Battlefield preservation

The last time that I was in Gettysburg was in September, about a week after I began this blog. That means it’s been about eight months, which, for me, is a very long time not to go there. I’ve been getting itchy for another visit, and it’s going to occur this weekend.

I have been a member of the Gettysburg Discussion Group, which is the granddaddy of all on-line discussion groups, since 1996. I served as a member of the board of trustees, and I’ve always hovered around the nucleus of the group. Sometimes, when I have time and interest in a given topic, I participate a lot. Other times, rarely at all. However, it’s been a great group to belong to, and I’ve made some great friends as a consequence of my participation.

Once per year, typically the first weekend in June, the GDG has a muster in Gettysburg. Several months ago, Dennis Lawrence (who along with his brother Bob, owns the group) asked me if I would lead a tour for them this year, which I haven’t done in four or five years. As I’ve been itching for a visit to Gettysburg, I agreed. J. D. and I are leading the dawn (7:00 a.m.) tour on Saturday morning, of the traditional interpretation of Farnsworth’s Charge. So, I’m off tonight, with a six hour drive to get there. It will be great to scratch that itch and get to see some old friends in the process.

I also get a special treat tomorrow. Some weeks ago, a fellow named Robert Poirier, who wrote an excellent book on the role played by graduates of Norwich University of Vermont in the Civil War, contacted me via the comments to this blog. One of those alumni was Lt. Edward B. Williston, a talented horse artillerist who won a richly-deserved Medal of Honor for his stellar performance on the second day of the Battle of Trevilian Station (one of eight Union Medals of Honor in those two bloody, brutal days of fighting). Bob’s letter informed me that Norwich had commissioned the artist Dale Gallon to paint a scene of Williston performing the deeds that earned him the Medal of Honor. From my book on Trevilian Station, Bob knew that I had a copy of Williston’s Medal of Honor file from the National Archives, so he wrote to inquire as to whether he could get a copy of it to pass on to Dale for his use in doing the painting. I called him back and said sure. In the process, I told him that if Dale wanted to see the battlefield, I would be happy to show it to him.

To make a long story short, tomorrow, JD and I are taking Dale Gallon and a representative of Norwich to Trevilians to tour the battlefield, and, in particular, so I can show them the specific ground where Williston deployed and fought his guns so magnificently that day. The last time that I was on the battlefield at Trevilian was at the 140th anniversary event in June 2004, so it’s been just a few days shy of two years since my last visit. Since then, the Trevilian Station Battlefield Foundation has acquired more land, and more of the Virginia Civil War Trails markers that I wrote have been installed, so I’m really looking forward to the visit. I also need to shoot some photos of the battlefield for the new edition of the book that will be published by Bison Books, which is part of the University of Nebraska Press.

I told Dale that my fee for doing this for him was a personally signed copy of the print when it’s done, and I’m looking forward to adding it to my collection. There’s a place waiting for it here in my office. He agreed. Dale’s also a good guy, and it will be fun spending a day with him. Previously, I sent him a copy of the book and a copy of the General’s Tour article that I did for Blue and Gray Magazine several years ago. He’s visited the field once on his own, but wanted me to show him around. Because Williston’s actions can’t be understood in a vacuum, I will show them the whole battlefield, including where Williston’s guns were deployed on the first day of the battle, so that the second day is placed in its proper context.

Those of you who know me, know that I have been involved in the preservation and interpretation of this battlefield for years. I volunteered to help the TSBF when it was in its infancy and nothing more than a few well-intentioned locals trying to figure out how to save their battlefield. When the book was finished, I donated my research files to them to use as the nucleus for a research library when they eventually build a visitor’s center someday. Consequently, it’s become a very special place for me, and it’s been my honor and privilege to help to preserve the legacy of this hallowed ground for generations to come. Of all of the things that I’ve done with respect to preservation, nothing has meant more to me than being asked to write the text for those Virginia Civil War Trails markers that now adorn the battlefield. If anything, they are my permanent and lasting legacy, and certainly my permanent contribution to the Battle of Trevilian Station. I swell with pride every time I see them, but at the same time, it’s quite humbling to know that I was the one asked to write them, and that those markers are the first (and sometimes only) impression that visitors to the battlefield get.

I will be home Sunday night. If time permits, I will try to post something between now and then, but don’t be surprised if I don’t. We’ve got a pretty packed schedule.

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Loyal reader Russ Bonds passed this tidbit along. Thanks to Russ for bringing it to my attention.

I found this to be one of the most appalling, inconceivable things I’ve seen in a long time.

Present is worst of times for historical markers
By DAVID PENDERED
The Atlanta Journal-Constitution
Published on: 03/27/06
All that’s left of the historic marker at the site where Atlanta surrendered to Union Gen. William T. Sherman’s army is a broken post that bows toward the ground.

“If the state needs $300 to put it back up, I’ll pay,” Bruns said.

The fall of Atlanta is often considered to be THE decisive moment that guaranteed the re-election of Abraham Lincoln in the fall of 1864. Obviously, the site where that occurred is a critical spot, obviously well worthy of interpretation and being marked. The marker itself obviously already exists. So, we’re talking about a lousy $300 to replace the pole.

Is the State of Georgia REALLY that poor?

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Those of you who know me, know that I love obscure battlefield sites most of all. From my perspective, the more obscure, the better. They fascinate me endlessly. In the past two days, I have added two more such sites to my list of places visited.

Last night, I spoke to the Clarksville, TN Civil War Roundtable, which is run and operated by our friends Greg and Karel Lea Biggs. It was a quick trip, down yesterday and back today, as poor Susan needs help with running our business and with managing Rory. It was made clear to me that I had to be gone as short a time as possible. However, I had a chance to do a little bit of battlefield stomping while I was gone.

Yesterday, Greg took me to see Fort Defiance, the earthen fort in Clarksville. The fort itself is completely intact. It overlooks the Cumberland River, and was build to defend the town and the river during the early stages of the war. It faced only the river. Then, after it surrendered to Grant after Donelson and Henry fell, Union troops built another side to it to defend from the land side. The entire fort is there, you can see where the heavy guns were located on the river side, and see where the light guns were placed on the land side, the magazine is there, and it’s one of the most nicely preserved earthworks I’ve seen in a long time. There is interpretation on markers all around the fort to help visitors understand what happened where inside the fort, and it’s got plenty of parking. And it’s a city park. Kudos to the City of Clarksville for preserving the fort and for making it a nice place to visit.

Today, I took a detour to take visit the battlefield at Corydon, Indiana. My route of travel was by way of Louisville, and Corydon is twenty miles west of Louisville along I-64. Since I have no idea when I will be that way again, I decided to take the opportunity and visit the battlefield. By way of background, John Hunt Morgan and his 2400 raiders crossed the Ohio River and entered Indiana on July 8, 1863. By the next day, they were closing in on Corydon, which was the first state capital of Indiana. It’s a lovely little town, bissected by a river, and with towering bluffs overlooking the town from the south. The local militia commander decided to defend the town in the hope that regular Union forces would catch up to Morgan’s force if they delayed him long enough. So, with about 400 men to try to stop Morgan’s division, the local militia prepared a defense.

They constructed some rude breastworks of logs atop a ridge overlooking the town, and they waited. Morgan approached, and a stiff firefight occurred. Basil Duke, Morgan’s brother-in-law and chief lieutenant, praised the defense by the militiamen, noting that they had “zealously defended their log piles.” Eleven of Morgan’s men were killed in the fighting, and several were wounded. Three of the home guardsmen were killed and over 350 of them were captured. They were then paroled, and Morgan entered the town, ransoming it, and then moving on. In the big scheme of things, it was a pretty small engagement, but it was the only Civil War battle fought in the State of Indiana. It being the middle of the day on a Thursday, it’s not much of surprise that I had the place to myself.

The folks at Corydon are, rightfully, quite proud of their battle. The battlefield itself is small, and it’s almost perfectly preserved. Why? Because the town owns it, and it’s a public park. The park consists of about five acres. There’s a walking trail, and there’s a six pound howitzer there. There is some interpretation there, a log house that was apparently on another part of the battlefield and relocated, and a marker to commemorate the dead of both sides. There are no maps, and not much tactical detail, but someone with experience in evaluating terrain will have little problem figuring out what happened there. The position was eventually flanked, as the Union line was too short to hold for long. At the same time, appears that the town holds interpretive talks at the site, as there are a number of wooden benches in front of the log house that are obviously aligned to hear a talk by someone on the front porch of the log house.

It really is a very nice little park, and I was very impressed by it. Hats off to the folks of Corydon for their terrific treatment of their little battlefield.

It stands in stark contrast to Ohio’s only battlefield. I have mentioned the disgraceful treatment received by the Buffington Island battlefield here in a previous post. Although nearly 12,000 cavalrymen fought there over several hundred acres, only four of those acres have been protected. In short, a space smaller than that at Corydon is protected even though it was a full-scale battle that ranged over hundreds of acres. All I can say is, “what’s wrong with this picture?” Obviously, the powers that be here in Ohio have a lot to learn and even more to be ashamed of for letting such a thing happen.

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On February 16, I learned of the senseless vandalism of three handsome monuments on the battlefield at Gettysburg. Vandals pulled the top stone and sculpture off of the 11th Massachusetts Volunteer Infantry Monument, dedicated on October 8, 1885. The 11th Massachusetts monument is located on Emmitsburg Road at the intersection of Sickles Avenue. Vandals pulled down the bronze sculpture of a Zouave infantryman from the pedestal of the 114th Pennsylvania Volunteer Infantry Monument, dedicated on July 2, 1886, located at the Sherfy house on Emmitsburg Road. The figure landed on a decorative iron fence that was also damaged. Finally, the bronze figure of a cannoneer topping the monument to Smith’s battery, in the Devil’s Den area, suffered $100,000 worth of damage. The head of the cannoneer is missing entirely. This is one of my very favorite monuments on this battlefield, and it saddens me deeply to think that it will probably never be the same again. There simply is no reason or justification for what was done to it.

Photos of the damaged monuments appear here. See for yourself the senseless devastation of these monuments, which were placed on the battlefield by the veterans of these regiments, and which represent our nation’s heritage and legacy.

Chances are that this senseless idiocy was the work of bored college students or idiot teenagers. Now, I was both. I was an idiot teenager, and I was a fraternity idiot. We got in a lot of trouble during my last semester in college when we vandalized a fiberglass grizzly bear. We destroyed the thing, but there was nothing historic about it, and it surely was not a part of our national heritage. It cost $1000 to replace the thing. So, I have some first-hand knowledge from whence I speak. I also have a certain amount of understanding of the motivations that cause otherwise intelligent human beings to do idiotic things. In our case, it was way too much alcohol. I have to imagine that the same thing happened here.

However, there is a HUGE difference between understanding it and endorsing the conduct. In fact, I think it is, without question, one of THE most reprehensible things I have ever seen. I hope that these imbeciles are caught, and that they are prosecuted. In my mind, there is no punishment or penalty severe enough. Perhaps these jackasses might show some regret for what they did if they know that they face 15-20 years in a Federal penitentiary as their reward, as well as having to pay all expenses associated with repairing the damage that they caused. If it was up to me, I would give them an immediate death penalty, no decades of endless appeals, and no lethal injections. It would be hanging by piano wire, something especially brutal. That would send the message that needs to be sent. From where I sit–and yes, I know I’m a lawyer and that this is a purely emotional response on my part–there is no penalty severe enough to impose upon the morons who did this.

The National Park Service already suffers from having its budgets stripped away whenever the Bush Administration needs to trim its immense deficits. I worry, therefore, for how long it will take to repair the damage done to these monuments, as who knows when funds will be available to do so. There is simply no way to predict when funds might be available to repair these national treasures. For now, the damaged figures have been stored to keep them safe until they can be repaired and returned to their rightful places.

So, to all of my loyal readers, I don’t ask much of you other than for your attention from time to time. This time, however, I am going to ask something of you. Please write to your Congressman and your Senator and ask them to appropriate funds to repair these monuments AND to increase security at sites like Gettysburg. And please, if you can spare a few dollars, contribute to any funds that may be established to raise money for the repairs of these monuments. I hope I’m not imposing on our relationship by asking you to do this, and I likewise hope that it’s not too much to ask of you. However, this is something that I feel very strongly about, so that’s a risk I’m willing to take.

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Morris Island is a spit of sand just south of Charleston Harbor. During the Civil War, it was the site of Battery Wagner, a formidable sand fort that helped to defend the entrance to Charleston Harbor. Because of the narrowness of the island and the fact that any attacking forces had to run a gauntlet to get there, Battery Wagner never fell during the Civil War. It was also the place where the 54th Massachusetts Infantry made its ill-fated but heroic attack, as depicted in the Oscar-winning 1989 film Glory. No matter what, Morris Island played a major role in the drama that played out as the Union made attempt after attempt to force the surrender of Charleston throughout the war. Interestingly, the commander of the Union forces trying to take Charleston for much of the war was Rear Adm. John A. Dahlgren, the father of Ulric Dahlgren. Ulric spent some time there in the fall of 1863 while recuperating from the combat wound that cost him a leg, all of which just further adds to my interest.

The passage of time, the relentless pounding of the sea, and the damaging winds and waves and hurricanes have not been kind to Morris Island. In spite of that facct, it remains a powerful and moving place. Perhaps it’s the connection with the 54th Massachusetts that makes Morris Island such an important spot. Perhaps it’s that Battery Wagner was never conquered and represents a proud symbol for the Confederacy. Perhaps it’s that what remains of Morris Island–much of it has eroded away, including the remnants of Battery Wagner–is completely pristine and undeveloped. What remains of the island remains in the same wild condition that it was in prior to the outbreak of the Civil War. It is therefore, no surprise that there was a great hue and cry raised when plans to develop what remained of Morris Island were announced. It’s no secret that oceanfront property is tremendously valuable, that oceanfront housing is tremendously profitable, and that the developer stood to make tens of millions of dollars if the development was done. Oceanfront property in a wealthy community like Charleston is doubly valuable.

As Dimitri Rotov has documented so well in his blog, a coalition of local activists, led by the mayor of Charleston, national preservation groups, and grass roots opposition to the idea of developing Morris Island quickly came together and mounted an extremely effective campaign. Bobby Ginn, the owner of Morris Island, listened to what they had to say. In a startling turn, Morris Island has been saved. Unlike most instances where greedy developers use the fact that land is historic to blackmail preservation groups or the government to pay a super-premium price to preserve the land, Mr. Ginn has done something really remarkable. “Mr. Ginn already has set a sterling example. He purchased the property from its owner for $6.5 million and is selling it to the Trust for Public Land for $2 million less. Further, he has promised another $500,000 to plan and provide for public access,” noted a recent newspaper account.

Let’s be clear about this: the developer is taking a $2 million LOSS on this property AND is going to donate an ADDITIONAL $500,000 to make the island accessible. There are no strings attached; it’s an outright purchase and sale of the property that will keep Morris Island in pristine condition. “What we have here is a very generous and community-spirited company,” said Charleston Mayor Joseph P. Riley Jr. who helped work out the deal.

First, and foremost, we all owe Mr. Ginn a great debt, both for being an eminently reasonable man who was willing to listen to public opinion, which was overwhelmingly against the development of Morris Island, and also for being unfailingly generous by not only giving up his profit, but for selling the land at a loss just to make sure that it remains pristine.

Second, we can all learn a lesson from this episode, which demonstrates how effective a well-coordinated public and private preservation effort can be when the city fathers look beyond tax revenues and see the importance of preserving our historic legacy. “This is the best scenario possible: Everybody wins,” said Blake Hallman, a volunteer with the Morris Island Coalition that sought to preserve the tract. Charleston Mayor Riley, who led the charge to save Morris Island, quite correctly observed, “We were able as a community to make a very important decision that we would not allow the pressure of economic growth to damage a special and sacred place.”

I tip my hat to all involved in this great battlefield preservation victory.

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Yesterday’s post on the contrast between Appomattox Court House and Bennett Place got me thinking about this issue further. The following is a National Park Service list of the battles that occurred in North Carolina or significant Civil War sites located in North Carolina:

Albemarle Sound
Averasborough
Bentonville
Fort Anderson
Fort Fisher
Fort Fisher
Fort Macon
Goldsborough Bridge
Hatteras Inlet Batteries
Kinston
Monroe’s Cross Roads
New Berne
Plymouth
Roanoke Island
South Mills
Tranter’s Creek
Washington
White Hall
Wilmington
Wyse Fork

Distinctly missing from this list are Fayetteville, site of street fighting on March 11, 1865, and Bennett Place.

Roughly half of these sites pertain to Sherman’s Carolinas Campaign or to the Wilmington Campaign that preceeded it. Some of these sites have well-done North Carolina state parks: Bentonville, Fort Fisher, and Fort Anderson, although it’s interesting to note that the primary marketing of the site at Fort Anderson is the colonial Brunswick Town site, and not the awesome earthworks of Fort Anderson, which are really downplayed. Fort Macon is part of a state park in Atlantic Beach that has historic significance to more than just the Civil War–it was part of the network of World War II coastal defenses that also included Fort Sumter–and which also provides nice recreational facilities.

By contrast, the Kinston and Wyse Fork sites are run by a local preservation group, and Averasboro is operated by local not-for-profit organization. Monroe’s Crossroads sits in the middle of the drop zones at Fort Bragg and is almost completely inaccessible to the public. Maybe 100 people per year get to see it.

My point in all of this is that of these twenty battle sites–twenty-two, if you add in Bennett Place and Fayetteville–not a single one is a National Park Service property, and, other than Fort Anderson and Monroe’s Crossroads, which is sheltered by its location within the boundaries of Fort Bragg, none are fully preserved as a consequence. All that remains of Fort Fisher, by example, is a miniscule portion of the fort’s ramparts while the rest is either under water or under multi-million dollar beach front houses. Much of Bentonville remains in private hands. Large portions of the Averasboro battlefield are also still in private hands.

By contrast, there is a Revolutionary War site–Moore’s Creek–about twenty miles northwest of Wilmington that was a small skirmish between Tories and patriots that involved no more than a few hundred men that is fully preserved as a National Park Service site. Guilford Court House–a large scale engagement that directly led to Cornwallis moving his army to Yorktown–is also a National Park Service site. That’s not to downplay Guilford Court House–it was, in fact, one of the most pivotal battles of the Revolution. However, it is no more–or less–important than say Bentonville, and, in my humble opinion, is less important than Bennett Place in the big scheme of things.

What is it about these North Carolina Civil War battlefields that has caused them to be treated like the proverbial red-headed stepchild? Is it that these battles involved neither Lee nor Grant? Is it that there was no massive bloodletting such as that at Antietam, Gettysburg or Spotsylvania Court House? Is it that we’ve grown so parochial in our view of the war that only sites in Virginia are viewed as worthy? Is it that Sherman’s Carolinas Campaign came so late in the war that nobody cares? I genuinely don’t know.

I do know this: these battles are as full of human drama and human suffering as any other, and they deserve our respect just as much.

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David Terrenoire posted a comment in response to my entry “Of Books and Dilemmas”, and mentioned that he lives about a mile from Bennett Place, the site of Gen. Joseph E. Johnston’s surrender to William T. Sherman on April 26, 1865. His post reminded me of the absolutely stunning difference between the Bennett Place site and Appomattox Court House, the site of Robert E. Lee’s surrender of the Army of Northern Virginia.

The entire village of Appomattox Court House was purchased by the War Department and was turned into a shrine. It’s now part of the National Park Service, with many of the buildings–including Wilmer McLean’s handsome home–having been reconstructed as replicas of the original structures. The Appomattox Court House National Park consists of 1800 acres and includes 27 original structures. It is amply monumented, and the small battlefield area–the fight was brief and aborted when Lee realized that Union infantry had arrived and that his plight was hopeless–is well interpreted. There’s even a small military cemetery on site, a large Eastern National Park & Monument Association book store with an excellent selection, and a visitor center with a nice museum. It’s a place well worth visiting. I’ve only been there once, but I spent the better part of a day there, exploring the place and seeing what there was to see.

There have been lots of books written about these events. Jay Winik’s April 1865: The Month that Saved America comes to mind immediately, as does William Marvel’s A Place Called Appomattox. There are also the many fine works by Chris Calkins on the Appomattox Campaign, and any number of other similar works.

It’s important to remember that after Lee surrendered to Grant at Appomattox, there were still three major Confederate armies in the field: Joseph E. Johnston’s army in North Carolina, Richard H. Taylor’s army in Alabama, and Edmund Kirby-Smith’s army in the Trans-Mississippi. Contrary to popular belief, Lee’s surrender did NOT end the Civil War. Johnston had a nearly insurmountable lead over Sherman’s army, and Sherman would have been hard-pressed to bring Johnston to bay had Johnston not decided that further bloodshed would have been completely useless.

Johnston asked for a truce, and arrangements were made for Johnston to meet Sherman at David Bennett’s farm, about four miles from Durham, NC. There, on April 17, the two commanders met and negotiated not just the surrender of Johnston’s army, but peace. They negotiated an end to hostilities as well as the surrender of Johnston’s army. Sherman gave Johnston extremely generous terms, and they signed an agreement on April 18, subject to government approval. Although Jefferson Davis readily approved these liberal terms, an angry Federal government, still stinging from the assassination of Abraham Lincoln, rejected them. Grant then ordered Sherman to re-negotiate the terms with Johnston to match those given to Lee at Appomattox.

Davis, opposed the surrender of Johnston’s command under the terms given to Lee, ordered Johnston to disband the infantry and escape with the large force of cavalry attached to Johnston’s army. To his undying credit, Johnston disobeyed those orders, met Sherman again on April 26, and surrendered nearly 90,000 Confederate troops on the same terms given to Lee’s army at Appomattox. The troops included men in the Carolinas, Georga, and Florida. Only after Johnston surrendered did Taylor and Kirby-Smith finally surrender, too.

In many ways, what happened at Bennett Place is more remarkable, and more important, than what happened at Appomattox. However, the Bennett place episode has long been ignored in light of the more dramatic events at Appomattox. The Bennett Place surrender site is a North Carolina state park that occupies about four acres. It has a couple of monuments, a replica of the Bennett house, a small visitor center with a couple of museum exhibits, a movie, and about a dozen books for sale. The contrast is absolutely shocking when compared with the plush and huge national park at Appomattox. The Bennett Place park sits a couple of hundred yards from an Interstate freeway, nestled among houses, so there is no way that it could be expanded. There are a couple of monuments and gazebo. And that’s all there is to commemorate one of the most important events of the American Civil War.

Fortunately, in recent years, thanks to the brilliant work of Mark L. Bradley, Sherman’s Carolinas Campaign and the events at Bennett Place have finally begun to receive some recognition for their importance. Mark has written an excellent book titled This Astounding Close: The Road to Bennett Place, published by the University of North Carolina Press in 2000. This outstanding book finally puts the last days of the Carolinas Campaign–the five weeks after the Battle of Bentonville–and the events at Bennett Place in their proper context. I highly recommend this book to anyone interested in the surrender of Johnston’s army. This book deserves its place next to Winik’s book (which I have always thought was badly overrated and overstated) on the shelf of anyone who claims to be truly interested in the healing of the war’s wounds.

I can only hope that some day, the events at Bennett Place will receive the level of attention and the volume of scholarship devoted to Lee’s surrender at Appomattox Court House. Sadly, though, I doubt that will happen.

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As promised, I am today addressing the issue of the recent U. S. Supreme Court decision on eminent domain. Before I do, though, I thought I would complete the airport saga. Our plane did not push back from the gate at Atlanta’s Hartsfield International Parking Lot until 2:05 AM this morning, meaning we did not get to Columbus until almost 3:30. Until we got to the car and drove home, it was 4:00, and until we got the dogs settled down and we got to bed, it was 4:30. Needless to say, I am fading fast as the afternoon drags on. At least I’m home.

Now to the topic at hand.

The Fifth Amendment to the United States Constitution provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The final clause is the so-called “takings clause”, which makes it illegal for government entities to take private property for public use without compensating the owner of the property. The power to take private property for public use is called the power of eminent domain.

On June 23, the United States Supreme Court decided the case of Kelo v. City of New London. The issue in this case was whether the City of New London, Connecticut could use the power of eminent domain for use of the land by a commercial developer in a for-profit venture intended to stimulate the local economy. A severely divided court found that the takings clause of the Fifth Amendment in fact permitted this outcome: “In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose ‘public use’ requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a ‘public use’ within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.”

Justice John Paul Stevens, the Supreme Court Justice with the longest tenure of the present roster, and the author of the Kelo opinion, later said it was one of the most difficult decisions he’s ever had to make, and also indicated that he felt it was consistent with settled law. However, it has generated a blizzard of criticism, and for good reason. Even the likes of Tom DeLay, with whom I virtually never agree on anything, has called it a dreadful decision, and it is certainly that.

Many states have already taken Justice Stevens’ invitation to enact legislation to limit this power, and the House of Representatives has passed a bill to limit funding to states that permit this sort of atrocity to occur. Interestingly, the City of New London, responding to the firestorm of criticism, has apparently even shelved the project that spawned this litigation in the first place.

Having set the stage, we now turn to the issue of battlefield preservation and the implications of the Kelo decision. Unfortunately, as pointed out last night, there is a developer in Georgia who intends to develop the Lovejoy Station battlefield using Kelo as his weapon. If this occurs, then the U. S. Supreme Court’s decision, which most people believe is one of the worst it’s ever made, will serve as a tool for taking even more battlefield land instead of protecting it–it would take private land and use it for commercial development.

Traditionally, it worked the other way around. Congress used its power of eminent domain to acquire the Stuart’s Hill parcel at Second Manassas, albeit at great cost. However, it was a way to take threatened land, and turn it into national park land, something that is clearly a “public use”. The problem here is that Kelo gives developers a tool to do just the opposite. And that scares the daylights out of me. What about land owned by, say, the Save Historic Antietam Foundation? What if a developer wanted to build a big Wal-Mart right next to the Antietam battlefield? Under Kelo, if the local government went along with it, it could happen. Irreplaceable battlefield land would be lost forever.

Therefore, please write your Senators and ask them to support legislation to roll back Kelo. Do the same with your state legislators. We, as people interested in battlefield preservation, have only one chance to do this, and we have to do this right. Help stop anyone else from having their property seized by eminent domain for commercial development.

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Today, I’m going to wrap up this series on battlefield preservation. I hope that it hasn’t been too boring.

In my mind, the key to successful battlefield preservation is being pro-active instead of reactive. In other words, think ahead, plan ahead, and make the necessary arrangements to preserve the ground instead of panicky, crisis mode responses to threats.

Here’s an example.

Ohio has only one Civil War battlefield, at Buffington Island in Meigs County on the Ohio River. On July 19, 1863, Federal cavalry forces under Generals Judah, Hobson and Shackleford finally caught up with Morgan’s raiders, and a short but sharp engagement followed that led to more than half of Morgan’s command being captured. About 13,000 cavalrymen were engaged there, so it was a good sized action. The battlefield itself is largely pristine. The only changes are a handful of 20th Century houses, and an elementary school (which is now a community center that will house a museum exhibit on the battle). Meigs County, and in particular the area where the battle was fought, is a sleepy place, and the county is very poor.

A major portion of the battlefield has been owned by a sand and gravel company for decades. The company claims that the blend of sand, loam, and gravel there is unique and that there is no substitute parcel for this one. Consequently, the company has planned to turn a very significant portion of the battlefield into a very unsightly sand and gravel pit for decades. Lots of permits are required–from the Army Corps of Engineers, the Ohio Department of Natural Resources, etc. That process takes years.

In 1997 or so, we learned that the company had begun the process. I offered my legal services pro bono, and was involved in trying to stop it. We got a brief stay from the ODNR based purely on an emotional appeal, but the company eventually prevailed. All of the permits have been issued, and sooner or later–probably sooner than later–the battlefield will be forever destroyed. At the time, Bob Taft was running for governor of Ohio. Given his family history, I figured it was worth trying to get his support. His campaign office was in the same building as my office, so I made an appointment with one of his policy wonks. The guy politely heard me out, and then we never heard another word about it. Why? Apparently, the politics are such that jobs in a poor county are much more desirable than the preservation of a Civil War battlefield and the injection of whatever tourist dollars it might generate. Taft was not interested. I shouldn’t have been surprised, but I have to admit that I was.

Eventually, the final recourse available would have been an eminent domain proceeding to save the battlefield. Eminent domain falsl within the takings clause of the 5th Amendment of the U. S. Constitution, which says that the government cannot deprive a person of his or her property without paying them fair compensation for that property. Eminent domain proceedings can be very expensive, since they usually entail knock-down-drag out fights over the value of the property, and it requires taxpayer dollars to pay that compensation. Again, jobs are politically more desirable than preservation, and we couldn’t get anyone interested in pursuing that avenue either. With that, we were done. There was no other recourse left to us at that point. Given that the sand and gravel company has owned the land for decades, there’s nothing we can do about it.

The Ohio Historical Society owns 4 acres of the battlefield, and, to mollify some of the hue and cry, the sand and gravel company agreed to save 4o acres of the most heavily fought-over ground when the time comes. And that’s the end of it.

With a little bit of foresight by those in power, and the expenditure of what would have been a trivial sum of money in those days, this land could have been preserved forever. Instead, that shortsightedness will cost Ohio the legacy of its only Civil War battlefield. It’s a tragedy, but there is NOTHING that can be done at this point.

The moral of the story, and of this entire series of posts, is: Use common sense. Think ahead. Plan ahead. Make contingency plans. Get politicians on board to support preservation efforts. Work with developers, not against them. Be realistic and understand that you won’t save every parcel. Save those that are worthy of saving. Make wise use of limited preservation dollars, and get the maximum benefit for those dollars, even if it means that General Hossenfeffer’s historic outhouse gets bulldozed as a consequence.

And in so doing, you will help to save the legacy of our battlefields for generations yet to come.

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Today, I want to address the question of prioritizing. A couple of days ago, Drew Wagenhoffer made an especially prescient comment in response to one of the other posts in this series: “Also, I would prefer that money be spent on open spaces rather than buildings, which are outrageously expensive to “restore”. People seem to want to keep every little shack that was a general’s HQ during some battle or another. I always cringe when I see several million dollars being spent on restoring some old home because “Washington slept there” or some other thing.”

Drew jumped the gun on what I had intended to say in this post, so kudos to him for making a very valid point.

Everyone has their own priorities and their own opinions, and I respect that. However, given a choice between saving a single building that has some historical significance or using the same money to buy actual battlefield land, that’s a no-brainer in my book. I am, at heart, a pragmatist. Recognizing that you’re never going to be able to save every marginally significant piece of land–and that doing so is not necessarily in anyone’s best interests–means that picking and choosing one’s fights is the key. Only fight the fights that are worth fighting, is what I always tell my clients.

Basic laws of economics apply here. Supply and demand govern. Let’s start wtih the following assumptions: the amount of battlefield land available is finite. So is the amount of money available to be spent on preservation. Thus, it seems to me that simple cost-benefit analysis should govern the exercise. Is it, for instance, a better use of scarce resources to spend several million dollars on a parcel of land next to a battlefield that saw no fighting, but which was important staging ground that was used as a bivouac site, or is it better to use those same dollars to buy a house that General Hossenfeffer used as his headquarters for three hours? It seems to me that it’s a much better use of those scarce dollars to buy the land next to the battlefield to preserve it and to prevent commercial sprawl from creeping right up to the edge of the battlefield, than to preserve General Hossenfeffer’s outhouse. If you need an example of what I mean here, pay a visit to the Monocacy battlefield just outside Frederick, MD some time. A massive mall one one side of the road and an enormous strip shopping center on the other butt right up to the battlefield, a matter of a few yards from where Special Orders 191 were found in 1862. It’s scary.

Now, I fully understand that some folks won’t get this, that they think it’s more important to preserve the outhouse since General Hossenfeffer used it once. I respect that opinion, but it seems to me that with the basic laws of supply and demand governing these events, it makes much more sense to prioritize and to get the maximum effect possible for those scarce dollars. If that means that some marginally significant ground is lost on one battlefield to save truly significant ground at another battlefield, I can live with that and not feel badly about it. In my humble opinion, it’s far better to save as much ground as possible than it is to spend those scarce dollars on the place where General Hossenfeffer took a nap for an hour.

It’s all about common sense, folks. Use more of it, act like a reasonable, rational human being, and developers will be much more likely to want to work with you than to go running away from the stark raving loonies bound and determined to save that outhouse.

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