Letter to the Editor: Feeling Confident for Favorable State Court Decision

This letter is in response to the recent ruling by the Federal District Court to dismiss the lawsuit against the City of Sturgeon Bay brought by the Friends of the Sturgeon Bay Public Waterfront. Representatives of the city have claimed that the decision establishes that the Friends, and Wisconsin citizens generally, do not have property rights in the waterfront hotel parcel that can be protected under state law. This is an overly broad interpretation of the federal court’s decision.

The federal court’s decision narrowly responds to only one of three claims brought by the Plaintiffs and expressly declines to rule the remaining two claims. Attorney Nesbitt was quoted in the Advocate as stating, “The judge made it difficult to turn this into a state court action.” In fact, the ruling judge stated: “This case raises complex questions of state law which are important to both the State of Wisconsin and its citizens. Questions of local land use governed by state law are particularly appropriate for resolution by state courts.”

Wisconsin courts have made it crystal clear that citizens have the right to sue to protect public trust lands, and more than a century of Wisconsin case law strongly protects those public property rights. Wisconsin courts have repeatedly recognized that “the Public Trust Doctrine establishes standing for the State, or any person suing in the name of the State, for the purpose of vindicating the public trust. Any person suing in the name of the State may assert such a cause of action recognized by existing law.”

The city’s representatives have also claimed that they requested that the DNR make an Ordinary High Water Mark (OHWM) determination on the entire hotel parcel, which DNR declined to do. These remarks seem calculated to imply that DNR’s more limited determination represents a “green light” for the city’s sale of the property for private development. The DNR’s non-decision does not represent a finding that the property is located above the OHWM, nor does DNR have any power to authorize the sale of public trust property. The DNR’s regulatory authority over navigable waters is simply not the equivalent of the legislature’s authority. The lawsuit is based on the fact that (1) the property for the proposed hotel is below the OHWM, as shown on historic maps and through recent testing, and therefore belongs to the public, and (2) only the legislature can authorize a transfer of public trust property, which it has not done.

Historically, the legislature and the Wisconsin courts have jealously guarded the rights of citizens to our public trust lands and water. We are therefore confident that the state court in our case will protect the rights of citizens to the public trust land of Sturgeon Bay.

Friends of Sturgeon Bay Public Waterfront

Sturgeon Bay, Wis.