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| 3/17/2009 9:54:00 AM | Email this article • Print this article | Lawmakers pick up DNR's push for warrantless searches
LRB: DNR could enter any premise where vehicles or boats are stored
Last year the Wisconsin Department of Natural Resources began promulgating a rule that would allow the agency's wardens to enter private homes and properties to conduct searches for invasive species, and now two lawmakers are touting a bill that would give the agency even more power to enter private property, according to an analysis by the Legislative Reference Bureau.
Under the rule proposed last year, wardens would have the right to enter property whenever they "reasonably" believed an invasive species was present on the premises.
The rule passed the public hearing stage, and a legislative council review was forwarded to the agency, but the DNR has yet to forward final language to the Legislature.
But state Sen. Bob Jauch (D-Poplar) and state Rep. Nick Milroy (D-Superior) have picked up the torch by asking all legislators to co-sponsor their own invasive-species control bill, which, according to the Superior-Douglas County Area Chamber of Commerce, will "compliment (sic) and enhance" the proposed DNR rule.
In a Feb. 24 email memo to all legislators, Jauch and Milroy laid out their reasons for proposing the measure, which seeks ostensibly to clamp down on the transportation of invasives. While current law prohibits any person, with certain exceptions, from transporting a boat on a highway if it has an invasive species attached, the bill would expand that prohibition to include any aquatic plants or animals.
"Citizens are deeply concerned about the threat of invasive species to our lakes and waters," the lawmakers wrote. "Lacking a statewide rule, a few counties have enacted their own ordinances to control invasive species and prohibit invasive species transport. This bill establishes statewide enforcement on the transportation of invasive species."
Jauch and Milroy said the legislation would build upon efforts included in last year's budget adjustment bill by expanding restrictions on the placement and operation of any object in a navigable body of water with aquatic plants or animals attached and by prohibiting any person from operating any vehicle on a highway with aquatic plants or animals attached.
As it turns out, their bill would do a whole lot more than that.
It would also authorize the agency to conduct "compliance investigations" and allow the DNR to promulgate an emergency rule to identify, classify, or control an invasive species without providing evidence of an emergency. Such rules can be in place for up to two years.
The deadline for signing on to co-sponsor the bill was March 6.
LRB analysis
As of Friday, the proposal, numbered LRB 1401/1, had not been formally introduced and final text was not available. However, in their memo, Jauch and Milroy included an analysis of draft language by the Legislative Reference Bureau.
According to the analysis, the bill would not only expand the law enforcement authority of DNR wardens but empower non-law enforcement DNR personnel to enter a person's private property as well.
"This bill authorizes DNR, for the purpose of administering and enforcing the statewide invasive species program, to conduct compliance investigations," the LRB analysis states. "The bill authorizes a DNR warden or other DNR representative to enter premises where invasive species are stored, where records relating to invasive species are kept, where vehicles, boats, equipment, or materials are located, or where activities related to invasive species are conducted. It also authorizes DNR to inspect invasive species stored or possessed by any person, inspect records or reports relating to invasive species, take diagnostic samples, and seize and destroy certain invasive species."
In other words, any DNR representative could enter any property where a vehicle or boat is kept at any time to conduct a compliance investigation.
If the actual bill language reflects the LRB analysis that Jauch and Milroy circulated, the legislation would go far beyond what the DNR itself was seeking in the rule language submitted last year.
To be sure, even then the agency had preserved its prerogative to be proactive on private property.
"The rules authorize the department to enter property for the purpose of inspection, sampling and control of prohibited invasive species and allow the department to order persons who own, control or manage property where prohibited invasive species are present to implement approved control measures," an agency analysis of the rule stated. "If a control order is not complied with and the department undertakes control measures, the rules allow for cost-recovery by the department for the expenses it incurred."
Still, the rule would have limited DNR entry powers to those locations where the department had "reason to believe that a prohibited species is present."
That might be vague but the LRB analysis indicates that the Jauch-Milroy bill is much more explicit and goes further by allowing any DNR personnel to enter property not only where there they suspect invasives species are kept but where any vehicles or boats are located.
Is it constitutional?
Constitutional questions have been raised.
After the agency submitted its rule last year to the Legislative Council, the council issued its own report, highlighting a number of concerns.
For one thing, the review observed, the agency needed to explain its statutory and constitutional authority to require a person to allow it access to the person's property as well as its authority to require that person to control invasive species that exist on the property.
The agency has not replied to those concerns, and it has acknowledged controversy over the rule itself, which may be one reason it has failed to push it forward.
After the DNR prepared an initial rule and posted it on its website last December, and held six public listening sessions to receive feedback, it conceded concerns over the rules enforcement section.
"There were concerns that the rules appeared to be too focused on enforcement for prohibited species, allowing the department to order controls, enter onto land to inspect, control or monitor and to charge the landowner for the control efforts," the agency replied in its comments on the listening sessions. "Utilities, land trusts and others who hold easements on property want to have the rule clear as to which parties are responsible for the control of prohibited species, and about liability for accidentally transporting invasive species when doing construction and maintenance activities."
Whatever the reason for the DNR's inaction on the rule, lawmakers Jauch and Milroy have felt no such hesitation themselves, and last week were gaining environmentalist support for the measure.
"(Invasive species) can literally choke the life out of our lakes and waters," wrote the League of Conservation Voters in urging support for the proposal. "LRB 1401/1 would protect our waterways and the native species that live there by limiting the spread of invasive species. The bill, which is modeled after several county ordinances, would give the DNR more ability to limit the transportation of invasive species from one waterbody to another."
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Reader Comments
Posted: Wednesday, April 15, 2009
Article comment by:
TC
Maybe the DNR should read the Fourth Amendment to the U.S. Constitution, it states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Posted: Friday, March 20, 2009
Article comment by:
Tim Grady
Some years ago, I heard someone say that DNR stood for Damn Near Russian. It isn't "damn near" anymore. Private property is no longer private if this gets enacted. The DNR's solution is way overreaching, but the citizenry stick their heads in the sand. Welcome to Moscow!
Posted: Wednesday, March 18, 2009
Article comment by:
Mark Kilgore
This is FRIGHTENING! Even law enforcement requires a court order to do this. This is truly a major example of BIG BROTHER watching over us. I for one am concerned about the invasive species issue but this is NOT a good way to go about protecting us. This gives the DNR unlimited access to our personal lives. Just Say NO!
Posted: Tuesday, March 17, 2009
Article comment by:
Jon Rippinger
Sounds to me like this is a way the DNR{damn near russia}could either collect more fees or run the costs up so high they just take the lake property. I ask myself How could something like this ever get passed into law?
Posted: Tuesday, March 17, 2009
Article comment by:
John Murphy
This seems like another example of government using scare tactics to assume more power of citizens. Where I have I heard that before....Oh yeah, thoughout history!
The DNR wants the Prairie Du Sac damn to be modified which will allow invasive species up river and they want any of their employees to have the right to enter any property where they suspect invasive species ight be present.
I sense a little irony.
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