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E-M:/ A Bad Idea, Even if It was Legal

"A Bad Idea, Even if It was Legal"

Michigan Land Use Institute Managing Director Hans Voss and Friends of the Jordan River Valley Director John Hummer used these words to defeat a proposed fee charged to citizens who want to ask the state to protect unique and sensitive lands from oil and gas development. The two spoke before the Michigan Natural Resources Commission, a governor-appoint citizen oversight body for the Department of Natural Resources, when they met in Benzie County earlier this month.

The powerful descriptionó"a bad idea, even if it was legal"óled to a swift defeat for the oil and gas industryís recommendations for how the Commission should implement the 1997 State Land Reserve Act.

The Act allows citizens to petition to the Commission and the Legislature to afford long-term protection from oil and gas development to unique and fragile tracts of public lands. The Commission currently is considering nominations for Ludington State Park and portions of the Jordan River Valley, the first two nominations ever made.

Charging fees for the right to petition the state to protect unique public resources would have been a horrible precedent. The Commission regularly receives nominations for the Natural Resources Trust Fund and a new Purchase of Development Rights Program for farmland. The Commission has never charged citizens to comment on or participate in protective programs.

For more information about the Ludington State Land Reserve Nomination and Michigan's oil and gas policy, visit

The text of Mr. Vossís testimony follows.

State Land Reserve Designation Process
Testimony to the Michigan Natural Resources Commission

Presented by Hans Voss,
Managing Director, Michigan Land Use Institute

Thompsonville, Michigan
July 12, 2000

The Michigan Land Use Institute appreciates the efforts put forth by the Michigan Natural Resources Commission and the staff of the Department of Natural Resources to develop the Proposed Review Process Outline for Designation for a State Land Reserve. The Institute trusts the Commission will adopt a process in the near future and fulfill its statutory obligations to consider State Land Reserve nominations for Ludington State Park and the Jordan Valley Management Area that have been before you for several months.

Proposed Nomination Fee
It has been suggested that the Commission establish a nomination fee for the submittal of land reserve petitions. The amount of $2,000 per petition has been proposed, and appears to be under consideration by the Commission.

Such a fee is not within the authority of the Commissionís role as designated in the State Land Reserve Act and runs counter to the rights of Michigan citizens seeking the protection of natural resources. The proposed fee sets a bad precedent by setting an unnecessary barrier for citizens.

The Institute respectfully asks the Commission to eliminate the fee proposal from any further consideration for the following reasons:

1. The Commission cannot legally require a fee
Any action by a state agency must be statutorily authorized and also be constitutional.* The State Land Reserve Act does not allow for a petitioner fee. Rather, the statute requires the Commission to consider petitions submitted by the public to create State Land Reserves. The Commission must receive the petitions from the public, consider the question promptly, and advise the legislature.

The State Land Reserve, in part, states:
Upon Petition, recommendation of the Department, or on its own motion, the Commission shall place on its agenda at an upcoming meeting of the commission the question of designation of a state land reserve. [MCL 324.502(1)]

The Legislature passed the State Land Reserve Act without authorizing the Commission to levy an application fee. They realized that the interests of those profiting from the development of public resources differ from those seeking to set off limits to development. So, the State Land Reserve Act sets very different standards for citizens seeking to comment on how the state should steward natural resources.

Clearly, the Commission has the right to charge fees for certain activities as set forth in various enabling statutes governing such uses as access to state parks and forests, the taking of game, and the development of minerals beneath public lands. But the Natural Resources and Environmental Protection Act allows the commission only to "promulgate rules, not inconsistent with law, governing its organization and procedures."  [MCL 324.502(1)] Charging a fee to consider State Land Reserve Petitions, without enabling statutes, is "inconsistent" with the State Land Reserve Act.

The Legislature did not authorize any fees, but they did set strict criteria for qualifying public lands to be included in State Land Reserves. They also require the concurrence of the Commission, House and Senate to create the reserve. Public bodies must act in concert. In doing so, they can work to effectively manage certain special public lands such as Ludington State Park and the Jordan Valley Management Area.

2. Fees should be levied for consumptive uses
The Institute supports the Commissionís policy to require payments and fees for those who use the publicís natural resources consumptively. Those who deplete a finite resource owned by the public, permanently alter the resources, or consume renewable resources should compensate the public for this privilege. The Stateís decision to use this type of payment structure, in part, to fund the Natural Resources Trust Fund, and increase the publicís ownership of significant natural areas is a tribute to Michiganís long tradition of wise stewardship.

In these days when there is scarce public funding for natural resource management in the state, the Institute also acknowledges that the Department must fund some of its activities through user fees. The Legislature has wisely authorized the Commission to levy fees for those deriving personal gain from their use of public lands and facilities, such as the harvesting of timber from state forests, the extraction of minerals owned by the public, or the taking of wildlife.

3. A fee is a barrier to citizen involvement
It is the right and the responsibility of Michigan citizens to actively engage the Commission in discussions regarding resource management. It is the Commissionís responsibility to receive this comment and act when appropriate.
The Institute urges the Commission to emphasize mechanisms for encouraging the public to suggest ideas for resource management. Erecting barriers to public dialogue through exorbitant petitioner fees will only stifle the publicís willingness to participate in important public land decisions, and will serve to undermine the underlying Public Trust principles that rely upon on the active involvement of the citizenry.

Levying a hefty $2,000 to consider a State Land Reserve Petition, is a violation of due process that dictates that a law shall not be unreasonable, arbitrary or capricious. The means of implementing a law, such as the State Land Reserve Act, must have a reasonable and substantial relationship to the object being sought, and must be fundamentally fair.

If a person wants to profit from the consumptive use of public resources, then charging fees and payments is reasonable. But if the public is seeking to make a suggestion to the Commission regarding what its recommendation to the Legislature should be, then a $2,000 fee is neither reasonable nor substantially related.
Rather, its serves as a kind of voter tax, long outlawed in this country, which works to disenfranchise the public from freely voicing their opinion on an issue.

4. A fee sets a bad precedent
The violation of law aside, charging a fee to consider a public petition sets a bad precedent for the Commission. As you know, the Commissionís role extends far beyond consumptive uses such as oil and gas development, timbering, hunting and camping. The Commission also is the stateís natural resources steward, along with programs that protect and preserve resources such as grant-making from the Natural Resources Trust Fund, Purchase of Development Rights to protect agricultural landscapes, and development of public parks and trails.

The Commission must not erect a barrier to public involvement in these decisions. Never should the state charge a fee to a local government or citizen that applies for a grant from the trust fund, or to a community before it can ask the state to designate or improve a park. The Commission is meant to balance competing interests, not put up for sale the right to comment on management of these same resources.

Imagine charging fees to let a community representative making a request to the Commission to build a shower at a campground. Imagine charging a fee to anyone requesting a Trust Fund Grant Application or nominating lands to be considered for the Purchase of Development Rights Program.

Similarly, the Commission should never find itself charging fees to take public comment on how to steward natural resources, and this includes public recommendations to designate significant lands as State Land Reserves. Clearly, this is a step far outside of Michiganís rich civic tradition.

The Land Reserve is a much needed tool
Three years ago, the Institute joined with the Department and the Commission to support the State Land Reserve Act as it moved through the Legislature. Then and now, we recognized it as an important and missing resource management tool.

In past years, the Department has spent a great deal of staff time and a good deal of political capital wrestling with industry proposals to develop oil and gas reserves beneath Ludington State Park and the Jordan Valley Management Area. This costly and difficult process came about in part because, at the time, the state could not create a State Land Reserve. Instead, the Commission could only respond to nominations for development, and only after the Department invested staff time processing these nominations for auction.
Michigan citizens and state agencies both expended significant resources responding to poor development proposals. But it was the only choice given the paucity of management tools or the ability to proactively manage significant public lands.

Now that the legislature has acted to adopt the State Land Reserve Act, the Commission now has the necessary tools to proactively manage significant public lands. The Institute urges the Commission to act swiftly, and to act wisely, to adopt a clear and concise process for considering nominations from the public, without fees or other barriers, and to make clear recommendations to the Legislature through the nomination process.

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