 |
|
|
| 11/3/2009 10:56:00 AM | Email this article • Print this article | DNR rule would reverse presumption of openness on public lands
Will DNR staff make final decisions, contrary to state law?
News Analysis
The Wisconsin Department of Natural Resources is moving ahead with a proposed administrative rule that would allow the department and private conservancy organizations to prohibit certain outdoor recreational activities on state Stewardship lands without the approval of the Natural Resources Board - a policy that seemingly conflicts with state law.
With public hearings complete and the rule filed with the Legislative Council, agency staff is expected to soon advance the rule to the Natural Resources Board for approval.
Under the proposed rule, the DNR staff would make determinations about prohibiting various nature-based outdoor recreational activities, such as hunting and fishing, both on lands bought directly by the agency and on those purchased with Stewardship grants by local governments and private organizations, such as land trusts and conservancy groups.
Once the department makes such a determination, it would either write a rule to enforce the prohibition - on department-owned land - or include the prohibition in the grant contract for nondepartment-owned land, and then give public notice of the proposed ban.
That's where the rule becomes complicated.
Under the existing language, after public notice is given, people would have 15 days to object to the proposed prohibition. What's more, those objecting must explain how they would be affected by the ban and they must give a reason for the objection.
In other words, not just any citizen can complain - only so-called affected parties. In addition, those who are qualified to object must demonstrate how the proposed prohibition of the activity is inconsistent with state statutes.
If no objection is raised within the 15-day period, the department is then free to enact the prohibition or execute the grant. While agency staff must file a report containing all its determinations to the NRB, and the NRB must take public testimony on those determinations, the rule specifies that the testimony is for information only and not for appeal of individual agency determinations.
Specifically, the rule would allow the agency to prohibit one or more nature-based outdoor activities to protect public safety; to protect a unique animal or plant community; or to accommodate usership patterns.
Questions, questions
The proposed rule language does not define how the DNR will determine who is and who is not an "affected" party able to object to a proposed prohibition, nor does it explain why it does not require the Natural Resources Board to make all decisions on proposed bans, given that state law says the NRB must do just that.
Neither of these issues escaped the notice of the Wisconsin Legislative Council's Rules Clearinghouse, which prepares comments on all proposed rules. In a Sept. 29 report to the agency, the Clearinghouse asked the DNR to clarify the language and justify its authority.
"In (the rule), the department should clarify its authority to limit public comments to those made by 'affected' parties," the report stated. "Additionally, if the authority exists, the department should provide additional guidance regarding the determination of whether a party is sufficiently 'affected' to merit consideration of that party's comments."
The Clearinghouse report also underscored the Legislature's intent, as laid down in state statutes concerning Stewardship land access. That statutory language provides that the department or any person receiving a stewardship grant after Oct. 27, 2007, "shall permit public access to the land for nature-based outdoor activities" but may prohibit one or more of the activities for certain reasons "if the natural resources board determines that it is necessary to do so ..."
The Clearinghouse report referenced the latter language.
"The (statutes) generally provide that nature-based outdoor activities must be allowed on certain lands unless the Natural Resources Board determines that it is necessary to prohibit public access for one or more nature-based outdoor activities," the report stated. "However, (the rule) provides that if no objection is received within a 15-business day comment period following the submission of a proposal to prohibit a nature-based outdoor activity, the department will allow the project to proceed."
That effectively stands the law's assumption on its head, and the Clearinghouse asked the DNR to explain itself.
"Thus, in the situation in which no objection is received to a proposal to prohibit a nature-based outdoor activity, the statutory presumption of open use of the property is reversed into a presumption that some activities will be prohibited without a specific determination made by the Natural Resources Board," the report stated. "What statutory authority exists for this rule provision?"
What can they say
The DNR's expected rebuttal can be found both in the language of the rule itself and in the plain language analysis it submitted earlier to the Clearinghouse.
While the statute says the activity can be prohibited if the NRB finds it is necessary to do so, the language of the rule says the NRB has already made a potential pre-determination on all stewardship lands.
"In accordance with (the statute), the natural resources board has (emphasis added) determined that it may be necessary to prohibit one or more NBOAs on department or non-department land ...," the proposed rule states.
In other words, the NRB would simply be delegating in advance specific individual prohibitions to its staff.
What's more, in its plain language analysis, the agency observes it does submit a report containing all its decisions to the NRB, and the NRB must take informational public testimony.
"The public will have a chance to comment on the proposal to buy the land and prohibit the activity," the report states. "The department and the natural resources board will evaluate the public comments and apply the standards and criteria identified in the rule when determining whether the prohibition meets the intent of (state statutes)."
Under this scenario, the agency implies, while the NRB does not actively vote on most activity prohibitions, it does have the opportunity to review staff decisions. Whether the agency will make that argument in its reply is speculative, but it is also arguable that the rule precludes the NRB from overturning a staff objection.
"The department shall submit to the natural resources board at each meeting a report that summarizes stewardship program land purchases and determinations made by the department under this chapter," the rule states. "The natural resources board shall hear public testimony concerning the department's report to the board three months after the effective date of this rule and biannually thereafter."
However, that public testimony is "for information only" and is "for the purpose of allowing the natural resources board to review the determinations made ...," the rule states, adding that appeal rights for individual decisions are handled separately.
In others words, must the NRB reject the entire report and all its determinations if it wants to overturn just one?
Those questions have prompted some to criticize the vagueness of the rule's language, which they say could allow DNR staff to do just about anything its wants to do.
That's exactly the way some groups view the rule's language. In a September position paper, the Gathering Waters Conservancy interprets the rule as vesting decision-making authority in the hands of DNR staff, and sees it as a good thing.
"The current draft of NR 52 would help to maintain a predictable process by vesting final decision-making on public access with the DNR staff, rather than in the governor-appointed members of the NRB," the paper states. "Some individuals and organizations have requested that the rules allow for a direct appeal from the DNR to NRB (i.e., if someone was unhappy with DNR's determination on public access, they could appeal it to the NRB). We believe that an appeal right to the NRB would simply serve to politicize the Stewardship grants process and would not provide adequate predictability for grant recipients."
Another ongoing concern for some is the ability of the agency or nondepartmental landowners to restrict activities rather than prohibit them outright, thus being able to foreclose access without any recourse for those objecting.
That's because the statute only refers to prohibited activities and not to restricted activities, such as limiting the types of hunting allowed or the duration of hunting allowed on the land. Again, the language of the rule is vague.
"A restriction of a nature based outdoor activity may be considered a prohibition if the restriction prevents a major or a significant amount of the nature based activity from occurring," the rule states, but it does not define who makes that determination.
History
The 2007-09 state budget reauthorized the Knowles-Nelson Stewardship Fund for 10 years with funding of $86 million a year beginning with fiscal year 2010-11. It formally defined hunting, fishing, trapping, hiking, and cross-country skiing as "nature-based outdoor activities."
Additionally, the law stated, access for one or more nature-based outdoor activities may not be restricted on land acquired in whole or in part with Stewardship funds, except for limited environmental or public safety reasons, and it directed the DNR to write a rule to govern that limited prohibition.
The idea was to limit, not expand, the ways Stewardship acreage could be declared off limits.
In July 2008, after holding a series of listening sessions, the department appointed a 28-member citizen advisory committee to provide input on developing the access rules. The advisory committee met six times between July 2008 and January 2009.
However, some members of the panel privately fumed about the agency's behavior during the meetings, saying, off the record, the DNR wasn't listening to what members had to say.
In a dispatch sent to conservation groups and published in the Green Bay Press-Gazette, the executive director of the Wisconsin Wildlife Federation, George Meyer, himself a member of the advisory committee, alluded to the possibility the rule process could be subverted.
"We will need to be continually vigilant on this issue," Meyer wrote. "There are hints that a separate legislative bill may be introduced deleting the Stewardship public access requirements and we are also anticipating that those opposed to public access for hunting, fishing and trapping will try to water down the access requirements by rules which will be going to the Natural Resources Board later this year."
Since 1990, the DNR has purchased or acquired easements on approximately 449,000 acres of land under the Stewardship aegis. According to the agency, as of 2006, about 90 percent of that acreage was open to the public for hunting.
According to a January 2009 report by the Legislative Fiscal Bureau's Erin Rushmer, the DNR says 94 percent of its direct fee and easement lands was open to hunting; for NCO grant lands, the figure was 62 percent; for local government grant lands, 23 percent.
That figure has been disputed by some, who say the statistics include many properties that are open for hunting during a day or two of the deer season and closed the rest of the year.
|
Comment on this story
|
|
|
|
