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It is not the law, as we view it, that the state, represented by its Legislature, must forever be quiescent in the administration of the trust doctrine, to the extent of leaving the shores of Lake Michigan in all instances in the same condition and contour as they existed prior to the advent of the white civilization in the territorial area of Wisconsin. [ABSTRACT FROM AUTHOR]

In 2013, in Rock-Koshkonong v. Wisconsin Department of Natural Resources, the Wisconsin Supreme Court ruled in a 4-to-3 decision that the Department of Natural Resources could not consider damage to non-navigable wetlands above the ordinary high water mark under Wisconsin's public trust doctrine when making a water level determination for Lake Koshkonong. According to the majority, the Department of Natural Resources could consider damage to adjacent wetlands only under statutory authority because Wisconsin's constitutionally based public trust doctrine was confined to navigable waters below the ordinary high water mark. This paper maintains that the Rock-Koshkonong majority made a number of analytical missteps in reaching its decision. The court failed to provide sufficient justification for confining the scope of Wisconsin's public trust doctrine to navigable waters, mischaracterizing its precedents and silently narrowing the celebrated case of Just v. Marinette County, which interpreted Wisconsin's public trust doctrine to include wetlands adjacent to and affecting navigable waters. The paper concludes that the court's narrowing of the scope of Wisconsin's public trust doctrine disregarded the history and purpose of the doctrine and unnecessarily curtailed public rights in favor ofprivate property rights in the process. [ABSTRACT FROM AUTHOR]

Since the 1970s, articles on the public trust doctrine-as articulated in judicial opinions, constitutional provisions, and statutes-have been replete in legal literature. Yet, few articles discuss the actual implementation of the doctrine, and none are informed by qualitative research interviews with water managers. This Article explores this missing dimension through an empirical study of the "on the ground" trustees of Wisconsin-its water managers. Wisconsin's legal framework is an example of a cutting-edge articulation of the public trust doctrine. Because Wisconsin has been on the forefront of developing the legal doctrine, and its water managers face budgetary constraints and conflicts between public rights and private property rights not unique to the state, this empirical study illustrates for those working in other states the tensions and structures that impede or enhance public trust protections. After exposing the systems that prevent water managers from fully carrying out their trustee duties, this Article provides several modest policy proposals for moving forward in a way that empowers water managers to satisfactorily meet their duties as trustees. [ABSTRACT FROM AUTHOR]

The public trust doctrine is rooted in ancient Roman law and the Wisconsin Constitution. Ancient Roman jurists believed that the natural law concept that the waters are common to all was not subject to the changing whims of legislatures. Similarly, modern theorists assert that a constitutionally-based doctrine will be more insulated from politics. This Comment demonstrates the limits of these theories. The trust doctrine is not immutable. Based on interviews with the trustees of Wisconsin's water resources, this Comment uncovers the constraints on the trustees. It shows that trust resources are at risk due to politically-motivated decisions and lax enforcement. [ABSTRACT FROM AUTHOR]