This natural history of Wisconsin is one of water. From the glaciers that shaped the landscape, to the rivers, lakes, and marshes that support the local and migratory animals. The water also supported the generations of people who have lived in Wisconsin, feeding them with fish, wild rice, and other plants and animals.
The water also brought the European explorers, looking for the inland passage across the North American continent. The trappers and traders followed, using the rivers to navigate from the Great Lakes of Michigan and Superior through the state to the Mississippi River. At the birth of our country, the fur trade was waning, but the importance of rivers for travel was not.
The Northwest Ordinance, passed months before the Constitution, established the Northwest Territory and created the legal footing and framework for what would eventually become the states of Ohio, Indiana, Michigan, Illinois, Wisconsin, and Minnesota. The Northwest Ordinance recognized the importance of the waterways for the movement of people and goods to settle this new territory:
“The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.”
Not only does this statement recognize the importance of the water in the common movement, but also those portages and trails between such waterways. The entirety of Wisconsin (and that of the Northwest Territory) is within the watersheds of the Mississippi and the St. Lawrence, therefore is to be held forever free. The state is responsible to hold the navigable waters in trust for the public. At a time before roads and railroads into the Territory, the Mississippi and the St. Lawrence watersheds represented effectively the only routes into and out of Wisconsin.
That was all well and good at a time when fur trading was the primary industry, but what does the Public Trust Doctrine mean for us now? While it also applies to environmental regulation and shoreland zoning, this article will focus on recreation. Kayaking, canoeing, fishing, and access to public lands
Modern understanding and application of the Public Trust Doctrine in Wisconsin starts about a 100 years ago with some decisions from the Wisconsin Supreme Court. Over the course of the 1800’s a succession of inhabitants filled a shallows in the Milwaukee Harbor in Lake Michigan at the outlets of the Milwaukee, Menomonee, and Kinnikinic Rivers. As this shallows were filled in, it became known as Jones Island and housed a population of German and Polish fisherman. By 1900 industrial and commercial interests sought to evict the people living there in order to further develop the harbor. The Wisconsin Supreme court found in favor of those industrial and commercial interests, concluding that the fisherman had no title in the land, instead “[T]he title to the beds of all lakes and ponds, and of rivers navigable in fact as well, up to the line of ordinary high-water mark, within the boundaries of the state, became vested in it at the instant of its admission into the Union, in trust to hold the same so as to preserve to the people forever the enjoyment of the waters of such lakes, ponds, and rivers.” While this resulted in the loss of these fishing families’ homes, this started a century of strengthened public ownership of the navigable rivers and lakes as well as their beds. This ownership of the lake and river beds has led to the colloquial articulation of the public trust doctrine as protecting users so long as they “keep their feet wet.”
Regardless of the specific application, two concepts are important to understanding the Public Trust Doctrine: Navigable Waters and Ordinary High Water Mark (OHWM). The Public Trust Doctrine applies to waters which are navigable. The Public Trust Doctrine applies to those navigable waters up to the OHWM. Leveraging the Public Trust Doctrine’s historical roots, a navigable water was traditionally defined as one upon which logs may be floated at least part of the year. More recently, the standard has been articulated in terms of recreation, with navigable water being one that can float a skiff (boat) at least part of the year on a regularly recurring basis.
In fact, we have a hunter-attorney from to help set this precedent. In 1913 Paul Husting floated through the Horicon Marsh, hunting waterfowl. At that nascent time of wildlife management, the Marsh was dominated by market hunters and hunting clubs. As Husting floated through property owned by one of the hunting clubs, a private game warden for the club arrested him for trespassing. Representing himself up to the Wisconsin Supreme Court, his actions were affirmed. The Horicon Marsh being navigable, opened its waterway for any lawful use, including the recreation of hunting.
For any body of water that is deemed navigable, the public owns the land below the water (lakebed) up to the OHWM. The OHWM is defined based upon natural observations and conditions. The OHWM is the point at which the shoreline looks different from the upland, through the action of waves and the water itself. This may include exhibitions of water lines or erosion, or may include the absence or difference in vegetation between the shoreline and the upland.
But waterways are natural systems and the actual water level is constantly in flux. When water is at the OHWM, the adjacent landowner owns exclusive use of the land above the OHWM. When the water level is low, that is below the OHWM, the adjacent landowner then obtains exclusive use down to the water line, until a time when the water level rises. However, during times when the water level is high, the public’s navigational freedoms extend to the new, higher, water line.
The Public Trust Doctrine opens up over one million acres of lakes, rivers, and streams for public enjoyment and recreation. So the next time you are looking for a new place for recreation in the state, remember to keep your feet wet.