Commentary: The Public Trust and AB 600

By Arlen Christenson

Wisconsin is blessed with beautiful and productive lakes, rivers and wetlands. Our waters abound in opportunities for boating, fishing and hunting, swimming, and enjoying scenic beauty. Best of all the waters of Wisconsin belong to us, the people of Wisconsin. The state holds them in trust solely for our benefit. It is the State Legislature’s obligation to act as trustee to preserve and improve the quality of our waters. The Department of Natural Resources (DNR) has been delegated important responsibilities for implementing this obligation. Underlying every action of the Legislature and the DNR is the fundamental fact that they act, not as owners, but as trustees for the true owners – we the people.

But, in a sweeping attack on our constitutional rights as beneficiaries of this public trust, legislators recently introduced Assembly Bill 600 which would take certain publicly owned filled lake bed and give it away to private developers. Lake bed is part of the public trust. Shoreland owners cannot just dump soil, fill in a lake and make it private property. In those limited instances where DNR appropriately authorizes lake fill, the filled land continues to belong to the public and must be used for public benefit. DNR exercises an important monitoring function with respect to lake fill and must answer important questions. Most importantly, would the development deprive the public of “public trust uses” such as navigation, fishing, hunting, swimming, enjoyment of scenic beauty, or other use and enjoyment of our public waters?

The authors of AB 600 give no recognition to the public rights in the water and lake bed fill impacted by their proposal. They ignore the constitution entirely and instead, attempt to characterize the bill as their attempt to do away with excessive “regulation” of private property. This argument fails to recognize that their legislative proposal deals with public, not private, property and has nothing to do with regulation.

Instead the bill would strip DNR of all power to consider the impact of giving public trust lands away. The DNR would be required, upon request, to give a deed to these lake beds to the bordering land owner, no questions asked. The DNR cannot even ask what development the recipient of the gift has in mind or whether it would take away or enhance the ability of the public to access our navigable waters.

While I served on the Public Intervenor Advisory Committee, it was my great privilege to represent the voice of the public when government made decisions that impacted natural resources. Since then I have remained involved in such issues. In nearly 50 years of researching, teaching and applying public trust law as a UW Professor of Law (now emeritus), Deputy Attorney General of Wisconsin and member of the Public Intervenor Advisory committee, I have seen nothing even approaching AB 600 in its complete disregard for our constitutional rights in the waters of our state. AB 600 is not only terrible public policy it is a violation of constitutional rights held by the people of Wisconsin since before statehood and enshrined in our state constitution as a condition of that statehood.

Arlen Christenson is a University of Wisconsin Law Professor Emeritus with a specialty in state environmental law who served on the state Public Intervenor Advisory Board and also is a founding and current board member of Midwest Environmental Advocates. Arlen has dedicated a lifetime of work to protecting Wisconsin’s waters and public access to shorelines.