Justice Crooks wrote the Lake Beulah Decision - So no surprise with his opinion today
State Supreme Court ruling in lake-level case impacts public trust doctrine
Madison — The state Supreme Court ruled Tuesday that state regulators had to consider more testimony in setting a lake level in a decision that the dissenters said weakens the state constitution's water protections.
The 4-3 decision comes just two years after the Supreme Court unanimously agreed on a separate case over the state constitution's public trust doctrine, which holds that Wisconsin's lakes, rivers and streams are to be maintained for the general public's benefit.
In Tuesday's ruling, the court found that the doctrine does not apply to land above a lake's ordinary high water mark.
"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," Justice David Prosser wrote.
The dissenting opinion called the majority view a reversal of a string of cases going back decades.
"Instead of limiting itself to addressing only what must be addressed, the majority seizes this opportunity to limit the public trust doctrine in an unforeseen way, transforming the state's affirmative duty to protect the public trust into a legislative choice," Justice N. Patrick Crooks wrote in dissent. "It needlessly unsettles our precedent and weakens the public trust doctrine that is enshrined in the Wisconsin Constitution. This represents a significant and disturbing shift in Wisconsin law."
Crooks was joined in dissent by Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley.
Filling out Prosser's majority were Justices Michael Gableman, Patience Roggensack and Annette Ziegler.
The 4-3 divide has become a familiar one, surfacing over recent years in some of the most substantive issues the court has taken on.
The case stems from a long-running dispute over the level of Lake Koshkonong in Jefferson County. The decision sends the case back to circuit court, where testimony that was originally excluded will now be considered.
The 4-3 decision comes just two years after the Supreme Court unanimously agreed on a separate case over the state constitution's public trust doctrine, which holds that Wisconsin's lakes, rivers and streams are to be maintained for the general public's benefit.
In Tuesday's ruling, the court found that the doctrine does not apply to land above a lake's ordinary high water mark.
"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," Justice David Prosser wrote.
The dissenting opinion called the majority view a reversal of a string of cases going back decades.
"Instead of limiting itself to addressing only what must be addressed, the majority seizes this opportunity to limit the public trust doctrine in an unforeseen way, transforming the state's affirmative duty to protect the public trust into a legislative choice," Justice N. Patrick Crooks wrote in dissent. "It needlessly unsettles our precedent and weakens the public trust doctrine that is enshrined in the Wisconsin Constitution. This represents a significant and disturbing shift in Wisconsin law."
Crooks was joined in dissent by Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley.
Filling out Prosser's majority were Justices Michael Gableman, Patience Roggensack and Annette Ziegler.
The 4-3 divide has become a familiar one, surfacing over recent years in some of the most substantive issues the court has taken on.
The case stems from a long-running dispute over the level of Lake Koshkonong in Jefferson County. The decision sends the case back to circuit court, where testimony that was originally excluded will now be considered.
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posted by Slide @ 4:22 PM
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