From the Rivers to the Lakes, and Beyond

Sand castles in the air

With the left, the march to total control can sometimes look and feel benign and even fair, at least at first before the hammer drops.

In Wisconsin right now, it’s not so much a march as a stroll. Literally—it’s a walk on the beach that looks innocent enough. But the footsteps of that walk are leading us into litigation about the state’s public trust doctrine and its possible expansion in a way that would seriously endanger private property rights.

The legal dispute involves a man who walked along a Wisconsin lakeshore above the waterline but below the ordinary high-water mark (OHWM). As I wrote last week, a property owner objected, a municipal trespass citation followed, and Paul Florsheim was found guilty.

Ordinarily, that would be the end of it, a minor shoreline dispute. It requires only clarification of a tension in case law about the exclusivity of riparian rights. On the one hand, public land extends to the OHWM; on the other hand, courts have said the public may use the publicly owned beach below the OHWM only when it’s covered by water.

That raises a legitimate jurisdictional question. But leave it to environmentalists to make a constitutional mountain out of what should be a dispute over sandcastles.

In this case, in Shorewood, Florsheim says he’s not a trespasser at all and has appealed his municipal conviction. Along the way, he and his attorneys have needlessly implicated the Public Trust Doctrine; among the arguments are that recreational enjoyment of a lake necessarily includes walking its shoreline—an experience incidental but related to navigation, just as wetland and habitat protection would be—and that the doctrine therefore extends to exposed land directly connected to navigable water.

If that theory is accepted, the consequences would be profound. It would carry constitutional public rights onto dry ground whenever that ground touches a lake, and even beyond it when the nebulous but constitutional assertion of natural scenic beauty is attached to it. And once the boundary between water and land begins to blur, the doctrine can expand outward based on ecological connections, scenic considerations, or other indirect effects. So what appears to be a trespass case could become something else entirely: a transformative jurisdictional shift of land from private property owners to the state.

This is not an abstract concern. In 2013, in Rock-Koshkonong Lake District v. DNR, environmental litigants urged the Wisconsin Supreme Court to interpret the public trust doctrine more broadly to reach non-navigable wetlands beyond the water’s edge. You can hear those same arguments ricocheting around inside the current Shorewood case.

Back then, the majority rejected that expansion 4-3.

But the dissent in that case articulated a different vision. Then-justice Patrick Crooks described what he called the state’s “affirmative duty” to protect waters not only for navigation but also for recreation and scenic beauty, and he vigorously advocated extending the doctrine well beyond the OHWM. With the radical Supreme Court we now have, that dissent would today be a majority opinion.

The trespass case might just open the door to that interpretation.

The stakes

To understand where this could go, let’s start with what has already happened.

The DNR and its progressive allies have been trying to expand the public trust doctrine just about forever, using natural scenic beauty as their cudgel. They have tried to use it to rid shorelines of iconic boathouses and lakefront cottages that were perfectly legal when they were built. They have used the mission creep of case law to build a right to banish on the basis of beauty, or the lack thereof, as defined by progressives.

Going way back to a 1952 decision, Muench v PSC, which declared natural scenic beauty a public right, at least in the consideration of permitting dams, the left has wanted to declare ugly illegal, and to assert that they and they alone know what is objectively ugly and what is not.

The modern progressive push reached its own high-water mark in a water-level dispute in that 2013 Lake Koshkonong case—a petition by a lake district asking the state to raise water levels because low levels were hurting property values and business income around the lake. The Department of Natural Resources (DNR) denied the request. Not because boats couldn’t navigate or because dams were unsafe, but because higher water might damage wetlands located on adjacent private property above the ordinary high-water mark.

There was also natural scenic beauty to consider. As the administrative law judge in the original case observed, the DNR argued that “the loss of biologically diverse wetlands to proposed higher water levels would degrade the natural scenic beauty of the lake ecosystem for many users.”

Property-rights groups saw something new immediately. The Great Lakes Legal Foundation, which filed a brief siding with the lake district on behalf of Wisconsin Manufacturers and Commerce and Midwest Food Processors Association, warned that the court of appeals, which sided with the DNR, had taken a huge and unprecedented leap by allowing the agency to rely on the public trust doctrine to evaluate impacts to private, non-navigable wetlands.

That, their brief stated, could open Pandora’s box by endowing the agency with the ability to regulate all sorts of activities based on perceived impacts to private, non-navigable wetlands, and afterwards, Andrew Cook, an attorney for the foundation, stressed the implications had the decision gone the other way.

“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,” Cook said. “The Court correctly recognized that there are limitations on DNR’s regulatory authority under the public trust doctrine.”

Their legal argument was straightforward and rooted in constitutional text. Clearly, the brief asserted, neither the plain language of the doctrine itself nor the Legislature had ever applied the doctrine above the OHWM.

“The public trust doctrine, incorporated into the Wisconsin Constitution art. IX, § 1, holds navigable waters in trust for the public up to the ordinary high mark,” the brief states. “The Legislature has 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.”

Environmental groups did not even try to dispute the purported implications; they embraced them. Clean Wisconsin’s staff attorney Elizabeth Wheeler argued that the public trust doctrine must extend to non-navigable waters: “The outcome of this case will affect the DNR’s ability to protect the quality of our lakes. The health of thousands of Wisconsin lakes rests on this decision.”

Therefore, the argument goes, wetlands adjacent to navigable waters fall under the trust, if not directly, then functionally. The doctrine doesn’t cross the shoreline physically. It crosses it causally.

The problem is that once constitutional authority attaches to causes rather than geography, the ordinary high-water mark ceases to serve as a boundary.

The arguments in 2013

That’s what the justices were debating when the case reached the Supreme Court in 2013.

Justice David Prosser’s majority opinion drew the boundary in unmistakable terms. In his discussion, Prosser said the very premise of the Public Trust Doctrine is the existence of navigable waters, which, through the years, has come to mean “navigable in fact for any purpose.”

But navigable for any purpose does not mean non-navigable, Prosser asserted.

“Wetlands are often not ‘navigable in fact,’” he wrote.

The ramifications for private property owners could be very significant, Prosser stressed.

“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.”

What’s more, the justice continued, it’s important to grasp the distinction between constitutional authority and statutory police power.

“There is no constitutional foundation for public trust jurisdiction over land, including non-navigable wetlands, that is not below the OHWM of a navigable lake or stream,” Prosser wrote. “Applying the state’s police power to land above or beyond the OHWM of navigable waters—to protect the public interest in navigable waters—is different from asserting public trust jurisdiction over non-navigable land and water.”

In other words, if the state can regulate land because it influences water, then the doctrine no longer depends on water at all. It becomes an environmental power written directly into the constitution.

That’s where scenic beauty enters the fight. In truth, the public trust doctrine as written has nothing to do with environmental protection, except perhaps by implication:

That language protects those navigable waters for navigation and recreation, hunting and fishing—and of course, clean water is implied. But that implied authority has a tenuous connection to the regulation of adjacent lands. When scenic beauty was introduced, though, the doctrine was set to make direct landfall.

Environmental advocates had relied heavily on earlier cases like Muench and Claflin, which recognized scenic beauty as a public interest in navigable waters, and used them to move the doctrine ashore. Prosser insisted that it was confined to water itself.

“Considering scenic beauty in relation to the construction of a dam in navigable waters is different from claiming public rights under the public trust doctrine to the scenic beauty of non-navigable shoreland,” he wrote. “Yet, the DNR has taken the position that the public trust doctrine protects a public right to ‘scenic beauty’ (which on its face extends to the shore above the OHWM).”

Simply put, Prosser concluded, the state constitution does not vest the state with constitutional trust powers to ‘protect’ scenic beauty by regulating non-navigable land bordering lakes and rivers.

“As will be noted, the state may have statutory authority to weigh in on scenic beauty beyond its public trust jurisdiction, but giving the state constitutional trust power to regulate ‘scenic beauty’ would arguably give the state authority to regulate any private land that could be seen from navigable waters,” Prosser wrote.

In a state with more than 15,000 lakes and over 80,000 miles of rivers and streams… and shoreline property as a cornerstone of its economy, that is not a niche category. That is most waterfront property—and, as Prosser wrote, a great deal of inland property visible from it.

The Expansion Blueprint

If Prosser’s majority opinion built a fence at the ordinary high-water mark, justice Patrick Crooks’s dissent supplied a ladder to climb over it. Again, beware, because progressives are likely to drag the ladder out of storage in this case.

Crooks did not treat the Public Trust Doctrine as a narrow, water-bound rule but as a living constitutional mandate. A shock, I know, that progressives believe constitutions are documents that can simply jump to life and change their very meaning at the temporal whim of progressives.

In his dissent, Crook had no problem with either ongoing evolution or judicial fiat. He opened with a charge that the majority was “constricting the doctrine and misreading this court’s precedent.” In his view, the court had unnecessarily entertained constitutional questions only to weaken 165 years of jurisprudence.

He pointed specifically to the Just v Marinette case.

“The court explicitly held that land above the ordinary high-water mark is subject to the public trust doctrine,” and he quoted the court: “Lands adjacent to or near navigable waters exist in a special relationship to the state. They have been held subject to special taxation and are subject to the state public trust powers . . . .”

But here’s the problem with Crooks’s dissent: It was so much smoke and mirrors wrapped in a fog of gaslight. What the Just case was actually about was the ability of the state to use its police power, not the public trust doctrine, to regulate shoreland and wetlands. We, of course, know they can.

The key phrasing was that the lands near the shore are subject to state public trust “powers,” not necessarily the public trust doctrine. Public trust “powers” refers to a combination of the state’s public trust doctrine and the state’s permissible police power. In a functional, regulatory sense, it means the state may regulate land use to protect navigable waters and the public’s rights in those waters—that special relationship—but it clearly is not using the public trust doctrine as the basis for that regulation, for by definition it cannot.

Because the public trust doctrine is bound by navigable waters, the state is left with only its police zoning powers to regulate beyond water. But Crooks conveniently passed over that distinction in his gaslighting, and so might our current Supreme Court.

In addition, while Lake Koshkonong did not make the connection, while it’s true that the boundary of public trust doctrine and the OHWM are generally one and the same, that’s not always the case, and that is the situation in the Shorewood case. Florsheim’s appeal based on the public trust doctrine is flawed and should be dismissed.

He has another path. The state could—if it wants—allow Florsheim to walk the beach below the OHWM through the use of its permissible police power, and it’s on that basis that the case should be argued.

The majority in Lake Koshkonong understood the doctrinal consequences. Once visibility or ecological connection replaces navigability and recreation as the limiting principle, the public trust doctrine ceases to be a boundary rule and becomes a radius.

What expansion could look like

On the one hand, we have the Lake Koshkonong majority and the Shorewood decision. On the other hand, we have Crooks’s dissent, and the current state Supreme Court.

As has been widely noted, what is dissent today can easily become majority opinion tomorrow. If that’s the case, what might happen if the Supreme Court rules in Florsheim’s favor based on the public trust doctrine?

Once again, past is prologue when it comes to answering that question, and it’s scary to think just how close the radicals came once before.

In 2011, for instance, amid all the Act 10 hullabaloo, assistant attorney general JoAnne Kloppenburg came within a whisker of knocking off Prosser, losing by 7,000 votes out of about 1.5 million cast. Had she done so, the aforementioned Rock-Koshkonong decision would have gone the other way.

As assistant attorney general, Kloppenburg spent a career using case law to try to eliminate nonconforming uses and structures, for example, the operation of a commercial use in a residential zone. And the Doyle administration, for which she worked, declared, without any legislative input, that it was a mission to eliminate nonconforming structures such as boathouses and cottages as quickly as possible.

All using the public trust doctrine.

Kloppenburg outlined the agency’s philosophy in a 2003 paper for the DNR, in a vile work in which she compared traditional cottages and boathouses to junkyards:

This is what they have in mind if they get their hands on the public trust doctrine.

Finally, the Rock-Koshkonong decision did not merely resolve a lake-level dispute. It preserved a boundary, with Prosser warning that the doctrine depends on navigability as a limiting principle. It also provided a dissent that explained how that boundary could be moved using legally rhetorical sleights of hand.

All of which encases the terrain of the public trust doctrine: control. Will the people control the land or will the state?

For most of Wisconsin’s history, the doctrine was simple: the public owns the water; citizens own the land. The state could regulate navigation, obstructions, and structures in navigable waters because those waters belonged to everyone.

Rock-Koshkonong reaffirmed that principle. It rejected the idea that the constitution itself grants the government standing authority over land beyond the edge of navigable waters.

Now, there are two ways the Shorewood case could go as it likely makes its way to the state’s highest court. Justices could uphold the riparian rights status quo, or they could conclude that the public may walk along the narrow strip of exposed land between the waterline and the OHWM because that land is technically public.

As I wrote last week, such a decision would clarify access rights without rewriting or even involving the public trust doctrine. A decision along those narrow lines is what is needed. Other states have decided similar disputes in just such a way, determining that the public has the right to walk the beach below the OHWM.

On the other hand, our radical Supreme Court could accept—or raise on its own—the broader argument that walking along the shoreline is protected because it allows the public to experience the scenic beauty of navigable waters. 

If that reasoning prevails, the doctrine will automatically expand beyond water—and beyond the OHWM—for if scenic beauty is a protected public interest, then anything affecting that beauty may fall under the doctrine’s protection.

In sum, the public trust doctrine is a creature of the swamp—half constitutional text, half many decades of judicial sediment. As a result, tiny interpretive shifts can produce massive regulatory consequences.

If this case lets the creature out of the swamp, to paraphrase a saying, all the world is its beach, including your property.