Saturday, May 4, 2019

Whether historic oaks are saved tests our land ethic commitment

On public lands, and when water is threatened, Wisconsin's woods need a chain saw moratorium - - and if public officials won't do the right thing then they will be literally uprooting all that Wisconsin-defining history about John Muir getting his start here and Aldo Leopold and Gaylord Nelson advancing Muir's legacy.

Exhibit "A" today: the possible removal of at least ten very old bur oak trees, like these - 

and certainly much of the shoreline at the bluff they naturally preserve

along the west bank of the Milwaukee River in Glendale's Kletzsch Park.

This is all about accommodating the construction of a passage for migrating fish past yet another of those troublesome Milwaukee River dam remnants.

Some of the these tough, magnificent, slow-growing-drought-and-fire-resistant trees are serving the river and the wildlife as they did when Wisconsin's iconic naturalist and scientist Increase Lapham surveyed the area in 1850. 

You want to see some of what he likely saw? 
You want to see more of what's at stake?

Start with this short video.

Now, I'd written a bit about issues and the grassroots work underway to get Milwaukee County to put its chainsaws away, but to absorb the majesty of the site - - 

 - - and do a better reporting job equired a visit to the heart of the park.

I am grateful to Glendale writer and public land advocate Martha Bergland for encouraging me to come visit, and for her organize efforts for the park - - which, you remember, is public land holding public water that comes with long-standing legal protections from and by the state as our trustee.

So Bergland wrote:
Save the Kletzsch Park Trees!  
Hundreds of citizens have signed petitions, written letters, and attended meetings in opposition to the proposed Milwaukee County Parks Kletzsch Park Dam Upgrade. According to the county website, “The Kletzsch Park dam project will include: A 350-foot-long, rock-filled fish passage that will let native fish move past the dam” — after they excavate and remove more than 10,000 cubic yards of the historic bluff and after a massive retaining wall is installed. 
This “upgrade” will place the “overlook in front of the waterfall” 70 to 100 feet back from the edge of the bluff where we now stand under the old trees to look at river and the serpentine falls. And the project includes “the removal of some trees to accommodate viewing areas and other amenities.” 
“Some trees” means a set of historic bur oaks, remnants of the original savanna, trees perhaps as old as the state of Wisconsin. The current site above the Kletzsch Park dam is now among the most well-loved and beautiful viewing areas in the county. We go there because of the trees and the bluff as well as the river and the dam. These ancient trees will now be replaced by “amenities.”  
I understand that discussions are underway to locate the proposed fish passage on the other side of the river with the cooperation of private landowners willing   to give up a few feet of their property to save the trees and the view and the integrity of the park and the history just across the river.

Let's also understand that Article IX of the Wisconsin State Constitution guarantees each of us as a right under the Public Trust Doctrine the broadly-defined use of state waters - - meaning access to state waters and enjoyment of state waters - - and the DNR as our trustee is required to intervene on the  the public's when those rights are threatened.

As spelled out by the Wisconsin DNR, here:

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.... 
Wisconsin's Public Trust Doctrine requires the state to intervene to protect public rights in the commercial or recreational use of navigable waters. 
Excavating and uprooting and paving over the wooded riverbank - - instead of actually enhancing all land between the river and the nearby Milwaukee River Parkway road would surely diminish the public's ability to enjoy the waters there, as the Public Trust Doctrine requires.

The Public Trust Doctrine has its origins in the Northwest Ordinance of 1787, and prior to that, Roman Law - - all of which predates Wisconsin statehood, as do some or all of the threatened oaks - - which is a nice bit of historical, legal and environmental symmetry, don't you think?

Heck, don't take my word for it. Listen to what Arlen Christenson, UW Law Professor emeritus and former dean of the UW Law School has to say about the purposes and reach of the Public Trust Doctrine:
“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 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.”
Other resources to consult:

Friends of Kletzsch Park

Milwaukee Audubon Society Conservation Committee, (MAS), Glendale Natural Heritage Committee. 

Competing views on Kletzsch Park fish passage project

How to reach County Government.

A final thought to put this issue into a broader context.

We're coming out of eight years of environmental disregard and flagrant degradation as state policy during the Walker years. 

I'm not trying to make this a partisan matter, but those are the facts and but that political pollution has left behind a lot of contamination:

* Despite having lost their case for a key wetlands-filling permit before a state administrative law judge, Kohler interests are moving forward with an appeal on behalf of their plan to cut down large swaths of habitat, ruin rare dunes and clear cut never-forested woodlands to build a golf course in Sheboygan alongside Kohler Andrae State Park.

*  Similarly, a wetlands permit recently invalidated in a separate action which would have destroyed a rare timber stand in a woodland to facilitate sand mining, yet that plan is also being will also be appealed.

*  And a stand of bur oaks not unlike those imperiled in Kletzsch Park were known to be at risk last year when Foxconn began clearing land for its still-to-be-defined electronics assembly project in Racine County while farm clearing, wetland-filling and other insults to the land were allowed to proceed by the state without a standard environmental impact statement's reviews and inventories.

* Also throw in the likelihood that an historic grove of chestnut trees providing a bit of shade and relief in Milwaukee's downtown may be cut down if the Common Council says OK.

I'd say that it's time for state and local decision-makers to put down their chainsaws, put on their thinking caps, start listening to taxpayers and find better solutions so the next generation won't be left with concrete 'improvements' replacing what nature and smart planners had already provided to clean the air and nurture the soul.


Anonymous said...

Sadly there are people who get into positions of power who have no real concern or regard for anything about our environment. They will profess to care while at the same time counting the possible dollars of profit or publicity photos in which they can appear. An easy test is whether they care simply because these great natural things exist at all. Most do not possess a simple caring because they say things like "I don't care about the Amazon because I'll never see it." In other words they feel that these natural living things and places are only of concern if they themselves can "use" them for some purpose. If you start a discussion on the environment with those in power at the DNR/GOP and you say you are concerned about the Amazon they will automatically assume you are talking about a particular building project. At which point the DNR personnel will produce a large "Approved" rubber stamp and an ink pad and the GOP will get out a blank check.

Anonymous said...

if You want to save the oaks you better kill the buckthorn.

James Rowen said...

I am told buckthorn removal is on the agenda.

Anonymous said...


Eric Allen said...

I see that there are some nice homes not that far from the river bank. Could this be just a river view issue brought on by folks that think their freedom to see the river without large trees obstructing their view?

steve said...

The following represent my opinions and beliefs: I’m sorry I was working against the WI bureaucracy on another problem and only saw this debate. I again see money, lack of specific facts/data and vague reasons to spend money and harm the environment while doing so in action here too. The author of this article gives many reasons, facts and quotes law. In the meeting minutes we don’t receive any of that from those that have a monetary vested interest in a fish passage. Specifically from Feb. meeting notes, A word often used is ‘concerns’. No facts, not data, just ‘concerns’. “Mayor Kennedy asked if the Department of Natural Resources (“DNR”) is requiring the fish passage. Mr. Stave stated that the DNR is not requiring the fish passage, but has concerns. Ms. Gripentrog expressed concern over the possibility of fish not being able to get upstream”. Ms. Gripentrog and the DNR has ‘concerns’, but doesn’t spell them out, why? Have either expressed concerns at any time in the past 90 years about fish getting upstream of the dam? How many native fish do they estimate would use the fish passage? Why won't they say?
“Ms. Gripentrog explained that the County is under a directive, but that the EPA wants to create a better habitat for fish to spawn”. Again no facts, data, explanations as to ‘the County is under a directive’. Perhaps non-native fish to spawn? What directive?
Here’s a fact, if the DNR, Ms. Gripentrog want better habitat and more fish upstream the best way to do so would be to simply remove the dam. As to more fish, well that’s been a big question and problem for decades.
Here’s why I think the fish passage is a wasteful, special interest boondoggle. Let’s start with some facts. Most of the fish biomass south of the Grafton Dam is I believe redhorse, non-native carp, salmon, trout and or steelhead (during spawning runs); this is supported by Thiensville data. The health of the river downstream of Grafton and ultimately Kletzsch park is a question, one reason being pollution. Another support fact, a rather intensive effort, both public and private, to restore walleyes to the Milwaukee River has to date turned out to be a dismal failure. Sturgeon, the jury is still out on them, so the fact is, there are very few native fish in the river above or below Kletzsch park. In fact there are very few fish remaining in Lake Michigan to come up the river, the most successful being salmon, trout and steelhead. Since steelhead have been the most counted fish at Thiensville, that fact and others suggest, the real point of the proposed fish passage is to move a lot more salmon and trout upriver to benefit Great Lakes trout and salmon fishermen, a special interest group already receiving large subsidies for decades from the DNR/public.
When combined with a FEMA report it raises more questions and possibilities about the future of the river and more importantly the dam. “…Three properties were acquired and removed in a high flood risk area on Sunny Point Lane” and “Glendale is exploring further acquisition and demolition of high risk properties in this area”. How much did that already cost us and just how much more might it?
Put it all together and these are my ‘concerns’. While not requiring a fish passage, they are trying to justify an expensive fish passage that will dramatically and irrevocably change the park, which seems to benefit mostly salmon and trout fishermen in the future. A FEMA change could demand the removal of the Kletzsch park dam in the future and then what would we have? The public would be stuck with a very, very expensive fish passage to nowhere. In fact, we’d probably have to pay to have it removed. So it's very simple, if the fish passage isn't required, don't waste the harm and money building it.