It's land use control...National Heritage Areas: The war over words

By Cheryl K. Chumley
From eco-logic


Based on the testimony of A. Durand Jones, the Deputy Director for the National Park Service (NPS) at a March 30th congressional hearing on National Heritage Areas, it would appear private property owners should now rest easy if their lands become targeted for a National Heritage Area declaration. That, however, would be folly.

First, some background. The NPS, and partnering state and local entities, have created 24 NHAs encompassing 160,000 square miles of mostly privately owned lands since 1984. Advocates say NHA's are needed to preserve areas of cultural, historical, natural, and scenic significance. The claim is that the federal government does not retain authority over the declared lands; that it is retained by the individual property owners.

This claim holds true, only if you believe private property rights are guaranteed by the Constitution, and cannot be arbitrarily taken away or tampered with. Some might add they are God-given. NHAs, however, pose a grave threat to these fundamental rights.

The implementation of NHAs is said to create a supposed friendly partnership scheme between local, state, and federal entities to identify and manage lands, where interested parties - be they environmentalists, non-government organizations, individuals, or bureaucracies - suggest to Congress properties that should be preserved for some supposed benefit to our nation. Congress then helps fund these NH's via NPS appropriations; partnering NHA entities are responsible for matching these federal contributions.

Repeated, reiterated, and emphasized by NHA advocates is that the main role of the federal government is as consultant to the other involved entities; that private property owners retain their private property rights. The NPS controls the purse strings for federal disbursements.

See the incompatibility? Those with the power to fund, also hold the ultimate power to decide the circumstances under which the funding will be granted. In other words, if the federal government wants zoning laws or land use plans changed in a particular NHA area, it has a powerful means of enacting this agenda via the threat of withheld funds.

Another facet of NHA history is that declaring an area worthy of preservation depends entirely on individual interpretation of what constitutes "national significance." This specter of a phrase could ostensibly lead to the argument that every acre of property in the United States is historically, or culturally, important and must be preserved, i.e., publicly managed for the greater good of our country's heritage.

For a worst-case scenario usage of this ill-defined term, just look to Tennessee. The entire state is a declared NHA! That bears repeating: The entire State of Tennessee is a National Heritage Area, and has been since Nov. 12, 1996. Taxpayers from every other state help preserve the "national significance" of Tennessee, to the tune of $10 million, spread over a 13-year period.

"The Tennessee Civil War National Heritage Area covers the entire state, but is focused on the museums, historic sites, and communities located along eight major mid-19th century transportation corridors associated with the Civil War and Reconstruction era," according to a website describing the NHA.

Virginia saw some heavy Civil War action. Should this state, too, be a declared NHA, in its entirety? Or better yet, to defray accusations of favoritism or discrimination, how about the entire 12-state geographical region of the South, along with the handful of other lesser-known states involved with our nation's most controversial battle? Surely, we can't leave the fate of these "nationally significant" Civil War areas to the selfish whims of private property owners, who might one day take it upon themselves to construct homes or buildings, completely ignoring the devastation their self-centered actions could wreak upon the scenery of the historic sites in the process.

And, this is just about the Civil War. Let's not forget to honor the Indians who spanned pretty much the entire nation, and are, no doubt, deserving of historical footnote via land preservation. Given the entire state of Tennessee and its NHA status, wondering where the boundaries to NHA declarations are set should be disquieting.

Now, fast-forward to the March 30th congressional hearing, which was supposed to clarify and address some of these NHA questions. The kick-off to this subcommittee hearing, attended only by Senate National Parks Chairman Craig Thomas (R-WY), was a recent General Accounting Office report that found the present system of creation and oversight of NHA lands lacking in several key areas.

"GAO recommends that the Park Service develop consistent standards and processes for reviewing areas - management plans, require regions to review areas - financial audit reports and develop results-oriented goals and measures for the agency's activities, and require areas to adopt a similar approach," the report summarized.

Most alarming was this GAO point: "No systematic process is in place to identify qualified candidate sites, and designate them as national heritage areas."

That means NHAs can be declared at whim, using an ill-defined eye-of-the-beholder approach to interpret and decide "national significance." This is but one of a few points that didn't escape Senator Thomas, who peppered some witnesses to explain why the language used to declare NHAs was so loose, why the federal government should continue its endless stream of funding for certain NHAs that had already reached the pre-set sunset dates for NPS appropriations, and whether the NHA label now affixed to Tennessee could be repeated in other states?

This was the assurance private property owners were offered: "We have a formal recommendation for determining significance," said NPS Deputy Director Jones, predictably testifying in favor of NHAs.

This "formal recommendation" comes in the form of a draft piece of legislation, just released, that promises to both clarify the means by which NHAs can be declared, and to protect the rights of private property owners. This promise is empty, as analysis of the draft text reveals.

While the proposed legislation admits "a unified national process, as well as certain standards for designation of NHAs needs to be established," it does not provide any uncontested, inarguable means of proving a land area is worthy of public oversight. Suggested criteria include determining if an area "has an assemblage of natural, historic, or cultural resources that together tell a nationally important story," or "represents distinctive landscapes and aspects of our American heritage worthy of recognition, conservation, interpretation, and continuing use."

What area of our nation doesn't?

Here's another guideline: if the area "reflects traditions, customs, beliefs, and folk life that are a valuable part of the national story."

Again, what area of our nation doesn't?

Yet another: if an area "provides outstanding opportunities to conserve natural, cultural, historic, and/or scenic features" or "provides outstanding recreational and educational opportunities."

One more time: what area of our nation doesn't?

With criteria like that, even the least experienced Green could come up with a feasibility study proving the so-called necessity for NHA declaration. Once that study is completed, the road to land control is paved, and it's a fast-moving, convoluted, bureaucratic race that ensues.

Interior Department Secretary fine-tunes and approves this feasibility plan; Congress identifies a local entity to develop a management plan for the Heritage Area identified in the feasibility study. Thereafter, the local entity - a generic term for radical environmentalist, or non-government organization - works with a slew of like-minded property-hungry individuals and groups (including the NPS) to complete this land management scheme. Then, this final plan goes back to the Interior Secretary for approval. Once approved, according to the draft text, the money really starts to roll, in increments of $1 million annually, up to $10 million total for each Heritage Area.

As for the private land owner, "nothing in this act shall be construed to abridge the rights of any property owner, whether public or private, including the right to refrain from participating in any plan, project, program, or activity conducted within the NHA," the draft states, one of six so-called landowner protections.

Still, where's the language guaranteeing private property owners the right to be notified their land is being considered for NHA status? A 1992 Interior Department investigation of Heritage Area declarations in Maine concluded the NPS "may have violated the property rights of over 2,800 private landowners" for failing to inform them their lands were the focus of a NHA study. The powers-that-be might want to rethink this omission from this draft legislation, the same document now being touted as favorable to private property interests.

If private property owners don't know their lands are being sought for NHA classification and public control, how can they fight it? The NPS and other NHA advocates can say what they will, in terms of promises to uphold landowner rights: History speaks louder.

Considering the known deceitful practices of NPS, the status of Tennessee, the loose wording of this draft proposal that purports to limit federal oversight of NHAs even while it gives this level of government the authority to fund and advise the partnering entities, perhaps we should counter this trend of infringements with a return to our true national history?

The Founders did not intend that property rights be traded among special interest and government groups at whim, but rather, were to be protected by the Constitution against the grasp of radical Greens and pandering politicians.


Cheryl K. Chumley is an Associate Editor with the American Policy Center, a grassroots activist think tank in Warrenton, Virginia. It maintains an Internet site at Cheryl may be reached directly, by e-mail.



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