STATE PREVAILS OVER SIERRA CLUB IN LAND MANAGEMENT SUIT 

(Editor's note: This late-breaking news below comes with good timing. Read the article by Lynn Stephens on P. 6, and the MFA Report on P. 8 for related commentary. )

 LANSING- Michigan Department of Natural Resources officials on March l 3 noted that conservationists around the state and nation won a major victory with the March 6 U.S. District Court decision rendered in favor of the Michigan Department of Natural Resources and the U.S. Fish and Wildlife Service. 

In the case of Sierra Club v. U.S. Fish & Wildlife Service, plaintiffs Sierra Club, Ann Woiwode, Marvin Roberson and Tim Flynn alleged that DNR and USFWS illegally categorically excluded management activities performed in part with federal Pittman Robertson (PR) Funds.

Pittman Robertson Funds are derived from an excise tax imposed on purchasers of sporting arms, ammunition, and archery equipment since 1937. The money finances programs to restore, conserve, manage and enhance wild birds and mammals, as well as to educate hunters and archers. The PR program is the largest and most successful wildlife restoration and management program in the world. 

"Essentially, Sierra Club wanted to require DNR and USFWS to prepare an endless litany of unnecessary environmental documentation," said DNR Director K. L. Cool. "Pittman Robertson funds are used for projects that protect and preserve our outdoor heritage. Had this suit been successful, it would have paralyzed the state's ability to use PR money for its intended purpose."

The suit further sought to force the USFWS to withhold funding from DNR for such activities as maintenance of facilities, including roads and trails used for public access and structures that protect wetlands, as well as barriers to prevent destruction of wildlife habitat by motor vehicles. Sierra Club challenged the funding which supports planning activities that encourage public input and ecosystem management, as well as funding for leasing private land for hunting access.

In granting summary judgment for the defendants, the judge dismissed all of the plaintiff's arguments against DNR and USFWS and further informed the plaintiffs that they did not have standing to bring the suit. 

It was welcome news not only to the agencies, but to myriad conservation organizations that submitted briefs decrying the suit, including the International Association of Fish and Wildlife Agencies (which represents conservation departments in all 50 states), Michigan United Conservation Clubs, the U.S. Sportsmen's Alliance Foundation, the National Wild Turkey Federation, Safari Club International, and the Ruffed Grouse Society. 

"Obviously, we were disappointed at having to spend hundreds of staff hours and tens of thousands of dollars - money that should have been directed to long-established wildlife management programs - to defend a case with no standing or merit," Cool said.  But, at the same time, we were very pleased that such a thorough review of our land management processes resulted in such a clearly supportive decision. "We will continue working to manage Michigan's public lands to preserve our outdoor heritage, and maintain this state's diverse, invaluable resources for present and future generations to enjoy."

A copy of the judge's decision is available under the "High Profile" section of the court's Web site. 

MDNR WAS NOT ALONE IN THIS FIGHT. In Columbus, Ohio, a spokesman for one of the country's largest sportsman's advocacy groups was similarly elated at the news of the court victory for wise, scientific wildlife management. The U.S. Sportsmen's Alliance Foundation (formerly the Wildlife Conservation Fund of America) had also been fighting the lawsuit filed by the Sierra Club against the Michigan Department of Natural Resources (MDNR) and the United States Fish and Wildlife Service (USFWS). 

In ruling against Sierra Club, Judge Richard Enslen cleared the way for sportsman supported wildlife conservation to continue. In the suit, the Sierra Club made five specific complaints against the MDNR and the USFWS. The complaints involved land management issues, including forestry practices that benefit game species including whitetailed deer, wild turkey and ruffed grouse, as well as various non-game animals.

Other sportsmen's organizations working on the effort included the National Wild Turkey Federation, the Michigan United Conservation Clubs and the Ruffed Grouse Society. "We had to get involved because we knew that a ruling in Michigan in favor of the environmentalists would spell the end of programs that have produced abundant wildlife for hunters and anglers across the country," said Rick Story, U. S. Sportsmen's Alliance Foundation vice president. "This victory protects hunting programs for all sportsmen and will go far toward curbing the spread of these cases to other states. "

The Sierra Club has filed several suits in recent years that challenged the use of Pittman Robertson (P-R) and Dingell-Johnson (D-J) dollars for state wildlife programs that include hunting, fishing and trapping. The P-R and DJ programs distribute funding to the states generated by an excise tax on sporting arms and ammunition and fishing gear. The tax is borne by hunters and anglers. 

Story explained the significance of the latest court decision. "This victory sets another precedent to ensure that sportsmen remain in the funding picture for fish and wildlife conservation," he said. "In 1996, we prevailed over the Sierra Club in a suit that challenged the use of P-R dollars for a moose management program in Vermont. When the Sierra Club goes to another state with its next suit, the judge will have two rulings favorable to sportsmen on which to base a decision."

THE PRESIDENT'S CORNER
by Gordon Terry

Continuing leadership in MFA was assured on Jan. 1, 2002 when Karen Serfass became MFA's new Vice President and Linda Smith became MFA's new Treasurer. Our thanks to Collin Burnett (past Vice President) and to Allan Kerton (past Treasurer) for their efforts on behalf of MFA. Collin and Allan will continue to serve on the MFA board of directors. Now to some legislative matters, subject to change by the time you read this:

Senate Bill 179 to amend Michigan's Private Forest Reserve Act: According to Joe Underwood (legislative assistant), Senator George McManus will not be moving forward with this bill in 2002 because there is no funding source available. Also, because of other legislative and state budget priorities, Senator McManus will probably not be able to pursue the issue of private forest land taxation in 2002 (his last year in the Michigan Senate). In Apri1 2001, MFA testified to Senator McManus committee on Senate Bill 179 and also presented suggestions for amending Michigan's property tax law to make it more attractive for retaining and managing private forest land in Michigan. MFA will continue to pursue this forest taxation issue in 2002 and in the 2003-2004 session of the Michigan legislature.

Substitute H-1 for House Bill 4410 (School Forests): This bill amends the School Forest section of Michigan's Natural Resources and Environmental Protection Act. It would allow a school district that has received public forest land from the State of Michigan to ask the DNR to change the deed restriction to eliminate the DNR's reversionary interest in the land. Up to now, when the DNR deeded public forest land to a school district for a school forest, that land would revert back to the DNR if the school district decided not to use it as a school forest. This reversion would thus keep the land as public forest land. This bill would eliminate the reversion requirement and allow the school district to use the land for non-forest purposes. As of today (Feb. 11, 2002), this bill has been reported by the House Education Committee to the House floor. However, there is no immediate pressure to place it on the House calendar for floor action. There is opposition to this bill, including opposition from MUCC and MFA.

Act No. 176 of the Public Acts of 2001 (Conservation Practices): This new Michigan law amends Michigan's Natural Resources and Environmental Protection Act by authorizing the Michigan Dept. of Agriculture (MDA) to develop programs to encourage voluntary use of conservation practices on private land. MDA must cooperate with the DNR and DEQ in this effort. Among other things, this law authorizes MDA cost sharing with private land owners for conservation practices, and authorizes MDA to purchase or acquire conservation easements on private lands. This law took immediate effect on Dec. 11, 2001. It creates broad authority for MDA, Conservation Districts, et. al. to utilize both the state funds and federal funds (i.e. Conservation Reserve Enhancement funds) when they are appropriated and available.

Substitute H-4 for House Bill 4456 (Alternative Agricultural Production Tax): Among other things, this bill would provide for (1) establishment of agricultural production districts in local governmental units in Michigan, (2) exemption of certain agricultural lands from ad valorem property taxes, and (3) payment instead of a specific tax based in part on the agricultural use value of the land. This bill passed the Michigan House on June 19, 2001 by a 103-1 vote. Its now in the Senate Committee on Farming, Agribusiness, and Food Systems chaired by Senator George McManus. It has not been scheduled yet for committee action. Apparently some refinements are being considered by both the House and Senate sides in consultation with the Michigan departments of Agriculture and Treasury. One interesting piece of this bill is it's use of "agricultural use-value" for land to help calculate the specific tax for that land. So it seems that the idea of use-value for certain land is still alive. Perhaps private forest land still has a chance for assessment and taxation based on use-value. Remember that 2002 is a big election year in Michigan, and that any bill introduced in the Michigan legislature in the 2001-2002 session will die if it is not enacted into law by Dec. 31, 2002. Bills that die this way will have to be re-introduced in the new 2003-2004 legislative session if legislative sponsors can be found.

DETERMINING YOUR FOREST ROAD ACCESS
By Glen D. Tolksdorf

Forest road access issues in the State of Michigan have lately become a time and money consuming event, especially for forest land managers and owners. The northern portion of the state have several access roads leading to various tracts of lands, but do these roads guarantee legal access? Southern portion of Michigan has less problems with legal access, due to higher number of roadways and written easements. 

How do you know if you have legal access to your property, and for what use? I will try to answer this question, by explaining the major points of legal permissible road access that any forest land manager or owner can research on their own, and applying the following test questions to determine your access rights. 

Determining your access rights into a parcel of property not bordering a public roadway, would begin by searching courthouse records looking for all recorded deeds to the tract, and any easements recorded in miscellaneous records of the Register of Deeds office in the local county courthouse building. Review the deeds and look for any language that would reference any easements benefiting the property under review. 

Also review all deeds in which the road traverses for easement reservations benefiting your parcel. If an easement is written and recorded either in deeds or separate easement documents, to and from a public roadway to your parcel, then review the wording in the easement for any restrictions and uses in which the easement roadway can be utilized for. Example, "easement is for residential and logging use only", or the easement may not specify use. If logging, and a easement is recorded, not specifying use, it is usually proper to: 1) notify the landowners in which the easement traverses, and 2) state to them that you will logging during a specific period utilizing your easement across their property. If you ask for permission, the adjacent landowner may be able to stop you in court, since you are questioning the use of the easement roadway.

If no easement is recorded, check the ownership from the public roadway to your parcel, since deed records were kept, starting after the original government land patent. If a landowner owned all the property including yours, to and from the public roadway, and that roadway was existing at that time to access your parcel, typically in the State of Michigan, your adjacent landowners which the road traverses cannot stop you from utilizing that roadway based on "previous continuity ownership." Most decisions in Michigan courts stated, "it is not the intention of the previous landowner to landlock back parcels which were sold and subdivided". 

There is no recorded easement, or historical continuous ownership from a public roadway. Next test is adverse possession of the roadway. Did you as a current landowner, own your parcel and access the roadway leading to your parcel 16 "open and notoriously" for a period of fifteen years or more? If yes, you have adverse possession of the use of the roadway. You still have to check on historical use of the roadway to determine if you can conduct timber harvesting operations, or possibly build a home or camp. If adjacent landowners stop, or gate your road, and this test is positive, typically your local county circuit court will rule in your favor based on current Michigan law. 

I have no written easement, no continuity of ownership, owned the property for less than fifteen years. You may be landlocked. Based on a May of 2001 Michigan Supreme Court ruling, and previous court evidence, I was restricted to "foot-traffic only" across two existing roadways. Timber harvesting was allowed based on historical use, but no vehicle traffic for cottage or residential use. A total of seven landowners were landlocked, and listed in the court ruling. Evidence showed written and verbal testimony of fifty years "open and notorious" usage, and USGS topographical maps outlining the roads for approximately seventy years. 

What does this mean for foresters, landowners, land acquisition managers? I have personally identified and reviewed the following major points when acquiring lands, and/or managing forests: 

1. Is there a recorded easement, either separate or previously written in older deeds?
2. If there is no written easement, was the property ownership the same in chain of title from the parcel to the public roadway (continuity easement) other than the U.S. government land patent?
3. If there is no written easement also, what was the historical use of the roads?
4. Were the roadways used in excess of fifteen years by the current landowner on a annual basis (adverse possession)? 

Myself personally, I will not purchase any property without a recorded easement to the parcel, unless it borders an existing public roadway. After spending over ten years in the court system, and several thousand dollars in legal fees, I would recommend doing your homework on forest road access before managing, or buying forest or other lands. Also a final footnote and disclaimer, I am not an attorney, and recommend anyone having road access problems, to contact an attorney for verification of the facts outlined within this article. 

For more information on forest road access, feel free to contact me at the following:

Glen D. Tolksdorf  Tolksdorf Forestry/Realty/Appraisals
52943 Highway US-41  Calumet, Michigan 49913-9224
Office: (906)482-9366 Fax: (906)482-6481
E-Mail: glent@up.net