April 16, 2004
The Honorable Craig Thomas
Re: National Heritage Areas
Dear Senator Thomas:
It was an honor to testify before the Energy and Natural Resources Committee on March 30, 2004. Thank you for the additional opportunity expressed in your letter of April 5, 2004 requesting my response to four sets of questions on National Heritage Areas. This letter is my reply, question by question.
Question 1. The GAO did not find any adverse impact to private property. Do you have any specific examples of private property being adversely affected by a heritage area? What could GAO have done differently to better address private property impacts?
Reply: As I explained in my testimony, the system of partnerships, compacts, carrots and sticks, and the like to establish these greenway programs involves precipitating local, multi-jurisdictional and regional land use control enactments, land acquisition programs, and trails that adversely impact private property rights without putting the onus on the heritage area commissions or National Park Service to carry out the on-the-ground impositions on private property owners. My testimony cited clearcut policy statements by the Park Service, management plans and formative thinking in the greenway advocacy world that show how the greenway system is designed to carry out its goal of landscape preservation.
As I explained on the telephone during the adversarial interview by Preston Hurd and other members of the staff of the General Accounting Office during August 2003, the careful distancing of the official federal agencies from local land use jurisdiction makes it impossible for an organization of this modest capacity to investigate the impact of a National Heritage Area on private property rights. The investigator would have to follow a chain of events, from the creation of the management plan; the establishment of the heritage area commission; to the partnerships, compacts, many meetings of a public and less public nature; documents promulgated during implementation of the management plan and the like; resultant local, multi-jurisdictional, and regional enactments; enforcements by such non-federal agencies; and litigation. The investigator would have to do interviews and studies of affected property owners and studies of tax impacts. Such studies would have to be conducted over a reasonable period of time from establishment of a heritage area, perhaps in the neighborhood of a decade. Separate study of trails being created in connection with heritage areas would be essential and probably more quickly fruitful, because it appears that there is yet no way to establish trails through private property through legislation that leaves property owners entirely bamboozled about the taking of their rights, and once the trails are being created or are in existence, at least a few of the property owners take their time from compelling their day-to-day affairs to forcefully complain of infringements.
With respect to trails, which are unfailingly associated with heritage areas, it is relatively easy, when a complaint arrives here at PRFA to see a connection with a larger motivating entity, such as the National Park Service, whose behind-the-scenes responsibility for an innocent-appearing segment of a relatively long trail in a particular locality can be brought to light. However, as with almost all examples of private property rights infringements that come to the attention of PRFA, examples of these trail infringements on private property rights come to the attention of PRFA by pure happenstance, e.g., someone e-mails or telephones for help, mails a clipping, or the like.
Examples of threatened and executed condemnations, or threatened forced sales, for trails associated with heritage areas that have recently come to the attention of PRFA are:
The GAO could have should addressed property rights impacts more deliberately. When interviewing this property rights advocate, the GAO interviewers should have taken an interest made, instead of arguing about whether to hang up in disgust at this interviewee's remarks. With the viewpoint presented that the property rights impacts happen through the programs established through the Heritage Area, rather than directly, the GAO should have attempted to address that viewpoint. The report simply cites the concerns of property rights advocates and GAO interviews of officials involved with Heritage Areas and leading property rights advocates. This amounts to study by interview.
Question 2. Over 45 million people live within the boundaries of existing heritage areas. Do you think it would be feasible and even possible to implement a system for allowing each property owner to opt in or opt out?
Reply: This response is directed to the query about whether it would be feasible to implement a notification system for the opt in or opt out concept.
Yes, it would be feasible. Each individual Heritage Area would be, of course, tackled individually. The number of private property owners would be somewhat less than the population, considering household size and the fact that individual property owners hold multiple properties, and own rental properties.
In each real estate taxing jurisdiction, notices are routinely sent to every property owner for the taxes due on each property. All of this information is computerized today. Therefore, the name and address of every property owner are readily available in a form that is readily useable for mailing purposes to conduct an opt out or opt in survey.
In addition, it is common for jurisdictions to have access to GIS (Geographic Information Systems), whereby coordinate-based computerization of tax assessment maps can be utilized to select properties fitting almost any description, such as one-mile from a given watercourse. Today, this can be done automatically and all the names and addresses of these geographically selected property owners) even if the boundaries of the Heritage Area are not a municipal jurisdictional boundary) spewed out of the computer for a mailing for any purpose.
The opt in or opt out provisions would have importance even though they would not eliminate the property from within the bounds of the Heritage Area and its concomitant increase in land use restrictions and other pressures on property owners. The opt in or opt out provisions would afford property owners a notification process that the Heritage Area is in the works and be an even-handed notification that would encourage public participation from all sectors, not just the select few who are advocates for greenways and trails and those individuals who act as advocates for private property rights by attempting to assiduously monitor these programs.
Question 3: What sort of discussion have you had with representatives from the National Park Service or managers of any specific Heritage Areas regarding your concerns?
Reply: I have engaged in discussions with representatives of the National Park Service and managers of specific Heritage Areas on numerous occasions over the past decade and longer. With rare exceptions, the officials expressed their offense at my presence and questions by their contemptuous manner and refusal to straightforwardly answer my inquiries or to answer the inquiries at all. Park Service officials have attempted to marginalize me, and insult me, they have treated me in a consistently demeaning manner, attempting to convey publicly that I and others concerned about property rights were ignoramuses, fanatics, and disrupters. Most interesting of all, except for one official whose work I complimented a number of years ago in the very respect that the higher officials were in the process of reversing, they have never taken any of my comments seriously or allowed any of my comments to have any impact on the direction of their programs, except for their becoming more secretive and evasive about the programs.
For purposes of this reply, I'll refer to only one or two specifics at four relatively recent discussions.
Champlain Valley National Heritage Corridor: Meeting at City Hall, Plattsburgh, N.Y., November 19, 2001. The corridor name was referred to as the Champlain-Richelieu Valley Heritage Area. Bill Howland, Champlain Basin Program, presided. Many opposition concerns were voiced from the floor. Opposition was dismissed as concerns because of the Adirondack Park. We were referred to as "the property rights people," by the person assisting him and, after objection, an apology was proffered to us for this. Mr. Howland said that the area would have no boundary. Jack Vitvitsky wanted to know the boundary that would be affected, but the lack of a boundary meant that no answer was given. I complained that the local lifestyle does not fit with tourism, because it may not necessarily fit the appealing formulas being prescribed, and that the program goals would present a fundamental problem for the ordinary local people. Mr. Howland asked for this comment to be stated in writing. Susan Allen asked, "Why are you writing the bill?" [and not us] No response to this. Mr. Howland claimed that there were no regulations contemplated, only grants, but the many people at the meeting who had not come to request grants did not believe him, because nothing of substance was offered to back up this statement, and the promotional aspect of the slides indicated a contrary scenic preservation goal. Concern was expressed about a federal Lakes to Locks Scenic Byway, which was formerly the state Champlain Valley Scenic Byway, but this topic was evaded. Mr. Howland claimed that he had refocused the program to economics on account of property rights. He said that he was considering an opt in - opt out method. However, he did not have any credibility, especially when he said that they had already entered into a contract with Quebec Labrador Foundation, an organization that no one concerned with property rights knew anything about. He said that funding was brought to the program by the National Park Service.
Champlain Canalway Trail: Cozy meeting in public school cafeteria, Schuylerville, October 9, 2002. Attending were officials from the National Park Service, New York State Canal Corporation, consultant from the New York Parks and Conservation Association and perhaps two private individuals, totaling six individuals, plus my husband and I. My husband and I were not invited to this small meeting, as the public was not noticed. After sitting through the planning session to form a "local" "Friends" group and obtain a first grant, I attempted to obtain funding information, but was totally denied, and charged with being disruptive for persisting in my questions.
Erie Canalway National Heritage Corridor: Public meeting, The Hyde Museum, December 9, 2003. The official greeting attendees said that questions would be answered from the floor throughout the meeting, but no one called on me when I repeatedly raised my hand. I had to call my questions out. I asked for funding amounts, and was given partial information after repeating my question several times. During the section on recreation, I asked how the Erie Canalway Trail eminent domain "partnerships" with local municipalities worked, and pointed out Janice Revella in the audience, whose property was threatened by condemnation. I received no answer, and finally was told that eminent domain was not on the agenda. During the section on economic development partnerships, I asked how the partnerships worked that a single developer was sold all the development rights to the entire 500-plus mile canal for a mere $30,000 (Michelle Breidenbach, "Man pays $30K for canal rights," Syracuse Post-Standard, article published in Post-Star, Glens Falls, N.Y. September 15, 2003), and was told that this was the Canal Corporation, which was entirely separate. However, a few minutes later, the presiding officer introduced a representative of the Canal Corporation in the audience, as though he were an honored guest.
Question 4: Heritage areas are here to stay, but we have an opportunity to make improvements as new Heritage Areas are proposed. What recommendations would you make for protecting private property rights in current and future Heritage Areas?
Reply: The following recommendations would allow the preservation of the nation's heritage to receive federal support while eliminating the greenway potential of Heritage Areas and the infringements on property rights that are designed into the Heritage Area program.
Where a specific heritage is to be preserved, such as an industrial heritage, the heritage program should feature the importance of industry to the heritage of the area up to the present time. For instance, the Congress should require a certain proportion of funding to involve a promotion of awareness of the importance of modern factories and industrial production, and the heritage program proffered in the management plan could also promote tours of modern operating factories and industrial facilities. Factory tours have rebounded in popularity, and this could be promoted with the heritage program. For example, in New York's Hudson Valley, tours of the large shorefront facilities of the cement industry should be facilitated with federal funding.
Where the heritage is lumber production, typical landscape preservation consultants who produce falsified history should be avoided, and qualified historians who retain an interest in the present used. An example in upstate New York where a Scenic Byway kiosk system was put in place, this focus on preserving the living heritage would change the policy so that the role of government land acquisition in reducing timber production would be factually presented, rather than blaming industrial factors. Tours of present-day logging operations could be promoted. In Corinth, N.Y., a historic paper mill operated by International Paper Company on the Hudson River recently closed. Federal investment for living historic preservation might make a difference in the maintenance of such living heritage typical to a geographic region.
Where Heritage Areas and trails are being promoted, the granting process is pre-ordained by the relationships that already exist between the National Park Service and its "partners" consultants. The application process should be publicly and widely advertised and all comers should be able to apply for the lucrative grants that become available. Consultants such as the New York Parks and Conservation Association should not be routinely selected, but should have to compete in the open arena. Subcontracts through consultants should be accessible to freedom of information law where government funds are involved. A variety of "heritage" projects should be open to competition, including those that benefit private property owners rather than non-profits and government entities.
Open up to public scrutiny the budget of the entire heritage process, including all funding from "partner" agencies at federal, state, regional and local level. Publicly maintain financial statements and audits of the origin and routing of all funding from appropriation to on-the-ground expenditures for actual work. Where funding is contemplated that affects a particular area, advertise publicly for public comment on that expenditure.
Heritage programs should not be geographically delineated because this works toward the greenway goal and landscape preservation that has been central to National Heritage Areas from inception. With the realization that Heritage Areas are not about historic preservation or any but the most narrow sphere of economic development, comes the necessity of a single measure that would stymie their purpose of landscape preservation. Instead of geographically delineated Heritage program, direct the program to block grants allocated state-by-state by an agency that is not geared to landscape preservation, such as Housing and Urban Development, the Department of Commerce, or a new bureau in the National Park Service that is not oriented to landscape preservation, but is instead expert in all spheres of national heritage, especially the living industrial heritage and the continuing multifaceted independent rural lifestyle with its scruffy way of living that is not designed to fit into an elite subdivision.
Instead of attempting to restore the quaint past by regulation, where the product is only empty shells of dead villages that lonely city dwellers visit transiently, let's celebrate the past along with the constant evolution of new traditions in the context of our evolving heritage.
Instead of implementing harsh landscape preservation where ordinary rural people will be displaced, get the federal government our of sophisticated advocacy for land use control, and let the chips fall where they may with local people controlling their future with the degree of planning regulation that they freely choose without heavy pressure from the "experts."
Prohibit the Park Service from promotional work for its policies at the local level, and from studies of historical or regional areas. Prohibit the Park Service from working with non-profit agencies. This can be accomplished by opening up the procurement process to bidding. This change can be assisted by ceasing to write any specific non-profit into Congressional legislation.
With its terrible record of treatment of private property owners, and its one-sided agenda of promoting landscape preservation to the detriment of the maintenance of existing National Parks, it is essential to get the Park Service's spidery reach out of private property all across the country. An important and easy way to accomplish this is to prohibit the Park Service and its personnel from participating in the studies and development of trails, or developing support organizations. All trails should be publicly laid out in their full length, width and other aspects, such as style of ownership and access, desired viewsheds, from the proposal stage, and all potentially affected property owners individually notified. If trails are developed, the development should be administered by the Department of Transportation and the eminent domain protection protections under the federal highway law applied.
No additional Heritage Areas should be established and no further development of trails should take place until a full inventory of lands owned by the federal and state government, and of federal areas such as National Heritage Areas and trails, is completed.
In some federal areas under consideration in Congress, major changes of land ownership patterns are underway. Consider the Highlands Area proposed for Northern New Jersey, Southeastern New York, eastern Pennsylvania, and western Connecticut. In New York, the State government, the Open Space Institute, other land trusts, and other agencies are cutting into the base of private landownership without any land ownership impact studies being conducted. Tax impacts are becoming profound, while future economic potential is being narrowed. If an area is to be designated, contrary to the recommendation above, when it is proposed, the specific area should be studies for land ownership trends and these should be projected, with the concomitant taxation and economic and social impacts, in an environmental impact study I accordance with NEPA.
I hope that these replies to your four questions about the National Heritage Area program are helpful and that the various angles from which I examined the program offer information, viewpoints and specific proposals that are worthwhile and practical to help preserve our heritage in its great diversity while promoting private property rights to their fullest extent as guaranteed in the United States Constitution.
Thank you for the honor of this opportunity of replying to your important questions.