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Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
*Anne-Marie Carstens
In early 2025, the Octagon Earthworks, a 2,000-year-old indigenous ceremonial and burial site comprised of earthen geometric structures, opened to the public. The opening came after two parties—the government agency taking possession through eminent domain and the leaseholder that occupied the site—settled the last issue in their drawn-out legal dispute by agreeing on the just compensation owed for the taking. The site forms a crucial part of a collection comprising the Hopewell Ceremonial Earthworks, which was nominated by the United States in 2022 and selected by the World Heritage Committee for inscription on the international World Heritage List. The list is the core feature of one of the world’s most popular treaties (by participation), the Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention). The treaty celebrates and provides a protective framework for listed sites of “outstanding universal value,” and the World Heritage List today includes 1223 heritage sites in 168 countries. The Hopewell Ceremonial Earthworks became only the fourteenth cultural or mixed cultural-natural heritage site in the United States to make the list.
The litigation’s friction points nonetheless highlight lingering questions at the intersection of the Takings doctrine and international cultural heritage law. First, the case brought into question when holders of private property rights ostensibly must be ousted to satisfy the treaty’s requirements of “authenticity” and “integrity.” Second, the litigation embodied a resurgent, palpable resistance to recognizing public parks and other aesthetic objectives as a valid “public use” under the Fifth Amendment’s Takings Clause and its state corollaries. In doing so, it offered another data point on “public use” in the post-Kelo environment.
The Octagon Earthworks Site & the Takings Controversy
According to the nomination file submitted by the United States, the Octagon Earthworks and the larger Hopewell Ceremonial Earthworks complex consist of massive, geometrically shaped mounds constructed by the Hopewell culture that flourished in the Ohio River Valley as a religious movement (rather than a distinct indigenous group) from approximately 1CE to 400CE. The United States observed that the Octagon Earthworks showcase the vanished culture’s profound mathematical skill and astronomical understanding because corners of the octagonal shape “encod[e] all eight lunar standstills over an 18.6-year [lunar] cycle.” When the moon peaks at its northernmost point at the end of each lunar cycle, it “hovers within one-half of a degree of the octagon’s exact center,” making the site “a testament to indigenous sophistication.” The mounds were long known to form part of an ancient ceremonial site, but modern scholars only came to recognize them as a mathematical and cosmological marvel in the 1970s.
Ohio’s state historical organization initiated a condemnation proceeding in 2018 to take full possessory rights through eminent domain. In a twist from the usual takings action, the organization already owned the property in fee simple since 1933. But it did not possess the full idiomatic “bundle of sticks” because it had continuously leased it to the challenging party, the Moundbuilders Country Club. The litigation established that the club had operated a golf course on the mounds since 1910, initially pursuant to a lease with the city, the organization’s predecessor-in-interest. In fact, the nomination file acknowledges that the private country club was established for the express purpose of operating a golf course on the site as a cultural preservation measure. The city at the time lacked funds to create a public park to curb encroaching development and considered a golf course a viable alternative. In 1997, the historical organization renewed the club’s lease until 2078.
The club first challenged the basis for condemnation of its leasehold. Like most states in the wake of the U.S. Supreme Court decision in Kelo v. City of New London (2005), Ohio firmed up takings requirements under its state constitution, both through legislation and case law that judicially ratcheted down the deference owed to legislative determinations prescribing the government’s eminent domain powers. The challenge reached the state’s highest court, which ruled in State ex rel. Ohio History Connection v. Moundbuilders Country Club Co. (2022) that the historical organization could acquire full possessory rights to the “extraordinary piece of land.” The court observed that “[t]he historical, archaeological, and astronomical significance of the Octagon Earthworks is arguably equivalent to Stonehenge or Machu Picchu.” The ruling left the parties to tussle only over the measure of just compensation, which they resolved in the recent confidential settlement.
While the litigation was pending, the larger complex comprising the Hopewell Ceremonial Earthworks was added to the World Heritage List. Under the treaty, immovable cultural property qualifies if it possesses “outstanding universal value from the point of view of history, art or science” or “outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.” In addition to the primary criterion of “outstanding universal value,” cultural sites must also meet one of ten additional criteria. The Hopewell Ceremonial Earthworks qualified with two: representing “a masterpiece of human creative genius” and bearing “a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared.”
Private Custodians and Public Assurances of “Authenticity” and “Integrity”
According to the Ohio Supreme Court, the club asserted that it could maintain its leasehold at the Octagon Earthworks site, notwithstanding the site’s (prospective and then eventual) World Heritage status. It stressed that its leases obligated it “to preserve and maintain” the site and that it provided reasonable public access. The historical organization answered that it “could not convert the private golf course into a public park” without extinguishing the leasehold.
By all accounts, the club mostly acted as a good steward during its century-plus use, and its status as a private party was not automatically disqualifying. The World Heritage Convention does not require government control over nominated or listed properties. For example, the privately owned Guggenheim Museum comprises part of the World Heritage site celebrating the architecture of Frank Lloyd Wright, and several private properties are proposed for the nomination of Civil Rights Movement sites.
But the club also operated an active golf course on the site, installed paths for golf carts, and disturbed the mounds when renovating. Tensions over public access increased over time. Several mounds were off-limits to public use for much of the year, and the country club also imposed onerous restrictions that curbed use of the central part of the site. For example, the club assessed an access fee of almost $25,000 for a planned “moonrise celebration” at the site, to cover the costs of additional insurance, security, and a temporary platform to keep the public off the green. In arguing that it could coexist with the public on the site—and even making that argument the keystone of its motion for reconsideration—the club confused the ability of private property owners to maintain World Heritage sites with feasibility.
Not only was coexistence between golfers and the public infeasible, but swinging clubs, roving golf carts, and paved pathways were foreclosed by the treaty’s authenticity and integrity requirements. A nominating country must pledge to ensure the site’s authenticity and integrity, and failure to do so can lead to delisting, a draconian measure that the multinational World Heritage Committee has implemented for Liverpool and Dresden and threatened for Vienna. The treaty’s Operational Guidelines make clear that authenticity means that a site’s cultural values are expressed in attributes that include form and design, use and function, and location and setting. Integrity, on the other hand, “is a measure of the wholeness and intactness” of the site, which considers whether it suffers from development or neglect.
To this end, federal regulations provide that privately owned or controlled properties must have documented protective measures, such as real covenants that prohibit, “in perpetuity, any use that is not consistent with, or which threatens or damages the property’s universally significant values[.]” The regulations also provide that “no non-Federal property may be nominated to the World Heritage List unless its owner concurs in writing to such nomination.” New federal regulations on World Heritage nominations were proposed in December 2024 to help close gaps, including by shoring up the definition of an “owner” whose concurrence is required. The proposed regulations would limit the definition to holders in fee simple—unlike the definition of “owner” under Ohio’s eminent domain statutes, which extends to any individual or entity “having any estate, title, or interest in any real property sought to be appropriated.”
Aesthetic Takings
The club’s strenuous assertion that the taking was not “necessary” for a valid “public use” is more perplexing, even though the site’s World Heritage status was aspirational at the time of the taking and only materialized during the litigation. A government’s ability to take property through eminent domain for public parks is well-trod law, and Ohio law expressly specifies that public parks “are presumed to be public uses.” But the state’s post-Kelo legislative changes added the necessity requirement as a preamble to more specific requirements about taking blighted areas for redevelopment. The elevation of state takings standards above the federal minimum standard decoupled a long history of shared interpretation. The result may ultimately give less force to longstanding precedent for aesthetic takings for cultural heritage sites.
As far back as the late 19th century, the U.S. Supreme Court made clear that takings could be used for public parks. The Court in United States v. Gettysburg Electric Railway Co. (1896), for example, extolled the virtues of eminent domain to acquire private property rights to form a historically and culturally significant site: the Gettysburg National Military Park.
In 1929, on similar facts to those here, the Court even awarded penalties for a “frivolous” appeal because the appellant had “no basis for doubting the power of the State to condemn places of unusual historical interest for the use and benefit of the public.” The case concerned the Shawnee Mission, a site of “unusual historical interest” for which the state historical society acted as custodian. The City Beautiful movement of this same era often relied on takings to replace tenements and other downtrodden urban areas with public parks and scenic areas. Such initiatives sometimes had a sinister side when they disproportionately impacted minority communities, as when an African-American neighborhood in Charlottesville was replaced with a public park containing a monument to Confederate General Thomas “Stonewall” Jackson. (The Jackson monument and the infamous statue to General Robert E. Lee nearby were both donated by a city benefactor in the 1920s and removed in 2021.)
Here, the club suggested that it established a higher “public use” than a less-profitable heritage site. As the Ohio Supreme Court observed, the club argued “that its positive economic impact in the community and its efforts to preserve the earthworks provided a far greater tangible benefit to the public than the hypothetical and unlikely benefit to the public that allegedly would be realized by the appropriation [if listed on the World Heritage List].” Curiously, this argument is the antithesis of the anti-Kelo resistance, which objects to Kelo’s deferential gloss on “public use” based on increased tax revenue and economic development. Indeed, counsel for the Kelo homeowners raised the opposite hypothetical in their oral argument, arguing that it would subject a church to a valid taking when it “would produce more tax revenue and jobs if it were a Costco, a shopping mall or a private office building.”
To be clear, courts so far seem poised to reject such arguments, as the state courts did here. A similar takings dispute was also settled in 2023 for a visitor center and museum near The Alamo in San Antonio, part of another World Heritage site. Congress, too, has annotated the Takings Clause by acknowledging that use of eminent domain “to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent.” Last year, the Second Circuit upheld a city’s exercise of eminent domain even for a “passive use park,” an unimproved tract acquired to prevent the construction of a so-called “big-box” store. The lawsuit, in which the challengers were represented by the same legal counsel as the challenging litigants in Kelo, may be destined for the U.S. Supreme Court.
Even if heightened state standards for takings start to chip away at parks more generally, a World Heritage site’s recognized “outstanding universal value” should affirm a government’s right to flex its eminent domain power. As the court said about the Octagon Earthworks, “This is not just any green space. It is a prehistoric monument that has no parallel in the world in its ‘combination of scale, geometric accuracy, and precision.’” Now the public can visit a cultural heritage site that joins the impressive company of the best-known World Heritage cultural sites worldwide, including the Great Wall, Machu Picchu, the Taj Mahal, Vatican City, Rapa Nui, and Stonehenge.
*Anne-Marie Carstens, JD, DPhil, is Associate Professor of Law at the University of Baltimore School of Law and Senior Fellow at the Center for International and Comparative Law (CICL). She has written extensively in the fields of public international law, property law, and cultural heritage law, including as co-editor of a book and author of several book chapters and articles.
