There are 11 designated national scenic trails stretching across nearly 18,000 miles in the U.S. But there are more than 4,000 miles of privately owned “gaps” in the system that leave routes vulnerable to a change in ownership or a landowner’s whims. Typically, the government or nonprofit trail associations work to fill such gaps by purchasing land from willing sellers. But Jim Kern, founder of a new advocacy group called Hiking Trails for America, says the only way to protect every mile of those trails forever is through the use of eminent domain.
A power granted by the Fifth Amendment of the Constitution, eminent domain allows federal, state, and local governments to acquire private land for public use in exchange for “just compensation.” The fair market value paid out is supposed to reflect the highest possible price that a buyer and seller would agree to under normal, unpressured circumstances on the open market. Payouts take into account factors like comparable property values or the income-generating potential of the asset. When the two sides can’t agree on an amount, it goes to court, where the price is determined.
“Every long, thin corridor that is important in America—a gas line, a railroad—[developers] wouldn’t think of doing it without eminent domain,” says Kern. “In fact, the Appalachian Trail used eminent domain 400 times.”
The Appalachian Trail is the only national scenic trail owned entirely by the public and the only one for which the U.S. government has invoked eminent domain. The National Park Service says it acquired 15,266 acres along the trail via compulsory purchase, mostly between 1986 and 1997, out of nearly 150,000 total acres acquired to complete federal ownership of the land.
The other ten trails, like the Pacific Crest Trail, rely partly on agreements with private landowners, which guarantee rights of passage for hikers. But if lands are sold, or if an owner decides against allowing hikers on their property, it could force a trail to reroute or run alongside developed land instead of the wilderness. “It leaves a lot of uncertainty as to what might happen,” says Megan Wargo, director of land protection at the Pacific Crest Trail Association. “There can be any sort of resource extraction or development right along the trail where the land is still privately owned.”
For Kern, the struggle is personal. In 1966, he pioneered the Florida Trail with a 170-mile hike through the southern part of the state, founding the Florida Trail Association after that. In 1983, Congress recognized the route as a national scenic trail. But more than 50 years later, the project Kern started still isn’t finished. There are sizable sections that are not owned by the public. Kern recalls that a few years ago, the Foley Timber and Land Company decided to sell 560,000 acres of property, which included a stretch in the panhandle, to a number of new landowners. Some of those owners decided to close the property to hikers walking through, forcing a reroute of some 40 miles along an often dangerous two-lane road.
Kern’s belief that eminent domain is necessary to solve the problem forever makes him unique among trail advocates.
“My thought would be: good luck with that,” says Amy Lindholm, who manages the Land and Water Conservation Fund Coalition. “I understand why you would advocate for eminent domain. It would certainly make things more expedient. But there just isn’t the political support for it.”
For decades, trail associations have worked with conservation groups and the U.S. government to purchase land from landowners looking to sell, and they’ve slowly chipped away at the percentage of trail miles that are privately owned. Just last year, the Pacific Crest Trail Association facilitated the public purchase of 17 trail miles from the Michigan-California Timber Company.
But what Kern is proposing is a far more aggressive tactic than waiting for willing landowners to come forward. And according to Lindholm, it’s already hard enough to convince Congress to appropriate money for purchasing the properties. Convincing politicians to force landowners to sell their land isn’t just politically unfeasible, it’s a misplaced priority, she believes.
“A lack of resources is a much bigger problem,” says Lindholm. “Even if eminent domain was there, whether the dollars are there is another question.”
“Each year there are more willing sellers than we have money for from the Land and Water Conservation Fund,” says Wargo. Kern agrees that the fund needs more money, but he doesn’t think that a full budget would solve the issue of holdout landowners who simply don’t want to sell.
Created by Congress in 1965, the Land and Water Conservation Fund (LWCF) uses revenue from offshore oil and gas leases to fund a variety of programs aimed at protecting natural resources and providing access for outdoor recreation, including money for land acquisition to help close gaps on national trails. A law passed this spring permanently reauthorized the LWCF, after it was allowed to expire in 2018, but it only funded about half of its full $900 million annual budget.
In March, the Partnership for the National Trails System petitioned Congress to appropriate $33.4 million from the LWCF to purchase 41 properties along six national scenic trails and six national historic trails. This year, bipartisan bills were introduced in both the House and the Senate, which, if passed, would guarantee full funding of the LWCF in the annual federal budget, making it possible to continue to acquire land along the national trails system. That legislation, at least, is something every trail advocate, including Hiking Trails for America, agrees on.