As the weather becomes warmer, many of us will enjoy the use of Wisconsin’s navigable waters. Wisconsin has approximately 15,000 lakes and 33,000 miles of rivers and streams.1
Wisconsin’s Public Trust Doctrine applies to surface waters of the state. The doctrine is expressed in the Wisconsin Constitution, Article IX, section 1, yet is more clearly summarized in the Wisconsin Supreme Court case Illinois Steel Co. v. Bilot:2
The title to the beds of all lakes and ponds, and of rivers navigable in fact as well, up to the line of ordinary high-water mark, within the boundaries of the state, became vested in it at the instant of its admission into the Union, in trust to hold the same as to preserve to the people forever the enjoyment of the waters of such lakes, ponds and rivers, to the same extent that the public are entitled to enjoy tidal waters at the common law (emphasis added).3
Thus, the Public Trust Doctrine applies to “navigable”4 waterways up to the “ordinary high-water mark.” The boundary where a private owner’s land and the public trust waterway boundary meet is the “ordinary high-water” mark.5
The saying, “If your feet are wet, you are not trespassing” is true.
I am familiar with past litigation between members of a lake association and a sole lake property owner. The dispute was in regards to the extent of inland access, upon the sole owner’s property, to the lake, as allowed by deeds of the members.
Counsel for the multiple members warned that if the dispute was not resolved without trial, that the members would sit in lawn chairs with their feet wet during the summer weekends in front of the sole owner’s beachfront.6 Thankfully the case settled without a trial.
The phrase “enjoyment of the waters” for the Public Trust Doctrine means:
The rights Wisconsin citizens enjoy with respect to bodies of water held in trust by the state include the enjoyment of the natural scenic beauty as well as the purposes of navigation, swimming, and hunting.7
However, this “enjoyment” may be regulated by the police powers of both the state and local governments.8
The Public Trust Doctrine requires preservation to the people forever.9 Yet limited encroachments on the public’s rights are allowed if the encroachment serves the public interest.10
In City of Madison v. State,11 the court allowed for the construction of a civic center on part of a lake bed because it enhanced the shore area and created a vantage point for the public to enjoy the scenic beauty of the lake.12
The Public Trust Doctrine may be enforced by members of the public, even in situations where the government refuses to act.13 Decades ago, I was the tribal attorney for an Ojibwe band in Northern Wisconsin opposed to the opening of a large copper sulfide mine project that had the support of the State of Wisconsin DNR. We were able to assert the Public Trust Doctrine against the project due to the pristine lakes and other waterways within the band’s reservation boundaries.
The Public Trust Doctrine has a long history with an expansive means of protection for Wisconsin’s waterways. Hopefully, many future generations will continue to enjoy this unique legal protection.
Endnotes
1 “An Overview of the Public Trust Doctrine: Public Rights in Surface Water,” by Claire Silverman, The Municipality (August 2019).
2 Illinois Steel Co. v. Bilot, 109 Wis. 418, 84 N.W. 855 (1901)
4 A stream is “navigable in fact” if it is possible to float a canoe or small recreational craft at some time during the year. Illinois Steel at 18, citing DeGayner & Co., Inc. v. DNR, 70 Wis. 2d 396, 236 N.W. 2d 217 (1975), and Village of Menomonee Falls v. DNR, 140 Wis. 2d 579, 412 N.W. 2d 505 (Ct. App. 1987). See also Silverman at 18.
5 Yet the “ordinary high-water mark” is not necessarily the water’s edge. See Silverman at 19. “The ordinary high-water mark is the point on the bank or shore where the water, by its presence, wave action, or flow, leaves a distinct mark on the shore or bank that is indicated by erosion, destruction of vegetation, changes from aquatic to terrestrial vegetation, or other characteristics.” Illinois Steel, citingState v. Trudeau, 139 Wis. 2d 91, 408 N.W. 2d 337 (1987); State v. McFarren, 62 Wis. 2d 492, 498 N.W. 2d 459 (1974); Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816 (1914); and Wis. Admin. Code NR, sec. 115.03(6).
6 Members of the public may not access the area between the high-water mark and low-water mark adjacent to a riparian landowner’s property, unless it relates to navigation. See Gianoli v, Pfleiderer, 209 Wis. 2d 509, 535, 563 N. W 2d 562 (Ct. App. 1997). In Gianoli, the court held against the party that had accessed said area for purposes of dog walking and beachcombing. See also Silverman at 19. Yet continuous wet feet avoid this limitation of navigation purpose required above the low water mark.
7 Trudeau at 104.See also Silverman at 20.
8 See Silverman at 20-21.
9 See Silverman at 20.
10 Id.
11 City of Madison v. State, 1 Wis. 2d 252, 83 N.W. 2d 674 (1957)
12 Id. See Silverman at 20.
13 See Silverman at 21, citing Gillen v. City of Neenah, 219 Wis. 2d 807, 580 N.W. 2d 628 (1998).
