TOWN OF HIGHLAND, NY — The Highland Planning Board is soon to make a decision on whether to allow Camp FIMFO, a $40 million-plus project renovating a historic tenting campsite in Barryville with modern amenities to entice the next generation of campers. 

That decision won’t be the end of the story. The National Park Service (NPS) has a say in what happens along the Upper Delaware River, including in Highland, thanks to the river’s inclusion in the National Wild and Scenic Rivers System in 1978. 

The unique collaborative model established to protect the Upper Delaware envisioned a partnership between the NPS and local governments, with the two working together to oversee development along the river. While that partnership continues, the Camp FIMFO project has pressed on some of the tensions and compromises inherent in the way the system was set up. 

The NPS has declared Camp FIMFO to be out of conformance with the River Management Plan (RMP), the document that establishes guidelines for protecting the Upper Delaware River. Despite that, the project has continued to move forward, leading to a potential situation in which the Town of Highland approves the project despite the NPS’ dissent. 

The NPS hasn’t backed down from its statement of nonconformance. However, if collaborative discussions between the park service, the town and the developers can’t result in an outcome that would bring Camp FIMFO into conformance, the primary tool remaining is eminent domain, a tool that a local expert told the River Reporter the NPS is unlikely to use. 

All of which raises the question: How effective is the RMP at protecting the environment of the Upper Delaware if it can’t be enforced?

Non-conformance

The NPS made the determination that Camp FIMFO did not conform with the RMP in May 2023. The park service’s position remains the same, over two-and-a-half years later. 

Those non-conforming aspects represent significant, fundamental elements of the Camp FIMFO project. According to the NPS, it’s the intensity of the proposed development, and the change that intensity will cause to the existing use of the Upper Delaware, that runs afoul of the RMP, in addition to the project’s use of park model RVs as non-transient lodgings. 

The current proposal before the Highland Planning Board for review includes these non-conforming elements. The River Reporter asked NPS Upper Delaware Scenic and Recreational River Supervisor Lindsey Kurnath what would happen if the town were to approve the project with the non-conforming aspects still attached. 

Local governments within the Upper Delaware retain land-use decision-making, according to the vision laid out by the legislation that brought the NPS to that region, wrote Kurnath. The NPS’ role is to assist state and local governments in meeting the objectives of the RMP, and the NPS has continued work with the Town of Highland on Camp FIMFO to try and protect the resources of the Upper Delaware River. 

“If the town approves a project that includes elements NPS has identified as not in substantial conformance, NPS will continue to document and communicate its conformance findings,” Kurnath said. “NPS will also engage through the cooperative framework Congress established, working with the town, the Upper Delaware Council partnership and other agencies to address specific non-conforming components and reduce impacts to the river corridor’s resources.”

The Highland Planning Board is still in the process of gathering information and writing a response to Camp FIMFO’s Final Environmental Impact Statement, a document drafted by developers Northgate Resorts which outlines every detail of the project. 

“We are still gathering information from out town engineer and some experts we hired for certain areas,” planning board chair Jeff Spitz told the River Reporter. “We will then take all of the information received and start to formulate our response. We hope to have their review/comments within a month or two.”

When asked if the planning board could move ahead with the project despite the NPS’ position of non-compliance, Spitz said he could not answer that question at this time, given that the board hadn’t yet finished its review. 

Upper Delaware Council Deerpark representative Bill Dudko, left, National Park Service superintendent Lindsey Kurnath, UDC executive director Laurie Ramie and UDC Shohola representative and then chair Aaron Robinson talk about Camp FIMFO at a June 2023 meeting.

Eminent domain

The people who established the rules of engagement for the NPS in the Upper Delaware baked in an ideal of collaborative governance, thinking it the best way of protecting this unique corner of the country. However, those rules do also include the possibility of a decidedly non-collaborative action, a break-glass-in-case-of-emergency possibility for land that can’t be protected any other way. 

“The park service has the mechanism to prevent FIMFO,” Glenn Pontier told the River Reporter. Pontier served on the RMP’s plan oversight committee and as a summer seasonal interpretive ranger in the Upper Delaware; he additionally served as the editor of the River Reporter from 1978 to 1995, and currently serves as FOIL officer and health and wellness committee member with the Town of Highland. “If they determine that it’s not compatible with the RMP, right now they have the authority to purchase the property… put a deed restriction in, and then… sell it back on the open market,” he said. 

The legislation that established the Upper Delaware Scenic and Recreational River has a section—Section 704.E.4—dealing with such purchases. Kurnath referenced Section 704.E.4 when asked by the River Reporter about the available enforcement mechanisms for the RMP considered by the NPS. However, Kurnath did not indicate the NPS’ position on the use of that section for Camp FIMFO. 

“Section 704.E.4 of the statute describes a limited federal backstop authority that may be available if specified statutory findings are made regarding conformance and enforcement, and subject to the geographic and necessity limits set forth in the law,” Kurnath said. 

“NPS cannot speculate on hypothetical scenarios,” she added. “Any potential use of the limited backstop authority provided in Section 704.E.4 would be subject to the statutory findings and limits set forth in the law.”

Notes on eminent domain

Eminent domain has a long history of controversy, both locally and nationwide. 

Just south of the Upper Delaware Scenic and Recreational River, along the stretch of the Delaware River currently designated as the Delaware Water Gap, the federal government attempted to construct a dam at Tocks Island, using land taken in part through eminent domain. That effort ultimately failed, after citizens banded together to oppose the project and its seizure of land. One of those citizens, Ruth Jones, founded Kittatinny Canoes, the business that has been bought and is being repurposed as Camp FIMFO. 

The specter of Tocks Dam hung over the Upper Delaware during the NPS’s arrival. The intent of the Upper Delaware’s unique collaborative model was to establish a delicate balance between protecting the river with federal help and protecting local landowners from federal overreach. 

Nationally, eminent domain has been an infrequent tool wielded by the federal government in protecting designated Wild and Scenic Rivers. A 1998 report from the NPS (still listed by the official Wild and Scenic Rivers System website as the most recent technical paper on the topic) says that, until that point, federal agencies had “condemned in fee” (i.e., acquired all of the interests in a piece of property) 1,413 acres of land along Wild and Scenic Rivers, and had “condemned easements” (i.e., acquired a specific interest in the use or protection of a piece of property) in 6,339.7 acres of land. 

“Although eminent domain (condemnation) has never been a prominent method of acquiring lands within wild and scenic rivers, and has almost ceased to be used after the early 1980s, it is still a contentious issue when rivers are being considered for addition to the national system,” reads the paper. 

Locally, eminent domain continues to be a controversial suggestion. A current proposal in the Hudson Valley Town of Red Hook to take the Red Hook Boat Club by eminent domain, for the purpose of creating public recreational space along the Hudson River, has attracted significant public backlash and extended legal battles.

For more, see www.thedailycatch.org/category/red-hook-boat-club. 

According to Section 704.E.4, the NPS can only use eminent domain in Upper Delaware municipalities where the local zoning laws don’t comply with the RMP, or where those zoning laws “are not being enforced in such manner as will carry out the purposes of this section.” In Kurnath’s words, if the NPS were to consider eminent domain for Camp FIMFO, it would need to make “statutory findings” on one of these two points; it would need to find either that Highland’s zoning doesn’t comply with the RMP, or that it’s not being enforced properly. 

The use of eminent domain is also subject to certain overall limits. The NPS can only buy land that’s “clearly and directly required” for the protection of the environment (i.e., the ‘necessity limits’ referred to by Kurnath), and it can only buy 100 acres per mile on both sides of the river (the ‘geographic limits’). 

Eminent domain is a controversial and seldom used protection tool. See sidebar for more. 

Overreach, underreach?

The process of negotiating and renegotiating the NPS’ role in the Upper Delaware started long before the first park ranger boot touched the riverbank. It continues to this day, with a division between people who want the NPS to take a more active role and people who want the NPS to stay hands off, a division that’s highlighted by the Camp FIMFO development. The collaborative model active in the Upper Delaware means the towns and townships along the river have much more say than they would if the area had been designated a traditional national park. To some, it’s what the local municipality says that should reign supreme over the river’s direction. 

“It’s really the town’s responsibility for their future, not the park service,” Rick Lander told the River Reporter. Lander owns Lander’s River Trips, a canoe livery along the Upper Delaware, and served on the RMP’s plan revision committee. According to Lander, as long as a town’s zoning complies with the RMP, the town is allowed to do as it pleases. 

The River Reporter asked Northgate Resorts, the national corporation behind FIMFO, for its position on FIMFO’s conformance with the RMP. According to Chelsea Bossenbroek, Northgate’s general counsel, “We will continue to work with the town on ensuring the project conforms with all local zoning laws—which were already reviewed by NPS and determined to be in conformance with the RMP.” That is, because the town’s zoning laws were approved under the RMP, Northgate is focused on FIMFO’s compliance there, not its lack of compliance with the RMP directly (as determined by the NPS). 

It’s unclear whether FIMFO’s compliance with Highland’s zoning would be enough to eliminate the possibility of NPS enforcement. The enabling legislation’s Section 704.E.4 language includes the requirement that zoning be enforced so as to conform with the RMP, not just the requirement that the plans themselves conform. 

It’s happened before that a municipality along the Upper Delaware approved a project past NPS conformance, said Pontier. In one such case, the Lackawaxen Township Board of Supervisors approved a proposed expansion of Holbert Quarry, despite that expansion impeding on the area protected under the RMP. While the NPS, the UDC and the nonprofit Delaware Riverkeeper Network initially opposed the expansion, they stepped back after the Pennsylvania Department of Environmental Protection (DEP) explained what the conditions of the mining permit would be. 

According to then-UDC chair Nadia Rajsz, in a letter to the DEP, “We feel that the [National Pollutant Discharge Elimination System] NPDES) permit does protect the outstandingly remarkable values of the Upper Delaware Scenic and Recreational River through regulation of surface discharge and appropriate erosion and sediment controls… The NPDES permit is viewed as an adequate compromise to accommodate the interests and goals of all parties.”

Pontier also pointed out the Pond Eddy Bridge and the Skinners Falls Bridge, two instances where historic bridges across the Delaware River had been taken down, as instances where the NPS had been unable to prevent harm to the river. On the other hand, he said, the NPS also has stepped in at other times, such as in a proposal to put a hydroelectric dam on Shohola Creek, impacting the flow of water into the Delaware. 

While the NPS has been urged to use eminent domain on previous occasions, it has never done so, Pontier said. It’s the nuclear option, he said; if the park service uses it, “All hell’s going to break loose.”

However, he added, were the park service to use it even once, its enforcement of the RMP would gain significant teeth. “Right now they’re a paper tiger,” he said. 

“They can do it; they should do it,” he said. All the NPS has to do is say that if Northgate goes through with its plans, the park service will purchase the property, he said. “I’m not sure that the park service has it in them to do it.”

Kittatinny general manager Rocco Baldassari, right, points out the location of Camp FIMFO's different amenities, as attorney Daniel Rubin looks on at a planning board meeting in 2023.

Changing times

FIMFO has attracted calls for intervention in part because of the significant change it offers for the Upper Delaware. 

“This is the largest development we’ve ever had to act on,” UDC Town of Fremont Representative Jim Greier said, speaking at a September 2022 meeting of the UDC, where the council voted 7-4-1 to recommend the project for substantial conformance. “We’re setting a precedent for every hamlet along the river.”

Lander sees the investment Northgate plans as a major change for the business of camping. Traditional, tenting campsites like the ones historically on offer throughout the Upper Delaware are declining in popularity; what’s taking their place is the glamping, family-camping type of experience that FIMFO will offer. 

However, Lander believes the new-age style of camping offered by FIMFO still aligns with the spirit of the RMP, a document designed in part to protect the historic recreational use of the river. 

“The intent of the management plan was never to keep it a wilderness,” said Lander. “It was to keep it observed so it could continue to be a nice setting.”

Editor’s note: While Glenn Pontier formerly served as editor of the River Reporter, Pontier was contacted for this story due to his experience on the RMP’s plan oversight committee. While Pontier covered the NPS extensively for the River Reporter during his tenure, his comments do not represent any kind of official position or stance of the River Reporter in the present day.