99-2306 ABKA Limited Partnership v. DNR

Listen to this article

“The DNR may allow individuals to place docks in the water for access and reasonable use of the water by issuing permits but may not allow the passing of title to the water… Navigable waters unquestionably belong to the people, and to allow private individuals to claim the dockominium slip space or the water within the slip as a property interest is violative of the public trust doctrine. By permitting the conversion of marinas to private dockominiums as ABKA proposed here, the DNR has allowed control over public trust lands to be vested in private individuals, in violation of the public trust doctrine.

“A boat slip is by definition the water and lake bed between two piers; but no one but the state can own the water and the lake bed. Riparian owners do not possess water in a lake, but only the right to reasonable use of the water in the lake; ‘[r]iparian owners acquire at most the usufructuary right to water based on possession or dominion, but not outright ownership of the water.’

ABKA’s dockominium proposal allows ABKA and the Association to transfer ownership of public waters to private individuals and therefore is in direct conflict with the public trust doctrine.

We therefore reverse the order of the circuit court affirming the ALJ’s decision granting ABKA a Wis. Stat. ch. 30 permit.

Order reversed.

Recommended for publication in the official reports.

DISSENTING OPINION: Brown, J. “There is nothing inherently wrong or illegal about taking a piece of riparian land and selling it in condominium form so that the end result is many owners of that land. There is nothing inherently wrong with these owners sharing common access to the water and assigning between themselves who is going to get which boat slip. It is not as if the riparian rights are increased by increasing the number of owners. The riparian rights remain the same and those rights are regulated by the DNR. I fail to see how that violates the public trust doctrine… The bottom line is that a change in ownership is not a violation of the public trust doctrine and that is all this is: a change in ownership from one big hotel concern to many different persons who own big boats.”

Dist II, Walworth County, Gibbs, J., Snyder, J.

Attorneys:

For Appellant: Waltraud A. Arts, Madison; Winston A. Ostrow, Green Bay; Donald L. Romundson, Green Bay

For Respondent: John S. Greene, Madison; Peter B. King, Fontana; Lawrence R. Heath, Rhinelander