Friday, May 29, 2009
NDPC Investigates by Jacqueline Dotzenrod
Issue: Property Rights
The fate of property rights in central North Dakota is up to one man. Will Tracy Potter allow private landowners to retain their rights?
That is the question citizens in central North Dakota are asking now that half a million acres surrounding the Missouri River is designated as the Northern Plains National Heritage Area.
“I really feel like they didn’t want us to know about it,” landowner Ramona Sailer said. “I think this whole thing was railroaded through… The private landowner really should have more say.”
Sailer and her daughter own land in Mercer County which is included in the National Heritage Area. They knew nothing about this designation until after President Obama signed it into law this past March.
“This is the biggest regulatory taking in the history of North Dakota,” ND Farm Bureau board member Wes Klein said. “Theodore Roosevelt National Park is only 70,000 acres. This bill took half a million acres of private property from Huff Hills to the north end of the Knife River Indian Village and handed it over to a public foundation (the Northern Plains Heritage Foundation). It gave them the right to write a management plan for private property.”
A National Heritage Area (NHA) is designated by Congress and defined as a place where natural, cultural, historic, and recreational resources combine to form a cohesive, nationally distinctive landscape arising from patterns of human activity shaped by geography.
“To me, that states that every square inch of the United States could be part of a National Heritage Area,” ND Farm Bureau spokesman Steve Finsaas said. “At some point in time, everyplace has been shaped by a pattern of human activity under one of these classifications.”
Currently, there are 49 total NHAs throughout the United States. The Northern Plains Heritage Area in North Dakota is part of the newest batch created by the Omnibus Land Management Act of 2009. It encompasses 800 square miles in five counties – Burleigh, McLean, Mercer, Morton and Oliver.
While NHAs are designated by Congress, it is the National Park Service that monitors the program. The NPS lists four “critical steps” that need to be taken prior to designation of an NHA which include the completion of a feasibility study, public involvement in the study, a demonstration of widespread public support among the area residents and commitment to the proposal from the local government, industry and private, non-profit organizations.
In the early months of 2006 the Northern Plains Heritage Foundation had representatives visit with the five county commissions as well other local government and non-profit organizations about conducting a feasibility study. Many organizations, including all five county commissions, expressed support of a feasibility study. However they got much more than they bargained for.
“I know the city council here in Stanton gave approval for a feasibility study, but now all of a sudden we have an all-out law in effect,” landowner Joe Grannis said. “I’ll be contacting Mr. Dorgan and going to the planning and zoning meetings from now on.”
But even before these local entities were contacted about having a study done, there was already legislation being introduced on Capitol Hill to get the NHA designation.
Senator Byron Dorgan first submitted legislation to create the Northern Plains National Heritage Area in 2005. In following years, Senator Kent Conrad co-sponsored similar legislation and Representative Earl Pomeroy also submitted a companion bill.
“The feasibility study produced by the Northern Plains Heritage Foundation did not meet all of the criteria for designation as an NHA,” NPS Assistant Director Katherine H. Stevenson said. “It did not include the existence of significant levels of public involvement and support and the local commitment necessary for successful planning and implementation of a NHA.”
But that didn’t stop the bill from becoming law on March 30, 2009. Now that the designation has been laid upon the land, the NPHF Board has the authority to write a land management plan over all 800 square miles of property.
“The legislation itself does not create adverse impacts to what you can do with your private property,” Finsaas said. “It does not create regulation. It’s the management plans that are written up, that’s what imposes the regulations. They (the NPHF board) have a perceived historical vision of what they want this area to look like and that’s what they want the landowners to comply with.”
The NPHF Board is led by Sen. Tracy Potter of Bismarck. The board was initially formed in 2005 and its membership has remained unchanged since 2007. Only one person on the nine-member board resides outside of the Bismarck-Mandan metro area, which is a big concern of rural property owners who stand to be affected the most by the board’s decisions.
“There needs to be some ideological diversity on his (Potter’s) board and we need to have landowner input,” Klein said. “I call it ‘his board’ because right now, Tracy Potter makes all the decisions on the National Heritage Foundation Board.”
As Executive Director of the Board, Potter is the only one who can nominate new additions to the board.
“He has agreed to look at anybody’s name (for new membership),” Klein said. “But right now there is no process to get on the board except through Tracy Potter.”
While landowners still have the ability to elect their local zoning board and county commission, the NPHF board will have the funding to coerce local governments to comply with its plan.
“The local zoning entities will still be the local zoning entities,” Finsaas said. “However (in other NHAs) there is a lot of pressure put on the local zoning entities by the Heritage Area Foundations. They put the pressure on them to conform and some of the pressure is financial.
Along with the authority to write a land management plan, the NPHF board will also have access to $15 million over the next 10 years contingent upon its ability to find matching funds.
“(The board will say) ‘If you do not follow our preservation goals, we’re not going to funnel money into projects in your area,’” Finsaas added. But what Ramona Sailer still wants to know is why this designation was put in over her heard without anyone asking for her input as a property owner.
“Byron Dorgan needs to come up here and answer those questions,” Klein said. “Why did he secede private property rights to the NPHF board without first coming to you, Ramona and saying ‘We’re looking at this ma’am, what do you think?
“It’s too late now for Tracy Potter to come back and say you know what Ramona, you’re in the NHA, how do you feel? We think it’s great.”