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From: Larry Sanders
Category: Shipwreck Research
Date: 30 Apr 2007
Time: 23:52:53
Remote Name: 71.10.3.223
Hi Craig. The M ichigan Underwater Preserve Committee did an analysis of the bills for its board. Ron bloomfield circulated this memo a few hours ago. Please remeber that the MUPC has taken no position on this matter. This is only the committee report. It is, however, instructive.
MEMORANDUM
To: Ron Bloomfield From: MUPC legislative committee Date: April 30, 2007 RE: Changes to Underwater Preserve Laws proposed by HB 4638; HB 4639; HB4640; SB 429; SB 430; SB 431
Overview
Last Tuesday, April 24, we learned of the introduction of the following Michigan house and senate bills: HB 4638; HB 4639; HB 4640; SB 429; SB 430; SB 431. These bills will create a “Great Lakes State Park” and amend the laws dealing with Underwater Preserves. The bills are very poorly drafted.
Conclusion
After review and analysis, it is our recommendation that the MUPC take a position opposing adoption of this legislation.
Discussion
These bills are confusing when any effort is made to understand them. Instead of incorporating them into a single bill and making them simpler to understand, the legislation is divided into six separate bills affecting 3 different parts of the State’s Natural Resources Law:
1) The section on “Hunting and Shooting Grounds”; 2) The section on “State Parks”; and 3) The section on the “Underwater Preserves”. To understand their full impact on the law, you have to take all the bills, find the sections of the law amended or where the additions are made and then compile the law as it will look after adoption. This is very labor intensive but only in this way can you get an accurate picture of the actual changes and their effect on remaining law. When this is done, serious if not fatal conflicts and ambiguities emerge. The house bills have been assigned to its tourism and commerce committee and the senate bills to its natural resources and environment committee. The bills will be scheduled for hearing and comment before they are acted upon to send them to the affected chamber. They will then have to be sent to the other chamber and go through the same process. If the bills are amended or adopted with different provisions, they will have to go to a conference committee with legislators from each chamber to reconcile the differences. They will then receive a final vote and be sent to the Governor for signing. She can sign or veto them. If vetoed, they will go back to the legislature to see if they can raise two-thirds of each chamber’s members to override the veto.
Amendments to the “Hunting and Shooting Grounds” Law The Natural Resources Law has a special section specifying grounds set aside for shooting and hunting. For reasons that are less than clear, this section is amended by one of the bills to incorporate a section on shooting and hunting grounds (basically any area of submerged land in the State, that is, rivers, swamps and the Great Lakes to the limit of the State’s boundaries) into what will become the “Great Lakes State Park”. This change in the law immediately raises some issues that will be of critical interest and likely opposition by very important Michigan special interests. First, it does not consider the impact of the new “State Park’s” boundaries on the treaty rights of Native American tribes to fish in these waters. These treaty rights are superior to anything the State can control in a “State Park”. For that reason, a “State Park” may be created that is regulated for use by everyone except Native Americans. It is inconceivable that such a thing is intended or should be created. Second, sportsmen groups including the Michigan United Conservation Clubs (the MUCC is a very powerful group in Lansing) are almost certain to disapprove of rolling all the water covered land described as “shooting and hunting land” in Michigan (even swamps) into a new “State Park”. They will surely be opposed to creating what will amount to another level of regulation over activities in areas set aside for sportsmen to use. Third, charter boat operators and commercial fishing groups will object to this broad change in the law affecting the waters where they earn a living. This “State Park” will be like no other. These are people who earn a living from this already regulated resource. They are not going to be pleased with more regulation.
Amendments to the Laws on State Parks These amendments create the “Great Lakes State Park” from the land described above. The creation of this “State Park” brings other provisions of existing law into conflict or at least ambiguity with the amendments in a way that is undesirable. It is instructive to first review the additions or changes directly made by the new legislation. The additions will create the “Great Lakes State Park”, vest control over it with the DNR and lists activities to be allowed in the “State Park” including scuba diving. These new provisions will be added at the end of this part of the existing law. This is significant because its addition to this part on “State Parks” makes it a part of the Michigan State Park system. Since all other State Parks are land based there is immediate confusion when the rest of this part is applied to this new “Great Lakes State Park”. Despite the provisions added elsewhere on “voluntary” fees, the State Park laws provide that the Natural Resources Commission can issue “revenue bonds” to pay for “improvements”, the DNR can set “mandatory” fees for the use of any State Park at anytime time, the DNR can establish rules controlling activities in any State Park”, and State Park laws require that “all” revenues from State Park use are for the use of that system. Presumably this means that even the “voluntary” $15 fee set out in this part must go into this fund. This provision for a “voluntary” fee requires the provision of a unique “Park Token” but no money is set aside to design or make the tokens or administer their sale and to collect the fees. The State Park laws also allow the DNR to grant long term “concessions” in “State Parks” with the money treated as “revenue”. An open question is whether the DNR can set aside portions of the “Great Lakes State Park” as a “concession” and lease it or allow other activities for payment. Such an activity probably violates the State Constitution and the “public trust doctrine” (providing that the State cannot alienate the State’s natural resources). The existing State Park law already contains provisions permitting money to be used for “improvements” but those listed apply to land based parks. Nothing is added to permit the use of such money for mooring blocks, buoys, access facilities or the like. Arguably, this may not be necessary but it is by no means clear. Such infrastructure is absolutely required if this “Great Lakes State Park” is going to be opened to a dramatic increase in scuba diving. These improvements are already necessary but the State has never done it. Without doubt, vital and long needed improvements unique to this “Great Lakes State Park” will be required. Despite this need, no provision is made anywhere on how, when or what these will be made. Unless the legislature or DNR can find the money somewhere this entire “Great Lakes State Park” will be unfunded. It is not likely the DNR will endorse shifting money from other State Parks to this new one. There are more problems. The most glaring is the failure to explain how the existing Underwater Preserves will be treated in this “Great Lakes State Park”. That is, will they overlap with both separately existing or will the Underwater Preserves become part of the “State Park”? A related question is how DNR control over the “State Park” system will relate to the Underwater Salvage and Preserve Committee. The most logical conclusion is that DNR control over the “Great Lakes State Park” will be superior to anything the Preserve Laws provide including anything the Underwater Preserve and Salvage Committee can advise the DEQ and HAL about. Finally, this section establishes a separate “Preservation Fund” dedicated to this “Great Lakes State Park”. This special fund may violate the recently added provision to the State Constitution on the creation of a “Legacy Fund” for State Parks. It is the intent of that constitutional provision that money from all receipts, donations, bequests and the like be pooled into that fund for the protection and use of the State Park system. Even more problems become apparent when this newly amended section is read in conjunction with the amended Preserve Laws. It is difficult, if not impossible, to harmonize them.
Amendments to the Laws Governing Underwater Preserves It is important to note that this part of the Natural Resources laws dealing with underwater Preserves and antiquities has its administration and control vested with the DEQ and HAL as opposed to the part on State Parks that vests control over them with the DNR. Obvious problems arise when any effort is made to combine a “Great Lakes State Park” under the jurisdiction of the DNR with Underwater Preserves under the jurisdiction of the DEQ and HAL. Yet the proposed legislation will do just that without clarifying the intended relationship of the DNR, DEQ, HAL and other State agencies. The immediate change made to this section by the new legislation is to amend the name of the Underwater Preserve and Salvage Committee to the “Great Lakes State Park and Salvage Committee” and to alter and expand its membership. It also adds items to its “advisory” functions. These changes raise obvious ambiguities. Since State Parks are under the jurisdiction and control of the DNR, why does this Great Lakes State Park and Salvage Committee remain in this section at all? In fact, why is it still needed? It seems that it makes more sense to move it to the section on “State Parks” since that is what this new “Great Lakes State Park” will be. Otherwise, 2 sets of advisory committees (Parks and Preserves) will be giving advice on how to run this “State Park”. Presumably that advice should be directed to the DNR since it will have actual control of the “State Park”. Neither the DEQ nor HAL has any authority to run a State Park. The changes in membership on the Committee are a question of what is sought to be accomplished. If the goal is to promote Underwater Preserves, it may be appropriate to change the composition of the Committee to better orient it in that direction. For instance a representative for tourism from a State agency is added. However, a great deal of the new emphasis seems directed toward promotion of tourism at the expense of good stewardship of the resource. That is, no allowance is made for the required infrastructure to add “thousands” of new tourist divers. If the State wants more people (divers) to come to it, it must build and create the facilities to accommodate them without destroying the resource. That is why Michigan maintains roads, has roadside parks, scenic turnouts, campgrounds, parks and the like. No one seems to be thinking about the need for similar improvements underwater where more divers will damage shipwrecks if the State makes no provision for proper buoying, law enforcement and the like. Until now, the State and DNR have shown no interest in this. The DEQ has no money for it. This expanded Committee has additional duties assigned to it to make “recommendations”. Many relate to guidelines for shipwreck discovery and the like that are probably desirable. Presumably, this advice goes to the DEQ that has no direct jurisdiction over the “Great Lakes State Park”. A distinct problem arises with respect to a new “Great Lakes State Preservation Fund” created by the amendments. The Great Lakes State and Salvage Committee is to make recommendations about its use, maintenance and the like but a real question is presented as to whether such a fund can legally exist. Under the “Legacy Fund” provisions of the State Constitution, such monies are to be deposited in that fund if it is a “State Park” fund. There are more problems. There is a definition of “Great Lakes” in this section that is not the same as the one adopted to define the boundaries of the “Great Lakes State Park”. The provisions dealing with DEQ and HAL authority over artifacts remains unchanged. Since no clarification is made as to where the Underwater Preserves fit into the new “Great Lakes State Park”, it is uncertain whether this authority is intended to embrace all of this new State Park or not. It is just unanswered. This section continues to include, without repeal or amendment, a provision establishing an Underwater Preserve Fund. Without repeal or some clarification of where the “Legacy Fund” and “Great Lakes State Park Fund” relate to this fund, at least three possible funds exist to support Underwater Preserve activities, either as an Underwater Preserve or as part of a “State Park”. It is unclear whether this fund needs to, or even can exist any longer. If it does have any funds in it (and it is unlikely to have much if any), a logical provision is to roll this “fund” into one of the other funds.
Summary
This legislation is a dramatic shift in State policy toward the State’s bottomland resources and Underwater Preserves. It does nothing to promote or protect Underwater Preserves in addition to what already exists. This package of bills clearly needs serious changes if they are going to be considered for adoption. It is not possible to make those changes without very substantial changes in State law and policy.
If these bills are adopted without change, it is going to require litigation to make sense out of them. Portions of some statutes, old and/or new, will have to be found unconstitutional or illegal. Without that, there is no way to make the law read and apply consistently and harmoniously after these bills are enacted. For example, this legislation will create a “State Park” unlike any other. It creates an overlap and probably a conflict between State Park regulation and the Underwater Preserve laws and does not resolve it. It looks like an imperfect effort to neuter the laws on Underwater Preserves but does not say that directly. Instead, in a muddled way it transfers jurisdiction over Underwater Preserve bottomlands to the DNR. Someplace the continued application (or repeal) of Underwater Preserve laws must be made plain. There can be no mistake that user fees beyond any “voluntary” ones are immediately permitted – if not required. This is because these bills give jurisdiction over the new “State Park” to the DNR. As a “State Park”, the DNR can establish mandatory fees to use any State Park at any time and it has. Even the “voluntary” fee can be increased or reviewed later to become mandatory – nothing prohibits it. Significantly, no consideration is given to the infrastructure required for diving – infrastructure (buoys and the like) long ignored by the State. This is not a question of improving or upgrading infrastructure but the creation of one. No funds are provided to pay for these immediately required improvements. There will be no time for a $15 “voluntary” fee to generate the funds to make them. Without improvements, the result will be “tourism” at any cost and a corresponding destruction of the State’s historic underwater resources - assuming that these changes will result in such an actual increase.