The DNR Rests

The Department of Natural Resources has reviewed the Surreply Brief submitted by the Joint Petitioners on September 22, 2006. We have determined, based on the arguments and citations contained therein, that it is not necessary for the Department to file any additional briefs in this matter.

Please note for the record that the Department disagrees with the arguments and characterizations of the record and the law made in the Joint Petitioner's Surreply Brief.

We do not acquiesce in their arguments or characterizations of the law and the record in this case.

Finally, I must point out that there is no support in the record for their assertion, on page 4 of their brief, that the DNR has reduced a "highly complex subject to mere sloganeering".

They include, in quotation marks, a phrase which they seem to imply is attributable to the Department.

The record needs to reflect that this phrase, on page 4 of their brief in "quotations", ("Any increase in water levels is bad, no matter when or how long it occurs or how it affects public safety, navigation of property"), is not something that has been stated by the Department in this case or any others relating to the control of water levels on navigable waters and is not something which exists in the record in this case.

As is evidenced by the record in this case, that statement does not reflect the Department's approach to its responsibilities under Section 31.02, Stats.

I will send a letter for the record to the ALJ and the parties on the service list containing this same information.

Thank you.
P Michael J. Cain
Staff Attorney
Bureau of Legal Services
Wisconsin Department of Natural Resources

RKLD Surreply - Are you Satisfied?

Second, Mr. Stockham explained on cross examination that the surveys conducted by DNR, purporting to reveal that Lake Koshkonong users are generally satisfied with conditions on the lake, are unscientific and unreliable for several reasons.

RKLD Surreply - DNR Deficient

DNR’s consideration and weighing of those statutory factors was clearly deficient.

The Department in its post-hearing briefs has maintained a dismissive posture toward the substantial, valuable public interests and private rights that have accrued to riparians and lake users based on the water levels maintained by the Indianford Dam over the past several decades.

RKLD Surreply - Economic Impact

In the 1938 opinion cited by the Department (DNR reply brief, at 10) in connection with a later Rest Lake water level controversy, the Attorney General concluded that the local resort economy was a component of public rights in navigable water:

It is the duty of the commission [under Wis. Stat. § 31.02] to protect the public right of navigation in these waters; and hunting and fishing are incidents of the right of navigation or are independent rights in themselves. In this case, moreover, the public interest in fishing is unusually important because it is one of the bases of the great summer resort business in the vicinity of Rest Lake and the Manitowish waters.

So it is proper to consider this interest in regulating the water levels.

1938 Op. Atty. Gen. 424, 428.

The Department is not required to regulate water levels to maximize economic gain, but it is required to give due weight and value to accrued property rights in the balancing of interests under sec. 31.02(1), Stats.

RKLD Surreply - Flowage Rights

The DNR’s reply brief characterizes as "a novel theory" the Joint Petitioner’s argument that it holds flowage rights acquired by deed and prescription.

The Department does not explain what makes this assertion novel, but the record shows conclusively that the District owns flowage rights.

Legislature, DNR tangle over power

Agency's decisions often challenged

The Milwaukee Journal-Sentinel

...In their dust-ups with the Legislature, DNR officials often point to the state's Public Trust Doctrine, which says that lakes and rivers are public resources - owned by all - and are held in trust by the DNR.

...Sen. Neal Kedzie (R-Elkhorn), chairman of the Senate's environment committee, has a reputation of being able to work with the DNR. He sees the agency becoming more responsive, but the job isn't done.

"I think there is a culture in the DNR that needs be more acclimated to treating citizens as customers," Kedzie said.

Reject assault on property rights

Wisconsin State Journal editorial
September 21, 2006

When the Dane County Board tonight considers a plan to revoke landowners' rights to build homes on small lots near shorelines, its members should take a whiff.

Both the plan and the process stink.

Proponents of this change to the county's shoreland zoning law have overreached the bounds of good government in two malodorous ways. First, they stretched very local concerns about three lots near the UW Arboretum into countywide development vs. environment issues. Second, they tried to ram their solution through fast enough to stop the Arboretum landowner from acting on permits already issued.

The result is an attempt to reduce the private property rights of landowners and to circumvent the limits that ought to keep the people in charge of government rather than the other way around.

At stake is how the county handles homebuilding on small lots in shoreland areas. The plan to be considered tonight would prohibit construction on any lot less than 7,500 square feet in area or 50 feet in width. It would require multiple small lots under the same ownership to be combined into larger lots.

The change is estimated to affect 300 landowners who hold 900 lots, and maybe more depending on what qualifies as a shoreland area.

All of these landowners would see their property values plummet because of the new restrictions.

Behind the proposal is an attempt to block a property owner from building two homes and renovating a third near the Arboretum. Some neighbors are up in arms that the construction and new homes might damage the sensitive area. However, the landowner went through the county's building permit process and was issued permits. Neighbors have appealed.

Because the law so far has been on the landowners' side, the neighbors hope to stop him by getting the law changed, following the unfair strategy: When you can't win by the rules, change the rules.

At the County Board, the Arboretum fuss merged with an interest in protecting our lakes. The State Journal editorial board has made the health of the lakes one of our priorities. We have been proud to support tighter mercury regulations, limits on phosphorous lawn fertilizer, manure disposal regulations and more.

But in each of those cases, evidence demonstrated that the proposal addressed an important lake quality problem. In this case, similar evidence is lacking.

Alternatives to the proposed changes exist. In the Arboretum area, residents have their appeal process. Countywide, the regulation of small lots near shorelines may deserve study, but with far more public input than the current ramrod process allowed.

For those reasons the County Board should reject the proposed shoreland zoning changes.

Rules revised after concerns surface

Number of issues addressed in changes to state's fishing tournament package
By BOB RIEPENHOFF briepenhoff@journalsentinel.com
Posted: Sept. 23, 2006

A proposed rules package for fishing tournaments held in Wisconsin has been revised to address concerns raised by members of the Natural Resources Board, including costs, the spread of aquatic invasive species and tournament-related fish mortality.

Last month, board members delayed action on a Department of Natural Resources request to hold a series of public hearings on the rules package after receiving letters from the Wisconsin Wildlife Federation and the Wisconsin Association of Lakes raising concerns about the proposed rules.

The letters were written after more than 600 bass were found dead in the La Crosse area after a tournament was held there in July. The DNR was conducting a study of the impacts of tournament fishing at that tournament.

The federation wants to know whether the public supports a statewide moratorium on bass tournaments in July and August or at least in waters where largemouth bass virus has been detected. The association's concerns include fish mortality, the potential spread of aquatic invasive species, the impact of tournaments on small lakes and costs associated with regulating tournaments.

"We decided to put into the rule a ban on live-release tournaments from July
1 to Aug 31," said Patrick Schmalz, regulations coordinator with the DNR in Madison.

"The wildlife federation wanted us to raise the question at the hearings and we decided the best way to do that was to include the ban in the draft. That will stimulate discussion."

Revised rules package

The revised rules package would also require tournament organizers to have a plan, approved by the DNR, to prevent the spread of aquatic invasive species, such as zebra muscles and Eurasian milfoil.

"If the plan is not approved, they would not be able to conduct the tournament," Schmalz said.

The new rules package would also reduce the amount of tournament fishing activity allowed on small lakes.

"The Wisconsin Lakes Association was specifically concerned about the density of boats on lakes of smaller size," Schmalz said.

On Lakes from 100 to 449 acres, the number of tournament boat days allowed per month - the number of boats in a tournament multiplied by the number of days of the tournament - was reduced from 100 to 50.

On lakes from 450 to 999 acres, the number of boat days was reduced from 450 to 300.

Board members had asked about the costs associated with requiring tournament participants to purchase permits that would allow them to participate in an unlimited number of tournaments for the year.

"The cost would be $1,500," Schmalz said. "That's a one-time programming charge. It's pretty cheap."

Permit process

Some board members had also asked that the DNR consider including local units of government in the tournament permit approval process.

"We didn't believe that was something we could easily do," Schmalz said. "It would be overly cumbersome. We did add language that would require tournament organizers to notify the appropriate local unit of government of the dates and locations of tournaments."

The board is expected to take up the revised rules package this week. If approved, the hearings would be held around the state between Oct. 30 and Nov. 17.

"This is going to be controversial at the hearings," Schmalz said of the rules package. "We did our best to address the concerns."

Mixed results

In a related matter, the DNR has completed three simulated tournaments conducted to test the effects of culling fish, with mixed results.

Culling is when an angler can keep a fish if he releases another one to stay within his daily bag limit. Normally in Wisconsin, an angler must immediately release a fish after it is caught for it not to be counted in his daily bag limit.

For the tests, Schmalz said, anglers caught bass which were kept in live wells in their boats, then transferred to net-pens where they were held for five days.

A test held on Balsam Lake in Polk County in June resulted in an estimated fish mortality rate of 13%, while a test held on Tomahawk Lake in Oneida County this month resulted in no fish mortality.

A third test held on the Madison Chain of Lakes in August was inconclusive because musk rats chewed holes in the nets and most of the fish escaped.

RKLD Surreply - OHWM

LKWA apparently believes that the OWHM determined by RKLD and DNR should be ignored as "an unordinary and inflated measurement" that resulted from the former dam owner’s "failing to maintain and operate the dam as designed and directed." (LKWA Reply Brief, at 1-2.)

Similarly, LKWA asserts: "No flowage rights should arise from water levels occurring from a dam that did not operate at full capacity due to Rock County’s failure to spend money necessary to repair the wicket gates." (LKWA Replay Brief, at 4.)

Both of these positions are flat wrong as a matter of law.

The OHWM is not a finding about what ought to be. It is a physical fact – an elevation on the shoreline marking the upper limit of regularly occurring water levels.

RKLD Surreply -- No Basis for DNR Criticism

In any event, criticism of the Montgomery analysis is no substitute for the Department’s obligation to establish an evidentiary basis for a proposed order that considers the:

-- repairs to the dam’s discharge capacity,
-- the relocation of the water level benchmark from the dam to the lake,
-- the elimination of the 6-inch flashboards
-- and the re-determination of the OHWM at least 1.4 feet above that determined when it last modeled the system in 1982.

The Petitioners are at a loss to explain how the DNR can discharge its statutory duty to "protect property" or establish a water level order that serves the interests of navigation and other public rights without developing and using a fundamental tool (a hydraulic model) that addresses the Lake Koshkonong’s situation as it exists now.

RKLD Surreply - No DNR Analysis

It is disturbing that the agency concluded that it could establish orders for Indianford Dam gate operations without a quantitative analysis of the hydraulic consequences of the competing gate operation proposals, especially in view of the extent of staff resources it has devoted to this proceeding.

In effect, DNR has based its entire "public rights" case on presumed impacts of water levels by reducing a highly complex subject to mere sloganeering ("Any increase in water levels is bad, no matter when or how long it occurs or how it affects public safety, navigation or property.")

RKLD Surreply - Give Us Back Our Water...

DNR mischaracterizes the Petitioners’ property based arguments as seeking the manipulation of water levels" for the "personal gain of land owners." Reply Brief at page 6.)

The Petitioners ask nothing more than a water level order that recognizes the significant changes in circumstances since the Department’s 1982-1991 orders were issued and gives due consideration to the protected interests under s. 31.02(1).

LKWA’s Reply Brief highlights another critical point: The reinstatement of the 1991 water levels in the 2005 order does not maintain the status quo.

It lowers the lake levels experienced in recent decades.

_______________________

1 DNR has acknowledged that the lake level at the Newville gage is some 3.5 inches above the dam. Thus when enforcement of the water level order was transferred to the Newville gage, it had effect of reducing the maximum water level by that amount.

Feds finish Mississippi islands

From the Janesville Gazette

Click HERE

...The program authorizes tens of millions of dollars every year to address habitat rehabilitation and enhancement, including dredging, constructing dikes, creating islands and controlling side channel flows and water levels.

...Three islands were added between 1989 and 1992 in the first phase of the Pool 8 project, which ran about $2.3 million, according to the Army Corps of Engineers. Seven islands were added in the second phase, which wrapped up in 1999 and cost about $3.5 million.

...Planning on the $15 million third phase began in 1999.

...The new islands lie just south of Stoddard, where Coon Creek empties into the Mississippi. They're designed to act as breakwaters, shielding the delta from waves and wind.

Future is uncertain for Evansville's Lake Leota

EVANSVILLE-The large mud puddle that was Lake Leota has dried into a soggy field of tall weeds.

The lake bottom has compacted more than 6 inches since the water was drained about a year ago, but it's still not dried out, public works committee chairman Bill Hammann said.

The public works committee Monday probably will approve spending $35,000 to cut a notch in the sluice gate around the dam to allow more water out. The lake is like a bathtub with a drain 2 or 3 feet above the bottom, Hammann said. "We can't drain it because we need to put the plug lower," he said.

"We're going to move the drain down … that will allow us to dewater it." Refilling the lake next summer is a possibility, but the decision probably won't be made until then.

Finding money to fund a dredging project is an issue. The city can't afford to dredge the lake and renovate the downtown in the same year, Hammann said.

"Main Street is well over a million dollars, so we can't do them both together," he said. "I think right now, obviously our focus is to fix up Main Street."

Once the construction project to rip up Main Street from First Avenue to Allen Creek is done in 2008, then money can be put toward the lake in 2009, he said.

"That's the way I look at it," he said. "It's a business decision how you spend your money."

Estimates range from $500,000 to $600,000 just to get the dirt out of the lake and deposit it in a nearby staging area, said Troy Larson, a member of Save Our Lake and Environment committee.

That's provided the city found partners who would take the soil from the staging area at their own cost, he said.

"The cost would only be that low if those partnerships were in place," he said.

If a contractor managed the entire scope of the project, estimates could go into the millions of dollars.

When the city first drained the lake, no plan or timetable was set because officials didn't know what they would find or if the lake would dry out. Even if the lake were filled and drained and dredged a couple years from now, this year's draining still accomplished a lot, Hammann said.


They found they can dry out the lake out and that the soil will compact, he said. "We've got all the preparatory work done," he said. "So yes, we could fill it and re-drain it, because we're ready now. We'll know what it takes to do the job."

RKLD Surreply Filed With Judge Coleman

The RKLD Surreply Brief is now on our website.

Click (HERE)

Another Constituent Letter RE: Sur-reply Motion

Brian,

I find Buck Sweeney's (LKWA) opposition to the RKLD'S request for Surreply to be totally ludicrous as it was Shearer, Duesterbeck, Sweeney and other hunt clubs (the very same ones who oppose us today) who spent 100's of thousands of dollars in attorney and court fees for almost 10 years to get us the ridiculous water levels we have today.

Why didn't they put the money into the lake or even try to protect their own property instead of waiting till the RKLD got them wetland restoration grants?

Seems to me it is the pot calling the kettle Black.
James

Near perfect water levels

Yesterday's lake level was 777.00

Today's lake level is 777.05

Take a picture of your shorelines, piers and boatlifts - this water level is what we are requesting from the DNR in our Contested Case Hearing.

If you still have a boat in the water, cruise by the wetland shorelines too....

Constituent Response RE: the Surreply Motion

I love Buck Sweeneys comment. We are spending money to improve the lake. The wetland owners and the DNR are the ones wasting money. If they would have been up front with all the bad reasons to keep the lake level as it is we would not have to keep responding. The wetland owners don’t mind taking grants from the government to protect their shorelines. I guess it bothers them to have to spend their own money.
Ted

Judge Allows RKLD Motion for Sur-reply

All-

I will issue an order allowing for the filing of a sur-reply brief to be filed no later than September 22, 2006 as requested by Attorney Peranteau.

There will be no prescribed limitation on length, but I trust it will be no longer than it must be to present argument that is truly in the nature of sur-reply.

If after the filing of the brief, the DNR or parties supporting the DNR position believed that even further briefing were appropriate, I would of course consider any such request.

Thank you.

William Coleman
DHA, Milwaukee

RKLD Supports Cause for a Surreply Brief

Dear Judge Coleman,

I am writing on behalf of the Petitioners in response to Attorney Cain's email opposing the our request for leave to file a brief in response to the reply briefs filed by the Department and Attorney Sweeney last Friday.

This hearing deviates from the typical in many respects. The entire proceeding was precipitated by the Rock-Koshkonong Lake District's petition for a modification in the 1991 water level order. Because it issued a proposed amended order, the Department has the burden of proof in this case, even though its proposeod order does not materially change the current order.

The Department's brief-in-chief consists of a litany of its witnesses testimony in support of its current order. The Petitioner's response brief raises significant legal issues not addressed in DNR's brief. The Department's reply responds to those arguments, using arguments and citing authorities raised only in the reply brief. The District has had no opportunity to respond to those arguments. We anticipated that this could occur and the possible need for a surreply brief was discussed at the close of the hearing.

With due respect to the points made by Mr. Cain, we believe the arguments he has raised warrant response by the Petitioners and understood that opportunity would be afforded to us if needed. We have proposed a short turnaround time for the brief and would be willing to limit its length as you see fit.

But we do not accept Mr. Cain's view that his legal arguments should stand without a response.

Thank you for your consideration.
William P. O'Connor

All Gates Wide Open

Today's lake level is at 776.78, or almost 5 1/2 inches above the DNR summer max.

DNR Opposes RKLD Motion for a Surreply

While there was discussion at the close of the hearing concerning the opportunity of the Joint Petitioner's to file a motion for the right to file surreply briefs, we respectfully object to the filing of additional briefs.

The Department has adopted administrative rules in Chapter NR 2 relating to Procedure and Practice before the DNR. NR 2.18, Wis. Adm. Code, provides, relative to briefs, that "The party or parties having the burden of proof shall file the first brief. Other parties may then file response briefs, which may be replied to." This is the protocol that has been followed here, and it reflects the normal protocol for the party with the burden of proof to file the initial brief and to file the final brief.

While the Department understands that Judge Coleman indicated that he would entertain this Motion, we urge you to deny it. There is no showing that there is a need for additional briefing here. The issues involved and the contentious nature of this proceeding would provide fodder for argument and counterargument for the foreseeable future. In dealing with cases such as this for 30 years, I have never been involved in a case where there have been additional rounds of brief.

As the party with the burden of proof, if you were to grant this motion, we would need to consider requesting leave to file a final brief in response to their surreply brief. In the interest of judicial and administrative economy, we urge you to deny this request.

Thank you for your consideration of this.

P Michael J. Cain
Staff Attorney
Bureau of Legal Services
Wisconsin Department of Natural Resources

Wetlands Club Opposes RKLD Motion for a Surreply

When is the Lake District going to spend money to improve the Lake?

We will abide by the Judges the decision but oppose the motion. Enough papers have been filed.
Charles V. ("Buck") Sweeney
Axley Brynelson, LLP

Wet Weather - Gate Changes

From 9/10/06 thru 9/12/06 the USGS gage at Bingham Point recorded 2.78 inches of rainfall.

As a result, yesterday 1 slide gate was opened, leaving 3 of 6 slide gates closed and both wicket gates closed.

Today, lake levels jumped above the DNR summer max to 776.43. All 6 slide gates are now open and both wicket gates are 100% open.

What is a Sur-Reply?

surrebutal
n. in written or oral legal argument, the response to the other party's response (rebuttal) to the initial argument. In written briefs most courts will not allow more than a single surrebutal. The rule is usually the same for oral argument. However, occasionally the parties joust back and forth until the judge stops the debate.

RKLD Asks Judge for Surreply Brief

Dear Judge Coleman:

Per the parties’ discussion after the close of evidence on the final hearing day, the Joint Petitioners hereby request leave to file a surreply brief limited to issues addressed in DNR’s reply brief. We would propose to file the surreply by September 22, 2006.

Thank you for your consideration.
Mary Beth Peranteau
Wheeler, Van Sickle & Anderson, S.C

Please send your historical photos

...I am happy to see my pictures featured on the front page of the Association, and proud of that too. They both are from the Blackhawk Island.
The history of the area, and the 1832 "war" with Chief Blackhawk are the cultural heritage for this area.
I think it deserves special attention for both it's beauty and heritage as well as the past and current DNR land reclaiming policy that resulted in many people's property condemnation.

Actually, the reason I am writing to you is the idea that the RKLD website should do more than just have slim photo gallery. It should showcase all the major areas around the lake. Like the Blackhawk Island. Like the Carcajou Point ( I have my former neighbors from Illinois live there) or Haights Bay where I spent so many years. All of the special and unique bays and areas that make this lake so unique and worth of fighting for.

I have enclosed some pictures here from Blackhawk Island. My neighbor L.A. Wilson has a long term project going on. He is carving a huge 30' Totem Pole as a tribute to Chief Blackhawk. The raising will be a special event, I have posted these pictures on the Internet just for the value of the passion this man has for the place he lives in. I think it deserves special attention and should be a part of the photo gallery- maybe more, maybe a start to a separate page featuring Blackhawk Island.
In any case, I think this is worth attention and sharing with all RKLD members and website visitors.

John Fudala

10. Potential Phosphorus Ban Ordinance

From Jefferson County

MAY 24th, 2006

A request was made by the Town of Lake Mills, the Lake Ripley Management District, Rock River Coalition, Friends of Allen Creek Watershed, and the Rock Lake Improvement Association to consider a county ordinance provision restricting the use and sale of lawn fertilizer containing phosphorus. Jefferson County Corporation Counsel has been notified on how to address this issue. Mr. Zimmerman made a motion for the committee to move forward and ban the use of phosphorus in lawn fertilizer. Mr. Zentner Seconded. Motion Carried. Copies of the requests were provided

Natural Resources Board sets conditions for herbicide review

From the Janesville Gazette