A Legacy of Hurt:
Eminent Domain at Tocks Island

Eminent Domain

Eminent domain is the power of government to take private property when needed to serve a broader public purpose. Exercised with fairness and sensitivity, it is a legitimate tool that allows for roads and other public facilities to be built, and society to prosper. But what if it is not exercised fairly and with sensitivity, or if the underlying reason for its use is not valid?

This exercise of eminent domain was sanctioned in 1962, when Congress authorized the building of a dam near Tocks Island, several miles above the Delaware Water Gap, as a remedy to the massive flooding that had occurred in the fall of 1955. The project envisioned not only the building of a dam, but the creation of a 37-mile-long lake above it, flooding land on both the New Jersey and Pennsylvania sides.

A battle against the project raged for over a decade, but by 1977 it was clear that the dam was not going to be built. The lead role assigned to the Corps of Engineers by Congress to acquire the land and build the dam was reassigned to the National Park Service to administer a national recreation area on the acquired lands. By then, fearing that if Congress formally killed the project, that could affect the Corps’ ability to pursue other such efforts, the Corps’ initial zeal was replaced with a posture no longer supporting the project.

While the public policy battle raged, an estimated 15,000 people were displaced from the area, with 72,000 acres of properties being taken, either by accepting initial Corps purchase offers, or by enduring the rigors of fighting eminent domain hearings.

But these were not simple real-estate transactions. Lives and personal fortunes were shattered. To be sure, in such a large undertaking, not all were affected in the same way. Some actually benefited. Looking back, there was a steady stream of allegations of improper actions regarding the entire project, each of which might merit a detailed review, but for current purposes included:

• curious irregular boundaries established for the project, which benefitted some and hurt others¹
• last minute acquisitions of properties by “connected” parties, such as an island in the river which was purchased, stripped of its top soil, and then sold to the Corps at an alleged inflated cost²
• erratic patterns of which properties were selected for acquisition first, and how individuals were treated³
• a general breakdown of law and order as the population diminished, with traditional patterns of governance disrupted and not replaced with adequate law enforcement⁴
• allegations of stealing of personal properties by both government actors and squatters who had been moved into the area⁵

So diverse and spread out were the impacted property owners, that it is difficult to fairly sort out all of the claims individually, but the massive impact on families and the way of life in that part of the Delaware Valley was indisputable. This can be illustrated by considering the stories of a sampling of real people who led real lives.

Thomas H. Kean

The Kean family, respected leaders dating back to early New Jersey history, had acquired an old property known as Watergate in the late 1950s along the Old Mine Road in Pahaquarry. They used it as a summer and off-season retreat. It was purchased by the Corps as one of its early acquisitions.⁶ 

Certainly, an affluent and influential family might have taken this in stride, but one member in particular was already concerned about the environment. Tomas H. Kean, then a junior member of the New Jersey Assembly, started agitating against the acquisition of the nearby 44-acre glacial Sunfish Pond for a pumped storage reservoir to generate electricity.⁷

He was later to conclude: “I was a conservationist before they invented the word environmental….”⁸ “It became evident to me fairly soon that what I was fighting was the entire (Tocks Island) project and not just Sunfish Pond,” said Kean. “I made it my prime cause and the more they opposed me, the more irritated and angrier I became and the harder I worked on it. Everybody was for it. All the governors were for it as well as all of the economic bosses.”⁹

Campers and Summer Visitors

A group of marginally impacted people were those who had visited the area to camp, fish, and enjoy nature, especially in summer and fall periods. Some attended camps operated by religious and charitable organizations. To this day, participants speak of the sense of loss of their youthful adventures, and the escape from their normal lives, which were often in urban areas. Some speak of having later revisited, to poke around the foundations of bulldozed buildings and remember the river, the woods, and what had been.¹⁰

Their sense of loss, while real, is typically not on the central path of their lives. Some, however, who started visiting the area for summer recreation, came to purchase lots and rural homes, and establish roots. This was especially true around several lakes along the Kittatinny ridge, where groups of modest houses began to spring up. Some purchasers had even responded to ads by promoters to purchase lots that would rise in value, either through adjacency to the impending park, or from acquisition. Colonies of summer homes thus sprang up, and some retirees especially built small permanent homes they could afford.¹¹

One of the early “selling points” of the project to Congress was that not that many people lived in the affected area, thus opposition would be minimal and acquisition easy. The process of acquisition the Corps pursued, on its surface, was logical and fair.¹² But the manner of implementation was felt quite differently by those who lost their homes.

The Voices of Those Who Were There

Sandy Hull, a leader in the Delaware Valley Conservation Association (DVCA) that fought the project,  was later to recall that as the Corps’ acquisition efforts moved ahead, her old neighborhood shrank as others sold out and their homes were bulldozed. Services such as police protection and road maintenance withered. In 1979, lamenting the difficulty of ordinary people going to distant courts to plead their case, she told a reporter: “The law of eminent domain gives ‘em a license to steal.”¹³ She moved to a nearby town outside the project, and today when she drives through the National Recreation Area, she is confronted with painful memories. Yet she remains committed to encouraging today’s National Park Service to respect and restore the rich history of the area that the project had damaged.

Mina Hamilton’s family home on the fertile Pahaquarry Flat was acquired by the Corps in 1970. The rest of her family, wearied of the stress, had left. She continued residing there until she was forced to leave in 1987. While still there, it deeply troubled her to see the adjoining land that her family had farmed being leased out to other farmers by the Corps. A Harvard-educated and skilled communicator, she became an articulate and effective opponent of the dam project, and led the Delaware Valley conservation’s efforts for some years, serving as an outspoken president of the DVCA who brought well-researched facts to the public forum.  She recalled: “I hated it when those homes were bulldozed, the crunching sound they made was like hearing your mother moan. It’s like having your teeth drilled but the thing that’s being drilled is your heart.”¹⁴

Her documentation and publicizing of the land acquisition policies of the Corps, as well as the disastrous environmental mess the proposed lake would have created, helped frame the public debate, and she went on to be an effective environmental crusader on other fronts. The farmhouse she had grown up in was eventually torn down, and the land now lies overgrown and untended. To this day, she (along with some others) is convinced that the checkerboard pattern of land acquisitions by the Corps was an intentional plan to thwart any efforts to halt or reverse the project. She has explained the great challenge to ordinary people responding to an eminent domain order, and their difficulty in obtaining legal representation conversant with such matters, as well as enduring the cost and inconvenience of the drawn-out process.

Henry Tucker: “It’s sort of a sad affair, but what can you do?” said Henry Tucker, 80. He had a home off the main road above Shawnee. “My wife and I figured to spend the rest of our days there. The hills were so pretty and you could see the deer. But they plowed the house down. They chased me back into town…and the squatters shot off all the deer.”¹⁵

Others took it even harder. There were at least two reported suicides by people forced off their land. Isaac Dunlap, a 78-year-old man who lived in a house he had built in the project zone, was deeply frustrated by what he felt was unfair and inconsistent treatment compared with other properties when his property was condemned. Despondent, he told his family that life wasn’t worth living anymore, then went out in the woods and shot himself in the head.^15a

Clyde Fish had been born in Pahaquarry and attended the one-room Calno School on the Old Mine Road. In May 1974, he was 82 and his wife Frances was 80. 40 years earlier, they had built a modest home in Walpack, which the Corps condemned. When he could not afford the rent they demanded, they had to move away and place their remaining effects on auction. Their barn was being taken apart board by board as the auction ensued. “We don’t want to leave, but we have no choice,” Clyde commented. Most of their long-time friends refused to even attend the auction.¹⁶

Annie Oftedal was a retired long distance telephone operator, having moved with her husband to a remote area near Crater Lake 21 years earlier, building a modest retirement cottage with the idea of spending the rest of their days there. Her husband died. Other small homes had eventually been built near hers, but they were purchased and demolished.¹⁷ The area would not even have been flooded if the dam had been built.

She claimed that when the government bought her home in 1969, she was promised she could stay there for the rest of her life in return for accepting a low sale price.¹⁸ In the face of inquiries made on her behalf even at the Congressional level, the Corps asserted that for technical reasons she could not obtain life tenancy, and classified her as an “adverse tenant.” They had offered her a new location which lacked a well and septic system. “We showed her everything in the area,” the Corps’ Joseph Cook, by then on assignment to the Park Service to complete the acquisition program, said. “The replacement doesn’t have to be at the top of a mountain, and this lady wants to live on top of a mountain.”

When the government bought another woman’s house and relocated her to a trailer in another town, he was also quoted as saying: “Some trailers are better than some houses.”

With municipal services breaking down and uncertainty as to responsibilities, maintenance on the road to Annie’s house deteriorated to a point where access was difficult if not fully blocked. While the Corps and the Park Service quibbled over who owned the access road and would maintain it, she was cut off from food and propane to heat the house dwindled in dead of winter.^18A

Sidney Marshall and Jane Egbert, who lived on the ridge nearby, had to take her to the store, and at times bring in food and supplies on a sled.

Annie eventually died in the home in 1986, alone. By then, there were no neighbors at all. Her body was not discovered for several months.