Saturday, October 14, 2017

Looking through a fence to grasp the WI Public Trust Doctrine

[Updated, 4:22 p.m., 6:20 p.m.] 

Editors note, 10/14/17] 

I'd written that I'd spotted a teachable moment about the relationship between our rights as Wisconsin residents to access, use and enjoy water in Wisconsin as a public trust and the still somewhat-obscure Public Trust Doctrine in the Wisconsin Constitution which is supposed to protect those water rights.

I referenced a story in the Journal Sentinel, still linked, below, about the path around Lake Geneva and a section of the path which is inaccessible due to fencing long-ago constructed.

I assumed that was a violation of the Public Trust Doctrine, but smarter people than I have said the fencing carries no such violation, so I declare that the teachable moment therein is on me.  I've several times edited the piece, but will leave it up because it has separate information of value, and because I believe in taking responsibility for what I write and making sure it's accurate.

That said, I resubmit this remainder:
--------------- But first, some background.

Respect for water rights in Wisconsin is the reason I began this blog; water is the blog's central theme - - from this posting a few days ago back to the very first of 17,613 items posted here on Feb. 2, 2007 - - because, as I said, the Wisconsin Constitution, through the Public Trust Doctrine in Section I of Article IX, guarantees that the waters of the state belong to everyone.

Furthermore, courts have ruled as recently as last week that when enforcing the Public Trust Doctrine, the state must put the public's interest in water rights first in line, but there are a lot of people in our state who don't know all this.

Our vigilance on these matters and the benefit of spreading the word is about more than understanding Wisconsin history that predates the Northwest Ordinance of 1787 or honoring the treaty rights which helped the Bad River Band of Ojibwe near Lake Superior save their wild rice estuaries and drinking water from the ill-advised, politically-tainted iron ore mining, wetland filling and acid runoff prevented a few years ago.

Worse, there are politicians like Scott Walker - - in his case, since the first few hours of his first term - - and his legislative allies like GOP State Senator Tom Tiffany and GOP Assembly Majority Leader Jim Steineke, and special interests including Big Ag and Big Dairy and the Wisconsin Manufacturers & Commerce who do know all about the importance of the Public Trust Doctrine, but have no political or ethical problem with throwing it out the window if that's what their donors and allies demand.

Which is precisely what Walker wanted, and the Legislature gave him, with regard to environmental exceptions, legal and other procedural favors in the subsidy-bloated Foxconn bill.

And which didn't escape the op-ed attention of John Stollenwerk, one of Wisconsin's premier business leaders:
Stollenwerk: Must we give Foxconn everything - - even our water?
Now let me say that I know it's the weekend, and your time may be limited, but you can stop at the end of this paragraph if you promise to read this short interview with by emeritus UW professor of law Arlen Christenson, who knows more about the Public Trust Doctrine and why it's so crucial to everyday life in Wisconsin than all the private sector lobbyists their corporate sponsors put together:
 “It holds that the state is the trustee of the waters of the state for the benefit of the people of the state,” Christenson said. “And so the trustee has a duty to care for, manage, improve and protect the water for the benefit of the citizens. It’s not as if the state owns the water, but the people are the beneficial owners of water, just as the beneficiaries of a trust.”
The Wisconsin Constitution states in article IX, section 1 that, “[T]he river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor.”
Christenson would later go on to say, “The idea that as the doctrine evolved, it was read to protect a variety of rights of water including the right to recreate, to fish, to hunt game, to enjoy scenic beauty and to enjoy clean and healthy water.”
Now to the teachable moment I spotted today in this Journal Sentinel feature story about a writer and hiking companion out to walk around all 23 miles of Lake Geneva.

Update: My analysis on the Lake Geneva path is being challenged on Facebook by a commenter who says the Public Trust Doctrine does not come into play:

The path truly cuts across private property and landowners can legally choose to prevent access. That's why walkers on the path are asked to be respectful. There are thousands of public lakes in Wisconsin that the public can only access by helicopter or plane because all of the land surrounding the lake is privately held.

You know, on that famous shore path.
Shore Path
When I saw the piece this morning, I thought, "Aha, the perfect place to bring the legalese of the Public Trust Doctrine and Article IX of the state constitution down to ground level - - shoreline level, if you will - - because having the Public Trust Doctrine in Wisconsin is why you can walk around all of Lake Geneva on a path without any property owner or mansion mansion running after you yelling 'get off my shoreline.'

6:20 Update - - Experts are telling me that the Lake Geneva Path is not a good example on which to hang my Public Trust Doctrine arguments, So enjoy the piece and props to the author for fine writing.

I'll focus on the unprecedented giveaway of water and existing process and law to Foxconn, and the struggle in Sheboygan County against the proposed giveaway of water-rich public park land along the Lake Michigan shoreline just south of this site - - 
The golf course developer is barred by the Public Trust Doctrine from closing off the beach below the project to hikers, but doesn't the Public Trust Doctrine also raise obstacles to the groundwater pumping proposed to irrigate the course, wetlands to be filled and potential fertilizer runoff into a river on the site and also into Lake Michigan? 
Likewise to the fight being waged by rural residents living near manure-leaking big cattle feeding operations in Kewaunee County and are deprived by lax state inspections and special interest obeisance of clean drinking water.

And what is coming as GOP legislators aim broadly at wetland protections:
MADISON, Wis. (AP) — Wisconsin Republicans are pushing to allow developers to build on state wetlands without any oversight after passing a $3 billion incentives package for a Foxconn Technology Group plant exempting the facility from a host of environmental regulations.
It's all the same issue, regardless of geography in Wisconsin, and it's why I have italicized and posted on my blog's home page these few lines of the most important State Supreme Court ruling on the issue:
"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 Supreme Court in its 1960 opinion resolving Hixon v. PSC and buttressing The Public Trust Doctrine, Article IX of the Wisconsin State Constitution.


Katrina said...

Thanks for always being on top of things and for always defending our environment.

James Rowen said...

You are welcome. Thanks for being a reader.