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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

Bill To Strip Nature Preserves Commission Of Control Of Blackacre State Nature Preserve Is Tabled After Hearing In Senate Committee  Posted: February 15, 2013

Dear Senator:

I'm writing to ask you to oppose Senate Bill 53 when it comes up in the Natural Resources and Energy Committee tomorrow. As I have communicated with Senator Denton, the Kentucky Resources Council is very concerned that the bill would conflict with the Articles of Dedication and Deed by which the Blackacre Nature Preserve was donated to Kentucky, and would not have the effect intended by the sponsor of allowing the property to be used for a wider scope of activities.

The bill is intended to take the management control over the uses of the Blackacre Nature Preserve from the Kentucky State Nature Preserves Commission and to give to the "Blackacre Conservancy" (formerly Blackacre Foundation) the control to determine what uses are permissible. There has been conflict in recent years between the KSNPC and the Conservancy, with the latter seeking to stage activities and events that are expressly prohibited by the Articles of Dedication of the property.

The Blackacre Nature Preserve was a gift from Judge Macauley L. and Emilie Smith to the Kentucky Nature Preserves Commission, acting for and on behalf of the Commonwealth of Kentucky. In 1979, the Commission accepted Blackacre into the Kentucky Nature Preserves System “under the terms and conditions set forth” in the “Articles of Dedication with Deed of Conveyance.” According to the Articles of Dedication, the primary classification and purpose of the preserve “shall be passive recreation and interpretive nature education. (Emphasis original).” The Articles of Dedication provided a number of “rules for management,” including that "the principal activities in the preserve shall be walking and observing” and that "activities and uses which are unrelated to observation and study are prohibited except as may be expressly permitted by the Commission “to carry out the purposes of the preserve.”

SB 53 attempts to give “the 501(c)(3) nonprofit organization that manages a legacy nature preserve” the authority to improve public access, construct restrooms, demolish and replace existing structures, rent the property for private events to raise money for property maintenance, hold special public events, allow historical reenactments and encampments, and allow campfires as part of those encampments, and to hold chamber music and other musical concerts. The bill provides that all of these activities “shall be done in accordance with the articles of dedication” as well as with KRS Chapter 146.

The problem is that while (3) of the bill purports to limit approval by a nonprofit organization “that manages a legacy nature preserve” to activities that are consistent with the articles of dedication, the very delegation of the authority to approve such activities to a nonprofit organization rather than to the Commission, violates the express restrictions of the Articles of Dedication, which clearly prohibit all activities other than observation and study unless “expressly permitted by the Commission to carry out the purposes of the preserve.” Among those uses expressly prohibited in the Articles of Dedication unless expressly approved by the Commission to carry out the purposes of the preserve, are camping, games and sports, possession of firearms and any other weapon, and fires.

The substitution of a nonprofit organization for the Commission as the entity that could approve such activities, would violate the express restrictions under which the preserve was accepted into the Nature Preserve System, and under the terms of the Articles of Dedication, if the Commission no longer had any discretion to approve some activities, all activities unrelated to observation and nature study would be blanketly prohibited.

Additionally, any action by the Blackacre Conservancy to approve such activities in the absence of Commission approval, would appear to be beyond the authority of the Blackacre Conservancy, Inc. (i.e. “ultra vires). The Conservancy’s Articles of Incorporation authorize it to “make gifts, grants, and to expend funds to promote and assist in the support, maintenance and development of “Blackacre Nature Preserve,” Jefferson County, Kentucky, for (a) its historical significance, (b) a nature preserve, and (c) an environmental and historical education center[.]”

The Conservancy is also authorized to “engage in any and all activities related to the aforementioned purposes…provided, however, that no such activities shall contravene the articles of dedication of Blackacre Nature Preserve or the Nature Preserve Act[.]” It would appear that, were SB 53 to be enacted, that any action of the Board of Directors by the Blackacre Conservancy, Inc. approving any of the activities enumerated in subsection (2) of SB 53 would contravene the Articles of Dedication and would be beyond the corporate powers of the nonprofit organization.

Thanks in advance for your consideration of these concerns.

Cordially,

Fitz

Tom FitzGerald
Director
Kentucky Resources Council, Inc.

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