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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Testimony Concerning House Bill 312  Posted: February 7, 2010

KRC Testimony Concerning House Bill 312

Mr. Chairman, members of the Committee, let me begin with full disclosure. My equine experiences have been limited to a brief encounter at the age of 13 on the back of a horse appropriately named “Lucifer” who did not suffer fools (that would be me) gladly.

I appreciate this opportunity to express my concerns regarding House Bill 312 as it is currently drafted. I have been in communication with the Kentucky Horse Council, and while I understand that there is some frustration in their attempt to gain greater access to Wildlife Management Areas under the control and responsibility of the Kentucky Department of Fish and Wildlife Resources, I am very concerned that the bill as drafted interferes with the discretion that these land managers must have in order to assure that the primary purposes for which these lands have been dedicated by the General Assembly are not compromised by any form of recreation, whether motorized or non-motorized.

KRC’s specific concerns are these:

First, the bill is unclear regarding whether existing decisions that have prohibited or restricted equine travel on public lands need to be reopened. If so, the workload on the agencies needs to be addressed, because in the case of the Environment and Public Protection Cabinet, they are already failing to meet their existing obligations to manage the regulatory programs entrusted to them. The serial budget cuts imposed by the current administration have reduced many programs’ funding by up to 25%. Having to reopen all of the decisions regarding all of the lands under their control and responsibility, and having to hold hearings on each decision, adds to an already burdensome workload with no new funding.

Second, while I don’t disagree that a decision concerning whether to open lands to equine use should be grounded in reason, the standards provided in Section 1(3) are underprotective of these public lands.

For example, under Section 1(3)(a), access would have to be allowed to state nature preserves and wildlife management areas even if such equine access could result in significant harm, since it could be argued that the impacts would not be “enduring” inasmuch as they could be (and probably would be at public expense) remedied.

Given that these lands in question (particularly nature preserves) are held in trust for this and future generations, no recreational interest group should expect to gain access to these lands if any, let alone significant and enduring, harm would result.

While the House Committee Substitute appears to have exempted Kentucky State Parks, in fact even though they are not included in the definition of “state recreation land” because they are under the jurisdiction of the Tourism Cabinet they are included as lands for which a decision to limit equine access must be justified.

Third, Section 1(3)(c) is problematic as well, since it presumes that there is a federal official overseeing the state agencies in their management of these lands. The documentation of a loss of federal funds should be able to be provided by the state agency instead.

Fourth, the inclusion of state nature preserves as “state recreation land” it is of great concern because of the particular sensitivities of these lands. With the exception of the Blackacre Nature Preserve in Jefferson County, which is a working farm, the state natural areas that comprise the State Nature Preserves are remnant natural landscapes that the General Assembly has dedicated, by statute, to be protected and preserved from alteration by human activity as “living museums” of our natural heritage, for scientific research, and for protection of threatened and endangered species. The sensitivities of these lands are such that they should not be included as “recreation” lands.

A final concern is that the requirement to hold “hearings” implies that more than one hearing would need to be held on any proposal to restrict or deny equine access, and the requirement to provide “evidence “ suggests a quasi-judicial rather than informal legislative-type hearing.

My recommendation, after talking with the equine enthusiasts and understanding that they are actually seeking to gain access to a relative handful of specific areas (and that they do understand that some areas are inappropriate for horse travel) is to redraft the bill to read, in its entirety, as follows:

Section 1

(a) Upon request of the Kentucky Horse Council, the Kentucky Department of Fish and Wildlife Resources or Tourism, Arts and Heritage Cabinet, respectively, shall evaluate a specific proposal to gain access to a wildlife management area or state park, for equine recreation. Within ninety (90) days of submittal of a proposal, the agency shall provide a written decision with specific findings in support thereof, approving or denying the proposal.

(b) A decision approving a proposal to hold a special equine event, or a proposal to develop or improve a trail or road for equine travel, shall include the conditions under which the proposed activity will be allowed.

(c) A final determination approving, conditionally approving, or denying a proposal shall be subject to judicial review as provided under law.

This approach would reduce the agency workload, eliminate public hearings, and more clearly require that the agency provide a timely decision and justification that could be appealed to circuit court under Section 2 of the Kentucky Constitution if the aggrieved party believed it to be arbitrary or capricious.

Thank you, and I would be happy to answer any questions from the “Good Fitz” or any other members of the Committee.

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