“Willing Seller” Authority: What Does It Mean for Our Trail? Tom Gilbert NPS Superintendent
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enator Carl Levin has been the most devoted and consistent champion of the North Country National Scenic Trail (NST) in Congress. The first time I met him was at the spring Board of Directors’ meeting the year The Shack opened its new wing (Jugville, Michigan, where the spring meeting was always held in those days). We discussed the trail, the roles of the various partners, and the needs for completing the trail. I explained that while the National Park Service (NPS) was spending millions of dollars to acquire lands for the Appalachian NST, the Federal Government had no authority to spend funds to acquire lands for the North Country NST, except for one interpretive site per state. I will never forget his question in response: “Why isn’t the trail in my state as good as the Appalachian Trail?” Not long after, Senator Levin introduced a bill to provide the North Country NST, and the other eight national trails with similar limitations, with authority to acquire lands from willing sellers, the same level of authority which Congress was giving to new scenic and historic trails it was authorizing at that time. It went nowhere in the legislative process. It was reintroduced in the next five Congresses before finally being passed by both the House and Senate this spring as part of the Omnibus Public Lands Act, Public Law 111-11, and being signed into law by President Obama on March 30. The Act deleted the language from section 10(c) of the National Trails System Act [16 USC 1249(c)] that prohibited the Federal Government from spending funds to acquire lands for the North Country NST and eight other trails. It then added the following sentence to the North Country NST’s authorizing paragraph [16 USC 1244(a)(8)] to make it clear that the Federal Government may NOT use eminent domain (condemnation) to acquire lands: “No land or interest in land outside the exterior boundaries of any federally administered area may be acquired by the Federal Government for the trail except with the consent of the owner of the land or interest in land.” Wow! We have land acquisition authority! That means the NPS can start buying land for the trail. Let’s get going! Whoa! Not so fast. First of all, the recent law gave us only the authority, not the money. Funds that might be used to acquire lands for the trail must come through annual Federal appropriation bills. There are many competing needs within the National Park System for the limited acquisition funds that Congress gives us each year. www.northcountrytrail.org
Then there are other realities which we will have to take into account: • There are approximately 2,000 miles of trail yet to be established across private lands—an enormous task, contemplation of which is nearly overwhelming. • At best, it is likely the trail would get only a few million dollars for land acquisition each year. We will need to figure out a process for identifying the “willing seller” acquisition opportunities and then prioritizing the use of the limited funds we receive to purchase the most critical lands needed for the trail. • We will have to figure out who will do the acquisition work. Should the work be done by the NPS Midwest Region real estate staff in Omaha? Or the NPS National Trails Land Office in Martinsburg, West Virginia? Should the NPS establish a real estate function as part of its North Country NST administrative offices? How can the work of these real estate agents be guided by someone who is sufficiently knowledgeable about the details at any point along the trail where an acquisition opportunity arises? • Should we purchase fee title or an easement? Who will make that decision? To what extent should that decision be left to the landowner? The real estate agent? Should the NPS acquire the lands, or should we seek • authority to grant the funds to states and other partners, particularly those who may be able to match the Federal funds, as was done with the funds appropriated for North County NST land acquisition in Wisconsin in Fiscal Year 2000? • We will have to figure out a way to manage any lands to which the NPS takes title. Following the example of the Appalachian Trail, we will likely seek to enter into an agreement with the North Country Trail Association (NCTA) to do the onsite monitoring and management of these lands. • The government acquisition process can be very slow. When critical, desirable lands are suddenly put up for sale, will the government be able to act fast enough to acquire them? Partnering with a non-governmental land conservancy that can act rapidly to acquire these lands on an interim basis may be critical to success in these situations. Could the NCTA develop the capacity to play that role? There is nothing more important to establishing a hiking trail than securing the lands on which to establish the trail. That the Federal Government, particularly the NPS, now has the authority to participate in this part of the work is a huge step forward. Many thanks are due Senator Levin for his leadership over the years to achieve this success. Beginning this fall, we will work through these questions to outline procedures for using this authority to benefit our mutual efforts to protect the trail. Our partners will have to demonstrate to the Congress that important opportunities to use this authority exist, and that it is critical to follow up with funding each year to make the authority truly potent. July - September 9
The North Star
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