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Page 3 of 4 - for SINGLE PAGE PDF FORMAT
Testimony by Chuck Cushman, Coordinator
Keep Private Lands in Private Hands Coalition
Executive
Director
American Land Rights Association
(Formerly the National Inholders Association)
House Resources
Committee
US House of Representatives
Honorable Don Young, Chairman
Honorable Jim Hansen, Presiding
June 12, 1999
Salt Lake City, Utah
Conservation and
Reinvestment Act (HR-701)
Permanent Protection for America's Resources 2000 Act
Clinton/Gore Lands Legacy Initiative
The Land
Trusts ‚ Leading or Following?
Who is Setting the Priorities?
It is very clear that the Nature Conservancy, Trust for Public Land, Conservation Fund and other giant trusts are essentially taking over the role of deciding where our new national parks and other conservation areas will be. They are setting our future conservation policy instead of Congress. This seems to us to be a very dangerous course of action.
Already the land trusts are buying huge amounts of land in the Northern Forests of Maine, New Hampshire, Vermont and New York in what appears to be a plan to render moot what Congress thinks or plans. The land trusts would not do this if they didn't think there was a very good chance they would eventually be reimbursed by the Federal Government for their efforts. Most of the land they purchase is eventually transferred in some way to the Federal agencies.
Local officials in New England cannot go to bed at night knowing they will still have a tax base in their town or county the next morning. These land trusts are essentially deciding who lives and who dies from a community standpoint. The potential for corrupting the system and the Federal agencies is tremendous. The land trusts stand to make huge profits as they often do from sales to the government. Yet they are deciding where our next parks are coming from. Congress needs to visit this issue and make some decisions. Who is in charge? We believe the land trusts need to be put on notice that just because they buy something, there is no obligation to Congress to reimburse them. Further, as we have said elsewhere in this testimony, no land trust should be able to sell land to the government that does not make their books available for review by the General Accounting Office and Congress.
Congress needs to decide just who is in charge. One Nature Conservancy official said several years ago that no developer or community should make plans about undeveloped land without going to the Nature Conservancy first. Their reach and their computer database are so large that they have that kind of power. In fact, the Nature Conservancy gave parts of its database to each state along with an operator so that hidden in all state land agencies is a computer data base with virtually single piece of private land listed and categorized. This database would never have passed the state legislature in each state but the Nature Conservancy sneaked it in through the back door. If that sounds scary, it is. It is clear that Congress needs to take charge of this situation. The self initiating park manufacturing system now in place with the large land trusts offers too much money, profits and opportunities for corruption without some careful regulation.
National
Natural Landmarks
The Secret Park Service Land Grab
In the early 60's Interior Secretary Stuart Udall initiated a program whereby the National Park Service would reward landowners for being good stewards. If they met certain criteria, their land would be nominated as a National Natural Landmark. They would receive recognition and awards as good stewards. Interior Department and Park Service policy said the government had to ask permission of the landowner before moving forward so things seemed reasonable.
Somewhere in the 70's the Park Service got impatient. They stopped telling the landowners they were nominating and began quietly designating their land as National Natural Landmarks without telling them. Hundreds were designated and several thousand were nominated. Landowners only found out they had a problem when they went to do something with their property and were told by local and state authorities that they couldn't because their land was of "national significance."
When the program began to unravel, no one was prepared for the scope. One landmark nomination was for 10,000,000 acres. Huge amounts of private and public land were included. The National Parks and Conservation Association in their massive 1988 plan for park expansion called these areas "ladies in waiting."
In the early 90's the story broke courtesy of American Land Rights and a network of other private property advocacy groups. Various newspaper organizations and the Interior Department Inspector General investigated the Park Service. The agency was found to be guilty of taking control of private land or putting a legal cloud on that private land without telling the landowners. The National Natural Landmarks program was put in limbo. It just sat there for a number of years.
Just recently, the Clinton Administration has restarted the program. They have a cute way of saying will never going to let go of those properties. Most of their announcement said they were backing off but if you read between the lines, the landowners are going to have one heck of a time getting released. So much for stewardship and a partnership with the Park Service. The landowners continue to have a cloud on their title and fear in their hearts. The Park Service knows it stole something and got away with it.
Land and
Water Conservation Fun
No Money For Maintenance
The General Accounting Office, the "non-partisan" investigative arm of Congress has released several reports over the past 20 years that say Park Service superintendents believe there is a shortfall in maintenance funding ranging in the billions of dollars. None of the money for Federal agencies from HR-701 can go for anything but buying land. Shouldn't we be able to take care of what we already own?
Parks Will Become Political Trading Stock
For those with short memories, the late Congressman Philip Burton used parks as a tool to achieve great political success in Congress. A Billion Dollar Trust Fund with a dedicated money source will allow all Members of Congress to create new parks and other reserves at will. They can say, "Let the trust pay for it." No one will be financially responsible... except the taxpayer.
Actually, it was Burton who hosted a secret meeting in 1979 with key Congressmen and staff from both parties along with agency officials and land trust executives who first planned out how to set up a billion dollar land acquisition trust fund and remove Congressional oversight.
HR-701 will make parks the political trading stock of the 90's. The Park Service will become the "Pork Service" as we head into the era of what the Washington Post referred to in 1980 as "one man one park." In the late 70's the Park Service became a dumping ground for open space because they were used in the pork barrel trading process. The University of California Press has released an important book about the life of Phil Burton called A Rage For Justice by John Jacobs. This book rivals the Power Broker, Robert Moses and the Fall of New York, written in 1975 by Robert Caro. Both books document the use of parks as political trading stock to control the political playing field and Congress.
During my term on the National Park System Advisory Board, other members appointed by the previous Administration, may not have agreed with me on some issues. But they were almost united in feeling that the resources and the will of the Park Service were being diluted by areas not deserving of inclusion in the National Park System. They felt that the National Park System was being damaged by its use as a political tool by trading parks for votes.
Park Service Has Taken the Land of Over 115,000 Landowners Through 1995
Even though HR-701 says the LWCF will only buy from willing sellers, we believe it will eventually allow for the condemnation and destruction of landowners and small communities all across America. It may happen with amendments in other Congresses but eventually this unappropriated off budget trust fund will fund condemnation. More than 115,000 landowners have already lost their land to the Park Service alone since 1966 because of the Land and Water Conservation Fund, which will be amended by HR-701.
Lack of Congressional Oversight
The National Park Service and to a lessor extent other agencies, have been immune from Congressional oversight because they manage nice places. Parks are good in political terms and it is bad to appear to be against parks. The result is a runaway bureaucracy with little or no accountability. These land buying agencies are buffered by support groups who intimidate and overwhelm opposition.
Land Protection Planning Process
There has been a definite trend for the better. Mostly related to funding. One of the true success stories of the Reagan Administration was the Land Protection Planning Process. The fact that the planning process is largely still in place testifies to the common sense nature of the policy. Responding to the severe criticism by the General Accounting Office in previous years, the Interior Department published the Land Protection Regulations in 1982. And many in the Park Service and Fish and Wildlife Service have made an effort to make them work.
Land Protection Plans were supposed to help the Park Service and other Federal agencies obtain protection for more land at less cost. They were supposed to encourage the use of cost effective easements and other alternatives to fee acquisition. They were supposed to buy the least amount of an interest necessary to meet congressional objectives.
Unfortunately, lack of support from certain Members of Congress and the long held belief that we will buy everything anyway so why bother prioritizing has led the Park Service and other agencies to largely ignore the Land Protection Planning Process. HR-701 could be improved by including the 1982 Land Protection Planning Policy into the bill.
We should make it clear that even though we have suggested improvements to HR-701 in various places in this testimony, we do that only to help landowners should this bill be made into law. As long as it creates a Trust Fund, increases land acquisition funding and those funds do not have to go through the appropriations process each year; our opposition remains total, complete and unequivocal.
The East-West Conflict Over Parks
The East is overcrowded and needs more open space according to some. The West feels it has been abused by having too much land locked up. HR-701 may well be a response to calls for more parks in the East, but much of the damage will still be in the West. The West understands what condemnation, land acquisition and loss of tax base will do. In some cases, the West never was given the tax base in the first place. The East kept control by keeping the land in government ownership to restrict Western growth.
We hope Eastern Congressmen and Senators will be truthful with their citizens about what HR-701 means. Massive land acquisition of private lands, much of it in the Northern Forests of Maine, New Hampshire, Vermont and New York. Yet, the public wants parks near where they live. Ask them if they want their neighbor to lose his home as a price for making the park? Ask the urban resident if he is willing to pull the dollars out of his pocket to pay for the park? Don't extort the money from him without letting him understand the price he is paying.
Let's Be Honest, HR-701 Is A Billion Dollar Tax Increase
Let's be honest about the Land and Water Conservation Fund. Any money that is appropriated for the fund, or that comes from the sale of public assets and put in the fund, is public money. Money that comes from off-shore oil and gas sales would normally go into the treasury to reduce taxes. Under HR-701, it will automatically be siphoned off for special interest groups and land acquisition and the taxpayer will have to make up the money. Lets not kid the folks back home and tell them they won't have to pay for all this land acquisition. They are paying for it all right... only it's being done in a sneaky underhanded way.
HR-701
Says Only Willing Seller
But Congress May Decide Otherwise
HR-701 contains no oversight provisions. The numerous General Accounting Office reports listed above have criticized the Park Service in particular and other Federal agencies for buying more land than they are supposed to; creating projects with huge cost overruns; not prioritizing their land acquisition so that they buy land they don't need instead or lands intended by Congress; failure to use easements and other cost effective protection alternatives; and failure to pay attention to the needs of local communities, landowners, and local government.
Use of eminent domain or condemnation must be severely restrained if money is added to the Land and Water Conservation Fund. On the St. Croix River the Park service has exceeded its condemnation limit. It continued to threaten to condemn easements that include public access over a person's entire property instead of just river access as the law intended. Otherwise unwilling sellers have gladly sold willingly rather than have nearly all the value of their land taken leaving them with little resale value but the right to pay taxes.
Land acquisition money is used as a giant regulatory umbrella. The Niobrara River Wild and Scenic River had a provision that limited condemnation to 5% of the land. When asked by the author how they would use this limited condemnation power, the Park Service said they would hold back condemnation and threaten everyone with it to keep them from making unwanted developments to their property.
The agency pays little or no attention to the legislative history of areas managed by them. According to GAO, they are just as apt to buy land they don't need as land that is critical. They assume they will buy it all anyway so why plan. Therefore, many condemnations take place that wouldn't have if more easements and other alternatives were used.
A court will not examine the taking--it is assumed that if it is for a "public purpose" then it is OK. The power comes with the power to govern. Courts only ask two questions. Does the agency have the money and the authority to spend it? They never ask if they have the authority to spend it on that land or at that project.
Therefore, the landowners cannot contest the taking. The Park Service uses condemnation as an abusive tool to intimidate. They know that the only thing that can stop them is congressional oversight and they have little to fear from that. Many landowners are squashed like bugs without a chance to fight back. Yes, they get paid. And sometimes they even get enough to replace what they had. But what is the price of land you don't want to sell?
The Reagan and Bush Administrations held down condemnations and funding for mass condemnation but even their Justice Department would not review the thousands of condemnations in process when they came into office. If the willing seller provision fails to survive, HR-701 will allow the Federal agencies to return to the wholesale condemnation era of the late 60's and 70's. According to a report to Senator Ted Stevens by the Justice Department released in 1979, of 21,000 condemnations in process nationwide by all Federal agencies that year, the Park service had over 10,000 of them. That number is skewed somewhat by the Big Cypress condemnations.
Despite the Willing Seller ‚ Willing Buyer provision in HR-701, we believe that any bill coming out of Congress will include condemnation. Declarations of Taking will increase if HR-701 passes. DT's, as they are called, are used by the Park Service as an abusive tool to intimidate and depress opposition to local land acquisition projects. They give the government immediate title to the property and can be used to force the landowner off the land in 90 days even if he has no other place to go. Small businesses and farmers have been especially hard hit by the use of this tool.
In the past, the congressional committees have often approved a DT without ever taking the care to ask local elected officials or landowners whether a DT is appropriate. Some are but most are not. The Resources Committee in the past was often counted on by the Park Service as an automatic sign-off to get a DT approved. It failed to investigate the facts. As a result the Park Service often gave Congress information that was not accurate. The Park Service did not have to tell the truth because it knew the Committee was not likely to check.
The Committee has often not fulfilled its oversight role. By passing HR-701, Congress would be placing a loaded gun in the hands of the Park Service. HR-701 should carry some very carefully crafted oversight provisions for the use of Declarations of Taking.
HR-701 will eliminate any motivation on the part of the Federal agencies and particularly the Park Service to use easements to protect land while saving money. The GAO says that the Park Service objections to easements are more perceived than real. For example, on the St. Croix, (Kettle River Section) the State of Minnesota purchased hundreds of easements at a cost of 30% or less of fee title. On the St. Croix just a few miles away, the Park Service was condemning fee title costing far more money for the same kind of land. The difference in management is money. If they have enough money they don't have to negotiate. They take the easy way out. They don't have to be a good neighbor. They always threaten condemnation. They use condemnation. The use of a high percentage of easements would cut land acquisition costs by a minimum of 40% while saving valuable cultural communities. More land could be protected at less cost if Congress enforced the use of easements.
Public Law 91-646, the Uniform Relocation Act is supposed to protect landowners from overly aggressive bureaucracy. IT DOES NOT WORK. If HR-701 passes it will be turning loose powerful bureaucracies to prey on their own people. Money is the key. If the land acquisition agencies do not have quite enough money to do their job in the old way, they become creative and fiscally responsible. To some extent this has happened in recent years. Without very tight controls over land acquisition and the condemnation process, private land in rural America will face a grave threat at the hands of its government.
Multiple-use on Federal lands will be damaged by HR-701. Multiple-use lands will be converted into single purpose restricted areas where only a small minority of citizens can go. Congressmen and Senators are able to change multiple-use lands into parks now, but they must be responsible for huge costs associated with buying private lands in those areas. Mineral rights, grazing rights, water rights and other private interests must be paid for too.
If there is a Billion Dollar Trust Fund, Congressmen will simply have to say: 'Let the trust PAY for the new Park.' They will not have to take fiscal responsibility for their actions. HR-701 will lead to virtually no congressional oversight over land acquisition. HR-701 is not the final Trust Fund. It is a transition bill that amends the Land and Water Conservation Fund so that it has a dedicated source of funds that will eventually grow to $1 billion and more. The goal is to position the LWCF so that it will be removed from the congressional appropriations and oversight process. This would complete the plan laid out in June 1979 in the late Phil Burton's secret seminar where this whole process was planned. The goal of that meeting was "to get the Land and Water Conservation Fund out from under congressional oversight and give as much money as possible to land trusts" where there would be even less oversight.
Anyone who pays recreation or user fees on Federal land will eventually have to pay higher fees because of HR-701. Like night follows day. The environmental groups will use the excuse of paying for the Trust to prod Congress into raising user fees. Their goal, of course, is not really to raise money, but drive commodity production and other multiple-uses off the Federal lands.
HR-701 will eventually give the Park Service, Forest Service, Fish and Wildlife Service and Bureau or Land Management 200%, 300% and even 400% of the land acquisition funding that has been provided by Congress over the past ten years. The threat to rural America is staggering.
If HR-701 passes we will end up with a $25 billion backlog in 10 years. The appetite of some in Congress, the Park Service, and the environmental groups is very big. Their eyes are bigger than their funding. Instead of the current $8 billion backlog as we have now (if you can believe the President's Commission on Americans Outdoors ten years ago) you'll simply see a $25 billion backlog as Congress loads up the process with new ego-political parks. Remember, they no longer have to be accountable for costs because the 'Trust will pay."
We will be mortgaging our children's future and setting impossible goals while guaranteeing to raise their taxes because LWCF funds that could have passed through to the general fund to help reduce the deficit will now be siphoned off.
It is suggested that we must take funds from an asset we are using up (off shore oil) to build another asset. There is some logic to that argument. Often, however, the Land and Water Conservation Fund is taking assets or their uses important to all Americans from them. We may buy land, but it is placed in a non-use category. Small communities are being destroyed and the local tax base damaged. HR-701 will remove millions of additional acres from the tax rolls throwing the burden of supporting necessary community services on other property owners. Often counties support the LWCF to pay for the swimming pool while giving up the tax base that could pay to keep up the swimming pool.
None of the money from HR-701 can be used by the Park Service, Fish and Wildlife Service or Forest Service for anything but buying land. No maintenance, no rehabilitation, nothing else. Yet the backlog in maintenance grows bigger with each passing year.
It seems inconsistent for the environmental groups to be suggesting the sky is falling about the preservation of land when advocating huge land acquisition increases while at the same time resisting to the death any attempt to add maintenance and rehabilitation funding to the Land and Water Conservation Fund.
If Congress passes HR-701, it will send a message to the Federal agencies. Remove private uses and commodity production from Federal lands. The logic is that if the government is spending so much money to buy private land for recreation and preservation then of course Congress must mean to rid existing Federal land of permits, leases, and other private uses for the same reasons.
The President's Commission on Americans Outdoors recommended massive increases in land use controls. These will be paid for by the Billion Dollar Land Acquisition Trust Fund. Examples: 2,000 Wild and Scenic Rivers by the year 2000; a national network of greenways modeled after the 1,000 foot wide Appalachian Trail from Maine to Georgia; a nationwide "scenic byway" program placing half-mile viewshed or buffer zones on either side of secondary highways across America; expansive new wetland and shoreline controls; growth shaping controls; and many more costly red-tape regulations. Some of these proposals like the "scenic byways" have been put into place on Federal land in areas managed by the Forest Service. Also the wetland, shoreline and growth controls. So far the impact on private land from the "scenic byways" has been minimal. What happens when there is a Billion Dollar Trust Fund? .
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