December 20, 2013

Government attempts power grab under guise of protecting environment

By Government attempts power grab under guise of protecting environment

After receiving complaints about all-terrain vehicles (ATVs) driving through a shallow river, a Louisiana governmental agency decided to step in.  The agency’s solution: restricting a large amount of freedom and greatly expanding its own power.

The agency is the Louisiana Department of Wildlife and Fisheries (LDWF), which, among other things, protects rivers that the state legislature deems “natural and scenic” under the Louisiana Scenic Rivers Act.  So far, the Act lists 63 rivers as natural and scenic and hence subject to LDWF’s control.  These rivers stretch across much of the state.

As this article notes, LDWF proposed amending one of its rules to restrict ATV use in one shallow river, although the rule change would apply to all 63 natural and scenic rivers.  That article failed to mention that the rule change would also restrict much more than ATV use.  According to the proposed rule change, a permit would be required in order to use “a motor vehicle or other wheeled or tracked vehicle” on a natural and scenic river.  That means a permit would be required to ride a bicycle through, or drive a small motorboat on, such a river.  Apparently, not even LDWF intended this absurd result, given that it defended this proposed rule change by arguing that ATVs can damage aquatic life on the bottoms of rivers.  The agency said nothing about trying to restrict bicycle use or boating, although that’s what the rule change would do.

LDWF also wants to expand its powers under the guise of protecting rivers.  Under one of LDWF’s rules, its scenic-rivers regulations apply to activities that occur within 100 feet of — but not beyond — a natural and scenic river.  LDWF wants to eliminate that 100-foot limit on its scenic-rivers jurisdiction.  In an effort to calm Louisianans’ concerns with this attempted power grab, LDWF argued that it always had the power to regulate activities more than 100 feet from a river.  According to LDWF, just because one of its rules says that it can regulate activities within 100 feet of a river, that doesn’t mean the agency can’t regulate activities further away from a river.

Pacific Legal Foundation disagrees, and that’s why we submitted a letter to LDWF, urging it not to adopt these two rule changes.  The first rule change, as noted, would restrict a lot of vehicle use.  That is troubling because the Scenic Rivers Act protects recreational use of rivers, including water-craft usage.  The Act also says that the “normal activities” of landowners are immune from LDWF regulations.  The broad scope of this proposed rule change unnecessarily curtails a lot of freedom and property rights.

We also object to LDWF’s attempted power grab.  Keeping the agency’s jurisdiction within 100 feet of a river is a sensible policy because it provides clear guidance to landowners and businesses.  Without this 100-foot limit, LDWF would be free to meddle in all sorts of activities.  For example, LDWF could prevent home construction that local zoning authorities have approved, on the ground that LDWF thinks the construction might harm a river a mile away.  The legislature certainly didn’t intend for the agency to have this much power.  Contrary to LDWF’s assertion, the Scenic Rivers Act does impose a 100-foot limit on the agency’s power.  All of these concerns aside, this attempt to expand the agency’s power far beyond rivers has absolutely nothing to do with restricting ATV use inside of a shallow river, which is what prompted the agency to propose these rule changes in the first place.

This is another thinly veiled attempt by the government to expand its own power in the name of saving the environment.  Because these proposed rule changes are wholly out of proportion to their alleged need, we are hopeful that the agency will reconsider them in light of our concerns.

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