Troy, Harry, Tom et al:
Quotes from 10/06 article in Civil War News (most of the article is edited out to hit the high points, and some emphasis added by in quotes and caps).
My commentary to follow.
'Arrogance', 'Illegal' Digging Is Charged At Harpers Ferry Park
By Deborah Fitts
The three developers, who are partnering to develop four properties in and around the park, dug two parallel trenches 1,900 feet through the park's 38-acre Perry Orchard tract on historic School House Ridge.
Working quickly with heavy machinery, they started the morning of Saturday, Aug. 19, and completed the work after dark the following day. Park rangers attempted to stop them but to no avail. (STEVE: If it was a real legal issue, why didn't they arrest them? They arrest relic hunters.)
The digging was instigated by the owners of the properties, Herb Jonkers and Gene Capriotti, two of the largest developers in Jefferson County, and their business partner Lee Snyder. Snyder owns Jefferson Utilities, which dug the trenches.
Park Superintendent Don Campbell said the digging "was clearly a violation of federal law." It came as "a complete surprise," he said, ALTHOUGH THE DEVELOPERS' INTENTIONS HAD BECOME OBVIOUS IN THE PRECEDING MONTHS.
The problem, Campbell said, was that the line had to cross park property, and that could only happen if the National Park Service issued a permit. HE ACKNOWLEDGED THAT THE DEVELOPERS HAVE AN EASEMENT TO INSTALL UTILITY LINES. But an easement, Campbell said, is trumped by the National Historic Preservation Act and the National Environmental Policy Act, which require hearings and public comment before a permit can be issued. (STEVE: I think this statement is skewed. How can the Fed confiscate a property right without compensation? If the 106 resulted in the denial of the permit, and the park aparently accepted the land from CWPT with easements in place, how should they not be compensated for losses if they were barred from proceeding?).
Campbell said THE DEVELOPERS HAD WORKED FOR MONTHS TO INSTALL THE SEWER AND WATER LINES from Sheridan, a 99-acre property they own west of School House Ridge, digging a quarter-mile to the park boundary. "It was moving so slowly, you wondered what the heck they were doing," he said. (STEVE: Duh?)
By this time the developers had already signaled their intention to ignore the federal permitting process. As early as March 30, NPS had advised them they needed a special-use permit to construct utilities inside the park boundary. Campbell said the developers applied for the permit but also "stated that they did not recognize the authority of the government to require them to go through the process."
He (Scot Faulkner) added that there was "a clear paper trail" of certified letters from NPS to Snyder "saying, `Don't even kick a stone across this property unless you get a permit from us.'" (STEVE: Unsaid: good luck getting the permit, buddy)
The Civil War Preservation Trust purchased the Perry Orchard tract in 2005 and turned it over to the park that June. THE DEVELOPERS APPARENTLY PURCHASED THE UTILITY EASEMENT IN FEBRUARY 2003 FROM THE PRIOR OWNER but Faulkner said it was peculiar that neither the Trust nor NPS discovered the easement during separate title searches. (STEVE: this one should be a no-brainer to prove or disprove).
The easement came to light in August 2005 when the developers appeared before the West Virginia Public Service Commission regarding utilities.
Mike Cassell, an attorney representing Jefferson Utilities, said he and his clients regarded the easement as "our contract with the federal government." "THE GOVERNMENT TOOK TITLE TO THAT PROPERTY SUBJECT TO THE EASEMENT," and the easement is paramount, Cassell said.
Starting the Process
ALERTED TO THE DEVELOPERS PLANS, IN JUNE AND JULY Campbell initiated a public review of the likely impact of installing the lines. Of 112 comments, 110 wanted the park to conduct a full environmental review. (STEVE: The issue was first raised in the spring, summer they began the 106, by October, six months later, no ruling which may have required many more months of review to exercise a property RIGHT)
"We were starting to wade into the permitting process," but the developers "swept all that aside," Campbell said.