Photo: Bradford Beach in Milwaukee is a filled lakebed that is protected by the public trust doctrine, requiring public access.

Wisconsin’s abundance of water resources – more than 15,000 lakes, 32,000 miles of rivers and streams, and shared borders with two Great Lakes, Lake Michigan and Lake Superior – have been important to the state’s history.¹

This article discusses the underpinnings and development of the public trust doctrine as it relates to Wisconsin’s water resources, with a focus on some of the historical controversies surrounding proposals for commercial and residential development of beds of the Great Lakes and riverways.

The article traces the highly evolved body of law under the public trust doctrine, which emanates from the Wisconsin Constitution, and how the state has worked to ensure protection of these public trust lands from private and commercial development.

The Public Trust Doctrine in Wisconsin

When Wisconsin became a state, in 1848, it entered the union on “equal footing” with the original colonies. The beds of navigable waters, which had been held in trust by the federal government, were transferred to the state as “trustee.”² The Wisconsin Constitution provides that “the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States….”³

From this provision in the state constitution, a large body of common law has been developed defining the responsibilities of the state of Wisconsin as trustee. The tensions between the demands of the public for preservation of this trust and the desires of people to develop the shorelines and beds of these waters for commercial and residential purposes have formed the foundations for many of the disputes that have helped define the “public trust” in Wisconsin’s waters.

As Paul Kent noted in the first article of this series, “Waterfront property in urban areas is some of the most valuable property in Wisconsin.”⁴ Beyond the monetary value, many Wisconsin residents see the recreational, ecological, and cultural values of the shorelines of the state’s navigable waters, both urban and rural, as priceless resources that must be protected for future generations. During my career, colleagues and I reviewed an average of one commercial or residential development per month on public trust lands.

Many disputes about these competing interests have been litigated in Wisconsin’s courts. In 1899, the Wisconsin Legislature authorized a development company to drain Big Muskego Lake in Waukesha County for agricultural and development purposes. The Wisconsin Supreme Court struck down the law as violative of the public trust mandate contained in the Wisconsin Constitution and made clear that there were limitations on all parties, including the legislature, in allowing private uses of these trust lands, stating that:

“The legislature has no more authority to emancipate itself from the obligation resting upon it which was assumed at statehood, to preserve for the benefit of all people forever the enjoyment of the navigable waters within its boundaries, than it has to donate the school fund or the state capital to a private purpose.”⁵

Wisconsin courts have continually expanded the scope of the public trust doctrine. For example, in 1914 the supreme court noted that the state must broadly construe the trust doctrine so the “people reap the full benefit of the grant secured to them…” and that the “wisdom of the policy which steadfastly and carefully preserved to the people the full and free use of public waters cannot be questioned. Nor should it be limited by narrow constructions.”⁶

In the 1930s, the supreme court stated that many navigable waters “have ceased to be navigable for pecuniary gain” and that “as population increases, these waters are used by the people for sailing, rowing, canoeing, bathing, fishing, hunting, skating and other public purposes.”⁷

Limits on Delegation of Trust and Standing of Citizens to Enforce the Public Trust

In Muench v. Public Service Commission,⁸ involving a proposal in 1951 to place a dam on the Namekagon River, the supreme court held that individual citizens had the right to bring actions to uphold the public trust and struck down a law that delegated the authority to place a dam on a navigable river to a county board. The court stated, “the state may only delegate to county boards powers of a local character, and may not delegate powers over matters of state-wide concern.”

In an echo of the Muench holding, relating to the delegation of public trust authority, the 1987 decision in Village of Menomonee Falls v. Wisconsin Department of Natural Resources⁹ held that cities, villages, and towns did not have authority to determine for themselves whether to alter a stream bed. The court stated that no delegation that allows the public trust interest of the state to “be impaired or destroyed” can be made to municipalities.

Gillen v. City of Neenah¹⁰ concerned the state’s acquiescence in a proposal to place a commercial industrial facility on a lakebed, exercising its enforcement discretion because the lakebed had been filled for a significant period and had been used for industrial purposes. Several individuals challenged the state’s action. The court held that the plaintiffs had standing under the public trust doctrine: “As stated, the public trust doctrine ‘establishes standing for the state, or any person suing in the name of the state for the purpose of vindicating the public trust, to assert a cause of action recognized by the existing law in Wisconsin.’”

Lakeshore State Park and Milwaukee Waterfront. Photo by Virginia Small

Title Concerns for Any Residential or Commercial Developer

Another important case involved the placement of structures on the bed of Lake Superior. In State v. Trudeau,¹¹ a developer was told that the location proposed for the placement of condominiums was part of the bed of Lake Superior. The developer challenged that determination and constructed three units on pilings over the lakebed. After years of litigation, the constructed condominiums were removed from the lakebed.

The legislature has granted qualified authority for the use of lakebeds and riverbeds to public entities for public trust-related uses, such as navigation, harbors, and public parks. These activities have been allowed through legislative lakebed grants¹² and approvals from the Wisconsin Department of Natural Resources or the Board of Commissioners of Public Lands (BCPL) through lakebed leases,¹³ permits for fill or structures,¹⁴ or bulkhead lines and leases.¹⁵ Each authorization must contain a determination by the state that the specific fill or structure placed in the navigable waters is consistent with the state’s trust responsibilities. These authorizations do not grant municipalities or the user title to the lakebed or riverbed. As the supreme court noted in a case involving the establishment of a bulkhead line to use part of the bed of the Fox River, “respondents do not challenge the paramount title of the state to riverbed and concede that the legislature may, in the future, revoke the right of riparian owners to retain structures.”¹⁶

In “The Invisible Lien”: Public Trust Doctrine Impact on Real Estate Development in Wisconsin,¹⁷ the author noted: “All too frequently, advance planning for real estate near water bodies in Wisconsin does not consider the impact that the Public Trust Doctrine can have on development. That is a mistake…. Under the doctrine, the State of Wisconsin has a continuing interest not only in existing surface water and the underlying beds but also may attach to filled areas that once were within the original high-water mark of the waterbody.”

The author further noted that, “If the public trust attaches to an interest in real property, the property may be used only for certain designated water-related public purposes, such as commercial and recreational navigation…. Private development is not ordinarily permissible within areas protected by the Public Trust Doctrine.”

Lakebed and Riverbed Developments in Wisconsin

Each proposal for development discussed above raised complicated fact-specific questions, but determining the proper application of public trust principles to each proposed site was possible. In almost all cases, the maps (historic and current), surveys, aerial photos, and historic permits and approvals accurately indicated when and under what circumstances filling occurred. In most situations, local historical information, photographs, and land records will also inform an investigation of the issues.

The shorelines of lakes and rivers are naturally dynamic, due to wave action and water level changes that can erode shorelines or deposit materials. The law as it relates to accretion, reliction, or meandering of streams has evolved to address these changes to shorelines.

The state of Wisconsin, through the DNR, the BCPL, and the Department of Justice, has the tools to investigate and address these issues. To facilitate quicker responses to requests to utilize areas near the shore that may be in question, it would be useful to ensure that staff resources are available at state agencies to assist in making these resources available to all parties, including local governments, to help assess these situations.

Since becoming a state, Wisconsin has considered whether to allow development of harbors, ports, museums, and parks along the state’s navigable waters. In 1957, the supreme court outlined criteria in a case that involved park development, State v. Public Service Commission,¹⁸ including that “public bodies will control use of the area” and that it “will be devoted to public purposes and open to the public.” Residential developments, hotels, and commercial developments such as restaurants and bars do not meet these criteria.

Milwaukee: How to Build Public Assets on Lakebed and Riverbed

Milwaukee provides examples of how to balance public interests over time in a way that builds long-term public assets on lakebed and riverbed. Milwaukee has a major port as well as public parks and museums on its waterfront. Much of the downtown shoreline has been granted to the city of Milwaukee and Milwaukee County through lakebed grants. These areas contain public entertainment and museum facilities, including the Milwaukee Art Museum, the Discovery Museum, and Milwaukee World Festivals (home of Summerfest and many ethnic festivals). There are also marina facilities, public beaches with concessions, bike paths, the Community Sailing Center, and Lakeshore State Park.

Paul Kent has noted that the Milwaukee River “in the 1960s, had a rancid odor and worse color. Few wanted to spend time near it.”¹⁹ Businesses literally turned their backs on the river because it was so polluted. In the 1980s, the Milwaukee River had finally been cleaned up to the point that people wanted to spend time near the river. To meet this desire, the city of Milwaukee proposed placing bars and restaurants on moored barges in the river. The DNR advised that this was not permissible because the river and the riverbed were public trust waters and the placement of these commercial establishments on the riverbed would violate the public trust doctrine. The state embarked on a cooperative effort to develop “Riverwalk Guidelines” and a master plan that would allow development next to the river, with public access alongside, to help make these public waters accessible and vibrant again.

As described by the city of Milwaukee, “[t]o ensure compliance with the Public Trust Doctrine, …The City worked in cooperation with the DNR to create a Riverfront Comprehensive Plan that would comply with the State Constitution and the Public Trust Doctrine.”²⁰

Today, there are commercial and residential developments on land next to the river and the public access along the river has been maintained consistent with the public trust. As of July 2022, “properties adjacent to the River Walk have generated $1.5 billion in increased property values…. including 2800 residential units. 4.7 million square feet of office space, 515 hotel rooms and dozens of riverfront businesses and restaurants.”²¹

Issues Are of Statewide Concern

Wisconsin has 64,000 miles of river shorelines, over 800 miles of Great Lakes’ shorelines, and thousands of miles of shorelines on its 15,000 inland lakes. These shorelines, and any filled lakebed and riverbed areas alongside them, are important state recreational, ecological, and cultural resources. As noted in the Muench case in 1951, the state must be vigilant in protection of these resources under the public trust doctrine.

The ownership and potential development of lakebeds and riverbeds on public trust waters is a “matter of statewide concern” and cannot be delegated to local units of government. Developers and municipalities often view proposals for commercial and residential development as only minor intrusions on these state resource lands. They lack the statewide perspective that is necessary, and mandated under the public trust doctrine, to properly assess the proposed projects.

Since the DNR was created in 1967, it has routinely reviewed project proposals for development on filled lakebeds and riverbeds. Each review requires an intensive fact-based inquiry, which can be accomplished using existing cartographic, aerial, and satellite photography, and public records.

Some structures were placed on lakebeds many years ago without proper review and authorization. These situations have been and can be resolved by fact-intensive review of the history of the site in question.

When necessary and appropriate, the state can exercise its enforcement discretion to allow existing facilities to remain for their useful lives.²² In some circumstances in which there have been minor intrusions into public trust lakebeds or riverbeds, the state and other parties might reach settlements to resolve title issues.

Conclusion

The state of Wisconsin, including the Wisconsin Legislature, has a responsibility under the public trust doctrine to ensure that public resources remain public and are not allowed to be used for commercial or residential development. As the Wisconsin Supreme court noted in 1966, in a case involving the placement of a small fill on a 938-acre lake in Vilas County, the state has a responsibility under the public trust doctrine to look at the cumulative effects on these state resources: “A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another and another, and before long a great body of water may be eaten away until it may no longer exist. Our navigable waters are a precious natural heritage; once gone they disappear forever… the [state] carried out its assigned duty as protector of the overall public interest in maintaining one of Wisconsin’s most important natural resources.”²³

A framework exists for the DNR, the BCPL, and the DOJ to review and manage decisions regarding development next to Wisconsin’s shorelines and on filled lakebeds and riverbeds. This includes a rigorous, fact-intensive review of the history and facts, which is required in all cases. There may be a need for further procedural clarification on the process to ensure public involvement and a review process, through administrative proceedings, so that any disagreements can be litigated. It would improve this process if resources were made available to the state agencies and municipalities to gather the necessary information in a timely and comprehensive manner.

The need for vigilance to preserve Wisconsin’s shorelines and lakebed and riverbeds for public use is more crucial than ever. As evidenced by the developments around the state of Wisconsin of public resources on the beds of lakes and private development adjacent to these public spaces, these dual goals can easily be achieved.

Endnotes

1 https://www.usgs.gov/centers/upper-midwest-water-science-center/science/water-use-wisconsin.

2 Jacob Beuscher et al., Water-Use Law and Administration in Wisconsin § 3.10f (1970).

3 Wis. Const. art. IX, § 1.

4 Paul G. Kent, Water, Water Everywhere: 50 Years of the Clean Water Act and Beyond, 95 Wis. Law. 22 (April 2022).

5 Priewe v Wisconsin State Land & Improvement Co., 103 Wis. 537, 79 N.W. 780 (1899).

6 Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816 (1914).

7 Nekoosa Edwards Paper Co. v. Railroad Comm’n, 201 Wis. 40, 228 N.W. 144 (1930).

8 Muench v. Public Serv. Comm’n, 261 Wis. 492, 515, 53 N.W.2d 514 (1951).

9 Village of Menomonee Falls v. Wisconsin DNR, 140 Wis. 2d 579, 412 N.W.2d 505 (1987).

10 Gillen v. City of Neenah, 219 Wis. 2d 806, 828, 580 N.W.2d 628 (1998).

11 State v. Trudeau, 139 Wis. 2d 91, 408 N.W.2d 337 (1987).

12 See Wis. Stat. § 13.097.

13 See Wis. Stat. § 24.39.

14 See Wis. Stat. § 30.12.

15 See Wis. Stat. § 30.11.

16 Town of Ashwaubenon v. Public Serv. Comm’n of Wis., 22 Wis. 2d. 38, 126 N.W.2d 567 (1963).

17 Arthur J. Harrington, The “Invisible Lien”: Public Trust Doctrine Impact on Real Estate Development in Wisconsin, 69 Wis. Law. 10 (May 1996).

18 State v. Public Serv. Comm’n, 275 Wis. 112, 81 N.W.2d 71 (1957).

19 Kent, supra note 4.

20 City of Milwaukee, Dep’t of City Dev., Riverwalk History, https://city.milwaukee.gov/DCD/Projects/RiverWalk/RiverWalk-History (last visited July 22, 2022).

21 City of Milwaukee, Dep’t of City Dev., Updated Urban Land Institute Award Application (July 2022).

22 78 Wis. Op. Att’y Gen. 107 (1989) (OAG 21-89), https://www.doj.state.wi.us/dls/ag-opinion-archive (click on “1981 - 1990”; then click on “1989”) (exercising enforcement discretion to allow restaurant to remain on Milwaukee lakebed).

23 Hixon v. Public Serv. Comm’n of Wis., 32 Wis. 2d 608, 146 N.W.2d 577 (1966).

» Cite this article: 95 Wis. Law. 34-39 (Sept. 2022).