Below is the complete Michigan Environmental Council analysis of Michigan Senate bill 39 referenced in the June 2015 ESLA Newsletter. Currently, the bill has been referred to the Natural Resources Committee. You can contact members of this Committee at: http://www.senate.michigan.gov/committee/natlresources.html
RE: Preliminary Analysis of SB 39
DATE: February 27, 2015
The Michigan Environmental Council, a coalition of more than 65 member-based organizations across the state, has reviewed and found some areas of common interest and other significant areas of concern with Senate Bill 39.
All commentary that follows, including references to page and line numbers, refers to the version of the bill introduced Jan. 27, 2015.
We have identified at least two areas where we see potential to work toward common objectives:
- Greater transparency in terms of DNR land access and regional ownership patterns.
- Greater clarity in the existing definition and process of “surplus land” designation and sale.
There are three main areas of concern to MEC, and a series of related issues, which would also lead to our opposition of the bill as drafted. The three primary concerns are:
- The bill would require motorized access onto all public lands and trails, regardless of potential negative impacts to other users and natural resources, or safety issues.
- The bill could force the DNR to sell any state-owned land or grant any easement requested, regardless of the recreational loss and impacts on public resources.
- The multi-use nature of Michigan’s state forests would be jeopardized by the establishment of universal timber harvest targets of 95% of minimum allowable sale quantities.
SB 39 would require motorized access onto all public lands and trails, regardless of potential negative impacts to other users and natural resources, or safety issues.
MEC opposes the series of provisions in this bill which would require the DNR to open all state forest and recreational land (other than state parks) to motorized recreational use. Our current ORV and snowmobile trail network allows significant opportunities to motorized vehicles users. We also oppose the removal of vital tools from the DNR’s management toolbox, including uses of gates and barriers to restrict and redirect recreational and other access issues where needed, including for safety concerns, natural resources protection and wildlife values.
The underlying issues driving these problematic sections of this bill appear to be related to ensuring access to public land – and the perception being that DNR is actively cutting off public access to public land. However, it must be stressed that “access to public lands” should not be equated to “motorized access to public lands.”
Walk-in, nonmotorized-only areas are legitimate uses of public lands, and in many cases are the ideal and most desirable uses by the recreating public. Hike-in only areas managed for their scenic beauty, solitude, peace and quiet, or walk-in only hunting (such as the new GEMS program) are among the primary public uses of public land. These lands remain open to public use and enjoyment, and have much support from those users who value the rustic, quiet recreational experience. Designated backpacking trails, mountain biking areas or equestrian zones, wildlife viewing areas, etc. are other examples of areas that might not be compatible with motorized access. To our knowledge, all limitations of motorized access to public lands are related to genuine recreational or resource protection issues and that most if not all state land remains open to the public, though some may be limited to walk-in opportunities.
MEC would support greater transparency related to access to state land, and would support a more careful examination of this issue. However, we think the state should be much more concerned about protecting the available tools necessary to carefully balance the availability of both motorized and non-motorized uses.
In many cases, the DNR uses berms and gates to achieve these purposes, including in many areas to protect and optimize user experiences; to enhance natural resource or cultural values, as in the case of delicate or rare flora and fauna that could be damaged by certain types of motor vehicle activity; and for safety purposes, as in the case of eroded or deteriorating trail conditions.
The provisions as drafted assume that all uses of public land are compatible on all lands at all times; but, in reality the DNR has to manage state lands for a variety of users and purposes, and not all desired uses can or should be forced to co-exist on every acre of land.
For example, ORV use and wildlife viewing would not be optimized shared uses, as the noise and activity of one user group would ruin the desired experience of the other. Similarly, equestrian areas are often purposely separated from motorized uses to ensure the safety and enjoyment of both activities. The examples of the DNR’s needing to be able separate recreational uses, forestry treatments, wildlife management activities, etc. abound. One of the benefits of Michigan’s public lands is the ability to focus different areas on different use providing a premier experience to residents and tourist which visit Michigan.
In areas of recent timber harvest, barriers comprised of slash timber are often purposely left to block access to the area to allow regrowth to take hold and minimize additional activity until the area is stabilized. The unintended consequence of the language could be the department being resistant to allowing logging in a certain area due to the impacts that future access could have on the area. All such activities represent legitimate land management tools that could be prohibited by this provision.
SB 39 could force the DNR to sell state-owned land and grant any easement requested, regardless of public resource or recreational loss.
MEC supports current statutory provisions that provide a process of designating as “surplus” and state land considered for sale. However, a host of additional requirements proposed in the bill would bypass this process, and would deny the agency necessary time, resources and capacity to perform due diligence in reviewing the quality of the land, its value to the public, or potential impacts to natural and recreational assets. We also think the department needs the ability to recoup costs of perform reviews (a $300 maximum fee for processing a sale or easement can only be recouped if the sale or easement is approved).
Finally, and most problematic, the bill would negate its own process of designation of “surplus” state land, treating all land as surplus.
The multi-use nature of Michigan’s state forests would be jeopardized by the establishment of universal timber harvest targets of 95% of minimum allowable sale quantities.
Michigan already has a comprehensive approach to forest management through its state forest planning process, including extensive public input on regional state forest plans and compartment reviews. These provide an important tool to balance the multi-use demands on the forest (timber, recreation, scenic beauty, hunting and fishing, etc.) that would be undermined by a simplistic minimum harvest target.
OPPORTUNITY 1: As area of further discussion,MEC would support the call for greater transparency in terms of DNR land access and regional ownership patterns, and would be interested in working with the bill sponsors to further narrow and develop the idea of reporting on land trends by region, and access changes that impact resource values and recreational use:
However, we do not feel it is appropriate to add this as a new requirement to a plan that was previously requested by the legislature, and which was subsequently drafted and submitted to the legislature for approval by the DNR. This kind of specific reporting information could just as easily and more appropriately be requested as part of an annual report as part of the legislature’s appropriations process. We would welcome to opportunity to work with sponsors on this concept.
OPPORTUNITY 2: MEC would suggest focusing efforts on providing greater clarity in the existing definition and process of “surplus land” designation. We think the process could be improved and made more transparent and protective of the natural resource values and public interests in state-owned land, and would like more detail on this surplus land review and designation process, and also in how sales of surplus land are conducted. MEC, for example, believes a more fiscally responsible approach would be to create an auction process for lands declared surplus (unless perhaps sold to an adjacent owner, local government or qualified conservation organization), rather than the DNR negotiating only with a single potential buyer, to ensure that maximum value is secured for any sale of public land.
Additionally, surplus land review could be improved by better defining the process and motivations for surplus land designation, specifically focusing on the existing statutory language that states ”the sale is in the best interests of the state,giving due regard to the variety, use, and quantity of lands thenunder the control of the department.” We would welcome to opportunity to work with sponsors on this concept.
Additional areas of concern:
- Creating a 5-year annual approval process of the DNR Land Strategy for Removal of Land Cap
This section is somewhat unclear, but it appears that under this provision, removal of the current land cap would become a provisional activity, necessarily repeated every 5 years via mandatory approval of an updated DNR land plan by the Michigan Legislature (pg. 2, line 26 and pg. 3, line 12). The legislature retains oversight authority of the DNR through the appropriations process for land acquisitions undertaken by the DNR in its administrative capacity, but the agency should not be statutorily in the position of “approving” ongoing operations of a part of the administrative branch of government. MEC would like to see the DNR land strategy approved as soon as practicable, and the DNR authority for land acquisitions and management returned to the administrative branch with oversight on an annual basis by the legislature.
- Adding that PILT payments be directly tied to Removal of Land Cap
Removal of the current land cap would become contingent upon full PILT payments being made to local government (pg. 3, line 2 and 3, line 15). The DNR does not control PILT appropriations (a legislative function) or their timely payments (a function of Dept of Treasury), and we do not believe the agency should be obligated to perform an activity they do not directly administer or control.
- Creating additional penalties for trespass specific to DNR employees.
Sec. 514 (pg 15, line 1), which outlines references the penal code but creates additional penalties specific to the DNR, seems unnecessary. Any individual, whether an employee of the DNR or not, is subject to state law. MEC sees no need to create additional penalties unique to DNR staff.
MEC and our members recognize that the public values and wants more (not less) recreational public land, as evidenced by the healthy flow of applications into the Natural Resources Trust Fund. Public lands in Michigan must serve a variety of masters, from timber production to birdwatching, trail riding, hunting and fishing and more. This a difficult and complicated endeavor, made ever more complicated by changing recreational interests of the public and by evolving global markets for natural resource products such as timber and minerals.
We welcome the opportunity to work with bill sponsors to address these concerns and find a workable solution to address concerns and support an accessible, healthy and vibrant base of public land in Michigan.
Brad Garmon Director of Conservation and Emerging Issues