How "bout a Meeting to Say LKWA Had No Science, No Data, No Justification to fight 7.2 inches??

Prop Owners Win on Delavan Lake

Keep an Eye on Your Assessments

More than 50 Delavan lakefront owners sued the town of Delavan over assessments and taxes paid in 2009 and 2010.

Read the decision:

http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=106587

New Rock County Judge Assigned

Judge Dillon has been replaced with Judge Fitzpatrick.

RKLD expects the Wetlands Club to ask for a replacement for Fitzpatrick.

Meanwhile, the hours and months continue to add-up.

Supreme Court Case Remains a Muddy Mess

So the Supremes gave RKLD an EPIC victory, however, they still remanded the case back to Rock County Circuit Court to do right this time.

On Tuesday, Dec 17th, Rock County Judge Dan Dillon offered to recuse himself from the case should any of the attorneys from either party ask.

When no one asked, Judge Dillon said he would give all parties until after the New Year to let him know.

So here we are again, the calendar just keeps getting longer and longer and longer.

But, we have facts, and everything that is right, on our side.

Stay tuned for the next move on thee chess board from Buck Sweeney and the Lake Koshkonong Wetland Club.

Damaged Carp Gate at Mud Lake

Part of the Experimental Dredge project from earlier this year included repairing and replacing the Carp Gate at Mud Lake.  Mud Lake is a prolific walleye and northern fish habitat.  So in addition to working well with the WI DNR, and the US Army Corp. of Engineers, RKLD proved once again that not EVERY wetland/duck hunting club wants to fight and invent reasons to attack the RKLD.

RKLD is a champion for ALL user groups on Lake Koshkonong and the Rock River.

Where is the REAL OHWM?

RKLD is already collecting data - we are examining the OHWM and whether hunters and fisherman can access more public areas on the lake.

In some cases, wetland owners may be claiming public waterways as private property.

___________________________

Brian..

 

Below is information about the Rock River flood inundation pilot project.   See the link for the Cedar River-Cedar Rapids, IA river gauge for an example of what flood inundation mapping is like.  Let me know if you are interested in getting on an e-mail list for the meeting or conference call in early 2014. 

--

Brian Hahn-Service Hydrologist  12/10  635 pm

National Weather Service-Milwaukee/Sullivan, WI

N3533 Hardscrabble Road

Dousman, WI 53118

Found from the Janesville Gazette Comments that follow their stories

You gotta admire their convictions - the Lake District said all along that if the WI Supreme Court would take their case, it would be the proper venue to receive a fair hearing.
*
And for the constituents to stick with their Board as long as they have, that says a lot about their elections and what they expect from their reps.
*
Having lost their case at every level, from Circuit Court to the Appeals Court, I expected some of those ole stingy river rats to vote against more legal fees, but the Lake District's leadership must be really effective to get residents to be patient.
*
This is a very big precedent for the WDNR to have lost - not only are they wishing they would have found a way to preserve their Appeals Court victory, but they must be sweating the potential for a landslide of lawsuits that are now fair game by the many many other lake districts in WI.
*
The governor too must be asking if he has the right person running DNR to have let this get away from them - unless, of course, if they wanted this decision as well.

Lake Koshkonong residents approve continued court fight

By Neil Johnson | August 10, 2013

FORT ATKINSON–The next act of the decade-long legal drama over water levels at Lake Koshkonong is set to start playing out in circuit court later this month, a lake district attorney said Saturday at the lake district's annual meeting.

A majority of about 95 Rock Koshkonong Lake District residents voted Saturday to approve a $45 annual fee that will include up to $40,000 in the lake district's 2014 budget to continue a court fight against the Wisconsin Department of Natural Resources for the right to use the Indianford Dam to raise water levels of Lake Koshkonong 7.2 inches in the summer.

The move came after Lake District residents attending the meeting at Fort Atkinson High School decided to reject a $40,000 proposal for the lake district to conduct a forensic analysis of its last several budgets.

Voters approved the spending, but instead asked for it to be shifted to legal costs for a case over water levels on the lake which the state Supreme Court ruled on in July, but remanded back to Rock County Circuit Court for further review.

It's unclear how much the lake district could ultimately spend in legal costs for the ongoing court fight. It has already spent around $500,000 on court costs—a fee paid through annual lake district homeowner fees, Lake District Chairman Brian Christianson has said.

Madison lawyer Bill O'Connor said Rock County Circuit Court will get files in a few weeks from the case over whether the lake district can use the Indianford Dam to hold back 7.2 inches of water to improve boating conditions in summer low-water months.

The lake is a shallow impoundment of the Rock River, and has a history of flooding in the spring and getting extremely low in the summer and fall months.

The state Supreme Court sent the case back to circuit court for further legal proceedings after it ruled July 18 that the Wisconsin Department of Natural Resources overreached its authority in setting water level mandate on Lake Koshkonong. The ruling also indicated the DNR hadn't properly considered the effect of water levels on residential and business properties around the lake.

Lake District officials, who have for years been pushing for higher water levels on the lake, have called the ruling “epic” because it signals that the DNR can no longer unilaterally issue maximum and minimum water levels on state impounded lakes.

The Supreme Court ruling did not address whether the DNR should grant or deny the Lake District's 2002 request to use the Indianford dam to hold back water in summer months.

O'Connor said parties in the case still have about two weeks left to contest parts of the Supreme Court's ruling, but he's “doubtful” any party would contest it.

O'Connor said he has not been in touch with DNR lawyers over the case. He said he would not issue public comment on how he thought a lower court decision on the water level issue could play out in lower courts.

“I'm not going to answer,” O'Connor told The Gazette Saturday. “There has been no communication between the opposing parties.

O'Connor did say that he has had “congratulatory” comments from other impounded lake districts in the state over the ruling.

O'Connor and lake district officials suggest the ruling offers hope and legal leverage for lower courts to  question or even halt DNR rulings on impounded lake water level mandates that don't take into account impact or that “overreach” by setting water levels based on the impact on adjacent wetland properties, according to the Supreme Court ruling.

Yet it remains to be seen whether the DNR has any appetite, even after the Supreme Court ruling, to relax its mandate for maximum and minimum water levels on Lake Koshkonong.

Wetland groups and the DNR have argued for years that higher water along the lake would increase erosion of thin shoreline areas and threaten wildlife and ecosystems in adjacent wetlands owned by hunt clubs and private trusts.

The Supreme Court ruling stated that the DNR, in setting water levels mandates, relied improperly on the state's Public Trust Doctrine, which serves to protect navigable waterways in the state.

The ruling stated that the DNR was heavy handed in applying the Public Trust Doctrine to water levels.

Lake District Resident Carol Harrington, an Illinois resident who owns a property in Glen Oaks Beach along Lake Koshkonong told Lake District board officials at Saturday's meeting she respected the district for sticking to its guns in the legal fight.

She said that other lake districts in the state owe a debt of gratitude to Rock Koshkonong Lake District. She said those other districts ultimately could reap the benefit of the ruling in terms of local control over their own water levels.

“Every lake level property owner in the state should have kicked in (money)” for the legal fight, she said.

Other lake district residents, including Buck Sweeney, a lawyer who represented a wildlife group opposing higher water levels in the Supreme court, told The Gazette last month he believes that the Supreme Court's ruling did not go far enough legally to force the DNR to backpedal on its water level mandates for Lake Koshkonong.

WISC TV-3 Coverage of RKLD Annual Meeting

Group debates Lake Koshkonong levels

Water levels at Lake Koshkonong may not change until next spring

Published On: Aug 10 2013 09:55:00 PM CDT   Updated On: Aug 11 2013 04:02:11 AM CDT

MADISON, Wis. -

Despite a State Supreme Court decision this summer, water levels at Lake Koshkonong may not change until next spring. 

The case has now been pushed back to the lower court. The Rock Koskonong Lake District had asked the DNR to raise water levels by 7.2 feet. Saturday, leaders met to discuss the lake's future.

District chairman Brian Christianson told WISC-TV the state's high court remanded the case back to Rock County circuit court. He said it means lawyers for the lake district and lawyers for the Wisconsin Department of Natural Resources have about three weeks to decide to either present the case in circuit court with new testimony or come up with another solution.

Members of the Rock Koshkonong Lake District spent Saturday morning reviewing their progress over the last year. The group's recent victory in court means the DNR will have to consider the economic impact of changing water levels at Koshkonong and other lakes throughout the state.

"That's critical for our constituents here today to keep the values in their homes, businesses, and restaurants that we have around the shoreline of Lake Koshkonong," said Christianson.

Bookkeeping and the district's budget were also discussed.

A hundred residents came to their annual meeting at Fort Atkinson High School.

They voted to keep the district's bookkeeping practices the same and continue to focus their efforts on resolving the water level issues.

"Our constituents gave us a vote of confidence that we've been completely transparent and we have abided by the state statutes and how we present our treasures report and our budget," said Christianson.

The district's lawyers are still working with lawyers from the DNR on the issue of water levels. That's good news to residents.

"We just need to keep going and hopefully when it's all said and done everyone will be able to sit back and say we did the right thing and everyone will benefit from it," said resident Frank Micale.

As far as the district's budgets and annual audit goes, the chairman told WISC-TV going forward that it is planning to create a citizen committee to do a review of the district's financial records.

• Copyright 2013 by Channel 3000. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Already, DNR Operating Orders across WI are being reviewed and challenged - Thank You Lake Koshkonong!!

Rest Lake dam operating order public hearings postponed

However, in light of the recent Supreme Court decision, a draft order will not be released until after the department can fully consider the court’s decision.

New dates for Rest Lake informational hearings have not been set at this time. 

“The department remains committed to share a draft of the Rest Lake Dam operating order with the public prior to finalizing a new order, but the court directed DNR to consider additional economic information on the Lake Koshkonong case. We are working with our attorneys and economist to review the court’s decision.”

The dates for a series of four public informational hearings on the Rest Lake Dam operating order had just been set and the first in a series of announcements was released to a DNR GovDelivery subscription service for Rest Lake Dam updates.

The Department of Natural Resources is charged with the duty to establish water levels and flows that protect public interests in waters of the state, promote safety, and protect life, health and property. 

“Water level issues, whether they result from drought conditions, dam operation or an unauthorized activity, are often controversial, because they almost always require some balancing of competing public and private interests.” Scott Watson, a DNR waterways supervisor working on the Rest Lake project, said. 

“It’s a great thing that people in Wisconsin are passionate about their public water rights. Public water rights are a tradition that date back to the state Constitution,” Watson said. 

DNR staff had already taken a significant amount of economic information into consideration in completing the draft order for the Rest Lake Dam, Watson said. 

After the department has the opportunity to evaluate how the Supreme Court decision will affect issuing dam safety operating orders, a new set of dates will be scheduled for the Rest Lake Dam pubic information hearings. 

Those with questions about the status of the Rest Lake operating order, may call John Spangberg at 715-685-0431 or email john.spangberg@wisconsin.gov. 

Updates on the project will be available by searching the DNR website for “Rest Lake Dam” and distributed by email. 

Reader Comments
Posted: Wednesday, July 24, 2013
Article comment by: John Sorenson
The Lake Koshkonong decision is a great event for
property owners. The DNR may have "considered"
the economic impact on property and business
owners, but only enough to give the impression
that their reasoning was balanced and their study
complete. If you take the time to actually read
the citizen comments and the DNR responses
you can't help but sense the one-sided direction
that their "New Order" was headed.
Thankfully, the supreme court has turned
the table on them. 

Rock-Koshkonong Business Association (RKBA)

Endangered Orchid No So Endangered....

8 years ago, RKLD was accused of flooding and killing this orchid should the courts rule in favor of our 7.2 inches of added lake level - then, the Wetlands Club and DNR pulled back their testimony after RKLD was forced to spend time and money collecting data and evidence that proved otherwise.

__________________________________

Endangered orchid shows it has an attitude

   “This (the white-fringed orchid) is one of the most beautiful wildflowers in a prairie. Rejoice should you discover one or two plants in bloom.”

   So says a website describing Illinois wildflowers, and indeed, the eastern whitefringed prairie orchid is not only attractive, it’s uncommon enough to be on Wisconsin’s endangered species list (as well as Illinois’).

   I’ve written about this rare plant in the past, describing how there was land near us where these scarce orchids were not only growing, but flourishing. Every year, when they came into bloom around the Fourth of July, we would do our annual orchid count, flagging the flowers and keeping tabs of where they were concentrated. With each census, the numbers grew until the flood of 2008.

   After weeks of hard rains that year, I could have canoed from my deer stand in the woods bordering the orchid field all the way to Lake Koshkonong. For months the field was under several feet of water. When it finally subsided about the time the plants should have been blooming, there was nothing but rotting vegetation littering the ground.

     Evidently the orchids were resilient. A few years later they were back—not in the numbers they had been, but enough to raise hopes that they soon would be.

   Then there was last summer’s drought. Since prairie orchids require moist ground to grow in, they were especially vulnerable to the endless weeks of searing sun and cloudless skies. By July, when they should have been flowering, there was no trace of them other than a few shriveled stalks.

   To add insult to injury, for several weeks this spring, much of the field was again under water. After taking a double whammy in a single year, there wasn’t much hope.

   Against all odds, last week I found three flowering plants. When I returned with flags to mark them I ran into 39 more.

   Equally as remarkable as their resiliency to extreme weather changes is the history of the field they grow in. When we moved to the area, it was used to raise corn.

   Since the orchid requires undisturbed land, the yearly plowing and planting made conditions impossible for it to take hold. Even when the field was set aside in CRP, it was sprayed on a fairly regular basis to eliminate brush and reed canary grass—another big no-no on the list of things prairie orchids don’t like.

   During those years we used the field for hunting, tramped around on it, cut native grasses down for duck blinds, plowed firebreaks and even ran a road down the middle of it. Then, amazingly, after doing just about everything you’re not supposed to do to encourage this endangered plant (which we didn’t even realize was in the area), one summer a few orchids took root and bloomed.
   Probably one of the reasons for their appearance is the fact that each March the field gets burned (at least when it’s not under water), keeping invasive, non-indigenous and native flora at bay. The white-fringe likes open sunlight, and there’s plenty of that.

   Then, too, there must be something unique about the pH of the soil in that area, as well as the presence of a particular fungus it needs to propagate, making the field ideal.

   One thing I’ve learned from the ongoing neighborhood orchid saga is how tenacious this plant seems to be. When you hear the word “endangered,” you often associate the term with some wimpy snail or little fish that can’t seem to make it on its own without some help.

   True, this fussy flower is pollinated only at night by hawkmoths and requires special soil. In spite of its little fringy blooms that give it the look of some kind of botanical French poodle, it’s one tough customer.

   You can cut it, spray it, flood it, starve it for water and ignore its needs and it will fight to come back. It’s a plant with an attitude!

   D.S. Pledger is an outdoors columnist for The Gazette. Email him at maus16@  centurytel.net  

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.

Link to Madison TV Coverage

NBC TV-15 Coverage of Supreme Court Victory

PRIVATE Wetlands receive PUBLIC tax breaks

Did you read this about PRIVATE Wetlands?

From April 2006

More News Coverage of RKLD Victory

UPDATED Tuesday, July 16, 2013 -- 10:30 p.m.
Reporter: Phil Levin

The DNR tells NBC 15 they are still examining the decision and have not decided whether to continue to contest the petition originally filed in 2005 in court.

Rock-Koshkonong Lake District leaders expect they would challenge an additional dispute.

"With Lake Koshkonong being such a shallow pie plate on its lake bottom, just a few inches, we're talking about a nominal 7 in. of additional water in Lake Koshkonong, which means much shorter piers, much safer navigation," said Chairman Brian Christianson.

________________________________

POSTED Tuesday July 16, 2013

MADISON, Wis. (AP) -- A divided Wisconsin Supreme Court has ruled against the state Department of Natural Resources in a case that could set a precedent for how much power the DNR has over setting lake water levels.

The case began in 2005 when the DNR rejected a request from the Rock-Koshkonong Lake District to raise water levels 7.2 inches on Lake Koshkonong, a 10,500 acre lake near Fort Atkinson.

The DNR argued raising the levels would worsen shore erosion and cause a loss of wetland habitat at the lake.

But the Supreme Court said Tuesday in a 4-3 decision that the DNR wrongly excluded testimony on the economic impact of lower water levels at the lake. Many in the area argued higher lake levels would increase tourism.