National Natural Landmarks
Takings by Quicksand

This research article was originally published in The Land Rights Letter, February 1991.

Copyright © 1991, Erich Veyhl, All Rights Reserved

Most of us who own land with natural, scenic, or historic significance are proud of it. We believe we have the right to live on and use our land, but we also want to use it wisely ("conservation") and not destroy the values in it which we admire and protect. We enthusiastically talk to anyone who seems to share our common interest.

But there is an underlying force at work about which most landowners have been naively unaware: those whose "common interest" amounts to: "We both want it." I am not referring to covetous neighbors, but to the "preservationists" -- the political activists in the organized environmentalist movement who react with fear and horror at the thought that something, sometime, will "change" your property, and that they can't guarantee it's strict preservation forever because you own it.

As one strategy, preservationists lobby for state or federal acquisition of your property, regardless of whether you want to give up your land or your way of life. They follow an almost standard formula: they decide behind closed doors what they want, then mount a publicity campaign claiming that your land is "threatened" (at root because it is privately owned), that it is "nationally significant" (because they describe it in emotional, poetic terms), and that it ought to be "protected" as a park for the "common good" (which is what they call displacing one group of people -- the owners -- for the benefit of another more affluent and politically powerful group -- themselves).

That's the direct approach.

A more indirect approach uses land "registry" programs, which purport to merely "list" sites in private ownership. Registry programs do not always authorize land acquisition or regulatory prohibitions through the program itself, but are referenced by other State or Federal laws -- either already on the books or planned for the future after private owners are locked into the program. This provides some measure of control and, preservationists hope, buys time for future action.

Land registration as such is also used politically as a keystone in the later publicity campaign for further controls or outright acquisition: "This land has already been recognized as 'nationally significant', it is on the [some official] list of 'most threatened areas', therefore ..."

Enrollment in a land registry program is usually through one of two methods: 1) the landowner signs up through appeals to his pride in his property after being assured that it is entirely voluntary, just an "honor" bestowed upon him with no strings attached except possibly for "assistance", or 2) the landowner is signed up without his knowledge; if he finds out, he is promised that it is entirely voluntary, just an "honor" -- etc. etc. -- he is morally intimidated, disarmed by the lies, and doesn't know what to do about it until it is too late, if at all. If he screams loudly enough, he is attacked in a publicity campaign insisting he is misrepresenting an innocent "non-regulatory" registration program or destroying some "national interest".

National Park Service Landmarks

Of the many State, Federal, and International registry programs, the National Park Service runs two major -- but little known to the general public -- compilations dealing exclusively with "national significance": the National Historic Landmark (NHL) Program -- concerning historic sites -- and the National Natural Landmarks (NNL) Program -- concerning "natural" areas.

A peculiar aberration of democracy governs the designation of Historic Landmarks (36 CFR 65): owners get to "vote", but the Park Service counts everyone ("voting" or not) as favoring designation except for those who register notarized letters of opposition. (Think what this approach could do for electing incumbent politicians!). An entire area encompassing multiple ownerships is designated regardless of individual objections. When a majority of landowners object, the site is still registered as a "nationally significant", "eligible" NHL -- a double list scheme providing an illusion of respect for owner consent.

Most of the over 1,900 NHLs are historic structures on small land areas subjected mostly (today) to local regulations such as zoning laws (or more serious local Historic District regulations). Their owners often feel they know what they are getting into, typically wishing to maintain a historic structure, and sometimes receive financial assistance. Others, however, are maneuvered into an NHL because it triggers local or state laws taking their property rights. All are in deeper than they think -- as described later there are big plans for the future of both NNLs and NHLs. The focus of this article, however, is the Natural Landmark Program.

Natural Landmarks

The National Park Service's National Natural Landmarks Program is currently the most controversial of the two NPS Landmark Programs. like other registry programs it is advertised (sometimes sincerely by those who don't know any better) as "voluntary", a "benign designation", an "honor", and a "cooperative" effort to advise landowners on the protection of the natural features of their land. They'll even loan you a Bronze Plaque. The NNLP is in fact a feeder program ensnaring landowners in a quagmire of planned progressively stronger land use prohibitions and outright acquisition.

...the National Parks and Conservation Association [NPCA] had just proposed taking a large part of the county for a new National Park. Downeast landowners also objected to a just discovered, but long ago secretly planned, NNL designation, and encountered a complete lack of accountability by NPS and State planners who refused to stop the "evaluation" in what they kept insisting was just a "voluntary" program.

The NNLP is now entangled in a nationwide scandal called "Greengate" by nationally syndicated columnist Alston Chase. The expose grew out of an independent investigation making extensive use of the Freedom of Information Act and begun by a Maine grass roots organization, the Washington County Alliance, on the "downeast" coast of Maine. The Alliance's investigation was motivated in 1988 when landowners on the coast smelled a rat -- the National Parks and Conservation Association [NPCA] had just proposed taking a large part of the county for a new National Park. Downeast landowners also objected to a just discovered, but long ago secretly planned, NNL designation, and encountered a complete lack of accountability by NPS and State planners who refused to stop the "evaluation" in what they kept insisting was just a "voluntary" program.

"The question of secrecy and publicity is a hot topic which will undoubtedly come back to haunt us over the years if this document becomes generally available to the public."

To illustrate -- A 1982 report recommending 144 new sites for the National Park Service's Natural Landmark Program revealed explicitly: "The question of secrecy and publicity is a hot topic which will undoubtedly come back to haunt us over the years if this document becomes generally available to the public." It did.

Intervention by the Maine Congressional delegation helped lead to a national "moratorium" and "internal review" of the program. The NPS has announced the coming of new regulations in the Federal Register and the Inspector General has scheduled an audit early this year to determine if the "Program is conducted in an effective manner and in compliance with Federal laws and regulations." But knowledgeable sources concerned with the direction of the program privately suggest that Program personnel are oblivious to their ethical problems and expect the whole thing to blow over with a few patches intended to give only the appearance that all has been fixed.

Meanwhile, organized preservationists such as the NPCA and the Wilderness Society have been lobbying -- in part using the connections of a former NNL employee -- to increase funding by over $1 million while opposing regulations that would protect landowners' rights, claiming that "A site's significance is a characteristic of the land unrelated to everchanging patterns of ownership." Part of their agenda is the illusion of landowner consent using the NHL double list scheme, without permitting "landowner objection to thwart the evaluation process." The two powerful environmental lobby organizations threaten "vigorous opposition" if they don't get their way.

NNL Operation

Some key points on today's National Natural Landmark Program:

  1. Authorization. The program began operations in conjunction with The Nature Conservancy at least by 1961, followed by an internal Interior approval by "memorandum" in 1962. The Natural Landmark Program, unlike the parallel Historic Landmark Program, has no enabling legislation authorizing the program, even though the Park Service cites the Historic Sites Act of 1935 "to preserve for public use historic sites, buildings and objects of national significance".

    The Interior Dept. Solicitor admitted in 1980 that it is "arguable" whether land areas can be included as "historic objects". Congress, however, has implicitly condoned the program by subsequently referencing it in other legislation, including appropriations -- apparently not realizing the NNLP's origin, nature, and commitments of voluntarism to landowners. "The strongest indication of Congressional ratification", the Solicitor argued, "is direct reference to the Natural Landmarks Program in subsequent legislation. 16 U.S.C. 1a-5 [for example] requires the Secretary [Park Service] to annually notify Congress of all areas included on the Registry of Natural Landmarks which exhibit known or anticipated damage or threats to the integrity of their resources and to include Landmarks in recommendations of areas for [National] park status." The legality of the program, especially without full landowner informed consent, remains controversial.

  2. Regulations. The program operated until 1979 -- designating hundreds of sites encompassing millions of acres often without owner knowledge or consent -- with no regulations governing its operation, casting additional doubt on the legality of pre-1979 designations. And referring to a court decision throwing out an NHL designation, the NPS complained in an internal memo: "The Court's decision regarding national historic significance is worrisome because the same subjective judgment could be applied to any given landmark. Subjectivity can never be removed from the landmark evaluation process."

    Current NNL regulations in 36 CFR 62 do not require owner consent for evaluation or designation, but do have provisions -- widely ignored nationwide -- requiring owner notification before evaluation, and owner permission for on site inspections (often done by air, water, or previous reconnaissance when not through direct trespass or false pretense for entering the property). Also frequently ignored is a provision omitting "scenery" from the supposedly "scientific" criteria. The NPS notified preservationist political interests of upcoming regulation changes but appears to have, once again, failed to notify most private landowners.

  3. Internal Guidelines. An out of date Internal Handbook first written in 1966 has been perpetually in a state of incompletion, as have other internal "guidelines" which have been "in progress" for years, growing in bureaucratic complexity to the point of uselessness if they ever were completed. The 1966 Handbook describes a version of the double list scheme in which sites not "officially" designated are still kept on file. Draft Guidelines (not provided to landowners) say a Landmark is in "satisfactory condition" if, among other things, "Natural Features, and the ecological or physical processes responsible for the formation and maintenance of those features, remain unaffected by human activity, intervention, or intrusion." So much for your home.

  4. Personnel. The program has a small staff mostly borrowed off-budget from other programs and is de facto run by outside preservationists -- such as The Nature Conservancy and state "Heritage Programs" -- who choose which sites to go after and then write the "evaluations" without public accountability and often without owner knowledge, let alone consent. A surveillance program manned by volunteers, called "Patrons" by the NPS, monitors Landmarks for "threats", again often without landowner knowledge. NPS uses Patrons' opinions in the annual "Section 8" recommendations to Congress. The Interior Dept. refuses to reveal the identity of the Patrons, who are essentially volunteer spies, citing an exemption from Freedom of Information requests allegedly protecting their privacy.

Unlike the mostly small historic sites, there are 587 Natural Landmarks ranging from 1 to 1,878,200 acres (in Alaska). Almost 40% are over 1,000 acres with about 13% over 10,000 acres. About half encompass thousands of private owners, many never even identified by the NPS in this supposedly "cooperative" program. The rest are listed as exclusively public ownership, but may include additional private inholders the NPS never tried to identify.

NPS now admits that 15 formerly private NNLs have already been acquired for the National Park System, but has not disclosed those acquired by other Federal or State agencies or those that became Federal parks with the assistance of the NNL evaluation process before even reaching NNL designation.

Tens of thousands of sites have been surveyed with varying degrees of intensity without owner knowledge. Over 3,000 of these are on an open-ended "backlog" queue for "potential" Landmarks ready for formal evaluation and designation.

Tens of thousands of sites have been surveyed with varying degrees of intensity without owner knowledge. Over 3,000 of these are on an open-ended "backlog" queue for "potential" Landmarks ready for formal evaluation and designation. (The largest, again in Alaska, is -- so far -- 8.63 million acres.) A large portion have already been "evaluated" and are ready for designation (or more), depending mostly on the political climate.

Noah's Plan For "Ladies In Waiting"

In 1988 the National Parks and Conservation Association (NPCA), a legislative lobby organization working closely with the NPS, produced a 10 volume tract for Congress and the NPS recommending how the NPS should be operated and expanded by millions of additional acres.

A major theme in the NPCA recommendations is accelerated use of Landmarks -- both Natural and Historic -- for the creation of new Federal parks. Calling Landmarks "Ladies in Waiting", the NPCA urged that "The candidate sites and landscapes have already been identified -- they are long overdue for protection."

A major theme in the NPCA recommendations is accelerated use of Landmarks -- both Natural and Historic -- for the creation of new Federal parks. Calling Landmarks "Ladies in Waiting", the NPCA urged that "The candidate sites and landscapes have already been identified -- they are long overdue for protection." In other words, we now know where they are so let's drop the pretense and go get 'em.

The NPCA is not advocating a new strategy, it merely decried that the existing agenda had not reached its anticipated "potential". Paul Pritchard, now president of the NPCA, was responsible for the Natural Landmarks Program as a Deputy Director in the Carter Administration during a frenzy of activity under what they called the "Backlog Program". The concept of the Landmark Programs as "feeder programs" for new parks and other means of taking control of private land is obviously not new to him.

To NPS's chagrin, NPCA also reprinted a 1983 NPS internal list of 349 "National Natural Landmark Theme Study Recommendations for Additions to the National Park System", saying, "NPCA felt this pool of sites so significant as to warrant its publication." The "pool" includes "potential" Natural Landmarks as well as those already designated.

The NPS has for decades used a "theme driven" classification system to identify "gaps" in the National Park System that planners think should be filled by new acquisitions. Basically, they suffer from what psychologists might call the Noah's Ark Syndrome: they want (at least) one of everything in every region of the country where it occurs -- as defined, for example, in the 1972 two volume Park System Plan for both natural and historical sites. The Landmark Programs are used to scour the country in search of "representations" targeted for eventual acquisition to "fill the gaps."

[The] Plan put it bluntly: "the [NNL] Program has been compiling new park recommendations derived from natural region theme studies since 1971... Additionally, we have ... all the new park Section 8 recommendations made since 1976... [but] any contemplated revision of the 1980 revised Plan should exclude any information or actual sites recommended to fill gaps. This information, as you know, is very politically sensitive, which is why the enclosed compilation has never been distributed outside of NPS."

While the NPS publicly denies the connections between the NNL Program and new park planning, a 1986 internal memo by a top NPS official regarding a decision on whether or not to list NNLs in an updated Plan put it bluntly: "the [NNL] Program has been compiling new park recommendations derived from natural region theme studies since 1971... Additionally, we have ... all the new park Section 8 recommendations made since 1976... [but] any contemplated revision of the 1980 revised Plan should exclude any information or actual sites recommended to fill gaps. This information, as you know, is very politically sensitive, which is why the enclosed compilation has never been distributed outside of NPS." "My staff and I stand ready to assist you," the loyal lieutenant concluded, "in ... revising the Plan again, interpreting or evaluating specific site recommendations to fill gaps, etc."

Another memo confirmed: "This list, and the actual letters of recommendation we have on file which were used to compose it, is not widely known about even in NPS.... The List represents the best data we have for identifying potential candidate sites for addition to the National Park System. It should not be incorporated in the 1980 document update, but remain a separate in-house compilation."

Another memo confirmed: "This list, and the actual letters of recommendation we have on file which were used to compose it, is not widely known about even in NPS.... The List represents the best data we have for identifying potential candidate sites for addition to the National Park System. It should not be incorporated in the 1980 document update, but remain a separate in-house compilation."

And in July, 1989 the then new NPS Director, James Ridenour, issued a formal policy on criteria for new park creation, including what he called the "reconnaissance phase". A key point: "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."

Yet last April, NPS Associate Director F. Eugene Hester answered a query by Sen. Bob Packwood (R-OR), who was concerned with the revelations in the Alston Chase "Greengate" columns: "I can assure you," emphasized Hester, "that the National Park Service, through the NNL Program, in no way is involved in a campaign for 'federal control and takeover' of private lands... NNL designation is an alternative method for encouraging the protection of nationally significant sites, not a first step for adding units to the National Park System."

This was only a few months after a top NNL staffer confirmed in an internal memo about a meeting last year of NNL Coordinators from across the country reviewing the program: "It was acknowledged there always has been real connections between the NNL Program and the National Park System Plan."

...the NNL Program was started because, as Ronald Foresta lamented in America's National Parks and Their Keepers (1984), "too much of the nation's land had passed into private ownership"

The preservationists and the NPS know that there are too many Natural and Historic Landmarks for Federal acquisition of all of them, at least in the near future, and have taken steps to buy time and at least tie up targeted sites through other means. After all, the NNL Program was started because, as Ronald Foresta lamented in America's National Parks and Their Keepers (1984), "too much of the nation's land had passed into private ownership", and even in the early 1960's they knew that the cost of direct acquisition was too much. Something had to be done to at least make some inroads. "Therefore," Foresta wrote, "in 1962 the National Natural Landmarks Program was established."

New Teeth On The Way

Later, an absurd 1972 national bond proposal seeking to "buy back America" for a $100 billion to get us out of "private ownership" failed, as did other attempts at Federal land use controls and statutory control over Landmarks in the 1970's. The lobbyists are back now with the proposed $1 billion/year American Heritage Trust Fund legislation for land acquisition now being promoted in Congress with hundreds of co-sponsors. The bill emphasizes Landmarks by providing special subsidies to States that acquire privately owned Landmarks.

But the latest attempt at legislative control of Landmarks is the National Heritage Conservation Act, being worked on by NPS, NPCA, the National Trust for Historic Preservation, and other preservationists.

...the Conservation Act planned for court injunctions, fines up to $25,000/day and imprisonment for owners "impairing" a Landmark or park by actions inside or outside the site. It would also authorize a $10 million/year Emergency Fund for Federal acquisition of privately owned Landmarks by "donation, purchase from a willing [under these circumstances?] seller, or by condemnation with the consent of the owner".

A 1989 proposal for the Conservation Act planned for court injunctions, fines up to $25,000/day and imprisonment for owners "impairing" a Landmark or park by actions inside or outside the site. It would also authorize a $10 million/year Emergency Fund for Federal acquisition of privately owned Landmarks by "donation, purchase from a willing [under these circumstances?] seller, or by condemnation with the consent of the owner". And it would retroactively authorize the Natural Landmark Program -- indicating that they know its legal foundations are shaky.

Reviewing the draft legislation, NPS director Ridenour told his staff in a 1989 memo that the "goals are noble", but warned that the bill would not pass because "it simply tries to do too much and threatens too many individual freedoms." "I'm not sure of the position we would take," he wrote.

Ridenour directed his staff "to begin thinking about putting something together a little less broad in scope." "Keep in mind the problems of passing legislation that changes the name of the game for all the national landmarks, both historical and natural, that are already on the list," he wrote, "You can't just throw in new rules after the game has been well underway for a number of years. That would be inviting the 'I told you so' from the Chuck Cushmans [National Inholders Association] of the world."

A scaled down version "a little less broad in scope" (and without the jail terms and fines for this phase) was introduced as S.3105 by Sen. Dale Bumpers (D-AR) late in the last session of Congress in anticipation of a campaign to pass a version this year. The bill is reportedly this year's top priority for House Parks Subcommittee Chairman Bruce Vento (D-Minn).

The goal of S.3105 is "to provide for a highest degree of protection and preservation of the Nation's heritage of natural and historic places" which include "units of the National Park System, national historic and natural landmarks, and sites on the National Register of Historic Places".

Slipped into the "definitions" section where it is made to look noncontroversial is retroactive authorization for the Natural Landmark Program -- with no provisions for landowner notification or consent before evaluation or designation.

Legislating a broad new category of lands (including Landmarks) for Federal intervention called the "nationally significant heritage resource", the $25 million a year Heritage Conservation Act would authorize: "the development of comprehensive management programs, and planning and decisionmaking processes" for private land in and near Landmarks and National Parks, as well as: "implementation of actions which will maximize [their] protection and preservation."

For those who manage to avoid its intended web of State/Local/Federal controls and acquisition, the bill creates an official "list of endangered places" for Congressional action. The list would be based on criteria for "damage and threats" to be defined by NPS and which are to include "the introduction of visual or audible elements that are inconsistent with the interpretation or public enjoyment of the site." Private property? "Benign", "honorary" designation? "Voluntary"?

Whether the goal of ultimate control of Landmarks is advanced with passage of the Heritage Conservation Act or in smaller pieces tacked onto other bills and incrementally slipped through Congress late some night without even the knowledge of most Congressmen, the long term consequences to private landowners of a Landmark "evaluation" are intended to be as inevitable as a fatal push into quicksand.