It really does not matter whether you are for or against ATV trails in State natural areas. Whether the trails are a good idea is not an issue, at least at this point.  The issue is whether ANR has the legal authority to set aside State natural areas for ATV trails and the answer to that question is – it does not.

The Douglas Administration, through the agency of natural resources (ANR), has drafted and is proposing administrative rules that will create ATV trails on state land. The legislative committee on administrative rules (LCAR), which reviews new agency rules, will consider whether to approve the ATV trail rules at a hearing this morning.

There is no legal basis for LCAR to approve the proposed rules because the administration’s rules violate state law. LCAR needs to tell the administration that there are ways Vermont can establish ATV trails. Unauthorized adminstrative rulemaking, however, is not a permitted avenue.

LCAR needs to explain to the Administration that they are welcome to come to the committees on Natural Resources and Government Operations where they can request legislation allowing ATV trails and legislation that authorizes ATV trail rulemaking. After ANR takes this required first step and if the legislature passes legislation that gives ANR rulemaking authority, including the parameters of that authority, then we can talk about what is the best way to implement any legally granted authority.  

Why LCAR cannot approve ANR’s natural areas & State land ATV trail rules after the click —

ANR has no authority to propose natural area/State land ATV trail rules.  The General Assembly has not granted powers to ANR that enable unelected agency officials to adopt rules designating ATV trails on State land or in natural areas.

The only legal avenue to establish ATV trails on state land, in natural areas or any area under ANR’s regulatory jurisdiction, is for the legislature to do the following:

1. Give ANR authority to engage in rulemaking (an “enabling” act); which

2. Authorizes the use of specific land for ATV trails; and

3. Sets guidelines for determining what land is eligible, the process for establishing, maintaining and/or closing trails; and

4. Establish a state policy for ANR to follow in drafting, proposing and implementing authorized rules.

Nothing may legally happen until the General Assembly passes an enabling statute that authorizes ATV trails and authorizes ANR administrative rulemaking to establish ATV trails.

ANR’s actions are the result of the administration’s attempt to exploit an inartfully drafted prohibition against ATV riding in natural areas. The administration is contorting a statutory prohibition against ATV use into a grant of rulemaking authority that gives trail granting authority and creates a state policy/program that does not exist anywhere in the laws governing ANR. It does not exist anywhere in Vermont law for that matter.

ANR bases its proposed ATV natural area trail designation authority on a motor vehicle statute. 31 V.S.A. §3506(b) which says:

“An all-terrain vehicle may not be operated: . . .(4) On any public land, body of public water or natural area established under the provisions of section 2607 of Title 10 unless the secretary has designated the area for use by all-terrain vehicles pursuant to rules promulgated under provisions of 3 V.S.A. chapter 25.” (emphasis added).

Section 3506 is an overall prohibition against riding an ATV by certain people (kids, people who are intoxicated etc.) and a general prohibition against riding in certain places (natural areas, public roads, private property etc.).  This prohibition is in the Title containing Vermont’s motor vehicle statutes. It is not a grant of authority to ANR to make rules. Rather, it is a prohibition against riding ATV in certain places also recognizing that the prohibition might not apply if the Secretary of ANR does something in the future. It does not, however, authorize the Secretary to do anything. That is an entirely different subject and one the General Assembly has yet to address.

The first obvious problem with ANR’s approach is that the statute (§3506) references a potential loophole to ATV riding in natural areas but nowhere else in the statutes is there authority to adopt rules that will allow this loophole to come into play. Whether to let ATVs enter State natural areas was left for future legislation by the committees of jurisdiction (Natural Resources/Government Operations). Neither of these committees have written, nor has the General Assembly passed, legislation that gives ANR the authority to exploit this potential loophole. The legislature can remedy this situation by granting ANR this particular rulemaking authority if the Legislature so chooses. The administration cannot “remedy” the situation by just taking authority it does not have.  

The second obvious problem is this — Even if a statute that expressly prohibits an activity (ATV riding in natural areas) was actually intended to grant authority to allow it (which is ridiculous and which is NOT what it does), the statute directly contradicts itself and State policy if you read it the way ANR does.  The statute says “no ATV trails in natural areas.” Straightforward enough, right?  ANR’s reading of the statute is: “No ATV riding in natural areas unless ANR says it’s OK and with no guidelines or oversight.” This is also crazy.  A “natural area” is specifically defined under Vermont law as:

limited areas of land which have retained their wilderness character, although not necessarily completely natural and undisturbed, or have rare or vanishing species of plant or animal life or similar features of interest which are worthy of preservation for the use of present and future residents of the state and may include unique ecological, geological, scenic and contemplative recreational areas on state lands.

Land uses and practices in natural areas shall be subject to regulations . . . to manage or maintain the areas for the preservation of their natural condition.

ANR is suggesting that a section of the motor vehicle’s Title of the Vermont Statutes, which does not authorize rulemaking authority for ANR, is in fact a statutory enabling act that allows ATV trails in areas that are under ANR’s jurisdiction; and ANR is arguing that it has authority to unilaterally allow ATVs onto land that the legislature has already determined must be “managed for the preservation of their natural condition” because of its “unique ecological” value.

When LCAR reviews ANR’s proposed new rules, it does not approve or withhold approval based on whether they agree with ANR’s rules. Rather, LCAR’s review is limited to whether ANR’s proposed rules properly implement a statute, passed by the General Assembly, that authorizes rulemaking and permits ATV trails in natural areas. This review is controlled by the Administrative Procedure Act and 3 V.S.A. §842. The legislative committee will review whether ANR’s new rule (1) is beyond the authority of the agency;  (2) is contrary to the intent of the legislature; or whether (3) the proposed rule is arbitrary.

The ATV natural area trail rule fails all three tests.  There is NO authority to begin with so they have already exceeded the legal bounds of what ANR can do. It is not only contrary to the intent of the legislature, the legislature has not even set forth a policy for ANR to follow. The proposed rule is arbitrary because there are no guidelines or parameters for ANR to follow which they obviously didn’t.

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Examples

Examples of ANR enabling legislation and ANR rulemaking authority in Title 10  (conservation and development), read like this:

Section 5402. Endangered and threatened species lists.

(a) The secretary [of ANR] shall adopt by rule a state-endangered species list and a state-threatened species list. The listing for any species may apply to the whole state or to any part of the state and shall identify the species by its most recently accepted genus and species names and, if available, the common name.

(b) The secretary shall determine a species to be endangered if it normally occurs in the state and its continued existence as wildlife or a wild plant in the state is in jeopardy.

(c) The secretary shall determine a species to be threatened if its numbers are significantly declining because of loss of habitat or human disturbance and unless protected will become an endangered species.

(d) In determining whether a species is endangered or threatened, the secretary shall consider:

(1) the present or threatened destruction, modification or curtailment of the range or habitat of the species;

(2) over-utilization of the species for commercial, sporting, scientific, educational or other purposes;

(3) disease or predation affecting the species;

(4) the adequacy of existing regulation;

(5) actions relating to the species carried out or about to be carried out by any governmental agency or any other person who may affect the species; and

(6) other natural or man-made factors affecting the continued existence of the species.

(e) In determining whether a species is endangered or threatened, the secretary shall:

(1) use the best scientific, commercial and other data available;

(2) consult with interested state or federal agencies, other states having a common interest in the species, and any interested persons; and

(3) notify the governor of any state contiguous to Vermont in which the species affected is known to occur.

Notice all the detail.  

First, the legislature authorizes rulemaking. Next, the legislature lays out the requirements needed for ANR’s to write and propose new rules. Then the legislature defines concrete parameters of regulatory oversight that must be part of an overall, and objectively predictable, rulemaking formula.  To do this, the Legislature gives specific instructions that the rules must address such as: (a) what goes into the list of species determined by administrative rules, (b) who must be consulted, (c) what must be considered, (d) multiple factors to be included in regulatory determinations, and (e) notification requirements.  

“The secretary may adopt rules” or “The secretary shall adopt rules.”  That is what rulemaking authority looks like. I have never seen a legislative grant of rulemaking authority that reads: “An all-terrain vehicle may not be operated in a natural area established under the provisions of section 2607 of Title 10.”

If ANR wants authority to create ATV trails, it needs to go to the General Assembly, respect the democratic process, respect the rule of law applicable to all of us and ask for statutory authorization. ANR’s power grab, and illegal claim of State land and natural area authority, is a farce.