Monday, August 12, 2013

Wisconsin Backs Off Its Public Trust Doctrine

On July 16, 2013, the Wisconsin Supreme Court decided Rock-Koshkonong Lake District v. Wisconsin Department of Natural Resources, 833 N.W.2d 800 (Wis. 2013), reversing a Wisconsin Court of Appeals decision that had incorporated Wisconsin's broad constitutional public trust doctrine into the Wisconsin Department of Natural Resources' (WDNR's) statutory authority to regulate the levels and flows of Wisconsin's navigable waters. Among other things, for example, the Wisconsin Court of Appeals had held that WDNR could use its authority to consider non-navigable wetlands when it was asked to change the level of a navigable lake.

The Wisconsin Supreme Court's reversal sparked a lively debate among the Justices regarding Wisconsin's public trust doctrine--with the dissenters, in my humble opinion, having the more accurate view of the history of Wisconsin's public trust jurisprudence. Giving little deference to the WDNR (¶¶ 52-64), the majority held that Wisconsin's constitutional public trust doctrine does not extend beyond the (traditionally) navigable waters: "Applying the public trust doctrine to non-navigable land above the OHWM would eliminate the rationale for the doctrine. The ramifications for private property owners could be very significant" (p. 819, ¶ 77). In particular, the majority was concerned about the effects of an extended public trust doctrine on private ownership of lands submerged beneath non-navigable waters: "Contemplating the question of ownership is important because the public trust doctrine implicates state ownership or virtual state ownership—by virtue of its trust responsibility—of land under navigable waters. If the public trust were extended to cover wetlands that are not navigable, it would create significant questions about ownership of and trespass on private land, and it would be difficult to cabin expansion of the state's new constitutionally based jurisdiction over private land" (p. 820, ¶ 84).

Perhaps most disturbingly--and a development that Natural Resources and Water Law professors should be aware of--the Rock-Koshkonong majority reinterpreted a classic public trust doctrine case, Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972), to be a police power case (pp. 823-24, ¶¶ 95-103). While it is true that the court upheld WDNR's broad powers to protect the state's water resources pursuant to the police power, its reinterpretation of Just and its reversal of the Wisconsin Court of Appeals divorced WDNR's regulatory authority from its constitutional public trust doctrine duties, suggesting that water resource regulation in Wisconsin is now subject to legislative revision more protective of riparian property owners' claims of harm. The majority's conclusion that the WDNR must consider economic impacts on riparian owners when deciding petitions to change lake levels (pp. 828-35, ¶¶ 126-148) may be one hint of developments to come in Wisconsin water resources law.

The three dissenting Justices most vehemently criticized the majority for overreaching:

¶ 153 This case presents a question that the majority can—indeed does—answer by interpreting Wis. Stat. § 31.02(1) (2009–10). Yet the majority unnecessarily reaches out to the constitutional principle of the public trust doctrine from the Wisconsin Constitution, constricting the doctrine and misreading this court's precedent, especially the well-settled law articulated in Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972). Wisconsin's long and robust history of protecting the public trust is widely acknowledged and respected. The public trust doctrine imposes on the state, as trustee, the affirmative duty to protect, preserve, and promote the public's right to Wisconsin's waters.

¶ 154 The majority opinion attempts to undermine this court's precedent, recharacterize its holdings, and rewrite history. Instead of limiting itself to addressing only what must be addressed, the majority seizes this opportunity to limit the public trust doctrine in an unforeseen way, transforming the state's affirmative duty to protect the public trust into a legislative choice. It needlessly unsettles our precedent and weakens the public trust doctrine that is enshrined in the Wisconsin Constitution. This represents a significant and disturbing shift in Wisconsin law.

(pp. 835-36, J. Crooks, dissenting). Only time will tell how correct the dissenters prove to be, but this case represents a significant reversal in thinking by one of the most traditionally protective states in terms of an environmental public trust doctrine.

       -- Robin Kundis Craig

      NOTE: Bob Adler, Noah Hall, and I include the Court of Appeals/Wisconsin Supreme Court dialectic in our new casebook, Modern Water Law: Private Property, Public Rights, and Environmental Protection (Foundation Press 2013) and its forthcoming Teachers Manual. You can download an electronic version of the casebook for free through West Academic.

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People may misread the Wisconsin Supreme Court's recent decision in Rock-Koshkonong Lake District et al. vs. State of Wisconsin Department of Natural Resources, et al., and give it a more expansive interpretation than it deserves. The case pitted lakefront property owners against the DNR over the agency's setting of a lake level and its impact on adjacent wetlands as well as lakefront property owners' interests.

The central issue in the case centered on statutory interpretation to determine whether the DNR can consider wetlands above the ordinary high water mark when determining water levels under Wisconsin statute 31.02(1). Ultimately, the court held DNR had the authority to do so, but failed to adequately consider the economic impacts to private lakefront owners, and remanded the case for consideration of that evidence.

Much has been made in the media about the court's opining about the meaning of the state's public trust doctrine and its role in the outcome of this case. The public trust doctrine places a duty on the state — primarily the Legislature and the DNR — to protect all of Wisconsin's navigable waters for the public's use and enjoyment. This doctrine ensures that everyone's ability to access the state's lakes, rivers and streams, to boat on them or and otherwise navigate them is constitutionally protected.

The state Supreme Court famously decided in 1972 in Just vs. Marinette County that lands adjacent to or near navigable waters exist in a special relationship to the state such that private activities on those non-navigable wetlands and shorelands can be regulated to protect the public trust in navigable waters. Two years ago in Lake Beulah Management District vs. DNR, the state Supreme Court made the logical extension of this concept to groundwater, holding that the DNR has a duty to regulate groundwater pumping that impacts navigable waters. While the court produced a lot of verbiage on the topic, it did not overrule these precedents in last week's decision in Lake Koshkonong.

As astutely pointed out by Justice Patrick Crooks in his dissenting opinion, the holding that DNR can regulate impacts to non-navigable wetlands when setting a lake level relied on an interpretation of statutory language. The majority's opining about the basis for the statute being founded on the police power of the state or the public trust doctrine was wholly unnecessary to the determination.

This section of the opinion confused the question of the Legislature's constitutional duty to protect navigable waters from harm caused by private activities on non-navigable wetlands.

But the muddying of the water on public trust jurisprudence should not be overblown. As this reasoning was unnecessary to the outcome of the decision, it can be properly characterized as dicta that future courts aren't bound to follow. The duty of the state to protect navigable waters for public uses still extends to controlling activities on non-navigable waters that will harm downstream or adjacent lakes, rivers and streams. While the Supreme Court has signaled how it will handle future challenges that directly confront the Legislature's public trust duties, it is not open season on Wisconsin's wetlands.

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Posted by: Melissa Scanlan | Jan 8, 2014 1:44:10 PM

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