REGIONAL- Voyageurs National Park officials are getting strong pushback on their Frozen Lake Surface Access and Use Plan from a somewhat unlikely source— the Minnesota Department of Natural Resources.
A letter from the state agency, now circulating on social media, is getting positive responses from the public for the objections it raises to the plan as well as its criticisms of the park’s unilateral development of the proposal. What’s more, the DNR appears to be challenging the park’s suggestion that it can restrict access to public waters that it doesn’t own, noting that the state never relinquished its ownership of the public waters within the boundaries of the park.
Under the proposal, snowmobiles would be the only vehicles with unfettered access to the park’s iced-over lakes. ATVs and UTVs (utility terrain vehicles) could only be operated within 300 feet of two relatively short, park-established ice roads on Kabetogama and Rainy lakes, effectively cutting them off from most of the park. An access fee would be charged to use the roads. The plan also puts restrictions on the placement of ice fishing shelters, and any shelter placed outside the 300-foot band around the ice roads would have to be towed there by snowmobile, not ATVs. The plan is an attempt to bring the park in compliance with federal regulations regarding off-road vehicle use in national parks.
In her recent letter, submitted during the public comment period, the DNR’s Northeast Region Director Shelly Patton expands on multiple concerns she expressed initially at the Kabetogama public forum. She first took aim at the process, expressing displeasure that the proposal was developed without input.
“I want to convey our surprise and disappointment with VNP’s decision to come forward with such a sweeping proposal without prior consultation with the DNR, riparian property owners, and the general public,” Patton said. “We would have hoped and expected to have conversations about the (National Park Service’s) management objectives and an opportunity to explore potential approaches to addressing those objectives. Instead, we were presented with a specific proposal that seeks to impose significant restrictions on longstanding winter uses of the state’s public waters within the park.”
Who owns the water?
At the heart of the DNR’s objections is the fact that when the park was created, the state of Minnesota did not convey ownership of the public waters or the beds of those waters to the federal government. While NPS can exercise a level of jurisdiction over those waters, they don’t have the authority to “strip either the state or riparian property owners of their legal rights to access these public waters because NPS does not own them,” Patton said.
The attempt to extend the NPS regulations on off-road vehicles to frozen lake surfaces is based on a faulty assumption that the ice is merely an extension of the land, an assumption in conflict with applicable water law, Patton said. Frozen lakes remain public waters, according to multiple court decisions cited by Patton, and therefore the federal regulations “cannot be applied to the state’s public waters to restrict access across the surface of public water, be it open or frozen,” Patton concluded.
Patton noted the long historical tradition of the park’s public waters being used by the public and businesses for winter recreation and transportation. The state holds those waters in trust for the public, providing rights to fish, skate, swim, boat, and freely travel. Implementing the Frozen Lake Surface Access and Use Plan would severely restrict the public’s access to the entire surface of public frozen waters and effectively represent NPS seizing the rights of ownership that were not conveyed to them, Patton noted.
Patton also addressed the rights of two groups in particular, those with disabilities and riparian property owners, those who own land along the lakeshores.
As written, the plan would run afoul of Americans with Disabilities Act by preventing the use of vehicles other than snowmobiles from accessing portions of the lake beyond the established ice roads. Patton pointed out that the plan has no allowances for persons with disabilities to use alternative forms of transportation best suited for their conditions.
The property rights of riparian owners extend out into the lake’s waters, and the plan would effectively compromise their right to access their property without just compensation from the federal government, Patton said.
VNP’s proposed limitations on ice fishing shelters and requirement of a permit for leaving them overnight also run counter to established law, Patton said. Under the law that established the park, the Secretary of the Interior is to permit recreational fishing within the park in accordance with applicable federal and state law, and “any regulations of the Secretary pursuant to this section shall be put into effect only after consultation with the appropriate agency of the state of Minnesota.” Minnesota regulations govern ice fishing, including the placement of ice fishing shelters, and authorizes those shelters to be unattended, Patton noted.
Patton also took issue with the park’s designation of the placement of ice fishing shelters by guides or the rental of such facilities as commercial fishing activities that require a federal commercial use permit. Defining them as such runs counter to state’s definition of commercial fishing, and VNP must consult with the state before any restrictions can be imposed, Patten said.
The rights of riparian owners to fish on public waters would also be compromised by the limitations proposed by VNP, Patton said.
“The proposed Frozen Lake Plan would have serious adverse impacts on the state’s property interest in its public waters and our obligations associated with the public waters the state owns within the boundaries of VNP,” Patton said. “It would also have adverse impacts on property owners, Minnesotans, businesses, surrounding communities, and visitors to the area. We therefore request that the provisions related to public access and ice shelters be withdrawn.”
Despite the objections, Patton struck a more conciliatory tone elsewhere in her letter.
“Despite our significant concerns with the Frozen Lake Plan as presented, I also want to emphasize that the DNR is fully prepared to participate in a more inclusive NPS process that engages all relevant parties, including local and tribal governments, business owners, community members, private landowners, and other park users,” she said.
VNP Superintendent Bob DeGross has already shown his willingness to accommodate more public feedback by voluntarily extending the time period to receive public comments. In comments made at the Kabetogama public meeting, DeGross noted that this was the initial draft of a plan that is still in the process of being formulated, and that ongoing public engagement in the process will be facilitated and welcome.