Park Service Threatens Landowners in
New Rules for Nation-Wide Inventory

This report was originally published in The Land Rights Letter, January 1992.

Copyright © 1992, Erich Veyhl, All Rights Reserved

Thumbing its nose at three years of public and Congressional criticism, the National Park Service (NPS) has proposed new rules directing its National Natural Landmarks Program to evaluate and inventory thousands of sites across the nation intended for future government acquisition or control.

According to new regulations proposed in the Nov. 21 Federal Register for a 90 comment period, "The NPS will maintain information on areas that the Director has found ... meet the scientific criteria for national significance, but which have not received the requisite owner consent." The formal announcement reneges on earlier assurances by the agency to Congress, landowners, and the Interior Inspector General that new regulations would include landowner consent for participation in the allegedly voluntary assistance program.

Bitter complaints from landowners over program misrepresentation, illegal activities and lack of accountability led in Nov. 1989 to a national "moratorium", the drafting of new regulations, an "internal review" and an investigation by the Interior Inspector General. NPS was forced to acknowledge problems after Maine Senators Cohen and Mitchell wrote to Interior Secretary Lujan in July, 1989, requesting an "immediate review" and saying "The inability or unwillingness of the NPS to answer questions in a forthright manner and take responsibility for its actions has generated a deep mistrust of the National Park Service in Maine."

The Inspector General (IG) preliminary audit of the Landmarks program, which NPS tried to prevent, was released Dec. 6. Based on a survey of 25 Landmarks designated since 1980, it concluded that "the NPS was not following its regulations" and "the property rights of over 2,800 landowners [in already designated sites] may have been infringed upon."

The IG recommended that NPS "suspend [all] 587 landmark designations until all landowners have been identified and notified in writing of their options" to have the designations "removed from their property" and that "proposed regulations require landowner consent throughout the evaluation, nomination, and designation processes." The IG concluded, "We do not believe that Government resources should be needlessly expended on funding evaluations if the landowners have not provided their consent... The Program can be effective only with landowners' consent because preservation depends on the landowners' interest..."

But NPS, unwilling to abandon its publicly unacknowledged use of the Landmark inventory as a feeder program for new acquisitions and control, rejected the recommendations in its new rules. It also refuses to destroy files containing information collected illegally under the previous regulations.

NPS publicly insists that the Landmark program, which relies mainly on outside organizations such as The Nature Conservancy and State Heritage programs to evaluate and monitor sites, is only to "assist" and "honor" cooperating landowners.

But a 1986 internal NPS document said that the "Landmarks Program has been compiling new park recommendations derived from natural region theme studies since 1971" and "This information, as you know, is very politically sensitive, which is why the enclosed compilation has never been distributed outside of NPS."

In 1989 NPS officials were found working with preservationists on new Federal legislation that would impose jail terms and penalties up to $25,000/day for landowners "damaging" or "threatening" areas in or near Landmarks or other sites in an expansive new program for thousands of "Heritage Sites." Another version of the bill seeking Federal influence for state and local control over Landmarks was introduced late in 1990, and a bill was recently promised again by Rep. Kostmeyer (R-PA) [LRL 10/91]. The National Parks and Conservation Association calls Landmarks "Ladies in Waiting" and is lobbying for an acceleration of their transformation into new government controlled areas.

NPS's lack of interest in a voluntary assistance program was further illustrated by Pacific Northwest Regional Director Charles Odegaard's comments last year on draft regulations that would have required landowner consent and required the agency to maintain a current list of owners:

"I am completely opposed to the adoption of the proposed regulations with their emphasis on landowner approval as a condition for favorable consideration of potential and designated NNLs ... the draft regulations' use would so badly compromise the purpose of the NNL Program as to make it meaningless... It is likely that landowners agreeing to an NNL proposal would be predisposed to preserving the natural values of their land anyway."

"Without increased program support and statutory authority over NNL's ," added North Atlantic Regional Director Gerald Patten, "... the benefit is not there... The proposed owner notification process could also set an unwelcomed and costly precedent for other programs such as new area studies, wild and scenic rivers, and rivers and trails."

In a move to deflect adverse publicity over landowner objections, the new regulations implement a dual listing system to allow evaluations and inventorying to proceed while giving the appearance of landowner consent: One list contains sites declared to be "nationally significant" and "designated" as Landmarks with owner consent; the other list contains sites declared to be "nationally significant" under the Landmarks program without owner consent -- but without calling them "designated" Landmarks.

The dual scheme was advocated by the National Parks and Conservation Association, the Wilderness Society, Federal officials and other preservationists who have lobbied hard for more authority over private land.

Nationally syndicated environmental columnist Alston Chase has published four columns in two years exposing the ongoing Landmark scam, and abuses were illustrated again last month in a broadcast by several TV stations around the country. In one case a state eminent domain taking in Illinois is based on a Landmark designation. In another, a planned NPS takeover in Alabama [LRL 11/91] is based on a 1989 Landmark evaluation that had avoided notification requirements by claiming only 15,000 acres of State land was involved. The site has not yet been "designated" as a Landmark, but the 1991 NPS "New Area Study" said that the Landmark evaluation had found the surrounding area to be "nationally significant," and argued for Federal acquisition of 34,000 acres.

Provisions in the new regulations provide that "any source, public or private, may suggest an area to NPS for consideration for landmark study and designation." The regulations, which do not require NPS to demonstrate how it obtains information used in its evaluation reports, leave the burden on the landowner to prove trespass violations for unaccountable information and to prove that information obtained through trespass influenced the results of the evaluation. There are no constraints on using information from other sources or from inspections from outside the property, or on gaining entry through false pretenses.

Other sections authorize the use of Landmarks for Federal planning and grant NPS the authority to enter into "contracts" and "agreements" with "other Federal agencies, States, counties, local communities, private organizations, owners, or other interested individuals or groups [which] may include ... protecting natural landmarks" regardless of ownership.

The Landmark program was begun in 1961 in collaboration with the Nature Conservancy and approved the next year by the Secretary of the Interior under a provision of the Historic Sites Act of 1935 regarding "historic objects", a phrase interpreted by the agency to mean natural areas ranging from one to millions of acres in size. The program operated without any regulations at all until 1980 and ensnares thousands of landowners, most of whom are unaware of it, in 587 "designated" and over 3,000 "potential" Landmarks already identified.