COMMENTS OF
THE WASHINGTON COUNTY ALLIANCE

ON 36 CFR 62,
NATIONAL PARK SERVICE'S
NATIONAL NATURAL LANDMARKS
PROGRAM REGULATIONS,

PROPOSED RULES 56 FR 58790, NOV. 21, 1991.


Erich Veyhl, Chairman
Washington County Alliance
24 Orchard Rd.
Concord, MA 01742

[These detailed comments on the proposed regulations were submitted to the Department of the Interior on March 1, 1992 as part of the public record on the proposed rules.]

  1. Authority
  2. The origins and authority cited for the National Natural Landmarks program (NNLP) are incorrect. Supplementary Information (56 FR 58790) states that the

    "National Natural Landmarks (NNL) Program was established by the Secretary of the Interior in 1962, under authority of the Historic Sites Act of 1935 (16 U.S.C. 461 et seq) to identify and encourage the preservation of the full range of geological and ecological features that are determined to represent nationally significant examples of the Nation's natural heritage."

    According to NPS documents, the NNL Program had already begun operation by 1961 through a collaboration between the National Park Service and outside organizations. The Secretary of the Interior did not establish the program in 1962, but responded to a request by the Park Service for approval of its ongoing operation, which had already begun identifying sites.

    The Historic Sites Act of 1935 was claimed as the justification for authority in 1962, but inclusion of this Act in 56 FR 58793 as the actual authority is incorrect. The 1935 Historic Sites Act makes no mention of natural areas for preservation or any other purpose. The Act states its purpose as follows:

    "It is hereby declared that it is national policy to preserve for public use historic sites, buildings and objects of national significance for the inspiration and benefit of the people of the United States."

    National Park Service powers described in Section 2 of the Act refer to "drawings, plans, photographs and other data of historic and archaeologic sites, buildings, and objects", "a survey of historic and archaeologic sites, buildings and objects", and similar phrases which make no reference to natural areas.

    If the phrase "historic objects" could legitimately be interpreted to mean natural areas, it could be interpreted to mean anything, which is absurd.

    The Act also authorizes acquisition, including condemnation (in conjunction with the General Condemnation Act of 1888) of private property, subject to Congressional appropriation of funds.

    The Park Service is inconsistent in its claims that the NNL Program has no affect on private property, while citing its authorization an Act including preservation for "public use" and condemnation of private property.

    In the proposed rule-making Supplementary Information, Discussion, 56 FR 58791, the Park Service claims:

    "The NPS has an affirmative responsibility to maintain information on nationally significant resources, and to make such information available, as required under the National Environmental Policy Act (42 U.S.C. 4321 et seq), for planning and environmental review purposes. Therefore, the proposed rule includes a provision that NPS will maintain information on areas that are considered to meet the scientific criteria for national significance, but which have not been designated because of lack of owner consent. In addition, NPS may continue to evaluate the possible national significance of sites, using available information and without entering onto land without permission, even where owners may have indicated their objection to NNL designation of their property."

    The National Environmental Policy Act (NEPA) says nothing of the kind. NEPA makes no direct or indirect reference to the NNLP and no reference to any Park Service obligation to seek out sites it wants to preserve in advance of any Federal actions covered by NEPA which the Park Service speculates may at some time in the indefinite future be in an area where NEPA would apply if it were "nationally significant." NEPA does not direct the Park Service to create potential NEPA issues on private property where there are none.

    The Park Service is looking for excuses to expand its jurisdiction. It is illegitimately attempting to interpret its role under NEPA (as providing information on sites already determined to be significant and in which the Park Service is already involved) to mean that it also has the authority to develop a program to aggressively expand its involvement through evaluations and inventorying everything it wants to claim is "nationally significant." This leap of logic begs the question.

    In citing NEPA as an excuse to evaluate and inventory land without landowner consent, the Park Service is trying to rewrite an unrelated law to authorize the NNLP. Whatever other authority exists for the NNLP, the Park Service cannot use NEPA to provide itself with open-ended authority to operate an aggressive inventory program as it pleases.

    There is no legislation defining or explicitly authorizing the NNLP and all attempts to obtain it have failed. The most prominent examples of such failures, which have included language empowering the Park Service to evaluate and designate a comprehensive system of landmarks, are the National Heritage Policy Act of 1979 and attempts in the last few years at the National Heritage Conservation Act.

    Congressional authority related to the NNL program has been piecemeal (egg. the Mining in the National Parks Act, Section 8 of the General Authorities Act, and Advisory Board review) through appropriations and references to what Congress incorrectly assumed was already a legitimately established program.

    Park Service authority related to the NNL program has thus been granted through an obnoxious, back-door incremental process of innocuous-sounding bits and pieces slipped through without Congress knowing what the nature of the program is.

    Whatever authority has been established in law by this process, there is no sign of any Congressional intent (other than a handful of Congressmen collaborating with the National Park Service who have failed in their legislative efforts) for the NNLP to adversely affect the civil rights of non- consenting landowners.

    Moreover what little Congressional awareness of the program there has been has mostly been based on Park Service publicity and assurances that the program does not adversely affect private landowners. The Park Service has no right to conclude Congressional intent for more than this in interpreting its powers in new NNLP regulations.

    Whatever nebulous authority related to the NNLP the Park Service now has, the legislative history shows no basis for it to operate a Landmarks program which ensnares unwilling landowners in an agenda which is demonstrably intended by the Park Service and others to eventually take control of private property.

    In the proposed NNL regulations, the Park Service is arrogantly trying to give itself powers through its own administrative decree which the Park Service and its boosters in the national environmentalist lobby have failed to achieve in legislation.

  3. Owner Consent and Program Purpose
  4. The purpose of the Landmarks program must be restricted to recognizing scientifically significant natural areas whose owners agree to a long term (but not necessarily permanent) commitment to preserve the natural features of their land.

    There should be no attempt by the NNLP to evaluate or list any sites without landowner consent, and there should be no attempt to inventory a "complete" list of what the Park Service claims are the "best" sites. Aspirations to such "completeness" not only lack scientific objectivity, but are impossible to fulfill without violating the rights of landowners.

    The regulations must prohibit program activities or expenditure of funds which exceed the stated purpose of the program or its regulatory procedures.

    The Landmark program must not be used to accept or maintain information outside the scope of the procedures for nomination, evaluation, or monitoring of designated Landmarks, and must not provide information to other NPS programs or other agencies on any site not duly designated as a Landmark.

    1. Proposed Regulations Circumvent Owner Consent
    2. Despite the controversy and public objections to Park Service evaluations of property without owner consent, and despite prior Park Service commitments to require consent, there are no provisions for such consent in the proposed regulations.

      On the contrary, the proposed regulations state [62.4(f), 56 FR 58795] that

      The NPS will maintain information on areas that the Director has found, after considering all available information, meet the scientific criteria for national significance, but which have not received the requisite owner consent. This may include sites for which the NPS has elected not to undertake second notification ... as well as sites for which such second notification has been undertaken."

      In other words the Park Service proposes to continue evaluating property as "nationally significant" without owner consent and without even a requirement for owner notification (the "second notification" related to the follow-up and implications of the evaluation) in those cases where owners object to the program. Once again we see the Park Service's intent to operate in secrecy precisely when landowners object to its activities.

      This has been proposed at the same time the Park Service has proclaimed that it is requiring owner consent for "designation," giving the appearance that it has addressed landowner concerns. This appears to be a deliberate attempt to mislead the public into believing that the regulations address landowner concerns while continuing business as usual.

      This is not only dishonest, it reneges on commitments already made to require owner consent for evaluation and it defies the recommendations of the Interior Inspector General report (92-I-204, Dec. 1991).

    3. Inspector General Report and Landowner Consent
    4. The Inspector General (IG) reported [p. 3] that

      "An Oct 19, 1990 memorandum from the Director, National Park Service, to the Regional Directors ... emphasized two specific policy points, [one of which was] the proposed regulations are to require positive written evidence of a landowner's consent to have property considered for landmark designation and a landowner's permission before any Park Service representative enters the property to conduct Program activities." [emphasis added]

      The IG recommended [p. 10] "that the Director, National Park Service: Ensure that the proposed regulations require landowner consent throughout the evaluation, nomination, and designation process."

      The IG reported [p. 12]:

      "One of [the] Park Service's alternative internal control review objectives [provided to the IG] was to ensure that program regulations provide adequate provisions for landowner notification and concurrence as part of the landmark evaluation, nomination, designation, and monitoring processes. The review concluded that the regulations should be revised to include provisions for landowner concurrence. However, after reviewing a draft copy of the proposed regulations dated June 28, 1991, landowner concurrence is not required during the evaluation phase because evaluations can be conducted without entering onto lands where permission has not been granted." [emphasis added]

      The IG report concluded [p. 6]:

      "[E]valuations can be performed without entering the property by observing the area form the air and from adjacent waterways and properties. Information on the property can further be obtained from public records and other local sources. In this manner, evaluations can be conducted without the knowledge and consent of the landowners. We do not believe that Government resources should be needlessly expended on funding evaluations if the landowners have not provided their consent for this evaluation. The Program can be effective only with landowners' consent because preservation depends on the landowners' interest in maintaining their properties as national natural landmarks."

    5. Park Service Commitments to Landowners and Senators
    6. On Jan. 19, 1989, after vociferous objections by landowners in Maine who had discovered an illegal secret Park Service Landmark evaluation, F. Eugene Hester responded to inquiries by Sen. Cohen:

      "If at any time during our notification procedures we become aware that this recognition is not desired, we would not proceed further towards designation." [emphasis added]

      Mr. Hester's correspondence, which also included a reference to "unwritten policy," raised several questions, including how people are supposed to know to object to something they aren't told about when the Park Service violates its own requirements for owner notification. Over the next several months many landowners wrote to the Director and to Mr. Hester requesting that they confirm that all processing of their property had ceased. We did not receive a straight answer, and follow-up letters were similarly dodged. (Part of the evasion was a dishonest attempt by the Park Service to deny responsibility for its own evaluation, which it had begun in 1986.)

      On August 21, 1989, Sen. Mitchell wrote to you personally, requesting:

      "Please review the correspondence you have received from Washington County landowners and direct some responsible official to acknowledge in writing that the objectors' land has been removed from the consideration or designation under the NNL program."

      To this day we have not received an unequivocal response from the Park Service.

      On Oct. 17, 1990, you again wrote to Sen. Cohen, saying:

      "Some of the significant revisions [to the regulations] we are considering include requiring written consent from every landowner involved in a given property at several stages during the NNL evaluation and designation process. Absence of written consent (or written objection) will mean that landowner's property will no longer be considered for NNL status." [emphasis in original]

      In the light of the Park Service's lack of response to landowner requests to stop considering their property, and in the light of the proposed duplicitous scheme to continue evaluating and listing property on a second, "non-Landmark" list of nationally significant sites while pretending it has addressed landowners' concerns, it appears that the Park Service has been deliberately equivocating on its terminology.

      The Park Service made it appear that it would cease all "consideration," intending to lead landowners and our Senators to believe that we would be left alone. Instead, the Park Service has evidently intended all along to continue to quietly pursue an agenda of evaluating and listing property for its own purposes behind the backs of landowners, just as it first evaluated our property beginning in 1979 and again in 1986 behind our backs in violation of explicit regulations for landowner notification and just as it has been surreptitiously running the whole program for over 30 years.

      The Park Service is evidently trying to run two programs and only wants to tell the public about one of them -- it needs the one that it doesn't really want (voluntary cooperation) to try to justify the one it doesn't like to talk about (establishing an inventory targeted for future acquisition or control).

    7. Needed Requirements for Consent
    8. There must be informed landowner consent for all aspects of program activity. This means that the Park Service must obtain the written consent (not just a lack of objection) of all the landowners affected, after which the Park Service has fully disclosed in writing all known impacts of the program, including those caused by outside entities and pressures for which the Park Service does not admit responsibility.

      There should be no evaluation, regardless of how the information is obtained, without the required owner consent.

      By owners of private property we mean all those with any legal interest in property, including fee ownership, owners of partial interest, and long term lease holders.

      Evaluations of public (non NPS) or trust-owned land should be with the consent of the local community that would be affected by changes in land use or other impacts on the surrounding community.

      In view of past abuses, suggestions for areas to be evaluated should be initiated only by the owners of the property, not from outside groups or through Park Service initiatives. In the case of public land, the relevant representative political entity should make the request, following an open process.

      Agreements and Withdrawal

      The proposed regulations do not specify what it means for owners to agree to designation. Section 62.4(d)(4), 56 FR 58795, references a

      "consent to having their property designated as a national natural landmark and their willingness to protect, use, and manage the area in a manner that prevents the loss or deterioration of the natural values and integrity of the area."

      This is an important step in the process, but the regulations do not describe the nature of the agreement. Since cooperation with landowners is supposed to be the essence of the program, the regulations should describe the process of cooperation in more detail and specify the essence of the agreement, the extent to which it is binding, whether it is expected to apply to subsequent owners, etc. The Park Service should also be required to provide at least a tentative potential agreement as part of the initial disclosure for consent to an evaluation.

      The proposed procedures for removal of designation, section 62.8, 56 FR 58797, are incomplete. A Landmark should be un-designated if the landowner(s) choose not to renew their long term commitment, implying that there is no longer the required consent of all landowners to have their land considered as the preservation of a nationally significant site.

      Owners must also have the right to withdraw their commitment whenever the rules change, i.e., whenever there is a change in legal obligation associated with the Landmark designation. Such withdrawal must be allowed before the changes take affect.

      Expansion of Boundaries

      The process for expanding a Landmark must follow the same procedures as for a new site. In referring to sections 62.4(c) through (j), the proposed regulations, 62.7(b), 56 FR 58797, lack a requirement for notification (let alone mandatory owner consent) for owners subjected to an evaluation for expansion. This leaves open the very real possibility that the Park Service would evaluate an area containing a portion owned by a trust or other agency to work around dissenting landowners, with the idea of using the substance of the evaluation in the name of a "re-consideration" for an expansion.

      This technique of Park Service collaboration with trusts and state agencies to work around requirements for an open process is commonly used by the Park Service to create or expand National Parks and take in unwilling landowners as inholders or targets of expansion. It poses the same threat here and must not be allowed.

      Section 62.7(e), 56 FR 58797, grants Park Service authority for "minor technical corrections to a national natural landmark boundary, and other administrative changes in landmark documentation." The regulations should define what is meant by "minor" changes, and in no event allow such procedures to affect land, e.g. through "evaluation" or boundary changes, not owned by the existing willing participants.

  5. Role of Park Service "Policy"
  6. The Discussion, Supplementary Information, 56 FR 58791 claims

    It is the policy [nb] of the NPS that NNL designation is ... not a first step for adding new units to the National Park System. In considering a possible new addition to the National Park System, the NPS must first determine that an area is nationally significant. While prior designation as an NNL is one indication of national significance, there are several other criteria which must be met before the NPS can support a proposal for a new national park."

    The other criteria, usually named as "suitability" and "feasibility," are essentially political criteria that follow a claim that an area is "significant," i.e., desired by the Park Service. Director Ridenour's memo of July 19, 1989, "clarify[ing] the policies and procedures for evaluating resource significance in special resource studies for potential additions to the National Park System," describes the role of Landmarks in the "reconnaissance phase" for new parks, and states:

    "Areas that have been designated as NHL's or NNL's have been determined to be nationally significant and require no further analysis of significance if being studied for potential addition to the National Park System."

    The Park Service has actively sought recommendations for new parks based on Landmark theme studies (let alone "evaluations"). The agency is actively seeking ways to accomplish new acquisitions to "fill gaps" in its matrix of natural theme representation based on NNLP "theme studies." Internal Park Service memos demonstrate conclusively that the NNLP is regarded as a pool for new park acquisitions, and that this hidden agenda is too "sensitive" to reveal to the public. Park and wilderness pressure groups call areas targeted (not just "designated") by the NNLP "Ladies in Waiting" for new park status and other means of acquisition or control. [See Land Rights Letter, Feb., 1991, "The National Natural Landmarks Program (Takings By Quicksand)."]

    Whatever consideration of other "criteria" follow an evaluation as "nationally significant," the NNLP most certainly is a major "first step" towards new Park Service acquisitions.

    The Park Service's claim that this is not "policy" only illustrates once again how disconnected the Park Service's public statements are from its Landmarks evaluations. Apparently, Park Service "policy" is whatever it says it is for the political convenience of the moment and has no bearing on the reality of Park Service actions.

    This approach to publicly stated "policy" was further illustrated in Park Service attempts to excuse its failure to follow regulations in notifying landowners of its activities. F. Eugene Hester told the Park Service Advisory Board, according to the minutes of the Oct. 7, 1991 meeting, that

    "There was not enough money to fund the recordkeeping that should have been done, make all the contacts that should have been made, and otherwise assure an adequate process."

    In other words, the Park Service chose to use its resources for its own purposes at the expense of the civil rights of the landowners it targets. That the amount of funding is a red herring was further illustrated by the fact that the NNLP did the same thing even at the historical peak of its funding levels in the late 70's.

    The Park Service policy of making up "policy" as it goes along was also illustrated by Mr. Hester in a March 22, 1989 letter to Sen. Cohen in which Hester tried to explain what he meant by a previous reference to an allegedly six year old "unwritten policy." Hester wrote,

    "Persons unfamiliar with the government use of 'unwritten policy' will be even more confused since, strictly speaking, policies do become 'written' in the preparation of program documents and responses to inquiries, such as my earlier correspondence with you."

    We are demanding that the Park Service honestly describe the NNLP and its impacts, and that it follow its regulations.

    The fact that the Park Service has not been honest in its disclosure of either the uses of Landmarks evaluations or its duplicitous scheme to circumvent landowner consent is not a good sign.

  7. Impact on Landowners
  8. Full disclosure of the impact of the NNLP on landowners requires that the Park Service reveal all kinds of impacts from all legal and political sources, whether or not the Landmark Program itself admits to responsibility for them.

    In the section entitled "Effects of Designation," 62.3, 56 FR 58793, of the proposed regulations, the Park Service says:

    "Owners who agree to have their land designated as a national natural landmark give up none of the legal rights and privileges of ownership or use of the area."

    This is an overly narrow, literalistic interpretation of the fact that the Landmark staff itself does not have direct authority over land use under the NNLP. The fallacy is that it overlooks the implications of Landmark evaluation under other authorities which explicitly or implicitly reference it, it overlooks the political impact of focusing national attention on a site intended for preservation, and it overlooks the active participation of the Park Service in pursuing both of these. Claiming that the NNLP has no affect on private land is like two hands clapping with each one denying responsibility for the noise.

    The effects on landowners described in the regulations are incomplete in several respects, including impacts due to the Park Service planning and its activist role in collaborating with outside parties, impacts due to Federal law, and the impact on sites "evaluated," but not "designated."

    The Park Service's incomplete and inadequate assessment, as described below, of the impact of the NNLP under the proposed regulations implies that it has not adequately performed the analysis required under the laws referenced under the section "Compliance With Other Laws," 56 FR 58792. This includes criteria under the Environmental Policy Act, 49 FR 21438, for an Environmental Assessment or Environmental Impact Statement; Executive Order 12291, regarding "major rules"; the Regulatory Flexibility Act, 5 U.S.C. 601 et seq; and Executive Order 12630, "Governmental Actions and Interference with Constitutionally Protected Property Rights."

    1. Implications of National Focus
    2. Section 62.3(a), under Effects of Designation, 56 FR 58793, states:

      "The purpose of the landmarks program is to focus attention on areas of exceptional value to the nation as a whole... The program recognizes the preservation efforts of Federal, State, and local agencies, as well as private organizations and individuals, and encourages the owners of national natural landmarks to voluntarily observe preservation precepts."

      The regulations do not reveal the nature of Park Service "recognition" of efforts by Federal, State, and local agencies. Full disclosure requires that the regulations spell out the fact that the Park Service actively works with such "recognized" agency programs in pursuit of control over areas targeted as Landmarks, as described below.

      Furthermore, focusing "national attention" on a site, and the preservationist use of the term "nationally significant," imply that the natural features of interest to the Park Service are to be regarded as more important than local or individual values. This has a severe impact when the small landowner finds himself pressured by a preservationist PR campaign based on "national" values said to be more important than his own merely personal values.

      The small landowner has practically no means to defend himself when the debate over the use of his land moves to a national forum. The landowner who may be proud of his property and naively believes Park Service assurances that Landmark evaluation is an "honor" has been grossly misled. Fairness to landowners requires that they understand the risks they take in subjecting their property to national focus for preservation purposes.

    3. Land Use Planning
    4. Section 62.3(b), under Effects of Designation, 56 FR 58793, includes the statement:

      "Federal agencies should consider the unique properties of designated national natural landmarks, and of areas found to meet the scientific criteria for national significance, in their planning and environmental compliance, and there may be State or local planning or land use implications."
      New Park Planning

      The regulations fail to disclose that one of the Federal agencies using the program in its planning is the Park Service itself. The Park Service's misleading claim that this is not its "policy" (56 FR 58791) has already been discussed in these comments, as has been the Park Service's use and intended use of Landmark evaluations, with or without "designation", in new park planning.

      Park Service Involvement in State Action

      The statement that "there may [sic] be State or local planning or land use implications" is misleading because it is so understated. There are such implications (which can vary from region to region) and the Park Service in fact actively encourages them in its collaboration with State Heritage Programs and others.

      For example, the Maine Comprehensive Planning Law Guidelines promulgated by the State Planning Office require that NNLs be included as protected "unique natural areas" (and allows State agencies to include sites evaluated but not "designated") for protection. Similarly the Maine Shoreland Zoning Law includes "nationally significant" natural sites in so-called Resource Protection zones where virtually all human activity is prohibited.

      The same people in the State Planning Office who are responsible for these requirements have been collaborating under a Memorandum of Agreement with the National Park Service to identify and evaluate sites as National Natural Landmarks. The Park Service cannot deny responsibility for its partnership role in such land use planning initiatives.

      Federal Requirements on States

      There are also Federal laws requiring State interference in land use. The Coastal Zone Management Act of 1972 (as amended, PL 101-508) denies funding for management programs that do not have an "inventory and designation of areas that contain one or more coastal resources of national significance" or which do not have "specific and enforceable standards to protect such resources." In Maine, the same people who are designating Heritage Areas affected by this law are evaluating and promoting National Natural Landmarks for the Park Service.

      There are hundreds of other references to "significance" in Federal law. The Park Service has an obligation to research them and determine which ones apply to areas evaluated as "nationally significant" (but not necessarily "designated") under the NNLP and what the consequent burdens imposed on landowners are.

      Future Threats

      In addition to existing laws and regulations, there are ongoing efforts by the Park Service and others to achieve more control over sites targeted for Landmarking.

      The proposed American Heritage Trust Act, which remains a long term political goal of national environmentalists seeking an expansion of Federal land acquisition, would encourage States to acquire privately-owned Landmarks through special subsidies.

      The proposed National Heritage Conservation Act and the Park Service's "Heritage Areas" project are intended to achieve control over Landmarks and the land around them through a variety of devices, including both State and Federal intervention in the form of (depending on which proposal) management plans, injunction authority, emergency acquisition, political pressure through the use of "endangered sites" lists, fines up to $25,000/day, and jail sentences.

      Regardless of Park Service admission of involvement, these activities pose a further threat to owners of sites targeted as Landmarks. The regulations must disclose all such known activities by politically credible lobbyists seeking future control over property targeted by the Landmarks program.

    5. Section 8 Reporting
    6. Section 62.3(c), under Effects of Designation, 56 FR 58793, and section 62.6(b), under Natural Landmark monitoring, refer to "Section 8" reporting to Congress on "damaged" or "threatened" landmarks. The regulations fail to explain that the Park Service has very stringent criteria for what it regards as "damage" to a landmark, and they fail to explain the Park Service's criteria for "threats," which internal memos reveal to be subjective and open ended fears of virtually any human activity.

      The regulations also fail to disclose that in such "reporting" to Congress the Park Service intends to spark Federal action to take control of the property through condemnation or other means.

    7. Impact on Mining
    8. Section 62.3(c), under Effects of Designation, 56 FR 58793, and under section 62.6(e), refer to "any surface mining activity" under Section 9 of the Mining in the National Parks Act. The regulations do not identify the scope of the meaning of "surface mining" or the powers that could be used after reporting to the Advisory Council on Historic Preservation.

    9. Burdens of Bureaucratic Imposition
    10. Another significant impact of the NNLP has been the imposition on Landowners who want to be left alone, yet find themselves with the burden of dealing with a Federal agency and the implications of Federal action. This has resulted in an impossible financial and psychological burden on private landowners who are targeted by the NNLP using the enormous political and financial resources of the Federal government, its various collaborators, and preservationist lobbyists.

      This applies to all phases of NNLP activity, beginning with initial consideration. It has especially been the case for those who attempt to resist the initiatives of Park Service bureaucrats acting in collusion with lobbyists seeking to bring property into the NNLP. Those who don't know they are affected by the program, don't realize its implications, or otherwise cannot oppose Park Service initiatives face the loss of their rights or the burden of fighting it sometime in the future.

      This must stop. There must be strict measures in the regulations related specifically to preventing the use of government power and secrecy to ensnare landowners in the program. There are no such controls in the proposed regulations.

      There have been many documented cases of the problem; we will only summarize the highlights of what happened to us when we attempted to resist the Park Service.

      Director Ridenour told the National Park Service Advisory Board, according to the minutes of the Oct. 7, 1991 meeting, that

      "[O]ver the past year the Service had probably spent a couple hundred thousand dollars reacting to a situation on the coast of Maine where the state is looking at some potential landmarks they may want to advocate."

      In fact the Park Service itself initiated this situation (in 1986) and collaborated with state environmentalists to ram what they regarded as a fait accompli down our throats over a period of several years. Most of the fight over this assault on our rights preceded the period in which Ridenour said they spent a "couple hundred thousand dollars," so the resources expended by the Park Service against landowners who want nothing to do with the agency must have greatly exceeded Ridenour's estimate for last year alone.

      After the Park Service was caught in a secret evaluation in violation of its own regulations, it lied about the affects of the program on landowners' rights. It lied to the press and to our Senators, claiming that the program is entirely "voluntary." Then it lied to Senator Cohen in a statement that the agency would cease consideration of any site where the landowners objected -- and refused to stop processing when the landowners did object.

      The Park Service's lies to our Senators alone placed an enormous burden on landowners to get our Senators to take our objections seriously because they had in good faith believed the Park Service's statements.

      Likewise, the enormous resources behind the Park Service, its full time professional public relations staff, and its counterfeit "white hat" image with the press and general public makes it extremely difficult for landowners to counter the official denials of adverse impacts on landowners by the National Park Service, creating near-impossible burden on landowners to get a fair hearing before the public.

      The Chairman of the House parks subcommittee tried to prevent us from testifying on this scandal before his committee, and the Chairman of the House Interior Appropriations Subcommittee shouted at me in protest against my testimony before his committee, claiming that the Park Service had reassured him that there is no problem. The Assistant Director of the Park Service, Herbert Cables, tried to browbeat me when I went to his office to discuss the problem. The Park Service has systematically tried to deny us information under the Freedom of Information Act. It lies to the press and to Congress. This goes on and on.

      If the Park Service had been honest, it would have told us what they were doing in the first place (in accordance with existing regulations) and then left us alone when told to stop. Instead the agency chose at the highest levels to engage for several years in "damage control" while trying to work around the landowners, spending "a couple hundred thousand dollars" of the taxpayers' money in one year alone ganging up on us to get their way.

      There is no reason why any citizen should ever have to put up with this intransigent bureaucratic bullying from alleged public servants, yet it is illustrative of what happens when landowners become disenfranchised for so called "national purposes." The fact that we still have our property does not mean that we have not been significantly harmed by the NNLP.

    11. Comments by Inspector General
    12. The Dec. 1991 Interior Inspector General report (92-I-204) commented that landowners of both designated and potential sites have complained of adverse impacts due to the NNLP:

      The IG concluded,

      "[W]e believe that property being designated as a landmark could result in unwanted land use restrictions or other protective measures being imposed on the landowner by Federal, state, and/or local governments."

  9. Evaluations and Monitoring
  10. The proposed regulations lack provisions ensuring the integrity of the process and scientific objectivity of evaluations and other reports.

    1. Initiating New Evaluations
    2. The regulations should specify that all suggestions for Evaluation as a potential Landmark must be made in writing to the Washington, DC office by the legal owner(s) of the property affected. The regulations should specify rules for both minimum requirements and limits on the amount and kind of preliminary information that can be included.

      The limitations on information provided in suggestions for evaluation of new sites must provide that they not be de-facto evaluations circumventing the informed consent procedures for evaluations. The source of all information must be accounted for, together with proof of landowner concurrence for information obtained from entry onto particular properties.

      No evaluation should begin without first notifying and then obtaining the informed, written consent of every landowner in the general natural region study area affected by the proposed potential Landmark evaluation, including adjacent owners whose property buffers the proposed area from normal activities. The regulations must require the Park Service to choose study boundaries on the basis of objective criteria and must prohibit gerrymandering boundaries to work around non-consenting landowners.

    3. Criteria
    4. The Natural landmarks criteria described in 62.5, 56 FR 58795, are overly broad. Experience with Park Service planning and PR suggests that almost anything could qualify under these criteria. The process is inherently subjective, and there is no need to identify the absolute "best" of every natural area theme, but the requirements should be better defined and tightened to at least avoid the Park Service over-extending itself.

      The regulations on "significant segment" in 65.6(2)(2), 56 FR 58795-6, should be more explicit. Standards of "impracticability" based on size should include considerations of the impracticability of a large numbers of owners. There must be objective standards for boundaries to avoid political pressures for later changes in boundaries for landmark designation as well as for other initiatives such as expanded "buffer zones" or new park proposals including the surrounding area.

    5. Evaluation and Monitoring Reports
    6. In the past, NNL evaluations have often contained scientific data in the form of lists of technical names or general assertions, followed by glowing generalities concluding "national significance," but rarely described 1) exactly where the items were inventoried, and 2) why they make the site significant.

      In some cases, theme studies and NNL evaluations have clearly been intended to justify a preconceived, subjective conclusion. Sometimes this has been for emotional reasons related to dramatic impact or scenery. In other cases it has been for political reasons to justify land use controls or acquisition of undeveloped areas. This is an abuse of science which should be controlled by tighter, objective standards prescribed for evaluations and for the motives of those writing them. Evaluations should also be required to make objective comparisons to establish uniqueness and assessment of quality in drawing conclusions.

      The procedures should require that all reports reference all sources of information: When natural features are listed as appearing in the study area, specific information on where and on which property they are located should be included, in order to avoid sloppy generalizations. Use of subjective considerations such as scenic beauty should be specifically excluded by regulation.

      An example of abuse of the evaluation process is the Little River Canyon in Alabama where the evaluation purported to be restricted to a State-owned park, avoiding requirements for notification of nearby private landowners. Shortly thereafter a New Area Study promoting Park acquisition argued that a much larger region containing privately owned land had been found "nationally significant" by the Landmark evaluation. The list of "scientifically" identified features claimed to be desirable by the Park Service did not specify where they are (or why they matter in any objective sense), leaving it open whether the landowners' rights were violated by the Landmarks evaluation or a leap of logic in the New Area Study, or both.

      All evaluation data, opinions, or conclusions must be accompanied by a description of the specific property to which the information applies, and its owner, together with a statement of the source of the information, and how it was obtained.

      Any information used in an evaluation which derives from an on-site inspection must be accompanied by the written permission of the owner(s) of the property.

      The regulations should provide that the public shall have reasonable access, at their own initiative, to any NPS communications or draft reports on the region at any time during the evaluation process. This should be in addition to Park Service positive obligations for notification and comment procedures at discrete points in the process.

      A draft evaluation should be completed and distributed to all landowners described above for their comments within a reasonable period (such as one year), or the process must be canceled or re-started. The regulations should specify landowner consent to be null and void after a reasonable period of time, and prohibit the Park Service from retaining evaluation information assembled on any property without landowner consent.

      Since the Park Service has a poor record of objectively assessing comments, especially from outside critical sources, the regulations should provide for a procedure for landowners and abutters to have the option to submit written material for verbatim inclusion in evaluation and monitoring reports, with the source of these comments so identified in the reports. This pertains to both positive comments on the nature of natural features and to responses to Park Service or other charges denigrating existing or intended land use and its impact.

      The regulations should provide that the Park Service may only retain information on sites included in the evaluation and other public reports, and that evaluations must not be conducted for any purpose other than as a potential Landmark nomination, i.e., there are to be no "alternate" files or lists of significant sites maintained by the Landmarks program. The regulations should specify that information and reports in NPS files obtained contrary to the regulations are to be purged from the records.

    7. Landowner Contacts and Record-Keeping
    8. Under Natural Landmark Monitoring, Section 62.6(a) 56 FR 58796, the proposed regulations refer to a "continuing relationship with the owners of designated landmarks in the form of periodic contacts." In view of the fact that the essence of the program is supposed to be cooperation with landowners, the regulations should describe what is meant by "periodic contacts": what the nature of the "contacts" are and at least roughly how frequent they should be (which would vary under different circumstances).

      The regulations should also require that the Park Service keep continuously up-to-date records on landowners and who they are. This should not be difficult since the only landowners involved should be those who agree to designation, so the landowner should ordinarily be willing to notify the Park Service if the property is transferred.

      In cases where the landowner decides not to renew a commitment to Landmark status, it would be in the Park Service's interest to keep up to date on future owners at least every year or two and the regulations should require this.

      An exception is for areas which are de-listed due to loss of the natural features, and sites for which files must be destroyed because they were obtained by unethical or illegal means (see below).

      The regulations should also require that the Park Service maintain records of all communications (written or otherwise) with landowners and others, and proof that all notification and consent requirements have been met for all NNLP activities.

    9. Other Guidelines
    10. The proposed regulations, under General Provisions, Section 62.9(d), 56 FR 58798, refer to "further guidance on the operation of the" program in "other program documents." The regulations should require the NPS to publish and keep up-to-date a list of such documents, and to require that such guidelines, including the Park Service's planned "Program Procedures Handbook," as described in the Park Service's Jan. 22, 1991 list of commitments to the Inspector General, be subject to public comment.

  11. Correction of Past Abuses
  12. The regulations must provide procedures for correcting past abuses of the program.

    1. Suspension of Designations
    2. The Dec. 1991 Interior Inspector General report (92-I-204) concluded (p. 7, see also p. 10):

      "Since the Park Service was not able to provide reasonable assurance that landowners were always informed or consulted before designations were made, it is unreasonable to expose landowners to possible adverse effects or restrictions on the use of their lands without informing them of the designation. Until the Park Service corrects this deficiency, the Program will continue to be criticized. Because of the questionable integrity of the evaluation, nomination, and designation processes, we believe that the Park Service should give all designated landmark owners the option of removing the formal designations from their properties or of agreeing in writing to having them continued. Also the Park Service should temporarily suspend the 587 landmark designations until all landowners have been identified and notified in writing of their options."

      The Park Service responded that it will not do this because it is "not contemplated under regulation and would thus require a special regulatory action" and that it cannot de-list a site "simply" because the owner does not consent [IG, p. 10].

      Existing regulations, however, provide for de-listing sites for procedural irregularities. Moreover, the Park Service is itself responsible for writing the proposed new regulations.

      The IG recommended (p. 12):

      "If a special regulatory action is needed to suspend existing landmark designations, then the Park Service could propose such a regulation. The proposed regulations require positive written evidence of a landowner's consent to have property considered for landmark designation. However, this provision is not retroactive to current landowners with landmark designations, even though during the audit Park Service officials stated that it would be. The Chief, Information and Planning Branch, told us that landowners would be given the option of removing the designations during the up coming notification process. We believe that the proposed regulations should be revised so that all landowners will be given the same option."

      The statement in the proposed regulations under Natural landmark designation removal, 62.8(d)(2), referring to the continued listing of sites as "automatically ... determined to meet the scientific criteria for national significance" when withdrawn due to procedural errors must be revised. There are to be no evaluations or listings for sites in which the Park Service does not properly follow its procedures. A site withdrawn due to procedural errors must either be properly redone or totally withdrawn from the program if the landowner chooses. The Park Service is to destroy records of information obtained without regard to the rights of landowners.

    3. Notification of Landowners Already Evaluated
    4. Thousands of landowners are also ensnared by the NNLP because their land has been evaluated in one way or another even though it had not yet been designated.

      Because of the potential impact on these owners, the regulations should require that all of them be notified of their status, fully informed of the impact of the NNLP in accordance with disclosure requirements for new evaluations, and given the option to withdraw.

      The regulations should also require the Park Service to fully notify all the owners of sites subject to the "theme studies" described in the Natural landmark designation and recognition process, Section 62.4(a)(1). As described earlier, the regulations should prohibit the Park Service from embarking on the evaluation process for these properties without initiation by the landowners.

      There is no indication that the Park Service has planned to identify landowners of any sites other than those already designated. The regulations should require that all owners by identified and notified.

    5. Illegal Records
    6. Where the Park Service cannot obtain the requisite informed consent after a reasonable time to acquire it, it should destroy the evaluations because the information was obtained illegally and unethically. The Park Service's and its lobbyists' desire not to give up the information they want for their agenda is only one more example of their arrogant disregard for landowner's rights, and their view of landowners as nothing but a nuisance in the way of their plans.

      The regulations should require the destruction of ill gotten gains now and in the future.

  13. Accountability and Public Process
  14. One would think that defining procedures for a cooperative program for land conservation would be a relatively simple matter.

    Unfortunately, the long history of abusive behavior and lack of accountability for this program necessitates that regulations be strictly worded to ensure that the abuses stop.

    While the Park Service advertises that new regulations will solve its problems, they fail to mention that many of the worst abuses were a consequence of their failure to follow the regulations they already had.

    1. Public Process
    2. The Park Service must be required to notify all landowners affected by the program of any public comment process related to it. The NNLP is advertised by the Park Service as a "cooperative" program, yet the Park Service has systematically failed to keep up-to-date records on identifying the landowners it is allegedly cooperating with, and has failed to notify most affected landowners of activities ranging from evaluations to changes in program regulations.

      It is unreasonable to expect that publication in the Federal Register is sufficient notification for the landowners targeted by this program, most of whom would not know they are involved in the program or its controversy even if they saw the FR announcement, which is itself highly unlikely.

      The Park Service should be required to notify all affected landowners of the next version of the proposed regulations, and the new regulations should require such notification for all program comment periods.

      Comment Periods

      The proposed regulations call for extending the comment period from 60 to 120 days after the "second notice" on eligibility [62.4(d)(3), 56 FR 58794]. However, there is no comment period at all on whether the Park Service should pursue an evaluation following the "first notice" [62.4(b)]. There should be a similar time period for the Park Service to obtain a required written informed consent from owners before an evaluation can begin.

      The proposed regulations allow only 30 days to comment on draft monitoring reports for Section 8 reports [62.6(d)(1), 56 FR 58796]. Considering the potential seriousness of the impact of this report, the time period should also be 120 days.

    3. Prohibition on Surrogates
    4. A major source of problems in the past has been Park Service collab- oration with outside surrogates to carry out the actual operation of the NNLP. These people have no accountability for their actions and often have a conflict of interest as they combine their agenda for land use control with evaluations and monitoring reports they write for the Park Service.

      The collusion between the Park Service and special interests must stop. The use of surrogates for suggesting new sites, writing evaluations and other reports, monitoring sites, and developing local classification schemes and other policy-making functions must be ended.

      The General Provisions in section 62.9 of the proposed regulations, 56 FR 58798, are intended to allow the Park Service to

      "enter into contracts, memoranda of agreement, cooperative agreements, or other types of agreement with other Federal agencies, States, counties, local communities, private organizations, owners, or other interested individuals or groups to assist in administering the national natural landmarks program. The agreements may include, but not be limited to identification, evaluation, monitoring, and/or protecting natural landmarks."

      This section must be deleted and its intent prohibited, along with similar references to outside monitoring in 62.6(b), 56 FR 58796. The only agreements the NNLP should be authorized to make are those with consenting landowners who agree to preserve their property.

      The regulations should, however, prohibit Landowners from writing the evaluation, or its substance, for their own property. This practice, which is currently used, for example, with The Nature Conservancy, is an obvious conflict of interest and must be stopped.

      The Natural landmark designation and recognition process, Section 62.4(a), 56 FR 58794, refers to the use of outside groups, including state natural area inventories, to feed suggestions to the Park Service for new landmark evaluations. Similarly, the section on Natural landmark modifications, 62.7, 56 FR 58797, authorizes activities for expanding landmarks.

      The use of such sources, for example in Maine, has been a major source of program abuse. A State employee, or land trust, may conduct an entire evaluation of a site for the Park Service, but deny all accountability by claiming that the evaluation is under some other program, while the Park Service, which may be explicitly involved, also denies accountability, also claiming that the evaluation is not for the NNLP.

      After the evaluation is complete in substance, it is turned over to the Park Service, which then claims that the site has just been "suggested" so no program regulations apply up to that point. The result is a full evaluation of "national significance" in Park Service files in complete defiance of program regulations.

      This scenario of collaboration is exactly what the Park Service has done to landowners in Maine with full knowledge and conscious intent and it must be stopped.

      The proposed regulations have nothing to prevent this abuse. The prohibitions on trespass (which is already illegal) in the regulations is without substance because it has no practical consequences:

      1. Evaluations can be performed, as the IG pointed out, without ever setting foot on particular properties within the region (or any of it), either from observations from outside the property, from past inspections, or from assumptions made and not verified.

      2. Evaluations can also be performed using information obtained through trespass without admitting it, since there is no positive requirement in the proposed regulations to prove how information was obtained.

      3. Or they can be performed using information obtained without literal trespass, but under false pretenses (which has also been done).

      The regulations have no protection against any of this.

      Even with requirements for landowner consent for evaluations, the only way to limit the potential for the repetition of historical abuse is to prohibit outside parties other than the landowner from suggesting sites, while prohibiting the Park Service from accepting either outside evaluations (or their equivalent in substance).

      Similarly, the regulations should prevent outside groups from designing the standards and classification schemes used for evaluations, nominations, and criteria for significance.

      In particular, The Nature Conservancy and State "natural area" or "Heritage Programs," which have traditionally intermingled both funding and staff operations with NNLP activities, must be excluded from program operations under prohibitions on the use of outside collaborators and surrogates. Transfers of funds and intermingling of operations with these organizations must not be permitted.

    5. Penalties
    6. The Park Service's history in ignoring its own regulations, as well as common standards of decency, in its treatment of landowners implies that the regulations must have teeth. Park Service employees and representatives caught in flagrant program abuses in the past have not only gotten off scott free, but have received merit bonuses for their efforts, while -- according to journalist Alston Chase -- a Park Service employee who tried to fix the problem was punished and driven out of the agency.

      The regulations must provide penalties for Park Service employees caught violating the rules, and they must be enforced.

    7. Park Service Advisory Board
    8. The proposed regulations describe in section 62.4(g), 56 FR 58795, the role of the National Park Service Advisory Board as reviewing

      "the information submitted to recommend whether or not the area qualifies for national natural landmark designation."

      While the Park Service must remain ultimately responsible for regulatory compliance, the regulations should spell out that the Advisory Board should review all documentation on procedures to ensure that the Park Service can prove that it followed the proper procedures in all aspects of the process, not just judgment of criteria for significance.

    9. Public Access to Information
    10. The Park Service has adopted a policy of blocking access by its critics, through a variety of devices, to information on NNLP records under the Freedom of Information Act. This must stop.

      The Advanced Notice of Proposed Rulemaking for the proposed NNLP regulations, 55 FR 43384, Oct. 29, 1990, included a statement that "all Program documents remain available for public examination in Washington, DC and at the National Park Service's ten regional offices."

      This statement was dropped in the Nov. 1991 proposed regulations now under comment. In its place is a reference, in the Background Discussion, 56 FR 58791, to availability only of "site files" during the 90-day comment period. One landowner reported, however, that a request to the Park Service for a list of potential sites in the state of Washington was ignored.

      In the proposed regulations, the Section on General Provisions, 62.9(b), 56 FR 58798, attempts to grant the authority for the Park Service to restrict access to information under the clause:

      "Dissemination of information on ecologically or geologically fragile or sensitive sites may be restricted, where release of such information might endanger or harm the sensitive resources."

      This restriction is in violation of the Freedom of Information Act. The Park Service has no legal authority to restrict public access to such information under such subjective interpretations. The NNLP is supposed to be a cooperative program on land conservation for the benefit of the public, not a secret government operation. The regulations should confirm that all program documents are available under FOIA.