Divided state Supreme Court limits DNR power

Listen to this article

By SCOTT BAUER

Associated Press

MADISON, Wis. (AP) – A divided Wisconsin Supreme Court on Tuesday ruled against the state Department of Natural Resources in a case that could set a precedent for how much power the DNR has over setting water levels on lakes affected by dams.

The case began in 2005 when the DNR rejected a request from the Rock-Koshkonong Lake District to raise water levels 7.2 inches on Lake Koshkonong, a 10,500 acre lake about 5.5 miles southwest of Fort Atkinson. The lake district wants to raise water levels during low periods in the summer, which supporters argued would help bolster tourism, lake access, and the value of property around the lake.

But the DNR argued that raising the levels would worsen shore erosion and cause a loss of wetland habitat at the lake. The lake district said the DNR was overstepping its legal powers in setting the water limits, and did not properly consider the economic effect of its decision.

The Supreme Court, in a 4-3 decision, agreed with the lake district and said the DNR wrongly excluded most testimony on the economic impact of lower water levels for residents, businesses and tax bases at and near the lake.

“The DNR’s exclusion of most economic evidence was inconsistent with its acceptance of competing economic evidence that helped sustain its water level decision,” Justice David Prosser wrote for the court.

When making its decision, the department also considered the impact of water levels on private wetlands adjacent to Lake Koshkonong that were above the ordinary high water mark.

But the Supreme Court said it was wrong to do that because the public trust doctrine, which provides that all navigable waters in Wisconsin are “common highways and forever free,” does not apply to private, non-navigable water located above the ordinary high water mark.

Justice Patrick Crooks, writing the dissent, said the ruling attempts to undermine the public trust doctrine, which gives the state the duty to protect, preserve, and promote Wisconsin’s waters.

“This represents a significant and disturbing shift in Wisconsin law,” Crooks said.

He also disagreed with the majority’s ruling that the excluded economic evidence should have been considered, saying it was not relevant or required.

Crooks was joined his dissent by Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley. Prosser was joined in the majority by Justices Pat Roggensack, Michael Gableman and Annette Ziegler.

The high court sent the case back to the Rock County Circuit Court with orders that the previously excluded testimony be considered when deciding whether the lake levels should be raised.

Attorney Charles Sweeney said he expects the lower court will uphold the DNR’s original decision even with the additional economic evidence. Sweeney represented the Lake Koshkonong Wetland Association and the Thiebeau Hunting Club, which supported the DNR’s ruling because they believed it would protect wetlands adjacent to the lake.

Sweeney also predicted the case, which is already eight years old, will drag on for years more as appeals are filed to the next decision by the circuit court.

The attorney for the lake district that brought the lawsuit referred requests for comments to Brian Christianson, chairman of the lake district. He did not immediately return a message seeking comment.

DNR spokesman Bill Cosh said the opinion was being reviewed and that the agency will work with the attorney general’s office on the next steps when the case goes back to circuit court.

Several environmental groups, including Clean Wisconsin, Wisconsin Wetlands Association and Wisconsin Lakes, supported the DNR’s process for protecting wetlands when making decisions about lake water levels.

An attorney for those groups had not seen the opinion and had no immediate comment.