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New bill aims to restore railroad crossing rights
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Wisconsin State Assembly Bill 876, introduced by Representative Lee Nerison, R-Westby, has passed in the assembly on a bipartisan 59-34 vote.

AB-876 is a bill that would restore a state tradition, which was law for over 150 years, allowing pedestrians to walk directly over a clear stretch of railroad track or railroad right-of-way without facing a fine for trespassing.

The bill enjoys broad bipartisan support in the state assembly and state senate from representatives of districts bordered by the Mississippi River.

Supporting the bill were Senator Kathleen Vinehout, D-Alma; Senator Jennifer Shilling, D-La Crosse; Senator Howard Marklein, R-Spring Green; Representative Chris Danou, D-Trempealeau; and Representative Steve Doyle, D-Onalaska.

The bill will be taken up next in the Wisconsin State Senate, and if passed, will land on Governor Scott Walker’s desk to be signed.

Nerison authored AB-876 in response to citizen concerns that the current law, which restricts citizen access and can be enforced under trespass laws, would put hundreds of miles of the Mississippi River shoreline off limits to anglers, hunters, trappers, and outdoor enthusiasts.

“Wisconsin is fortunate to have significant, unique natural areas and public properties. For over 150 years, it was legal to cross a railroad track to enjoy them. That action became illegal in 2005 and it’s time to change the law back to what it was,” Nerison said.

Nerison is concerned about a loss of tourism revenue and discouraging future generations of fishers, hunters and recreational users of the river access, if they are required to own land in order to enjoy their outdoor pursuits.

The Mississippi River Corridor, Dubuque, Iowa to the Twin Cities, Minn. is a 275-mile corridor containing parts of two Class 1 railroad mainlines linking the Twin Cities to Chicago, and beyond. This corridor also contains one of the main rail freight corridors to Canada. The highways in the corridor are economic lifelines and tourism routes.

The corridor contains Wisconsin’s only National Scenic Byway, the Great River Road (primarily Highway 35), as well as the Governor Nelson Dewey Memorial Highway (Highway 81 from Cassville to Beetown), the Laura Ingalls Wilder Historic Highway (Highway 25 from Nelson to Pepin), and the Great River Road (Mississippi River) Trail.

Last year, the BNSF Railroad began issuing warnings to fishers crossing its tracks to reach angling spots along the Mississippi River.

BNSF cited safety concerns as the rationale for the existence of the current trespassing laws. They want sports people to follow the law, which allows people on foot to use only designated crossings.

BNSF representative, Amy McBeth outlined the railroad’s position on the current legislation.

“BNSF is not happy about the passage of AB-876 in the Assembly,” McBeth said. “For BNSF, the law against trespassing in rail corridors is really about public safety. We’re not against citizens being able to access the public waterways, but it is our position that the only way for them to safely do so is in the designated crossings.”

The BNSF representative pointed out that even though they do employ private railroad police officers, no citations have actually been written to date, despite the law having been on the books for over 10 years.

 “What we’re concerned about is public safety, and our approach over the past year has been to conduct a public education effort,” McBeth emphasized.

McBeth also noted that the rail company is exploring ways to create more citizen access through expansion of designated crossings. She explained that it is a complicated process involving multiple agencies, and would also require funding to create the crossings.

McBeth said that “the best way for citizens to potentially have input into this process would be through contacting the Office of the Commissioner of Railroads, the Wisconsin Department of Transportation, or local elected officials.”

Representative Nerison says, “I’ve heard rumors about two citations having been issued, but to date have received no evidence whatsoever that supports them.

Nerison remains interested to know about any actual tickets that have been issued, and encourages anyone that may have received one to forward a copy to his office.

When asked about the dollar amount of any citations that have or may be issued, Nerison commented that “without seeing an actual citation, I could not comment about the dollar amount of any fines.”

Groups such as the Falling Rock Walleye Club, located on Highway 35 near Lynxville, support Nerison’s bill. The club believes that the current law restricting access leaves vast stretches of the river, even private boathouses, inaccessible.

Darren Prew, Marquette, Iowa, is the President of the Falling Rock Walleye Club. Prew has plenty to say about the 2005 trespassing law and the legislation currently before the Wisconsin State Senate.

“There has been lots of talk recently about the issue of public access to the Mississippi River,” said Prew.

“We’re not siding with the railroad – we want to see public access to the river across the tracks fully restored, and we support Representative Nerison’s legislation.”

Prew lives in Marquette, but commutes to work every day in LaCrosse.

“I drive up and down that river road every day, and I can tell you from where I see the cars parked, that people are crossing the tracks to get to the river all over the place, not just at the designated crossings,” Prew said. “For generations, people were always able to cross the tracks to get to the river, and they’re going to keep doing it.”

One location that Prew pointed out as a frequent, non-designated point of access is near Clement’s Fishing Barge outside of Genoa.

“There’s lots of people crossing the tracks up there, and no one has gotten hit on the tracks there since 1936.”

Another spot Prew believes has too little access is between LaCrosse and Stoddard, where he says there is a four-mile stretch with no designated access points.

“My opinion is that it is crazy to allow the railroad to flex their muscles and keep us out,” Prew said.

David Gollon of Dodgeville was out fishing with friends on a beautiful, almost-50-dgree day last Saturday on the Mississippi River, just south of Lynxville.

When asked about his thoughts regarding the railroad trespassing law enacted as part of Governor Jim Doyle’s budget in 2005, Gollon was quick to respond.

“It’s caused a lot of problems to fix a problem that really didn’t exist,” Gollon said of the law limiting access across railroad tracks.

Gollon pointed out that he was unable to recall any deaths of pedestrians on the railroad bed that didn’t involve alcohol or other factors.

Gollon pointed to the hillside above and across from the highway, the frozen area of ice between the tracks and the highway, and the open frozen river on the other side of the tracks.

“It’s all public land,” Gollon said. “The railroads were given (use of) that land by the public, and now with this law, they have restricted the public’s access to our land.”

Gollon listed DeSoto, Oxford, Burdum just south of Cassville, and the area in Madison known as Monona Bay as areas where the law is having a particular negative impact.

“It’s really hard on the older folks up in DeSoto,” Gollon explained. “From the designated access point, you have to walk a mile in either direction to get to the good fishing spots.”

There are reports that a private landowner in DeSoto is charging fishers three dollars to park their cars and access the river on private land.

Gollon and his fishing buddies hadn’t had much luck with catching fish, but said of their experience, “If you told me I wasn’t going to catch any fish today, I still would have come out – it’s a beautiful place, a beautiful day, and we had a great time.”

Marc Schultz of the LaCrosse County Conservation Alliance said the current regulations have hurt both local and tourist access to the Mississippi River.

"There's a lot of local culture and local tradition that has been built around the legal right to step across the tracks and this is a significant and distinct loss of access to public lands and waters," he said.

Many people who fish and hunt along the river aren’t even aware of the current rule, Schultz noted.

"If you were able to talk to the average hunter, fisherman, trapper, cross-country skier, birdwatcher, they all just grew up and that's what they did when they wanted to get into the refuge," Schultz said. "There's miles and miles of it, where there's no access other than to go across the railroad tracks."

Sabrina Chandler, Manager of the Upper Mississippi National Wildlife & Fish Refuge, said because Wisconsinites used to be able to walk across the tracks, it's fairly common for people to continue to do so.

Chandler said the refuge is working to find a balance between both sides of the issue.

"We do have some of the same concerns for safety that the railroad (company) has, but we want to have people be able to access the refuge and we want people to be able to enjoy the public lands," Chandler said.

According to McBeth, the BNSF representative, nine people in the state died last year from trespassing in railway right-of-ways, and 49 people have died since 2006.

According to the Operation Lifesaver website, which cites Federal Railroad Administration statistics, 915 pedestrian rail trespass casualties (fatalities and injuries) occurred in the nation in 2014, and 70 percent of all 2014 trespass casualties occurred in 15 states—California, Texas, Pennsylvania, Florida, Illinois, New York, North Carolina, New Jersey, Ohio, Georgia, Tennessee, Louisiana, Indiana, Virginia and Maryland. Wisconsin is not among those 15 states.

The Wisconsin Department of Natural Resources has identified at 124 spots along the Mississippi River, where shore access requires crossing the tracks. And 121 DNR properties throughout the state are bisected by railroad tracks.

“This might well be the largest loss of public access to public waters in the history of the state,” a department memo states.

Cody Adams, the Crawford County Department of Natural Resources Conservation Warden, reported that the DNR has asked their employees not to share any opinions about the issue or the pending legislation as their agency is not responsible for enforcement of the law.

Adams reported that the DNR and the railroad police will communicate at times when one or the other agency has questions or needs to clarify jurisdiction.

AB-876 faced stiff opposition from corporate lobbyists. Railroads, unions, other rail organizations, the Wisconsin League of Municipalities and Wisconsin Manufacturers and Commerce, as well as organizations representing police chiefs and EMS workers are opposing the bill, according to records from the Government Accountability Board.

“I know taking on the railroad companies is an uphill battle,” Nerison said. “But we’ve moved down the tracks, so to speak, in getting this through the assembly. I thank everyone for the hard work and support and it’s time to focus on the senate and governor to get this sensible bill to become law.”

The battle is now moving “down the tracks” to the Wisconsin State Senate, and SB-734 may come up for a vote as soon as March 15, the last day of the current legislative session.

It is currently being considered in the Senate Committee on Judiciary and Public Safety. Wisconsin State Senator Van Wangard, R-Racine is the committee chairperson, and other members of the committee include Senator Leah Vukmir, R-Brookfield, Senator Frank Lasee, R-DePere, Senator Fred Risser, D-Madison, and Senator Lena Taylor, D-Milwaukee.

A representative from the office of Senator Jennifer Shilling’s office said that in its current format, SB-734 is identical to the AB-876, which was just passed in the state assembly.

The bill passed by the assembly could be amended before coming to a vote in the state senate. If the senate passes an amended bill it would go back to the assembly for approval.

“Governor Walker recently vetoed a provision in the budget similar to Representative Nerison’s legislation, and I wish we’d gotten started with this process a little sooner,” Senator Jennifer Shilling said. “We’re almost at the end of the session, and it’s unclear at this time whether the senate will be able get SB-734 to a vote this time around.”

Shilling said her office has received hundreds of phone calls from constituents since the bill passed in the assembly, and she is very aware that access to the river is an issue that is important to her constituents.

“We want to make sure that families and tourists continue to have sporting, tourism and economic access to all of the opportunities the river provides,” Shilling said. 

Representative Nerison reports he “has had good feedback from his colleagues in the Senate on both sides of the aisle regarding the legislation, and his assessment at this time is that the bill currently has about a 50/50 chance of being passed in the senate.”

When asked if he believes that Governor Walker would sign the bill into law, Nerison commented that “The Governor has been receiving quite a few contacts from people around the state on this issue,” but “he did previously veto this when it was included in budget legislation.”

Long story, short, Nerison is unsure about the Governor’s intentions. He said he had reached out to the Governor, but had not yet heard back.