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| 7/14/2009 8:51:00 AM | Email this article • Print this article | As rule proceeds, public access to Stewardship lands still in doubt
The devil will be in the details
News Analysis
Hunters and anglers, hikers and bikers and bird-watchers - all those and more breathed a big sigh of relief when a bid to eliminate public-access requirements on lands purchased in part or in whole with state Stewardship dollars was deleted from the recently signed state budget bill.
But hold the High Fives. Depending on the language, a rule being promulgated by the Wisconsin Department of Natural Resources could still thwart legislative intent and limit the public's ability to enjoy those lands for recreation.
The public-access stipulation is itself relatively new, the result of a 2007 budget compromise in which Republicans agreed to support an extension of the Knowles-Nelson Stewardship Fund for another 10 years and to an increase in its annual spending allocation from $60 million to $86 million in exchange for guaranteeing public access on any land bought with Stewardship dollars.
The law required the parcels to remain open for "nature-based outdoor activity" unless the Natural Resources Board determined prohibition was necessary to protect public safety, to safeguard a unique animal or plant community, or to "accommodate usership patterns, as defined by rule by the department."
In other words, to avoid broad-brush, bureaucratic excuses to barricade properties, the agency was directed to specify and quantify what would constitute those risks on any given property, and the Natural Resources Board had to ratify its decision.
The idea was to limit, not expand, the ways Stewardship acreage could be declared off limits.
During this year's budget process, the co-chairs of the Legislature's Joint Finance Committee, state Sen. Mark Miller (D-Monona) and state Rep. Mark Pocan (D-Madison), sought to jettison the delimiting statutory provision altogether, but the proposal was deleted after a howl of protests from various outdoors' and sports' groups, aided by Republican lawmakers.
By retaining the language, the riled constituencies, as well as the Republicans, were mostly trying to protect access for hunters. Now ironically, some fear the administrative rule could accomplish what Pocan and Miller wanted to do all along.
Ostensibly, the rule would define the process for fulfilling the 2007 compromise to maintain a property's accessibility save for the three threats "as defined by the department." And that's where some worry that the agency will delineate those perils in such a way that broad public use of many Stewardship parcels will be effectively checked and, in some cases, blocked.
Between 2007 and January of this year, the DNR convened a 29-member citizens' advisory group to help write the rule, much like the advisory group impaneled for the recent rewrite of the state's NR115 shoreland zoning code.
As with that latter group, some members of the panel have 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, also 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."
The history of the rule process
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.
There are two components of the Stewardship program: direct DNR fee purchases or property acquired through easements, and grants to nonprofit conservation organizations and local units of government for acreage and easement acquisitions.
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 is disputed by some, among them Jeff Nania, the executive director of the Wisconsin Waterfowl Association and a member of the DNR's advisory panel for the access rule.
Speaking in an early June press release, when Miller and Pocan proposed drop-kicking the access requirement, Nania said doing so would waste the committee's work, which had been fruitful and insightful, and pose a serious risk not least because not as much land was open now as claimed.
"We learned that the statement '97% of all stewardship land was open to hunting' did not reflect the real picture," Nania said. "Many properties were open for hunting during a day or two of the deer season and closed to everything else the rest of the year."
Then, too, in recent years, there has been a growing push for more restrictions, and hunting has in fact been declared off limits on some Stewardship properties, especially those purchased through grants in locations where local ordinances prevent the discharge of firearms.
That has irked sportsmen and sportswomen, who have historically rated the Stewardship program highly because of the ready availability of such lands. Hence the 2007 obligation to keep Stewardship lands open for nature-based recreation - which includes hunting by statutory definition - except for narrow public-interest reasons, the definition of which the Legislature left to the DNR.
To reach such a definition, the Natural Resources Board held three listening sessions during the summer of 2007 to solicit public comment on the rule, and DNR secretary Matt Frank appointed and stocked the advisory committee with representatives of recreational and conservation groups, of local units of government and land trusts.
According to most observers, the members of the panel worked hard to reach a consensus that would be fair to everybody.
"During that time the group discussed many issues and, I thought, resolved them," Nania said in his June statement. "For example, hunting is by all accounts safe; much, much safer than many outdoor pursuits like biking or hiking. There is no documentation whatsoever that shows there have been any significant number of user conflicts between hunters, anglers and trappers and others on multi-use properties."
No one came up with any information to support that hunting, fishing and trapping were any kind of problem at all, he continued, and most people at the table worked honestly and productively. But, he said, a handful of people wanted to use tax dollars to buy public land, only to shut those lands down to the public.
"For no other reason than a personal bias," he wrote. "A bias they are only able to support with stories of imaginary dangers and conflicts. It has nothing to do with fact or what is good for the land, wildlife, and citizens of our state. Not little pieces of property but huge tracts: thousands and thousands of acres."
Nania did not name names, nor did he say those naysayers were members of the advisory committee. But that panel notwithstanding, there are, to be sure, a number of vocal advocates for less access on Stewardship properties.
Some environmental aestheticists, for example, view human activity in wilderness areas as pollution, while, in an October 2008 resolution, the League of Wisconsin Municipalities cited both home rule and public safety in urban areas as reasons to drop the access mandate.
"... the League of Wisconsin Municipalities in conference assembled on October 23, 2008 opposes any attempt to undermine the sovereignty of municipal ordinances, policies and regulations designed to protect public safety, manage competing or conflicting parkland uses; or deny or in any way restrict Stewardship grant funding to local governments that have enacted such ordinances, policies or regulations," the resolution states. "Be it Further Resolved that the League of Wisconsin Municipalities supports flexibility in DNR rules to allow for stewardship funded land acquisition projects to proceed in situations where hunting and trapping is prohibited, not feasible or impractical, such as purchases involving smaller parcels of land in urbanizing, populous areas."
Semantics
The question is whether DNR staff will listen to the advisory committee's conservation members or bow to stronger political winds, not to mention the whims of some of its own, by invoking a rule that gives agency staff unsupervised powers to limit a broad array of recreational pursuits.
Whether that will happen won't be known until the rule draft is unveiled, but those worried about such an outcome point to an interim protocol adopted by the NRB in January 2008 for DNR staff to use for grant projects until the administrative rule was adopted.
The protocol includes a veritable laundry list of reasons for banning certain recreational activities. Staff not only considers local ordinances, for example, but also the activity's proximity to public institutions, residences, trails, developed businesses, commercial or industrial areas, or roadways.
Agency staff is also empowered to determine if an activity will degrade, destroy, or otherwise impair individual species or natural communities or has been found to do so in areas where the activity is now permitted.
Finally agency staff can evaluate whether a proposed activity would accommodate usership patterns, or would "alter or significantly curtail a primary recreational use of the property," or interfere with land management activities necessary to preserve, enhance, and restore the conservation values protected in the project.
Under the interim protocol, a NRB subcommittee reviews the proposed restrictions only if the DNR staff does not find the request for a restriction to be valid, according to the Legislative Fiscal Bureau, or by the NRB if a "substantive" objection as determined by DNR staff is raised after a public notice.
In other words, as long as the DNR is tightening restrictions and determining the merits of objections to those restrictions, the NRB won't get involved.
For some, using that interim protocol would lead to more closed land - and for a lot more activities than just hunting - and thus far the agency seems to heading in that direction.
In April, DNR staff issued its own recommendations for the rule language, though not the language itself, based on the advisory committee's work and public comments. And while the DNR suggests NRB review for prohibitions on directly acquired DNR lands, it does not for the grant lands, urging use of the interim protocols instead.
For all lands, there is a major question of semantics.
Put simply, agency officials have wondered, is there a difference between restricting an activity on Stewardship land and prohibiting that activity?
The statutory language only says the DNR can't prohibit activities unless the agency finds one of the three public-interest threats; it says nothing about restricting those activities.
Might the agency then severely curtail, though not eliminate, nature-based recreation, for virtually any reason and without taking the decision to the NRB, both for grant lands and DNR-acquired lands?
That very question in the context of grant projects was posed to DNR attorney Tim Andryk after an advisory committee meeting last October. Specifically, Andryk was asked to provide an opinion on whether a prohibition or a restriction of public access for a nature-based outdoor activity (NBOA) required approval of the Natural Resources Board under the 2007 legislation:
"If a type of NBOA is prohibited or a NBOA is restricted (such as no spring turkey hunting, no trout fishing, no trapping for bobcats, no hiking in the spring, no skate type cross country skiing), are those restrictions considered prohibitions that need to be approved by the NRB in order to retain stewardship funding?"
Andryk considered the question from opposing viewpoints.
On the one hand, he said, since "NRB approval is required to 'prohibit' a NBOA, that means the entire activity needs to be prohibited, not merely restricted, to require NRB approval for Stewardship fund eligibility."
That answer would be based on the following reasoning, he said.
"The common and ordinary meaning of 'prohibit' is to forbid, prevent, preclude or ban," he wrote in a Dec. 3, 2008, memo to DNR deputy secretary Pat Henderson, citing Webster's Collegiate Dictionary. "The common and ordinary meaning of 'restrict' means to restrain or control an activity, but not ban it altogether. Consequently, the statute requires NRB approval when prohibiting all hunting, but not when restricting hunting by allowing some hunting but not all hunting. The statute seems to recognize that reasonable restrictions should be allowable, without requiring NRB approval."
On the other hand, he stated, a nature-based recreational activity is broadly defined in the statutes and thus restricting or prohibiting a type of a NBOA might be a prohibition of an activity that would require NRB approval.
"The Statute defines NBOAs broadly, referring to 5 general types of activities and allowing more to be added by rule," Andryk wrote. "Consequently, prohibiting a type of an NBOA, such as spring turkey hunting, is a hunting prohibition that needs to be approved by the NRB in order to retain stewardship eligibility."
In other words, restrictions can be prohibitions.
"If a NBOA is restricted in a manner such that the major or most important part of it is not allowed, that is basically a prohibition of the activity," he wrote. "For instance if hunting or hiking are allowed only during a short period of time, so that the amount of hunting or hiking being allowed is not significant when compared to what can be allowed, these NBOAs are being prohibited. Similarly, if cross country skiing is allowed only on groomed trails, and rarely are there groomed trails on a property, this NBOA is essentially being prohibited and thus the prohibition needs to be approved by the NRB."
In the end, Andryk wrote in evaluating the arguments, the statute was not clear.
"Although the arguments seem to be a little stronger for NRB approval when prohibiting a NBOA entirely," he wrote. " . . . It seems unreasonable to interpret the statute to require NRB approval of any restriction or prohibition of a NBOA. But it also seems unreasonable to interpret the statute to allow many restrictions, without NRB approval, so that the amount of the NBOA being allowed is insignificant when compared to the NBOA activities that can be allowed. The answer is likely somewhere in-between, which is the purpose of the rule process to find that middle ground."
Will the DNR find that middle ground?
Time will tell, but for now its recommendations have been couched in broad language to preserve most of the agency's prerogatives and interpretations.
When considering public safety, for example, the DNR in its April recommendations says it should consider "potential user conflicts that could create public safety issues" - though this seems to be a solution to a problem that doesn't exist, since user conflicts have been rare, as Nania observed that the advisory group determined.
The agency also said it would consider the physical characteristics of a property, including the size, shape, ground cover and topography, that could create public safety issues, such as the proximity of dwellings, schools, roads, and campgrounds.
Most broadly, it recommended considering "any other public safety factors that may impact one or more NBOAs on the property."
The bottom line is, while the rule was sought to produce clarity to what Andryk called an unclear statute, it could reinforce that lack of clarity, and bestow agency officials with unprecedented power to restrict public recreation on Stewardship lands - exactly the opposite of what lawmakers intended.
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Reader Comments
Posted: Tuesday, July 14, 2009
Article comment by:
preston long
Typical, keep the area open to responsible outdoorsman.
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