Tuesday, January 27, 2009

He Said, We Said

I was going to entitle this installment of P.O.P.U.L.A.R.'s blog "It is, too, a big deal" in response to a contrary characterization of the new private structure rules by a D.N.R. official. The problem is, that after speaking directly to the official who allegedly made the comment, I do not believe he meant what those in earshot thought that he said. Confused? Good. Because the lesson for today is how P.O.P.U.L.A.R. intends to apply pressure while exercising restraint.

We are going to apply pressure in the current rule-making process because we are not willing to allow the large majority of citizens who are convinced that lakeshore owners are selfish elitists bent on usurping the public waters to give political cover to environmental interests desiring to adopt the restrictions of the BWCA on a Statewide basis. Lest you believe I am exaggerating the political challenges we face, be sure to check out the comments that appeared in the January 24th Star Tribune in response to an article about proposed public access fees on Lake Minnetonka. I have included a few of them below.

We are going to exercise restraint because there is a chance through common sense discussions and factually based negotiations we will be able to establish a record in this rule-making process that will either leave an administrative judge no choice but to consider the property rights of lakeshore property owners or will set the stage for successful litigation to enforce those rights if not acknowledged in new DNR regulations. A lack of restraint, i.e., ranting and raving with little regard for substance and an unwillingness to engage in thoughtful debate will undercut the legitimacy of our concerns.

This double-edged approach crystallized after a series of meetings and phone calls that started last week when the annual Boat Show opened its doors at the Minneapolis Convention Center. P.O.P.U.L.A.R. began receiving phone calls from dock and watercraft vendors expressing concern that the DNR was visiting everyone's booth and, for all practical purposes, denigrating the work of P.O.P.U.L.A.R. and suggesting that we were over-reacting and needlessly stirring up lakeshore owners and business people by false claims of adverse consequences from the adoption of new regulations.

I decided to investigate and went to the Boat Show to meet with some of the folks who had visited with the DNR. I have gone out of my way to be accurate in my description of the challenges P.O.P.U.L.A.R. members face and did not want to jeopardize our credibility by making accusations about inappropriate DNR behavior on the basis of hearsay. Since much of the concerns that had been expressed after the Boat Show meetings was relayed through an intermediary, I wanted to check things out directly.

I used the occasion to distribute literature at the Boat Show, asking interested parties to educate themselves on the scope of pending regulations by following our efforts on this blog and to support the work of P.O.P.U.L.A.R. I am convinced that the wider the audience P.O.P.U.L.A.R. has, the more difficult it will be for the DNR to adopt new rules, as it did quietly in 2002, that do not acknowledge and protect lakeshore property owers' rights.

Prior to publishing anything about my Saturday afternoon meetings at the Boat Show, I decided to speak directly to the DNR official who had visited the vendors earlier in the week. I wanted to give him the opportunity to respond to what I had been told by the vendors (they said you said) and, where appropriate, memorialize his comments in order to establish a baseline from which to negotiate the private structure in public waters regulations. My restraint was rewarded when the DNR official and I had the opportunity to speak for nearly an hour yesterday, clarify some issues and clear the air about our respective roles as we go forward.

Here is the exchange that occurred during the phone conversation yesterday:

P.O.P.U.L.A.R.: Several vendors claim you told them P.O.P.U.L.A.R. was putting out false information to scare people and raise money (I offered to share the DNR's portion of lottery ticket sales instead).
DNR: Did not say P.O.P.U.L.A.R. was spreading false information. I had been receiving calls from people concerned because they heard the DNR was going to impose fees and require licenses in order to have dockage at their lake property. I said that there is false information like that being spread, without accusing P.O.P.U.L.A.R., and I wanted to assure everyone that it was false.
P.O.P.U.L.A.R.: That wasn't us. As we discussed last year, credibility is key for us. If there's something you see in the blog or otherwise that is not true, call me on it. Directly.
DNR: There hasn't been anything in the blog that is not true. However, the discussion of the new rules was based on a preliminary draft and the final version will likely be much different. (n.b., This includes the contents of the literature distributed at the Boat Show)
P.O.P.U.L.A.R.: But without changes, the concerns expressed in the "Open Letter to Governor Pawlenty" blog are accurate?
DNR: Yes.

P.O.P.U.L.A.R.: The vendors at the Boat Show said you claimed that the new regulations would not have an impact for 85% or 98% (two different recollections) of lakeshore property owners.
DNR: I said 90-95% of lakeshore owners would not be impacted by the time the initial version of the regulations that we distributed at the Advisory Group meeting are modified in response to everyone's input.
P.O.P.U.L.A.R.: But, clearly, as written, an Aquatic Impact Zone that limited lakeshore property owners to using 500-2,500 square feet of the lake adjacent to their property based on a ratio of 5 square feet for every foot of shoreline would affect much more than 5-10% of lakeshore property owners.
D.N.R.: Yes, but that's why we have to go through the process of considering the impact and making adjustments so the rules make sense.

P.O.P.U.L.A.R.: The vendors at the Boat Show said you claimed that the State would not regulate the number of boats lakeshore property owners were allowed to own. However, the effect of regulations that limit the amount of dock and number of boat lifts that can be installed has exactly that impact.
DNR: Let me ask you something. Do you think, that with all the scrutiny the new regulations will receive, from the Advisory Group you sit on, from other divisions in the DNR, from the Commissioner, even from the Governor before they become effective, we will end up with regulations that force people to give up their boats?
P.O.P.U.L.A.R.: The short answer is "no" because P.O.P.U.L.A.R. will be in court overturning any attempt to do that. If there's any regulatory "taking" by the DNR, there has to be compensation to the property owner whose property was taken. Since the State cannot afford the tens of millions of dollars of liability a taking would create, it cannot legally adopt confiscatory regulations.
DNR: (No further debate on the subject)

Other matters dicussed in my productive conversation include:
  • my concern that, just as P.O.P.U.L.A.R. acknowledges that some modifications to the existing regulations will result from the process, the DNR has to educate its involved staff members that compromises to accommodate issues important to lakeshore property owners must be forthcoming;
  • the need to factor all implications of new regulations in arriving at a final draft to be submitted for consideration by the Commissioner of the DNR, including the impact the regulations will have on commerce, property values, property taxes and government services that rely on those taxes; and
  • the propriety of "grandfathering" private structures that were lawfully acquired and first utilized before the adoption of regulations that restricted them.
As noted above, I am including (without editing) a few of the comments that were posted on the Star Tribune's website after an article appeared Saturday reporting on a proposal to charge a fee to use public landings. Note the indications after each as to how many readers approved of the particular comment. P.O.P.U.L.A.R. faces the same criticism of its lakeshore property owner membership. The political pressure brought to bear on elected officials, and DNR staff, by the visiting public, has to be considered when building a record upon which regulations must rely.

When you've completed reading the comments below, please consider joining the generous P.O.P.U.L.A.R. members who have stepped up in the absence of lottery revenue and helped fund our efforts. There's a lot of work that still needs to be done to protect our interests. Thank you for your support.

Minnetonka needs a dock fee for homeowners, they take up too much of the PUBLICS open water. Lets start at $1,000 ft for every foot over say 8ft in length, thats per season if you have a permanant dock space as in year round lets make it $10,000 a year, of course this is all subject to if you get a permit or not and the permit isn't free. inspections for contaminant run off from your property will be factored in also, can't have that fertilizer getting in the waters. special regs for boat lift size and boat size, swimming raft regulations with seperate fees they should be pulled to shore every night for safety. No new construction within 1000 ft of the shoreline high water mark, no more contruction with less than 500 ft of the next home, 500 ft minimum and on and on and on
posted by k57pulbuf on Jan. 24, 09 at 7:44 PM
23 of 29 people liked this comment.

The basis of their concerns.
I suggest that Minnesota take back our lakes from the people that have ruined them with their developments. Face it, lakeshore development is bad for lakes. I suggest Minnesota return the lakeshore to its natural state by disallowing any mowing, cutting, clearing, building, cleaning, docks, or beach maintenance within 100 feet of the high water mark. You get the picture. And make it a law that allows public access within that 100 foot lake enhancement area. If the so called "lake association" actually cared about the lake the live on they would all jump at the chance to support those kind of regulations. Sad to say though, I think mostly they use environmental concerns to cover up their desire to protect their own selfish interests and privacy.
posted by xsnowdog on Jan. 24, 09 at 9:32 PM |
19 of 24 people liked this comment.

If you benefit, you pay. If you don't benefit, you dont pay.
This is a no brainer. If you use the lake, you pay. Property owners, boat owners, snowmobile owners, ice fishing, if you want the benefits of the lake, then pay. If you want to enjoy having a flat screen tv, then you pay, not the tax payer. The lake shore owners and users of the lake can afford the property and toys, so asking them to support this lifestyle is fair.
posted by deephaven10 on Jan. 24, 09 at 9:41 PM |
12 of 22 people liked this comment.

There is already a fee. The water craft registration.
There is an aquatic species surcharge that is built into the water craft registration fee. http://www.dnr.state.mn.us/licenses/watercraft/index.html This is a state resource that should be handled as all other Minnesota lakes are. What sets it apart is the affluent community that surrounds it. Perhaps they should suggest levying a waterfront property tax to pay for this? If this is really such a problem, why not increase the invasive species surcharge?
posted by ztrvz on Jan. 25, 09 at 12:18 AM |
22 of 23 people liked this comment.

I propose a fee on docks and boat stored on public waters. This keeping a dock on public waters is quite a benefit for private individuals. We could charge by the foot, so the worst offenders pay more. There are more than 100 lakes infected with milfoil in Mn. Are we going to charge a fee on all of them? As a fisherman, I don't mind the milfoil. It has made bass fishing even better. If they want to charge a fee to launch, then the DNR should charge homeowners to keep stocking the lake with taxpayer's fish.
posted by libsridiots on Jan. 25, 09 at 8:31 AM |
13 of 15 people liked this comment.

If a ramp tax is levied on those who use the lake intermittently then it's only appropriate that homeowners and businesses on the lake are taxed accordingly. One cannot simply say "I want to live on the lake or do business on the lake but I want soneone else to pay for taking care of the lake."
posted by fredappl on Jan. 25, 09 at 11:00 AM |
5 of 7 people liked this comment.

Oh My...How Exclusive!
Why not regulate the residential dock situation more closely and raise the fines on homeowners that have more watercraft tied up to their docks than is legally allowable or violate lakeshore degradation laws? That would raise these "needed" funds in a heartbeat.
posted by smchange on Jan. 26, 09 at 1:16 PM |
2 of 3 people liked this comment.

P.O.P.U.L.A.R.: Take a deep breath and leave your own comment by clicking on the comment button below.


I took the breath said...

You need to recognize that 98% of the people will NOT read (let alone understand) anything longer than a paragraph. Your dissertations are articulate and intricate, but the average Joe and Jane will not take the time or have the intellectual stamina to read and digest them. If you really want to rally the Troops, you’ve got to keep it short, simple and truthful. Which brings me to your not-so-subtle comment about the Lottery Money. I don’t believe $1 of it goes towards any State regulatory program. Is any of your money going into POPULAR, or are you just a Blogger for hire?

Sam Stern said...

Actually, the request for Lottery money was meant as a joke. And, given that funds are fungible, money the DNR doesn't have to spend on maintaining our natural resources because of the support from the Lottery or the new sales taxes, can be budgeted instead for regulation.

The "who am I" blog appeared last year at http://protectlakes.blogspot.com/2008/02/calling-all-evil-doers.html. It's long, but with a lot of tongue in cheek. I've been an attorney for more than 30 years, either writing or speaking for hire. The blog is just a mechanism to communicate to a clientele that has asked to be informed inexpensively. Thanks for the comments. I'll try to keep things shorter (after finishing THIS comment).

Anonymous said...

If you/we really want to end the DNR's misguided ways... GO AFTER THEIR MONEY. The Governor wants to slash $1.3 million from the Division of Waters' budget. You/we need a serious letter to the Governor telling him to cut even more. If they have less play money, maybe they'll get serious about realistic regulations. I sure hope you're attending their budget hearings at the Capitol.

Anonymous said...

Lottery Money

Actually, just as last November with the constitutional amendment to add 0.375% sales tax for the arts and environment (i.e. DNR);about 10 years or so ago we passed another amendment mandating 40% (if my memory is correct on the percentage)of the lottery proceeds to economic and enviromental(DNR again)purposes. So, yes, Sam's attempt at humor is sadly true.