Home Lake Rule Petition Update #1
The following document was submitted by Jim Olson in connection with his testimony before the WDNR Board on Feb. 28, 2024
1. THE PUBLIC TRUST DOCTRINE
Recently the Principal Attorney for the Wisconsin Legislative Council wrote a memorandum for Senator Felzkowsi regarding the Public Trust Doctrine. Here is an excerpt relating to the Public Trust Doctrine and the role of WDNR.
The Public Trust Doctrine is rooted in the Wisconsin Constitution. As developed and interpreted by the courts, the doctrine provides that navigable waters are held in trust by the state for the benefit of the public. The doctrine has been interpreted to require the Wisconsin Legislature to serve as trustee for the public's rights to navigate and enjoy recreational activities in the waters of the state.2
The Legislature has generally delegated its trustee obligations to the Department of Natural Resources (DNR), except where statutes state otherwise. Evidence of that delegation is found, in part, in ss. 281.11 and 281.12, Stats., which specify that the DNR "shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private," and "shall have general supervision and control over the waters of the state."3 In addition, the DNR is specifically authorized to pursue relief regarding possible infringements of public rights relating to navigable waters. [s. 30.03 (4)(a), Stats.]
The Public Trust Doctrine protects a broad range of public rights, including the right of navigation and the recreational use of waters, including the enjoyment of scenery. The doctrine protects such rights in all navigable bodies of water.4
1 Wake boats, which are sometimes called "surf boats" or "wakeboard boats," are boats designed ,to create larger wakes for use by a wakeboarder, wakesurfer, or water skier.
2 For additional background regarding the Public Trust Doctrine, see Legislative Reference Bureau, The Public Trust Doctrine. Reading the Constitution vol. 5, no. 4 (2020): and Legislative Council, The Public Trnst Doctrine, Issue Brief (Oct.2019).
3 For addition discussion regarding the DNR's role as trustee, see Clean Wisconsin, Inc. v. DNR, 2021 WI 72; Legislative Council, Clean Wisconsin v. Department o(Natural Resources Decisions. Issue Brief (July 2021).
4 In this context, a waterbody is "navigable" if it is "capable of floating any boat, skiff, or canoe, of the shallowest draft used for recreational purposes." [Madison v. State, I Wis. 2d 252, 259-60 (1952).)
(End of excerpt)
2. The Enforceability of the “Home Lake” rule.
When we began considering regulations of wake-surfing over 3 years ago we immediately considered the issue of enforceability as we did not want to advocate for meaningless regulations. We concluded that all regulations were enforceable, especially the “Home Lake “rule.
We were aware of NR. 19.055(1) (passed in 2008) that required ballast systems to be emptied upon leaving a body of water to prevent the spread of invasive species. However, in talking to WDNR wardens they told us that this regulation could not be enforced. They told us that wardens could not inspect the ballast system because they did not have probable cause unless they saw water coming from the system. Also, due to the complexity of the system it would take dismantling with tools to inspect it. Thus, there is a regulation that has been in existence for 16 years that cannot be enforced. The “Home Lake” rule solves this problem.
The petition that is currently before the Department has the following provisions.
1. The ballast system must be decontaminated before the system can be launched in a boat.
2. The decontamination must be certified by a trained person. (a You Tube demonstrating thermal decontamination has been provided the Department and the Board)
3. The owner must provide the Department with the decontamination certificate and a declaration that the system will only be used on a single waterbody.
4. Upon receipt of the certificate and declaration the Department will issue a green sticker to be affixed to the boat near the registration.
5. The certificate and declaration shall be filed with the local unit of government having jurisdiction over the waterbody.
This eliminates the need for inspection. All that is required is to determine if the green decal is affixed.
We realize that there are insufficient wardens to patrol lakes frequently. However, the “Clean Boats, Clean Waters program has numerous lake monitors. According to Department records. Clean Lakes, Clean Water monitors inspected 154,087 boats in 2023 and contacted 301,676 people in 2023(attached). These monitors provide a great resource for enforcement. Also, private citizens can report boats that do not have green stickers. Boats with ballast systems can be easily detected because they operate in a bow high manner, produce huge waves, and wake surfers usually do not have a tow rope.
The filing of documents is important. It will identify the water body where boats with these systems can be used.
Beginning in 2018 Towns in Sawyer County, Wisconsin began passing ordinances requiring enhanced wake boats to maintain a 700-foot distance from shore. Phil Nies, the person most responsible for these ordinances has submitted a sworn declaration stating that enforcement has not been a problem.
“6. There has been no problem with enforcement of any of these ordinances. If a person is seen violating one of these ordinances it is easy for the witness to record the boat number and get the owner’s name from the Town Clerk. A call to the owner has always resolved the problem.
“7. In addition, most people have voluntarily complied with the ordinance.
“8. I have also followed the adoption of enhanced wake ordinances in places across the country. Including the enhanced wake ordinance by the City of Mequon, Wisconsin, in 2009. I have never heard of an ordinance been legally challenged nor has enforceability been a problem.” (sworn declaration attached)
There are now 16 Wisconsin towns with wake surfing ordinances. They have had little problems with enforcement. The existence of the local ordinance, posted at each public landing (required by law), is enough to prevent violations. In those few instances where there was a violation, a mention of the ordinance to the boat operator is usually enough.
3. Wake-Surfing in general.
The St. Anthony Falls Laboratory, which is part of the University Of Minnesota, conducted a field investigation in lake Minnetonka last summer where they measured and compared the impact of wake surfing boats and typical water-ski boats in various parameters including lake bottom disturbance from propwash. It is currently being peer-reviewed. When it is publicly available later this spring it should provide valuable data for possible additional regulation.
Our organization has produced a 30–45-minute power point presentation that we would be happy to present to Department staff and the Board as a group or individually by zoom. We also have an extensive database containing all known literature on the issue at “last Wilderness Alliance-issues-wake-surfing.
We have also produced a Youtube video of the destruction of habitat on Big Cedar Lake in Washington County. This is available on the above website or at: https://www.youtube.com/watch?v=2OEHn0Htj8A
4. Presumption of Constitutionality
Any regulation passed by the Department and approved by the Legislature would be presumed to be constitutional.
Generally, legislative enactments are entitled to a presumption of constitutionality. Aicher, 237 Wis.2d 99, ¶ 18; Thompson, 199 Wis.2d at 680; Davis v. Grover, 166 Wis.2d 501, 520, 480 N.W.2d 460 (1992); State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 46, 205 N.W.2d 784 (1973) ("This court has often affirmed the well-established presumption of constitutionality that attaches itself to all legislative acts."); Ruth E.J., 196 Wis.2d at 801. This court has repeatedly held that it "indulges every presumption to sustain the law if at all possible, and if any doubt exists about a statute's constitutionality, we must resolve that doubt in favor of constitutionality." Aicher, 237 Wis.2d 99, ¶ 18 (internal citation omitted); see also Post, 197 Wis.2d at 301. A petitioner seeking to prove a statute unconstitutional faces a heavy burden. State v. Interstate Blood Bank, Inc., 65 Wis.2d 482, 488-89, 222 N.W.2d 912 (1974). In the face of a strong presumption, it falls to the party challenging the constitutionality of a statute to prove that the statute is unconstitutional beyond a reasonable doubt. Aicher, 237 Wis.2d 99, ¶ 19; Brandmiller v. Arreola, 199 Wis.2d 528, 536, 544 N.W.2d 894 (1996); Thompson, 199 Wis.2d at 680; Fisher, 211 Wis.2d at 669. This court has noted: "It is insufficient to merely establish doubt as to an act's constitutionality nor is it sufficient to establish the act is probably constitutional." Quinn v. Town of Dodgeville, 122 Wis.2d 570, 577, 364 N.W.2d 149 (1985). If any doubt remains, this court must uphold the statute as constitutional. Id. (State v. Cole, 264 Wis. 2d 520, 532 (2003)