September 13, 2012 —
There’s been a lot of controversy at Upper Delaware Council (UDC) meetings recently with regard to private property rights, and their primacy in the River Management Plan (RMP). The controversy came to a head in the discussion leading up to the adoption of the UDC’s five-year plan last week. The document is prefaced by the results of a poll on the council’s top priorities that had been taken at a workshop in June, which in draft form listed “protect and respect private property rights and land use” as number one.
A number of members objected to leaving this result in the final draft, partly on the basis of faulty voting procedures, partly because not all member townships had a vote, but perhaps mainly because many felt that presenting the protection of private property rights as the single top goal is to misrepresent the RMP’s fundamental intent. They eventually agreed on a rewording that, with a couple of minor changes, combines the number one and number four goals specified on page 13 of the RMP itself. The resulting verbiage in the final five-year plan is: “Protect the unique scenic, cultural and natural resource values of the Upper Delaware Scenic and Recreational River and its immediate environs [number one] while protecting private property rights [number four].”
The discussion leading up to this resolution was lively, however, and it’s clear that an understanding of how the protection of property rights fits in with the RMP will continue to be the subject of debate in coming months. This seems like a good time, therefore, to review the RMP in detail to get an idea of the entire context of this issue.
Interestingly, the instance of the phrase “private property rights” quoted above, from page 13, is the only one in the entire RMP, according to a computer search. The related concept that does recur is that of local jurisdiction over land use. Indeed, at the meeting that point was stressed by National Park Service Superintendent Sean McGuinness, speaking about the exercise of that local jurisdiction as the way the RMP actually goes about protecting private property rights. A passage on page viii of the plan probably sums it up most concisely: “The River Management Plan clearly contemplates, and is predicated upon, local land use authorities, local discretion, and local land use enforcement.”
And what is the ultimate goal that the RMP uses that local authority to attain? The answer lies in the Wild and Scenic River Act, the federal legislation for which the RMP is an administrative document. In section 10, the act says, “(a) Each component of the national wild and scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values. In such administration primary emphasis shall be given to protecting its esthetic, scenic, historic, archaeologic and scientific features” (emphasis ours).
Thus, the primary goal of the legislation, and by implication the RMP, is to protect the values for which the river was designated. Other uses are not to be interfered with, but there is a caveat to that non-interference principle: those other uses must not jeopardize the values for which the river was designated.
So, while it could be argued that the raison d’etre of the RMP is to carry out the law in a way that respects the right and ability of local municipalities to legislate their own turf, if there were ever a conflict between letting some individual landowners do whatever they wanted with their land, and protecting the river resource, it would not be a tie. That’s what conformance reviews are all about. If a municipality either has laws and ordinances that settle a conflict between protecting the river and some incompatible land use in favor of the land use—or if its ordinances are consistent with the RMP’s guidelines but the town fails to enforce them—that’s exactly when a municipality should be declared out of “substantial conformance.”
The rewording of the UDC’s top priority for the next five years was an important recognition that protecting private property rights, on a stand-alone basis, is not the primary goal of the RMP. But protecting property rights “insofar as consistent” with the protection of the values for which the river was designated is indeed a legitimate and important concern. Understanding and maintaining this delicate balance will continue to be a focus of the UDC over the next five years, and we are encouraged to see that the members were able to agree on phraseology that better reflects it than the original draft.