A loss for the PTD

[Addicting]

There are those who believe the whole world flooded at one point.

But, I suppose we have bigger problems than trespassing if that were to happen again.

 

[seeth07]

My question is it seasonally flooded or only a couple times a year?

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.

I may have to drive by there after work today and take some photos to really paint the picture of this particular case.

The rock river highly fluxuates throughout the year. There are numerous small dams along its path from the Horicon Marsh where it basically starts and flows south for the first 30-50 miles. The entire area is comprised of large vast cattail marshes which have significantly been destroyed over the last few decades due to growing urban areas and greedy farming practices installing drain tile. The loss of this habitat has significantly reduced "natures sponge" to absorb heavy rainfalls and as a result, the rock river now constantly floods with major rain events. Its ordinary high mark is rising and Mr. Reiss doesn't want to accept that his "private" duck marsh is now not so private.

Last fall, I did waterfowl hunt just north of his place using the boat launch from that onX snip. We were in an extreme drought but you still even at that water level, leave the "channel" of the river and venture to hunt a lot of that private property that is under water.

 

[Forkyfinder]

Good post @seeth07

I feel like this takes what was a simple rule and makes it complicated. The "high water mark" likely isn't understood to be the exact same place to 3 different people. Particularily a LEO, a landowner, and someone using public land/water.

 

[seeth07]

Good post @seeth07

I feel like this takes what was a simple rule and makes it complicated. The "high water mark" likely isn't understood to be the exact same place to 3 different people. Particularily a LEO, a landowner, and someone using public land/water.

On a lake, its pretty easy and easily understood. Even main rivers its generally pretty easy because the land between the high water mark isn't private land but rather a government entity. Its the small rivers and streams and marshes were it is much more difficult to determine the high water mark - especially when it gets argued about whether or not cattails are considered a "terrestrial plant".

 

[thomas89]

Its ordinary high mark is rising and Mr. Reiss doesn't want to accept that his "private" duck marsh is now not so private.

Last fall, I did waterfowl hunt just north of his place using the boat launch from that onX snip. We were in an extreme drought but you still even at that water level, leave the "channel" of the river and venture to hunt a lot of that private property that is under water.

I am still waiting for you to post access to your “private” Duck marsh. Or do you not want to accept that?

Do you not see the hypocrisy in that? Or complaining about someone flying a plane too close/too early to your place? Maybe like these guys don’t want boats and shotguns going off at first light next to their place. Weird how you should have a soapbox to voice your complaints, but when someone else does, they become a problem.

 

[Treeshark]

One aspect of this that I am interested in is the teeth that our Wisconsin State Constitution actually has- the existing rights were outlined (clearly or unclearly?) in article IX I believe- perhaps one of HT lawyers would have more insight?

@VikingsGuy, @Elky Welky- not asking for you guys to do my homework, but would be interested to hear your thoughts on the state constitution angle.

 

[Forkyfinder]

On a lake, its pretty easy and easily understood. Even main rivers its generally pretty easy because the land between the high water mark isn't private land but rather a government entity. Its the small rivers and streams and marshes were it is much more difficult to determine the high water mark - especially when it gets argued about whether or not cattails are considered a "terrestrial plant".

Yup!

I am still waiting for you to post access to your “private” Duck marsh. Or do you not want to accept that?

Do you not see the hypocrisy in that? Or complaining about someone flying a plane too close/too early to your place? Maybe like these guys don’t want boats and shotguns going off at first light next to their place. Weird how you should have a soapbox to voice your complaints, but when someone else does, they become a problem.

I mean i dont see the hypocrisy? Its a big gray area - especially with seasonal flows increasing on urbanized small streams. Theres not a great way to deal with it to preserve property rights of the landowner or public land user. Which is why its a topic worth discussing? I must have missed where he said he wants access to someones closet because their house flooded.

 

[seeth07]

I am still waiting for you to post access to your “private” Duck marsh. Or do you not want to accept that?

Do you not see the hypocrisy in that? Or complaining about someone flying a plane too close/too early to your place? Maybe like these guys don’t want boats and shotguns going off at first light next to their place. Weird how you should have a soapbox to voice your complaints, but when someone else does, they become a problem.

I'm on county road E in Fond du Lac county. 1 mile east of the western county line. In Wisconsin, you can legally use only a county road row for public access to water and the water behind my place crosses county road E. Find that and canoe the few hundred yards right to my duck blind and I'll welcome you in and we can shoot the shit

 

[seeth07]

One aspect of this that I am interested in is the teeth that our Wisconsin State Constitution actually has- the existing rights were outlined fairly clearly in article IX I believe- perhaps one of HT lawyers would have more insight?

@VikingsGuy, @Elky Welky- not asking for you guys to do my homework, but would be interested to hear your thoughts on the state constitution angle.

Here is the actual language from the WI constitution:

Wisconsin Legislature: ARTICLE IX.

docs.legis.wisconsin.gov

 

[Treeshark]

Here is the actual language from the WI constitution:

Wisconsin Legislature: ARTICLE IX.

docs.legis.wisconsin.gov

I read it- but what does it mean? That’s where this will get interesting.

 

[Treeshark]

Its a big gray area - especially with seasonal flows increasing on urbanized small streams.

I agree with your point on this overall, but I would contend that it wasn’t actually “gray” from a legal perspective- if you’re in water connected to a navigable waterway and your feet are in water, good to go.

Whether that is right, wrong or otherwise is certainly debatable- but for the most part, it was pretty clear.

 

[seeth07]

I read it- but what does it mean? That’s where this will get interesting.

"and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free"

It really comes down to what does "carrying places between the same" mean. The Supreme court ruling in 1914 determined that a person hunting within the OHWM was free to do so. That isn't what is being challenged by this case.

I believe this case is the first challenging the legality of outside the OHWM based on the regulation set forth by the state regarding its definition of a navigable waterway and the freedom to move on water anywhere regardless of the OHWM.

 

[Treeshark]

I will add- I would bet money that there is someone connected to a private duck club involved in this somehow. It usually seems to be those guys that have the issues.

 

[seeth07]

I will add- I would bet money that there is someone connected to a private duck club involved in this somehow. It usually seems to be those guys that have the issues.

I don't think its an official "club" but there are absolutely duck blinds and people that hunt directly north on and by this guys property. I have typically traveled another mile further up the river to get away from some of the pressure by people launching there but I would be hunting very similar areas where I'm hunting over private land under me.

 

[Treeshark]

Watch for an impoundment, rock wall/diversion, etc… to go up in the next few years. I have seen this one play out before…

 

[VikingsGuy]

One aspect of this that I am interested in is the teeth that our Wisconsin State Constitution actually has- the existing rights were outlined (clearly or unclearly?) in article IX I believe- perhaps one of HT lawyers would have more insight?

@VikingsGuy, @Elky Welky- not asking for you guys to do my homework, but would be interested to hear your thoughts on the state constitution angle.

Article IX appears focused on "navigable waters" and waters which form common borders with other states. You could probably fill several text books on what constitute "navigable waters", but it certainly requires more than "wet feet".

 

[Treeshark]

You could probably fill several text books on what constitute "navigable waters", but it certainly requires more than "wet feet".

That’s what the conclusion I came to as well reading that.

Uphill climb- it will be interesting to see who/what money jumps on board for both sides.

 

[thomas89]

Its a big gray area - especially with seasonal flows increasing on urbanized small streams.

I think it's intentionally being grayed for peoples benefit. OHWM is very easy to tell on most bodies of waters I've ever been on. Even on OnX, that river is very clearly outlined ... probably by the OHWM. Anyone stating otherwise is full of it.

The hypocrisy lies in getting irritated for someone standing up for their perceived rights (peace and quiet from airboats) on their own private land, while also demanding that certain perceived rights (peace and quiet from airplanes) be upheld on their own land.

I GUARANTEE if I were to go float and ground swat ducks in the ditch that he'd be posting about how it's BS that I'm allowed to do that and ruined his morning in the blind.

Again, having hunted a great deal of sheet water and seeing the big business it is becoming, there's no way that this law stays "two feet wet"/as vague as it is.

 

[Forkyfinder]

I agree with your point on this overall, but I would contend that it wasn’t actually “gray” from a legal perspective- if you’re in water connected to a navigable waterway and your feet are in water, good to go.

Whether that is right, wrong or otherwise is certainly debatable- but for the most part, it was pretty clear.

i should have said has became a gray area. Stream rights and Montana have a complicated history - so im watching with a touch of fear.

 

[seeth07]

Article IX appears focused on "navigable waters" and waters which form common borders with other states. You could probably fill several text books on what constitute "navigable waters", but it certainly requires more than "wet feet".

read here regarding that:

Stream access laws | Fishing Wisconsin | Wisconsin DNR

dnr.wisconsin.gov