But a tight budget and prevailing attitudes at Capitol augur against lawsuit
Environmental and conservation groups harbor growing doubts about the constitutional soundness of state lawmakers’ use of so-called Legacy dedicated funds for outdoors and cultural projects.
In the 2008 election, Minnesota voters agreed to change to the state Constitution so that the state sales tax was increased by three-eighths of 1 percent to provide increased funding in four areas: outdoors habitat, clean water, parks and trails, and arts and culture.
The amendment placed the stricture that the money not be used as a “substitute” for general fund spending.
Since the most recent Legacy bill was signed into law in July, environmental groups have proceeded carefully in their statements about the contents of this year’s bill. But Steve Morse, executive director of the Minnesota Environmental Partnership, thinks something is amiss. He said that environment and natural resources spending from relevant state agencies has shrunk while spending in the overall state budget has increased.
“Why are we getting a 14 percent cut when the overall state budget is going up? I think it has to do with the Legacy amendment,” Morse said.
The Legacy bill will spend $450 million over the next two years.
The state’s $5 billion general fund shortfall left lawmakers grasping to find ways to raid the dedicated Legacy proceeds to backfill the budget last session. In that environment, the Legacy dollars and the money overseen by the Legislative-Citizen Commission on Minnesota Resources, which spends Minnesota Lottery proceeds on environmental projects, were the only sources of unspent cash lying around in St. Paul.
Under the trying budgetary conditions, House Environment, Energy and Natural Resources Policy and Finance Chairman Denny McNamara, R-Hastings, said he believes this year’s bill stayed true to the constitutional limitations.
“We tried to be very careful and realize that these are really tough economic times,” McNamara said. “Yet it’s plain that it can’t be used for substitution. That’s the law. We need to follow that and I believe we are. That being said, I think it’s good that folks are pushing us.”
Environmental groups have guarded the Legacy funds closely during the three sessions since it was passed. In the midst of a bruising budget session in April 2009, Morse and others held a press conference in St. Paul and said the amount of general fund spending on the environment when the Legacy passed was roughly 1 percent. They said they would be watching closely to see whether the amount of general fund spending declined further.
Conservation Minnesota, which has taken a lead role as a Legacy watchdog group, has been engaged for several weeks in analyzing the most recent Legacy bill. The results, which are not yet complete, are expected to provide more clarity on how the Legacy funds are being used.
Dave Zentner is one activist who is eagerly awaiting Conservation Minnesota’s findings. Zentner, a past national president of the Izaak Walton League who was an ardent backer of the Legacy amendment campaign, has convened an informal coalition of environmental and sportsmen’s groups to talk about concerns over Legacy spending.
The group, which is known as the Dedicated Funding Working Group, met on July 28 but hasn’t made any specific claims. Zentner said he wants to pin down three things in particular:
* How much has general fund spending on the environment declined since the Legacy passed?
* Is traditional work in state agencies not being done with the assumption that it will be done separately by the Legacy?
* And are agency personnel expenses being paid for by Legacy money?
“Once we have our data and we think we have the strength of knowledge, [there will be] informed conversation about getting an agreement on what substitution and supplantation is, and everybody is on the same page on measuring it,” Zentner said. “That’s what we’re looking for.”
The Office of the Legislative Auditor, under the direction of Jim Nobles, is at work on a report about accountability issues related to Legacy. That study will review state laws and the state Constitution.
If all of the inquiries and analysis point to unconstitutional usage of Legacy funds, a lawsuit would seem to be the conventional response. But for all of their concern at the present moment, Legacy backers aren’t dwelling on potential legal complaints.
“Are there grounds to litigate it?” Morse said. “I think that’s very unclear. At this point I think it’s an issue for the jury of public opinion and political opinion.”
Zentner also strikes a cautious tone in contemplating legal action.
“I don’t think there’s a serious conversation yet about going to court,” he said. “That has not been out-of-hand rejected. But I think the efforts have focused on, one, knowing what we’re talking about, and two, trying to [pursue remedies] administratively. There’s a better way to resolve those issues than going to court.”
Environmentalists and outdoors advocates have been regarded with a certain amount of envy by many at the Capitol since the Legacy passed. Gary Botzek, executive director of the Minnesota Conservation Federation, said that Legacy advocates worry that taking the matter of Legacy spending to court might attract negative attention and backfire. That leads advocates to appeal to elected officials rather than the courts.
“There are a lot of other agencies and programs that are being hit hard,” Botzek said. “In going to a lawsuit, you almost have to look at the public relations aspect, and that is not positive as far as coming across as greedy or holier-than-thou. I think you have to look at it administratively and legislatively as compared to a judicial solution.”
But the outdoors crowd at the Capitol rejects the advice to stay quiet and be thankful that the Legacy is available to allegedly backfill the general fund. Morse said the strong support for the amendment in 2008 is the basis for objecting to substituting the Legacy for general fund spending.
“Some people view it as a windfall,” Morse said. “We don’t view it as a windfall. It was the product of a lot of hard work. And quite frankly, it doesn’t provide nearly enough money to do the job that needs to be done.”