United States: Landmark Public Lands Legislation Passes With Broad Bipartisan Support

On Tuesday, February 26, 2019, the U.S. House of Representatives voted to enact landmark legislation that promotes conservation, recreation, historical preservation and cultural resources across the country. The Natural Resources Management Act (also referred to as the John D. Dingell Jr. Conservation, Management and Recreation Act), which was overwhelmingly approved by the Senate earlier in February, received broad bipartisan support in the House. President Trump is expected to sign the bill into law.

The Act, originally introduced by Energy and Natural Resources Chairwoman Senator Lisa Murkowski (R-AK), is a compilation of more than 100 land and water bills and constitutes the largest public lands package in a decade, since the Omnibus Public Lands Management Act of 2009 (Pub. L. No. 111-11). The Act's conservation, recreation and preservation measures impact public lands in nearly every state. Below are just some of the Act's most noteworthy provisions:

  • Permanent Authorization for the Land and Water Conservation Fund (LWCF). One of the most celebrated provisions in the Act is the permanent reauthorization of the LWCF, a conservation tool created by Congress in 1964 that uses royalties paid to the federal government from offshore oil and gas extraction to fund onshore conservation programs. The LWCF is a widely popular program and is viewed as an important source of funding for key conservation initiatives. Despite this, authorization for the fund has lapsed several times in recent years (including most recently on September 30, 2018). By permanently reauthorizing the LWCF, the Act eliminates the uncertainty around future authorizations. It is important to note, however, that the Act does not mandate funding for the LWCF, which has historically been funded well below its authorized level of $900 million. The level of funding appropriated for the LWCF in the annual congressional budget process will be worth watching.
  • Wilderness Designations, National Monuments and National Park Size Increases. The Act designates more than one million acres of wilderness across Utah, New Mexico, Oregon and California, and increases the size of Death Valley National Park and Joshua Tree National Park in California. It also creates four new national monuments: the Mill Springs Battlefield National Monument and Camp Nelson Heritage National Monument, commemorating Civil War sites in Kentucky; the Medgar and Myrlie Evers Home National Monument in Mississippi, recognizing the civil rights activists; the Saint Francis Dam Disaster National Memorial and Monument in California, honoring the victims of the Saint Francis Dam disaster of March 12, 1928; and the Jurassic National Monument, created to preserve the paleontological, scientific, educational and recreational resources in this area of Utah. While national monuments can be designated administratively by the President, a legislative designation is much more durable and can only be reversed by a future act of Congress.
  • Wildfire Technology Modernization. The Act also includes measures to address the increasing risk of catastrophic wildfires, which have had devastating impacts across the West in recent years. For example, the Act directs the Department of the Interior and the Department of Agriculture to take steps to promote the use of best-available technologies to facilitate effective and cost-efficient wildfire responses, including establishing a research and development program to assess the effectiveness of utilizing unmanned aircraft system technologies in wildfire management operations. It also directs these federal agencies to coordinate with state wildfire agencies to develop technology such as GPS tracking systems to remotely locate fire resources for firefighters.
  • Mineral Withdrawals Near National Parks. The Act withdraws more than 370,000 acres of National Forest System land from disposition under federal mining laws. Specifically, the permanent mineral withdrawals apply to approximately 30,000 acres in Montana north of Yellowstone National Park and approximately 340,000 acres in Washington's Okanogan-Wenatchee National Forest outside of North Cascades National Park. As with all such mineral withdrawals, the removal is subject to valid existing rights.
  • Increased Access for Recreational Activities on Public Lands. In addition to conservation and preservation issues, certain provisions in the Act are also designed to increase access to federal lands for recreational activities. In particular, the Act aims to expand opportunities for sporting activities by codifying that federal lands are open to hunting, fishing and recreational shooting unless otherwise expressly forbidden. It also details the process that the Department of the Interior and Department of Agriculture must follow before prohibiting these activities on federally managed lands, and makes clear that any such limitations may only cover "the smallest area for the least amount of time that is required for public safety, administration, or compliance with applicable laws."

The Act ultimately represents a significant victory for public lands advocates, including not just conservationists, but also recreationalists looking for expanded opportunities on federal land. By codifying certain measures that could have otherwise been accomplished through administrative or executive action—such as monument designations and mineral withdrawals—Congress has protected those actions from reversal through litigation or future executive action. On the other hand, the Act leaves certain decisions, such as potential recreation access restrictions, to be accomplished through executive action, opening the door to the possibility of legal challenges. Moreover, the Act's provisions directed at modernizing the federal government's approach to wildfires show that the government remains focused on addressing this continuously increasing risk for states across the West. Finally, the Act's passage by large majorities in both chambers signals that there may be opportunities to achieve bipartisan compromise on other public lands issues, even in an otherwise divided political climate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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