The public trust doctrine is one of the bedrock tenets of Wisconsin water law. This doctrine requires that the navigable waters of the state be held in trust for all state residents and U.S. citizens. The public trust doctrine arises from language drafted as part of the Northwest Ordinance of 1787 and was incorporated verbatim into the Wisconsin Constitution in 1848. It states:
“The River Mississippi and the navigable waters leading into the Mississippi and the St. Lawrence and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants to the state as to the citizens of the United States without any tax, input, or duty therefore.”1
The term “public trust” does not appear in this provision but has arisen from state and federal common-law interpretations. Like many broad constitutional provisions, this language and its case-law interpretations have evolved over the years, to adapt to changing environmental and societal conditions.
While the general scope and principles of the public trust doctrine are well settled, application of the doctrine to new conditions is less predictable. Recently, the Wisconsin Supreme Court, reflecting on the seminal public trust case Muench v. Public Service Commission, listed several questions that “rise naturally” from the doctrine: “(1) What are ‘navigable waters’? (2) Who owns the ‘land’ under ‘navigable waters’? (3) What are the public rights in navigable streams apart from navigation for commercial purposes? (4) What are the geographic limits of the public trust in navigable waters?”2 This article provides some context to help answer those questions.3
Administration of the Public Trust
The trustee of the public trust in navigable waters is the state of Wisconsin. All three branches of state government have a role in administering it, but the Wisconsin Legislature has the primary duty to administer the public trust and effectuate its purposes.4
The legislature can delegate certain trust responsibilities to other agencies. Since 1965, the legislature has provided broad primary authority to the Department of Natural Resources (DNR) “as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state.”5 Chapters 30 and 31 of the Wisconsin Statutes are the primary statutes that have been adopted to regulate activities in and near navigable waters and thereby implement the public trust protections.6 The public trust doctrine and statutes adopted to administer the public trust also allow a person to sue on behalf of and in the name of the state to vindicate the public trust.7
The Trust Obligation
In simplest terms, the public trust requires that the navigable waters of the state be held for the benefit of the public. This often has required a balancing of various public and private interests.
As one court noted, “[t]he primary power to administer the trust for the enhancement of these public rights to use the waters for commercial and recreational purposes reposes in the legislature.… Whether the power is exercised by the legislature or by a delegee it must be exercised for the benefit of the public. Efforts to serve or advance purely private interests to the detriment of the public interests protected by the trust are invalid.…
“The principle established by the … cases is that no single public interest in the use of navigable waters, though afforded the protection of the public trust doctrine, is absolute. Some public uses must yield if other public uses are to exist at all. The uses must be balanced and accommodated on a case by case basis. The principle has been reasserted in many decisions of the supreme court.”8
The public trust doctrine thus imposes both limitations on the state as the trustee and an affirmative obligation to preserve and promote navigable waters for the public.
Access to Navigable Waters
The public trust doctrine provides broad rights of public use of the state’s navigable waters. Public rights expand during high water to the full extent of the navigable water body and contract during periods of low waters.9 There is a corresponding obligation on the riparian property owner not to restrict public access by erecting fences or placing obstructions to navigation below the ordinary-high-water mark (OHWM).10
However, the public trust doctrine does not guarantee access to all navigable waters. Lakes that are completely surrounded by private land and have no navigable inlet or outlet may effectively be unavailable for public access. Generally, public rights also extend only to the water’s edge, although some very limited exceptions apply where there is an obstruction in the waterway.11
Title to the Beds of Navigable Waters
Under the public trust doctrine, title to the beds underlying navigable lakes below the OHWM is held by the state in trust for all state residents.12 However, riparian owners have exclusive rights to use the area between the shoreline and the OHWM except for the rights of the public for navigation. In addition, riparian owners generally have exclusive rights to place structures within the riparian zone appurtenant to their property.13
The location of the OHWM at statehood is the starting point for determining the line between state-owned lakebed and privately held upland.14 However, the courts have acknowledged that this demarcation line between private and public title can change over time. For instance, the common-law doctrines of accretion and reliction provide that when land is added to the shoreline, it can become part of the land held by the riparian owner.15 The courts have recognized that accretion and reliction can occur through both natural processes and the placement of artificial fill.16
In contrast, streambeds are privately owned. This private title is qualified by the rights of the public to use the water for navigation.17 The rights of the public to navigate along a stream “extends only to land under the stream of the navigable water so long as such land constitutes part of the bed of the stream, and if the course of the stream is changed so that such land no longer is part of the riverbed, it ceases to be impressed with the public trust.”18
What are “Navigable Waters” and Their Geographic Limit?
Under the express terms of the Wisconsin Constitution, the public trust doctrine applies to “navigable waters,” but that term was not further defined. When Nathan Dane,19 the principal author of the Northwest Ordinance, wrote about the navigable waters and “the carrying places in between” being “common highways,” he likely was thinking of the French voyagers and the sailing vessels on the Great Lakes and other commercial navigation.20 Indeed, in Wisconsin, little had changed between the adoption of the Northwest Ordinance in 1787 and the Wisconsin Constitution in 1848 except for the development of steamships. The state’s extensive network of railroads had yet to be developed, so the navigable waters were the “common highways” of commerce.
In the 1870s, when logging was a primary economic activity in northern Wisconsin, the Wisconsin Supreme Court held that a stream was navigable if it could float a saw log in periods of high water.21 A few years later, the court held that rivers are navigable if they are “navigable in fact” for transportation of persons or property or for recreational uses.22 In 1911, the legislature enacted a similar statutory definition, which considered streams and lakes navigable if they are “navigable in fact for any purpose.”23
Based on this definition, courts have held that a stream is “navigable in fact” if a canoe or small recreational craft can float on it at some time during the year.24 All that is necessary for a stream to be considered navigable is that there are regularly recurring periods when it is navigable or that there are navigable periods lasting long enough to be conducive to recreational use.
The public trust doctrine has been cited as a justification for regulating certain activities affecting uplands or nonnavigable waters or wetlands when there is a connection between those activities and navigable waters. In Just v. Marinette County, the Wisconsin Supreme Court upheld the regulation of nonnavigable wetlands in part because of their potential effect on adjacent navigable waters.25 In Lake Beulah Management District v. Department of Natural Resources,26 and again in Clean Wisconsin Inc. v. Wisconsin Department of Natural Resources,27 the court held that the public trust doctrine is relevant in determining the scope of the DNR’s regulation of the withdrawal of groundwater at least to the extent that such withdrawal affects navigable waters.
However, in Rock-Koshkonong Lake District v. State Department of Natural Resources,28 the court rejected the argument that the public trust doctrine applies directly to nonnavigable wetlands, noting, “Wetlands are often not ‘navigable in fact.’ … Eliminating the element of ‘navigability’ from the public trust doctrine would remove one of the prerequisites for the DNR’s constitutional basis for regulating and controlling water and land. Applying the public trust doctrine to non-navigable land above the OHWM would eliminate the rationale for the doctrine.”
The court stated that such areas can be regulated through statutes, given the state’s broad police powers, but not by virtue of the public trust doctrine.
Because of the hydrologic cycle, all waters are connected at some point – some more directly than others. As the above cases demonstrate, when the legislature has been unwilling to use its police power to regulate nonnavigable waters, there has been a suggestion that the DNR’s authority under the public trust doctrine should encompass all of its powers under Wis. Stat. chapter 281.29 But chapter 281 uses the term “waters of the state,” which is a statutory creation originally designed to define the scope of agency authority to address water pollution.30 It is a police power definition that is part of chapter 281, not a constitutional definition. It is likely that the legislature or future cases will provide more guidance on the relationship of the public trust doctrine and statutes such as Wis. Stat. section 281.12.31
Title to the beds underlying navigable lakes below the OHWM is held by the state in trust for all state residents. . . In contrast, streambeds are privately owned. This private title is qualified by the rights of the public to use the water for navigation.
Public Rights Protected by the Public Trust Doctrine
As noted above, commercial navigation was the “public interest” in navigable waters originally sought to be protected by the public trust doctrine. By the late 1800s and early 1900s, other commercial purposes beyond navigation were embraced as part of the public interest in navigable waters. Early Wisconsin laws facilitated harnessing surface waters for mills and eventually electric generation, floating saw logs to market, and creating bridges and harbors for commercial shipping.32
Beginning in the early 1900s, case law recognized that the scope of the public interest in navigable waters had broadened to encompass recreational uses. Although some still argued that the public trust was limited to commercial navigation,33 several cases acknowledged that the public’s rights in navigable waters included hunting and fishing and other recreational uses.34 Later, those public rights were expanded to include natural scenic beauty.35 By the late 20th century, discussion of these recreational and aesthetic purposes began to predominate over commercial purposes in judicial decisions. As the court in R.W. Docks & Slips v. State36 noted, “[a]lthough the public trust doctrine originally existed to protect commercial navigation, it has been expansively interpreted to safeguard the public’s use of navigable waters for purely recreational purposes such as boating, swimming, fishing, hunting, recreation, and to preserve scenic beauty.”
The public interest has evolved as the public interests in navigable waters have evolved, and it will continue to do so. Today, navigable waters are used for commercial navigation, recreation, agricultural irrigation, public water supply, water power, wastewater discharge, and riparian use, among many other uses. Indeed, the state authorizes many of these uses through permits under Wis. Stat. chapters 30 and 31. It is, however, the public trust doctrine and not the public use doctrine. The public trust doctrine does not preclude private uses; rather, it ensures that public interests remain paramount over individual interests.
Ownership of Land Under Navigable Waters That Have Been Filled
The placement of fill in navigable waters is generally prohibited without authorization.37 However, there are areas throughout the state along lakes and rivers where fill was placed many decades ago before a robust system of regulation was in place and enforced. Many of these filled areas are located along the Great Lakes and traditional commercial shipping waters and were filled to support commercial interests or to dispose of spoils from large-scale dredging operations conducted to support commercial shipping.38
Because the beds of rivers are privately owned as described above, the purposes for which filled former riverbed can be used are less constricted by the public trust doctrine as compared to filled lakebed. This provides owners of filled former riverbeds, regulators, and the state legislature with sufficient flexibility to create solutions that balance public rights in the waters themselves and other public interests such as economic development.39
The use of formerly filled lakebed areas is more complex. In many instances, private title to filled former lakebed was created and transferred over time. As noted above, if the OHWM has changed, a riparian owner can bring a quiet title action to claim title through the doctrines of accretion and reliction or other common-law doctrines. That can be a challenging proposition, however, given that historical information is often lacking.
In the absence of such a quiet title action, where these properties have been developed on filled lakebed for commercial, industrial, and residential purposes, can they be redeveloped for other private purposes? In Wisconsin, the law is well settled that lakebeds cannot be permanently appropriated for purely private purposes. The classic example of this was the supreme court’s rejection of the attempt by the legislature to authorize a company to drain and develop Big Muskego Lake in southeast Wisconsin. In Priewe v. Wisconsin State Land & Improvement Co.,40 the court stated:
“The legislature has no more authority to emancipate itself from the obligation resting on it which was assumed at the commencement of its statehood, to preserve for the benefit of all people forever the enjoyment of the navigable waters within its boundaries than it has to donate the school fund or the state capitol to a private purpose.”
However, that does not mean that what was once lakebed that was held in trust by the state can never be transferred to a private party – but if that happens it must be because such transfer is part of a broader public purpose. In Milwaukee v. State, the supreme court distinguished Priewe and upheld the grant of a portion of Lake Michigan lakebed to a private party, noting the larger public interest being served:
“It may be conceded that a grant of this large tract of land, extending out into the lake … could not in any view of the case be justified as a valid grant, because such grant would be a private grant for private and not public purposes. The reason, however, which lies at the basis of this grant to the steel company, is not a private one, but is public in its nature, and the contemplated grant itself is a mere part and parcel of the larger scheme, purely public in its nature, designed to enable the city to construct its outer harbor in aid of navigation and commerce.”41
Ultimately, the question under the public trust doctrine is whether such private uses are in the public interest. For example, how does the public trust doctrine instruct future use of brownfields or residential areas where filled lakebed has been used by private entities, sometimes for many decades, under a reasonable assumption of title? How will title to property and the various public interests in redevelopment and public access be balanced?
Like many constitutional provisions that have evolved over the years, the public trust doctrine has been a dynamic doctrine throughout its history. As the scope of the public interest expanded from commercial navigation to broader commercial use, recreational use, and scenic beauty, what remained constant was the need to consider what is in the overall public interest. The doctrine’s ability to adapt to new science, new economic realities, and new public demands is its strength. Navigable waters are one of Wisconsin’s greatest resources, and the public trust doctrine will continue to have a significant role in ensuring that they will be managed in the public interest for all citizens.
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1 Wis. Const. art. IX, § 1.
2 Rock-Koshkonong Lake Dist. v. State DNR, 2013 WI 74, ¶ 74, 350 Wis. 2d 45, 833 N.W.2d 800.
3 Portions of this article are taken from Paul Kent, Wisconsin Water Law in the 21st Century (Lake Mendota Publishing 2013) and used with permission of the author.
4 Gillen v. City of Neenah, 219 Wis. 2d 806, 580 N.W.2d 628 (1998); City of Milwaukee v. State, 193 Wis. 423, 214 N.W. 820 (1927); Hilton v. DNR, 2006 WI 84, ¶ 19, 293 Wis. 2d 1, 717 N.W.2d 166.
5 Wis. Stat. §§ 281.11, 281.12.
6 Hilton, 2006 WI 84, ¶ 20, 293 Wis. 2d 1.
7 State v. Deetz, 66 Wis. 2d 1, 13, 224 N.W.2d 407 (1974); Gillen, 219 Wis. 2d at 821; Wis. Stat. § 30.294.
8 See State v. Village of Lake Delton, 93 Wis. 2d 78, 93-96, 286 N.W.2d 622 (Ct. App. 1979); see alsoState v. Bleck, 114 Wis. 2d 454, 466, 338 N.W.2d 492 (1983) (“Although the public trust doctrine safeguards interests of all members of the public in navigable waters, Wisconsin has also recognized the existence of certain common law rights that are incidents of riparian ownership of property adjacent to a body of water.”).
9 Doemel v. Jantz, 180 Wis. 225, 234-35, 193 N.W. 393 (1923).
10 Pewaukee v. Savoy, 103 Wis. 271 (1899); Turkow v. Wisconsin DNR, 216 Wis. 2d 273, 576 N.W.2d 288 (Ct. App. 1998).
11 Doemel, 180 Wis. at 234. See also Wis. Stat. section 30.134, which allows a person to use exposed shore as necessary to exit a waterbody or bypass an obstruction.
12 R.W. Docks & Slips v. State, 2001 WI 73, ¶ 19; State v. McDonald Lumber Co., 18 Wis. 2d 173, 176, 118 N.W.2d 152 (1962) (“state’s title to the lakebed runs to a line which is called the ‘ordinary high-water mark.’”).
13 State v. McFarren, 62 Wis. 2d 492, 498-99, 215 N.W.2d 459 (1974); Godrey Co. v. Lopardo, 164 Wis. 2d 352, 474 N.W.2d 786 (Ct. App 1991); Wis. Admin. Code § NR 326.07(3).
14 Illinois Steel Co. v. Bilot, 109 Wis. 2d 418, 425, 84 N.W. 855 (1901) (“The title to the beds of all lakes … up to theline of ordinary high-water mark, within the boundaries of the state, became vested in it at the instant of its admission into the Union, in trust to hold the same so as to preserve to the people forever the enjoyment of the waters of such lakes, ponds, and rivers,…”) (emphasis added).
15 Doemel, 180 Wis. at 234. On the other hand, where fill has occurred but the land is still below the OHWM and the site remains hydrologically connected to the lake, accretion and reliction do not apply. State v. Trudeau, 139 Wis. 2d 91, 109, 408 N.W.2d 337 (1987).
16 De Simone v. Kramer, 77 Wis. 2d 188, 252 N.W.2d 653 (1977); Heise v. Village of Pewaukee, 92 Wis. 2d 333, 285 N.W.2d 859 (1979); W.H. Pugh Coal Co. v. State, 105 Wis. 2d 123, 312 N.W.2d 856 (1981); Jansky v. City of Two Rivers, 227 Wis. 228, 278 N.W. 527 (1938); Angelo v. Railroad Comm’n, 194 Wis. 543, 217 N.W. 570 (1928).
17 FAS LLC v. Town of Bass Lake, 2007 WI 73, 301 Wis. 2d 321, 733 N.W.2d 287.
18 Muench v. Public Serv. Comm’n., 261 Wis. 492, 503, 53 N.W. 2d 514 (1952).
19 Dane County, Wisconsin, is named for Nathan Dane.
20 This history was detailed in several cases. See, e.g.,Nekoosa Edwards Paper Co. v. Railroad Comm’n, 201 Wis. 40, 228 N.W. 144 (1929).
21 Olson v. Merrill, 42 Wis. 203, 212 (1877).
22 Willow River Club v. Wade, 100 Wis. 86, 99, 76 N.W. 273 (1898).
23 1911 Wis. Laws, ch. 652. The current version of this law is found in Wis. Stat. section 30.10.
24 State v. Kelley, 2001 WI 84, ¶ 30, 244 Wis. 2d 777, 629 N.W.2d 601; DeGayner & Co. v. DNR, 70 Wis. 2d 936, 236 N.W.2d 217 (1975).
25 56 Wis. 2d 7, 201 N.W.2d 761 (1972).
26 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 43.
27 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611.
28 2013 WI 74, ¶ 77, 350 Wis. 2d 45, 833 N.W.2d 800.
29 SeeLake Beulah Mgmt. Dist., 2011 WI 54, ¶ 39, 335 Wis. 2d 47 (“We conclude that, through Wis. Stat. ch. 281, the legislature has explicitly provided the DNR with the broad authority and a general duty, in part through its delegation of the State’s public trust obligations, to manage, protect, and maintain waters of the state.Wis. Stat. §§ 281.11, 281.12.”).
30 The term “waters of the state” was originally defined in 1911 in the context of the obligations of the State Board of Health to combat water pollution. See 1919 Wis. Laws ch. 447, § 1407 m-1(1)(a) defining waters of the state to include: “all lakes, bays, rivers, streams, springs, ponds, wells and bodies of surface or ground water, whether natural or artificial within the boundaries of this state or subject to its jurisdiction.” That language with minor modification is now in use in Wis. Stat. section 281.01(18).
31 If the term “navigable waters” is eventually defined either by the legislature or the courts to include a broader set of waters, it will not be the first time. In the Clean Water Act, the term navigable waters is defined as “waters of the United States,” which includes some nonnavigable waters. See 33 U.S.C. § 1362(7); 42 C.F.R. § 230.3(s). This “waters of the United States” definition has been a matter of controversy for many years.
32 See, e.g., Mill Dam Act of 1840, Laws of 1840 No. 48; the laws governing “rivers and floats” in the late 1800s; Rev. Statutes of 1858 Chapter 43 “Of Timber and Lumber Floating Upon Waters or Carried Upon Adjoining Lands;” Water Power Acts (1911-1915).
33 SeeMovrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807 (citing Diana Shooting Club v. Husting, 156 Wis. 2d 261, 145 N.W.2d 816 (1914)).
34 SeeWillow River Club v. Wade, 100 Wis. at 102; Nekoosa-Edwards Paper Co., 201 Wis. at 47.
35 Muench, 261 Wis. at 521.
36 2001 WI 73, 244 Wis. 2d 497, 628 N.W.2d 781.
37 Examples of sources of authorizations to place fill in navigable waters include permits under Wis. Stat. chapter 30, changing of stream courses under Wis. Stat. section 30.195, fill behind a bulkhead line established under Wis. Stat. section 30.11, submerged land leases under Wis. Stat. section 24.39(4), and lakebed grants issued by the state legislature.
38 For an interesting history of the filling of significant portions of the Lake Michigan lakefront in Chicago, see Joseph D. Kearney and Thomas W. Merrill, Lakefront: Public Trust and Private Rights in Chicago, which is reviewed in this month’s publication. [See the “Shelf Life” column elsewhere in this issue.]
39 See, for example, Wis. Stat. section 30.195, which allows for the relocation on navigable streams, for the purpose of promoting economic interests.
40 103 Wis. 537, 79 N.W. 780 (1899).
41 City of Milwaukee v. State, 193 Wis. 423, 214 N.W. 820, 830 (1929).
» Cite this article: 95 Wis. Law. 26-32 (Sept. 2022).