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The Argument For Using Eminent Domain For Hiking Trails

A hiking trail in Tennessee
Jim Levulis
A hiking trail in Tennessee

The three most notable long-distance hiking trails in the U.S. are arguably the Appalachian Trail, the Pacific Crest Trail and the Continental Divide Trail. However, there are eight other National Scenic Trails, and all except for the A-T have gaps that are privately owned. Now there is a push to use eminent domain – which was utilized when creating the Appalachian Trail – to put the corridors in the hands of the federal government.

Jim Kern is the president of Hiking Trails for America and founded the Florida Trail – also a national scenic trail. His latest book “Broken Promise: The Plight Of Our National Trails” makes the case for using eminent domain to fully connect the nation’s hiking trails. WAMC's Jim Levulis spoke with Kern. 

Kern: First of all, it easily qualifies, it's for public use. It's in the public domain, private citizens may do most of the work. The state may do very little work. There is a culture of the hiking community to take care of their trails themselves. And it's true here in Florida, the Florida trail members go out and groom the trail for everyone. Our season is in the winter months, December through March, and we're very active, improving the trail and we open it to the public. But the key thing is, and this does create some controversy, worthy of discussion. And that is this public use is outdoor recreation. A gas line is a utility, you see, so you can make the argument that a utility is more important than a recreational hiking trail. Well, you know, these things evolve over time. And I think it well, when half the US population worked on a farm everywhere, everybody was getting plenty of exercise, you know. And now, the reverse is not true. We have a problem with most people have a problem getting enough exercise into their life. So I think it's a very valid point to say that a corridor for a hiking trail is as important an issue for society today than a gas line.

Levulis: In your book, you outline how there are significant gaps in several of our national trails, most except for the Appalachian Trail. Why haven't the current efforts to expand and/or fully connect the national trails, worked up until now? 

Kern: We know from having taken the 700 miles of the Appalachian Trail, I failed to say in the beginning that, Congress granted the US Park Service, the authority to use eminent domain to complete the Appalachian Trail. The problem is they have provided it for none of the other 10 National Scenic trails. So we have the Appalachian Trail that is complete, continuous, secure for posterity. None of the other 10 are because Congress did not grant the same eminent domain for these trails. And I think the reason is that they thought that perhaps they'd be able to negotiate rights of way and wouldn't have to require a legal taking of a person's property. But we've proven conclusively that that's not possible. And we have the statistics, and if you have a paper and pencil, I'll give them to you right now. In the 700 miles it took to complete the Appalachian Trail, there were about 2,550 properties taken. Of those around 400 times the property owner resisted to taking. Eminent domain was required. So that was 15.7% of the time. Now I just a couple years ago, I was able to do some research on highways. And I learned that if a US highway goes through a state and the state initiates a widening or a lengthening of a US highway, it obviously wants money from the federal government, US highway 1, for example, through Florida or US Highway 27 or 301, or 441, we got a bunch of them. So it's eager to get money from the federal government and the government requires you to tell them how often you've used eminent domain. So I vastly increased the size of, I think the universe is the proper word to say, the size of the figure that we're going to work with, and it turns out that in 2017, 2018, 2019 and 2020 we have four cases where vast numbers of takings were required, in the vicinity of 30,000 takings a year. So now the universe has expanded from 2,550 on the Appalachian Trail to about 123,000. Here's the amazing fact. That the variance in the percentage year by year for four years was not more than 1% from the 15.7% that I gave you when it came to the Appalachian Trail. So there was never a greater difference of that number in that four years of the Federal Highway Administration facts assembled. So we know for certain, with 123,000 takings, we know that the variable will be in the neighborhood of 15 to 17%. We're just going to have to deal with that, if we want a new highway, a new railroad, a new hiking trail corridor, that's what we're looking at.

Levulis: And now you've been involved with a number of hiking advocacy groups, you're the president of Hiking Trails for America, you also founded the Florida Trail and the Florida Trail Association. What's your sense of the possible embrace of using eminent domain among the larger hiking community for hiking trails?

Kern: You know, it's not a pleasant thing. To tell somebody, you're going to take their property. You're thinking to yourself, wait a minute, I live in America, this is wrong. Well, it happens every day, it's going on all the time around us. I refer to a taking that happened to me where it was investment acreage, so it was it was okay, but how about somebody's house? And so this is a very, very powerful right that the government has. Is it necessary? The founders felt that it was necessary, and I feel it's necessary. It must be for the public good. So you're taking a person's property so that a huge number of citizens can use it for a new port? Or a new railroad? You know, you might say, well I don't like football, why is it you’re taking my land for a football stadium? You know, believe it or not, a municipality, a city, chances are overwhelming, that if a city wants a baseball stadium, or a sports stadium, eminent domain will be used. So I have not had to deal with any of this until we members of the Florida trail Association got thinking, do we want to be part of a national trail system? And we were not smart enough at that time to negotiate. That's the mistake we made, because right now we have a footpath we can't complete. We should have told Congress that yes, we want to continue with trail. And yes, we would like to the designation National Scenic Trail, but we want what you did for the Appalachian Trail. And we did not say that, and none of the others did, either. They're all incomplete. And because of the statistics I gave you, Jim, I think anybody and everybody can see, they're never going to be finished without this controversial authority from the Bill of Rights.

Levulis: And I want to shift away from the conversation that we've been having so far, and just talk about hiking for a second here. And I want to ask you specifically about your first hiking experience that you write about it. It happened along the Appalachian Trail in the Great Smoky Mountains. It was July 1961. If I have it right, you were 27. And you were with your 17-year-old brother and hiked from Clingman’s Dome to Fontana Dam. I've done that hike, except in the opposite direction. And over multiple days. You aimed to do that roughly 30 miles in one day. Right? How did your experience go?

Kern: It was crazy. That was my introduction to hiking. I'd been a Boy Scout but I mean, I'd never done anything like this before. And of course, you know, who was calling the shots? The older brother. I was 10 years older than Rich. And so it was a terrible idea. And we were miserable. Oh jeepers, I hate to even think about it. Well, we didn't have any backpacks. And we didn't have any lightweight food. We didn't we didn't have suitable footwear. We made every mistake you could make. And so we were my father and mother had decided they wanted to vacation in the cool mountain air in the summertime and western North Carolina and my wife and I were living in Florida at the time and we were happy to get out of the heat. And in short order, I got a little bored and I asked my brother if he’d like to go on a hike. And he was up for that. So we had this little map. I still have it. It's like a five by seven map I mean, for a 40 mile trail that we were going to do, you said 30. I don't know, I can't remember, maybe you're right, maybe it's 30 miles. So our parents dropped us off at Clingman’s Dome and we set out. We had taken blankets off the beds at the motel and rolled some canned goods up in the blankets tied them off, slung them like a bandolier over our shoulders and set out. I had some engineer type boots with no laces, I couldn't tighten my foot into my shoe, which is a huge mistake. And we had no rain gear, we had no flashlights. I hate to even think about it. And furthermore, the fog was coming through the forest and condensing on the leaves, and it wasn't raining, but the fog was allowing water to drip off leaves on to us. And we couldn't stay dry. And we got to the first refuge too early. And we knew that if we stayed there for the night, at the shelter, If we stayed there that night, we wouldn't get to Fontana Dam to get picked up by our parents. And we couldn't get to the next shelter before dark. So with that conundrum facing us, we just said we have no choice, we have to walk until the very, very last moment of weak light and then just lie down on the ground and cover ourselves with a blanket. And that's what we did. It was a miserable, miserable night. A miserable, miserable event. And on the way home, I began thinking, is there a long hiking trail in Florida? Maybe we should build one in Florida if there is not, and there was no such trail and I founded the Florida Trail out of that miserable experience.

Levulis: And that leads me into my next question. So if your first experience hiking was not that enjoyable, why 60 years later are you fighting for hiking trails and hikers?

Kern: Well, I've found a great deal of pleasure in hiking and backpacking. I know I'm doing my body good to make it work like that. I like being out in the in the silence of a forest and I like making a demand on myself like that. And I just love the things that I can find in nature. So for me personally, it's just the sport I like and I'm willing to do my part to make it prosper. I think it's good for everyone as a believer so you know I want to see it expand. I've had the good fortune to have traveled to other parts of the world. I've hiked up Mount Kinabalu in Borneo and I've hiked in northern Pakistan right to the Chinese border and I've hiked in Nepal and New Zealand and the southern tip of South America, in southern Chile. So I've had that privilege to experience not just hiking trails in our country but elsewhere.

Jim is WAMC’s Associate News Director and hosts WAMC's flagship news programs: Midday Magazine, Northeast Report and Northeast Report Late Edition. Email: jlevulis@wamc.org
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