Railroad crossing law needs to be changed
DE SOTO - The view from the Great River Road on Wisconsin’s left coast was breathtaking.
On this mid-February morning, the frozen surface of the Mississippi River stretched out to the west, its crystal cover creating a winding ribbon through brown, tree-topped islands and highshouldered bluffs.
A trio of bald eagles sat in a clump of cottonwoods just south of De Soto. In a nearby coulee, a half-dozen white-tailed deer foraged across an oak bench beneath a sandstone outcropping.
If you were a sportsman, you would have lost your breath, too, at something missing from the grand outdoors scene.
“That’s usually a really good spot for bluegills,” said Frank Ouimet of Ferryville, nodding at a slough just 50 yards from the public road. “Nobody goes there anymore.”
On a partly sunny, 35-degree day with a solid 18 inches of ice on the river, by all rights there should have been at least a handful of anglers on the traditional hot spot.
If it had been a weekend, you could have expected a crowd of dozens.
But here, and just to the north on De Soto Bay, the ice was empty.
There was a total absence of ice anglers on a pair of Wisconsin’s best ice fishing spots.
The problem? Access. Although the sites are a short walk from a vehicle parked on the wide shoulder of the highway, they require an angler to cross railroad tracks.
Such an act, performed safely and legally by legions of Wisconsin sportsmen and women for generations, became illegal in a 2005 change of state law.
Anglers, hunters, trappers, wildlife watchers, hikers and other pedestrians who bisect the tracks at unofficial crossings are subject to a trespassing ticket and fine.
“None of us wants to violate,” Ouimet said. “What’s happened is most people are just giving up.”
I joined Ouimet and Mike Gorman, 64, of Salem for an outing on the Mississippi and to get a sense of the difficulty imposed on sportsmen by the law.
The legislation’s effect is particularly visible along the Mississippi, where a railroad parallels the river and prevents easy access to hundreds of traditional fishing and hunting spots. However, the issue is statewide. According to a Department of Natural Resources review, the law change prohibits the public from using 134 former crossings to the Mississippi River.
In addition, 121 DNR wildlife areas, fishery areas, forests, natural areas and parks are crossed by railroad tracks.
The law was changed quietly as part of the 2005-’06 state budget. According to representatives of the railroad industry, it was changed to prevent accidents and increase public safety.
The legislation stayed out of the spotlight until a couple years ago when Burlington Northern Santa Fe, which runs its trains on the right-of-way here in western Wisconsin, had its railroad police officers begin an “education campaign.”
Ouimet and many other anglers were threatened with a ticket. According to BNSF officials, no one has been issued a citation.
But the law and the warnings have markedly reduced the use of traditional outdoor recreation sites along the Mississippi River, according to many longtime area residents.
“For over 100 years, there was good access across railroad tracks and very few accidents,” said Marc Schultz, 71, of Brice Prairie, a retired UW-Extension resource agent in La Crosse County and a member of the La Crosse County Conservation Alliance. “This recent change has been a huge step back for the rights of hunters and anglers.”
Moreover, Schultz said the law has had a negative economic impact in the region.
The pain on sportsmen is increased by common knowledge: the law hasn’t prevented a single injury to a hunter or angler.
According to records kept by the Office of Safety Analysis of the Federal Railway Administration, from January 1975 through December 2017, there were 451 casualties to “trespassers not at highway rail crossings” in Wisconsin, or 10.5 per year.
How many involved hunters or anglers in recent decades? Zero, according to a review of accident notes on the federal database.
“Our sportsmen and women are not the problem,” said George Meyer, executive director of the Wisconsin Wildlife Federation. “This law has had a chilling effect on outdoor recreation for no good reason.”
If you hear about a pedestrian killed by a train in Wisconsin, it’s most likely to be a suicide.
The state law does nothing to dissuade a person who has decided to end their life by standing in front of a speeding locomotive.
Federal records from 2011-’17 show 41 people committed suicide when they were struck by trains in Wisconsin.
As tragic as that statistic is, it’s important to note none of the deaths were related to hunting or angling.
On our recent outing, Ouimet, Gorman and I drove north on Highway 35 past a dozen traditional ice fishing spots, all now blocked from easy access by the law.
Signs have been placed along the river alerting the public of the trespassing law.
The accident data make it clear the law has done nothing to improve safety for hunters and anglers.
But one can argue it has actually put more sportsmen at risk of injuries.
To access De Soto Bay, for example, an ice angler now has two options. To do it without charge, they park about 1 mile north in Black Hawk County Park and use an ATV or snowmobile or walk back to De Soto Bay, a journey that passes through areas with springs and currents that create hazards.
Before the law change, anglers had a simple walk across the tracks and down a bank onto the ice. The typical travel distance was less than 50 yards. And it was free.
The other choice is to pay a fee at a nearby sports bar and walk or drive through a tunnel under the highway.
It understandably rankles sportsmen to have to pay a private business to access public land and water that was open and free for decades.
Our group continued north to Stoddard, where we crossed at an established crossing and paid a fee to park at a private marina to access the ice.
We had driven about 20 miles and passed dozens of spots we likely would have fished for free just a few years ago.
The issue is on the radar of state politicians.
In 2015, a provision was included in the state budget bill to strike the trespassing law.
But Gov. Scott Walker vetoed it. Then Rep. Lee Nerison (R-Westby) introduced a bill in the 2015-’16 legislative session to fix the problem. Although the bill enjoyed bipartisan support, including from legislative leaders such as Rep. Joel Kleefisch (R-Oconomowoc), Sen. Jennifer Schilling (D-La Crosse), Sen. Kathleen Vinehout (D-Alma) and Sen. Leah Vukmir (R-Brookfield), it was blocked in committee in the Senate.
Why?
It comes down to our governor and influence by the railroad industry that has trumped the interests of Wisconsin conservationists.
Burlington Northern Santa Fe, for example, is a member of the American Legislative Exchange Council (ALEC), a leading conservative political organization. And the railroads, and other businesses that rely on rail transport, are significant financial donors and active lobbyists.
In January 2017, the WWF, Wisconsin Conservation Congress and La Crosse County Conservation League presented a petition to Gov. Walker with about 4,900 signatures calling for a fix to the law. It failed to move the governor.
In fact, it appears Gov. Walker has told Republicans in the Legislature to “stand down” on the railroad crossing issue.
Nerison and other Republican legislators opted to not introduce a bill on the issue in the current session. Nerison did not return phone calls over the last two weeks to talk about the issue.
Sen. Vinehout, however, recently introduced a bill that would curb the authority of the railroad police. The bill is unlikely to even get a hearing.
For sportsmen looking for a remedy, the situation is extremely frustrating.
In 2016, the Office of the Commissioner of Railroads conducted a review along the Mississippi for new or improved public access. The preliminary cost estimate for 14 public pedestrian crossings was $7 million to $10 million.
The study acknowledged there is a problem.
However, the solution isn’t spending millions of dollars on a handful of crossings.
The answer is to change state law and once again allow sportsmen to cross railroad tracks at millions of spots to access hundreds of thousands of acres of public land and water.
As it relates to anglers, hunters, trappers, hikers and wildlife watchers, the law serves no demonstrable public safety purpose.
And it clearly has restricted the ability of the public to recreate on publicly owned land and water.
“They stole our opportunity,” Ouimet said. “And for what?”
There are plenty of smart people in state government and politics who could craft legislation to undo the damage caused to sportsmen by the 2005 law.
In this election year, Gov. Walker will be asking for votes. Make sure to ask him when he’s going to fix the railroad crossing law.