Two articles in this issue of
Wisconsin Lawyer discuss the public trust doctrine, under which Wisconsin’s navigable waters are held for the benefit of the public. The resources in this column will help lawyers learn more about the general scope and principles of the public trust doctrine and make predictions about application of the doctine to new conditions. All resources listed in this article are available at a Wisconsin law library, freely available online, or in a legal database.
Secondary Resources
Many of the resources and approaches described in
Legal Resources: Researching Wisconsin Water Law in the May 2022 issue of
Wisconsin Lawyer offer starting points for research about the public trust doctrine. Consider searching using the phrase “public trust doctrine” or using that term in indices and other finding tools, when available, to narrow your research. Though the public trust doctrine is not a separate subject-matter heading in many library catalogs, it is a heading in the index of many secondary sources.
Treatises
David Callies,
Regulatory Takings After Knick: Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes ch. 2 (Am. Bar Ass’n 2020).
Jason Anthony Robison & Anthony Dan Tarlock,
Law of Water Law Rights & Resources (Thomson Reuters): Available in print and in Westlaw, this treatise is updated annually. See chapter 8 or use the heading “Public Water Use Rights” in the index to find “public trust.”
Joseph D. Kearney & Thomas W. Merrill,
Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). Consult the index entry for “public trust and public trust doctrine.”
Waters and Water Rights (Amy K. Kelley ed., 3rd ed. Matthew Bender) is a multivolume treatise in loose-leaf and in Lexis. See chapter 30 and use the index (print) or search to find relevant discussion elsewhere.
Wisconsin-Focused Secondary Resources. The sources in this section focus on the public trust doctrine in Wisconsin. All provide citations to Wisconsin law.
Wis. Legis. Council, IssueBrief,
The Public Trust Doctrine (Oct. 2010),
https://docs.legis.wisconsin.gov/misc/lc/issue_briefs/2019/environment_and_natural_resources/ib_public_trust_doctrine_ah_2019_10_01.
Zachary Wyatt, Wis. Legis. Reference Bureau,
The Public Trust Doctrine, in
Reading the Constitution, vol. 5, no. 4 (Aug. 2020),
https://docs.legis.wisconsin.gov/misc/lrb/reading_the_constitution/public_trust_doctrine_5_4.pdf.
Paul Kent, Wisconsin Water Law in the 21st Century: Understanding Water Rights and Regulations (Madison, WI: Lake Mendota Publishing LLC 2013). See section 1.02, with related coverage in other portions.
Journals and Periodical Databases. From journal articles to newsletters to blogs, commentary on the public trust doctrine is extensive. “Public trust doctrine” provides an efficient starting point for a search in full-text databases such as Hein Online’s Law Journals Library or repositories including the Marquette Law Scholarly Commons (https://scholarship.law.marquette.edu/) and the University of Wisconsin Law School Digital Repository (https://repository.law.wisc.edu/). It is also a subject entry in legal periodical indexes (Index to Legal Periodicals, LegalTrac).
Wisconsin Primary Law
Wisconsin Constitution. The public trust doctrine is in article IX, section 1 of the Wisconsin Constitution.
Wisconsin Case Law. Topical case-finding methods in Lexis, Westlaw, and print digests provide targeted approaches to finding authority, as does working with headnotes if they are available. In Lexis, browse topics to find Environmental Law > Natural Resources & Public Lands > Public Trust Doctrine, OR Governments > Public Lands > Public Trust Doctrine. In West’s Key Number Digest system, look for the topic “Water Law” (numerically in Westlaw as 405). Within “Water Law,” multiple key numbers are potentially relevant. See, for example: k2651 (“title and rights held in public trust” within the “ownership by state”), k2519 (“title and rights held in public trust” within “navigability in general”), and k1011 (“trust imposed on public waters in general”).
Working with annotated versions of the Wisconsin Constitution is another method to locate Wisconsin cases involving the public trust doctrine. Annotations following the text of article IX, section 1 are organized in chronological order. In the print
West’s Wisconsin Statutes Annotated and in Westlaw, representative topical “catchlines” of interest for Notes of Decisions for the section include “Intent, Construction and Application” and “Navigable Waters – Trusteeship.” In Lexis, access Case Notes for the section to find topics including “Environmental Law: Natural Resources & Public Lands: Public Trust Doctrine.”
Water Law Series Published Pieces (to Date)
Articles
Water, Water Everywhere: 50 Years of the Clean Water Act and Beyond, by Paul G. Kent, 95 Wis. Law. 22 (April 2022). Wisconsin has the third highest number of natural lakes of U.S. states but keeping these and other water resources clean and equitably available for all users is a challenge that increases by the day. Learn here about the basics of Wisconsin’s water laws and the issues that are catalysts for disputes about water use.
SIDEBAR: Series Debut on Water Law, by Joe Forward
BRIEFLY: Partnership for Corporate Water Stewardship
The Challenge of Wisconsin’s Water Abundance: Managing Stormwater in a Watershed Context, by Paul G. Kent, Erin O’Brien & Tracy Hames, 95 Wis. Law. 20 (May 2022). To effectively manage stormwater quantity and quality, we need to do so in the context of watersheds and hydrologic processes rather than as a series of discrete issues and programs.
Plugging the Holes in Wisconsin’s Groundwater Policy, by Prof. David A. Strifling, 95 Wis. Law. 40 (June 2022). Separate laws on groundwater and surface water withdrawal and the lack of a fully integrated regulatory scheme for high-capacity wells have more often led to conflict and uncertainty than to clarity. Wisconsin’s groundwater management regime is developing but still has gaps. The author discusses groundwater quantity and quality, the public trust doctrine, and interstate disputes.
Water Law Perspectives from the West, by Gregor MacGregor, 95 Wis. Law. 32 (July/August 2022). Understanding the backdrop of scarcity, the perceived stability surrounding property rights, and the value of water in a dry land will help Wisconsin lawyers learn from the western United States and their residents.
Research Resources
Legal Resources: Researching Wisconsin Water Law, by Jenny Zook, 95 Wis. Law. 45 (May 2022). You can find water law indexed under property law, environmental law, and public health and welfare. Water is further divided by type. Here are tips to help direct your research.
Legal Resources: Researching Stormwater and Flood Management, by Carol Hassler, 95 Wis. Law. 43 (July/August 2022). Stormwater and flood management is a field that combines expert knowledge with laws and regulation at multiple levels of government. Here is a resource list that includes quick links.
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» Cite this article:
95 Wis. Law. 47-48 (Sept. 2022).
