Public Land Cap 2.0 – Or, The Solution May Be Worse Than The Problem

Boy, were we wrong.  Back in December, we wrote that as a result of Governor Snyder’s proposal to require local approval in advance of any new State land acquisition we may never see another new public lake access site. As it turns out, there may be some areas in northern Michigan where we may never see ANY new State land acquisition. 

In what would be viewed by most as an action of little public consequence, at its February 26, 2013 regular meeting the Otsego County Board of Commissioners voted to withhold its support for a possible Michigan Natural Resources Trust Fund (MNRTF) grant application by the Michigan Department of Natural Resources.  The proposal related to the possible acquisition of two parcels which are contiguous to the boundaries of the Pigeon River Country State Forest.

To better understand why this new procedure is likely more important than was the vote itself, we need to go back one year to a time when the provisions of the Land Cap Bill (SB-248) were being debated.  Ultimately signed into law in an amended form by Governor Snyder, this legislation placed a limit on the amount of land which could be owned and managed by the State of Michigan.  Some within the conservation community praised Governor Snyder at the time for publicly committing to the removal of the cap within the two year statutory requirement.  Although the strategic planning process required in advance of cap removal is not yet complete, an interim policy has been adopted by the DNR which requires local approval in advance of a land acquisition Trust Fund grant application. This is likely in direct response to the Governor’s proposal.

The irony is, that through this effort to “protect us” from the heavy hand of State government and the further expansion of public land ownership, a new form of property rights takings may have been created. By virtue of this new authority to deny future public land acquisitions, the rights of a landowner to sell his or her land to a willing and knowledgeable buyer may also have been denied.  In most instances, land determined to be desirable for public recreation or resource acquisition will already be adjacent to publicly-owned land – in some cases on two, three or four of its boundaries.  If the State of Michigan is removed from the pool of potential purchasers by the actions of a local unit of government, it would seem to require a similar level of justification as would a zoning or land use denial.

To give this level of authority to counties, townships or municipalities without creating specific and defensible criteria is unfair to all parties concerned, and may even be open to legal challenge.  A comprehensive Finding of Fact process should be created similar to that which exists in zoning or other land use requests.

• Is the proposed acquisition consistent with the County or Township Master Plan?
• After consideration is given to the reduction in public services resulting from State ownership and PILT payments are considered, is there any real revenue loss to the local units of government?  (Payment in Lieu of Taxes are payments by the State at full ad valorem rates for Trust Fund purchases, not to be confused with the significantly lower “swamp tax” paid for tax-reverted lands)
• Is there a public “good” or public benefit being created by the proposed acquisition?
• Could the additional public lands result in an economic benefit to the area or region?

Unless the answer to all of these is “no,” we contend that there would appear to be insufficient justification to oppose a MNRTF grant funding application where there is no certainty that the proposed acquisition will even be secured.

This should not be viewed as a criticism of a County Board of Commissioners who, in their view, were doing their jobs as duly elected officials.  It is merely our view that the requirement of local governmental approval should not have been added in advance of the completion of the strategic planning process, and most certainly not in advance of the creation of specific and defensible approval, or rejection, criteria.

In spite of our opposition, all of this is somehow leaving us longing for the original Land Cap bill.  Although proposing an acreage cap, the original Land Cap bill would have at least allowed the DNR to identify a limited number of strategic acquisitions without compromising their ability to conduct effective and prudent purchase negotiations in the public interest.  Their ability to do so in a manner which considers the public interest of ALL of the State’s residents would have also been preserved, and not with one eye on the land, and the other on the local political landscape.

As we wrote on February 25^th, with the absence of new acquisitions there may soon be plenty of MNRTF money available for fisheries and wildlife habitat improvement…