State SystemState System1threeframework for public parks, recreation, and sportsThe efficacy of the public park and recreation agency and the school recreation and sportsprogram is controlled, in part, by the legal framework under which it operates. Legalauthorization is required before a public agency can acquire, develop, construct, and maintainrecreation and sports facilities and offer a program of activities. This authorization isapplicable to not only federal, state, and local park and recreation agencies but also to thepublic school recreation and sports program. The exercise of power without legal authority isunlawful; hence the concept of authorization. The legal framework is provided byconstitutions, statutes, administrative rules, and court decisions. These sources are not all ofequal authority and when they come into conflict an understanding of their relative weightand interaction becomes crucial. This chapter will examine the interaction of this legalauthority in setting the parameters for the public system.FEDERAL FRAMEWORKThe primary authority for federal involvement in park and recreation services is derived from the United States Constitution. Congress, under the property, general welfare, and commerce clauses of the Constitution,22122Framework for Public Parks, Recreation, and Sports 23has established a number of federal agencies to provide recreation services andmanage resources. As a shareholder in the public recreation system the federalgovernment is the biggest landholder, managing over 730 million acres of land forinter alia outdoor recreation.’ The federal role has evolved over the yearsexpanding into areas beyond land management until today federal recreationfunctions are of three basic types, (1) ownership and operation of recreation areas,(2) research, regulatory, and advisory services, and (3) financial aid to state andlocal governments.Property ClauseArticle IV of the U.S. Constitution provides that “the Congress shall havepower to dispose of and make all rules and regulations respecting the Territory orother Property belonging to the United States.” Pursuant to this constitutionalauthority, Congress has passed a number of statutes, often referred to as organicacts, creating federal land managing agencies. Established in 1916, the NationalPark Service is mandated by its enabling act to “promote and regulate the use offederal areas known as national parks, monuments and reservations.” Its purpose is“to conserve the scenery, the natural and historical objects, and the wildlife of theparks and to manage the parks in such manner that leaves them unimpaired forenjoyment of future generations.”2 Congress has also created other recreation landmanaging agencies including the Bureau of Land Management, the Fish andWildlife Service, the Forest Service, the Bureau of Reclamation, and the TennesseeValley Authority. In addition to mandating land management, the organic acts mayallow these agencies to conduct research and provide technical assistance to otherpublic and private agencies.General Welfare ClauseCongress under Article I, §8, Cl. 1 has “the power to . . . provide for thecommon defense and the general welfare of the United States.” The term generalwelfare has been broadly applied by the courts. The breadth of the courts’definition of the public welfare is illustrated in Berman v Parker, 348 U.S. 26(1954) where the court statedThe concept of public welfare is broad and inclusive . . the values it representsare spiritual as well as physical, aesthetic as well as monetary.In 1936, the Supreme Court affirmed that Congress may establish and fund grant-in-aid programs under the General Welfare Clause.3 The latitude of Congress todetermine whether the nation’s welfare will be served by a particular grant programwas expanded in Helvering v Davis when Justice Cardozo writing for the majoritystatedFramework for Public Parks, Recreation, and Sports 23Framework for Public Parks, Recreation, and Sports 2324 Framework for Public Parks, Recreation, and SportsI10th AmendmentPolice Power toStatesFramework for Public Parks, Recreation, and Sports 25Nor is the concept of general welfare static... What is critical or urgent changes with the times. . . When money is spent to promote the general wel-fare, the concept of welfare. . . is shaped by Congress not the States.4Federal grants-in-aid programs have generated a body of federal grant law focusingnot only on the rights and obligations of the grantor and grantee but also on their obligations beyond the grant. This includes all the rules and regulations attached as“strings” to the grant.5Commerce ClauseIn conjunction with the necessary and proper clause, Congress has de-veloped extensive regulatory programs affecting parks and recreation. Article I, §8,Cl. 13 provides “the Congress shall have power. . .to regulate commerce with foreign nations, and among the several states FIGURE 3-1 Federal FrameworkFEDERAL SYSTEMU.S. CONSTITUTIONState SystemExamples of programs impacting on recreation include the wetlands regulations ofthe Corps of Engineers and wastewater regulations of the Environmental ProtectionAgency. Under Section 404 of the Clean Water Act of 1972, the Corps of Engineersis responsible for issuing permits for activities that involve placement of dredgedor fill material in wetlands. Public recreation agencies with wetlands in park areasare subject to regulation under this act and must obtain the requisite federal permitsprior to altering wetlands. Similarly, public park and recreation agencies aresubject to federal and state water discharge regulations for public wastewaterfacilities as are other parties discharging wastes into the nation’s waters.STATE FRAMEWORKThe residual powers granted to the states by the Tenth Amendment of the U.S.Constitution includes the plenary authority to regulate resources and humanactivity. This authority is commonly referred to as police power. Police powerregulations are enacted for the protection and promotion of the health, safety, andwelfare of citizens. Zoning ordinances, subdivision regulations, building codes,and mandatory parkland dedication ordinances are