Wednesday, December 09, 2009
BS Alert by Brett Narloch
Issue: Property Rights
For many years, Sen. Byron Dorgan tried to get the US Congress to pass a bill that would designate five counties in central North Dakota the Northern Plains National Heritage Area (NPNHA). In March 2009, President Obama signed a bill making that designation.
The NDPC has detailed the many ways that Heritage Area designation harm property rights. The NDPC also broke the story that State Sen. Tracy Potter misled Congress into thinking that there was widespread public support for the designation. Potter stated that public hearings were held and support for the designation was unanimous. Public hearings were never held.
Throughout this entire process, Sen. Dorgan has maintained that a Heritage Area designation does not harm property rights. Supporters of the NPNHA argue that because there is a clause in the federal code specifically stating that property rights will not be harmed, then it must be so.
To reassure property owners, and with the nudging of the NDPC, Sen. Dorgan amended the bill that will fund the Northern Plains Heritage Foundation (NPHF) to ensure that landowners will not be included in the heritage area until they specifically request to be in it (the amendment did not go far enough).
For those who do opt to take part in the programs offered by the NPHF, they will be subject to a management plan written by the NPHF. They can receive federal funding from the foundation if they meet the guidelines put forth by the NPHF.
Now, Sen. Dorgan is threatening to block the nomination of the North Dakota Badlands from being added to the National Register of Historic Places because he believes that land-use will be restricted in the area.
When property is added to the National Register of Historic Places, it is eligible for federal money to be used to preserve the historic nature of the property. If the property owner wants to makes changes to the listed property, it must get "comments" from the Advisory Council on Historic Preservation.
What are the differences between a National Heritage Area and property being added to the National Register of Historic Places as they relate to property rights? Very, very little.
Take a look at the following table:
| National Heritage Area | National Register of Historic Places |
| Administered by the National Park Service. | Administered by the National Park Service |
| The landscape must have nationally distinctive natural, cultural, historic, and scenic resources. | The official list of districts, sites, buildings, structures, and objects significant in American history. |
| Offers an innovative method for... [the] Federal government... to shape the long-term future of their communities. | Consideration for federally assisted projects. |
| Property can only be voluntarily included | Property can only be voluntarily included. |
| Run by a government-selected non-profit. | Run by government-selected professional review |
| Nothing... alters any land use or other regulatory authority. | There are no restrictions on the use, treatment, transfer, or disposition of private property. |
The fundamentals of these two National Park Service programs are virtually identical; yet, Dorgan believes one will restrict land use, and the other will not.
The question is: why?
I suspect there are two reasons, among possible others:
By blocking the nomination of the Badlands being added to the National Register of Historic Places he is trying to make up for previous mistakes, such as fully supporting and sponsoring the designation of the NPNHA.
Dorgan knows that there is a lot of gas and oil underneath the Badlands and does not want to tick of North Dakotans, particularly those in the energy industry, by being complicit in activities that restrict where natural resources can be extracted.
There may be other reasons as well. However, the fact that there are very few differences between National Heritage Areas and the National Register of Historic Places signals that there is something going on that made Sen. Dorgan suddenly change his mind regarding property rights. The National Register of Historic Places is BS.
