Day 25: Before Kelo: Eminent Domain and Shenandoah National Park

View from Stoney Man Mountain in Shenandoah National park. Photo by Taylor Wright on Unsplash

On our way home from North Carolina to West Virginia today, Gary and I decided to visit Shenandoah National Park. Although I’ve spent two decades living within 160 miles of the park, I had never visited before and did not know much about its history - or the tumultuous property rights story hidden just beneath the surface of its ridges.

Scenic skyways and Tangled property Rights

The idea of a national park in the eastern United States had been around since the turn of the century, 28 years after the first park was established in Yellowstone. The problem was that all previous national parks had been created out of federal public domain lands. The eastern United States was heavily populated by the early 20th century, including the Blue Ridge Mountains.

After planning and lobbying stepped up in 1923, Congress in 1925 passed legislation proposing the park (along with others in the Smoky Mountains and Mammoth Cave), but required that To sidestep the issue, Congress provided that the states in which the proposed parks were to be located would have to purchase the property and transfer it to the federal government.

No one seems to have given much thought to the 465 or more families who lived in the proposed area of the Blue Ridge Mountains. Their eventual removal was, according the National Parks Services’ own website, “a classic case of bureaucratic ineptitue.”

The problem, the state commissioners charged with the task discovered, is that the land was held in a patchwork of private ownership, including some held wholly or partly by unlocated or unknown owners (a problem that will be familiar to any student of West Virginia property law, too). Negotiating with and offering to buy out every landowner was effectively impossible.

The State of Virginia, eager for the tourism the park would bring, found a solution. It passed two statutes in 1928: First, the National Park Act declared the proposed land in the Blue Ridge Mountains to be designated “for public park purposes.” The next day, the legislature passed the Public Park Condemnation Act to allow the state to efficiently take the land.

Of course the eminent domain power already existed by statute in Virginia, but the new statute provided a streamlined procedure that treated all of the proposed park lands at once; allowed the state to avoid the step of offering to buy out each landowner; and providing for notice to property owners (even those known and locatable) only through publication in the local paper rather than individually.

The constitutionality of the statutory scheme was upheld by the state supreme court in the 1931 case Rudacille v. State Commission on Conservation and Development, and the Supreme Court denied cert in 1935.

Many of the residents of the ridge accepted the compensation offered by the state or simply moved away. Others refused, and the police began to forcibly remove people from their homes and lands.

Via v. State Commission on Conservation and Development

One owner, Robert H. Via, challenged the seizure of his land as a violation of the Fourteenth Amendment. His main argument was that the power of the state to take private property for public use did not extend to transferring the property to another sovereign, the United States, for its use. Second, Via claimed that the new condemnation act improperly created a separate scheme for owners within the park area and improperly failed to require purchase negotiations or individual notice.

In 1935, the U.S. District Court for the Western District of Virginia rejected Via’s claims. Via had pointed to previous case law that prohibited states from seizing property and transferring it to the federal government for purposes such as operating a lighthouse or a post office. The court rejected the analogy. The difference, it said, was that the states had no sovereign power to operate lighthouses or post offices; only the federal government did. Here, in contrast, the State of Virginia certainly had the sovereign power to operate public parks, and to condemn land under eminent domain for that purpose. The fact that they then transferred the land to the federal government to manage for residents of both Virginia and other states - and had planned to do so all along - did not undermine that power.

The court also made short work of the claims that landowners in the proposed park area were subject to a different eminent domain procedure than all other Virginia landowners. A state, it held, is entitled to make legislation to treat different situations differently. As long as all landowners within the area were treated the same, due process was not denied. And negotiation and individual notice were not constitutional guarantees, only creatures of legislation, and could be omitted.

Via, Londoner, and the Malleability of Due Process

Was this decision defensible under then-existing law? In 1908, the Supreme Court in Londoner v. Denver had held that property owners affected by a new property tax in one Denver neighborhood were constitutionally entitled to notice and a formal hearing before the new tax law went into effect.

Seven years later, the Court distinguished Londoner in Bi-Metallic Investment Co. v. State Board of Equalization, a case decided on the heels of the graduated income tax law, which held that taxpayers were not entitled to a hearing on the effects of a general taxation scheme. Justice Holmes said that the case was different than Londoner, in which “[a] relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds.”

Shenandoah National Park

The Via decision, along with the Supreme Court’s denial of cert in Rudacille, effectively settled the matter. The Shenandoah National Park formally opened on July 3, 1936. The park was incredibly popular, as attendance in its first years exceeded that of any of the national parks in the western United States. Today, Gary and I cherished the opportunity to break up a long eastern road trip with moments of silence at the park’s scenic overlooks and a long walk in the woods.

As the Parks Service acknowledges, however, visitors to the park may feel they are the first to walk its trails of mountain laurel. “But then, the same visitor stops at a row of fieldstone, unmarked but linearly precise – a mute testimony to a cultural past.”