99-2904 R.W. Docks & Slips v. State of Wisconsin

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Further, and again considering the property as a whole, the regulatory action in this case at most affected only the developer’s riparian right of reasonable access to the lake, which is subordinate to the public trust doctrine. Therefore, the DNR’s action did not so severely impact or interfere with the developer’s reasonable investment expectations as to constitute an unconstitutional taking under traditional, ad hoc takings analysis.

Plaintiff retains the benefit of all or substantially all of its property – including over 200 boat slips and various recreational facilities associated with the marina onshore. Only 71 slips are prevented by the dredging permit denial.

The DNR acted primarily to protect an emergent weedbed on behalf of the public, and secondarily, to prevent interference with the rights of neighboring riparian owners. Reasonable minds can differ about whether governmental protection of weedbeds is of such a character as to outweigh private property interests. But the state, not the marina developer, holds title to the lakebed, and therefore, to the extent that a private property interest is implicated here, it is riparian only and therefore qualified in nature, encumbered by the public trust doctrine.

We affirm summary judgment for the DNR on plaintiff’s claims for regulatory taking without just compensation.

Affirmed.

Review of a Decision of the Court of Appeals, Sykes, J.

Attorneys:

For Appellant: Jason W. Whittley, Amery

For Respondent: JoAnne F. Kloppenburg, James E. Doyle, Madison