‘Arrogance’ ‘Illegal’ Diging Is Charged At Harpers Ferry Park
By Deborah Fitts
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(October 2006) HARPERS FERRY, W.Va. — In what one critic called “the ultimate in arrogance,” developers in August bulldozed property belonging to Harpers Ferry National Historical Park and laid sewer and water lines to serve land where preservationists fear they plan to build thousands of homes.
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.
“It was premeditated, calculated arrogance,” declared Jim Campi of the Civil War Preservation Trust (CWPT).
Campi said the developers appeared to have picked the weekend for the work “so a judge could not step in.” He said they were also doubtless aware that the weekend was exceptionally busy for park personnel, who were hosting thousands of visitors for the centennial of the Niagara Movement, an early civil rights effort launched at Harpers Ferry in 1906.
Dennis Frye, chief historian at the park, commented, “It looks like they put in a super-highway across the battlefield. It’s excavated and absolutely stripped bare.”
Frye added, “Anyone conducting research into Civil War battlefield desecration at national parks probably would not find a more severe example of destruction” in the history of the National Park Service (NPS).
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.
Their plan, he said, was to bring sewer and water to the four properties, which total nearly 600 acres, and thereby dramatically increase the allowed building density.
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.
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.
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.”
Digging Discovered
The park first learned of the digging when Chief Ranger Jennifer Flynn spotted heavy equipment at Perry Orchard the morning of Aug. 19. Campbell said the machinery “was on the scale of what you’d use to build a highway.”
Flynn talked with representatives of the utility and summoned additional rangers, plus a solicitor from the Department of Justice who was attending the weekend activities at the park.
Campbell said the developers had three attorneys of their own on site. The solicitor advised them they needed a permit, but they refused to stop.
Campbell noted that the land dug up was “the center of the Confederate line” during the 1862 fighting at Harpers Ferry, one of the storied victories of Confederate commander Stonewall Jackson. The developers brought in lights Sunday evening and worked into the night until they had completed the installation across the park.
According to Campbell, the trenches were 5 to 10 feet deep and used up the entirety of the 45-foot width of the easement. Installed were a six-inch sewer main with manholes, plus a 16-inch water line.
The trenching started on the north side of U.S. 340 at the Sheridan tract, crossed to the south side of the highway and passed through Perry Orchard along the road frontage. Then it turned south parallel to Route 27, Millville Road, passing Benview, a 57-acre tract the developers own within the park boundary, and Bugler’s Rest, a 30-acre tract they also own, and tracked southward through the developers’ Old Standard property, 405 acres named for a former quarry.
Scot Faulkner, president of the Friends of Harpers Ferry National Historical Park, has challenged the developers in public meetings for the last two years. He noted that they received state approvals last year for the utilities and for a sewage-treatment plant at the south end of Old Standard to serve the four tracts, with the effluent to be discharged into the adjoining Shenandoah River.
Faulkner noted that with sewer and water, the developers “stand to gain tens of millions of dollars” through increased building density.
Benview and Old Standard are now zoned rural, allowing only one home per 14 acres. But with sewer and water, according to Faulkner, the developers have proposed 3,400 homes on Old Standard alone, plus a hotel and shopping mall.
Faulkner said the developers had displayed “the ultimate in arrogance. They have an absolutely mind-boggling disregard for history and sacred battlefields.”
He 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.’” Faulkner noted that in a similar scenario two decades ago, Capriotti began digging a utility line across park property but the park was able to stop him.
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.
The easement came to light in August 2005 when the developers appeared before the West Virginia Public Service Commission regarding utilities.
Faulkner said that he spoke to Snyder at that meeting, reminding him, “Any activity on a federal property requires review.” Snyder replied, according to Faulkner, “I don’t cede that to anybody.”
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. He acknowledged that his clients applied to the park for a special-use permit, but he said when they got the application they found it was “a permit for a parade,” which addressed First Amendment rights but did not seek information about the developers’ plans to dig.
Cassell said he concluded, “Either there was no process and this was being made up as they went along, or the process was being kept from us.” In any case, he said, they decided not to wait any further.
(Park officials explained that the special-use permit application is a one-size-fits-all document that is intended to get the process started. They suggested that Cassell was being disingenuous.)
Cassell said his clients had no idea that the Niagara Movement centennial was under way at the park. He said the only reason they worked on the weekend was that they had rented a machine to carve through the park property without requiring blasting, and the weekend was when the machine was available.
He also dismissed talk of thousands of homes on the Old Standard tract, saying the old quarry made the property too dangerous. He said it was more likely the land would be used for an “office park.”
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.
“We were starting to wade into the permitting process,” but the developers “swept all that aside,” Campbell said.
CWPT, with its 75,000 members, and the National Parks Conservation Association (NPCA), with 325,000 members, joined forces to decry the bulldozing. CWPT President Jim Lighthizer noted that the two groups had worked together for years to protect the Perry Orchard property, and only last year the Trust appealed to its members to raise $1.5 million to pay for it.
“We are outraged, and expect immediate restitution from these developers,” Lighthizer said.
Joy Oakes, senior director of NPCA’s Mid-Atlantic regional office, stated, “Americans have a right to expect that land protected by the Park Service cannot be bulldozed outside of an orderly and legal review. There has to be a clear message sent that no one’s above the law.”
The developers asserted that removal of several feet of soil in the late 1970s for construction of U.S. 340 had erased any historic value in the land bulldozed for the pipelines. But the park’s Frye said on the contrary, the park inadvertently discovered that there were plenty of Civil War artifacts to be found.
On Aug. 22 Frye was leading a camera crew from Washington’s Channel 9 onto the property when they spotted a relic-hunter in the newly churned area “merrily swiping away.” The relic-hunter was promptly issued a citation and his artifacts confiscated, and Frye said park officials were encouraged to conduct their own systematic survey of part of the disturbed area.
When they did, they found a variety of war-related objects. Frye declined to describe them, since they will serve as “evidence” in any federal case that may be brought.
He said, however, that the objects had effectively “been thrown into a coffee grinder and were churned and misplaced,” destroying their historical context.
At presstime, the U.S. Department of Justice had yet to show its hand in the case. National Park Service spokesman David Barna said solicitors from Interior were working with Justice “to figure out whether to bring criminal charges as well as civil charges” against the developers.
Barna added, “This may set precedent for other people who may want to dig across park property.” He said similar instances in the Park System were very rare.
Barna issued a statement saying NPS was “extremely concerned” about the excavation. It went on to say, “While the National Park Service respects the property rights of the easement holders, the courts have recognized that the Park Service must ensure that construction within the boundaries of units of the National Park System occurs in a manner that protects the cultural and natural resources owned by all Americans.”
Faulkner said the developers had acted with such blatant disregard for federal law, at one of the nation’s premiere battlefield parks, that the federal reaction to the violation will set “a major precedent.”
He invited anyone wishing to express concerns about the digging incident to contact Interior Secretary Dirk Kempthorne at [log in to unmask] or call his office at (202) 208-6950.
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