Appendix — Trudeau v. Wisconsin

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IN THE OCT 27 wer

Supreme Court of the United States. JR.

OCTOBER TERM, 1987 en

STATE OF WISCONSIN,

Respondent,

Vv.

THOMAS D. TRUDEAU,

TRUDEAU DEVELOPMENT, INC..

TRUDEAU CONSTRUCTIONS, INC..,

SUPERIOR DEVELOPMENT, INC.

Petitioners.

and

THE ASHLAND COUNTY BOARD OF ADJUSTMENT,

LARRY HILDEBRANDT, ASHLAND COUNTY

ZONING ADMINISTRATOR.

PETITIONERS APPENDIX

SAMUEL J. RECHT

(Counsel of Record)

DAVID L. PETERSEN

SUSAN LaCAVA

QUARLES & BRADY

411 East Wisconsin Avenue

Milwaukee, Wisconsin 53202-4497

(414) 277-5000

Counsel for Petitioners

October 27, 1987

SEPARATELY BOUND APPENDIX

Page

APPENDIX A (Wisconsin Supreme Court Opinion and

Denial of Motion for Reconsideration) .............. la

APPENDIX B (Wisconsin Court of Appeals Opinion)... 19a

APPENDIX C (Circuit Court of Ashland County

‘Memorandum Opinion and Order, Findings of Fact

and Conclusions of Law, and Judgment) ............ 27a

APPENDIX D (GState’s Trial Brief on the Lake Bed Issue

toa e eres Pr rer ee Cie Ter Tee 39a

APPENDIX E (Defendants’ Trial Brief on the Lake Bed

RS IIR pe EE SPA inane ream Se Py ee ree 65a

APPENDIX F (State’s Trial Reply Brief on the Lake Bed

A sel ER gee etary, ae ee ee 87a

APPENDIX G (State’s Opening Argument on the Lake

I rr ew hg ew enn 93a

APPENDIX H (Defendants’ Opening Argument on the

ge ey ree 95a

APPENDIX I (Hydraulic Connection Testimony by

State’s Witness, Knitter R.101:20-5) ................ 99a

APPENDIX J (Defendants’ Cross-Examination of Mr.

Knitter on the Hydraulic Connection R.103:73-85) .... Illa

APPENDIX K (State’s Redirect of Mr. Knitter on the

Hydraulic Connection R.103:94-5).................. l21la

APPENDIX L (Hydraulic Connection Testimony by

State’s Witness, Twining R.101:133-38).............. 123a

APPENDIX M (Defendants’ Cross-Examination of Mr.

Twining on the Hydraulic Connection R.101:141-43) .. 129a

la

APPENDIX A

No. 85-0818

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant, FILED June 11, 1987

Marilyn L. Graves

Vv. Clerk of Supreme Court

Madison, Wisconsin

Thomas D. Trudeau, Trudeau Development, Inc.,

Trudeau Construction, Inc., Superior

Development, Inc.,

Defendants-Respondents-Petitioners,

' The Ashland County Board of Adjustment,

Larry Hildebrandt, Ashland County

Zoning Administrator,

Defendants-Respondents.

REVIEW of a decision of the Court of Appeals. Affirmed.

STEINMETZ. J. The first issue as presented by the parties

is whether the land lying below the ordinary high water mark

(OHWM) of Lake Superior, which is naturally subject to the flow

of water to and from the lake, is part of the bed of Lake Superior

even though the water which inundates the site is not navigable.

The Ashland county circuit court, the Honorable William E. Chase,

held that the disputed property was not lakebed because the plain-

SESE SU eee eee al Tee RET Cae I pees ea aT Tee eee a ee

2a

tiff, state of Wisconsin, failed to prove that the condominium project

site was navigable. The court of appeals, in an unpublished deci-

sion, reversed holding that the actual navigability of the site is

irrelevant if the land lies partly under the OHWM of Lake Superior

and found, on the basis of what it termed positive, uncontradicted

testimony, that the site is partly the bed of Lake Superior because

it is naturally below the ordinary high water mark of the lake and

subject to the ebb and flow of the lake.

The second issue is whether the court of appeals committed

error in supplementing the findings of the trial court on the issue

of the natural connection of the project site to Lake Superior. The

trial court failed to make any findings on the relative elevations

of the project site and the ordinary high water mark of Lake

Superior. Although the trial court found that the project site was

subject to inundation by water from Lake Superior, it dismissed

the state’s lakebed claim on the basis that the site was not navigable.

The court of appeals found that there was evidence that part of

the site was under the OHWM of Lake Superior and that there

was a water connection between the site and the lake with water

flowing between the site and lake, and, therefore, remanded the

case to the trial court to determine what part of the site if any is

below the OHWM.

The third issue is whether doctrines of accretion or reliction

have any application to a dispute over land not submerged by the

waters of Lake Superior when those waters reach the elevation of

the lake’s ordinary high water mark. The trial court found that

the doctrine of reliction operated to give title to the defendants,

Thomas D. Trudeau, Trudeau Development, Inc., Trudeau

Construction, Inc., and Superior Development, Inc., real estate

developers, because the connection of the site to the lake had

receded to the point of rendering use of the land as an incident

of navigation improbable. The court of appeals held that the

doctrine of reliction has no application to the submerged lands.

ee ET

3a

The fourth issue is whether the facts of this case certiorari

review under sec. 59.99, Stats.,' is the state’s exclusive means of

challenging a floodplain zoning variance. The trial court held that

certiorari review was the state’s exclusive means of challenging a

decision to grant a floodplain zoning variance and found that the

state had failed to pursue review within the time provided by the

statute. The court of appeals held that sec. 87.30(2),? provided the

Sec. 59.99(1) and (10), Stats., provides:

“59.99 County zoning, adjustment board. (1) APPOINTMENT,

POWER. The county board may provide for the appointment of a board of

adjustment, and in the regulations and restrictions adopted pursuant to s. 59.97

may provide that such board of adjustment may, in appropriate cases and subject

to appropriate conditions and safeguards, -make special exceptions to the terms

of the ordinance in harmony with its general purpose and intent and in accordance

with general or specific rules therein contained. Nothing in this subsection shall

preclude the granting of special exceptions by the county zoning agency designated

under s. 59.97(2)(a) or the county board in accordance with regulations and restric-

tions adopted pursuant to s. 59.97 which were in effect on July 7, 1973 or adopted

after that date.”

“(10) CERTIORARI. Any person or persons, jointly or severally,

aggrieved by any decision of the board of adjustment, or any taxpayer, or any

officer, department, board or bureau of the municipality, may, within 30 days

after the filing of the decision in the office of the board. commence an action

seeking the remedy available by certiorari. The court shall not stay proceedings

upon the decision appealed from, but may, on application, on notice to the board

and on due cause shown, grant a restraining order. The board of adjustment shall

not be required to return the original papers acted upon by it. but it shall be suf-

ficient to return certified or sworn copies thereof. If necessary for the proper

disposition of the matter, the court may take evidence, or appoint a referee to

take evidence and report findings of fact and conclusions of law as it directs, which

shall constitute a part of the proceedings upon which the determination of the

court shall be made. The court may reverse or affirm, wholly or partly, or may

modify, the decision brought up for review.”

Section 87.30(2), Stats., provides as follows:

“(2) ENFORCEMENT AND PENALTIES. Every structure, building,

fill, or development placed or maintained within any floodplain in violation of

a zoning ordinance adopted under this section, or s. 59.97, 61.35 or 62.23 is a

public nuisance and the creation thereof may be enjoined and maintenance thereof

may be abated by action at suit of any municipality, the state or any citizen thereof.

Any person who places or maintains any structure, building, fill or development

within any floodplain in violation of a zoning ordinance adopted under this section,

or s. 59.97, 61.35 or 62.23 may be fined not more than $50 for each offense.

Each day during which such violation exists is a separate offense.”

4a

State with an alternative means of challenging a floodplain zoning

variance.

This action concerns a parcel of land being developed for a

48-unit, eight-building, residential condominium project. Six of the

units in one building were constructed prior to the commencement

of this action and substantial sums of money have been invested

in the project.

The state of Wisconsin commenced this action on August 16,

1984. The various claims in the amended complaint relate to two

sets of parties: a group of real estate developers and several loca!

zoning Officials or agencies. The Ashland County Board of Ad-

justment, Larry Hildebrandt, Ashland County Zoning Ad-

ministrator and Thomas D. Trudeau, Trudeau Development, Inc.,

Trudeau Construction, Inc. and Superior Development, Inc. (the

developers) were alleged to have violated sec. 30.12, Stats.,’ by allow-

ing construction and constructing condominiums and a parking

lot on the bed of Lake Superior.

*Sec. 30.12(1)(b), (2), (3Ma)4 and (b), Stats., provides in relevant part:

“30.12 Structures and deposits in navigable waters prohibited; exceptions;

penalty. (1) GENERAL PROHIBITION. Except as provided under sub. (4),

unless a permit has been granted by the department pursuant to statute or the

legislature has otherwise authorized structures or deposits in navigable waters,

it is unlawful:

“~

“(b) To deposit any material or to place any structure upon the bed of any

navigable water beyond a lawfully established bulkhead line.

“(2) PERMITS TO PLACE STRUCTURES OR DEPOSITS IN

NAVIGABLE WATERS; GENERALLY. The department, upon application

and after notice as provided under s. 31.06 and hearing, may grant to any riparian

owner a permit to build or maintain for the owner's use a structure otherwise

prohibited by statute, if the structure does not materially obstruct navigation or

reduce the effective flood flow capacity of a stream and is not detrimental to

the public interest. The procedures in this subsection do not apply to permits

issued under sub. (3).

oe

(Footnote 3 continued on next page)

Sa

The developers obtained a variance at a hearing before the

Ashland County Board of Adjustment on January 13, 1984. The

state did not seek review of the decision pursuant to sec. 59.99(1),

Stats., within 30 days. The state later commenced an action against

the developers alleging that the construction was not, could not

have been, authorized and lawful. The trial court dismissed all of

the state’s claims after a trial.

According to the state, the first meeting regarding the site was

on November 1, 1983, at the site. After being discouraged by the

Department of Natural Resources (DNR) representative, the

developers withdrew their existing plans. The DNR did not receive

any other plans. The next the DNR heard of the matter was when

it was notified of the variance hearing before the Ashland County

Board of Adjustment in January, 1984. By that time, the project

pilings were in, walls were up and deck floors were in so that the

variance was granted after the fact of partial construction.

The state requested injunctive relief requiring the removal of

structures found to be in violation of sec. 30.12, Stats., or local

zoning ordinances, the prohibition of further construction on the

lakebed, and an order vacating the land use permit and floodplain

zoning variance given to the developers.

The controversy concerns a real estate development known

as the Marina Point Condominiums on Madeline Island in Ashland

(Footnote 3 continued)

“4. Place crushed rock or gravel, reinforced concrete planks, adequately

secured treated timbers, case in place concrete or similar material on the bed of

a navigable stream for the purpose of developing a ford if an equal amount of

material is removed from the stream bed.

“(b) A person who seeks to place structures or deposits under par. (a) shall

apply to the department for a permit. The department shall review the applica-

tion and inspect the location involved. The department may disapprove the

application if it finds the proposed structure or deposit will materially impair

navigation or be detrimental to the public interest. The department shall issue

the permit or notify the application in writing of the disposition of the application.”

6a

county, Wisconsin. The developers’ plans are to build 48 con-

dominiums in a series of clusters. The first set of six condominiums,

known as Cluster A, has already been built and the units placed

for sale. The building site is immediately across Old Fort Road from

the Madeline Island marina and immediately south of Mondamin

Trail. A golf course is adjacent to the site on its inland side. Cluster

A has been built on stilt-like pilings and much of the land under-

lying the structure and the remainder of the site is covered by

standing water which was as deep as 1.2 feet in October, 1984.

The water on the site is connected by several culverts to Lake

Superior, at least one running under Old Fort Road into the marina

and another running under Mondamin Trail. (See Exhibit |

attached to this opinion.)

There is generally some water on the project site and some

aquatic-type vegetation. The project site itself is not “navigable”

in the sense of paddling a canoe. The source of the water on the

property is not entirely clear. There was evidence received that 1.3

million gallons of water per week drained from the golf course on-

to the project site in the summer. Water also came through the

culverts from Lake Superior when high winds arose. Both parties

agree the culverts’ purpose was to allow water to drain to Lake

Superior rather than accumulate on the project site. The state argues

that the culverts were not placed under the Old Fort Road to flood

the developers’ project but to allow water accumulating there to

reach the lake. If the culverts were not there, it is argued the project

site would flood and run across the road to Lake Superior or the

site would accumulate water and become lakebed itself.

The trial court found that water flows both ways through these

culverts, sometimes draining the Marina Point Condominiums site

into the main body of Lake Superior and sometimes further flooding

the site with water coming in from the marina.

Tie trial court made no finding as to the elevation of the

ordinary high water mark (OHWM) of Lake Superior or of the

elevations of the surface of the water or the underlying land at

the Marina Point Condominiums site as compared to the OHWM

of Lake Superior. The trial court found there was “no distinct mark

Ta

on the project property” and that the disputed property was

separated from Lake Superior as a navigable body of water by Old

Fort Road, an artificial barrier. The state introduced the only

evidence regarding the OHWM of Lake Superior.

Contrary to the developers’ argument, sec. 59.99(10), Stats.,

is not the exclusive means of state jurisdiction over floodplain zon-

ing. Section 87.30 and sec. NR 116.22(4), Wis. Adm. Code, pro-

vide that the state may seek abatement of violations of floodplain

zoning.‘ Section 87:30(2) establishes a cause of action to enjoin a

public nuisance whenever there exists a violation of any local

floodplain zoning ordinances. The state of Wisconsin, by the at-

torney general, is authorized to bring actions to enjoin such

'

‘Sec. NR 116.22(4), Wis. Adm. Code provides as follows:

“(4) ENFORCEMENT. The departmeni shall assist municipalities in

achieving a consistent statewide approach to floodplain enforcement. This

assistance may include, but is not limited to, the measures listed in this subsection.

“(a) The department may request that corrective action be taken by the

municipality where construction is occurring in a floodplain area which is either

contrary to an existing floodplain zoning ordinance or which would be contrary

to an approved floodplain zoning ordinance. Such corrective action may include,

where appropriate, the following:

“1. Active prosecution of violations of the floodplain zoning ordinance;

“2. An injunction to stop construction until an adequate floodplain zon-

ing ordinance can be adopted and approved by the department; and

“3. Adoption of an adequate floodplain zoning ordinance and submittal

to the appropriate department district office for approval.

“(b) The department may seek an injunction to stop construction in the

floodplain area until an adequate floodplain zoning ordinance is adopted and

approved.

“(c) The department may seek an injunction to stop construction in the

floodplain area when the construction would violate an approved floodplain zoning

ordinance or the provisions of this chapter.

“(d) The department may seek adoption of an adequate floodplain zoning

ordinance in accordance with the provisions of s. 87.30(1), Stats., or an upgrading

of a floodplain zoning ordinance in accordance with s. NR 116.05.

“(e) The department may seek an injunction for abatement or removal or

a fine or both for any violation of a floodplain zoning ordinance in accordance

with s. 87.30(2), Stats.”

8a

nuisances. To regard certiorari as the exclusive means of review

would render the language of sec. 87.30(2), Stats., meaningless

which is a construction the courts should avoid. Associated Hospital

Service v. Milwaukee, 13 Wis. 2d 447, 463, 109 N.W.2d 271 (1961).

Section 30.12 and ch. 30, Stats., generally codify a number

of common law doctrines regarding the ownership of the beds of

navigable waters. This court stated in J/linois Steel Co. v. Bilot,

109 Wis. 418, 425, 84 N.W. 855 (1901):

“The 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, to the same extent that the public are entitled

to enjoy tidal waters at the common law.” (Emphasis

added.) See also State v. McDonald Lumber Co., 18 Wis.

2d 173, 176, 118 N.W.2d 152 (1962).

This is as true of the beds of the Great Lakes as it is of lesser in-

land waters.

In Muench v. Public Service Comm., 26 1 Wis. 492, 501-02,

53 N.W.2d 514, 55 N.W.2d 40 (1952), the court stated:

“At an early date in its history the Wisconsin court put

itself on record as favoring the trust doctrine, that the

state holds the beds underlying navigable waters in trust

for all of its citizens, subject only to th .,ualification

that a riparian owner on the bank of a navigable stream

has a qualified title in the stream bed to the center

thereof.”

Title to the lakebeds passed to the state upon statehood.

Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 230 (1845) stated:

9a

“First, The shores of navigable waters, and the soils under

them, were not granted by the Constitution to the United

States, but were reserved to the states respectively.

Secondly, The new states have the same rights, sovereign-

ty, and jurisdiction over this subject as the original

states.”

Section 30.12, Stats., is a codification of the common law

restriction against encroachments on publicly held lakebeds. See

Hixon v. Public Service Comm., 32 Wis. 2d 608, 616, 146 N.W.2d

577 (1966).

We have distinguished between state owned lakebed and the

uplands’ capable of private ownership in Diana Shooting Club v.

Husting, 156 Wis. 261, 272, 145 N.W. 816 (1914) when we stated:

“By ordinary high-water mark is meant the point on the

bank or shore up to which the presence and action of

the water is so continuous as to leave a distinct mark

either by erosion, destruction of terrestrial vegetation,

or other easily recognized characteristic. Lawrence v.

American W. P. Co., 144 Wis. 556, 562, 128 N.W. 440.

And where the bank or shore at any particular place is

of such a character that it is impossible or difficult to

ascertain where the point of ordinary high-water mark

is, recourse may be had to other places on the bank or

shore of the same stream or lake to determine whether

a given stage of water is above or below ordinary high-

water mark.”

For purposes of determining the extent of control of the public

trust “it is immaterial what the character of the stream of water

is. It may be deep or shallow, clear or covered with aquatic vegeta-

tion.” /d.

“Uplands — Land bordering bodies of water but above the high water mark.”

The Real Estate Dictionary (3d ed. 1984).

ee

10a

The trial court used the incorrect legal standard when it

acknowledged the connection of the lake to the property by water

flowing to and from the site but decided the land was not Lake

Superior lakebed because of the state’s “failure to prove that the

project land is navigable.”

The question of whether the facts in a particular case fulfill

a particular legal standard is a question of law which this court

will review. Hennekens v. River Falls Pol. & Fire Comm., 124 Wis.

2d 413, 424, 369 N.W.2d 670 (1985). Where a trial court bases

its decision on a mistaken view of the law, its decision constitutes

an abuse of discretion as a matter of law. Schmid v. Olsen, 111

Wis. 2d 228, 237, 330 N.W.2d 547 (1983).

An area need not be navigable to be lakebed. If the land is

part of the navigable lake, then the fact that the specific area can-

not be navigated is irrelevant to the state’s claim. Lakebed may

be heavily vegetated by plants rising far above the water. The court

of appeals stated in Houslet v. Natural Resources Department, 110

Wis. 2d 280, 287, 329 N.W.2d 219 (Ct. App. 1982):

“(T]he public interest in and title to the navigable waters

in this state attaches to more than the open and

perpetually navigable waters contained in lakes, rivers

and streams. It extends to areas covered with aquatic

vegetation within the ordinary high water mark of the

body of water in question.”

Public ownership of the bed applied whether the water is deep

or shallow. Diedrich v. The N. W. U. R’y. Co., 42 Wis. 248, 266

(1877) stated:

“And the reason of the rule [that the public trust of the

lakebed or river bottom cannot be part of private lands]

applies equally, whether the water immediately next the

shore be shoal or deep. For the fee is equally in the public:

even the shoal water next the shore may aid the public

use, and may deepen or be deepened, so as to become

practically capable of navigation.”

lla

The developers’ reliance on DeGayner & Co. v. DNR, 70 Wis.

2d 936, 236 N.W. 2d 217 (1975) is misplaced. DeGayner answered

the question? “what is a ‘navigable stream”? Lake Superior is ad-

mittedly navigable, and therefore DeGayner does not assist in

analysis. The issue in the current case is where a navigable body

of water is identified, what are the boundaries of the public trust

associated with the bed of that body of water. Lake Superior is

navigable and if the non-navigable site is a part of the lake, then

the land below the OHWM is held in trust for the public.

The rights Wisconsin citizens enjoy with respect to bodies of

water held in trust by the state include the enjoyment of natural

scenic beauty as well as the purposes of navigation, swimming and

hunting. In Just v. Marinette County, 56 Wis. 2d 7, 17, 201 N.W.2d

761 (1972) we stated the public has a present right to preserve

natural resources such as wetlands because wetlands:

“(Slerve a vital role in nature, are part of the balance

of nature and are essential to the purity of the water

in our lakes and streams. Swamps and wetlands are a

necessary part of the ecological creation and now, even

to the uninitiated, possess their own beauty in nature.”

The trial court found the state failed to prove the “height and

sufficiency of the hydraulic connection.” It appears from the record

the trial court was referring to the supposed absence of evidence

relating to the height of the culverts connecting the site with Lake

Superior, not the absence of evidence as to the pre-existing condi-

tions of the naturally occurring inlet where the marina was built.

It is obvious that hydraulic connection has no meaning other than

being connected by water. There is a great deal of evidence in the

record that historically shows an open-water inlet crossing under

the Old Fort Road and extending east into a wetland on the in-

land side of the road. The court of appeals did not err in finding

that the site is part of a basin naturally connected to Lake Superior.

Developers argue that they submitted proof of a chain of title

to the site demonstrating that the site was never lake bed. The

original federal patent to the site was dated April, 1856, approx-

2a

imately eight years after Wisconsin became a state. As of the date

of statehood, Wisconsin obtained absolute title to the beds of

navigable waters like Lake Superior which could not be defeated

by a subsequent federal patent relating to the lands. State Land

Board v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977). See

also Angelo v. Railroad Commission, 194 Wis. 543, 550, 217 N.W.

$70 (1928).

The trial court did not find nor is there any evidence to support

the fact that the project site is entirely dry land above the OHWM

of Lake Superior. There is no evidence nor finding that would sup-

port a legal conclusion that the doctrine of reliction has any ap-

plication to this case.°

The developers also argue they are entitled to the land under

the operation of accretion. That doctrine, like reliction, relates only

to land above the OHWM. Accretion refers to dry lands which

no longer form part of the bed of a water body. De Simone v.

Kramer, 77 Wis. 2d 188, 197, 252 N.W.2d 653 (1977): “Accretion

has been defined as ‘the increase in land caused by the gradual

deposit by water of materials on the shores, which deposit replaces

the water at this location with dry land’.” The doctrine of accretion

is not relevant since the state claims only lands lying below the

OHWM.

The trial court made an error of law when it assumed that

the site itself had to be navigable in fact in order to be considered

Lake Superior lakebed. The state holds in public trust “[t}he title

to the beds of all lakes... up to the line of ordinary high-water

mark ....” /ilinois Steel, 109 Wis. 418, 425. The state regulates

navigable waters through sec. 30.12(1), Stats. The question is

whether some or all of the project site is within Lake Superior’s

OHWM, not whether it is navigable.

*Black’s Law Dictionary (5th ed. 1979) defines “reliction” as: “An increase

of the land by the permanent withdrawal or retrocession of the sea or a river

Process of gradual exposure of land by permanent recession of body of water.”

13a

The trial court failed to make OHWM findings even though

the state presented evidence establishing Lake Superior’s and the

site's OHWM. The DNR’s area water management specialist,

Richard Knitter, testified that he determined the Lake’s OHWM

approximately one-half mile from the site at a protected location

with a clear erosion line that was free from excessive wave action.

Knitter then determined that this site’s elevation was 602 feet

].G.L.D.’ He transferred the elevation of the OHWM site to a

number of points at the project site and concluded that approxi-

mately half of the site was below Lake Superior’s OHWM.* The

developer’s surveyor did not determine the OHWM of the site or

Lake Superior.

In State v. McFarren, 62 Wis. 2d 492, 498, 215 N.W.2d 459

(1974), we stated:

“The term ‘ordinary high-water mark’ was most recent-

ly defined in State v. McDonald Lumber Co. {(1962),

18 Wis. 2d 173, 176, 118 N.W. 2d 152, quoting from

Diana Shooting Club v. Husting (1914), 156 Wis. 261,

272, 145 N.W. 816]:

“““By ordinary High-water mark is meant the point

on the bank or shore up to which the presence and ac-

tion of the water is so continuous as to leave a distinct

mark either by erosion, destruction of terrestrial vegeta-

tion, or other easily recognized characteristic. Lawrence

v. American W. P. Co., 144 Wis. 556, 562, 128 N.W.

440. And where the bank or shore at any particular place

is of such a character that it is impossible or difficult

to ascertain where the point of ordinary high-water mark

"1.G.L.D. is an abbreviation for International Great Lakes Datum, a reference

system used for expressing elevations in the Great Lakes area.

*The ordinary high water mark transfer rule was developed to promote cer-

tainty and ascertain property rights in riparian lands. An ABA publication strongly

recommends its ascertainment prior to construction. Rea/ Property, Probate and

Trust Journal, Vol. 18, No. 3 (Fall 1983).

l4a

is, recourse may be had to other places on the bank or

shore of the same stream or lake to determine whether

a given stage of water is above or below ordinary high-

water mark.”

“In McDonald it was stated that the state’s title to the

lake bed runs to the ordinary high-water mark.” (Foot-

notes omitted.)

The trial court did not make a finding whether the site was

connected by water to Lake Superior; however, the trial judge did

make this observation, “sometimes water goes into the

culvert...from the marina onto the project property and

sometimes it flows out from the project property... .”

Knitter analyzed several aerial photographs of the site as it

existed in 1939 and 1950, the government survey maps, the site’s

present configuration, and stereo photographs offering a three-

dimensional view of the site indicating elevation and from these

sources he concluded that the project site was originally part of

the basin, which was enlarged to become the present marina. The

developers’ expert did not directly refute this evidence.

When the physical facts are unquestionably established,

testimony to the contrary must give way. Pappas v. Jack O. A.

Nelsen Agency, Inc., 81 Wis. 2d 363, 369, 260 N.W.2d 721, 724

(1978). In Thiel v. Damrau, 268 Wis. 76, 85, 66 N.W.2d 747, 752

(1954), the court stated: “Positive uncontradicted testimony as to

the existence of some fact, or the happening of some event, can-

not be disregarded by a court or jury in the absence of something

in the case which discredits the same or renders it against the

reasonable probabilities.”

The positive and uncontradicted testimony of Knitter that the

OHWM of Lake Superior is 602 I.G.L.D. and that the project site

was and is hydraulically connected to and is in fact a part of Lake

Superior is not discredited nor against reasonable probability. The

erection of the artificial barrier, the Old Fort Road, with culverts

between the site and the marina does not remove the site as part

lSa

of Lake Superior. As long as lake water would naturally flow to

and from the site in the absence of an artificial barrier, it is a part

of Lake Superior. The state therefore properly determined the lake’s

OHWM at “other places on the . . . shore of the same . . . lake” and

transferred that finding to the project site. Diana Shooting Club,

156 Wis. at 272.

The state claims about half of the site is below 602 feet

].G.L.D. The developers’ surveyor, while originally agreeing, later

claimed that all of the site was above the 602 feet OHWM. The

trial court did not resolve conflicts as to the elevations on the site.

We affirm the court of appeals and therefore remand the case

to the trial court for findings as to the various elevations of the

project site. Any part of the site at or below 602 feet I.G.L.D. is

within the OHWM of Lake Superior and is therefore protected

lakebed upon which building is prohibited. Any part of the site

above 602 feet is still within the floodplain of Lake Superior and

falls within the county’s jurisdiction.

The board did not and could not properly grant the developers

a floodplain variance as to any part of the site below the OHWM

of Lake Superior. Ashland county adopted a floodplain ordinance

pursuant to secs. 59.97 and 87.30, Stats. The board may grant a

variance only if the grant “will not be contrary to the public in-

terest” and “owing to special conditions, a literal enforce-

ment... would result in unnecessary hardship.” Ashland County

Flood Plain Zoning Ordinance, sec. 7.34 (April 21, 1981); sec. NR

116.21(4), Wis. Adm. Code (1986). Also, a variance “[s]hall be con-

sistent with the spirit and intent of this . . . ordinance” and shall

not be granted “solely on the basis of economic gain or loss” nor

for “a self-created hardship.” Ashland County Flood Plain Zon-

ing Ordinance, sec. 7.34(a), (g) and (h) (1981); Wis. Adm. Code NR

116.21(4) (1986).

The board neglected making any findings as to whether the

proposed project will be contrary to the public interest, whether

the site has a special condition, and whether this special condition

would result in unnecessary hardship. The board also failed to find

l6a

whether the variance would be granted solely for an economic gain

or loss and whether there is a self-created hardship.

We remand the case to the circuit court with directions to

remand the matter to the board of adjustment for findings

concerning those portions of the site higher than 602 feet, the

OHWM of Lake Superior. The board must make appropriate fin-

dings supporting its conclusion so a meaningful judicial review is

possible. See State ex rel. Ruthenberg v. Annuity & Pension Bd.,

89 Wis. 2d 463, 478, 278 N.W.2d 835, 842 (1979). The board is

required to include findings on public interest, special conditions

and unnecessary hardships as well as any of the relevant eight

factors set out in sec. 7.34 of the Ashland County Flood Plain

Zoning Ordinance. To be considered also is the Ashland county

ordinance requirement for a 75 foot set-back from the lakebed as

found by the trial court.

The decision of the court of appeals is affirmed and the case

is remanded to the trial court for fact-finding consistent with this

opinion for findings as to that portion of the site found by the trial

court to be above 602 feet I.G.L.D.

By the Court: The decision of the court of appeals is affirmed.

17a

Exhibit 1

Golf Course Condominiums Old Fort Road Lake Superior

-_—

Mondamin Trail Marina

BEST AVAILABLE COPY

18a

From The Office Of:

Marilyn L. Graves

Office of the Clerk

Supreme Court

State of Wisconsin

July 29, 1987

The Court today announced an order in your case as follows:

#85-0818 State v. Thomas D. Trudeau, et al.

Motion for reconsideration is denied, with costs.

J. Abrahamson and J. William A. Bablitch did not participate.

19a

APPENDIX B

No. 85-0818

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

Plaintiff-Appellant,

v.

THOMAS D. TRUDEAU,

TRUDEAU DEVELOPMENT, INC.,

TRUDEAU CONSTRUCTION, INC.,

SUPERIOR DEVELOPMENT, INC.,

THE ASHLAND COUNTY BOARD OF ADJUSTMENT,

LARRY HILDEBRANDT,

ASHLAND COUNTY ZONING ADMINISTRATOR,

Defendants-Respondents.

APPEAL from a judgment of the circuit court for Ashland

county: WILLIAM E. CHASE, Judge. Reversed and cause

remanded with directions.

Before Cane, P.J., Dean and LaRocque, JJ.

LaROCQUE, J. The state appeals the dismissal of its action

seeking injunctive relief against Thomas Trudeau, Trudeau

Development, Inc., Trudeau Construction, Inc., Superior Develop-

ment, Inc. (Trudeau), and the Ashland County Board of Adjust-

ment. The state argues that Trudeau erected condominiums on the

lake bed of Lake Superior contrary to sec. 30.12(1), Stats.,' and

that the board improperly granted Trudeau a floodplain zoning

20a

variance to construct the condominiums. We conclude that physical

facts established by positive, uncontradicted evidence demonstrate

the project site is naturally connected to Lake Superior and that

if any part of the site is at or below 602 feet 1.G.L.D.’ of the lake's

ordinary high-water mark (OHWM), it is part of Lake Superior.

Therefore, that part of the judgment concluding that the con-

dceminiums do not rest on the Lake Superior lake bed is reversed

and remanded for findings by the trial court of the site’s elevations.

That part of the judgment affirming the board is also reversed and

remanded for further proceedings consistent with this opinion.

The subjects of this controversy are six condominium units,

erected by Trudeau on Madeline Island as part of a planned develop-

ment. Old Fort Road lies between the building site and Madeline

Island Marina, which is a part of Lake Superior. Water on the site

is as deep as 1.2 feet, much of it covered with wetland vegetation,

and is connected to the marina by at least two culverts running

under the road. The condominiums have been built on stilt-like

pilings above the water.

The marina and Old Fort Road were constructed in approx-

imately 1964. The marina was constructed by enlarging a small

basin of Lake Superior. This basin was originally bisected by a road

with a bridge, but they were removed when the marina was con-

structed. Old Fort Road was then constructed to the east of the

marina, with the culverts placed beneath the road connecting the

project and the marina.

The DNR advised Trudeau after meeting with him in

November, 1983, that the site was poor for building because of

its low elevation, presence of standing water, and wetlands quali-

ty, and recommended that he build on an upland site. Trudeau

ignored this advice and began construction. Thereafter, he applied

to the board for a variance from the floodplain zoning requirement

that the condominiums rest on seid fill. The board granted the

variance, and Trudeau then finished building the six units. In

August, 1984, the state initiated this action against both Trudeau

and the board.

2la

The trial court made an error of law when it assumed that

the site itself had to be navigable in fact in order to be considered

Lake Superior lake bed. The state holds in public trust “[t]he title

to the beds of all lakes .. . up to the line of ordinary high-water

mark ...” Jilinois Steel Co. v. Bilot, 100 Wis. 418, 425, 84 N.W.

855, 856 (1901). The state regulates navigable waters through sec.

30.12(1). Lake Superior is obviously navigable water, sec.

144.26(2)(d), Stats., and the initial question therefore is whether

some or all of the project site is within Lake Superior’s OHWM,

not whether it is navigable.

OHWM is defined as “the point on the bank or shore up to

which the presence and action of the water is so continuous as to

leave a distinct mark either by erosion, destruction of terrestrial

vegetation, or other easily recognized characteristic.” Diana

Shooting Club v. Husting, 156 Wis. 261, 272, 145 N.W. 816, 820

(1914). In the event it is impossible to determine the OHWM at

a particular place on the shore, “recourse may be had to other places

on the .. . shore of the same . . . lake to determine whether a given

stage of water is above or below [OH WM.” /d. The actual navigable

quality of a section of water matters little as long as it falls within

the OHWM of a navigable lake. Hous/et v. State, 110 Wis. 2d 280,

287, 329 N.W.2d 219, 223 (Ct. App. 1982). “It may be deep or

shallow, clear or covered with acquatic vegetation.” Diana Shooting

Club, 156 Wis. at 272, 145 N.W. at 820.

The trial court failed to make OHWM findings, but the state

presented evidence establishing Lake Superior’s and the site's

OHWM. The DNR’s area water management specialist testified

that he determined the lake’s OHWM approximately one-half mile

from the site at a protected location with a clear erosion line that

was free from excessive wave action. Richard Knitter, DNR

engineer, then determined that this site’s elevation was 602 feet

1.G.L.D. Knitter transferred the elevation of the OHWM site to

a number of points at the project site and concluded that approx-

imately half of the site was below Lake Superior’s OHWM.

Trudeau’s surveyor did not determine the OHWM of the site or

Lake Superior. He testified that because the site had no discerni-

ble waterline or erosion line, its OHWM could not be determined.

i”

Trudeau now argues that the site is not a part of nor connected

to Lake Superior, and therefore the lake’s OHWM cannot be ap-

plied to it.

The trial court, although it did not make a formal finding

whether the site was hydraulically connected to Lake Superior,

made this observation: “sometimes water goes into the

culvert...from the marina onto the project property and

sometimes it flows out from the project property...” Knitter

testified that the project was originally part of the basin, which

was enlarged to become the present-day marina. He drew this con-

clusion by studying several aerial photographs of the site as it ex-

isted in 1939 and 1950, the original government survey maps, and

the site’s present configuration. He also studied stereo photographs,

which offered a three-dimensional view of the site and the ability

to determine elevation. Trudeau’s expert did not directly refute this

evidence. He merely concluded that on the original 1854 plat of

the site’s township, there was no “indentation of Lake Superior

across Lot 31 or...Lot 2...” The marina entrance and the

original basin lie where those lots used to be. Testimony contrary

to physical facts unquestionably established must give way to the

physical facts. Pappas v. Jack O.A. Nelsen Agency, Inc., 81 Wis.

2d 363, 260 N.W.2d 721, 724 (1978).

Where there is positive, uncontradicted testimony as to the

existence of some fact, a court cannot disregard that evidence in

the absence of something in the case that discredits the testimony

or renders it against the reasonable probabilities. Thie/ v. Damrau,

268 Wis. 76, 85, 66 N.W.2d 747, 752 (1954).

Knitter’s positive, uncontradicted evidence that the OHWM

of Lake Superior is 602 feet 1.G.L.D. and that the project site was

and is hydraulically connected to, and is in fact a part of, Lake

Superior is not in any way discredited nor against reasonable pro-

bability. The erection of the artificial barrier (Old Fort Road) with

culverts between the site and the marina does not remove the site

as part of Lake Superior. As long as lake water naturally flows to

and from the site, it is a part of Lake Superior. Contrary to

Trudeau’s assertions, the state therefore properly determined the

23a

lake's OHWM at “other places on the...shore of the

same .. . lake” and transferred that finding to the project site. Diana

Shooting Club, 156 Wis. 2d at 272, 145 N.W.2d at 820.

The trial court did not resolve conflicts as to the elevations

on the site. The state claimed that about half of the site was below

602 feet 1.G.L.D. Trudeau’s surveyor, while originally agreeing,

later claimed that all of the site was above the 602 feet OHWM.

We therefore remand for findings as to various elevations on

the project site. Any part of the site at or below 602 feet 1.G.L.D.

is within the OHWM of Lake Superior and is therefore protected

lake bed upon which building is prohibited. Any part of the site

above 602 feet is still within the floodplain of Lake Superior and

falls within the county’s jurisdiction.’

The second issue is therefore whether the board properly

granted Trudeau a floodplain variance as to that part of the site

above the OHWM of Lake Superior. We conclude that it did not.

Ashland County adopted a floodplain zoning ordinance pur-

suant to secs. 59.97 and 87.30, Stats. In order to construct the six

units, Trudeau was required to obtain a variance from the require-

ment that floodplain structures rest on solid fill. The board may

grant a variance only if the grant “will not be contrary to the public

interest” and “owing to special conditions, a literal enforce-

ment... would result in unnecessary hardship.” Ashland Coun-

ty, Wis., Flood Plain Zoning Ord. § 7.34 (April 21, 1981); Wis.

Admin. Code § NR 116.21(4) (1986). Also, a variance “shall be

consistent with the spirit and intent of the ordinance” and shall

not be granted “solely on the basis of economic gain or loss” nor

for “a self-created hardship.” Ashland County, Wis., Flood Plain

Zoning Ord. § 7.34(a), (g), and (h) (1981); Wis. Admin. Code NR

116.21(4) (1986).

The board failed to make any findings as to whether the pro-

posed project will be contrary to the public interest, whether the

site has a special condition, and whether this special condition would

result in unnecessary hardship. Moreover, the board failed to find

24a

whether the variance would be granted solely for an economic gain

or loss and whether there is a self-created hardship.

We conclude that the board must make findings supporting

its conclusion so there can be a meaningful judicial review. See

State ex rel. Ruthenberg v. Annuity & Pension Board, 89 Wis. 2d

463, 478, 278 N.W.2d 835, 842 (1979). We therefore remand the

matter to the circuit court with directions to remand the matter

to the board to make appropriate findings. The board must include

findings on public interest, special conditions, and unnecessary hard-

ships, as well as any of the relevant eight factors set out in § 7.34.

Finally, Trudeau argues that the state’s exclusive means of

appeal was sec. 59.99(10), Stats., which provides for certiorari review

of a board decision within thirty days. We conclude that sec.

87.30(2), Stats., provides the state with an alternative remedy.

Section 87.30(2) deals specifically with floodplain zoning and

allows the state to sue to enforce a zoning ordinance adopted under

sec. 59.97 under which Ashland County’s Flood Plain Ordinance

was adopted. Section 59.99(10), on the other hand, sets out specific

procedures for boards of adjustment, including certiorari review.

Therefore, both statutes, on their faces, give the state power to

challenge the board's actions, and both deal generally with the same

subject matter.

Statutory construction is a question of law that this court

reviews independently on appeal. Wisconsin Department of

Revenue v. Milwaukee Brewers Baseball Club, 111 Wis. 2d 57}.

577, 331 N.W.2d 383, 386 (1983). In construing a statute relating

to a particular subject matter, related statutes should be interpreted

sO as to give effect to each provision of the statutes involved. Estare

of Fucela, 26 Wis. 2d 476, 480, 132 N.W.2d 553, 556 (1965). To

allow the state only to proceed under sec. 59.99(10) would render

sec. 87.30(2) meaningless. The state would be confined to a cer

tiorari review even though sec. 87.30 specifically authorizes it to

enforce floodplain zoning ordinances. This is not a result the

legislature could have intended.

25a

We reverse the judgment for the purpose of fact finding con-

sistent with this opinion and for further remand to the board of

adjustment for findings as to that portion of the site found by the

trial court to be above 602 feet 1.G.L.D.

By the Court. — Judgment reversed and cause remanded with

directions.

Not recommended for publication in the official! reports.

26a

APPENDIX

Section 30.12(1), Stats., provides in part:

(1) General prohibition. Except as provided under sub.

(4), unless a permit has been granted by the department . . . it

is unlawful:

(a)...to place any structure upon the bed of any

navigable water where no bulkhead line has been establish-

ed; or

(b)...to place any structure upon the bed of any

navigable water beyond a lawfully established bulkhead line.

1.G.L.D. is an abbreviation for International Great Lakes

Datum, a reference system used for expressing elevations in

the Great Lakes area.

Trudeau also argues that he is entitled to the land because

of reliction. Relicted land is land uncovered as a body of water

gradually recedes. Perpignani v. Vonasek, No. 84-2445 slip

op. app. n. 2 (Wis. Ct. App. Feb. 25, 1986). The law of reliction

has no application in this case because land cannot at the same

time be a lake bed and relicted land. Relicted land is the

antithesis of a lake bed.

27a

APPENDIX C

; CIRCUIT COURT

STATE OF WISCONSIN ASHLAND COUNTY

STATE OF WISCONSIN,

Plaintiff, Case No. 84 CV 8103

iP

MEMORANDUM OPINION

THOMAS D. TRUDEAU;

TRUDEAU DEVELOP.

MENT, INC.;

TRUDEAU CONSTRUC-

TION, INC.;

SUPERIOR DEVELOP.

MENT, INC.:

ASHLAND COUNTY

BOARD OF

ADJUSTMENT;

CAREY HILDEBRANDT,

ASHLAND COUNTY ZON-

ING ADMINISTRATOR,

AND ORDER

Defendants

em er me ee ee ee”

Pursuant to the statement of plaintiff in its first post-trial brief

at page 4, the claim against Trudeau Construction, Inc. is dismissed.

Plaintiff has five causes of action in its amended complaint

against the remaining defendants. It alleges: (1) that the County

should not have issued a land use permit because defendants’ con-

dominium project was not approvable under the Amendatory Coun-

ty Zoning Ordinance, Sec. 15.4 by reason that the current U.S.

Geological Survey Quadrangle map for Bayfield describes the land

on which the project is to be situated as swamps and marshes. The

Ordinance alleged to be violated is commonly known as the

28a

Shoreland Zoning Ordinance. In summary, plaintiff alleges that

the County Zoning Administrator was in error when he designated

the area a General Purpose District instead of a Conservancy

District. The complaint further alleges that the project is a public

nuisance pursuant to Secs. 87.30 (2), 59.971 (2) and 59.971 (7) Stats.

(2) The variance granted defendants to obviate the fill and

flood requirements of Sec. 4.42 of the County Flood Plain

Ordinance should not have been granted because the County Board

of Adjustment did not make a finding that literal enforcement of

the ordinance would result in an unnecessary hardship, or a finding

that the variance was not contrary to the public interest, as required

by Sec. 7.34 of the Ordinance and Sec. 59.99 (7) (c) Stats. The com-

plaint alleges that pursuant to Sec. 87.30 (2) Stats. and Sec. NR

116.22 (4) (d) Administrative Code the project is a public nuisance.

(3) The land on which the project is and may be constructed

is below the ordinary high water mark (i.e. the lake bed) of Lake

- Superior, a navigable water, and there are areas where no bulk head

line has been established, and defendants have no permit from the

DNR pursuant to Sec. 30.12 Stats.

Cause of action (4) is substantially the same as alleged in cause

of action (3).

(5) All of the planned project is and will be, if completed.

less than seventy-five feet from the normal high water elevation

of Lake Superior contrary to Sec. 3.1 of the Amendatory Zoning

Ordinance of the County.

The ad damnen clause contains the relief asked by plaintiff

if it prevails on the merits.

We will discuss and rule on the causes of action, starting with

causes (3), (4) and (5).

Cause of Action (3). The claim is that the project land is

below the ordinary high water mark of Lake Superior as defined

in Diana Shooting Club vs. Husting, 156 Wis. 261 (1914), at page

212

29a

“ _.. By ordinary high water mark is meant.on the bank

or shore up to which the presence and action of the water

is SO continuous as to leave a distinct mark either by ero-

sion, destruction of terrestrial vegetation, or other easi-

ly recognized characteristic ... And where the bank or

shore at any particular place is such that it is impossible

or difficult to ascertain where the point of ordinary high

water mark is, recourse may be had to other places on

the bank or shore of the same stream or lake to deter-

mine whether a given stage of water is above or below

ordinary high water mark.”

The Court finds on the evidence in this case that there is no

distinct mark on the project property, other than perhaps some

aquatic vegetation growing thereon, where it could possibly be said

that the test could be met in any way. One of the reasons for this

is the construction of Old Fort Road with government approval

wich creates an artificial barrier between the project site and the

merina, which is part of Lake Superior, a navigable water. The

project is connected to Lake Superior by a culvert under Old Fort

Rcad and possibly one under Mondamin Trail. The Court is

satisfied that the issue in cause of action (3) must be decided on

the sufficiency or insufficiency of the hydraulic connection between

the project site and the marina because if the project site is not

pent of Lake Superior no permit from the State is required. NOTE

1) The Court feels this is important because there is a lot of land,

at least in Northern Wisconsin, that may be below the ordinary

high water mark of a navigable stream or lake but is separated

therefrom by a hill or other barrier and could hardly be classified

aSa navigable water or part thereof. Even if it had some aquatic

vezetation on it the project site is located on a spot where at least

presently no one can boat on it; no one can fish on it; and there

wes no evidence submitted that anyone did or could hunt on it

ortrével on it for recreation as an incident to navigation. There

Wes no evidence in the case that the public has any use for this

lard, let alone recreational, and none was claimed other than owner-

shp, the purpose of ownership being unknown.

30a

In Doemel vs. Jantz, 180 Wis. 225 (1923) it was said with ap-

proval that a riparian owner is entitled to the land formed by gradual

accretions and as a result of reliction. Reliction is defined in law

as land left uncovered by the recession of the sea or other water

(Webster’s New Twentieth Century Dictionary, 2nd ed., 1960). The

evidence in the case is clear that sometimes water goes into the

culvert under Old Fort Road from the marina onto the project

property and sometimes it flows out from the project property, but

never to an extent that the public could use the project land as

an incident to navigation as defined in the Doemel case at pages

229-30. NOTE (2) The Court is satisfied that if there ever was a

hydraulic connection between the project site and Lake Superior

it has receded to such a point that the State as trustee for the public

has no interest in the project site land. It should be pointed out

further that, even if the vegetation test was the sole test used here,

there was evidence of substantial terrestrial vegetation on the site

such as birch trees, etc. as distinguished from aquatic vegetation.

Plaintiff's cause of action (3) is dismissed based upon its failure to

prove that the project land is navigable under Wisconsin Law.

Cause of Action (4): Plaintiff's cause of action (4) relating

to constructing parking !ots is dismissed for the same reasons

specified in cause of action (3).

Cause of Action (5): is dismissed because the Court having

found adversely to plaintiff on causes of action (3) and (4) it follows

that the project site is set back a minimum distance of 75 feet from

the normal high water elevation of Lake Superior, that being on

the marina side of Old Fort Road.

Cause of Action (1): relates to plaintiff's claim that the Coun-

ty should not have issued a land use permit for the project because

the Zoning Administrator was in error when he designated the

project site General Purpose instead of Conservancy under the

County’s Shoreline Zoning Ordinance. Pursuant to Sec. 2.2 of the

ordinance the Zoning Administrator is to decide the location of

the district boundaries subject to appeal under Sec. 13.0 of the or-

dinance. Plaintiff never appeaied-under the ordinance, but has

brought this action instead. The Zoning Administrator determin-

3la

ed that the project was in the General Purpose District because

the official Shoreland Zoning map did not designate it as swamp

or marsh. NOTE (3) As a separate ground he determined that the

Town’s Ordinance, which permitted the project, was more

restrictive than the County’s Ordinance, and thus the County’s

Ordinance did not apply in any event. The Court finds that the

Zoning Administrator’s decision was not arbitrary or capricious,

and that his decision is supported by the evidence. Plaintiffs cause

of action (1) is dismissed.

Cause of Action (2): This relates to the variance granted by

the Board of Adjustment to defendant from the County’s Flood

Plain Ordinance granting defendant the right to use pilings instead

of fill in constructing the project. The Zoning Administrator found

that the project site was in the flood plain as defined by the Ashland

County Ordinance, and defendants applied for and were granted

a variance. The variance was granted by the Board after a full hear-

ing, at which the DNR was present. The Court is satisfied from

the minutes of the Board that it was aware of the applicable law

and criteria necessary for it to make its decision. Though the minutes

of the Board do not disclose that the magic words such as “not

due to a self-created hardship” were used in the Board’s decision,

the Court is satisfied that it was aware of all of the necessary criteria

and its decision by implication was based on all the relevant criteria.

Cause of action (2) is dismissed.

NOTE (1): Both sides concede that arguments of I.G.L.D.

are necessary only for purposes such as determining compliance

with the Flood Plain Zoning Ordinance and are not relevant to

the ordinary high water mark issue.

NOTE (2): Inasmuch as the rule of reliction applies it is not

necessary to determine what the project land was or was not in

the past under the facts of this case

NOTE (3): The State has proven that the map used by the

Zoning Administrator was not approved by the DNR. The Court

finds, however, that if he had used the map suggested by the DNR,

his decision would nevertheless be not arbitrary.

32a

NOTE (4): Defendants’ motion to amend answer in

paragraph 13 to Sec. 59.99 (10) Stats. is granted.

NOTE (5): Plaintiff has dropped its claim for the assessment

of forefeiture for at least existing alleged violations. See page 14

of its post-trial reply brief.

NOTE (6): The Court has not decided the question concern-

ing whether the State could or has timely appealed the determina-

tions of the Board of Adjustment and the Zoning Administrator

because it has decided the case on the merits.

ORDER

Plaintiff's complaint is dismissed, and the Clerk is to enter

judgment accordingly.

Dated this 4th day of March, 1985.

BY THE COURT

William E. Chase

Circuit Judge

A:

Mr. Matthew Anich, District Attorney

Mr. Thomas Dosch, Assistant Attorney Genera!

Mr. Ronald E. Martell, Attorney

Mr. Chris Kabella, Attorney

Mr. Richard Wartman, Attorney

33a

_ CIRCUIT COURT

STATE OF WISCONSIN ASHLAND COUNTY

STATE OF WISCONSIN,

COURT FILE NO. 84 CV 8103

Plaintiff,

FINDINGS OF FACT AND

THOMAS D. TRUDEAU;

TRUDEAU DEVELOP.

MENT, INC.; TRUDEAU

CONSTRUCTION, INC.;

SUPERIOR DEVELOP.

MENT, INC.; THE

ASHLAND COUNTY

BOARD OF ADJUST-

MENT; LARRY HILDE-

BRANDT, ASHLAND

COUNTY ZONING

ADMINISTRATOR,

CONCLUSIONS OF LAW

Defendants.

etl tle le i de de ne ee ee ee eee

FINDINGS OF FACT

The Court, having made its Memorandum Opinion dated

March 4, 1985, makes these findings of fact:

1. That the Court’s Memorandum Opinion, including the

footnotes, are the Findings of Fact and Conclusions of Law of the

Court, and in addition and supplemental thereto the Court finds:

A. There was no evidence that the two culverts connecting

Lake Superior with the project property were above, below, or at

the same level with the OHWM of Lake Superior, and, absent such

evidence, the presence of those two culverts does not establish an

34a

hydraulic connection with the same OHWM as Lake Superior to

explain why water sometimes flows in and sometimes out of the

culverts. If the culvert was above or below the OHWM it would

not explain where the water came from on the project property

in relation to the OHWM. Plaintiff has not met its burden of pro-

of concerning the height and sufficiency of the hydraulic connec-

tion. Absent such evidence the OHWM of Lake Superior becomes

meaningless.

B. A public hearing was held on January 13, 1984, and as

a result thereof defendants were granted a variance from the

Ashland County Flood Plain Ordinance, from which the State, an

interested party, did not apply for a Writ of Certiorari within 30

days of the filing of the decision with the board, as required by

Sec. 59.99 (10) Stats., and it cannot in the case at bar raise the issue

of alleged improper granting of the variance in any event. NOTE (1)

CONCLUSIONS OF LAW

Plaintiff's complaint is dismissed with prejudice and without

costs, and the Clerk is to enter judgment accordingly.

NOTE (1): See 57 Marquette Law Review 25 for an article

dealing with notices to the DNR under the Shoreland Zoning and

other acts. The Court is now satisfied, as it wasn’t when it wrote

its March 4, 1985 opinion, that the State in the case at bar was

an aggrieved party as defined in Sec. 59.99 (10) Stats. and should

have timely appealed.

NOTE (2): No costs are allowed becawse there is no statutory

authority for them. Defendants’ case citations rely on statutes not

applicable to the case at bar.

35a

Dated this llth day of April 1985.

BY THE COURT

William E. Chase

Circuit Judge

CC:

Mr. Thomas Dosch, Assistant Attorney General

Wisconsin Department of Justice

P.O. Box 7857

Madison, Wisconsin 53707-7857

Mr. Ronald Martell, Attorney

Moore, Costello & Hart

1400 Norwest Center

55 East Fifth Street

St. Paul, Minnesota 5510]

Mr. Richard Wartman, Attorney

Wartman, Wartman & Dallenbach

220 Sixth Avenue West

Ashland, Wisconsin 54806

Mr. Matthew Anich, District Attorney

Court House

Ashland, Wisconsin 54806

37a

CIRCUIT COURT

STATE OF WISCONSIN ASHLAND COUNTY

State of Wisconsin. COURT FILE NO. 84CV8103

Plaintiff.

VS.

Thomas D. Trudeau: JUDGMENT

Trudeau Development, Inc.:

Trudeau Construction, Inc.;

Superior Development, Inc.;

the Ashland County Board

of Adjustment; Larry

Hildebrandt, Ashland

County Zoning

Administrator,

Defendants.

Based upon the foregoing Order for Judgment, it is hereby

decreed that a Judgment in the.above-captioned matter be docketed.

entered, and filed with the Ashland County Clerk of Court

adjudging:

1. That Plaintiff's Complaint is dismissed in its entirety

against all Defendants. with prejudice.

2:----Fhat-the -Defendants-have-and-recover------ WEC

§----~----------0---22--0022eoeneeneeen eens as +ts-eosts-allowed-by law. AF

3. That the Notice of Lis Pendens and Amended Notice of

Lis Pendens filed against the Project property is discharged.

BY THE COURT:

Dated: April 11, 1985 William E. Chase

The Honorable William E. Chase

Circuit Judge

39a

APPENDIX D

include contentions as to what evidence is properly before the court

for consideration.

I]. THE PLAINTIFF’S SEC. 30.12, STATS.,

CLAIMS AGAINST THE DEFENDANT

REAL ESTATE DEVELOPERS.

A. The Relevant Law.

The third and fourth claims of the plaintiff's amended com-

plaint allege that the defendants Superior Development, Trudeau

Construction, Trudeau Development and Thomas Trudeau have

committed violations of sec. 30.12, Stats., by building condominiums

and a parking facility on the bed of Lake Superior. That statute

reads, in relevant part:

(1) GENERAL PROHIBITION. Except as pro-

vided under sub. (4), unless a permit has been granted

by the department pursuant to statute or the legislature

has otherwise authorized structures or deposits in

navigable waters, it is unlawful:

(a) To deposit any material or to place any struc-

ture upon the bed of any navigable water where no

bulkhead line has been established; or

(b) To deposit any material or to place any struc- c

ture upon the bed of any navigable water beyond a

lawfully established bulkhead line.

Section 30.15(4), Stats., further authorizes this court to make such

orders as are appropriate to eliminate structures which violate sec.

30.12, Stats.:

OBSTRUCTIONS ARE PUBLIC NUISANCES. Every

obstruction constructed or maintained in or over any

navigable waters of this state in violation of this chapter

and every violation of s. 30.12 or 30.13 is declared to

40a

be a public nuisance, and the construction thereof may

be enjoined and the maintenance thereof may be abated

by action at the suit of the state or any citizen thereof.

The relief sought by the plaintiff in this case is the removal of those

Structures (/.e., condominiums or parking facilities) which lie on

ground below the ordinary high water mark of Lake Superior and

an injunction prohibiting further construction on such lands.

Although the amended complaint contains a request for the im-

position of forfeitures, the plaintiff will not request such a penalty

at this time, but will pursue the collection of forfeitures only for

any future violations by these defendants.’ Before turning to the

particular facts of this case, the law regarding ownership and con-

trol of Wisconsin’s lakebeds will be discussed.

Section 30.12 and chapter 30, Stats., generally speaking, codify

or reflect a number of common law doctrines regarding the owner-

ship of the beds of navigable waters. It has long been established.

indeed to the point of being “too well settled to warrant any discus-

sion: by the Wisconsin Supreme Court. that:

The 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, to the same extent that the public are entitl-

ed to enjoy tidal waters at the common law.

Iliinois Steel Co. v. Bilot and wife, 109 Wis. 418. 425, 84 N.W.

855 (1901) (emphasis added). See also State y. McDonald Lumber

Co., 18 Wis. 2d 173, 176, 118 N.W.2d 152 (1962). This is as true

of the beds of the Great Lakes as it is of lesser inland waters. /bid.

An informative historical background of this public trust is found

'The plaintiff concedes that, based on the pleadings, the defendants’ Answers

to Interrogatories and the evidence at trial. that the plaintiffs claims against

Trudeau Construction, Inc.. may be dismissed.

4la

in the landmark case of Muench v. Public Service Comm., 261

Wis. 492. 53 N.W.2d 514 (1952}, where the court noted:

At an early date in its history the Wisconsin court put

itself on record as favoring the trust doctrine, that the

state holds the beds underlying navigable waters in trust

for all of its citizens, subject only to the qualification

that a riparian owner on the bank of a navigable stream

has a qualified title in the stream bed to the center

thereof.

261 Wis. at 501-02. Title to lake beds passed to the state upon

statehood. Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 230

(1845). Section 30.12, Stats., which the plaintiff has asked this court

to enforce against the defendant real estate developers, is a codifica-

tion of the common law restriction against encroachments on public-

ly held lakebeds. See Hixon v. Public Service Comm., 32 Wis. 2d

608, 616, 146 N.W.2d 577 (1966).

The definition of what constitutes the ordinary high-water

mark of a lake, which demarcates the state-owned lakebed from

the upland capable of private ownership, is similarly well-established

in the law. In the case of Diana Shooting Club v. Husting, 156

Wis. 261. 145 N.W. 816 (1914), in which the court examined the

ownership of a bay area which was navigable in fact only part of

each year and which contained vegetation four to five feet above

the water’s surface, the court observed:

By ordinary high-water mark is meant the point on the

bank or shore up to which the presence and action of

the water is so continuous as to leave a distinct mark

either by erosion, destruction of terrestrial vegetation,

or other easily recognized characteristic. Lawrence v.

American W.P. Co. 144 Wis. 556, 562, 128 N.W. 440.

And where the bank or shore at any particular place is

of such a character that it is impossible or difficult to

ascertain where the point of ordinary high-water mark

is, recourse may be had to other places on the bank or

shore of the same stream or lake to determine whether

a given stage of water is above or below ordinary high-

water mark.

42a

156 Wis. at 272. For purposes of determining the extent of con-

trol of the public trust “it is immaterial what the character of the

stream or water is. It may be deep or shallow, clear or covered with

aquatic vegetation.” /bid. Judicial recognition of state title to land

below waters that are not continuously navigable continues to the

present day:

[T]he public interest in and title to the navigable waters

in this state attaches to more than the Open and

perpetually navigable waters contained in lakes, rivers

and streams. It extends to areas covered with aquatic

vegetation within the ordinary high water mark of the

body of water in question.

Houslet v. Natural Resources Department, 110 Wis. 2d 280, 287,

329 N.W.2d 219 (1982). Public ownership of the bed applies

whether the water is deep or shallow, whether the bed is a sand-

bar in an otherwise navigable channel or whether it is shoal water

next to the bank. Diedrich v. The N.W.U.R'y Co., 42 Wis. 248.

266 (1877). ;

As may be apparent from a reading of the foregoing rule which

defines the extent of state ownership of lake beds, Wisconsin law

recognizes that the boundaries of a riparian’s property (i.e., pro-

perty along a navigable body of water) may change over time

through certain physical processes such as accretion, reliction, ero-

sion or avulsion. See, e.g., Baldwin v. Anderson, 40 Wis. 2d 33,

161 N.W.2d 553 (1968). Indeed, some authorities take the posi-

tion that a rule of law involving fixed, rather than ambulatory,

boundaries, would be unconstitutional. Land and Water 1. Rev.,

Vol. XIII, No. 2 (1978) at 465.

Before turning to the evidence in this case. or the law applicable

to the affirmative defenses asserted by the defendants, one other

aspect of sec. 30.12, Stats., will be discussed in general terms. That

issue concerns the element of the offense involving “bulkhead lines.”

In the case of State v. McFarren, 62 Wis. 2d 492, 497-99, 215

N.W.2d 459 (1974), the Supreme Court described what a “bulkhead

line” is within the meaning of that statute. The court distinguished

the legal definition of bulkhead line from the concepts of the natural

a eas, ONE LOLI LEE 8 i

a aa

43a

shoreline and from either the low or high-water marks on the shore.

In the words of the court, “a bulkhead line . . . is a line legislative-

ly established by a municipality which may differ from the existing

shoreline.” 62 Wis. 2d at 498. Prior to becoming effective, a

bulkhead ine must be approved by the Wisconsin Department of

Natural Resources. The procedure for establishing a bulkhead line

is expressed in sec. 30.11, Stats.

B. The evidence that the defendant real estate

developers have violated sec. 30.12, Stats.

The elements of proof necessary to demonstrate a violation

of sec. 30.12(1), Stats., where, as here, there is no bulkhead line,

are as foliows:

1. the placement of a structure or deposit of any material;

2. upon the bed (i.e., below the ordinary high-water mark)

of a navigable body of water;

3. in an area where no bulkhead line has been established;

and

4. without a permit from the DNR authorizing such action.

A review of the clear, satisfactory and convincing evidence in this

case shows, to a reasonable certainty, that every element of this

offense has been proven in this case.

Three of the four elements of this offense are essentially un-

disputed. The absence of a sec. 30.12, Stats., permit was admitted

to by the defendants in paragraph 8 of their Amended Answer.

The absence of a sec. 30.12 permit was also established by Exhibit

23, the affidavit by the custodian of DNR records that no such

permit was on file with the DNR, and by the testimony of Richard

Knitter that his search of DNR records indicated that 110 sec. 30.12

permit had been issued by the DNR for the Marina Point Con-

dominiums project. Exhibit 23 and the testimony of Richard Knitter

similarly established, by unrebutted evidence, that no sec. 30.11,

Stats.. bulkhead line has ever been established in the vicinity of

44a

the defendants’ project.’ The other undisputed element of this of-

fense is the existence of certain structures (Condominium Cluster

“A”) and the deposit of materials (the parking lot). Both are shown

in the numerous photographic exhibits (see, e.g., Exhibits 5 and

6) and on the real estate developers’ own survey (Exhibit 83). The

only real dispute between the parties with respect to whether or

not a violation of sec. 30.12, Stats., has been established concerns

the location of the ordinary high-water mark (OHWM) of Lake

Superior in the vicinity of the Marina Point Condominiums project.

If the structures and deposits were placed below the OHWM, a

violation clearly exists; if they were placed inland from the OHWM,

then no violation of the statute has yet taken place.’ Before discuss-

ing whether or not portions of this particular property are above

or below the OHWM of Lake Superior, however, several genera!

comments about surveying and ordinary high water marks are in

order.

As the state’s surveyor, Mr. Richard Knitter, testified, it is

possible for the elevation of a particular point to be expressed in

terms of either an arbitrary numbering system or in terms of some

established data system, or “datum,” which employs certain con-

ventions and specific values for particular points. Both the plaintiff's

and the defendants’ surveyors made reference to a number of

datums: I.G.L.D. (International Great Lakes Datum), M.S.L. and

N.G.V.D., among others. As Mr. Knitter testified, however, and

’The only attempt by the defendants to refute the nonexistence of a bulkhead

line was some questioning by defense counsel, Mr. Martell, objected to by counsel

for the plaintiff as irrelevant, which was intended to establish that the road be-

tween the project site and the Marina might function in fact as a “bulkhead.”

The plaintiff's objection was based on the proposition that only a legally established

“bulkhead line” had any relevance to this case. See the discussion of the McFarren

case. supra. Moreover, the testimony elicited from the witness (Richard Knitter)

by defense counsel was that the road did not in fact act as a bulkhead or dam.

*It should be remembered that the defendants contemplate developing the

remaining portions of the land described in Exhibit 1, much of which. according

to the testimony of the state’s surveyor. Richard Knitter, and as shown by defense

Exhibits 82 and 83, is lower than the portion already developed.

a_i —

45a

as William Shearman, the defendants’ surveyor agreed,‘ it is not

necessary to employ any particular datum to determine an OHWM

or to compare the relative elevations of surrounding lands with

the OHWM thus established. The use of a particular datum would

be required, for purposes reievant to this lawsuit, only for deter-

mining compliance with the floodplain zoning ordinance, which

is expressed in terms of 1.G.L.D. The truth of this proposition was

conceded by the defendants’ surveyor. Transcript, at 35. Thus, while

Mr. Knitter did assign an 1.G.L.D. elevation to the OHWM of Lake

Superior determined by the DNR, he didn’t need to use that data

system. Furthermore, regardless of the absolute accuracy of his

assumed I.G.L.D. elevation of the OHWM, he could accurately

compare the relative elevations of Lake Superior and the land

described in Exhibit 1, the project site. Thus, the dispute between

the parties as to the accuracy of Knitter’s assumed I.G.L.D. eleva-

tion of Lake Superior’ is not relevant to a consideration of whether

the Marina Point Condominiums site is above or below the OHWM

of Lake Superior. Its importance to the case is limited to a deter-

mination of compliance with the Ashland County floodplain zon-

ing ordinance, and more particularly to the question of whether

or not the site is located on land below the elevation of the ap-

“When asked if he agreed with the proposition that Mr. Knitter's assumed

level of Lake Superior. even if incorrect, need not affect Mr. Knitter's comparison

of the relative elevations of the lake and the Marina Point Condominiums site,

Mr. Shearman responded: “If he assumed the high water mark in one position,

correct.” Transcript at 46. See also Mr. Shearman’s response to the following

question on pages 34-35 of the transcript:

Q. ___If you wanted to determine whether or not the elevation of a par-

ticular piece of land is above the ordinary high water mark. you can

start at an arbitrary number and determine whether or not it was

higher on the water elevation?

A. Probably, yes.

‘The defendants’ criticism of Mr. Knitter's conclusions as to the I.G.L.D.

elevation of Lake Superior are elaborated upon in great detail in both Mr.

Shearman’s trial testimony and in the defendants’ post-tria) surrebuttal affidavits.

46a

plicable flood profile elevation. With these general concepts in mind,

the evidence produced at trial with respect to the elevation of the

OHWM will now be considered.

Mr. Duane Lahti, the DNR’s Area Water Management

Specialist, a man with a college degree in biology, and a minor in

geology, and who has had advance formal education with respect

to aquatic plant species, described how he selected a point the eleva-

tion of which he believed to represent the OHWM of Lake Superior

on Madeline Island. Mr. Lahti described how he applied the fac-

tors listed by the Wisconsin Supreme Court in the Diana Shooting

Club case, supra, and he testified that it is sometimes easier to iden-

tify the OHWM on some portions of a shore than along others

where vegetation may obscure or render indistinct the location of

the OHWM. Mr. Lahti described how, on October 25, 1984, he

selected a sheltered site within the La Pointe ferry pier harbor for

use in making his OHWM determination because the area could

not experience excessive wave action, because there was a clear

erosion mark on the shore at this site (unlike the Marina Point con-

dominiums site) and because there was a well-defined line of upland

or dune-type vegetation at that location. All these factors are readily

apparent in the photographs taken of the point selected by Mr.

Lahti as the OHWM elevation. See Exhibits 14 and 15. His OHWM

determination in this case is one of hundreds he has performed in

the course of his duties for the DNR.

Mr. Knitter testified that he surveyed the elevation of the point

selected by Mr. Lahti as the OHWM and determined the eleva-

tion of the point, in conservative terms, to be 602.0°1.G.L.D. This

number was based on the assumption, referred to in Mr. Knitter's

affidavit and Exhibit 13, that the level of Lake Superior that day

was 601.5’ 1.G.L.D. He then transferred the elevation of the

OHWM from the pier area to the marina and compared the eleva-

tions of a number of points on the Marina Point Condominiums

premises with that of Lake Superior. His conclusions are shown

on Exhibit 13, a transparent overlay which demonstrates that a

good deal of the property lies below the elevation of the OHWM

of Lake Superior. Despite the defendants’ contentions to the con-

trary, it doesn’t matter whether or not the elevations generated

by Mr. Knitter are accurate in terms of 1.G.L.D. elevations. What

47a

matters is the accuracy of his comparison of the elevation of the

Marina Point Condominiums site with the elevation of Lake

Superior, a task which the defendants, after a great deal of specula-

tion as to conditions they suggest existed on the dates of Mr. Knit-

ter’s surveys, leads them to conclude that his assumed lake level

in the marina may be off by .2° because the transfer of the assum-

ed lake level from the ferry prior to the marina. Shearman

Transcript, at 27. Since many of the points measured on the defen-

dants’ premises were 1.5’ or more below the OHWM, the defen-

dants’ criticisms have very little significance to this case.

The plaintiff does not intend to concede, however, any inac-

curacies in the 1.G.L.D. elevation assumed by Mr. Knitter in his

two surveys. The accuracy of his assumption, and of the conclu-

sions he reached, are confirmed in a number of respects. It should

be noted initially that there is a very close corroboration in eleva-

tions between Mr. Knitter's work (Exhibit 13) and the survey of

Mr. Shearman performed in October, 1983 (Exhibit 82) and the

elevations shown in the plans of the defendants’ architects (Exhibit

12). The only evidence which contradicts Mr. Knitter’s 1.G.L.D.

elevations is the survey performed by Mr. Shearman the day before

trial (Exhibit 83) which contradicts his own survey of the preceding

year which was presumably relied upon by the defendants and their

architects as a basis for this expensive condominium development

project. Again, whether or not Mr. Knitter's site elevations are ac-

curate in terms of this I.G.L.D. system is not critical to determin-

ing compliance with sec. 30.12, Stats., for a comparison of the

relative elevations of the lake and the the (sic) disputed lang, in

any conventional or arbitrarily assumed datum, can establish that

point. However, a word or two about Mr. Shearman’s revisions

to his earlier survey are in order.

At some point, perhaps with respect to the floodplain zoning

issue, the court may feel a need to choos between the disparate

conclusions reached by Mr. Knitter (Exhibit 13) and Mr. Shear-

man (Exhibit 83) with respect to the 1.G.L.D. elevations of various

points on the Marina Point Condominiums premises. With respect

to the credibility of Mr. Shearman’s various conclusions, the follow-

ing facts should be kept in mind. First, his initial survey (Exhibit

82), prepared ten months prior to the commencement of litigation,

48a

has been corroborated by the DNR’s survey; his revisions to that

survey, as expressed in Exhibit 83, were performed literally on the

eve of trial and are not similarly substantiated. Secondly, Mr. Shear-

man deliberately revised his initial survey by measuring the eleva-

tions of only five points — all corners of the building known as

“Cluster A” — and he did nothing to revise the elevations he deter-

mined for other points in his earlier survey (Exhibit 82). Third, in

neither survey did Mr. Shearman measure the elevation of the land

lying between the 602.0° contour lines on his Exhibits 82 and 83;

this is the area in which Mr. Knitter found the lowest ground, i.e.,

there were four points at or below 600.5’ 1.G.L.D. As Mr. Shear-

man testified, he didn’t take any measurements in that area

(Transcript at 32), so his testimony and Exhibit 83 don’t even at-

tempt to refute the state’s contention that this land is below the

OHWM of Lake Superior. Mr. Shearman testified that .8° would

_ have to be added to his initial survey (Exhibit 82) in order to ac-

curately express the elevations in terms of 1.G.L.D. (Transcript,

at 20). He admitted,® however, that he never made a determina-

tion of what was the elevation of the Lake Superior OHWM. It

is interesting to note that, assuming the need to correct the figures

in Exhibit 82 by adding .8’ to them, if you similarly add .8° to Mr.

Knitter's elevations (which, the court may recall, corresponded close-

ly to Mr. Shearman’s initial measurements) you would get an

OHWM of 602.8 1.G.L.D. and the land under Cluster A and most

of the remainder of the defendants’ premises would still be below

the defendants’ “corrected” OHWM. Instead, the defendants would

play a shell game with the court: they accept Mr. Knitter's assump-

tions of the elevation of the OHWM as 602.0 1.G.L.D. (Shearman

Transcript, at 36) but they contend that all his other numbers, i.e..

the elevations he found on their land, are .8° too low.

This kind of self-serving algebra should be entitled to no weight.

and it suggests a lack of professionalism on Mr. Shearman’s part.

To establish his expertise in making OHWM determinations

(ironically something he ultimately did not do in this case) Mr.

Shearman testified as to the statutory obligations of land surveyors

for subdivisions abutting waterways. In so doing, however, he in-

*Transcript at 7-8 and 36.

49a

correctly asserted that the law required him to place monuments

a minimum of 25 feet back from the OHWM’ when the statute,

sec. 236.15(1)(a), Stats., specifies a twenty foot setback. Even if Mr.

Shearman had correctly understood and characterized his statutory

obligations, it is questionable how this duty qualifies him as an ex-

pert at OHWM determinations, since it obligates surveyors to ap-

proximate (by setting the monument “not /ess than” twenty feet

back from the shore) rather than to specify exactly where the

shoreline is, as Mr. Knitter and Mr. Lahti have done in this case

and as they routinely do in the normal course of their duties.

There is additional corroborating evidence in the record which

supports the proposition that the defendants’ property is lakebed,

ie., that it lies below the OHWM of Lake Superior and is a part

of that body of water. Mr. Knitter testified that on all three of his

visits to the site he found standing water, and that the surface eleva-

tion of that water was within .04° of the surface elevation of Lake

Superior at the same time. (See Exhibit 13, where the elevation

of the water on the defendants’ property was determined to be

601.54" 1.G.L.D. when the elevation of the lake was 601.50

1.G.L.D.) The physical connection of the premises to the open

waters of Lake Superior will be discussed in some detail later in

_ this brief (section I1.C.4, infra but suffice it to say for now that

the area is connected by water, with no intervening land above

the OHWM, to the main body of Lake Superior. Moreover, Mr.

Knitter testified that, on different occasions, he has observed water

flowing in both directions through the culvert which connects the

defendants’ property to the marina, that is to say, sometimes the

water flows from the defendants’ property into the lake, but on

other occasions the water from the lake flows through the culverts

onto the defendants’ land. Finally, all parties to this case have agreed

that the vegetation on the defendants’ property is aquatic, not ter-

restrial, in nature.

Thus, it can be seen that the piaintiffs have proven ali the

elements of a violation of sec. 30.12, Stats., in this case. There is

no lawful bulkhead line in the vicinity of this project and the

"Transcript at 4.

50a

defendants have never obtained a sec. 30.12, Stats., permit for the

Structures and fill they have placed on the premises. The only

evidence as to the elevation of an ordinary high water mark in this

case is that supplied by the plaintiff. The defendants’ efforts to sug-

gest an inaccuracy in terms of absolute I1.G.L.D. elevations are not

only unfounded on the facts, but irrelevant to Mr. Knitter’s con-

clusion, based on his comparison of their relative elevations, that

most of the defendant developers’ land is below the OHWM of

—Lake Superior and that portions of the property underlying both

Cluster A and the parking lot, as indicated by Exhibit 13, are on

lakebed. Attention will now focus on the merits of the affirmative

defenses asserted by the defendants with respect to the alleged viola-

tion of sec. 30.12, Stats.

on The defendants’ affirmative defenses to the

alleged violation of sec. 30.12, Stats.

Due to the expedited nature of this proceeding, and the fact

that there have been no pretrial motions which might have clarified

the parties’ positions on the legal issues, describing the defendants’

affirmative defenses and the evidence relating to those defenses

calls for some speculation. Based on the defendants’ pleadings, on

discussions with opposing counsel and on the evidence produced

by the defendants at trial, it appears that the affirmative defenses

discussed below are being pursued by the defendant real estate

developers. With the exception of the first defense, all of the

defendants’ defenses to the plaintiff's sec. 30.12, Stats., claims would

admit that the land in dispute is lakebed, but deny any liability

for violating the statute or any need to remove the fill and struc-

tures, on the ground that the state has lost jurisdiction over the

property for one reason or another. In the court’s consideration

of these defenses, it should be remembered that under the law the

defendants have the burden of proving the merits of such defenses

to the state's lakebed jurisdiction under sec. 30.12, Stats. Srate 1.

Bleck, 114 Wis. 2d 454, 462, 338 N.W.2d 492 (Sup. Ct. 1983).

l. The defendant developers’ contention that there

is no OHWM on the Marina Point Condo-

miniums property.

Sla

In the course of his trial testimony, Mr. William Shearman,

the defendants’ surveyor, expressed the surprising opinion that there

isno OHWM on the premises of the Marina Point Condominiums

project.’ His opinion in that respect is unusual that he didn’t say

the land is above the elevation of the OHWM of Lake Superior,

nor did he deny that the land is typically submerged by water at

essentially the same elevation as the lake (see, Exhibit 13), nor did

he deny that the premises are connected by water (i.e. hydrauiically)

to the open water of Lake Superior. Instead, his conclusio.. .hat

none of the property is lakebed appears based on his opinion that

there was not any “indication of a shore” in the area’® and that

for an OHWM to exist there has to be both an erosion mark and

“some changes in vegetation.” It may be that this position is simply

a denial of one element of the plaintiff's sec. 30.12 claims rather

than an affirmative defense, but since Mr. Shearman’s opinions

are not only factually confused and internally inconsistent, but also

misstate the relevant law, they will be addressed under the heading

of affirmative defenses.

Mr. Shearman testified that he would not ever transfer an

OHWM elevation from an area along a lakeshore with a distinct

OHWM to an area where vegetation has obscured the shoreline.”

This approach to OHWM determinations is contrary to the law

of this state and contradicts both cosiimon sense and other aspects

of Mr. Shearman’s testimony. As noted in the earlier discussion

in this brief of the Diana Shooting Club case, the Wisconsin

Supreme Court has expressly contemplated and approved the

transferring of elevations along a lakeshore fur the purpose of deter-

mining the OHWM in an area of aquatic vegetation:

‘Transcript at 24.

"Ibid. at 24.

°Jbid. at 37.

"Ibid. at 38-39.

"Ibid. at 39.

52a

And where the bank or shore at any particular place is

of such a character that it is impossible or difficult to

ascertain where the point of ordinary high-water mark

is, recourse may be had to other places on the bank or

shore of the same stream or lake to determine whether

a given stage of water is above or below ordinary high-

water mark.

156 Wis. at 272. There is a sound practical reason for this rule

and Mr. Shearman’s testimony gives evidence of the need for such

practices. Mr. Shearman admitted that he had observed areas along

lake shores where there was no obvious erosion mark,” areas where

the same aquatic vegetation exists both above and below the eleva-

tion of the OHWM" and he admitted that the vegetation on the

Marina Point Condominiums site is of a wetland type. While he

refrained from doing so in his preparation for testifying in this case,

he did concede that, to fully advise owners of properties along por-

tions of a lake where the shore is indistinct what the extent of their

ownership would be, he would “go to abutting areas and look for

features, maybe where the bay exists, that would show a continuous

line for a shore line to be generated off of.” In so testifying. he

tacitly recognized the surveying practice authorized by the Wiscon-

sin Supreme Court in Diana Shooting Club and employed by the

DNR staff in this case to locate the OHWM of Lake Superior on

the defendants’ property. The credibility in factual terms of Mr.

Shearman’s opinion that this property is not lakebed has been touch-

ed upon earlier in this brief. From the foregoing discussion, however,

it should be clear additionally that he is simply wrong about the

law and recognized surveying practices with respect to making

OHWM determinations.

Z The legal significance of the 1856 federal

patent of the disputed property.

3 Ibid. at 37.

4 Thid. at 39.

'S Ibid. at 38

53a

The court received into evidence, over the plaintiff's relevan-

cy objection,’* Exhibit 79, the original federal patent of April 1856"

which purported to convey title to lands including those in dispute

here to a private party. Since this conveyance occurred after

Wisconsin became a state, it is the plaintiff's position that this pa-

tent could not operate to vest title in the lakebed in any entity other

than the State of Wisconsin.

Wisconsin became a state on May 29, 1948 (sic). Under the

“equal footing” doctrine, pronounced in Pollard’s Lessee v. Hagan,

44 US. (3 How.) 212 (1845), a state “receives absolute title to the

beds of navigable waterways within its boundaries upon admission

to the Union and [the doctrine] contains not the slightest sugges-

tion that such title is ‘defeasible’ in the technical sense of that term.”

State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 372

(1977). Furthermore the “absolute title of the states to the beds

of navigable waters” could not be subsequently defeated by a patent

or “grant from Congress to a third party.” /bid., 429 US. at 374.

After so acquiring title to the lakebeds on statehood, title to the

lands “is not subject to defeasance and state law governs subse-

quent dispositions.” 429 U.S. at 378. Thus, subsequent federal

patents to lakebeds (like that of Lake Superior) which Wisconsin

acquired in 1848 cannot operate to defeat the state’s title to those

lands. Similarly, after statehood state common law doctrines, such

as those relating to accretion, reliction, erosion and avulsion, app-

ly with respect to riparian properties. Thus, it is not essential that

a particular parcel of land now claimed as public lakebed have been

part of the bed of a navigable water in 1848, if it since has become

part of such a body of water under the state’s common law."* See

‘Shearman transcript at 9.

" Although the transcript reads “1956,” it is the plaintiffs understanding that

the actual date of the instrument is 1856.

It is the state’s contention that the land in dispute in this case has been

part of the bed of Lake Superior at all times relevant to this proceeding and going

back in time well before statehood. Strictly speaking. however, proof of the rela-

tionship of this land to Lake Superior in 1848 should not be regarded as a necessary

element in establishing the state’s claim to title to this property.

54a

also, Angelo v. Railroad Commission 194 Wis. 543, 217 N.W. 570

(1928): and Mendota Club v. Anderson and another, 101 Wis. 479,

78 N.W. 185 (1899).

That the disputed land is now lakebed has already been

established by the preceding arguments in this brief. That the land

has been lakebed since statehood will be discussed below. It is

undeniable that the patent relied upon by the defendants as the

source of their claim in title was issued after statehood. Under the

law of this nation and its states, however, it is clear that this patent

could not operate to vest title to the lakebed in any entity other

than the State of Wisconsin.

A The relevance of the federal Swamp Land Act to

this case.

In his opening argument, counsel for the defendant real estate

developers contended that the federal Swamp Land Act of 1855

required the conclusion that this land passed to the patentee and

not to the State of Wisconsin. A brief examination of the relevant

law and facts shows there is no merit to this affirmative defense.

In the first place, passage of the Swamp Land Act of 1855

followed, by seven years, the admission of Wisconsin into the union

of the United States. As of the date of statehood, Wisconsin’s claim

of title to the lakebed was no longer defeasible by any acts of Con-

gress. Corvallis, 429 U.S. at 374, 378. To argue that the Swamp

Land Act somehow, in an after-the-fact manner, diverts the state’s

title to this property is contrary to well-established United States

Supreme Court case law. Perhaps the only way the.defendants could

invoke the provisions of the Act would be if the land were not

in fact lakebed, but that situation is not presented to the court in

this case.

Secondly, even if the Swamp Land Act of 1855 were applicable

to these lakebed lands, there is nothing in the record to suggest

that the Act was ever applied to the disputed property. The Swamp

Land Act, in its various forms, envisioned a compilation by the

various states of specific federally owned lands sought to be covered

by the Act. Thereafter, the federal government would approve the

55a

list of swamp lands and transfer fee title to the state, not, as here

(Ex. 79, the original Federal Patent), to a a private party. See 43

US.C. § 982-83. Thus, even if title to the disputed property hadn’t

already been vested in the state as lakebed in 1848, there is no

evidence in the record that the federal Swamp Land Act ever had

any application to these lands.

4. The application of the concepts of estoppel,

adverse possession, and artificial alteration of

navigable waters to this case.

From the defendants’ pleading, the opening statement of

defense counsel and many of the exhibits introduced by the

defendants at trial, it appears that the defendant real estate

developers intend to argue that the disputed land, while it may be

below the OHWM of Lake Superior, is no longer vested in the plain-

tiff for a variety of reasons. These defendants would apparently

argue that the state is estopped from claiming title to the land, that

a continuous chain of private title for nearly 130 years has given

them title through adverse possession, and that artificial alterations

of the lakebed between their property and the open water of Lake

Superior somehow precludes the state from asserting title to the

condominiums site. The shortcomings of any attempt to apply those

concepts to this case will be demonstrated in the discussion which

follows.

As alluded to earlier in this brief,’ the beds of navigable lakes

in this state are held in trust by the state for the public good. The

State’s obligation to protect its waterways and lakebeds began at

statehood and continues as a constitutional limitation on public

and private use of navigable waters. Muench, supra. As a matter

of law, and on the basis of the facts in this case, it is clear that

no claim to title on the basis of adverse possession could be made

in this.case. In the first place, “no prescriptive rights are attainable

in the beds of navigable watercourses because of the trust doctrine

under which the state manages navigable waters so that all per-

See the discussion of the //linois Stee! and Muench cases, supra.

56a

sons may fish, boat, swim and engage in other recreational ac-

tivities.” 1961 Wis. L. Rev. 47, 67, “Prescriptive Water Rights.”

See also Annotation: Adverse Possession-Public Property, 55 ALR

2d § 15 and the cases cited therein in support of the same proposi-

tion. Similarly, if the Legislature cannot affirmatively grant title

to lakebeds to private persons for purely private purposes,

~ Milwaukee v. State, 193 Wis. 423, 214 N.W. 820 (1927), the law

certainly cannot contemplate a loss of title to such land by the state’s

inaction in the face of adverse possession. Even if the law of Wiscon-

sin did recognize the possibility of acquiring title to lake bed through

adverse possession, there is no evidence in the record that these

defendants, or anyone else, have openly, notoriously, and in an

adverse, uninterrupted and continuous manner, occupied the

lakebed for more than twenty years, as the case law anid statutes

would require. Green Bay & M. C. Co. v. Telulah P. Co., 140 Wis.

417, 122 N.W. 1062 (1909).

At the trial, the defendants went to considerable lengths to

demonstrate the construction (and eventual relocation) of Old Fort

Road and of the La Pointe Marina, both of which separate the

defendants’ property from the main body of Lake Superior.

Presumably the defendants wish to establish a basis for arguing

either that, except for these artificial alterations of the environ-

ment, their property would be a discrete, isolated wetland removed

from Lake Superior or, in the alternative, that the road so separates

their property from Lake Superior that it cannot be regarded as

part of the Lake.

With respect to the former argument, it should be remembered

that not a// portions of a lake within the OHWM need to be

navigable in order for the entire lakebed to be public property; if

that were the case, the pronouncements that title extended to the

upward reaches of a beach would be rendered meaningless. Thus,

it is irrelevant whether or not a boat could be floated on the defen-

dants’ property if it is otherwise a part of the bed of Lake Superior,

a water body which is undeniably a natural navigable body of water.

Additionally, since the defendants’ argument in this respect sug-

gests that a portion of Lake Superior which would normally be

within the DNR’s jurisdiction is outside the scope of the agency's

57a

control because of some exceptional circumstances, the defendants

have the burden of proving this exception to state jurisdiction over

the property. Bleck, supra.

The defendants’ contention” that the site of their project would

be physically and hydraulically removed from the waters of Lake

Superior but for the artificial alterations of the area associated with

the Marina and road relocation are unsubstantiated by any of the

evidence in the case, including their own exhibits. The area in which

the Marina Point Condominiums project is being constructed has

at all times been immediately adjacent to or part of an inlet from

Lake Superior. The plaintiff's historian, Professor Charles Twin-

ing, testified that the best source of information relating to the pro-

bable outline of the shore in the La Pointe area in the mid-1800's

would be the maps generated by Mr. Hamilton Ross, a local

historian who did an exhaustive study of La Pointe. The map

representing Mr. Ross’ conclusions in this respect (Exhibit 40) clearly

shows an inlet from Lake Superior extending east of Old Fort Road.

Professor Twining elaborated upon his conclusion as to why he

believed that this was a natural inlet by explaining that, in all pro-

bability, the inlet was the harbor for the forts and other facilities

once located in the immediate vicinity of what is now the La Pointe

Marina. The defendants’ 1854 plat map (Exhibit 81) also shows

an inlet from Lake Superior extending east of Old Fort Road and

through lots 38 and 39, which the defendants’ own surveyor

identified”' as the present site of the La Pointe Marina. The 1939

aerial photograph submitted by the plaintiff (Exhibit 16), which

antedates the construction of either the marina or the mooring area

shown in Exhibit 33, clearly shows a natural inlet extending well

east of Old Fort Road. Ironically, the aerial photographs supplied

by the defendants, e.g., Exhibits 33-36, also demonstrate that this

area was part of an inlet to Lake Superior prior to the construc-

tion of the marina and relocation of Old Fort Road. Those

photographs also clearly show that the disputed property, i.e., the

area to the immediate east of the relocated portion of Old Fort

Defendants’ Counterclaim for Condemnation, paragraph 27.

Transcript of Shearman testimony at 13.

58a

Road shown in Exhibits 34-36, was undisturbed by artificial

developments until these defendants commenced the Marina Point

Condominiums project. That the area continues to be connected

by water to Lake Superior is established not only by the testimony

and surveys of Mr. Richard Knitter, but can be observed in Mr.

Knitter’s aerial photographs (Exhibits 5 and 6) which show a direct

but rerouted connection by surface waters from the defendants’

property, first under Mondamin Trail and then into the marina

lagoon, as well as the connection by culverts directly to the marina

which was described by both Mr. Knitter and Mr. Shearman. Thus,

to the extent that the court finds it relevant to consider whether

or not the defendants’ property has been lakebed since 1848, the

evidence in the record clearly establishes that this property: has

not been physically altered in that time; has been a part of or im-

mediately adjacent to an inlet from Lake Superior; lies below the

OHWM of Lake Superior; and, despite artificial alterations of the

lakebed associated with the marina and Old Fort Road, continues

to be connected to Lake Superior by surface water and land lying

beiow the OHWM of the lake.

As suggested by the last paragraph, the court may conclude

that the present link to Lake Superior is all that is of concern here

and that the historical nexus of this property to the bed of Lake

Superior is not relevant to a decision of the plaintiffs sec. 30.12,

Stats., claims. As was pointed out earlier in this brief, the law

recognizes that the boundaries of riparian properties are ambulatory.

Accordingly, it does not really matter what the actual boundaries

of the uplands may have been in 1848 since (as the defendants’

witness, Mr. Wayne Nelson, acknowledged) shorelines do change,

naturally and artificially: sandbars and beach spits (like those shown

on Exhibit 81) come and go, deltas may form or inlets may wash

out. The critical question is what are the circumstances now, and,

as argued in the discussion of the plaintiff's prima facie case, supra,

the plaintiff submits that the evidence clearly shows the defendants’

property to be a part of the bed of Lake Superior at this time.

To the extent that the defendants may contend that the marina

and Old Fort Road constitute a barrier or dam which renders it

impossible to consider their land a part of Lake Superior, I pose

these questions: Given the legal proposition that a lakebed is an

59a

inalienable property right of the state, can the construction of a

road on that lakebed serve to divest the state of title to land on

the shallower side of the road? What if such a road equally dissected

a body of water so that the acreage and depth of water was the

same on both sides — would the lakebed on both sides be subject

to development and automatic ownership by the nearest upland

owners? I submit that the answer to both questions is an unqualified

“no.” Anything other than this response would fly in the face of

Wisconsin’s public trust doctrine. The evidence here shows that

the area was and is a part of the bed of Lake Superior, before and

after the construction of the road. The presence of Old Fort Road

does not operate to refute the state’s claim to title to this land.

The final aspect of the defendants’ affirmative defenses relating

to the sec. 30.12, Stats., claims is the defendants’ contention” that

the plaintiff is estopped from claiming title to land which is part

of the bed of Lake Superior. That argument is presumably based

on the fact that the DNR did not advise the defendant real estate

developers until approximately August 16, 1984 that portions of

the site constituted lakebed. There were several reasons why the

DNR waited until that date to take the position that the developers

had violated sec. 30.12, Stats. As Mr. Duane Lahti, the DNR’s

Area Water Management Specialist, testified, his initial belief that

this area was not lakebed was based in part on the developers-

representations as to the nature of the site, that the initial plans

submitted to the DNR contained no information as to relative eleva-

tions and that, after the developer’s abandoned their original plans,

he was never provided a revised plan showing the construction

which has in fact occurred or is contemplated by these developers.

It wasn’t until the DNR took its own survey comparing the eleva-

tions of the site with that of Lake Superior that the existence of

a sec. 30.12, Stats., violation became certain. The plaintiff submits

that if the defendants had made any effort to establish the OHWM

of Lake Superior (a task shunned by Mr. Shearman) prior to com-

mencing construction, they could and would have come to the same

conclusions as the DNR without jeopardizing a substantial invest-

2amended Answer of Trudeau, er a/., para. 16.

60a

ment. The DNR is not in the consulting business, which is to say

that developers like these defendants are expected to underwrite

the costs of their business enterprises, including such preliminary

investigations necessary to determine whether or not they own the

property to be developed (i.e., whether or not the land is state-owned

lakebed (sic).”’

Even if the court were to find that the defendant developers

reasonably relied on the DNR’s failure to advise them at an earlier

date that this property was lakebed, estoppel would not lie to divest

the state’s title to this lakebed property. As noted above, if the state

cannot deliberately grant such property to private parties for private

development, it certainly cannot lose title to the land as the result

of any reasonable or unreasonable inaction or negligence on the

part of any state employes. Estoppel does not lie against a govern-

ment entity in the enforcement of its police powers despite

erroneous acts of government officers. State ex rel. Westbrook v.

City of New Berlin, 120 Wis. 2d 256, 262, — N.W.2d

(1984). See also the case of Park Bldg. Corp. v. Industrial Comm.,

9 Wis. 2d 78, 88, 100 N.W.2d 571 (1960), where the court adopted

the rule, recognized by other authorities, to the effect that “the

doctrine of estoppel will not be applied against the public . . . where

the application ... would encroach pon the sovereignty of the

government and interfere with the proper discharge of a govern:

mental duties, and with the functioning of the government, or cur-

tail the exercise of its police power [citation omitted]... .”” While

the Wisconsin courts recognize that estoppel may be applied to

the government's efforts to assess punitive forfeitures, State v. Ci-

ty of Green Bay, 96 Wis. 2d 195, 210, 291 N.W.2d 508 (S. Ct.

1980), the doctrine has no application where, as in this case, the

government is acting to preserve its sovereignty by defending its

title to lands and to prevent encroachments on lands and waters

protected for public use by the public trust doctrine.

>The developers’ negligence in not undertaking even these preliminary and.

one would assume, fundamental tasks is evidenced by the fact that they accepted

a faulty deed (Exhibit 2) for the site which they had corrected (Exhibit 1) only

after the error was pointed out to them by the plaintiff.

6la

Ill. ©THE PLAINTIFF'S CLAIMS AGAINST

“THE ASHLAND COUNTY ZONING

ADMINISTRATOR AND ASHLAND

COUNTY BOARD OF ADJUSTMENT.

In its amended complaint, the plaintiff has asserted three claims

against the Ashland County Board of Adjustment and the Ashland

County Zoning Administrator. Those claims are that the developers

of Marina Point Condominiums were improperly granted a variance

from certain floodplain zoning requirements; that the project is im-

properly being allowed in a shoreland conservancy area; and that

the project does not comply with minimum shoreland setback

regulations. Before addressing the merits of those claims individually

in the discussion which follows, certain issues common to all three

claims will first be addressed.

The defendant county officials have first asserted, as an affir-

mative defense, their immunity from suit as a result of the opera-

tion of secs. 59.76 and 893.80, Stats. These statutes, as evidenced

by their legislative history and by the case law interpreting them,

were intended to apply only to tort actions and not, as in this case.

to claims for equitable relief. See Kaiser v. City of Mauston, 99

Wis. 2d 345, 357, 299 N.W.2d 259 (Ct. App. 1980) and the

prefatory notes of the Legislative Council for 1977 Assembly Bill

375.

The defendants have also questioned the plaintiff's standing

to challenge the county's enforcement and administration of its

floodplain and shoreland zoning ordinances. The DNR’s authori-

ty to seek enforcement of the county ordinances is found in the

Statutes and administrative regulations of this state. Pursuant to

sec. 59.971(7), Stats., county shoreland zoning procedures are con-

trolied by sec. 87.30, Stats. That statute, in turn provides, in subsec-

tion (2), that the state may seek, as here, abatement of violations

of such shoreland or floodplain ordinances. See also section NR

116.22(4) Wis. Adm. Code, with respect to violations of county

floodplain zoning ordinances. In addition to this express legislative

authority to seek enforcement of local shoreland and floodplain

zoning ordinances, sec. 751.01, Stats., provides that the remedy

of mandamus is available in an ordinary civil action, such as the

62a

one brought in this case, to compel the performance of the county

officials’ duties to properly enforce their zoning ordinances. Man-

damus is the appropriate remedy in such situations. State ex rel.

Lewandowski v. Callaway, 118 Wis. 2d 165, 171, 346 N.W.2d 457

(S. Ct. 1984). Moreover, mandamus does lie to compel the revoca-

tion of land use permits like those issued to the defendant

developers. See Annotation: Mandamus to Cancel Zoning Permit,

68 ALR 3d 166, § 3, citing State ex rel. Ryan v. Pietrzykowski,

42 Wis. 2d 457, 167 N.W.2d 242 (1969).

The defendants also contend that the plaintiff has failed to

exercise an exclusive remedy, i.e., certiorari review pursuant to sec.

59.99(10), Stats., with respect to the county’s enforcement of the

three relevant floodplain and shoreland zoning ordinances.

Accordingly, they argue, the plaintiff may not now challenge the

county official's actions or inactions. Because sec. 59.99(10), Stats.,

is not the exclusive means of state review of floodplain and

shoreland zoning enforcement and because the defendants made

no reviewable “decisions” within the meaning of the statute, the

concept of exclusive remedies does not bar the plaintiffs claims

against the county officials.

As previously pointed out, sec. 87.30(2), Stats., independent-

ly establishes a cause of action to enjoin a public nuisance whenever

there exists a violation of any local floodplain or (pursuant to sec.

59.971(7), Stats.) shoreland zoning ordinances. The plaintiff State

of Wisconsin, by the Attorney General, is clearly authorized to

bring actions to enjoin such nuisances. Sec. 823 02, Stats. Since

nuisance actions involve a continuous injury, no statute of limita-

tions applies. This is not a case like those* where failure to pursue

the solestatutory means of review should lead to dismissal, for here

there are severa/ express statutory means of compelling enforce-

ment of the ordinances: certiorari review under sec. 59.99(10), Stats..

or an action to abate a public nuisance pursuant to secs. 87.30(2)

and 823.02, Stats. To regard certiorari as the exclusive means of

review would render the language of sec. 87.30(2), Stats., mean-

“Eg Kegonsa Jt. Sanit. Dist. v. City of Stoughton, 87 Wis. 2d 131. 145.

274 N.W.2d 598 (S. Ct. 1979), and the cases cited therein

63a

ingless and that ts a construction of the law which courts are to

avoid. Associated Hospital Service v. Milwaukee, 13 Wis. 2d 447,

109 N.W.2d 271 (1961). Even if certiorari review under sec.

59.99(10), Stats., were regar ted as the exclusive means of compelling

county enforcement, that doctrine would have no application to

the state’s claims for enforcement of the conservancy and setback

requirements of the Ashland County Shoreland Zoning Ordinance,

for the county never made any reviewable decisions with respect

to those ordinance provisions. The defendant Ashland County Zon-

ing Administrator conceded on cross-examination that he made

no written or formal decision regarding the application of either

the conservancy zoning” or minimum setback” provisions of the

Ashland Shoreland Zoning Ordinance, also known as the “Amen-

datory Ordinance.” The use of certiorari, as encouraged by the

defendants, however, is inappropriate where there is a question as

to whether or not there has been a final decision by the relevant

public officials or where there is some doubt as to whether or not

the defendants have made a determination in the matter. State ex

fel. Meissner v. O'Brien, 208 Wis. 502, 504, 243 N.W. 314 (1932).

Clearly, certiorari review is of questionable application to claims,

such as those in this case, that the government officials simply have

not acted to enforce their ordinances; as pointed out earlier, man-

damus is the appropriate remedy in such cases. Certiorari review

pursuant to sec. 59.99(10), Stats., is not the exclusive statutory

means of asserting the plaintiffs three claims against the defen-

dant county officials and, furthermore, would be of questionable

applicability to the claims regarding enforcement of the amendatory

ordinance. Attention will now be turned to the merits of the plain-

tiffs various claims against the county officials.

l. The legality of the floodplain zoning variance

granted to the defendant real estate developers.

Exhibit 46, “Amendatory Ordinance,” sec. 15.4.

* Ibid. sec. 3.2

64a

The defendant real estate developers applied for?’ and, on

January 13, 1984, were granted a variance from the fill

requirements” of the Ashland County Floodplain Zoning Or-

dinance. Pursuant to sec. 2.22 of that ordinance, it governs all coun-

ty lands lying below applicable flood profiles. As Richard Knitter

testified, on the basis of the Ashland County flood profile for Lake

Superior, the elevation of the flood profile” in the La Pointe area

is 603.3' 1.G.L.D. At the time they applied for the variance, the

defendant real estate developers apparently believed that the eleva-

tion of their property was such that it was governed by the

floodplain zoning ordinance; if they didn’t believe their property

to lie below 603.3' 1.G.L.D., they never expressed any such belief

to the Ashland County Board of Adjustment at the variance hear-

ing. See Exhibit O, the minutes of the variance hearing. Moreover,

the defendants conceded at the trial that the parties regarded the

property as controlled by the ordinance at the time of the variance

hearing. These comments are made to demonstrate the

"Exhibit 57.

**Exhibit 46. “Flood Plain Ordinance.” sec. 4.42.

Exhibit 24.

'The Army Corps of Engineers regulations under its § 404 dredge and fill

permit program defines the term “ordinary high-water mark” as meaning:

that line on the shore established by the fluctuations of water and indicated

by physical characteristics such as a clear, natural line impressed on the bank:

shelving: changes in the character of the soil; destruction of terrestrial vegeta

tion; the presence of litter and debris; or other appropriate means that con

sider the characteristics of the surrounding areas.

33 C.F.R. § 323.2(f)(1983).

‘ene

65a

APPENDIX E

requesting the variance are certainly far more compelling than the

fact situation of Snyder where the issue was personal convenience

of constructing a porch so as to enjoy lake living.

The State also urges that the variance is not consistent with

the spirit and intent of the flood plain or shoreland zoning or-

dinances. This determination clearly lies with the Board of Adjust-

ment and there is no basis for the State to collaterally attack the

Board’s determination.

With regard to the State’s Second Claim generally and the

evidence it produced at trial in support of this claim, it is simply

a matter of much too little and much too late.

Ill. Superior Development's Property Does Not Lie

in the Bed of Any Navigable Water.

The Third and Fourth Claims of the State’s Amended Com-

plaint raise the issue of whether the condominium units or por-

tions of the parking lot have been or will be built on the bed of

Lake Superior in contravention of Wisconsin Statutes § 30.12. The

Fifth Claim of the Amended Complaint raises a related issue con-

cerning a setback requirement under the Ashland County Amen-

datory Zoning [Shoreland] Ordinance.

Paragraph 29 of the Amended Complaint states that:

Most of the land underlying the existing cluster — [and

the proposed units] of condominiums consist of land

below the ordinary high-water mark (i.e. the lake bed)

of Lake Superior, a navigable water....

The gut issue of this lawsuit is whether any part of the Project

Site is or is not on the bed of Lake Superior.

Wisconsin Statute § 30.12 states, in pertinent part as follows:

ee |

66a

30.12 Structures and depositions in navigable

waters prohibited; exceptions; penalty

(1) General prohibition. Unless a permit has

been granted by the department pursuant to statute or

the legislature has otherwise authorized structures or

deposits in navigable waters, it is unlawful:

(a) To deposit any material or to place any struc-

ture upon the bed of any navigable water where no

bulkhead line has been established; or

(b) To deposit any material or to place any

structure upon the bed of any navigable water beyond

a lawfully established bulkhead line.

In interpreting this portion of § 30.12, Wisconsin Statute

§ 30.10 is relevant. It states, in relevant part as follows:

30.10 Declarations of navigability

(1) Lakes. All lakes wholly or partly within

this state which are navigable in fact are declared to be

navigable and public waters, and all persons have the

same rights therein and thereto as they have in and to

any other navigable or public waters...

...(b) The boundaries of lands adjoining waters and

the rights of the state and of individuals with respect

to all such lands and waters shall be determined in con-

formity to the common law so far as applicable, . . .

The 1959 Legislative Council notes to Wisconsin Statute § 30.10

provide that real issue in every case is navigability in fact. Thus

the rules of the common law are to be used to determine what

waters are “navigable in fact.”

The State has the burden of proving its ownership of this land

and must therefore prove that Superior Development’s property

is navigable in fact. State v. Beck, 338 N.W.2d 492 (Wis. S. Ct.

67a on

1983). The burden of proof is by preponderance of the evidence.

State v. McDonald Lumber Co., 18 Wis.2d 173, 118 N.W.2d 152

(1962).

Superior Development does not quarrel with the proposition

that Lake Superior is navigable water and that when Wisconsin

achieved Statehood in 1848 it was given title in public trust to the

OHWM of Lake Superior. J/linois Central Railway Co. v. Illinois,

146 U.S. 387 (1892); Priewe v. Wisconsin State Land and Improve-

ment Co., 93 Wis. 534, 67 N.W. 918 (1896). The public trust

doctrine does not per se create a legal right, but merely gives the

State standing as trustee to vindicate any rights that are infringed

upon by existing law. State v. Deetz, 66 Wis.2d 1, 224 N.W.2d

407 (1974).

What Wisconsin was given in 1848 was the bed underlying

navigable water up to the ordinary high-water mark of that

navigable water — but not beyond that point. While laketed title

passed, if the lake were navigable, the State did not receive title

to the beds of non-navigable lakes, rivers, streams, creeks, springs,

swamps, marshes or wetlands.

The ownership of submerged lands by the states was recon-

firmed by the federal government under the Submerged Lands Act

of 1953. 43 U.S.C. § 1301 ef. seg. The Act declares that it is in

the public interest that “title to and ownership of the lands beneath

navigable waters within the boundaries of the respective states ***

[be] recognized, confirmed, established, and vested in or assigned

to the respective states. ***” 43 U.S.C. § 1311 (1984). The Act

further defines the terms “lands beneath navigable waters” as

meaning:

All lands within the boundaries of each of the respec-

tive states which are covered by nontidal waters that

were navigable under the laws of the United States at

the time such State became a member of the Union, or

acquired sovereignty over such lands and waters

thereafter, up to the ordinary high-water mark as

heretofore or hereafter modified by accretion, erosion,

and reliction. (Emphasis added). 43 U.S.C. § 1301 (a)(1)

(1984).

68a

The Submerged Lands Act of 1953 was not intended to alter

the scope of or affect state property law regarding riparian owner-

ship. Rather, the effect of the Act was merely to confirm the state’s

title to the beds of navigable waters within their boundaries as

against any claim of the United States Government. See Oregon

ex. rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S.

363, 371 (1977). However, it is interesting to note that the Act’s

definition of “lands beneath navigable waters” covers only those

lands which are presently covered by non-tidal waters and which

were “navigable under the laws of the United States at the time

such state became a member of the Union”. When Wisconsin

achieved Statehood in 1848, the federal test of navigability revolved

around whether the water was used or was susceptible of being

used as a highway for commerce. The State has presented no

evidence at trial that remotely suggests that Superior Development's

property was ever capable of being used as a highway for com-

merce and, in that it is not covered by water, the State does not

hold title to it pursuant to the Submerged Lands Act. Inasmuch

as the federal government had previously conveyed the disputed

land to a private party by government patent [Trial Exhibit 79],

the State is not now in a position to assert that it became the owner

of such land when it was granted Statehood in 1848. a

The sanctions of Wisconsin Statute § 30.12 are available on-

ly to protect the public’s nght of “navigation” (used in a broad sense)

in Or on waters which are navigable in fact.

The Wisconsin courts have adopted a recreational boating test

for determining navigability. Prior to any significant statutory pro-

nouncements regarding the public use of waters, common law con-

cepts of navigability evolved from standards dealing with log floating

to those concerned with pleasure boating and other recreational

uses. An extensive explanation of the development of Wisconsin

case law concerning navigability can be found in Muench v. Public

Service Commission, 261 Wis. 492, 499-506, 53 N.W.2d 514,

516-520 (1952), where the Court stated that “it is no longer

necessary in determining navigability of streams to establish a past

history of floating of logs, or other use of commercial transporta-

tion, because any stream is ‘navigable in fact’ which is capable of

69a

floating any boat, skiff or canoe, of the shaliowest draft used for

recreational purposes.” (Emphasis in original). 53 N.W.2d at 519.

In DeGayner & Co., Inc. v. Department of Natural Resources,

236 N.W.2d 217 (1975), the Wisconsin Supreme Court said:

[T]he test is whether the stream has periods of navigable

capacity which ordinarily recur from year to year, e.g.,

spring freshlets, or has continued navigable long enough

to make it useful as a highway for recreation or com-

merce. The test is not whether the stream is navigable

in a normal or natural condition, but whether it is in

some sense permanently navigable, i.e., regularly recur-

ring or of a duration sufficient to make it conducive to

recreational uses. (Emphasis added). Jd. at 222.

The State presented no evidence at trial regarding whether

any part of Superior Development’s Project Site has ever been

navigable. Indeed, the State objected on the grounds of relevancy

when Superior Development elicited testimony from the State’s

witnesses and others regarding the fact that a boat, skiff or canoe

of the shallowest draft could not float from Lake Superior onto

and on Superior Development’s property. The evidence introduced

at trial conclusively demonstrated that Superior Development’s

property was not capable of floating any craft for any duration

which would make its property conducive to recreational naviga-

tion purposes. Therefore, Superior Development’s property is not

navigable in the sense which would entitle the State to assert domi-

nion and control over it in trust for the general public. The State

did not attempt to prove the elevation of the OHWM of Lake

Superior as of 1848.

It is interesting to note that up until the time of this trial, the

State has used the test of navigability set forth in the Muench case.

The current Department of Natural Resources pamphlet on

“Navigability” [Trial Exhibit 44] which is available to the public,

States in relevant part as follows:

an}

70a

HOW DOES THE DEPARTMENT OF NATURAL

RESOURCES DETERMINE THE NA VIGABILITY

TODA Y?

...[Thhe test of navigability is simple. Using the smaiiest

watercraft common to a region (usually a canoe) Depart-

ment of Natural Resources staff paddle through the

water.

The waterway should have a bed and sides or banks.

In other words, it should be more than just rain water

or melting snow flowing in a hollow or ravine.

It is not necessary to be able to float the waterway at

all times. Navigability may be established if a stream or

lake can be navigated on some regularly occurring basis,

such as during the spring thaw . . . (Emphasis in original).

The State, through the Department of Natural Resources, also

used the Muench test in the DeGayner case. In DeGayner, Depart-

ment of Natural Resources employee Richard Knitter testified that

one of his duties was to determine navigability and that the ap-

propriate test “in determining navigability was whether the stream

was navigable by canoe over 75 percent of its distance for 25 per-

cent of the year”. 236 N.W.2d at 220. Since the State introduced

no evidence attrial regarding the navigability of Superior Develop-

ment’s property, it has failed to meet its burden of proof.

Superior Development introduced Trial Exhibits 80 [the 1852

original government survey] and 81 [the 1854 plat of the Town

of LaPointe] to show that there was a distinct shoreline to Lake

Superior and that no part of that shoreline abutted Section 32 where

the Project Site is located. Even the State’s Trial Exhibit 40, in-

troduced through Professor Charles Twining, Chairman of the

Northland College History Department, failed to show any

“hydraulic connection” between Section 32 and Lake Superior.

Again, the State has the burden of proof to show that it is entitled

to assert jurisdiction over this property. State v. Beck, 338 N.W.2d

492 (S. Ct. 1983); State v. McDonald Lumber Co., 18 Wis.2d 152

(1962).

Tla

Superior Development introduced Trial Exhibit 79, the original

patent to the NW% of the NW% of Section 32, in which the

project lies. The patent was recorded in 1856. The evidence at trial

was that the State had never asserted any claim to this property

prior to August 1, 1984.

There is no proof that the Project Site ever was physically

underneath (i.e. the bed of) any navigable water. The Trial Exhibits

show maps and plats from as early as 1852 and photographs from

as early as 1939. There is no exhibit in evidence which shows any

navigable water on any part of the Project Site. Those exhibits show

navigable water adjacent to or on portions of Section 3/ but not

upon or extending to Section 32 where the Project Site is located.

Elmer Nelson, 62 years old and a lifelong resident of Madeline

Island, said that at no time in his lifetime could anyone canoe from

Lake Superior onto the Project Site. In the opinion of William A.

Shearman, a registered land surveyor, the Project Site has never

been a part of the bed of Lake Superior. The plain fact open to

anyone to see is that the land on the Project Site is not and, at

least since Wisconsin Statehood, never has been in the bed of Lake

Superior. The land in question has never been owned by the State

of Wisconsin.

The title to swamp lands and marsh lands did not pass to the

respective states upon achieving Statehood. While acts of Congress

in 1850 and 1855 made swamp lands available to the respective

States, there was no automatic transfer of title. These Congressional

acts are now codified as 42 U.S.C. § 981 and 42 U.S.C. § 982.

Superior Development introduced evidence at trial showing that

Superior Development’s property passed by patent from the federal

government to a private individual [Trial Exhibit 79]. The patent

is prima facie evidence that all required steps, federal and state,

were taken. Lewis County v. Texas County, 588 S.W.2d 750 (Mo.

Ct. of Appeals 1979) citing Cramer v. Keller, 98 Mo. 279, 11 S.W.

734 (1889). A patent of the United States Government, regular

on its face, cannot in an action at law be held inoperative as to

any lands covered by it. Ehrhardt v. Hogaboom, 5 S. Ct. 1157

(1885). Absent direct attack for fraud or mistake. the Secretary of

er ee ee

!

areey |

72a

Interior’s decision that a portion of a lake constituted swamp land

determines its non-navigability. Leonard v. Pearce, 348 Ill. 518,

181 N.E. 399 (1932).

The title that passed to the states was the title to the bed

underlying navigable water and not to land which was “hydraulical-

ly connected” to navigable water.

Moreover, the purpose of § 30.12 is to preserve navigable

waters for use by the public and to preclude the placement of

obstructions to navigability in the bed of waters which are navigable

in fact. It seems unlikely the public has ever attempted to navigate

on any part of this property whose water consists of the runoff

from the golf course and a flowing well and whose “hydraulic con-

nection” to the lake is through culverts under a road. One culvert

is fifteen inches in diameter. There is no evidence that any culvert

is large enough for a canoe to be paddled through carrying a per-

son. Moreover, none of the culverts are actually on Superior

Development’s property. “

The argument that a hydraulic connection is navigable if it

connects with navigable water was rejected in the case of DeGayner

Co. v. State, 236 N.W.2d 217 (1975). That case and the Muench

case involved placement of dams under Chapter 31. Under § 31.06

many characteristics of a stream are relevant other than navigability.

Those characteristics are not relevant to Chapter 30. In the

DeGayner case, the Sierra Club, as amicus curiae, urged the Court

to find the stream navigable because it was a tributary of a navigable

body of water and therefore improved the water quality of the

Namekagon River. The DeGayner Court, in declining to accept

the argument, stated:

_.. [T]he test, proposed by the amicus Sierra Club, has

not been recognized by the statutes or by the common

law; and, as the trial judge pointed out, that test, in its

simplistic form, can be carried to ridiculous extremes,

for it would mean that all tributaries, since they even-

tually run into some navigable body of water, must be

held navigable .. . 236 N.W.2d at 223.

73a

Despite the fact that Superior Development’s property is not

now, and has not been shown to ever have been navigable under

either the federal “commerce test” or the “recreational test” adopted

by the Wisconsin courts, the State claims ownership to Superior

Development’s Project Site because it lies below the OHWM of

Lake Superior. In order to establish its right to abatement of the

alleged nuisance, the State must therefore establish by a

preponderance of the evidence the location of an OHWM on

Superior Development’s property. State v. McDonald Lumber Co.,

18 Wis.2d 173, 118 N.W.2d 152 (1962). The State has failed to

meet this burden.

The State’s evidence of establishing that Superior Develop-

ment’s Project Site is part of Lake Superior may be summarized

as follows:

1. Lake Superior is navigable in fact and the OHWM of Lake

Superior is elevation 602 feet.

2. Superior Development’s property is hydrauliclly

(hydrologically) connected to Lake Superior through a culvert fif-

teen inches in diameter.

3. Portions of Superior Development’s property are below

elevation 602 feet and therefore part of Lake Superior.

The State’s analysis is deceptively simple. The analysis is also

deceptive in that it is without basis in law as noted by the DeGayner

Court. Counsel for the State has stated that the term “hydraulic

connection” was a term the State arrived at in preparing for trial.

The State does not concede that the “hydraulic connection” needs

to be navigable. Superior Development contends that the term “non-

navigable” is a more accurate term to describe the sometimes con-

nection between the Project Site and Lake Superior. The distinc-

tion between these terms is significant.

According to the greater weight of authority, the State’s title

to the lake bed runs to a line which is called the OHWM. Srate

v. McDonald Lumber Co., supra. (Compare C. Beck Company v.

Milwaukee, 139 Wis. 340, 120 N.W. 293 (1909)(holding that the

ees |

title to the bed of the lake below the OHWM is in the state); Mariner

v. Schulte, 13 Wis. 692 (18 \(holding that proprietors of land on

the shore of a pond or lake hold down ft» the low water mark).

The term OHWM appears to have no universally accepted defini-

tion.' In those cases in which the courts have been called upon

to apply the concept, one finds little in the way of a comprehen-

sive definition.

74a

In the State of Wisconsin, the still-accepted definition of the

OHWYM is contained in Diana Shooting Club v. Husting, 156 Wis.

261, 145 N.W. 816 (1920), where the Court stated:

By ordinary high-water mark is meant the point on the

bank or shore up to which the presence and action of

the water is so continuous as to leave a distinct mark

either by erosion, destruction of terrestrial vegetation,

or other easily recognized characteristic. *** And where

the bank or shore at any particular place is of such a

character that it is impossible or difficult to ascertain

where the point of ordinary high-water mark is, recourse

may be had to other places on the bank or shore of the

same stream or lake to determine whether a given stage

of water is above or below [the] ordinary high-water

mark.” (Emphasis added). 145 N.W. at 820.

The above test which is known as the “vegetation test”

regarding OHWMs has been addressed by the United States

Supreme Court in Howard v. Ingersoll, 54 U.S. 381 (1851).

In defining a water's outer line (i.e., high-water mark) under

the vegetation test, the Supreme Court stated:

It neither takes in overflowed land beyond the bank, nor

includes swamps or low grounds liable to be overflowed,

but reciaimable for meadows or agriculture, or which,

being too low for reclamation, though not always

covered with water, may be used for cattle to range upon,

as natural or uninclosed pasture. But it may include spots

lower than the bluff or bank, whether there is or is not

a growth upon them, not forming a part of that land

SE

75a

which, whether low or are within the bed of the river.

Such a line may be found upon every river, from its

source to its mouth. It requires no scientific exploration

to find or mark it out. The eye traces it in going either

up or down a river, in any stage of water. (Emphasis

added).

Id. at 415-16.

It is clear from the language of Howard v. Ingersoll and Diana

Shooting Club that an OHWM should be visible to the naked eye

and does not require scientific exploration for its determination.

The issue of the determinations of OHWMs has been addressed

by many courts.

In Jn re Minnetonka Lake Improvement, 56 Minn. 513, 58

N.W. 295 (1894), the Minnesota Supreme Court found erroneous

the lower court's assumption that the “high-water mark” means

the extreme line which the water reaches (even outside its natural

bed) in times of high water caused by rains or melting snows which

are not unusual or extraordinary but which occur frequently dur-

ing the wet season. The Court found that the consequences of such

a determination, if taken to its illogical extremes, would be

“startling” on riparian landowners. /d. at 521. In discussing the

concept of the “high-water mark” Justice Mitchell stated:

“High-water mark” means what its language imports,

a water mark. It is co-ordinate with the limit of the body

of the water; and that, only, is to be considered the bed

which the water occupies sufficiently long and con-

tinuously to wrest it from vegetation, and destroy its

value for agricultural purposes. Ordinarily, the slope of

the bank and the character of its soil are such that the

water impresses a distinct character on the soil, as well

as on the vegetation. /n some places, however, where

the banks are low and flat, the water does not impress

on the soil any well-defined cases, the effect of the water

upon vegetation must be the principal test in determin-

ing the location of high-water mark, as a iine between

76a

the riparian owner and the public. It is the point up to

which the presence and action of the water is to con-

tinuous as to destroy the value of the land for agricultural

purposes by preventing the growth of vegetation, con-

stituting what may be termed as ordinary agricultural

crop, — for example, hay. (Emphasis added).

Id. at $22.

The relevance and method of ascertaining the OHWM was

definitively explained in Borough of Ford City v. United States,

345 F.2d 645 (3rd Cir. 1965), cert. denied, 382 U.S. 902 (1965).

There, the borough brought a civil action against the United States

alleging that the government’s construction of a lock and dam on

the Allegheny River resulted in damages to the borough’s sewerage

system. The central issue in the case was whether the government's

construction activities had raised the OHWM of the river in the

area of the Ford City sewer system. If so, the defendant would

be found responsible for any damage caused plaintiff by reason

thereof.

In finding that the OHWM had not been raised by the govern-

ment’s construction activities, the Court noted that the demarca-

tion of boundaries along navigable streams is generally readily obser-

vable. The Court went on to explain that the OHWM usually can

be detected by observing the presence of multiple factors, including

shelving, a change in the character of the soil, the absence of lit-

ter, and the destruction of terrestrial vegetation. When the multi-

ple factors comprising a high-water mark cannot be found in one

location, it is permissible to check for them at other sites along the

stream. Jd. at 645-648. If these multiple phenomena cannot be

found, resort to the so-called “vegetation test” alone is appropriate.

Under these circumstances the high-water mark rests at the point

below which the value of the soil for agricultural purposes has been

destroyed. This does not mean that vegetation is absent below the

mark, but rather that terrestrial vegetation will not grow here.

The relevant case law treats the OHWM as being the demar-

cation line between public and private property.

———————— *

77a

The State Department of Natural Resources’ current pamphlet

on OHWM [Trial Exhibit 43] states:

The ordinary high-water mark (OHWM) is the point on

the bank or shore where the water is present often

enough so that the lake or stream bed begins to /ook dif-

ferent from the upland. Specifically, the OHWM is the

point on the bank or shore up to which the water, by

its presence, wave action or flow, leaves a distinct mark

on the shore or bank. The mark may be indicated by

erosion, destruction of or change in vegetation or other

easily recognizable characteristics. (Emphasis in original).

The OHWM is to be a visible mark. Chapter 236 Wisconsin

Statutes which relates to platting lands, refers to the OHWM and

requires placement of iron monuments a certain distance back from

the OHWM. As Mr. Shearman testified, registered land surveyors

must be able to recognize OHWMs. He knows what an OHWM

looks like from his training and work experience. There is no

OHWM present as a visible mark on the Project Site. Certainly

no photographs were introduced to show a visible OHWM on the

Project Site. Trial Exhibits 14 and 15 show an example of the

OHWM on the shoreline of Lake Superior. These photographs were

taken over one-half mile away from the Project Site.

Duane Lahti, a biologist with the Department of Natural

Resources, who has made about 200 OHWM determinations, was

at the Project Site on November 1, 1983.

At the time of this visit by many interested people to discuss

building plans, Mr. Lahti did not see any visible sign of an OHWM.

Mr. Lahti’s letter of November 4, 1983 [Trial Exhibit 4], which

discussed the meeting, did not mention any finding of an OHWM.

The State contends that the transfer test set forth in the Diana

Shooting Club case justifies the analysis it used on Superior Develop-

“ment’s property. The test bears repeating:

78a

... And where the bank or shore at any particular place

is of such a character that it is impossible or difficult

to ascertain where the point of ordinary high-water mark

is, recourse may be had to other places on the bank or

shore of the same stream or lake to determine whether

a given stage of water is above or below the OHWM.

145 N.W. at 820. (Emphasis added).

As is evident, the above test is not applicable to the immediate fact

situation and therefore not available to the State.

In fact, the only justification for “transferring” the OHWM

to the Project Site by survey methods is because the OHWM is

not visible. The reason an OHWM is not visible on the Project

Site is because one does not exist. The State in its argument im-

properly seeks to prove as true that which it assumes is true. It

seeks to prove that the property is below the OHWM of Lake

Superior by assuming as true that at some past or current time a

part of the shoreline of Lake Superior lay on the Project Site. The

transfer test by its very terms as set forth in the Diana Shooting

Club case is not available to the State. The transfer language is

to be utilized when for some reason the wind and wave action,

though present, have failed to leave a clearly discernable line upon

the shoreline of a lake or the bank of a river or stream. In this

case there is no evidence nor even any reasonable inference which

could be drawn to indicate that the waters of Lake Superior were

ever driven by wind or wave action onto any part of the Project

Site. There has been no testimony introduced by the State that

any bank or shore (much less that of Lake Superior) exists on

Superior Development’s property. The State introduced no evidence

that there was any point on Superior Development’s property where

the presence and action of the waters of Lake Superior were so

continuous So as to leave a distinct mark either by erosion, destruc-

tion of terrestrial vegetation, or other easily recognized

characteristic. The State has introduced no evidence to show that

it was attempting to determine whether a given stage of water on

Superior Development’s property was below the OHWM of Lake

Superior. The State has introduced no evidence to show that to

the extent any water is found on Superior Development’s proper-

ty, that such water constitutes the same lake as Lake Superior. To

79a

the extent any water exists on Superior Development’s property,

and further to the extent that water runs through a culvert with

a 15 inch diameter to Lake Superior, the State has failed to show

the connection is navigable under the Muench test and any water

on Superior Development’s property has not been shown to be part

of Lake Superior. Therefore, the State is not making recourse to

the bank or shore of the same lake when it takes the OHWM of

Lake Superior at the marina and transfers it across Old Fort Road

onto Superior Development’s property.

The State’s bootstrap argument does not serve to prove that

the points on the Project Site which Mr. Knitter surveyed were

ever, since 1848, on the shore of Lake Superior.

The State’s argument that portions of the Project Site are below

elevation 602 feet simply begs the question as to whether the

property is a part of Lake Superior.

It is clear that the fact situation in the immediate action pro-

hibits the State from using the alternate test of determining an

OHWM on the shore of the same lake and transferring it as pro-

vided for in Diana Shooting Club v. Husting because it is inap-

plicable. The State must therefore show that an OHWM exists on

Superior Development’s property without regard to elevations.

Given the various judicial analyses of determining the OHWM

at any particular location, the predominant consideration appears

to be whether there exists terrestrial, as opposed to aquatic, vegeta-

tion at that particular location. Here, it appears that the brush,

grasses, and other vegetation growing on the disputed land could

reasonably be classified as being more terrestrial than they would

be considered aquatic. Further, the State has produced no evidence

that signs of erosion are visible on Superior Development's property.

To the contrary, there exists no easily recognized characteristics

which would suggest that, at this specific location, the high-water

mark of Lake Superior extends now, or ever extended in the past,

up to that point where the Project Site is located while easily

recognized characteristics are present to indicate the location of

the high-water mark in the area, those characteristics are found

on the shoreward side of road running between Lake Superior and

i alae

Superior Development's property. The State’s method of proof is

not only invalid in that it runs counter to the generally recognized

tests for calculating the OHWM at any particular location, but the

State has further failed its burden of proof by the fact that no

evidence, regardless of method, suggests that the disputed land is

now, or ever was, within the OHWM of Lake Superior.

80a

In State v. McDonald Lumber Co., 18 Wis. 2d 173, 118

N.W.2d 152 (1962), the State sought to enjoin the defendant from

excavation and filling activities allegedly conducted in the lake bed

of the waters of Green Bay. The State’s success in obtaining in-

junctive relief hinged upon its ability to establish with accuracy

an old shoreline upon what was then upland. The Wisconsin

Supreme Court was asked to determine whether a specific portion

of property occupied by the defendant was located upon lake bed

belonging to the State. After recognizing that “[t}he state’s title to

the lake bed runs to a line which is called the ‘ordinary high-water

mark’,” the Court upheld the lower court’s conclusion that the State

failed its burden of proving its ownership of the land by failing

to establish the location of the OHWM by a preponderance of the

evidence. /d. at 154. In McDonald, rather than attempting to

establish an OHWM on the property by showing a distinct mark

created by erosion, destruction of terrestrial vegetation or some

other easily recognized characteristic in the manner presented in

Diana Shooting Club v. Husting, the State, as in the immediate

case, offered proof as to the average of the high-water level of the

Great Lakes as determined by the U.S. Army Corps of Engineers

over a certain time frame. Using that, the State attempted to fix

the high-water mark at 581 feet above sea level and from that

benchmark sought to esiablish that the defendant was trespassing

and committing a nuisance upon the State’s land. In refusing to

adopt the State’s proof as to the OHWM, the trial court said:

Before a court can grant a remed)*** it is imperative that

the area which constitutes the nuisance and its abate-

ment must be established with reasonable certainty.

Unless so established a judgment cannot be declared and

equally important cannot be enforced by contempt or

otherwise.***The burden of proof rests upon the plain-

tiff and it has failed to meet [that] burden***. The court

8la

cannot indulge in speculation and conjecture as to what

part, if any, of fill or warehouse footings constitutes a

nuisance and what does not or what may be abated and

what may not. (Emphasis added). :

118 N.W.2d at 154.

The State’s argument is wrong also on policy grounds. Wiscon-

sin Statute §30.12 is a statute which carries with it the possibility

of a fine and jail sentence. Ordinary people should be able to tell

when their conduct violates a criminal statute. Here a registered

land surveyor who has visited the Project Site more than 30 times

is of the opinion that there is no OHWM on the Project Site and

that the Project Site is not a part of the bed of Lake Superior. Even

Mr. Lahti did not conclude on November 1, 1983 that the Project

Site was in the bed of Lake Superior. Moreover, if the property

is deemed a part of Lake Superior using the State’s argument, then

Superior Development would be a riparian owner.

It is generally recognized that a riparian owner has a qualified

right to the land between the actual water level and the OHWM —

the riparian owner may exclude the public therefrom but he but

he may not interfere with the rights of the public for navigation

purposes. See Doemel v. Jantz, 180 Wis. 225, 235, 236, 193 N.W.

393 (1923). As such, Superior Development has the right to con-

struct a dock or pier on the navigable water. Diedrich v. The Nor-

thwestern Union Railway Co., 42 Wis. 248 (1877). In Doemel, the

Court considered whether a member of the public could legally

enter upon and use for public travel a strip of land adjacent to plain-

tiffs upland and lying between the ordinary high and low water

marks of a lake without committing an actionable trespass. The

plaintiff, a riparian landowner, argued that his title extended to

the low-water mark of the lake, or, if it was determined that his

title extended only to the OHWM, that he nevertheless possessed

an exclusive right to use the shore between the low and high water

marks and that any entry upon such land by the defendant con-

stituted a trespass. On the other hand, the defendant and the State

contended that the plaintiff's title extended only to the high-water

mark, that the title to the land between the ordinary high and low

water marks is held in trust by the State for the benefit of the public,

82a

and, further, that if the plaintiff was found to hold a qualified title

to the disputed land, such land was subject to a public easement

not only for the purposes of navigation but also for travel and other

general public purposes.

In finding that a riparian landowner holds a qualified title to

those lands lying between the low and high water marks of a lake,

the Court stated:

This doctrine also seems to be in perfect harmony with

the natural order of things. During certain periods of

the year when precipitation is large, and when the waters

of the -1kes are swelled by increasing volumes coming

from springs, rivers, creeks, and the flowage of surface

water and the precipitation in the form of rain, the lake

exercises its dominion over the land to the high-water

mark. This dominion, however, is not permanent.***

As to inland lakes and rivers, such assertion of domi-

nion on the part of nature is when the waters recede,

those rights are succeeded by the exclusive rights of the

riparian owner. So that during periods of high water the

riparian ownership represents a qualified title, subject

to an easement, while during periods of low water it

ripens into an absolute ownership as against all the world,

with the exception of the public rights of navigation. ***

(Emphasis added).

193 N.W. at 398.

This language in Doemel! is particularly striking in that it im-

plies that a riparian owner holds a qualified title, subject only to

public easement rights, in land lying below the OHWM during times

of high water and holds an absolute title to those lands, subject

only to public navigation nghts, during periods of “low” water. This

suggestion that a landowner holds, at a minimum, a qualified title

in land to the /ow water mark of a lake is reinforced later in Doemel

when the Court said: “Early in the history of this state this court,

in harmony with other courts, has firmly declared that the title

of a riparian owner on a navigable inland meandered lake extends

to [the] low water mark.” (Emphasis added). /d. at 398.

83a

The law of accretions and relictions also applies to the rights

of a riparian owner. If, in fact, the OHWM of Lake Superior ex-

tends to the Project Site, Superior Development, as the riparian

landowner, can exclude all persons from the land lying between

the OHWM and the low-water level as an incident of such owner-

ship. Even if the Court should hold that the State’s title extends

to the OHWM and that the State’s survey of the OHWM is valid,

the State’s title to any such land is nevertheless subject to partial

divestment through application of the law of accretions and relic-

tions. See Boorman v. Sunnuchs, 42 Wis. 233 (1877); Roberts v.

Rust, 104 Wis. 619, 80 N.W. 914 (1889): XII Op. Atty. Gen. 361,

361-62 (1923); XVII Op. Atty. Gen. 41 (1928); II] Op. Atty. Gen.

589 (1913).

Further, as discussed in connection with the First Claim,

Ashland County as does all other counties, pursuant to State man-

date, regulates shorelands within 1000 feet of navigable lakes.

Should the State’s argument prevail, there will be property owners

throughout Wisconsin who will be subject to land restrictions they

would never have dreamed could apply to them. Hence, on policy

grounds the State’s arguments should be rejected.

The State has failed to meet its burden of showing the Superior

Development’s property is navigable in fact. The State has failed

in its attempt to show an OHWM on Superior Development’s

property and is precluded from transferring the OHWM of Lake

Superior to Superior Development’s property by the express

language of the caselaw that the State relies upon. It is clear why

the State has attempted to transfer the OH

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