I think a person can still be pro public land and pro private land at the same time?
Don’t you have a decent piece of private property?
A loss for the PTD
- Thread starter seeth07
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I think a person can still be pro public land and pro private land at the same time?
Don’t you have a decent piece of private property?
If it goes uncontested, then this lower court judge decision does define limits on what WI law says. If contested, and any citizen likely has standing to contest it, it might not hold up.
seeth07
Well-known member
Wouldn't it be great if you could? In WI, we have those rights.
To me it doesnt sound like the judge redefined the rule. Law clearly states ORDINARY high water mark. An extraordinary flood is not ordinary.
Or are all floods ordinary for high water mark purposes? What happens when the flood changes the landscape permanently? This will be interesting to watch.
Or are all floods ordinary for high water mark purposes? What happens when the flood changes the landscape permanently? This will be interesting to watch.
BrentD
Well-known member
Exactly
What is so hard to understand about any of this?
I own a chunk of nabitable river. And people use it in accordance with the highwater marks. As normally perceived it's not a flood line.
Isn’t that even a wild argument? To be allowed on peoples property if it’s flooded?
Soon as that hits someone’s doorstep, congratulations, now we’ve got to deal with squatters rights.
When’s the madness end?
seeth07
Well-known member
The WI Supreme Court ruling states in defining what ordinary high water mark is:
"The area where the presence and action of surface water is so continuous as to leave a distinctive mark such as by erosion, destruction or prevention of terrestrial vegetation, predominance of aquatic vegetation, or other easily recognized characteristic".
seeth07
Well-known member
This new judge ruling is not about the OHWM though. It is about what happens when the water is higher than the OHWM.
Per the WDNR: "As a member of the public you need not worry about the location of the OHWM as long as you stay in the water. If you are navigating a water body and come across an obstruction you are allowed a reasonable portage, using the shortest distance possible, to go above the OHWM around the obstruction."
This is what was challenged and the judge ruled that this language is not correct interpretation of the Public Trust Doctrine.
Per the WDNR: "As a member of the public you need not worry about the location of the OHWM as long as you stay in the water. If you are navigating a water body and come across an obstruction you are allowed a reasonable portage, using the shortest distance possible, to go above the OHWM around the obstruction."
This is what was challenged and the judge ruled that this language is not correct interpretation of the Public Trust Doctrine.
Addicting
Well-known member
Can a private landowner change "distinctive" marks? Are floods above the OHWM continuous?
WDNR interpreted the law wrong IF the judges ruling is upheld after its likely appealed. Case law like this interests me. Will be a while before its settled.
I predict that it will be challenged and will become a fascinating battle royale.
This will be (and already has been) a very interesting case study into how one’s personal perspective into the public trust doctrine is influenced by the level of impact an issue presents to them personally.
Jorgy
Well-known member
So many childhood great memories of canoeing the flood zones of the Chippewa river and it's tributaries. I can understand someone getting pissed that a airboat is now closer to their home, those things are a menace to anyone not on them. As usual, one douche bag ruins it for everyone.
BrentD
Well-known member
Isn't that sort of like saying, "Water is wet?"
seeth07
Well-known member
Yes, I am a private property owner with a navigable waterway in which the public has direct access to use if they so chose. It isn't a very large body (its a stream about 20 feet wide) and I haven't seen anyone use it but they technically can.
boy, wouldn't it be great. they've tried and tried. there is a still standing supreme court decision in 1979 that didn't even allow floating - an AG opinion then opened the door for floating but not wading.
but it ain't happening and for the opposite reasons. out here there is an enormous can of worms if we went in the other direction. the reasons are largely due to western water law, which is a completely different entanglement of public resources as it relates to private property, navigable water, and the publics interest in these waterways. out here there is no established public trust as it relates to navigable waters, and this is the crux of it.
i'm not saying i agree entirely because i'm very pro public access. but as a water resources professional in colorado i do get why even our ultra democratic AG under Gov Polis was against it in the recent case that made it to the supreme court in 2022. reading both of these articles entirely will provide good context.
i would like to see the legislature step in on this. but like i said, it's an entirely different, and very big can of worms out west, legally speaking.
Colorado Supreme Court considers historic case that could broaden public access to rivers and upset years of water law - Water Education Colorado
The Colorado Supreme Court heard this month the case, years in the making, of an angler seeking river access that could have wide-reaching implications for public access to wade and fish certain river stretches in Colorado. Beyond expanding or restricting fishing access, the court’s decision...
Colorado Supreme Court ends fisherman’s right-to-wade argument
When a landowner hurled rocks at Roger Hill for wading and fishing in the Arkansas River, the octogenarian angler sued, arguing the river was navigable when Colorado became a state in 1876 and therefo...
Scott85
Well-known member
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My question is it seasonally flooded or only a couple times a year?
I know some duck hunters in WI still, will you post some coordinates so they can take advantage of this opportunity?
VikingsGuy
Well-known member
This judge made a reasonable ruling and objections are silly. It is a flood for goodness sake, not a outdoorsman's opportunity. If the flood entered your basement and someone's "feet remained wet" as they entered, can they just walk around your home? To say floods make all private property into public property as long as there is a half-inch of standing water is the same kind of extreme take on legal issues that resulted in the trespassing over corner's doctrine - "but they trespassed for 2 seconds on my airspace your honor" . . . . Common law needs common sense to work - something we have a hard time finding these days.
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