Dec. 19, 2019 – An environmental group recently lost a federal appeal to prohibit hunters from training dogs (using guns) on land the National Park Service donated for recreational uses, as well as off-road motorcycles, and military helicopter drill activities.
In Sauk Prairie Conservation Alliance v. U.S. Department of the Interior et al., No. 18-2213 (Dec. 12, 2019), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit ruled that such activities are not barred by two federal statutes at issue.
The National Park Service donated more than 3,000 acres of land to the Wisconsin Department of Natural Resources (DNR). Previously the site of a Cold War munitions plant, the DNR transformed the land into a state park for recreational uses.
The DNR created the Sauk Prairie Recreation Area (Sauk Prairie Park), north of Sauk City. The Sauk Prairie Conservation Alliance (Alliance) filed a lawsuit to bar the Wisconsin National Guard from using the recreation area to conduct helicopter drills, as well as other activities – dog training for hunting and off-road motorcycle riding on trails.
The Alliance argued that such activities were prohibited under the Property and Administrative Services Act, which requires the federal government to enforce land deeds issued under the Federal Land to Parks Program (Parks Program).
The land Park Program land deeds required Wisconsin to use Sauk Prairie Park for its intended purposes. The Property and Administrative Services Act requires land conveyed through the Parks Program to be conveyed for recreational purposes.
The Alliance also argued that the defendants – the U.S. Department of the Interior, the National Park Service, and the State of Wisconsin (intervenor) – violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement concerning dog training, motorcycle riding, and helicopter drill activities.
The U.S. District Court for the Western District of Wisconsin entered summary judgment in favor of the defendants and the Seventh Circuit Court of Appeals recently affirmed, concluding dog training and motorcycle riding were allowed as recreational activities.
Although military helicopter drills are not a recreational activities, the three-judge appeals court panel, in an opinion written by Judge Diane Sykes, noted that the “National Park Service included a provision in the final deed explicitly reserving the right to continue the flights, and the Property Act authorizes reservations of this kind.”
Program of Utilization
Since 1975, the Army has remediated the land surrounding the former Badger Army Ammunition Plant, which heavily contaminated surrounding soil and groundwater.
The DNR acquired portions of federal land over time through a process that began in early 2000s. The Parks Program application included a “program of utilization” that said land would be used for recreational, low-impact uses, such as hiking and camping.
But the panel noted that the list of activities was not exhaustive, and was incomplete at the time of application since the DNR did not know what parcels of land the Parks Program would yield. One of the parcels, which was later acquired, was a highly contaminated area that had been use for Wisconsin National Guard helicopter training.
The deeds that transferred land in parcels between 2010 and 2015 noted that the land would be used for public recreation as set forth in a “program of utilization.”
As land was transferred, the DNR developed a Master Plan for Sauk Prairie Park. The Master Plan specifically reserved a small portion of the park’s 3,000 acres for hunters to train their dogs, including acclimating the dogs to gunshots.
The Master Plan also allowed up 100 motorcycle riders to use a limited portion of the park’s bicycle and hiking trail system six days per year, with restrictions on noise.
As for helicopter training, the Master Plan said limited exercises could be conducted with a phase-out period – since the trainings were not recreational activities – unless the forthcoming deed specifically allowed such use by the Wisconsin National Guard.
The Master Plan also included the DNR’s environmental impact statement and concluded that off-roading and dog training would not significantly impact the environment. Helicopters, by contrast, would have more negative impacts.
The Master Plan was considered an amendment to the “program of utilization” noted in the deeds, two of which conveyed the two parcels after the amendment went into effect.
One of the last two deeds was unique to the others. It said the DNR could enter into an agreement with the Wisconsin National Guard “for rotary wing aviation training conducted in a manner that is consistent with WDNR’s approved Master Plan.”
The DNR and the Wisconsin National Guard did enter into an agreement permitting the helicopter training with a limited flight path across other portions of the state park.
Activities Approved
The three-judge panel analyzed the federal statutes to conclude that the challenged activities are not prohibited and may continue at the Sauk Prairie Park.
“[T]he National Park Service did not violate the Property Act when it approved the three contested uses,” wrote Judge Sykes. “Two of the uses are recreational activities perfectly consistent with Sauk Prairie Park’s recreational proposes, and the third was authorized by an explicit reservation in the deed as permitted by statute.”
The National Environmental Policy Act (NEPA) contained environmental impact exclusions applicable to the two challenged recreational activities, the panel noted,
An environmental impact statement was not required for the helicopter training, the panel concluded, because the Army conditioned approval of the land transfer on continued helicopter use, and an environmental impact statement is only required if an agency has discretion to take an action. Here, there was no discretion.
“It was the Army’s land to begin with, and the Army would not release it without this provision,” Judge Sykes wrote. “In other words, helicopter training was going to continue at Parcel V1 one way or the other.”
