November 2012 - Parks & Recreation - 29

regulations so broadly. " On the contrary,
the court found the record in this case
was " replete with instances in which
the agency has construed temporary,
nondestructive activities as being other
than conversions " :
The agency speciﬁcally exempts

therefore was not arbitrary and capricious " in violation of the APA.
This construction by the agency
reﬂects the common-sense determination that the agency's discretion-while not boundless-must
be exercised in certain cases in or-

from the deﬁnition of conversion

der that the ﬂexibility necessary to

underground utility easements

maintain, improve, and study

which do not have a signiﬁcant im-

LWCF land is not replaced with a

pact on the recreational utility of

grid of arbitrary distinctions.

the park (LWCF Grants Manual,
Chapter 675.9.3(A)(5)(a)).
The administrative record also

This need for ﬂexibility is shown
by the agency's response to a query seeking the agency's policy un-

State Park in order to create a substitute park of " reasonably equivalent
usefulness and value. " The federal appeals court, therefore, concluded that
it was a reasonable interpretation of
the LWCF statute for the NPS to " make
nondestructive tests on fund-assisted
land to determine its commercial value or potential for other recreational
purposes. "
In this particular instance, the court
noted that " no change in the character of the land at Crater of Diamonds
State Park would take place " as a result
of Phase I testing. Instead, the court
found " [t]he only effect on parkland
would be a temporary disruption on
approximately 5,000 square feet in the
public access area. "

reveals an interpretation by the

der the LWCF for dealing with

Director of the Bureau of Outdoor

underground utility or irrigation

Recreation [predecessor to NPS

line crossings. The agency con-

in administering LWCF] that the

cluded that the possible impacts of

construction by a non-owner

underground construction on vari-

of a waterline, pipeline, under-

ous types of recreation areas were

ground utility, or " similar construc-

so diverse that no ironclad policy

Conclusion

tion " which does not impair the

could be created. Rather, the poten-

present or future recreational use

tial problems must be addressed

of the property might not consti-

case by case.

As a result, the federal appeals court
held that NPS could reasonably interpret the LWCF statute to " conclude
that temporary, nondestructive testing conducted within the conﬁnes of
the Phase I proposal does not constitute a conversion. " In so doing, however, the federal appeals court reiterated
and adopted the NPS position that " any
further testing would be inextricably
woven with commercial mining and,
therefore, would have to comply not
only with § 6(f)(3) but with the National Environmental Policy Act (42 U.S.C.
§§ 4321 to 4370a (1988)). " The federal
appeals court, therefore, reversed the
permanent injunction by the federal
district court which had terminated
Phase I testing at Crater of Diamonds
State Park.

tute a conversion if the surface area
is restored to its " preconstruction
condition " and there is no relinquishment of control over the
property.
The agency also has concluded

Further, the court found Section 6(f)
(3) itself underscored NPS's " need for
ﬂexibility in determining whether nondestructive testing is a conversion. "
In order to convert a fund-assisted parcel to another purpose-such

that the sale of subsurface rights or

as commercial mining-the Secre-

the nondestructive extraction of oil

tary must ﬁrst be assured the state

and gas from Land and Water Con-

will substitute land of equivalent

servation Fund-assisted land does

value and usefulness (16 U.S.C. §

not constitute a conversion under

460L-8(f)(3)). But the Secretary

the Act (LWCF Grants Manual,

must know the value of the con-

Chapter 675.1(E)).

verted parcel ﬁrst.

Accordingly, the federal appeals
court found the NPS had clearly " determined that the statute requires more
than de minimis and temporary intrusions on small portions of fund-assisted land to constitute a conversion. "
The court, therefore, found " the acting regional director's determination
that Phase I testing would not constitute a conversion clearly was a permissible construction of the statute, and

In so doing, the federal appeals court
acknowledged " [t]he LWCF does not forbid conversions, it merely dictates that
the state must replace the converted
land with a suitable substitute. "
Accordingly, in this case, prior to
approving any conversion of this state
park to a commercial diamond mine,
the Secretary of the Interior, through
the NPS, would have to ﬁrst ascertain " the value " of Crater of Diamonds

James C. Kozlowski, J.D., Ph.D. is an
attorney and associate professor in the
School of Recreation, Health, and
Tourism at George Mason University.
Email: jkozlows@gmu.edu. Webpage with
link to Law Review articles archive (1982
to present): http://mason.gmu.
edu/~jkozlows.

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November 2012 - Parks & Recreation

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