Appeal No. 2008AP1523
Riparian business associations petitioned DNR to raise the water levels of Lake Koshkonong. DNR rejected the petition, citing its public trust responsibility. The business associations appealed on the grounds that (1) DNR wrongly applied the public trust doctrine when it considered the impact raising the water would have on private wetlands, (2) DNR exceeded its authority by considering wetland water quality standards in Wis. Admin. Code § NR 103, and (3) DNR erred by refusing to consider the impacts of water levels on residential property values, business income, and public revenue. The Wisconsin Supreme Court held DNR did interpret its public trust authority too broadly and DNR erred in excluding economic impacts, but it did not exceed its authority by relying on Wis. Admin. Code § NR 103.
GLLF filed an amicus brief representing Wisconsin Manufactureres & Comerce and Midwest Food Processors Association in this case.
Why This Case Is Important
- The public trust doctrine, incorporated into Wisconsin Constitution art. IX, § 1, holds navigable waters in trust for the public up to the ordinary high mark. The legislature neither expressly nor impliedly delegated DNR the authority under the public trust doctrine to regulate wetlands above the ordinary high water mark, nor could it ever do so given the limitations of the doctrine.
The public trust doctrine, grounded in Wisconsin Constitution art. IX, § 1, represents the legislature’s responsibility for navigable waterways in Wisconsin. Navigability is the key test for whether a waterway falls under the public trust doctrine, but courts have expanded the doctrine from solely commercial navigation to include recreational purposes such as boating, swimming, fishing, hunting, and preservation of scenic beauty.
The Department of Natural Resources (DNR) claims responsibility for the legislature’s public trust duty via Wis. Stat. § 31.02.
In this case, the Rock–Koshkonong Lake District, Rock River–Koshkonong Association, Inc., and Lake Koshkonong Recreational Association, Inc. requested DNR raise the water levels of Lack Koshkonong which had fallen dramatically due in part to the repair of a dam up river.
DNR refused the petition, citing concerns for the potential impact on adjacent wetlands. It based its authority on the public trust doctrine and Wis. Admin. Code § NR 103. It then refused to consider the economic impact of not raising the water levels.
The court concluded: “The DNR properly considered the impact of the Petition’s proposed water levels on public and private wetlands in and adjacent to Lake Koshkonong. However, the DNR inappropriately relied on the public trust doctrine for its authority to protect non-navigable land and non-navigable water above the ordinary high water mark. The DNR has broad statutory authority grounded in the state’s police power to protect non-navigable wetlands and other non-navigable water resources. Thus, the DNR may consider the water level impact on all adjacent property under Wis. Stat. § 31.02(1).”
GLLF filed an amicus brief in this case, arguing DNR did not have a public trust responsibility in this case because wetlands did not fall within the public trust and that DNR wrongly relied on Wis. Stat. § 31.02(1) since Wis. Admin. Code § NR 10 is unambiguous and can lead to only one meaning—nothing in Chapter 281 affects Chapter 31
As GLLF argued in its brief:
The legislature has chosen to delegate some of its power to administer the public trust doctrine to DNR. However, the public trust doctrine is not selfexecuting and the power to administer is delegated by statute. When the state legislature is delegating authority based on the public trust
doctrine, “such delegation of authority should be in clear and unmistakable language and cannot be implied from the language of a general statute…”
DNR’s authority to implement the public trust doctrine therefore comes from specific statutory grants of power. ..However, this delegation cannot exceed the constitutional reach of the underlying public trust doctrine, which does not extend to non-navigable private wetlands above the ordinary high water mark.
GLLF further argued:
Nothing in Wis. Stat. § 281.92 leads “well-informed persons” to become confused as to its meaning, nor does the language give rise to different meanings. Instead, Wis. Stat. § 281.92 simply states that nothing in that Chapter 281 affects Chapter 31.
Therefore, this Court should reverse the lower court and find that the legislature’s language unambiguously provides that the wetland regulations promulgated under Chapter 281 do not apply to a Chapter 31 order water level order.