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DRAFT
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POSITION
The Department of Natural
Resources (Department) strongly opposes this revised bill.
PROBLEM/BACKGROUND
The purpose of this revised
bill is to transfer state-owned property to Whitefish Township. The Whitefish Township/Paradise
area is a popular destination for tourists in all seasons. Whitefish Township desires this property in order to build an airport.
DESCRIPTION OF BILL
SB 588 “Draft 1 Substitute”
directs the conveyance of approximately 422 acres of State-owned lands within
the boundaries of the Newberry Forest Management Unit to Whitefish Township for a $1.00 consideration. The
conveyance would be by quit claim deed and would reserve, to the State, mineral
and aboriginal antiquity rights, as well as an easement across the property to
maintain a system of recreational trails.
Additionally, the conveyance would contain a reverter clause which would
terminate the grantee's rights in the property if it is used for anything other
than a Township airport. The bill
directs that the revenue received for this conveyance ($1.00) be deposited into
the General Fund.
SUMMARY OF ARGUMENTS
Pro
None
Con
The Department does not support this revised legislation. On April 11, 2007, the Office of Land and Facilities received a Land
Transaction Application from Whitefish Township for the same property that appears on the bill. The application proposed a direct sale of the
property to the Township. On May 7, 2007, a request was sent to Department staff to review
the proposed transaction. The following
comments from various staff indicate their concerns with the disposal of this revised
property description:
- The Department-managed land in this area is well-consolidated and conveyance of this land to
the Township will cause fragmentation, which leads to an increased
management burden. The Department
has spent several years and immeasurable hours of staff time implementing
a statewide land consolidation strategy that enables the Department to
better utilize resources and manage our lands to provide a greater benefit
to the citizens of the State. At
the very core of the land consolidation strategy is the retention of large
blocks of State-ownership that provide for natural resource protection and
increased recreational opportunities for the public. This conveyance would remove the middle
of an otherwise very large piece of State-ownership from Department
administration.
- The desired parcel is
in close proximity to Whitefish Point Bird Observatory and would
significantly disturb annual bird migrations and result in negative
impacts to numerous bird populations, including threatened and endangered
species.
- Given the historical
and continued use of this area as a migration stop-over point, the
Department believes this proposal presents an unacceptable risk to air
traffic and airport safety.
- The property conveyance proposed would have a very detrimental
impact on an extremely popular State-designated snowmobile trail, which is
part of a system that crosses the Upper Peninsula. This revised Senate bill now includes a
reserved easement to the State for the purpose of maintaining a system of
recreational trails, although the actual easement description is not
defined. This revised bill proposes
to allow incompatible uses of the subject property, which will compromise
public safety. Current existing use
allows unimpeded public enjoyment of the subject lands, whereas airport
use requires protective safeguarding measures in keeping with the
conventions of Homeland Security.
An unattended open corridor for public use through the subject
property would also allow the migration of area wildlife (e.g., moose,
deer, etc.), which is incompatible with airport use. In particular, incorporating an airport
with, adjacent to, or near a popular snowmobile trail would likely cause
safety concerns relating to the conflicting use of airplanes and
snowmobiles.
Relocating the existing trail would require finding
an acceptable alternative site which may not be feasible due to the wet nature
of the surrounding terrain. Additionally, the trail is currently located so as
to alleviate snowmobile congestion and a dangerous crossing. Moving the trail would cause an increased
risk to the health and safety of the public, and would be extremely costly for
the Department and to the snowmobile trails program.
·
The area is a
good jack pine producing area, and the State already has investments in
scarification and advanced regeneration in the area.
·
There is an existing
airport located in Newberry, approximately 26 air miles away.
- This bill, if
enacted, will violate State law, specifically MCL 324.40501 and Article
IX, Section 40, of the Michigan Constitution, because most (87 percent) of
the lands to be transferred were acquired with monies derived from the
sale of hunting licenses. These
provisions of Michigan law were specifically designed to prevent the
diversion of hunter license fees for any uses other than those necessary
for the management of the State’s wildlife.
- Article IX, Section
40, defines the activities that can be supported with revenues derived
from hunting and fishing licenses.
These activities include the “acquisition of land and rights in
land that support wildlife and fisheries programs.” By transferring these lands to the Township
for $1.00 for the purposes of constructing and operating an airport, this
bill would result in using license fees for an unallowable purpose in
direct violation of the State’s constitution.
- Additionally, in
order to be eligible for funding under the Federal Pittman-Robertson
Wildlife Restoration Act (16 U.S.C. 669), Michigan had to enact “Assent
Legislation” to prevent the use of hunter license fees for any purposes
other than those necessary for wildlife restoration. MCL 324.40501 states that “license fees
paid by hunters shall not be used for any purpose other than game and fish
activities under the administration of the department.” Further, this legislation requires Michigan to comply “with rules and regulations
promulgated by the United States” under the provisions of the Wildlife
Restoration Act.
- The transfer of lands
for the nominal fee of $1.00 would constitute a diversion of license fees
under the portion of the Code of Federal Regulation (CFR) promulgated to
implement the Wildlife Restoration Act.
50 CFR 80.4(c) stipulates a “diversion of license fee revenues
occurs when any portion of license revenues is used for any purpose other
than the administration of the State fish and wildlife agency.” When a diversion occurs, the State
becomes ineligible for federal funds under the Wildlife Restoration Act
until “assets acquired with license revenues are restored, or an amount
equal to license revenue diverted or current market value of assets
diverted (whichever is greater) is returned and properly available for use
for the administration of the State fish and wildlife agency.”
- Not withstanding the
violation of the State’s constitution, the penalty for diversion is
severe. Currently the Department
receives approximately $7,000,000 annually through the Federal Wildlife
Restoration Act.
This
acquisition by the Township has been proposed various times since
1982. In 2005, a site feasibility
study
was
commissioned by the Township. The site
feasibility study is dated January 20,
2005, and was
prepared by R.W. Armstrong and Associates.
It contains the following concerns about the proposed
location:
·
In addition to
the Township
obtaining rights in the desired land, the Township would
have to obtain avigation easements from both the Department and the
Federal Forest Service to enable tree topping/clearing of trees more than 30’ tall
(backslopes) or 50’ tall (approach zones).
·
Although the
site is located along M-123, access onto the site will require construction of
a paved access road.
·
There are three
existing cell towers in the general area of the site which impede runway
alignment.
·
Whitefish Point
represents an internationally recognized bird area noted for the large number
of spring and fall migrating birds. This
location could result in taking of protected migratory birds (protected under the
Migratory Bird Treaty Act of 1918) and could also pose a risk to
aircraft.
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FISCAL/ECONOMIC IMPACT
Are there
revenue or budgetary implications in the bill to the --
(a) Department
Budgetary:
None
Revenue:
If enacted, this bill will result in the Department
losing its annual apportionment of funds under the Pittman-Robertson Wildlife
Restoration Act. For fiscal years 2005,
2006, and 2007, these amounts were $7,071,306; $6,904,456; and $7,490,222
respectively.
Comments:
The bill directs the
disposition of this property to the Township for a $1.00 consideration, to be
deposited to the General Fund. The
following are comments from Department personnel and from the above-mentioned
site feasibility study:
·
The current value for the standing timber on this parcel is approximately
$55,800. However, the typical assigned value
per acre for lands permanently taken out of production is $1,023.80 per
acre. Using this figure, the lost
revenue to the Department would be approximately $432,050.
·
By statute, the proceeds of the sale of this property should be deposited
into the State Game and Fish Protection Fund account for those parcels
purchased using State Game Fund monies, and into the Land Exchange Facilitation
Fund for those parcels acquired through tax-reversion.
·
The site
feasibility study mentioned above indicates the
estimated purchase price of the land to be between $880,000 and $950,000. This is lost revenue to the State Game and
Fish Protection Fund and the Land Exchange Facilitation Fund.
(b) State
Budgetary:
None
Revenue:
None
Comments:
See
Above
(c) Local
Government
Comments:
The local unit of government would be acquiring land,
with an estimated value of up to $950,000, for $1.
OTHER STATE DEPARTMENTS
The
Department of Environmental Quality may have concerns with air and water
quality impacts. The Department of
Transportation, Bureau of Aeronautics, may also have concerns with this
legislation.
ANY OTHER PERTINENT INFORMATION
The
Land Transaction Application that was submitted by Whitefish Township, and received by the Department on April 11, 2007, will be denied.
Similar proposals have been made to the Department over the years. Department concerns and objections to this
transaction have been, and continue to be, consistent.
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ADMINISTRATIVE RULES IMPACT
Administrative Rules are not necessary to provide for
administration of the bill.
______________________________
Rebecca A. Humphries
Director
_______________________________
Date
FMFM/WLDBureau/Division/Office
