Fish and Wildlife Version
Bo W. Thott
1994
Half of responding landowners selling to the Fish and Wildlife Service indicate they sold under some degree of pressure although they are misleadingly labeled "willing" in official literature and testimony. Wetland and ponds useful for water fowl tended to be ceded willingly whereas land for mammals and reptiles was sold reluctantly. Open threat of condemndation was infrequent.
Why the survey was made
For several years, Washington County has been the target of Federal, state, and preservationist efforts at setting aside privately-owned land as parks or protected areas causing local landowners to form a property-rights group, the Washington Countv Alliance (Alliance), in 1988.
1.1 The National Parks and Conservation Association recommends that Congress make eastern Washington Countv into a federal park, 1988.
1.2 The Maine Coast Heritage Trust buys the shore properties Western Head (210 acres) and Boot Cove (700). 1988-89.
1.3 Cutler and Lubec landowners find out that the Maine State Planning office, under contract with the Park Service, for 10 years had secretly surveved 18 miles of shoreland for designation as a National Natural Landmark, eligible for Park status. Upon request, senators Cohen and Aitchell intervened and governor McKernan ordered the survey withheld. 1988-89.
1.4 The Maine chapter of the Nature Conservancy, without notifying the town of Beals Island, proposes to the Park Service that 1,600 acres of the adjoining Great Wass Island be designated a Natural Landmark; withdraws proposal after town meeting unanimously objects. 1989.
1.5 The Conservation Fund buys 12,000 acres of land in Cutler and Whiting, resells 2,200 coastal acres in Cutler to State of Maine for management bv Bureau of Public Lands. 1989. At the time this report is being prepared, the Conservation Fund proposes to donate the approximately 10,000 acres to the Moosehorn Wildlife Refuge (Moosehorn)
1.6 The Nature Conservancv buys the Bellier Cove planned development for later transfer to Moosehorn. 1989.
1.7 Moosehorn expands in Cobscook Bay, adding 2,665 acres, going back on its commitment at a Pembroke meeting to exclude unwilling landowners, some with properties in the family since the American Revolution. 1990.
Several letters from the landowners to the FWS regional office in Boston repeating oral requests to be excluded go unanswered. Telephone calls to the same office have no results.
The Regional director, Ronald Lambertson, said the Pembroke meeting was only informational in nature rather than a hearing. He claimed the offer bv a member of his staff to exclude unwilling landowners was contrary to official policy and would defeat the purpose of the proposal. He labeled a transcript from a videotape recording out of context.
The dilemma of the objecting landowners received extensive coverage in the New York Times in Auqust 1992, which caused George Frampton, Jr. of the Wilderness Societv to reassure the readers in a letter to the editor. He asserted that Federal land agencies acquire land from willing sellers and do not use condemnation for their expansions except the National Park Service in a few Florida cases. The public objections, he claimed, are the result of hysteria whipped up mostly bv the mining industries. Half a year later, Frampton became the Assistant Secretary in Department of the Interior with supervision of the Park Service and the FWS.
The Alliance became interested in finding out the truth of Frampton's claim that sales to the Federal agencies were made willingly. Requests were made under the Freedom of Information Act (FOIA) for the addresses of private landowners having sold to the Park Service, the FWS, and the Forest Service in fiscal -vear 1992.
The Park Service responded and the Alliance conducted a survey, publishing the result in April 1993 under the title Willing Seller Willing Buyer, Park Service Version. This report was later referred to by the federal court in Bangor, Maine as "unflattering" to the Park Service.
FWS and the Forest Service both turned down the FOIA requests citing the need for privacy under exemption (6) of the Act. The FWS did send a list of the names of the land-sellers which was of little practical use without their addresses. The author decided to take the case to court, beginning with the FWS.
Going to Court
The trial took place in the Federal District court in Bangor, Maine in February 1994 and a decision rendered in April. The central point was the FOIA privacy rule which exempts: "personnel and medical and similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy." Over the years, the definition of 'similar files' has been enlarged by the courts to comprise just about any files in a manner similar to the judicial redefinition of 'wetland' as inland waterways even if dry.
Even so, the court found for the author. Although release of addresses would constitute a degree of invasion of privacy, a balance was to be struck between the need to find out what the government "was up to" and the minimal invasion of privacy. The FWS was ordered to furnish the addresses but appealed the decision.
Under instructions by the Appeals court in Boston to search for a compromise, the FWS was willing to withdraw its appeal and immediately settle with plaintiff in regard to legal expenses and furnishing the bulk of addresses if it could withhold 52 addresses in the Northeast. The FWS agreed to a counter proposal to mail out the Alliance survey forms to those 52 addresses. Plaintiff accepted the restriction in order to receive reimbursement for legal expenses and to escape another 20 months of delay, making additional addresses obsolete.
The reason for the withholding is unclear. Were the takeover transactions in the region to be shielded from close scrutiny? No explanation was given.
The survey
The survey form was mailed out nation-wide to 498 private landowners on the lists furnished by the FWS after institutions and estates had been removed. The author declined to have the FWS make distribution to the withheld addresses because of discrepancies of the FWS lists described below and the lack of control a survey by proxy would entail. The Alliance mailing was completed by early October 1994. Twenty six forms were returned as unforwardable and thus 472 were likely to have been delivered. As of November 30, 1994, 130 responses had been received (28%) of which 3 were not applicable and 14 concerned sales of easements rather than land. Thus 113 responses presumably reflected sales; 55 had comments added.
The survey is somewhat affected by discrepancies in the lists provided bv the FWS, which tend to lower the percentage of those landowners selling under pressure. Before the trial, the FWS sent a list of 300 private names without addresses whereas the address lists furnished after the trial contained 198 additional private entries, mainly from the Dakotas. If 198 we add the 52 addresses from the Northeast withheld by the FWS under the appeal agreement, the divergence grows to some 250. Thus, either the original name list was incomplete or the second address list padded. Of the 32 responses received from South Dakota, comments revealed that 14 were easement items but in the absence of comments from others, we do not know if they were bona fide sale items or easement items. If we prorate, there could be some 60 (irrelevant) easement addresses among the 169 from South Dakota. The responses from the northern tier generally indicated transfer (of title or easement) without pressure.
Responses to numbered questions
Because some boxes were not checked off, the totals vary.
4.1 Did you expect your land to be condemned eventually if you did not sell? The YES replies indicate sale under pressure.
26 YES 81 NO
One man entered a question mark but commented. "I felt my propertv might be condemned; however I was assured that' condemnation was not to be involved." [148,AL)
4.2 Did the FWS representative tell you your land would be condemned if you did not sell? The YES replies indicate sale under pressure.
5 YES 103 NO
4.3 Did the FWS write vou that vour land would be condemned if you did not sell? The YES reply indicates sale under pressure.
1 YES 106 NO
4.4 Had earlier state or federal restrictions on your land reduced its usefulness? The YES replies indicate sale under pressure.
41 YES 65 NO
One commenter marked YES but comment said: "The FWS offered much more than the market price. This, of course, induced many people to sell." The FWS is legally required to pay the market price as if there were no restrictions and the comment thus indicates that the owner had accepted the restrictions with their inevitable reduction of commercial value. Possibly, as the years went by, he and his neighbors forgot the impact of wetland restrictions on market prices. [N91,CO]
4.5 Could you have sold your land privately at a fair price if you had so wanted? The NO replies indicate sale under pressure. Ten forms had no entry which could indicate that the sale was of an easement rather than the land.
68 YES 35 NO
One commenter had marked YES but wrote: " ... had to accept whatever they offered me because the land was useless under current restrictions. If there were no restrictions, I could have gotten a lot more but had to settle for whatever I could get .... had no choice The comments thus negated the YES and indicated sale under pressure. [N33,FL]
Marked YES but comment said: "No one was interested in buying it privately." Thus the answer was in effect a NO. (N263,SD]
A Florida owner stated that the FWS had prevented her from selling for four years so as not to endanger the Key Deer. Yet the FWS declined to buy. She cited another case as well. [N60,FL)
4.6 Were you at any time taken to court for condemnation of your land?
0 YES 109 NO
4.7 May the FWS release its Summarv sheet on the sales negotiations to us?
62 YES 22 NO
Of the 113 valid replies slightly over half indicate that the sales were made under pressure - 59 - and that the remaining 54 were voluntary sales.
The locations of the sales are deduced from the addresses on the FWS lists, although in some cases the sellers may have moved by the conclusion of the deal. The inaccuracy is believed to be negligible for this analysis.
The 54 voluntary sales are found mostly in a belt across the northern states of the contiguous US indicating sales (or in some cases easements) of wetland or ponds for water fowl. South Dakota had 15, Iowa 5, North Dakota 3, Wisconsin 3, Minnesota 3, Nevada 2, Colorado 2, and Montana 2 presumably voluntary sales. Several other states had one each. Some of the commenters discussed transfer of ownership of potholes, the local term for the roundish ponds dominating much of the landscape in the Dakotas as seen from low-flying planes.
The absence of pressure to conclude the sales may be explained bv the relative uselessness of the wet areas in question; awav from human habitation and scenic areas, and not dry enough for farming.
The 59 involuntary sales were mostly in the southern half of the US: 15 in Florida, 4 in North Dakota, 3 in South Dakota, 3 in California, and the remainder scattered over the US. From a few comments it appears that the sales were of land closer to human habitation and for the safeguarding of mammals and reptiles.
Comments received
The original spelling has been retained.
* I never heard F.W.S. tell anybody their would be condemn. Thev told me and other it was Free Choice. I think they are good honest people. (20,IL)
* I wish FWS would take care of (spray, mow etc) of what they own before they buy more. [24,MN]
* ... they were willing buyers and I a willing seller. 7 [19,WI]
* It is unofficially understood in this area that Illinois Conservation Commission will eventually condemn any land that Fish & Wildlife wants and in turn sell the property to Fish & Wildlife. [35,Mo]
* ... was told verbally thev would condemn. (marked NO on question "did FWS tell you your land would be condemned"] [36,NV]
* ... no pressure to sell our farm [69,WI]
* The land I sold to them in 1985 ... I got $800.00 per acre, I didn't know it had gone down to half price. They said they had the power of eminent domain. [70,MN]
* Save the wild flowers & Ox Cart Trail for all the people for all times. [75,MN]
* ""Government" is locking up too much land by a variety of coercive methods. My particular sale was voluntary, but it was a buyer's, market. (79,WA]
* ... sometimes I wonder if I done the right thing, now different people approached me .... I would have liked them to had it. [189,MN]
* ... tried to sell it to no avail. [FWS] ... offered me as much as I could have gotten privately (even though no one would buy it privately) [93,AL]
* ... held off for a better deal, but FWS said, under Fed law they would only pay fair market price. So, in a way I feel we were pressured to sell. [99,AL]
*FEDs identified my lots as high value wetland. [Restrictions YES] [103,MD]
*Earlier restrictions were mostly County to slow the rate of growth..,.also a growth management plan by the state.... (114,MI]
*I tried to sell .... The real estate people would not list my land as they said I could only sell to the [FWS] .... all said the same The County... said I could not build on it... so I sold to the FWS. (120,FL]
*(Reference the Restriction question] In the 30's the Federal Government acquired an interest in lands adjacent to the Mississippi River in connection with the lock & dam construction.... rights which may have affected these lands .... (133,MN)
*I was pressured to sell .... The local government changed the zoning to "wetland" so the real estate person said ... this was my best way to sell my land. When I bought... it was zone commercial. [138,CA]
* Pressure to sell originally came from realtor who put package of land together for FWS. ...local government changed zoning to WETLAND so agent advised it would be nearly impossible to build or develop... only chance for me. (145,AL]
* My lots were fairly central in project and if all other properties were acquired I felt my property might be condemned; ... given a copy of the Federal wetlands charts which included my property; however mv property was in no way wetlands. [148,AL]
*The lot was assesed at $16,900 and taxed at that rate. Professional appraisals best offer was $9000, the sale price. Wetland regulations covered a portion of the lot. (Restrictions YES] (149,WA]
* Due to the STATE & County restrictions ... my land lost its value completely. I checked with an appraiser ... the lot should have sold for 50,000 more! He suggested I take FWS' offer because ... I could not sell to a private party.... I feel ... my rights ... were violated. [162,FL]
*I was happy to sell my land to the Fish and Wildlife Service and was under no pressure [197,MS]
* ... if I did not sell, I would never be able to obtain a building permit... I knew that the lot was worth more ... who would buy a lot... that you couldn't get a permit to built on? (230,FL?,Canada]
*[the County] deemed my two lots ... to not having a building right, unless you had 5 lots. Like you could figure people wouldn't be lining up for lots without a building right. [237,FLI
* ... tried to sell with no offers -- too many restrictions and impossible to get a building permit. I lost propertv in Marathon ... the state devalued it to $50 and called it wetlands .... had been sold ... as buildable property.... (253,FL]
* All beachfront should be left vacant & used by everyone for bathing, etc. Especially for the turtles! (254,FL]
*.... The F&WL Service cannot condemn our land -- the sales are voluntary. I am strong for what the Service and the Nature Conservancv is doing in our area. (Modified in response to letter of inquiry:] I do not deny that in extreme cases the [FWS] has the right of condemnation,....[257,AR]
*I was told that if I didn't sell to them I would have to keep pay propertv tax, and still be unable to sell or use it. I could have sold for over $200,000 they paid about $100,000. [260,FL]
*I was well satisfied with the dealings I had with [FWS]. (283,SD]
*(As if addressed to the FWS] Your representatives ... were a real asset... [299,ND]
*The FWS designed a Wild Life Refuge ... part ... was my land. The plan was printed and shown...,saw it for the first time. (NO7,OR]
* ... had ... listed the property with a realtor, prior to receiving an offer from FWS. [Nl4,MA]
* We could not get permits. [Nl7,MN]
*... the land was useless under current restrictions. If there were no restrictions, I could have gotten a lot more.... Felt I had no choice .... [could have sold privately YES] (N33,FL]
*I wanted my land, so that when I would retire I would build my home .... It was a long life's dream.... I feel left out.... [N32,,FL]
* I had been wanting to sell. [N38,FL]
* Enclosed find last tax notice .... [N43,Ml] land in
Florida, bought for deer movement corridor]
*The whole idea is an infringement on our property rights (Key deer are not worth it) [N47,FL]
... I was told 2 lots wasn't enough to build on... told by a local realtor we couldn't sell it because of the restriction of needing 5 lots to build .... we sold ... seemed the only thing we could do... sorry we didn't fight it in court [N53,FL]
* ... I own additional land that the F&W have had on hold for over four years, not allowing me to sell it because thev feel it will interfer with the Key Deer on Big Pine Key... When the Monroe County School Board wanted to purchase this for a school, after lengthy consideration... thev were turned down. ...when I approached the F&W about them purchasing the property, thev told me "It is not on our acquisition list." Whv should it be when thev can use it for nothing. When the school board found other property which had already been developed, thev were also told they could not use it! Now another property owner ... is being told that he can not sell to the McDonald Corporation, because McDonalds would create too great a hazzard for the Key Deer. There are other cases WE NEED HELP. [N60,FL]
* ... they had pointed out to me, if I didn't sell the land they could invoque this rule and I would have to sell them the property anyway. (N63,FL]
* We were 100 % satisfied with the FWS .... [N64,NC)
* There was never any mention of condemnation, but it was certain due to the location of part of the land. ...wet woodland.... [N91,CO]
* I decided to sell ... to the FWS because the federal regulations on potholes & their use had rendered them very nearly useless .... [Nl33,ND]
... a wonderful thing to keep our wildlife here ... [Nl43,ND]
* I was verv pleased with the sale. [Nl5O,NE] 20+ acres of the 100 acres ... sold ... was wetland & could not be farmed. We have been... conservationists all our lives .... [Nl5l,OR]
* The FWS handled itself very professionally. [N205,SD]
* I understood what I was signing. [N211,SD]
* Voluntarily entered property in wetlands program.... [N319,CO]
* My concern about FWS and others is them thinking too highly of their seniority. As a farmer I raise the pheasants, then I should pay to hunt them and for restoration programs . . . [N234,SD]
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