Property Rights Foundation of America®

Presented at the
Tenth Annual National Conference on Private Property Rights
Property Rights Foundation of America, Inc.
Albany, N.Y. - October 14, 2006

National Heritage AreasAn Appearance of Innocence
Peyton Knight
Director of Environmental & Regulatory Affairs
The National Center for Public Policy Research, Washington, D.C.

Thank you, Carol. And I would be remiss if I didn't point out that anytime one of these issues regarding regulatory takings, heritage corridors or heritage waterways comes our way, one of the first things we do is go to Carol's web site because the research and the work that she has put together there is just beyond reproach when it comes to integrity. Usually the second thing we do is call Carol and ask questions, because she has a lot of the answers.

But what is a National Heritage Area? In short, it is a pork barrel earmark that harms property rights and local governance. Let me explain why that is. Heritage Areas have boundaries. They are very definite boundaries, and they have very definite consequences for folks who reside within them. What happens when a Heritage Area bill passes is that a management entity is tasked with drawing boundaries around a particular region and then coming up with a management plan for the area.

Within their provisions for management plans, all Heritage Area bills include inventories of all property within the boundaries of the Heritage Area that the Park Service and Green groups want preserved, managed, or acquired because of their so-called national historic significance. National historic significance, obviously, is a very arbitrary term; so anyone's property can end up falling under those guidelines.

The management entity that is tasked with overseeing land use in the area is typically composed of national Green groups, local Green groups, and the National Park Service. These groups actually form a compact with the Interior Department to determine the guidelines that make up the land use management plan and the boundaries of the Heritage Area itself.

Now, after the boundaries are drawn and after the management plan has been approved by the Park Service, the management entity, the Green groups, are given federal funds, typically a million dollars a year, and told to spend that money getting the management plan enacted at the local level. So what they do is they go to local boards and local legislators and they say, Congress just passed this Heritage Area. You are within the boundaries. We have identified these properties as properties that we deem significant. We have identified these businesses that we deem insignificant and a harm to these properties and a harm to the Heritage Area. We don't have the power to make laws but you do. And here is some federal money. Now use whatever tools, whatever laws, whatever regulatory procedures you already have to make this management plan come into fruition. So that is the way it works.

It is also worth noting that these are permanent units of the Park Service. They do have sunset provisions. The Park Service oversight in funding is supposed to expire. It never has with any of the Heritage Areas that have been enacted. So these are permanent units of the Park Service, and the Park Service has testified several times that they, indeed, could be considered permanent units of the Park Service because they always need oversight, and also the Park Service within Heritage Areas looks for opportunities to create other Park Service programs like national parks and the like.

Deputy director of the National Park Service, Donald Murphy, testified before the Senate Subcommittee on National Parks that one of the things the Park Service does when administering National Heritage Areas is survey land that would be suitable for future National Parks or National Park expansions.

Who is behind Heritage Areas? As I mentioned, a lot of national Green groups, local Green groups are typically the drivers of Heritage Areas. One thing we always hear is that these are local initiatives, that these are something citizens want, that they want an honorary federal designation to help drive tourism into their regions. It simply isn't the case. These are national, oftentimes the initiative of national organizations or small wealthy organizations within the locality, and they are also federally driven by the National Park Service and sometimes by Congressmen who hand out cash to the federal groups that are pushing them.

One example of a group that is pushing for a Heritage Area in the Virginia, Maryland, and Pennsylvania region is the National Trust for Historic Preservation, and another one is Scenic America. Both of these are national groups that have very benign titles but very serious missions.

You've heard about Measure 37 in Oregon. This is a very basic property rights initiative that isn't very hard to support no matter who you are, even if you are indifferent to property rights. All it does is reaffirm the Fifth Amendment to the Constitution. It simply says that when state or local governments pass laws that take away somebody's property rights and devalue their property, those states and local governments have to compensate that person, or if they can't compensate that person, they have to waive the regulation. It is that simple. It basically stops state and local governments from stealing. It passed overwhelmingly despite a massive campaign by Greens to try and prevent its passage, and it was recently upheld by the Oregon Supreme Court. Now, groups like the National Trust for Historic Preservation and Scenic America actually fought this ballot initiative tooth and nail. It had nothing to do with historic preservation per se or a scenic America, but this is the mentality of these organizations. When Heritage Areas come to regions, you are inviting these groups in to oversee your land use decisions.

So proponents, as I say, often claim these are just honorary designations that are designed to enhance tourism. But the bills that they actually create to do this have very little to do with driving tourism to the region. Tourism is typically a result of good advertising. The bills have very little to do with advertising, but they have a lot to do with giving these groups power to influence land-use decisions.

They also point to property rights protections that are found in a section at the end of some of the more recent Heritage Area bills. One provision they tout as being the be-all-and-end-all of protecting property rights is the ability to opt out of the Heritage Area. Now, despite the fact that it is physically impossible to opt out of a boundary if you are inside that boundary, you certainly can't opt out of any of the land-use regulations, down zoning, or other restrictions that result from the Heritage Area designation. When your local legislator passes a law that says you are going to lose your property rights and it is because of the Heritage Area, you can't go to him and say, wait a minute. I opt out. He will laugh.

Now in recent months we have gone to proponents of Heritage Areas in Congress and asked them, hey, look, do you know what your are doing here with this legislation? Have you put these bills before experts, specifically before public interest property rights attorneys? And the answer in at least one instance was, no, and we don't plan to. Well, we did, and here is what someone had to say about a specific Heritage Area bill, the Journey through Hallowed Ground National Heritage Area. But it really applies to all Heritage Areas, by and large, because the legislative language is fairly boiler plate when it comes to all of them.

But James Burling, who is a principle property rights attorney for the Pacific Legal Foundation, had this to say about this particular Heritage Area bill.

"This bill suggests that Congress still doesn't get it. The so-called protections for private property are largely symbolic; so long as regulators can browbeat landowners into becoming 'willing sellers' we will continue to see the erosion of fee simple property ownership in rural America. With the influx of federal funding, the regulatory pressure on landowners to sell will, in many cases, be insurmountable. The legacy we will leave to future generations will not be the preservation of our history, but of the preservation of a façade masquerading as our history subverted by the erosion of the rights that animated our history for the first two centuries of the Republic."

Joe Waldo, who is president of a Virginia property rights law firm, Waldo and Lyle, said this regarding this particular Heritage Area bill:

"The bill before Congress has nothing to do with a heritage trail, but will result in a trail of tears for those least able to stand up for their property rights. This is no more than an effort to overreach by the federal Government with regulations that will restrict homeowners, farmers and small business people in the use of their property.

"Traditionally the elderly, minorities and the poor are most impacted by regulatory measures that restrict property owners in the use of their land. Protecting our heritage is a noble ambition; however these matters need to be handled at the local level by those closest to the issues at hand. It is important that the fundamental right of private property not be threatened by more misguided federal legislation."

What he is talking about is that once a Heritage Area goes into effect, locals find themselves with a federal special interest wedge between them and the people who are elected to serve them. And they can't break through that wedge because the wedge is wealthy and has federal money. It has influence, and it is put there purposely between those people to enact an agenda that those people may not agree with.

R. J. Smith, who needs no introduction, had this to say, and this was in regard to the Journey through Hallowed Ground Heritage Area.

"The name itself for this National Heritage Area raises serious questions. It seems improper, even indecent, to name this the Hallowed Ground corridor and claim it is to appreciate, respect and experience this cultural landscape that makes it uniquely American, when it tramples on the very principles of private property rights, individual liberty and limited government that the Founding Fathers risked and gave their lives for.

"Lincoln himself reminded us in the Gettysburg Address that 'we cannot dedicate, we cannot consecrate, we cannot hallow this ground.' He reminded us that we must be dedicated to see that this new nation, 'conceived in liberty,' had 'a new birth of freedom,' and did 'not perish from the Earth.' Rejecting the very principles of the Founding Fathers that created our liberty and freedom is not a journey any free person should want to undertake."

Roger Pilon, the renowned constitutional scholar from the Cato Institute, says, "There is nothing wrong with historic preservation. In fact, it is commendable. But it has got to be done the right way. Indeed, it is not a little ironic to simply take those historic rights in the name of historic preservation."

The late Representative Gerald Solomon from New Yorkand this comes from Carol's wonderful archiveswrote a letter to his colleagues regarding a bill that would actually create a bona fide National Heritage Area program for the Park Service, which they still do not have and hopefully never will, but which they are still fighting for. In a letter dated September 19, 1994, Solomon wrote:

"I urge you to defend property rights and strongly oppose the American Heritage Area Participation Program. The environmentalists advocating this bill have federal land use control as their primary objective. The bill wastes tax dollars that could be more appropriately spent on maintaining our national parks. Property rights defenders have legitimate concerns about the provision in the bill requiring localities to obtain approval by the Secretary of Interior for land use plans.

"Why spend $35 million on non-federal heritage areas when our national parks desperately need funds for maintenance and repair?

"Again, I ask you to defend property rights and oppose this bill."

Representative Bob Smith from Oregonagain from Carol's archivespenned a letter to Congressman Richard Pombo in 1994 as well, warning him about Heritage Areas. He wrote:

"Dear Richard,

"On Tuesday, the House will consider legislation that I consider to be the most significant threat to private property rights I have seen during my twelve years in Congress.

"This legislation will threaten private property by authorizing a broad new program of federal land use controls, extending from coast to coast. There are nearly 100 Heritage Areas currently under consideration and it's likely that your constituents will be impacted by these incredible restrictions on private property.

"This program is based on the existing Columbia Gorge Scenic Area in Oregon and Washington. The management plan for the Gorge regulates nearly every detail of private property use, including the color landowners can paint their homes and the species of trees they can plant in their own yard. Your constituents, like mine, will be outraged at this gross abuse of government over-regulation if this bill is enacted. Believe me, you do not want to be part of a town hall meeting after masses of your constituents learn the federal government has the final say over what they can do on their own property."

Getting to that situation, we have an example of just what happens when a Heritage Area is formed and the people eventually do find out about it. In 2000, Congress designated the Yuma Crossing National Heritage Area in Arizona. Present-day citizens are upset, and there is a bill before Congress to actually restrict the boundaries, to redesign the boundaries of that heritage area to comply with all the outrage that is happening with the citizens in Yuma.

Accompanying that bill is a report that was submitted by the chairman of the House Resources Committee, Congressman Pombo. His report explains the situation in Yuma. The report states:

"When the Yuma Crossing Heritage Area was authorized in 2000, the public in Yuma County did not understand the scope of the project and was surprised by the size of the designation... Concerns were raised by citizens about the size of the designation and the potential for additional Federal oversight. The fear of adverse impacts on private property rights were realized when local government agencies began to use the immense heritage area boundary to determine zoning restrictions."

That's how they work.

The reason that the citizens of Yuma were surprised is because citizens never find out about Heritage Area designations until they actually happen. One of the crumbs that property rights advocates have been trying to get in these Heritage Area billscertainly they wouldn't be a cure-all by any means whatsoeveris just to allow for property owners to be properly notified when a pending designation is before Congress. Proponents fight this tooth and nail, obviously, because they would rather spring it on unsuspecting landowners than tell them about it first.

In conclusion, true private property ownership lies in one's ability to do with his property as he wishes. Zoning and land-use policies are local decisions that have traditionally been the purview of locally elected officials who are directly accountable to the citizens that they represent, but National Heritage Areas corrupt this inherently local process by adding federal dollars, federal mandates, and federal oversight to the mix. Thank you.

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