GOP Continues Attack On Property Rights? CEI
Expert Testifies On National Heritage Areas Policy Act Of 1999
by Robert J. Smith*
10/26/99
Testimony of Robert J. Smith, Senior Scholar at the Competitive Enterprise
Institute’s Center for Private Conservation, before the House Resources Committee
Subcommittee on National Parks and Public Lands, October 26, 1999, about H.R. 2532, the
"National Heritage Areas Policy Act of 1999."
The "National Heritage Areas Policy Act of 1999," H.R. 2532, is a bad
idea whose time, hopefully, has not come. We are especially dismayed that this bill is
being promoted in the House, and presumably in the Senate, by many Republicans, when it
clearly flies in the face of the Republican electoral revolution of 1994 which brought the
party control of Congress with its promise of less government, not more government, and of
a return of power to the people. This involves such commitments as the Republican
"Contract with America" and is in direct opposition to the will of the people as
expressed in the November 1994 congressional elections wherein there was a massive call
for less federal government involvement in the affairs of the states, counties, cities,
and towns and in individuals’ lives.
H.R. 2532 will create a new federal government program at the very time that the
American people are calling for fewer. It authorizes more federal government spending at
the very time the American people are calling for less. It constitutes a distinct threat,
indeed a clear and present danger, to private property rights at the very time that there
is a massive national backlash against regulatory takings of private property and a call
for the protection of private property rights, for takings legislation, and for
compensation to be paid to landowners who have lost the use of or the value of their
property. Property rights takings cases are lined up to get before the courts all across
America.
This proposed legislation completely overlooks and neglects America’s long
and unique heritage of private conservation and private stewardship. America has a long
and successful tradition of private land trusts which have voluntarily and privately
acquired land to protect a wide range of environmental, historic and scenic values. This
tradition dates back to at least 1891 with the creation of The Trustees of Reservations in
Massachusetts. The creation of an entirely new system of local or county heritage parks,
corridors, recreation areas and trails fits far better into such a system of private
action than into one funded by federal taxpayers. Everything from local garden clubs
finding voluntary ways to preserve a wet woods with the county’s last stand of rare
orchids, to horseback riders and snowmobilers creating voluntary rights-of-way for
non-intrusive public trails across private lands, to private funding to restore historic
sites, have repeatedly been accomplished easily and without conflict because they were all
voluntary and did not entail the heavy hand of the federal government -- and especially of
the National Park Service.
If this program is truly to be the non-regulatory program that many of its
proponents have asserted, then achieving its goals through private action is the way to
prove it.
Overlooked in the enthusiasm for this bill and for a host of so-called corridor
protection laws proposed or passed over the past decade or so, such as rails-to-trails and
wild and scenic rivers, is that they also constitute a direct threat to environmental
quality, especially to some of out most sensitive wildlife species, including many of the
threatened neotropical migrants (songbirds that nest in north america and winter in
Central and South America), and to their riparian zone habitats, which are among the most
rapidly vanishing ecosystems in the nation. Such programs place recreation, tourism and
green urban renewal in direct conflict with wildlife and wildlife habitat by fragmenting
the remaining narrow strips of riparian habitat.
This is not the sort of program the federal government should be endorsing at
this time.
BUDGET AND SPENDING CONCERNS
For much of this decade, both the U.S. Congress and the Administration were in
agreement that the staggering national debt and the rapidly-increasing annual debt service
payments were one of the most serious threats to the future of our nation.
The Congress and the White House essentially agreed that this threat was so
serious that every possible step should be taken to begin to reduce that burden.
Few if any programs were sacred enough as to be spared severe cutting, or at
least judicious pruning. Food stamp programs, college loan programs, welfare programs,
headstart programs, farm support programs were among the list of formerly untouchable
government programs that were reduced or faced reform.
At the very time that we have asked all Americans to sacrifice for the common
good of all in the future, how can we justify the creation of a new national spending
program for which there is no clear, compelling need, and which will benefit only the few
in the present? Even though a strong national economy has brought an end to the era of
ever-growing annual budget deficits, and brought surpluses instead -- must we start on a
new round of new spending programs before we have even begun to tackle the still
unresolved problems of the national debt, social security and medicare?
Under what principles of just and constitutional government can we justify the
creation of local or county historic/recreational corridors for the benefit of a few at
the expense of the many?
At the very time that we have asked poor Americans to accept less in the way of
food stamps or welfare payments, and required them to go out and earn money with their own
labor and sweat, what is the justification for people in one community or county to take
tax monies from taxpayers in other counties and communities all across america to pay for
a local recreational corridor -- regardless of how historically, geographically, or
culturally significant this area may appear to a few local boosters. Especially when these
monies will largely be going to a more well to do class of joggers, bikers, bird watchers,
local businessmen and well-heeled environmentalists. This is robbing the poor to give to
the rich -- or to create playgrounds for the rich.
This is simply the creation of a brand new pork program. It is a return to the
heyday of the efforts at park barrel legislation when certain congressmen were attempting
to create new parks in every congressional district. This proposed legislation goes much
further than that, holding forth the eventual possibility of a national heritage area or
national heritage corridor in every county, in every city and in every town in america.
If there is any justification for the creation of county and local parks,
heritage areas, recreation trials, or whatever all across the county, then this falls
within the sphere and jurisdiction of county and local governments and should be paid for
by those county or local citizens. Nothing in federal law prevents local governments and
communities from recognizing special areas if they so choose.
The proponents of the national heritage areas policy act have argued that no one
should be opposed to it because it is such a tiny little federal program with a budget of
only $10,000,000 annually.
That is hardly reason to not be concerned. Many tiny, innocuous, feel-good,
broadly-supported programs have later turned into extraordinarily divisive government
programs. Case in point would be the National Eendowment for the Arts which started with a
minuscule annual funding of $1,000,000. The program’s spending eventually exceeded
$100,000,000 a year -- and conservative and traditional family-centered Americans are
outraged that their tax money is being used to subsidize all sorts of offensive and
political performances.
Having repeatedly seen government efforts to protect species, wetlands, rivers,
beaches, etc., grow rapidly into land-use control and governmental takings programs, we
should all be aware that the initial size and goals of a federal program provide no
guarantee of its future extent or role, nor does the clear intent of Congress.
It also appears that in some areas of the country this new federal program will
be a clever way to obtain federal taxpayer dollars for local urban renewal projects or
urban revitalization projects, especially in rundown abandoned former industrial areas
along rivers or streams. This is especially true for certain neighborhoods, or even entire
towns, where demographics, population shifts, changing technologies or trade patterns, or
even new transportation corridors have resulted in some areas being abandoned. This
appears to be a mechanism for people living near these areas or standing to benefit from
their redevelopment to use someone else’s money to pay the costs.
As with local or county trails, recreation areas or parks, this is a legitimate
function of county or local governments if their citizens desire to fund them through the
imposition of local taxes, bond issues or other appropriate means.
Mr. Chairman, at a time of a relatively conservative national mindset, when even
Democratic presidents must adopt a significant facade of Republican and conservative
rhetoric, there is absolutely no justification for creating a new government spending
program, especially one for which their is no constitutional or federal justification.
This is simply another in the long line of pork programs. How can the American people have
any faith in their elected representatives, if at the very moment that there is a national
outcry to reduce government taxing and spending, the Congress is back at the trough once
again.
Mr. Chairman, there is a small species of owl that is endemic to New Zealand.
This small brown and buff bird is called the morepork. It is named for its call. The
Collins Guide to the Birds of New Zealand describes its call thusly: "characteristic
call a clear and individually variable more-pork...; A common variation is repetitive and
often prolonged more-pork-pork-pork...." If the Congress enacts the National Heritage
Areas Policy Act, it would only be fit and proper that the National Heritage Areas emblem
be the morepork.
POTENTIAL THREATS TO PRIVATE PROPERTY
The National Heritage Areas Policy Act of 1999 constitutes an implicit and
potential threat to private property rights and it is merely one more in a long series of
programs aimed at achieving cost-free national land-use control. This is a real and
pressing concern as others testifying against similar legislation in recent Congresses and
as at least one other testifying today have made abundantly clear.
I urge the committee to heed their counsel.
PRIVATE ALTERNATIVES TO THE NATIONAL HERITAGE AREAS POLICY ACT
America has a long and exceptionally successful history of private stewardship
of environmental amenities. In fact the first private land trust in the world was The
Trustees of Reservations (TTOR) which was created in Massachusetts in 1891
as a nonprofit, charitable corporation for conservation purposes to protect the
countryside of Massachusetts and especially to preserve for the public its "beautiful
and historical places and tracts of land."
This was the first independent, private, nongovernmental organization in the
United States established for the purpose of land preservation. Its purpose was to
preserve in perpetuity areas with unique natural importance, scenic beauty, and historic
value. Charles Eliot, son of the then president of Harvard College, deserves much of the
credit for developing the idea of "promoting conservation through voluntary
agencies." In February 1890 he wrote to Garden and Forest magazine, urging the
protection of the countryside throughout Massachusetts. He expressed concern that
"several bits of scenery which possess uncommon beauty and unusual refreshing power
are in daily danger of destruction." He further urged the establishment of "an
incorporated association composed of citizens of [Massachusetts] and empowered by the
state to hold small and well-distributed parcels of land free of taxes, just as the public
library holds books and the art museum pictures for the use and enjoyment of the
public." Its 1891 rules and regulations called for it to hold and maintain for the
public "beautiful and historical places and tracts of land within this
Commonwealth."
Over the years The Trustees of Reservations have acquired and are custodians for
nearly 100 properties from western Berkshire County to Cape Cod and Nantucket. These lands
have been acquired in fee through gift, bequest, and purchase with funds raised privately
for their acquisition. Additional areas are protected through conservation easements and
restrictions or are otherwise indirectly protected.
TTOR served as the model for the creation of similar land trusts elsewhere,
beginning in 1894 with the National Trust in England.
The Nature Conservancy, at least in its infancy, followed a similar pattern of
private acquisition and protect of areas of unique scenic, natural or wildlife areas,
operating under the motto of "conservation via private action."
The private land trust movement has been one of the fastest growing areas of
land conservation in America. There are probably some 2,000 such land trusts operating
today, protecting everything from open space and prime agricultural land to the last stand
of rare plants in some county and even to the restoration, protection and conservation of
barns.
Indeed, there are so many private land trusts, working in so many different area
of private conservation and preservation, that they have a national umbrella association,
the Land Trust Alliance, which was formed in 1982.
It would seem that all of the legitimate preservation, conservation and
recreation goals of the National Heritage Areas Policy Act could easily and legitimately
be undertaken by private land trusts. Considering that the environmental movement raises
hundreds of millions of dollars every year, and some estimates place the annual total
receipts of all the nation’s environmental and conservation organizations as high as
approximately 2.5 billion dollars each year, it should require little more than dedication
and determination to raise the $10,000,000 requested for the National Heritage Areas
Policy Act.
A series of voluntary heritage area trusts would be fully in keeping with the
nation’s long history of voluntary association and private conservation activities,
and since all relationships between the various trusts and private landowners would
necessarily be voluntary and contractual -- there would be no threat to private property
rights, there would be far less opposition to the program, and it would be consistent with
the national efforts to reduce the size and cost of government.
Many of the proponents of this legislation have in the past stressed that they
have no intention of designating areas as National Heritage Areas, only of recognizing
areas as National Heritage Areas -- and therefore there is no possible threat to private
landowners. Firstly, H.R. 2532 explicitly calls for designation of Heritage Areas.
However, if the only goal of this legislation is merely recognition, then there is really
no need at all to have the legislation. The land trust movement itself, or the Land Trust
Alliance, or even the friends of Heritage Areas, can create their own qualifications for
recognition and then issue their own certificates or plaques of recognition.
Mr. Chairman, the definition of a National Heritage Area in H.R.2532 is so
broad, so vast, so wide, so all-encompassing, that almost anything, any place, anywhere,
could qualify -- and could certainly be nominated or recognized by a secretary of
interior, a state governor, a congressman, an environmentalist, an urban renewal booster
or developer, or a chamber of commerce tourism touter.
I quote from the bill: "The term ‘national heritage area’ means a
place designated by the congress where natural, cultural, historic, and recreational
resources combine to form a cohesive, nationally distinctive landscape arising from
patterns of human activity shaped by geography. These patterns make National Heritage
Areas representative of the national experience through the physical features that remain
and the traditions that have evolved in the areas. Continued use of National Heritage
Areas by people whose traditions helped to shape the landscapes enhances their
significance."
I trust whoever wrote that knows what it means, because in a telephone survey of
property rights and resources lawyers and staff of public interest legal foundations, the
two most common responses were that it was either total gibberish, or more ominously, that
it could mean anything to anyone.
That definition could be used to justify designating everything a National
Heritage Area. Certainly the entire Great Plains, from the first tall grass prairies on
the western bank of the Mississippi to the front ranges of the Rocky Mountains, would
qualify as a National Heritage Area. And so would most other geographic regions and areas
of the nation.
It would appear from the bill’s definition of a Heritage Area as combining
national experience, the remaining physical features and the areas’ traditions, that
this would allow vast areas of the Northwest’s forests to be designated as Heritage
Areas -- where continued use by the people who helped shape those landscapes would enhance
their significance, would mean a return of the forest products industry, the sawmills and
the loggers.
Yet I suspect that this is not what the authors of this legislation and the
overwhelming percentage of the environmental community that wholeheartedly have been
lobbying for such legislation probably had in mind.
Given this all-encompassing definition, it might be far cheaper and far less
cumbersome, to simply set up a Congressional Office of National Heritage Area Recognition
and Designation and simply permit anyone or any place that desires to be recognized as a
National Heritage Area to send in a request and then to mail back a certificate or plaque
of recognition and designation to hang on their wall or nail to a post.
Private landowners in every part of the country who have seen their land or
their neighbors’ taken through government regulation have every reason to be deeply
suspicious of any new federal program, particularly one based in the Department of the
Interior, and even more importantly a program emanating from the National Park Service.
Even if this new program will purportedly do little more than firstly merely recognize
National Heritage Areas, and then only create a system of federal designation and funding.
Mr. Chairman, there is a considerable litany of innocuous-sounding,
well-meaning, Department of Interior programs which were created by the Congress with
clear directions that the National Park Service was to preserve the local communities and
culture and was not to condemn or acquire private lands.
Yet these programs went drastically awry and offer no hope that this new program
would turn out any better.
Briefly, in 1972 the Buffalo National River was created near the Ozarks in
Arkansas. The area’s people, community and especially culture were so unique that
they were featured in a major story in the National Geographic. The people, their homes,
and culture were supposed to be preserved. When the area was created in 1972 there were
1,108 landowners along the river. When NBC aired a major news program on the Buffalo
National River on its fifteenth anniversary in 1987 during a debate over how the National
Park Service treated landowners -- there were only eight (8) landowners remaining. Despite
the clear intent and mandate of Congress, the federal bulldozer removed the people, their
homes, communities and their unique culture.
When the Cayahoga National Recreation Area was created in Ohio in 1971, the
Congress again called for the preservation of the community, rejected condemnation and
acquisition and called for the use of easements. By the early 1980s hundreds of homes had
been bulldozed and burned as people lost their ancestral homes and small businesses and
the few remaining homes in the recreation area belonged to a handful of people who were
wealthy and sophisticated enough and had sufficient connections and competent legal advice
to hold out from the federal bulldozers. Among that handful were Congressman John
Siberling and the editor of the Akron Beacon-Journal. Once again the plain people lost
everything to a harmless program, created to preserve their communities, homes and
cultures -- and with no power to take their private lands. And yet they lost everything.
That is why the fifteen (15) lines of "subsection (h), private property
protection," offers little meaningful protection over the long-run to any landowners
who may find themselves and their homes and property within the boundaries of a
federally-designated National Heritage Area or National Heritage Corridor.
Once you are in the physical area you are in it -- period. When similar
legislation was debated and discussed in the 104th and 105th Congresses, many people
proposed or were led to believe that there might be an option for private landowners to
opt out of any Heritage Area. Thus, they reasoned, none of the ensuing regulations and
local zoning to preserve the integrity of the National Park Service Heritage Area -- which
would slowly develop over the ensuing years -- would apply to anyone who opted out, either
at the beginning or at any subsequent point in time.
However, it was quickly pointed out by some of the most enthusiastic proponents
of the National Heritage Area legislation, that the option of opting out was simply a
will-o-the-wisp. That you couldn’t opt out. It was physically impossible to opt out;
it was geographically impossible to opt out. You were either in the National Heritage
Area, or you were outside the boundaries. And if you were inside, then whatever
regulations were subsequently adopted by the "local coordinating entity" would
apply to everyone within the Heritage Area. Just as it did to the victims of the National
Park Service’s Buffalo National River residents and the Cayahoga National Recreation
Area residents -- regardless of the protections by Congress.
NATIONAL HERITAGE AREAS AS A THREAT TO WILDLIFE AND HABITAT
One of the most disturbing ironies of this act is that it will very likely lead
to serious environmental harm, pitting the recreational wing of the environmental movement
against the conservationist wing, with little public awareness of this unfortunate fact.
Many if not most of the 110 or so proposed National Heritage Areas and National
Heritage Corridors, as well as some of the few which are operational today, are located
along or adjacent to rivers, streams, lakes and wetlands. This is where most of the
proponents of these Heritage Areas would like to have parks, recreation areas, and
especially trails. Almost all of these corridors will incorporate some sort of trail
system: greenways, bikeways, scenic trails, national trails, snowmobile trails, jogging
paths, rails-to-trails, canoe trails with put-in and take-out areas, camp grounds, picnic
sites, picnic tables, etc.
And that is not an exhaustive list.
Unfortunately all of these recreational trails and corridors will be cutting a
swath through, i.e., fragmenting, some of the last remaining vital riparian habitat in the
United States. For years the conservationists and proponents of ecosystem protection and
biodiversity protection have warned of the accelerated loss of riparian habitat. They have
identified this as some of the most important and critical habitat in the nation, as well
as being one of the most rapidly disappearing ecosystems.
Part of its importance, aside from its function in protecting streams and
wetlands, is as breeding habitat for a substantial number of wildlife species, especially
birds, which are easily subject to disturbance and which are not well adapted to new
threats. Of particular concern are those neotropical migrants, the birds breeding in the
U.S. and Canada which winter in Central and South America. The U.S. Fish and Wildlife
Service, other federal and state agencies, and most conservation groups have expressed
extreme concern about the growing and dire plight of a great many of these birds. It is
argued that the major reason their populations are declining so rapidly is because of
fragmentation of their breeding habitat in this country and loss of their wintering
habitat south of the border.
While there is relatively little that can be done quickly on their winter
grounds, there have been calls from all quarters to immediately limit and reduce
fragmentation of their breeding habitat. Whenever a housing subdivision is proposed, or a
new sports arena out in the countryside, or when a landowner proposes to cut a road
through his brush-covered hillside to allow his cattle to move from one pasture to
another, or when a timber company proposes even a modest clearcut -- warnings regarding
the consequences of any additional habitat fragmentation quickly are sounded.
Indeed, the threat of habitat fragmentation is considered so severe by some
environmentalists that they successfully prevented fire trails from being cut or
maintained in some of the areas of Southern California that burned up in the disastrous
fires in the fall of 1993. These fires not only destroyed a large number of homes and tens
of millions of dollars worth of property, but ironically they also destroyed huge
stretches of habitat for the endangered Coastal California Gnatcatcher, as well as many of
the gnatcatchers.
Constructing trails and recreation corridors through the remaining narrow
remnants of riparian habitat along most of the rivers and streams likely to be proposed
for National Heritage Areas will almost totally fragment these habitats, leaving little
protection for nesting neotropical migrant birds. A path down the middle of a riparian
forest opens up both sides to substantially increased depredation by Brown-headed
Cowbirds, which are nest parasites on these species. Cowbirds lay their eggs in the nests
of smaller species, which end up raising only a cowbird, and none of their own young.
Cowbirds follow even the narrowest of paths deep into the woods, searching for nests to
parasitize.
Additionally jays and grackles follow these trails and find access to the eggs
and young or many songbirds. Also raccoons, opossums, feral dogs, feral cats and
free-roaming house cats and barnyard cats use these trails and corridors with their human
scents and food scraps and waste as little more than a buffet line.
With all of the attention given to the complaints of environmentalists
concerning the harm from habitat fragmentation resulting from highway construction, home
building, timber harvest or even firebreak construction, it is disturbing that little if
any attention is being given to the creation of an entire new federal program which will
result in fragmentation of perhaps the most endangered type of habitat -- the riparian
zones being turned into recreational trails, corridors and greenways. It seems that
environmentalists oppose anything that fragments habitat except those things that benefit
themselves and their constituents.
If the National Heritage Areas Policy Act of 1999 does become law, it should at
the very least be subject to all NEPA requirements and the necessity of preparing a
detailed EIS regarding the impact of each and every National Heritage Area and National
Heritage Corridor on riparian habitat, wetlands habitat and especially upon the
neotropical migrants which utilize the areas.
In conclusion, this is not the sort or program the federal
government should be undertaking at this time. If there is a call for such action, any
program should be undertaken voluntarily by private citizens’ groups, conservation
organizations, chambers of commerce, and tourist boards on a local level, by local people,
spending their own money, not other people’s money.
* R.J. Smith is a Senior Environmental Scholar at the Competitive
Enterprise Institute and Senior Scholar at the Center for Private Conservation, a project
of the Competitive Enterprise Institute. CEI is a nonprofit, nonpartisan research and
advocacy institute dedicated to the principles of private property, free enterprise and
limited government. CEI is located in Washington, D.C.
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