In
examining the relationship between the American people and those they have
chosen to govern them, one is almost always confronted with glaring
inconsistencies, as well as the tensions that result because of them. These
tensions should come as no surprise, as America is ultimately a nation founded
upon the unwillingness of its people to be governed by a powerful distant
ruler. Though it may not always appear to be so in a world increasingly
disconnected to its past, the very first political and social sentiments that
led to the independence of the United States continue to have an impact on
both the legislative policy and overall
character of the nation. One of these divisive sentiments coincides with one of
the great distortions of American law: the right to keep one’s property. Though
it is both constitutionally guaranteed and morally essential, Americans’ right
to their property is not as sacred as most would like to believe.
In
a strikingly scenic but otherwise quiet and unassuming portion of the Delaware
River, this puzzling convergence of ideas became a national spectacle for more
than four decades. At Tocks Island, just a few miles upstream from the famous
Delaware Water Gap, the state governments of New Jersey and Pennsylvania sought
to build one of the largest dams in the United States in order to create an
enormous reservoir, mostly for hydroelectric power generation. The plan
ultimately failed, but it was not without its share of unfortunate
consequences. Through a legal principle known as eminent domain, lands on both
sides of the river that would have been flooded by the dam were seized by the
government, and the buildings thereon were condemned. While a great deal of
legal discussion has and will continue to take place regarding the subject of
eminent domain, much can be gleaned by an in-depth examination of the social
impact of one of the most significant examples of its application in American
history. Through an understanding of how the events that were meant to
precipitate the completion Tocks Island Dam Project and how they affected the social
landscape of the region in which it was to be built, a more thorough
understanding of the questionable constitutionality (and morality) of eminent domain
can be established.
The
Delaware River, just north of the famous Delaware Water Gap, is widely regarded
as stunningly picturesque and a place where those in search of the rest and
relaxation afforded by nature can find satisfaction. Unfortunately, the natural
beauty of the area belies its sordid past. The story of the Tocks Island Dam
Project begins in 1955, when devastating floods from the remnants off two
successive hurricanes in the span of one week (Connie and then Diane) caused
unprecedented and since unmatched destruction in communities along the Delaware
River and its many tributaries. The loss of over 100 lives and destruction of
property by these events prompted the federal government to allocate two
million dollars in 1956 for the Army Corps of Engineers to examine the
feasibility of constructing a dam along the Delaware in order to prevent future
disasters like those in 1955. The Delaware River Basin Commission (DRBC) was
formed in 1961 to decide what direction policy would move in light of the
corps’ findings. This commission was headed by the governors of the states of
New Jersey, Pennsylvania, New York and Delaware, as well as the United States
Secretary of the Interior. The corps
adopted a plan for the dam, which was approved by the commission in 1962.[1]
What
was proposed was, in a word, imposing. The dam itself was planned to be 160
feet high and 3,000 feet long and composed of earth and stone. The resulting
reservoir would have been 37 miles long and had a surface area of 12,300 acres.[2]
Obviously, the amount of existing land affected would have been equally
staggering: the reservoir would have wiped out 12,000 acres of woodland along
the sides of the mountains leading down to the Delaware on both the New Jersey
and Pennsylvania side of the river.[3] The
destruction of an environment of this size would have had ecological impacts
which could not have been foreseen at the time, such as the disruption of fish
migrations and the destruction of ecosystems which naturally purify river water
before it makes its way to the ocean.[4] This
factor would become increasingly important, as the environmental movement would
begin to orient the national conscience against projects like the dam.
Proponents
of the dam countered calls for greater respect for nature and the need for
recreational opportunities in the area by citing the authorization of the
Delaware Water Gap National Recreational Area (DWGNRA), which today covers even
more than the initial 72,000 acres called for by Congress. This was designed to
create opportunities for such recreational opportunities as boating, fishing
and hiking in and around the reservoir. While the Army Corps of Engineers
assumed that the dam would be built (and as such attempted to make the dam and
the recreational area inseparable), the National Park Service had no such
confidence in the plan and inserted language into the proposal for the DWGNRA
which allowed it to exist regardless of whether the dam was built or not.[5]
This would prove to be a savvy move, as the DWGNRA exists today and the dam
does not.
The
acquisition of land for the project did not begin until 1965, but it
experienced little opposition and as such took place relatively quickly. The
cumulative impact of the government takeover of such a large swath of land,
though it was sparsely inhabited, could be starkly seen in the small towns even
in 2003, several years after the project was finally terminated:
Bushkill and
Dingmans Ferry had become ghost towns and Walpack's population dropped from 384
to 67. People lost their homes, their livelihoods and their heritage. Park
records show 10,000 properties, many belonging to generations of families as
far back as the colonial period, were bought or condemned. More than 3,000
homes occupied by 8,000 people were razed, 25 summer camps, 125 farms and more
than 100 businesses, seven churches and three schools were all demolished or
abandoned.[6]
600 residents whose
properties were condemned filed a lawsuit against the project and the legal
entities that had authorized it. In an ironic turn of events that would set an
unfortunate tone for the project as a whole, the case was dismissed on the
grounds that the government had not consented to being sued.[7]
With so much momentum and government backing for the
project, it is not difficult to see why the project might have progressed
smoothly. However, this would not be the case. A synthesis of many factors led
to the stagnation and ultimate demise of the Tocks Island Dam, essentially
beginning in 1971 when the Army Corps of Engineers’ environmental impact
statement on the project was made public. Though it would eventually prove to
be understated, the report created a new (and more powerful) base of resistance
for the dam: the environmental community.[8]
The chief environmental concern proved to be a process called eutrophication:
Eutrophication causes increased
algae blooms and rooted aquatic plants. In turn, this causes the loss of game
fish, changes in water quality, and aesthetic problems. Nutrients from chicken
and cow dung and from fertilizers have been entering the Delaware River for
centuries, but as long as the river is free-flowing, there is no problem.
However, if the river were to be dammed, the bacteria would back up at the dam
site. This would cause a severe rise in algae, which would eventually take over
the reservoir.[9]
As will be touched on
later, increased public awareness towards issues such as these only came to the
forefront of national attention after 1969, when a great cultural and
legislative shift in relation to the environment took place, punctuated by the
creation of the Environmental Protection Agency a year later.[10]
With the tide of public opinion and subsequent tide of leadership opinion
turning against the project, projected costs began to multiply as more and more
stringent regulations, expensive impact studies and even public relations
campaigns slowed and ultimately helped doom the project.
While the environmental movement is given a great deal of
credit for stunting the Tocks Island Dam Project, there have been compelling
arguments made which cite the war in Vietnam as the deciding factor in the
project’s demise. This perspective, described at length in Kathleen
Duca-Sandberg’s dissertation on the topic, finds support in what is considered
the most thorough work on the project, Richard C. Albert’s book Damming the Delaware: The Rise and Fall of
the Tocks Island Dam Project. Both make the argument that environmental
activists are given a disproportional amount of credit for halting the dam’s
construction, and claim that two central factors involved in the conflict in
Vietnam during the same period diverted key resources away from the project.
The
first, and perhaps most apparent, was the diversion of essential funds
originally appropriated by the federal government for the project to functions
involved with the war.[11]
This of course was compounded by the aforementioned ballooning costs caused by
unforeseen regulations, as well as President Lyndon Johnson’s need for federal
funds to push his Great Society Legislation. The second factor would be the
erosion of public trust in government following the series of disturbing
revelations and contradictory policies involved in the war.[12]
While it is dangerous to make the generalization that these were the primary,
overarching factors in the situation, it is nonetheless a compelling argument.
Of course, as with all projects which alter the physical
landscape to the degree that the Tocks Island Dam would have, concerns
regarding the destruction of historically significant structures, natural scenery
and archeological sites also played a role in the downfall of the project.[13] Sunfish
Pond, a glacial mountaintop lake which hikers can access via the Appalachian
Trail, became public relations boon for opponents of the dam. The lake would
have been wiped out had the dam been constructed, and nearby residents staged a
number of public protests to draw both regional and national attention to the
injustices being done to the public in the area.[14]
This would become a common theme in the later fight against the dam, as a
number of underlying factors in the motivations of the project’s proponents
became increasingly public.
As mentioned before, the convergence of these factors ultimately
sunk the project, and placing hierarchical value on the merits of each is
unproductive. The most important information gleaned from all of these factors
is that they led to the slow but eventual de-authorization of the dam, with the
leaders of the DRBC voting to halt construction 3 separate times (finally in
1975).[15]
Though it would periodically become a political talking point during elections
in New York, New Jersey and Pennsylvania for a number of years to come, the
project fell from public interest. Many local residents did not even know that
the project was still technically active when it was definitively de-authorized
by congress in 1992.[16]
What was left in the wake of the failed plan was a combination of two primary physical
consequences: the Delaware Water Gap National Recreational Area, and hundreds
of structures, taken by the government, which were now almost entirely
derelict. While these factors are easily quantified and assessed, their impact
on the lives of those who were directly affected by the initial actions of the
project offer equal (if not greater) insight into the legacy of the project.
The scope of the project, though its immediate impacts
were confined to a relatively small area, cannot be ignored. A short article in
The Lock Haven Express, over 120
miles west of the proposed dam site, describes the location of the dam and its
potential benefits to the regional economy.[17] Though
it may come as a surprise in light of the ultimate outcome, the Tocks Island
Project was met with relative support from locals. In 1959, Howard Rausch of
Pocono Manor, Pennsylvania, wrote a short article for The Middletown Daily Record, a newspaper based out of Middletown,
Pennsylvania, in which he seemed to look towards the approval of the dam with
optimism. In his article, Rausch says that although it was determined that the
dam would likely not be built until the 1970’s, the leaders of the project
seemed optimistic that the project would push forward and provide the region
with a much needed infusion of tourist attention. His article states that
though the project has obviously slowed, the DRBC and its advisory commission
are “pulling together in the same direction for the same common cause.”[18]
By the mid-1960’s, however, public sentiment was clearly
on the move. In an article written for The
Pocono Record, a newspaper published in Stroudsburg, Pennsylvania (only a
few miles from the proposed dam site), a “planning expert” who is not directly
named warned that the processes which were leading up to the Tocks Island Dam
construction threatened to turn the community into a “well-to-do slum.” This
assessment, echoed by the then-Monroe County Commissioner Stuart F. Pipher,
came in light of the concerns many in the community held regarding the future
development in the non-government owned lands surrounding the DWGNRA. With
large housing developments already springing up in the area which consisted
mostly of summer and vacation homes for residents of New Jersey and New York,
the planning expert warned that should these developments become more
accommodating for permanent residents in the wake of the dam construction, the
infrastructure currently in place (particularly roads and highways) would be
woefully insufficient.[19]
In an article also published on the same day, Van Fleet
described a local office to be opened by the Army Corps of Engineers from which
they would perform the necessary tasks involved with acquiring land for the
proposed dam. The article describes the meeting during which the office was
presented to the public as a tense one. Among other questions, local citizens
present questioned the safety of the dam, to which the Corps representative
replied, “No Corps of Engineers’ dam has failed any place in the country – any
place in the world.” Van Fleet went on to essentially validate the citizens’
concerns by citing the admittedly complex and challenging nature of the
riverbed, as well as the number of concerns that had postponed the
construction.[20]
August 1, 1975, the day following the final vote to
discontinue the Tocks Island Dam construction, The Pocono Record provided
almost exclusive coverage of the reactions of locals, union leaders,
legislators and others in the wake of the vote. Mark Brown described the fight
for the project as a “battle of emotions,” pitting faraway lawmakers against
local leaders, almost none of whom wanted the project to move forward. He also
cited what he described as the “escalating clash between engineers and
environmentalists.”[21]
Flip DeLuca provided a number of contexts for the decision in his piece, which
cites the reactions of a number of community members and officials representing
a number of interests. The mayors of both Stroudsburg and East Stroudsburg were
both pleased with the decision, though Stroudsburg mayor Warren F. Loney said
of the federal government: “They should have had hearings long before land
acquisition started. The way it was handled in the beginning was horrible.”[22]
Perhaps the most telling article was written by Jeff
Widmer, in which he interviews a number of citizens who lost their homes and
land to a project which would now likely never be built. Henry Tucker, who lost
110 acres and his home to the project, said, “That was where I wanted to live
the rest of my life. It’s a shame, because the whole valley – now it’s nothing
but weeds and rubbish” Frank Kober, who also lost his home, expressed a degree
of disdain for leadership for not using the land that they purchased: “I still
feel they shouldn’t take peoples’ homes and then not put in the dam. Why should
people have to give up their homes so that city people can come and live on the
land?”[23]
With this type of testimony in mind, it is clear that the
resentment towards the project was and is multifaceted and deep-seated. As
mentioned before, the principle of eminent domain was used as the primary means
of purchasing the lands needed in order to build the dam. The document which
American government uses to derive the power necessary to take individuals’
property is in fact the United States Constitution, which states in its Fifth
Amendment, “Nor shall private property be taken for private use without just
compensation.”[24]
This is obviously somewhat fluid language, and has led to a number of inquiries
regarding how it is to be applied. What constitutes “public use?” What
constitutes “just compensation?” Who determines both? While the first two
questions are obviously contingent on the situation, the answer to the final
question has become clear through a number of instances, including the Tocks
Island Dam Project: the Federal Government.[25]
Using the Tocks Island project as a basis of comparison,
the Kelo vs. New London Supreme Court
decision, handed down in 2005, shows both the stark contrast in public opinion
toward forcible government acquisition of private land and the stalwart
government position on the same subject. In 2002, the city of New London,
Connecticut used eminent domain to acquire a number of houses in the city in
order to provide a construction company with land to redevelop.[26] In
a 5-4 decision, the Supreme Court decided in favor of the City of New London
and authorized the use of eminent domain. Unlike Tocks Island, this was an
instance of eminent domain being used to transfer land from one private owner
to another, but the cases were similar in that neither proposed project came to
fruition. The developer in the Kelo case failed to produce the funds necessary
for their housing complex, and the land which was acquired is now vacant. The
public in New London was almost universally and vocally opposed to the plan,
but their calls went unheeded.[27]
The facts and figures of Tocks Island, New London and the
various government uses of eminent domain that occurred between the two tell an
obvious story: government, both local and federal, often gets “the horse before
the carriage,” in the words of Warren F. Loney.[28]
That is, they take large steps towards an outcome they feel is eventual and
certain, but proves to not be so. They tend to operate with an apparent
disregard for the citizens they were elected to serve. This may appear harsh,
but it is based in fact. In just a tiny sample of the citizens displaced by the
Tocks Island project, a common theme is echoed: despite all of their struggles
and heartbreak involved in being displaced by their own government, they would
have been satisfied if their land had actually been put to the use it had been
intended for. Though it now serves as a popular and extremely scenic
destination for nature-seekers, it is difficult for former residents to see the
present value of their former land when it constitutes the tiniest fraction of
the sprawling DWGNRA. Was the taking of the tiny plots of land and the
destruction of the homes owned by people like Henry Tucker and Frank Kober
necessary for the enjoyment of those who now visit the recreation area that
their land is now a part of? The answer is, at best, doubtful.
The unfortunate correlation one inevitably draws between
the Tocks Island and New London cases is this: eminent domain, and legislation
like it, has had a negative cumulative effect on Americans, and American
government has been exceedingly slow to recognize that fact. In 1956, the
national mood was one that promoted any measure which might advance the country
economically, and as such the opposition to a plan to supply power and water to
a sizable portion of the population experienced almost no resistance. As the
nation became increasingly conscious of the effects that rapid economic growth
was having on the environment, importance shifted from economic prosperity
towards sustainability and balance. As the painfully slow death of the Tocks
Island Dam proves, any major legislation which will provide pork-barrel support
for politicians (regardless of their proximity to the area actually affected by
the legislation) will always garner some degree of support.
However, it is the social rather than the political
aspect of the Tocks Island project which is of greatest import. The distrust
clearly created between what can be broadly defined as common citizens and
their elected officials by the Tocks Island project and other tragedies like it
reveal an unfortunate ignorance of those with little direct political influence
and those who do. During the 1970’s, the environmental movement had tangible
influence in the halls of congress, and as such they achieved their goals. In
the current political arena, however, New London shows that money (in the case
of New London, greater tax revenues) has a direct correlation to political
influence.
With
this in mind, it is not difficult to see why the hundreds of mostly lower-middle
class citizens who resided in the area acquired for the Tocks Island Dam
Project harbor no small degree of hatred for their government. In his work
entitled The Story of the River Road:
Life Along the Delaware from Bushkill to Milford, Pike County, PA, William
H. Henn seems to capture the prevailing emotions harbored by residents of the
areas affected by the project. Published during 1975, Henn’s book (which was
self-published) was written both as a lamentation and a celebration of the
valley that he himself had once called home. Henn describes the project as
destroying “nature’s handiwork” as well as a “distinctive way of life” shared
by inhabitants of the valley.[29]
The overall tone of the work is captured in a poem named “Farewell to My
Valley” by Lydia Brodhead Nyce, another prominent member of the community
displaced by the project:
The river runs
so peacefully
Between the
fields and the hills,
Widening, as the
quiet pond,
Or
through the deep rift spills-
Her poem goes on to
describe the evolution of the region from Native American land to a logging
outpost and productive agricultural land:
As rafts of
logs, went swiftly down,
The fields were
turning green,
And farmers
worked hard with their plows
To bring truth
to their dreams
This type of lifestyle
was typical of rural areas during America’s formative years: industrious,
determined people using the environment that they were given to create a
sustainable, comfortable future for themselves and their families.
Of course, the march of progress inevitably made its way
into the area, with its proximity to major metropolitan areas like New York
City and Philadelphia making it a prime target for exploitation and commercial
development. Brodhead Nyce’s poem goes on to describe this change:
There highways
and great bridges grew
O’er our
peaceful valley,
And throngs of
people came this way
Fleeing
crowded alleys-
With this influx of
what Frank Kober and Brodhead Nyce describe as “city people” came new and more
destructive manifestations of prosperity:
So engineers
will build a dam
And we shall say
farewell –
But in our
hearts, there’ll always be –
Fond
dreams they cannot quell.[30]
What the testimony of
William F. Henn, Brodhead Nyce, and various other local residents of the area
affected by the project reflect is an unfortunate change in the social
structure of the region from an oasis of rural American work ethic in the often
overcrowded Northeast to yet another natural paradise exploited for the benefit
of residents of large cities. The homes and livelihoods of people like Lydia
Brodhead Nyce held so little value in the eyes of their leaders that they were
taken and destroyed without any serious assurance that they would be used for
the betterment of the “public” good. Perhaps Mrs. Benedict Pastorini best
expressed the emotions of her fellow evictees on the day in 1975 when the
project was definitively halted: “What are you going to do? You can’t fight
city hall. Losing my home was a very rough feeling. We all enjoyed being down
there. It was a beautiful area.”[31]
Of course, the economic effects of the Tocks Island Dam
Project, had it been built, will never be known. Perhaps the influx of new
tourism and tourist-friendly amenities would have ushered in a new age of
modern economic success to a simple, rural area in the prosperous northeast
United States. The area continues to be a popular tourist destination, though
the words of Bob Van Fleet’s planning expert have proved to be prophetic:
development and widening roads have continued to encroach on the natural
scenery and economically disadvantaged portions of the area near the DWGNRA.[32] The
area essentially remains under government control, and the application of
eminent domain in this instance appears to have essentially given greater power
to the federal government to influence the economic and physical fate of the
region. While the local government maintains holds a good deal of authority
over the operations of the park,[33]
the future of the land ultimately lies in the hands of the same entity that
evicted most of the area’s residents: the federal government.
Perhaps
the most telling account of the project’s cultural legacy was given in 1992,
the year that Congress definitively struck the dam from its budget. On July 19th
of that year, Michael Ruane published an article which contained an interview
of Leah Bensley, whose father, Isaac Dunlap, had been told 30 years earlier
that his tiny home, which he had built entirely himself, would be taken from
him. Today, only the chimney of Dunlap’s home remains, which ironically is at
risk of being leveled as part of a government construction project which will
widen the road near the house’s foundation.[34] Like
many who lived in the area, Dunlap was a simple woodsman who was proud of his
home and would not sell it for any price. He strove to, in the words of Lydia
Brodhead Nyce, “bring truth to his dreams.” Dunlap took his own life in the
woods behind his house several weeks after receiving the final offer for his
property. It is an event Bensely will likely never forget: ''It's just like it was yesterday. It is,
still. It's terrible. Sometimes I look for him to come through the woods."[35]
[1]
Irene Taviss Thomson. “The Tocks Island Dam Controversy.” In When Values Conflict: Essays on
Environmental Analysis, Discourse, and Decision. Edited by Laurence Tribe, Corinne Schelling, and John Voss. Cambridge,
MA: Ballinger Publishing Co., 1976: 38-39.
[2]
Gale Tellefsen, "Tocks Island Dam: an analysis of the environmental movement" (1992).
Lehigh University Theses and Dissertations. Paper 149
[3]
Kathleen Duca-Sandberg. “The History and
Demise of the Tocks Island Dam Project: Environmental War or the War in
Vietnam?” (2011). Seton Hall University Dissertations and Theses (ETDs).
Paper 30.
[4]
Deborah Bradford. “Tocks Island Dam.” Environmental
Action 7, no. 4, 4.
[5]
Tellefson. (8)
[6]
Judy Peet, A Bitterness Runs Through It, The
Star Ledger, 23 November, 2003, p.19. Via Duca-Sandberg. (2)
[7]
Thomson. (41)
[8]
Bradford.
[9]
Tellefeson. (16)
[10]
Duca-Sandberg. (3)
[11]
Duca-Sandberg. (4)
[12]
Richard C. Albert, Damming the Delaware:
The Rise and Fall of Tocks Island Dam, (University Park: Pennsylvania State
University Press, 1987 and 2005) via Duca-Sandberg.
[13]
Tellefeson. (15)
[14]
Tellefeson. (28)
[15]
Thomson. (44)
[16]
Duca-Sandberg. (97)
[17] "Tentative
Site of the Delaware Dam." The
Lock Haven Express, April 21, 1959.
[18]
Howard Rausch. "A Delaware River Dam Is Coming, but Not Soon." The Middletown Daily Record, October 16,
1959, Regioinal/World sec.
[19]
Bob Van Fleet. "Tocks Progress Could Turn Area into "well-to-do
Slum""The Pocono Record,
November 9, 1965, Local sec.
[20]
Bob Van Fleet. "Army Engineers to Open Tock's Office in
December." The Pocono Record,
November 9, 1965, Local sec.
[21]
Mark Brown. "Tocks - a Clash of Power in the Halls of
Congress." The Pocono Record,
August 1, 1975, Local sec.
[22]
Flip DeLuca. "Where Were You When the Tocks Fell?" The Pocono Record, August 1, 1975, Local
sec.
[23]
Jeff Widmer. "Former Tocks Residents React." The Pocono Record, August 1, 1975, Local
sec.
[24]David
A. Schultz. Evicted!: Property
Rights and Eminent Domain in America. Santa Barbara, California: Praeger,
2010. (74)
[25]
John Ryskamp. The Eminent Domain
Revolt: Changing Perceptions in a New Constitutional Epoch. New York, New
York: Algora Pub., 2007 (181)
[26]
Ryskamp. (50)
[27]David
A. Schultz. Evicted!: Property
Rights and Eminent Domain in America. Santa Barbara, California: Praeger,
2010. (160)
[28]
DeLuca.
[29]
William F. Henn. The Story of the River Road: Life Along the Delaware from
Bushkill to Milford, Pike County, PA. (Self Published), 1975. (2)
[30]
Henn, 226.
[31]
Widmer.
[32]
Brian Tarpinian. "Determining the Appropriateness of Automobile-based
Tourism in the National Park System." Park Break Perspectives: 1-8.
[33]
Dave Pierce. "After Dam Died, Park Was Born." The Pocono Record, August 14, 2001.
[34] Witkowski,
Wayne. "PennDOT: Milford Road Widening Project Will Have Little
Disruption." The Pocono Record,
November 18, 2015, Pike & Monroe Life sec.
[35] Michael
E Ruane. "Bitterness Lives Where Dam Is Dead A Delaware River Project
Lived Too Long For Some. In 30 Years, Many Lost Their Land." The Philadelphia Inquirer, July 19,
1992, Regional sec.
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