Outdoor activities impeded by railroad crossing rule

If your outdoor adventures take you across railroad tracks in Wisconsin, be aware that it’s now illegal to cross over tracks unless you’re at a designated railroad crossing. Whether you’re fishing, hunting, searching for Morel mushrooms or just going for a walk with your dog, you could be fined for trespassing if you don’t abide by the law.

Steve Dewald, member of the La Crosse County Conservation Alliance, said railroad police recently began threatening anglers with trespassing tickets if they continue to walk over railroad tracks to get to their favorite fishing holes along the Mississippi River.

Dewald is a retired Department of Natural Resources (DNR) conservation warden supervisor. He first got involved with this dispute around the year 2000 when the Burlington Northern Santa Fe (BNSF) railroad had a fence constructed to prevent anglers from reaching popular fishing areas on the Mississippi River south of La Crosse, at Stoddard. The fence blocked an access to the just completed seven-island Stoddard habitat project within the Upper Mississippi River National Wildlife and Fish Refuge. The federally funded project cost over $3.4 million to build. Dewald researched state law at that time and found it was legal to cross directly over tracks, however, illegal to walk up and down tracks. Armed with this new information, Dewald demanded the fence be taken down, which reluctantly was.

However, “the law was changed very quietly in 2005,” Dewald said. “There were no public hearings. Nobody along the river had any idea the law changed until this past year.” It’s now illegal to walk over railroad tracks in the entire state of Wisconsin unless you’re at a dedicated crossing. “This affects so many people,” Dewald continued. “It affects the agriculture community. Due to the law change a farmer can’t even walk across the tracks to check on his crops.” Dewald said there’s a lot of cities that will be impacted too. Dewald knows of railroad tracks nestled between a city parking lot and public beach.

Dennis Kirschbaum agrees. Kirschbaum is secretary of the Prairie Du Chien Rod & Gun Club and also is a retired DNR conservation warden. “People want to cross the tracks to go ice fishing, or duck hunting or other types of hunting, that’s what the law was there for. It’s something we’ve been doing for years, and it’s really never been a problem.”

Kirschbaum also says the problem goes beyond the Mississippi River. “We’re not only affected by the Burlington Northern tracks along the Mississippi River, we’re affected by the Southern Wisconsin tracks that run from Prairie du Chien to Madison. There’s a lot of river bottoms along the Wisconsin River (over 79,000 acres) that are part of the Lower Wisconsin State Riverway that we won’t be able to get to like we have in the past,” Kirschbaum said.

During the last state budget, legislation reached the desk of Gov. Scott Walker which would have restored the old law allowing a person to walk directly across tracks or the right-of-way of any railroad without it being considered trespassing. However, it was vetoed by Walker. Walker said: “I am vetoing this section because I am concerned that allowing people to walk across railroad tracks outside of a designated crossing impairs public safety.”

BNSF Railway owns 267 route miles of track in Wisconsin. Amy McBeth, BNSF director of public affairs said, “Safety is paramount in all that we do at BNSF.” I asked McBeth how many anglers, hunters or trappers have been hit by a train in Wisconsin. McBeth directed me to the Federal Railroad Administration (FRA) for accident data. The FRA website shows from 2011 through 2014, 26 train related injuries or deaths in Wisconsin, excluding highway collisions. The website did not mention how many outdoor recreationists were involved in the 26 cases. However, the La Crosse Tribune reported that statistically accidents are more likely from people intoxicated, suicidal or simply wandering down the tracks than crossing them.

Marc Schultz, board member of the Mississippi River Citizens Commission and chairman of the La Crosse County Conservation Alliance does not believe crossing railroad tracks is a major safety issue. Many outdoor enthusiasts agree and say crossing a busy street in Madison is more dangerous than crossing railroad tracks around Stoddard and other locations. Schultz believes this law will have a big impact on tourism. “Crossing the tracks is a cultural and economic tradition here in the Mississippi River Valley, and I would say it is in other places too. There are railroads all over the state that follow rivers and go through parks, state or national forests and wildlife areas.”

Schultz said there has been significant financial investment of both federal and state dollars in Mississippi River public access facilities (parking lots, etc.) not only in Wisconsin, but Minnesota and Iowa as well. He said a different railroad company recently started enforcing trespassing laws across the river in Iowa too. These major investments are in places now unusable, he said. “Those areas are no longer accessible to someone on foot.”

Schultz said railroad trespassing laws can vary from state to state. According to Chip Pew, railroad safety specialist with the Illinois Commerce Commission, Illinois law in general is similar to Wisconsin. It states that no person may walk, ride, drive or be upon or along the right-of-way or rail yard of a rail carrier within the state, at a place other than a public crossing.

Mark Clements owns Clements Fishing Barge on the Mississippi River in Genoa. Clements said his business has had a lease with the railroad since the 1950s. The lease allows his customers to cross the tracks to get to his shuttle boat.

Because Clements situation is rare, Schultz is meeting with outdoor representatives from three states in an attempt to resolve the trespassing issue. The group is putting together a list of questions to send to elected state and federal officials. The main question is, “how are we going to provide access?”

The focus “isn’t to allow kids to play football on the railroad tracks.” Dewald said. “Everybody is concerned about safety. This is about strictly walking directly across the tracks using reasonable care to get to the other side.”

Schultz concluded that this public access issue escalated into a big problem because the legislation didn’t get public review. “Nobody got a chance to talk about it,” he said.

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Edward Jones