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  • Writer's picturePatrick Durkin

Jefferson County Restriction on Navigating Flooded Land Faces Likely Appeal

   A Jefferson County judge’s recent ruling that forbids boaters, anglers and other water-borne recreationists from entering flooded private lands can’t be enforced outside the county and faces a likely appeal by the Wisconsin Department of Natural Resources.


   That’s the opinion of former DNR Secretary George Meyer, who was a water-regulations attorney throughout his three decades with the agency, including his 1993-2002 stint as agency head. The DNR won’t comment on Circuit Judge Bennett J. Brantmeier’s June 24 ruling that restricts public access to navigable waters, but Meyer said the agency is reviewing the case.


   “It’s my judgment that the DNR will likely appeal the decision,” Meyer said in a telephone interview. “Wisconsin’s law on navigable waters goes back to the state’s earliest days, and was written by a conservative state Supreme Court to guarantee uninterrupted travel and commerce on our rivers and streams. During floods, you follow the water. If you can wade or navigate by boat, no matter its size, those waters are open for public use. The DNR didn’t misinterpret the law. It’s simply enforcing a law people have followed since early in our statehood (1848).”


   In a lawsuit filed by a landowner along the Rock River in southeastern Wisconsin, Judge Brantmeier ruled that the public’s right to use flooded areas ends at the waterway’s “ordinary high-water mark.” The natural indicators of an OHWM, however, often aren’t visible during floods. These marks include bank erosion, exposed roots, exposed riverbeds, lack of land-based vegetation, adjacent mature upland vegetation, and debris near or below the OHWM. Few landowners post signage designating their property’s OHWM.


   The Jefferson County lawsuit was filed in 2023 by Thomas Reiss of Ixonia. Reiss’ lawsuit claimed people use “airboats” to trespass on his land when the Rock River floods. He contends that DNR rules on navigable waters are difficult to enforce, and that the agency illegally interpreted Wisconsin’s public-trust doctrine.


   Reiss’ attorneys and DNR lawyers argued the case before Brantmeier for over three hours, and the judge ruled the DNR rules were invalid and unenforceable, saying the DNR “erroneously interpreted” state statutes.


   Brantmeier ordered the DNR to revoke its policy and issue proper guidance through the state’s formal administrative-rule process. The DNR attorneys requested Brantmeier stay his ruling, but the judge rejected the request.


   The DNR’s likely appeal will almost certainly reference a 1914 state Supreme Court decision that also involved the Rock River. In that case, the Supreme Court ruled that a hunter named Paul Husting was legally using lands controlled by the Diana Shooting Club because he reached the site by following a “natural, navigable river and body of water,” and didn’t trespass or interfere with the club’s rights.


   The DNR reminds waterway users that a lake, stream or river’s OHWM is not a set elevation, and doesn’t change with temporary fluctuations in water levels. Although it can be subjective, an OHWM is the recognized boundary between public waters and abutting private lands. When those lands are flooded, they’re open to public use only by water. They can’t be entered from private property without the landowner’s permission.


   When rivers and streams aren’t flooded, and waters return to normal levels, i.e., OHWM, the riparian landowner has exclusive use of the exposed stream bed. Recreationists can’t camp, fish, hunt, picnic or sunbathe on exposed shorelines.


   Unless you’re surrounded by publicly owned lands, you must pass the “wet-foot test” when wading, paddling or motoring on Wisconsin waterways. That is, your feet or watercraft must always remain in water. If your feet or boat touch land, you’re trespassing. You can only step onto dry land if a log, culvert, bridge, fallen tree or other obstruction blocks your travel. Once past the obstacle, you must get back into the river or your watercraft quickly by the shortest route possible.


   Judge Brantmeier, however, agreed with Reiss that public shouldn’t be allowed past the OHWM on private lands, no matter the water level. Two local waterfowlers who are following the case think Brantmeier’s ruling jeopardizes public access to the state’s “forever free common highways.” They view the ruling as a special favor to Rock River landowners whose properties often flood.


   Bernie Landerman of Ripon and David Unger of Watertown hope the DNR appeals the ruling and gets it overturned. They also question whether anyone was driving “airboats” across flooded properties, as some accounts claim. They believe frequent bridges and thick woodlands along the river make airboat use unlikely.


   Instead, they say hunters and bow-fishermen often use “mud boats” with “surface-drive shafts” manufactured by Go-Devil, GatorTail, Mud Buddy or Mud-Skipper.


   Either way, Unger and Landerman said law-enforcement officers and prosecutors should go after boaters causing property damage or risking public safety.


   “We should enforce existing laws that protect people and property,” Landerman said in a telephone interview. “I understand why landowners wouldn’t want people ripping across their field or backyard with a mud-boat. Boaters shouldn’t push this. I don’t want nonhunters to turn on us, and risk losing a state-constitutional right we’ve had for nearly two centuries.”

Wisconsin hunters and anglers worry that a Jefferson County court ruling threatens a longstanding state law that ensures access to all navigable waters. — Patrick Durkin photo

 

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