970). 220. Doubts of the program’s constitutionality were expressed both at the time of its adoption and at the time of statehood. See L eg al A s p e c t s , supra note 218, at 41- 54. See text accompanying notes 205-217, supra, for a contrary argument. 221. D u n n & A k in a k a , A L a n d I n v e n t o r y a n d L a n d U se S t u d y f o r t h e D e p a r t m e n t o f H a w a iia n H o m e s 2-4 (1972) [hereinafter cited as L a n d I n v e n t o r y ]. There is a disparity between the original acreage established in 1920 and the present tally. See, e.g., H o m e s t e a d P a p e r s , supra note 218, at 30. Dunn and Akinaka attempt to an swer criticism that there are “missing” homestead lands. L a n d I n v e n t o r y at 4. 222. L a n d I n v e n t o r y , app., table 2. However, almost 13,000 acres not under indi vidual lease are used for community pastures for homesteaders. Id. See note 235 infra 1975] HAWAIIAN LAND 877 parcels and 365 families live on farms, usually of 40 acres.223 Over 2,000 homesteading families have been assigned houselots, some as small as 7,500 square feet, in subdivision communities such as Papakolea in ur ban Honolulu and Kalamaula on rural Molokai.224 The Hawaiian Homes program must be considered a failure as measured by its original objective to rehabilitate Native Hawiians by returning them to a farming life. Few of the families living on farm- size parcels actually engage in farming operations. Most have relin quished management of their land to pineapple companies in return for monthly stipends.225 However, the program has succeeded in pro viding houselots which save some Native Hawaiians from expulsion due to rising land costs. The houselot program evolved from the political pressures of Native Hawaiian squatters at Papakolea who wished the land they were living on to be brought under Hawaiian Homes juris diction.226 Today the greatest demand for homesteads is for urban houselots,227 and accounts of twenty-year waits for houselots on land- short Oahu have been documented.228 Many explanations can be offered as to why the vast acreage of the Hawaiian Homes program has provided so few homesteads. Some critics have pointed to administrative heavy-handedness and lack of in novative thinking.229 The Department itself blames the inferior qual for land use of the remainder of Hawaiian Home Lands. 2 2 3 . J. D u n n & A. A k in a k a , L t d ., A L a n d I n v e n t o r y a n d L a n d U se S t u d y f o r t h e D e p a r t m e n t o f H a w a iia n H o m e L a n d s 4 ( 1 9 7 2 ) . 224. D e p a r t m e n t o f H a w a iia n H o m e L a n d s , A n n u a l R e p o r t 5 (1973). 225. Homesteaders are not allowed to sublet homesteads. H a w a ii C o n s t ., Hawaiian Homes Commission Act, 1920, § 208(5). However, a series of Attorney General opin ions approved arrangements which differ little from subleases. See L e g a l A s p e c t s , supra note 218 at 14-16. The issue may become moot because pineapple companies are rapidly leaving the Hawaiian Islands. Honolulu Star-Bulletin, Dec. 14, 1973, at C-14, col. 5. 226. See account in E. Heen, The Hawaiians of Papakolea: A Study in Social and Economic Realism, 28-31, June, 1936 (unpublished thesis in University of Hawaii Li brary). 2 2 7 . Currently over 3 ,3 0 0 Native Hawaiians, considerably more than the present number of homesteaders, are on waiting lists for urban lots. D e p a r t m e n t o f H a w a iia n H o m e L a n d s , A n n u a l R e p o r t 4 ( 1 9 7 3 ) . 228. See, e.g., Honolulu Advertiser, Dec. 17, 1973, at A-6, col. 1; Honolulu Adver tiser, Nov. 13, 1970, at C-3, col. 1. At present the only way for an applicant to avoid the long waiting list is to receive a homestead through inheritance. If a homesteader dies, the remainder of the 99-year lease can descend or be devised but only to relatives enumerated in H a w a ii C o n s t ., Ha waiian Homes Commission Act, 1920, § 209. Because of the widespread system of hanai, an informal Native Hawaiian adoption system, children who have lived with a homesteading family often cannot inherit because they do not have legal standing. See Op. H a w a ii A t t ’y G e n . 18 (1973). Another inheritance problem arises under the Act’s blood quantum requirement: homesteaders must have at least 50 percent Hawaiian blood. H a w a ii C o n s t ., Hawaiian Homes Commission Act, 1920, § 201(7). 229. See, e.g., H o m e s t e a d P a p e r s , supra note 218. 878 CALIFORNIA LAW REVIEW [Vol. 63:848 ity of much of its land and the fact that its acreage is often located in a geographic area of low demand.230 But the fundamental causes of the Department’s failures inhere in its financial structure.231 First, this structure confronts the Department with a clear conflict of interests. Although funding patterns have changed since 1920, a consistent source of revenue has been the public leasing of Department lands not assigned to Native Hawaiian homesteaders.232 Today, the Department’s internal administrative costs are provided from those receipts.233 Although direct legislative appropriation is possible when revenue is in sufficient to meet administrative costs,234 the Department has usually chosen to generate funds from public leasing, thus withholding valuable property from homesteaders.235 Whenever technological improvements or demographic movements make Hawaiian home lands valuable, the Department is faced with the choice either of allowing individual Hawai ians to use valuable land or of leasing it to non-Hawaiians in order to fund department expenses. Second, statutory fiscal ceilings stymie as signment of homesites. The Department will not open a houselot tract unless that tract has adequate roads, drainage systems and other im provements.236 But the Hawaiian home-development fund, which finances these non-revenue producing improvements, has a statutory fiscal ceiling.237 Similarly, it is Department policy not to award specific homesites unless the land has a completed home or firm construction plans.238 Most Native Hawaiians are unable to finance construction

230. See B ie n n ia l R e p . o f t h e D e p ’t o f H a w a iia n H o m e L a n d s to t h e L eg isl a t u r e o f t h e St a t e o f H a w a ii 6 (1971). 231. For a description of the Department’s byzantine funding scheme see P r o g r a m S t u d y , supra note 218, at 54-61. 232. Compare Hawaiian Homes Commission Act of 1920, ch. 42, § 213, 42 Stat. 112, with H a w a ii C o n s t ., Hawaiian Homes Commission Act, 1920, § 213(f). 233. H a w a ii C o n s t ., Hawaiian Homes Commission Act, 1920, § 213(f). From July 1, 1972 to June 30, 1973, the receipts from general leasing totalled $798,670, while administrative expenditures were $558,606. Statistics supplied in interview with Richard Paglinawin, Deputy Director of the Department of Hawaiian Home Lands, in Honolulu, Hawaii, Nov. 11, 1974. 234. H a w a ii C o n s t . Hawaiian Homes Commission Act, 1920, § 213(f)(3). If the income produced from general leases in a fiscal year is greater than the Department’s approved budget, the extra revenues spill over into the Hawaiian home-development fund. Id. Thus, in fiscal year 1972-73, $240,064 from general lease revenue went to that fund. 235. Today over 108,000 acres rae under general lease. L a n d I n v e n t o r y , supra note 218, app., table 2. Over 30,000 additional acres of Hawaiian Home Lands in water, forest, and game conservation districts are not benefiting Native Hawaiians to any greater degree than the public at large. Id. 236. Shapiro, Hawaiian Homes Panel Changes Leasing Policy, Honolulu Star-Bul- letin, May 26, 1973, at A-10, col. 2. 2 3 7 . The ceiling for the Hawaiian home-development fund is, in fact, $1,250,000 be cause of limitations on its sources of revenue. P r o g r a m St u d y , supra note 2 1 8 , at 56 . 238. Shapiro, Hawaiian Homes Panel Changes Leasing Policy, Honolulu Star-Bul- letin, May 26, 1973, at A-10, col. 2. 1975] HAWAIIAN LAND 879

of their own homes,239 and banks are unwilling to lend money since Hawaiian Home lands cannot be mortgaged.240 New applicants must therefore turn to the Department’s Hawaiian home-loan fund for financ ing241—which also has a fiscal ceiling set by statute.242 Thus, when homes cannot be built, land is not assigned to Native Hawaiian home steaders. Three major changes could assure more rapid homesteading of the land. First, the Department could assign homesites before houses are constructed, especially within existing tracts that do not need further development. In 1973, the commissioners voted unanimously to re lease unimproved lands for houselots,243 but rescinded their action at the next regular meeting.244 Since the Hawaii Attorney General has interpreted the Hawaiian Home lands as being exempt from the zoning powers of the counties,245 homesteaders could make immediate use of assigned land, even if they were unable to conform to housing codes. Second, the Department should reverse its present policy of denying houselots to Native Hawaiians whose net assets exceed $10,000. Although it might be justifiable for the Department to withhold con struction loans from middle-class Native Hawaiians so that its limited funds can provide homes for the poor, the Department has, by favoring general leasing and refusing homesteads to Native Hawaiians with suffi cient funds to construct their own homes, perpetuated the use of Hawaiian Home lands by non-Hawaiians. Furthermore, it can be argued that Hawaiian Homes communities should reflect the true economic range of the Native Hawaiian community, rather than just its poorest members. Finally, adequate funding is necessary to develop homesteads. The statutory ceilings on the Hawaiian home-loan fund

239. Department regulations forbid the awarding of a houselot to any person with net assets over $10,000 or “whose net worth, together with that of his spouse, is in ex cess of $15,000.” D e p ’t o f H a w a iia n H o m e L a n d s , R u l e s & R e g . § 5.01 (1973). 240. H a w a ii C o n s t ., Hawaiian Homes Commission Act, 1920, § 208(5). As an ex ception property can be mortgaged to another Native Hawaiian with Department per mission. Id. 241. Under the usual arrangement, the applicant receives a land lease at a nominal rate, but must make monthly payments to the Department for monies lent for home con struction. See discussion in Kila v. Hawaiian Homes Commission, No. 74-12 (D. Ha waii, Sept. 17, 1974). If a homesteader wishes to surrender a homestead, the Department must pay him for certain improvements on the property. The Department will then award the home stead to an applicant on the waiting list who must agree to repay the Department that value. H a w a ii C o n s t ., Hawaiian Homes Commission Act, 1920, § 209(1). 242. The ceiling for the Hawaiian home-loan fund is $5,000,000. H a w a ii C o n s t ., Hawaiian Homes Commission Act, 1920, § 213(b). 243. Honolulu Star-Bulletin, May 26, 1973, at B -l, col. 1. 244. Minutes of Hawaiian Homes Commission, Aug. 31, 1973, on file in Department of Hawaiian Home Lands. 245. O p . H a w a ii A t t ’y G e n . 21 (1972). 880 CALIFORNIA LAW REVIEW [Vol. 63:848 and the Hawaiian Home-development fund must be removed. The Department should also attempt to generate funds from outside sources, such as the federal government, to finance home construction for Native Hawaiians.246 The Department should seek appropriate statutory amendments247 to allow use of the Hawaiian home-loan fund to insure the flow of private capital into Hawaiian Homes construction; a small amount of Department funds could thus generate the flow of much greater amounts for capital. A program might be patterned after the federal program of student loans,248 with the Department guarantee ing private loans to Native Hawaiians.249 Such guarantees might en courage banks to grant construction loans without requiring collateral since experience has indicated that most homesteaders will not fall into serious default.250 Since the above changes will require a major commitment of funds by the State, the Department must be willing to lead a compaign for the legislative251 and budgetary changes necessary to increase utilization of homesteading. It is hardly in position to lead this fight while it is still dependent on general lease revenue for its administrative costs. Therefore the State’s initial step must be to finance these costs from its general budget.252

246. See P r o g r a m S t u d y , supra note 218, at 27 for discussion of the difficulties of homesteaders receiving FHA loans. See also, Hawaii H. C o n . R e s . 5 6 , Reg. Sess. (1971), requesting Hawaii’s Congressional delegation to investigate statutory changes to allow Native Hawaiian homesteaders to receive assistance under the National Housing Act of 1949 and from the Farmer’s Home Administration. 247. “Both the Admissions Act and the State Constitution delineate the methods by which the HHCA may be amended. [Hawaiian Statehood Act, § 4, 48 U.S.C. Prec. § 491 (1970); Hawaii Const, art. XI, § 3.] Certain provisions of the Act relating to administration, duties of non-administrative officials, and the increase of benefits to les sees (native Hawaiians) may be amended ‘in the constitution, or in the manner required for State legislation . . . .’ Generally speaking, all other provisions may be amended only with the consent of the United States.” Kila v. Hawaiian Homes Commission, No. 74-12 (D. Hawaii Sept. 17, 1974) (court footnote in brackets). See also L eg a l A s p e c t s , supra note 218, at 66-70. 248. Higher Education Act of 1965, 20 U.S.C. §§ 1071-1086 (1970). 249. P r o g r a m S t u d y , supra note 218, at 22-25 makes this proposal along with the suggestion for interest subsidies in this era of high interest rates. A bill to allow the Department to make such guarantees was introduced into the Hawaii legislature in 1971 but was not passed. H.B. No. 1592 Reg. Sess. (1971). 250. At present, 41 percent of homesteaders are to some degree delinquent on loan payments, but fewer than 20 percent are more than 120 days behind in payments. Hon olulu Advertiser, Jan. 30, 1974, at A-13, col. 7. 251. The Department cannot homestead more than 20,000 new acres in any five year period. H a w a ii C o n s t ., Hawaiian Homes Commission Act, 1920, § 204(3). In the past, the Department has never approached this limit, but if homesteading is to be drastically increased, the section may have to be repealed. 252. To guard against any conflict of interest, revenue from the general leasing of Hawaiian Home Lands should not be separately tabulated, but should be included in the State’s general revenues. 1975] HAWAIIAN LAND 881

D. Hawaiian Land Claim On June 27, 1974, a bill was submitted to the United States House of Representatives “to provide for the settlement of historic claims of the Hawaiian Natives.”253 The bill would establish an Hawaiian Native Fund of one billion dollars, deposited in 10 equal yearly amounts, to be administered by the Secretary of the Interior.254 One corporation would be empowered to make distributions from the Fund to benefit Native Hawaiians;255 the board of directors would be elected by all fullblood or part-blood Native Hawaiians.256 The Hawaiian drive for repara tions, spearheaded by the “ALOHA” movement (Aboriginal Lands of Hawaiian Ancestry), has grown over the past two years,257 partially motivated by the success of the Alaska Native Claims Settlement Act.258 Under that settlement, Alaskan Natives will receive almost one billion dollars and 38 million acres of land.259 Native Hawaiians see similarities between their claims and those of the Alaskans. In both cases, the United States, without paying compensation to the indigenous population,260 gained title to land in territories that later became states.261 The Native Hawaiian land claim can also be compared to United States compensation for the lands of North American Indian tribes. Where Indian title to land had been recognized, taking could be only by consent, such as a treaty, or by compensation.262 Despite the words

253. Hawaiian Native Claims Settlement Act, H.R. 15666, 93d Cong., 2d Sess. (1974). At the time of this writing, the measure had not been introduced in the 94th Congress. 254. Id. § 5(a). 255. Id. § 6. Compare the Alaska Native Claims Settlement Act, Pub. L. No. 92- 203 § 7(a) (Dec. 18, 1971), 85 Stat. 691 in which Congress established 12 regional corporations because of the cultural diversity in Alaska. 256. H.R. 15666, 93d Cong., 2d Sess., § 6(f) (1974). 257. For an account of Queen Liliuokalani’s unsuccessful attempt to seek redress, see Liliuokalani v. United States, 45 Ct. Cl. 418 (1910). 258. Alaska Native Claims Settlement Act, Pub. L. No. 92-203 (Dec. 18, 1971) 85 Stat. 688-716. This bill provided for settlement of a claim filed by Alaskan natives under the Indian Claims Commission Act, 25 U.S.C. § 70 (1970). See text accom panying notes 264-70 infra. 259. Alaska Native Claims Settlement Act, Pub. L. No. 92-203 (Dec. 18, 1971) §§ 6 (a), 12, 85 Stat. 690-91, 701-02. 260. “In both Alaska and Hawaii Organic Acts Congress left open the possibility of a future settlement of land claims.” R. Jones, A History of the Alaska Native Claims, April 20, 1973 at 31 (unpublished study for Congressional Reference Service, in Library' of Congress). Compare Alaska Organic Act, ch. 53, 23 Stat. 24, 26 (1884), with Hawaiian Organic Act, ch. 399, § 73, 31 Stat. 141 (1900). 261. A nation does not automatically gain title to privately held land over which it asserts political sovereignty. See United States v. Percheman, 32 U.S. (7 Pet.) 51, 86 (1833); but cf. Milirrpum v. Nabalco Pty. Ltd., 17 F.L.R. 141, 200 (Austl. 1971). See generally A. S n o w , T h e Q u e s t io n o f A b o r ig in e s (1921). 262. “When the Congress by treaty or other agreement has declared that thereafter Indians were to hold the lands permanently, compensation must be paid for subsequent 882 CALIFORNIA LAW REVIEW [Vol. 63:848 of the fifth amendment, jurisdiction to hear the claims of Indian tribes was removed from the Court of Claims in 18 6 3.263 Congress had to pass a special jurisdictional act for each Indian claim, until 1946, when Congress adopted the Indian Claims Commission Act.264 The Act vested jurisdiction in the Indian Claims Commission and waived de fenses based upon sovereign immunity or the passage of time.265 A five-year time limit was set for any tribe on the mainland or in Alaska to present specified claims to the Commission: (1) claims in law or equity arising under the Constitution, laws, treaties, of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the United States if the United States was subject to suit; (3) claims which would result if the treaties, contracts, and agree ments between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mututal or unilateral mistake, whether of law or fact, or any other ground cog nizable by a court of equity; (4) claims arising from the taking by the United States, whether as the result of a treaty of cession or oth erwise, of lands owned or occupied by the claimant without the pay ment for such lands of compensation agreed to by the claimant; and (5) claims based upon fair and honorable dealings, that are not rec ognized by any existing rule of law or equity266 More than 300 claims have been presented under the Act,267 many of which were based exclusively on the “fair and honorable dealings” clause.268 This clause indicated that moral as well as legal considera tions were relevant.269 In debate over the bill, then Congressman Henry Jackson stated, Let us pay out debts to the Indian tribes that sold us the land we live on . . . . [L]et us make sure that when the Indians have their day in court they have an opportunity to present all their claims of every taking.” Tee-hit-ton Indians v. United States, 348 U.S. 272, 277-378 (1955). But see, D. B r o w n , B u r y M y H e a r t A t W o u n d e d K n e e (1970) for a contrary view of the treatment of Native Americans by the United States. 263. Act of March 3, 1863, ch. 42, § 9, 12 Stat. 765, 767. 264. 25 U.S.C. § 70 (1970). 265. Id. § 70(a). 266. Id. (emphasis added). 267. See Vance, Indian Claims—The U.S. Experience, 38 S a sk . L. R e v . 1, 6 (1974). 268. See, e.g., Gila River Pima-Maricopa Indian Community v. United States, 467 F.2d 1351 (Ct. Cl. 1972); Osage Nation of Indians v. United States, 97 F. Supp. 381 (Ct. Cl. 1951). 269. Representative Karl Mundt stated, “If any Indian tribe can prove it has been unfairly and dishonorably dealt with by the United States, it is entitled to recover.” 92 C o n g . R e c . A4923 (1946) (extension of remarks of Rep. Karl Mundt). 1975] HAWAIIAN LAND 883

kind, shape, and variety, so that the problem can be truly solved once and for a ll. . . .270 Native Hawaiians have not yet received compensation for the less than fair and honorable treatment they suffered at the hands of Western set tlers of Hawaii.271 Uncompensated taking of title to government and Crown lands by the United States at the time of Annexation could sup port a compensation claim. There are two interrelated objections to compensating Native Hawaiians. First, some of the lands taken were Crown lands and therefore it can be argued that compensation for them should go to the heirs of Queen Liliuokalani. However, the Court of Claims denied compensation to Queen Liliuokalani partly on the grounds that the land should not be treated as private property.272 Second, much of the land taken by the United States after annexation was returned to the State of Hawaii at the time of statehood.273 Never theless, the federal government today retains title to approximately 400,000 acres.274 Moreover, at the time of statehood Native Hawaiians comprised only a minority of citizenship, unlike their majority status at the time of annexation.275 This delay in exchanging federal title for state title cost Native Hawaiians the power to control the use of the returned land. Specific Congressional legislation is probably necessary to authorize a suit for compensation. No action could be brought under the Indian Claims Commission Act which is limited to claims by mainland Indians and Alaskan Natives.276 Nor does it seem likely that an action could be brought in the Court of Claims based on its jurisdiction over claims against the United States founded upon the Constitution;277 it is doubtful that annexation included a fifth amend ment taking278 and any claim so founded would probably be time- barred.279

270. 92 C o n g . R e c . 5312 (1946) (remarks of Congressman Jackson). 271. It is doubtful that the Kuleana Act which reduced the land rights of commoners from approximately one-third of the kingdom to fewer than 30,000 acres could support a land claim against the United States. First, the act was passed during the time of the Hawaiian Kingdom, a half century before American sovereignty was asserted. Addi tionally the Hawaiian Constitution of 1840 had no clause requiring compensation for the taking of property. 272. Liliuokalani v. United States, 45 Ct. Cl. 418, 527 (1910). 273. See Hawaiian Statehood Act, § 5, 48 U.S.C. Prec. § 491 (1970). 274. M a j o r L a n d o w n e r s , supra note 218 at 99. 275. A . L i n d , H a w a ii’s P e o p l e 27 (1955). Most Chinese and Japanese inhabitants were excluded from citizenship at the time of annexation. See note 115 supra. 276. 25 U.S.C. § 70(a) (1970). 277. “The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution . . . .” 28 U.S.C. § 1491 (1970). 278. Cf. Tee-hit-ton Indians v. United States, 348 U.S. 272 (1955). 279. “Every claim of which the Court of Claims has jurisdiction shall be barred un- 884 CALIFORNIA LAW REVIEW [Vol. 63:848

The proposed Hawaiian Native Claims Settlement Act would place a dollar value on the Native Hawaiian land claim, rather than estab lishing a claims procedure.280 Native Hawaiians could thus avoid issues that have complicated other compensation litigation,281 for example, the judicial determination of the value of the land at the time of the govern mental taking.282 In the Alaska Native Claims Settlement Act, Con gress determined the total value of the claim in order to avoid such difficulties,283 and this procedure should be followed for Hawaii. Since there will be few, if any, additional claims by indigenous people, Con gress need not fear the work load inherent in this task of establishing the dollar value of land claims. The Hawaiian Native Claims Settlement Act also avoids a prema ture decision on whether compensation funds should be distributed per capita to the claimants or used for cooperative development.284 Funds would be turned over to the Hawaiian Native Corporation, which would be empowered to use funds for either purpose.285 By participating in the corporation, Native Hawaiians could determine the Fund’s uses.286 Many Native Hawaiian land problems could be remedied if the corpora tion allocated funds for community development. For example, funds could be used to defractionate kuleana, to finance housing construction on Hawaiian Home lands,287 and to purchase additional lands for Native

less the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501 (-1970). 280. H.R. 15666, 93d Cong., 2d Sess. § 5(a) (1974). 281. California Indians, for example, began their claims movement in 1902 and did not receive final compensation until 1973. For a discussion of the California claims fight see generally K. Jo h n s o n , K-344 F or t h e I n d ia n s o f C a l if o r n ia v s . T h e U n it e d S t a t e s (1966). 282. Under court-developed doctrines, claimants were not entitled to the land’s pres ent value but only to the value of the land at the time of the governmental action, unless that action amounted to a fifth amendment taking, in which case the claimants were also entitled to imputed interest. Compare, e.g., Fort Berthold Reservation v. United States, 390 F.2d 686 (Ct. Cl. 1968) and Uintah and White River and White River Band of Indians, 152 F. Supp. 953 (Ct. Cl. 1957) with United States v. Kiowa, Comanche and Apache Tribes, 163 F. Supp. 603 (Ct. Cl. 1958). Perhaps the most sensible question concerning these cases was asked by Professor Monroe Price: But how much sense does it make for judges, anthropologists, lawyers and Congressmen to go through incredible contortions to determine what occurred one hundred years ago and base compensation on such a determination? M. P r ic e , La w a n d t h e A m e r ic a n I n d ia n 356 (1973). 283. See note 259 supra. 284. On the other hand, the Alaska Native Claims Settlement Act, Pub. L. No. 92- 203, § 7(j), 85 Stat. 688 (1971) mandates some per capita distribution. 285. H. 15666, 93d Cong., 2d Sess. § 6 (1974). 286. See text accompanying note 256 supra. 287. Interestingly, H.R. 15666 does not vest rights to the Hawaiian Home Lands in the Native Hawaiian Community. 1975] HAWAIIAN LAND 885

Hawaiians.288 If the Bishop Estate needed to sell lands to maintain its liquidity, the corporation could buy them so that the Estate land would continue to serve Native Hawaiians. Compensation to indigenous people is essentially an ethical rather than a legal issue. Annexation removed from Native Hawaiians the opportunity to assert sovereignty over a homeland. The Hawaiian Native Claims Settlement Act would allow Native Hawaiians to reestab lish some degree of cultural autonomy.

C o n c l u s i o n A central theme of Hawaiian history during the past two centuries has been the continual displacement of Native Hawaiians from the con trol and ownership of the lands of Hawaii. This trend has been less than monolithic; Native Hawaiians have received access to a token land base through ameliorative steps such as kuleana and the Hawaiian Homes program. Recent pressures against Native Hawaiian land holdings are posed by increased immigration and commercial growth. Just as dis placement of Native Hawaiians was accomplished primarily through manipulation of the legal system, so, too, legal action is necessary to assure Native Hawaiians a future on the Islands. Kuleana will continue to be lost unless the legal rights of their owners are protected. Struct ural changes are necessary if Native Hawaiians are to fully utilize the Bishop Estate and Hawaiian Homes land. One catalyst for change would be a major award from the United States in compensation for lands taken in the past. But without a concomitant commitment by the legal system to preserve a land base for Native Hawaiians, their future on the very Islands that nurtured their culture is bleak.

288. The bill would give the corporation first option to acquire return of surplus fed eral lands. H.R. 15666, 93d Cong., 2d Sess. § 7 (1974). QlCrtilcb sS>lcxlc& J&crtcxle

WASHINGTON. D.C. 20510

November 3, 1975

CONFIDENTIAL

Hr. Arthur K. Kinney, President Aloha Association, Inc. Suite 572 Alexander Young Bldg. Honolulu, Hawaii 96813

Dear Mr. Kinney:

Because of the heightened sensitivity surrounding the anticipated Cong- , ressional hearings on the Hawaiian Land Claims and because of their paramount importance to establishing federal recognition of the Hawaiians* claim, I have decided once again to commit my thoughts and suggestions on this matter to paper. I do this because I personally deeply believe that the Hawaiians* cause is a just one, and also because I am acutely aware that the quality and decorum of the expertise and the manner in which it is presented at these hearings can have an extraordinary impact on whether the Congress of the United States eventually decides to honor your claim.

First, I would suggest that three days of formal hearings be scheduled with some added sightseeing.

On the evening prior to the beginning of the hearings, I think it would be extremely advantageous if we were able to schedule a dinner, hopefully hosted by the Governor at Washington Plac^ in which the Hawaiians could set the mood for the coming week. The Governor could invite the leaders of the Hawaiian movement to meet personally with the members of the Committee. Authentic Hawaiian entertainment performed with dignity would also be highly appropriate

I suggest Washington Place for a very specific reason. It was the home of royalty at an important time in our history and at an appropriate point during the evening an articulate spokesman, as Master of Ceremonies could speak with feeling of lfhisMhome and what it once was, of what Washington Place has meant for generations and generations of Hawaiians. This evening would set the stage for what is to follow. Mr. Arthur K. Kinney November 3, 1975 Page 2

The first day of the hearing should be in Honolulu and should follow the traditional Congressional hearing format. Without doubt, this will be the < single most important day of the entire hearings and accordingly, it is essential for the success of the Hawaiians’ case that all of the necessary and supportive testimony be presented in a well-documented and eloquent manner. The maintenance of the proper decorum is of the utmost importance and no amount of well-intentioned showmanship can adequately substitute for a reasoned and graphically-presented statement of the facts.

'r ī. would further suggest that the first day’s testimony should be in three distinct sections.

1) PRE-QUEEN LILIOKALANI

During this section the point should be convincingly made that the Hawaiians were then in charge and in their prime. They controlled these islands; they were energetic, productive, proud men and women— they were the Golden People of the Pacific. No more than two witnesses with recognized expertise on the history of this period should present the testimony of this period.

2) A FACTUAL PRESENTATION OF THE ACTUAL OVERTHROW AND THE CIRCUMSTANCES SURROUNDING THE OVERTHROW OF QUEEN LILIOKALANI

Carefully chosen experts should focus-upon how-this plan was conceived. Who was involved?' Who actually stood-to-benefit-?— This discussion should include a very precise presentation concerning-the actual role of the United States Marines and'the official United States Government'position relative to this affair. The subsequent Congressional and Executive Department official reports on this incident are also highly material. Not more than two expert witnesses should suffice.

* 3) THE PERIOD AFTER THE OVERTHROW OF QUEEN LILIOKALANI

What have been the enduring effects on the Hawaiians? How did this tragic event affect their cultural heritage, their morale and their economic status? What has happened to the all-important pride of the once powerful people? Why is it that now, with between 9.3 to 19.1 per cent of our state’s population, the Hawaiians received 27.6 per cent of the public assistance outlays in 1974, that their children comprised from 53 to 54 per cent of the youth committed to juvenile correctional facilities in our state, Hr. Arthur K. Kinney November 3, 1975 Page 3

and that some 43 per cent of those on parole were of Hawaiian ancestry? The figures for our educational system are also equally shocking: with 30 per cent of the children in school being of Hawaiian extraction, we find that only 5 per cent of the graduating students are. But perhaps even more instructive is the realization that whereas the Hawaiians once owned 100 per cent of the land at the time of the Great Mahele of 1848, today they own less than 1.4 per cent in Hawaiian Home Lands and probably even less in private ownership outside of the major estates.

Witnesses for this section should include a sociologist and an economic historian nnd be limited to not more-than three. The tenor of the first day-s. testimony will be sad. You should strive to show how great the Hawaiians once were— a successful and proud people. Then, in graphic detail, you should describe the tragic event of the overthrow of' the Queen. Finally, in an agonizing crescendo, you should vividly describe how this single event has had the most tragic and utterly devastating effect on your people. In essence, you will be presenting your case before a jury; a jury composed of the elected representatives of the people of the United States, the Congress of the United States.

I can assure you that to win your case, you will need to call upon the skills of experienced expert witnesses who have impeccable credentials. You must select men and women who have both a deep feeling for the plight of the Hawaiians and who can also graphically and precisely argue their case. You need men-and-women who can convince the jury that the facts unquestioningly support—your_position. These experts must be carefully chosen and embody a range of disciplines— historians, sociologists, anthropologists, and psychologists. You must have the facts: figures, charts, documents for the record. "Our Hawaiian people are first class people". This message must be transmitted and heard. Remember, however, that few members of Congress or even of the Interior Committee will see and hear you. The vast majority must be convinced by the written record of your presentation. I cannot overemphasize the fact that the first day of these hearings is not the place for showmanship— for dancing, for chanting, or for evocations. You must rely on the facts and select your witnesses to carefully prove your position. While luncheon should be planned, the evening should be left free. Hr. Arthur K. Kinney November 3, 1975 Page 4

The second day of the hearings should be scheduled for Kauai. We can have breakfast in Honolulu and then fly to Kauai later in the morning. The basic theme for this day should be one of getting to know the Hawaiian people. The emphasis should be on the sights, sounds, and smells that are uniquely Hawaiian.

It is important to insure, however, that the Hawaiians do not go too far out of their way to put on a special luau or show. We want the Committee •'members to understand and appreciate the Hawaiians as living people, as they really are. The basic generosity of- the people and -the aloha spirit can come through without any show of. extravagance.- We want them to see how the Hawaiian lives, what liis lands:-look, like, what liis crops-taste like. Perhaps the Committee might have the opportunity to hear .from an old timer who remembers how things used to be— and how much he loves his people and his country.

During the second evening, there should be nothing formally scheduled. Instead, I might host an informal dinner for the members of Congress and their wives if some are present. This evening will be spent in Honolulu.

On the third day, I think we ought to visit the Big Island and should schedule our arrival for around noon.' Again, lunch should be arranged so that the Committee can meet with the Hawaiian people informally. I think it would-be especially useful for the Members of Congress to be able to personally view and be able to walk about the Hawaiian Home-Land sites and informally^chat^with =those who J.ivē"_there.-Their informal~visits will undoubtedly fill'the entire afternoon and be somewhat-physically tiring.~ Accordingly, I would suggest that the evening be kept open.

The next day should be arranged to be completely free to allow the members of the Committee to have time to engage in their other Interior Committee duties and visit the Volcano National Park. That evening, we would fly back to Honolulu where again, the evening will be free.

Oh the fifth and final day, provisions should be made for general sightseeing on Oahu. This is when you will have the opportunity in the closest contact to very discreetly tell your side of the case. It is extremely important, Mr. Arthur K. Kinney November 3, .1975 Page 5

therefore, that the most articulate, knowledgeable, and personable individuals possible among your group be selected as drivers and guides. The sequences of the sights should also be carefully selected in order to give the members a deep personal appreciation for Hawaii’s culture, beauty, and uniqueness, with the truly Hawaiian aspects being subtly intertwined.

For example, I would suggest that a drive over the Pali with a stop at the majestic lookout with its fascinating history should then be followed by a brief tour through Waimanalo. Similarly, a ride along the Waianae Coast would provide a ready opportunity to contrast the expensive hotels and condominums of Waikiki-with-the small, .but personable, Hawaiian homes - of Nanakuliv--- Again, a brief stop at Papakolea en route to the national cemetery could be most impressive. Finally, after thetour, the rest of the day should be kept free so that the members have the opportunity to perform various personal errands or shop as they may desire.

For your information, I am continuing to work very closely with Senator Henry Jackson, Chairman of the Committee on Interior and Insular Affairs in order to schedule a specific date for these hearings. At this time, it would appear that a February date may be possible. I shall be in touc.h with you further as matters are firmed up and I am enclosing a draft of the legislative resolution which I hope will be the vehicle for these hearings.

Aloha,

DANIEL K. INOUYE United States Senator

DKIrbhm Enclosure

P.S. I look forward to meeting with you and your associates on Saturday, November 15th. P.P.S. The foregoing suggested hearing schedule obviously sets forth only the basic framework. In addition to the expert witnesses mentioned therein it would be my hope that the leaders of our community— govern mental, economic, social etc.— would also come forth to express their support for either the resolution or the basic underlying principle of the Hawaiian claims. Because of time constraints such oral expressions should be brief. Longer detailed statements are certainly not only appro priate but welcome for the record in written form. Such supportive testimony from community leaders should be presented on the initial day of the hearings 8qd80® / MsiasrDCi)^ Ēco8Q<«]ffejg / Kteoodfeto^ CflgmaSB (DdMl^i PCD®0D®

February 2, 1976

MEMO TO: Board of Directors

FROM: Jerry Kaluna

RE: Upcoming Hawaiian Hoike Rally

Enclosed for your information is the proposed program for the Hawaiian Hoike Rally to be held at the McKinley cafetorium on February 8, 1976 commencing at 12:00 noon.

Please note that some of the members have been assigned to speak on certain sections of our bill during the panel discussion. If you have any question on your assignment, we can discuss it on Saturday, prior to or during the Board meeting.

As you can see by the line-up, we are trying to encourage participation by ether Hawaiian organizations. If you have any suggestions, please present them on Saturday.

Mahala^'

XJerry/£a luna /Chaiijtian/ Sejtfa^e hearings Committee JK/m^r TENTATIVE SCHEDULE

HAWAIIAN HOIKE RALLY

12:00 noon Food & Entertainment (cafetorium) 1:00 p.m. ALOHA FILM Resolution panel* (multi-purpose room)

.2:00 p.m. Auction-Sale-Hawaiian Goods Entertainment (cafetorium)

3:00 p.m. Panel - Senate Bill* (multi-purpose room)

5:00 p.m. Entertainment: Pule - Pau (cafetorium)

6:00 p.m. Clean-up

♦Resolution panel: Winona Rubin, Richard Duarte, Paige Barber

♦Panel on Bill: Carmen Oliveira, Myrtle Mokiao, Gard Kealoha B. Kaohimaunu, and Lori Watland (ask questions) HAWAIIAN HOIKE RALLY (continued) PRESENTATION

Establishing illegal overthrow (section 2) Arthur A. Hoke 2h million acres of land (section 3) Charles L. Rose Dominion rights & 5% royalties (section 4 & 6) John M. Agard

$1 billion settlement (section 4) Don Wright

Blood quantum (section 3 & 7) James Kama

Definitions (Hawaiian Archipelago, Aboriginals etc. - section 3) John M. Agard

$2% million Obligations incurred by ALOHA (section 9) Elaine Kaopuiki

H awaiian Aboriginal Fund (section 6) Poua Beaver

Hawaiian Aboriginal Roll (section 7) William Char

Taxation (section 8 ) Vernon White

Miscellaneous (section 13) Manuela Rodrigues Richard k. Hoopii, Sr.

Hawaiian Aboriginal Corporation (section 5) Charles K. Maxwell, Sr.

over-all theme of panels:

1. present information and views on resolution or bill

2. encourage audience to participate by asking questions

3. encourage our Hawaiian unity

4. obtain consensus of pros and cons on resolution and/or bill. Tentative program for Hearing 2/9/76

9:00 Religious ceremony and song Myrtle Mokiao

9:30 Opening/Religious presentation Reverend Akaka

9:45 Politicians

10:15 Professional experts Russell Apple (assist set-up) (Historian) Marion Kelly (Anthropologist) Georgiana Padeken (Social Services worker) Myron Thompson (Sociologist) John Dominis Holt (Historian) Daniel Akaka (Educator) Betty Ann Rocha (Cultural expert) George Kanahele (Hawaiian Businessman)

11:15 Aloha's Case Louisa K. Rice, Founder Arthur K. Kinney, President Jerry Kaluna (resolution) John Agard (over view of resolution) Charles Rose (resolution alternative) Arthur Hoke (legal view on alternative) John Agard (over view of resolution)

12:15 Organizations David Harada, United Methodist Church Robert Freitas, Papokolea Community Association Dawn Wasson, Hui Malama O Aina Laie Luka Naluai, Hui Malama O Aina Koolau Stan Mole, Giants of the Valley Lois Pennington, Hawaiian Studies-UH Thomas Ma'a Pete Thompson, Ethnic Studies-UH Kamuela Price, Hou Hawaiians Maui Loa, Hou Hawaiians

Individuals

♦additional names to be included upon confirmation Congressional Research Service The Library of Congress

Washington, D.C. 20540

March 2, 1981

To : Honorable Daniel K. Inouye Attention: Pat DeLeon

FROM : American Law Division

SUBJECT : Federal Grant Programs Specifically Including Native Americans, But Not Native Hawaiians, Among Their Beneficiaries

This is in response to your request for a listing of all federal grant

programs which specifically include Native Americans among their beneficiaries

but which do not specifically include Native Hawaiians. A JURIS search dis- I/ closes the following:

15 USCA 631 (1980 Supp.)— for purposes of the Small Business Adminis tration's minority business development programs, defines socially disad vantaged persons as "Black Americans, Hispanic Americans, Native Americans, and other minorities."

15 USCA 637(d)(3)(C)(ii)(1980 Supp.)— for purposes of minority busi ness subcontracting program, defines "socially and economically disadvan taged individuals" as including "Black Americans, Hispanic Americans, Native Americans, and other minorities...."

20 USCA 1221h (1980 Supp.)— for purposes of Indian Education Act, de fines Indian as including members of recognized tribes and Eskimos, Aleuts, and other Alaskan Natives.

29 USCA 750 (1980 Supp.)— for purposes of "American Indian Vocational Rehabilitation Services" program, defines "Indian tribes located on Federal and State reservations" to include village corporations created under the Alaska Native Claims Settlement Act.

31 USCA 1227(b)(4)(1980 Supp.)— for purposes of defining entitlements of local governments for revenue sharing funds, includes Indian tribes and Alaskan Native villages with recognized governing bodies.

1/ This listing excludes Title 25 of the U.S. Code, which is devoted entirely to Indians, and the "Alaska Native Claims Settlement Act" (43 USCS 1601 ejt. seq. ) . CRS-2

42 USCA 1437a(7)— for purposes of public housing program, defines "State" to include "Indian tribes, bands, groups, and Nations, including Alaska Indians, Aleuts, and Eskimos...."

42 USCA 1460(h)— for purposes of urban renewal program, defines "State" to include "Indian tribes, bands, groups, and nations, including Alaska Indians, Aleuts, and Eskimos...."

42 USCA 1476(a)— for purposes of grants for demolition of structures that are unfit for human habitation, includes among eligible recipients "Indian tribes, bands, groups, and nations, including Alaska Indians, Aleuts, and Eskimos...."

42 USCA 1468— for purposes of grants for programs of strict code en forcement, includes among eligible recipients "Indian tribes, bands, groups, and nations, including Alaska Indians, Aleuts, and Eskimos...."

42 USCA 1468a— for purposes of interim assistance grants for blighted areas, includes among eligible recipients "Indian tribes, bands, groups, and nations, including Alaska Indians, Aleuts, and Eskimos...."

42 USCA 1500d-l(4)— for purposes of grants for acquisition and develop ment of open-space land, includes among eligible recipients "Indian tribes, bands, groups, and nations (including Alaska Indians, Aleuts, and Eskimos)...."

42 USCS 4577 (1980 Supp.)— for purposes of grants and contracts to prevent and treat alcohol abuse and alcoholism, includes among eligible recipients public and nonprofit private groups providing services to "native Americans." \o y . ; - y

42 USCS 5302(a)(16)(1980 Supp.)— for purposes of community development grants, includes among eligible recipients "Indian tribes," defined to mean "any Indian tribe, band, group, and nation, including Alaska Indians, Aleuts, and Eskimos, and any Alaskan Native Village...."

42 USCS 6707— from amounts appropriated for public works grants, sets aside 2 1/2 percent for grants to "Indian tribes and Alaska Native Villages...."

42 USCS 6723(c)(4)(E)— for purposes of countercyclical anti-recession grants for public works, includes within definition of "local government" "the recognized governing body of an Indian tribe or Alaskan Native Village which performs substantial governmental functions...."

42 USCS 6863 (1980 Supp.)— for purposes of grants to carry out weatheri- zation programs, includes among eligible recipients "Indian tribal organi zations (serving) Native Americans."

42 USCS 7141(f)(1980 Supp.)— for purposes of loans and technical assis tance to minority business concerns to enable them to take full part in the CRS-3

research, development, demonstration, and contract activities of the Depart ment of Energy, defines "minority" as "any individual...who is a Negro, Puerto Rican, American Indian, Eskimo, Oriental, or Aleut or is a Spanish speaking individual of Spanish descent.

I hope the above is responsive to your request. If we may be of ad

ditional assistance, please call on us. _—

David M. Ackerman Legislative Attorney THE MIGRATION

In recent years, many Pacific Islanders from American Samoa Western Samoa, Guam, Hawaii, and Tonga, have migrated to the American mainland. They came for many reasons, but especially to take advantage of educational and employment opportunities. Pacific peoples are concentrated in the urban centers of the West Coast. In the San Francisco Bay Area, the largest group of Pacific Americans are the Samoan Americans who number some 25,000, and this is followed by 8,000 to 9,000 Tongans, 8,000 Guamanians, and 7,000 Hawaiians. In relation to other ethnic migrants, Pacific Americans are indeed a small population. There are approximately 150,000 residing in California and 100,000 residing in other States. However, Pacific Americans have serious language, educational, health, social and economic problems which continue to be overlooked by the government and other agencies. The symptoms of maladjustment are beginning to develop rapidly and require urgent attention. These include child abuse and neglect, drug abuse, alcoholism, physical and mental ill-health, crime, juvenile delinquency, and increasing outbreaks of violence, especially in urban schools. Samoan Americans provide a good example of the difficulties most Pacific Americans face in attempting to adjust to urban life in the United States. A Department of Health and Human Services-sponsored study concludes:

Illustration by Mataunru Toelupe Alisa The socioeconomic and demographic data collected by this research effort clearly suggest that American Samoans residing in the United States constitute a target population which faces severe constraints in attaining an acceptable standard of living and a satisfying lifestyle (MKGK Inc. "Assessment of HEW Services Delivery to American Samoans", Region IX, 1980) There are approximately six or seven persons living in an average Samoan American household. Although two or more family members may be employed, family income is generally below average. Samoan Americans face enormous difficulties in locating decent and sanitary housing, receiving adequate health care, finding and maintaining a job. The survey quoted above has documented an unemployment rate of 26 percent, and as high as 60 percent among youth in some areas. But despite these difficulties the Samoan American population has many positive attributes which help in adaptation. Perhaps the most important is the strength of family ties and other social arrangements.

- 2 - MAJOR CONCENTRATION OF SAMOAN POPULATION

Los Angeles County San Francisco County Orange County San Diego County Santa Clara County Alameda County

SECONDARY CONCENTRATION OF SAMOAN POPULATION

Riverside County San Bernardino County Ventura County Monterey County Contra Costa County Sacramento County Solano County Sonoma County Santa Cruz County

SAX P&xCiSCP SAW MAt<0 SAX TA LLal.

ESTIMATED POPULATION OF SAMOANS IN CALIFORNIA - 100,000

- 3 - THE RESPONSE

The National Office of Samoan Affairs Inc. (NOSA), is a nonprofit community-based organization operating in the State of California since 1976. The mission of NOSA is to develop and maintain a leadership position in helping create employment and better human services for all underpriviliged Samoan Americans residing in the United States. NOSA provides a variety of services to the Samoan American community and to public and private agencies, which are funded mainly through State and Federal grants, voluntary contributions, and contract fees. NOSA's ability to bring together and to respond to the needs of Samoan Americans is central to the bringing about of institutional changes as well as to the provision of effective direct services. NOSA organizes and coordinates the activities of Samoan American groups, provides technical assistance for bidding on contracts, and serves as a liaison for obtaining contract procurement opportunities. Among the groups served are:

• National Island Women’s Association (NIWA), an association of Samoan, Tongan, Hawaiian and Chamorro women; • Samoan Women for Change; • Pacific Islander Educator's Association; • Pacific Advisory Council, a core advocacy group of Pacific Americans employed in various professions; • National Association of Pacific Island Advocates (NAPIA);

as well as numerous Samoan church organizations located throughout California. As a multifaceted center NOSA is the only Samoan American organization concerned with all aspects of Samoan American concerns and needs. The Office maintains an overview of the needs of Samoan Americans and takes responsibility for advocacy and program creation whenever significant issues pertaining to the well-being and adjustment of Samoan Americans arise. NOSA is able to act as a central place where needs identified by the Samoan American population can be expressed and where solutions can be explored. NOSA manages local and national projects from its offices in San Francisco and Los Angeles. The following project summaries highlight recent corporate experience: REPRESENTATIVE PROJECTS

MENTAL HEALTH PARAPROFESSIONAL ASSESSMENT OF HEALTH, EDUCATION TRAINING PROJECT AND WELFARE SERVICES DELIVERY TO SAMOAN AMERICANS For the National Institute of Mental Health, we are undertaking a three- In late 1976, the Department of year project to impact mental health Health and Human Services (formerly services and increase the utilization DHEW) proposed a study to evaluate of mental health and related services the effectiveness of DHEW services by the Samoan and Pacific American to Samoan Americans in Hawaii, community through the use of trained California, and American Samoa. The bilingual paraprofessionals in Los study was carried out by MKGK Inc., Angeles and San Francisco. an independent research consulting firm, and NOSA during 1978 and 1979. NOSA operates two training sites which provide instruction on the norms, The severe constraints faced by priorities, and needs of the Samoan Samoan Americans are summarized in community. This community-based the report. These include language learning emphasizes the Pacific American difficulties, cultural differences, value system that students should inadequate information on services know about, regardless of their personal availability, and difficulty in belief. In addition to community- identifying and responding to the based seminars and two years of academic needs of the Samoan American population. work in a community college, students The report lists eight recommendations are provided with closely supervised that will enhance the delivery of practical experience in mental health human services to Samoan Americans. service agencies each semester. These recommendations are part of The results of on-going evaluation the blueprint for NOSA’s activities. indicate that the project is making a positive impact on the mental health EMPLOYMENT AND TRAINING PROGRAM services delivery system and will provide a firm foundation for the The project arose from concern over training and development of Samoan mental the need to inventory and analyze the health workers for years to come. wide spectrum of community and agency resources available in areas with a ADULT EDUCATION high concentration of Samoan Americans, and to develop a methodology for The adult education project arose from ensuring that these resources are concern over the need to identify the utilized to the fullest extent style of adult learning within the Samoan possible by economically disadvantaged culture so as to develop a replicable members of the population. model for adult education and basic skills improvement. Community facilitators from San Diego, Los Angeles, Orange County, and the NOSA offered adult basic education classes San Francisco Bay Area were trained two nights a week in seven different to identify and define the scope and locations throughout California. The nature of employment and training curriculum developed by NOSA includes services, resources and concerns in exercises in basic written and spoken ! each of the above sites. Some 160 English and basic maths. Role playing, agencies were contacted for first small group discussion, and a number of hand information. A bilingual strategies for teaching undereducated community resource book identifying Samoan adults were identified during the all available community and agency first year of the project and are described resources and ways of obtaining in a separate teacher's guide book. access to these resources was produced. The project has created a "value revolution" An employer-agency resource book was by maintaining the viability of the family also produced, and a Samoan employment unit and bringing adults and adolescents task force was created in each area f together in education. to carry out resolutions developed at State CETA-sponsored workshops.

- 5 - ASSESSMENT OF MANPOWER PROGRAMS MEDICAL RESEARCH

Employment, training, and income security NOSA is working with the University issues impacting on Samoan Americans as of California, San Francisco, to they migrate to the United States have develop a project that will analyze received scant attention by the Department the biocultural and socioeconomic of Labor, employers, State Employment antecedents of obesity among Samoan Services, CETA prime sponsors and other Americans, a population known for service providers. the very high prevalence of obesity among individuals exposed to the In response, the Department of Labor effects of modernization. funded a two-year study of the impact of manpower programs on the Samoan American NOSA has previously engaged in pilot community. The study found that Samoans studies for UCSF under subcontract, have limited channels thorough which to such as the Familial Diabetes Project, enter the workforce. They face significant the Samoan Dental Health Care Project, barriers which are both internal and and the Diabetes and Hypertension external. They are disadvantaged because Screening Program. of their migrant status, their education background and lack of fluency in spoken CHILD ABUSE AND NEGLECT PROGRAM and written English, and their lack of knowledge about the resources that are NOSA is developing a child service or can be made available to them. More improvement project for Pacific importantly, the existing links between Americans. The major objective is the community and employers, service agencies, to work with several child protective and training institutions are very weak. service agencies to develop a service Most employers, agencies, etc., do not improvement model that can be know of the existence of the population, and replicated for use with Pacific even if they did they would not know how American clients throughout the United to improve their services so as to make States. a more positive impact. Currently, child abuse and neglect are serious problems in the Pacific ETHNIC HERITAGE PROGRAM American community, in part because traditional Pacific child-rearing The U.S. Department of Education has practices (e.g., corporal punishment, funded NOSA to develop a number of services child care by older siblings) are in that will lead to improvements within the conflict with mainland practices, and school system in respect of Samoan and other in part because the combined stresses Pacific American students. The emphasis of unemployment poverty, overcrowding, is on a multicultural approach through substance abuse and similar factors which students can develop a positive self- create a setting that encourages image while maintaining their own cultural family violence. identity. A teacher’s guidebook and a parent's resource SAMOAN NEWSLETTER book have been produced. The project has also provided workshops and seminars for i A series of newsletters was funded teachers and students on conflict resolution by the Department of Health and Human and ways of using Pacific American materials Services, Region IX, as part of its in the classroom. Key concepts were identified interest in helping improve communicat and exemplary strategies were provided for ions among and between government teaching these concepts to students at the agencies and the various Pacific intermediate and upper grades. American groups. Since the newsletter's inception in September 1979 until January 1980, NOSA collected and disseminated up- to-date information about local and national issues. - 6 - PROGRAM PLANNING AND EVALUATION

As the above project summaries indicate, NOSA is experienced in all phases of the project cycle, from planning through evaluation.

Working in collaboration with a small group of Pacific consultants known as ACTION RESEARCH INTERNATIONAL, NOSA has developed the institutional capacity to engage in all types of research, and to provide technical assistance such as administrative capacity development, program management, and grantsmanship to agencies and organizations in the United States and Pacific territories. Specific areas of expertise are:

• needs assessment; • selecting, designing, and planning of programs; • feasibility analysis; • program implementation, supervision, and design or monitoring of management control systems; • evaluation and follow-up.

CONSULTING SERVICES

NOSA offers a variety of services, including the design and management of conferences, seminars, and workshops which deal with Pacific American issues. Among the topics most often requested are physical and mental health, education, employment and training, the law and community relations, and leadership and organizational development. Facilities for both large and small meetings are available at the NOSA Training Center, located at the Center for Educational Development building, 1855 Folsom Street, San Francisco. The following are some of the more popular Pacific American education and other workshops offered by NOSA:

Using Pacific American Materials in the High Schools The general objective of this workshop is to encourage teachers and students to exchange experiences and learn about each other's lives and cultural background. The focus is on building communication skills and providing helpful guidance to both Pacific and non-Pacific American students and teachers through the use of specifically developed materials which contain selected social, economic, political, and cultural aspects of Pacific American life. I

Teaching Strategies This workshop is useful to adult educators involved in teaching undereducated Samoan American adults and to high school teachers of Samoan American children. With respect to the latter group whose cultural conditioning emphasizes cooperation rather than competition, the competitive classroom situation can seem very threatening. This workshop demonstrates the use of small group cooperative learning techniques in reducing personal conflict and increasing personal success and self-esteem.

- 7 - Workshops for Service Agencies and Pacific American organizations

Workshops can be one of the most effective answers to a number of problems which both the community organizations and service agencies face in the human services and service delivery fields. They address the following:

• encouraging Pacific Americans to participate in agency programs; • exploring with Pacific Americans the wide range of choices available to them; • identifying for workshop participants the agencies, programs, and services that impact on Pacific Americans; • providing service agencies, manpower programs and directors, and employers with information on Pacific American culture, human service needs, and barriers to service utilization.

The purpose of conducting workshops for community organizations is to develop sound management and organizational skills. The following is a representative sample of topics that are discussed at these workshops:

1. Strategies involved in program and resource development:

• what are the basic concepts of progran development • how to locate funding sources • Important elements of a funding proposal 2. Developing goals and procedures:

e how to up-date and refine organisational goals and objectives e bow to implement priority setting processes e how to develop, refine, and Implement a quarterly check point instrument and procedure to monitor an organization's progress toward objectives, problems, and needs, budget status, and status of any contracts maintained and adadnistered by the organization 3. Planning and research for fund raising and support:

e how to establish and maintain support from, but not limited to, business, public interest, professional and educational sectors e how to establish and maintain lines of cossninicatlons to and support from local, state, and federal governments

4. Evaluation of social service programs:

s what program evaluation is, why it is done, who does it, and how It is done e how to implement procedures which will expedite decision making process s how to establish accurate records for accounting of receipts and disbursements of operational expenditures against budget in compliance with funding source guidelines s how to make necesaary work program and budget amendments 5. Report writing: s all forms of written cosBunications— memos, bulletins, letter reports, booklets, committee minutes, and reports 6. Developing agency newsletter and using media:

s technical steps involved in producing newsletter; s financing of newsletter e circulation s creating public awareness

7. Developing effective volunteer support systems:

e staffing, recruiting, interviewing, and placing volunteers 8. The governing board and the advisory board: s role of boards e ensuring coamunlty representation s planning policies

- 8 - THE FUTURE

NOSA has done much to open up the channels for communication between groups in the United States, our home countries, and the Samoan American migrant community. However, more cooperation and commitment at all levels are required if we are to succeed in helping disadvantaged Samoan Americans overcome some of the problems described earlier. In particular we need to build relationships with legislative bodies of government and achieve our goals through the use of legislation. The most effective way of doing this is to provide legislators with accurate information of a given issue. NOSA has identified the following related issues to be of major concern to most Samoan Americans, and they will be used to guide our future efforts. Lack of visibility: Pacific Island migrants to this country, most of whom are now American citizens, have always been considered an "insignificant" population. They are usually overlooked in the planning and funding process of government agencies. The existing process used by government and other agencies to identify populations places Pacific Islanders in a category without an identity— the "other" category. In recent years, the term "Asian American" has been expanded to include Pacific Americans. While the latter share much in common with Asian Americana, since both are minority groups residing in the United States, there are important differences, especially in culture, physical features, migration patterns, and history. There are some 29 distinct ethnic groups under the category "Asian Pacific American” and funding has been given to so-called "Asian Pacific" organizations which have no impact nor contact with Samoan Americans. Given the absence of any standard or concrete method of identifying Samoans, it is not surprising that most employers, government departments, and service agencies do not know about nor understand the needs of this special population. Therefore, NOSA will work with other Samoan American organizations to ensure that the designation "Pacific" be separated from the "Asian Pacific American" cate'gory in all areas of governmental and non governmental involvement so as to reflect the real needs of the Samoan American migrant population.

Lack of programs for Samoan American migrants: Programs affecting Samoan American migrants to the mainland iand Hawaii are distinct from those affecting Samoan Americans and other Pacific Islanders living in the U.S. territories. The needs of the former are greater due to their migrant status, low socioeconomic status in relation to other groups, and the lack of an institutional ! - A infrastructure that can assist in overcoming the I'f problems of adjusting to a highly industrialized urban way of life. Furthermore,

- 9 - the U.S. territories are non-competitive regions for government funding. By contrast, the resources and programs available to Samoan Americans migrants are highly competitive and sadly inadequate.

Therefore, NOSA will work with other Samoan American organizations and the American Samoan government to develop realistic strategies for ensuring adequate program and resource development for Samoan American migrants. Funds are currently being sought to implement a migrant integration and adjustment program, a paraprofessional training program in alcoholism counseling, a bilingual education project, a child service improvement project, and a biocultural and socioeconomic antecedents of obesity project.

Lack of institutional infrastructure

At the present time there is an unrecognized pool of talent and a number of voluntary, community-based organizations attempting to serve the various needs of the Samoan American migrant community. However, these organizations, including NOSA, have been forced to develop a piecemeal approach to meet some of the migrant community's needs which are becoming more pressing and urgent. Many of these organizations lack the ability to articulate their needs and to meet the requirements for obtaining program services. There is a lack of coordination in their various efforts to secure services, and very little attempt has yet been made to tap the organizational talents and abilities of the various leaders in order to solve common community problems. Because of its track record and proven organizational skills NOSA is attempting to join forces with other Samoan American organizations to fulfill human service needs unmet by formal agencies. NOSA recognizes the need for a concentrated support system to coordinate and tap the existing resources in the various organizations and those existing in the wider society. It is important to realize that people from other cultural and ethnic backgrounds cannot effectively develop and operate programs for Samoan Americans. What is needed is a Pacific American institutional base to more effectively influence mainstream policies, program perspectives, and practices. Such a base could potentially counter and neutralize large-scale institutional rejection and social policies of benign neglect. But most of all it establishes the organizational superstructure for meeting the community's needs and for enhancing the peoples desire to shape their own destiny at both the community and wider levels of society. The broad range of services required by the Samoan American community— such as education, health, employment and training, justice, immigration, housing and social welfare, research, and communications— can be made more readily available through leadership training, better coordination, and better collaborative efforts. i The steps we will take include the development of an integrated funding project. The project would provide the following services at various urban service centers established for this purpose:

• develop and distribute bilingual • develop and conduct workshops materials for service providers develop and implement comprehensive • develop curriculum materials program for migrants for schools provide translation services • conduct needs assessment provide technical assistance • establish resource exchange program design, implementation, and networks • research evaluation for basic skills improvement, mental health, etc. - 10 - The proposed integrated program will assist NOSA in its efforts to meet the critical needs of Samoan Americans as described above. The proposed activities will be ongoing and will be reflected in the number of programs funded. They are consistent with the functional purpose of this agency, namely, to assist the adjustment of Samoan Americans by helping them develop the necessary skills and self- confidence to become less dependent and more self-reliant. An integrated funding program will permit NOSA to integrate all activities into one design to promote comprehensive planning; to plan a single budget process so as to optimize the ability to manage all resources; and to coordinate and adapt existing projects, including those which have been funded specifically for the Pacific territories and Hawaii, in order to avoid duplication.

******

- 11 - STAFF

Executive Director - Pat Luce, M.S.

Ms. Luce serves as Executive Director for the National Office of Samoan Affairs Inc. At times, she acts as projects monitor and provides direct services to participants in various programs. These services include strategic planning, policy analysis, program planning, implementation and evaluation. As an active member of the Pacific American community, Ms. Luce has been involved as a consultant with various agencies in relation to Pacific American affairs. Among her recent affiliations are: Human Rights Commission, State of California; Lt. Governor's Inter-relations Commission; Department of Health and Human Services, Regional Advisory Council on Samoan Affairs; U.S. Department of Labor Task Force on Employment and Training of Samoans. She recently returned from an extensive tour of Micronesia, acting as a senior consultant for the validation of Head Start programs. Ms. Luce received her B.A. in Psychology and Sociology from the University of California, Davis, and her M.S. in Counseling from the California State University, Sacramento. She has been actively involved in education since 1971 as a researcher, teacher, career counselor, and resource specialist.

Research and Planning Director - Alexander Mamak, Ph.D.

Dr. Mamak is assisting in the planning, implementation, and evaluation of government-funded projects in education, labor resource development, and social change for the National Office of Samoan Affairs Inc. His research experiences with Pacific Americans date back to 1969 when he undertook a study of sociocultural change in a Hawaiian community. Since then he has researched ethnic group behavior, urbanization, and conflict in the Fiji Islands; rural-urban migration and institution- building in Colombia, Latin America; and the urban adaptation of Pacific Island migrants to Australia and the United States. Dr. Mamak is the President of Action Research International, a minority- owned research-for-development firm. He received his B.A. from the University of California, Berkeley, and his M.A. and Ph.D. degrees in social anthropology from the University of Hawaii. He held an associate professorship in sociology and anthropology at the University of New South Wales, Sydney, Australia, and served as a research associate at the University of California at Santa Cruz. He has also held a faculty appointment in anthropology at San Francisco State University, and is the recipient of a UNESCO book publishing award and two grants from the Wenner Gren Foundation for Anthropological Research. Dr. Mamak has written five books and numerous articles on development, one of which is available in both Spanish and German.

Program Coordinator and Pacific Affairs Consultant - Latu Eveline Fusimalohi

Ms. Fusimalohi is currently involved in coordinating a mental health paraprofessional training project sponsored by the National Institute of Mental Health. She is a specialist in bilingual education and educational research.

- 12 - Ms. Fusimalohi is a Ph.D. candidate in the Department of Education, Stanford University. She is a native of the Kingdom of Tonga, and has extensive teaching, research, and administrative experiences in both the United States and abroad. She has received numerous awards from such institutions as the American Association of University Women, the United Methodist Board of Higher Education and Global Ministries, and the Pan Pacific Women's Association. In addition, she has been an active participant in conferences sponsored by such organizations as the Association of Social Anthropologists in Oceania, the National Association of Asian Pacific American Educators, Women on the Move, and the Northern California Bilingual Association.

Executive Secretary/Administrative Assistant— Lina Tuofono

Ms. Tuofono serves as Executive Secretary/Administrative Assistant for the National Office of Samoan Affairs Inc. She has extensive administrative experience with a number of firms in the San Francisco Bay Area.

Fiscal Officer— Gen Gray

Ms. Gray is responsible for effective control and accountability of all project funds and property acquired for project use. She also insures that each contract has the human, financial, and physical resources necessary for successful completion. Prior to joining NOSA, Ms. Gray was employed for 12 years as an accounting specialists at the Far West Laboratory, Center for Educational Development, San Francisco.

- 13 - RESOURCES

Videotapes

Omai Fa'atasi: Samoa mo Samoa. A Samoan community group, Omai Fa'atasi, presents a view of the problems facing youth in the growing Los Angeles Samoan community. The tape accurately depicts the problems of identity confronting local born Samoans, especially the young women. Stereotyping and its effect on shaping attitudes are also highlighted. 3/4 inch video cassette. Running time: 30 minutes.

Ralph Story's Secrets of Los Angeles. A five-minute documentary on the Samoan community in Los Angeles, this film was shown as part of the Channel 2 NEWS in late 1980. Mr. Story won a writing award for the film. 3/4 inch video cassette. Running time approximately 5 minutes.

The Samoan Community in San Francisco. This film was shown as part of Channel Two’s Asians Now program in San Francisco in late 1980. The film focuses on the census and its potential impact on the Samoan community, including a discussion of critical issues and concerns of the community. 3/4 inch video cassette. Running time approximately 25 minutes.

Samoans— Children of Paradise. This film was shown in two segments in June 1980, on KPIX-TV, San Francisco. It covers all the major issues, including migration and integration of Samoans in San Francisco. Running time: 30 minutes.

Note: All of the above films are available for rent from the National Office of Samoan Affairs Inc. NOSA actively collaborates with film makers in producing documentaries and other programs on the Pacific American community in the islands and on the American mainland. NOSA is working with other Pacific American organizations to form and operate a minority program consortium funded by the Corporation for Public Broadcasting.

NOSA Publications

Samoan Adult Education Program: A Guide for Teachers, 1980. Samoan Adult Education Continuation Report, 1981. Samoan Americans in Employment and Training: A Resource Book for Employers, trade unions, educational institutionals, and service providers in California, 1981. Samoan Americans in Employment^and Training: A Community Resource Book, 1981. Pacific American Teaching Materials and Guidebook for Teachers, 1981. Fact Sheet on Pacific Americans on the U.S. Mainland, 1981.

- 14 - S 38126 CONGRESSIONAL RECORD — SENATE December 18, 197g pram lor addressing the needs ol the tion 4 and Its House companion (H.J. of non-Hawaiian residents of the island* smaller, less endowed institutions ol 526» were held jointly in Hawaii by the and to limit the power of the Hawaiian higher education. Subcommittee on Public Lands and Re Almost from the day ol its implementa. Today I am pleased to introduce leg sources of the Senate Committee on En tion. there were many pleas lor a return islation to extend and improve the pro ergy and Natural Resources and the Sub to the previous system. gram for assisting developing institu- committee on Indian Affairs and Public Liliuokalani, who wanted to be * slons. The legislation I am introducing Lands oi the House Interior and Insular strong ruler, no doubt welcomed these today addresses many ol the criticisms Affairs Committee. Subsequently, the petitions and found the restrictions of that has been raised over the last few Senate joint resolution was favorably the 1887 constitution very frustrating months regarding the title m program. reported by the Committee on Energy She was planning to call a constitution The legislation has the support of the and Natural Resources, and, as indicated, al convention in the near future to dis« administration as well as educators at it passed the Senate without a single dis cuss the Issue, and, reportedly, had al both developed and developing institu senting vote in October 1977. ready drafted the main provisions of a tions. - The claims of the Native Hawaiian new constitution. Fear that they would The legislation I am introducing today people stem from the overthrow of the be deprived of the advantages they had makes significant revisions in the title III legitimate government of Hawaii In 1893 gained led a small group of foreigners program. The bill adopts the eligibility by a small band of foreign residents of to launch their revolution in January criteria recommended by the administra Hawaii, assisted by the U.S. Minister to 1893. ~ ■.:• tion and currently used by the Office of Hawaii and a detachment of U.S. Ma While Liliuokalani might have re Education in awarding grants. This for rines from a visiting warship. This un sisted the group of non-Hawaiian mula bases eligibility for title in grants warranted intervention in the internal civilians, she realistically concluded that on an institution’s average educational affairs of a friendly nation may have oc the armed forces of the Kingdom of and genera] expenditures and average curred without the knowledge and con Hawaii could not resist the United basic educational opportunity grant sent of Congress and the President of States, and so surrendered, not to the (BEOG) per full time equivalent student. the United States; but the Government revolutionists but to the superior forces This provision insures that funds will of the United States failed to correct the of the United States in the belief that go to the most financially needy institu injustice even when fully informed. she would be restored to her throne as tions. In 1893, the Kingdom of Hawaii estab soon as the facts were known. The bill also establishes a new chal lished by Kamehameha I, uras nearly Disquieting reports about the revolu lenge grant program whereby title HI 100 years old. A constitutional monarchy, tion in Hawaii did reach Washington, funds would be provided to match assist it was ruled by Queen Liliuokalani, who D.C. Annexation to the United States ance from other sources. The purpose of had been chosen by her brother, the was requested by the provisional gov this new grant program is to encourage childless King Kalakaua, to be his suc ernment established in Honolulu, and cessor in accordance with the established was proposed to Congress by outgoing institutions, to seek other sources of constitutional procedure. As Crown funds. President Harrison. However, the pro Princess. Liliuokalani had cemented her posed treaty of annexation was with The overall intent of this bill is to ties to the common people of Hawaii strengthen the administrative integrity drawn from Congress only a month later through frequent royal visits to the by the new' President, Grover Cleve of the title m program. A number of new neighbor islands and rural areas on the reporting requirements have been added land. President Cleveland appointed a Island of Oahu where the national special commissioner, former Congress and the requirement of the use of “as capital was located. Well educated in the sisting agencies” has been dropped. man James Blount of Georgia,’ to go Victorian fashion, she was also a talented to Hawaii and study the circumstances The bill I am introducing strikes .a composer and poet. “Aloha Oe,” one of careful balance between the need to pro of, the so-called revolution and to re hundreds of songs and hymns which she port back to him on what had actually vide assistance to our developing insti composed, is well known today through tutions and the need for program integ happened. out the United States. A devout Blount’s subsequent report was a rity in the multimillion dollar program. Christian, Liliuokalani was known I urge my colleagues to support it.* condemning one. Based on it, Secretary throughout the islands for her generosity of State Walter Q. Gresham advised the to many charities and for her devotion to By Mr. MATSUNAGA (for himself President.- that the U.S. Minister to children. She had traveled in the United Hawaii had in fact aided the overthrow a n d Mr. I n o u y e ) : States and in Europe and had met the S. 2131. A bill to establish the Hawai of the Hawaiian monarchy. He recom rulers and elected leaders of many mended that the .treaty t>f annexation ian Native Claims Settlement Study other nations, including Queen Victoria Commission, and for other purposes; to of Great Britain and the President of not be resubmitted id Congress, and the Comimttee on Energy and Natural the United States. In 1893, she had been urged that the monarchy be restored. Resources. President Cleveland’s message to Con Queen for only 2 years, but she had gress in December 1893, based on the HAWAIIAN NATIVE CLAIMS SETTLEMENT STUDY already established a reputation for firm, COMMISSION ACT OF 1979 reports of his Special Commission and sometimes tough, leadership. Secretary of State, stands as the best Mr. MATSUNAGA. Mr. President; I Since the establishment of a United evidence of our country’s regrettable am reintroducing today the Hawaiian Kingdom of Hawaii in 1795, foreign involvement in an incident which was Native Claims Settlement Study Com residents and visitors had been hospit the single greatest cause of the over mission Act' with my colleague from ably received by the people of Hawaii throw of the Hawaiian monarchy. The Hawaii, M r. I notjye. The prolusions of and, in many cases, were the recipients President said; /'*■ our bill are identical to those of Senate of royal appointments, honors and gifts. • * • by an act of war, committed with th e j Joint Resolution 4, which passed the During this period, the Hawaiian popula particiDation of a diplomatic representativb“**j Senate by unanimous consent during tion of the islands declined sharply, and of the United States and without ^he au- I the 95th Congress. A similar measure was the non-Hawaiian population increased. thority of Congress, the government of a 1 considered in the U.S. House of Rep In 1887, King Kalakaua was compelled feeble, friendly and confiding people has \ resentatives but not passed before to accept a new constitution—sometimes been overthrown * * * A substantial wrong adjournment of the 95th Congress. called the “Bayonet Constitution”— has beeij done which a due regard for our Legislation^ relating to the historic which restricted the authority of the national character as well as the rights of the claims of Native "Ha waiians has been in monarch and which extended the injured people requires that we endeavor to franchise to some of these non-Hawaiian repair * * * the TTnit.ert States cannot jail to > troduced in every Congress since 1974. In vindicate its sense or Justice by an earnest 1977, the four-member Hawaii congres residents while denying it to others and effort to filake all possiDie reparation. * sional delegation agreed that it would be imposing property owmership require best to establish a Federal Commission to ments on those who wished to vote for President Cleveland’s concern for jus study the claims and to recommend to members of the upper house of the tice and the American national character Congress whether or not any legislative Kingdom’s legislature. In short, the Con delayed annexation for 5 years, but, in action should be taken to address them. stitution of 1887-was designed to pro . 1898, with a new administration in office Public hearings on Senate Joint Resolu tect^ the considerable economic interests and in accordance with the manifest tyecWiUber IS, 1979 CONGRESSIONAL RECORD — SENATE S 18427 destiny spirit of the times, Hawaii was coming a Member of Congress, I, along a small but influential foreign elite, many annexed. Under the treaty, the Republic with the other members of the Hawaii of whom were American citizens. Deeply") of Hawaii ceded to the- United States delegation, have worked with dedication Involved in this conspiracy was the U.S. / the absolute fee and- ownership of all to educate and sensitize our fellow Sen Representative to Hawaii, Mr. John L. 7 . public, government and crown lands be ators and Congressmen to the unique Stevens, who arranged to have marines \ longing to the Government of the conditions and needs of this important from a U.S. snip, docked ~in Honolulu ) Hawaiian Islands. Thus, the lands of the constituency and to the Federal Govern Harbor land andenforce the otherthrow. J Hawaiian monarch, and of the people of ment’s moral and legal obligation to at- Despite numerous attempts By the Hawaii, as vested in their Government, tempt to address these needs. It bodes Queen and loyal royalists to regain the were obtined by the United States with well for this body that these efforts have, throne the conspirators prevailed with out any compensation to their rightful for the most part, been responded to continued U.S. protection. A provisional owners, the Hawaiian people. with fairness and compassion. government was soon established. This Mr. President, the bill which I am in The issue of native Hawaiian claims government later transformed itself into troducing today with Senator I n o u y e is one that has arrested the Hawaiian the independent Republic of Hawaii and would enable the U.S. Government to congressional delegation’s attention for waited for annexation/ to the United examine officially for the first time the the past 5 years. In 1975, I introduced States, which was finally consummated,^ events of January 1893. Our bill is not Senate Joint Resolution 155, legislation in 1898. The Constitution of the Republic) a settlement act. It does not authorize similar to that which is presently before expropriated the crown lands without the payment of any Federal moneys to you. Though Senate Joint Resolution compensation and made them available the Native Hawaiian people. It does not 155 was favorably reported by the Sen for purchase by private Western inter- i authorize the transfer of any Federal ate Interior and Insular Affairs Commit ests. Lands held in the public domainT| lands to the Native Hawaiian people. It tee, insufficient time remained in the were also appropriated and transferred || merely provides for the long overdue 94th Congress to achieve full Senate ap to the U.S. Government upon annexa- If investigation requested nearly 90 years proval. An effort was again launched tion. / r | ago by President Cleveland on the basis during the 95th Congress and met with Perhaps the most tragic consequence of the Blount report. The proposed Com success when Senate Joint Resolution 4 of the overthrow has been the serious mission may find that no compensation was favorably reported to the floor by aggravation of a trend toward demorali- should be paid to the Hawaiians, or it the Senate Energy Committee and was zation and alien atToh'ol th6 hatlve Ha- may recommend reparations. If the lat subsequently unanimously passed by the wauan peooie from their former ra ter happens to be the case, the Commis Senate in October of 1978. Unfortunately, tion al cultural, ana individual identity. sion could recommend several alterna the House of Representatives failed to Though they currently comprise 18 per- tives for consideration by Congress. act favorably. - cent of the Hawaii state population, na Ultimately, it would be up to some future Over the past months, I have contin tive Hawaiians almost across the board CongTess to decide 'whether or not such ued to me^t with Hawaiian leaders, in occupy the bottom most rungs of every reparations should be made. dividually and in groups, to discuss and possible socioeconomic indicator. In The Commissioners would be ap consider alternatives to the - Native many ways, they have become strangers pointed by the President of the United Claims Study Commission bill. However, in their own homeland and now face States and would be free to hold public out of these discussions has grown an what I consider to be a severe crisis in hearings and study the historical record even stronger conviction that this is a economic, social, and cultural survival, a In an effort to develop their recommend just cause. While legitimate disagree situation somewhat similar to th at of the ations. ment exists over the extent and nature American Indian. The people of Hawaii and their elected of the proper redress there can be few The Senate Interior Committee report representatives are deeply grateful for who investigate the relevant past who on the original Senate Native Hawaiian the favorable action wl^iich the Senate in all honesty can doubt that a genuine ' Claims Study Commission Act contained took on this proposal in 1977, and I do grievance exists. the following statement: hope that similar expeditious action will History sadly records that the United The Committee has examined the record be taken by the 96th Congress. 1 States did ftdtf choose "a""peaceful, and of this historic, well-documented affair. The • Mr. INOUYE. Mr. President, I wish to responsibfenegutlated route to annexa overthrow of the Hawaiian Kingdom is a take this opportunity to join my distin- dark chapter in American diplomatic and tion of the Hawiian Islands. Instead, by tmilitary history, made darker stUl by the M a t s i/ n a g a , quished colleague, Mr. in ex an act of war in January. 1893. official long failure of the Congress to recognize the pressing my strongest personal support representatives of the United States wrong that was done and to fashion a mmna for the bill we are introducing'today, participated significantly in 'wrongful for making reparation. The case for recogni the Hawaiian Native Claims Ctudy Com and illegal conspiracy ana subsequent tion of the validity of the Hawaiian Native * mission Act. While this is not a measure overthrow or an officially fggffgnized and Claims 1s compelling. It is time for the . which ranks high on the national scene, friendly government that had^nlnved Congress to vindicate the honor and sense of Justice of the United States. it is an issue which has long concerned amicable relations with the Government i the people of Hawaii, both those of of the United States."] hat -feipwdiv Gov Mr. President, the full repair of the Native Hawaiian and non-Hawaiian ernment was the constitutional mon injury suffered by the Hawaiian people blood, and it is one which I am con archy of Queen Llliuokalani of the in Is still unfinished business of this Gov vinced merits the attention and concern dependent and sovereign Kingdom of ernment. Though the legislation we are of the U.S. Congress and of the Ameri Hawaii which has prevailed for over introducing today represents but one can people. 100 years and which was invested with small step toward the final resolution The bill is simple and straightforward; a sophisticated social cultural, economic, of this issue. I believe it is a fair and it purports to- accomplish three goal^L polltlfi&E ana legal organization but responsible approach. I do< not know first. It will provide a clear statement1 which was militarily weak. what the specific results of the Study by the Congress that, in 1893. a wrong '■ilhe coming or the white man, almost a Commission’s investigation will be or Tv as committed by representatives of the century earlier, and the ravages of the what' forms of compensation may be Ujs. government against me sovereign diseases he brought, served to drastically recommended. . .• GoverhTPijnt' 01 tflfi Hawaiian Aingdom weaken the Hawaiian people and their However, I do believe that our Gov-i and_her subjecu; second, it will clearly traditional laws and customs. By the late emment has an obligation to objectively I set forth tfl&C this wrong has never been 1880’s, the increasing Westernization of determine the validity of thft~Fawn.i(ansT redressed; thirdf it will provide^a ve- Hawaiian society and Government under claim and to seek a responsible, redress! hlclg;'tne Hawaiian Native Claims Study pressure from Western religious and of onf~'Natlon’s past transgressions. I| C n m m i . d n w ™ h Nevada Columbia. Upon full implementation of such aatlon at the rate he was receiving by law at’ (Mr. L a x a l t ) were added as cosponsors a system, the District of Columbia can enter the time of his death, said sum to be con of S. 1963, a bill to require congressional the bond market rather than borrow from sidered inclusive of funeral expenses and. approval before gold could be sold from, the United States Treasury far capital funds, all other allowance». »- • as it now does. Until the District can issue UJ5. 6tocks. bonds, tls abllty to continue uninterrupted SEN ATI JOINT EESQL.UT10N _j*0 . borrowing from the Treasury Is vital to the SENATE RESOLUTION 313—SUBMIg:: At the request of Mr. W i l l ia m s , the continuation of District building projects. This waiver would not be disruptive to the SION OF A RESOLUTION RELAT Senator from Indiana (Mr. B a y h ) , the budget process because of the Inclusion of ING TO GOVERNMENT FAILURE Senator from Minnesota (Mr. B o s c h - funds for capital projects in the District of TO CURB ITS ENERGY USE w i t z ) , the Senator from New Jersey Columbia's Fiscal Year 1980 budget appro (Mr. B r a d l e y ) , the Senator from Min p riation s. Mr. ROTH submitted the following nesota (Mr. D u r f n b e r g e r ) , the Senator For the foregoing reasons, pursuant to resolution, w’hich was referred to the from Utah (Mr. H a t c h ) , the Senator section 402(c) of the Congressional Budget Committee on Governmental Affairs: • from Oregon (Mr. H a t f ie l d ) , the Sena Act of 1974, the provisions of section 402(a) ‘ 6 . R e s. 313 tor from Pennsylvania (Mr. H e i n z ) , th e of such Act are waived with respect to E R . Whereas the Federal government 1b the Senator from Michigan (Mr. L e v in ) , the 5537, as reported by the Committee on Gov Nation’s largest single energy user, and ernmental Affairs. Senator from Maryland (Mr. M a t h ia s ) , directly accounts for over 2 percent of DJ3_ the Senator from South Dakota (Mr. energy consumption, representing the equiv alent of 282 million barrels of oil a year M cG o v e r n ) , the Senator from New York worth $4 billion, and (Mr. M o y n t h a n ) , the Senator from SENATE RESOLUTION 310—ORIGI Whereas the Federal government also Is South Dakota (Mr. P r e s s l e r ) , the Sena NAL RESOLUTION REPORTED RE Indirectly responsible for 4 to 7 percent of tor from West Virginia (Mr. R a n d o l p h ) , LATING TO PAYMENT OF WIT total national energy consumption in sup the Senator from Maryland (Mr. S ak - NESS FEES port of its purchase Vff goods and services, b a n e s ) , the Senator from Tennessee (Mr. and S a s s e r ) , the Senator from Georgia (Mr. Mr. PELL, from the Committee on Whereas the General Accounting Office has concluded the Federal government could T a l m a d g e ) , and the Senator from Massa Rules and Administration, reported the reduce its overall energy use. by about 15 chusetts (Mr. T so n g a s ) were added as following original resolution, which was ordered to be placed on the calendar: to 30 percent, or the equivalent of 116,000 cosponsors of Senate Joint Resolution to 232,000 barrels of oil a day, with a com 40, a joint resolution to authorize the S . R es. 310 prehensive and aggressive energy conserva President to proclaim annually the last R eso lved , That witnesses summoned to tion program, and Friday of April as “National Arbor Day.” appear before the Senate or any of its com Whereas in the Energy Policy and Con N o t e .—In the R eco r d of December 7 , mittees shall be entitled to a witness fee servation Act of 1976 Congress mandated 1979, at page S18087, under “Additional rated at not to exceed $50 for each full day that the President develop and implement Cosponsors,” the cosponsors added to spent In traveling to and from the place of a 10 year plan to conserve energy In Federal examination and for each full day In attend government buildings and Federal govern Senate Joint Resolution 140 is in error. ance. A witness shall also be entitled to re ment purchases of goods, materials and The Permanent R ec o r d will be corrected imbursement of the actual and necessary automobiles, and to read as above. transportation expenses Incurred by him in Whereas 4 years later, the Department of SENATE EESOLTJTIO 305 .traveling to and from the place of exami Energy has still not developed a comprehen n a tio n . .1 sive energy conservation .plan for the Fed At the request of Mr. H a t f ie l d , the Sec. 2. Senate Resolution 178, 96th. Con eral government, and •' Senator from" Minnesota (Mr. D u r e n gress, agreed to June 20, 1979, is repealed. "Whereas, sin ce 1975, th e governm ent’s en b e r g e r ) and the Senator from Connecti ergy use has increased In 2 of the last 3 cut (Mr. W e ic k e r ) were added as co- years, with gasoline use' increasing 18 percent sponsors of Senate Resolution 305, relat since 1974, and ing to reimbursement for office accounts. SENATE RESOLUTION 311—ORIGI Whereas the GAO has concluded the Fed AMENDMENT NO. *791 eral government’s program to conserve en NAL RESOLUTION REPORTED RE ergy is fragmented and in disarray because At the request of Mr. B e n t s e n , the LATING TO PAYMENT OF PER the Department of Energy has failed to take Senator from Washington (Mr. M a g n u - DIEM AND SUBSISTENCE" EX an active leadership role. s o n ) , the Senator from Louisiana (Mr. PENSES TO MEMBERS AND EM Now, therefore, be it resolved by the Sen L o n g ) , and the Senator from West Vir PLOYEES OF THE SENATE ate: 1. It is-inexcusable and intolerable that ginia (Mr. R a n d o l p h ) were added as co Mr. PELL, from the Committee on sponsors of amendment No. 791 intend the Federal government and the Department Rules and Administration, reported the of Energy in particular have failed to com ed to be proposed to HJR. 919, an act to following original resolution, which was ply with the 1975 Congressional mandate impose a windfall profit tax on domestic ordered to be placed on the calendar: to develop a comprehensive and aggressive crude oil. S . R e s . S l l 10 year government energy conservation p lan , - R eso lved , That, until otherwise provided SENATE RESOLUTION 309—ORIGI by law, per diem and subsistence expenses 2. The Federal government should be the NAL RESOLUTION REPORTED reimbursable to a Member or employee of leader, not the follower in energy conserva WAIVING CONGRESSIONAL BUDG the Senate in connection with travel within tion, and should set the standard for the ET ACT the United States shall be made on the basis rest of the country. . . . of actual expenses incurred but not to ex 3. At a time when the working people Mr. EAGLETON, from the Committee ceed $50 per day for each day or fraction and taxpayers of America are being asked on Governmental Affairs, reported the thereof spent In a travel status. to reduce their gasoline consumption by 7 ALU LIKE, INC. Employment and Training Program FY' 63 TITLE III, Sec. 302 TRAINING COST SUMMARY As of Sept. 30. 1983 PART I MOLOKAI/ HAWAII KAUAIMAUI OAHU STATEWIDE LANAI

CLASSROOM TRAINING COSTS $179,852 $ 38,776 $ 69,086 $ 24,239 $310,612 $ 622,565

No. of Participants 234 69 94 55 423 875

Avg. Cost Per Participant $ 769 $ 562 $ 735 $ 441 $ 734 $ 711

ON-THE-JOB TRAINING COSTS $ 32,831 $ 6,460 $ 18,026 $ 9,240 $ 63,324 $ 129,881

No. of Participants 72 11 38 13 155 289

Avg. Cost Per Participant $ 456 $ 587 $ 474 $ 711 $ 408 $ 449

WORK EXPERIENCE COSTS $ 42,313 $ 22,188 $ 80,699 $ 91,516 $176,452 $ 413,168

rto. of Participants 37 18 64 38 91 232

Avg. Cost Per Participant $ 1,144 $ 1,233 $ 1,261 $ 2,408 $ 1,939 $ 1,781

TOTAL TRAINING COSTS $254,996 $ 67,424 $167,811 $124,995 $550,388 $1,165,614

CLASSROOM TRAINING — includes costs for training (salaries, fringe benefits, equipment and supplies of personnel engaged in providing training; books and other teaching aids; equipmenttand material used in providing training to participants; classroom space and utility cost; and that part of tuition and entrance fees which represent institutional costs having a direct and immediate impact on participants); allowances, supportive services; and wages when paid to participants during classroom training.

ON-THE-JOB TRAINING — includes costs for tuition, fees, and books; equipment and supplies; •‘xtraordinary training cost (reimbursement for training to employers); and supportive services.

WORK EXPERIENCE — includes costs for training (described in Classroom Training except classroom space and utility cost); supportive services; wages; and fringe benefits. ALU LIKE, INC. EMPLOYMENT AND TRAINING PROGRAM/NATIONAL COMPARISON PART II FY'83 v- October 1, 1982 - September 30, 1983 CETA. Title III. Sec. 302______

FY'84 NAT’L ISLANDS HAWAII KAUAI MAUI MOLOKAI/ OAHU STATEWIDE NORMS FOR LANAI PROGRAM OUTCOMES *

No. of Participants Served 377 93 260 102 793 1,625

Avg. Cost Per Participant $ 676 $ 724 $ 645 $1,225 $ 694 $ 717

No. of Participants 182 36 166 25 356 765

Entered Employment Z 64Z 77Z 81Z 31Z 81Z 76Z 58Z

Avg. Cost Per Participant $1,401 $1,873 $1,011 $4,999 $1,546 $1,524 $5,900

No. of Participants 224 44 190 50 386 894 * Positively Terminated Z 79Z 94Z 93Z 62Z 88Z 89Z

Avg. Cost Per Participant $1,138 $1,532 $ 883 $2,550' $1,426 $1,304

Average Hour Wage For Individuals Terminated and $4.08 $4.42 $4.67 $3.98 $4.28 $4.30 $ 4.90 - Entered Employment with NO Previous Wage

Average Pre-CETA Hour Wage $3.98 $5.21 $4.63 $6.09 $4.47 $4.47

Average Hour Wage For Individuals Terminated and $4.53 $4.29 $4.94 $4.45 $4.74 $4.72 $ 4.90 Entered Employment

*ETA Interim performance standards for FY'84 JTPA Title II-A programs. ALU LIKE, INC. EMPLOYMENT AND TRAINING PROGRAM

TITLE III ♦SOCIAL DOLLAR RETURNS/BENEFITS OF ON-THE-JOB TRAINING AND CLASSROOM TRAINING FYf83 Oct. 1, 1982 - Sept. 31, 1983

HAWAII KAUAI MAUI MOLOKAI OAHU

ON-THE-JOB ($2.28) $ 74,854.68 $14,728.80 $41,099.28 $21,067.20 $144,378.72 TRAINING

CLASSROOM ($1.14) $205,031.28 $44,204.64 $78,758.04 $27,632.46 $354,097.68 TRAINING

STATEWIDE

ON-THE-JOB ($2.28) $296,128.68 TRAINING

CLASSROOM (1.14) $709,724.10 TRAINING

♦Based on the National Council on Employment Policy’s per dollar investment figures, September 1981. The methodology employed considers the costs to society to include all program operating expenses plus foregone earnings of the participants: 1. Every dollar invested in On-The-Job Training returned $2.28 in social benefits.

2. Every dollar spent on Classroom Training returned $1.14 to society.

Benefits include the estimated value of useful work performed during enrollment, post-program earnings gains (from higher wages and/or increased hours of paid employment), administrative cost savings from reduced participation in income maintenance programs, and various other social benefits. THREE FIVE YEARS YEARS YEARS YEAR ONE TWO MONTHS 6 7 MONTHS 60 30 DAYS DAYS ASAP IMMEDI ATELY SCHEDULE FOR TASK FORCE RECOMMENDATIONS strategies. (23) of the date of submission of this report a com State Legislature in 1982 which lowers the blood The Governor should appoint within thirty days mittee to advise him on financing the acceleration X United States should seek for congressional the amendment approval to the HHCA passed by the Hawaii Interior should formally assess progress made in In In light of its other findings, the Task Force J • X should seek to obtain the consent of the United submission of this report the Department of the quantum for successorship. (12) report, using one or more herein. of the methods described (4) States to all amendments to the HHCA that are re As soon as possible, the State of Hawaii and the X correcting problems identified in this Task Force recommends that within two years of the date of As As soon as reasonably possible, the State of Hawaii quired to have such consentAdmission under Act. the Hawaii (9) X APPENDIX 18 FEDERAL TRUST AND/OR LEGAL RESPONSIBILITIES ADVISORY COMMITTEE ON FUNDING SOURCES BENEFICIARY ENTITLEMENTS U.S. U.S. CONGRESSIONAL CONSENT FOR AMENDMENTS RECOMMENDATIONS

393 FIVE YEARS YEARS THREE TWO YEARS YEAR ONE 7 MONTHS MONTHS 60 6 DAYS 30 DAYS ASAP SCHEDULE FOR TASK FORCE RECOMMENDATIONS ATELY native Americans administered by the Department of immediately undertake a study of all existing Fede the the existing Federal programs for housing for Housing and Urban Development. (40) the implementation and/or financingfor acceleration, of the strategy giving particular attention to Federal and State funding should be implemented. (37) ral laws and pending legislativedetermine proposals to the which extent» to- any may facilitate strategy, including construction and farm and The United States Department of the Interior should X ranch development, then the recommendations for full identify sources of funding to cover the various six months of its establishment the Advisory Com time frames set out in this strategy. If within of funding needed to finance the acceleration be be made within seven months this after reportthe and submission should be of made publicly promptly. (26) of Hawaii and States the United. should each make appropriations or needed five services years. for a period of (27) The Advisory Committee on Funding Sources should elements of the acceleration strategy within the To To implement the acceleration strategy, the State mittee is not successful in identifying all sources The recommendations of the Advisory Committee should matching contributions of $25 million per year in STRATEGIES FOR ACCELERATION OF HOMESTEAD AWARDS , RECOMMENDATIONS - IMMEDI ______

394 SCHEDULE FOR TASK FORCE RECOMMENDATIONS

RECOMMENDATIONS IMMEDI- 30 60 6 7 ONE TWO THREE FIVE | ATELY ASAP DAYS DAYS MONTHS MONTHS YEAR YEARS YEARS YEARS

The strategy for accelerating benefits should be implemented within the following time frames: 1. Within six months the DHHL should review the HHCA and prepare a State legislative proposal for amend ments to the HHCA needed to implement the accelera tion strategy. Changes in timing of occupancy, funding requirements and other statutory restric tions may be necessary to put the strategy into effect. 395 2. Within one year the beneficiary waiting lists should be assessed to determine the eligibility of each applicant, his desires as to an award, the location of the award desired, and a description of the type of residence or other award required. 3. Within two years existing DHHL development plans should be revised and expanded to provide for appli cants currently on the waiting lists. The Nanakuli Valley Development Plan could be expanded to satisfy the present Oahu waiting list for residential awards. Development plans on other islands would satisfac torily meet most other waiting lists. In certain areas where Hawaiian Home lands are not available or development plans have not been established, a more extended period of time would be required because lands would need to be acquired through exchanges and development plans formulated. FIVE YEARS YEARSI THREE TWO ONE 7 MONTHS YEAR YEARS 1

6 MONTHS 1 1 1 30 60 IMMEDI ATELY ASAP i DAYS DAYS SCHEDULE FOR TASK FORCE RECOMMENDATIONS sector for loans needed to contruct homes and to subdivision, even though the site improvements and stead leases would be awarded during the first one beneficiaries on the waiting list for that particular to three years of the acceleration strategy. completed by the DHHL for DHHL leaseholds should make awarded.. no additional The home loans during the fund which will provide guarantees to the private develop farms and ranches. (41) five-year period, in order to accumulate a revolving drawings, and subdivision pletedfile plansfor each should homestead be com occur.area where awards Afterare to eachpleted, subdivision homestead file leases plan should is com be awarded to the amenities have not yet been completed. These home Some lands withdrawn by executiveports, do orders, have great such potential as air for generating income the the DHHL should complete an taken assessment under executiveof the orders lands are to neededdetermine for whether beneficiary they uses or can generate revenue. known executive orders covering Hawaiian Home lands Within one year of the date of submission of this report 5. 5. Within five years all site improvements should be The Governor of the State of Hawaii should revoke all within sixty days of the date of this report. (54) 4. 4. Within three years detailed designs, construction Governor's Executive Orders RECOMMENDATIONS LAND TRANSFERS

396 , FIVE YEARS' TWOYEARS THREE YEARS 7 ONE -MONTHS YEAR 30 60 6 DAYS DAYS MONTHS IMMEDI ATELY ASAP SCHEDULE FOR TASK FORCE RECOMMENDATIONS in in forest reserve status and the DHHL should enter into Forestry to continue to manage these lands until their If If reasonable progress in resolving this problem has Interior should request the Department of Justice to issues include questions of ownership, possession, and appropriate instruments of conveyance with the Department value can be assessed. (59) initiate appropriate litigation. (58) of Land and Natural Resources to allow its Division of the Governor of the State of Hawaii should revoke all governor's proclamations which place Hawaiian Home lands report, the DHHL should the initiate status litigation of these to lands. resolve (57) resolve other executive order uses by public agencies. and should be retained as general Hawaiian leases. Home lands under or revenue Lands not production needed for shouldexchanges. beneficiary be earmarked uses for land (55) commence negotiations to the resolve extremely issues valuable surrounding lands of Lualualei, Oahu. compensation. Such If meaningful progress has not been The Governor and the DHHL two years should establish from the date a deadline of submission of of this report to not been achieved within one year, the Department of the The United States and the DHHL should immediately Within 50 days of the date of submission of this report made within one year of the date of submission of this Governor's Proclamations RECOMMENDATIONS

397 FIVE YEARS YEARS THREE TWO YEAR YEARS ONE 60 6 7 30 ASAP DAYS DAYS MONTHS MONTHS 1 1 ATELY SCHEDULE FOR TASK FORCE RECOMMENDATIONS surface or subsurface resources. (60) reserve lands on a tract by tract basis to determine If If reasonable progress in resolving this problem-has not should negotiate new leases for the use of these lands sion of these lands. (67) Within one year of the date of submission of this report rights activities, or whether the lands have valuable the DHHL should complete an assessment of its forest report. Within one year the United States for and fair the compensation DHHL or the DHHL should seek posses two two years to resolve the mattertions of for governor's forest reserves proclama on Hawaiian Home lands. (61) as as homesteading, income production or traditional native litigation. (63) been achieved within one year of the date of submission all all general leases issued for nominal consideration request the Department of Justice to initiate appropriate The Governor and the DHHL should establish a deadline of whether the lands are suitable for beneficiary use, such within six months of of the submission date- of this The United States and the State of Hawaii should jointly of this report, the Department of the Interior should RECOMMENDATIONS j IMMEDI- Natural Resource? General Leases Administered by the Department of Land and ______

398 YEARS YEARS YEARS TWO THREE FIVE 7 ONE MONTHS YEAR 6 MONTHS 30 60 DAYS DAYS I I ATELY ASAP I I IMMEDI- SCHEDULE FOR TASK FORCE RECOMMENDATIONS If If reasonable progress in resolving this problem has X to to initiate appropriate litigation. (75) not been achieved within onethe year, Interior the should Department request of the Department of Justice If If >'easonable progress in resolving this problem has not X report to resolve the mattertransfers of unlawful of Hawaiian takings Home and lands. (74) into an appropriate conveyance instrument for fair licenses for nominal rental which do not primarily bene Home lands. (73) The Governor and the DHHL of should two years establish from a the deadline date of submission of this X unauthorized users requesting that the user enter litigation. (71) state that such licenses arethat not the authorized licenses are by cancelled. law to and issue new licenses The for DHHL fair should compensation. offer (70) been achieved within one year of the date of submission the DHHL should issue notices to all entities holding compensation or relinquish possession of Hawaiian The DHHL should issue notices immediately to request the Department of Justice to initiate appropriate fit the DHHL or the beneficiaries. The notices should of this report, the Department of the Interior should Within six months of the date of submission of this report X RECOMMENDATIONS Licenses Other Unlawful Takings and Transfers

399 FIVE YEARS YEARS THREE YEARS TWO X YEAR 7 ONE MONTHS 6 60 DAYS MONTHS 30 DAYS ASAP ! ! ATELY SCHEDULE FOR TASK FORCE RECOMMENDATIONS the the date of submission of this report to address the fiscal fiscal and accounting areas. (121) numbers and qualifications of staff in various areas of A A management audit should be undertaken within a year from Committee which would be convened annually for the purpose The DHHL should establish a Financial Review Advisoryof reviewing the financial efforts of the DHHL in the lands based on tracts, and the Blue Book, which contains property data based on tax map keys, should be reconciled specified. The Task Force understands that large scale in in a public land exchange to cooperate by placing a high as as quickly as possible. (109) recommends that the timetable provide for the completion priority upon consummating the exchange; by providing him The Kaeo Report, which is an inventory of Hawaiian Home and by proceeding to achievfe.fhe exchange by the date exchanges are complex and inevitably time-consuming of but such exchanges within no the more date than of submission five years of from the Task Force report. (98) The Governor should ask the key State agencies involved with a timetable showing exchangewhen,the will be achieved; RECOMMENDATIONSIMMEDI- Discrepancies Between Current Inventories MANAGEMENT FINANCIAL MANAGEMENT LAND INVENTORY DISCREPANCIES LANDS NOT CURRENTLY USED BY THE BENEFICIARIES

400 YEARS YEARS THREE FIVE YEARS TWO ONE 1 ! 6 MONTHS | MONTHS YEAR 60 DAYS 1 1 ASAP I DAYS i i i 3 0 IMMEDI ATELY SCHEDULE FOR TASK FORCE RECOMMENDATIONS in in the implementation of these recommendations. (134) its its mission promptly and..efficiently. The management sonnel, such as contract civil ve'rsus service. (125) State Task Force to meet approximatelythe date of submissionone year of from this report in order to audit should review the employment status of DHHL per The Task Force further recommendsof the Interiorthat theand Secretary the Governor convene - a Federal expertise which are necessary for the DHHL to carry out assess and to report back to them upon the progress RECOMMENDATIONS CONCLUSION

401 APPENDIX 18 SCHEDULE FOR TASK FORCE RECOMMENDATIONS

RECOMMENDATIONS IMMEDI 30 60 6 7 ONE TWOTHREEFIVE ATELY ASAP DAYSDAYS MONTHS MONTHSYEAR YEARSYEARS YEARS

FEDERAL TRUST AND/OR LEGAL RESPONSIBILITIES

In light of its other findings, the Task Force recommends that within two yeatrs of the date of . submission of this report the ,4,0epartment of the Interior should formally asse'ss progress made in correcting problems identified in this Task Force report, using one or more of the methods described herein. (4) 3

93 U.S. CONGRESSIONAL CONSENT FOR AMENDMENTS

As soon as reasonably possible, the State of Hawaii should seek to obtain the consent of the United States to all amendments to the HHCA that are re quired to have such consent under the Hawaii Admission Act. (9)

BENEFICIARY ENTITLEMENTS

As soon as possible, the State of Hawaii and the United States should seek congressional approval for the amendment to the HHCA passed by the Hawaii State Legislature in 1982 which lowers the blood quantum for successorship. (12)

ADVISORY COMMITTEE ON FUNDING SOURCES

The Governor should appoint within thirty days of the date of submission of this report a com mittee to advise him on financing the acceleration strategies. (23) THREE 1 V; FI ! ! YEARS i E Y _ : YEARS TWO ONE 7 MONTHSYEAR 6 60 DAYSMONTHS IMMEDI- ' 30 ! ! ATELY i ASAP DAYS SCHEDULE FOR TASK FORCE RECOMMENDATIONS the existing native Federal Americans programs administered for housing for by the Department of the implementationfor acceleration,and/or financing giving of particular the strategy attention Housing and to Urban Development. (40) immediately undertake a s'tOdy of all existing Fede ral ral laws and pendingdetermine legislative the whichextents.-to any proposals facilitatemay' to~- Federal and State funding should be implemented. (37) ranch development, then the recommendations for full The United States Department of the Interior should X six months of its establishment the Advisory Com time frames set out in this strategy. of funding If within needed to finance the acceleration identify sources of funding to cover the various appropriations five or years. needed services (27) for The a periodAdvisory of Committee on elementsFunding Sourcesof the accelerationshould strategy mitteewithin is the not successful in identifying all sources X To implement the acceleration strategy, the State this report and should be made publicly promptly. (26) of Hawaii and the United..States should each make be made within seven months after the submission of The recommendations of the Advisory Committee should X matching contributions of $25 million per year in ' strategy,' including construction and farm and STRATEGIES FOR ACCELERATION OF HOMESTEAD AWARDS RECOMMENDATIONS

394 i

SCHEDULE FOR TASK FORCE RECOMMENDATIONS

RECOMMENDATIONS ! IMMEDI- i 30 60 I 6 7 ONE ! TWO | THREE ! FIVE i ATELY i ASAP DAYS DAYS MONTHS i MONTHS YEAR j YEARS j YEARS j YEARS

The strategy for accelerating benefits should be implemented within the following time frames: 1. Within six months the DHHL should review the HHCA ■* X and prepare a State legislative proposal for amend ments to the HHCA needed.td- implement the accelera tion strategy. Changes ih'timing of occupancy, funding requirements and other statutory restric tions may be necessary to put the strategy into effect.

2 . Within one year the beneficiary waiting lists should be assessed to determine the eligibility of each applicant, his desires as to an award, the location of the award desired, and a description of the type of residence or other award required. 3. Within two years existing DHHL development plans should be revised and expanded to provide for appli cants currently on the waiting lists. The Nanakuli Valley Development Plan could be expanded to satisfy the present Oahu waiting list for residential awards Development plans on other islands would satisfac torily meet most other waiting lists. In certain areas where Hawaiian Home lands are not available or development plans have not been established, a rrpre extended period of time would be required because lands would need to be acquired through exchanges and development plans formulated.

t YEAR | YEARS j YEARS ( YEAR, ONE ! TWO i THREE FI,; 6 6 7 MONTHS 1 MONTHS DAYS ! ! 30 60 ASAP | DAYS IMMEDI ATELY SCHEDULE FOR TASK FORCE RECOMMENDATIONS sector for loans needed to contruct homes and to fund which will provide guarantees to the private develop farms and ranches. (41) completed by the DHHL for five-yearleaseholds period,awardedThe in order to accumulate a revolving stead leases wouldto three be years awarded of during the acceleration the first one strategy. DHHL should make no additional home loans during the subdivision, even thoughthe site improvements and beneficiaries on the wa>ring list for that particular pleted for each homestead pleted,area where homestead awards leasesare to should be awarded to the amenities have not yet been completed. These home drawings, and subdivision occur.file plans should After each be com subdivision file plan is com the DHHL shouldtaken complete under executive an assessment orders Someof to the landsdetermine landswithdrawn ports, whether do by haveexecutivethey great potentialorders, such for asgenerating air income are needed for beneficiary uses or can generate revenue. Within one year of the date of submission of this report known executive orders covering Hawaiian Home lands The Governor of the State of Hawaii should revoke all X within sixty days of the date of this report. (54.) 5. 5. Within five years all site improvements should be A. A. Within three years detailed designs, construction Governor's Executive Orders RECOMMENDATIONS LAND TRANSFERS

396 FIVE YEARS THREEj YEARS 1 TWO YEARS ONE YEAR 7 6 MONTHS ■MONTHS 60 DAYS 30 DAYS ASAP IMMEDI-” I I SCHEDULE FOR TASK FORCE RECOMMENDATIONS I ATELY States and the DHHL should immediately X be assessed. (59) ______United United in in forest reserve status and the DHHL Forestry should enter to continue into to manage these lands until their value can can value If If reasonable progress in Interior resolving should thisinitiate request problem appropriate thehas Department litigation. of Justice to (58) issues include questions of ownership, possession, and the Governor of the State of Hawaii should revoke all governor's proclamations whichappropriate place Hawaiian instruments Home of landsconveyance with the Department of Land and Natural Resources to allow its Division of report, the DHHL should initiate litigation to resolve two years fromresolve' otherthe date executive of submission order usesof this by public report agencies. to the status of these lands. (57) the extremely valuable lands of Lualualei, Oahu. Such and should be general retained leases. as Hawaiian Lands Homeexchanges. (55) lands not needed under for beneficiary uses commence negotiations to resolve issuescompensation. surrounding If meaningful progress has not been The Governor and the DHHL should establish a deadline of or revenue production should be earmarkedThe for land made within one year of the date of submission of this •Within 60 days of the date of submission of this report X Governor's Proclamations RECOMMENDATIONS _. not_. been achieved within one year, the Department of the

) 9 7 THREE 1 FI;: j j YEARS i VEARS | YEARS i ... r .... 7 7 ONE TWO 6 30 60 IMMEDI- 1 ATELY ! ASAP DAYS DAYS MONTHS MONTHS | YEAR SCHEDULE FOR TASK FORCE RECOMMENDATIONS sion of these lands. (67) If If reasonable progress in resolving this problem-has not report. should Within negotiateone yearfor fair newthe leases compensation United forStates the or and use the of the DHHL these ŪHHL should lands seek posses reserve lands on a tract by tract basis to determine rights activities,surface or or wheth^- subsurface the resoiirtes. lands have valuable (60) the DHHL should complete an assessment of its forest request the Departmentlitigation. of Justice (63) to initiate appropriate two years to resolvetions for the forestmatter reserves of governor's on Hawaiian proclama Home lands. (61) been achieved of within this report, one year theof Departmentthe date of of submissionthe Interior should The United Statesall general and the leases State of issued Hawaii for nominal should jointly consideration as homesteading, income production or traditional native Within one year of the date of submission of this report The Governor and the DHHL should establish a deadline of whether the lands are suitable for beneficiary use, such within six months of the date'.of submission of this Natural"Resources General Leases Administered by the Department of Land and RECOMMENDATIONS

3 9 8 FIVE YEARS i YEARS THREE ! YEARS TWO YEAR ONE 7 MONTHS 6 MONTHS 60 DAYS 30 ASAPDAYS IMMEDI ATELY SCHEDULE FOR TASK FORCE RECOMMENDATIONS If If reasonable progress in resolving this problem has to initiate appropriate litigation. (75) transfers of Hawaiian Home lands. not (74) been achievedthe within Interior one should year, request the Department the Department of of Justice If If ’-easonable progress in resolving this problem has-not report to resolve the matter of unlawful takings and litigation. (71) licenses for nominal rental wKtch do not primarily bene into an appropriate conveyance instrument for fair request the Department of Justice to initiate appropriate state that suchthat licenses the licensesto are issue not are authorized new cancelled. licenses by for law fairand The DHHL compensation. should offer (70) the DHHL should issue notices tb all entities holding unauthorized users requestingcompensation that theHome or user relinquish lands. enter possession (73) Theof GovernorHawaiian and the DHHL should establish a deadline been achieved of within this report, one year the of Departmentthe date ofof submissionthe Interior should fit the DHHL or the beneficiaries. The notices should within six months of the date of submission of this report The DHHL should issue notices immediately to RECOMMENDATIONS Licenses Other Unlawful Takings and Transfers i i of two years from the date of submission of this

iP9 FIVE YEAR THREE ^ TWO YEARS YEARS | YEAR 7 ONE i 6 60 DAYS MONTHS 1 MONTHS 30 IMMEDI- 1 1 ATELY ASAP DAYS SCHEDULE FOR TASK FORCE RECOMMENDATIONS exchange will achieved; be. ( 1 2 1‘) ,1;he the date of submissionnumbers and of qualificationsthis report to ofaddress staff the in various areas of A A management audit should be undertaken within a year from fiscal and accounting areas. Committee which would be convened annually for the purpose of reviewing the financial'efforts of the DHHL in the The DHHL should establish a Financial Review Advisory lands based on tracts, and the Blue Book, which contains property data as based quickly on tax as map possible. keys, should (109) be reconciled The Kaeo Report, which is an inventory of Hawaiian Home the date of submission of the Task Force report. (98) specified. The Task Force understands that large scale in in a public land exchange to cooperate by placing a high recommends thatof such the timetable exchanges within provide no formore the than completion five years from exchanges are complex and inevitably time-consuming but priority upon consummating the exchange; by providing him and by proceeding to achievdt^Te exchange by the date The Governor should ask the key State agencies involved with a timetable showing when RECOMMENDATIONS Discrepancies Between Current Inventories MANAGEMENT LAND INVENTORY DISCREPANCIES LANDS NOT CURRENTLY USED BY THE BENEFICIARIES ''FINANCIAL MANAGEMENT

4 0 0 MONTHS ! MONTHS j YEAR | YEARS ; YEARS | U- \ SCHEDULE FOR TASK FORCE RECOMMENDATIONS ___ I ATELY ! ASAP j DAYS j DAYS in in the implementation of these recommendations. (134) the date of submission of this report in order to State Task Force to meet approximately one year from its mission promptly The and/.-jif.jftciently. management The Task Force further recommends that the Secretaryassess and to report back to them upon the progress x sonnel, such as contract versus civil service. (125) of the Interior and the Governor convene a Federal- audit should review the employment status of DHHL per expertise which are necessary for the DHHL to carry out RECOMMENDATIONS j IMMEDI- ! 30 ' 60 : 6 7 ONE. I TWO 'HREE I . • ______CONCLUSION

401 Calendar No. 186

93d Co n g r e ss \ q t t m a t 'tt / R eport 1st Session ) oENATE j No. 93-197

LAND USE POLICY AND PLANNING ASSISTANCE ACT

REPORT

OF THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS UNITED STATES SENATE

TOGETHER WITH

MINORITY AND ADDITIONAL VIEWS

TO ACCOMPANY S. 268

J u n e 7, 1973.—Ordered to be printed

U.S. GOVERNMENT. PRINTING OFFICE 95-734 0 WASHINGTON : 1973

★ (Star Print) COMMITTEE ON INTERIOR AND INSULAR AFFAIRS HENRY M. JACKSON, Washington, Chairman ALAN BIBLE, Nevada PAUL J. FANNIN, Arizona FRANK CHURCH, Idaho CLIFFORD P. HANSEN, Wyoming LEE METCALF, Montana MARK O. HATFIELD, Oregon J. BENNETT JOHNSTON. J r., Louisiana JAMES L. BUCKLEY, New York JAMES ABOUREZK, South Dakota JAMES A. MCCLURE, Idaho FLOYD K. HASKELL, Colorado DEWEY F. BARTLETT, Oklahoma GAYLORD NELSON, Wisconsin

J erry T. V e r k l e r , Staff Director W il l ia m J. V an N e s s , Chief Counsel S t e v e n P. Q u a r l e s , Special Counsel Harrison Loesch, Minority Counsel

(II) CONTENTS

Page S. 268, as reported______1 I. Introduction______35 1. General______35 2. Summary of the Act______37 (a) Committee action ______37 (b) Purpose______38 (c) Authorization ______39 (d) Statewide land use planning process------39 (e) State land use program______39 (/) Roles of State and local government______40 (g) Federal review______40 (h) Administration of the Act______41 (i) Sanctions______41 (j) Interstate coordination______42 (k) Federal-State coordination------42 (I) Planning and management of Indian land------42 (m) Study of national land use policies______43 (n) Relationship to other land use related laws and pending legislation______43 3. N eed______44 4. New considerations embodied in S. 268______47 (а) National land use policies______47 (б) Participation of property owners and the public 49 (c) Training in and research on land use related sub jects______50 (d) Higher funding levels______50 (e) Land sales and development projects______51 (/) Effects on property taxes and the local tax base 53 (g) The problem of multiple licenses______53 (h) Planning and management of Indian land______54 (i) The protection of the rights of private property owners______55 (j) Accommodation of S. 268 and the Coastal Zone Management Act of 1972______58 5. What the Act does and does not do______59 6. Outline of the major provisions of the Act______63 II. Background: 1. General______72 2. A brief history of land use controls in the United States 73 3. The impact of Federal and federally assisted activities 78 4. The emerging role of the States______81 5. Toward a new framework of decisionmaking______83 III. Legislative history______84 IV. Cost of the Act______86 V. Committee recommendation______86 VI. Tabulation of votes in committee______86 VII. Section-by-section analysis of the Act______87 VIII. Executive communications______134 IX. Changes in existing law ______152 X. Minority and additional views______^______154 Minority views of Mr. Fannin, Mr. Hansen, and Mr. Bartlett 154 Additional views of Mr. Johnston______161 Additional views of Mr. Hatfield______163 Additional views of Mr. Buckley______166

( i n ) Calendar No. 1 8 6

93d C o n g r e s s ) SENATE j R e p o r t 1st Session j t ^°- 93-197

LAND USE POLICY AND PLANNING ASSISTANCE ACT

J u n e 7, 1973.—Ordered to be printed

Mr. J a c k s o n , from the Committee on Interior and Insular Affairs, submitted the following

REPORT together with MINORITY AND ADDITIONAL VIEWS

[To accompany S. 268]

The Committee on Interior and Insular Affairs, to which was re ferred the bill (S. 268) to establish a national land use policy, to au thorize the Secretary of the Interior to make grants to assist the States to develop and implement State land use programs, to coordinate Fed eral programs and policies which have a land use impact, to coordinate planning and management of Federal lands and planning and man agement of adjacent non-Federal lands, and to establish an Office of Land Use Policy Administration in the Department of the Interior, and for other purposes, having considered the same, reports favorably thereon with an amendment in the nature of a substitute and recom mends that the bill as amended do pass. The amendment is as follows: Strike out all after the enacting clause and insert the following language: That this Act may be cited as the “Land Use Policy and Planning Assistance Act”. 2

TITLE I—FINDINGS, POLICY, AND PURPOSE

FINDINGS

S ec. 101. (a) The Congress hereby finds that there is a national interest in a more efficient system of land use planning and decision making and that the rapid and continued growth of the Nation’s population, expanding urban development, proliferating transporta tion systems, large-scale industrial and economic growth, conflicts in patterns of land use, fragmentation of governmental entities exercising land use planning powers, and the increased size, scale, and impact of private actions have created a situation in which land use management decisions of wide public concern often are being made on the basis of expediency, tradition, short-term economic considera tions, and other factors which too frequently are unrelated or contradic tory to sound environmental, economic, and social land use considera tions. (b) The Congress finds that the task of land use planning and management is made more difficult by the lack of understanding of, and the failure to assess, the land use impacts inherent in most public and private programs and activities. (c) The Congress finds that adequate data and information on land use and systematic methods of collection, classification, and utilization thereof are either lacking or not readily available to public and private land use decisionmakers. (d) The Congress finds that a failure to conduct competent land use planning has, on occasion, resulted in delay, litigation, and cancel lation of proposed significant development, thereby too often wasting human and economic resources, creating a threat to public services, and invoking decisions to locate activities in areas of least public and political resistance, but without regard to sound environmental, eco nomic, and social land use considerations. (e) The Congress finds that significant land use decisions are being made without adequate opportunity for property owners, users of the land, and the public to be informed about the alternatives to such decisions or to meaningfully participate in such decisions. (f) The Congress finds that many Federal agencies conduct or assist activities which have a substantial impact on the use of land, location of population and economic growth, and the quality of the environ ment, and which, because of the lack of consistent land use policies, often result in needless, undesirable, and costly conflicts between Federal agencies and among Federal, State, and local governments, thereby subsidizing undesirable and costly patterns of development. (g) The Congress finds that, while the primary responsibility and constitutional authority for land use planning and management of non-Federal lands rests with State and local government, the manner in which this responsibility is exercised has a tremendous influence upon the utility, the value, and the future of the public domain, the national parks, forests, seashores, lakeshores, recreation and wilderness areas, wildlife refuges, and other Federal lands: and that the failure to plan or, in some cases, the existence of poor or ineffective planning at the State and local levels poses serious problems. (h) The Congress finds that intelligent land use planning and man agement can and should be a singularly important process for pre 3 serving and enhancing the environment, encouraging beneficial eco nomic development, and maintaining conditions capable of improving the quality of life.

STATEMENT OF POLICY AND PURPOSE

S ec. 102. (a). To promote the general welfare and to provide full and wise application of the resources of the Federal Government in strengthening the environmental, recreational, economic, and social well-being of the people of the United States, the Congress, recogniz ing that the Nation s land is its most valuable national resource and that the maximum benefit to all from this resource can be achieved only with the development and implementation of sound and coordinated land use policies, declares that it is the continuing policy of the Federal Government to cooperate with and render assistance to State and local governments in the development and implementation of the policies wliich will govern the wise and balanced use of the Nation's land resource. (b) It is the purpose of this Act to— (1) encourage and assist the several States to more effectively exercise their constitutional responsibilities for the planning and management of their land base through the development and implementation of State land use programs; (2) establish a grant-in-aid program to assist State and local governments and agencies to hire and train the personnel, collect and analyze the data, and establish the institutions and procedures necessary to develop and implement State land use programs; (3) establish a grant-in-aid program to encourage cooperation among the States concerning land use planning and manage ment in interstate regions; (4) establish a grant-in-aid program to assist Indian tribes to develop land use programs for reservation and other tribal lands and to coordinate such programs with the planning and manage ment of Federal and non-Federal lands adjacent to reservation and other tribal lands; (5) establish the authority and responsibility of the Executive Office of the President to issue guidelines to implement this Act and of the Secretary of the Interior to administer the grant-in-aid and other programs established under this Act, to review, with the heads of other Federal agencies, statewide land use planning proc esses and State land use programs for conformity to the provisions of this Act, and to assist in the coordination of activities of Fed eral agencies with State land use programs; (6) develop and maintain sound policies and coordination pro cedures with respect to federally conducted and federally assisted projects on non-Federal lands having land use implications; (7) facilitate increased coordination in the administration of Federal programs and in the planning and management of Fed eral lands and adjacent non-Federal lands; (8) provide for meaningful participation of property owners, users of the land, and the public in land use planning and manage ment ; 4

(9) provide for research on and training in land use planning and management; (10) promote the development of systematic methods for the exchange of data and information pertinent to land use decision making among all levels of government and the public; and (11) study the feasibility and possible substance of national land use policies which might be enacted by Congress.

TITLE II—PROGRAMS OF ASSISTANCE TO THE STATES

P a r t A — S t a t e w id e L a n d U se P l a n n i n g P r o c e sse s a n d S t a t e L a n d U se P r o g r a m s

GRANTS TO STATES

S ec . 201. (a) The Secretary of the Interior (hereinafter referred to as the “Secretary”) is authorized to make annual grants to each State to assist each State in developing and administering a State land use program meeting the requirements set forth in this Act. (b) Prior to making the first grant to each State during the three complete fiscal year period following the enactment of this Act, it shall be determined in accordance with the procedures provided in section 300 that such grant will be used in a manner to meet satisfactorily the requirements for a statewide land use planning process set forth in section 202. Prior to making any further grants during such period, it shall be determined in accordance with the procedures pro vided in section 300 that the State is adequately and expeditiously proceeding to meet the requirements of section 202. (c) Prior to making any further grants after the three complete fiscal year period following the enactment of this Act and before the end of the five complete fiscal year period following the enactment of this Act, it shall be determined in accordance with the procedures provided in section 300 that the State has met and continues to meet the requirements of section 202 and is adequately and expeditiously proceeding to develop a State land use program to meet the require ments of sections 203, 204, 402, and 505. (d) Prior to making any further grants after the five complete fiscal year period following the enactment of this Act, it shall be determined in accordance with the procedures provided in section 306 that the State has met and continues to meet the requirements of sections 203, 204,402, and 505. (e) Each State receiving grants pursuant to this part A during the five complete fiscal year period following enactment of this Act shall submit, not later than one year after the date of award of each grant, a report on work completed and scheduled toward the development of a State land use program to the Secretary for determination of State eligibility or ineligibility for grants pursuant to this part A in ac cordance with the procedures provided in section 306. For grants made after such period, the State shall submit its State land use program not later than one year after the date of award of each grant to the Secretary for determination of State eligibility or ineligibility for 5 grants pursuant to this part A in accordance with the procedures pro vided in section 306: Provided, That if no grant is requested by or active in any State after five fiscal years from the date of enactment of this Act, such State shall submit its State land use program within ninety days thereafter to the Secretary for determination of State eligibility or ineligibility for grants pursuant to this part A in accord ance with the procedures provided in section 306: And provided fur ther, That, should no grant be requested by or active in any State dur ing any two complete liscal year period after five fiscal years from the date of enactment of this Act, such State shall submit its State land use program within ninety days from completion of such period to the Secretary for determination of State eligibility or ineligibility for grants pursuant to this part A in accordance with the procedures provided in section 306.

STATEWIDE LAND USE PLANNING PROCESSES

S ec . 202. (a) As a condition of continued eligibility of any State for grants pursuant to this part A after the three complete fiscal year pe riod following the enactment of this Act, it shall be determined in ac cordance with the procedures provided in section 306 that the State has developed an adequate statewide land use planning process, which process shall include— (1) the preparation and continuing revision of a statewide in ventory of the land and natural resources of the State; (2) the compilation and continuing revision of data, on a state wide basis, related to population densities and trends, economic characteristics and projections, environmental conditions and trends, and directions and extent of urban and rural growth; (3) projections of the nature, quantity, and compatibility of land needed and suitable for recreation, parks, and open space; scientific and educational purposes; protection of areas of critical environmental concern; conservation and preservation of natural resources; agriculture, mineral development, and forestry; in dustry and commerce, including the development, generation, and transmission of energy; solid waste management and resource re covery ; transportation; urban development, including the revital ization of existing communities, the development of new towns, and the economic diversification of existing communities which possess a narrow economic base; rural development, taking into consideration future demands for and limitations upon products of the land; and health, educational, and other State and local governmental services; such projections to include consideration of multiple-use siting of facilities and activities; (4) the preparation and continuing revision of an inventory of environmental, geological, and physical conditions (including soil types) which influence the desirability of various uses of land; (5) the monitoring of land use data periodically to determine changes in land usage, the comparison of such changes to State and local land use plans, programs, and projections, and the re porting of the findings to the affected local governments, State agencies, and Federal agencies by request; 6 (6) the preparation and continuing revision of an inventory of State, local government, and private needs and priorities concern ing the use of Federal lands within the State; (7) the preparation and continuing revision of an inventory of public and private institutional and financial resources, includ ing citizen public interest organizations, available for land use planning and management within the State and of State and local programs and activities which have a land use impact of more than local concern; (8) the establishment of methods for identifying lame-scale development and development of public facilities or utilities of regional benefit, and inventorying and designating areas of criti cal environmental concern, areas which are suitable for key facili ties, and areas which are, or may be, impacted by key facilities, which methods shall provide for an appeals process for any interested party as defined by State law or regulation concerning the designation or deletion of any land or facility in or from such areas when such areas are designated other than by State law; (9) the provision, where appropriate, of technical assistance for, and training programs for State and local agency personnel con cerned with, the development and implementation of State and local land use programs; (10) the establishment of arrangements for the exchange of land use planning information and data among State agencies and local governments, with the Federal Government, among the sev eral States and interstate agencies, and with the public; (11) the establishment of a process for public education con cerning land use planning and management and other land use related activities; (12) the participation of the public, property owners, users of the land, and the appropriate officials or representatives of local governments in the statewide planning process and in the formu- latipn of-.definitions, guidelines, rules, and regulations for the ad ministration of the statewide planning process, such participation, except in any proceedings of the State legislature, to include pub lic hearings with adequate public notice; (13) the consideration of, and consultation with the relevant States on, the interstate aspects of land use issues of more than local concern; and (14) the consideration of the impacts of State programs and activities, land use policies, and the State land use program to be developed pursuant to this Act on the local property tax base and revenues and on rights of private property owners. (b) In the determination of an adequate statewide land use process of any State, it shall be confirmed in accordance with the procedures provided in section 306 that the State has an eligible State land use planning agency established by the Governor of such State or by law. which agency shall— (1) have primary authority and responsibility for the develop ment and administration of a State land use program provided for in sections 203,204,402, and 505; 7

(2) have a competent and adequate interdisciplinary profes sional and technical staff and, whenever appropriate, engage the services of special consultants; (3) give priority to the development of an adequate data base for a statewide land use planning process using data available from existing sources wherever feasible; (4) coordinate its activities with the planning activities of all State agencies undertaking federally financed or assisted plan ning programs insofar as such programs relate to land use; the regulatory activities of all State agencies enforcing air, water, noise, or other pollution standards; all other relevant planning activities of State agencies; flood plain zoning plans approved by the Secretary of the Army pursuant to the Flood Control Act of 1960 (74 Stat. 488), as amended; in a coastal State as defined by the Coastal Zone Management Act of 1972 (86 Stat. 1280), the State planning activities pursuant to such Act; the planning activities of areawide agencies designed pursuant to regulations established under section 204 of the Demonstration Cities and Metropolitan Development Act of 1966 (80 Stat. 1255, 1262-3), as amended; the planning activities of local governments; the planning activities of Federal agencies; and the planning ac tivities of Indian tribes pursuant to title V ; (5) have authority to make available to the public promptly upon request land use data and information, studies, reports, and records of hearings; and (6) be advised by an intergovernmental advisory council which shall be composed of a representative number of chief elected offi cials of general purpose local governments in urban and nonurban areas selected by the statewide association or associations repre senting such governments. One member, by majority vote of the members, shall be chosen chairman. The advisory council shall, among other things, comment on all State guidelines, rules, and regulations to be promulgated pursuant to this Act, participate in the development of the statewide land use planning process and State land use program, and may make formal comments on an nual reports which the agency may prepare and submit to it, which reports may detail all activities within the State conducted by the State government and local governments pursuant to or in conformity with this Act. (c) To minimize administrative inefficiencies, each State may desig nate the planning agency participating in programs pursuant to sec tion 701 of the Housing Act of 1954. as amended, and, where such State is a coastal State, the planning agency participating in programs pur suant to the Coastal Zone Management Act of 1972, as the eligible State land use planning agency required by subsection (b) of this section. Where such a designation cannot be made within the three fiscal year period following the enactment of this Act, early consolida tion of the responsibilities of the two or three agencies in a single planning agency is encouraged. (d) (1) In the determination of an adequate statewide land use planning process of any State, it shall be determined in accordance with 8 the procedures provided in section 306 that the State has established a program to regulate land sales or development projects (hereinafter referred to as “projects” or “project”) as defined in subsection 601(1). (2) Such program shall include: (A) a procedure for identification of projects subject to such program ; (B) a procedure for consideration of each proposed project which procedure affords adequate notice to all affected State and local governments and assures that the developer provides to such governments the following— (i) a map of the project setting forth the proposed lot lines and the improvements which the developer proposes to make, and a schedule of completion of all such improvements and sales of such lots; (ii) a showing of financial capability of the developer, or the posting of a performance bond by the developer, sufficient to insure that such schedule and the requirements of this sub section will be m et; and (iii) a statement of the potential effects of the proposed project in sufficient detail to establish whether the develop ment meets the criteria in clause (2) (D) of this subsection; (C) State review of the proposed project including (i) an eval uation of the consistency of the proposed project with the state wide land use planning process and the State land use program, once approved pursuant to this Act; (ii) an analysis of the pro posed project as it relates to the criteria in clauses (2) (D) of this section; (iii) comments on the local and regional need for the pro posed project; and (iv) specific recommendations concerning whether the proposed project should or should not proceed; (D) a method of implementation of the program which shall insure that— (i) the financial capability of the developer is established as provided for in clause (2) (B) (ii) of this subsection; (ii) the project will not exceed the capacity of existing sys tems for water and power supply, waste water collection and treatment, and waste disposal, unless expansion of the rele vant systems to meet the requirements of the proposed devel opment is planned and approved, and sufficient financing for the construction of the expanded systems is available; (iii) the project will not cause unreasonable soil erosion; (iv) the project is not located in areas which constitute an undue risk to public health and safety, which may include flood plains and areas of high seismicity and unstable soils, all such areas as defined by the State; (v) the effects on the scenic or natural beauty or the natural environment are taken into consideration; (vi) open space possessing valuable potential for public recreation is taken into consideration, such open space may include beaches, shorelines, and wild areas; (vii) the project will not place an unreasonable burden on the ability of the State and local governments to provide municipal or other public services, including trans portation, education, and police and fire protection; 9

(viii) the project will be developed within the time sched ule submitted by the developer or within an alternative sched ule necessary to insure that the project will meet the other criteria above; and (ix) the project is consistent with local land use plans, regulations, and controls and with the State land use pro gram, once approved pursuant to this Act. (3) The method of implementation of clause (2) (D) of this sub section shall meet the requirements of section 203(c) and shall include procedures for issuance of cease and desist orders and other appro priate remedies for violations of this subsection or the provisions of State law or regulations enacted or promulgated pursuant to this subsection. STATE LAND USE PROGRAMS Sec. 203. (a) As a condition of continued eligibility of any State for grants pursuant to this Act after the five complete fiscal year period following the enactment of this Act, it shall be determined in accord ance with the procedures provided for in section 306 that the State has developed an adequate State land use program, which program shall include— (1) an adequate statewide land use planning process as provided in section 202 of this A c t; (2) a statement of State land use policies and objectives; (3) methods of implementation for— (A) exercising control over the use and development of land in areas of critical environmental concern to assure that such use and development will not substantially impair the historic, cultural, scientific, or esthetic values or natural systems or processes within fragile or historic lands; that loss or reduction of long range continuity and the concomitant endangering of future water, food, and fiber requirements within renewable resource lands are minimized or eliminated; and that unreasonable dangers to life and property within natural hazard lands are minimized or eliminated; (B) exercising control over the use of land within areas which are or may be impacted by key facilities, including the site location and the location of major improvement and m ajor access features of key facilities ; (C) assuring that local regulations do not arbitrarily or capriciously restrict or exclude development of public facili ties or utilities of regional benefit; (D) influencing the location of new communities and con trolling the use of land around new communities; (E) controlling proposed large-scale development of more than local significance in its impact upon the environment; (F) assuring that any source of air, water, noise, or other pollution pertaining to the areas and developmental activities listed in this clause (1) will not be located where it will result in a violation of any applicable air, water, noise, or other pollution standard or implementation plan; 10

(G) assuring that all State and local agency programs and services which significantly affect land use are not in consistent with the State land use program; (H) periodically revising and updating the State land use program to meet changing conditions; (I) assuring, except in any proceedings of the State legis lature, the participation of appropriate officials or representa tives of local governments, property owners, users of the land, and the public in the development of, subsequent revisions in, the implementation of, and the formulation of guidelines, rules, and regulations concerning, the State land use program; and (J) including, with respect to coastal States to which the Coastal Zone Management Act of 1972 (86 Stat. 1280) is applicable, an adequate method for the coordination of the State land use program with the State’s management program approved pursuant to such Act. Such method shall include the consolidation of the State’s management program and the State land use program into a single program for the purposes of annual submission to the Secretary of the Interior for determination of eligibility for grants pursuant to part A of title II of this Act and to the Secretary of Commerce for determination of eligibility for grants pursuant to section 306 of the Coastal Zone Management Act of 1972. (b) Wherever possible, selection of methods of implementation of clause (3) of subsection (a) shall be made so as to encourage the employment of land use controls by general purpose local governments. (c) The methods of implementation of clause (3) of subsection (a) shall include either one or a combination of the two following general techniques— (1) implementation by general purpose local governments pur suant to criteria and standards established by the State, such im plementation to be subject to State administrative review with State authority to disapprove such implementation wherever it fails to meet such criteria and guidelines; and (2) direct State land use planning and regulation. (d) Any method of implementation employed by the State shall include the authority of the State to prevent arbitrarv and capricious restriction or prohibition of development of public facilities or utili ties of regional benefit, and to prohibit the use of land within areas which, under the State land use program, have been designated as areas of critical environmental concern, areas which are or may be impacted by key facilities, or areas which are presently or potentially subject to large-scale development, large-scale subdivisions, and land sales or development projects, which use is inconsistent with the requirements of the State land use program as they pertain to areas of critical en vironmental concern, key facilities, large-scale development, large- scale subdivisions, and land sales or development projects. (e) Any method of implementation employed by the State shall in clude an appeals process for the resolution of, among other matters, conflicts over any decision or action of a local government for any area or use under the State land use program and over any decision or 11 action by the Governor or State land use planning agency in the devel opment of, or pursuant to, the State land use program. (f) Nothing in this Act shall be construed as enhancing or diminish ing the rights of owners of property as provided by the Constitution of the United States or the constitution of the State in which the property is located. Sec. 204. As a further condition of continued eligibility of a State for grants pursuant to this Act after the five complete fiscal year period following the enactment of this Act, in accordance with the procedures provided in section 306, it shall be determined, upon review of the State land use program, that— (1) in designating areas of critical environmental concern, the State has not excluded any areas of critical environmental concern which are of more than statewide significance. Within three years from the date of enactment of this Act, and thereafter as he deems appropriate, the Secretary shall, after affording opportunity for public comment, submit to each State a description of areas within such State which are of more than statewide concern: Provided, That any new areas included in any new submission after the first submission made by the Secretary shall not be subject to review pursuant to this clause (1) until two years from the date of such new submission. (2) the State is demonstrating good faith efforts to implement, and, in the case of successive grants, the State is continuing to demonstrate good faith efforts to implement, the purposes, policies, and requirements of its State land use program. For the purposes of this subsection, the inability of a State to take any State action the purpose of which is to implement its State land use program, or any portion thereof, because such action is enjoined by the is suance of an injunction by any court of competent jurisdiction shall not be construed as failure by the State to demonstrate good faith efforts to implement the purposes, policies, and requirements of its State land use program ; (3) State law's, regulations, and criteria affecting the State land use program and the areas, uses, and activities listed in section 203 are in accordance with the requirements of this Act; (4) the State land use program has been reviewed and approved by the Governor: (5) the State has coordinated its State land use program with the planning activities and programs of its State agencies, the Federal Government, and local governments as provided for in this Act, with the land use programs for reservation and other tribal lands as provided in title V, and with the planning processes and land use programs of other States and local governments within such States with respect to lands and waters in interstate areas; and (6) the State is participating in the programs established pur suant to section 701 of the Housing Act of 1954 (68 Stat. 590, 640), as amended, and, where such State is a coastal State as defined in section 304 of the Coastal Zone Management Act of 1972 (86 Stat. 1280), the programs established pursuant to that Act. 12

P a r t B — I n t e r s t a t e C oordination

GRANTS TO STATES

Sec. 205. (a) The States are authorized and encouraged to coordi nate State and local land use planning, policies, and programs con cerning, to study land use in, to conduct land use planning for, or to implement land use policies in, interstate areas. The States may con duct such coordination, study, planning, or implementation through existing interstate entities where the authority of such entities permits; or, subject to the approval of Congress by the adoption of an appro priate Act, Congress hereby authorizes two or more States to negotiate interstate compacts, with such terms and conditions, including the establishment of such public entities, as to such States seem reasonable or appropriate, for the purpose of such coordination, study, planning, or implementation: Provided, That such entities or compacts shall provide for an opportunity for participation for coordination purposes of Federal and local governments and agencies as well as property owners, users of the land, and the public. (b) The Secretary is authorized to make annual grants to the States for the purpose of such coordination, study, planning, or implementation.

STUDY OF INTERSTATE AGENCIES

Sec. 206. The Advisory Commission on Intergovernmental Relations shall conduct a review of federally established or authorized interstate agencies, including, but not limited to, river basin commissions, re gional development agencies, and interstate compact commissions, and prepare recommendations for revision of organizational struc tures and improvement of procedures for the purpose of improving land use planning, policies, and programs and the implementation thereof in interstate areas. The Advisory Commission on Intergovern mental Relations shall report to the Congress the results of its review conducted under this section, together with its recommendations, not later than two fiscal years after the date of enactment of this Act. Such recommendations may include proposals for either the estab lishment of new entities or the use of existing entities composed of representatives of two or more States: Provided, however, That such entities and the procedures thereof, so recommended, provide for an opportunity for participation in the coordination process by Federal, State, and local governments and agencies as well as property owners, users of the land, and the public.

P a r t C — F e d e r a l A c t io n s i n S t a t e s F o u n d E l ig ib l e or I n e l ig ib l e fo r G r a n t s

CONSISTENCY OF FEDERAL ACTIONS WITH STATE LAND USE PROGRAMS

S e c . 207. (a) Federal programs, projects, and activities on non- Federal lands significantly affpcting land use, including but not limited to grant, loan, or guarantee programs, such as mortgage and rent subsidy programs and water and sewer facility construction pro 13 grams, shall be consistent with State land use programs which con form to the provisions of this Act, except in cases of overriding national interest, as determined by the President. Procedures provided for in subsection (b) of this section and regulations issued by the Office of Management and Budget pursuant to the criteria specified in section 204 of the Demonstration Cities and Metropolitan Develop ment Act of 1966 (80 Stat. 1255, 1262-3), as amended, and title IV of the Intergovernmental Cooperation Act of 1968 (82 Stat. 1098, 1103-4), together with such additional procedures as the Office of Management and Budget may determine are necessary and appro priate to carry out the purposes of this Act, shall be utilized in the determination of whether such Federal programs, projects, and activ ities are consistent with the State land use programs. (b) Any State or local government submitting an application for Federal assistance for any program, project, or activity having sig nificant land use implications in an area or for a use subject to a State land use program in a State found eligible for grants pursuant to this xVct shall transmit to the relevant Federal agency the views of the State land use planning agency and/or the Governor and, in the case of an application of a local government, the views of such local government and the relevant areawide planning agency designated pursuant to section 204 of the Demonstration Cities and Metropolitan Development Act of 1968 and/or title IV of the Intergovernmental Cooperation Act of 1968, as to the consistency of such activity with the State land use program: Provided, That, if a local government certifies that a plan or description of an activity for which application is made by the local government has lain before the State land use planning agency and/or the Governor for a period of sixty days without indication of the views of the State land use planning agency and/or the Governor, the application need not be accompanied by such views. (c) Federal agencies conducting or assisting public works activities in areas not subject to a State land use program in a State found eligible for grants pursuant to part A of title II shall, to the extent practicable, conduct such activities in such a manner as to minimize any adverse impact on the environment resulting from decisions con cerning land use.

FEDERAL ACTIONS IN THE ABSENCE OF STATE ELIGIBILITY

Sec. 208. (a) The Secretary shall have authority to terminate any financial assistance extended to a State under part A of title II and part E of title III and withdraw his determination of grant eligibility whenever, in accordance with section 306, the statewide land use planning process or the State land use program of such State is de termined not to meet the requirements of this Act. (b) Where any major Federal action significantly affecting the use of non-Federal lands is proposed after five fiscal years from the date of enactment of this Act in a State which has not been found eligible for grants pursuant to part A of title II, the responsible Federal agency shall hold a public hearing, with adequate public notice, in such State at least one hundred eighty days in advance of the proposed

95-734 0 - 73 - 2 14 action, concerning the effect of the action on land use, taking into ac count the relevant considerations set out in sections 202, 203, 204, 402, and 505 of this Act, and shall make findings which shall be submitted for review and comment by the Secretary, and, where appropriate, by the Secretary of Housing and Urban Development. Such findings of the responsible Federal agency and comments of the Secretary and, where appropriate, the Secretary of Housing and Urban Development shall be made part of the detailed statement required by section 102(2) (C) of the National Environment Policy Act of 1969 (83 Stat. 852, 853). This subsection shall be subject to exception where the President determines that the interests of the United States so require.

TITLE III—ADMINISTRATION OF LAND USE POLICY

P a r t A — G u i d e l i n e s , R u l e s a n d R e g u l a t io n s

GUIDELINES

S ec . 301. The Executive Office of the President shall issue guidelines to the Federal agencies and the States to assist them in carrying out the requirements of this Act. The Executive Office shall submit proposed guidelines or any subsequent revisions therein to the Secretary, the Interagency Advisory Board on Land Use Policy established pursuant to section 305, the heads of agencies represented on the Board, and representatives of State and local governments, and shall consider their comments prior to formal issuance of such guidelines.

ADMINISTRATIVE RULES AND REGULATIONS

Sec. 302. The Secretary, after appropriate consultation with repre sentatives of the States and, where appropriate, representatives of local governments, and upon the advice of the Board and the heads of Federal agencies represented on the Board, shall promulgate rules and regulations, and make any subsequent revisions thereto, to im plement the guidelines formulated pursuant to section 301 and to ad minister this Act, except with respect to subsection (f) of section 306 of this Act. PUBLIC PARTICIPATION

Sec. 303. An opportunity shall be afforded to the public for public hearings, with adequate public notice, on guidelines proposed pursuant to section 301 and rules and regulations proposed pursuant to section 302 prior to their final promulgation or subsequent revision.

P a r t B — A dministration o r P r o g r a m s

OFFICE OF LAND USE POLICY ADMINISTRATION

S e c . 304 (a) There is hereby established in the Department of the Interior the Office of Land Use Policy Administration (hereinafter referred to as the “Office”) . (b) The Office shall have a director who shall be appointed by the President by and with the advice and consent of the Senate and shall be compensated at the rate provided for level Y of the Executive Schedule Pay Rates (5 U.S.C. 5315), and such other officers and em 15 ployees as may be required. The Director shall have such duties and responsibilities as the Secretary may assign. (c) The Secretary, acting through the Office, shall— (1) maintain a continuing study and analysis of the land re sources of the United States and their use; (2) maintain a continuing study and analysis of the methods adopted by the State and local governments to implement the requirements of this A ct; (3) cooperate with the States in the development of standard methods and classifications for the collection of land use data and in the establishment of effective procedures for the exchange and dissemination of land use d a ta ; (4) develop and maintain a Federal Land Use Information and Data Center, with such regional branches as the Secretary may deem appropriate, wffiich shall have available to it in a form which will enable the dissemination thereof to users of the Center— (A) the results of the studies required in clauses (a) and (b) of this section and clauses (5) through (9) of section 305(c) ; (B) plans for federally initiated and federally assisted activities which directly and significantly affect or have an impact upon land use patterns; (C) to the extent practicable and appropriate, the plans and programs of State and local governments and private enterprises which have more than local significance for land use planning and management; (D) statistical data and information on past, present, and projected land use patterns which are of more than local significance; (E ) studies pertaining to techniques and methods for the procurement, analysis, and evaluation of data and informa tion relating to land use planning and management; and (F) such other information pertaining to land use planning and management as the Director deems appropriate; (5) make the information available to the Data Center acces sible to Federal, regional, State, and local agencies conducting or concerned with land use planning and management and to the public; (6) consult with other officials of the Federal Government re sponsible for the administration of Federal land use planning assistance programs to States, local governments, and other eli gible public entities in order to coordinate such programs; (7) administer the grant-in-aid programs established pursuant to this A ct; and (8) provide administrative support for the Interagency Ad visory Board on Land Use Policy established under section 305 of this Act.

INTERAGENCY ADVISORY BOARD ON LAND USE POLICY

Sec. 305. (a) The Secretary is authorized and directed to establish an Interagency Advisory Board on Land Use Policy (hereinafter referred to as the “Board’'). 16

(b) The Board shall be composed of: (1) The Director of the Office of Land Use Policy Adminis tration, who shall serve as Chairman; (2) representatives of the Department of Agriculture; Com merce; Defense; Health, Education, and Welfare; Housing and Urban Development; Transportation; and Treasury; the Atomic Energy Commission; the Environmental Protection Agency; the Council on Environmental Quality; the Council of Economic Advisers; and the Office of Management and Budget, appointed by the respective heads thereof; (3) representatives of such other Federal agencies, appointed by the respective heads thereof, as the Secretary may request to participate when matters affecting their responsibilities are under consideration. (c) The Board shall meet regularly at such times as the Chairman may direct and— (1) shall provide the Secretary with information and advice concerning the relationship of policies, programs, and activities established or performed pursuant to this Act to the programs of the agencies represented on the Board; (2) shall render advice, pursuant to sections 301 and 302, to the Executive Office of the President and the Secretary concern ing proposed guidelines, rules, and regulations for the imple mentation of the provisions of this Act; (3) shall assist the Secretary and the agencies represented on the Board in the coordination of the review of statewide land use planning processes and State land use programs; (4) shall provide advice on such land use policy matters as the Secretary may refer to the Board for its consideration; (5) shall maintain a continuing study of the impact on land use of Federal programs including, but not limited to, land man agement activities; construction programs; grant, loan, and guarantee programs; and tax policies; (6) shall conduct a study, and report within two years to the President and the Congress the results thereof, of means to reduce the number of, delays in obtaining, and conflicting requirements for, permits, licenses, and other governmental decisions which serve as prerequisites to proposed development activities, with particular emphasis on such permits, licenses, and decisions as are associated with Federal programs; (7) may conduct, or make a grant or contract, pursuant to sec tion 308, for, a study to determine the feasibility of developing a raw land price index comparable to the Consumer Price Index; (8) shall conduct, or make a grant or contract, pursuant to sec tion 308, for, a study of environmental, social, and economic im pacts, and the forecasting of such impacts, of public actions, in cluding construction activities; grant, loan, or subsidy programs; zoning and other land management activities; and tax policies. Particular emphasis should be given to the impacts of various local assessment practices and other Federal, State, and local tax policies, and the effects of land use controls on the rights of private property owners; 17

(9) shall conduct, or make a grant or contract, pursuant to sec tion 308, for, a study of the impact of current land and construc tion financing processes on land use patterns; and (10) shall provide reports on land use policy matters which may be referred to the Board by the heads of Federal agencies through their respective representatives on the Board. (d) Each agency representative on the Board shall have a career position within his agency of not lower than GS-15 and shall not be assigned any duties which are unrelated to the administration of land use planning and policy, except temporary housekeeping or training duties. Each representative shall— (1) represent his agency on the Board; (2) assist in the coordination and preparation within his agency of comments on (i) guidelines, rules, and regulations proposed for promulgation pursuant to section 301 and 302, and (ii) statewide land use planning processes and State land use programs; (3) assist in the dissemination of land use planning and policy information and in the implementation within his agency of poli cies and procedures developed pursuant to this Act; and (4) perform such other duties regarding the administration of land use planning and policy as the head of his agency may direct. (e) The Board shall have as advisory members two representatives each from State governments and local governments and one repre sentative each from regional interstate and intrastate public entities which have land use planning and management responsibilities. Such advisory members shall be selected by a majority vote of the Board and shall each serve for a two-year period.

P a r t C — F e d e r a l R e v ie w a n d D etermination o f G r a n t E l ig ib il it y

Sec. 306. (a) D uring the five complete fiscal year period following the enactment of this Act, the Secretary, before making a grant to any State pursuant to this Act, shall consult with the heads of all Federal agencies represented on the Board and with the Board pursuant to subsection (c) of section 305 of this Act, and shall consider their views and recommendations. (b) After the five complete fiscal year period following the enact ment of this Act— (1) the Secretary, before making a grant to any State pursuant to part A of title II, shall submit the State land use program of such State to the heads of all Federal agencies represented on the Board and to the Board pursuant to subsection (c) of section 305 of this Act. The Secretary shall review the comments of each agencv head which are submitted to him by such agency head no later than thirty days after submission of the State land use pro gram to such agency head by the Secretary; and (2) the Seoretarv shall not make a grant to any State pursuant to part A of title II until he has ascertained that the Administra tor of the Environmental Protection Agency is satisfied that the State land use program of such State is not incompatible with the Federal Water Pollution Control Act, the Clean Air Act, and 18

other Federal laws controlling pollution which fall within the jurisdiction of the Administrator, and that those portions of the State land use program which will effect any change in land use within the next annual review period are in compliance with the standards, criteria, emission or effluent limitations, monitoring requirements, or implementation plans required by such laws. The Administrator shall be deemed to be satisfied if he does not communicate his views to the Secretary within sixty days of sub mission of the State land use program to him by the Secretary. (c) The Secretary may not make any grant to any State pursuant to part A of title II unless he has been informed by the Secretary of Housing and Urban Development that he is satisfied that (1) the state wide land use planning process or State land use program of such State with respect to which the grant is to be made meets the requirements of this Act insofar as they pertain to large-scale development, large- scale subdivisions, and the urban development of lands im pacted by key facilities, and (2), pursuant to section 204(6), the State is participating in programs established pursuant to sec tion 701 of the Housing Act of 1954, as amended. The Secretary of Housing and Urban Development shall be deemed to be sat isfied if he does not communicate his views to the Secretary within sixty days after the statewide land use planning process or State land use program has been submitted to him by the Secretary. (d) The Secretary, in accordance with the procedures provided in subsections (a), (b), and (c) of this section, shall determine a State eligible or ineligible for a grant pursuant to this Act not later than six months following receipt for review of the application of the State for its first grant, a report of the State on its previous grant, or the State land use program of the State as provided in section 201. (e) A State may revise at any time its State land use program: Provided, That such revision does not render the State land use pro gram inconsistent with the requirements of this A ct: Provided further, That any significant revision shall be made only following a public hearing with adequate public notice: And provided further, That any significant revision is reported to the Secretary. The Secretary shall make a temporary determination, prior to the full review of the State land use program pursuant to this section, of whether such revision would render the State land use program inadequate for purposes of complying with the requirements of this Act, and shall inform the State, in writing, of his determination. (f)(1) In the event the Secretary, in accordance with the procedures provided in this section, determines that a State is ineligible for grants pursuant to part A of title II or, having found a State eligible for such grants, subsequently determines that grounds exist for withdrawal of such eligibility, he shall notify the President, who shall order the establishment of an ad hoc hearing board (hereinafter referred to as “hearing board”), the membership of which shall consist o f: (A) one knowledgeable, im partial Federal official who is not an official of an agency listed in clauses (1) through (3) of sub section (b) of section 306, selected by the President within thirty days after notification by the Secretary; (B) the Governor of a State which is not the State for which grant eligibility is in question and which does not have a particu 19

lar interest in whether grant eligibility or ineligibility is deter mined, selected by the National Governors’ Conference within thirty days a,fter notification by the Secretary, or, within ten days thereafter, such alternate person as the Governor may designate; and (C) one knowledgeable, impartial private citizen, selected by the other two members: Provided, That if the other two members cannot agree upon a third member within twenty days after the appointment of the second member to be appointed, the third member shall be selected by the National Center for Dispute Set tlement within twenty days thereafter. (2) The Secretary shall specify in detail, in writing, to the hearing board the reasons for which a State should be considered ineligible, or for which the eligibility of a State for grants should be withdrawn pursuant to this Act. The hearing board shall hold such hearings and receive such evidence as it deems necessary. The hearing board shall then determine whether a finding of ineligibility would be reasonable, and set forth in detail, in writing, the reasons for its determination. If the hearing board determines that ineligibility would be unreason able, the Secretary shall find the State eligible for grants pursuant to this Act. If the hearing board concurs in the finding of ineligibility or withdrawal of eligibility, the Secretary shall find the State in eligible for grants pursuant to this Act. The Board shall make a deter mination of eligibility or ineligibility within ninety days of its appointment. (3) Members of hearings boards who are not regular full-time officers or employees of the United States shall, while carrying out their duties as members, be entitled to receive compensation at a rate fixed by the President, but not exceeding $150 per diem, including travel time, and, while away from their homes or regular places of business, they may be allowed travel expenses, including per diem in lieu of sub sistence as authorized by law for persons intermittently employed in Government service. Expenses shall be charged to the account of the Executive Office of the President. (4) Administrative support for hearing boards shall be provided by the Executive Office of the President. (5) The President may issue such regulations as may be necessary to carry out the provisions of this subsection. (g) In the consideration of eligibility or ineligibility before the Board, the Secretary shall carry the burden of proof to establish in eligibility under the following standards: (1) in the case of ineligibility based upon the requirements of sections 402, 505, and 601 (i), (j), (k), and (1), the State has failed to make a good faith effort to comply with the require ments of, and reasonable regulations established pursuant to, this Act; (2) in the case of ineligibility based upon the requirements of subsections 204(1), the Secretary’s determination of the national interest is reasonable and the State has failed to comply with the requirements of this A ct; (3) in the case of ineligibility based upon any other grounds, the State has failed to comply with the requirements of, and reasonable regulations established pursuant to, this Act. 2 0

(h) As a condition of continued eligibility for grants pursuant to this Act, nothing in this Act shall be construed to require a State to take, or prohibit a State from taking, any action or adopting any law, rule, or regulation the implementation of which would require com pensation from the State to a private property owner under the terms of the fourteenth amendment to the United States Constitution. The standard of review concerning any question arising under this subsec tion shall be that contained in subsection (g) (3) of this section.

P a r t D — S t u d y , R ecommendation , a n d C ongressional C o n s id e r a t i o n o f L a n d U se P o l ic ie s

Sec. 307. Pursuant to section 102(a), the following procedures con cerning the study, recommendation, and congressional consideration of land use policies shall be followed: (a) Each State submitting an annual report under section 201(e) during the period of three complete fiscal years following the enact ment of this Act shall include in such report— (1) comments in regard to the desirability of establishing na tional land use policies pertaining to any of the subjects listed in subsection (b) of this section, and suggestions concerning the sub stance of such policies as might be established; (2) comments in regard to any proposed national land use pol icies which have been recommended by the Council on Environ mental Quality pursuant to subsection (c) of this section; (3) such additional suggestions for national land use policies as it deems appropriate; and (4) such separate comments on the matters described in this subsection as may be made by its intergovernmental advisory council established pursuant to section 202 (b) (6). (b) As part of the process of determining the desirability of devel oping national land use policies and the substance of such policies, if appropriate, consideration shall be given to the need for policies which— (1) insure that all demands upon the land—economic, social, and environmental—are fully considered in land use planning; (2) give preference to long-term interests of the people of the State and Nation and insure public participation as the best means to ascertain such interests; (3) insure the protection of the quality of the environment and provide access to a wide range of environmental amenities for all persons; (4) encourage the preservation of a diversity of environments, including man-made, working and living environments, and nat ural environments with diverse forms of wildlife and flora; (5) protect open space for public use or appreciation and as a means of shaping and guiding urban growth; (6) give preference to development which is most consistent with control of air, water, noise, and other pollution and preven tion of damage to the natural environment; (7) insure that development is consistent with the provision of urban services, including education; water, sewer, and solid waste facilities; transportation; and police and fire protection; 21

(8) insure the timely siting of development, including key facilities as defined in section 601, necessary to meet national or regional social or economic requirements; (9) encourage the conservation and wise use of energy and other natural resources and insure the supply of such resources to meet demonstrable demand based upon such conservation and use; (10) preserve the sustained yield quality of renewable resource lands as defined in section 601; (11) preserve and protect fragile and historic lands as defined in section 601; and (12) protect life and property in natural hazard lands as de fined in section 601. (c) The Council on Environmental Quality shall review the desir ability of national land use policies in regard to the items listed in sub section (b) and in regard to such other subjects as it deems appropriate. At the end of the first full fiscal year following the enactment of this Act, the Council shall submit to the Board a Land Use Policy Report containing such specific recommendations as it may deem appro priate for the establishment of national land use policies. The Board shall review the Land Use Policy Report, the reports of the States under section 201(e), the suggestions of Board members and the pub lic, through public hearings with adequate public notice. Before the end of the third full fiscal year following the enactment of this Act, the Board shall recommend to the Congress such legislation as it may deem appropriate or necessary to establish national land use policies.

P a r t E — T r a i n i n g a n d R e s e a r c h G r a n t s a n d C o n t r a c t s

Sec. 308. (a) The Secretary is authorized to make grants to public and private nonprofit institutions of higher education to assist in establishing or carrying out comprehensive research on and training in land use planning and management. Such grants shall be used to conduct or encourage research and investigations into the theoretical and practical problems of land use planning and management, and to provide for the training of persons to carry on further research or to obtain employment in private or public organizations which are con cerned with land use planning and management. Such research and investigations may include, but are not limited to, methodologies for State land use planning, land use impact forecasting methodologies, the design of statewide land resource information systems, and land use data handling methodologies. In making such grants, the Secre tary shall give preference to institutions of higher education which— (1) have a nucleus of administrative, professional, scientific, technical, and other personnel capable of carrying out such re search and training; (2) have authority to employ additional personnel or make contracts and other financial arrangements with other research and training facilities: and (3) make available to the public all data, publications, studies, reports, and other information which result from such research and training, except information relating to matters described in section 552(b) (4) of title 5, United States Code. 2 2

(b) The Secretary is authorized to contract with public nonprofit institutions or private firms to conduct applied research on problems of land use planning and management. (c) The Secretary is authorized to conduct or contract for the provision of training programs for personnel employed in land use planning and management agencies. Such training programs may con sist of support for conferences, short courses, and fellowships for ad vanced training in public or private nonprofit institutions of higher education offering graduate study in fields having application to land use planning and management.

TITLE IV—FEDERAL-STATE COORDINATION AND CO- OPERATION IN THE PLANNING AND MANAGEMENT OF FEDERAL AND ADJACENT NON-FEDERAL LANDS

PLANNING AND MANAGEMENT OF FEDERAL LANDS

Sec. 401. (a) All agencies of the Federal Government charged with responsibility for the management of Federal lands shall consider State land use programs prepared pursuant to this Act and State, local government, and private needs and requirements as related to the Federal lands, and shall coordinate the land use inventory, planning and management activities on or for Federal lands with State and local land use inventory, planning, and management activities on or for adj acent non-Federal lands to the extent such coordination is not inconsistent with paramount national policies, programs, and interests. (b) For the purposes of this section, any agency proposing any new program, policy, rule, or regulation relating to Federal lands shall publish a draft statement and a final statement concerning the con-, sistency of the program, policy, rule, or regulation with State and local land use planning and management, and where inconsistent, the rea sons for such inconsistency, forty-five days and fifteen days, respec tively, prior to the establishment of such program or policy or the promulgation of such rule or regulation, and, except where otherwise provided by law, shall conduct a public hearing, with adequate public notice, on such program, policy, rule, or regulation prior to the publi cation of the final statement.

STATE LAND USE PROGRAMS

Sec. 402. (a) As a condition of continued eligibility of any State for grants pursuant to this Act, after the five complete fiscal year period following the enactment of this Act. the Secretary shall have determined that— (1) the State land use program developed pursuant to sections 203 and 204 of this Act includes methods for insuring that Fed eral lands within the State, including, but not limited to. units of the national park system, wilderness areas, and game and wildlife refuges, are not significantly damaged or degraded as a result of inconsistent land use patterns in the same immediate geographi cal region; and (2) the State has demonstrated good faith efforts to implement such methods in accordance with clause (3) of section 204. 23

(b) The procedures for determination of grant eligibility provided for in section 306 shall apply to this section.

AD HOC FEDERAL-STATE JOINT COMMITTEES

Sec. 403. (a) The Secretary, at his discretion or upon the request of the Governor of any State involved, shall establish an Ad Hoc Federal-State Joint Committe or Committees (hereinafter referred to as “joint committee” or “committees”) to review and make recom mendations concerning general and specific problems relating to juris dictional conflicts and inconsistencies resulting from the various poli cies and legal requirements governing the planning and management of Federal lands and of adjacent non-Federal lands. Each joint com mittee shall include representatives of the Federal agencies having jurisdiction over the Federal lands involved, representatives of the private land owners involved, representatives of affected user groups, including recreation and conservation interests, and officials of affected State agencies and units of local government. Prior to appointing representatives of private land owners and user groups and officials of local governments, the Secretary shall consult with the Governor or Governors of the affected State or States and with other appro priate officials of the affected State or State and local governments. The Governor of each State shall appoint the officials of the affected agencies of his State who shall serve on the joint committee. (b) Each joint committee shall terminate at the end of two years from the date of its establishment: Provided, however, That each such committee shall be continued for one additional two-year term at the direction of the Secretary or upon the request of the Governor of any State involved. (c) Each member of a joint committee may be compensated at the rate of $100 for each day he is engaged in the actual performance of duties vested in his joint committee. Each member shall be reimbursed for travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code, for persons in the Government service employed intermittently: Provided, how ever, That no compensation except travel and expenses in addition to regular salary shall be paid to any full-time Federal or State official. (d) Each joint committee shall have available to it the services of an executive secretary, professional staff, and such clerical assistance as the Secretary determines is necessary. The executive secretary shall serve as staff to the joint committee or committees and shall be respon sible for carrying out the administrative work of the joint committee or committees. (e) The specific duties of any joint committee shall be assigned by the Secretary, in his discretion or upon the request of the Governor of any State involved, and may include— (1) conducting a study of, and making recommendations to the Secretary concerning methods for resolving, general problems with and conflicts between land use inventory, planning, and management activities on or for Federal lands and State and local land use inventory, planning, and management activities on or for adjacent non-Federal lands, including, where relevant, the State land use programs developed pursuant to this Act; 24

(2) investigating specific conflicts between the planning and management of Federal lands and of adjacent non-Federal lands and making recommendations to the Secretary concerning their resolution; (3) assisting the States and the Office of Land Use Policy Administration in the development of systematic and uniform methods among the States and between the States and the Federal Government for collecting, compiling, exchanging, and utilizing land use data and information; and (4) advising the Secretary, during his review of State land use programs, of opportunities for reducing potential conflicts and improving coordination in the planning and management of Federal lands and of adjacent non-Federal lands. (f) Upon receipt of the recommendations of a joint committee upon a problem or conflict pursuant to subsection (e) of this section, the Secretary shall— (1) where he has legal authority, take any appropriate and necessary action to resolve such problem or conflict; or (2) where he does not have jurisdiction over or authority concerning the Federal lands which are involved in the prob lem or conflict, work with the appropriate Federal agency or agencies to develop a proposal designed to resolve the problem or conflict and to enhance cooperation and coordination in the planning and management of Federal lands and of adjacent non- Federal lands; or (3) if he determines that the legal authority to resolve such problems or conflicts is lacking in the executive branch, recom mend enactment of appropriate legislation to the Congress. (g) In taking or recommending action pursuant to the recommen dations of a joint committee, the Secretary shall give careful con sideration to the purposes of this Act and not resolve any prob lem with or conflict between the planning and management of Fed eral lands and of adjacent non-Federal lands in a manner contrary to the requirements of the laws governing the Federal lands involved.

BIENNIAL REPORT ON FEDERAL-STATE COORDINATION

S e c . 404. The Secretary shall report biennially to the President and the Congress concerning— (a) problems in and methods for coordination of planning and management of Federal lands and planning and manage ment of adjacent non-Federal lands, together with recommenda tions to improve such coordination ; (b) the resolution of specific conflicts between the planning and management of Federal lands and of adjacent non-Federal lands; and (c) at the request of the Governor of any State involved, any unresolved problem with or conflict between the planning and management of Federal lands and of adjacent non-Federal lands, together with any recommendations the Secretary and the Gov ernor or Governors may have for resolution of such problem or conflict. 25

PUBLIC PARTICIPATION

Sec. 405. (a) Prior to the making of recommendations on any prob lem or conflict pursuant to subsection (e) of section 403, each joint committee shall conduct a public hearing or provide an opportunity for such a hearing in the State on such problem or conflict, with ade quate public notice, allowing full participation of representatives of Federal, State, and local governments and members of the public. Should no hearing be held, the joint committee shall solicit, with adequate public notice, the views of all affected parties and the pub lic and submit a summary of such views, together with its recommen dations, to the Secretary. (b) Prior to the making of recommendations or the taking of ac tions pursuant to subsection (f) of section 403, the Secretary shall review in full the relevant hearing record or, where none exists, the summary of views of affected parties prepared pursuant to subsection (a) of this section, and may, in his discretion, hold further public hearings with adequate public notice.

AGENCY ASSISTANCE

Sec. 406. Upon request of a joint committee, the head of any Fed eral department or agency or federally established or authorized in terstate agency is authorized: (i) to furnish to the joint committee, to the extent permitted by law and within the limits of available funds, such information as may be necessary for carrying out the functions of the joint committee and as may be available to or procurable by such department, agency, or interstate agency; and (ii) to detail to tempo rary duty with the joint committee, on a reimbursable basis, such personnel within his administrative jurisdiction as the joint commit tee may need or believe to be useful for carrying out its functions, each such detail to be without loss of seniority, pay, or other em ployee status.

TITLE V—LAND USE PROGRAMS FOR RESERVATION AND OTHER TRIBAL LANDS

GRANTS TO INDIAN TRIBES

S ec . 501. The Secretary is authorized to make annual grants to any Indian tribe to assist such tribe in developing and administering a land use program for reservation and other tribal lands of such tribe.

LAND USE PLANNING PROCESSES FOR RESERVATION AND OTHER TRIBAL LANDS

Sec. 502. (a) Prior to making any grant pursuant to this title to any Indian tribe, the Secretary shall first be satisfied that the tribe intends to expend such funds for the development of a land use plan ning process for the reservation and other tribal lands of such tribe. (b) The land use planning process shall include— (1) the preparation of an inventory of the reservation and other tribal lands and their natural resources and the nature, quantity, and compatibility of such land and resources required to meet economic, social, and environmental needs; 2 6

(2) the establishment of methods for identifying areas of critical environmental concern; areas which are, or may be, im pacted by key facilities; and any areas suitable for potential large scale development; (3) the establishment of arrangements for the exchange of data and information pertinent to land use planning with the Federal Government, the State agencies in the State or States in which the reservation and other tribal lands involved are situated, and neighboring local governments; (4) the dissemination of information to and the assurance of participation of reservation residents and tribal members in the development of the land use planning process; and (5) the hiring of competent professional and technical per sonnel and, whenever appropriate, the use of special consultants.

LAND USE PROGRAMS FOR RESERVATION AND OTHER TRIBAL LANDS

Sec. 503. (a) Prior to making any grant pursuant to this title to any Indian tribe after the five complete fiscal year period following the first grant to such tribe, the Secretary shall first be satisfied that— (1) the tribe has established an adequate land use planning process as provided for in section 502 hereof; (2) has developed, or is in the course of developing, a land use program for the reservation and other tribal lands of such tribe, which program shall include methods for— (A) assuring control over large scale development, devel opment of public facilities or utilities of regional benefit, land sales or development projects, and use and development in areas of critical environmental concern and areas impacted by key facilities; (B) assuring dissemination of information to and partici pation of reservation residents and tribal members in the development and implementation of the land use program; and (C) coordinating, pursuant to section 505, the land use program with any State land use program approved pur suant to this Act and with the use of Federal lands adjacent to the reservation and other tribal lands; (3) in designating areas of critical environmental concern, the Indian tribe has not excluded any areas of critical environmental concern which are of more than tribal and statewide concern; and (4) the Indian tribe is demonstrating good faith efforts to com plete the land use program, and, upon completion thereof, is dem onstrating good faith efforts to implement the purposes, policies, and provisions of such program. For the purposes of this clause (4), the inability of an Indian tribe to take any action the purpose of which is to implement the land use program, or any portion thereof, because such action is enjoined bv the issuance of an in junction bv any court of competent jurisdiction shall not be con strued as failure by the tribe to demonstrate good faith efforts to implement the purposes, policies, and provisions of the land use program. (b) In the implementation of its land use program, the governing body of each Indian tribe is hereby authorized to enact zoning ordi 27 nances or otherwise to regulate the use of the reservation and other tribal lands of such tribe, subject to the approval of the Secretary.

DEFINITIONS j

Sec. 504. The definitions of “areas of critical environmental con cern”, “key facilities”, and “large scale development” provided in sec tion 601 shall be applicable to the same terms contained in sections 502(b) (2) and 503(a) (2) (A), except that, for the purposes of sec tions 502(b) (2) and 503(a) (2) (A) the following substitution of words shall be made within such definitions: (i) “reservation and other tribal lands” for “non-Federal lands”, and (ii) “Indian tribe” or “tribal”, whichever is appropriate, for “State”.

COORDINATION WITH STATE LAND USE PROGRAMS AND FEDERAL LANDS PLANNING

Sec. 505. (a) To the extent that the laws governing the management of the Federal lands permit, all agencies of the Federal Government charged with responsibility for the management of Federal lands ad jacent to reservation and other tribal lands subject to a land use pro gram of a tribe which is eligible for financial assistance pursuant to this title shall control the use of such Federal lands so as to insure that such use is consistent with such land use program. (b) All State and local government agencies with authority to con trol the use of non-Federal lands adjacent to reservation and other tribal lands subject to a land use program of a tribe which is eligible for financial assistance pursuant to this title shall control the use of such non-Federal lands so as to insure that such use is consistent with such land use program. The requirement of this subsection shall serve as a further condition of eligibility of any State for grants pursuant to part A of title II after the five complete fiscal year period following the enactment of this Act. (c) The land use program prepared by any Indian tribe pursuant to this title shall provide for control o.f the use of that portion of the res ervation and other tribal lands which is adjacent to the exterior bound aries of the reservation and other tribal lands so as to insure that such use is consistent with the use of Federal lands adjacent to the reserva tion and other tribal lands and the use of any non-Federal lands which are subject to a State land use program approved pursuant to this Act and are adjacent to the reservation and other tribal lands. If no land use program is prepared after the five complete fiscal year period fol lowing the first grant to any such Indian tribe, the tribe shall assume interim control of that portion of the reservation and other tribal lands which is adjacent to the exterior boundaries of the reservation and other tribal lands so as to fulfill the requirement of this subsection. The re quirement of this subsection shall serve as a further condition of eligi bility of any Indian tribe for grants pursuant to this title after the five complete fiscal year period following the first grant to such tribe.

CONFLICTS RESOLUTION

Sec. 506. Anv State, Indian tribe or the Secretary at the direction of any Indian tribe, or Federal agency with Federal land management re 28 sponsibilities, which believes that the requirements of section 505 have not been met and has jurisdiction over any portion of the particular lands involved, may institute a civil action in the district court of the United States in the jurisdiction of which the lands involved are lo cated for a restraining order or injunction or other appropriate rem edy to enforce the provisions of section 505.

TRIBAL REPORTING REQUIREMENTS

S e c . 507. (a) Any Indian tribe which is receiving or has received a grant pursuant to this title shall report at the end of each fiscal year to the Secretary, in a manner prescribed by him,- on activities undertaken by the tribe pursuant to or under this title. (b) Upon completion of a land use program, the relevant Indian tribe shall submit such program annually with the report required in subsection (a) hereof.

REPORT OF THE SECRETARY

S ec . 508. The Secretary shall report annually to the President and the Congress on all actions taken in furtherance of this title and on the impacts of all other programs or services to or on behalf of In dians on the ability of Indian tribes to fulfill the requirements of this title. ANNO UNC EM EN T OF PROGRAM

Sec. 509. Within one year of the enactment of this Act, the Secre tary shall make known the benefits of this title to all Indian tribes. The Secretary shall make every effort to insure that the provisions of this title are fully understood by such tribes. The Secretary may fulfill the requirements of this section by contract with any non-profit edu cational or service organization. On entering into such contract or contracts, the Secretary shall give preference to such organizations the primary responsibility of which is service to Indians or education on subjects of Indian concern. TITLE YI—GENERAL

DEFINITIONS

S ec . 601. For the purposes of this Act— (a) “Secretary” means the Secretary of the Interior. (b) “State” means a State, the District of Columbia, the Common wealth of Puerto Rico, or any territory or possession of the United States. (c) “General purpose local government” means any general pur pose unit of local government as defined by the Bureau of Census and any regional, intergovernmental, or other public entity which is deem ed by the Governor to have authority to conduct land use planning on a general rather than a strictly functional basis. (d) “Local government” means any “general purpose local govern ment” as defined in subsection (c) hereof or any regional combination 29 thereof, or, where appropriate, any other public agency which has land use planning authority. (e) “Federal lands” means any land owned by the United States without regard to how the United States acquired ownership of the land and without regard to the agency having responsibility for man agement thereof, except reservation and other tribal lands as defined in subsection (g) hereof. (f) “Non-Federal lands” means all lands which are not “Federal lands” as defined in subsection (e) hereof, reservation and other tribal lands as defined in subsection (g) hereof of this section and are not held by the Federal Government in trust for the benefits of Indians, Aleuts, and Eskimos. (g) “Reservation and other tribal lands” means all lands within the exterior boundaries of any Indian reservation, notwithstanding the issuance of any patent, and including rights-of-way, and all lands held in trust for or supervised by any Indian tribe as defined in subsection (h) hereof. (h) “Indian tribe” means any Indian tribe, band, group, or com munity having a governing body recognized by the Secretary. (i) “Areas of critical environmental concern” means areas as defined and designated by the State on non-Federal lands where uncontrolled or incompatible development could result in serious damage to the en vironment, life or property, or the long term public interest which is or more than local significance. Such areas, subject to State definition of their extent, shall include— (1) “Fragile or historic lands” where uncontrolled or incom patible development could result in irreversible damage to im portant historic, cultural, scientific, or esthetic values or natural systems which are of more than local significance, such lands to include shorelands of rivers, lakes, and streams; rare or valuable ecosystems and geological formations; significant wildlife habi tats ; and unique scenic or historic areas; (2) “Natural hazard lands” where uncontrolled or incompatible development could unreasonably endanger life and property, such lands to include flood plains and areas frequently subject to weather disasters, areas of unstable geological, ice, or snow for mations, and areas with high seismic or volcanic activity; (3) “Renewable resource lands” where uncontrolled or incom patible development which results in the loss or reduction of con tinued long range productivity could endanger future water, food, and fiber requirements of more than local concern, such lands to include watershed lands, aquifers and aquifer recharge areas, significant agricultural and grazing lands, and forest lands; and (4) such additional areas as the State determines to be of criti cal environment concern. (j) “Key facilities” means— (1) public facilities, as determined by the State, on non-Federal lands which tend to induce development and urbanization of more than local impact, including but not limited to— (A) any major airport designed to serve as a terminal for regularly scheduled air passenger service or one of State concern;

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(B) major interchanges between the Interstate Highway System and frontage access streets or highways; major in terchanges between other limited access highways and front age access streets or highways; (C) major frontage access streets and highways, both of State concern; and (D) major recreational lands and facilities; (2) major facilities on non-Federal lands for the development, generation, and transmission of energy. (k) “Large scale development'’ means private development on non-Federal lands which, because of its magnitude or the magnitude of its effect on the surrounding environment, is likely to present issues of more than local significance in the judgment of the State. In deter mining what constitutes “large scale development” the State should consider, among other things, the amount of pedestrian or vehicular traffic likely to be generated; the number of persons likely to be pres ent; the potential for creating environmental problems such as air, water, or noise pollution; the size of the site to be occupied; and the likelihood that additional or subsidiary development will be generated. (1) “Land sales or developmental projects”, “projects”, or “project” means any of the activities set forth in clauses (1) through (3) below which occur ten miles or more beyond the boundaries of any standard metropolitan statistical area or of any other general purpose local government certified by the Governor as possessing the capability and authority to regulate such activities: (1) the partitioning or dividing into fifty or more lots for sale or resale primarily for housing purposes within a period of ten years of any tract of land, or tracts of land in the same vicinity, owned or controlled by any developer; (2) the construction or improvement primarily for housing pur poses of fifty or more units within a period of ten years on any tract of land, or tracts of land in the same vicinity, owned or con trolled by any developer, including the construction of detached dwellings, town houses, apartments, and trailer parks, and adja cent uses and facilities, whatever their form of ownership or occupancy; and (3) such other projects as may be designated by the State. (m) “Developer” means any person or persons who directly or indirectly, through any formal or informal combination or aggrega tion, own or control a tract or tracts of land for which such person or persons propose a “project” as defined in subsection (1) hereof. (n) “Person” includes any individual, partnership, corporation, as sociation, unincorporated organization, trust, estate, or any other local or commercial entity, except Federal, State, or local government agencies. BIENNIAL REPORT OF THE SECRETARY

S ec. 602. The Secretary, with the assistance of the Office and the Board, shall report biennially to the President and the Congress on land resources, uses of land, and current and emerging problems of land use. Such report shall also contain the results of the studies re quired pursuant to clauses (1) and (2) of section 304(c) and clauses 31

(5) through (9) of section 305(c), and an evaluation of the effective ness of each State program in meeting the purposes of this Act.

UTILIZATION OF PERSONNEL

Sec. 603. Upon the request of the Secretary, the head of any Fed eral agency is authorized: (i) to furnish to the Office such information as may be necessary for carrying out the functions of the Office and as may be available to or procurable by such agency, and (ii) to detail to temporary duty with the Office, on a reimbursable basis, such personnel within his administrative jurisdiction as the Office may need or believe to be useful for carrying out its functions, each such detail to be with out loss of seniority, pay, or other employee status.

TECHNICAL ASSISTANCE

Sec. 604. The Office may provide, directly or through contracts, such hearings, take such testimony, receive such evidence, and print or Indian tribe found eligible for grants pursuant to this Act to assist such State or tribe in the performance of its functions under this Act.

HEARINGS AND RECORDS

Sec. 605. (a) For the purpose of carrying out the provisions of this Act, the Director, with the concurrence of the Secretary, may hold such hearings, take such testimony, receive such evidence, and print or otherwise reproduce and distribute so much of the proceedings and reports thereon as he deems advisable. (b) The Director is authorized to administer oaths when he deter mines that testimony shall be taken or evidence received under oath. (c) To the extent permitted by law, all appropriate records and papers of the Office shall be made available for public inspection during ordinary office hours.

ALLOTMENTS

S e c . 606. (a) Annual grants, pursuant to part A of title II, to States found eligible for financial assistance pursuant to this Act shall be made in amounts not to exceed 90 per centum of the estimated cost of developing the State land use programs for the five complete fiscal year period following the enactment of this Act and amounts not to exceed 66% per centum of the estimated cost of administering the State, land use programs for the next three fiscal years. (b) Annual grants pursuant to part B of title II shall be made in amounts not to exceed 90 per centum of the cost of coordinating State and local land use planning, policies, and programs concerning, study ing land use in, conducting land use planning for, or implementing land use policies in. interstate areas. (c) Grants pursuant to title II shall be allocated to the States on the basis of regulations of the Secretary, which regulations shall take into account the amount and nature of each State’s land resource base, population, pressures resulting from growth, land ownership patterns, extent of areas of critical environmental concern, financial need, and other relevant factors. 32

(d) Any grant pursuant to title II shall increase, and not replace. State funds presently available for State land use planning and man agement activities. Any grant made pursuant to this Act shall be in addition to, and may be used jointly with, grants or other funds available for land use planning, programs, surveys, data collection, or management under other federally assisted programs. (e) Annual grants to Indian tribes pursuant to title V shall be made in amounts of not to exceed 100 per centum of the estimated cost of developing and implementing land use programs for reservation and other tribal lands. (f) When a State possesses a State land use program approved pur suant to this Act and utilizes general purpose local governments for implementation of such program pursuant to section 203(b) and (c) (1), the State shall allocate a portion of its grant funds pursuant to part A of title II to the general purpose local governments in propor tion to the degree of implementation responsibility which they possess. (g) No funds granted pursuant to this Act may be expended for the acquisition of any interest in real property.

FIN A N C IA L RECORDS

S ec . 607. (a) Each recipient of a grant pursuant to this Act shall make reports and evaluations in such form, at such times, and contain ing such information concerning the status, disposition, and applica tion of Federal funds and the operation of the statewide land use planning process or State land use program as the Secretary may require by regulations published in the Federal Register, and shall keep and make available such records as may be required by the Secretary for the verification of such reports and evaluations. (b) The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access for the purpose of audit and examination to any books, documents, papers, and records of a recipient of a grant pursuant to this Act which are pertinent to the determination that funds granted pursuant to this Act are used in accordance with this Act.

AUTHORIZATION OF APPROPRIATIONS

Sec. 608. (a) For the eight complete fiscal year period following the enactment of this Act, there are authorized to be appropriated to the Secretary for grants to the States not more than $100,000,000 each fiscal year to carry out the purposes of this Act. (b) For the eight complete fiscal year period following: the enact ment of this Act, there are authorized to be appropriated to the Sec retary for grants to the States not more than $15,000,000 each fiscal year to carry out the purposes of section 205 of this Act. (c) For the eight complete fiscal year period following the enact ment of this Act, there are authorized to lie appropriated to the Secre tary $2,000,000 each fiscal year to carry out the purposes of section 308 of this Act. (d) For the eight complete fiscal year period following the enact ment of this Act, there are authorized to be appropriated to the Secre 33

tary for grants to Indian tribes not more than $10,000,000 each fiscal year to carry out the purposes of title V of this Act. (e) For each of the five full fiscal years following the enactment of this Act, there are authorized to be appropriated $10,000,000 to the Secretary to be used exclusively for the administration of this Act. After the end of the fourth fiscal year after the enactment of this Act, the Secretary shall review the programs established by this Act and shall submit to Congress his assessment thereof and such recommenda tions for amendments to the Act as he deems proper and appropriate.

FUNDING FORMULA: COASTAL ZONE MANAGEMENT ACT AND THIS ACT

S e c . 609. (a ) All funds appropriated each fiscal year pursuant to the Coastal Zone Management Act of 1972 (86 Stat. 1280) and this Act shall be fully apportioned for obligation by the Secretary of Com merce and the Secretary of the Interior, respectively. (b) All funds appropriated each fiscal year for grants to the States pursuant to part A of title II of this Act and sections 305 and 306 of the Coastal Zone Management Act of 1972 shall be combined and shall be available to be drawn upon for obligation by the Secretary and the Secretary of Commerce, respectively, in the same ratio as the funds appropriated that fiscal year pursuant to the authorization provided in section 608(a) of this Act bear to funds appropriated that fiscal year pursuant to the authorization provided in section 315(a) (1) and (2) of the Costal Zone Management Act of 1972.

EXPENDITURE OF FUNDS : COASTAL ZONE MANAGEMENT ACT AND THIS ACT

Sec. 610. (a) Any State which is a coastal State as defined in section 304 of the Coastal Zone Management Act of 1972 (86 Stat. 1280) and which has been found ineligible for grants pursuant to section 305 or 306 of that Act shall not expend any fluids received under grants pur suant to part A of title II of this Act for land use planning and man agement in, or administration of the State's management program for, the coastal zone as defined in section 304 of that Act. (b) The Coastal Zone Management Act of 1972 (86 Stat. 1280) is hereby amended by—■ (1) adding, at the end of section 315, a new section 316, as follows: “S ec. 316. Any coastal State which has been found ineligible for grants pursuant to part A of title II of the Land Use Policy and Planning Assistance Act shall not expend any funds received under grants pursuant to section 305 or 306 of this Act for land use planning and management in, or implementation of a State land use program as provided for in that Act for, areas other than those defined by such coastal State as within its coastal zone.” ; and (2) striking subsection (g) of section 307.

EFFECT ON EXISTING LAWS

S ec . 611. Nothing in this Act shall be construed— (a) to expand or diminish Federal, interstate or State jurisdic tion, responsibility, or rights in the field of land and water re 34

sources planning, development or control; to displace, super sede, limit, or modify any interstate compact or the jurisdiction or responsibility of any legally established joint or common agency of two or more States, or of two or more States, a State, or a region and the Federal Government: to limit the authority of Congress to authorize and fund projects; (b) to change or otherwise affect the authority or responsibility of any Federal official in the discharge of the duties of his office except as new authority or responsibilities have been added by the provisions of this Act; (c) as superseding, modifying or repealing existing laws ap plicable to the various Federal agencies which are authorized to develop or participate in the development of land and water re sources or to exercise licensing or regulatory functions in relation thereto: or to affect the jurisdiction, powers, or prerogatives of the International Joint Commission, United States and Canada, the Permanent Engineering1 Board and the United States operat ing entitv or entities established pursuant to the Columbia River Basin Treaty, signed at Washington, Januarv 17, 1961, or the International Boundary and Water Commission. United States and Mexico; (d) as superseding, repealing, or conflicting with the Coastal Zone Management Act of 1972 (86 Stat. 1280) ; (e) as granting to the Federal Government anv of the consti tutional or statutory authority now possessed by State and local governments to zone non-Federal lands; (f) as authorizing or requiring the termination of anv existing trust responsibility of the United States with respect to the Indian people; (g) to delay or otherwise limit the adoption and vigorous en forcement by anv State of standards, criteria, emission or effluent limitations, monitoring requirements, or implementation plans which are no less stringent than the standards, criteria, emission or effluent limitations, monitoring requirements, or implementa tion plans required by the Federal Water Pollution Control Act, the Clean Air Act, or other Federal laws controlling pollution; and (h'; to adopt anv Federal policy or requirement which would prohibit or delay States or local governments from adopting or enforcing any law or regulation which results in control to a de gree greater than required by this Act of land use in anv area over which the State or local government exercises jurisdiction. Amend the title so as to read: “A bill to authorize the Secretary of the Interior, pursuant to guidelines established by the Executive Office of the President, to make grants to assist the States to develop and im plement State land use programs and to coordinate land use planning in interstate areas; to coordinate Federal programs and policies which have land use impacts; to coordinate planning and management of Federal lands and planning and management of adjacent non-Federal lands; to make grants to Indian tribes to assist them to develop and implement land use programs for reservation and other tribal lands; to encourage research on and training in land use planning and man agement ; and for other purposes.” 35

I. INTRODUCTION

1. GENERAL The United States is blessed with vast, productive and hospitable land resources. For over two centuries, these resources were abundant enough to support the material requirements, the varied activities, and the diverse interests of this Nation's growing population. The author ity of Federal and State government was applied to facilitate land de velopment, stimulate individual land ownership, and create private rights in the public lands. The Federal laws relating to land shared a common purpose of placing into State and private hands the vast lands purchased and conquered as our Nation expanded westward. When landowners to whom these lands passed were seriously incon venienced by a land use problem, their remedies lay with the judicial process and rights based on the common law doctrines of nuisance and trespass. With the advent of the Twentieth Century, the increasing scarcity of relatively free, undeveloped land and the mounting pressures of in dustrialization, technological advances, population growth, and rapid urbanization generated a greater number of land use conflicts and re source allocation controversies. Citizens in heavily populated areas dis covered the common law remedies to be inadequate to protect property interests, to assure quality living conditions, and to provide optimum use of a land base suddenly perceived as finite. As a result, demands arose for government to expand its role from that of facilitating un restricted private land development to that of imposing a measure of control on land use to protect larger public interests. Many cities, under the intense pressures of crowding and increasing conflicts generated by a totally unregulated land use decisionmaking process, began invoking the police power delegated to them by their States and proceeded to adopt and apply building codes, zoning ordinances, subdivision laws, and other land use regulations. Today, the Nation as a whole is beginning to experience the pres sures once felt only in its major population centers. In all parts of the country, conflicting demands over limited land resources are plac ing severe strains upon economic, social, and political institutions and processes and upon the natural environment—-farmers' groups oppose real estate developers; environmentalists fight the electric power in dustry; homeowners collide with highway planners; the mining and timber industries struggle with conservationists; shoreline and water recreation interests are pitted against oil companies; cities oppose the states: and suburbs oppose the cities. As discussed in section II of this report, many of the present meth ods, procedures, and institutions for land use decisionmaking are in adequate to resolve major land use conflicts in a manner compatible with changing national goals and requirements. For the most part, today's land use controls are merely refinements upon those developed early in this eenturv in response to a totally different set of objectives and aspirations. With a few exceptions, the land use planning and management institutions of the past have left a legacy of uncoordi nated, haphazard, inefficient land use patterns 1 hich often do not reflect the legitimate interests of various and increasingly diverse 36 constituencies. They have been and are b e i n g employed for largely negative purposes—to prohibit unpopular uses and avoid reduction in property values. Too little attention is given to positive planning to meet projected public needs. The planning which is accomplished too frequently focuses on local problems and concerns and neglects regional and na tional requirements. Today, public and private programs and activities often fail to honor local boundaries or urban limits in their impacts upon land use patterns. Planning has suffered as well from inadequate data bases and the lack of means to implement it. Traditional land use controls are employed infrequently to meet the policies, purposes, and proposals of planning—to advance a design calculated to meet, without dictating, social goals and requirements. In addition, planning is often conducted not to balance competing demands upon the land re source, but to meet a single demand—be it for highways, parks, housing, or industrial development. Even when not single purpose or mission-oriented, planning and other institutional means to influence private decisions where they impact on public rights have seldom re flected non-economic .factors such as long-range environmental effects, housing, recreational needs, and the aesthetic aspects of the land and the development which occurs upon it. These failures of land use plan ning institutions and processes have contributed to polarization on specific issues within many communities, escalated the number and intensity of land use conflicts, contributed to expensive litigation and delays in important private development proposals and public pro grams, created a significant measure of undesirable economic instabil ity, and, in some areas, inflicted severe environmental damage. Sobering statistics suggest that, unless our land use decisionmaking processes are vastly improved at all levels of government, local. State, and Federal, the United States will be faced with a truly national land use crisis. Over the next 30 years, the pressures upon our finite land resource will result in the dedication of an additional 18 million acres or 28 thousand square miles of undeveloped land to urban use. Urban sprawl will consume an area of land approximately equal fo all the urbanized land now within the 228 Standard Metropolitan Statistical Areas—the equivalent of the total area of the States of New Hampshire, Vermont, Massachusetts, and Rhode Island. Each decade, new urban growth will absorb an area greater than the entire State of New Jersey. The equivalent of 21/9 times the housing in the Oakland-San Francisco metropolitan retrion must be built each year to meet the Nation's housing goals. By 1990. according to estimates of the Department of Transportation, an additional 18.000 miles of free ways and expressways will be required within the boundaries of just the urbanized areas—21/4 times the total mileage existing in 1968. Vast areas of land are required to meet plans for industrial expansion. In the next two decades, one industry alone—the electrical power industry—will need three million acres of new rights-of-wav for addi tional high voltatre transmission lines and more than 140.000 acres of potential prime industrial sites for over two hundred new major gen erating stations. As the Chairman of the Committee has stated: In short, between now and the year 2000, we must build again all that Ave have built before. We must build as many homes, schools, 37

and hospitals in the next three decades as we built in the previous three centuries. In the past, many land use decisions were the ex clusive province of those whose interests were selfish, short-term and private. In the future—in the face of immense pressures on our limited land resource—these land use decisions must be long term and public.1

2. SUMMARY OF THE ACT Below is an interpretive summary of the Act. Also included in this report is a lengthier outline, with little analysis, of S. 268’s major pro visions, and a full section-by-section analysis of the Act. {a) Com/mittee Action Over the last three and a half years, the Committee on Interior and Insular Affairs has given careful consideration to S. 268 and other related measures pending before it which are designed to improve the land use planning and management capabilities of Federal, State and local government. Incorporated in S. 268, as amended and ordered re ported by the Committee, are what the Committee believes to be the most realistic and sound oi the provisions of the pending bills and the recommendations presented in the last three Congresses. The Land Use Policy and Planning Assistance Act is, in the view of a majority of the Committee, critically needed to assist local, State and the Federal government to move from an era of chaotic, ad hoc, short-term, case-by-case, crisis-to-crisis land use decisionmaking to an era of long-range planning and management which is based on demo cratic processes and a full appreciation of all legitimate private and public aspirations and needs. This transition is required if the increas ingly complex land use and resource allocation decisions faced by all levels of government are to be made on a rational basis and in full recognition of the requirements of future generations. . During the 91st Congress, the Committee considered and ordered reported to the Senate S. 3354, the “Land and W ater Resources P lan ning Act.” This measure was the first National Land Use Policy leg islation ever considered by the Congress. In the 92d Congress, the Committee reported S. 632, a second National Land Use Policy pro posal, which was similar in many respects to S. 3354. On September 19, 1972, S. 632 passed the Senate by a vote of 60 to 18. S. 268, as introduced this year was identical to S. 632 in the form in which it passed the Senate. S. 268, as reported, hews closely to the purposes and provisions of its predecessor proposals. The principal difference is that, whereas S. 3354, the first bill, mandated comprehensive statewide planning, S. 268 does not. It is the Committee’s view, after thorough consultation with the Ad ministration, many Governors, State planning officials, and many ex perts and professionals in the field of land use planning, that most States now lack and probably could not develop in less than five to ten years the capacity to undertake and implement a comprehensive statewide planning effort for their total land resource base. Further,

1 Remarks of Senator Henry M. Jackson upon the introduction of S. 268 in the Senate, January 9, 1973. Congressional Record, vol. 119, No. 4, 1973 (pp. S. 380-389). 38

the Committee believes that for most States comprehensive, statewide planning would be an unnecessary intrusion in local governmental deci sionmaking. Instead, S. 268 provides financial and technical assistance to the States to focus available resources and expertise on the develop ment of land use programs for the critical areas and uses which are of more than local concern. These critical areas and uses are considered to be of State interest because decisions concerning them have impacts on citizens, the environment, and the economy totally out of proportion to the jurisdiction and the interests of the local zoning body or land use regulatory entity. These decisions and the activities thev affect provide the framework, the structure, and the major influences in shaping not only local, but also regional and State land use patterns. The Commit tee firmly believes that these decisions can and should be made within the context of State and local governments. Therefore, the Committee has also carefully drawn the provisions of S. 268, as reported, so as to avoid the transfer of any significant measure of authority over what have traditionally been local and State decisions on certain land use matters to the Federal Government. A majority of the Committee believes that many of most crucial problems and conflicts facing all levels of government in the areas of protection of environmental quality, siting of energy facilities and industrial plants, design of transportation systems, provision of recreational opportunities, and development of natural resources are the direct result of past failures to anticipate the demands for land and to plan for its uses so as to accommodate those demands. The eco nomic losses, the delays, the resource misallocations, and the social and environmental costs which this failure to plan has imposed upon the Nation are in large measure unnecessary consequences which could have been avoided had appropriate planning been undertaken earlier. It is the Committee’s view that adoption o* this Act and a good faith effort by the States to exercise responsibility for the planning and manage ment of land use activities which are of more than local concern will greatly reduce needless conflicts, will avoid misallocations of scarce resources, will save public and private funds, will insure that public facilities and utilities—powerplants, highways, airports and recrea tional areas—are available when needed, and will improve State- Federal relations in numerous areas of mutual concern. The Committee believes that the objectives of S. 268 are realistic and attainable. They provide a base upon which to build in the shaping of this country’s future environment. (b) Purpose The purpose of S. 268 is to provide Federal technical assistance and a grant-in-aid program to the individual States to assist them in de veloping and improving their capacity for land use planning and man agement. It also provides grant-in-aid programs for interstate coordi nation of land use planning and management and for planning and management by Indian tribes of reservation and other tribal lands. In addition, it encourages Federal grants to or contracts for research and training in land use related subjects. Finally, the Act also provides important new authority designed to improve coordination between the planning efforts of the Federal Government on Federal lands and of State and local governments on non-Federal lands. 39

(c) Authorization The grant-in-aid program to assist the States to develop and im plement land use programs would have an authorization of $100 mil lion a year for eight fiscal years. The authorization would cover up to 90% of the cost of improving planning processes and developing the State land use programs for the first five fiscal years. Thereafter, the program would cover up to 66%% of the costs of administering those programs. The grant-in-aid program to the States to encourage interstate coordination of land use planning would have an authoriza tion of $15 million a year for eight fiscal years, with the Federal share being not more than 90% of cost. Authorized for grants-in-aid to Indian tribes for the development of land use programs for reserva tion and other tribal lands would be $10 million a year for eight fiscal years at not more than 100% of cost. Authorized for grants or con tracts for research and training in land use related subjects would be $2 million a year for eight fiscal years. Finally, an additional $10 mil lion a year for five fiscal years would be authorized for the administra tion of the Act. {d) Statewide land use 'planning process A major purpose of the Act is to assist the States to develop State planning processes. The State planning process, required within three fiscal years of enactment, consists of adequate funding, competent staff personnel, a data and information base, and an appropriate planning agency at the State level. (e) State land use program After the State has developed a State planning process and capa bility, it is required by the Act to develop, within five fiscal years of enactment, land use programs which concentrate on five categories of critical areas and uses of more than local concern. These areas and uses are considered to be of State interest because decisions concern ing them have impacts on citizens, the environment, and the economy totally out of proportion to the jurisdiction and the interests of the local decisionmaker: the local zoning body or land use regulatory en tity. Absent any form of regulatory control or oversight by the State, there may be no means of mitigating the adverse effects upon the regional, State, or national populace, economy, or environment which may result from decisions, made upon purely local considerations, con cerning these areas and uses. These five categories of areas and uses of more than local concern are: (1) areas of critical environ mental concern (e.g., beaches, flood plains, significant wildlife habi tats, historic areas) ; (2) key facilities (e.g., major airports, highway interchanges and frontage access highways, recreational facilities, and facilities for the development, generation and transmission of energy) ; (3) large scale development (e.g., industrial parks or major subdi visions) ; (4) public facilities or utilities of regional benefit (e.g., solid waste disposal or sewerage systems) ; and (5) land sales or develop ment projects (major recreational or second homesite developments in rural areas). Due to the significance of the environmental and public service impacts of the fifth category—the land sales or development projects—the State is required by the Act to develop a method for regulating such developments by the time the planning process is completed (three years from enactment). 40

(/) Roles of State and local government The Act does not necessarily presage and certainly does not require sweeping changes in the traditional responsibility of local government for land use planning and regulation. Decisions of local concern may continue to be made by local government. However, for land use deci sions which would have significant impacts beyond the jurisdiction of the local public or private decisionmakers, the Act provides for wider public participation and review by the State, as the representative of the larger constituency affected by those decisions. The procedures for, and the nature of, State involvement in land use decisions are left to the determination of the individual States, sub ject only to certain due process procedural requirements concerning participation of property owners and the public, appeals, dissemina tion of data, etc., and to certain requirements concerning the establish ment of authority to implement the decisions. To insure flexibility to the States to develop their own procedures and methods, two alterna tive but not mutually exclusive techniques of implementation of State land use programs are given: local implementation pursuant to State guidelines and direct State planning. The proposal would not preclude employment of the latter alterna tive of direct State implementation through State land use planning and regulation. Hawaii and Vermont have already enacted legislation which, in part, calls for such direct State implementation. Other States are directly engaged in land use planning for unincorporated areas. However, the more innovative State land use laws of recent years support the local governments-State government partnership ap proach of the former alternative. The authority of local governments— the level of government closest to the people—to conduct land use planning and management is in fact bolstered in the great majority of laws of some forty States concerning areas and uses of more than local concern—wetlands, coastal zone, flood plain, power plant siting, open space, and strip mining laws. The localities, in these laws, are encour aged to employ fully their land use controls. State administrative re view is provided only in accordance with flexible State guidelines relating only to those decisions on areas and uses that are of clearly more than local concern. And, even should disapproval of a local gov ernment action result from such a review, State preemption of the decisionmaking authority does not necessarily occur; rather, under most of these State laws, the local government would be provided full opportunity to take any of numerous actions which would comply with the State’s guidelines. This Act contains language which encourages the States to adopt the local-State partnership approach, rather than the direct State plan ning approach. However, the Stafes are free to ignore this hortatory language. The subsection in S. 268 which provides that the sug gested techniques are alternative but not mutually exclusive insures that the States cannot be circumscribed in their choice of a method of implementation through interpretation of the Act or Federal regula tions pursuant to the Act—that no single “best” method will be re quired of the States by the Federal administrators. (g) Federal review The Federal review of State progress in developing a “planning process” and a “land use program”, for the most part, does not invite 41 scrutiny of the substance of that process or program. The primary focus of the review is whether the State has authority to develop its planning process and develop and implement its land use program and whether it is making good faith efforts to do so. This is in keeping with the Act’s purpose to encourage better land use decisionmaking at the State and local levels, and not to provide substantial new land use decisionmaking authority on the Federal level. (A) Administration of the Act In recognition of the ubiquitous nature of land and, thus, the multi- jurisdictional ramifications of any legislation concerning decisionmak ing on the use of land, guidelines tor S. 268 are to be promulgated through an interagency process with the principal responsibility of formulating those guidelines residing in the Executive Office of the President. By providing for Executive Office determination of the guidelines, the Committee believes that these guidelines, will not suffer the burden of bearing the specific biases of any particular line agency. However, the proposal provides for several grant-in-aid programs of major dimensions wlncli require administration by line agency per sonnel. This daily administrative responsibility is given to the Depart ment of the Interior. To insure the absence of the mission-oriented bias of any existing office or bureau in the administration of S. 268, a new Office of Land Use Policy Administration, separate from any such office or bureau, would be created within the Department. Certainly, the land use impacts of Federal and federally assisted programs exert the most profound influences upon local, State, and National land use patterns. Yet these programs either have conflicting land use implications or the Federal officials administering them are not fully cognizant of their land use impacts. The Act requires the Federal Government to “put its own house in order” at the same time that it asks the States to do likewise. The Secretary of the Interior is directed to consult with heads of other agencies and to form an Inter agency Advisory Board on Land Use Policy to provide interagency communication concerning the land use impacts of and policies em bodied in Federal and federally assisted programs. State land use programs would be reviewed in an interagency process involving the heads of all the agencies represented on the Interagency Advisory Board. Particular review authority is given to the Secretary of the Interior, the Secretary of Housing and Urban Development, and the Administrator of the Environmental Protection Agency. No State could be declared ineligible unless a judgment of ineligibility is con curred in by a three-member (a Federal official, a Governor, and an impartial citizen) ad hoc hearing board established in the Office of the President. (i) Sanctions Should a State not meet the requirements of the Act, as determined through the review process described in (h) above, the State would become ineligible for the grants authorized by the Act, and any financial assistance extended to the State under the Act would be terminated. I t will be recalled that S. 3354 and S. 632, earlier versions of S. 268 reported by this Committee in former Congresses (and, in the case of S. 632, passed by the Senate) did contain sanctions which 42 affected other Federal programs. An amendment to add a similar sanction to S. 268 was offered and then withdrawn by the Chairman. Instead, the Chairman announced that he would offer the amendment on the Senate floor for full Senate consideration. (For a discussion of sanctions, please refer to the section-by-section analysis in section V II and “Note: The Issue of ‘Cross-Over’ Sanctions”, page 105.) (j) Interstate coordination In recognition of the importance of planning interstate areas and the difficulties of overcoming jurisdictional barriers to achieve that planning, the Act provides a separate grant-in-aid program to assist States to coordinate State and local land use planning, policies, and programs concerning, to study land use in, to conduct land use plan ning for, or to implement land use policies in. interstate areas. The States may use existing interstate entities or, subject to Congressional approval, negotiate interstate compacts to accomplish such coordina tion, study, planning, or implementation. In addition, the Advisory Commission on Intergovernmental Relations is required to conduct a two year study of interstate institutions and processes concerned with land use planning and to report ta Congress its findings and recom mendations for “improving land use planning, policies, and programs and the implementation thereof in interstate areas”. (k) Federal-State coordination A second, and in many cases more severe, jurisdictional problem inhibiting land use decisionmaking involves the interspersion (often in a checkerboard pattern) of Federal and non-Federal lands. The Act addresses this problem by encouraging coordinated planning and management of Federal lands and adjacent non-Federal lands. First, the Federal government and State and local governments are required to provide for compatible land uses on adjoining lands under their respective jurisdictions. Secondly, short term Ad Hoc Joint Fed eral-State Committees, composed of representatives of affected Federal agencies, State agencies, local governments, private property owners, and user groups (including recreation and conservation interests), are to be established by the Secretary of the Interior—on his own volition or upon the request of the Governor of an affected State—to study, and make recommendations to the Secretary for the solution of, general or specific conflicts between uses of Federal lands and uses of adjacent non-Federal lands. The Secretary is directed to act upon the recom mendations and to resolve such conflicts, or, where he lacks the requi site authority, to recommend legislative solutions to Congress. (I) Planning and management of Indian land A final set of jurisdictional barriers to effective land use planning and management concern Indian land. Indian land remains largely unplanned and unregulated because State and local governments lack the authority to develop land use policies and programs for it, neither the Indian people nor the Federal government wish the trustee—the Federal government—to step in, and the Indian people lack the finan cial capability to accomplish the task themselves. The failure to plan Indian lands threatens to further deplete already scarce Indian natural resources and frustrates efforts of State and local governments and the Federal government to plan and manage lands within their respective 43 jurisdictions which are situated adjacent to Indian land. Accordingly, the Act provides a grant-in-aid program to assist Indian tribes to de velop land use programs, similar to the State land use programs, for reservation and other tribal lands. Also, a procedure is established for insuring compatibility of uses among adjacent Indian land, Federal land, and land under State and local jurisdiction. (m) S tudy of national land use 'policies The suitability and substance of national land use policies were much debated subjects within Committee and among witnesses before the Committee. (The arguments for and against the establishment of national land use policies are outlined in the discussion of “New Con siderations Embodied in S. 268”, page 47.) To assist Congress in re solving whether such policies are feasible and, if so, in determining what these policies should be, the Act mandates a three year study by the Council on Environmental Quality, the Interagency Advisory Board on Land Use Policy, and State and local governments. The re sults of that study and recommendations arising from it must be sub mitted to Congress. To insure an in-depth, rather than a pro forma study, set out in the Act are twelve policies which must be fully consid ered by the various parties in conducting the study. (n) Relationship to other land use-related laws and pending legislation Congress has enacted several laws which emphasize land use plan ning, particularly section 701 of the Housing Act of 1954, as amended, and the Coastal Zone Management Act of 1972. Numerous bills relat ing to land use policy have been introduced in the 93d Congress, among them the public lands, energy facilities, power plant siting, surface mining, Federal lands rights-of-way, open space, and deepwater port facilities measures. Most of these bills focus on individual uses or areas of critical concern and more than local sig nificance, and encourage the State to assume a degree of control over them. In addition, the Congress is giving increasing attention to na tional growth policy, in general, and various specific aspects of growth policy, such as rural revitalization. In relation to the myriad of land use and growth policy considerations and legislative proposals before Congress, the Land Use Policy and Planning Assistance Act is ex pected to serve as an “enabling act” which would encourage the States to develop the financial, institutional, and human resources, and re quire of the State legislation to establish the necessary machinery and procedures, to insure that: first, the State will be receptive to any of those considerations or proposals which become law, and second, the many planning tasks which such laws will require will be conducted effectively and not in isolation one from another. In addition, the Act specifically acknowledges the continued impor tance of the “HUD 701” and the Coastal Zone Management programs by, among other things, requiring that States receiving grants under S. 268 must be participating in those programs. Full recognition is also given to the Federal Water Pollution Control Act and the Clean Air Act. (The various provisions in S. 268 concerning these laws are discussed in “Note: Relation to housing, pollution, and coastal zone management laws and to other planning activities and programs” on 44 page 66, throughout the section-by-section analysis, and in “Accom modation of S. 268 and the Coastal Zone Management Act of 1972” on page 58.) 3. NEED It is the view of the Committee that there is a major need for early enactment of legislation designed to assist State and local government to improve their land use planning and management capability and performance. This view is shared by the Administration, the States, and the cities, and by virtually all of the witnesses who appeared be fore the Committee over the past two and one-half years. Russell E. Train, Chairman of the Council on Environmental Quality, stated in testimony before the Committee: “It is a matter of urgency that we develop more effective nationwide land use policies and regulations. Land use is the single most important element affecting the quality of our environment which remains substantially unaddressed as a matter of national policy. Land is our most valuable resource. There will never be any more of it.” 2 Not only is land finite, but unlike air, water, and many minerals and materials, land too often cannot be “recycled”. Mountains carved by strip mines, wetlands dredged and filled, or streams channelized frequently cannot be returned to their former use or beauty. Land, once committed to a use today, be it social, economic, or environmental, may be unable to support a different use in the future which might more closely approximate changing national requirements, values, or goals. As President Nixon noted in a letter to Senator Jackson of April 21, 1972, urging prompt action in the 92d Congress on the Land Use Policy and Planning Assistance A ct: As a Nation we have taken our land resources for granted too long. We have allowed ill-planned or unwise development practices to destroy the beauty and productivity of our Amer ican earth. Priceless and irreplaceable natural resources have been squandered . . . The country needs this [legislation] urgently.3 The Committee has concluded that changing land use requirements and public needs necessitate changes in present land use decision making procedures and institutions. The Committee further believes that S. 268 is designed to achieve these changes. The Committee’s findings, as embodied in S. 268, are as follows: —Land use decisions are, in fact, economic, social and environmental decisions. The uses to which land is put dictate the pace and shape of economic growth, the character and severity of social problems, and the extent to which the environment is preserved or destroyed. Land use frequently is the ultimate issue over which conflicts concerning na tional goals are fought and decided. If we are to avoid shaping the Nation’s future by incremental, ad hoc decisionmaking the uses to

2 National Land Use Policy: Hearings on 8. 6S2 and 8. 992 , United States Senate, Com mittee on Interior and Insular Affairs. 1971, Part 1 (p. 98). 3 The letter is included in section VIII, “Executive Communications” of Senate Report No. 92-809 on S. 632, June 19, 1972, reprinted in Land Use Policy and Planning Assist ance A ct, Hearings before the Committee on Interior and Insular Affairs, United States Senate, 1973, Part 1 (pp. 65, 153). 45 which land resources are to be dedicated should be guided by wise plan ning and management at all levels of government. —The land use planning, management, and regulation encouraged by S. 268 should not be viewed as mission-oriented either in the narrow sense of fostering a specific set of activities or in the larger sense of pursuing exclusively the goal of economic development, the goal of environmental protection, or the goal of improving social services. Rather, land use decisionmaking should be considered as a means of weighing and balancing competing environmental, economic, and so cial requirements and values. —This balancing should be achieved through the creation and use of an adequate data base and an orderly procedure which would prom ise sufficient time to reach a reasoned and knowledgeable decision and to avoid the costly mistakes of both thoughtless, precipitate develop ment and unwarranted, dilatory opposition to beneficial development. —All those affected by lancl use decisions should be afforded the opportunity to participate in the decisionmaking. Purely local deci sions should remain within the exclusive province of local public of ficials and local citizens. (According to an estimate by reporters of the American Law Institute, at least 90% of the land use decisions cur rently being made are of local significance only.4) Yet, land use deci sions which would have a significant impact beyond the jurisdiction of the local public or private decisionmakers should be treated in a differ ent manner. These decisions of more than local concern should also enjoy the contribution of members of the public who would he affected by the results of the decisions but who are not represented by and cannot vote for the local decisionmakers. This contribution can be ob tained by providing for wider public participation in significant land use decisions and for review of those decisions by the State, as the rep resentative of the larger constituency affected by such decisions. —As many land use decisions do have an impact far beyond the jurisdiction and interests of the local, largely urban governmental units which make those decisions, the traditional urban focus of plan ning should be deemphasized in favor of a planning process which not only reflects a balance in economic, social, and environmental values but also a balance of geographical areas. Today, many of the most significant land use decisions are being made on the fringe of urban development and in the rapidly diminishing rural and natural areas of our country. It is in these areas that the greatest opportunity for effective land use planning and management exists. Land use planning and decisionmaking cannot be successful unless it truly relates in a meaningful manner rural and natural areas, the rural-urban interface and its ill-planned or unplanned “urban sprawl”, and the country’s urban centers. —In short, land use planning and management programs must serve as democratically-prepared guides to the future rather than as short-term permits for the activities of interest groups who have mastered and profited from the so-called “zoning game”. Yet even the best, most democratic planning of the land resource is an exercise in futility unless all land use constituencies—businessmen, homeowners,

* The American Law Institute, A Model Land Development Code: Tentative Draft No. 3, Apr. 22, 1971, Philadelphia (p. 5).

95-734 0 - 73 - 4 46 conservationist, etc.—have confidence that the policies and purposes of that planning will be implemented. Too frequently land use planning is not implemented. Land use controls remain unrelated to planning or, when related, either are not exercised or, through variances and other procedures, are employed to frustrate the planning objectives. Thus, truly effective land use decisionmaking must enjoy more than democratic procedures, more than adequate information, and more than the balancing of values. It must also enjoy governmental author ity and willingness to implement it. —The Committee believes that, without the financial and technical assistance of the Federal government, the effort to upgrade land use decisionmaking will fail. It is axiomatic that government has tradi tionally been more effective in treating existing problems than foreseeing and eliminating potential problems. Even the most dedi cated public servant hesitates to argue loudly that public monies might be expended better and more efficiently upon planning to undo the likely causes of prospective problems before they occur, rather than mitigating the results of problems after they are realized. A public experiencing problems regarded as soluble through govern mental efforts is usually unwilling to forego relief from the ill-effects of those problems to support decisionmaking which might foresee and thus reduce the number of problems it will otherwise have to face in the future. Thus, State and local governments, confronted with the funding demands of increasingly costly, ongoing programs directed to immediate problems, seldom are able to segregate sufficient funds to effectively conduct land use planning activities. Accordingly, for a State to indulge in, what is in political terms, the relative luxury of planning, it must receive significant assistance—both financial and technical—from the Federal government. —The Committee regards as unresolved the debate over the feasi bility of substantive national land use policies. (For a discussion of this debate, please refer to “New Considerations Embodied In S. 268”, page 47.) It, therefore, believes that a m ajor study should be conducted at all levels of government to determine the wisdom and possible sub stance of national policies toward land. However, it also believes that, no matter what national policies are adopted, they will stand as mere rhetoric without a general improvement at all levels of government in the machinery—the institutions and processes—for implementing any land use policies. Therefore, the most important national land use policy must be to render Federal financial and technical assistance to the States to enable them, in concert with local governments, to reform their own land use decisionmaking procedures and to develop and im plement their own land use policies. Accordingly, the Federal review of the performance of each State should focus on whether it has devel oped the methods for, and is making good faith efforts toward, imple mentation of its policies and not on what is the substance of those policies. —The Committee believes the Federal government must “put its own house in order” as it asks the States and localities to do likewise. The Federal government should improve its understanding of the wide land use impacts of its many and varied activities, insure inter agency coordination of those activities in order to mitigate adverse 47

or conflicting land use impacts, and develop methods to coordinate those activities with the programs, plans, and projects of State and local governments. Furthermore, the Federal government should be required to establish procedures for resolving the particularly divisive conflicts which arise between Federal planning and management of public lands and State and local government plans for and regula tion of adjacent non-Federal lands. It is the judgment of the Committee that S. 268 embodies the above principles and will encourage the wise and effective land use decision making required to meet the intensifying pressures upon our land base—to meet the land use crisis we face.

4. NEW CONSIDERATIONS EMBODIED IN S. 268 S. 268, as introduced, was virtually identical to S. 632, the national land use policy legislation which passed the Senate by a vote of 60 to 18 on September 19, 1972. However, several new issues brought out either in the six days of hearings on S. 268 or in the debate on the Senate floor last year have been addressed in S. 268, as ordered re ported by the Committee. Those issues and changes in S. 268 reflect ing those issues are as follows: (a) National land use 'policies Debated within Committee, among the witnesses before the Com mittee, and on the Senate floor last year wTas the issue of whether substantive Federal land use policies should be provided in the Act. Although a majority of those appearing before the Committee opposed adoption of such policies, a significant number of witnesses, with other wise diverse positions on S. 268, did present persuasive arguments for the consideration of such policies. For example, spokesmen for Exxon Co., U.S.A., suggested: Although we are of the opinion that State governments and their delegates should dominate the actual planning and management for the use of land resources, the Federal Gov ernment has a nondelegable role to act in matters of truly national concern . . . In some instances, the activities of State or interstate land use agencies may impinge on or be at variance with the welfare of the Nation as a whole. In such instances, Federal policy must dominate and thereby affect State and local government decisions and private initiative. The Federal role should not be to participate directly in land use planning and management at State levels as regards mat ters of national concern, but should be to provide broad guide lines or establish national goals to inform State land use planners of national needs. Through national policy state ments, broad goals and national needs can be expressed.5 It would seem appropriate either to state Federal goals regarding land resources use in the bill or to require the

Jw n L' hoftls- Jr•’ Vlce President, Exxon Co., U.S.A.; Land Use Policy Affnira Assistance Act, Hearings before the Committee on Interior and Insular Affairs, United States Senate, 1973, Part 2 (p. 87). 48 Secretary of the Interior to develop such goals and present them to Congress so they can be ratified as lawful national policy. Such national goals regarding land resources use and development should be articulated sufficiently early in the initial 5-year state planning cycle as to be useful guidelines for State policy making prior to the time State governments must have a federally approved program.6 A spokesman for the Conservation Foundation also supported development of national policies: We suggest that S. 268 should provide for the development and issuance to the States by the Federal government of na tional guidelines or standards for substantive land use policies to guide the State land use program. The Council on Environ mental Quality and the Environmental Protection Agency should have primary responsibilities in developing these sub stantive policy regulations, in cooperation with the admin istrator of the Act . . . We are a national as well as a fam ily of States, and on occasion it is necessary for the national interest to take dominion over that of any State, in matters of land use as elsewhere.7 The three basic arguments for national policies are that, without them: first, certain national interests such as national security, energy supply, environmental protection, etc. could be frustrated by con flicting policies adopted by the States in developing their land use programs; second, inefficiencies could result from the de facto na tional land use policy which would evolve from a mosaic of fifty dif ferent sets of State policies; and third, absent explicit Federal poli cies in the Act, such policies will develop indirectly through inference by those who wTould comply with the Act and through regulations by those required to administer the Act. Arguments against national land use policies are as follows: First, because of the extraordinary diversity of the land resources of our nation, any national land use policies would serve as “lowest common denominator” policies which could frustrate rather than encourage bet ter land use planning and management. National policies designed to meet the problems of the predominately urban and industrialized states (e.g., Illinois or New Jersey) would be inappropriate for predominate ly rural, undeveloped States (e.g., Maine or Wyoming). Policies drawn to reflect the problems of States with a compact land base (e.g., Hawaii or Delaware) would be inapplicable to States with a superabundance of land (e.g., Alaska or Texas). State legislators and Governors should be challenged by S. 268 to develop the strongest possible land use pol icies and programs to fit the peculiar circumstances of each State, not simply to meet some minimum Federal guidelines tailored loosely to fit the very diverse conditions of the national land base. Second, the uncertain record of the several European countries which have adopted national land use policies—countries which enjoy more coherent, com

8 Paper prepared as an addendum to the statement of Mr. Loftis (refer to footnote 5) and submitted to the Committee by Exxon Co., U.S.A. : on file with the Committee. 7 Statement of William Duddelson, Conservation Foundation. Land Use Policy and Planninp Assistance Act. Hearings before the Committee on Interior and Insular Affairs United States Senate, 1973, Part 2 (pp. 143-144). 49 pact land bases, much weaker local governments, and a longer tradi tion of national planning and authority over land—suggests that na tional land use policies for the United States may not meet the very objectives which their advocates share for them. Third, to establish national policies on land use alone would be to ignore the fact that land use regulation is only a particular means to the end of achieving the full range of social, economic and environmental goals of society. Thus national policies specifically addressing land use would bear too narrow a focus and, in fact, could frustrate rather than assist the pur suit of national objectives. Fourth, as land use regulation is a means to achieve a whole range of national environmental, social, and eco nomic goals, as these goals are already embodied in numerous Federal laws, and as S. 268 does not repeal or significantly modify any existing Federal laws, the national interest is already protected by law. States could not violate Federal laws in preparing their land use programs. Fifth, there is virtually no consensus on the possible substance of na tional land use policies (e.g., some advocate preservation of agricul tural land, while others counter that to do so would be irrational given the Federal subsidies to reduce agricultural production). The 1972 na tional growth policy report,8 criticized as it was, did bear the one im portant, unstated but implicit, message that a consensus on national growth and land use policies will be difficult to form. The Committee gave careful consideration to these and other argu ments for and against national land use policies. Particular weight was given to the lack of sufficient knowledge concerning or a consensus on either the feasibility or the substance of national policies; to the danger of administrative adoption, by inference or regulation, of na tional policies in the absence of Congressional action; and to the need, if such policies are determined to be appropriate, to formulate them expeditiously so as to give early guidance to the States in develop ing their land use programs. The Committee adopted an amendment to S. 268 which provides for a three year feasibility study of national land use policies by the Council on Environmental Quality, with par ticipation by the interagency Advisory Board, the States, and local governments. To insure an in-depth, rather than a pro forma study, twelve policies are set out in the Act which the various parties must address. Three years after enactment of the Act, the study, with recom mendations, must be submitted to Congress. The Committee believes that this study will generate the necessary knowledge and, if not estab lish a consensus, at least focus the issues sufficiently to allow a Con gressional determination of whether national policies are appropriate and, if so, what they should be. This approach would insure that any such policies would be developed only by Congress and, if de veloped, would be made available early enough so that the States could incorporate them in their planning efforts. (b) Participation of property owners and the public Witnesses of all persuasions argued for a strengthening of the “par ticipation” provisions in S. 268. Trade associations argued that private property owners must be insured a full hearing in any process which

8 Executive Office of the President-Domestic Council, Report on National Growth, 1972, Washington, D.C., 1972. 50 results in controls over their land. Public interest groups supported in creased public participation, and several Governors expressed the need for public education, as prerequisites to the success of any legislative or administrative efforts to improve the land use decisionmaking proc ess and to develop land use policies. A persuasive statement by Joseph E. Bodovitz, former executive director of the San Francisco Bay De velopment and Conservation Commission, summarizes the need for full public participation: The tendency in this kind of [the Commission’s] planning program, nationwide, and o.ne reason why planning has had so little impact on the American scene, is that the typical plan is prepared in an ivory tower. By this I mean it is prepared in isolation from the public, and then unveiled after a year or two . . . This may result in good technical work, and the re search may turn up some interesting facts. But it doesn’t edu cate the public. And, therefore, when the final report is sub mitted, nobody understands it and nobody is willing to take action. There are plenty of these studies around that nobody understands and therefore nothing happens as a result. But the great problem in planning right now is the need to make hard decisions. Consultants simply can’t—and shouldn’t— make decisions for other people.9 The Committee believes that wide participation in land use planning and management by all interests is necessary because: first, a more open decisionmaking is more likely to arrive at decisions favorable to the public interest; and, second, the credibility of closed decisionmak ing, no matter how excellent, cannot withstand the cynicism that in evitably flows from the exclusion of persons or interest groups who rea sonably believe themselves affected by the resultant decisions. In sup port of this belief, the Committee adopted a series of amendments to strengthen participation of property owners, users of the land, and the public, including statements of the importance of wide participa tion in the “Findings” and “Purposes” of the Act, and requirements for participation from the setting of guidelines under the Act, through all stages in the development of the statewide planning processes and State land use programs, to the final approval and implementation of the State land use programs. (c) Training in and research on land use related subjects A number of witnesses, but particularly Governors, representatives of the counties and the cities, and officials of various professional as sociations of planners, spoke of two particular roadblocks to implemen tation of the Act: the scarcity of human resources trained in, and the paucity of research on, land use related subjects. Accordingly, the Committee added a small ($2 million a year for eight years) program of grants and contracts for research on and training in land use plan ning and management. (d) Higher funding levels With the sole exception of spokesmen for the Administration, the hearing witnesses were unanimous in the opinion that a higher fund-

9 Rice Odell. The Saving of San Francisco Bay: A Report on Citizen Action and Regional Planning, The Conservation Foundation, Washington, D.C. 1972, p. 41. 51 in" level and a greater Federal share of the costs were required to achieve the purposes of the Act. The Committee increased the funding level for the basic grant-in-aid program to the States from an average of $34 million per year for five years to $100 million per year for eight years, and raised the Federal share from 66% for two years and 50% thereafter to 90% for five years and 66%% thereafter. (e) Land sales or development projects In recent years the massive recreational homesite developments and installment land sales developments have been the subject of national concern. Early attention was given the sales practices of these develop ments. The misrepresentations, sometimes openly fraudulent, which were made to distant buyers, who often sunk and lost their life savings in “dream” sites for retirement homes or “secure investments” against inflation, became a national scandal. In the wake of this scandal Con gress passed a major consumer protection law: the Interstate Land oales Full Disclosure Act (82 Stat. 590). Pending before Congress are proposals to strengthen this 1968 law and further reduce the wide spread abuses of proper land sales practices. Protection of the consumers, however, does not and cannot insure protection of the environment and of public services. The public is becoming increasingly aware of the serious ill-effects of these large developments on air and water quality, recreational and scenic ameni ties, and urban services such as water supply, sewage treatment, schools, police and fire protection, and the provision of electrical energy. This new concern was expressed in a recent series of articles in the Christian Science Monitor by Pulitzer Prize winning reporter and founer member of the Council on Environmental Quality, Robert C ahn: Beyond the financial woe it inflicts on individual buyers, this land boom by ballyhoo is having major impact on the land itself and on the environment. Decisions about where millions of Americans should be encouraged to migrate are left to land speculators while states and localities give up by default any public say in land use or growth policy. Few public authorities are yet asking the vital questions: Should a new community be placed in a certain place just because one individual has been able to as semble a large tract of land cheaply ? What alternatives have been considered and by whom ? The average nearby resident does not know or question until too late just what effects a new development may have on his life or on his taxes. Few question what provisions have been made to see that the development satisfies the growing environmental con science in the nation. Does the land have sufficient water to supply the development without depriving neighbors of their supply? Can water pollution be prevented? What irreversible environmental changes will be made to the land? And finally, or perhaps primarily, is this land that should be preserved intact for future generations? Not that all land sales are bad. Some types of develop ments serve useful purposes, especially when a legitimate 52 market for homesites exists, where environmental protec tions are provided, and where the developer provides utilities and services at the start, or is adequately financed and bonded to guarantee their completion.10 Controlling sales practices, as the interstate land sales law does, is after-the-fact regulation from the standpoint of protection of the en vironment and maintenance of urban services. The decisions as to sit ing and the type and scale of development—the basic decisions w’hich occur before sales or improvements are begun and which determine what stresses will be placed upon the environment and urban serv ices—are not addressed in Federal law and remain largely unregulated. The Committee believes that these decisions should be addressed in the context of national land use policy legislation. Furthermore, the Committee has concluded that proper regulation of these develop ments will not work a hardship against the young, the elderly, the poor, and all others who seek or will seek decent housing in the coming years because: first, it will insure that the housing in such developments meets theirs and society’s expectations as to environmental and public service amenities; and second, even should regulation reduce the vol ume of sales, it would not decrease the construction of new housing. Certainly, the pace of these developments today far outstrips the de mand for housing. The report of the Task Force on Land Use and Urban Growth of the Citizens’ Advisory Committee on Environmental Quality disclosed that in 1961 for every six lots sold in such develop ments only one home was started.11 In certain States the figures are even more dramatic. Senator Gaylord Nelson noted that: “In New Mexico, despite present estimates that the State’s water can only sup port 850,000 people without seriously disturbing other uses or tapping limited groundwater, the population is already one million and more than a million acres have been subdivided”, far more acreage than is needed to support projected future population increases in the state.12 A 1971 survey in Pennsylvania found that homes were built on only about two per cent of the lots sold.13 In California, the figures are three per hundred.,14 The Committee considered, amended further, and adopted an amendment offered by Senators Nelson, Jackson, and Hatfield to re quire States, as a condition for financial assistance under S. 268, to develop programs to regulate these developments, termed “land sales or development projects”. The State would prepare its program within three years of enactment of the Act as part of its statewide planning process. The program would include the making available of the full range of State expertise to understaffed local governments in pre

10 Robert Cahn. Land in Jeopardy, a Christian Science Monitor reprint, Boston. Massa chusetts, 1973 : found in Land Use Policy and Planning Assistance Act, Hearings of the Committee on Interior and Insular Affairs, United States Senate, 1973. Part 2 (p. 259). 11 Task Force on Land Use and Urban Growth, The Use of Land: A Citizens’ Policy Guide to Urban Groicth. to be published by Thomas Y. Crowell Company, summer 1973 : cited on page 35 of the Summary: Land Use and Urban Growth prepared by the Task Force. 13 Testimony of Senator Gaylord Nelson, Land Use Policy and Planning Assistance Act, Hearings of the Committee on Interior and Insular Affairs, United States Senate, Part 3, 1973. 13 Judy Gardner, “Consumer Report: Land-Sales Industry Braces for Tighter Federal, State Regulation.” National Journal, January 20, 1973. p. 90 14 Testimony of Robert Cahn, Land Use Policy and Planning Assistance Act, Hearings of the Committee on Interior and Insular Affairs United States Senate Part 3 1973. 53

dominately rural areas in the form of comments on the environmental and urban services impact of each project. In addition, regardless of whether local or State government regulation is chosen for the pro gram, prior to permitting a land sales or development project the regulating government would require that it meet nine standards con cerning protection of the environment, maintenance of public services, and financial capability of the developer. The Committee believes that, unless land sales or development proj ects receive, and perform under, this type of regulatory attention, all projects, including the truly excellent projects—mentioned by Cahn— which do not degrade the environment, do not overburden urban services, and do meet housing needs, will be increasingly barred by S t a t e and local governmental action. (/) Affects on property taxes and the local tax hose An issue raised on the Senate floor in the debate on S. 632 last year was the effects of national land use policy legislation on the local tax base. The concern was expressed that, under the State land use pro grams, controls will be placed upon the use of property which will reduce the revenues available to local governments through property taxes. After reviewing performances to date under the numerous new State land use laws, the Committee is of the opinion that the States, in complying with this Act, will be sensitive to local revenue needs. How ever, to insure such sensitivity, the Committee inserted in S. 268 a requirement that each State consider “the impacts of State programs and activities, land use policies, and the State land use program to be developed pursuant to this Act on the local property tax base and rev enues and on rights of private property owners.’’ The Committee also believes that equally great, and in some cases greater, impacts upon property tax revenues result from other Federal legislation such as park and open space legislation, educational assist ance laws, and, particularly, anti-pollution measures such as the Clean Air Act and Water Pollution Control Act. Accordingly, an amendment was adopted by Committee to require two year studies by the Inter agency Advisory Board on Land Use Policy of (i) the tax revenue affects of all major public programs and activities and (ii) the im pacts—environmental, social, and economic—of various local property tax assessment practices and other Federal, State, and local tax practices. (g) The problem of multiple licenses Most trade association witnesses endorsed the principal purpose of S. 268—i.e. to improve land use decisionmaking—and stated that they believed in the long run the purpose would be achieved. However, they expressed reservations about the possible short-run effect of S. 268. That effect, they suggested, might be to burden developmental activi - ties with yet one more licensing requirement. Several exchanges with these witnesses during the hearings on S. 268 made it apparent that S. 268, itself, was not the principal source of their concern. There was little real expectation that the Act would dramatically increase the licensing burden. Rather, the hearings on S. 268 served as a “forum’- for developmentalists to comment generally on the mounting tide of inefficient, time-consuming, costly and often 54 contradictory paperwork, procedures, requirements,^ and reviews which government has thrust in the w ay of their acti\ lties. The Committee believes that this complaint is legitimate and war ranted. However, the Committee also recognizes the difficulties inher ent in any attempt to reduce the licensing burden. Therefore, it adopted an amendment to S. 268 to require the Interagency Ad visory Board to conduct a two year study, and report to Congress the results thereof, “of means to reduce the number of, delays in obtaining, and conflicting requirements for, permits, licenses, and other govern mental decisions which serve as prerequisites to proposed development activities, with particular emphasis on such permits, licenses, and pro cedures as are associated with Federal programs”. This provision vTould constitute the first significant statutory recognition of the multi ple licensing problem and would prepare the way for future Congres sional action to mitigate that problem. (h) Planning and management of Indian land Last year, prior to reporting S. 632, the Committee added a title to the bill which required coordination between Federal planning and management of Federal lands and State and local planning and regulation of adjacent non-Federal lands. In many Western States, where well over 50% of the land base is in Federal ownership 15 and where much of that Federal land is interspersed among non-Federal land in a checkerboard pattern, land use planning would be impossible without Federal-State coordination. This year, at the urging of Senator Fannin and representatives of a number of Indian tribes, the Committee addressed another jurisdic tional question of lesser scale, perhaps, but in some ways more urgent than the Federal lands—non-Federal lands problem: the planning and management of reservation and other tribal lands. These lands also are found in checkerboard pattern with other lands. But coordi nation is more difficult because planning and management activities are absent from most Indian land. The States and local governments do not possess authority to conduct such activities on Indian land. In an era when “self-determination” is espoused as an Indian goal, neither the Federal government nor the Indian people wish the Fed eral government, in its role as “trustee” for such land, to assume the necessary planning and management responsibilities. And, the In dian people lack the human and financial resources to accomplish the task themselves. Without planning and management of Indian lands it is difficult to protect scarce Indian natural resources and vir tually impossible to coordinate the use of Indian land with the use of adjacent Federal and non-Federal land. The Committee, there fore, adopted a new title to provide Indian tribes, through a new grant- in-aid program, with the resources necessary for them to develop land use programs for their land similar to the State land use programs required of the States. The title also provides a mechanism for coordi nating the land use programs of Indian tribes with State land use pro grams and Federal planning for Federal lands.

15 Please refer to footnote 34 for the percentages of Federal land in various Western States. 55

(i) The protection of the rights of private property owners During the mark-up of S. 268, the Committee gave careful consid eration to the possible impact of the legislation on the traditional rights of private property owners. A conscious effort was made to remove any provision or ambiguity which would permit any inter pretation that the Act in any way provides authority to either diminish or enhance property rights under State constitutions and the Con stitution of the United States. The authority of the States (and local governments, through the delegation of State power) to regulate the use of land to achieve public goals is well established. This authority, however, is clearly not abso lute. The extent of the restriction on this authority—the line between permissible and impermissible regulation (regulation which does not require compensation and regulation which, either because of the mag nitude of the diminution of property value or the purposes to be achieved, does require compensation)—is different in each State. The permissibility of governmental regulation of private property in each and every case is subject to review by the courts against the Fifth Amendment’s prohibition of “takings” of property without “just com pensation”, which applies to the States by virtue of the Fourteenth Amendment, and against similar provisions of State constitutions. Thus, the Constitution is, as it has always been, the ultimate bulwark for protection of individual property rights. This was well put by Justice Holmes when he held a Pennsylvania statute unconstitutional: When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accom plished in this way under the Constitution of the United States. (Emphasis supplied) 1,5 The Committee fully concurs with Justice Holmes. Certainly. S. 268, if enacted, cannot amend the United States Constitution and will not amend the State constitutions. The Committee agrees that the line drawn by the constitutions between regulation without compensation and regulation with compensation—the extent of protection of rights of property owners—should not be affected by S. 268 or any similar law and that the courts are the proper forums for the interpretation of those constitutions. To make absolutely certain that the Act does not by implication alter or “amend” the constitutional guarantees of the rights of the property owner or diminish the courts’ authority to protect those rights, the Committee adopted an amendment to insert subsection 208(f) in S. 268. That subsection reads: Nothing in this Act shall be construed as enhancing or diminishing the l ights of owners of property as provided by the Constitution of the United States or the constitution of the State in which the property is located. In short, bv this amendment, the Committee has declared that S. 268 should not directly or indirectly, by implication, interfere with the

1# Pennsylvania Coal Co. v. M a h o n , 260 U.S. 393. 415 (1922). 56 development of constitutional doctrine on land use and property lights in the fifty States. "Last year on the floor, the Senate adopted an amendment, sponsored by Senators Jordan, of Idaho, and Hansen, to S. 632 (the precursor of S. 268) which provided: Any person having a legal interest in land, of which a State has prohibited or restricted the full use and enjoyment there of, may petition a court of competent jurisdiction to deter mine whether the prohibition diminishes the use of the property so as to require compensation for the loss and the amount of compensation to be awarded therefor. In introducing the amendment, Senator Jordan stated: The purpose of this amendment is to make abundantly clear that in implementing a land-use plan, a State cannot deprive an individual of his property without due process and, if warranted, compensation.17 A subsequent colloquy further established the purpose of the amend ment :

Mr. T u n n e y . I should like to ask the able Senator from Idaho if it is his intention to create a new cause of action ... that does not presently exist by State law? Mr. J o r d a n of Idaho. My understanding of this amend ment is that it only asserts what should be a litigant’s right in the first place. If he is damaged by some State action that has prohibited or restricted for full use and enjoyment of his property, he should be entitled to go to court. Mr. T u n n e y . But it would not create a new cause of action. Under existing State law, a claimant would have the right to go to court if he felt that he were injured; but it would not create a new cause of action as a result of the passage of this legislation if this amendment is included therein. Mr. J o r d a n of Idaho. No rights a r e taken a w a y . Mr. T u n n e y . It is not a question of taking away rights. It is a question of giving a new right that does not exist.18 W ith the objectives for the amendment expounded by Senator Jor dan of Idaho, the Committee is in full accord. In the hearings, and in subsequent communications, on S. 268, however, private persons and governmental officials in complete sympathy with the Jordan amendment raised very serious questions about its potential effects. The Acting Secretary of the Interior, John C. Whitaker, stated: Since the right to petition for compensation for an uncon stitutional denial of due process would exist irrespective of section 303(f) [the Jordan amendment], that section could be construed as requiring compensation for any restricted use under the State’s land use program whether the restriction was constitutional or not. This undercuts a fundamental pur pose of the bill which is to encourage States to use their

17 Congressional Record, Sept. 18, 1973 (S. 15177). 18 Congressional Record, Sept. 18, 1973 (S. 15180). 57

regulatory authority to achieve land use objectives to the fullest extent permissible under the Federal and State Constitutions.19 In the same vein, the Department of Justice stated: . .. this language might be read to expand rights to compen sation beyond those currently recognized under constitutional “takings” law. The phrase “to determine whether the prohibi tion diminishes the use of the property so as to require com pensation'’ begs the basic questions, but it suggests that any diminution in value would result in compensation. In the first place, we gather that there is no substantial committee sentiment for attempting to expand the scope of existing constitutional rights to compensation in this area, at least in the context of this bill. Secondly, it is unclear whether this language, if read as a substantive compensa tion provision, could validly give rise to a federal or State cause of action. It reads like a federal substantive right, but whether Congress has constitutional authorization to create such a right is open to some question. Cf. Katzenbach v. Mor gan, 384 U.S. 641 (1966). Apart from the constitutional ques tion. this language, read in conjunction with the introductory clause of section 203, m ight be construed so as to require the States to enact new compensation legislation as a condition of receiving grant money. In addition to these questions, should the federal or State governments ultimately decide that the taxpayers should shoulder more of the burden of preserving the environment than would be required by existing constitu tional law, sophisticated and discriminating compensation statutes will need to be developed. But this provision, when read as a statutory compensation statute, gives the courts virtually no guidance as to when compensation should be paid.20 The Committee, in an attempt to achieve the objectives of the Jordan amendment without creating the ambiguities which the many witnesses before, and correspondents with, the Committee suggested were embodied in that amendment, adopted the subsection 203(f) quoted above. The Department of Justice commented favorably upon the committee-adopted provision: . . . [It] would incorporate Federal and State constitu tional compensation standards. We see no disadvantage in spelling out in the bill that federal constitutional rights to compensation are not to be affected 21 The Department of Justice did express concern that the Committee's final formulation of the amendment, far from reducing property owners’ rights to compensation, might instead, in some States, pro

18 Views of the Department of the Interior on S. 268, March 26, 1978; reprinted in this report in section VIII “Executive Communications.” 20 Letter from Robert G. Dixon, Jr., Assistant Attorney General. Office of Legal Counsel, Department of Justice, to Senator Paul Fannin. May 14, 1973 ; reprinted in this report in section VIII “Executive Communications.” 21 Ibid. 58 vide them protection beyond that required by the United States Constitution.22 The Committee also recognizes two other important aspects of the police power. First, as is well known, the police power over land use was first invoked and is still employed to protect and enhance property values. Property values, in fact, often depend upon a diminishment of full use of property. For example, residential lot prices are enhanced by the police power prohibition of use of those lots and neighboring land for tanneries, pulp mills, slaughter houses, etc. To restrict the use of police power may, in fact, damage the economic value of prop erty rights. Secondly, it is largely myth that State courts are all be coming more permissive concerning the imposition of even stricter zoning ordinances and other police power techniques to control land use. In fact, in recent years, many State courts have begun to con strue more narrowly the threshold beyond which control over land under the rubric of the police power cannot go. Zoning and other land use controls are being subjected to close scrutiny and, recently being declared unconstitutional, over not only the question of whether they effectuate a “taking” requiring compensation but also the question of whether they are exclusionary in violation of equal protection and due process rights. Section 203(f) would insure that the limitations upon, and the le gitimate use of, the police power, as guaranteed by the Constitution of the United States and the State constitutions, are neither dimin ished nor enhanced. (j) Accommodation Of S. 268 And The Coastal Zone Management A ct O f 1972 At various places in S. 268, the Committee has inserted language which seeks to form a basis for accommodation of this Land Use Policy and Planning Assistance Act and the Coastal Zone Management Act of 1972. Both Acts ask the States to establish and implement land use programs—the former for critical areas and uses of more than local concern, the latter for the coastal zone. Responsibility for administra tion of S. 268 would reside with the Secretary of the Interior. The Coastal Zone Management Act is within the jurisdiction of the Sec retary of Commerce. He, in turn, has delegated his duties to the Na tional Oceanic and Atmospheric Administration, the administrative entity within the Department of Commerce which possesses the tech nical expertise necessary to administer the Act. During the 92d Congress, when the Coastal Zone Management Act and the Land Use Policy and Planning Assistance Act were con sidered in the Senate Committees on Commerce and on Interior and Insular Affairs, respectively, questions were raised concerning the relationship of the two measures, should they both be enacted. It became clear that a means of accommodation must be found to insure coordination between the two Federal agencies administering the Acts and between the two programs which the two Acts would require to be developed by each coastal State. During the floor debate on the Land Use Policy and Planning Assistance Act (then S. 632) in Sep tember 1972, an agreement was reached between Senator Henry M. Jackson (Chairman of the Interior Committee and sponsor of S. 632),

22 Ibid. 59 and Senators Warren Magnuson and Ernest Hollings (Chairmen, respectively, of the Commerce Committee and its Subcommittee on Oceans and Atmosphere, and cosponsors of the Coastal Zone Manage ment Act) to the effect that, if both measures were to become law, they would operate side-by-sicle, and steps would be taken to insure that the necessary cooperation and coordination would occur. Con templated in such steps was the possibility of further legislative efforts. The parties to the agreement felt that the Department of the In terior has the expertise to administer a grant-in-aid program in sup port of State land use programs relating to land use in general, but that the National Oceanic and Atmospheric Administration possesses the “wet-land” and oceanic expertise necessary to administer a grant- in-aid program to assist the development of State management pro grams specifically for the coastal areas. Accordingly, it was their belief that the grant-in-aid programs and the, administrative respon sibilities should remain separate. Moreover, the need for federally assisted State land use planning and management efforts Avas acknowledged to be most immediate in the heavily populated and highly pressured coastal zone. In fact, several coastal States, most notably California, Hawaii, Maine and Washington, had enacted, or were about to enact, specialized management regimes for their coastal zones. The Coastal Zone Management Act Avas considered necessary to assist those and other coastal States. Furthermore, it was felt that the Acts are fully complementary. Few dispute that the coastal zone is perhaps the most significant “area of critical environmental concern” and to protect the coastal zone the States need to obtain an early planning start directed at that zone alone. In fact, coastal States’ efforts at developing land use programs for the coastal zone can serve as “pilot” programs to formulate proce dures and techniques for the more ambitious State land use programs called for under S. 268. It was belie\*ed that regulations could be drafted by the Federal agencies administering the two Acts to resolve any conflicts or administrative difficulties which might develop be tween the State programs formulated under the two Acts. Subsequent actions of the Administration, hoAAever, have established the necessity of further legislative activity. Not the least of these actions Avas the submission by the Administration of a budget proposal, for fiscal year 1971 Avhich included a request of $20 million for the Department of the Interior in expectation of the enactment of the Land Use Policy and Planning Assistance Act and no request for funds to enable the Department of Commerce to implement the Coastal Zone Management Act Avhich Avas already enacted into laAv. The result was Committee adoption of amendments to S. 268 spon sored by Senators Jackson, Magnuson, and Hollings. These amend ments provide for cooperation and coordination at both the Federal and State. leArels in the implementation of the two Acts. The amend ments are discussed in the section-by-section analyses of section 202(b) (4), 202 (c), 203(a) (3) (J ), 204(6), 601 (i), 609, 610, and 611(d).

5. AVITAT TTIE ACT DOES AND DOES NOT DO During the consideration of S. 632 last year on the Senate floor, at the request of seAeral Senators, the Chairman of the Committee had 60 prepared and printed in the Congressional Record a brief review of the history of government involvement in land use planning and a discussion of what S. 632 did and did not do. This document, reflecting many of the questions raised both in Committee and on the floor, was updated at the time of introduction of S. 268, referred to in Commit tee discussions of S. 268, and requested by several offices of Senators and Congressmen. The review and discussion are inserted below. Review of the history of land use controls (1) The police power of the respective States is an inherent power of government to take such actions as are necessary and Constitution ally permissible to protect public health, safety and welfare. (2) The power to plan for and to regulate land use derives from the police powers of the individual States. (3) The Federal government has no police power to regulate lands within a State which are privately owned or owned by the State. Only the State has constitutional authority to control and regulate these lands. (4) The Federal government does have police power authority as well as express Constitutional authority to regulate the use of the public lands. (5) The States have exercised land use controls for hundred of years in one form or another. It was only in the early part of the 20th Century, however, that the States began to do so in a broad and gen eral way. This came with the adoption of model State laws which gen erally delegated zoning authority—a part of the State’s inherent police powers—to units of local government. The purpose of this delegation of police power authority to counties, cities, and other units of local government was to enable them to develop master plans, to zone for permissible uses, and to establish local planning bodies. (6) The development of ]ocal land use planning and zoning was in response to very real land use problems and conflicts which had costly, wasteful, and undesirable impacts upon the public: —dirty industrial activities would develop in the middle of resi dential communities; —unsightly and aesthetically offensive developments—slaughter houses, tanneries, etc.—would drive down the value of adjacent busi ness and residential property; —business activities thought by many to be undesirable if not closely regulated—taverns, movie theatres, dance halls, nightclubs— would be located near schools or churches or in quiet residential areas. Land use planning and the exercise of zoning authority were de signed to deal with these and other problems of a purely local nature. (7) Prior to the development of a statutory framework for land use planning and controls, the principal remedy available to injured parties was litigation in the courts based upon the inadequate common law doctrines of “nuisance” and “trespass.” (8) Today, as injured parties are again resorting to litigation over land use questions of increasing regional and national significance— power plant siting, location of heavy industry, projects such as the trans-Alaska pipeline, etc.—land use problems no longer appear en tirely local in scope and the planning concepts of the 1920’s appear in adequate to reflect the changing public values, and meet the increas ingly complex problems, of the 1970’s. 61 (9) Today, after a half a century of experience, many public officials and citizens feel that traditional zoning concepts and practices leave a great deal of room for improvement. The Act recognizes this, hut ‘‘does not require . . . radical or sweeping changes in the traditional rela tionship and responsibility of local government for land use manage ment.” 23 The Act does not propose Federal zoning as it is both uncon stitutional and unwise. Nor does it propose “statewide zoning” or “comprehensive State master planning” which would only result in costly, dilatory, duplicative and often inflexible regulation of the vast majority of land use problems which are of concern, interest and knowl edge only to the local units of government. (10) Instead, the Act encourages a continual “process of planning” wherein the right of local government to exercise land use powers is reasserted on all land use decisions and the State government is asked to join in partnership with local government on land use decisions of more than local concern, both governments acting in response to the decisions of State and local legislative bodies on substantive issues and with full citizen participation. (11) In the Act, the State governments are encouraged to assist local ities with guidelines for local planning or through cooperative plan ning only on those land use questions which are of more than local con cern, which go beyond the boundaries of only one locality and have an impact upon a number of local units of government, and which deter mine the shape of the future environment—decisions concerning high ways, airports, and mass transit systems; major power plants and transmission corriodors; areas to be preserved or closely regulated (en vironmental areas, flood plains) ; and areas for intense development (housing complexes or industrial parks). (12) The trend in most States today is to reverse the process begun in the 1920's of delegating all land use planning authority to units of local government. Increasingly States are selectively assuming an im portant role with respect to land use problems which are of more than local concern such as power plant siting, location of industrial parks, open space, surface mining, and the protection of park, beach, coastal or estuarine areas. Over 40 States now have laws regulating one or more critical areas or uses of more than local concern. The Act en courages this trend toward active State responsibility and the elevation of land use decisions of more than local concern to the level of govern ment—county, regional or State—most appropriately suited to decide the question in view of all legitimate values and interests. What the Act does and does not do The Act does not do any of the following: (1) Does not mandate, require, or allow “Federal planning” or “Fed eral zoning.” The zoning power is based on the State's police power and the Federal government does not have authority to zone State or privately owned lands (with the exception of the District of Columbia which is a special and unique case). (2) Does not permit a substantial increase in Federal authority over, or a wide-ranging Federal review of. State and local decisions concern ing the use of State and local lands. The Act is an “enabling act”

“ Senate Report No. 92-869 on S. 632. June 19. 1972; reprinted in Land Use Policy and Planning Assistance Act, Hearings Before the Committee on Interior and Insular Affairs, United States Senate, 1973, Part 1 (pp. 65, 86).

9 5 -7 3 4 0 - 73 - 5 6 2 which encourages the States to exercise “States’ rights” and develop State land use programs. Consistent with the enabling act concept, the Federal government is to focus its review on the procedures to develop, and the States’ ability to implement, the State land use programs and not on the substance of those programs. (3) Does not require State 'planning over all land within the State. The State land use program definitely is not required to be a statewide program which preempts the myriad of local decisions, but rather one focused on five categories of critical areas and uses of clearly more than local concern; areas of critical environmental concern (shorelines, flood plains, historic areas), key facilities (airports, major highway interchanges, power plants) iarge scale development (industrial parks), public facilities or utilities of regional benefit, and land sales or development projects. (4) Does not mandate State zoning, rather reasserts local zoning powers. The States are encouraged to develop their programs not by zoning or by producing a master plan, but by reasserting the whole range of local governments’ land use authority, and providing guide lines for the exercise of that authority. For example, a State would not, could not, make a basic zoning decision such as on which corner shall the gas station be. But it would have a duty to provide guidelines for local decisionmaking to insure, for example, that one community does not site a massive industrial park directly adjacent to another community’s recreational park or wildlife refuge. (5) Not only does not impinge upon or alter the traditional land use responsibilities of urban government, but also does not focus on urban lands. Unlike traditional urban and housing planning legislation this Act does not focus on only one category of land: the intensely devel oped land. The Act encourages a balanced and rational planning proc ess for all categories of land, including the so-called “opportunity areas”—those areas where irreversible ill-effects of incremental land use decisionmaking have not already become legion—i.e., the rural areas and areas on the urban periphery. (6) Does not tell a State how much or what specific land must be in cluded in the State land use program. The extent of and type of land use to be included in the critical areas and uses of more than local con cern is dependent upon how the State defines those five areas or uses, e.g., does a shoreline run in from the water’s edge 100 feet or a mile ? Does large scale development include a subdivision of 20 units or 200 ? (7) Does not alter any landowner's rights to seek judicial redress for 'what he regards as a “taking? The provisions of the Act do not change the body of law—Federal and State constitutions, statutes and judicial decisions—regarding the police powers and eminent domain. The right of a landowner to petition a court of competent jurisdiction for a determination of whether a particular exercise of State police power diminishing the use of land requires compensation is guaranteed in every State by the constitutional requirements of due process. The Act does do the following: (1) Does require States to exercise “State's rights" and State re sponsibility over thdse land use planning and policy decisions which are of “more than local concern" and which provide the framework upon which the shape of the future is determined. (2) Does require State governments to develop a. process of planning and a State land use program which is “balanced? ; that is, a program 63 which protects the environment and assures recreational opportunity* but at the same time provides for necessary social services and essential economic activities—for transportation facilities, reliable energy sys tems, housing, and residential development. (3) Does contain provisions which insure its compatibility with the HUD 701 planning program, the Clean Air and Water Pollution Control Acts, other Federal legislation, and the Coastal Zone Man agement law enacted last year. . (4) Does provide State government with funds—$800 million over eight years—to develop land use data inventories, to improve the size and competence of professional staffs, to establish appropriate State planning agencies, and to develop State land use programs. (5) Does provide the States with wide latitude in determining the method of implementing the Act—reassertion of all local land use powers with State administrative review under State guidelines such as in most State coastal zone, wetlands, food plain and power plant siting laws, or the rarer direct State planning, as in Hawaii or Ver mont or the unincorporated areas of Alaska. An amendment added to the measure last year and endorsed by the League of Cities clearly establishes an intent that “selection of methods of implementation shall be made so as to encourage the employment of land use controls by local governments.” However, the State need not concur with this expression of intent and can adopt any number of innovative imple mentation methods. (6) Does endorse the concept that local land use decisions should be made by local government. (7) Does encourage coordination of Federal planning and man agement of Federal lands and State and local planning and regu lation of non-Federal lands. (8) Does provide Indian tribes with funds—$10 million a year for eight years—to develop land, use programs for reservation and other tribal lands. (9) Does provide States with funds—$15 million a, year for eight years— to coordinate or conduct land use planning in interstate regions. (10) Does provide funds through grants or contracts—$2 million a year for eight years—to support research on and training in land use related subjects. (11) Does provide for a two year feasibility study of national land use policies by the Council on Environmental Quality, the Interagency Advisory Board on Land Use Policy, and State and, local government.

6. OUTLINE OF THE MAJOR PROVISIONS OF THE ACT Outlined below are the major provisions of the Land Use Policy and Planning Assistance Act as ordered reported by the Committee.

Title I—Findings, Policy, and Purpose The statement of findings includes an expression of national interest in a more efficient system of land use planning and decisionmaking and describes many of the inadequacies in the present system: emphasis on short-term economic factors, lack of understanding of land use impacts of decisions, paucity of essential data, costly delays in pro posed significant development, intra- and inter-governmental conflicts, 64 threats to proper use of Federal lands by inadequate management of adjacent non-Federal lands, and lack of adequate opportunity for property owners and the public to be informed about alternatives to proposed land use decisions and to participate in those decisions. The policies and purposes of S. 268 would be to: render Federal technical and financial assistance to the States to encourage them to more fully exercise their constitutional responsibilities for land use planning and management through the development and imple mentation of State land use programs; assist States to coord i- nate planning in interstate areas; assist Indian tribes to develop and implement land use programs for reservation and other tribal lands; establish the authority of the Secretary of the Interior to admin ister the programs, the Executive Office of the President to promul gate guidelines, and other Federal agencies to participate in inter agency reviews of State land use programs; develop policies con cerning the land use implications of Federal programs; facilitate coordination in planning of Federal lands and adjacent non-Federal lands; provide for meaningful participation of property owners and the public; provide for research on and training in land use planning and management; promote systematic methods for the exchange of land use data and information; and study the feasibility and possi ble substance of national land use policies which might be enacted by Congress.

Title II—Programs of Assistance to the States Title II would provide a grant-in-aid program to each State to assist it to do two principal tasks: (1) develop a statewide land use planning process within a maximum of three years; and (2) estab lish within a maximum of five years, and administer thereafter, a State land use program. (The States would be encouraged to complete their work and submit the processes and programs prior to the three and five year deadlines. As grant funds are not earmarked to assist Stales to work only on the processes or only on the programs, as grant allo cations are to be based partially on need, and as the greatest costs— the greatest financial needs—occur in implementing land use decisions, those States which complete their programs well before the five year mark should be able to obtain a larger share of the grant funds in order to implement those programs.) Statewide land use planning process Each State would be required to initiate and develop a statewide land use planning process within three fiscal years of enactment to insure that the State would possess a sound data base and the neces sary staff competence and expertise to develop and administer a State land use program. The major components of the process would be (1) the inventorying of State economic, environmental, and social re quirements and information and other data to serve as a base for in formed land use decisionmaking; (2) the establishment of authority in a single State agency to develop and administer the State land use program; (3) the development of adequate professional expertise; (4) the formulation of methods to identify those portions of, and activities within, the State (not on Federal lands) which will be sub ject to the State land use program; and (5) the establishment of a program to regulate land sales or development projects. 65

State land use 'program The State would then be required to develop a State land use pro gram within five fiscal years of enactment. The State program would encompass five categories of critical areas or uses which are of sig nificant interest to or would have an impact upon inhabitants of an area far beyond the local jurisdiction which possesses the zoning or other land use regulatory powers. These five categories of critical areas and uses are: (1) areas of critical environmental concern (shore lines, beaches, flood plains, historic areas, etc.) ; (2) key facilities (major airports, major highway interchanges and frontage access streets, major recreational lands and facilities, and facilities for the development, generation, and transmission of energy) ; (3) develop ment of public facilities or utilities of regional benefit; (4) large scale development; and (5) land sales or development projects. No other category of uses or areas would be required to be included in the pro gram and the State would have great flexibility in defining the five categories set out in the Act. The State need not, and indeed in most cases is not expected to, directly plan for the areas and uses within its land use program. Two alternative but not mutually exclusive methods of implementation would be offered by the Act: (1) direct State planning; or (2) State establishment of guidelines for, and administrative review of, local land use planning, zoning, and regulating. In the latter case, the State would reaffirm the authority of local governments to continue to exer cize all their land use powers and, through guidelines, criteria and an appeals process, would exercise guidance and oversight over the local efforts. In most of the recent innovative State land use legislation, this local government-State partnership approach has been chosen over the less flexible and less “local” approach of direct State planning. The Act contains specific language encouraging adoption of the part nership approach; but the “alternative but not mutually exclusive” provision of the Act ensures that each State would have great flexi bility to formulate its own innovative methods of implementation. Interstate planning Interstate coordination of land use planning and management is recognized as a significant problem. The Act would provide a grant-in- aid program to the States to assist them to coordinate, study, conduct, or implement land use planning and policies in interstate regions. The States could use existing interstate entities and procedures, or, subject to Congressional action, negotiate interstate compacts establishing new entities or procedures, for such purposes. The Advisory Commission on Intergovernmental Relations would be directed to conduct a review of the land use planning authority and performance of existing interstate agencies and to prepare recommendations to the Congress for improv ing structures and procedures for coordinating land use planning in interstate areas. Federal actions in the absence of State eligibility If a State were to be determined ineligible for grants in accordance with the Federal review procedures described below in the outline of title III, financial assistance under the Act would be terminated. Furthermore, where any major Federal action significantly affecting the use of non-Federal lands would be proposed after 5 years in an 66 ineligible State, a public hearing would be held on the impact of that proposed action on land use and the findings of the responsible Federal agency and the comments of the Secretary of the Interior and, where appropriate, the Secretary of Housing and Urban Development, would be made part of the statement required by section 102(2) (C) of the National Environmental Policy Act of 1969. This requirement would be subject to exception upon determination of the President. Scope of Federal review With a few exceptions, the Federal review of the statewide land use planning processes and State land use programs would not focus on the substance of the State land use programs. During the first five years, the Federal review would be concerned primarily with whether an adequate statewide planning process (staff, data base, planning agency, etc.) is being developed. The review of the State land use pro gram five fiscal years after enactment and thereafter would be largely limited to determining whether the State: (1) has the authority and ability, and is making good faith efforts, to implement the program; and (2) provides adequate “due process” procedural safeguards con cerning such items as dissemination of data, appeals, ancT participa tion of property owners, users of the land, the public, and local govern ments. Any review of the substance of the State land use program would be limited to a “good faith efforts to comply” standard with the burden of proof on the Federal reviewers. The only direct Federal review over substantive State policies would concern whether the State has omitted from its land use program any areas of critical environ mental concern of more than statewide significance. (The procedures for Federal review are contained in title III and discussed on page 68.) Note: Relation to housing, pollution, and coastal zone management laws and to other planning activities and programs As noted elsewhere in this report, this Act is viewed as “enabling” or “nuts and bolts” legislation designed to require the States to gain the authority and ability to develop their own land use policies and to implement those policies. It is not designed to dictate Federal policies to the States. It is expected however that certain critical land use activities or impacts requiring specific Federal policies (e.g. power plant siting, deepwater port facilities, surface mining) will be the subject of other Federal legislation. The Committee believes laws al ready embodying policies with land use implications or planning man dates—such as housing, pollution, and coastal zone management laws—will be strengthened by the increased land use authority re quired of the States in this Act. To insure such a strengthening, and to insure that a State does not “forum-hop” and use funds available under this Act to replace funds available under other Federal laws the requirements of which it wishes to avoid, Federal review would include three additional determinations: (1) The State land use pro gram must be coordinated with other planning activities and pro grams of the Federal government, regional entities, other States, State agencies, and local governments; (2) the program must be coordinated with the regulatory activities of all State agencies enforcing air, water, noise, or other pollution standards and must assure that no violations of any applicable air, water, noise or other pollution standard or im plementation plan occur in areas or uses within the program’s com pass; and (3) the State must be participating in the programs pro vided for in section 701 of the Housing Act of 1954, as amended, and 67 in the Coastal Zone Management Act of 1972. In addition, a formula is provided to insure that the grant program to the States under the Coastal Zone Management Act is funded. Finally the Secretary of Housing and Urban Development and the Administrator of the En vironmental Protection Agency are given additional authority, beyond the general interagency review authority provided to the heads of other Federal agencies, to review specific aspects of the State land use programs. (A discussion of Federal review procedures is found below in the outline of title III.) Title III—Administration of Land Use Policy Guidelines, rules, and regulations Guidelines to Federal agencies and the States would be formulated in the Executive Office of the President, not in any line agency. Rules and regulations to implement the guidelines and to provide for the daily administration of the act would be formulated by the Secretary of the Interior. The formulation process both for guidelines and for rules and regulations would involve the participation of heads of Federal agencies, State and local governments, and the public. Office of Land Use Policy Adm inistration The Act would establish in the Department of the Interior a new Office of Land Use Policy Administration which would be independ ent of any existing mission-oriented bureaus or agencies. The Office would administer the grant-in-aid programs; maintain studies of land resources and their use and of methods employed by State and local government to implement the requirements of the A ct; cooperate with the States in developing standard methods for collection, classification, and dissemination of data; and develop and maintain a Federal Land Use Information and Data Center to transmit land use data between Federal agencies and to the States, local governments and the public. Interagency Advisory Board on Land) Use Policy Also established would be an Interagency Advisory Board on Land- Use Policy representing appropriate Federal departments and agen cies. The duties of the Board would be to facilitate interagency com munication on land use impacts of Federal activities, render advice to the Secretary concerning his duties under the Act, assist the Secre tary and the heads of participating agencies in the review of statewide land use processes and State land use programs, make reports to the Secretary and to the heads of participating agencies on land use matters referred to it, and conduct studies of such subjects as the impacts of land use controls on tax revenues, the impacts of public activities and programs on land use patterns, and the problem of multiple and conflicting licensing requirements for development activities. Sitting on the Board would be representatives of Federal agencies conducting programs which have major land use impacts (representatives from: Departments of Agriculture; Commerce; Defense; Health, Education, and W elfare; Housing and Urban Devel opment; Treasury; Transportation; Atomic Energy Commission; Environmental Protection Agency; Council on Environmental Qual ity; Council of Economic Advisors; and Office of Management and Budget). The representatives would have full-time land use planning and policy duties in their respective agencies, including the principal 68 duty of assisting their agency heads in the review of statewide land use planning processes and State land use programs. Federal review 'procedures The statewide land use planning processes and State land use pro grams would be reviewed through an interagency process coordinated by the Secretary of the Interior. The heads of Federal agencies which have programs with significant land use impacts and are represented on the National Advisory Board on Land Use Policy would review the processes and programs and make recommendations to the Secretary for his consideration. The Secretary of the Interior, the Secretary of Housing and Urban Development, and the Administrator of the En vironmental Protection Agency would share the general review au thority possessed by the other agency heads, but also have additional, specific review responsibilities. The Secretary of Housing and Urban Development would be directed to study the large-scale development and key facilities components of the State land use programs and certify that the various States are participating in the pro grams established under section 701 of the Housing Act of 1954. The Administrator of the Environmental Protection Agency would be re quired to determine whether the State land use programs are com patible with the Federal Water Pollution Control Act, the Clean Air Act, and other pollution abatement laws under his jurisdiction and whether “those portions of the State land use program which will effect any change in land use within the next annual review period are in compliance with the standards, criteria, emission or effluent limita tions, monitoring requirements, or implementation plans required by such laws.” The Secretary of the Interior could not determine State grant eligibility unless the Secretary of HUD and the Administrator of EPA were satisfied. In addition to his administrative duties in the interagency review process and his responsibility to conduct a general review of each State land use program to determine whether it meets the requirements of the Act, the Secretary of the Interior would also have the duty to determine that the State has not omitted from its program any areas of critical environmental concern of more than statewide significance. Should the Secretary of the Interior, as a result of the interagency review, determine a State ineligible for grants under the Act, an appeals process would be provided for the State. An ad hoc hearing board would be created in the Executive Office of the President. The board would be composed of an im partial Federal official appointed by the President, a Governor of a neutral State selected by the National Governors’ Conference, and a knowledgeable, impartial private citi zen selected by the other two appointees, or, if they cannot agree, by the National Center for Dispute Settlement. The board wTould re port in writing whether it concurs with the Secretary’s determination of ineligibility. Only upon concurrence of the hearing board could the Secretary’s determination of ineligibility stand. Study of national land use policies The Act would provide for a three year study of the feasibility and possible substance of national land use policies. The Council on En vironmental Quality would conduct the basic study, State and local governments would prepare separate comments, public hearings would 69

be held, and the Interagency Advisory Board would review the report and the hearings and “recommend to Congress such legislation as it may deem appropriate or necessary to establish national land use policies.” Twelve national policies are included in the Act and would be addressed by the several parties involved. The twelve policies are: (1) insure that all demands upon the land—economic, social, and environ mental—are fully considered in land use planning ; (2) give preference to long-term interests of the people of the State and Nation and insure public participation as the best means to ascertain such interests; (3) insure the protection of the quality of the environment and provide access to a wide range of environmental amenities for all persons ; (4) encourage the preservation of a diversity of environments, including man- made working and living environments, and natural environments with diverse forms of wildlife and flora : (5) protect open space for public use or appreciation and as a means of shap ing and guiding urban growth ; (6) give preference to development which is most consistent with control of air water, noise, and other pollution and prevention of damage to the natural environment: (7) insure that development is consistent with the provision of urban services, including education; water, sewer, and solid waste facilities; transportation; and police and fire protection ; (8) insure the timely siting of development, including key facilities as defined in section 601, necessary to meet national or regional social or economic requirements; (9) encourage the conservation and wise use of energy and other natural resources and insure the supply of such resources to meet demonstrable demand based upon such conservation and use ; (10) preserve the sustained yield quality of renewable resource lands as de fined in section 601; (11) preserve and protect fragile and historic lands as defined in section 601; and (12) protect life and property in natural hazard lands as defined in section 601. Research and training grcmts The Secretary of the Interior would be authorized to make grants or enter into contracts in support of research on and training in land use related subjects.

Title IV—Federal-State Coordination of The Planning and Manage ment of Federal Lands and Adjacent Non-Federal Lands This title addresses a particularly divisive, difficult, and chronic conflict over land use: use of Federal lands versus use of adjacent non- Federal lands. In the Ninety-second Congress, the Committee con sidered the question of whether to attach a public lands title to the national land use policy legislation (then S. 632). However, upon the understanding that the public land policy proposals then pending before the Committee would receive full consideration, it was the con sensus of the Committee that such a title should not be added to the legislation. It was the opinion of the Committee that the public land policy proposals were sufficiently complex and far-reaching to warrant separate consideration. (The National Resource Lands Management Act was subsequently reported by the Committee, but did not reach the floor. Both Senator Jackson’s and the Administration’s public lands policy proposals are again pending before the Committee.) Furthermore, the Committee felt that to attach a public lands title to the legislation would have had the effect of encouraging the improvement of two very different planning systems (the Federal 70 system for Federal lands and the State and local system for non-Federal lands) without assuring resolution of the conflicts between the two systems. This is not to say, however, that the Committee was of the opinion that development of mechanisms for coordination of the two systems should await the separate considera tion of the public land policy proposals. Rather, title IV was specifi cally added to the. legislation by the Committee last year to provide such mechanisms to insure better coordination and early resolution of conflicts between planning and management of Federal lands and plan ning and regulation of adjacent non-Federal lands. Only minor changes in the title were made by the Committee this year. The title would have two requirements for consistency of uses be tween Federal lands and adjacent non-Federal lands. First, the Fed eral land management agencies would be required to report the consistency (or where inconsistent the “paramount national policies, programs, and interest” which justify the inconsistency) of their pro grams, policies, rules, and regulations for the Federal lands with State land use programs. Second, the States, through their State land use programs, would be required to provide and apply methods for in suring that Federal lands, particularly national parks, game and wildlife refuges, and wilderness areas, are not degraded by inconsistent land use patterns (such as unsightly strip developments or highly polluting industrial facilities) in the same immediate geographical region. Furthermore, the Secretary would be directed to establish, on his own determination or upon the request of a Governor, Ad Hoc Fed eral-State Joint Committees (with a maximum life span of two two- year terms), composed of representatives of affected Federal agencies, State agencies, local governments, property owners, and user groups (including recreation and conservation interests), to investigate, with public hearings, and make recommendations to the Secretary concern ing, general problems with or specific conflicts over planning and management of Federal lands and of non-Federal lands. In addition, these committees would advise the Secretary, as he reviews the State land use programs, of opportunities for enhancing coordination between each State program and Federal lands planning and management. The Secretary would be directed to resolve particular conflicts in volving Federal lands within his authority, to work with other Fed eral agencies to arrive at solutions for conflicts involving Federal lands within their jurisdictions, and to report biennially to Congress on: (1) the progress of, and his recommendations to improve, the co ordination of planning for and management of Federal lands and ad jacent non-Federal lands, and (2) at the request of a Governor of an affected State, any unresolved conflict, together with his recommenda tions and that of the Governor for its resolution.

Title V—Land Use Programs For Reservation and Other Tribal Lands Under this title the Secretary would be authorized to make annual grants to Indian tribes to assist them to develop and administer land use programs for reservation and other tribal lands. With due regard for the limited size of, and lack of knowledge about, these lands, a set of requirements, similar to but less stringent than the Act’s require 71 ments concerning statewide land use planning processes and State land use programs, would be applied to the planning efforts of the Indian tribes. Responsibility to provide for consistent uses on adjacent lands would be shared by the Indian tribes under their land use programs, the States under their State land use programs, and the Federal Gov ernment through the planning and management of Federal lands. Con sistency of uses would be enforced through suits by any of the three parties in the district court of the United States in the jurisdiction of which the lands in question are located. Title VI—General Funding and Other Incentives The basic grant program to the States would provide $100 million annually for eight years. For the first five years, funds would be dis bursed to the States at 90% of the cost of developing the State land use programs. For the next three years, the States would receive funds for 66%% of the cost of implementing and administering the pro grams. The grant program for coordination of planning in interstate regions would provide $15 million annually for eight years to the States at 90% of cost. The grants to the States would be allocated on the basis of regulations of the Secretary which would take into account the amount and nature of each State’s land resource base, population, pressures resulting from growth, land ownership patterns, extent of areas of critical environmental concern, financial need, and other relevant factors. Indian tribes would receive $10 million a year for eight years at not more than 100% of the cost to develop and admin ister land use programs for reservation and other tribal lands. Another $2 million per year for eight years would be made available for grants or contracts to assist research on or training in land use related sub jects. Finally, $10 million per year over a five }rear period would be provided for administration of the Act. An important, additional incentive for the States would be the requirement that Federal projects and activities significantly affecting land use would have to be consistent with the State land use programs developed pursuant to the Act and approved in the Federal review process. This requirement could be waived in cases of overriding national interest, as determined by the President. Reporting requirements, duration of the programs, etc. The Secretary would be required to report biennially to the Pres ident and the Congress on land resources, uses of land, and current and emerging problems of land use. In addition, after the end of the fourth fiscal year after enactment, the Secretary would be directed to review the programs established bv the Act and submit to Congress his analy sis and recommendations for amendments to the Act. (As noted above, the appropriation authorizations for administration of the Act would terminate after five full fiscal years. The latter reporting requirement would precede this termination. The termination of grant-in-aid funds would occur only after eight full fiscal years in order to preserve the financial incentive to the States to implement the State land use pro grams prepared by the end of the fifth full fiscal year. It is contem plated that the removal of the authorization of administration funds after five fiscal years will trigger a careful analysis of the operation of this Act and provide an opportunity for any appropriate amend 72 ments or revisions. The eight year termination date for authorization of grant funds would provide a second opportunity for review of the program after three years experience of implementing the State land use programs.) . • . . This title also includes the savings clause and definitions of areas of critical environmental concern”, “key facilities”, “large scale de velopment” “development of public facilities or utilities of regional benefit”, “land sales or development projects”, “reservation and other tribal lands”, and other terms. In addition, it contains provisions for detail of personnel, technical assistance, hearings, and financial rec ords. II. BACKGROUND

1. GENERAL In his famous book A Sand County Almanac, noted conservationist Aldo Leopold sounded a warning that this nation’s land base could not long “survive the impact of mechanized man” should the hegemony of the “Abrahamic concept of land” as a “commodity” 24 be main tained. The cogency of this observation, written a quarter century ago, has not diminished despite its repetitious appearance in the environ mental literature of recent years. Reflected throughout this nation’s political, economic, and social history has heen the traditional concept that land is a commodity to be bought and sold, used and depleted by its owner as he sees fit, with a minimum of governmental involvement or guidance. Rather than questioning and testing this concept in the face of rapidly changing land use patterns, government and citizen alike simply altered the concept to fit a situation of limited supply and called into play governmental controls to insure the concept’s survival. These controls—zoning ordinances, building codes, etc.—nearly always took the form of “thou shalt not” commandments which were often severely restrictive. And yet, despite this restrictiveness, they were largely devoid of sound land use planning or management policies. The continuing perception of land as a scarce commodity, which these largely negative controls perpetuate, was described most succintly, albeit unwittingly, by Will Rogers when he admonished us to “Buy land, they ain’t making any more of it.” The utility of this traditional concept of land must be questioned in light of the severe pressures placed upon the land by continued popu lation growth; increasing urban and industrial development; expand ing transportation systems; the fragmentation of governmental enti ties exercising land use controls; and the increased size, scale and im pact of private actions. A growing number of public officials and p ri vate citizens, be they socially, environmentally, or economically minded, upon feeling and perceiving the impacts of these pressures, are speaking of a “national land use crisis” which threatens orderly economic growth and environmental quality. To meet the emerging crisis, this traditional concept of land and the land use controls which reflect it must be revised and made respon sive to changing values and needs, modem technology, increasing demands for the use of land, and the desire of the American people to

24 Aldo Leopold, A Sand County Almanac, Oxford University Press, New York, New York, 1949 (p. VIII). 73 be involved in decisions which will shape this Nation’s future. Land must be considered as more than a commodity to be bought, sold, and consumed; rather it should be viewed as a finite resource to be hus banded. This process of change in the prevailing land use concept and in traditional land use policies, institutions, and procedures can and should be stimulated by Federal legislation which would provide fi nancial and technical encouragement to enable States to exercise “States’ rights” in land use decisionmaking. The Committee believes the “Land Use Policy and Planning Assist ance Act” would meet the challenge for Federal “enabling” legislation. I t would encourage the employment of land use controls to implement sound land use planning and management policies. The States would be encouraged to exercise “States’ rights” and assumes the responsibil ity of developing State planning processes and land use programs and lending guidance to local land use planning and management efforts. The Federal Government would provide the necessary financial and technical assistance to the States and would, at the same time, “put its own house in order” by developing mechanisms for intragovemmental and intergovernmental coordination of land use policies, pro grams, and activities which have significant land use impacts.

2. A BRIEF HISTORY AND CRITIQUE OF LAND USE CONTROLS IN THE UNITED STATES The traditional concept of land as a commodity can be traced to the earliest days of our Nation’s history. The English companies which colonized America were in large part real estate companies organized to speculate on the vast New World lands. England’s attempts to continue to regulate colonial land use and ownership by means of the feudal system with its oath and tribute requirements and with the Crown itself serving as a universal “landlord”—a manner of govern ance contrary to the commodity concept—contributed to the revolu tionary opposition. The American claim to ownership of the New World land and to the right of unrestricted land use was asserted in the Declaration of Independence and the Treaty of Paris of 1783. When the Constitution was ratified the last vestiges of the feudal or “socage” system were eliminated, replaced by a system of “allodial” tenure in fee simple vesting in the property owner all the requisite rights to treat land as a commodity, fully his and freely marketable. During the century following independence, this concept of land was reflected not only in the actions of the many individuals who surged West to settle upon virgin land, but also in Federal policies to ward, and laws relating to, that land. Much of the public domain passed into private hands and our public land laws were written to meet the national demand for private ownership, requirements for revenue, the need for early settlement of the new territory, and the desire to foster economic growth and commerce. Governmental con trols over land use were minimal, restricted for the most part to the confines of the common law doctrines of nuisance and trespass. Last year, we celebrated the centennial of the founding of the first unit of our national park system, the Yellowstone National Park; an event which presaged the end of an era of abundant land for all 74 people and all uses. By 1900, the rapid process of land disposal had succeeded in moving over half of the original public domain into state or private ownership. Land use controls were initiated after the turn of the century against this backdrop of the steadily receding western frontiers. Amer ica’s land base first appeared finite to the growing body of citizens who dwelled in the Nation’s burgeoning cities. The threat to health and safety and to the value of the commodity, the price of land, which the crush of city life evoked could not be countered by individual action or judicial application of the doctrines of nuisance or trespass. Even the legislative invocations of the nuisance doctrine—begun in 1692 with the passage of a law in the Massachusetts Bay Colony, applicable only to the Colony’s urban areas, which forebad “nuisance” industries from operating in any but certain districts designated by town offi cials—proved to be insufficient to meet increasing and increasingly severe land use problems. Accordingly, the urban citizenry turned to government and the police power to safeguard the larger public inter est in individual land use decisions. Under the rubric of protection of the public health, safety, and welfare, cities began to place various restrictions on urban land use. Height restrictions were first placed on buildings in Washington, D.C. in 1889, and, in 1909, Boston’s height regulations were upheld by the U.S. Supreme Court. Numerous cities enacted fire district ordi nances prohibiting the building of wooden structures in designated areas. In 1867, New York enacted a law restricting tenement lot coverage and by 1908, New Jersey, Pennsylvania, and Connecticut and the cities of Chicago, Boston, and Cleveland had adopted comparable legislation. Then, in 1916, as a result of efforts of Fifth Avenue mer chants to protect their fashionable shopping area from the expanding garment district, New York City adopted a zoning resolution which set the basic pattern for zoning ordinances to the present day. In 1926, the constitutionality of such zoning ordinances was upheld by the Su preme Court in the landmark case of Village of Euclid v. Am bler Realty Co.25 This new and stronger manifestation of the police power, the zoning authority, could not be exercised by the cities unless their State gov ernments authorized them to do so. As the power to zone emanates from the constitutional authority of the State, the State had to grant it directly to classes of municipal government or extend it to them through general State enabling acts. In 1924, under the leadership of then-Secretary of Commerce Herbert Hoover, the Department of Commerce prepared and published a model Standard State Zoning Enabling Act (SZEA), which, when adopted by a State, delegated the State’s authority to zone land to its municipalities. By 1925, nineteen States had enacted statutes substantially similar to the SZEA. During the early Thirties, localities in most of the re maining States gained authority to enact zoning ordinances. At a somewhat slower pace, the States also adopted in one form or another, a second model statute issued by the Department of Commerce: the Standard City Planning Enabling Act (SPEA ). Among other things, this measure added subdivision regulations to the various land use

25 272 U.S. 365 (1926). 75

controls which localities could employ and placed responsibility for adopting “master plans” in local planning commissions. The varied and complex land use controls in use today by some 10,000 local governments are, to a large extent, merely refinements upon the land use controls developed and validated in the first third of this century. These controls enabled local governments for the first time to place significant restrictions on private land use to protect the larger public interest. Yet, in keeping with the traditional concept of land, for the most part the larger public interest was and is interpreted to be protection of property values and the economic value of land. The dependency of most cities upon property taxes, which in turn are dependent on property values, serves to reinforce this prevailing pur pose of land use controls.26 Protecting property values called for a governmental role which was essentially negative. Similar to the nuisance doctrine, land use controls were intended largely to prohibit inappropriate uses of the land and not to guide appropriate land use. These controls were, at best, only tenuously related to land use “planning.” Few States con sidered it important for the broader public interest whether any local government actually engaged in planning; whether the controls and the development they controlled were in accordance with a plan: whether such a plan, where it existed, promoted the public interest of the local community; and even whether an existing plan of local government adversely affected the public interest of larger areas such as the region or the State as a whole. In the absence of State concern or guidance, the cities (and, for that matter, the courts) came to treat the decidedly negative local land use regulations as though they embodied whatever planning was con sidered necessary. Thus, rather than guiding planned development, land use controls have lent protection to virtually unplanned develop ment. As a result, whether land use decisions have been left entirely to the market place or to local regulations absent a planning base, in efficient, unsightly, and often costly land use patterns have developed. For example, open spaces valuable for recreation, greenbelts or just a break in the carpet of urbanization have succumbed to private develop ment catering to the one-acre recreational homesite dreams of our na tion’s city-dwellers. Land uniquely suitable for certain uses, such as major airports, has been preempted for other uses which possess far less demanding criteria. And unwanted but essential projects, such as powerplants, have met with wasteful delays and been sited finally in locations of least public and political resistance, but often without con sideration for sound developmental and environmental needs. Where planning has been conducted it has too often been mission- oriented or single purpose. Planning of this nature seldom relates specific missions or purposes to a balanced range of national goals. Planning for particular kinds of activities leaves the planner and the citizen with narrow “either-or” decisions, often on a case-by-case basis. Because the planning concerns only one kind of activity only the need for facilities to support that activity is examined. In short,

29 A critique and the texts of the SZEA and SPEA are included in National Land Use Policy Legislation, 98d Congress: An Analysis of Legislative Proposals and State Laws, Committee on Interior and Insular Affairs, United States Senate,' April 1973 (pp. 115, 480, and 483.) 76 consideration of long-term alternative uses of the land is seldom dated and even less often achieved in single-puipose planning. The highway planning of the recent past provides an excellent example of the failure of single purpose planning. Planners have routed highways through parks where land is invaluable for recreation but cheap for roadbuilding; carved up low income districts with commuter access roads—thus effectively destroying any sense of community; poured additional highway lanes into cities unable to cope with more auto mobile traffic and air pollution; and sited major interchanges without regard to the unplanned and often unanticipated growth centers which they generate. Too frequently, even the best of recent land use planning—planning which considers a broad range of values and requirements—has been for missions or purposes writ large: the pursuit of economic growth (planning for high tax ratables such as industrial parks on ecologi cally important and increasingly scarce wetlands and undeveloped coastlines or on land suitable for housing), of environmental protec tion (the planning for maximum open space and exporting pressures for housing, commercial districts, and schools into the next jurisdic tion; planning to avert air and water pollution by pushing highly polluting industries onto undeveloped shorelines and other land valu able for recreation purposes), or of social betterment (planning for housing developments and subdivisions and massive use of recreation areas without carefully considering, and seeking ways of diminishing, the impact upon the environment). Furthermore, because land use controls have seldom been linked to a planning base, plans too frequently are divorced from any institu tional mechanisms for their implementation. Too many resplendently color-coded plans, single purpose or not, have been left to collect dust on administrators’ shelves. Without implementation—without ade quate institutions, methods, and procedures—plans, planning tech niques, and the planners themselves are not tested by experience. The much greater pressure to which urban land areas are subject, the almost total delegation of State authority over land use to cities, and the frequent failure of cities to plan, and where they have planned, their inability to plan on a regional basis, have insured a distinctly urban bias and coverage to land use controls. Traditionally, those most concerned with land use controls have been urban residents, municipal officials, and “city planners.” Yet, as the Chairman of this Committee has stated: [Land use problems do] not pause at the periphery of the ever-widening circle of land dedicated to or held for urban use. Urban dwellers today place demands upon rural land miles and sometimes several states away from their homes. Los Angeles’ power needs have brought air-polluting power plants and land-polluting strip mining to the Navajo and Hopi lands of Black Mesa in Arizona and New Mexico. Waste disposal problems have forced consideration of such solutions as the shipment of refuse hundreds of miles beyond our cities’ boundaries. And along our shores and in our moun tains escape from the cities has become the unattainable goal 77 of those who in seeking second homesites create second suburbias.27 Furthermore, at the interface between rural and urban land, on the so-called “urban fringe”, exists what has been termed “the worst of our land use problems: the urban sprawl, the ‘slurbs’, which reduce the quality of our physical and social environments. Rather than accommodating urban densities, urban sprawl spreads urban popula tions across vast areas of land—idling and ending the productive use of far too much of it.” 28 Since, with each passing decade, new urban growth will cover an area greater than the entire state of New Jersey, this interface will continue to lengthen, absorbing more unplanned, rural, and open land. Proper land use decisionmaking along this inter face is impossible unless it is conducted on a planning base which, absent an urban bias, truly relates and coordinates rural and urban land uses. This urban bias is also detrimental to efforts to achieve wise and efficient land use patterns in predominately rural areas—areas where the opportunity to achieve a better design for tomorrow still remains. Finally, this urban focus and the almost full delegation of land use controls which contribute to it have also encouraged fragmentation of land use authority: The Douglas Commission estimated that, in 1969, some 10,000 governments were exercising land use controls.29 This Committee subscribes to the proposition of local control over matters of local concern. However, the deleterious effects upon proper land management produced by such a balkanization and proliferation of governmental entities practicing land use controls are both numerous and profound where there is no on-going effort at the State and regional levels to relate and coordinate local land use plans and policies. First, the constant wasteful competition to import certain land uses (largely economic) to build a tax base and to export unwanted land uses (often environmental or social) to avoid a drain on revenues is magnified several times over as the number of competitors increases. Second, this situation of numerous and often overlapping jurisdic tions having land use powers leads to a practice particularly destruc tive of land use planning: “forum-hopping”. Both developmentalists and environmentalists indulge in the sport of racing from one govern mental forum to another: the developmentalists dangling the promise of high tax ratables before communities so revenue-poor they are compelled to reject even the effort of quantifying and balancing non-economic values; and the environmentalists invoking the threat of endless administrative and judicial delays before decisionmakers who can offer neither a single procedure to which to require adherence nor a single decisionmaking forum in which to compel participation. But, third and perhaps more serious, is the conflict with democratic principles produced by this multi-jurisdictional assumption of land

27 National Land Use Policy: Background Papers on Past and Pending Legislation and the Roles of the Executive Branch, Congress, and the States in Land Use Policy and P la n n in g (hereinafter referred to as “National Land Use Policy Background Papers”), Committee on Interior and Insular Affairs, U.S. Senate, April 1972 (p. 5). 2S Ibid.. p. 4. 2n National Commission on Urban Problems, Building the American City: Report to the Congress and the President, December 1968 (p. 208).

9 5 -7 3 4 0 - 73-6 78 use powers. The intensifying pressures upon our land base and the increasing size, scale and impact of decisions affecting land use have created a situation in which local, public and private decisionmakers are making land use decisions for far larger constituencies than they in fact represent. A citizen may significantly suffer from or enjoy the impacts of decisions to site an airport, grant a subdivision permit, widen a highway, fill wetlands, purchase park land, etc., made not by his community but by the municipality located downstream, down wind, across the road, or up the street from him. Yet, neither he nor the public officials for whom he has voted may be able to effectively participate in these decisions. Again, absent institutions and proce dures which provide a measure of overview and effective coordination, this problem is multiplied with each additional division of land use authority in the same geographical area.

3. THE IMPACT OF FEDERAL AND FEDERALLY ASSISTED ACTIVITIES The land use problems currently experienced by many units of local government are aggravated by the impact of Federal activities and the Tack of any institutional means to control and regulate that impact. As noted in the First Annual Report of the Council on Environmental Quality, in addition to the obvious effects upon non-Federal lands of decisions on the management and use of Federal lands, there is “a myriad of Federal loans, grants, projects, and other programs enacted for specific public purposes [which] has direct impact on the use of land. The most significant Federal activities include the highway, air port, and mass transit programs, the sewer and water grant programs, home mortgage assistance, open space funding, agricultural subsidies, planning assistance, the location of major Federal facilities, and water resource projects.” 30 Former Presidential counselor, Daniel Patrick Moynihan rendered a succinct rebuttal to those who claim that the the activities of the Federal government do not influence land use patterns when he stated: “We already have a national growth policy. It’s called the interstate highway program.” 31 Federal grant-in-aid programs which call for a planning component and Federal procedures which license activities with significant land use impacts serve to reinforce, if not force, local single purpose plan ning. Federal programs to assist State or local planning projects seldom bear implementation requirements; and, in the few cases where such requirements do exist, adherence is only infrequently re quired. Balkanization of land use controls is encouraged whenever Federal funds for planning are channelled past State and regional governments and down to the smaller jurisdictions empowered to conduct land use planning. Often, when regional planning is mandated

30 Environmental Quality, the First Annual Report of the Council on Environmental Quality, August 1970 (p. 191). A table on, and description of 112 Federal land-oriented programs, grouped according to function under two major headings—natural resources and physical development, is found in National Land Use Policy Background Papers, Committee on Interior and Insular Affairs, U.S. Senate, April 1972 (pp. 79-94), and in National Land Use Policy Legislation, 93d Congress: An Analysis of Legislative Proposals and State Laws, Committee on Interior and Insular Affairs, U.S. Senate, April 1973 (pp. 99-114). A shorter listing of Federal programs having land use impacts is contained in Environmental Quality, the First Annual Report of the Council on Environmental Quality, August 1970 (pp. 193-197). 31 Business Week, Aug. 26, 1972. 79 in Federal programs, the “region”is solely urban in character and compass. And, as Senator Jackson noted in his statement introducing S. 3354 (S. 268’s precursor) in the 91st Congress, the problem of participation of the public and their elected officials also abides in Federal and fed erally assisted activities: There are many land use decisions made by the Federal Government which require greater participation by State and local government. Often the Federal Government is seeking the use of a local community’s most valuable assets: its land and environment. We must guarantee not only that the use of these assets is necessary, but that it is made in accord with the highest and best standards of land use and environmental management.32 Two further weaknesses not discussed previously, which exist in planning processes and land use programs at all levels of government, are highlighted in Federal activities by virtue of the magnitude of their impact. These are: (1) the failure to coordinate programs which have a land use impact (and the concomitant failure to recognize the potential land use impacts of such programs), and (2) the conduct of land use planning and decisionmaking without, or on an inadequate base of, data and information. Concerning the former, the Committee Chairman noted: At the Federal level we are already beginning to see and to reap the results of our past failure to . . . [properly plan and manage the uses of our land]. Increasingly we are finding instances where Federal funds which have been expended to preserve a part of our natural heritage or to create new recreational opportunities are coming into serious and, often, totally unnecessary conflicts with other federally funded programs such as highway and airport construction, com munications, national defense facilities, and water resource development. I am not too concerned that there is occasional conflict be tween these different Federal programs. The wide range of goals and objectives which the National Government seeks to achieve will, of necessity, involve some competition and con flict over priorities, over funding, and over the use of spe cific land resources. Our political system was designed to resolve conflicts of this nature. I am confident that it is capa ble of doing so in an intelligent manner. I am, however, very concerned that many of these conflicts which have centered around incompatible uses of the same land resource have been totally unanticipated and unin tended. These conflicts have simply been the result of poor planning procedures. They have not placed at issue impor tant questions of national priorities, goals, and objectives. These conflicts have resulted from a lack of coordination, a failure to relate national programs to local aspirations, and

32 Congressional Record, .Tan. 29, 1970 (p. S838). 80

an institutional inability to factor in the full range of na tional and local values as a part of the planning process for specific Federal projects. At the present time a whole host of agencies are deeply in volved in land use planning. . . . Most of these plans are necessary and desirable. The problem is this, however: To date, no one in the Federal Government has ever put these plans together to see if they are consistent, to see if they make sense, and to see if they are compatible with local goals and aspirations. As a result, there are needless and costly conflicts between agencies and departments of the Federal Government, be tween State and Federal Government, and between State and local government.33 Of course, the most flagrant example of lack of coordination between levels of government, and one of the most difficult to correct, involves the planning and management of Federal lands. In the Western states where lands owned or held in trust by the Federal Government consti tute anywhere from 29% to 95% of each State’s land mass,34 planning for or regulating non-Federal land under present law is made very difficulty by the inability of local and State governments to obtain sufficient knowledge of, much less an input in, Federal land manage ment decisions. (This problem is exacerbated by the checkerboard pattern of Federal holdings which still exists in many areas.) By the same token, the quality of Federal lands, particularly national parks, wildlife refuges, and the wilderness areas, can be and is often threat ened by unplanned or poorly planned land use patterns on the periph ery of those lands—patterns which could be avoided with better intergovernmental cooperation and coordination. The problem of coor dination of planning and management of Federal lands and of non- Federal lands was emphasized in One Third of the Nation's Land, the report of the Public Land Law Review Commission.35 The failure to coordinate either on an intragovernmental or inter governmental l/asis is usually unintentional. The decisionmakers are simply unaware of the land use impacts of their decisions. The Chair man has cited a subject of hearings of this Committee as an example of this lack of awareness at the Federal level: [W]e have conducted too many of our programs and activi ties in inexcusable ignorance of their often contradictory and deleterious effects. Illustrative of this was the Everglades Jet- port controversy. In the Senate Interior Committee hearings in June 1969, three prestigious Federal agencies were . . . [found to be] undertaking activities—flood control, airport development, and national park and recreation programs— in compliance with their mission-oriented guidelines but with

33 Congressional Record, Jan. 29, 1970 (pp. S836-S837). “ Alaska, 95.3% ; Arizona, 44.6% ; California, 44.3% ; Colorado, 36.3% ; Idaho, 63.9% ; Montana, 29.6% ; Nevada. 86.4% ; New Mexico, 33.9% ; Oregon, 52.2% ; Utah, 66.5% ; Washington, 29.4% ; and Wyoming, 48.2%. From One Third of the Nation’s Land, Public Land Law Review Commission, June 1970 (p. 327). 38 One Third of the Nation’s Land: A Report to the President and to the Congress. The Public Land Law Review Commission, June 1970 (throughout, but particularly pp. 57-65). 81

little appreciation of the contradictory, self-defeating, and environmentally destructive land use impacts of those activities.36 The second problem highlighted by Federal activities is the failure to provide an adequate data base for land use planning or for decisions concerning activities which have significant land use impacts. Again, a Committee experience exemplifies the problem: Five years ago, Congress wrestled with a final decision on the issue of whether dams would be constructed in the vicinity of the Grand Canyon. In 1971, this Committee held a series of hearings and issued a report on the Four Corners power question, considered by many to present an equal or greater threat to the environment.37 The issues involved were much the same—growing West Coast energy needs and environmental pro tection—but in neither case, when the first decisions were made, were the issues properly addressed with data sufficient to identify the vari ous options and their potential environmental, economic, and social consequences. 4. THE EMERGING ROLE OF THE STATES As the limitations of locally-administered, traditional land use con trols have become increasingly evident, a number of States have taken a leadership role and begun to reassume a portion of the land use au thority previously delegated to local municipalities over half a cen tury ago. Many of the early State efforts involved applying land use planning and control authority solely to areas beyond the urban bound aries, thus filling a vacuum where no controls existed and avoiding direct conflict with localities which had already applied land use con trols. Although the rural conservation districts established in the 1940’s and 50's enjoyed a mild form of planning and regulatory authority, even this limited power was rarely utilized. In 1961, the Hawaii legislature enacted legislation requiring a com prehensive statewide zoning plan. Under the zoning program, the State was divided into four classifications: agricultural, conservation, rural, and urban. While policy for development was to be established at the State level, State and local cooperation was called for in the ad ministration of the zoning program. In the last decade, other States have taken an innovative, leadership role in what the authors of a report commissioned by the Council on Environmental Quality have termed “the quiet revolution in land use control.” 38 Seven other States have instituted State level land use con trols of a relatively comprehensive nature: Colorado, Vermont, Maine, Florida, Arizona, Nevada, and Oregon. Some nineteen States have adopted significant State level controls over certain critical areas of more than local significance, such as

38 National Land Use Policy Background Papers, Committee on Interior and Insular Affairs, U.S. Senate, April 1972 (p. 7). 37 Problems of Electrical Power Production in the Southtcest. Hearings before the Com mittee on interior and Insular Affairs, United States Senate, May-November 1971. Parts 1-7 ; Problems of Electrical Power Production in the Southwest, Report of the Committee on Interior and Insular Affairs, United States Senate, pursuant to S. Res. 45, a National Fuels nnd Energy Policy Study, 1972. 38 Bosselman, Fred and Callies, David, The Quiet Revolution in Land Use Control, the Council on Environmental Quality, December 1971- 82 coastal zones, shorelines, wetlands, flood plains, and unorganized areas.” 39 . . A growing number of States are also exercising State authority over critical uses of more than local significance. At least eleven States have enacted laws regulating siting of power plants and transmission lines.40 In addition, there are the development authorities of New York, Tennessee, Kentucky, Maryland, and Rhode Island; the State subdivision, strip mining,41 scenic easement, environmental quality, waste disposal, and mobile homes laws; laws establishing procedures to overcome exclusionary zoning and laws providing tax benefits for the purpose of preserving open space. Finally, in addition to assuming land use controls for themselves, several States have been active in the creation of a small, but growing, number of interstate and intrastate regional entities which possess significant, land use planning authority.42 The fact that at least eighteen States either have pending before their State legislatures State land use planning measures or are ac tively engaged in studies aimed at improving State land use planning and control mechanisms is evidence that the movement toward a new State role in land use planning and management is gaining momentum.43 44 Thus, a majority of the States have already adopted the position that a State must reassume a sufficient portion of the police powers delegated to the localities to assure wise land use decisionmaking in areas and for uses of more than local significance. With the notable exceptions of Hawaii and Vermont, in most cases where legislation has been enacted, the States have not adopted the responsibility to conduct comprehensive land use planning. Rather, in the realization that such a step would be costly and duplicative of local efforts, the States have reaffirmed the prerogative of localities to plan, zone, and otherwise regulate land, but subject to State input in the form ot guidelines and

39 Alaska (zoning power in unorganized areas) : California (San Francisco Bay Con servation and Development Commission, Lake Tahoe Regional Agency, coastal zone) ; Con necticut (tidal wetlands) ; Delaware (Coastal Zone Act) ; Georgia (coastal marshlands) ; Maine (shoreland zoning) ; Maryland (wetlands) ; Michigan (scenic rivers, Great Lakes and flood plains) ; Minnesota (shoreland development and flood plains) ; Montana (flood plains) ; Nebraska (flood plains); New Jersey (wetlands, Hackensack Meadowland Development Commission, coastal zone) ; New York (Hudson River Valley and St. Lawrence—Eastern Ontario Commissions, Agricultural District Law, Adirondock Park Agency) ; North Caro lina (beach erosion and coastal wetlands) ; Oregon (coastal zone, water areas of the state) ; Rhode Island (coastal resources management, protection of intertidal salt marshes, coastal wetlands, freshwater wetlands) ; Virginia (wetlands) ; Washington (coastline protection) ; Wisconsin (shoreland zoning and flood plains). 40 Alabama, Arizona, California, Connecticut, Illinois, Maryland, New York, Oregon, South Carolina, Texas, and Washington. 41 Description and an analysis of the strip mining laws in the sixteen major coal produc ing States (Alabama, Colorado, Illinois, Indiana, Kentucky, Maryland, Montana, North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Virginia, Washington, West Virginia, and Wyoming) are provided in Coal Surface Mining and Reclamation: An Environmental and Economic Assessment of Alternatives, A Report of the Council on Environmental Quality Prepared for Senator Henry M. Jackson, pursuant to S. Res. 45, A National Fuels and Energy Policy Study, Committee on Interior and Insular Affairs, United States Senate. March 1973 (pp. 33-49, 103-104). 42 The most notable are: The New England River Basin Commission, The Hackensack Meadowland Development Commission. The Twin Cities Metropolitan Council, the San Francisco Bay Conservation and Development Commission, and the Lake Tahoe Regional Agency. 43 Arizona, Arkansas, Colorado, Idaho, Minnesota, Maryland, Michigan, Indiana, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Texas, Virginia, Washington, and Wisconsin. 44 The texts of the Florida, Hawaii, Maine, and Vermont laws, and the proposed bills in Washington and Oregon (recently enacted in amended form) are found in National Land Use Policy, 93d Congress: An Analysis of Legislative Proposals and State Laws, Committee on Interior and Insular Affairs, United States Senate, April 1973 (pp. 115-371). 83 criteria under which the localities exercise their land use controls. Ihese 8>tates, m effect, have created a unique local government—State partnership \\hich provides maximum authority to the local govern ments to guide land use, but also provides the opportunity for the State to contribute the benefits of a wider perspective.45

5. TOWARD A NEW FRAMEWORK FOR DECISIONMAKING A wide consensus has developed that this emerging role of the States should continue, that Federal assistance should encourage such a trend, and that Federal initiatives are necessary to assure intergovernmental and intragovemmental coordination of land use decisionmaking. In their criticisms of the performance to date of State and local land use controls, the Douglas Commission, the Kemer Commission, the Kaiser Committee, the Advisory Commission 011 Intergovernmental Relations, the National Estuarine Pollution Study and the National Estuarine inventory, the Task Force on Land Use and Urban Growth of the Citizen’s Advisory Commission on Environmental Quality, and other study commissions have all contributed to this consensus. Nearly all of the reports of these commissions identified a need for national landuse policy legislation. In each of the last three years, the National Governors Conference has adopted policy positions supporting a bolder and more innovative State role in land use planning and regu lation and calling for strong Federal legislation in support of new State efforts in this direction. In addition, legislation similar to the Land Use Policy and Planning Assistance Act has been called for by associations representing nearly every level of government: including the Council of State Governments, Council of State Planning Agencies, National Service to Regional Councils, National Association of Counties, and League of Cities and Conference of Mayors. The hearing record on S. 268 amply documents the breadth of this consensus; developmentalists and environmentalists, urbanists and ruralists alike have expressed support for land use policy legislation. Representative of users of the land which have advocated national land use legislation include the National Association of Manufactur ers, National Association of Industrial Parks, League of New Com munity Developers, National Association of Home Builders, Na tional Farmers Union, National Grange, Forest Industries Council, National Forest Products Association, and the American Forestry As sociation. Included among the advocates of S. 268 are such national en vironmental organizations as the National Wildlife Federation, Na tional Audubon Society, Izaak Walton League, Environmental Policy Center, Sierra Club, and Zero Population Growth. Water interests have also stressed the need for such legislation. They include the Na tional Water Resources Association, Southern Water Resources Con ference, and New England River Basin Commission. Professional as

45 Three recent survey reports summarize the new role for States in land use management and decisionmaking : The State’s Role in Land Resource Management, a report prepared by Richard G. Rubino and William R. Wagner for The Council of State Governments (1972) : The Quiet RevoLition in Land Use Control, prepared by Fred Bosselman and David Callies for The Council on Environmental Quality (1971) : and Managing the Environment: Nine States Look for New Answers, prepared by Elizabeth H. Haskell, et al., for the Wood row Wilson International Center for Scholars (1971). A review of these and other studies is found in National Land Use Policy Background Papers, Committee on Interior and Insular Affairs, United States Senate, April 1972 (pp. 95-101). 84 sociations such as the American Institute of Architects, American In stitute of Planners, and American Society of Consulting Planners, have spoken in favor of the measure. The A.F. of L.-C.I.O. also endorsed the legislation. Finally, such prestigious and varied pub lications as Business Week, the New York Times, the Wall Street Journal, both the Washington Post and Star, the Boston Globe, the St. Louis Post-Dispatch, the Christian Science Monitor and the Minneapolis Star have lent their support to the Act.46 A strong catalyst for the continued emergence of the new State role in land use planning and management has been the recently circulated Model Land Development Code,47 a product of more than ten years of effort by the reporters of the American Law Institute. This Code served as a point of departure for the recent Florida and Oregon legis lation and is being studied carefully by a number of States as a pos sible model for their proposals for State land use legislation. Cer tainly, the provisions of S. 268 reflect many of the recommendations embodied in the Code. Federal recognition of this “quiet revolution in land use control” can be inferred from the approximately two hundred land use policy bills pending before thirteen Committees of Congress. Virtually all of these bills focus on individual uses or areas of critical concern and more than local significance, and encourage the States to assume a degree of control over them.48 In relation to the many pending land use policy bills, the Land Use Policy and Planning Assistance Act is considered by the Commit tee to be an “enabling act” to give the States the financial wherewithal, and require of the States legislation to establish the necessary machin ery and procedures, to insure that (1) the States will be receptive to the pending bills, once enacted, and (2) that the many planning tasks these bills will require will not be conducted in isolation one from another. HI. LEGISLATIVE HISTORY 91st Congress: The first national land use policy proposal, S. 3354, was introduced in January 1970 by Senator Jackson. Four days of hearings were held and in December 1970, the bill, substantially amended, was reported favorably by the Committee. No floor vote was taken on S. 3354. The Committee on Interior and Insular Affairs in the House of Representatives took no action on S. 3354’s counterpart. 92nd Congress: S. 3354, as reported, was introduced by Senator Jackson in January 1971 as S. 632. In his February 8, 1971 Message to Congress on the environment, President Nixon announced that

48 A summary of the six days of hearings on S. 268 and S. 924 Is found In National Land Use Policy Legislation, 93d Congress: An Analysis of Legislative Proposals and State Laws, Committee on Interior and Insular Affairs, United States Senate, April 1973 (pp. 79-94). A summary of the eight days of hearings on S. 3354 (91st Congress) and S. 632 and S. 992 (92d Congress) Is contained In National Land Use Policy Background Papers, Committee on Interior and Insular Affairs, United States Senate, April 1971 (pp. 27-38). 47 American Law Institute, .4 Model Land Development Code: Tentative Drafts No. 2, 3, and 4, 1970^72; relevant portions of Tentative Draft No. 3 are contained In National Land Use Policy, 93d Congress: An Analysis of Legislative Proposals and State Laws, Committee on Interior and Insular Affairs, United States Senate, April 1973 (pp. 372-479). 48 Lists of bills pertinent to land use policy in the 91st and 92d Congress, a chronology and discussion of past, significant land use policy legislation, and a review of land use jurisdiction of Congressional Committees and Subcommittees, are contained in National Land Use Policy Background Papers, Committee on Interior and Insular Affairs, United States Senate, April 1972 (pp. 39-78). 85 the Administration would submit a national land use policy proposal to Congress. On February 25, 1971, S. 992, the Adm inistration meas ure, was introduced by Senators Jackson and Allott (by request). An amendment adding a sanction to S. 992 was submitted by the Adminis tration a year later and was introduced by request. Although the Com mittee in its deliberations focused on S. 632 and S. 992, Senators Allott, Jordan, and Mathias also introduced land use proposals. The several proposals were the subject of ten days of hearings; four by the Inter ior Committee and three each by the Banking, Housing, and Urban Affairs and Commerce Committees. S. 632, amended to con tain significant portions of S. 992 and a new title concerning coordina tion of planning of Federal lands with State and local planning, was ordered reported by a 13 to 3 committee vote on June 19, 1972. After extensive discussions with Banking, Housing and Urban Affairs, Com merce, and Public Works Committees, S. 632 was considered by the Senate on September 18 and 19, 1972. On the latter day the Senate passed S. 632 with several amendments by a vote of 60 to 18. H.R. 7211, a companion measure which contained similar land use policy lan guage and numerous additional provisions concerning the management of Federal lands, was reported by the House Interior Committee on August 7, 1972, but remained in the Rules Committee through the conclusion of the Congress. 93rd Congress: On January 9, 1973, Senator Jackson introduced 5. 268, virtually identical to S. 632, as passed. The Administration bill (S. 924) was introduced by Senators Jackson and Fannin (by request) on February 20, 1973. Six days of hearings were devoted to the two proposals (February 6, 7, 26 and 27, April 2 and 3). Testimony was received from the Chairman of the Council on Environmental Quality, the Secretary of the Interior, and the General Counsel of the Environmental Protec tion Agency, five State Governors, representatives of county and city government, trade associations, environmental groups, and profes sional associations. On February 1, 1973, the Chairman of the Committee wrote to the Chairmen of the Senate Committees on Agriculture and Forestry; Banking, Housing and Urban Affairs; Commerce; and Public Works; and the Subcommittees on Air and Water Pollution, and Oceans and Atmosphere. Noting the personal interest of the chairmen and the interest of their committees in S. 268 and S. 924, Senator Jackson invited the chairmen to testify before, and participate with, the Com mittee in the hearings on the two proposals. Senators Magnuson and Hollings accepted the invitation and did testify before the Committee. In addition, Senator Nelson testified before the Committee. S. 268, as reported by the Committee after 11 open markup sessions, builds upon the best features of all the measures considered by the Committee over the past three and a half years. Pi addition, a num ber of new approaches not contemplated in previous proposals were introduced, thereby improving the measure ultimately reported. A summary of the major provisions of S. 268 as reported by the Com mittee is set out in section I of this Report. Cosponsors are Mr. 86

Abourezk, Mr. Bellmon, Mr. Bennett, Mr. Church, Mr. Cranston, Mr. Dominick, Mr. Fannin, Mr. Goldwater, Mr. Gravel, Mr. Gurney, Mr. Haskell, Mr. Hatfield, Mr. Humphrey, Mr. Inouye, Mr. Javits, Mr. Magnuson, Mr. Metcalf, Mr. McGee, Mr. Mondale, Mr. Moss, Mr. Nelson, Mr. Pastore, Mr. Randolph, Mr. Ribicoff, Mr. Stevens, Mr. Taft, and Mr. Tunney.

IV. COST OF THE ACT In accordance with subsection (a) of section 252 of the Legislative Reorganization Act of 1970, the Committee estimates that the new obligational authority which would be incurred in carrying out S. 268 would be as follows: 1. $800 million, at $100 million annually, in Federal appropriations over an eight full fiscal year period following enactment of the Act for grants to the States for development and implementation of State land use programs. 2. $120 million, at $15 million annually, in Federal appropriations over an eight full fiscal year period following enactment of the Act for grants to the States to coordinate, study, conduct, or implement land use planning in interstate regions. 3. $80 million, at $10 million annually, in Federal appropriations over an eight full fiscal year period following enactment of the Act for grants to Indian tribes for development and implementation of land use programs for reservation and other tribal lands. 4. $16 million, at $2 million annually, in Federal appropriations over an eight full fiscal year period following enactment of the Act for contracts or grants for research on and training in land use related subjects. 5. $50 million, at $10 million annually, in Federal appropriations over a five full fiscal year period following enactment for administra tion of programs under the Act.

V. COMMITTEE RECOMMENDATION The Committee on Interior and Insular Affairs by majority vote in open mark-up session on May 29, 1973 recommends that S. 268, as amended be enacted.

VI. TABULATION OF VOTES CAST IN COMMITTEE Pursuant to Section 133(b) of the Legislative Reorganization Act of 1946, as amended, the following is a tabulation of votes of the Com mittee during consideration of S. 268: 1. During the Committee’s consideration of the Land Use Policy and Planning Assistance Act many voice votes and formal roll call votes were taken on amendments to the bill. These votes were taken in open public session and, because they were previously announced by the Committee in accord with the provisions of Section 133(b), it is not necessary that they be tabulated in the Committee Report. 87 2. The Act was ordered favorably reported to the Senate on a roll call vote, lhe vote was as follows:

YEAS----10 NAYS----3 J ackson F annin Bible Hansen Church B artlett Metcalf Johnston Abourezk Haskell Hatfield Buckley McClure

VII. SECTION-B Y-SECTION ANALYSIS OF THE ACT

Short Title The short title of the Act is “Land Use Policy and Planning Assist ance Act”. T i t l e I — F i n d i n g s , P o l i c y , a n d P u r p o s e Sec. 101 The prevailing conditions concerning land use patterns and land use decisionmaking throughout the nation which have led to the develop ment of this Act are expressed in this initial section as eight broad statements of Congressional findings. First, the Act declares that there is a national interest in a more efficient system of land use planning and decisionmaking. The rapid population growth, technological advancements, and economic expan sion of this Nation, together with the fragmentation of governmental entities exercising land use controls and the increased size, scale, and impact of private actions, have resulted in an inefficient and costly sys tem of land use decisionmaking too often based on expediency, inade quate information, short-term economic considerations, and other fac tors unrelated and frequently detrimental to sound land use planning. (Subsection (a).) Secondly, the lack of understanding on the part of the various pub lic and private land use decisionmakers concerning the land use im pacts of their decisions has made land use planning and management more difficult. (Subsection (b).) In a third finding, the lack of adequate land use data collection fa cilities and methods of utilization of data is noted. (Subsection (c).) A fourth finding is that poor land use decisionmaking has resulted in delay, litigation and cancellation of significant, needed develop ments. The delays have wasted human and economic resources, have threatened public services, and have resulted in the siting of develop ments according to public and political pressures and not according to a sound and rational system for balancing and assessing relevant environmental, economic, and social land use considerations. (Sub section (d).) 88 The fifth finding recognizes that significant land use decisions are made without an adequate opportunity for the public, including prop erty owners and users of the land, to meaningfully participate in the decisions or be informed concerning alternatives to the proposed ac tions. (Subsection (e).) . The sixth finding recognizes the major impact of Federal actions on land use, location of population and economic growth, and the quality of the environment. The land use policies generated by various Federal programs have been inconsistent and often have resulted in needless, undesirable, and costly conflicts among Federal agencies and among the Federal, State, and local governments. Consistent Federal land use policies would deter subsidization of projects which, because of the conflicts they engender, cause the proliferation of undesirable and costly development patterns. (Subsection (f).) In the seventh finding, the State and local governments are re assured of their land use planning authority over private lands guar anteed to them by the Constitution; but it is emphasized that the manner in which these local decisions are made has a significant im pact on the public domain, the national parks, forests, seashores, lakeshores, recreation and wilderness areas, wildlife, refuges, and other Federal lands. As demonstrated by the land use conflicts recently associated with the Everglades National Park and the proposed inter national jetport, poor planning and management of non-Federal lands adjacent to Federal lands have often damaged national assets which are owned by all of the people and posed serious administrative prob lems for Federal land management agencies. Unsightly strip develop ments situated on the borders of national parks and highly polluting industries located upstream from wildlife refuges are examples of threats posed to Federal lands by poor local or State planning. (Sub section (g).) Finally, the eighth finding affirms the importance of intelligent land use planning and management for preserving and enhancing the en vironment, encouraging beneficial economic development, and main taining conditions which will assist in the improvement of the quality of life. (Subsection (h).)

STATEMENT OF POLICY AND PURPOSE Sec. 102 This section sets forth the Congressional declaration of policy for the administration and implementation of the Act. The section states that the Congress recognizes that the Nation’s land is its most valuable national resource and that only by means of the development and implementation of sound and coordinated land use policies can the maximum benefit for all citizens be derived from this resource. In order to promote the general welfare and to provide full and wise application of the resources of the Federal Government in strengthening the environmental, recreational, economic, and so cial well-being of the people of the United States, the Congress states that it is the continuing policy of the Federal Government to coop erate with and render assistance to State and local governments in the development and implementation of land use policies which will 89 govern the wise and balanced use of the Nation’s land resource. (Sub section (a).) The purpose of the Act is to : encourage and assist the States to more effectively exercise their constitutional responsibilities for the planning and manage ment of their land base by developing and implementing State land use programs. —establish a grant-in-aid program to assist state anl local gov ernments and agencies to procure and train personnel, to collect and analyze data, and to establish the institutions and procedures needed to develop and implement State land use programs. —establish a grant-in-aid program to encourage cooperation among the States with respect to land use planning and manage ment in interstate regions. —establish a grant-in-aid program to assist Indian tribes in the development of land use programs for Indian land and to co ordinate those programs with the planning and management of Federal and non-Federal lands which are adjacent to Indian land. —establish the authority and responsibility of the Executive Office of the President to issue guidelines under the Act, of the Secretary of the Interior to administer the grant-in-aid and other programs established under the Act, and of the heads of other Federal agencies to participate in the review of the State land use programs. —develop and maintain sound policies and coordination pro cedures with respect to federally conducted and federally assisted projects on non-Federal lands having significant land use im plications. —facilitate increased coordination in the administration of Fed- eral programs and in the planning and management of Federal lands and adjacent non-Federal lands. —provide for meaningful participation of property owners, users of the land, and the public in land use planning and management. —promote the development of systematic methods for the ex change of data and information pertinent to land use decision making among all levels of government and the public. —and study the feasibility and possible substance of national land use policies which might be enacted by Congress. (Subsec tion (b ).)

T i t l e II —P r o g r a m s o f A s s i s t a n c e t o t h e S t a t e s

PART A STATEWIDE LAND USE PLANNING PROCESSES AND STATE LAND USE PROGRAMS

GRANTS TO STATES Sec. 201 This section provides authority to the Secretary of the Interior to make annual grants to the States to assist them to develop and imple ment State land use programs which meet the requirements of the Act. (Subsection (a,).) 90

The grants are to be administered by th e Secretary o f the Interior in three procedural steps, subject to determinations in an interagency Federal review process of continued grant eligibility. During the first three years after the date of enactment, the Secre tary may make annual grants to each State based on a determination in the interagency review process provided for in section 306 that the grant will be used to satisfactorily meet the Act’s requirements for de veloping a statewide land use planning process (Sec. 202) and is pro ceeding to develop that process. (Subsec. (b).) In the fourth and fifth years after enactment, annual grants may be made to a State upon the determination that the State has developed a satisfactory statewide land use planning process and is proceeding expeditiously in the development of a State land use program. (Subsec. (c).) For three years after the initial five year period, additional annual grants may be made to a State which has developed, and begun to im plement, a State land use program which is determined in the inter agency review process to meet the requirements (principally sections 203 and 204) of the Act. (Subsec. (d).) The time limits provided in this section and elsewhere in the Act are intended to establish maximum deadlines for meeting various require ments. Certainly no State which performs faster than is required by the Act is to be penalized by being made to wait until the deadline which it “beat” expires before it can obtain further financial assistance. For example, any State which completes a statewide land use planning process in the first year can immediately receive grants to develop its State land use program; it need not wait two additional years until the three year limit for submission of statewide land use planning processes expires. In fact, as the allocations for grants are based partially on need and as each step—development of the statewide plan ning process, formulation of the State land use program, and then program implementation—will be more costly than the last, States which are conducting the later tasks at an earlier date will likely receive larger portions of the available grant money than will those States which are simply meeting the deadlines. Each State which receives grants during the first five years is re quired to submit an annual report to the Secretary of the Interior no later than one year after receipt of each grant. The report must include information concerning the State’s progress in developing its State land use program and an indication of projected action. This informa tion will be used in the interagency review process to determine the eligibility of the State for further grants. Then, in order to receive grants after five years of the date of enactment, the State must submit its State land use program within one year of receiving each additional grant so that the Secretary may have information to determine State eligibility. In the event that a State does not request additional grants after the initial five-year period, the State will be required to submit its State land use program to the Secretary of the Interior within ninety days for a determination through the interagency review process of the eligibility of the State to receive further grants under the Act. The same procedure must be followed if a grant is not requested by a 91

State for a period of two complete fiscal years after the initial five- year period. (Subsec. (e).)

STATEWIDE LAND USE PLANNING PROCESSES Sec. 202. Each State is required to have developed an adequate statewide land use p la n n in g process by the end of the third fiscal year from the date of enactment of the Act. The process is designed to ensure that the State land use program required by the fifth fiscal year (section 203 and 204) and the policies it will contain are developed in a systematic, rational and democratic manner and upon a base of professional expertise and useful data and information. Data and Information.—Wise and informed State land use policies and programs must be based on factual data and their expert inter pretation. It is also necessary that the State monitor the trends in land use and have current information on the quality, status, and location of land resources. Periodically reviewed and updated inventories of physical, social and economic resources will serve as measure of the effectiveness of State land use programs. Land use planning must consider the availability of land for siting needed developments and controlling their impacts and be sensitive to the need for protecting critical areas from degradation and improvident use. A successful State land use program must have the support and co operation of the general public. For this reason public education and information are important components of the statewide land use plan ning process. Public participation in State land use decisionmaking is critically important to preserve the concept of due process, to assure an expression of personal values and judgments in establishing land use goals and policies, and to develop sufficient public faith in the resultant decisions so that resistance to their implementation will be minimized. Recognizing that a large amount of information is currently being collected by numerous State and Federal agencies, the States will be required to develop systematic methods to classify and distribute planning information among intra-State planning units and to initiate exchange of information among adjoining States and with Federal agencies. The secondary effects of State planning policies on local finances and tax revenue will not go ignored. States will be required to monitor the effects of their policies on the ability of local govern ments to perform the services of which they are expected. While the need for adequate planning information is recognized as a legitimate component of any planning process, no inference should be drawn that States are expected to create comprehensive data banks or computerized systems, or serve as repositories of academic knowl edge. The information component of a statewide land use process is intended to be a functional body of information for use by planners, decision-makers, and the public. Emphasis is placed on information for anticipatory planning needed to identify future land use prob lems and develop strategies to remove the causes for such problems before they are realized. The structure of the statewide planning land use process is left pur posely flexible to allow innovation by the States. It is the responsi- 92 bilitv of each State to develop the process which is best suited to solve its particular land use problems. Federal support is to be provided by the Office of Land Use Policy Administration (Sec. 304) which will have collateral responsibilities for data collection and analysis on the national scale and for the development of new and simplified data handling and analytical techniques. The office is not to dictate to the States the composition or structure of their information and inventory systems. Plurality in the structuring and innovation of planning proc esses and information systems is seen as a means to improve State land use decisionmaking. It is recognized that the development of land use information systems and the statewide planning processes of which they are a part will be incremental and require considerable experimentation, innovation, and trial and error. Sufficient latitude is to be provided each State to structure and adapt its statewide land use process to individual needs. As the state of the art of information analysis and transfer develops, however, States will be expected to update their processes to accommodate such changes in order to pro vide the highest order of efficiency. The statewide planning process must include: —an up-to-date inventory of the State’s land and natural resources. —an up-to-date statewide data base concerning population densities and trends, economic characteristics and trends, and directions and extent of urban and rural growth. —projections of the nature, quantity, and compatibility of land needed and suitable for recreation, parks, and open space; scientific and educational purposes; protection of areas of critical environmental concern; conservation and preservation of natural resources; agricul ture, mineral development, and forestry; industry and commerce, in cluding the development, generation, and transmission of energy; solid waste management and resource recovery; transportation; urban development, including the revitalization of existing communities, the development of new towns, and the economic diversification of existing communities which possess a narrow economic base; rural develop ment, taking into consideration future demands for and limitations upon products of the land; and health, educational, and other State and local public services. These projections are expected to overlap; they are not to be regarded as encouraging the widespread establish ment of areas subject to a single or wholly dominant use. Although some uses in certain circumstance may require segregation from all or most other uses, before such decisions are embodied in the State land use program, these projections (upon which those decisions will be based) must honor the multiple-use concept by giving full con sideration to multiple-use siting of facilities and activities. —an up-to-date inventory of environmental, geological, and physical conditions which influence the desirability of various land uses. —the periodic monitoring of land use data to determine changes in land usage, the comparison of any changes to the State and local land use plans, programs, and projections, and the reporting of the findings to the affected local governments, State agencies, and Federal agencies upon request. The monitoring of changes in land usage will assist, at all levels of government, the functional agencies to understand the impacts of their programs and the planning agencies to determine the extent to which land use patterns adhere to their plans. The need 93 for strict pollution legislation is a consequence of not having recog nized and appreciated the deteriorating quality of the environment due to the gradual, incremental pace of that deterioration. To effectu ate sound land use planning, gradual changes in land use must not go unrecognized and unappreciated in the same manner. —an up-to-date inventory of State, local government, and private needs and requirements concerning Federal lands within the State. This provision is necessary to permit informed cooperation between Federal and non-Federal decisionmakers with respect to coordinating uses of the Federal lands with uses of adjacent non-Federal lands. Without this information even the most sophisticated procedures to achieve coordination of Federal planning and management of Federal lands and State and local planning and regulation of ad jacent non-Fed eral lands will be totally ineffectual. If prepared with an inventory of its needs in relation to the Federal lands within its borders, a State— even a public land-locked Western State—can be an effective negotia tor in resolving land use conflicts with the Federal government. There fore, the success of title IV of the Act. which establishes procedures to achieve such coordination, largely depends upon the quality of these State inventories. —an up-to-date inventory of public and private institutional and financial resources, including citizen public interest organizations, which are available for land use planning and management with the State. Included in the inventory are State and local programs and activities which have a land use impact of more than local concern. —the establishment of methods for identifying, inventorying and designating the areas and uses of more than local concern to be in cluded in the State land use program. These areas and uses are classi fied in five major categories within the Act: areas of critical environ mental concern, key facilities, large-scale development, development of public facilities or utilities of regional benefit, and land sales or development projects. (See discussion of section 601 for the definition of these categories contained in the Act and the role of the States in defining further these categories in developing their processes and programs.) Wherever the areas and use to be included in the State land use program are not fully designated by State law, their designa tion is to be subject to an appeals process—-either administrative or judicial. The parties who may appeal are to be defined by State law. The Committee decided not to define “interested party” for purposes of appeal so as to preserve flexibility for the States to work out their own, hopefully innovative, procedures. However, the Committee recognizes the extremely important due process implications involved in deter mining rights of appeal. The States are encouraged and expected to honor the general trend toward a wider recognition of those who can contest or appeal governmental decisions. To do so -would be in keeping with the basic premise of S. 268 that the impacts of many land use decisions are no longer felt only by adjacent landowners—the usual parties of interest under the common law nuisance doctrine—or the neighbors in the same zoning district or the voters within the jurisdic tion of one local government—the definitions of parties of interest under traditional zoning law—but by citizens of the region, the State, and, on occasion, the Nation.

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—the training of state and local land use planning and management personnel. —the establishment of arrangements for exchanging land use data on an intra- and inter-governmental basis and with the public. —the establishment of a public education process concerning land use planning and management and other land use related activities to foster public awareness and involvement. Several of the Governors who appeared before the Committee argued persuasively for the need to employ grant funds for public education purposes. As previously discussed, without a public commitment to planning, passage of the State legislation establishing the authority to plan and implement planning decisions will be difficult. —the provision of opportunities for participation of local govern ments, property owners, users of the land, and the public in the state wide land use process and in the guideline and rule-making for admin istering the process. Adequate notice of prospective decisionmaking is recognized as a prerequsite for such participation. As discussed in relation to section 101 (e), wide participation in land use decisionmak ing is regarded by the Committee as perhaps the most critical factor in the successful implementation of the Act. The Committee has strengthened the participation language in S. 268, as introduced, and inserted additional participation provisions. The Committee believes, and the Act so states, that participation of local governments, prop erty owners, users of the land, and the public must be provided at all stages of the development of the statewide land use planning processes and State land use programs—from the definition to the implementa tion stage. —the consideration of interstate aspects of major land use issues and the consultation with other affected States. —and the consideration of the impacts of State programs and activi ties, land use policies, and the State land use program to be developed pursuant to the Act on the local property tax base and revenues and on rights of private property owners. (Subsection (a).) Expertise.—Raw’ land use data are useless absent the capability to analyze them. Furthermore, analyses are useless without the author ity to employ them in land use decisionmaking which can prevail over functional programs of government which impact upon the land. Therefore, subsection (b) provides that, as part of the statewide land planning process, the State must designate a planning agency to house the expertise and to conduct the land use decisionmaking. This agency would have authority to coordinate functional activities and func tional planning within the State. In particular, the subsection requires that the State land use plan ning agency be vested with the primary authority and responsibility for developing and administering the State land use program provided for in sections 203, 204. 402, and 505 of the Act. The agency must have competent and adequate interdisciplinary professional staff and the ability to engage the services of special consultants. Priority is to be given to the acquisition of a data base, using existing sources for data wffierever feasible. The agency must coordinate its activities with those of all other State agencies which administer or implement federally financial or assisted planning programs which relate to land use as well 95 ?• all State agencies which enforce pollution standards. The activi ties must be coordinated with flood plain zoning plans approved by the Secretary of the Army pursuant to the Flood Control Act of 1960 • the State planning activities required under the Coastal Zone Manage ment Act of 1972, if appropriate; the activities of areawide agencies designated pursuant to section 204 of the Demonstration Cities and Metropolitan Development Act of 1966; and the planning activities of Indian tribes conducted under S. 268. To insure wide participation in the land use decisionmaking, the agency must have the authority and responsibility to make land use data and information, studies, reports, and hearing records available to the public upon request. In addition, the agency must also be advised by an intergovernmental advisory council composed of a representative number of chief elected officials of general purpose local governments (as defined in section 601) in urban and non-urban areas. The council is to be selected by the associa tion or associations representing the general purpose local govern ments and shall comment on all State guidelines, rules, and regulations to be promulgated pursuant to S. 268. The council is to participate in the development of the statewide land use planning process and State land use program and may comment on any annual reports submitted to it by the agency. (Subsection (b).) The purpose of the designation of a state planning agency is to in sure the existence of one agency which possesses the authority to con duct comprehensive planning and to coordinate the numerous, often isolated, functional planning activities of State and local govern ment. The Committee does not wish to cause a duplication of agencies or promote bureaucratic inefficiencies by a needless multiplication of administrative agencies where an existing agency already has similar authority. Accordingly, the section permits the State to designate as the land use planning agency for purposes of S. 268 the planning agency participating in programs pursuant to section 701 of the Hous ing Act of 1954 or, if the State is a coastal State, the planning agency participating in programs under the Coastal Zone Management Act of 1972. If such a designation is impossible or impracticable within the initial three complete fiscal year period after enactment of this Act, the States are encouraged to consolidate the functions of these land use agencies. (Subsection (c).) Land sales or development, projects.—The significant threat to proper land use planning and management posed by the massive in crease in installment land sales and recreational homesite development projects in rural areas is addressed in subsection (c). The great stress placed upon urban services and the environment by these projects and the lack of sufficient planning experience or authority of rural local governments to cope with these projects suggest that early State assist ance in regulating them is warranted. Therefore, the State is asked to develop a program concerning land sales or development projects by the three year mark. Thorough decisionmaking concerning the other four categories of critical areas and uses of more than local concern is not required until the fifth yen r when the State land use program is due to be completed. The program must include procedures for identifying land sales projects and a means for considering each project on an individual 96

basis. Developers are to provide the State and local governments with maps, completion schedules, financial statements, and statements as to the potential effects of each development, which will serve as informa tion for determining the consistency of the development with the State and local land use programs and with the need for environmental protection and maintenance of urban services. The State would then review each project. The review is to in clude an evaluation of the consistency of the project with the land use planning process and the State land use program (after it is devel oped), an analysis of the project’s impact on the environment and on urban services, comments on the need for the development, and rec ommendations regarding whether the project should proceed. The program concerning these projects must insure that each proj ect meets the following criteria: —the financial capability of the developer is sound or the de veloper has posted a sufficient performance bond (capability is to be based on whether the developer will be able to meet the agreed upon schedule of improvements he has promised). —the project will not exceed the capacity of existing systems for water and power supply, Avaste water collection and treatment, and waste disposal, unless expansion of the relevant systems to meet the requirements of the proposed development is planned and approved, and sufficient financing for the construction of the expanded systems is available. (Where soil conditions permit and where proper regulation exists, septic tanks would be re garded as a permissible “system” within the terms of this cri terion). —the project will not cause unreasonable soil erosion. —the project will not be located in flood plains, areas of high seismicity, or any other area which might constitute an undue risk to health or safety. -—the effects on the scenic or natural beauty or the natural environment are taken into consideration. —open space possessing valuable potential for public recreation is taken into consideration, such open space may include beaches, shorelines, and wild areas. —the project will not place an unreasonable burden on the ability of the State and local governments to provide municipal or other public services, including transportation, education, and police and fire protection. —the project will be developed within the time schedule sub mitted by the developer or within an alternative schedule neces sary to insure that the project will meet the other criteria above. —the project is consistent with local land use plans, regulations, and controls and with the State land use program, once approved pursuant to the Act. Just as with the entire State land use program, the State is free to choose the method of implementing this program concerning land sales or development projects. The purpose of the state review of the project is to make the full range of State expertise—hydrologists, transportation advisers, pollution experts, etc.—available to rural lo cal governments which cannot financially afford, but cannot afford 97 to do without, such counsel. No matter whether the program is to be administered by local governments or by the State, the initial State review is advisory only. Failure to abide by the recommendations of that review is not to be grounds for ineligibility for grants under S. 268. The program, however, must assure that all land sales or de velopment projects do meet the nine environmental, land use, and urban services criteria set out in the subsection. (Subsection (d).)

NOTE : THE RELATIONSHIP OF THE STATEWIDE LAND USE PLANNING PROCESS TO THE STATE LAND USE PROGRAM A principle objective of S. 268 is to encourage preparation of State land use programs. Clearly, total acre-by-acre, aetivity-by-activity planning at the State level, providing for all of the detailed needs of society, would be undesirable and impossible—both financially and politically. On the other hand, the Committee believes that it is the very essence of the land use concept that a measure of comprehensiveness be in cluded in planning. The aim is to have a real knowledge of the avail able resource—all of it—and a real recognition of all of the critical public demands upon it. Without such perspective, planners do little more than fight “brush fire wars"—that is they plan in isolation on issues immediately before the public eye. Furthermore, in the end, such “instant planning" tends to involve more intervention into local matters by the State than does truly far-sighted, comprehensive planning. S. 268, borrowing from the Model Land Development Code devised by the American Law Institute, asks the States to assume authority over only that 10% of decisions which comes under the five categories of critical areas and uses which are clearly of more than local concern. Certainly, such an approach allows a minimum of State intervention in local affairs; but without a comprehensive overview such a critical areas and uses approach may be nothing more than “spot zoning” at the State level. Without an adequate understanding of the entire land resource, the State land use program will constitute a re-inventing of the so-called “zoning game" at the State level. The land use decisions embodied in the State land use program will be based on nothing more than short-term “hunch" and immediate political pressure. Therefore, S. 268 maintains all the requirements of the earlier Jackson land use proposals concerning a comprehensive statewide land use data base and the expertise to analyze that data base. From the comprehensive data base and with the expertise—both to be devel oped in the statewide land use planning process required by this section 202—the State can wisely make its more selective critical areas and uses planning decisions. The Committee understands the danger that massive data collec tion can readily become a substitute, rather than a support, for planned decisionmaking. It recognizes the risk that the unguided quest for more and more data and for more sophisticated data analysis can result in an extensive accumulation of data and experts, neither of which may be relevant to future decisions. Therefore, the Committee wishes to make clear its intent that the statewide planning process is not to be an academic pursuit, but rather is to be an activity the 98 result of which is to lay a foundation for the informed decisionmaking necessary to the development of a sound State land use program.

STATE LAND USE PROGRAMS Sec. 203 The States are required to have developed an adequate State land use program by the end of five fiscal years from enactment (a maximum of two years after having developed the statewide land use process). The focus of this program should be the 10% of land use decisions— the decisions on critical areas and uses of more than local concern— which impact upon citizens who are not represented by the decision maker: the local zoning or land use regulatory authority. The program is to provide democratic decisionmaking concerning the critical areas and uses by encouraging participation of those citizens who would feel the impact of local decisions concerning those areas and uses and by providing guidance by the State, as representative of the affected, larger than local, constituency. First, to insure that the State land use program enjoys an adequate base of data and expertise, the program is required to continue to have a statewide land use planning process which meets the section 202 requirements. Secondly, the program must include a statement of State land use policies and objectives. Because of the wide social, economic, and en vironmental implications of land use decisionmaking, planning must necessarily be based upon a definite set of goals and objectives which all who wish to participate in such planning can readily understand. Goals and objectives also serve as convenient standards against which governmental officials and the public can measure the achievements of planning. As noted elsewhere in the report, the Committee believes that plan ning is too often divorced from any institutional mechanisms for its implementation. Too many resplendently color-coded plans—vision ary or ordinary, balanced or mission-oriented—have been left to collect dust on administrator’s shelves because of a lack of authority to ad minister them. Federal grant-in-aid programs which have planning assistance elements also have too often encouraged the formulation of plans and ignored the development of means to implement them. Accordingly, S. 268, as ordered reported by the Committee, requires the State land use program to have methods of implementation for controlling the remaining four of the five categories of critical areas and uses of more than local concern and for other purposes. In par ticular, included in the State land use program must be methods of implementation for: —exercising control over the use and development of land in areas of critical environmental concern. The degree of control exercised must be sufficient to assure that the historic, cultural, scientific, or esthetic values or natural systems or processes within fragile or his toric lands are not impaired; that loss or reduction of long range continuity and the concomitant endangering of future water, food, and fiber requirements within renewable resource lands are mini mized or eliminated; and that unreasonable dangers to life and prop erty within natural hazard lands are minimized or eliminated. (See 99 discussion in section 601 for the definition of “areas of critical environmental concern ). —exercising control over land use in areas which are or may be impacted by key facilities, including the site-location and the loca tion of major improvements and major access features of key facili ties (major airports, highway interchanges, public recreational facili ties, power plants, etc.) (See discussion of definition of “key facili ties” in section 601.) —assuring that development for public facilities or utilities of re gional benefit is not arbitrarily or capriciously excluded by local regulations. —influencing the location of new communities and controlling the use of land around new communities. —controlling proposed large-scale development of more than local significance in its impact upon the environment. (See discussion of definition of “large-scale development” in section 601.) —assuring that any source of air, water, noise, or other pollution pertaining to the areas and developmental activities covered by the State land use program will not be located where it will result in a violation of any applicable air, water, noise, or other pollution stand ard or implementation plan. —assuring that all State and local agency programs and services which significantly affect land use are consistent with the State land use program. —periodically revising and updating the State land use program to meet changing conditions. Should S. 268 be enacted, coastal states would be presented with the unique problem of preparing land use programs for two different, Fed eral agencies under two different Federal statutes: the Coastal Zone Management Act of 1972 (86 Stat. 1280) and Land Use Policy and Planning Assistance Act. An amendment offered by Senators Magnu- son and Hollings, principal sponsors of the Coastal Zone Management Act, and Senator Jackson, and agreed to by the Committee, requires that the State's management program under the coastal zone laAv and the State land use program under S. 268 be consolidated into a single program for the purposes of annual submissions to the Secretaries of the Interior and Commerce. The required consolidation of the two programs each year should result in the discovery and elimination of most conflicts between those programs. (As will the provision in section 202(b) urging the State to consolidate the State agency appointed to develop the coastal zone management program with the State planning agency designated to develop the State land use program under S. 268.) The consolidated program will be subject to two independent Federal reviews—that is, the Secretary of Commerce will review the coastal zone portion of the consolidated program to insure that it meets the requirements of the’ Coastal Zone Management Act and the Secretary of the Interior will coordinate the interagency review provided for in section 306 of S. 268 to insure that all other portions of the program meet the requirements of S. 268. Although two Federal reviews are pro Added, it is expected that the consolidation of the separate state programs into a single pro gram will encourage coordination between the two Secretaries to elim 100 inate conflicting “paperwork” requirements and reduce conflicts in the requirements of the guidelines and regulations promulgated under the two Acts. Two alternative but not mutually exclusive methods of implementa tion are provided for: (1) direct State planning; or (2) State estab lishment of guidelines for, and administrative review of. local land use planning, zoning, and regulating. In the latter case, the State would reaffirm the authority of local governments to continue to exer cize all their land use powers and, through guidelines, criteria and an appeals process, would exercise guidance and oversight over the local efforts. The great majority of the more recent innovative land use laws concerning areas and uses of more than local concern—wetlands, coastal zone, flood plain, power plant open space and strip mining laws—have adopted this local government-St ate partnership ap proach. However, Hawaii and Vermont have already enacted legis lation which, in part, calls for direct state plannnig. The Committee believes that the local government-State partnership approach, in one form or another, is the preferred method—a method of implementation, which draws upon State expertise and provides State representation of the wider interests, while leaving the initial decision to the level of government closest to the people and most fa miliar with local conditions and the specifics of local land use demands and problems. Accordingly, language is provided encouraging the States to adopt this approach. However, the “alternative but not mutually exclusive” provision (“either one or a combination of the two following general tech niques . . .”) ensures that each State will have great flexibility to formulate its own innovative methods of implementation. It may choose to ignore the preference expressed in the Act, and it can do so with impunity. The “alternative, but not mutually exclusive” lan guage makes certain that the States will not be circumscribed in their choice of a method of implementation through Federal regulations— that no single “best” method is required of the States by the Federal administrators. (Subsections (b) and (c).) No method of implementation will be successful unless it includes full authority to enforce the state land use program. Therefore, the principal limitation on the method chosen by the State is the require ment of subsection (d) that the method must include the authority of the State, by means of the police power or otherwise, to prohibit the use of land within the critical areas or uses of more than local con cern—areas of critical environmental concern, key facilities, large- seale development, development of public facilities or utilities of re gional benefit, and land sales or development projects—in any manner which would be inconsistent with the provisions of the State land use program with respect to those areas or uses. (Subsection (d).) An appeals process—administrative or judicial—must be included in the implementation method. The procedure, among other matters, must provide for the resolution of conflicts over any decision or action of a local government for any area or use under the State land use pro gram and, in addition, over any decision or action by the Governor or State land use planning agency in the development or implemetation of the State land use program. (Subsection (e).) 101 Subsection (f) has as its purpose to make absolutely clear that this Act does not interfere with the development of constitutional law under the Constitution of the United States or of the States in regard to the line between the regulation of land which may be exercised by the States without compensation and that which requires the compensation of landowners. A landowner's right to petition a court of competent jurisdiction for a determination of whether a particular exercise of state power diminishing the use of land requires compensation is guar anteed in every State by the constitutional requirements of due process. The extent of regulation permissible without compensation varies from State to State, as determined by the courts of each State. This Act does not either directly or indirectly interfere with the development of State law concerning the extent of permissible regulation. Language which explicitly granted landowners a right to petition a court of com petent jurisdiction for a determination of whether regulation so re duced the value of land as to require compensation was rejected upon the counsel of, among others, the Justice Department (letter from the Department is included in section VIII “Executive Communica tions”) , on the ground that such language might by implication restrict or expand the right to compensation on a new and implied Federal standard, apart from the well developed body of law which exists in every State. (Subsection (f).) S fc. 20^. This section contains the requirements which a State land use pro gram must meet in order to continue State eligibility after five fiscal years from enactment. As in section 203, almost all the requirements concern a State’s authority and ability to implement its State land use program and do not invite Federal scrutiny of the substance of the program. However, these “implementation” requirements are of particular importance because they become applicable after the expiration of the five year period which the States have to develop their land use programs. It is at this time that the Federal review will "begin to focus exclusively on the implementation efforts. The principal exception to the procedural rather than substantive nature of the review requirements is the mandate to the Secretary of the Interior to determine that each state has not excluded from the areas of critical environmental concern in its State land use program any areas of critical environmental concern which are of more than statewide significance. The Secretary must, after affording an opportunity for public comment, submit to each State a description of any areas within the State which are of more than statewide significance. The Commit tee believes that to be listed by the Secretary, these areas must be of more than casual and passing importance and must require very careful planning and management efforts to preserve their quality. It should be emphasized, too. that the Secretary has the authority only to require that the additional areas be incorporated into the State land use program, subject to the very limited Federal review’ of the substance of the State land use program provided in the Act. Once those areas are within the program, the State may adopt to wards them the policies it believes appropriate. The Secretary must submit to the States his description of such areas within three years from enactment of the Act. This timetable provides 102 the States with a two-year grace period before the State land use pro grams are due to develop policies for the designed areas and to include them into their programs. In the event that the Secretary makes a submission of new areas after the first submission, this section pro vides that those new areas cannot be made subject to the review for grant eligibility for two years from the date of the new sub mission. This provision is to enable the States to revise their land use program to reflect the needs of these areas without the threat of immediate withdrawal of grant eligibility. It is expected that the Secretary will develop his list of critical areas from the study of land resources to be conducted by the Office of Land Use Policy Admin istration (in section 304 (c )(1 )). The next four requirements in this section are entirely concerned with the ability of the State to implement its State land use program and its performance in doing so. First the State is required to be demonstrating good faith efforts to implement the purposes, policies, and requirements of its land use program. An obvious caveat is that failure to demonstrate good faith efforts must not be automatically construed from the inability of a State to take an action to implement any portion of its land use program when that action is impeded or prevented by an injunction issued by any court of competent juris diction. Second, State laws, regulations, and criteria affecting the State land use program and the areas, uses, and activities within the program's compass must meet the requirements of the Act. Third, the State land use program must be reviewed and approved by the Governor. Fourth, in the statewide land use planning process require ments of section 202, the State is required to have the methods to coordinate, on an intra- and intergovernmental basis and in inter state areas, its planning with other governmental planning activities and programs; and, now, in this section’s requirements for the State land use program, the State must now be implementing those methods to ensure coordination with the State land use program. The Committee wishes to ensure that S. 268 strengthens land use planning and management by augmenting and not replacing existing Federal grant programs for planning assistance—in short, to bar any State from “forum-hopping” to use this Act’s grant funds to replace funds available under other Federal laws, the requirements of which it wishes to avoid. Therefore, the Committee addressed itself to the two largest, comprehensive planning assistance programs and re quired, in the final subsection, that to be eligible for grants under S. 268, a State must be participating in the programs provided for in section 701 of the Housing Act of 1954, as amended, and, if applicable, the Coastal Zone Management Act of 1972.

PART B INTERSTATE COORDINATION

GRANTS TO TH E STATES Sec. 205 Coordination of land use planning and management in interstate areas is a particularly difficult, but necessary, task if truly effective land use decisionmaking is to be conducted. This section authorizes the States to use appropriate interstate entities—where the authority 103

of such entities permits—or, subject to the approval of Congress by the adoption of an appropriate Act, to negotiate interstate compacts to coordinate State and local land use planning policies, and programs concerning, to study land use in, to conduct land use planning for, or to implement land use policies in, interstate areas. Any interstate entities employed for such purposes, however, must provide an oppor tunity for participation, for coordination purposes, of Federal and local governments and agencies as well as property owners, users of the land, and the public. (Subsection (a).) The Secretary is authorized to assist such coordination, study, planning, or implementation by providing annual grants to the States for these purposes. These grants could total $15 million a year for eight years at 90% of cost. (Subsection (b).)

STUDY OF INTERSTATE AGENCIES Sec. 206 This section provides for a two year study of federally established or authorized agencies by the Advisory Commission on Intergovern mental Relations. The Commission is directed specifically to review river basin commissions, regional development agencies, and inter state compact commissions as well as any other agencies it considers appropriate, and to prepare recommendations for the revision of the organizational structure and for the improvement of the'procedures of such agencies in order to improve the land use planning, policies, and programs, as well as the implementation of them, in interstate areas. The results of the review, together with any recommendations, are to be transmitted to the Congress within two years of the date of enactment of the Act. The Commission is not limited in the scope of its recommendations to the revision of existing entities, but may recom mend the creation of new entities or the use of existing entities com posed of representatives of two or more States. The recommended en tities and their procedures, however, must provide for an opportunity for Federal, State, and local governments and agencies, as well as property owners, users of the land, and the public, to participate in the coordination process. The first land use policy measure, S. 3354, vested the responsibility for coordination of State and local land use planning in interstate areas in the river basin commissions established pursuant to the Water Re sources Planning Act (79 Stat. 244). However, subsequent communica tions with the States have proven the difficulty of selecting a single organizational basis for planning of interstate regions. Whereas the New England States might have concurred in the designation of river basin commissions, the Rocky Mountain States protested vigorously, arguing that their interstate planning needs concerned problems be tween, not within, river basins. The Appalachian states would likely have preferred economic development as the organizational concept and chosen the Appalachian Regional Development Commission. Other States might have chosen ecological units or transportation sys tems as the bases for conducting interstate planning. Accordingly, S. 268 provides the States with the choice of how to organize for such planning; they can use existing entities or create new ones. Finally, to provide a measure of overview and to encourage Congress to facilitate 104 interstate planning, the Advisory Commission study and recommen dations to Congress are mandated.

PART C FEDERAL ACTIONS IN STATES FOUND ELIGIBLE OR INELIGIBLE FOR GRANTS

CONSISTENCY OF FEDERAL ACTIONS WITH STATE LAND USE PROGRAMS Sec. m This section provides a strong, additional (to the grant funds) incen tive to the States to develop adequate State land use programs in the requirement that Federal activities must be consistent with State land use programs which meet the requirements of the Act. The massive cumulative impacts which Federal programs and activities have on land use patterns can and often do frustrate State and local planning efforts. This section attempts to redress the balance and provide the States with the means to challenge Federal activities—be they stream channelization or park projects—which are conducted in disregard of, and in conflict with, the State land use programs which meet all the requirements of the Act. Consistency with State land use programs of all Federal projects and activities significantly affecting land use, including but not limited to grant, loan or guarantee programs, such as mortgage and rent sub sidy programs and water and sewer facility construction programs, with State land use programs which meet the Act’s requirements is required. Exceptions are possible in cases of overriding national inter est, as determined by the President. Consistency is to be determined by procedures prescribed by the Office of Management and Budget in line with the criteria specified in section 204 of the Demonstration Cities and Metropolitan Development Act of 1966 and title IV of the Intergovernmental Cooperation Act of 1968. (Subsec. (a).) State and local governments submitting applications for Federal assistance for activities having significant land use implications in an area subject to a State land use program which meets the Act’s require ments must indicate the views of the State land use planning agency and/or the Governor as to the consistency of such activities with the program. The agency and/or Governor must consult with the local governments prior to certifying the activity. However, to insure that a local application is not overly delayed by inaction at the State level, if no certification is made within sixty days, the local government may forward the application to the relevant Federal agency and that agency must make an independent appraisal of the activity’s consistency with the State land use program. (Subsec. (b ).) Federal agencies conducting or assisting public works activities in areas not subject to a State land use program meeting the requirements of the Act must conduct those activities so as to minimize any adverse impact on the environment resulting from decisions concerning land use. (Subsec. (c).)

FEDERAL ACTIONS IN THE ABSENCE OF STATE ELIGIBILITY Sec. 208 This section calls for certain Federal actions when States are judged to be ineligible for grants under the Act. 105

First, at any time, if a State is determined ineligible for grants or if eligibility is withdrawn in accordance with the procedures provided in section 306, the Secretary of the Interior has authority to terminate assistance to that State extended under the Act. (Subsection (a).) Second, where any major Federal action significantly affecting the use of non-Federal lands is proposed after five fiscal years from enact ment in a State found ineligible for grants under the Act, the respon sible Federal agency must hold a public hearing in that State at least 180 days prior to the proposed action concerning the effect of that action on land use, taking into account the requirements of the Act. The findings of the responsible Federal agency and the comments of the Secretary of the Interior, and, where appropriate, of the Secretary of HUD, must be made part of the statement required by section 102 (2) (C) of the National Environmental Policy Act. This requirement is subject to exception upon determination of the President that the interests of the United States so require. (Subsection (b ).)

n o t e : t h e i s s u e o f “ c r o s s - o v e r ” s a n c t i o n s It will be recalled that S. 3354 and S. 632, earlier versions of S. 268 reported by this Committee in former Congresses (and, in the case of S. 632, passed by the Senate) did contain sanctions which affected other Federal programs. An amendment to add a similar sanction to S. 268 was offered and then withdrawn by the Chairman. Instead, the Chairman announced that he ivould offer the amendment on the Senate floor for full Senate consideration. The Chairman gave the following reasons for withdrawing the amendment: The decision to defer consideration of sanctions enabled the Committee to focus its markup efforts on the substantive requirements of the bill. Furthermore, it placed the discussion of the sanction in the proper forum—the full Senate—where the inter-jurisdictional ramifications can be fully debated by all interested parties.49 Several Committee members requested that the full legislative back ground of the sanctions be provided in the report. The background is as follows: The sanctions to be applied to States which fail to develop State land use programs or otherwise establish their continued eligibility for grants have been perhaps the most controversial aspect of the land use policy bills of the last three Congresses. The first land use policy proposal, S. 3354, introduced on January 29, 1970 by Senator Jackson, contained the traditional sanction of termi nation of any financial assistance extended under the bill for State failure to adhere to the bill’s guidelines and requirements or to enact State implementing legislation. In addition the first “cross over” sanction (i. e. a sanction which affects other Federal programs) pro vided that upon the termination of financial assistance to a State, or should such State not prepare an “acceptable Statewide Land Use Plan,” by the beginning of the fourth fiscal year after enactment such State will:

4n Speech by Senator Henry M. Jackson at a conference entitled “Conservation and Development : Grounds for Compatibility” sponsored by the Task Force on Land Use and Urban Growth, Smithsonian Institution. Washington, D.C., May 24, 1973. 106

(1) have its entitlement to certain additional Federal as sistance programs, which shall be designated by the Presi dent, reduced at the rate of 20 per centum per year until such time as the provisions of this title are complied with, and (2) be denied the issuance of any right-of-way permits or other permits available under the public domain or other Federal laws to use or to cross the public domain or other Federal lands until such time as the provisions of this title are complied with. In S. 3354, as reported on December 14, 1970, the Committee re tained the traditional grant termination sanction, but substituted for the “cross-over” sanction the following: S e c . 315. (a) A fter the end of five fiscal years from the beginning of the first fiscal year after the initial issuance of regulations . . . implementing the provisions of this title, no Federal agency shall, except with respect to Federal lands, propose or undertake any new action or financially support any new State-administered action which may have a sub stantial adverse environmental impact or which would or would tend to irreversibly or irretrievably commit substantial land or water resources in any State which has not prepared and submitted a statewide land use plan in accordance with this Act. (b) Upon application by the Governor of the State or head of the Federal agency concerned, the President may tempo rarily suspend the operation of paragraph (a) with respect to any particular action, if he deems such suspension neces sary for the public health, safety, or welfare: Provided, That no such suspension shall be granted unless the State concerned submits [an acceptable] schedule ... for submission of a state wide land use plan: And provided further, That no sub sequent suspension shall be granted unless the State concerned has exercised due diligence to comply with the terms of that schedule. The principal differences between this cross-over sanction and the earlier one are: (1) it touched all new Federal actions which may have substantial adverse environmental impacts or irreversibly or irretriev ably commit substantial land or water resources, not just certain Fed eral assistance programs; (2) the actions would be stopped entirely— neither proposed nor undertaken—rather than simply reduced by 20 percent; (3) an escape clause was provided; and (4) the sanction would be invoked only for failure to submit a plan, not for failure to meet all the requirements of the Act. S. 632, introduced by Senator Jackson on January 26,1971, was vir tually identical to S. 3354, as reported, and, therefore, contained the substituted version of the cross-over sanction. S. 992, the Administra tion proposal introduced (by request) on February 17, 1971, did not have a cross-over sanction. (Both proposals contained the traditional sanction of termination of financial assistance extended under them.) On May 18,1971, the first day of hearings on S. 632 and S. 992, Sen ator Jackson, in comparing S. 632, his bill, and S. 992, the Adm inistra 107 tion proposal, made the following statement in response to testimony of Russell E. Train, Chairman of the Council on Environmental Q uality: I think this is one of the major differences . . . between the two bills. You rely on grant-in-aid incentives. We go a step further. We provide grant-in-aid, but we also pro vide that as to the future . . . no Federal agency shall undertake any new project [in a State] which does not have a land use plan.50 A colloquy followed:

Mr. T r a i n . But as I read the bill, Senator, it does not require that that land use plan be approved or conformed to any particular criteria. . . The C h a i r m a n . . . .although w e do require that it must be prepared and they must submit a statewide land use plan. We started out earlier, as you recall, to take away grant-in- aid funds on a passoff decision basis. But we felt that this was the minimum that we could insist upon in order to get the States to really plan their land on a statewide basis. . . . [TJhere is a real question in my mind whether simply provid ing for grant-in-aid funds is ample to induce the States to do this job... Mr. T r a i n . We agree that we are asking the State to under take and make a very difficult decision here. It is not going to be easy to do. Therefore, we agree that if they could be worked practically and appropriately, that some sort of penalty pro visions with respect to States that do not have qualified pro grams would be desirable. ... I simply want to say at this point that the Administra tion would b e happy to work with this Committee in trying to develop practical, appropriate teeth, if you will, in this program. The C h a i r m a n . I understand that. We will certainly work closely with you. . . .51 The following year, the Administration submitted an amendment to S. 992 which contained a cross-over sanction. The Administra tion-sponsored sanction adopted the approach of a percentage reduc tion in funds of certain programs originally taken in S. 3354. States found ineligible for grants after the deadline for submission of the State land use program (after three years from enactment) would suffer a reduction of funds from three programs over a three fiscal year period at a rate of 7% the first fiscal year, 14% the second year, and 21% the third year. The funds subject to withholding were to be: (a) funds for airport development provided for pursuant to the Airport, and Airway Development Act; (b) federal-aid highway funds other than funds for planning or research ; and (c.) funds from the Land and Water Conservation Act of 1965, as amended. In the mark-up of S. 632, the Committee chose to adopt the Admin

™ National Land Use Policy: Hearings on S. US2 and S. 992, Committee on Interior and Insular Affairs. United States Senate. May-.Tune 1072 (p. 92). 51 Ibid.. pp. 92 and 97. 108 istration sanction in an amended form. The differences between the sanction contained in S. 632, as reported on June 19, 1972, and the Administration sanction were: (1) the withheld funds were not to be permanently lost to the ineligible State. Rather they were to be held in escrow and, when the State again became eligible, returned to it. The opportunity for a State to recoup the funds if it comes into compliance with the act was regarded by the Committee as an “incentive on top of a sanction”. (2) funds for interstate highways were not to be withheld; only funds for primary and secondary highways. The Committee felt that to include the interstate highway funds would result in the punishing of the neighboring State for the misfeasance or nonfeasance of the ineligible State. (3) in accordance with the timetable of S. 632, the sanction would not be applied until after the fifth year. A discussion of the Committee-adopted sanction was provided in the report on S. 632 (Report No. 92-869, p. 30) : The three . . . programs were carefully chosen. Two of them—the development program of the Airport and Airway Development Act and the primary and secondary (not Inter state) Federal-aid highway programs—were selected be cause of their extraordinary impact upon land use patterns and the urbanization they generate. Absent the coordination of plans for these highways and airports with State land use programs which meet the requirements of the Land Policy and Planning Assistance Act, the purposes of the act would be frustrated. To balance the withholding of these development funds and to insure that those who hold development in dis favor do not attempt to frustrate a State’s efforts to become eligible in order to force the invocation of the sanctions and inhibit such development, the third grant-in-aid program to which the sanctions would apply would be the Land and Water Conservation Fund. At the direction of the Chairmen of the Committees on Interior and Insular Affairs, and Public Works, staff members of the two met and developed an alternative sanction which was introduced on the floor of the Senate as part of a package of amendments jointly spon sored by the two Chairmen—amendments which resolved certain jurisdictional questions raised in conversations between the two Com mittees. The alternative sanction was similar to the sanction in S. 632. as introduced. The principal difference was that the freeze on new Federal activities would occur even should a State submit a State land use program if that program fails to meet the requirements of the Act. The sanction read as follows: Sec. 307(b)(1) A fter five fiscal years from the date of enactment of this Act, no Federal department or agency shall, except with respect to Federal lands, propose or under take any new action, financially support any new State- administered action, or approve any loan or loan guarantee which might have a substantial adverse environmental impact 109

or which would significantly affect land use in any State which has not been found eligible for grants pursuant to this Act. Such actions shall be designated in the guidelines promulgated pursuant to section 502 of this Act. (2) Upon application by the Governor of the State or head of the Federal department or agency concerned, the President may temporarily suspend the operation of para graph (1) of this subsection with respect to any particular action, if he deems such suspension necessary for the public health, safety, or welfare : Provided, That no such suspension shall be granted unless the State concerned submits a sched ule, acceptable to the Secretary, for meeting the requirements for eligibility for grants pursuant to this Act: And 'provided further, That no subsequent suspension shall be granted un less the State concerned has exercised good faith efforts to comply with the terms of such schedule. However, during Senate consideration of S. 632 on September 19, 1972, an amendment introduced by Senator Hansen, deleting all cross over sanctions, prevailed on a voice vote. On January 9, 1973, Senator Jackson introduced S. 268. S. 268, as introduced, was virtually identical to S. 632 in the form in which it passed the Senate. Thus, S. 268 did not provide for any cross-over sanction. In introducing S. 268, Jackson stated : As is well known, I was and remain opposed to two success ful amendments striking the sanctions from the act and re ducing the funding by two-thirds. . . . Therefore, although the proposal I introduce today is virtually identical to the Senate-passed measure, the commit tee will hold hearings early in February where . . . the cri tical questions of funding and sanctions can be fully explored. S. 924, the Administration proposal, introduced (by recpiest) on February 20, 1973, contains the same sanction which the Administra tion proposed as an amendment to S. 992. (Included in both proposals is the traditional sanction of termination of financial assistance ex tended under them.) Underlying all these cross-over sanction proposals is the belief that Federal programs which stimulate alterations—sometimes massive and sudden—in land use patterns should not proceed unless sound plan ning and land use controls are in effect to minimize any adverse land use, environmental and urban service impacts which otherwise would result absent such planning and controls.

T i t l e III —A dministration * o f L a n d U s e P o l ic y Title III contains the provisions concerning Federal administra tion of the programs to be established by the Act. In recognition of the ubiquitous nature of land and, thus, the multijiirisdictional rami fications of any legislation concerning decisionmaking on the use of land, guidelines for S. 268 are to be promulgated through an inter agency process with the principal responsibility of formulating those guidelines residing in the Executive Office of the President. By pro-

9 5 -7 3 4 0 - 73-8 110 viding for Executive Office determination of guidelines, the Commit tee believes that those guidelines will not suffer the burden of bearing the specific biases of any particular line agency. However, the pro posal does provide for several grant-in-aid programs of major dimen sions which do require administration by line agency personnel. This daily administrative responsibility is given to the Department of the Interior. To insure the absence of the mission-oriented influence of any existing office or bureau in the administration of S. 268, a new Office of Land Use Policy Administration, separate from any such office or bureau, would be created within the Department. Certainly, the land use impacts of Federal and federally assisted programs exert the most profound influences upon local, State, and National land use patterns. Yet either these programs have conflicting land use implications or the Federal officials administering them are not fully cognizant of their land use impacts. The Act requires the Federal Government to “put its own house in order” at the same time that it asks the States to do likewise. The Secretary of the Interior is directed to consult with heads of other agencies and to form an In teragency Advisory Board on Land Use Policy to provide interagency communication concerning the land use impacts of and policies em bodied in Federal and federally assisted programs. Again, to insure that no single line agency can impose its wishes on a State and inhibit State land use decisionmaking, the State land use programs would be reviewed in an interagency process involving the heads of all the agencies represented on the Interagency Advisory Board. Particular review authority is given to the Secretary of the Interior, the Secretary of Housing and Urban Development, and the Administrator of the Environmental Protection Agency. Finally, no State could be declared ineligible unless a judgment of ineligibility is concurred in by a three-member (a Federal official, a Governor, and an impartial citizen) ad hoc hearing board established in the Office of the President.

PART A GUIDELINES, RULES AND REGULATIONS

GUIDELINES Section 301 The Executive Office of the President is directed to issue guidelines to the Federal agencies and to the States to assist them in carrying out the requirements of this Act. Prior to formal issuance, proposed guide lines (and any subsequent revisions) must be submitted to the Secre tary of the Interior, the Interagency Board on Land Use Policy (estab lished under section 305), the heads of agencies represented on the Board, and representatives of State and local governments, and must consider any comments submitted by them on the proposed guidelines.

ADMINISTRATION RULES AND REGULATIONS Section 302 In this section the Secretary of the Interior (hereinafter referred to as the “Secretary”) after consultation with State representatives, local officials, the Board, and heads of agencies represented on the Board, is directed to promulgate rules and regulations in order to I ll implement the guidelines formulated by the Executive Office of the President and to administer on a daily basis the programs established under S. 268. PUBLIC PARTICIPATION Section 303 This section requires that the public be informed of proposed guide lines under section 301 and proposed rules and regulations under sec tion 302 and that they be afforded an opportunity for public hearings so that the Executive Office and the Secretary may have the benefit of public participation before formal adoption of such guidelines, rules, and regulations.

PART B ADMINISTRATION OF PROGRAMS

OFFICE OF LAND USE POLICY ADMINISTRATION Section 30If, This section establishes the Office of Land Use Policy Administra tion in the Department of the Interior and provides that the Office will have a Director, appointed by the President with the advice and consent of the Senate, to be compensated at the rate provided for in level V of the Executive Schedule Pay Rate. Provision is made for the employment of other officers and staff as may be required to admin ister the Act- (Subsections (a) and (b).) The Office of Land Use Policy Administration is to support the activities of the State and local government in accomplishing the objectives of Sections 202, 203 and 204. Functions of the Office are centered on the need for providing uniformity in the collection, stor age and distribution of land use data and coordination of Federal agency activities related to the administration of the Act. Recognizing that numerous Federal and State agencies and private institutions have the expertise and are currently collecting land use information, it is intended that the Office will serve as a clearinghouse for the accumulation and dissemination of land use information and not have line responsibility for the inventory or collection of such data. The Office will also maintain continuing studies and analyses of land resources in the United States and their use and of methods adopted by the State and local governments to implement the requirements of the Act. Toward these ends, the Office will develop and maintain a Federal Land Use Information and Data Center to sequester and disseminate information resulting from the studies and analyses conducted by the Office and others. Regional centers may be established to facilitate the interchange of information where deemed appropriate. The Informa tion and Data Center will employ techniques based on the most ad vanced methodology and state of the art of land use data management and synthesis, including systematic analysis, modeling and computer technology. The Information and Data Center will also provide a focal point for tracking the status of Federally initiated and assisted activities which may impact land use, and to the extent feasible, other State and private developments which may similarly affect land use. Operation of the Information and Data Center will emphasize the 112 need for anticipating the impact of future developments in the earliest planning stage. The Federal Land Use Information and Data Center will conduct studies to explore new techniques and devices for the pro curement, analysis and evaluation of information on land use planning and management. It is expected that the activities of the Center will relieve the States of some of the costs involved in developing their statewide planning processes (as required in section 202). The Office of Land Use Policy Administration will also administer the grant-in-aid programs to the States (Sec. 201 and 205) and pro vide administrative support for the Interagency Advisory Board on Land Use Policy (Section 305). (Subsection (c).)

INTERAGENCY ADVISORY BOARD ON LAND USE POLICY Section 305 As noted previously in this report, activities and programs of the Federal government have often exacerbated existing problems in land use planning and management. This is due to the largely unintended and often conflicting land use impacts of those activities and pro grams. Interagency communication on land use matters is a first step toward minimizing the adverse effects of such programs and activities. This section is designed to facilitate such communication. It directs the Secretary to establish a National Advisory Board on Land Use Policy (hereinafter referred to as the “Board”), the prin cipal tasks of which are to: (1) increase the awareness of the Federal agencies concerning the impact of Federal programs on land use, (2) improve interagency communication, and (3) facilitate the inter agency review of State land use programs pursuant to Sec. 306. Serving on the Board is to be the Director of the Office of Land Use Policy Administration, acting as Chairman; representatives of twelve Federal departments and agencies which have programs with signifi cant land use impacts (Departments of Agriculture; Commerce; De fense; Health, Education, and Welfare; Housing and Urban Devel opment; Transportation; and Treasury; the Atomic Energy Com mission, and the Environmental Protection Agency; the Council on Environmental Quality; the Council of Economic Advisors and the Office of Management and Budget). Provision is made for the partici pation of representatives of other agencies when topics on the agenda of the Board may affect the jurisdiction or programs of such agencies. Each agency representatives must be a career employee at the level of GS-15 or above and must have regularly assigned duties for admin istering land use planning and policy within his agency. The agency representative is to have the following particular duties: —represent his agency on the Board. —assist in the coordination and preparation within his agency of comments on (1) guidelines, rules, and regulations proposed for promulgation pursuant to sections 301 and 302, and (2) the statewide land use planning processes and State land use pro grams, as part of the interagency review process. —assist in the dissemination of land use planning and policy information and in the implementation within his agency of pol icies and procedures developed pursuant to this Act. 113

—and perform such other duties regarding the administration of land use planning and policy as the head of his agency may direct. The Board also must have two advisory members from State and local governments and one representative each from regional inter state and intrastate public entities. Advisory members are to be selected for two-year terms by a majority vote of the Board. The Board (which must meet regularly as the Chairman directs) is required to : —provide the Secretary with information and advice concern ing the relationship of the Act’s policies and programs to the programs of the agencies represented on the Board. —render advice to the Executive Office and the Secretary con cerning proposed guidelines, rules, and regulations (sections 301 and 302). —assist the agencies represented on the Board and the Secre tary in coordinating the review of statewide planning processes and State land use programs assisted under this Act. —and provide advice on land use matters referred to the Board by the Secretary. In addition, the Board is responsible for five studies on land use related subjects. First, the Board is required to maintain a continuing study of the impact on land use of Federal programs such as land management activities; construction programs; grant, loan, and guar antee programs; and tax policies. As noted elsewhere in the Report, too often Federal officials are unaware or do not understand the land use impacts of their activities. A prime purpose of this study is to provide that understanding to those officials. A second study concerns the multiple-licensing problem. During the hearings on S. 268, many witnesses aired a general complaint concern ing the mounting tide of inefficient, time-consuming, costly and often contradictory paperwork, procedures, requirements, and reviews which government has thrust in the way of their activities. The Committee believes that this complaint is legitimate and war ranted. However, the Committee also recognizes the difficulties inher ent in any attempt to reduce the licensing burden. Therefore, it adopted an amendment to S. 268 requiring the Board to conduct a two year study, and report to Congress the results thereof, “of means to reduce the number of, delays in obtaining, and conflicting require ments for, permits, licenses, and other governmental decisions which serve as prerequisites to proposed development activities, with par ticular emphasis on such permits, licenses, and procedures as are asso ciated with Federal programs”. This provision would constitute the first significant statutory recognition of the multiple licensing prob lem and would prepare the way for future Congressional action to mitigate that problem. A third study, which the Board must either conduct itself or con tract for under section 308, concerns environmental, social, and eco nomic impacts, and the forecasting of such impacts, of all public ac tions (not just Federal), including construction activities; grant, loan, or subsidy programs; zoning and other land management ac 114 tivities; and tax policies. Particular emphasis is to be given to the im pacts of various local assessment practices and other Federal, State and local tax policies, and the effects of land use controls on the rights of private property owners (for a discussion of this study please refer to “(f)” under “4. New Considerations Embodied in S. 268” in sec tion I). The Board must also conduct or contract for a study of the impact of current land and construction financing processes on land use patterns. Authority is also provided to permit the Board to undertake a study to determine the feasibility of developing a raw land price index similar to the Consumer Price Index. This study was endorsed in a re cent land use and growth policy study conducted by the National Academy of Sciences—National Academy of Engineers. The study, TJrban Growth and Land Development, contained the following rec ommendations : At present, no index comparable to the consumer price index is prepared either on a city-by-city or on a metropolitan area basis, which describes changes in raw land prices. A raw land price index would be a valuable tool to all levels of government desiring to understand and influence the land conversion process; such an index would also help make private decisions to sell, hold, or acquire land conform to more realistic expectations. In recommending federal funding to develop this index, we have not underestimated the methodological problems. Unlike many consumer items, comparable land sales are not easily defined. Further, market prices can be easily obscured by the use of complex debt instruments; also, trend data on particular sites are often of limited use given changing prop erty lines, difficulties in separating land value from building value, and varied local assessment practices. Such problems, however, appear amenable to study and the pay-off seems high.52

FEDERAL REVIEW AND DETERMINATION OF GRANT ELIGIBILITY Sec. 306 This section details the procedures for review of the States’ per formance to determine grant eligibility and continued grant eligibil ity. These procedures include an automatic appeals process from an original, negative finding. To insure interagency coordination on land use matters, to avoid any mission-oriented bias, and to draw on vari ous professional skills and expertise, the review is to be conducted on an interagency basis, coordinated by the Secretary of the Interior. During the first five fiscal years after enactment, before making a grant, the Secretary of the Interior must consult with and consider the views and recommendations of the heads of all agencies represented

52 National Academy of Sciences-National Academy of Engineering, Urban Growth and Land Development: The Land Conversion Process, W ashington, D.C. 1972 (p. 41). The study also recommended the research which the Board is directed to conduct on the impacts upon land use patterns of Federal, State, and local tax structures, property tax assessment practices, and current land financing processes. 115 on the Interagency Advisory Board (Section 304) and with the Board. (Subsection (a).) After five fiscal years from enactment, when the State land use pro grams have been prepared and submitted, the Secretary of the In terior, prior to making any grant to a State, must follow the same interagency review procedure. There is a thirty day time limit on sub mission of recommendations to the Secretary from tne various agencies. (One of the duties of the agency representative on the Board is to assist their agency heads in the review of State land use programs and, thus, help expedite the review process.) Furthermore, the Ad ministrator of the Environmental Protection Agency is required not only to submit his general recommendation but to declare whether he is satisfied that the State land use program is compatible with the Federal Water Pollution Control Act, the Clean Air Act, and other Federal laws controlling pollution over which the Administrator has jurisdiction. In addition, the Administrator must declare that those portions of the State land use program which will effect any change in land use during the next annual review period are in full com pliance with any standards, criteria, emission or effluent limitation, monitoring requirement, or implementation plans required by such laws. Because of his extra review responsibilities, the Administrator has a sixty day time limit for submission of his views to the Secretary of the Interior. The Administrator is deemed to be satisfied if his views are not submitted within that period. (Subsection (b).) The Secretary of Housing and Urban Development is required not only to submit his general recommendations but to declare whether he is satisfied with the large-scale development, urban development of land impacted by key facilities, and large-scale subdivision com ponents of the State land use programs. The Secretary of the Interior is not to determine grant eligibility unless the Secretary of HUD is satisfied that those components meet the requirements of the Act. The Secretary of HUD must also be satisfied that the State is participating in programs established pursuant to section 701 of the Housing Act of 1954, a pre-condition for obtaining grants under S. 268. Due to these extra duties, the time limit for the Secretary of HUD is sixty days. The Secretary of HUD is deemed to be satisfied if he does not communicate his views to the Secretary of the Interior within that period. (Subsection (c).) The Secretary of the Interior has a six month time limit in which to review the agencies’ recommendations and make a determination of grant eligibility or ineligibility. (Subsection (d).) States may revise their land use programs to the extent that they remain consistent with the requirements of the Act, provided that any significant revision is subjected to public hearings and the Secre tary of the Interior is notified of the change. The Secretary will make a temporary determination as to effect of the revision on the State’s eligibility under the Act, pending full interagency review of the State land use program. A determination of State grant ineligibility made by the Secretary of the Interior as a result of the interagency review is not final. Rather, upon such a determination, the President must order the establish ment of a three member ad hoc hearing board. The three members in- 11 6 elude: one knowledgeable, im partial Federal official, who is not a member of an agency represented on the National Advisory Board, selected by the President within thirty days after notification by the Secretary of the Interior of a determination of ineligibility; the Gov ernor of a State other than the one judged ineligible selected by the National Governors’ Conference within thirty days of notification by the Secretary (if the Governor appoints a representative this must be done within ten days of the appointment of the Governor) ; and a knowledgable, impartial citizen selected by the first two members within twenty days, of if they cannot agree, by the National Center for Dispute Settlement within twenty days thereafter. (Clause (1) of subsection (f).) The Secretary of the Interior must specify to the hearing board in writing the reasons for the determination of ineligibility. The hearing board is to hold whatever hearings and receive whatever evi dence it feels necessary and then specify in writing, spelling out its reasons, whether it finds the determination of ineligibility to be rea sonable. If the hearing board determines such a finding to be unreason able, the Secretary must find the State eligible for grants under the Act. If the hearing board concurs in the finding of ineligibility, the Secretary of the Interior must find the State ineligible. The hearing board is required to make a determination within ninety days of its appointment. (Clause (2) of subsection (f).) Compensation for members is to be fixed by the President at not greater than $150 per diem plus travel expenses and a per diem in lieu of expenses while traveling. The Exectuive Office of the President must provide administrative support for the hearing boards and the President is authorized to issue regulations concerning the boards. (Clauses (3) through (5) of subsection (f).) The Secretary of the Interior must bear the burden of proof in the Board’s consideration of a recommendation of ineligibility. The stand ard upon which a final determination of ineligibility may be made are: —in the case of ineligibility based upon the principal require ments related to the substance of the State land use programs (Section 402, concerning uses of adjacent non-Federal land con sistent with the use of Federal lands; section 505 concerning uses of adjacent non-Federal land consistent with the use of reserva tion and other tribal lands, and the 601 definition of the critical areas and uses of more than local concern to be included in the State land use programs), the State must have failed to make a good faith effort to comply with the requirements of the Act and reasonable regulations established under it. —in the case of ineligibility based upon the requirements of sub section 204 (1), concerning areas of critical environmental con cern of more than statewide significance, the determination of the national interest by the Secretary of the Interior must be rea sonable and the State must have failed to comply with the re quirements of the Act. —in the case of ineligibility based upon all other grounds, the State must have failed to comply with the requirements of the Act and reasonable regulations established under it. 117 Subsection (h) emphasizes that, as a condition of eligibility for grants under the Act, States are neither required to exercise nor pro hibited from exercising powers of eminent domain which would re quire the expenditure of State funds for compensation of property under the terms of the Fourteenth Amendment to the United States Constitution. Clearly, States are expected to exercise their constitu tional authority to regulate the use of land under the police power to its full extent in order to meet the requirements of the Act. Whether States have met the requirements of the Act in this respect will be strictly reviewed under the third standard set forth in subsection (g) above. (Subsection (h).)

PART D STUDY, RECOMMENDATION, AND CONGRESSIONAL CONSIDERATION OF LAND USE POLICIES Section 307 Debated within Committee, among the witnesses before the Com mittee, and on the Senate floor last year was the issue of whether sub stantive Federal land use policies should be provided in the Act. The Committee gave careful consideration to all the arguments for and against national land use policies. Particular weight was given to the lack of sufficient knowledge concerning or a consensus on either the feasibility or the substance of national policies; to the danger of administrative adoption, by inference or regulation, of na tional policies in the absence of Congressional action; and to the need, if such policies are determined to be appropriate, to formulate them sooner rather than later so as to give guidance to the States in develop ing their land use programs. (For a discussion of the arguments 'pro and con national land use policies, please refer to “ (a) ” under “4. New Considerations Embodied in S. 268'’ in section I.) As a result of its consideration, the Committee adopted section 307 which provides for a three year study of the feasibility and possible substance of national land use policies. The Council on Environmental Quality is to prepare the basic study; State and local governments are to prepare separate comments and include them in the annual reports to be submitted by the States in accordance with section 201 (e) ; public hearings are to be held; and the Interagency Advisory Board is to review the report and the hearings and “recommend to Congress such legislation as it may deem appropriate or necessary to establish na tional land use policies.” Twelve national policies are included in the Act and would be addressed by the several parties involved. The twelve policies a re : (1) insure that all demands upon the land—economic, social, and environmental—are fully considered in land use planning; (2) give preference to long-term interests of the people of the State and Nation and insure public participation as the best means to ascertain such interests; (3) insure the protection of the quality of the environment and provide access to a wide range of environmental amenities for all persons; (4) encourage the preservation of a diversity of environments, including man-made, working and living environments, and nat ural environments with diverse forms of wildlife and flora; 118

(5) protect open space for public use or appreciation and as a means of shaping and guiding urban growth; (6) give preference to development which is most consistent with control of air, water, noise, and other pollution and pre vention of damage to the natural environment; (7) insure that development is consistent with the provision of urban services, including education; water, sewer, and solid waste facilities; transportation; and police and fire protection; (8) insure the timely siting of development, including key fa cilities as defined in section 601, necessary to meet national or regional social or economic requirements; (9) encourage the conservation and wise use of energy and other natural resources and insure the supply of such resources to meet demonstrable demand based upon such conservation and use; (10) preserve the sustained yield quality of renewable resource lands as defined in section 601; (11) preserve and protect fragile and historic lands as defined in section 601; and (12) protect life and property in natural hazard lands as de fined in section 601. The Committee believes that this study will generate the neces sary knowledge and, if not establish a consensus, at least focus the issues sufficiently to allow a Congressional determination of whether national policies are appropriate and, if so, what they should be. This approach would insure that any such policies would be developed only by Congress and, if developed, would be made available early enough so that the States could incorporate them in their planning efforts.

PART E— TRAINING AND RESEARCH GRANTS AND CONTRACTS Section 308 Innovative approaches to land use planning and control will be nec essary to support the activities of the States m implementing the Act. Land use planning and policy development must by definition be an interdisciplinary venture. The need for research into systems of data management and synthesis, as well as the development of predictive capabilities needed to anticipate the secondary effects of human activ ities is apparent. Toward meeting this need, the Secretary of the Interior is author ized to make grants to public and private nonprofit institutions of higher education to establish and continue comprehensive research and training in land use planning and management. Preference will be given to institutions of higher learning which possess a cadre of trained, capable personnel. Contracts may also be entered into with public nonprofit institutions or private firms to conduct applied re search on problems of land use planning and management. The Secre tary may also fund activities designed to train or sharpen the skills of personnel employed in land use planning and management agencies. Such activities may include conferences, short courses or fellowships for advanced training at the graduate level. 119

T i t l e I V — F e d e r a l -S t a t e C oordination a n d C o o p e r a t io n i n t h e P l a n n i n g a n d M a n a g e m e n t o f F e d e r a l a n d A d j a c e n t N o n - F e d e r a l L a n d s This title addresses a particularly divisive, difficult, and chronic land use conflict: that between the use of Federal lands and the use of adjacent non-Federal lands. The title requires a degree of compatibility between the uses of Federal lands and the uses of adjacent non-Federal lands and provides a mechanism and procedures for resolution of gen eral and specific conflicts between the planning and management of Federal lands and adjacent non-Federal lands. In the Ninety-second Congress, the Committee considered the ques tion of whether to attach a public lands title to the national land use policy legislation (then S. 632). However, upon the understanding that the public land policy proposals then pending before the Com mittee would receive full consideration following the reporting of S. 632, it was the consensus of the Committee that such a title should not be added to the legislation. It was the opinion of the Committee that the public land policy proposals were sufficiently complex and far-reaching to warrant separate consideration. (The National Re- source Lands Management Act was subsequently reported by the Com mittee, but did not reach the floor.) Both Senator Jackson’s and the Administration’s public lands policy proposals are again pending be fore the Committee. Furthermore, the Committee felt that to attach a public lands title to the legislation would have had the effect of en couraging the improvement of two very different planning systems (the Federal system for Federal lands and the State and local sys tem for non-Federal lands) without assuring resolution of the con flicts between the two systems. This is not to say, however, that the Committee felt that development of mechanisms for coordination of the two systems Should await the separate consideration of the public land policy proposals. Rather, title IV was specifically added to the legislation by the Committee last year to provide such mechanisms to insure better coordination and early resolution of conflicts between planning and management of Federal lands and planning and regula tion of adjacent non-Federal lands. Only minor changes in the title were made by the Committee this year.

PLANNING AND MANAGEMENT OF FEDERAL LANDS Section Ifil This title contains two requirements for compatibility between the planning and management of Federal lands and non-Federal lands. First, the Federal land management agencies must coordinate (ex cept where “paramount national policies, programs, and interests” justify the lack of coordination) their programs, policies, rules, and regulations for the Federal lands with State land use programs (as they relate to non-Federal lands adjacent to Federal lands) which meet the requirements of the Act and with State and local land use inven tory, planning and management activities on or for adjacent non- Federal lands. (Subsection (a).) Any Federal agency proposing any new program, policy, rule, or regulation relating to the Federal lands must publish a statement concerning the consistency (or the reasons for 120 the inconsistency) of the proposal with State and local land use plan ning and management for adjacent non-Federal lands thirty days prior to the taking effect of the proposal. Furthermore, except where otherwise provided by law, a public hearing on the proposal must be held at least seven days prior to final publication of the statement. (Subsection (b).) STATE LAND USE PROGRAMS Section 402 Second, the States, in their State land use programs, must possess, and make good faith efforts to apply, methods for insuring that Federal lands, particularly National Parks, wilderness areas, and game and wildlife refuges, are not significantly degraded by inconsistent land use patterns in the same immediate geographical area (such as unsightly strip developments on the borders of national parks or water and air polluting industry directly upstream or upwind from wildlife refuges). The section 306 procedures for determining grant eligibility apply to this additional requirement for State land use programs.

AD HOC FEDERAL-STATE JOINT COMMITTEES Section 403 This section provides a means for resolving intergovernmental con flicts concerning adjacent Federal and non-Federal lands where the mechanisms of sections 401 and 402 fail to assure full coordination between Federal and non-Federal land use strategy. Ad Hoc Federal- State Joint Committees are to be established by the Secretary of the Interior, at his discretion or upon the request of the Governor of any State involved, to consider and make recommendations concerning the resolution of generic and specific conflicts between planning and man agement of Federal lands and adjacent non-Federal lands. It is ex pected that most conflicts over the uses of Federal lands and adjacent non-Federal lands are not of sufficient magnitude or difficulty to war rant the establishment of these committees and the undertaking of procedures outlined below. However, the very existence of the mandate to create these committees, particularly at the request of a Governor, serves as an “action-forcing” device to encourage early resolution of those minor conflicts. Furthermore, this mandate provides, for the first time, a process to resolve the more significant land use conflicts which had previously not been resolved, in part, for lack of such a process. Each joint committee must include representatives of the Federal agencies which have jurisdiction over the Federal lands involved, representatives of the private landowners involved and affected user groups, including recreation and conservation interests, and officials of local governments. The Secretary of the Interior must consult with the State and local governments involved prior to appointing local officials and representatives of the landowners and user groups. The Governor of each State appoints the officials of affected State agencies. (Subsection (a).) Each joint committee has a life span of two years, with one two- year extension possible. The limited existence of the committees is to insure that they do not lose their focus and succumb to self-perpetu 121 ating make-work or revert into a general advisory committee status. (Subsec. (b).) Members of joint committees may be compensated at the rate of $100 per diem and travel expenses, including a per diem in lieu of sub sistence, while traveling. However, only the travel expenses may be paid to full-time Federal or State officials. (Subsec. (c).) The joint committees are to have the services of professional and clerical staff and an executive secretary. (Subsec. (d).) The specific duties of any joint committee are to be assigned by the Secretary of the Interior, in his discretion or upon the request of the Governor of any State involved. These duties may include: —conducting a study of, and making recommendations concern ing methods of resolving, general problems with and conflicts between inventory, planning, and management activities on or for Federal lands and on or for adjacent non-Federal lands, including, where relevant, the State land use programs; —investigating and making recommendations concerning specific conflicts between planning and management of Federal lands and of adjacent non-Federal lan d s; —assisting the States and the Office of Land Use Policy Admin istration in developing systematic and uniform methods for col lecting, exchanging, and utilizing land use data; and —advising the Secretary, during the review of State land use programs, of opportunities for reducing potential conflicts and im proving coordination in the planning and management of Federal lands and adjacent non-Federal lands. (Subsec. (e).) Upon receipt of the recommendations of a joint committee, the Secretary of the Interior is directed to take any appropriate or neces sary action to minimize conflicts involving lands within his authority, to work with other Federal agencies to arrive at solutions for conflicts involving Federal lands within their jurisdictions, and, where he de termines the Executive Branch lacks the legal authority to resolve conflicts between planning and management of Federal lands and ad jacent non-Federal lands, to recommend enactment of appropriate legislation to Congress. (Subsec. (f).) Subsection (g) requires that the Secretary of the Interior, in taking or recommending action pursuant to the recommendation of a joint committee, give careful consideration to the purposes of the Act and, in particular, not resolve any conflict in a manner contrary to the requirements of the laws governing the management of the Federal lands involved. This provision serves notice that this title repeal, amend, modify, or supersede existing laws relating to the manage ment of Federal lands. Should the Secretary find that a conflict can only be resolved by amending existing Federal law, and should he believe an amendment is warranted, then he is to follow the procedure provided in clause (3) of subsection (f) : “recommend enactment of appropriate legislation to Congress.” The Committee, however, wishes to emphasize that the Secretary should not make wide interpretations of Federal laws in order to avoid his responsibility to resolve conflicts between the planning and management of Federal lands and of ad jacent non-Federal lands. (Subsec. (g).) 122

BIENNIAL REPORT ON FEDERAL-STATE COORDINATION

Section JfiJf, The Secretary of the Interior is directed to report biennially to the President and Congress concerning problems in, and recommendations for improvement of, the coordination of planning and management of Federal lands and of adjacent non-Federal lands, the resolution of specific Federal lands—adjacent non-Federal lands conflicts, and, at the request of the Governor of any State involved, any unresolved conflict, with any recommendation he and the Governor or Governors may have for its resolution.

PUBLIC PARTICIPATION Section 405 This section provides that an opportunity for hearings be afforded the public by the joint committees in the States where conflicts exist; and where no hearings are held, provides for solicitation of the views of all affected parties by the joint committees and a submission of sum maries of such views together with the committees’ recommendations to the Secretary of the Interior. The Secretary is directed to review in full the relevant hearing record or summary of views, and may hold public hearings, prior to making any recommendations or taking any actions to resolve a particular conflict.

AGENCY ASSISTANCE Section 406 In addition to the staff support provided a joint committee by sec tion 403, the committee may request information and personnel from any Federal department or agency which it deems necessary to per form its assigned functions. The committee must reimburse an agency for the cost of providing information and personnel.

T i t l e V — L a n d U se P r o g r a m s fo r R e s e r v a t io n a n d O t h e r T r ib a l L a n d s In many western States, where Indian reservation and other tribal lands are interspersed with Federal and privately-owned lands, coordi nated land use planning cannot be accomplished. The reason is the absence of planning and management activities on most Indian land. The States and local governments do not possess legal authority to conduct such activities on Indian land. In an era when “self-determina tion” is espoused as an Indian goal, neither the Federal government nor the Indian people wish the United States government, in its role as “trustee” for such land, to assume the necessary planning and man agement responsibilities and thus make decisions for Indians which the Indians more properly should make for themselves. The committee believes that the Indian people are the rightful parties to plan Indian land. Unfortunately, the Indian people at this time lack the human and, more particularly, the financial resources to accomplish the task. Without planning and management of Indian land, however, it is difficult to protect scarce Indian natural resources and virtually impossible to coordinate the use of Indian land with the 123

use of adjacent Federal and non-Federal lands. Title V, therefore, is intended to provide Indian tribes, through a new grant program, with the resources necessary for them to develop land use programs for their land similar to the State land use programs required of the States. The title also provides a mechanism for coordinating the land use pro grams of Indian tribes with State land use programs and Federal planning for Federal lands.

GRANTS TO INDIAN TRIBES Section 501 This section contains the basic authorization for the Secretary of the Interior to make annual grants to any Indian tribe to assist such tribe in developing and administering a land use program for reserva tion and other tribal lands of such tribe. The terms “Indian tribe” and “Reservation and other tribal lands” are defined in section 601 (h) and (g) of the Act, respectively. The grants to the tribes may cover up to 100 percent of the costs of developing the land use program.

LAND USE PLANNING PROCESSES FOR RESERVATION AND OTHER TRIBAL LANDS Section 502 This section establishes the standards which must be met before the Secretary of the Interior may make a grant to an Indian tribe for the development of a land use planning process for the reservation and other tribal lands of such tribe. Because of the limited size of, lack of knowledge about, and largely undeveloped status of, Indian lands, a set of requirements similar to, but less stringent than, the Act’s require ments concerning statewide land use processes would be applied to the tribal planning efforts. In recognition of the fact that many Indian tribes are unfamiliar with land use planning processes, and may not be advised by counsel on a regular basis, no deadline is established under the Act for beginning such processes. The Secretary, however, is required under section 509 to make the benefits of title V known to all Indian tribes within one year after the date of enactment; and, once land use planning processes have started, the tribes must assume interim land use controls at least over their border areas under section 505(c) within five years thereafter.

LAND USE PROGRAMS FOR RESERVATION AND OTHER TRIBAL LANDS Section 503 This section establishes the standards which must be met before the Secretary of the Interior may make a grant to an Indian tribe to assist it to develop and administer a land use program for its reservation and other tribal lands. Again, because of the limited size, and relatively undeveloped status, of Indian lands, a set of requirements similar to, but less stringent than, the Act’s requirements concerning State land use programs would be applied to the land use program of Indian tribes. In further recognition of the fact that many Indian tribes will encounter difficulties in completing the land use planning process and the land use program, this section gives each tribe five years after receipt of its first grant in order to develop or be in the process of 124

developing its land use program rather than five years after enact ment—the deadline for full development of the State land use programs. Subsection 503(a) (4), as a condition for further grants, requires a tribe to demonstrate good faith efforts to complete and implement its land use program. As a protection to any tribe when delay is caused for reasons beyond its control, the subsection provides that the “in ability of an Indian tribe to take any action the purpose of which is to implement the land use program, or any portion thereof, because such action is enjoined by the issuance of an injunction by any court of competent jurisdiction shall not be construed as failure by the tribe to demonstrate good faith efforts to implement the purposes, policies, and provisions of the land use program.” Section 503(b) provides that, in the implementation of its land use program, the governing body of each Indian tribe shall be author ized “to enact zoning ordinances or otherwise to regulate the use of the reservation and other tribal lands of such tribe, subject to the approval of the Secretary [of the Interior].” While existing law clearly appears to permit an Indian tribe, in its quasi-sovereign capac ity and in the exercise of local self-government, to exercise powers similar to those exercised by any State or municipal corporation in regulating the use and disposition of private property within its jurisdiction, the Committee thought it desirable expressly to set forth within the Act tribal zoning and other regulatory powers over reser vation and other tribal lands. Any concern that an Indian tribe might seek to adopt an unreasonable land use regulation is avoided by making zoning regulations subject to approval by the Secretary of the Interior. Moreover, assuming a tribal regulation were reasonable on its face, but was being enforced against either a member or a non-member of the tribe in an unreasonable manner, adequate remedies would be available under the Indian titles of the 1968 Civil Rights Act. 25 U.S.C. 1302. DEFINITIONS Section 50 1^ This section merely conforms the meaning of various terms defined elsewhere in the Act in relation to State land use program to fit within the framework of title V.

COORDINATION WITH STATE LAND USE PROGRAMS AND FEDERAL LANDS PLANNING Section 505 Section 505(a) provides that, to the extent that the laws governing the management of the Federal lands permit, all agencies of the Federal Government charged with responsibility for the management of Federal lands adjacent to reservation and other tribal lands subject to a land use program of a tribe which is eligible for financial assistance pursuant to this title shall control the use of such Federal lands so as to insure that such use is consistent with such land use program.” Similarly, section 505(b) provides that all “State and local govern ment agencies with authority to control the use of non-Federal lands adjacent to reservation and other tribal lands subject to a land use program of a tribe which is eligible for financial assistance pursuant 125 to this title shall control the use of such non-Federal lands so as to insure that such use is consistent with such land use program.” Section 505(c) provides the other side of the coin—that the “land use program prepared bv any Indian tribe pursuant to this title shall provide for control of the use of that portion of the reservation and other tribal lands which is adjacent to the exterior boundaries of the reservation and other tribal lands so as to insure that such use is con sistent with the use of Federal lands adjacent to the reservation and other tribal lands and the use of any non-Federal lands which are sub ject to a State land use program approved pursuant to this Act and are adjacent to the reservation and other tribal lands." In other words, while the Federal government and the States are to administer lands under their respective jurisdictions in a manner which is compatible with Indian land uses, by the same token Indian tribes may not permit the use of reservation and other tribal lands in a man ner inconsistent with the use of adjacent Federal and non-Federal lands. It is the intent of the Committee that the areas of potential land use conflict between Indian tribes, the Federal government and the States shall be held to the barest possible minimum. Therefore, the coordina tion features of this section are limited to “adjacent” lands. It is ex pected that “adjacent” lands will be interpreted to mean only narrow “buffer zones” along mutual boundaries. Since Indian lands are today relatively undeveloped in comparison with neighboring non-Federal lands, and in view of their relatively small size, the buffer zone on res ervation and other tribal lands should be restricted to the smallest area necessary for protection of land uses on adjacent Federal and non-Federal lands. Moreover, since the States in all likelihood will complete their land use programs before most Indian tribes have com parable programs, it is expected that the States will exercise restraint to insure that the portions of their State land use programs which re lates to lands adjacent to reservation and other tribal lands will not place unreasonable limitations upon the use of Indian lands. Finally, section 505(c) provides that, if no land use program is pre pared after the five complete fiscal year period following the first grant to any Indian tribe, the tribe must assume interim control of that por tion of the reservation and other tribal lands which is adjacent to the exterior boundaries of the reservation and other tribal lands so as to fulfill the requirement that appropriate protection be given adjacent Federal and non-Federal lands.

CONFLICTS RESOLUTION Section 506 This section provides that consistency of uses could be enforced through suits by the Federal government, a State or an Indian tribe in the district court of the United States for the jurisdiction in which the lands in question are located. In accordance with the terms of section 505 of the Act, except in unusual cases, it is expected that any such suits wmuld be limited to uses in the “buffer zone” areas on either side of mutual boundaries.

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TRIBAL PROPERTY REQUIREMENTS Section 507 This section provides that any Indian tribe which is receiving or has received a grant pursuant to title V must report annually to the Secretary of the Interior on activities undertaken by the tribe pursuant to the Act. REPORT OF THE SECRETARY Section 508 This section provides that the Secretary of the Interior must report annually to the President and the Congress on all actions taken in furtherance of title V and on the impacts of all other programs or services to or on behalf of Indians on the ability of Indian tribes to fulfill the requirements of the Act.

ANNOUNCEMENT OF PROGRAM Section 509 This section takes into account the general lack of information flow ing from agencies of the Federal government to Indian tribes by pro viding that, within one year of the enactment of the Act, the Secretary of the Interior must make known the benefits of title V to all Indian tribes, and, in so doing, make every effort to insure that the provisions of title V are fully understood by the tribes. The Secretary may fulfill this requirement by contract with any non-profit educational or service organization, and, on entering into any such contract or contracts, must give preferance to organizations which have as their primary responsibility service to Indians or education on subjects of Indian concern. This provision is important, given the limited knowledge which Indian tribes possess concerning government programs.

T i t l e V I — G e n e r a l

DEFINITIONS Section. 601 This section defines the following terms as they are applicable to the Act: (1) Secretary; (2) State; (3) general purpose local govern ment; (4) local government; (5) Federal lands; (6) non-Federal lands; (7) reservations or other tribal lands; and (8) Indian tribe. (Subsections (a) through (h).) In addition this section defines four of the five categories of areas and uses over which the State will be required to assert control. Sub sections (i)—(n).) Among the definitions are the following: The definition of “State” includes not only the fifty States, but also the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States. The definition of “general purpose local government” is any general purpose unit of local government as defined by the Bu reau of Census and any regional, inter-governmental, or other public entity which is deemed by the Governor to have author ity to conduct land use planning on a general rather than a strict ly functional basis. The definition of “Local government” is any 127

“general purpose local government” as defined previously or any regional combination thereof, or, where appropriate, any other public agency which has land use planning authority. The Act provides for participation by and technical assistance to all local governments. But, in accordance with the purpose of the Act to encourage comprehensive, balanced—not functional—planning, whenever levels of government below the State government are to be included in the important decisionmaking and financial as sistance activities in the Act, the language of the Act limits the governments involved to “general purpose local government”. To ensure the truly innovative interstate and intrastate planning en tities established in recent years do not find their positions eroded by this Act, the Governor can, by appointment, include them in the definition of “general purpose local government”. The definition of “Federal lands” includes all Federal land no matter how it was acquired and no matter what agency has re sponsibility for its management, except reservation and other tri bal lands as defined below. The definition of “non-Federal lands” is all lands which are not “Federal lands”, reservation and other tribal lands as defined be low, and which are not held by the Federal government in trust for the benefits of Indians, Aleuts, and Eskimos. “Reservation and other tribal lands” are defined as meaning “all lands within the exterior boundaries of any Indian reserva tion, notwithstanding the issuance of any patent, and including rights-of-way, and all lands held in trust for or supervised by any Indian tribe.” The first part of this definition is taken directly from the definition of “Indian country” set forth in 18 U.S.C. 1151 and is intended, as in the case of the Federal Criminal Code, to eliminate pockets of free-patented land inside Indian reser vations which might otherwise be subject to laws different from their surroundings. Similarly, the second part the definition, which includes “all lands held in trust or supervised by any In dian tribe,” is intended to cover lands which are Indian country for all practical purposes but which do not enjoy reservation status. The Committee recognizes that Indian tribal land use plan ning processes and programs would be largely meaningless if the tribes could not control key tracts within their reservations which they did not own or lands outside a reservation which they owned or for which they possessed administrative responsibility. The definitions which follow are those concerning the critical areas and uses of more than local concern which must be included in the State land use program. These definitions are purposely left incomplete in accordance with the purpose of the Act to improve the States’ ability to devise and implement their oivn land use policies. By further refining these definitions the States make the first basic policy decisions concerning the scope and the thrust of the State land use programs. Clearly, major policy decisions are involved in determining what is a “shoreline” (is it a shoreline of all bodies of water or only bodies of certain size? is it limited to relatively undeveloped shoreline? is its extent four hundred feet inland the water, four hundreds yards, or any land the use of which has a direct impact on the water ?); what are 128

“major recreational lands and facilities”; what are “issues of more than local significance in the judgment of the State.” Federal review of these policy decisions is limited to the standard provided in section 306(h)(1). The definition of “areas of critical environmental concern” is areas as defined and designated by the State on non-Federal lands where uncontrolled or incompatible development could result in significant damage to the environment, life or property, or the long term public interest which is of more than local significance. Such areas, subject to State definition of their extent, are to include: “Fragile or historic lands” where uncontrolled or incom patible development could result in irreversible damage to important historic, cultural, scientific, or esthetic values or natural systems which are of more than local significance. These lands include shorelands of rivers, lakes, and streams; rare or valuable ecosystems and geological formations; sig nificant wildlife habitats; and unique scenic or historic areas. “Natural hazard lands” where uncontrolled or incompatible development could unreasonably endanger life and property. These lands include flood plains and areas frequently subject to weather disasters, areas of unstable geological, ice, or snow formations, and areas with high seismic or volcanic activity. “Renewable resource lands” where uncontrolled or incom patible development which results in the loss or reduction of continued long range productivity could endanger future water, food, and fiber requirements of more than local con cern. These lands include watershed lands, aquifers and aquifer recharge areas, significant agricultural and grazing lands, and forest lands. Such additional areas as the State determines to be of criti cal environmental concern. This category is not designed to be a “no growth” category. Only uncontrolled development is unwanted. The adjective “in compatible” is present to make certain that development is to be allowed which is compatible with the basic environmental or renewable resources values or safety problems of the land in question. In short, multiple use, when planned, is clearly ex pected. Secondly, the category has been subdivided into sub categories to pinpoint the basic values of the land involved so as to better provide opportunities for development which can demonstrate its compatibility with such values. In an amendment relating the Coastal Zone Management Act to S. 268 the words “coastal wetlands, marshes, and other lands inundated by the tides, beaches, dunes and significant estuaries” were deleted from the definition of “fragile or historic lands.” Of course, a State is free to add these areas to its State land use program. However, the amendment makes it clear that the State need not do so, but rather can keep such areas separate and accountable only to the requirements of the Coastal Zone Management Act. Any conflicts should be reduced by the require ments of sections 202(b)(4), 202(c), and 203(a) (3) (j). 129

The definition of “key facilities” is public facilities, as deter mined by the State, on non-Federal lands which tend to induce development and urbanization of more than local impact, includ ing but not limited to : Any major airport designed to serve as a terminal for regularly scheduled air passenger service or one of State concern. Major interchanges between the Interstate Highway System and frontage access streets or highway; major interchanges between other limited access highways and frontage access streets or highways. Major frontage access streets and highways, both of State concern. Major recreational lands and facilities. Major facilities on non-Federal lands for the develop ment, generation, and transmission of energy. (These facilities include such facilities as major powerplants, transmission lines, oil and gas pipelines, refineries, tank farms, etc. However, not included in this definition are any facilities for the extraction of fuels, such as those associated with oil and gas drilling, strip or shaft min ing, etc.) The definition of “Large scale development” is private develop ment on non-Federal lands which, because of its magnitude or the magnitude of its effect on the surrounding environment, is likely to present issues of more than local significance in the judgment of the State. In determining what constitutes “large scale de velopment” the State is asked to consider, among other things, the amount of pedestrian or vehicular traffic likely to be gen erated; the number of persons likely to be present; the potential for creating environmental problems such as air, water, or noise pollution; the size of the site to be occupied; and the likeli hood that additional or subsidiary development will be gen erated. The definition of “Land sales or development projects”, “pro jects”, or “project” means any of the activities set forth below which occur ten miles or more beyond the boundaries of any standard metropolitan statistical area or of any other general purpose local government certified by the Governor as possessing the capability and authority to regulate such activities: —the partitioning or dividing into fifty or more lots for sale or resale primarily for housing purposes within a period of ten years of any tract of land, or tracts of land in the same vicinity, owned or controlled by any developer. —the construction or improvement primarily for housing purposes of fifty or more units within a period of ten years on any tract of land, or tracts of land in the same vicinity, owned or controlled by any developer, including the con struction of detached dwellings, town houses, apartments, and trailer parks, and adjacent uses and facilities, whatever their form of ownership or occupancy. —such other projects as may be designated by the State. 130

The definition of “Developer” is any person or persons who directly or indirectly, through any formal or informal combina tion or aggregation, own or control a tract or tracts of land for which such person or persons propose a “project” as defined previously. The definition of “Person” includes any individual, partner ship, corporation, association, unincorporated organization, trust, estate, or any other legal or commercial entity, except Federal, State, or local government agencies. The purpose of the last three definitions is to focus on the size and nature of the project rather than on ascertaining the precise individual or organization which is the “developer.” First, the definition of the project insures that it is of a size which would have significant impacts upon the environment and urban serv ices. Second, it provides that the State develop a program for those projects only in remote, rural or other areas where local govern ment is ill-equipped to regulate the projects itself. The next two definitions are designed to make certain that individuals cannot establish dummy corporations, trusts, or otherwise organize in a manner to avoid the size and time period limitations of the defini tion of “projects” (such as using an organizational arrangement to hide the separating of tracts into two areas comprising more than twenty-five, but less than fifty, units, the selling or develop ing of two such tracts which are functionally interrelated but separated by a short distance; selling or developing one such tract, waiting a few years, and developing a second tract). The Commit tee expects the States to fully exercise their authority to enjoin attempts to evade these definitions.

BIENNIAL REPORT OF THE SECRETARY Section 602 A report must be prepared every two years by the Secretary of the Interior with the assistance of the Office of Land Use Policy Admin istration and the Interagency Advisory Board on Land Use Policy. The reports must appraise Congress and the President on land re sources, uses of land and current and emerging problems of land use. Findings of the studies made by the Office and Board as provided in sections 304 and 305 are to be included in the report along with an evaluation of the effectiveness of each State land use program.

UTILIZATION OF PERSONNEL Section 60S Federal agencies are authorized to provide information and tem porarily assign personnel on a reimbursable basis to the Office of Land Use Policy Administration at the request of the Secretary of the Interior. TECHNICAL ASSISTANCE Section 60If. This section authorizes the Office of Land Use Policy to provide, directly or through contracts, grants, or other arrangements, technical assistance to any State or Indian tribe eligible for grants under the Act. 131

HEARINGS AND RECORDS Section 605 Authority is granted to the Director of the Office of Land Use Policy Administration, with the concurrence of the Secretary of the Interior, to hold hearings and accept testimony under oath for the purpose of carrying out the purposes of the Act. Information, testimony and records of the Office will be available to the public within the limits permitted by the Freedom of Information Act.

ALLOTMENTS Section 606 Grants to the States pursuant to part A of Title II are to be in amounts not to exceed ninety percent of the cost of developing the State land use programs for the first five fiscal years after enactment and in amounts not to exceed two-thirds of the estimated costs of administering the programs for the next three fiscal years. (Subsection (a).) Grants under Part B of Title II will be funded up to 90 percent of the cost of coordinating State and local land use planning and asso ciated activities for implementing land use policies in interstate areas. (Subsection (b).) The allocation of grant funds pursuant to title II is to be made on the basis of regulations of the Secretary of the Interior which must take into account the amount and nature of each State’s land resource base, population, pressures resulting from growth, land ownership patterns, extent of areas of critical environmental concern, financial need, and other relevant factors. It is expected that the regulations will be sympathetic to the greater financial need of States which sub mit their State land use programs before the five year deadline. “Land ownership patterns” and “extent of areas of critical environmental concern” are to reflect the greater difficulties involved in attempting to plan for areas impacted by Federal or tribal lands or for environ mentally sensitive areas which require sophisticated studies to deter mine how best to protect the fragile values involved. (Subsection (c).) Any grants to States under title II of the Act must increase, and not replace State funds presently available for State land use planning activities. In addition, any grant under the Act must be in addition to, and may be used jointly with, grants or other funds available for land use planning surveys or investigations under other federally assisted programs. (Subsection (d).) Indian tribes which are declared eligible under Title V will be granted funds equivalent to the full estimated cost of developing and implementing land use programs for reservation and other tribal lands. (Subsection (e).) If a State delegates responsibility for administering portions of the State land use program under section 203, then, once it has pre pared and submitted its State land use program, the State must allo cate a portion of the grants received for implementing the program to the local government in proportion to the responsibility assumed by the local entity. (Subsection (f).) Funds provided under the Act may not be used for the acquisition of any interest in real property. (Subsection (g).) 132

FIN A N C IA L RECORDS Section 607 This section requires each State receiving funds pursuant to the Act to provide the Secretary with reports and evaluations containing information concerning the status, disposition and application of Federal funds and the operation of the statewide land use planning process or State land use program. State reports and evaluations must contain information required by the Secretary of the Interior as stipulated in regulations published in the Federal Register. The Secretary and Comptroller General of the United States must have access to such information sources and records needed to audit the disposition of funds granted to the States.

AUTHORIZATION OF APPROPRIATIONS Section 608 A sum of $100 million annually for each of the eight fiscal years after enactment is authorized to be appropriated to the Secretary of the Interior for grants to the States to assist them to develop state wide planning processes and develop and implement State land use programs. A sum of $15 million annually for each of the eight fiscal years after enactment is authorized to be appropriated to the Secretary of the In terior for grants to the States to carry out the purposes of section 205 concerning coordination of land use planning in interstate areas. (Subsection (b).) A sum of $2 million annually for each of the eight fiscal years after enactment is authorized to be appropriated to the Secretary of the In terior to carry out the research and training purposes of section 308. (Subsection (c).) A sum of $10 million annually for each of the eight fiscal years after enactment is authorized to be appropriated to the Secretary of the Interior for grants to Indian tribes to assist them to develop and implement land use programs for reservation and other tribal lands (Subsection (d).) A sum of $10 million annually for each of the five fiscal years after enactment is authorized to be appropriated to the Secretary of the Interior. After the end of the fourth fiscal year, the Secretary is di rected to review the programs established by this Act and submit to Congress his analysis and recommendations for amendments to the Act. (It is contemplated that the removal of the authorization of ad ministration funds after five fiscal years will trigger a careful analysis of the operation of this Act and provide an opportunity for any ap propriate amendments or revisions. The eight year termination date for authorization of grant funds would provide a second opportunity for review of the program after three years experience of implementing the State land use program s.) (Subsection (e ).)

FUNDING FORMULA : COASTAL ZONE MANAGEMENT ACT AND THIS ACT Section 609 This section is one of the amendments devised by the Committee at the request of Senators Magnuson and Hollings to insure that the 133

Coastal Zone Management Act of 1972, enacted into law by the Con gress last year, is not effectively repealed by Administration neglect and refusal to provide funds to establish its programs. The provisions were considered necessary when the Administration submitted a budget proposal for fiscal year 1974 which included a request of $20 million for the Department of the Interior in expectation of the enact ment of this Act and no request for funds to enable the Department of Commerce to implement the Coastal Zone Management Act which was already enacted into law. Subsection (a) of the section requires that all funds appropriated each fiscal year for grants to the States under S. 268 and under the Coastal Zone Management Act by fu lly apportioned for obligation by the Secretary of the Interior and the Secretary of Commerce, respectively. Subsection (b) gives recognition to the pending litigation over the authority of the Executive Branch to withhold funds appropriated by Congress. Subject to a clear judicial determination concerning such authority, the subsection directs that the following expenditure for mula be adhered to: All funds to be obligated for grants to the States under the two Acts in any fiscal year are to be combined and drawn upon for obligation to the grant programs by the two Secretaries in the same ratio as the funds for State grants appropriated that same fiscal year under on Act bear to the funds for State grants appropri ated that same fiscal year under the other Act. For purposes of ex ample only, if in fiscal year $100 million were appropriated for State grants under S. 268 and $25 million under the Coastal Zone Manage ment Act (CZMA)—a ratio of 4 to 1, and if the Administration with held funds to the point that $5 million were available under the CZMA and only $45 million were available under S. 268, then the two amounts would be combined for a total of $50 million and split for use in a 4 to 1 ratio identical to the 4 to 1 ratio of the appropriated funds. The result would be that the Secretary of the Interior would have $40 mil lion to expend and the Secretary of Commerce $10 million.

EXPENDITURE OF FUNDS : COASTAL ZONE MANAGEMENT ACT AND THIS ACT Section 610 This section, another amendment relating the Coastal Zone Manage ment Act to S. 268, has as its purpose prohibiting the use of the funds of one Act to avoid meeting the requirements of the other. It, in effect, provides that any coastal State, as defined by the Coastal Zone Management Act, which is found ineligible for grants under that Act must not expend any funds received under grants pursuant to S. 268 for planning in the coastal zone; likewise, the Coastal Zone Management Act is amended to prohibit any coastal States found in eligible for grants under S. 268 from expending funds received under the Coastal Zone Management Act on land use programs or planning outside of its coastal zone.

EFFECT ON EXISTING LAWS Section 611 This section contains the savings clauses. In particular, nothing in the Act is to be construed: —to expand or diminish Federal, interstate or State jurisdiction, 134 responsibility, or rights in the field of land and water resources planning, development, or control; to displace, supersede, limit, or modify any interstate compact or the jurisdiction or responsi bility of any legally established joint or common agency of two or more States, or of two or more States, a State, or a region and the Federal Government; or to limit the authority of Congress to authorize and fund projects (Subsection (a).) —to change or otherwise affect the authority or responsibility of any Federal official in the discharge of the duties of his office except as required to carry out the provisions of this Act (Sub section (b).) —as superseding, modifying, or repealing existing laws appli cable to the various Federal agencies which are authorized to develop or participate in the development of land and water re sources or to exercise licensing or regulatory functions in rela tion thereto, except as required to carry out the provisions of this Act; or to affect the jurisdiction, powers or prerogatives of the International Joint Commission, United States and Canada, the Permanent Engineering Board and the United States operat ing entity or entities established pursuant to the Columbia River Basin Treaty, signed at Washington, January 17,1961, or the In ternational Boundary and Water Commission, United States and Mexico (Subsection (c)). —to supersede, repeal, or conflict with the Coastal Zone Manage ment Act of 1972 (Subsection (d)). —to grant to the Federal Government any of the State’s con stitutional or statutory zoning authority (subsection (e)). —to authorize or require the termination of any trust responsi bility of the United States with respect to the Indian people (subsection (f)). —to delay or limit the adoption and vigorous enforcement by any State of standards, criteria, emission or effluent limitations, monitoring requirements, or implementation plans which are no less stringent than those required by the Federal Water Pollution Control Act, the Clean Air Act, or other Federal laws controlling pollution (subsection (g)). —to adopt any Federal policy or requirement which would pro hibit or delay State or local governments from exercising a greater degree of land use control than required by this Act over any area subject to State or local jurisdiction (subsection (h)).

VIII. EXECUTIVE COMMUNICATIONS

D e p a r t m e n t o f A g r ic u l t u r e , O f f ic e o f t h e S e c r e t a r y , Washington, B.C ., March 23,1973. Hon. H e n r y M. J a c k s o n , Chairman, Committee on Interior and Insular Affairs, U.S. Senate. D e a r M r . C h a ir m a n : This is in response to your request for a report on S. 268, a bill “To establish a national land use policy, to authorize the Secretary of the Interior to make grants to assist the States to develop and implement State land use programs, to coordinate Federal programs and policies which have a land use impact, to coordinate 135 planning and management of Federal lands and planning and man agement of adjacent non-Federal lands, and to establish an Office of Land Use Policy Administration in the Department of the Interior, and for other purposes.” The President’s Environmental Message to Congress, dated Febru ary 15, 1973, proposed comprehensive new legislation to stimulate land use controls. The President proposed a National Land Use Policy au thorizing Federal assistance to encourage the States, in cooperation with local governments, to protect land of critical environmental con cern, and to regulate the siting of key facilities such as airports, high ways, and major private developments. This proposal was submitted to Congress by the Secretary of the Interior and introduced in the Senate on February 20,1973 (S. 924). This Department has reviewed S. 268 and the Administration’s bill S. 924, each proposing establishment of a National Land Use Policy. While we concur with many of the objectives of S. 268, we strongly recommend enactment of S. 924 since it is specifically oriented to pres ent critical land use problems. The Office of Management and Budget advises that there is no ob jection to the presentation of this report and that enactment of S. 924 would be in accord with the President’s program. Sincerely, J . P h i l C a m p b e l l , Under Secretary.

E x e c u t iv e O f f ic e o f t h e P r e s id e n t , O f f ic e o f M a n a g e m e n t a n d B u d g e t , Washington, D.C., March 23,1973. Hon. H e n r y M. J a c k s o n , Chairman, Committee on Interior and Insular Affairs, U.S. Senate, New Senate Office Building, Washington, D.C. D e a r Mr. C h a ir m a n : This is in response to your request of January 24, 1973, for the views of the Office of Management and Budget on S. 268, the “Land Use Policy and Planning Assistance Act of 1973.” Enactment of national land use policy legislation is one of the high est priorities of this Administration. The President strongly recom mended such legislation in his Environmental Messages in 1971, 1972 and 1973. In its report to your Committee on S. 268, the Department of the Interior recommends against enactment of the bill and that the Ad ministration’s bill, S. 924, with the same title, be enacted instead. The Department’s report notes that the basic purpose of both bills is to encourage States to improve their land use planning and decision making processes and to exercise their basic authority to regulate land use in several important areas. The most significant differences be tween S. 268 and S. 924 are described in detail in the report. We concur in the views of the Department and, accordingly, recom mend enactment of S. 924 in lieu of S. 268. Enactment of S. 924 would be in accord with the program of the President. Sincerely, W il f r e d H. R o m m e l , Assistant Director for Legislative Reference. 136

F e d e r a l P o w e r C o m m is s io n , Washington, D.C. February 3,1973. Hon. H e n r y M. J a c k s o n , Chairman, Committee on Interior and Insular Affairs, United States Senate, Washington, D.C. D e a r Mr. C h a ir m a n : This is to acknowledge your request of Jan uary 24, 1973, for comments on S. 268 (Jackson et all), a bill: To establish a national land use policy, to-authorize the Secretary of the Interior to make grants to assist the States to develop and im plement State land use programs, to coordinate Federal programs and policies which have a land use impact, to coordinate planning and management of Federal lands and planning and management of adja cent non-Federal lands, and to establish an Office of Land Use Policy Administration in the Department of the Interior, and for other purposes. A report is being prepared and it will be submitted to you as soon as possible. Very truly yours, K e n n e t h F. P l u m b , Secretary.

U .S . D e p a r t m e n t o f t h e I n t e r io r , O f f ic e o f t h e S e c r e t a r y , Washington, D.C., March 26,1973. Hon. H e n r y M. J a c k s o n , Chairman, Committee on Interior and Insular Affairs, U.S. Senate, Washington, D.C. D e a r Mr. C h a ir m a n : This responds to your request for the views of this Department on S. 268 to be cited as the “Land Use Policy and Planning Assistance Act of 1973.” We recommend that S. 268 not be enacted but that the Administra tion's proposed bill, S. 924, with the same short title be enacted instead. S. 268 and the Administration’s proposal are very similar. Both are patterned on S. 632 as it was passed by the Senate in the 92nd Con gress. S. 268 contains relatively minor changes whereas the the Ad ministration’s proposal has a number of significant differences. The basic purpose of both bills is to encourage States to improve their land use planning and decisionmaking processes and to encour age the States to exercise their basic authority to regulate land use in several important areas. The compelling need for improvements in both areas should, by now, be apparent to everyone. Enactment of this legislation is one of the highest priorities of this Administration. Secretary Morton in his testimony before the Senate Interior and Insular Affairs Committee on February 6, 1973 emphasized that the Administration’s bill has no intent to undermine State and local au thority. Rather, the entire purpose of the bill is to require States to develop a process for asserting their authority and for building their planning capability. The Federal Government has no intention of second guessing State and local land use decisions. The most significant differences between S. 268 and S. 924 will be explained in some detail under separate headings below. 1. Data Collection and, Inventory.—S. 268 would direct a State to 137 develop a process for State-wide inventories and for collection of data on a State-wide basis. The Administration’s proposal would apply a similar requirement to areas of critical environmental concern, areas impacted by key facilities and development of land use of regional benefit. We believe the primary focus of any legislation should be upon the problem areas of land use and those most susceptible to degrada tion from inadequate planning and control. 2. Land Use Controls.—The essence of the Administration’s proposal in the 92nd Congress was the provisions which require States to exer cise their basic authority over land use decisions which have an impact beyond the immediate local unit of government in which the land is located. It requires the States, if necessary, to be able to override land use decisions made at this level if they have impacts beyond the limits of the local unit of government. An amendment to S. 632, adopted on the Senate floor last fall, casts doubt on this basic concept of the Ad ministration’s proposal. We, therefore, return in sections 202(a) (10)- (15) to the language of the Administration’s original proposal cover ing this point as preferable to section 303 (a) (2) of S. 268. 3. Cost Sharing Ratio.—Both bills provide for grants to States for five fiscal years following enactment and authorize the appropriation of $40 million for grants in the first two years and $30 million for grants in the next three fiscal years. The Adm inistration’s proposal pro vides, however, that the grants may cover up to 66%% of the costs for all five years while S. 268 provides for 66%% during the first two years and 50% thereafter. Although Ave had recommended the loAver Federal share as in S. 268 in the 92nd Congress, extensive discussions Avith State planning officials have noAv comnnced us that a larger Fed eral share will be necessary to cover start up costs and other early costs and thereby insure the success of the program in its later stages. 4. Penalties.—The Administration’s proposal provides that States which fail to establish eligibility for program management grants Avill have their entitlement to Federal funds for airport development, highAvay planning and construction and acquisition of recreation lands reduced by 7% in FY 1977. If such failure continues, the reduction will increase to 14% in FY 1978 and 21% in FY 1979. Funds so reduced shall be distributed to the other States. A provision for penalties Avas originally proposed by the Adm inis tration and Avas included in the bill as reported by the Senate Interior Committee in the 92nd Congress. Tt Avas deleted. hoAATe\7er, on the Sen ate floor. We belieA'e that the objective of improving the land use control de cisionmaking process at the State level is too important to rely on Federal grants alone. The location of airports, highAvays and recrea tion lands are poAATerful determinants of land use and deA’elopment patterns. Receipt of Federal funds for those facilities should be condi tioned upon the States undertaking to plan and regulate the land use pressures Avhich those facilities Avill stimulate. States AA’hich will not attem pt to control the groAvth AA’hich airports, highAvays and parks in duce should receiA’e less Federal funds Avith Avhich to construct those facilities than those States Avhich Avill control such groAvth. In addi tion, this legislation Avill require some States to make changes in the very delicate relationship betAAreen the States and their constituent local governments. In some States this is already taking place but in others

9 5 -7 3 4 0 - 73 - 10 138 it could prove a highly difficult task notwithstanding a genuine desire on the part of the State to do so. A strong sanction provision in the bill could enhance the States’ ability to accomplish the necessary inter nal changes. 5. Ad Hoc Hearing Board.—S. 268 provides in section 305(g) that if the Secretary denies a grant to a State, his decision can be reversed by an ad hoc hearing board composed of a State Governor, a Federal official and a private citizen. We strongly object to this provision. The grants are provided to encourage States to establish land use control and planning programs to meet the provisions of the Act. The Secre tary's discretion to deny grants is not absolute and is subject to judi cial review. To impose, in addition, a non-judicial review by an ad hoc board dominated by non-Federal interests is, we feel, an un precedented infringement on the authority of a Federal agency to administer a grant program. We have inserted a provision in section 406 which gives a State the right to a public hearing if it is deter mined ineligible for a grant. This is an effective means of protecting the State against arbitrary action without undermining the Secretary’s ability to implement a Federal law. 6. Development of Regional Benefit.—We endorse the statement made by Senator Jackson upon introduction of S. 268 that it should not be viewed as mission-oriented. Rather it should balance competing environmental, economic, and social values so as to avoid the mistakes of both thoughtless unplanned development and of unwarranted op position to beneficial development. A provision to promote beneficial regional development was a major feature of the Administration’s original proposal and was included in the bill reported by the Senate Interior Committee in the 92nd Congress. It was changed however, on the Senate floor. We have returned in our proposed bill, to our original language. 7. Collection of Planning Data.—The two objectives of this legisla tion—improving the States’ land use planning capability and their land use regulatory process—require different means of accomplish ment. We fear that S. 268 as drafted would require States to devote most of their funds to the preparation of inventories and projections leaving little money for the development of a regulatory process which may prove more difficult to achieve because it may require internal political adjustments. Therefore, rather than require that the States have completed the inventories and projections in order to qualify for further Federal grants, we would require simply that they develop a “method” for preparing the inventories and projections. 8. C ompensation for Restricted Fall Use and Enjoyment.—Section 303(f) of S. 268 provides that land owners may petition a court to determine whether a State prohibition “diminishes the use of prop erty so as to require compensation for the loss”. Since the right to petition for compensation for an unconstitutional denial of due proc ess would exist irrespective of section 303(f). that section could be construed as requiring compensation for any restricted use under the States’ land use program whether the restriction was constitutional or not. This undercuts a fundamental purpose of the bill which is to en courage States to use their regulatory authority to achieve land use objectives to the fullest extent permissible under the Federal and State Constitutions. 139 9. Office of Land Use Policy Adm inistration.—We have deleted the provision for an Office of Land Use Policy Administration since we feel that the internal organization of the Department should remain flexible, so that as programs change the organization can be modified as efficiency and other factors dictate. In fact, however, we now intend to administer this program through an office like that provided in S. 268. We have established an Oflice of Regional Planning whose primary functions during its year of ex istence has been to develop the capability to implement this legislation. This office will operate independently of the existing bureaus within the Department which have responsibilities for land or wTater resource management. 10. Consistency of State Programs.—Section 202(a) (6) of the Ad ministration’s proposal requires States to establish methods for assur ing that State and local programs and services which significantly affect land use are consistent with the State land use program. This is stronger than the language of section 302(a) (11) in S. 268 which simply requires methods for coordinating such programs and services. Since Federal projects and activities must be consistent with State land use programs it is appropriate to require no less of State and local projects. 11. Public Education.—True land use reform will not be accom plished without basic changes in fundamental attitudes. This will re quire a long term process of public education. We recognize explicitly the importance of public education in sections 202(a)(8) and 202(b)(5). 12. Advisory Board.—We have omitted the requirement that State land use agencies establish an advisory board (Section 302(b) (7) of S. 268). Advisory boards are more effective if their creation, composi tion and organization are left up to the Secretary rather than forced upon him by statute. 13. New C ommunities.—New communities are unique in that they offer the best opportunity to establish positive patterns of land use or to irrevocably condemn an area to negative patterns of development. The Administration’s proposal includes a requirement that States develop a policy for influencing the location of newT communities and specifically lists new communities in the definition of large-scale de velopment to insure that States will exercise control over their development. 14. Public Hearings on Eligibility for Grants.—Section 406(c) of the Administration’s proposal provides the right to a public hearing if a State is determined ineligible for a grant. In view of the important consequences that attach to the denial of grant eligibility we feel that a public hearing should be provided. 15. Federal-State Ad Hoc Joint Committees.—Section 403 of S. 268 would permit the establishment of one or a series of committees com posed of State and Federal agency representatives to assist in coordi nating the management of Federal lands and adjacent non-Federal lands within each State. Their duties would include advising the Secretary on problems associated with such coordination and acting as a forum for resolving disputes associated therewith. The Department believes that this would create unnecessary and 140 costly machinery to achieve a purpose which can be more efficiently accomplished through direct and informal contact between Federal and State agencies. Federal-State problems associated with the imple mentation of the proposed Act can be adequately communicated to the Secretary through existing channels. Other provisions of the Act re quiring the consistency of Federal activities with State land use pro grams would provide incentive to Federal agencies to establish the necessary consultation forums on a more informal basis. The Office of Management and Budget advises that there is no ob jection to the presentation of this report and that enactment of S. 924 would be in accord with the program of the President. Sincerely yours, J o h n C . W h i t a k e r , Acting Secretary of the Interior.

E nvironmental P r o t e c t io n A g e n c y , Washington, D.C., A pril 11, 1973. Hon. H e n r y M. J a c k s o n , Chairman, Committee on Interior and Insular Affairs, U.S. Senate, Washington, D.C. D e a r Mr. C h a ir m a n : I am pleased to respond to your request for comments on S. 268, the “Land Use Policy and Planning Assistance Act of 1973.” The Environmental Protection Agency strongly supports the objec tives of this bill, as Mr. John R. Quarles, Jr., stated in his testimony before your Committee on February 6,1973. We believe, however, that they can better be achieved by the legislation on this subject which the Department of the Interior has transmitted to the Congress and which has been introduced in the Senate as S. 924. S. 268 declares a Federal responsibility to undertake the develop ment and implementation of a national land use policy; and Federal policies to favor sound land use planning, management, and develop ment ; to assist State governments to develop and implement programs; to facilitate increased coordination of Federal programs and land planning and management; and to promote the development of sys tematic methods of land use data. The bill would establish a policy to encourage and assist the States to exercise their constitutional responsibilities for planning and man agement of land use; establish a grant-in-aid program to assist State and local government to hire and train personnel and establish pro cedures; and establish reasonable and flexible Federal requirements to guide the States, coordinate planning and management of Federal ac tivities and actions on Federal lands. Title II would establish the mechanisms to administer the law—an office of Land Use Policy Administration in the Department of the Interior, a National Advisory Board on Land Use Policy, and methods for interstate cooperation. The office would study land resources, co operate with the States in developing methods and classification for collection of data and develop and maintain a Federal Land Use In formation and Data Center, consult with other agencies to coordinate 141 their programs, administer the grant program, and provide support to the Advisory Board. The Board, on which Federal agencies with environmental interests would be represented, would provide the Secretary with advice on the relationship of policies, programs, and activities undertaken pursuant to the Act to their own programs; advise on guidelines; assist in the coordination of review of State processes and programs; and provide advice and reports on land use policy matters. The States would be authorized to coordinate their programs and activities with interstate agencies, and enter into appropriate interstate compacts. The Act would also authorize the Advisory Commission on Intergovernmental Relations to review interstate agencies to coor dinate their land use activities. Assistance to States to develop and administer land use programs is provided in Title III. Grants in the first three years, at a 66% percent Federal share, are provided to help States develop statewide land use planning processes. At the end of three years, the State must have a process which includes a resource inventory; demographic, economic, and environmental data; projections of land use for various purposes; an inventory of institutional and financial resources for land use plan ning and management; a method for inventorying and designating areas of critical environmental concern and those impacted by key fa cilities ; a method of identifying large-scale development and land use of regional benefit; provision of assistance for training programs; ar rangements for data exchange; a method for coordinating State and local activities affecting land use; consultation with other States; and public hearings and participation. In addition, the State must have a State land use planning agency which can develop and administer a program, has an interdisciplinary staff, can give priority to development of a data base, can coordinate its activities with other State planning and environmental regulatory activities; has the authority to conduct public hearings and rnakf- information available; and is advised by an advisory council. Grants in the fourth and fifth years are to be used to develop a State land use program. In order to be eligible for grants after five fiscal years following enactment, a State must have an adequate State land use program which includes a statewide land use planning proc ess. The program must include methods of implementation for: assur ing consistency with the State program of land use in areas of critical environmental concern and areas impacted by key facilities and of large scale subdivisions or other proposed large scale development of more than local significance; assuring that sources of air, water, noise, or other pollution will not be located where they will violate any applicable pollution standards or implementation plans; revising and updating the plan; assuring dissemination of information and public participation; and conducting a program in the coastal zone which will be coordinated with plans and activities under applicable Fed eral or State laws. To implement its program, a State may use implementation by local government with State criteria and administrative review, and/ or direct, State land use planning and regulation. The State must have authority to prohibit development inconsistent with its program in areas of critical environmental concern, those currently or potenti 142 ally impacted by key facilities, or those presently or potentially sub ject to development and land use of regional benefit, large-scale development, or large-scale subdivisions. The State’s method of imple mentation is to include an administrative appeals procedure for resolu tion of conflict over local and State decisions. There is a provision for suits by persons having legal interests in land the full use and enjoy ment of which the State has restricted or prohibited. In addition, in order to remain eligible for grants after five years, the State must: have included areas of critical environmental concern which are of major national significance; be demonstrating good faith efforts to implement its land use program; and have coordinated its land use program with planning programs of other State agencies, Federal and local governments, and other States and their localities where appropriate. State laws, regulations, and criteria affecting the program or areas, uses, and activities included in it must be in accord ance with this A ct; the land use program must have been reviewed and approved by the Governor; and the State must use procedures under the Demonstration Cities and Metropolitan Development Act and the Intergovernmental Cooperation Act for advising on the consist ency of Federal or federally assisted projects with the State program. Before he makes a grant in the first five years after enactment, the Secretary must consult with the National Advisory Board and with several other Federal agencies and consider their views. After that time, he must submit the State program to the same agencies for a thirty-day review. From the date of enactment, the Secretary may not make a grant unless the Secretary of Housing and Urban Develop ment is satisfied that the State process or program conforms to objec tives and planning of section 701 of the Housing Act of 1954, and meets the requirements of the land use act in certain other respects. After five years, the Secretary shall not make a grant unless the Administrator of the Environmental Protection Agency is satisfied that the State program complies with the goals of pollution control legislation which he administers, and that portions of that program which would effect changes in land use over the next year are in com pliance with requirements established under those laws. If the Secretary determines that a State is ineligible for grants, or that its eligibility should be withdrawn, the President is to establish an ad hoc hearing board to review that determination. Federal projects and activities significantly affecting land use are to be consistent with State land use programs except in cases of over riding national interest. Applicants for Federal assistance for activi ties with significant land use implications must submit to the agency to which they are applying for assistance a statement from the appro priate State official or office of the activity’s consistency with the State plan. Federal agencies are not to appprove projects in eligible States wThich do not conform to the State plan; in ineligible States, they are to conduct their activities in such a way as to minimize adverse environmental effects. If a Federal agency proposes an activity in an ineligible State more than five years from the date of enactment, it must hold a public hearing and make findings which are to be reviewed by the Secretaries of Interior and HUD. Title IV provides for “Federal-State coordination and cooperation 143 in the planning and management of Federal and adjacent non-Federal lands.” Agencies are to coordinate inventory planning, and manage ment activities on public lands with State and local activities affectino- adjacent non-Federal lands. They are to publish reports on the consist^ ency of their programs with those of the States and conduct public hearings. After the five year period following enactment, in order for a State to remain eligible for grants, the Secretary must be satisfied that its program includes methods for insuring that Federal lands within the State are not damaged or degraded as a result of incon sistent land use patterns, and must be demonstrating good faith efforts to implement them. The bill would establish ad hoc Federal-State Joint Committees to review jurisdictional conflicts and inconsistencies resulting from vary ing policies and requirements concerning Federal and non-Federal lands. These Committees could make general reports to the Secretary and investigate specific conflicts, and assist in development of sys tematic and uniform methods for collecting and utilizing land use data. Before making recommendations on resolution of conflicts, they would have to hold public hearings. The Secretary would be required to submit biennial reports on problems and coordination of planning and management of Federal and non-Federal lands, resolution of specific conflicts, and unresolved problems. Title V contains definitions of several terms used in the bill, notably “areas of critical environmental concern” and “key facilities.” The latter are “public facilities on non-Federal lands which tend to induce development and urbanization of more than local impact and major facilities on non-Federal lands for the development, generation and transmission of energy.” The bill stipulates that it does not “expand or diminish responsibili ties under other laws.” It specifically provides that it will not “delay or otherwise limit the adoption and vigorous enforcement by any State” of requirements for pollution control not less stringent than those of Federal pollution control legislation. As I stated at the outset, though this Agency supports the purpose of S. 268, we favor the specific provisions of S. 924. We believe that the legislation should be oriented toward the proc esses which the States employ to plan and carry out their land use programs. However, if the Federal authority were to reach beyond the process into the substance of the plan and its implementation it would invade the realm of proper State responsibility. In addition, a requirement that States have inventoried their re sources, set up data exchanges, and have planning in operation by the dates set out in the bill may be too onerous for many to meet. For these reasons, we prefer the language of S. 924, which requires only that States have a method for’ planning and regulatory activities. Because we would favor a process-oriented bill, we believe that sec tions 305(b) (2) and (c), giving “veto” power to the Administrator of this Agency and to the Secretary of Housing and Urban Development would be unnecessary. From the point of view of this Agency, our in terests are adequately represented in S. 924 through representation on the National Advisory Board (section 301), and the review media- 144

nism in section 203(a) and (c). Additional safeguards are provided by the provisions that a State must have controls and regulations to assure that development will not be sited where it would violate pollu tion control regulations (202(b) (14)) ; that land use planning activi ties be coordinated with State environmental regulatory activities (202(b) (4)) ; and that nothing in the land use act is to be construed so as “to delay or otherwise limit the adoption and vigorous enforce ment by States . . .” of regulations under Federal pollution control legislation. Similar provisions appear (although the last is differently worded) in S. 268. I support the adoption of the provisions in section 205(c), (d), and (e) for the application of financial sanctions to States which do not acquire or retain grant eligibility. The programs which would be affected by this action—airport development, highway construction, and Land and Water Conservation Fund Act activities—have in them selves major effects on land use. Each is also a major inducer of other activities which seriously alter the land. The Administration bill provides amply for the Department of the Interior, with the advice of other agencies, to undertake studies of land use problems and to coordinate Federal activities with those of the States. We do not believe that it is necessary for the Department’s internal organization to be specified. The Office of Management and Budget advises that there is no ob jection to the submission of this report from the standpoint of the President’s program. Sincerely yours, W il l ia m D. R u c k e l s h a u s , A dminis trato r.

U.S. D e p a r t m e n t o f t h e I n t e r io r , O f f ic e o f t h e S e c r e t a r y , W'ashington, B.C., May B i. 197S. Hon. H e n r y M. J a c k s o n , Chairman. Committee on Interior and Insular Affairs, U.S. Senate, W ashing ton, B.C. D e a r Mr. C h a ir m a n : As you know. President Nixon has stated that land use reform legislation is one of the highest environmental priori ties of his Administration. I am, therefore, delighted that your Com mittee is proceeding expeditiously with its markup of S. 268 and to see that the latest Committee Print No. 2 contains so many of the concepts which the Administration has recommended. There are still some provisions, however, under consideration by the committee with which the Administration takes issue. I would like to take this opportunity to call them to your attention. 1. Issues discussed in previous correspondence. The Department's report on S. 268 dated March 26. 1973. recommended fifteen amend ments. We are pleased to note that nine of these have been adopted in whole or in part. We continue to urge adoption of the others and would particularly call attention to the following: (a) Collection of planning data. To require the completion of actual inventories and projections as opposed to the development of a method 145 for their preparation (1) impairs State flexibility, (2) could inject the Federal government into determination of the adequacy of such data, and (3) could seriously dilute the effort expended on developing the controls over land use decisions which we feel should be the heart of the State program. Morever, with respect to Statewide data collec tion we believe the primary focus should be upon the problem areas and those most susceptible to degradation from inadequate planning and control, as provided in S. 924. (b) Funding level and sharing ratio. We continue to urge that the State land use program be required to focus on the most important problem areas. S. 268 as introduced adopted this approach and pro vided a funding level commensurate with it. Committee Print No. 2 keeps the selective approach on controls but increases the funding level almost three times and unduly extends the time period for Federal funding assistance. It also changes the sharing ratio from % to 90% for the first 5 years. We consider these increases unnecessary and un realistic in light of the current fiscal restraints. We urge the committee to return to the Administration’s position on grant and sharing authorizations. (c) Ad Hoc Hearing Board. We have consistently opposed this pro vision as an infringement of the Secretary’s authority to administer a Federal program. A more effective means of protecting states from arbitrary action is the public hearing provided in section 406 of S. 924. (d) Federod-State Ad Hoc Joint Committee. As we have previously pointed out this would be a costly and unnecessary institution for achieving that which could better be accomplished through informal coordination between State and Federal land management agencies. (e) Office of Land Use Policy Administration. We have deleted this provision since we feel that the internal organization of the Depart ment should remain flexible, so that as programs change the organiza tion can be modified as efficiency and other factors dictate. 2. New Issues. Committee Print No. 2 raises some new issues about which we have major concerns. (a) Coastal Zone. The deletion of coastal areas from the definition of areas of critical environmental concern would perpetuate the frag mented grant assistance approach which land use legislation is de signed to remedy. While coastal areas may be included in part or in whole within a States’ land use program, this decision should be left to the States in their land use program development. In submitting S. 924, the President clearly stated there should be an overlap between the land use legislation and the coastal Zone Man agement Act because of the unique and important environmental values and the development pressures which occur in coastal areas. S. 924 recognized that a State must plan and regulate all areas of more than local concern whether in coastal areas or other land areas. Carving out coastal areas from the land use legislation would create an artificial demarcation which would be difficult to identify geographically, and which is wholly inconsistent with integrated and comprehensive State resource management. The Federal Government should not perpetuate fragmented State land use planning. Moreover we understand that further amendments may attempt to tie the administration of the program under the land use bill and the 146 coastal zone bill together, imposing restraints on the funding of either program separately and requiring the submission of a single State program for approval under both acts. Due to the time differences required for approval of the programs under each bill and the numer ous technical differences between the programs, we strongly urge that the legislation give the two Departments concerned the maximum flexibility to work out the problems administratively. (b) Permits for second homes and subdivision. We agree that the State should develop controls over the type of development dealt with here. S. 924 included, therefore, large-scale subdivisions within the definition of large-scale development. We believe, however, that it is inappropriate to single out for a mandatory permit program based on specific Federal statutory criteria this type of development from all other types of development which would also be controlled. Further more, it is contrary to two basic principles which we have tried to promote. (1) maximum innovation by the States in the types of control mech anisms they develop and (2) minimal Federal substantive criteria for State programs. (c) Siting of Key Facilities. Section 204(b) of Committee Print No. 2 authorizes the Secretary to require States to provide for the siting of key facilities which the Secretary determines to be necessary to meet regional or national needs. This provision would in effect require the Secretary to establish na tional criteria for judging the national interest as to key facilities and conduct a study of national needs for such facilities. Such a provision goes far beyond the central purpose of this legislation and would be costly to implement. Other provisions of the proposed Act already re quire the States to evaluate the need and potential sites for key facili ties. Until a need for national planning effort for this purpose is clearly demonstrated, we would recommend the deletion of section 204(b). (d) Grants to Indian Tribes. While we support the concept of grants to Indian tribes for land use planning assistance under certain circumstances we believe the details governing such grants require further study. We will advis^ the committee of our views as soon as possible. In conclusion we reiterate our support for early action on this leg islation by the committee and strongly urge that the changes recom mended in this letter be adopted. Please advise if we can be of further assistance. Sincerely yours, R ogers C. B. M o r t o n , Secretary of the Interior.

U .S . D e p a r t m e n t o f J u s t i c e , Washington, D.C.. May 7J, 1973. Hon. P a u l F a n n i n , U.S. Senate, Washing ton, D.C. D e a r S e n a t o r F a n n i n : The Attorney General has asked me to reply to your letter of April 17, 1973. concerning section 203(f) of 147

S. 268, the “Land Use Policy and Planning Assistance Act.” As I shall explain, I believe that your basic objectives can be approached through a suggested reformulation of this provision. We all recognize that a healthy and aesthetically satisfying envi ronment cannot be achieved without substantial cost. Like most other important social policies, environmental preservation and enhance ment compete with conflicting policies, require “trade offs,” and raise difficult questions of cost allocation. In the present context, it is ob vious that the requirements to be imposed on the States by section 203(d) of the proposed statute, if they are to be meaningfully imple mented, will affect and, in many cases, diminish the value of property owned by private individuals. Your letter expressed concern that, in the absence of an appropriate savings provision, the bill “may substantially alter the traditional rights of property owners.” You expressed the view that property owners affected by actions under the bill should have recourse to the courts “if the value of their property is diminished by the imple mentation of land use plans.” I gather, however, that you would not favor compensation for pri vate property owners in all cases where the value of their property is diminished in any degree by implementation of land use plans pur suant to the proposed statute. Although the Fifth Amendment’s pro hibition of “takings” of property without “just compensation” applies to the States by virtue of the Fourteenth Amendment (Chicago. B. & O. R R . v. Chicago, 166 U.S. 226 (1897)), it has long been estab lished that State regulation based on the police power may substan tially diminish the economic value of private property without giving rise to an obligation to compensate the owner. See e.g., Mugler v. Kansas, 123 U.S. 623 (1887); Euclid v. Am bler Realty Co., 272 U.S. 365 (1926). One of the difficulties, as you point out in your letter, is that there is a very hazy boundary between “takings” (compensation required) and “police power” regulation (compensation not re quired). The Supreme Court itself has acknowledged that “there is no set formula to determine where regulation ends and taking begins.” Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962). Recent scholarly commentary has demonstrated that the courts have not developed clear and workable rules in this area, and that differing results are often reached in seemingly similar cases. One of the few safe predic tions is that where the State totally deprives property of any eco nomic value, a taking will be held to have occurred. See generally Michelman, “Property, Utility and Fairness: Comments on the Ethi cal Foundations of ‘Just Compensation’ Law,” 80 Harv. L. Rev. 1165 (1967) ; Sax, “Takings and the Police Power,” 74 Yale L. J. 36 (1964) ; Dunham, “Thirty Years of Supreme Court Expropriation Law,” 1962 Sup. Ct. Review 63 (1962). Most of the Supreme Court cases in this area have involved zoning laws or other governmental action largely unrelated to environmental concerns. See, e.g., United States v. Causby, 328 U.S. 256 (1946). However, in recent years, several State court decisions have invali dated under the federal or State constitutions State or local police power (no compensation) initiatives designed primarily to preserve the natural environment. See, e.g., Bartlett v. Zoning Commission, 232 148 A. 2d 907 (Conn. 1971) ; Maine v. Johnson, 265 A. 2d 711 (Me 1970) ; Dooley v. Town Plan & Zoning Commission, 197 A. 2d 770 (Conn. 1964). The volume of these cases is almost sure to increase concur rently with increased federal, State and local initiatives to preserve the environment. From this perspective, we can at least analyze, if not fully resolve, the problems you are raising. Looking first at section 208(d) of the bill, it would require the States to adopt broad methods of implemen tation for land use plans “under police powers.” In the language of the decided cases, the phrase “police power” normally connotes that the action in question is being taken without compensation to the property owner. By contrast, where compensation for a “taking” is contemplated, the cases speak of “eminent domain” or “expropriation” powers. Thus, the language of this section could afford the basis for an argument that the States are not being required by the bill to take any action that would give rise to an obligation to compensate private property owners. As we understand the bill, however, some proposed State action under it probably would, in some situations, give rise to obligations to pay compensation. Accordingly, it may be desirable for the phrase “under police powers” to be stricken from section 203(d). Turning to the various formulations of section 203(f) set forth in your letter, we agree with the opponents of Senator Jordan’s amend ment, as included and interlined in the March 28 Committee print, this language might be read to expand rights to compensation beyond those currently recognized under constitutional “takings” law. The phrase “to determine whether the prohibition diminishes the use of the property so as to require compensation” begs the basic questions, but it suggests that any diminution in value would result in compensa tion. In the first place, we gather that there is no substantial committee sentiment for attempting to expand the scope of existing constitutional

rights to compensation in this area, at least in the context of his bill, i Secondly, it is unclear whether this language, if read as a substantive compensation provision, could validly give rise to a federal or State cause of action. It reads like a federal substantive right, but whether Congress has constitutional authorization to create such a right is open to some question. Cf. Katzenbach v. Morgan, 384 U.S. 641 (1966). Apart from the constitutional question, this language, read in conjunc tion with the introductory clause of section 203, might be construed so as to require the States to enact new compensation legislation as a condition of receiving grant money. In addition to these questions, should the federal or State governments ultimately decide that the tax payers should shoulder more of the burden of preserving the environ ment than would be required by existing constitutional law, sophisti cated and discriminating compensation statutes will need to be devel oped. But this provision, when read as a statutory compensation sta tute, gives the courts virtually no guidance as to when compensation should be paid. The second formulation in your letter, included as section 203(f) of the April 11, 1973 committee print, would incorporate federal and State constitutional compensation standards. We see no disadvantage in spelling out in the bill that federal constitutional rights to compen- 149 sation are not to be affected. Congress probably has no power sub stantially to diminish those rights in any event (cf. Katzenbacli v. Morgan, supra), and, on the other hand, the language negating any enhancement of federal compensation rights obviates a major objection to Senator Jordan’s formulation, as discussed above. We question, however, whether this formulation is sound in incor porating compensation rights under the constitution of the State in which the property is located. It seems reasonable to anticipate that the State courts of some States may well adopt relatively narrow interpre tations of police powers (no compensation) and broad interpretations of “takings” provisions (compensation required) in State constitu tions as cases arise in the environmental area. These States courts, in terpreting their own constitutions, may be more generous to property owners than the federal courts interpreting the federal Constitution’s Fifth Amendment. The language of this formulation suggests that the administrators of this grant program would, in a sense, be bound by these interpretations of State’s constitutions. As a result, for example, in a State in which very little could be done to protect the environment without compensating private property owners because of State con stitutional limitations, the federal government would nevertheless be obliged to subsidize the State’s program. In our judgment, the proposed grant program should confer com mensurate benefits and operate more or less uniformly in the various States, subject to federal constitutional rights to compensation. Con gress lias adopted a uniformity approach in other areas where it has chosen to subsidize State regulatory programs. See, e.g., 21 U.S.C. 661, et seq. If consistency with federal constitutional standards is required here, the State courts will have an incentive to construe their own con stitutions consistently with federal “taking” standards. In extreme cases, the administrators of the program could withhold grant funds pending appropriate constitutional amendments at the State level. The third suggested formulation, set forth at the bottom of page 3 of your letter, would simply prohibit the States from depriving any person of property, of the use thereof, without due process of law. Although the language of this formulation is not explicit, as a federal statute it presumably contemplates due process of law as provided in the Fourteenth Amendment to the federal Constitution and ultimately interpreted by the federal courts. This prohibition would be read into the statute in any event; it would have no independent substantive effect. I suggest that the most helpful formulation of an appropriate savings provision would be to strike out the last twelve words of the April 11 committee print provision so that it would read as follows— “Nothing in this Act shall he construed as enhancing or diminishing the rights of owners of property as provided by the Constitution of the United States.” To be sure, the substance of this provision is a federal constitutional right which would also be read into the bill in any event. However, it would help to negate any argument that the bill purports to expand existing compensation rights, and the omission of reference to State constitutional rights would give the grant administrators authority to condition grants to State programs on their meeting federal constitu tional “takings” standards. 150

What we are proposing here is not viewed by us as a panacea. Obvi ously, it does not make any clearer the hazy boundary between com pensated “takings” and uncompensated “police power” regulation. However, in our view, the clarification of that boundary, if that is possible, is beyond the scope of S. 268. I hope that these comments are helpful to you. Sincerely, R o ber t G. D i x o n , J r ., Assistant Attorney General, Office of Legal Counsel.

D e p a r t m e n t o f A g r ic u l t u r e , O f f ic e o f t h e S e c r e t a r y , Washington, D.C., May 15,1973. Hon. H e n r y M. J a c k s o n , Chairman, Committee on Interior and Insular Affairs, U./S. Senate. D e a r Mr. C h a ir m a n : This will respond to your letter of May 9, 1973, requesting Secretary Butz’s views on the so-called “Nelson Amendment” adding to S. 268 a new Title VI—Second Home and Subdivision Regulation Act. The Administration’s views on this amendment will be contained in a response being prepared by the Department of the Interior. We recognize the need to resolve this issue, and we trust the Admin istration’s response will be helpful in your deliberations. The Office of Management and Budget advises that there is no objec tion to the presentation of this report from the standpoint of the Ad ministration’s program. Sincerely, J . P h i l C a m p b e l l . Acting Secretary.

U.S. D e p a r t m e n t o f t h e I n t e r io r , O f f ic e o f t h e S e c r e t a r y , Washington, D.C., May 22,1973. Hon. H e n r y M. J a c k s o n , Chairman, Committee on Interior and Insular Affairs, U.S. Senate, Washington, D.C. D e a r M r . C h a i r m a n . This will supplement our letter dated May 14, 1973 on S. 268. Parenthetically, I would like to note that that letter should be construed as a reply to your letter dated May 9, 1973 to Sec retary Blitz concerning the provisions of Committee Print No. 2 deal ing with second homes and subdivisions. As promised in that letter, we have given further consideration to Title V as it appears in Committee Print No. 3. That Title would au thorize the Secretary to make annual grants to Indian tribes to assist them in developing a land use program for their lands. The bill would authorize $10 million for this purpose. W e concur that the Federal Government’s trust responsibility over Indian lands should include land use planning assistance. In order to assure, however, that the grant recipients under this bill are those 151 reservation Indians for which the Federal Government has trust re sponsibility, we would amend the definitions of “Reservation and other tribal lands” and “Indian tribe” set out in section 601 (g) and (h) as follows: “(g) ‘Reservation and other tribal lands’ means all lands within the exterior boundaries of a reservation held in trust for an Indian tribe and for individual Indians. “ (h) ‘Indian tribe’ means the governing body of an Indian tribe, band, pueblo, colony, rancheria, or community recognized as eligible for the special program and services provided by the Secretary for Indians because of their status as Indians.” These amendments serve another important purpose which is to exclude from the scope of the tribes land use plan land within the ex terior boundaries of the reservation which is owned in fee by (1) in dividuals (Indian and non-Indian) or (2) the State or (3) the Fed eral Government. The authority of Congress to subject the first two categories of land to tribal control is doubtful. In the case of Federal land we feel it would be unwise and unnecessary, in view of the con sistency provisions, to place Federal land within a reservation under tribal controls. With respect to the consistency requirement in section 505(a), we recommend that it contain the same qualification that section 207(a) contains: namely “in cases of overriding national interest as deter mined by the President.” We feel that land held in trust for individual Indian allottees with in a reservation should be covered by the tribes land use plan, since it is not covered by the State land use plan and since to exempt what amounts in many cases to sizable checkerboarded inholdings would completely frustrate any attempt by the tribe to accomplish compre hensive planning on the reservation. To assure that the individual allottee would have the same remedy against unreasonable regulatory action by the tribe as a private citizen has against the State and to protect the United States from liability in such cases we recommend the following new section in Title V. “S e c . —. In exercising authority under this Act, the tribe shall be deemed to consent to suit by any person alleging that the tribe has exercised land use controls under this title in excess of that reserved to the several States by the United States Constitution. The United States shall not be liable for any action by the tribe under authority conferred by this Title.” We also recommend that the specific authorization of $10 million in section 608(d) be changed to “such sums as are necessary.” At this point we do not have a firm enough idea of what amount would be appropriate for this purpose. Subsection 609(a) of Committee Print No. 3 requires that all funds appropriated under the Coastal Zone Act and the Land Use Act be fully apportioned for obligation by the Secretary of Commerce and the Secretary of the Interior, respectively. This subsection would indi rectly amend the Anti-Deficiency Act (31 U.S.C. 665) and render the apportionment provisions of that Act meaningless insofar as these appropriations are concerned. We believe this is unwise and should not be dealt with in the context of land use legislation. 152 Subsection 609(b) requires that the appropriations under the two Acts be combined and be available to be drawn upon for obligation by the Secretaries of Commerce and Interior in the same ratio as they are appropriated. This subsection appears to be unnecessary and to serve no useful purpose. We recommend that section 609 be deleted in its entirety. Section 610 ties eligibility under the Coastal Zone Act to eligibility under the Land Use Act and vice versa. We strongly oppose this en largement of the eligibility criteria under both bills. The two pro grams contain somewhat separate requirements. The time frame may be different under each program and a State which is able to qualify under one program should not be penalized because it is not yet able to qualify under the other. We recommend deleting section 610 in its entirety. Section 203(a) (3) (K) requires the submission of a single program under the Coastal Zone and Land Use Acts. We oppose this for rea sons set forth in our May 14, 1973, letter, namely that the two Acts have separate requirements and separate time frames. We feel that the two Departments should be given maximum flexibility to work out the problems of coordination within the administrative framework. The Office of Management and Budget has advised that there is no objection to the presentation of this letter from the standpoint of the Administration’s program. Sincerely yours, J o h n C. W hitaker, Under Secretary of the Interior.

D e p a r t m e n t o f H e a l t h , E d u c a t io n , a n d W e l f a r e , 'Washington, D.C., January 29, 1973. Hon. H e n r y M. J a c k s o n , Chairman, Committee on Interior and Insular Affairs, U.S. Senate, Washington, D.C. D e a r Mr. C h a ir m a n : The Secretary has received your letter of January 24, 1973 requesting an expression of this Department’s views on S. 268. In view of the questions involved and the necessity of submitting our report on the bill to the Office of Management and Budget in accordance with established procedure, it is doubtful that it will be possible to meet the 30-day time limit specified in your letter. A report will, however, be submitted to your Committee as soon as possible. Sincerely yours, S i d n e y A. S a p e r s t e i n , Assistant General Counsel for Legislation.

IX. CHANGES IN EXISTING LAW In compliance with subsection (4) of rule XXXIX of The Stand ing Rules of the Senate, changes in existing law made by S. 268 are as follows: 153

The Coastal Zone Management Act of 1972 (86 Stat. 1280) is amended by— (1) adding, at the end of section 315, a new section 316, as follows: “Sec. 316. Any coastal State which has been found ineligible for grants pursuant to part A of title II of the Land Use Policy and Planning Assistance Act shall not expend any funds received under grants pursuant to section 305 or 306 of this Act for land use planning and management in, or implementation of a State land use program as provided for in that Act for, areas other than those defined by such coastal State as within its coastal zone.” ; and (2) striking subsection (g) of section 307.

9 5 -7 3 4 0 - 73 - 11 X. MINORITY AND ADDITIONAL VIEWS

MINORITY VIEWS OF MR. FANNIN, MR. HANSEN, AND MR. BARTLETT

I ntroduction Land use legislation has occupied an ever increasing amount of congressional time since 1970. The plethora of bills was over 200 in the 92nd Congress. This indicates the importance, the scope and the variety of approaches to land use. The reported bill is said to be a grant-in-aid program which reserves to the states the prerogative under the Constitution of the United States to regulate land use planning. We believe this bill is not what it purports to be—we believe, in fact, that it would effectively preempt state and local rights to plan and regulate land uses. It would shift the traditional responsibilities from the local and state governments to the federal government. Most members of the Committee agree that some legislation bear ing on a national policy for land use ought to be enacted. However, we believe that such legislation must preserve local and state prerogatives. This legislation would be the first step in establishing a total “Na tional” Land Use Program. The direction is indicated in one of the stated purposes: “to study the feasibility and possible substance of national land use policies which might be enacted by Congress.” The majority report states “this Act does not contemplate sweeping changes in the traditional responsibility of local government for land use management.” Presently, local and state governments maintain and possess all the initiative to plan and manage private and state land. S. 268 will remove that initiative, thus preempting local responsibil ities, and drastically alter the traditional system. Most of the states which have adopted statewide planning still em phasize the local role in land use regulation. Only two states have opted wholly for state control; the other states place the major responsibility on county and local units, but retain a veto power or other enforcement mechanism to assure that local jurisdictions comply with statewide cri teria. S. 268 would alter the roles so that the federal government would possess veto power to enforce national criteria via approval of state programs and processes. As time has passed and local zoning has apparently proven unable to do its job of resolving an expanding society’s problems, the solu tion has seemingly been to separate the planning decisions further and further from the local community—to rely on some higher govern mental entity to resolve local problems. S. 268, as reported, is a grandiose plan to remedy, in the words of Section 101(a), a situation created by “management decisions often (154) 155 made on the basis of expediency, tradition, short term economic con siderations, and other factors too frequently . . . unrelated or contra dictory to sound environmental, economic, and social land use consid erations.” S. 268 will not cure these evils, but will actually alter and destroy the historic right of state and local government to zone and regulate land use within their own jurisdictions. S. 268 is an example of federal overkill. Though the bill declares traditional property rights will not be enhanced or diminished by anything in the Act, a close read ing of its proves the opposite. Under the guise of helping by way of “encouragement” and “assistance”, the federal government will dic tate how, when and where the states will exercise state constitutional rights. The stated policies of Section 101 are developed in Washington—im plemented and reviewed under standards and guidelines established in Washington. EFFECTS OF S. 2 68 ON PRIVATE PROPERTY Land utility is transient in nature. Historically, the marketplace has dictated the highest and best use of land. S. 268 would, however, define the use for large amounts of land and thus would render the market place ineffective. Private ownership of land has been the stimulus for man’s initiative and incentive and has made the standard of living in America the envy of all the world. S. 268 would stifle private owner ship. We do not believe even the drafters of S. 268 contemplate such a reversal of tradition. But, when the use of land is tightly restricted, its productivity is lost: that must not occur in a nation which relies so heavily on the historical institutions that have made America the greatest nation in the history of the world. A national land use bill will stimulate the regulation of private property. The critical issue, in what has been termed the “quiet revo lution” of land use planning, is how far the use of property can be restricted without compensating the property owner for diminu tion of value. In other words, when does a restriction become a “tak ing”? The Fifth and Fourteenth Amendments to the Constitution of the United States provide that “private property” shall not “be taken for public use, without just compensation.” Consider the following hypothetical situation: A man purchases, in good faith, three hundred acres of land containing a lake which he intends to develop for resort purposes. He reflects its development potential. The land use bill becomes law; and because it is found that the lake in question is of vital importance to a species of endangered waterfowl, it is found to be an “area of critical environmental con cern.''’ The state, therefore, outlaws any development of the property containing the lake as being incompatible with its designation. As a consequence, the land loses three-quarters of its market value. Under these circumstances, does the designation constitute a taking or impairment of property rights which is compensable under the law of each and every state ? The current language clearly states that the Act will not enhance or diminish the rights of owners of property as provided by the Con stitution of the United States or of the state in which the property is located. Normally, this should suffice. But, this Act will compel action by the state that will adversely affect the financial interests of 156 individual land owners under circumstances where state law may or may not provide adequate protection. Although this bill mandates the states to implement plans to regu late the use of land, it prohibits them from expending any grant money to acquire interests in real property. It is reasonable to expect that novel forms of regulating the use of property may ultimately erode the protection presently afforded property owners by the Con stitution. Since there is such a hazy boundary between a “taking” and “control”, it should not be overlooked that land may be taken for the public benefit under the guise of regulation without compensation. It is not equitable that the individual property owner bear the burden for public benefit. The Task Force, which drafted The Use of Land: A Citizens'’ Policy Guide, urges that the judicial precedents which “. . . require a balancing of public benefit against land value loss” should be re examined in light of new values. However, William Whyte in his book, The Last Landscape, draws a distinction that we believe is im portant. He said: “We cannot compel a benefit by the police power, for if we do we are forcing the owner to forego money that he might properly realize and thereby shoulder a cost that should be borne by the public.” Those who qualify the protection which the Fifth and Fourteenth Amendments guarantee property owners, jeopardize the one single characteristic of American life, the right of private ownership of property, that so distinguishes our lives from those of people in other countries. The words of Justice Oliver Wendell Holmes are as relevant today as they were when he rendered his opinion in Pennsylvania Coal Co. V. Mahon: He cautioned: When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears . . . The general rule, at least, is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking .... We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. S. 268 is aimed at the surface use of land and thus acts to restrict exploration for underground resources whose existence and extent are now unknown. A conflict exists between a land use program that is surface oriented, and those activities which are required to develop subsurface resources. S. 268 will compound the difficulties of our na tion’s current efforts to discover and utilize domestic resources to ease our energy and metal shortages. We must not handcuff domestic poten tial in this era of grave need. Lest we be accused of needlessly crying “Wolf,” consider the sur prising consequences, unimagined and unintended by the Congress which passed it, of the court interpretation and bureaucratic admin istration of the National Environmental Policy Act. Before the Congress of the United States enacts legislation which could so sub stantially alter property rights as S. 268, it would be well advised to 157 consider very thoroughly the possible ramifications of such compre hensive legislation. Boilerplate disclaimers and the so-called safeguard provisions in S. 268 are not sufficient to protect traditional rights when the preroga tives of local and state government have been eroded by mandatory provisions such as: Section 102(5), which calls for the establishment of au thority and responsibility of the Secretary of Interior to administer and review with the heads of other federal agen cies the state planning process and program conformity to the provisions of the Act. Section 204(1), which explains that the Secretary will re view the state program to determine that the state has not left out any areas of critical environmental concern which are of more than statewide significance.

MECHANICS OF S. 2 68 Section 203, State Land Use Program,, contains the mechanics of S. 268. It calls for a state program that follows the requirements of Section 202, which is the State Planning Process. That process is judged by the Secretary of Interior as to its “adequacy”, in other words, whether the process included all the specific requirements enum erated. Then the state is told that it must have specific “methods of implementation” for both the process and program. This is where the federal government tells the states how, when and where to exercise their own constitutional prerogatives. The states, under Section 204(a) (3) (A), must exercise control over the use and development of land in areas of critical environmental concern; exercise control over the use of land within areas which are or may be impacted by key facilities; and control proposed large scale development of more than local significance in its impact upon the environment. SANCTIONS The legislative history of this bill and its predecessor, S. 632, in the 92nd Congress, show the very real prospects for sanctions being im posed against states who either do not participate in the program, or who disagree with the conclusions reached by the Secretary of Interior in his review of the state program. One of the major issues is whether participation under this act is to be permissive or mandatory. Sanctions, in the nature of percentage withholding of state allot ments from the Airport and Airway Development Act, the Federal Aid Highway Act, and the Land and Water Conservation Fund, were stricken from S. 632 during floor debate in the 92nd Congress and were also excluded in S. 268. The Chairman lias reserved his right, however, to attempt to insert sanctions into the bill during floor action. The governors of the various states have overwhelmingly voiced their disapproval of sactions. The governors feel strongly that sanc tions act as a disincentive and that land use planning could work only in a spirit of trust and comity. Certainly, the governors have little power to defend state actions in disputes arising under this proposed 158 legislation. The Administrator of EPA and the Secretary of Interior have far more control over the state program than does a governor.

“AREAS OF CRITICAL ENVIRONMENTAL CONCERN” The full measure of federal preemption is realized in the definition of areas of “critical environmental concern.” Here the government would require the states to designate lands as critical where “uncon trolled or incompatible development could result in serious damage to the environment, life, or 'property or the long term public interest which is of more than local significance.” This definition mandates the inclusion of: “fragile or historic lands;” “natural hazard lands;” and “renewable resource lands.” These areas are to be specifically protected and control exercised over their use and development. Use and development must “not substantially impair the historic, cultural, scientific, or esthetic values or natural systems or processes within fragile or historic lands.” The state must assure that loss or reduction of long-range continuity and the concomitant endangering of future water, food, and fiber requirements within renewable resource lands are minimized or eliminated. The state must finally assure that “un reasonable” dangers to life and property within natural hazard lands are minimized or eliminated. This bill does not require the federal government—the largest land holder in the United States with over one third of the total acreage— to designate such areas on federal land. Areas of critical environmen tal concern are to be designated only on private, state and Indian lands. In these areas federal determination of use and development will prevail over the desires, wishes, and requirements of the private land owner or the state. The breadth and scope of such a definition is impossible to ac curately calculate. It is not folly to say that in some states every square foot of private and state land could fall within such a limitless definition. Here then lies the seed of the destruction of the American concept and practice of private ownership of land.

ADJACENT LANDS Of the 2.2 billion acres of land within the United States, the fed eral government owns 755.3 million acres, or One Third of the Nation’s Land. Federal lands are exempt from the stringent requirements placed on private and state lands. Section 401 sets forth the federal responsibilities and requirements for the management of federal lands. Federal lands must simply be “coordinated” with state and local planning and management activ ities on adjacent non-federal land. Agencies which manage federal land must “consider” state land use programs—nothing more, nothing less. Federal land management coordination is ultimately exacerbated by a proviso in Section 401(a), which limits that “cooperation” to the extent “. . . [it] is not inconsistent with paramount national poli cies, programs, and interests.” A federal agency under this exception could virtually override all private and state uses on adjacent non- federal land. The states, on the other hand, pursuant to Section 402 (a) (1), must “develop methods for insuring that federal lands within 159 the state . . . are not significantly damaged or degraded as a result of inconsistent land use patterns m the same geographic region.” Section 403 (a) provides for machinery to establish a “Joint Com mittee to review “and make recommendations concerning general and specific problems relating to jurisdictional conflicts and incon sistencies resulting from . . . [the] management of federal lands and adjacent non-federal lands.” The purpose of this section is to provide a mechanism to resolve adjacent land use problems, but, that purpose is flouted by the last subsection in Section 403. Subsection (g) states “. . . the Secretary shall . . . not resolve any problems with or con flict between the planning and management of federal lands and adja cent nonfederal lands in a manner contrary to the requirements of the laws governing the federal lands involved.” Section 403 then is hollow and mere window dressing. The significance of the adjacent lands issue comes into better focus when states like Arizona, with 44.6% federal ownership; Nevada, with 85.5%; Utah, with 66.2%; Idaho, with 63.8%; Oregon, with 52.1%; Wyoming, with 48.3% ; and Alaska, with more than 90%, are consid ered. The extent and scope of “adjacent land” is not defined in S. 268, and a large portion of the private and state owned lands in those aforementioned states will probably come within the adjacent lands criteria. The federal review authority and process under S. 268 could force private and state uses of adjacent lands to conform to federal demands or uses. When this provision is coupled with the require ments for areas of critical environmental concern, federal control is staggering. Federal dictates will prevail in areas of critical environ mental concern and on adjacent private and state lands.

EFFECTS OF S. 2 68 OX EXISTING AND PROSPECTIVE STATE LAND USE LAWS To date, Florida, Hawaii, Maine and Vermont have major land use legislation. Arizona, Maryland, Colorado, Oregon, Washington and Wisconsin are actively considering such legislation. The question is— what effect will S. 268 have under a permissive program and what effect will it have under a mandatory— (sanction)—concept? Consider a hypothetical situation in which S. 268 becomes law and is permissive—in other words, without sanctions. Florida has a land use law and opts not to participate in S. 268. Florida’s neighbor to the north, Georgia, has no state land use law and decides to participate in S. 268. Georgia, pursuant to Section 203(a)(3)(A) designates and exercises control over areas of critical environmental concern. Georgia then designates Lake Seminole, which is located in the extreme south west corner of the state, as an “area of critical environmental concern.” The lake happens to be partly in Florida. We are immediately con fronted with at least three governmental entities potentially interested in that “area of critical environmental concern.” Georgia could not exercise control over that portion of the lake in Florida, and the Sec retary of Interior could not influence that portion either. Thus, the purpose of designating such areas is undermined because there is no uniformity of control; geographic areas often cross political state lines. Here then, is the potential for a checkerboard pattern of conflicting 160 land use efforts. Here also, is the denial of the stated purposes of S. 268, “To establish a National Land Use Policy.” The stated purposes can not be accomplished within the framework of a permissive national land use policy. The drafters of S. 268 envisioned mandatory participa tion, and thus our concern for the loss of state and local initiatives. Should a mandatory scheme with sanctions be enacted, there is little doubt that the federal government will have preempted states’ rights.

CONCLUSIONS We believe S. 268 only gives lip service to the principle that the responsibility and authority for land use planning is a prerogative of the state. S. 268 forces the states to submit to what the federal govern ment has decided is best for them. The loss of state control may be dis guised under numerous formats, but as so often has happened in the past, once a state is placed under a federal program involving approval of “state plans,” the autonomy of the state is compromised. The finan cial sanctions which could be applied by Washington coerce the states into compliance regardless of whether the state believes that the fed eral government is following the requirements of the law in question. Guidelines and regulations issued pursuant to a federal law enhance federal authority even more. Unfortunately, the “natural” course of events seems to be more and more direction from the federal bureaucracy and less and less input by state and local government until virtually one hundred percent federal control evolves. This great nation was founded, grew, and prospered in the climate of free enterprise and opportunity—where the role of government took second place, and man was allowed maximum liberty. Prosperity and the problems of modern man dictate, perhaps, a moderation of that climate—but, certainly not a revolutionary adoption of a scheme such as S. 268. When the commanding power of government needed to be exercised in the demonstrable public interest, the Fifth and Four teenth Amendments to the Constitution adequately protected the rights of the individual. The inherent wisdom of restricting the centraliza tion of power and decision-making authority should require no advo cate. American history is replete with evidence that individuals, col lectively, make wiser judgments than governments. Individuals are not always right, but their mistakes are not so enormous. The breadth and scope of the definition and requirement for areas of critical environmental concern leave no doubt that control over such areas is preempted by the Federal Government. We must, on this issue alone, ask ourselves if such a course of action is necessary or desirable. We cannot support a land use planning bill which accom plishes such an end. We cannot support a bill which lays this founda tion, and even goes so far as to mortar the bricks of federal interven tion in the historic pattern of private ownership of land. We are not prepared to assist in the destruction of this cornerstone of our free enterprise system. Finally, we are not prepared to agree with those who believe that only “Washington” possesses the brainpower and capability to cure the ills of our nation. We have long relied on our states for purpose and strength and we will continue to believe our system of government works best when local prerogatives are pre served. P a u l J . F a n n i n , C l if f o r d P . H a n s e n , D e w e y F . B a r t l e t t . ADDITIONAL VIEWS OF MR. JOHNSTON I agree with the need for land use planning and concur with the fundamental concepts contained in S. 268. In my judgment, however, the bill has two major flaws. These will unnecessarily infringe upon private property rights and deprive the states of prerogatives which I believe are rightfully theirs. If included in the act, they may result in costly delays by the states in implementing this much needed legis lation. Land Sales and Development Projects We are asking the States to do the impossible. As a condition of eligibility, states are required “to regulate subdivisions of 50 or more lots located more than 10 miles from the boundary of a local planning authority or Standard Metropolitan Statistical Area (Sec. 202(d)). The State is further required under this section to provide that its “method of implementation shall insure that . . .” (v) the effects on the scenic or natural beauty or the natural environment . . . (and) . . . (vi) open space possessing valuable potential for public recreation [are] taken into consideration. These criteria are too broad and ambiguous. They cannot be defined with the certainty necessary for an effective regulatory program. Def inition of these terms requires a subjective determination of aesthetic quality and value judgment on the part of state planners. How can the scenic value of a given area be objectively determined? A second problem is that the standard for review by the Federal Government of action taken by a state in this regard is likewise not susceptible of precise definition. A state which fails to adopt objective standards, guidelines or techniques with which to gauge the sub jective qualities of “beauty*’ may risk its eligibility under the bill. This is an impossible standard. Therefore, I would delete these requirements from the bill. Deletion of these terms could avoid costly delays in implementing the legisla tion and avert potential litigation on the due process questions of vagueness and ambiguity. Areas of Critical Environmental Concern My second point of concern is the determination of Critical Environ mental Areas. The bill would establish a dual system for determining “Areas of Critical Environmental Concern” : (1) those of “more than local concern.” and (2) those of “more than statewide significance." The former would be initially determined by the state but subject to review by the Secretary. But the latter would be determined at the discretion of the Secretary. A state could lose its eligibility by failure to accept the Secretary’s determination. A state could protest its loss of eligibility before the review board, but the Secretary at such hearing need only prove that his determination of National interest is “rea sonable” and that the state has failed to comply with the require ments of the Act. (Sec. 306-g-2). (161) 162 In the case of areas of more than local significance, the discretion of the state to determine or define the extent of these areas is limited by pre-determined areas which, by definition, must be included. (Sec. 609-i-l). To remedy these deficiences, I would recommend that these defini tions be made discretionary rather than obligatory as presently drafted. This can be accomplished simply by making the inclusive terms: “fragile or historic lands . . . natural hazard lands . . . and renewable resource lands” examples rather than requirements. Moreover, I would deny to the Secretary the right to impose what are in his judgment “areas of critical environmental concern of more than statewide significance” on the states under the provisions of Sec. 204(1). To be sure, the Secretary makes such initial determination only in areas of critical environmental concern “which are of more than statewide significance.” But this phrase is broad enought to en compass a major proportion of the land of this Nation. In my state, for example, it could include all of the coastal areas (because of its value to the Nation in producing seafood, oil and gas, etc.) and all of our river basins—including the vast Atchafalaya because of its unique value for recreation, wildlife, and natural beauty. Indeed, the Secre tary could determine, reasonably, that one-third of my state was re quired to be included in the program. I believe that the determination of all areas of critical environmen tal concern should be left to the states and the states exercise of dis cretion should be disturbed only where it is arbitrary or capricious. It is no answer to the objections I have stated above to merely ob serve that there are no sanctions in the bill to force a state against its will. Sanctions may be added on the Floor of the Senate, evolve through conference with the House or be added by subsequent Con gresses. Indeed, sanctions may be necessary to make the bill work. My state of Louisiana is unique—environmentally, culturally, and historically. No other state in the Nation, for example, contains any thing like the proportion (almost one-third) of fragile wet lands that Louisiana possesses. We live with these problems, our universities study them, and our livelihoods depend upon them. Louisiana’s judgments in these matters should not be easily dis placed and substituted by those of the Federal bureaucracy. Such powers, as I detailed above, are wholly unnecessary to achieve the sorely-desired objectives of the bill. I voice my concern by way of illustration of the bill’s effect upon Louisiana—because I know it best. But the same considerations of local knowledge and culture apply to other states as well. The bill can and should be amended to obviate these problems. This can be accomplished without doing violence to the purpose of the bill. J . B e n n e t t J o h n s o n , J r . ADDITIONAL VIEWS OF MR. HATFIELD I fully support both the concept and the scope of this legislation. Land use planning is, in my view, the most important step in insuring orderly growth which recognizes ecological, economic, and social val ues. I have supported Committee amendments aimed at strengthening the funding provisions of the legislation and I intend to support amendments aimed at providing stronger sanctions to encourage the States to carry out the provisions of this Act. While in general support of this legislation, I am deeply concerned about the provisions adopted by the Committee pertaining to the coastal zone. Specifically, the Committee deleted coastal areas from the definition of “Areas of critical environmental concern” in Title VI, Sec. 601 (i) and has tied the eligibility for participation in the land use planning program and the coastal zone management program together in Sec. 610 (b). Section 203 (a) (3) (K) requires the submis sion of a single program which must meet the requirements of both S. 268 for inland areas and the Coastal Zone Management Act for its coastal zone. The effect of these provisions will be a heavy and unnecessary bur den on the states in implementing S. 268 and is contrary to the pur poses of this Act. By deleting the coastal zone from “Areas of critical environmental concern, States are given no encouragement nor legislative guidance for the development and implementation of a statewide land use planning and regulation approach which takes account of the relation ship of coastal areas to critical environmental areas and development of more than local concern existing throughout the State. Coastal areas constitute some of the most unique and important natural areas and deserve to be an integral part of any statewide land use planning and regulation effort. They should not be separated from a total strategy for planning and regulating areas of critical environmental concern and the types of development that are likely to occur in such areas. Much of the development and land use which occurs outside the coastal zone has a direct or indirect impact on coastal areas. To separate coastal zones from statewide land use management is to ignore the interrelationship between the two and continues the type of functional and artificially separate planning which land use legisla tion is designed to correct. I realize that the coastal zone is unique in its character and requires special attention, but this should not lead to its exemption from the land use planning program. The Committee has gone beyond the scope of the Coastal Zone Management Act of 1972 by tying eligibility of the land use and coastal zone programs together. The Coastal Zone Management Act contains program requirements and timing provisions which are dis similar to the requirements of S. 268. Ineligibility for participation in the voluntary Coastal Zone Management Act should not be tied to (163) 164 eligibility for land use planning grants. This forces coastal states to develop grant administration arrangements which call for a separate and inefficient accounting of funds used for the purposes of both acts, in order to assure that there is no unlawful use of such funds. In addition, I do not believe that the Coastal Zone Management Act can be relied upon to achieve the purposes of land use legislation in coastal areas because of the impreciseness of the definition of the coastal zone, the lack of focus on specific types of development problems and the artificial separation of the coastal zone from a statewide land use planning and regulation strategy. A state should be able to participate in the coastal zone program, should it desire to do so, as well as in the land use program, but a requirement of involvement in one program to participate in the other is unnecessary and places an administrative burden on the states which will only hinder comprehensive land use planning efforts. Sec. 204(a) (3) (K) further forces states to develop separate coastal and inland programs meeting different requirements. States would consequently be unable to use a wide degree of discretion in using resources from many sources to achieve the purposes of the Land Use Policy and Planning Assistance Act and the Coastal Zone Manage ment Act. Taken together, these amendments to S. 268 will greatly complicate the land use planning procedures for both the states and the federal government. In my view, there is no reason why grants under the Coastal Zone Management Act should be the sole source of assistance for managing the coastal zone. The technical and resource management interdependence of land and coastal zone uses coupled with the obvi ous difficulties of defining the demarcation line between these land areas would impose untenable structures on both programs. The pur pose of both programs is to encourage better land and coastal zone planning and decisionmaking, and to encourage the states to institute necessary authority, controls and procedures to facilitate the early identification of competing conflicting land use demands, resolution of these demands, and the implementation of such resolution. Flexibil ity is required in this enormous undertaking and it seems apparent that the coastal states, which will have to deal with the land and coastal interface problems, would welcome all assistance available, whether from the Coastal Zone Management Act, the Land Use Policy and Planning Assistance Act, or other Federal programs. The language which this Committee has adopted does not grant this necessary flex ibility and is, I believe, contrary to the purpose of the bill. In stating my concern about the language in S. 268 relating to the Coastal Zone Management Act, I do not intend to indicate any lack of support, of this program. I served on the Senate Commerce Com mittee during the period in which that Committee considered this leg islation and I supported it. At that time, the Administration indicated its preference for comprehensive land use planning legislation, rather than coastal zone legislation. At the hearing of the Subcommittee on Oceans and Atmosphere on May 5, 1971, I stated that I felt the out look for comprehensive land use legislation during the 92nd session of Congress was “dismal” and that it would be preferable, in view of this reality, to “take part of the loaf if we cannot get the whole thing.” 165

I also indicated this concern at the Senate, Interior Committee hearing on land use legislation on May 18,1971. My support of the Coastal Zone Management Act of 1972 was clear at the time it was being considered in the Congress and it has not weakened. Neither should these views be construed to indicate any lack of sup port of funding for implementation of the Coastal Zone Management Act of 1972. I am deeply concerned about the failure of the Adminis tration to fund this program, which is now public law. Instead, the Administration has included in its Fiscal Year 1974 budget request a “contingency fund” for land use planning, when legislation has not yet been enacted. I have previously indicated my view that the Coastal Zone Management Act should be funded so th at coastal states can move on with the difficult task of establishing management programs at the earliest possible time. As a member of the Senate Appropriations Committee, I intend to pursue this funding problem further as we take action on appropriations for the Department of the Interior and the Department of Commerce. Coastal Zone Management should not and need not wait for passage of S. 268, just as it should not depend upon S. 268 for its implementation. I am hopeful that the language in S. 268 to which I have referred can be amended in such a way as to insure that the states are given maximum flexibility to draw on both the Coastal Zone Management Act of 1972 and the Land Use Policy and Planning Assistance Act. I believe these Acts are complementary, but I disagree with the man ner in which the Committee has dealt with the matter. M a r k O. H a t f ie l d . ADDITIONAL VIEWS OF MR. BUCKLEY In legislating the means for achieving certain social objectives found to be in the national interest, Congress too often trips over the very fine line which divides encouragement from coercion. In my judgment, the Land Use Policy and Planning Assistance Act of 1973, as reported by this Committee, succeeds by the thinnest of margins in conforming its requirements to its stated purpose: “to encourage and assist the several States to more effectively exercise their constitutional respon sibilities for the planning and management of their land base through the development and implementation of State land use programs.” As reported, S. 268 does not impose any sanction on any State for failure to implement the provisions of the Act, other than ineligibility for the grants authorized by the Act. The Chairman has, however, an nounced his intention to offer to the full Senate an amendment which would impose on any non-conforming State the further penalty of withholding from such State an increasing portion of funds under three significant federal programs. Should this or a similarly coercive amendment succeed, I shall have to reassess my position. I see no rea son why a state should not be required to subject itself to the discipline of implementing the land use planning procedures described in the Act. At the point where a state adopts a land use program, however, there are wide areas where subjective judgment can be brought to bear as to such a program’s adequacy. Even though the Act does not vest in the Secretary the authority to make such a judgment, he could nevertheless utilize the naked power that the sanctions proposed by the Chairman would grant him in order to compel a state to substitute the Secretary’s judgment for its own. Given the extent of the planning procedures the Act requires of a state, it should not be too difficult for a Secretary to find procedural technicalities on the basis of which to find a state in default should he wish to. Among my chief concerns with this legislation was the potential for undue interference in the relationship between the states and their political subdivisions. Some of my major concerns have been resolved as a result of changes made in the mark-up sessions. As the Act now stands, with limited and explicit exceptions, nothing in it should be construed to require a State to assume the power to override decisions made by local governments affecting land use within their jurisdiction where such decisions impose more stringent controls over development or over areas of critical environmental concern than those deemed necessary by the State. The pending Federal legislation does not, by its terms, erode the right of local governments to restrict the develop ment of land within their own jurisdiction. This question was dis cussed at some length in the mark-up session, and I believe any latent ambiguity was removed in the language finally agreed to. I refer spe cifically to the language of Section 611(h) and to the limited applica tion of the override authority required of a State under subparagraph (166) 167

203(a) (3) (c) and subsection 203(d) to “arbitrary or capricious” local regulations. Should a State determine for itself that the power to over ride local policies is necessary or desirable, it of coui-se continues to have the power to do so by enacting appropriate legislation. Another major concern with the pending Federal legislation, which is shared by many members of the Committee, is that enactment of this kind of Federal law in itself threatens to usurp the constitutional prerogative of the States to govern the use of the land within their jurisdiction. My own support of S. 268 is premised on the belief that our policy is essentially limited to requiring the States to implement the plan ning process stipulated in the Act in good faith. In reviewing a state's progress in adopting a land use plan for the purpose of determining eligibility for a grant, the Secretary of Interior is not to substitute his judgment for that of the State as to the adequacy or merits of the substance of any plan adopted in good faith. An exception to this is made in the case of Section 204(1), w'hich authorizes the Secretary to require a State to protect those areas of critical environmental concern which he judges to be of more than statewide significance. I support this provision because I believe there are certain en vironmentally critical areas in which there is a legitimate Federal concern in the use to which private and State-owned lands is put. However, as in any conferment of broad discretion upon an adminis trator, it is expected, and indeed required under paragraph 306(g) (2), that the Secretary's determination of the national interest be reason able. I alluded earlier to fears that an overzealous Secretary might abuse sanctions, should these be introduced into the Act by amendment. Even without sanctions, there remains the problem of assuring an appropri ate balance between state and federal prerogatives. I believe the Act as reported out goes a long way towards protecting the states against arbitrary federal action. Section 306, dealing with Federal review of grant eligibility, provides for an ad hoc hearing board of appeal for any State determined by a Secretary to be ineligible for a grant under this Act. The composition of this board under S. 268 as reported is far more independent of the Federal administrating agency than was originally contemplated. In addition, the Secretary is required to carry the burden of proof to establish a State’s ineligibility before the board, under standards specified in subsection 306(g). The adoption by the Committee of these safeguards has diminished the fear, which I ex pressed last year, that a Secretary might allege some procedural defect in a State’s planning process in order to correct what he in fact felt to be a weakness in the substance of a State’s program. J a m e s L. B u c k l e y . o Senator,

The following letter and legislative package was mailed to the Governor, OHA, Alu Like, Bishop Estate, and Hawaiian Homelands. They should recieve it today or tomorrow. You may therefore receive inquiries about it upon your return to Hawaii.

Brian October 29, 1973 DRAFT

In many ways, Hawaii's history is one of contradictions. It is laced with events signifying pride and honor; but also, deception and disgrace.

It is glorious and noble; and at the same time, sad and depressing.

Essentially, in the process of blending the island's Polynesian culture with that of the mainland's Anglo-European one, much of what was uniquely

Hawaiian, was lost.

In 1778, Captain James Cook "discovered" the Hawaiian islands and landed at Waimea, Kauai. He was originally thought to be the God Lono and the Hawaiians who had inhatabitated these islands for over a thousand years, treated him with tremendous respect. The following year, Captain

Cook returned to the islands and met his unfortunate death in what was an extremely prophetic misunderstanding. One which highlighted the basic difference between the two cultures, and one which has never really been resolved. To the visitors, private property was sacred and sought after; to the natives, it did not exist. Stated another way, was land to be possessed by a few, or used by all?

Historically, the basic land tenure system of the Hawaiians was a monarchial and perhaps semi-feudal one. The land belonged to the king or principle chief on each island. He owned all of the land and property and held power of life and death over his people. He divided his holding among his lesser chiefs into large estates called ahupuaas, which usually extended Page Two

from the shores to the mountains. These were in turn, further subdivided into ilis to be run by lesser chiefs. Finally, smaller plots were provided for the commoners in exchange for a certain share of their crops, labor, and military service. If the kind died or was defeated, his land would be redivided among the new lesser chiefs. Of interest, these events rarely effected the commoner, or makaainana. An elaborate system of religious kapus existed which reinforced this structure and which provided stability to the Hawaiian people. Around 1810, Kamehameha was able to unite all of

Hawaii under his personal rule.

In approximately 1820, the firs t m issionaries arrived in Hawaii and thus began what is perhaps the most controversial era in Hawaii’s history.

There can be no question that most of these individuals were extremely religious and acted in a manner that they thought was best for the Hawaiians.

However, the combination of their undermining the traditional Kapu system, the effect of various diseases brought in by the foreigners (haoles), and the tremendously increasing participation of haoles in the government led to the situation where in 1850, the Honolulu Times stated that: ( to obtain land )

"Go to Boston and be appointed a missionary. " In fact, by 1852, there were

16 missionaries who held title to 7, 886 acres where there were only 20 who had acquired no land. Similarly, the first census conducted in 1853 indicated that there were only 71, 000 Hawaiians in contrast to estimates of up to 300, 000 when Captain Cook originally arrived. The "great mahele" Page Three

of 1848 was undoubtedly the climax of these developments.

Interwoven with the developments which led to the "Great Mahele"

is the clear picture of increasing haloe dominance, both financial and political. They, and especially the Sugar interests, felt that it was

extremely important to be able to obtain the security which comes with

direct land ownership and acted accordingly.

The antecedents of "land reform" were found as early as 1825 when

Kamehameha III ascended the throne at the age of 12. A national council

of chiefs was developed to confirm the new king and to establish policy.

Their recommendations resulted in the "Law of 1825" and essentially affected the permanent abandonment of the traditional redistribution custom and adopted the Western practice of inheritance; The new constitution of

1840 further declared that the chiefs and the people w ere to be joint owners of the land. Finally, in 1848, the "G reat Mahele" was adopted and signed by the King. By this, Kamehameha III officially divided his lands which his chiefs and certain land was also set aside for the government. The

recognition of fee simple title for the common tenants and for foreigners evolved around 1850.

A Land Commission was established and until its termination in

1855, this was the vehicle for straightening out conflicting claims. However, a great many nommoners never received title to their land. Many failed to file claims and most did not appreciate the importance of the new law. Page Four

For example, of the 1, 500, 000 acres set aside for the government and people, less than 30, 000 acres were awarded to native tenants. But of even m ore importance is the fact that much of this and much of that ceeded to the chiefs, was brought up by the haoles who clearly appreciated its potential value. Further attempts in 1884 and the Hawaiian Homes

Commissions of 1921 were also attempts to rectify this situation.

Highly related to the land tenure issiie was the even more central issue of overall haole and sugar interest domination of the local Hawaiian government. Around the 1890’s there was a strong pro-US annexation drive.

President Grover Cleveland summed up their activities in a strong address to the Congress as: "The lawful government of Hawaii was overthrown without the drawing of a sword or the firing of a shot by a process everystep of which, it may safely be asserted, is directly traceable to and dependent for its success upon the agency of the United States actingtirough its diplomatic and naval representatives. " Similarly, after an abortive attempt to regain her rightful position, Queen Liliuokalani was imprisoned in her palace. The haoles may not have been "right", but they clearly had the power to obtain what they wanted. Annexation occurred in 1898 and statehood in 1959. By then, the special Hawaiian interests had succumbed. -DATELINE— WASHINGTON A Report to Hawaii from -

Senator

DANIEL K. INOUYE

NATIVE HAWAIIAN LAND CLAIMS In 1971, the U.S. Congress passed the Alaska Native the Islands at heart, the Hawaiians lost much acreage Claims Settlement Act. without having received fair financial reparation or the benefits" of due process under the law. I have detailed Under this act, the United States sought to inscribe my history findings for you on page two. in law a land and monetary settlement to compensate the natives of Alaska for their aboriginal—or native— To provide some restitution, I propose that the U.S. rights. Congress establish a special corporation for Hawaii citi zens of at least one-fourth Hawaiian blood. This corpor At the end of 1971, the President signed this act into ation would pay its expenses and draw profits by own law. As a result, our nation officially recognized certain ing and administering all present and future Hawaiian entitlements retained by Alaska’s native Indian Aleut Home lands. The membership, through its elected and Eskimo population as natives of the land. The act board of directors, could lease or develop the lands for also was designed to settle claims by these natives of recreational, residential, or commercial use—however it title to lands on which they had fished, hunted, and saw fit. dwelled for countless generations, but whose clear-titie ownership had been left open to dispute. Under my proposal, the corporation’s lands would include the following: Since the law’s enactment, much interest has been • Lands currently owned by the State government shown both by persons of Hawaiian ancestry and by but which are being leased to private concerns and are others for a similar law to settle land claims by native not being used for governmental purposes; y Hawaiians in Hawaii. That law would seek settlement to compensate the Hawaiians for their “native rights.” • Lands now administered by the Hawaiian Homes Commission; Even before the Alaska Native Claims Settlement Act was born, I devoted much thought and study to this • Lands presently owned by the Red'eral govern complex problem. Now I would like to share with you ment, to be turned over to the corporation as they some of my thoughts and conclusions. become surplus to Lederal government needs.

Members would hold shares of stock—initially, per A PROPOSAL haps 100 shares per person—and profits would be ap I feel that the Hawaiians have *as much right as the portioned among members through dividends. To pro Alaskans to some form of compensation for loss of vide a measure of stability, shareholders would not be lands. able to sell, transfer, or alienate their stock for the first 20 years. In event of death or divorce, stock could be The basis lies in Hawaii’s history. Although most mis transferred only to qualified beneficiaries. sionaries and business concerns had the best interests of The Lederal government would appropriate about $500 million for the Hawaiian corporation. (The Alaska Native Claims Settlement Act appropriated $462 mil lion.) Corporate membership would elect its board of directors for staggered four-year terms. This board, which would report annually to stockholders, would have to make full public disclosure of its activities.

Briefly, other provisions are:

• Present lessees may continue to reside on Home lands, but dividends to these lessees would be less the amount of the annual appraised value of their leased property.

• The board could sell land parcels only if the stock holders approved by a 2/3 referendum vote.

• Corporate profits would be subject to applicable Lederal, State, and local taxes, and stockholders would pay applicable income tax on dividends. THE ISLANDS' HISTORY

In many ways, Hawaii’s history is one of contra dictions.

It is marked with events that signified both pride and honor, deception and disgrace. Hawaii’s history is glorious and noble; at the same time, it is stained by injustice. Essentially, during the process of blending the Islands’ Polynesian culture with that of the Mainland Anglo-Europeans, much of what was uniquely Hawaiian was lost.

Historically, the Hawaiians’ basic land tenure system was a monarchical, semifeudal one. The land belonged to the king or principal chief of each island. He not only “owned” all of the land and property, but also held power of life and death over his people. He divided his holdings among lesser chiefs into large estates called ahupuaas, lands usually extending from the shores to the mountains. These were further subdivided into ilis to be operated by lesser chiefs. Finally, smaller plots were provided for the commoners in exchange for a certain share of their crops, labor, and military service. An elaborate system of religious “kapus” existed to Queen Liliuokalani was a key figure in Hawaiians’ at reinforce this structure—thus providing the Hawaiian tempt to regain control over Island concerns. With her society with a certain stability. ouster and imprisonment at the close of 19th century, this movement lost much of its momentum. In 1820, the first missionaries arrived in Hawaii from the Mainland. This opened what is perhaps the most controversial era in Hawaii’s history. government led to the situation where, in 1850, the Honolulu Times stated that: (to obtain land) “ Go to There can be no question that most of these Am eri Boston and be appointed a missionary.” Records show cans were extremely religious and acted sincerely in a that, by 1852, 16 missionaries held title to 7,886 acres manner that they thought was best for the Hawaiians. of Island land. Similarly, the first census, conducted in However, the combination of their undermining the tra 1853, indicated that there were only 71,000 Hawaiians, ditional “ kapu” system and the tremendously increas in contrast to estimates of up to 300,000 when Captain ing participation of these new residents in the Hawaiian Cook originally arrived. Undoubtedly, the “Great Mahele” of 1848 represented the climax of these de velopments.

Interwoven with these developments is a clear picture of increasing foreigner dominance in both financial and political affairs. They, particularly the sugar interests, felt it was extremely important to ob tain the security which comes with direct land owner ship. They acted accordingly.

The antecedents of “land reform” appeared as early as 1825 when 12-year-old Kamehameha III ascended the throne. A national council of chiefs was organized to confirm the new king and to establish policy. Their recommendations resulted in the “ Law of 1825,” which essentially demolished the traditional custom of land redistribution and replaced it with the Western practice of inheritance. The new constitution further declared that the chiefs and the people were to be joint owners of the land. In 1848, King Kamehameha III signed the “Great Mahele,” a declaration in which he officially divided his lands among his chiefs and set aside certain lands for the government.

It was around 1850 that a fee simple title system for the common tenants and for foreigners evolved. A Land Commission was established, and until its termination U.S. President Grover Cleveland requested investigation in 1855, it was the vehicle by which land titles were into collapse of the Hawaiian monarchy, then con awarded and conflicting claims were resolved. However, cluded Americans had illegally overthrown the Queen’s a great many commoners never received titles to their Government. He did not support annexation of Hawaii land. Because many did not understand the importance by the United States. of the new law, many failed to file any claims at all. HOW ARE THE ALASKAN AND HAWAIIAN LAND CLAIMS CASES DIFFERENT? Alaska Hawaii

TOTAL LAND AREA 571,065 sq. mi. (I960) 6,415 sq. mi. (1960)

FEDERAL-OWNED LAND AREA 353,000,000 acres, most o f which remain unas- 396,000 acres, most of which have been assigned signed for usage. usage. (For example: National Park lands and m ili tary installations such as Fort Shatter and Pearl Harbor.)

U.S. GOVERNMENT ATTITUDE Native Alaskans generally have been considered in Native Hawaiians, on the other hand, have not been terms of distinct tribal units, similar to the Amer grouped on any particular basis. For the most part, ican Indian. Accordingly, the U.S. government has contemporary Hawaiians are broadly assimilated in viewed and treated these Alaskan native groups as society. Consequently, the IM AGE retained by the "wards” o f the State. native Hawaiian is less distinct than that of the native Alaskan, and for many Americans, the term “Hawaiian” most readily suggests a resident of Hawaii, not a member of a specific native grouping.

NATIVE RIGHTS TO OWN LAND Alaska’s land tenure system did not allow natives to Because of the “Great Mahele,” by the time of annex- own land. So, when Alaska achieved Statehood, ation (1 898), Hawaii had a highly developed system Congress indicated that the U.S. should assume re- of fee simple land ownership. Hence, Congress pro- sponsibility for the natives’ land rights, andguaran- vided no similar guarantee of natives’ land rights in teed to them some form o f future settlement. the Hawaii Organic Act.

TRADITIONAL NATIVE RIGHTS TO PUBLIC LANDS The Alaska Statehood Act drew a dear distinction The Hawaii Statehood Act made no such dis between the historical right of Alaskan natives and tinction. No consideration was made for any special the general right of the State to lay claim to lands native rights to lay claim to lands in the public in the public domain in Alaska. domain in Hawaii.

PRIOR LITIGATION EFFORTS Alaskan native groups previously had initiated liti- To date, no such comparable effort has been made gation to legally perfect title to these lands which by Hawaiian native groups to similarly reclaim their they historically had used. lands. Thus, judicial history is nonexistent.

NATIONAL VS. LOCAL INTEREST Legislatively, the Alaska Native Claims Settlement Because Hawaii has no similar natural resource de A ct attracted national interest because o f the posits, a similar legislative proposal for native potential widespread ramifications o f any determi Hawaiians would probably be construed as a nation of land rights. (For example: the effect o f a localized issue. land right settlement on mineral extraction or oil drilling.) HOW ARE THE ALASKAH AHD HAWAIIAN LAND CLAIMS CASES SIMILAR? In a special report conducted by the Library of Con ‘And finally, but for the lawless occupation of Honolulu gress in April, 1973, at my request, a very important under false pretexts by the United States forces, and argument in support of a special claim by native but for Minister Stevens’ recognition of the provisional Hawaiian people is found in a section entitled, “Hawaii government when the United States forces were its sole support and constituted its only military strength, the Became an American Territory Under Foreign In Queen and her Government would never have yielded to fluence and Without the Consent of the Native the provisional government, even for a time and for the Hawaiian People.” I wish to quote this section for you: sole purpose of submitting her case to the enlightened justice of the United States.’ “The U.S. acquired Alaska from Russia without the consent of the Alaska natives who lived there. Thus the assumption of title to public domain in Alaska by the U.S. Government left “On the basis of these conclusions, President Cleveland re the natives without compensation for any of Alaska’s 365 fused to resubmit to the Senate a Treaty of Annexation which million acres, which they had used and occupied for centuries, had been drawn up in 1893. and to which, on the basis of use and occupancy, they claimed aboriginal title. The Alaska settlement vested title in “The Republic which governed Hawaii between 1894 and the natives to 40 million acres and provided a cash settlement 1898 served as a kind of ‘interim government’ between the totaling nearly one billion dollars as payment for extinguish Monarchy and Annexation, and, in the opinion of many ment of aboriginal title to the rest of the land. scholars, did not truly represent the Hawaiian people:

“ It has been argued ever since the 1893 Revolution in Hawaii ‘The new government was considerably more ‘repub that Annexation to the U.S. was not the will of most of lican’ than democratic. The president was to be elected Hawaii’s native population. by the legislature for a single term of six years, although (the first and only President, Sanford B. Dole) was “President Grover Cleveland appointed a special commissioner named by the Constitution as president until the end of to Hawaii, James H. Blount, who investigated the circum the year 1900. Property qualifications were imposed stances relating to the overthrow of the Hawaiian monarchy upon members of the two-house legislature, as well as in January, 1893, and flatly concluded that the revolution on voters eligible to elect senators. . . .’ was the result of a conspiracy between the U.S. Minister to Hawaii, John L. Stevens, and revolutionary leaders in Hawaii. “The President, Sanford B. Dole, was a white man.

“President Cleveland’s Secretary of State, Walter Q. Gresham, “Thus it can be argued that the Annexation Treaty, approved wrote the President in October of 1893: by the Hawaiian Senate and signed by President Dole on ‘Mr. Blount states that while at Honolulu he did not September 10, 1897, was sanctioned by a legislature and gov meet a single annexationist who expressed willingness to ernment that arose from an act that, in the opinion of the submit the question to a vote of the people, nor did he President’s special emissary, was contrary to the will of the talk with one on that subject who did not insist that if Hawaiian people. the Islands were annexed suffrage should be so re stricted as to give complete control to foreigners or “It could thus be argued that when Hawaii joined the U.S. whites. Representative annexationists have repeatedly and ceded the government and crown lands of the Hawaiian made similar statements to the undersigned.’ people to the U.S., it did so without consent (and possibly against the will) of the native population, who, as in Alaska, “ It was the President’s conclusion, based on the reports, that: found themselves without title to the ancestral lands on which ‘The lawful Government of Hawaii was overthrown they had lived and which they had used from time immemo without the drawing of a sword or the firing of a shot rial. Although the Statehood Act retroceded these lands to by a process every step of which, it may safely be as the State of Hawaii, nearly 400,000 acres of what was orig serted, is directly traceable to and dependent for its inally Hawaiian government lands are still owned by the U.S. success upon the agency of the United States acting government. While it would not seem feasible to redistribute through its diplomatic and naval representatives. this land to the people (the bulk being either assigned to the Interior Department, as part of the National Park System or ‘But for the notorious predilections of the United States the military), a cash compensation for extinguishment of Minister for Annexation, the Committee of Safety, aboriginal title, similar to that provided in the Alaska settle which should be called the Committee of Annexation, ment, would seem to be justified in light of the Alaska would never have existed. precedent.”

‘But for the landing of the United States forces upon The Library of Congress report cites two other im false pretexts respecting the danger to life and property portant arguments in support of native Hawaiian the committee would never have exposed themselves to claims. For one thing, according to the study, the U.S. the pains and penalties of treason by undertaking the government paid no compensation to the native popula subversion of the Queen’s Government. tion for Federal lands in either Hawaii or Alaska before ‘But for the presence of the United States forces in the the Alaskan settlement. For another thing, the study immediate vicinity and in position to afford all needed reports that as written, the Hawaii Organic Act of protection and support the committee would not have 1900, like the Alaska Organic Act of 1884, left open proclaimed the provisional government from the steps the possibility for some future legislative settlement of of the Government building. native land claims.

'UlCuiieb JSycnaic WASHINGTON, D.C. 20510

U.S. s. -DATELINE

A Report to Hawaii from -

Senator

DANIEL K. INOUYE

NATIVE HAWAIIAN LAND CLAIMS

In 1971, the U.S. Congress passed the Alaska Native the Islands at heart, the Hawaiians lost much acreage Claims Settlement Act. w ithout having received fair financial reparation or the benefits' of due process under the law. I have detailed Under this act, the United States sought to inscribe my history findings for you on page two. in law a land and monetary settlement to compensate the natives of Alaska for their aboriginal—or native— To provide some restitution, I propose that the U.S. rights. Congress establish a special corporation for Hawaii c iti zens of at least one-fourth Hawaiian blood. This corpor A t the end of 1971, the President signed this act into ation would pay its expenses and draw profits by own law. As a result, our nation officially recognized certain ing and administering all present and future Hawaiian entitlements retained by Alaska’s native Indian Aleut Home lands. The membership, through its elected and Eskimo population as natives of the land. The act board of directors, could lease or develop the lands for also was designed to settle claims by these natives of recreational, residential, or commercial use—however it title to lands on which they had fished, hunted, and saw fit. dwelled for countless generations, but whose clear-titie ownership had been left open to dispute. Under my proposal, the corporation’s lands would include the following: Since the law’s enactment, much interest has been • Lands currently owned by the State government shown both by persons of Hawaiian ancestry and by but which are being leased to private concerns and are others for a similar law to settle land claims by native not being used for governmental purposes; Hawaiians in Hawaii. That law would seek settlement to compensate the Hawaiians for their “ native rights.” • Lands now administered by the Hawaiian Homes Commission; Even before the Alaska Native Claims Settlement Act was born, I devoted much thought and study to this • Lands presently owned by the Federal govern complex problem. Now I would like to share with you ment, to be turned over to the corporation as they some of my thoughts and conclusions. become surplus to Federal government needs.

Members would hold shares of stock—initially, per A PROPOSAL haps 100 shares per person—and profits would be ap I feel that the Hawaiians have as much right as the portioned among members through dividends. To pro Alaskans to some form of compensation for loss of vide a measure of stability, shareholders would not be lands. able to sell, transfer, or alienate their stock for the first 20 years. In event of death or divorce, stock could be The basis lies in Hawaii’s history. Although most mis transferred only to qualified beneficiaries. sionaries and business concerns had the best interests of The Federal government would appropriate about $500 million for the Hawaiian corporation. (The Alaska Native Claims Settlement Act appropriated $462 mil lion.) Corporate membership would elect its board of directors for staggered four-year terms. This board, which would report annually to stockholders, would have to make full public disclosure of its activities.

Briefly, other provisions are:

• Present lessees may continue to reside on Home lands, but dividends to these lessees would be less the amount of the annual appraised value of their leased property.

• The board could sell land parcels only if the stock holders approved by a 2/3 referendum vote.

• Corporate profits would be subject to applicable Federal, State, and local taxes, and stockholders would pay applicable income tax on dividends. THE ISLANDS' HISTORY

In many ways, Hawaii’s history is one of contra dictions.

Historically, the Hawaiians’ basic land tenure system was a monarchical, semifeudal one. The land belonged to the king or principal chief of each island. He not only “ owned” all of the land and property, but also held power of life and death over his people. He divided his holdings among lesser chiefs into large estates called ahupuaas, lands usually extending from the shores to the mountains. These were further subdivided into ilis to be operated by lesser chiefs. Finally, smaller plots were provided for the commoners in exchange for a certain share of their crops, labor, and m ilitary service. An elaborate system of religious “ kapus” existed to Queen Liliuokalani was a key figure in Hawaiians’ at reinforce this structure—thus providing the Hawaiian tempt to regain control over Island concerns. With her society with a certain stability. ouster and imprisonment at the close of 19th century, this movement lost much of its momentum. In 1820, the first missionaries arrived in Hawaii from the Mainland. This opened what is perhaps the most controversial era in Hawaii’s history. government led to the situation where, in 1850, the Honolulu Times stated that: (to obtain land) “ Go to There can be no question that most of these Ameri Boston and be appointed a missionary.” Records show cans were extremely religious and acted sincerely in a that, by 1852, 16 missionaries held title to 7,886 acres manner that they thought was best for the Hawaiians. of Island land. Similarly, the first census, conducted in However, the combination of their undermining the tra 1853, indicated that there were only 71,000 Hawaiians, ditional “ kapu” system and the tremendously increas in contrast to estimates of up to 300,000 when Captain ing participation of these new residents in the Hawaiian Cook originally arrived. Undoubtedly, the “Great Mahele” of 1848 represented the climax of these de velopments.

The antecedents of “ land reform ” appeared as early as 1825 when 12-year-old Kamehameha III ascended the throne. A national council of chiefs was organized to confirm the new king and to establish policy. Their recommendations resulted in the “ Law of 1825,” which essentially demolished the traditional custom of land redistribution and replaced it with the Western practice of inheritance. The new constitution further declared that the chiefs and the people were to be joint owners of the land. In 1848, King Kamehameha III signed the “ Great Mahele,” a declaration in which he officially divided his lands among his chiefs and set aside certain lands for the government.

It was around 1850 that a fee simple title system for the common tenants and for foreigners evolved. A Land Commission was established, and until its termination U.S. President Grover Cleveland requested investigation in 1855, it was the vehicle by which land titles were into collapse of the Hawaiian monarchy, then con awarded and conflicting claims were resolved. However, cluded Americans had illegally overthrown the Queen’s a great many commoners never received titles to their Government. He did not support annexation of Hawaii land. Because many did not understand the importance by the United States. of the new law, many failed to file any claims at all. HOW ARE THE ALASKAH AND HAWAIIAN LAND CLAIMS CASES DIFFERENT? Alaska Hawaii

TOTAL LAND AREA 571,065 sq. mi. (1960) 6,415 sq. mi. (1960)

FEDERAL-OWNED LAND AREA 353,000,000 acres, most o f which remain unas- 396,000 acres, most of which have been assigned signed fo r usage. usage. (For example: National Park lands and m ili tary installations such as Fort Shafter and Pearl Harbor.)

U.S. G O VER N M EN T A T T IT U D E Native Alaskans generally have been considered in Native Hawaiians, on the other hand, have not been terms of distinct tribal units, similar to the Amer grouped on any particular basis. For the most part, ican Indian. Accordingly, the U.S. government has contemporary Hawaiians are broadly assimilated in viewed and treated these Alaskan native groups as society. Consequently, the IMAGE retained by the “ wards” o f the State. native Hawaiian is less distinct than that of the native Alaskan, and for many Americans, the term “ Hawaiian” most readily suggests a resident of Hawaii, not a member of a specific native grouping.

NATIVE RIGHTS TO OWN LAND Alaska’s land tenure system did not allow natives to Because of the “Great Mahele,” by the time of annex- own land. So, when Alaska achieved Statehood, ation (1898), Hawaii had a highly developed system Congress indicated that the U.S. should assume re- of fee simple land ownership. Hence, Congress pro- sponsibility for the natives’ land rights, andguaran- vided no similar guarantee of natives’ land rights in teed to them some form o f future settlement. the Hawaii Organic Act.

TRADITIONAL NATIVE RIGHTS TO PUBLIC LANDS

The Alaska Statehood Act drew a dear distinction The Hawaii Statehood Act made no such dis between the historical right of Alaskan natives and tinction. No consideration was made for any special the general right o f the State to lay claim to lands native rights to lay claim to lands in the public in the public domain in Alaska. domain in Hawaii.

NATIONAL VS. LOCAL INTEREST Legislatively, the Alaska Native Claims Settlement Because Hawaii has no similar natural resource de A ct attracted national interest because o f the posits, a similar legislative proposal for native potential widespread ramifications of any determi Hawaiians would probably be construed as a nation o f land rights. (For example: the effect of a localized issue. land right settlement on mineral extraction or oil drilling.) HOW ARE THE ALASKAN AND HAWAIIAN LAND CLAIMS CASES SIMILAR? In a special report conducted by the Library of Con ‘And finally, but for the lawless occupation of Honolulu gress in April, 1973, at my request, a very important under false pretexts by the United States forces, and argument in support of a special claim by native but for Minister Stevens’ recognition of the provisional Hawaiian people is found in a section entitled, “ Hawaii government when the United States forces were its sole Became an American Territory Under Foreign In support and constituted its only military strength, the Queen and her Government would never have yielded to fluence and Without the Consent of the Native the provisional government, even for a time and for the Hawaiian People.” I wish to quote this section for you: sole purpose of submitting her case to the enlightened justice of the United States.’ “The U.S. acquired Alaska from Russia without the consent of the Alaska natives who lived there. Thus the assumption of title to public domain in Alaska by the U.S. Government left “On the basis of these conclusions, President Cleveland re the natives without compensation for any of Alaska’s 365 fused to resubmit to the Senate a Treaty of Annexation which million acres, which they had used and occupied for centuries, had been drawn up in 1893. and to which, on the basis of use and occupancy, they claimed aboriginal title. The Alaska settlement vested title in “The Republic which governed Hawaii between 1894 and the natives to 40 million acres and provided a cash settlement 1898 served as a kind of ‘interim government’ between the totaling nearly one billion dollars as payment for extinguish Monarchy and Annexation, and, in the opinion of many ment of aboriginal title to the rest of the land. scholars, did not truly represent the Hawaiian people:

“ It has been argued ever since the 1893 Revolution in Hawaii ‘The new government was considerably more ‘repub that Annexation to the U.S. was not the will of most of lican’ than democratic. The president was to be elected Hawaii’s native population. by the legislature for a single term of six years, although (the first and only President, Sanford B. Dole) was “President Grover Cleveland appointed a special commissioner named by the Constitution as president until the end of to Hawaii, James H. Blount, who investigated the circum the year 1900. Property qualifications were imposed stances relating to the overthrow of the Hawaiian monarchy upon members of the two-house legislature, as well as in January, 1893, and flatly concluded that the revolution on voters eligible to elect senators. . . . ’ was the result of a conspiracy between the U.S. Minister to Hawaii, John L. Stevens, and revolutionary leaders in Hawaii. “The President, Sanford B. Dole, was a white man.

“ President Cleveland’s Secretary of State, Walter Q. Gresham, “Thus it can be argued that the Annexation Treaty, approved wrote the President in October of 1893: by the Hawaiian Senate and signed by President Dole on ‘Mr. Blount states that while at Honolulu he did not September 10, 1897, was sanctioned by a legislature and gov meet a single annexationist who expressed willingness to ernment that arose from an act that, in the opinion of the submit the question to a vote of the people, nor did he President’s special emissary, was contrary to the will of the talk with one on that subject who did not insist that if Hawaiian people. the Islands were annexed suffrage should be so re stricted as to give complete control to foreigners or “ It could thus be argued that when Hawaii joined the U.S. whites. Representative annexationists have repeatedly and ceded the government and crown lands of the Hawaiian made similar statements to the undersigned.’ people to the U.S., it did so without consent (and possibly against the will) of the native population, who, as in Alaska, “ It was the President’s conclusion, based on the reports, that: found themselves without title to the ancestral lands on which ‘The lawful Government of Hawaii was overthrown they had lived and which they had used from time immemo without the drawing of a sword or the firing of a shot rial. Although the Statehood Act retroceded these lands to by a process every step of which, it may safely be as the State of Hawaii, nearly 400,000 acres of what was orig serted, is directly traceable to and dependent for its inally Hawaiian government lands are still owned by the U.S. success upon the agency of the United States acting government. While it would not seem feasible to redistribute through its diplomatic and naval representatives. this land to the people (the bulk being either assigned to the Interior Department, as part of the National Park System or ‘But for the notorious predilections of the United States the military), a cash compensation for extinguishment of Minister for Annexation, the Committee of Safety, aboriginal title, similar to that provided in the Alaska settle which should be called the Committee of Annexation, ment, would seem to be justified in light of the Alaska would never have existed. precedent.”

‘But for the landing of the United States forces upon The Library of Congress report cites two other im false pretexts respecting the danger to life and property portant arguments in support of native Hawaiian the committee would never have exposed themselves to claims. For one thing, according to the study, the U.S. the pains and penalties of treason by undertaking the government paid no compensation to the native popula subversion of the Queen’s Government. tion for Federal lands in either. Hawaii or Alaska before ‘But for the presence of the United States forces in the the Alaskan settlement. For another thing, the study immediate vicinity and in position to afford all needed reports that as written, the Hawaii Organic Act of protection and support the committee would not have 1900, like the Alaska Organic Act of 1884, left open proclaimed the provisional government from the steps the possibility for some future legislative settlement of of the Government building. native land claims.

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