Wisconsin has a particularly notable tradition of using the public trust doctrine aggressively to protect the state’s natural resources. The general thrust of the doctrine’s evolution in Wisconsin has been expansion beyond the doctrine’s traditional application to waters navigable for commercial purposes. Emblematic of such expansion is the Wisconsin Supreme Court’s decision in Just v. Marinette County, which scholars have characterized as a landmark extension of the public trust doctrine to non- navigable wetlands adjacent to navigable waters. In light of this tradition, it is unsurprising that the Wisconsin Supreme Court’s recent pronouncement that the Department of Natural Resources lacked public trust jurisdiction to regulate privately-owned wetlands adjacent to a navigable lake provoked strong reactions, not only by commentators but also by certain members of the court. This Comment asserts that the court’s opinion in Rock-Koshkonong Lake District v. State Department of Natural Resources mischaracterized 150 years of precedent and, in doing so, misconstrued Wisconsin’s public trust doctrine in a way that is potentially devastating to future use of the doctrine for environmental protection. By subtly re-casting the court’s precedents as delimiting rather than expanding the state’s public trust jurisdiction, the Rock-Koshkonong opinion undermines the particular adaptability of Wisconsin’s public trust doctrine, which has allowed the doctrine to evolve along with societal values and public needs, and which, for decades, has situated Wisconsin as a leader in using the public trust doctrine for environmental protection.
A Breach of Trust: Rock-Koshkonong Lake District v. State Department of Natural Resources and Wisconsin's Public Trust Doctrine,
98 Marq. L. Rev. 1467
Available at: http://scholarship.law.marquette.edu/mulr/vol98/iss3/10