When ‘wild and scenic’ spells trouble

OPINION:

“When I heard Congress might name our Crystal River ’wild and scenic,’” a man in a town meeting in tiny Marble, Colorado said earlier this summer, “I was thrilled.” Reflecting on the river that rises in the Elk Mountains of northern Gunnison County, cascades through the ghost town of Crystal City, and flows past Marble and into Pitkin County to join the Roaring Fork River, he remarked, “It is ’wild and scenic’ and we are glad for its well-deserved recognition.” That was before he learned designation gives the federal government, which owns 78 percent of Gunnison County, power over his property. Many of the 60 locals behind the fire station’s opened bay doors agreed; later, 50 signed a petition against federal action.

Previously, many had been swayed by environmentalists’ assertions that designation was a homegrown undertaking — friends, neighbors, and local governments would write the rules by which they and their property would be governed. In fact, the Town of Marble and Gunnison County endorsed the proposal. Fully informed by a grass-roots campaign by the Crystal River Land and River Foundation, word of mouth, and the midsummer meeting, the consensus became “no designation.” Last week, Marble reversed its position; Gunnison will likely soon follow.

The Wild and Scenic Rivers Act, passed in 1968, gives federal agencies authority to preserve the reasons for which a river was designated — “wild,” “scenic,” “recreational” — or part of each on different sections of a river. The act authorizes involvement by a host of federal agencies in river management and various federal statutes have enhanced significance on a designated river. Environmentalists argue the act contains no land acquisition authority, but, in fact, federal agencies can condemn up to half the private land in a half-mile corridor along the river. Agencies may also condemn easements, such as those to cross private property to access “scenic areas.” It is not the river but the land that is of most interest to agencies and environmental groups. Legislation adding a new river may include language that differs from the act, but can federal agencies and their lawyers be trusted to protect property rights?

Consider Wyoming’s Marvin Brandt who, armed with a federal “patent,” well-known provisions of property law, and a 1942 ruling of the Supreme Court, fought federal lawyers for eight years to keep his land. Consider Michigan landowners whose neighbor, the Forest Service, tried to deny them water rights guaranteed by Michigan for 176 years; their resort to state law, the “valid existing rights” protection of federal law, and a federal court ruling that the agency has no authority over them was futile. Consider the Scots-Irish family that settled in Arkansas in 1808, 100 years before establishment of the Ozark National Forest. Beginning in the 1960s, agency employees, supported by their lawyers, trashed, trespassed upon, and stole from the family, flouting boundary lines, truth, and accountability for decades.

Westerners have long opposed attempts by federal agencies to engage in land use planning on their private property; yet the act lets them do it. As to the ability of the federal government to make timely decisions when land use is proposed, consider the Louisiana man who won a federal energy lease in 1982, but has been denied a permit to drill there. A federal judge called his wait, “Kafkaesque.” Finally, agencies see property owners as either “willing sellers,” or, like the schoolyard bully who says his victim was “asking for it,” those “who want to be condemned.”

Noted one speaker at the meeting, because only one tenth of 1 percent of Colorado rivers are designated, “We ought to find out what other landowners know.” They might also ask Jenny Barnes Butler, author of “Stolen Water, Forgotten Liberties: A True Story of Life Along Arkansas’ South Highway 14 and the Buffalo River” (Hellgate Press, 2014). There, Congress gave the river to the federal government, which kept no promises, stole land, and left misery in its wake.

• William Perry Pendley, a lawyer, is president of Mountain States Legal Foundation and author of “Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today” (Regnery, 2013).