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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