Lawsuit would limit reach of provisions in the state constitution that guarantee public access to navigable waters
By Todd Richmond
Associated Press
MADISON, Wis. (AP) — A southeastern Wisconsin property owner tired of watching airboats travel across his land during floods has filed a lawsuit seeking to limit the public’s right to use flooded rivers, lakes and streams.
Thomas Reiss, of Ixonia, filed the suit in Jefferson County Circuit Court on July 11. According to the lawsuit, Reiss’ land abuts the Rock River. When the river floods, airboat users take advantage of the higher water levels to trespass across his land, the lawsuit alleges.
At the heart of the issue is the so-called public trust doctrine, which are provisions in the Wisconsin Constitution that guarantee public access to navigable waters generally defined as any waterway with a bank upon which someone can float a canoe or other small watercraft on a regular basis.
State Department of Natural Resources policies state that the doctrine grants access rights to any part of a navigable waterway as long as the person remains in the water. But Reiss argues that stance is unlawful. He maintains that public access ends at the ordinary high water mark, a point on the bank or shoreline where the water regularly stops, and that the DNR’s position has left law
enforcement confused.
“DNR’s authority to implement and enforce the public trust doctrine is limited to navigable lakes, streams, sloughs, bayous and marsh outlets,” the lawsuit says. “Flooded yards do not fit into these categories and are not subject to DNR’s public trust jurisdiction.”
A Reiss court victory would limit boaters, anglers and swimmers’ access rights to the ordinary high water mark. They would not have a right to use the waterway beyond that point.
DNR spokesperson Katie Grant said she was unable to comment on ongoing litigation.
Online court records indicate that the case has been assigned to Jefferson County Circuit Judge Robert Dehring. He has yet to schedule a hearing.
