Lake Koshkonong ruling ‘epic’: RKLD

By Kevin Murphy, Special to the Daily Union | Posted: Wednesday, July 17, 2013 10:27 am

MADISON — A divided Wisconsin Supreme Court on Tuesday ruled against the state Department of Natural Resources in a case relating to the water levels on Lake Koshkonong.

The decision could set a precedent for how much power the DNR has over setting water levels on lakes affected by dams.

The high court, in its 4-3 decision, said the DNR does not have the authority under the public trust doctrine, contained in the state constitution, to consider the impact of water levels on private wetlands above the ordinary high water mark. Instead, the court said, the DNR has broad authority to protect those areas under other state laws, not under the constitution.

Extending the doctrine to non-navigable wetlands would eliminate the very rationale for the doctrine, which is to protect, preserve, and promote Wisconsin’s waters, Justice David Prosser wrote for the majority, joined by Justices Pat Roggensack, Michael Gableman and Annette Ziegler.

“The ramifications for private property owners could be very significant,” he said.

Justice Patrick Crooks, writing the dissent, said the ruling attempts to undermine the public trust doctrine.

“This represents a significant and disturbing shift in Wisconsin law,” stated Crooks, joined by Chief Justice Shirley Abrahamson and Justice Ann Walsh-Bradley.

He attacked the majority for needlessly bringing the public trust doctrine into the case when it could have been decided on a state statute. He noted that the majority constricts the doctrine, which has been part of the state’s “long and robust history” of protecting the public’s rights to Wisconsin’s waters.

“The economic evidence admitted during the ten-day contested case hearing was sufficient to discharge the DNR’s duty to ‘protect ... property,’ and the excluded evidence was not relevant or required. The DNR has a difficult job to do under this statute, and in this case, the DNR did it well,” Crooks stated in his dissenting opinion.

The case dates back to 2003 when the DNR rejected a request from the Rock-Koshkonong Lake District to raise water levels 7.2 inches on Lake Koshkonong, a 10,600-acre lake five miles southwest of Fort Atkinson. It is the sixth-largest inland lake in Wisconsin, with 27 miles of shoreline in Jefferson, Dane and Rock counties, but it has an average depth of just seven feet.

The lake district wanted to raise water levels during low periods in the summer, which supporters argued would help bolster tourism, lake access, and the value of property around the lake.

The DNR agreed to raise the winter drawdown level by six inches, but argued that raising the summer levels would worsen shore erosion and cause a loss of wetland habitat at the lake.

There are 12.4 miles of wetland shoreline at the lake containing diverse species of wildlife and vegetation.

The Rock-Koshkonong Lake District said the DNR was overstepping its legal powers in setting the water limits, and that it did not properly consider the economic effect of its decision.

Challenging the decision, the district brought the case before an administrative law judge, who upheld the DNR a year later. The findings in his decision were not contested by the district as it appealed the adverse ruling to the Rock County Circuit Court Judge Daniel Dillon.

Dillon also ruled in favor of the DNR.

In July 2011, in upholding Dillion’s earlier ruling, the District 4 Court of Appeals concluded that the DNR is “not required to consider the economic effects of its water level determinations on residential property values, business income and tax revenue,” Judge Paul Higginbotham wrote in the 25-page opinion.

Instead, the appeals court interpreted state statutes to give the DNR the authority to establish water levels for impounded lakes based on the public’s interest in promoting safety and protecting life, health and property.

On Tuesday, the state’s highest court sent the case back to the Rock County Circuit Court with orders that the previously excluded testimony be considered when deciding whether the lake levels should be raised.

The Supreme Court agreed with the lake district and said the DNR wrongly excluded most testimony on the economic impact of lower water levels for residents, businesses and tax bases at and near the lake.

“The DNR’s exclusion of most economic evidence was inconsistent with its acceptance of competing economic evidence that helped sustain its water level decision,” Justice Prosser wrote for the court.

Brian Christianson, chairman of the lake district, praised the court’s decision, saying he believes consideration of the economic data will lead to the court allowing the water level to go up during summer.

He referred to the decision as being “epic” and suggested that it vindicated the district’s claim that the DNR overstepped its constitutional authority and harmed property owners in keeping the lake levels low.

“You need to take that into account,” said University of Wisconsin-Whitewater economics professor Russ Kashian, who presented some of the economic data that was rejected. “You just can’t say it’s good for the ducks. Ducks are important too, but you have to weigh all of the consequences.”

“The case is epic because had the court ruled that the public trust doctrine in the state constitution applies to non-navigable private water beyond the ordinary high water mark, it would give the DNR unlimited authority to regulate private property adjacent to public waters,” Christianson said.

He further noted that the state constitution makes no reference to the DNR.

“Their creation as an agency comes 120 years after our constitution and the public trust doctrine. RKLD’s victory strengthens the public trust doctrine and tempers the power of DNR,” Christianson said. “The Supreme Court majority put the constitution back in its proper place.”

Meanwhile, the Wisconsin Manufacturers and Commerce praised the ruling as “significant win for property owners and the rule of law.”

“This is an important ruling that correctly limits the DNR’s regulatory authority as it relates to the public trust,” WMC Vice President for Government Relations Scott Manley said in a prepared statement. “The state argued for a massive expansion of the DNR’s regulatory jurisdiction in a manner inconsistent with the law.”

Manley said he thought the Supreme Court appropriately limited the application of public trust doctrine in the Wisconsin Constitution.

“We hope today’s decision is a first step toward continued clarification of this ambiguous area of Wisconsin law by the high court and the Legislature,” he concluded.

Attorney Charles “Buck” Sweeney said he expects the lower court will uphold the DNR’s original decision even with the additional economic evidence.

Sweeney represented the Lake Koshkonong Wetland Association and the Thiebeau Hunting Club, which supported the DNR’s ruling because they believed it would protect wetlands adjacent to the lake.

Sweeney also predicted that the case, which is eight years old, will drag on for years more as appeals are filed to the next decision by the circuit court.

Bill O’Connor, the attorney for the lake district, said it was too soon to tell what would happen next in the case, but he agreed that resolution could still be years away.

DNR spokesman Bill Cosh said the opinion was being reviewed and that the agency will work with the attorney general’s office on the next steps when the case goes back to circuit court.

Several environmental groups, including Clean Wisconsin, Wisconsin Wetlands Association and Wisconsin Lakes, supported the DNR’s process for protecting wetlands when making decisions about lake water levels.

Elizabeth Wheeler, the attorney for those groups, said the ruling unnecessarily narrowed the DNR’s authority to regulate non-navigable waters through the public trust doctrine, but it also bolstered it by saying the agency can regulate those areas using other laws.

Over the years, courts have given the DNR power under the doctrine to protect water quality; however, Tuesday’s decision limits that to below normal high water mark, she said.

“The public trust doctrine has been broadly interpreted by the Supreme Court by extending it to wetlands and shore lands, but this decision attempts to narrow that when wetlands are concerned,” Wheeler said.

“It’s not a clear-cut win or loss,” she concluded.