Limitations Placed on Public Trust DoctrineAugust 14, 2013
The Wisconsin Supreme Court recently issued a landmark decision protecting property owners and businesses from overreaching bureaucrats at the Department of Natural Resources, at the same time protecting Wisconsin’s pristine waterways. However, environmental groups are trying to marginalize the decision and ignore the state constitution.
News Coverage & Reactions to the Lake Koshkonong DecisionAugust 12, 2013
Wisconsin Supreme Court Limits DNR’s Regulatory Authority under the Public Trust Doctrine: Great Lakes Legal Foundation, July 16, 2013.
WMC Statement on Lake Koshkonong Ruling: Wisconsin Manufacturers & Commerce, July 16, 2013.
WI Supreme Court Limits DNR Power on Lake Levels: Midwest Food Processors Association, July 16, 2013.
Supreme Court reverses Koshkonong ruling; debate heads back to circuit court: Green Bay Press-Gazette, July 16, 2013.
Property Owners Win In Supreme Court Case, But Do Wetlands Lose?: Wisconsin Public Radio, July 16, 2013.
State Supreme Court rules against DNR in Lake Koshkonong case: WMTV, July 16, 2013.
WI Supreme Court orders DNR to consider econ impact of lake water levels: WNCY.com, July 16, 2013.
Lake Koshkonong ruling ‘epic’: RKLD: Daily Union, July 17, 2013.
Supreme Court rules DNR overstepped authority in lake level case: WisPolics.com, July 17, 2013.
State Supreme Court ruling in lake-level case stirs concern about water protections: Milwaukee Journal Sentinel, July 17, 2013.
Wisconsin Supreme Court Limits Scope of Public Trust Doctrine: DeWitt Ross & Stevens, July 18, 2013.
It Is Not Open Season On Wisconsin’s Wetlands, Despite a Recent state Supreme Court Decision: Midwest Environmental Advocates, July 19, 2013.
It's not open season on wetlands: Milwaukee Journal Sentinel (Opinion), July 22, 2013.
Wisconsin Supreme Court limits DNR’s regulatory authority under the Public Trust Doctrine: AgriView News, July 24, 2013.
Rest Lake dam operating order public hearings postponed: Lakeland Times, July 24, 2013.
Victory for Wisconsin Businesses, Municipalities and Property Owners in Lake Koshkonong Case: National Law Review, Aug. 1, 2013.
Wisconsin Backs Off Its Public Trust Doctrine: Environmental Law Prof Blog, Aug. 12, 2013.
Rest Lake Dam Decision Postponed in Response to Lake Koshkonong DecisionAugust 5, 2013
The DNR is postponing public information hearings on a new operating order for the Rest Lake Dam in Vilas County while staff evaluate possible the impact of the Wisconsin Supreme Court’s Lake Koshkonong decision.
Wisconsin Supreme Court Limits DNR’s Regulatory Authority under the Public Trust DoctrineJuly 16, 2013
The Wisconsin Supreme Court today issued a decision limiting the Department of Natural Resources’ (DNR) regulatory authority under the public trust doctrine. The case is Rock-Koshkonong Lake District v. DNR, 2013 WI 74.
The Supreme Court held that the DNR improperly relied upon the public trust doctrine for its authority to regulate non-navigable land or non-navigable water (e.g. wetlands) above the ordinary high water mark of Lake Koshkonong.
“The Court’s decision reining in the DNR’s attempt to greatly expand its regulatory authority under the public trust doctrine beyond navigable waters is a significant victory for businesses and property owners throughout the state,” said Andrew Cook, an attorney for the Great Lakes Legal Foundation, which filed an amicus curiae brief on behalf of the Wisconsin Manufacturers & Commerce and Midwest Food Processors Association.
“Had the Court adopted DNR’s legal arguments in this case, DNR’s authority to regulate private property beyond navigable water would have been virtually unlimited,” said Cook. “The Court correctly recognized that there are limitations on DNR’s regulatory authority under the public trust doctrine.”
The case involved a petition by the Rock-Koshkonong Lake District seeking to raise the water levels on Lake Koshkonong. The DNR denied the Lake District’s petition arguing that raising water levels would harm nearby private wetlands. The DNR argued it had authority to protect the nearby private wetlands under the public trust doctrine, which provides that navigable waters are held in trust for the public.
The public trust doctrine historically protected commercial navigation and only applied to navigable waters up to the “ordinary high water mark.” DNR argued in this case that it had the authority under the public trust doctrine to regulate land use above and beyond the ordinary high water mark, including adjacent private property.
The majority opinion, authored by Justice David Prosser, rejected DNR’s argument:
“Eliminating the element of ‘navigability’ from the public trust doctrine would remove one of the prerequisites for the DNR's constitutional basis for regulating and controlling water and land. Applying the public trust doctrine to non-navigable land above the ordinary high water mark would eliminate the rationale for the doctrine. The ramifications for private property owners could be very significant.”
The Great Lakes Legal Foundation filed an amicus brief with the Supreme Court focusing on the public trust doctrine issue. Specifically, GLLF’s brief argued:
“The public trust doctrine, incorporated in the Wisconsin Constitution, art. IX, § 1, holds navigable waters in trust for the public up to the ordinary high water mark. The legislature has neither expressly nor implicitly delegated DNR the authority under the public trust doctrine to regulate wetlands above the high ordinary water mark, nor could it ever do so given the limitations of the doctrine.”
According to Cook, the Supreme Court’s decision, which agreed with GLLF’s legal analysis on the public trust doctrine issue, is an important precedent for future cases.
“The Court’s decision is a significant first step in curtailing efforts to expand DNR’s regulatory authority under the public trust doctrine,” concluded Cook. “The Great Lakes Legal Foundation will continue to fight unlawful expansion of agency authority be it via the public trust doctrine or by other means.”
The Great Lakes Legal Foundation filed an amicus curiae brief in Rock-Koshkonong Lake Dist. v. DNR on behalf of the Wisconsin Manufacturers & Commerce and Midwest Food Processors Association. The Great Lakes Legal Foundation is a non-profit, 501(c)(3) legal foundation whose mission is to advance economic growth and increase job opportunities in the upper Midwest. For more information about GLLF, visit http://greatlakeslegalfoundation.org.
High Capacity Well Budget Provision Statewide Priority for EmployersJune 25, 2013
In a recent blog post we explained how the high capacity well provision in the Wisconsin budget preserves environmental protections wile limiting regulatory uncertainty. Wisconsin Manufacturers & Commerce has posted a new article explaining why the provision is important to employers across Wisconsin.
High Capacity Well Budget Provision Preserves Environmental Protections, Limits Regulatory UncertaintyJune 4, 2013
A motion (#375) passed by the Joint Finance Committee (12-4) limiting the ability of environmental groups to challenge high-capacity well permits will help reduce regulatory uncertainty and create jobs, while continuing to protect the environment.
Roggensack, Fallone Win Supreme Court PrimaryFebruary 21, 2013
On April 2, incumbent Justice Patience Roggensack will face Marquette Law professor Ed Fallone for her chance to win another 10-year term on the Wisconsin Supreme Court. According to unofficial results from the Associated Press, with 99 percent of precincts reporting, Roggensack received 64 percent of the primary vote and Fallone, 30 percent, to lemon law attorney Vince Megna’s 6 percent.
One on One Interviews with Wisconsin Supreme Court CandidatesJanuary 21, 2013
Wisconsin Supreme Court Justice Patience Roggensack is up for reelection for a 10-year term on the court, and she is being challenged by Wisconsin’s “King of Lemon Laws,” Vince Megna, and Marquette University Law School professor Edward Fallone. WisconsinEye recently sat down with each of the candidates for one on one interviews that touched on judicial philosophy, the role of court, and issues that may come before the court.
2013 Guide to the Wisconsin Supreme Court and Judicial EvaluationJanuary 17, 2013
The Wisconsin Civil Justice Council’s 2013 Guide to the Wisconsin Supreme Court and Judicial Evaluation, which highlights the most important business decisions issued by the court over the past two years, is now available.
According to the report, Justice Patience Roggensack led the court the past two terms with a 74 percent rating in cases favoring businesses, followed by Justices David Prosser, Jr. (70 percent), Michael Gableman (70 percent), Annette Ziegler (68 percent), Patrick Crooks (55 percent), Ann Walsh Bradley (27 percent) and Chief Justice Shirley Abrahamson (17 percent).
Public Trust Doctrine a Hot Topic in Law ReviewsNovember 7, 2012
The public trust doctrine has been in the news in Wisconsin recently because of a challenge to a proposed development in Milwaukee; however, interest in this obscure doctrine is not new. Two recent law review articles explore how the doctrine is being used in other states.
Dane County Judge Rules Act 21 Unconstitutional Only as it Applies to the Department of Public InstructionOctober 31, 2012
A Dane County Circuit Court judge has narrowly struck down a portion of 2011 Wisconsin Act 21, the regulatory reform bill passed during the 2011-12 Legislative Session and signed into law by Gov. Scott Walker.
Public Nuisance Climate Change Litigation All But DeadOctober 15, 2012
The U.S. Court of Appeals for the Ninth Circuit has dismissed a federal common law claim of public nuisance for global warming by greenhouse gases, ruling the common law was displaced by the comprehensive federal regulatory scheme of the Clean Air Act. Combined with the U.S. Supreme Court’s ruling in American Electric Power v. Connecticut, this case all but eliminates the availability of public nuisance climate change claims.
Lake Beulah Decision Impacting Agricultural OutputOctober 4, 2012
A recent article in Michael Best & Friedrich’s Agribusiness, Food and Beverage Newsletter discusses the impact of the Wisconsin Supreme Court’s Lake Beulah decision.
Press Coverage of the Lake Koshkonong Oral ArgumentsSeptember 17, 2012
Landmark case tests DNR’s Public Trust authority: Lakeland Times, September 14, 2012.
Lake Koshkonong ruling could set precedent: Janesville Gazette, September 6, 2012.
Lake Koshkonong level before Supreme Court: Jefferson County Daily Union, September 6, 2012.
Case Summary: Rock-Koshkonong Lake District v. DNRSeptember 6, 2012
Contact: Andrew Cook
Status: Wisconsin Supreme Court oral arguments held September 5, 2012.
Summary: On September 5, 2012, the Wisconsin Supreme Court heard oral arguments in a case that will determine whether the Wisconsin Department of Natural Resources (DNR) is required to consider evidence of a navigable water level’s effect on property values when deciding whether to grant a petition to raise or lower water levels.
Wisconsin Supreme Court Hears Oral Argument in Case that Could Greatly Expand DNR’s Regulatory Authority under the Public TrustSeptember 5, 2012
The Wisconsin Supreme Court today is hearing oral arguments in a case (Rock-Koshkonong Lake District v. DNR) that could have a significant impact on property owners. The issue is whether the Department of Natural Resources has the authority to regulate private, non-navigable wetlands under the public trust doctrine.
Regulatory CalendarAugust 10, 2012
Administrative agencies continuously promulgate new rules and often do so quickly. Tracking the various proposed rules can be time-intensive and complicated. The Foundation’s Regulatory Calendar includes the dates of important steps in the rulemaking process for various rules we are following at the state and federal level.
Public Trust Doctrine Challenge Slows Development in MilwaukeeJuly 26, 2012
An environmental group is trying to stop development of a high-rise apartment building in Milwaukee because the group alleges the site is located on former Lake Michigan lakebed, and therefore subject to the Wisconsin Constitution’s public trust doctrine.
Court Schedules Oral Arguments in Lake Koshkonong CaseJuly 9, 2012
The Wisconsin Supreme Court has scheduled oral arguments in the Rock-Koshkonong Lake District, et al. v. Department of Natural Resources, et al. case for September 5, 2012 at 1:30PM. The Great Lakes Legal Foundation filed an amicus curiae (friend of the court) brief on behalf of the Wisconsin Manufacturers and Commerce and the Midwest Food Processors Association.
GLLF Files Amicus Brief on Behalf of WMC & MWFPA in Lake Koshkonong CaseMay 24, 2012
The Great Lakes Legal Foundation has filed a friend of the court brief in support of the petitioners in the Rock-Koshkonong Lake Dist. et al. v. DNR (2008AP1523) case on behalf of Wisconsin Manufacturers & Commerce and the Midwest Food Processors Association.