Wednesday, January 16, 2013

The Mining Bill Overthrows Article IX Of The WI Constitution

The Wisconsin Constitution's language and principles about the primacy of public interests in water, its uses and relationship to natural beauty preservation predate statehood.

The wording and subsequent interpretations are that basic to Wisconsin, as we know and inherited it.

Read about Article IX, as state legislative experts explain it.

An open pit mine that would destroy the Penokee Hills, at the headwaters of the Bad River would force the DNR into opposition in the public interest, as Walker's DNR explains the Public Trust Doctrine - - in its own italics:

However, the Wisconsin State Supreme Court has ruled that when conflicts occur between the rights of riparian owners and public rights, the public's rights are primary and the riparian owner's secondary.(1):
Here is the DNR's entire text on the subject:
Wisconsin's Waters Belong to Everyone
Wisconsin lakes and rivers are public resources, owned in common by all Wisconsin citizens under the state's Public Trust Doctrine.

Based on the state constitution, this doctrine has been further defined by case law and statute. It declares that all navigable waters are "common highways and forever free", and held in trust by the Department of Natural Resources.

Assures Public Rights in Waters
Wisconsin citizens have pursued legal and legislative action to clarify or change how this body of law is interpreted and implemented.

Watch how their efforts have benefitted all Wisconsinites in this series of videos:

    "Champions of the Public Trust" - Part 1 [YouTube VIDEO length: 11:01]

    "Champions of the Public Trust" - Part 2 [YouTube VIDEO length: 6:30]

    "Champions of the Public Trust" - Part 3 [YouTube VIDEO length: 11:01]
As a result, the public interest, once primarily interpreted to protect public rights to transportation on navigable waters, has been broadened to include protected public rights to water quality and quantity, recreational activities, and scenic beauty.(1)

All Wisconsin citizens have the right to boat, fish, hunt, ice skate, and swim on navigable waters, as well as enjoy the natural scenic beauty of navigable waters, and enjoy the quality and quantity of water that supports those uses.(2)

Wisconsin law recognizes that owners of lands bordering lakes and rivers - "riparian" owners - hold rights in the water next to their property. These riparian rights include the use of the shoreline, reasonable use of the water, and a right to access the water. However, the Wisconsin State Supreme Court has ruled that when conflicts occur between the rights of riparian owners and public rights, the public's rights are primary and the riparian owner's secondary.(1)

What are Wisconsin's stream and lake access laws?
Wisconsin's Public Trust Doctrine requires the state to intervene to protect public rights in the commercial or recreational use of navigable waters. The DNR, as the state agent charged with this responsibility, can do so through permitting requirements for water projects, through court action to stop nuisances in navigable waters, and through statutes authorizing local zoning ordinances that limit development along navigable waterways.

The court has ruled that DNR staff, when they review projects that could impact Wisconsin lakes and rivers, must consider the cumulative impacts of individual projects in their decisions.

 "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 may be eaten away until it may no longer exist. Our navigable waters are a precious natural heritage, once gone, they disappear forever," wrote the Wisconsin State Supreme Court justices in their opinion resolving Hixon v. PSC.(2)


(1) Quick, John. 1994. The Public Trust Doctrine in Wisconsin. Wisconsin Environmental Law Journal, Vol. 1, No. 1.

(2) "Champions of the Public Trust, A History of Water Use in Wisconsin" study guide. 1995. Wisconsin Department of Natural Resources Bureau of Water Regulation and Zoning. Champions of the Public Trust [PDF].

1 comment:

Anonymous said...

Very interesting -- great catch.

But if walker and erwin can eliminate the federal and state Constitution free speech guarantee, crushing water rights will be easy.

After all, since we aren't free to express ourselves in our capitol, who's gonna tell the legislature not to do it?

And the media that has consistently lied that the mining bill is non-controversial, bipartisan, and "moderate" are not going to say boo -- they are complicit.

Which gets us back to -- who's going to enforce the constitution if the media won't tell the story and we aren't free to discuss it at the capitol?