Legislators will try Thursday to decide whether a contested provision of state law gives the state’s fish and wildlife commissioner authority to allow ATVs on state land.
Lawyers arguing in favor of a proposed new rule permitting the machines on state land say it affects only 0.4 miles of trail and that similar efforts in the future will be subject to the same stringent review and regulatory requirements.
They also say state law clearly grants authority that opponents of the rule see as violating the Vermont Constitution.
“We did not view this as a contentious rule,” Vermont Fish and Wildlife Commissioner Louis Porter told a panel of legislators last week. “The level of opposition came as sort of a surprise to us.”
The rule would allow ATVs on a short connector trail between two existing trail systems on private and municipal land near Stockbridge. State law prohibits ATVs from state-owned land with few and limited exceptions, none of which applies to the trail in question.
Neither Porter nor an attorney for a Vermont ATV association portrayed the rule as a significant change.
The state of Vermont owns 450 square miles of land, so a trail extending only 0.4 mile isn’t much to ask, said Vermont All-Terrain Sportsman’s Association attorney Steve McLeod.
But the rule’s importance extends far beyond the short piece of trail it immediately concerns, say both opponents of the rule and one of its primary supporters, VASA Executive Director Danny Hale.
“That Stockbridge trail itself would be a first test case for the rule,” Hale said. The commissioner’s authority to allow ATVs on state land is the issue at stake, not the trail itself, Hale said.
He welcomed the precedent it would set.
“We’d like the opportunity to show some people that it’s not the end of the world when we have motorized travel on state-owned property, which some feel should allow access to just about everyone,” he said.
State statute clearly allows the secretary of the Agency of Natural Resources, through whom Porter promulgated the rule, to allow ATVs on public land, Hale said.
ATV use is forbidden on state land “unless the secretary has designated the area for use by all-terrain vehicles” in accordance with the state’s administrative procedures, the law says.
That’s pretty unambiguous, said Department of Fish and Wildlife attorney Catherine Gjessing.
“The first principle of legal analysis is, look at the plain language of the statute, and this has pretty plain language,” she said.
Public support is behind the rule as well, Gjessing said.
Two hearings, a site visit and two months worth of public comment brought two organizations and 10 people to register their opposition to the rule with her agency, Gjessing said. Hundreds of people wrote in support of it, as did nine organizations, she said.
But opponents argue the question has been settled in the past, and not in VASA’s favor.
The Agency of Natural Resources wrote a substantially similar rule in 2009, and the Legislative Council on Administrative Rules found that it satisfied none of the four requirements for rulemaking, said Sierra Club volunteer and environmental attorney Rachel Stevens.
One of those requirements is the authority to make the rule in the first place, she said.
In its opposition to the 2009 rule, the Legislative Council on Administrative Rules determined that lawmakers can’t grant such powers without explicit restrictions on their extent, Stevens said. This principle, known as the “nondelegation doctrine,” upholds the separation of powers between branches of the government by preventing legislators from conferring on the executive branch what amounts in practice to a legislative function.
Those limits are not in place in this case, and nothing has changed since 2009 that should lead to any other conclusion, Stevens said.
The rules committee will consider the question Thursday at 8 a.m. It must reach a resolution at that meeting or seek an extension, because its next meeting falls after the deadline for a decision.
