Draft 2006 NPS Management Policies

**CHAPTER 3: LAND PROTECTION**

LAND PROTECTION

3.1GENERAL

3.2LAND PROTECTION METHODS

3.3LAND PROTECTION PLANS

3.4COOPERATIVE CONSERVATION

3.5BOUNDARY ADJUSTMENTS

3.6LAND ACQUISITION AUTHORITY

3.7LAND ACQUISITION FUNDING

3.8CONDEMNATION

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**Management Policies 2006**

**CHAPTER 3: LAND PROTECTION**

**[Cover page summary statement.]**  The National Park Service will use all available authorities to protect lands and resources within units of the national park system, and will seek to acquire as promptly as possible nonfederal lands and interests in land that have been identified and approved for acquisition, consistent with Departmental land transaction and appraisal policies. When lands within a park unit’s authorized boundaries are not federally owned, the Service will cooperate with federal agencies; tribal, state, and local governments; nonprofit organizations; and property owners to provide appropriate protection measures and to protect property rights. Cooperation with these entities will also be pursued, and other available land protection tools may be employed when threats to park resources originate outside boundaries. 

**3.1 General**

A number of park units have nonfederally owned lands within their authorized boundaries. When nonfederal lands exist within park boundaries, acquisition of those lands and/or interests in those lands may be the best way to protect and manage natural and cultural resources or provide for public enjoyment. When acquisition is necessary and appropriate, the Service will acquire those lands and/or interests as promptly as possible consistent with Departmental land transaction and appraisal policies. Practical, cost-effective alternatives to fee-simple acquisition will be considered and pursued by the Service to advance protection and management goals. 

The boundaries of most park units are not based strictly on ecological processes or other resource protection principles, and park units are increasingly subject to impacts from external sources. Examples include air and water pollution and the loss of scenic vistas, natural quiet, and wildlife habitat. To fulfill NPS protection responsibilities, strategies and actions beyond park boundaries may be necessary. External threats may be addressed by using available tools, such as gateway community planning and partnership arrangements; NPS educational programs; and participation in the planning processes of federal agencies and tribal, state, and local governments.

**3.2   Land Protection Methods**

The Service may employ a variety of different methods, as appropriate, for protecting park resources. These methods will be considered in the land protection planning process for each unit. Examples include 

· cooperative approaches, such as cooperative agreements, participation in regional consortia, local planning and zoning processes, or other measures that do not involve federal acquisition of any interest in real property,

· acquisition of less-than-fee real property interests, such as easements or rights-of-way, and 

· acquisition of fee-simple real property interest, possibly with arrangements for some rights to be reserved.

Fee-simple ownership (all of the rights associated with real property) whether exclusively by the Service or in partnership with others provides the greatest ability to protect and manage resources and provide for public use and enjoyment. Less-than-fee interests (some of the rights associated with real property) may in many instances be the most practicable and acceptable way to protect and manage resources. Less-than-fee interests do, however, require a federal commitment to monitor and enforce the Service’s interest in the affected property. Acquisition of less-than-fee interests may be most appropriate in instances in which the Service needs only a specific interest in land, or in which it only needs to modify uses of the land in order to protect resources or values but full fee ownership is not required or possible. 

Acquisition of fee-simple interests is an important and effective land protection method for lands within unit boundaries. The Service may employ, as appropriate, a broad strategy to protect land and resources, including innovative techniques, partnerships, participation in the planning and decision-making processes of other federal agencies, and vigilance at the regional and local levels of government, where nonfederal land use decisions are generally made. 

Some park units created by Congress have been specifically authorized to continue historical or traditional activities such as farming, ranching, or low-density residential uses. Congress may also restrict the method of acquisition or prohibit acquisition without owner consent. In all cases, the Service will acquire the lands and/or interests in land only by the method or methods authorized.

When nonfederal land is identified for acquisition, the Service will make every reasonable effort to reach an agreement with the owner on the purchase price. All appraisals must conform to Departmental appraisal policies. If an agreement cannot be reached, the Service will take further steps in accordance with authorities and congressional directions that apply to the unit in question. Service policy is to acquire lands and interests in lands from willing sellers, and condemnation is generally considered only as a last resort. However, acquisition by condemnation is sometimes necessary to establish just compensation, to clear a title, or to prevent imminent damage or unacceptable threats to park resources and values.

*(See Condemnation 3.8)*

**3.3   Land Protection Plans**

Planning for the protection of park lands will be integrated into the planning process for park management. Land protection plans (LPPs) should be prepared to determine and publicly document all nonfederal lands within a park unit, the minimum interest in land that needs to be in public ownership, and the relative priority for acquiring that interest. These plans will be prepared for each unit of the national park system containing nonfederal land or interests in land within its authorized boundary. A thorough review of a park’s authorizing statutes and complete legislative history will be conducted as part of the land protection planning process. 

Land acquisition priorities will be guided by a park unit’s land protection plan. Superintendents will ensure that land protection plans are developed, and periodically reviewed and updated as necessary, to identify what land or interests in land would facilitate achieving park purposes. These purposes and the desired conditions for resources and visitor experiences are normally defined in the park’s general management plan. Strategic plans define what results can be accomplished in the foreseeable future—usually a five-year period. Land protection plans will be coordinated with general management plans, strategic plans, and other plans for resource management and visitor use. Decisions about acquisition within park boundaries will consider the relationship between the park and its adjacent lands. Superintendents have the responsibility to be aware of uses or activities that are planned for lands around the park that may have impacts on park resources and opportunities for visitor enjoyment.

A land protection plan should be as simple and concise as possible; it should document (1) what lands or interests in land would advance park purposes and benefit the public through public ownership, (2) what means of protection are available to achieve park purposes as established by Congress, (3) the protection methods and funds that will be sought or applied to protect resources and to provide for visitor use and/or park facility development, and (4) acquisition priorities. Historic structures and objects on the land under consideration within the land protection plan will be evaluated for their relevance to the park mission and the scope of the park museum collection. The land protection plan will specify those structures and objects that benefit the public through public ownership, and identify the appropriate sources of funding. Personal property not identified for acquisition should be removed by the property owner before acquisition. For acquisition of water rights, see chapter 4, section 4.6.2. 

When appropriate, the land protection plan may serve as a vehicle for addressing land protection issues external to a park’s boundaries. When external impacts or opportunities are addressed, plans will clearly distinguish between the authorities related to land acquisition and the authorities for the Service to cooperate with other entities beyond the park boundary.

**3.4   Cooperative Conservation**

External threats may originate with proposed uses outside a park that may adversely impact park resources or values. Superintendents should therefore be aware of and monitor land use proposals and changes to adjacent lands, and their potential impacts. Superintendents will also encourage compatible adjacent land uses to avoid or to mitigate potential adverse effects. Superintendents will make their concerns known, and, when appropriate, actively participate in the planning and regulatory processes of neighboring jurisdictions, including other federal, tribal, state, and local governments.

In working cooperatively with surrounding landowners and managers, a superintendent might, for example, comment on potential zoning changes for proposed development projects, or brief the public and officials about park resources and related studies that are relevant to proposed zoning or other changes. Superintendents should, whenever possible, work cooperatively and communicate their concerns as early as possible in the process in such a manner as will minimize potential conflict. Superintendents should seek advice from the appropriate NPS program managers and the Solicitor’s Office when dealing with complicated external land protection issues and threats, especially those with potential Servicewide controversy or consequences.

Superintendents should be aware of and monitor state government programs and activities for managing state-owned submerged lands and resources within NPS units. When there is potential for such programs or activities to adversely impact park resources or values, superintendents will make their concerns known to appropriate state governmental officials, and encourage compatible land uses that avoid or mitigate potential adverse impacts. When federal acquisition of state-owned submerged lands and resources within NPS units is not appropriate or feasible, the Park Service will seek to enter into cooperative agreements with state governments to ensure the adequate protection of park resources and values. 

In some cases—such as air or water pollution—the source of a significant threat may be far removed from the park’s boundaries. In such cases, the Service will coordinate at the regional or national level in making its concerns known, and in seeking a remedy to the problem. Threats to parks from external sources should be identified and addressed in the general management plan or in other planning documents. The result will be enhanced public awareness of the far-reaching impacts of these threats, and an increased likelihood of remedial actions by those who are responsible. 

*(See External Threats to Park Resources and Values 1.5; Evaluating Environmental Impacts 4.1.3; Partnerships 4.1.4; Biological Resource Management 4.4; Removal of Exotic Species Already Present 4.4.4.2; Water Resource Management 4.6; Air Resource Management 4.7; Geologic Resource Management 4.8; Soundscape Management 4.9; Lightscape Management 4.10; Stewardship 5.3. Also see Director’s Order #25: Land Protection, and Reference Manual 25; Director’s Order #75A: Civic Engagement and Public Involvement)*

**3.5   Boundary Adjustments**

The boundary of a national park may be modified only as authorized by law. For many parks, such statutory authority is included in the enabling legislation or subsequent legislation specifically authorizing a boundary revision. Where park specific authority is not available, the Land and Water Conservation Fund (LWCF) Act of 1965, as amended, provides an additional, but limited, authority to adjust boundaries. 

The act provides for boundary adjustments that essentially fall into three distinct categories: (1) technical revisions; (2) minor revisions based upon statutorily defined criteria; and (3) revisions to include adjacent real property acquired by donation, purchased with donated funds, transferred from any other federal agency, or obtained by exchange. Adjacent real property is considered to be land located contiguous to but outside the boundary of a national park system unit. 

As part of the planning process, the Park Service will identify and evaluate boundary adjustments that will facilitate achieving the purposes of the park unit. Boundary adjustments may be recommended to 

· protect significant resources and values, or to enhance opportunities for public enjoyment related to park purposes,

· address operational and management issues, such as the need for access or the need for boundaries to correspond to logical boundary delineations such as topographic or other natural features or roads, or 

· otherwise protect park resources that are critical to fulfilling park purposes.

If the acquisition will be made using appropriated funds, and is not merely a technical boundary revision, the criteria set forth by Congress at 16 USC 460l-9(c)(2) must be met. All recommendations for boundary changes must meet the following two criteria. 

· The added lands will be feasible to administer, considering their size, configuration, and ownership, hazardous substances, costs, the views of and impacts on local communities and surrounding jurisdictions, and other factors such as the presence of exotic species.

· Other alternatives for management and resource protection are not adequate. 

These criteria apply conversely to recommendations for the deletion of lands from the authorized boundaries of a park unit. For example, before recommending the deletion of land from a park boundary, a finding would have to be made that the land did not include a significant resource, value, or opportunity for public enjoyment related to the purposes of the park. Full consideration should be given to present and future park needs before a recommendation is made to delete lands from the authorized boundaries of a park unit. Actions consisting solely of deletions of land from existing park boundaries require an act of Congress.

**3.6   Land Acquisition Authority**

The National Park Service acquires lands or interests in land within parks when authorized to do so by an act of Congress or by presidential proclamation. Although acquisition outside authorized boundaries is generally prohibited, certain statutes provide limited systemwide authority for minor boundary changes and the acceptance of donated lands adjacent to a park’s boundaries. There is no single statute authorizing land acquisition. There are, however, several laws that provide limited acquisition authority that is applicable systemwide. For most parks, acquisition authority is provided by statutes specific to the park. The Service land acquisition process and land protection planning process will comply with all applicable legislation, congressional guidelines, executive orders, and Department of the Interior policies. For delegations of authority for land acquisition, see Director’s Order #25: Land Protection.

**3.7   Land Acquisition Funding**

When the acquisition of lands and/or interests in lands within a park boundary is necessary, the Park Service will consider acquisition by: purchase with appropriated or donated funds; exchange; donation; bargain sale; transfer or withdrawal from public domain; or in limited circumstances condemnation. Funding for land acquisition within the national park system is derived primarily from the Land and Water Conservation Fund (LWCF). LWCF monies are restricted to uses associated with the acquisition of land and/or interests in land within the authorized boundaries of NPS units. As outlined in Department of the Interior policy, the federal portion of LWCF monies will be used to acquire the lands, waters, and interests therein necessary to achieve the Service’s natural, cultural, wildlife, and recreation management objectives. To implement this policy, the fund will be used in accordance with management objectives for each park unit based on the NPS mission and congressional mandates, and with an analysis of long-range goals for resource protection, safe public access, and park management. As further required by Departmental policy, the Park Service will, to the extent consistent with statutory authorities, 

· use to the maximum extent practical, cost-effective alternatives to the direct federal purchase of privately owned lands, and, when acquisition is necessary, acquire or retain only the minimum interests determined by park officials to be necessary to meet management objectives,

· cooperate with landowners, other federal agencies, tribal, state, and local governments, and the private sector to manage land for public use or protect it for resource conservation, and

· formulate, or revise as necessary, land protection plans. 

**3.8   Condemnation**

As a general principle, and consistent with Congressional direction, condemnation is the least desirable tool for the Service to use for land acquisition.

It is the Service’s goal to acquire lands or interests in lands through a cooperative negotiation process with a willing seller.  Under certain circumstances, however, condemnation may be necessary.  “Friendly” condemnations with willing sellers may be appropriate to ensure that the United States acquires clear title to the property in question, or to enable a court to determine the fair market value to be paid for the property.  If there is no willing seller, and it is determined that other acquisition means will not be successful, consistent with any restrictions applicable to that park unit, the Service, with the approval of the Director and other approvals as required (e.g., by the Department of the Interior or Congress) may pursue condemnation proceedings to acquire the property or interests therein.

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