On March 30, President Barack Obama signed H.R.146, which created the Northern Plains National Heritage Area (NPNHA). A National Heritage Area (NHA) is “a place where natural, cultural, historic, and recreational resources combine to form a cohesive, nationally distinctive landscape arising from patterns of human activity shaped by geography.”

In 2005, Sen. Byron Dorgan introduced S.1544, the Northern Plains National Heritage Act.  In 2007, Sen. Dorgan and Sen. Kent Conrad sponsored S.2098, which was only reported by the committee, and Rep. Earl Pomeroy introduced H.R.6678. In 2009, the US Senate passed S.22, the Omnibus Land Management Bill, which would have created the NPNHA, but it was defeated in the US House. Finally, H.R.146, the Revolutionary War & War of 1812 Battlefield Preservation bill, passed the US House. The US Senate amended S.22 to include H.R.146 and it passed.

The NPNHA is an 800 square mile swath of land (more than 500,000 acres) that runs along the Missouri River through five North Dakota counties – Burleigh, McLean, Mercer, Morton, and Oliver.

The law designates a non-profit, in this case the Northern Plains Heritage Foundation (NPHF), the authority to create a land management plan for the area. According to the feasibility study conducted by the NPHF, the goals of the NPNHA are as follows:

• Increase recognition of unique resources.

• Development of a strong sense of place.

• Linking of resources to improve management.

• New opportunities for funding and partnerships.

• Sustainable place-based economic development.

• Balanced preservation and promotion.

Northern Plains Heritage Foundation Director and North Dakota State Senator Tracy Potter organized a lobbying effort to get the designation by the US Congress without disclosing such efforts to the IRS, which is required by law. He also convinced a congressional subcommittee, in 2007, that such a designation had widespread public support, when it did not.

In 2005, the NPHF Board began as a sub-group of the Fort Abraham Lincoln Foundation, which is also administered by Potter. In 2007, the NPHF received a $62,000 federal grant and split away from the Fort Abraham Lincoln Foundation. In fact, the NPHF filed its own Form 990 – the tax return filed by non-profit organizations – which revealed that a portion of the federal funds ($8,446.22) was used to pay for Potter’s trip to testify at the subcommittee hearing in Washington, D.C. And the Fort Abraham Lincoln Foundation hired lobbyists to urge the passage of the NHA.

The Greystone Group, a Washington, D.C.-based lobbying organization, filed a 2007 lobbying report for the work that was done on behalf of the Fort Abraham Lincoln Foundation in support of the NHA designation. However, the Fort Abraham Lincoln Foundation reported on its Form 990 that it did not lobby. Clearly, however, the non-profits were attempting to influence legislation.

According to the Greystone Group’s disclosure reports, both the Fort Abraham Lincoln Foundation and the NPHF lobbied for the Northern Plains National Heritage Area Act, in 2008. And in 2009, the NPHF lobbied for S. 22 – a bill which included the NPHA designation.

In testimony before the Senate Subcommittee on National Parks, Potter also claimed that there was public support for the NHA designation. “In public hearings before city and county commissions the meaning of such a program has been discussed and the commissions have unanimously provided their encouragement,” Potter testified.

The NPHF met with the commissions and several civic organizations to discuss the idea of a National Heritage Area designation in 2005 and 2006. However, not all five county commissions Potter referred to offered up support for the designation, as letters that appear in the feasibility study and meetings minutes show.

“The McLean County Board of Commissioners are looking forward to the public meetings and hearing the results of the public comments,” County Commission Chairman Ron Krebsbach wrote in January 2006. According to the McLean County auditor Leslie Korgel, McLean County did not have a public hearing and only approved the feasibility study.

Burleigh County Commission meeting minutes from January 6, 2006, note that the NPHF explained the proposed NHA and asked for support for the study. The minutes do not note a public hearing was held and do not note that the actual designation was supported.

On January 4, 2006, the Bismarck Tribune incorrectly reported that the NPHF “would be requesting resolutions of support for the designation.” Meeting minutes show that the NPHF was only looking for support for the feasibility study. The Morton County Commission supported the study, but, according to the Bismarck Tribune, fell short of getting support for the designation. According to Morton County auditor Paul Trauger, no public hearings were held. On January 26, 2006, the Beulah Beacon reported that Mercer County supported the NHA designation; however, according to a Mercer County representative, there were no public hearings.

The meetings Potter referred to were not held with the intent to gather public input. Rather, the NPHF delivered presentations to various organizations, implying that public input would be gathered as part of the feasibility study. The meetings were more along the lines of presentations. An unidentified media article, included in the feasibility study, called the meetings “informational meetings,” not public hearings.

The distinction between informational meetings and public hearings is important. In order to approve an NHA, there must be strong public support from stakeholders in the proposed area. Many landowners were not even aware that this process was happening until it was too late.

“I really feel like they didn’t want us to know about it,” landowner Ramona Sailer said at a town hall meeting hosted by the North Dakota Farm Bureau about the area. “I think this whole thing was railroaded through… The private landowner really should have more say.”

It is unclear whether or not anything can be done to reverse the designation since the evidence of Potter’s activities have come to light, but it is clear that many people are not happy with how the process unfolded.

If Potter knowingly misled Congress about the level of public support for the designation and misled the IRS about the Fort Abraham Lincoln Foundation’s and Northern Plains Heritage Foundation’s lobbying activities, perhaps there could be reconsideration of the designation. At the very least, the matter should be investigated. It is also unclear how much Sen. Byron Dorgan, the primary backer of the NPHA in the US Senate, was involved in the deception.

There’s more to the story. According to Northern Plains Heritage Foundation’s 2007 IRS Form 990, the foundation’s only revenue was a $62,000 federal grant. The Form 990 also lists the foundation’s program expenses for 2007. One of the expenses listed is Potter’s trip to testify at a congressional subcommittee, which cost $8,446.22. According to Open Secrets.org, in 2007 the Northern Plains Heritage Foundation (NPHF) hired the Greystone Group to lobby for passage of the National Heritage Area designation. What isn’t clear is how much the NPHF actually paid the Greystone Group. On Open Secrets.org it simply states “Less than $10,000.”

There are two questions that need to be answered: 1) Was Potter’s testimony considered lobbying? 2) Did the NPHF pay the Greystone Group any money?

These are serious questions because if the answer to either is “yes,” then Potter could be guilty of lobbying with federal dollars, which is against the law.

On June 12, Potter was on The Scott Hennen Show’s Blog Buzz segment, with Scott Hennen and SayAnything Blog’s Rob Port. The topic of discussion was the NPNHA.

According to Potter, one of the best things about the designation is that the NPHF will receive $10 million over 15 years from the federal government and property rights will not be denied to those who own land in the area.

How will the money be spent?

“We can’t say specifically how the money will be spent until we have those public meetings,” Potter said.

When asked by Hennen if the money would be used to influence legislation, Potter replied, “No, it can’t be done.”

Opponents of the designation warn that the federal money will be used to coerce local governments into adopting the recommendations of the NPHF, which will force changes to county comprehensive plans, local land use plans, and zoning ordinances.

Potter maintains that the management plan, written by the NPHF, which is required law, is only written to govern the management of the foundation.

“I would agree that the phrase ‘management plan’ is an unfortunate phrase. I don’t like it in there. Rob [SayAnything Blog] is looking at it one way, that we’re going to manage people, we’re going to manage the area… the management is of the group.”

However, the enabling legislation states that the management plan must “describe a program for implementation for the management plan, including… plans for resource protection, enhancement, interpretation, funding, management, and development,” and “list specific commitments for implementation that have been made by the local coordinating entity or any Federal, State, tribal, or local government agency, organization, business, or individual.”

The NPHF will create a program for implementing the management plan and then list commitments to the plan from local governments. There will be plenty of opportunities to twist the arms of local officials.

Property owners are still not going to be affected, Potter, contends, because the NPNHA is “a virtual area. It doesn’t exist.” Clearly, the area exists because the law says it does. What is unclear is how willing local governments will be to change their comprehensive plans, land use plans, and other zoning ordinances to receive the federal money.

The designation is being sold to local governments as an economic development tool.

“This is all about driving economic activity. In fact, that’s the only thing if you look at what the foundation is supposed to do that runs this, the Northern Plains Heritage Foundation… there’s only one thing it does… It encourages economic vitality and sustainability consistent with purposes of the heritage area.”

To do so requires a plan. Even if landowners are able to opt-out of the NPNHA, property rights are still in jeopardy because local governments may accept federal money to amend their ordinances to match the recommendations of the NPHF. If this happens, there is little the landowners can do to protect themselves.

There is very little in an NHA designation itself that is harmful to property rights; however, after the NPHF creates a land management plan and starts receiving federal funding they can start using the federal money bribe local governments in exchange for adopting elements of the management plan. To achieve their goals, the NPHF is likely to use the $10 million in federal funds (and the required non-federal matching funds) that come with the designation as bribes to local governments.

Small, budget-strapped local governments will likely welcome federal dollars in exchange for changes to their land use plans. Furthermore, it is likely that the NPHF will try to influence the local zoning processes as they seek to stop development to “preserve” the natural features over whichever area they are trying to exert influence.

It is not in the federal legislation; rather, the county comprehensive plans and land use plans will reflect the management plan ultimately created by the unelected board of the NPHF.

At the Tenth Annual Conference on Property Rights, Peyton Knight, director of environmental and regulatory affairs for the National Center for Public Policy Research, said:

But what is a National Heritage Area? In short, it is a pork barrel earmark that harms property rights and local governance. Let me explain why that is. Heritage Areas have boundaries. They are very definite boundaries, and they have very definite consequences for folks who reside within them.What happens when a Heritage Area bill passes is that a management entity is tasked with drawing boundaries around a particular region and then coming up with a management plan for the area.

Within their provisions for management plans, all Heritage Area bills include inventories of all property within the boundaries of the Heritage Area that the Park Service and Green groups want preserved, managed, or acquired because of their so-called national historic significance. National historic significance, obviously, is a very arbitrary term; so anyone’s property can end up falling under those guidelines.

The management entity that is tasked with overseeing land use in the area is typically composed of national Green groups, local Green groups, and the National Park Service. These groups actually form a compact with the Interior Department to determine the guidelines that make up the land use management plan and the boundaries of the Heritage Area itself.

Now, after the boundaries are drawn and after the management plan has been approved by the Park Service, the management entity, the Green groups, are given federal funds, typically a million dollars a year, and told to spend that money getting the management plan enacted at the local level.

So what they do is they go to local boards and local legislators and they say, Congress just passed this Heritage Area. You are within the boundaries. We have identified these properties as properties that we deem significant. We have identified these businesses that we deem insignificant and a harm to these properties and a harm to the Heritage Area. We don’t have the power to make laws but you do. And here is some federal money. Now use whatever tools, whatever laws, whatever regulatory procedures you already have to make this management plan come into fruition. So that is the way it works.

It is also worth noting that these are permanent units of the Park Service. They do have sunset provisions. The Park Service oversight in funding is supposed to expire. It never has with any of the Heritage Areas that have been enacted. So these are permanent units of the Park Service, and the Park Service has testified several times that they, indeed, could be considered permanent units of the Park Service because they always need oversight, and also the Park Service within Heritage Areas looks for opportunities to create other Park Service programs like national parks and the like.

Deputy director of the National Park Service, Donald Murphy, testified before the Senate Subcommittee on National Parks that one of the things the Park Service does when administering National Heritage Areas is survey land that would be suitable for future National Parks or National Park expansions.

Instances of these actions have been found in numerous National Heritage Areas. The Wheeling National Heritage Area’s management plan called for creation of a local historic ordinance which would be enforced through zoning. The Blackstone River Valley National Heritage Corridor’s plan calls for open spaces (i.e. no development) and building code regulations that reflect the community’s traditions.

These same types of things can be expected when the NPHF writes the management plan for the NPNHA. The legislation that created the area states that the NPHF can make grants to political jurisdictions, other non-profits, and “other” parties in the area. This allows them to bride local governments to enact their management plan and allows them to give federal money to organizations that will also attempt to influence the policies of local governments.

The management plan for the NPNHA, according to enabling legislation, is required to describe, comprehensively, “the actions and commitments that Federal, State, tribal, and local governments, private organizations, and citizens will take to protect, enhance, interpret, fund, manage, and develop the natural, historical, cultural, educational, scenic, and recreational resources of the Heritage Area.”

In other words, the NPHF will create a plan (in many cases in collaboration with the local governing entities) and use federal funding to provide their allies with enough money to twist the arms of local officials to adopt the plan, which will contain many land use restrictions. The long term goal of the National Parks Service may be to turn the area into a national park. Property rights will be denied.

Hailing from Wyndmere, Jacqueline Dotzenrod is a life-long North Dakotan. She began her reporting career as a high school student covering local basketball games. After graduating from Wyndmere High School, she continued her education at North Dakota State College of Science where she earned an Associates Degree in Liberal Arts. She also attended North Dakota State University where she studied Business and Music. From east to west, she has written for newspapers across the state including the Richland County Monitor, Wahpeton Daily News, The Dickinson Press and The Cass County Reporter with experience covering everything from local sports to government. Her advocacy for personal freedom is what brought her to the North Dakota Policy Council.

Brett helped start the North Dakota Policy Council in 2007. Narloch was born in Minto, N.D., and is a lifelong resident of North Dakota. He attended UND and graduated in 2004 with honors in history. He has written for several publications, including the Dakota Beacon and the State Policy Network newsletter. Narloch also gives speeches about the value of freedom and how individual and economic liberty leads to a better society. He is the author of “Moving Forward: A North Dakotan’s Guide to Public Policy.” Narloch lives in Bismarck with his wife, Lindsey, and their dog, Freddy.