If someone is actually rolling up on this dude during a flood, it’s probably someone there to help- this is Wisconsin we are talking about.
This isn’t about him being a flood victim. He’s protecting his duck spot.
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A loss for the PTD
- Thread starter seeth07
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If someone is actually rolling up on this dude during a flood, it’s probably someone there to help- this is Wisconsin we are talking about.
This isn’t about him being a flood victim. He’s protecting his duck spot.
VikingsGuy
Well-known member
The law we are discussing the bounds of does not make this distinction. Bad facts often make bad laws.
Good point.
This line of reasoning would make him being a “flood victim” irrelevant too, though, wouldn't it?
VikingsGuy
Well-known member
Victim may be a tough term, but the point is that through none of a land owner’s doing, record rains would somehow “erase” private property rights during the flood seems like very bad policy.
seeth07
Well-known member
Define flood for me @VikingsGuy
seeth07
Well-known member
Also, please define for me where the ordinary high water mark is on a river. Is it all the way at the top of the dam associated with the pool? Or is it where "action" is taken per the NOAA hydrology? How about what happens when the river is historically rising such as the rock river due to the change in land management around it?
VikingsGuy
Well-known member
I point you to your own original post on this matter.
Dougfirtree
Well-known member
6 pages and no one mentioned that there's a landowner on the river with the last name, "Watermolen"??!!
seeth07
Well-known member
You are picturing this happening and I think we all agree that if these guys had a load of decoys and some shotguns and were headed out to shoot some ducks, that is a problem. This type of flash flooding is occuring over a short period of time and people aren't out recreating and using the high water in this instance for that purpose. Within a day or two, the water will be lowered out of the streets.
VikingsGuy
Well-known member
That is for WI courts, WI administrative agencies and WI legislature to decide. But sounds like there is already a vegetation standard in place. Good enough for me.
Forkyfinder
Well-known member
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paging @Ben Lamb
seeth07
Well-known member
I think this example will point out the potential reduction in former usable recreational locations as a result of this case.
Satellite image of the property in the case. Note the fact that there are established islands of cattails to the left completely surrounded by water.
Same image but with the FEMA flood zone classifications turned on.
The zone AE on the FEMA maps represents the "100 year flood" mark while the pink just outside of it represents the "500 year flood" mark. The cross hatch region represents "regulatory floodway" where annual and occasional normal flooding is expected to occur.
Lets for a second say that this is used as a rough guide as its just about the only legal mapping/guide that I know of for determining "ordinary high water marks". Those cattail islands to the left are outside of that "regulatory floodway" but based on the supreme court ruling of 1914, wouldn't that area meet the definition of being on a body of water at or below the ordinary high water mark?
Just to be fair, I want to share what the same satellite image looked like last year. We were is a severe drought and the water levels everywhere in this region were extremely low - the lowest I've ever seen in my life. There wasn't much for water around. This image shows not where the "ordinary high water mark" location is but rather where the lowest of all lows is. I don't think it can historically get lower than where it was last summer at the time of this satellite image.
Satellite image of the property in the case. Note the fact that there are established islands of cattails to the left completely surrounded by water.
Same image but with the FEMA flood zone classifications turned on.
The zone AE on the FEMA maps represents the "100 year flood" mark while the pink just outside of it represents the "500 year flood" mark. The cross hatch region represents "regulatory floodway" where annual and occasional normal flooding is expected to occur.
Lets for a second say that this is used as a rough guide as its just about the only legal mapping/guide that I know of for determining "ordinary high water marks". Those cattail islands to the left are outside of that "regulatory floodway" but based on the supreme court ruling of 1914, wouldn't that area meet the definition of being on a body of water at or below the ordinary high water mark?
Just to be fair, I want to share what the same satellite image looked like last year. We were is a severe drought and the water levels everywhere in this region were extremely low - the lowest I've ever seen in my life. There wasn't much for water around. This image shows not where the "ordinary high water mark" location is but rather where the lowest of all lows is. I don't think it can historically get lower than where it was last summer at the time of this satellite image.
Buffs35
Well-known member
Nothing like using satellite images to justify trespassing by convenience.
Gellar
Well-known member
I think they already have determined the ordinary high water mark.
@seeth07 i think your claim that this ruling would affect ice fisherman is a bit ludacris. I have seen the water freeze over when it is, not above the high water mark, but it usually recedes very quickly and refreezes a new layer of ice. I have seen gaps of air between the original layer of ice and the second layer. Not safe to be on. I have also seen the water freeze and then rise. It first lifts the ice but as water floods on top the ice begins to sink and deteriorates quickly. Again, not safe. Also the amount of current is greatly increased in a river system when it floods. The ice on the bottom is honeycombed and will appear thick, but in fact it is very weak and dangerous.
If high water occurred during the winter I do not think it is going to be to the point of exceeding the high water mark, but still very unlikely.
I agree. It is fascinating, however, to observe the normally “strict constructionist” Hunt Talk crowd seem to take such a dynamic view of the Public Trust Doctrine on this particular issue.
seeth07
Well-known member
I think it depends though on that very definition of OHWM and in this case the events claimed occurred in a location that I would have considered to be the OHWM due to the presence of cattails and other wetland vegetation completely surrounded by water for a bulk of the year and yet the ruling was this is trespassing. It was not a coincidence that this landowner chose to use last year to make his claim because of the extreme drought.
This has me very worried for determining where the OHWM really is and if this will lead to more challenges and conflicts. There are numerous spots that I currently waterfowl hunt along rivers and in marshes where my ability to get into the potholes is entirely dependent on how wet of a year it was.
VikingsGuy
Well-known member
Self-serving takes are rarely surprising . . .
You got that right.
Buffs35
Well-known member
Hunting is an inherently dangerous activity. Now you are talking about duck hunting from a boat in flooded areas. Putting aside the legality, this seems particularly fraught with danger. Underwater hazards will not be marked. So let's say you are legally trespassing during a flood on my land. If you hurt yourself, am I liable for your damages?
seeth07
Well-known member
No because I was never on your land. I was in the public waters above your land.
