National Park Service Acquisition Policy:
Willing Seller is Meaningless
Agree or Else
In the summer of 1988 the National Park Service and its boosters ran into a firestorm of protest when they tried to expand the Minute Man National Historic Park in suburban Concord, Lincoln and Lexington, Massachussetts, the site of the 1775 outbreak of the American Revolution 20 miles west of Boston.
Created in 1959, this National Park was the first in the nation to be carved out of already settled, privately owned property. The Federal takeover followed promises to some 150 frightened home owners, farmers and small business owners that eminent domain would not be used. The park took everything and could not be stopped.
Almost 30 years later the National Park Service and its preservationist boosters planned to acquire over 30 more homes and land, and to close four miles of a major road to restore it to a dirt path.
But long-time local residents still remembered the carnage when the National Park Service broke its promises and ruthlessly seized private property to create the park in the name of commemorating the nation's first battle for freedom and the rights of the individual at Lexington and Concord in 1775.
Following the typical official denials of the park's history and promises that under a policy of "willing buyer - willing seller" condemnation would not be used for the expansion, a local reporter called the head of Park Service land acquisition in Washington DC, Will Kriz. Kriz bluntly revealed that "willing seller" is meaningless and that unless the legislation authorizing the park prohibits condemnation the normal practice is to take property by eminent domain if "negotiations" do not succeed.
CONCORD JOURNAL Thursday, July 14, 1988 Page 10
Top park official calls willing buyer, willing seller
method of buying land "meaningless"
By John Macone staff writer
The "willing buyer, willing seller" procedure of acquiring land, touted by park officials, is "meaningless" and a more proactive method is generally used, a top National Park Service official said.
"The term willing buyer, willing seller is meaningless. Everyone is willing to sell at some price," said William Kriz, chief of the National Park Service's Land Resources Division in Washington, D. C.
He said, "willing buyer, willing seller makes it almost impossible for the park to expand. It's a very time consuming process."
According to the park service's draft general management plan for the minute Man National Historical Park, about 32 homes in Concord, Lexington and Lincoln are being considered for acquisition, either by means of a willing buyer, willing seller arrangement or by eminent domain.
The mechanism through which 85 percent of all park lands are acquired is negotiated purchase, Kriz said, with the remainder acquired through condemnation.
Negotiated purchase, Kriz said, is a proactive way of acquiring land. Congress sets aside acquisition money, and park service representatives are sent out to negotiate a price with the owners. The park service contracts an appraiser to determine the full market value of the land, which by law is the minimum amount it can pay for it, he said.
If the homeowner asks for a slightly higher price that the park service thinks is reasonable, Congressional approval is needed to get the extra funds necessary, he said.
If no negotiation is made, he said the park service uses condemnation to get the land. "We always try to buy the property first, and always use condemnation as a last resort, but not unless we have to," Kriz said.
However, he noted condemnation cannot be used if the enabling legislation specifically prohibits it.
In public meetings, Park Superintendent Bob Nash has stated several times he would "strongly recommend" condemnation not be used in the legislation, unless the land were needed for a roadway. However, the wording of the legislation is "in the hands of Congress," he said.
Nash said the park's land acquisition once would handle the actual purchases, and he would have little direct involvement in it.
Kriz said the park service also has an "emergency hardship fund" of about $1 to $2 million annually, which is used to buy land earmarked for acquisition if the park service's interest in it impedes on the owner's attempts to sell, or if the land is about to be developed contrary to the park's interests. Kriz could not say how many landowners ask for hardship funds.
A total of $330 million worth of land is slated for acquisition with no funding available now to buy it, Kriz said. Predicting when Congress would make the funds available would be tantamount to looking into a crystal ball and asking the same question, he said.
When Congress passes legislation allowing the park service to expand or create parks, rarely does it allocate enough to cover all the costs, he said.
After a three-year intense battle the expansion of the Minute Man Historic Park was stopped 1991. Four families who were still renting their former homes back from the National Park Service since they were forced to sell in the 1960s, but threatened in 1988 with eviction for the planned expansion and dirt path, were allowed to stay as a result of corrective legislation. But they did not get their homes back.
Prohibition of condemnation in legislation for National Parks is rare, highly qualified when it does occur, and is always subject to change without warning (as in the 1986 Acadia National Park boundary legislation, where the people had also been promised there would be no eminent domain).
See also Hemmat, Steven A., "Parks, People, and Private Property: The National Park Service and Eminent Domain", Environmental Law, Northwestern School of Law of Lewis and Clark College, V.16 No.5 Summer 1986, pp935-961.
This law review article by Hemmat cites the Condemnation Act of 1886, originally intended for public buildings, as the National Park Service authority to condemn property that it has the authority to buy; the sweeping expanded use of the original intent of the Condemnation Act by any agency for any kind and scope of acquisition was granted by the 1946 Supreme Court decision U.S. v Carmack (it is a general decision, not a National Park case):"The power of eminent domain is essential to a sovereign government. If the United States has determined its need for certain land for a public use that is within its federal sovereign powers, it must have the right to appropriate that land. Otherwise, the owner of the land, by refusing to sell it or by consenting to do so only at an unreasonably high price, is enabled to subordinate the constitutional powers of Congress to his personal will. — Dec. 9, 1946"
Hemmat also reveals that"Until 1959, Congress carved the national parks primarily out of federal public domain lands. State governments, private philanthropists, and other federal agencies transferred additional lands to the National Park Service (NPS). This pattern changed with the authorization of the Minute Man National Historical Park in 1959 and the Cape Cod National Seashore in 1961. In both cases, Congress authorized the purchase of predominantly private land to serve as the basis of the park. In contrast to the "old parks" policy of eventual acquisition of private inholdings, the "new parks" policy was acquisition of all privately-owned lands within park boundaries, in some cases using the power of eminent domain."
The Minuteman National Historic Park thus became the first National Park to displace an already fully settled area and was the first to employ Federal condemnaton power to do it — in the name of commemorating the beginning of the American Revolution at Lexington and Concord.
But large rural populations had previously been removed from the Smokey Mountains and the Blue Ridge Skyline Drive in the 1930s using state condemnation authority. Part of the funding came from "philanthropists", primarily Rockefeller money, but the condemnation was no gift. "Philanthropists" at Mount Desert Island in Maine had also previously used heavy-handed tactics including state condemnation power delegated to their landtrust, the Trustees for Reservations, beginning in the late 1890s. They transfered what became Acadia National Park to NPS as first a National Monument in 1916 out of fear that they would lose their state charter following a local revolt.
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