99-1066 State v. Kelley

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“[B]ecause the issue seems to be of statewide importance, we take the unusual step of remanding the matter to the circuit court where the parties can further develop the facts and legal analysis.

Although case law seems to protect uplands from DNR jurisdiction, the case law does not establish a clear legal answer to the question presented in this case. Neither the defendants nor the State offers 1) authority for their positions, 2) legislative history to aid us in determining the intent of the legislature in interpreting Wis. Stat. sec. 30.12(1)(a), or 3) comment on the consequences to the public and the administration of chapter 30 should the Court adopt either of their interpretations of Wis. Stat. sec. 30.12(1)(a).

We reject the defendants’ constitutional challenges, involving uncompensated taking, excessive fines, and a five-year delay in enforcement, as their arguments are not fully developed and are unpersuasive.

We also reject the defendants’ claim that they were entitled to summary judgment because the water levels in the lake were higher than the permit for the dam allowed. We conclude that the dam permit did not set forth mandatory water levels.

CONCURRING OPINION: Crooks, J., joined by Bablitch, J., Wilcox, J. On remand, the issue is better stated as follows: “What is the interrelationship between navigability-in-fact and a body of water’s OHWM as these terms pertain to liability under Wis. Stat. secs. 30.12(1)(a), 30.15(1)(a), and 30.15(1)(d)?” The majority’s statement of the issue seems to assume that there was water covering a portion of the road at the time the fill was deposited, even though the parties dispute whether this was the case.

Even though the information presented here does not support a regulatory takings claim, we should make it clear that we do not categorically foreclose the possibility that the failure to maintain water levels pursuant to a dam permit and order could form the basis of a valid regulatory takings claim.”

Reversed and remanded.

Review of a Decision of the Court of Appeals, Abrahamson, C.J.

Attorneys:

For Appellant: Richard J. Weber, Wausau

For Respondent: Steven E. Tinker, Asst. Attorney General