Land sales editorial lets DNR's Stepp off the hook

[Updated from 8/22.] 

The Journal Sentinel said in an editorial posted Saturday that it was "a bad idea" for the Department of Natural Resources to propose selling acreage up north that includes trout spring ponds. 

The paper's news side had earlier disclosed the potential sale:

The state Department of Natural Resources has identified more than 1,000 acres of state-owned land in Langlade County that could go on the auction block — a move that has angered trout anglers because the properties contain a cache of ecologically significant spring ponds with native brook trout populations.

The ponds, gouged by glaciers thousands of years ago, are fed by rich sources of groundwater that sustain the fish and neighboring streams, rivers and lakes.

The DNR recently posted 13 properties in Langlade County on its website that contain the small ponds. They are among 118 parcels, covering approximately 8,300 acres, the DNR could sell to private parties or other units of government.

I had noted the story a few days ago, and it was good that the editorial board followed through on the important reporting, but let's note four more things:

* The editorial says it was the Legislature that mandated the DNR sell off 10,000 acres, thus giving the DNR a "thankless job."

True that the Legislature put the land sale policy into law, but I don't remember Stepp, the former developer, resisting it, as the sales fit with her boss Scott Walker's commitment to a a purportedly smaller government, and a laissez-faire agency run with a "chamber of commerce mentality."

When selling DNR land was raised in 2011 before the Legislature codified it, Stepp told a dairy industry meeting that she was all for it so long as the parcels were not environmentally sensitive:

MADISON - Wisconsin Department of Natural Resources Secretary Cathy Stepp said Nov. 29 she would listen to a proposal to sell DNR-owned land as a way to infuse cash into the agency's budget.

Speaking at the Dairy Business Association's Business Conference, Stepp responded affirmatively to a proposal by Emerald dairy farmer John Vrieze, who suggested that DBA members across the state should come up with a list of properties that are not environmentally sensitive that the DNR could sell and return to the tax roll.

So what happened to the idea that environmentally sensitive land shouldn't be sold, and why does the newspaper, as it did on DNR staffing levels, keep cutting Stepp so much slack?

*  The DNR also seems to be pushing land sales that put internal, bureaucratic interests above those of the public or the environment's - - and let's agree that the public interest and the environment's interest are one and the same in this case, as per usual. 

This is from a 2014 statement on the agency website about land sales' requirements, goals and policies:

"We have four years to meet our statutory requirement" said [DNR official Kurt] Thiede. "We want to complete this work in an open and transparent manner and in a time frame that is manageable for staff and the Natural Resources Board. The sale of these public lands will allow us to re-purpose surplus lands and divest in lands that don't serve an important role for DNR land management objectives, or public access."

At least let's have a discussion and get some answers from Thiede, promoted in March to DNR Deputy Secretary.

*  Additionally, the DNR could be barred from selling those parcels because cornerstone US law - - the Northwest Ordinance of 1787 - - 

that honors and elevates the public interest in water above narrow or special interests has been incorporated into the Wisconsin Constitution as Article IX as The Public Trust Doctrine, and has affirmed by the state courts, too.

Look at how strongly the DNR defines on its own website the state and agency crucial and historic regulatory role - - and I have written about this 133 times on this blog from 2007 to just last Thursday - - as guarantor of "primary" constitutional public rights to water quality, quantity, access and enjoyment for the people in Wisconsin: 

Wisconsin's Waters Belong to Everyone

Wisconsin lakes and rivers are public resources, owned in common by all Wisconsin citizens under the state's Public Trust Doctrine. Based on the state constitution, this doctrine has been further defined by case law and statute. It declares that all navigable waters are "common highways and forever free", and held in trust by the Department of Natural Resources... 

Assures Public Rights in Waters

...the public interest, once primarily interpreted to protect public rights to transportation on navigable waters, has been broadened to include protected public rights to water quality and quantity, recreational activities, and scenic beauty.(1) 

All Wisconsin citizens have the right to boat, fish, hunt, ice skate, and swim on navigable waters, as well as enjoy the natural scenic beauty of navigable waters, and enjoy the quality and quantity of water that supports those uses.(2). 

Wisconsin law recognizes that owners of lands bordering lakes and rivers - "riparian" owners - hold rights in the water next to their property. These riparian rights include the use of the shoreline, reasonable use of the water, and a right to access the water. However, the Wisconsin State Supreme Court has ruled that when conflicts occur between the rights of riparian owners and public rights, the public's rights are primary and the riparian owner's secondary.(1). 

Wisconsin's Public Trust Doctrine requires the state to intervene to protect public rights in the commercial or recreational use of navigable waters. The DNR, as the state agent charged with this responsibility, can do so through permitting requirements for water projects, through court action to stop nuisances in navigable waters, and through statutes authorizing local zoning ordinances that limit development along navigable waterways.

The court has ruled that DNR staff, when they review projects that could impact Wisconsin lakes and rivers, must consider the cumulative impacts of individual projects in their decisions. "A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body may be eaten away until it may no longer exist.  Our navigable waters are a precious natural heritage, once gone, they disappear forever," wrote the Wisconsin State Supreme Court justices in their opinion resolving Hixon v. PSC.(2)

Here is another DNR description of the primacy of the public's access to the state's waters.

*  We don't know yet precisely how or why the DNR came up with the particular property sales list that includes the trout ponds, but I wish the Journal Sentinel would have put the land sales into a fuller context and, given Stepp's earlier comments about environmentally sensitive acreage, held her feet to the fire.