| Heritage Areas Legislation
Summary and Rebuttal of Arguments for H.R. 1280,3305 etc. ( Faxback Document # 7) I. CLAIM: Funding would be limited to "Technical assistance only." REBUTTAL: Misleading. "Technical assistance" comprises federal funding and a wide range of measures which would establish both de facto and specified, direct, federal dominance over the major players, policies and mechanisms by which an Area would be Designated and administered. II. CLAIM: Local control and property rights protection are ensured by requiring approval of local officials before their jurisdictions can be Designated. REBUTTAL: False as to property rights protection (owners can be Designated against their will) and misleading as to approval of local officials per item #1 since full disclosure of adverse consequences flowing from Designation federal is nowhere required in the Bill and the National Park Service (National Park Service) certainly isn’t going to reveal them (federal Heritage Areas are units of the National Park System and subject to legislation as such). III. CLAIM: The Secretary of Interior prohibited from taking any action with respect to limitations on local land use. REBUTTAL: False, as per items #1 and 2, above. Misleading as to use of the term "local" since regional would more often than not be the case (Mississippi River Valley, Great Plains, Rocky Mountains). The intent/purpose of a federal Heritage Area is to control land as well as property use generally (buildings, etc.). The Bill makes the Secretary’s "action(s)" paramount to the process. IV. CLAIM: No property is to be taken. REBUTTAL: False. Property is a bundle of rights. Federal Heritage Areas are designed to facilitate the taking of property rights. That is why a Land Use Management Plan is required. V. CLAIM: Opponents are against zoning. REBUTTAL: False. We are against federal planning and zoning of private property. It violates the Doctrine of Residual Powers (9th and 10th Amendments) (as well as the 14th Amendment). VI. CLAIM: Federal Agencies not required to consult with Secretary of Interior with regard to their activities within a Heritage area. REBUTTAL: Misleading. Agencies are required by the Bill to take the fact that an Area is Designated into account. Consultation is to be with the Governor(s) of the State(s) involved, but regardless of any Governor, the inhibitory requirement would be federal law governing acts by agencies. This could result in Areas being denied federal assistance to which they might otherwise be entitled---for instance, disaster relief if restoration of the status quo ante would result in restoration of features non conforming to a federal Heritage Area. Whole farms, whole towns, whole industries could be obliterated. The spotted owl isn’t a patch on what a federal Heritage Area label could do. VII. CLAIM: Management Plan would not be subject to Secretarial approval. REBUTTAL: Misleading. Secretary has power to reject any and all aspects of the Compact(s) from which the Management Plan and practically everything else flows. He has explicit power one level above the Plan per se and pervasive de facto control of the content of any Plan. VIII. CLAIM: No federal funding for anything but (mere) "technical assistance." REBUTTAL: Misleading as per above. If a Management Plan is not submitted to the Secretary the Disqualification For Federal Funding clause requires the Secretary to suspend funding (which the clause itself describes as "technical assistance"). Secretary can also shave funding to his perception of how he approves/disapproves of Area management. He can also unilaterally de-Designate an Area. IX. CLAIM: No federal Advisory Commission to be established. REBUTTAL: Misleading. Federal Officials could sit on a non-federal Commission created to manage an Area. But even without that, federal power dominates and defines either de facto or explicitly what a commission can or cannot do and the Area still remain an Area. The federal choke hold is definitive. X. CLAIM: Heritage Area Program not of major magnitude. REBUTTAL: False. Potentially far more major than Endangered Species Act. Heritage Area criteria are so loose and all inclusive as to allow Designation of the entire land base not otherwise already Designated (as National Park, for instance). The Chicago stockyards could be Designated as well as the Great Plains. All would then be units of National Park System, and subject to legislation as such. XI. CLAIM: Designation is toothless. REBUTTAL: False. See all above, Federal Heritage Areas are designed to accommodate more teeth than Tyrannosaurus Rex --- fines of up to $25,000 per day plus jail time were prescribed in past, failed legislation which targeted federal heritage type Areas as Units of the National Park System, as Nationally Significant, as Landmarks, etc. And when Democrats return to power teeth will come in faster and sharper ---though based on Republicans having sponsored this Bill it may be pointless to distinguish. XII. CLAIM: Some Republicans support the Bill. REBUTTAL: True. But some Republicans have also been mislead by Bill supporters, including Congressional/Sub-Committee staff. The Negative consequences have not been pointed out. Members will wake up to find property rights egg on their faces and campaign ammunition in the hands of primary and general election opponents. XIII. CLAIM: Some Republicans have people in their district who want to be Heritaged. REBUTTAL: By people do they mean the Environmental Industry? If someone wants to walk the National Park Service plank do the rest of us have to? And do they know they can Heritage themselves without saddling themselves with federal consequences? Do they know federal Heritagization dilutes local control? A successful model for federal assistance without loss of local control exists as an alternative, but this fact has not been disclosed by Bill supporters. The Bill prescribes dilution of local control and increased State/federal control. Have supporters been given full disclosure of the adverse consequences of Designation? Do they know what a recall petition is? XIV. CLAIM: The Heritage Area concept is a grass roots phenomenon. REBUTTAL: False. It is a Park Service creation, slickly and fraudulently promoted. Again, the Bill is designed to effectuate federal labeling of virtually the entire land base---designed to make regulation of it at the planning and zoning level a federal process. Federal labels mean federal laws, and can, at the stroke of a federal pen, wipe out local control entirely. XV. CLAIM: Designation programs are harmless. REBUTTAL: False. Being Designated a unit of the National Park System or anything recognized by the federal government can be fatal to property rights, long term. The power to Designate is the power to destroy rights. XVI. CLAIM: A Heritage Areas Program needs to be authorized to police the Heritaging process. REBUTTAL: False. The Program already exists as a fully evolved Program. No policing is added by authorizing it. In fact, giving it legislative authorization would give it more independent authority, not less. Even the Code of Federal Regulations is ignored by the National Park Service as suits its purposes (as shown by the Natural landmark Program). Neither the Congress nor the Park Service can police the Park Service, but in the fullness of their rights, Citizens can. That’s why the Program is designed to eviscerate private property rights. XVII. CLAIM: One Area may cost the taxpayers up to $400 million. REBUTTAL: Utterly False as to applicability to the Heritage Areas Program as laid out in the Bill. They refer to a Reagan era economic development project which encompasses one sixth of the state of Pennsylvania (and the $400 million includes all present, government, non profit and private business activity). The word Heritage appears in the locally controlled commission’s name. So? XVIII. CLAIM: Heritagization is preservation on the cheap. REBUTTAL: False, if you are a property owner. False, if a successful takings case is prosecuted. Further, being Heritaged will increase local and regional taxes, especially after the feds pull out. Someone has to pay for administration of the Area---if it’s not "properly" administered it ceases to be an Area. And, of course, federal taxes have to go up to fund new or increased federal activities. XIX. CLAIM: Federal participation is supposed to be phased out over time. REBUTTAL: Misleading. After achieving Designation the feds have what they want---the power to legislate to the Designation, to the label (providing teeth for the gums). Local/regional or State jurisdictions are left holding the bag, fiscally. With addition of increased federal regulation over time requiring increased local costs we have the classic unfunded mandate. XX. CLAIM: We need a Heritage Areas Program to establish uniform federal policy for involvement in Heritage Areas. REBUTTAL: False. The Program is up and running with everything such a Program needs (by National Park Service standards at any rate. Otherwise why is the National Park Service operating it?). Again, the Bill is an attempt to provide organic basis in legislation, to strengthen the power of the Program and make it more difficult to eradicate. As a non legislated Program it can be eliminated by a stroke of the budgetary pen; with legislative basis it would take repeal of a law. And "uniform federal policy for involvement" in Constitutionally prohibited undertakings does not legitimize them. Furthermore, we have had a bellyfull of federal uniformity in area after area of society. Ill advised, top down, federal uniformity is what produced the backlash that booted Democrats out of power last election. Take heed. XXI. CLAIM: We need a Program to control costs. REBUTTAL: False. What’s needed to control costs is to not create Heritage Areas. Costs amounting to? The costs of Heritage Areas while real are not monumental, but Park Service bookkeeping is so fouled up how can anyone be sure of anything with them? According to the I.G. the Park Service’s books are so chaotic they are un-auditable. The National Park Service cannot be trusted with money or rights. XXII. CLAIM: The Mississippi River National Recreation Area (Minnesota) shows local people can’t figure out how to manage a Heritage Area. REBUTTAL: Misleading. Area was created two and a half years before the Heritage Area Program was created. Federal Management Plan is 116 pages long, part of 864 page federal planning document. How to manage the area is done to death. If costs are the "How" problem why did Congress create the (so called) Area? Or would the Program, had it then existed, have prevented Designation? Absurd. The Program is designed to achieve Designation(s). That is its mission. The site is now touted as the first link in a chain called the Mississippi River Valley Heritage Area. An Area operating well enough to be adopted by the Program as a (falsely attributable) showcase example now becomes, ex post facto, proof that a Program that didn’t create it is necessary. Wonderful. XXIII. CLAIM: Bill is designed to limit federal involvement. REBUTTAL: False. Federal authority dominates or can dominate as per items #1, 2, 4, 6, 7, 8, 9, 10,. 11, 14, 15, 16, 19 & 22. The Bill and the Program are designed to monumentally expand federal involvement in local affairs, nation wide.
Pacific Legal Foundation James S. Burling, Attorney 2151 River Plaza Drive Suite 305 Sacramento, CA 95833-3881
August 25, 1995
S 1110, the National Heritage Act of 1995
Per your request I have reviewed S. 1110, the National Heritage Act of 1995. While it appears that a sincere effort was made to avoid some of the more egregious problems with previous versions of the Act, I remain very concerned that local governments and private property owners will not be well served by the legislation.1
At the outset I am concerned with the need and ultimate authority for such legislation. The areas that will potentially be identified as national heritage areas have done quite well for the past century or two without significant intervention from the Department of Interior, so why risk the status quo? More to the point, why is increased federal intervention necessary? Indeed, is increased federal intervention even desirable? In this era of limited federal resources much thought has been given to the role of state versus federal authority. While it may be too late to "turn back the clock" and devolve much of the federal power amassed during the new deal and post new deal eras back to state and local governments, we should at least be cautious before expanding the federal role into yet another area of human affairs.
The drafters of the Constitution were very concerned about the preservation of state autonomy. The debate between the federalists and antifederalists centered on fears that the federal government would become too overreaching. The proponents of the Constitution were well aware that certain endeavors were not property suited for federal governance. For example, Hamilton wrote, "[t]he administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction." Federalist No. 17. Some were not mollified. For example, Patrick Henry endeavored mightily to prevent Virginia from ratifying the Constitution, claiming: I should take up but very little of your time in enumerating the little power that is left to the Government of Virginia; for this power is reduced to little or nothing.
Henry, Debate of June 5, 1788, reprinted in The Anti-Federalist, S 5.16.6 at 309. And in an exercise of his unique rhetorical skills:
Our Legislature will indeed be a ludicrous spectacle— 180 men marching in solemn farcical procession, exhibiting a mournful proof of the lost liberty of their country—without the power of restoring it.
Henry, Debate of June 9, 1788, reprinted in The Anti-Federalist, S 5.16.22 at 324. Ultimately, of course, these fears were overcome and the Constitution was ratified—in large part because of the promise to enact a Bill of Rights and an understanding that the federal government’s powers would be limited to those specifically enumerated in the Constitution and to those powers necessary and proper to carry out the enumerated powers.
In recent decades, the limitation of federal authority has been given mere lip service by Congress and the Courts, with all manner of federal Regulatory activities found to be appropriate as an enumerated power, usually the Commerce Clause. This trend, however, was called into question just this year when the United States Supreme Court decided Lopez v. United States,___U.S. ___(1995), where the Court struck down the regulation of guns in schools which had been rationalized by the federal government as being necessary to the regulation of commerce.
The proposed act purports to support the federal protection of "national" heritage areas. Calling these largely rural places areas of "national" significance, however, does not necessarily make them so. Reviewing the enumerated powers given to the federal government, and those powers necessary and proper for the carrying out of the enumerated powers, it is difficult to see exactly where the authority for this National Heritage Area scheme derives from. Commerce is not necessarily implicated by a geographic area just because it has some interesting features. The promotion of tourism is not the purpose of this Act, and it is not exactly the sort of regulation of commerce envisioned by the Founders. Nor is federal property necessarily at stake in a national heritage area. In short, any connection between the subject and purposes of the proposed Act and any of the enumerated powers is tenuous at best. Furthermore, just because it might be possible to fashion some rather creative arguments as to how the proposed Act will further an enumerated power, that does not mean that the spirit of the Constitution has been followed and that Congress ought to embark upon this particular dubious path.
That said, let me turn my attention to particular secitons of the Act. First of all, the criteria listed in Section 2 for identifying national historic areas are incredibly vague. What is the "national experience" and how is it defined through the "continued use and adaptive reuses of the natural and cultural fabric" within an area? How, pray tell, does one adaptively reuse a cultural fabric? How does such use and reuse possibly help to "shape the landscapes [to] enhance the significance of the areas?" What, in heavens name, are "patterns of human activity shaped by geography?" How is the "national experience" defined by "physical features that remain?" What are physical features such as mountains and valleys supposed to do other than "remain"—get up and walk to China? No doubt a creative history major could weave an intricate case that just about any area in the United States fits such criteria. Of all the legislation that I have ever read this takes the prize for the most concentrated collection of socio-economic gobbledygook in a single page. Proper usage of the English language means something more than stringing together a random collection of significant-sounding words and calling the result meaningful. Free-form stream of consciousness wordsmithing might be appropriate for avant-garde fiction, but it has no place in legislation that could affect millions of people.
Section 5(1)’s discussion of the criteria for National Heritage Areas is not better with its self-defining reference to areas which "represent distinctive aspects of American heritage worthy of recognition, conservation, interpretation, and continuing use." What areas are not worthy of such lofty goals? Such utterly standardless standards provide no objective basis for including or not including any particular region of any size large or small in any part of the nation. Likewise, Section 5(2) is equally infirm, listing as a criteria those areas that are a "valuable part of the story of the nation." Alas, every town, village, and city in the nation, large, small, and tiny, east and west, north and south, has a history worth telling. Section 5 also lists as a criterion the consent of local governments. That is well and good, but it is imperative that the consent of private property owners be obtained as well. It should not be enough that consent is obtained by the local mayor or town board. Property owners must have the opportunity in a plebiscite to approve or deny a designation. Also, any town must have the right to withdraw its consent at any time. This is especially important if a plebescite were not held and voters were forced to recall or vote their local officials out of office.
Justify the Federal Intrusion and Expense
The purposes of the Act, described in Section 3, include such bon mots as the "encouragement" of a "broad range of economic activities." The last time I looked it was the federal government, particularly the Forest Service and Department of Interior, that are doing their level best to extinguish existing economic activities such as timber, harvesting, mineral development, and ranching. The last time the Park Service got a hold of a remote area with viable economic potential was in the Kantishna hills of Alaska, where it managed to turn one of the most productive placer gold mining regions in the nation into a ghost town with a few tourist lodges in the space of five years. Many private property owners in the Columbia River Gorge have been devastated by the federally inspired land use planning there. And who can forget Cuyahoga Valley? We do not need this sort of federal encouragement.
The hook designed to lure states into the partnerships described in Section 3 are technical assistance grants. Why should the Department of Interior spend more money to mess around with land not even in its jurisdiction when it has been repeatedly documented that it cannot take care of the land it already controls?
Alaska Native Corporations as Units of Government
Section 4(3) defines Indian tribes to include Alaska Native village or regional corporations. Section 4(8) describes these tribes as a "unit of government." Alaskan regional corporations are not units of government in the traditional sense. The issue of whether or not Native villages and/or corporations have any attributes of sovereignty is a highly contentious issue currently in litigation. Nothing should be done in unrelated legislation that might confuse the issue further.
On threat of withholding federal permits and with the lure of federal grants, Washington and Oregon entered into a compact with the federal government which has imposed severe land use restrictions upon the people of the Columbia River Gorge. Residents in the Lake Tahoe region have suffered similarly. In both places, local governments and individual landowners have been severely injured by the process. Rather than having a local governmental body to which grievances can be taken, citizens are forced to go to a compact-created commission composed of representatives of various state, local, and federal government agencies. As such, there is little accountability to the voters of an area for decisions affecting a local area. In other words, if residents in a town are opposed to (or in favor of) a land use proposal they would be unable to use their local government for relief if a compact agency has the decision-making power. They cannot vote out officials who make decisions with which they disagree. The Act’’s embrace of the compact mechanism is, therefore, essentially antidemocratic by replacing local government with some form of an as yet undefined regional compact body. This is not the sort of compact body envisioned by the Framers of the Constitution and should not be allowed to mutate beyond the Columbia River Gorge and Lake Tahoe.
Section 6(a)(2) discusses the requirements for a compact. Unfortunately, there are no requirements that a compact contain express protections for owners of private property against either excessive regulation or condemnation.
Section 6(a)(3) addresses the requirements for Plans submitted under the Act. These plans are required to address many issues, but not any specifics on how existing property rights and existing economic uses such as grazing, timber harvesting, mining, and agriculture are actually going to be preserved while maintaining property values of affected landowners.
The Plans are also to contain an inventory of land. No property should be included in any such inventory without consent of the affected landowner. Furthermore, it must be made clear that no person working for or on behalf of the federal government should be permitted to inventory private property without first obtaining written consent of the landowner. Otherwise the debacle of the National Natural Landmarks program would be repeated.
Section 7(a)(2)(A)(8) states that the "management entity" shall "consider the interests of diverse units of government, businesses, private property owners, and nonprofit groups."3 This mere "consideration" provides absolutely no meaningful protection to private landowners and is an insult to the intelligence of units of government, businesses, and private property owners.
Section 7 (c ) prohibits the management entity from acquiring real property with any funds received under this Act. This is meaningless because there are many sources of funds available-especially a compact agency comprising of state and federal government agencies. Furthermore, there is nothing that could prevent a future appropriations bill from overriding this alleged prohibition.
The Secretary is given veto power over any compact in Section 6(b) after "consultation" with the state governors. If the Secretary is given veto power, why not the governor?2 Otherwise "consultation" will be nothing but a toothless exercise with no real meaning for state governments. The Secretary’s veto also raises a separation of powers issue—since when can the Secretary of Interior veto a compact before or after Congress has had a chance to examine and ratify or deny ratification?
Section 9(a)(1)(B) purports to prevent the Secretary from conditioning the grant of "technical assistance" on the enactment or modification of land use restrictions. This sounds good, and is a refreshing step in the right direction after the Columbia River Gorge debacle, but this section also is inadequate. The Secretary will still wield power through the compact mechanism for achieving the same result. Unless expressly prohibited, the Secretary could also provide other monetary or permitting incentives for such zoning changes. Similarly, the approval of plans could be made contingent upon such changes.
In conclusion, the proposed Act has the potential of severely affecting local governments and private landowners throughout the nation. There are no objective standards for determining the boundaries of the National Heritage Areas and no meaningful justification for the proposed federal program.
Sincerely yours,
JAMES S. BURLING Attorney Pacific Legal Foundation
3. Nonprofit groups presumably refers to land trusts. Why land trusts should be given treatment equal to local governments and private property owners is not explained and does not appear to by an appropriate treatment of local governments and affected landowners.
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