2008AP2537 Citizens for U INC., et al. v. DNR, et al., Dist. IV, Vergeront, J., Wood County, Mason, J.

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Natural Resources
Abandonment; replacement public access; public trust doctrine

The DNR reasonably construed and applied its own regulations regarding abandonment of property and replacement public access to navigable waters, and it did not violate the public trust doctrine.

"Citizens for U contends that it is unreasonable to accept the Kubisiak Islands as a component of replacement public access because they are not reasonably similar to the public access afforded by the disputed portion of the highway, they are not functionally equivalent, and they are not in reasonable proximity. … [W]e conclude that DNR's decision reasonably interprets and applies its regulations and that its decision is supported by substantial evidence.

'The DNR decision credits the testimony of DNR employees who considered the abandonment proposal and compared the quantity and quality of the existing public access with the quantity and quality of the proposed replacement public access. One of the DNR employees stated that quality includes 'the uses of an access-walking/driving along the shore, viewing scenic beauty, shore-fishing, entry to the waterway for boating, skiing, fishing, ice fishing, swimming, snowmobiling, etc.-and any amenities (piers, boat ramps, trails, adequate parking, viewing corridors, etc.) or other factors (e.g., topography) associated with the access that facilitate or hamper such uses.' The approach of the DNR employees, adopted in the decision, was to determine whether, taken as a whole, the total replacement public access is at least equivalent to the total existing public access sought to be abandoned.

"The evident purpose of WIS. ADMIN. CODE § NR 1.92(2) and (3) is to ensure that highway abandonments under WIS. STAT. § 66.1006 do not take place unless the benefit of public access to navigable waters that is lost is replaced by public access that is at least the equivalent of what was lost. DNR's construction-comparing as a whole the total lost public access, quantity and quality, to the total replacement public access-is a reasonable construction of these provisions and one that is consistent with the purpose. Nothing in the language of § NR 1.92 requires that DNR consider separately each component of the replacement public access or that DNR further define 'replacement public access' as Citizens for U proposes. …

"In Town of Linn we did not purport to direct how DNR should exercise its authority in applying its regulations that relate to public access to navigable waters, and we did not even address what constitutes replacement public access. We have already concluded that DNR reasonably construed and applied WIS. ADMIN. CODE § NR 1.92(2)(a) and (3) based on substantial evidence. There is nothing in Town of Linn or the public trust doctrine that would permit us nonetheless to set aside the DNR decision."

Affirmed.

2008AP2537 Citizens for U INC., et al. v. DNR, et al., Dist. IV, Vergeront, J., Wood County, Mason, J.

Attorneys: For Appellant: Bolton, Richard L., Madison; Kobza, Lawrie J., Madison; For Respondent: Sweeney, Charles V., Madison; Lubinsky, Lori M., Madison

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