Wisconsin judge won’t allow boaters on flooded private property

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JEFFERSON, Wis. (AP) — The public’s right to use flooded rivers, lakes and streams ends where the water normally stops, a Wisconsin judge ruled Monday.

Jefferson County Circuit Judge Bennett Brantmeier‘s decision limits the reach of the public trust doctrine, provisions in the state constitution that guarantee public access to navigable waters.

The ruling stems from a lawsuit Thomas Reiss of Ixonia filed last year. He argued in the filing that his land abuts the Rock River. He alleged that when the river floods airboat users take advantage of the higher water levels to trespass across his land.

He challenged state Department of Natural Resources policies that state the public trust doctrine grants access rights to any part of a navigable waterway as long as the person remains in the water. Reiss argued that interpretation was illegal and public access ends at the ordinary high-water mark, a point on the bank or shoreline where the water regularly stops. He contended that the DNR’s position has left law enforcement confused.

Online court records indicate Brantmeier found the DNR’s policy unlawful and invalid. He ordered the DNR to revoke that policy and issue proper guidance through the state’s formal administrative rule-making process.

DNR officials had no immediate comment.

The ruling gave a long-sought remedy to Reiss, Jr., a Jefferson County resident and Reinhart client, who had complained in vain to law enforcement and the DNR about repeated, egregious trespass on his property by airboat operators and others, who traveled far beyond the OHWM of the Rock River to access parts of his property temporarily submerged by high water.

According to Reinhart officials, the Court noted that the DNR did not contradict any of Reiss’s factual accounts of the harm the DNR rule and guidance had caused, including how the trespassing boaters made excessive noise, light and recklessly fired guns in late-night darkness and how the Jefferson County Sheriff had not issued trespass citations.

Beyond Reiss, the ruling clarifies private property rights and the rights of the public for all citizens of Wisconsin, according to Reinhart officials.

“I am pleased that the Court’s ruling should now allow law enforcement to stop the harm I’ve been experiencing,” Reiss, “but I felt I needed to act because so many others have told me they’ve experienced similar harm.” Reiss is also pleased that the ruling will also curb harm to wildlife, including eagles, deer, herons, cranes, ducks and geese, on Reiss’s property and similar land statewide.

Reiss welcomes members of the public and respects their rights to use the Rock River along his property in accordance with long-established law.  The decision will have no impact on those boaters, fishermen and others who act courteously and use state waters in accordance with the law, including noise limits. On the contrary, Reiss believes this decision will enhance the public’s right to peaceful enjoyment of public waters throughout the state, and he has received many positive comments from citizens for addressing this issue.

“It is unfortunate that a very small minority of egregious actors required me to ask the court to confirm the law,” Reiss continued.  “And it is disappointing and a bit ironic that while the DNR generally bans airboats on lands and waters including wetlands within the boundaries of state parks, the DNR suggested in this case that I was trying to diminish the rights of the public to operate such boats in my backyard and fields.”

Judge Brantmeier invalidated the DNR’s “Feet Wet” rule and related guidance, and he ruled that he will enter a permanent injunction against DNR requiring the DNR to rescind or correct the guidance and remove it from DNR’s website. The Court further noted that if the DNR wishes to enact a new rule, DNR must follow the required rulemaking process, which would include a public hearing for all interested parties.

The Reinhart team included shareholders David Hanson and Jessica Polakowski, and attorney Samuel Sylvan. Additional support was provided by shareholders Troy Giles and Anthony Handzlik.

Wisconsin Law Journal staff contributed to this report.