Wisconsin Constitution
Article IX - Eminent Domain And Property Of The State
Section 1 - Jurisdiction on rivers and lakes; navigable waters.
The boating registration law does not violate this section. State v. Jackman, 60 Wis. 2d 700, 211 N.W.2d 480.
There is no constitutional barrier to the application of s. 30.18, regulating diversion of water, to nonnavigable waters. Omernik v. State, 64 Wis. 2d 6, 218 N.W.2d 734.
The term “forever free" does not refer to physical obstructions but to political regulations that would hamper the freedom of commerce. Capt. Soma Boat Line v. Wisconsin Dells, 79 Wis. 2d 10, 255 N.W.2d 441.
A fisherman who violated Minnesota and Wisconsin fishing laws while standing on the Minnesota bank of the Mississippi was subject to Wisconsin prosecution. State v. Nelson, 92 Wis. 2d 855, 285 N.W.2d 924 (Ct. App. 1979)
An ordinance that provided for exclusive temporary use of a portion of a lake for public water exhibition licensees did not offend the public trust doctrine. State v. Village of Lake Delton, 93 Wis. 2d 78, 286 N.W.2d 622 (Ct. App. 1979).
It is appropriate to extend the public trust doctrine to include navigable waters and the shores appurtenant to ensure public access and free use of the waters. State v. Town of Linn, 205 Wis. 2d 426, 556 N.W.2d 394 (Ct. App. 1996), 95-3242.
A cause of action cannot be based only on a general allegation of a violation of the public trust doctrine. Borsellino v. DNR, 2000 WI App 27, 232 Wis. 2d 430, 605 N.W.2d 255, 99-1220.
There is no constitutional foundation for public trust jurisdiction over land, including non-navigable wetlands, that is not below the ordinary high water mark of a navigable lake or stream. Article IX, Section 1, does not vest the state with constitutional trust powers to “protect" scenic beauty by regulating non-navigable land bordering lakes and rivers. Rock-Koshkonong Lake District v. Department of Natural Resources, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800, 08-1523.
Riparian rights are the bundle of private property rights that may be conferred upon a property owner by virtue of the owner's contiguity to a navigable body of water, subject to and limited to some extent by the public trust doctrine. Common law riparian rights may include: the right to reasonable use of the waters for domestic, agricultural, and recreational purposes; the right to use the shoreline and have access to the waters; the right to any lands formed by accretion or reliction; the right to have water flow to the land without artificial obstruction; the limited right to intrude onto the lakebed to construct devices for protection from erosion; and the right, conditioned by statute, to construct a pier or structure in aid of navigation. Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807, 15-0583.
Under the public trust doctrine the state holds the beds underlying navigable waters in trust for all of its citizens. The public rights protected under the public trust doctrine include boating, swimming, fishing, hunting, and preserving scenic beauty. The doctrine traditionally applies to all areas within the ordinary high water mark of the body of water. The public trust doctrine is a limit on riparian rights. Wisconsin common law has established that the right to place structures for access to navigable water is qualified, subordinate, and subject to the paramount interest of the state and the paramount rights of the public in navigable waters. This is true even when the bed is privately held, as long as the body of water is public, navigable, and created by use of public waters. Where a waterbed is privately held, the state has no authority to compel private property owners to accept pier placement. Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807, 15-0583.
In a flowage easement, title to the property under the flowage may remain with the owner. Although the property rights of owners of the flowage bed are modified to the extent that the public may use the flowage waters for recreational purposes, no private property right of an owner of property adjoining the flowage bed to construct a pier arises from the public trust doctrine. Owners of property adjoining the flowage bed are not entitled to those riparian rights that are incidental to property ownership along a naturally occurring body of water where the lakebed is held in trust by the state. Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807, 15-0583.
Any rights an owner of property adjoining a flowage bed may enjoy in regard to the man-made body of water created by the flowage easement must be consistent with the bed owner's property rights or the flowage easement's creation of a navigable body of water. The public trust doctrine, when combined with the shoreline location of property adjoining the flowage bed, allows the owners of the adjoining property, as long as they are are using the flowage waters for purposes consistent with the public trust doctrine, their own property rights sufficient to access and exit the Flowage directly from their shoreline property. Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807, 15-0583.
Portages have lost the protection of the public trust doctrine under this section. 75 Atty. Gen. 89.
The “Invisible Lien": Public Trust Doctrine Impact on Real Estate Development in Wisconsin. Harrington. Wis. Law. May 1996.
That the Waters Shall be Forever Free: Navigating Wisconsin's Obligations Under the Public Trust Doctrine and the Great Lakes Compact. Johnson-Karp. 94 MLR 414 (2010).
A Breach of Trust: Rock-Koshkonong Lake District v. State Department of Natural Resources and Wisconsin's Public Trust Doctrine. Mittal. 98 MLR 1468 (2105).
A New Must of the Public Trust: Modifying Wisconsin's Public Trust Doctrine to Accommodate Modern Development While Still Serving the Doctrine's Essential Goals. Derus. 99 MLR 447 (2015).
Wisconsin's Public Trust Doctrine: A New Framework for Understanding the Judiciary's Role in Protecting Water Resources. Schinner. 2015 WLR 1129.
