The Politicization of Natural Resources

Background

In the 1995 budget, the Secretary of the DNR became a political appointment of the Governor’s (it had been appointed by the volunteer Natural Resources Board) and the state lost its agency watchdog - the Public Intervenor’s Office.  One outdoor writer called these moves - both initiatives of the Governor’s - "an obscene power grab."

Since that time, confidence in the DNR’s ability to make independent decisions has eroded quickly both within the sporting and environmental communities.  The DNR’s position in opposition to the Mining Moratorium bill quickly became the most glaring evidence that politics, not resource protection, was guiding some DNR positions.  Some of the sporting groups, such as the Wisconsin Federation of Sport Fishing Organizations and the Wisconsin Wildlife Federation, became so incensed that they began a campaign urging members to curtail their sporting pursuits until the DNR independence was restored.

What Happened in the Last Year?
 
In 1997, the DNR’s lack of independence became even more apparent.  In the last year, we received more than 30 calls from DNR staff who called our office anonymously  to complain about not being allowed to do their job. The reason in their words "now the DNR is a cabinet agency."

We note three more public examples of evidence in the last year that the DNR’s effectiveness is being hampered by politics:

• Example #1 - DNR opposed Mining Moratorium bill - Throughout the debate over the mining moratorium bill, the DNR’s position on it ranged from opposition to no position at all.  The DNR’s position on this bill was consistently closer to the position of the mining industry than it was to the position of the majority of citizens, especially outdoor enthusiasts, who strong supported the bill.

• Example #2 - DNR has Reduced Enforcement - The number of pollution violations which the DNR referred to the Department of Justice for prosecution dropped by 43 percent in 1997.  Legislators and Attorney General spokesman are concerned that violations may being taking place which are not being enforced by the DNR.  In 1996 the DNR hired a former office attorney for Governor Thompson to head their enforcement division.

• Example #3 - DNR Weakens Wetland Law  - Despite overwhelming public opposition, the DNR Board voted to give cranberry growers an exemption to the state’s wetland water quality standards which limits the filling of wetlands for development and agriculture.  The wetland standards require developers to do an alternative analysis to find sites which avoid wetland destruction.

Although citizens opposed this rule change by more than 50 to 1, the rule was adopted on a 6 to 1 vote by the DNR Board.  The new rule reduces the extent to which alternative sites need to be explored by the cranberry industry alone.  DNR Secretary George Meyer told the Board that the rules  would not result in any additional "significant adverse impacts" to wetlands or water quality.  He also stated to the Board:  "I do not believe that this rule change is necessary and clearly is not worth the public criticism that it has generated toward the Board and the Department."

The concept of "Takings" comes from the assurances in both the federal and Wisconsin Constitutions that private poverty shall not be taken for public use without just compensation.  As this issue has been interpreted by federal, and to a lesser extent state courts over the last century and half, property is considered to have been "taken" if it is physically used by government, for example build a school or lengthen a runway  at an airport, or if limitations on the use of the property result in a loss of substantially all of its value.  Although, this term has never be quantified, the courts generally require that the land owner have lost in excess of 90 percent of the value of his or her property.

The significance of "takings" to modern day environmental protection is that when public health or safety concerns lead government to impose limits on what can be done with particular pieces of property, and the owners of such property prefer to put their financial bottom line ahead of public health and safety,  those owners will seek to be compensated for the loss of value or loss of use of their land.

A classic example would be a law or regulation designed to protect wetlands which operates to prevent property owners from constructing a strip mall on that wetland.  Government has determined that the wetland should remain but the owner wants to put the land to a "better" use and claims that his or her property has been taken.

During the 1995-96 Legislative Session, advocates of "takings" introduced a radical proposal designed to force every level of government to conduct an assessment of every proposed governmental activity which might have reduced the value of private lands.  In addition to this assessment function, the "takings" proponents wanted direct compensation for any governmental action which reduced a property owner’s property value by 20 percent or more.  Strong, widespread opposition to these proposals resulted in them dying in committee.

What Happened Last Year?

A package of takings bills were introduced in the last session.  Each are anti-governmental and anti-environmental bills which if enacted would have the effect of intimidating the government into inactivity.  Each bill individually would create only small roadblocks to governmental regulations.  However, collectively these bills would weaken governments ability to act for the common good.  Fortunately, these efforts did not become law.

In 1997-98, proponents of "takings" legislation tried a different strategy than what was used in 1995-96.  Rather than a direct frontal assault, demanding evaluation and payment for even minimal reductions in property value, the strategy now seems to be to intimidate government into inactivity by imposing numerous small increases in expense and bureaucracy.

Fortunately, these proposals have met the same fate as the 1995-96 proposals.  Only one, AB807, advanced as far as the floor of the Assembly, but it failed on a procedural motion.  The others did not even get that far.  Unless the Assembly goes into extraordinary session and finds time to reconsider these bills, they are effectively dead for this legislative session.

We joined the Coalition for the Common Good in opposing takings legislation.  This coalition includes The League of Municipalities, The Alliance of Cities, 1000 Friends of Wisconsin and the Sierra Club.

The takings bills introduced this session included:

• AB806:  This bill proposes  a system and a process which would require any governmental unit to perform an assessment of any proposed governmental action on the value of privately owned property.  The paperwork burdens, particularly on small local units of governments would be paralyzing.  The probable impact would be that local governments would avoid taking actions which might affect real estate values, or would incur a substantial increased legal and assessing expenses every time an action affected real estate.

If governments chose to incur these expenses , we could expect to see increased property taxes.  AB806 would also create an office within the Department of Administration, empowered to sue other state agencies for failing to make these assessments.  Oddly enough this proposal that one state agency would sue others is being offered to us by the same people who voted to kill the Office of Public Intervenor because it sued other state agencies.

• AB807:  would impose additional red tape requirements on governments.  This bill’s goal would be to require local governments proposing changes in or new zoning ordinances to specifically identify and notify each person whose property may be affected.  If a property owner does not receive this notice, whether by accident or deceit, he or she is not required to comply with the zoning change.  Once again, those who would use their land for whatever they want, without regard to its effects on anyone else, are trying to create so much bureaucracy and red tape that local governments will find it easier not to act in the public interest.

• AB808:  specifically targets laws, regulations, or  zoning ordinances intended to protect environmentally sensitive areas.  Under current law any zoning ordinance or resolution of a governmental body is presumed to be valid, and a person challenging the ordinance  must show why it is invalid.  Under this new proposal whenever a property owner challenges such a zoning ordinance, the governing body which created it must prove, by clear, satisfactory, and convincing evidence from the written record that the zoning ordinance is valid.

By turning  this  burden of proof on its head only for ordinances designed to protect environmentally sensitive areas, the proponents of this bill have demonstrated their utter lack of environmental awareness.  Reversing the burden of proof would place additional expense and time demands on local governments when they attempt to protect any natural value of any piece of land.



• AB810:  would make local governments responsible for the legal cost of people who challenge zoning ordinances even if those challenges lose.  This is a 180 degree reversal of existing law intended to intimidate local governments into inaction in the area of environmental protection.

Takings bills are being introduced by a minority of legislators who have a private property rights agenda.  For the most part they are cookie cutter bills, that originated as part of the right wing "Contract on America" that was launched by Newt Gingrich in 1994 and have appeared in many states across the nation.

There seems to be very little, if any public support for the bill.  In Wisconsin, the supporters of the legislation have been lobbyists who work for large scale agribusiness, mining, timber and other extractive industries who will profit from the legislation if passed.

To this point, takings bills were defeated by the development of strong coalition ranging from Wisconsin’s Environmental Decade and the Sierra Club, the League of Municipalities, the Alliance of Cities and 1000 Friends of Wisconsin.

Challenges Ahead

In the immediate future, AB807 is scheduled for the legislature’s upcoming extraordinary session.  We will join the Coalition for the Common Good in opposing this law.

We expect, especially with one party in charge of both houses in the state legislature and the Governor’s office, that takings legislation will be recrafted and reintroduced.