National Heritage Areas: Shortcomings of the CRS Report

March 30, 2004

By Cheryl K. Chumley

On several fronts, a Congressional Research Service study on National Heritage Areas is misleading, misguided or outright mistaken – the latter by omission, as report authors fail to point out the absurdities of a key and common phrase used to identify private lands for public oversight.

Absent from the report to Congress is mention of the term “nationally significant,” a most familiar means by which environmentalists and their non-government and political cohorts justify the taking of private properties. This is the exact term, for instance, that was used as grounds for recent House passage of the Highlands Conservation Act, a $100 million-plus piece of legislation that hurts private landowners by seeking public control of more than two million acres of property, ostensibly to protect the region’s “water, forest, wildlife, recreational, agricultural and cultural resources.”

This is also a term the National Park Service and various state and local entities have used since 1984 to ultimately declare 24 tracts of land encompassing 160,000 square miles as NHAs, needful of public oversight, preservation and management.

The only problem is nobody knows for sure what national significance means. So one fundamental issue to decide is whether Congress still plans to use this term. If not, then whatever new phrase is developed to justify the declaration of a NHA, and subsequent public oversight of the affected private properties, needs strict definition.

But if “nationally significant” remains the favored qualifier for declaring a NHA, the first order of business must be to outline the exact conditions under which a parcel of property can be found to affect the future well-being of the nation at-large to such a degree that the private landowner could not possibly maintain these conditions without oversight from public land and environmental entities.

Is Congress planning to continue use of the “nationally significant” term, and if not, what will instead establish a NHA?

This is the core of the debate with NHAs. This issue has gone unchallenged for far too long, resulting in the creation of 24 NHAs that – it could easily be argued – may not even be needed and leaving open the potential for further such illogical declarations. Without an indisputable means of determining, who’s to say?

Absent clear definition of what exactly constitutes national significance, cases could be made that parcels of property with birds’ nests or carrot patches are indeed areas of importance to the country-at-large in terms of wildlife and agriculture, and are therefore worthy of public management and oversight. This only sounds ridiculous; if the doors to private property encroachments weren’t meant to be left open to interpretation and special interest whim, why would the definition of national significance be so loose in the first place?

Unfortunately, CRS does not raise this crucial question – but it does point to another troubling facet of NHAs, one that by itself should be enough to halt in its tracks this decades-old method of placing private property under the control of public managers.

“There is no generic statute that establishes criteria for designating (National Heritage Areas) or provides standards for their funding and management,” CRS finds.

So the ludicrousness continues: It’s admitted no defined method exists for creating and managing a NHA.

In other words, National Heritage Areas can be declared by whatever means possible, because “no generic statute exists,” and most notably by assertion of “national significance,” which means whatever it means. What’s next – declaration of a National Heritage Area depends upon what the definition of ‘is’ is?

With more than 30 measures pending in Congress seeking establishment of new NHAs, the importance of such definitions is heightened because private property rights – the most fundamental of all God-given and constitutional guarantees – are at the mercy of the interpretations of self-serving environmentalists who will use whatever means necessary to control gigantic swaths of land for wildlife rather than human use.

So when CRS finds that “heritage areas are not federally owned, and a designation generally is not intended to lead to federal acquisition of lands,” those with concern for private property rights should see the red flag in use of the word “generally.”

This touted so-called benefit of NHAs is aimed at appeasing private property owners with either experience or knowledge of the heavy-handed tactics of federal land-greedy bureaucrats. The idea is that since NHAs are overseen by supposed friendly and gentle state, local and private entities, infringement from the federal government will not occur. But reality shows otherwise, as even CRS admits.

“In a few cases, Congress has authorized federal acquisition of land in heritage areas,” CRS finds. “For instance, Congress authorized creation of the Cane River Creole National Historical Park (in Louisiana) within the Cane River NHA.”

This national park encompasses two separate areas within the NHA, 42 acres and 18 acres, and is a prime example of why those who profess an utmost concern for private property rights should view with caution the loophole-ridden promises of heritage area advocates to keep the federal bureaus out of the property acquisition and management picture.

Another reason for wariness is the proven fallacy of the National Park Service’s purported role with NHAs.

“Heritage areas are among the types of areas that utilize aid from the National Park Service, but are not directly owned and managed by the agency,” CRS says.

The key word here is “directly.”

While it’s true the NPS does not hold the ultimate jurisdiction over management of NHAs, this federal bureaucracy does provide “various types of assistance” to the many non-government organizations, politicians and environmental groups who do oversee the areas, to include “administrative, financial, policy, technical and public information,” CRS finds. Is it really that difficult to comprehend that those who control the purse also control the strings?

CRS also says that NHAs are generally created when Congress “designates a management entity, usually non-federal, to coordinate the work of the partners. The management entity typically develops and implements a plan for managing the NHA, in collaboration with other parties. Once approved by the Secretary of the Interior, the management plan essentially becomes the blueprint for managing the heritage area.”

Why, if the nature of the NHA beast is to really keep property control in the hands of the states and locals, does the Secretary of Interior have to approve all land management plans? Coupled with the stated role of the NPS, and awareness of the ease with which these federal bureaucrats could, say, enter quid pro quo agreements with local officials, trading funding for stricter zoning and land-use laws, it’s not difficult to see how any so-called benefit of NHAs to private landowners is actually a thinly disguised travesty.

Think this couldn’t happen? It already has, during creation of the Augusta Canal National Area in Georgia in 1994 when the NPS refused to approve local management plans until zoning laws were tightened.

But that was 1994 and this is 2004, you say? A decade may have passed, but deceptive claims of concern for private land owners still prevail, and as proof one need only analyze a current NHA-related measure being waved in Congress as a surefire solution to this whole, oft-cumbersome, property protections debate.

Of an estimated 30 pending congressional NHA bills, only one has passed the House, H.R. 280. Titled the National Aviation Heritage Area Act, this measure is being touted by NHA advocates for its inclusion of private property protections that supposedly guarantee no privately owned lands “shall be preserved, conserved or promoted by the management plan for the heritage area until the owner receives written notification and gives written consent,” CRS reports.

H.R. 280 also theoretically gives landowners the right to remove their properties from consideration of NHA declaration “upon written request” and likewise requires “that any land acquired for a historical site be done by donation.”

The notion of land donor aside, which evokes comparisons with the falsely labeled “willing seller” who parts with property after facing horrendous pressure from environmentalists and self-serving government groups, the problem with these other property rights protections is they likely aren’t worth the paper upon which they’re written. That’s because the NPS – the agency, remember, that is tasked as a catalyst for the planning and funding of NHA lands – has a history of violating these same listed provisions, as evidenced during an early 1990s scheme to declare landmarks in Maine.

Then, the NPS broke its own agency policy of informing landowners in writing of any landmark declaration effort, and thereby deprived many of the chance to protest. Subsequent outrage was so intense that an investigation ensued and in 1992, the Interior Dept. concluded the NPS “may have violated the property rights of over 2,800 private landowners” in both Maine and across the nation because of its sloppy disregard for notifying owners when properties were targeted for landmark status, a Jan. 1992 edition of the Bangor Daily News reports.

So how exactly will these private land protections in H.R. 280, held as a happy compromise between NHA advocates and landowners, guarantee that NPS will not commit these atrocities against property owners yet again?

It doesn’t – and if this is the best protections NHAs can offer the private land owner, perhaps it’s time to abolish this bill, along with the other pending 29, and along with the entire spotty argument that heritage areas really reflect a true concern for property rights and are win-wins for environmentalists and those who own the lands environmentalists seek to control.

The American Policy Center is a privately funded, nonprofit, 501c(4) tax-exempt grassroots action and education foundation.

Tom DeWeese
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Tom DeWeese is one of the nation’s leading advocates of individual liberty, free enterprise, private property rights, personal privacy, back-to-basics education and American sovereignty and independence.