                                                                       2013 WI 74

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:                2008AP1523
COMPLETE TITLE:
                         Rock-Koshkonong Lake District, Rock River-
                         Koshkonong Association, Inc. and Lake Koshkonong
                         Recreational Association, Inc.,
                                    Petitioners-Appellants-Petitioners,
                              v.
                         State of Wisconsin Department of Natural
                         Resources,
                                   Respondent-Respondent,
                         Lake Koshkonong Wetland Association, Inc. and
                         Thiebeau Hunting Club,
                                   Intervenors-Respondents.
                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 336 Wis. 2d 677, 803 N.W.2d 853
                                   (Ct. App. 2011 - Published)
                                     PDC No: 2011 WI App 115

OPINION FILED:           July 16, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           September 5, 2012

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Rock
   JUDGE:                Daniel T. Dillon

JUSTICES:
   CONCURRED:
   DISSENTED:            CROOKS, J., ABRAHAMSON, C.J., BRADLEY, J.,
                         dissent. (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For        the    petitioners-appellants-petitioners,          there   were
briefs by William P. O’Connor, Mary Beth Peranteau and Wheeler,
Van Sickle & Anderson, S.C., Madison, and Arthur J. Harrington
and Douglas M. Poland and Godfrey & Kahn, S.C., Milwaukee, and
oral argument by William P. O’Connor and Arthur J. Harrington.
       For      the     respondent-respondent,    the   cause   was    argued   by
Cynthia R. Hirsch, assistant attorney general, and the brief was
filed by Joanne F. Kloppenburg, assistant attorney general, with
whom on the brief was J.B. Van Hollen, attorney general.
     For the intervenors-respondents, there was a brief filed by
Charles V. Sweeney and Mitchell R. Olson, and Axley Brynelson,
LLP, Madison, and oral argument by Charles V. Sweeney.
     An    amicus   curiae    brief    was    filed   by   Miriam   Ostrov    and
Midwest Environmental Advocates, Inc., Madison, on behalf of the
River Alliance of Wisconsin.
     An    amicus   curiae    brief    was    filed   by   Thomas   D.    Larson,
Madison, on behalf of the Wisconsin Realtors Association.
     An    amicus   curiae    brief   was     filed   by   Elizabeth     Wheeler,
Madison,    on   behalf   of    Clean       Wisconsin,     Wisconsin     Wetlands
Association and Wisconsin Lakes.
     An    amicus    curiae    brief        was   filed    by   Duffy    Dillon,
Janesville, on behalf of the Manitowish Chain Defense Fund, LLC.
     An amicus curiae brief was filed by Andrew C. Cook and
Emily Stever Kelchen, and Great Lakes Legal Foundation, Inc.,
Madison, on behalf of Wisconsin Manufacturers & Commerce and
Midwest Food Processors Association.




                                        2
                                                                           2013 WI 74
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.   2008AP1523
(L.C. No.   2006CV1846)

STATE OF WISCONSIN                             :            IN SUPREME COURT

Rock-Koshkonong Lake District, Rock River-
Koshkonong Association, Inc. and Lake
Koshkonong Recreational Association, Inc.,

             Petitioners-Appellants-Petitioners,

      v.
                                                                      FILED
State of Wisconsin Department of Natural
Resources,                                                       JUL 16, 2013
             Respondent-Respondent,                                 Diane M. Fremgen
                                                                 Clerk of Supreme Court
Lake Koshkonong Wetland Association, Inc. and
Thiebeau Hunting Club,

             Intervenors-Respondents.




      REVIEW of a decision of the Court of Appeals.                   Reversed and

cause remanded.



      ¶1     DAVID T. PROSSER, J.        This case, involving a dispute

about the water levels on Lake Koshkonong, presents fundamental

questions about the authority of the Wisconsin Department of

Natural     Resources     (the   DNR),   and   the     criteria       it    uses     in
                                                                       No.         2008AP1523



regulating      the    level     of    water   in     navigable      waters        that    are

affected by dams.

     ¶2        Wisconsin     Stat.     § 31.02(1)1          authorizes       the    DNR     to

regulate the level and flow of water in the navigable waters of

Wisconsin.           The   DNR   may    order        benchmarks      designating          "the

maximum level of water that may be impounded and the lowest

level of water that may be maintained by any dam."                               Wis. Stat.

§ 31.02(1).          The statute       provides       that    the   DNR     may     regulate

water levels         "in the interest          of    public    rights       in     navigable

waters    or    to    promote     safety       and    protect       life,     health      and

property."      Id.

     ¶3        The dispute here results from a 2003 petition (the

Petition)      by    the   Rock-Koshkonong           Lake    District,       Rock     River-

Koshkonong Association, Inc., and Lake Koshkonong Recreational2

Association, Inc. (collectively, the District)3 to raise the DNR-
     1
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
     2
       The complaint initiating judicial review of the DNR
decision by the Rock County Circuit Court named "Lake Koshkonong
Recreational Association, Inc." as one of the petitioners.
However, the proper name of the entity is "Lake Koshkonong
Recreation   Association,   Inc."  as   indicated   by Wisconsin
Department    of   Financial   Institution   corporate  records.
Therefore, all further references to the association will use
its proper name.
     3
       The Rock-Koshkonong Lake District filed the Petition in
2003 to raise the water levels on the lake.      After the DNR
rejected the Petition, Rock River-Koshkonong Association, Inc.
and Lake    Koshkonong   Recreation Association,  Inc.  jointly
petitioned with the Rock-Koshkonong Lake District for a
contested case hearing.    For the sake of simplicity, we will
refer to all three entities as the District throughout this
opinion, unless otherwise noted.

                                           2
                                                                          No.         2008AP1523



designated water levels of Lake Koshkonong.                             The DNR rejected

the Petition, and its denial was affirmed by an administrative

law judge (ALJ) in a contested case hearing by the Rock County

Circuit Court, Daniel T. Dillon, Judge, and by the court of

appeals.      See Rock-Koshkonong Lake Dist. v. DNR, 2011 WI App

115, 336 Wis. 2d 677, 803 N.W.2d 853.                        The ALJ's decision was

adopted as the decision of the DNR.

        ¶4   We are presented with four issues.

        ¶5   First,      what   level    of       deference,       if    any,     should     be

accorded to the DNR's conclusions of law under the circumstances

of this case?

        ¶6   Second, did the DNR exceed its authority in making a

water level determination under Wis. Stat. § 31.02(1) "in the

interest of public rights in navigable waters," by considering

the impact of water levels on private wetlands that are adjacent

to Lake Koshkonong and located above the ordinary high water

mark?

      ¶7     Third, did the DNR exceed its authority in making a

water level determination under Wis. Stat. § 31.02(1) "in the
interest of public rights in navigable waters" by considering

wetland water quality standards in Wis. Admin. Code § NR 103?
      ¶8     Fourth,      did   the     DNR       err   in   making       a     water     level

determination under Wis. Stat. § 31.02(1) by excluding evidence
and     refusing    to    consider      the        impacts    of        water    levels      on

residential        property     values,           business     income,          and     public

revenue?

      ¶9     We conclude the following:
                                              3
                                                                         No.       2008AP1523



        ¶10    The DNR's conclusions of law are subject to de novo

review because         the    DNR's water          level   order       under    Wis. Stat.

§ 31.02(1) is heavily influenced by the DNR's interpretation of

the scope of its own powers, its interpretation of the Wisconsin

Constitution,         its    disputed      interpretation         of     the    statute      it

utilized, and its reliance upon statutes and rules outside of

Wis. Stat. ch. 31.

        ¶11    The    DNR     properly         considered     the        impact        of   the

Petition's proposed water levels on public and private wetlands

in   and      adjacent       to     Lake    Koshkonong.            However,        the      DNR

inappropriately        relied       on   the    public     trust       doctrine    for      its

authority to protect non-navigable land and non-navigable water

above the ordinary high water mark.                   The DNR has broad statutory

authority grounded in the state's police power to protect non-

navigable      wetlands       and    other      non-navigable          water    resources.

Thus,    the    DNR    may    consider         the   water    level       impact       on   all

adjacent property under Wis. Stat. § 31.02(1).

        ¶12    The DNR was entitled to consider the water quality
standards in Wis. Admin. Code § NR 103, promulgated under Wis.

Stat. ch. 281, when making a Wis. Stat.§ 31.02(1) water level
determination.         By statute, the DNR is responsible for writing

and enforcing wetland water quality standards in this state.
Accordingly, it         would be         unreasonable       for    the    DNR     to    ignore

statutes and its own administrative rules when making a water
level determination affecting wetlands.                      Therefore, the DNR may

consider § NR 103 water quality standards when making a water

level    determination        under      Wis.      Stat.   § 31.02(1)       that       affects
                                               4
                                                              No.       2008AP1523



wetlands and may apply these standards when appropriate after

weighing    the    factors    in   the   statute.     However,      Wis.     Stat.

§ 281.92 suggests that the DNR is not required to apply ch. 281

standards in making a determination under Wis. Stat. § 31.02

because ch. 31 is excepted from the provisions of ch. 281.

     ¶13    The    DNR    erroneously    excluded   most    testimony      on    the

economic impact of lower water levels in Lake Koshkonong on the

residents, businesses, and tax bases adjacent to and near Lake

Koshkonong.       This evidence was relevant to the DNR's decision-

making under Wis. Stat. § 31.02(1).           Although the DNR is granted

substantial discretion in its decision-making under the statute,

it must consider all probative evidence when its decision is

likely to favor some interests but adversely affect others.                       In

this case, the DNR's exclusion of most economic evidence was

inconsistent with its acceptance of competing economic evidence

that helped sustain its water level decision.

     ¶14    We remand this case to the circuit court for further

proceedings consistent with this opinion.

                     I. FACTS AND PROCEDURAL HISTORY
     ¶15    We begin the statement of facts and procedural history

with an examination of the Rock River, Lake Koshkonong, and the
Indianford Dam.          Next, we explain the purpose of ch. 31 of the

Wisconsin     Statutes,      the   history   of     water   levels      on      Lake
Koshkonong, and the Petition.            We then summarize the contested

case hearing and the resulting decision, In the Matter of the
Review of the Water Level Decision for Lake Koshkonong and the

Indianford Dam on the Rock River in Rock County, Wisconsin, Case
                                         5
                                                                   No.        2008AP1523



No. 3-SC-2003-28-3100LR, (DNR, Dec. 1, 2006) [hereinafter the

Decision], which was adopted by the DNR.                      Finally, we lay out

the procedural history of the District's appeal.

                                A. The Rock River

       ¶16     The    Rock    River   originates        in    Dodge      County    near

Theresa, just south of the Fond du Lac County line.                       It flows in

a southerly, then southwesterly direction, passing through such

Wisconsin communities as Watertown, Fort Atkinson, Janesville,

and Beloit before entering Illinois.                    The Rock River empties

into the Mississippi River            near       Rock   Island,   Illinois.          Its

total length is nearly 300 miles.

       ¶17     The mouth of the Rock River flows into Lake Koshkonong

about four miles downstream from the City of Fort Atkinson in

Jefferson County.            The outlet of the lake, which funnels water

back into the narrow channel of the Rock River, is situated

about six miles upstream from the Indianford Dam in Rock County.

                                B. Lake Koshkonong

       ¶18     Lake    Koshkonong,    the       sixth   largest   inland      lake    in
Wisconsin, is a natural widening of the Rock River4 located in

Jefferson, Rock, and Dane Counties.                 While Lake Koshkonong has a
wide       surface    area   (approximately       10,460     acres),     it   is   quite

shallow.       At the current targeted water level ordered by the DNR
in 1991, Lake Koshkonong's average depth is only five feet and



       4
       Lake Koshkonong and the Rock River are navigable waters
under Wisconsin law.      See Wis. Stat. § 30.10(1) and (2)
(declarations of navigability for lakes and streams).

                                            6
                                                                             No.        2008AP1523



its maximum depth is only seven feet.5                           The topography of the

shoreline is gently sloped in such a way that water levels of

one to two feet can extend quite far into the lake.

        ¶19       Lake Koshkonong has 27 miles of shoreline.                            Ten miles

of     shoreline         have    been     developed        for   residential            and    some

commercial         use.         Approximately        2,788    residential          parcels      are

located       within      a     half-mile   of       the   lake,      with   more       than    600

riparian parcels adjacent to the lake.

        ¶20       Lake    Koshkonong        contains         12.4      miles       of     wetland

shoreline.          Among the largest wetlands in and adjacent to the

lake        are   Koshkonong       Creek    (278      acres      of    shallow      marsh       and

floodplain forest); Krumps Creek (335 acres of shallow marsh);

Mud Lake (921 acres of shallow marsh); Otter Creek (334 acres of

shallow marsh and floodplain forest); Thiebeau Marsh (494 acres

of shallow marsh, shrub, and meadow); and the state-owned and

DNR-managed         Koshkonong          Wildlife      Area    (715      acres      of     shallow

marsh, shrub, and meadow known as an area of "special natural

resource interest" under Wis. Admin. Code § NR 103.04).                                       These
areas       and    all    of     Lake    Koshkonong        are     replete      with      diverse

species of wildlife and vegetation.                           The ALJ found that the


        5
       Around the time of statehood, Lake Koshkonong had a very
different appearance than it does today.   Visiting the area in
July 1850, Dr. I.A. Lapham wrote, "The water is from 4 to 12
feet deep.    At the time of our visit, . . . wild rice was
growing abundantly over almost its whole surface, giving it more
the appearance of a meadow than a lake."    W.H. (Bill) Rodgers,
Early History of Lake Koshkonong 1 (Mar. 21, 1961) (unpublished
manuscript) (on file with Hoard Historical Museum, Fort
Atkinson, Wis.).

                                                 7
                                                                   No.    2008AP1523



wetland shoreline has eroded since 1940.                   "The reduced frequency

of low water conditions during the summer and the increase in

the average summer water levels . . . account for the loss of

wetlands over the past 70 years."

                              C. The Indianford Dam

        ¶21    The Indianford Dam affects water levels on the Rock

River and Lake Koshkonong.              In 1843 the Wisconsin territorial

legislature authorized Clouden and Luke Stoughton to build the

original dam; however, the Stoughtons did not construct the dam

until       after    March    1851,    when       the   state   legislature    again

authorized construction.          Around 1917 the dam was reconstructed,

which       raised    water   levels    on       Lake   Koshkonong.      The   Rock-

Koshkonong Lake District, which was created in 1999, took over

ownership and operation of the dam from Rock County in 2004.6

     ¶22       The dam fell into general disrepair in the 1960s until

it was rehabilitated in 2002.                    Because of this disrepair, the

dam's operation was compromised and it failed to regulate water

levels on Lake Koshkonong——to conform with the target levels set
by the DNR——for much of the time between the late 1960s until

about 2002.          As a result, water levels on Lake Koshkonong since
1965 have almost always exceeded the current target level of

776.20 feet above mean sea level (msl),7 as the following chart
from the Decision illustrates:


        6
       Rock County took over ownership of the dam in December
1965 from the Wisconsin Power & Light Co.
        7
            Msl is a unit of measurement for water levels.

                                             8
                                                                  No.       2008AP1523




 Date        Water Level         Date    Water Level       Date         Water Level

                (ft.)                         (ft.)                        (ft.)

1965         776.60          1978        777.64           1991          776.40

1966         776.25          1979        777.27           1992          776.49

1967         776.28          1980        777.23           1993          779.16

1968         777.01          1981        776.51           1994          776.51

1969         776.90          1982        776.88           1995          777.02

1970         776.36          1983        776.63           1996          777.72

1971         776.31          1984        776.63           1997          776.98

1972         777.23          1985        776.51           1998          776.79

1973         777.86          1986        778.98           1999          777.44

1974         777.61          1987        776.51           2000          777.59

1975         777.15          1988        776.10           2001          777.18

1976         776.49          1989        776.25           2002          776.68

1977         776.11          1990        776.75

       ¶23    The "statistically significant upward trend in average

water levels" on Lake Koshkonong from 1932 to 2003 was partly

attributable to the "diminished operating range of the wicket

gates" on the dam before its 2002 repairs, as well as debris on

the trash racks of the dam that impeded flowage.

        D. Wis. Stat. Chapter 31 and the District's Petition

       ¶24    Chapter 31 of the Wisconsin Statutes grants the DNR

authority      to     regulate    dams   and    bridges   affecting        navigable

waters in the state.         The DNR may regulate and control the level

and flow of water in all navigable waters "in the interest of


                                          9
                                                                           No.      2008AP1523



public     rights    in   navigable          waters      or    to    promote     safety     and

protect    life,     health      and    property."             Wis.      Stat.   § 31.02(1).

Section 31.02(2) states that the "construction, operation, [and]

maintenance . . . of dams in navigable waters shall be subject

to   the    supervision          of    the    [DNR]       and       to    the    orders     and

regulations of the [DNR]."               Thus, a dam operator must petition

the DNR8 for an order if it wishes to raise or lower the water

levels of a navigable body of water in a manner inconsistent

with a previously existing order.

     ¶25     The     Wisconsin         Railroad          Commission         (the    Railroad

Commission)        issued     the      first       water       level      order     for    the

Indianford Dam in 1919.                The next order was not issued until

1982, when the DNR, on its own motion, issued another order

reestablishing water levels pursuant to Wis. Stat. § 31.02(1).

The DNR determined that the existing order was inadequate to

control the water levels of Lake Koshkonong.

     ¶26     However,       the       1982     order       was      appealed       by     three

individuals, two lake-based recreation clubs, a property owners
association,       and    Rock    County.          The    Jefferson        County       Circuit

Court's decision affirming the 1982 order was appealed to the
court of appeals, which remanded to the DNR to hold a hearing

before issuing any water level order.                         A compromise between the


     8
       The legislature originally delegated authority to issue
water level orders to the Railroad Commission.    § 3, ch. 380,
Laws of 1915 (creating Wis. Stat. ch. 69m. § 1596——2.1. (1915)).
The Public Service Commission and then the DNR became the
successor agencies responsible for issuing water level orders
under Wis. Stat. ch. 31.

                                              10
                                                              No.      2008AP1523



DNR and the parties resulted in a 1991 water level order.                     The

1991 order left the 1982 order largely intact, raising slightly

the   minimum   lake   elevation   in    the   winter   and    eliminating      a

flashboard9 requirement.10

      ¶27   In 2002, after the rehabilitation of the Indianford

Dam restored full operating capability to the dam's gates, the

water levels on Lake Koshkonong began to reflect more closely

the levels set by the 1991 order.          As a result, water levels on

the lake dropped below recorded levels since the 1930s.                        On

April 21, 2003, the District11 petitioned the DNR, pursuant to

Wis. Stat. § 31.02(1), to amend the 1991 order.                     The District

contended   that   the   1991   order    was   "not   consistent       with   the

public interest" because lower water levels on Lake Koshkonong

led to severe restrictions on recreational boating and in many

cases "piers must be extended far from shore to reach navigable

water depths."     In addition, the District expressed concern for

the effect that the winter drawdown in the 1991 order had on

shore erosion, plants, and animal species.
      9
       A flashboard is a "board or structure of boards extending
above a dam to increase its capacity."     The American Heritage
Dictionary of the English Language 691 (3d ed. 1992).
      10
       The DNR amended the 1991 order in 2004 to reflect the
change in ownership of the Indianford Dam from Rock County to
the Rock-Koshkonong Lake District.    The 2004 amendment made no
substantive changes to the 1991 water order.
      11
       Rock-Koshkonong Lake District was established by Rock
County in 1999, pursuant to Wis. Stat. §§ 33.24 and 33.37(1),
"to undertake a program of . . . protection and rehabilitation
for Lake Koshkonong." More than 4,000 parcels of land in Rock,
Jefferson, and Dane Counties make up the Rock-Koshkonong Lake
District.
                                    11
                                                                No.      2008AP1523



     ¶28     The   following    chart     compares     the   1991     water    level

order and the proposed water levels in the Petition:12



          MSL Levels           1991 Order     Petition                Change
    (at lake gage)

May through October

Target                         776.20'        776.8'         +0.6' (7.2 in.)

Maximum                        776.33'        777.0'         +0.67' (8 in.)
(all gates open)

Minimum                        775.73'        776.4'         +0.67' (8 in.)

November through April

Maximum                        775.77'        777.0'         +1.23' (14.8 in.)

(all gates open)

Minimum                        775.00'        776.4'         +1.4' (16.8 in.)

     ¶29     In 2003 and 2004 the DNR conducted an environmental

assessment (EA) of the Petition's proposed water level order to

determine whether an environmental impact statement (EIS) would

be needed.     The DNR completed a draft EA in December 2004, after

which a public hearing was held in January 2005 for comment on

the findings.       The DNR certified the EA as complete in March

2005 and determined that an EIS would not be necessary.

     ¶30     On April 15, 2005, the DNR issued a proposed order

denying the Petition, keeping the summer maximum water level at

     12
       A chart with identical information appears in the
Decision and in the court of appeals opinion, Rock-Koshkonong
Lake District v. DNR, 2011 WI App 115, ¶5, 336 Wis. 2d 677, 803
N.W.2d 853.

                                         12
                                                                No.      2008AP1523



776.33 msl but raising the winter drawdown minimum to 775.50 msl

instead of 775.00 msl.

      ¶31    Shortly      thereafter,    the     District      filed     a   joint

petition for a contested case hearing of the DNR's denial of the

Petition. The DNR granted the request and then filed a hearing

request     with    the   Department    of    Administration,         Division   of

Hearings and Appeals (DHA).13

                    E. The Contested Case and Decision

      ¶32   The     ten-day    contested      case   hearing    on     the   DNR's

proposed order commenced on March 29–30, 2006, in Jefferson, and

continued in Madison at the DHA offices on April 3–5 and 10–14.

During the Jefferson hearing, members of the public provided

sworn testimony and statements on how the Petition would affect

their community and personal interests, while representatives of

the parties to the contested case provided expert testimony.

      ¶33   As part of its pre-filed direct expert testimony, the

DNR   sought   to    show     the   adverse    impact   that    the    District's

proposed water level increase would have on adjacent wetlands


      13
       Rock River-Koshkonong Association, Inc. (RRKA) and Lake
Koshkonong Recreation Association, Inc. (LKRA) joined in the
petition for a contested case hearing.     RRKA is comprised of
more than 300 members, including riparian business owners on
Lake Koshkonong and the Rock River.   LKRA is an association of
approximately 38 individual and business members who rely on
Lake Koshkonong and the Rock River for business, recreation, and
tourism.

     The Intervenors in this case——Lake Koshkonong Wetland
Association,   Inc.  and  the   Thiebeau  Hunting  Club  (the
Intervenors)——also were certified as parties to the contested
case proceeding.

                                        13
                                                                    No.        2008AP1523



and water quality in Lake Koshkonong and the Rock River.                               One

DNR expert testified in detail how raising the water levels of

Lake    Koshkonong      would    "result     in    secondary        and       cumulative

adverse impacts to wetlands."               These adverse impacts included

continued     erosion      of   wetlands;     loss    of        wildlife      and    fish

habitat;     loss     of    vegetation       and     floodplain         forest;        and

eventually     reduced      recreational      opportunities             for    hunters,

fishermen, trappers, and birdwatchers.                Furthermore, while Lake

Koshkonong has lost a great deal of wetlands over the years and

will continue to lose wetlands, raising water levels in the lake

as the District proposes would exacerbate the losses.                         Other DNR

experts echoed these conclusions.14                Overall, the DNR experts

testified to the importance           of     making    sure      the    proposed       DNR

water level order satisfied the wetland water quality standards

in Wis. Admin. Code § NR 103.

       ¶34   Expert     testimony     on     behalf        of     the      Intervenors

concurred with the DNR testimony on adverse impacts to wetlands

and wetland water quality if the District's proposed water level
order were implemented.

       ¶35   The      Jefferson     County     Farm     Drainage          Board       also
presented testimony on the adverse impact of higher water levels

on Lake Koshkonong: any increase in water levels would lead to
backups in the drainage district upstream from the lake, causing

lands to stay flooded longer and increase crop losses.                              Dennis

       14
       The District and the DNR also devoted a significant
amount of testimony to disputing the validity of water level
modeling by the District.

                                       14
                                                                              No.        2008AP1523



Kutz,       an     agricultural        landowner        in    the       drainage         district,

indicated in pre-filed direct testimony that his yield on corn

could "be reduced downward from 180 to 100 bushels per acre at a

cost of $200–$300 per acre.                     Other farmers would likely have

similar losses."

      ¶36        The District presented evidence at the contested case

hearing, through expert testimony, on modeling data to predict

water levels under the Petition, along with the probable effect

of    the        District's     water     level       order        on    navigation,         water

quality, and fish and wildlife habitat.

      ¶37        The    District       also     presented          evidence         of   economic

impacts resulting from, and anticipating, lower water levels on

the   lake.            Land    use    planner     and      real     estate       analyst      John

Stockham testified that a reduction in historical water levels

on Lake Koshkonong would have adverse effects on property values

and   commercial          activity      related       to     the    lake.           Essentially,

Stockham testified that lower water levels than those observed

before the Indianford Dam was fully operational in 2002 would
result in decreased waterfront usage; loss of the ability to use

existing          piers       for     boating,        swimming,         and      other       water
activities; loss of access to shoreline for boats; and reduced

areas of navigability.                Reduced usable water access would, over
time, have          an adverse impact            on    property         values      around    Lake

Koshkonong; this reduced value would be reflected in the slower
rate of increase for Lake Koshkonong property values compared to

"lakefront          property         values     in     general          in    south       central


                                                15
                                                                         No.         2008AP1523



Wisconsin."15         Stockham testified that lake-based businesses also

would        suffer    losses    from       reduced      water      levels.          The    most

affected       businesses       would       be    lakefront    marinas,       taverns,       and

restaurants that          depend       on    boaters     and    tourists       for    a large

portion of their revenue.                Even businesses in nearby communities

who    cater     to    lake-related          activity       would    suffer     from       water

levels on Lake Koshkonong reduced from their historical levels.

In    addition,       reduced    water        access    and    property       values       would

result in a loss of tax base for local taxing jurisdictions.

       ¶38     Dr.     Russell       Kashian,      an   economics      professor       at    the

University of Wisconsin-Whitewater, also provided testimony on

behalf of the District on the economic impact of lowering a

lake's       water     level.         Using       various     economic    methodologies,

Kashian concluded that a reduction in historical water levels on

Lake Koshkonong would result in a negative economic impact in

two areas: property values and a reduced rate of appreciation of

those values, and economic activity in communities surrounding

the lake.
       ¶39     In     regard    to    lake       property    values,     Kashian       posited

that lower water levels mean a greater distance between the lake
home and the shore, and that the increased distance would result

        15
       Testimony   on  behalf  of   the   Intervenors   by   Linn
Duesterbeck,   a  real  estate   appraiser,   contradicted   John
Stockham's assertions on the reduced rate of property value
increases around Lake Koshkonong since 2002.        Duesterbeck's
property value testimony was later excluded by the ALJ, along
with the testimony of John Stockham and Dr. Russell Kashian, as
outside the scope of a Wis. Stat. § 31.02(1) water level
determination.

                                                 16
                                                                       No.      2008AP1523



in lower property value; Kashian also testified that property

value is adversely affected by a decrease in shoreline length.

The reduction in lake water levels, both real and perceived by

potential property buyers, would lead to a softening of demand

for lake property and a consequent reduction in prices, along

with a slower appreciation in property value over time.                          Kashian

cited numerous studies on the economic impact of reduced lake

water levels to support his conclusions.                      Kashian concluded that

the     DNR's    proposed       water    level       order     would    endanger        Lake

Koshkonong property values.

        ¶40    Finally, Kashian testified on the adverse effects that

reduced lake water levels would have on economic activity in the

local    community.         Assuming       a       three-foot    reduction      in      Lake

Koshkonong water levels, Kashian testified that "real estate and

service sector businesses would witness a decline of $9 million

in    gross     sales    that    support       an    estimated    150    total     jobs."

Moreover, "local retail businesses would witness a decline of

$5.25 million in gross retail sales that support an estimated
200 total jobs."

       ¶41     Public testimony on the commercial effects of adhering
to the DNR's 1991 water level order echoed the District's expert

testimony.        A     campground      and    marina    owner    testified        to    the
"huge"    economic       impact    that       lake-based      tourism    has     on     area

business and property values, as well as the negative impact
that lower water levels would                  have.         Several    other   business

owners    on    Lake     Koshkonong      testified       that    current     low      water

levels required the installation of piers of up to 300 feet in
                                              17
                                                                        No.      2008AP1523



length        in   order    to   accommodate       customers      who     access     their

businesses by boat.

              F. The Decision's Findings of Facts and Analysis

        ¶42    On December 1, 2006, the ALJ, William S. Coleman, Jr.,

issued a meticulous, comprehensive Decision affirming the DNR's

proposed order rejecting the Petition.                     The Decision contained

120 findings of fact,16 which, after laying out the history and

statistics on Lake Koshkonong and the Indianford Dam, may be

briefly summarized as follows:

     1.        Historical        Water    Levels    on     Lake     Koshkonong——Water

levels rose from 1932 to 2003, and this was due in part to the

defective Indianford Dam.                Consequently, summer water levels on

the lake were above the DNR's target levels every year but two

from 1965 to 2003.

     2.        Wetlands——The high historical water levels on the lake

have eroded shoreline wetlands around the lake.                               The reduced

frequency of low water conditions in the lake have contributed

to this loss of wetland.             Other than the state-owned Koshkonong
Wildlife Area, the findings of fact do not explicitly identify

how much of the wetlands are publicly owned, or what portion of
the wetlands are above the ordinary high water mark.

     3.        Water       Quality——Higher       water     levels    have       caused   a
"degraded          turbid    algae-dominant        water     condition"         in    Lake

Koshkonong.          An increase in water levels would likely further


        16
             The District does not dispute any of the 120 findings of
fact.

                                            18
                                                                     No.          2008AP1523



degrade water quality in the lake.17                  Higher water levels would

lead to additional loss of wetlands, which would affect the lake

system's ability to slow flood and storm waters, and "filter

nutrients,       sediments      and    other     pollutants,"       such     that        more

pollutants would be carried downstream.

        4.     The Ordinary High Water Mark18 (OHWM)——The OHWM on Lake

Koshkonong       increased      from   1979     to   2001,    due   in     part    to    the

diminished capacity of the Indianford Dam to properly regulate

water        levels.      The    DNR    considered      778.11       msl    to      be    "a

representative OHWM" for purposes of evaluating the Petition.

The higher water levels under the Petition could result in a

higher OHWM.

     5.        Erosion    Protection       from      Riprap    Structures19——Higher

water levels on the lake would likely overwhelm existing riprap

structures       that    protect      wetland    shoreline.         These    structures

would more quickly degrade and result in expensive fortification

of the structures.           In any event, the riparian wetlands would


        17
       According to the findings of fact, Lake Koshkonong is
likely to remain in a degraded condition regardless of whether
the DNR's proposed order or the Petition is adopted.
        18
       "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." Diana Shooting Club v. Husting, 156
Wis. 261, 272, 145 N.W. 816 (1914).
        19
       Riprap is a "loose assemblage of broken stones erected in
water or on soft ground as a foundation." The American Heritage
Dictionary of the English Language 1556 (3d ed. 1992).    Riprap
is used to protect shorelines from water or ice erosion.

                                           19
                                                                   No.       2008AP1523



not be protected from increased wave action and would continue

to erode.

     6.      Wildlife——Past and continued higher water levels would

adversely     impact     habitats     for    herptiles       and    bird     species.

Continued loss of wetland would result in loss of wildlife and

fish habitat in and around Lake Koshkonong.

     7.      Winter Drawdown——The findings of fact contain numerous

pros and cons of maintaining the winter drawdown of the lake

levels    (under   the      DNR's   proposed   order)       and    eliminating       the

winter    drawdown     under   the   Petition.        The    findings       generally

point to adverse impacts on wetlands, wildlife, water quality,

and riprap structures if the winter drawdown were eliminated.

     8.      Agricultural Drainage——Higher water levels will cause

backups in a drainage district upstream from Lake Koshkonong.

Slower    drainage     would    cause   farmland      to    be     flooded    longer,

resulting in delays in planting and smaller crop yields.

     9.      Public    Access——The      shallow,   sloping         waters    of   Lake

Koshkonong    make     it   difficult    for   most    recreational          boats   to
utilize public boat ramps on the lake under either the DNR's

proposed water level order or the District's proposed higher
levels.     However, there are a number of boat access points along

the Rock River near the lake that have sufficient depth for
recreational boats.

     10.    Riparian Access——Most riparian property owners favor
raising the lake's water levels so that they may shorten their

piers.     Boat lifts and shore stations also could be maintained


                                        20
                                                           No.       2008AP1523



closer to shore if the District's proposed higher water levels

were implemented.

     11.    Natural Scenic Beauty——Fuller "pool levels" are more

aesthetically pleasing to riparian property owners than exposed

lake beds.      However, some riparians value the beauty of the

wetlands that would be lost with higher water levels.

     12.    Navigability——Raising water levels on the lake would

increase the surface area of the lake by up to 63 acres and

mitigate existing navigational obstacles in the lake.20

     13.    The Wis. Stat.     § 31.02(1)      Standard——The     findings    of

fact concluded with, "The net negative effects of the proposed

higher water levels far outweigh the enhancements to navigation

and access."    Thus,

     [a]llowing increased water levels as proposed by the
     District would be inconsistent with the interest of
     public rights in Lake Koshkonong and the Rock River,
     and would not serve to protect life, health or
     property.   Public safety may be marginally promoted
     with increased water levels, but the water levels
     specified in the DNR's 2005 order do not pose undue
     risks to public safety.
     ¶43    The Decision noted that the DNR objected during the

contested    case   hearing   to   admitting    evidence   related    to    the


     20
       No one appears to have challenged any of the ALJ's
findings of fact.    We note, however, that the ALJ found that
Lake Koshkonong has a surface area of approximately 10,460
acres, after the water levels in Lake Koshkonong were lowered to
conform to the DNR's 1991 order.     The figure 10,460 acres is
identical to the figure used by the DNR in a 1971 Wisconsin
Conservation   Bulletin.      Shoreland  is   Vulnerable,   Wis.
Conservation Bulletin, (DNR, Madison, Wis.), July-August 1971,
at 22.

                                     21
                                                                     No.        2008AP1523



effect of water levels on real estate values, business income,

and   public       revenues.         The      Decision       sustained        the   DNR's

objections,       citing    Wisconsin's       Environmental        Decade,      Inc.    v.

DNR, 115 Wis. 2d 381, 404, 340 N.W.2d 722 (1983), and asserting

that "[s]econdary or indirect economic impacts of a water level

determination do not bear on the statutory standard set forth in

section     31.02(1)."           Therefore,     the    ALJ    struck     Stockham      and

Kashian's economic testimony on behalf of the District, along

with all related exhibits, as secondary economic impacts outside

the scope of the statute.21             The Decision did consider riparian

access, which the ALJ said "comprehends at least one component

of these asserted secondary impacts."                  The Decision acknowledged

that riparian owners' "diminished utility and enjoyment of their

property     [resulting      from     lower     water       levels] . . . doubtless

reduces the value of that property to them."

      ¶44    The    Decision       noted   that       the    DNR   was     required     to

balance     and    accommodate      conflicting        interests       when    making   a

water level determination and that the DNR had done that here.

Furthermore,       the     DNR     "evaluated     the        proposed      water    level
increase against the appropriate regulatory standards, including

chapter NR 103, Wis. Admin. Code."




      21
       In a contested case hearing, a hearing examiner "shall
not be bound by common law or statutory rules of evidence. The
agency or hearing examiner shall admit all testimony having
reasonable probative value, but shall exclude immaterial,
irrelevant or unduly repetitious testimony or evidence that is
inadmissible under s. 901.05." Wis. Stat. § 227.45(1).

                                           22
                                                                           No.     2008AP1523



       ¶45    Thus, the Decision closes with a conclusion of law

that   "the       DNR's    decision      [to    reject      the       District's    proposed

higher water levels] . . . is necessary to protect the public

rights       in    navigable       waters       and      reasonably         balances       and

accommodates public and private rights, the promotion of safety,

and the protection of life, health, and property."

       ¶46    The DNR adopted the Decision as its own, by operation

of Wis. Stat. § 227.46(3)(a) (2003–04) and Wis. Admin. Code § NR

2.155(1) (Sept. 2004).

                             G. The District's Appeal

       ¶47    Following the Decision,                 the    District      petitioned      for

review   by       the     Rock    County    Circuit         Court      under     Wis.   Stat.

§ 227.53.         The District contended that the Decision erroneously

interpreted "public rights in navigable waters" and the phrase

"protect . . . property."                The        District      argued    that    the    DNR

improperly        expanded       its   consideration             of   "public     rights    in

navigable waters" to include private wetlands and that the DNR

improperly considered wetland water quality standards in Wis.
Admin. Code § NR 103, as promulgated under Wis. Stat. ch. 281.

The District further argued that it was improper for the DNR to
categorically           exclude    all     evidence         of    economic       effects    on

property in its Decision because, by doing so, it misinterpreted
the          mandate         in          Wis.          Stat.            § 31.02(1)          to

"protect . . . property."                However, the circuit court affirmed
the Decision, concluding that the DNR's interpretation of the

statutes was reasonable and that the Decision was supported by

substantial evidence.
                                               23
                                                                            No.          2008AP1523



        ¶48    The District appealed to the court of appeals, which

certified the District's appeal to this court on the issue of

"ambiguity"       in    Wis.    Stat.      § 31.02(1)         related       to     the     phrase

"protect . . . property."               This court denied the certification

request.

       ¶49     The court of appeals then issued an opinion affirming

the     DNR's     Decision,         this        time    holding       that        Wis.       Stat.

§ 31.02(1), including its "protect . . . property" language, was

"unambiguous."            Rock-Koshkonong            Lake    Dist.,    336        Wis. 2d 677,

¶47.      First,       the    court    of       appeals      reasoned       that     when       the

legislature       wants      the    DNR     to       consider   property           values       and

economic effects in its decision-making, "it does so in clear,

unambiguous language."              Id., ¶42 (citing statutes).                    Second, the

court of appeals concluded that if the DNR were required to

consider economic factors when making a determination under Wis.

Stat.         § 31.02(1)       to      "protect . . . property,"                     such        an

interpretation "would have no logical stopping point."                                         Id.,

¶43.      Finally,      the    court       of    appeals     looked     to       this     court's

interpretation         of    similar      statutory         language    in        City    of    New

Lisbon v. Harebo, 224 Wis. 66, 271 N.W. 659 (1937), for the

proposition        that       protection         of     property       is        "limited        to

protection        of    real       property          from    hydrologic           events       like

flooding."       Id., ¶45.

        ¶50    The court of appeals decision also held that the DNR's

consideration of the impact of water levels on adjacent wetlands

and § NR 103 water quality standards was reasonable.                                 The court

of appeals determined these considerations to be consistent with
                                                24
                                                                         No.      2008AP1523



"the very resources [the DNR] has been assigned to protect" and

that the DNR is not restricted to considerations below the OHWM.

Id., ¶¶52–53.        The court of appeals also concluded that the DNR

has a responsibility to protect water quality standards in this

state, and to disregard that duty when making a water level

determination under Wis. Stat. § 31.02(1) would be absurd.                              Id.,

¶56.

       ¶51   The District petitioned this court for review, which

we granted on February 23, 2012.

                                   II. DISCUSSION

                                A. Standard of Review

       ¶52   This    court      normally       provides       a   separate      section    on

"standard of review" before proceeding to its legal analysis.

In this case, the standard of review is itself an issue, namely,

whether the court should give deference to the DNR's conclusions

of law.

       ¶53   When a party appeals to the court of appeals or seeks

review in this court "from a circuit court order reviewing an

agency decision," the appellate court reviews the decision of
the agency, not the decision of the circuit court.                             Lake Beulah

Mgmt.   Dist.    v.      DNR,     2011    WI    54,        ¶25,   335   Wis. 2d 47,       799

N.W.2d 73 (quoting Hilton ex rel. Pages Homeowners' Ass'n v.

DNR, 2006 WI 84, ¶15, 293 Wis. 2d 1, 717 N.W.2d 166).

       ¶54   In Hilton, the court examined the standard of review

that    should      be   applied     to    an        ALJ    decision     that    had    been

expressly     adopted        by     the        DNR     pursuant         to     Wis.    Stat.

§ 227.46(3)(a).          The court concluded that "because the DNR has
                                               25
                                                                       No.      2008AP1523



expressly adopted the ALJ decision, the ALJ decision should be

afforded the same deference afforded the agency."                            Hilton, 293

Wis. 2d 1, ¶14.

       ¶55   In   this    case,      the    Decision       contains      120     specific

findings of fact.         The District does not challenge any of these

findings.     If it did challenge any of the findings of fact, the

court would apply a substantial evidence standard.                           See id., ¶16

(citing Borsellino v. DNR, 2000 WI App 27, ¶7, 232 Wis. 2d 430,

606 N.W.2d 255).

       ¶56   In this case, the Decision contains four conclusions

of law grounded in the facts.                    However, the District asserts

that the DNR exceeded the scope of its authority under Wis.

Stat. § 31.02(1) by focusing on the protection of public and

private wetlands above the OHWM; misinterpreted the mandate to

"protect . . . property"          in    § 31.02(1);        and     excluded      relevant

evidence that should have been considered under the statute.

The District also asserts that the DNR improperly considered the

standards in Wis. Admin. Code § NR 103 in making its water level

determination under § 31.02(1).

       ¶57   These assertions          involve     issues     of      agency    procedure

and agency interpretation of law that are treated separately as

questions of law.

       ¶58   Agency      determinations          involving       questions      of   law,

including     interpretation         and     application         of     statutes,     are

reviewable by this court under Wis. Stat. § 227.57(5).                               ABKA

Ltd.   P'ship     v.   DNR,   2002     WI   106,    ¶30,     255    Wis. 2d 486,      648

N.W.2d 854.       Section 227.57(5) provides that "[t]he court shall
                                            26
                                                             No.      2008AP1523



set aside or modify the agency action if it finds that the

agency has erroneously interpreted a provision of law."

      ¶59    While statutory interpretation is normally a question

of law determined independently by a court, a court may give an

agency's interpretation of a statute great weight deference,22 or

due     weight    deference,23   or   no    deference.24     Racine    Harley-

Davidson, Inc. v. Wis. Div. of Hearings & Appeals, 2006 WI 86,

¶¶11,      19,   292   Wis. 2d 549,   717    N.W.2d 184.      See     generally

      22
       Great weight deference is             appropriately   applied     to an
agency's legal conclusions where:

           (1) the agency was charged by the legislature
      with the duty of administering the statute; (2) the
      interpretation of the statute is one of long-
      standing; (3) the agency employed its expertise or
      specialized knowledge in forming the interpretation;
      and (4) the agency's interpretation will provide
      uniformity and consistency in the application of the
      statute.

Hilton ex rel. Pages Homeowners' Ass'n v. DNR, 2006 WI 84, ¶15,
293 Wis. 2d 1, 717 N.W.2d 166 (quoting Clean Wis., Inc. v. Pub.
Serv. Comm'n, 2005 WI 93, ¶39, 282 Wis. 2d 250, 700 N.W.2d 768)
(brackets omitted).
      23
       Due weight deference is applied when "the agency has some
experience in an area, but has not developed the expertise which
necessarily places it in a better position to make judgments
regarding the interpretation of the statute than a court."
Clean Wis., 282 Wis. 2d 250, ¶42 (quoting Hutson v. Wis. Pers.
Comm'n, 2003 WI 97, ¶33, 263 Wis. 2d 612, 665 N.W.2d 212)
(internal quotation marks omitted).
      24
       As a general rule, a reviewing court accords an agency no
deference when the agency has decided an issue of first
impression, when an agency lacks experience or expertise in
deciding a legal issue, or when an agency has taken inconsistent
positions on a legal issue. UFE, Inc. v. LIRC, 201 Wis. 2d 274,
285, 548 N.W.2d 57 (1996). But there are additional reasons for
not according deference, as noted infra in this opinion.

                                       27
                                                                          No.         2008AP1523



Salvatore        Massa,         The     Standards        of      Review         for        Agency

Interpretations of Statutes in Wisconsin, 83 Marq. L. Rev. 597

(2000).       Deference,         however,       "does    not     mean   that         the    court

accepts the agency interpretation without a critical eye.                                    The

court itself must always interpret the statute to determine the

reasonableness of the agency interpretation.                            Only reasonable

agency interpretations are given any deference."                             Racine Harley-

Davidson, 292 Wis. 2d 549, ¶15.

      ¶60    Here the DNR is charged by the legislature with the

duty of administering Wis. Stat. § 31.02(1), and it brought to

its enforcement of the statute a great deal of expertise and

specialized knowledge.                However, the DNR's interpretation of the

statute is not long-standing with respect to some of the issues

before this court, and, as will be seen, its interpretation is

not   likely      to     be    uniform    and       consistent    in    its        application

because     of    the     diverse       factual       circumstances          that     will    be

presented.            Thus,    the DNR's       conclusions       of    law    in     statutory

interpretation are not entitled to great weight deference.

      ¶61    Another factor works against deference.                            "The nature

and   scope       of    an     agency's        powers    are     issues       of     statutory

interpretation."              Wis. Citizens Concerned for Cranes & Doves v.

DNR, 2004 WI 40, ¶6, 270 Wis. 2d 318, 677 N.W.2d 612 (citing GTE

N.,   Inc.       v.    Pub.     Serv.     Comm'n,       176    Wis. 2d 559,          564,    500

N.W.2d 284        (1993)).            Courts    are     not    bound    by      an    agency's

decision concerning the scope of its own power.                              Wis. Citizens

Concerned, 270 Wis. 2d 318, ¶11; Wis.'s Envtl. Decade, Inc. v.

Pub. Serv. Comm'n, 81 Wis. 2d 344, 351, 260 N.W.2d 712 (1978);
                                               28
                                                                     No.     2008AP1523



Big     Foot     Country       Club   v.    DOR,     70    Wis. 2d 871,      875,    235

N.W.2d 696          (1975);     Nekoosa-Edwards      Paper     Co.   v.    Pub.     Serv.

Comm'n, 8 Wis. 2d 582, 592, 99 N.W.2d 821 (1959) (citing cases).

        ¶62     In this case, the DNR is at odds with the District

over the scope of the agency's power.                     As will be seen, the DNR

has given new interpretations to both the Wisconsin Constitution

(Article IX, Section 1) and Wisconsin Statutes, disregarded some

past decisions of this court, and acted inconsistently with some

of    its     own     prior    positions.        Under    these   circumstances,      we

afford no deference to the DNR's interpretation and application

of Wis. Stat. § 31.02(1) and consider the legal issues presented

de novo.25

        ¶63     The DNR concluded that the economic impacts of lower

water        levels    on     residential    and    business      property    are    not

relevant in making a water level determination, despite language

in      Wis.          Stat.     § 31.02(1)         authorizing       the     DNR      to


        25
             Wisconsin Stat. § 227.57(8) provides in part:

        The court shall reverse or remand the case to the
        agency if it finds that the agency's exercise of
        discretion   is    outside   the  range  of   discretion
        delegated to the agency by law; is inconsistent with
        an agency rule, an officially stated agency policy or
        a prior agency practice, if deviation therefrom is not
        explained to the satisfaction of the court by the
        agency;   or    is    otherwise  in   violation   of   a
        constitutional or statutory provision . . . .

This statute implicates the scope of the DNR's authority as well
as the agency's past decisions and policy.          It provides
additional authority for not affording deference to the DNR in
this matter.

                                            29
                                                                          No.     2008AP1523



"protect . . . property."               As will be discussed later in this

opinion,       categorically         excluding      these    economic       factors         from

consideration in a water level determination under § 31.02(1) is

not reasonable.           Cf. Racine Harley-Davidson, 292 Wis. 2d 549,

¶15 (stating that only reasonable agency interpretations receive

deference).

        ¶64     Thus,    we      afford       no      deference       to        the        DNR's

interpretation and application of Wis. Stat. § 31.02(1) in this

case.

              B. The DNR'S Consideration of Impacts on Wetlands

                          Adjacent to Navigable Waters

        ¶65    The District contends that the DNR, in making a water

level determination under Wis. Stat. § 31.02(1) "in the interest

of public rights in navigable waters," exceeded its authority

when it considered impacts on private wetlands adjacent to Lake

Koshkonong       that    are    above       the    OHWM.     The    District          is    also

concerned about the application of the public trust doctrine to

any     wetlands     that      are    not    navigable       in    fact     unless         those

wetlands are below the OHWM.                       The District asserts that the
DNR's    position       significantly         expands      the    scope    of    the       DNR's

public trust jurisdiction.
      ¶66      The      Decision            explains        the       decision-maker's

understanding of the applicable law.                    In his Discussion section,
the ALJ wrote:

           "Public rights" in the state's public trust
      navigable waters extend beyond navigation relating to
      commerce, and include the following: "sailing, rowing,
      canoeing, bathing, fishing, hunting, skating, and

                                              30
                                                                                No.      2008AP1523


        other public purposes," Nekoosa Edwards Paper Co. v.
        Railroad Commission, 201 Wis. 40, 228 N.W. 144, 147
        (1929); right to clean, unpolluted water, Reuter v.
        DNR,   43    Wis. 2d 272,   168    N.W.2d 860 (1969);
        consideration of wetlands and near shore lands, Just
        v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761
        (1972); wildlife habitat, and preservation of scenic
        beauty, Village of Menomonee Falls v. DNR, 140
        Wis. 2d 579, 412 N.W.2d 505 (Ct. App. 1987).
        ¶67    This       paragraph     cites          the   public      trust        doctrine       as

authority for the DNR to regulate wetlands and near shorelands,

wildlife habitat, and scenic beauty.
        ¶68    The DNR's brief to this court confirms this position:

               1.        "Wetlands      in    and      adjacent         to   navigable        waters

have long been included in public rights to navigable waters

because of their special relationship to navigable waters."

               2.        "[P]ublic rights in wetlands 'adjacent to or near

navigable waters' are public rights in, not beyond, navigable

waters."

               3.        "If   petitioners          were      correct        that      the    public

trust     does        not      extend        to     privately           owned     non-navigable

lands . . . then the shoreland zoning law fails, too."

               4.        "[P]ublic      rights         embrace      all      wetlands         in     or

adjacent to navigable waters, privately or publicly owned, above

or below the OHWM."

     ¶69       In    evaluating         the       District's        concerns          about    these

claims,       it    is     necessary         to   examine         the    constitutional             and

statutory directives associated with public rights in navigable

waters    and       the     wetlands     adjacent            to   them,      along      with       this

court's interpretation of these directives.


                                                  31
                                                                No.      2008AP1523



     ¶70     Wisconsin has a long tradition of "protect[ing] our

valuable water resources."          Lake Beulah, 335 Wis. 2d 47, ¶31.

The state relies on several sources of authority to achieve this

objective.

     ¶71    Article IX, Section 1 of the Wisconsin Constitution

commands that the state hold navigable waters in trust for the

public:

          The state shall have concurrent jurisdiction on
     all rivers and lakes bordering on this state so far as
     such rivers or lakes shall form a common boundary to
     the state and any other state or territory now or
     hereafter to be formed, and bounded by the same; and
     the river Mississippi and the navigable waters leading
     into the Mississippi and St. Lawrence, and the
     carrying places between the same, shall be common
     highways and forever free, as well to the inhabitants
     of the state as to the citizens of the United States,
     without any tax, impost or duty therefor.
Wis. Const. art. IX, § 1.

     ¶72    This   court   has   long    held   that    the    public    trust    in

navigable     waters   "should    be    interpreted       in    the     broad    and

beneficent spirit that gave rise to it in order that the people

may fully enjoy the intended benefits."                Diana Shooting Club v.

Husting, 156 Wis. 261, 271, 145 N.W. 816 (1914); Lake Beulah,




                                        32
                                                                  No.         2008AP1523



335 Wis. 2d 47, ¶31.26       Broadly interpreting the public trust has

resulted     in    recognition        of    more     than        just        commercial

navigability      rights.       Protection         now    extends       to     "purely

recreational      purposes     such    as   boating,        swimming,         fishing,

hunting, . . . and . . . preserv[ing]              scenic       beauty."           R.W.

Docks & Slips v. State, 2001 WI 73, ¶19, 244 Wis. 2d 497, 628

N.W.2d 781 (citing State v. Bleck, 114 Wis. 2d 454, 457, 338

N.W.2d 492 (1983)).

      ¶73   Because the public trust doctrine is rooted in Article

IX,   Section 1,    however,     it    is   important       to    understand        its

history     and   its   core    principles     so        that    it     is    properly

interpreted.      There is no better place to start than Justice

George Currie's scholarly analysis of the doctrine in Muench v.
Public Service Commission, 261 Wis. 492, 53 N.W.2d 514 (1952):

           After   the  Revolutionary   War,  the   original
      thirteen states were impoverished and were confronted
      with the problem of paying the debts created by the
      war.    States without western lands demanded that
      Virginia, and other states claiming such lands to the
      west, should cede the same to the Confederation to be
      sold to pay such debts.         In 1783 the Virginia
      legislature authorized the ceding of the Northwest

      26
       The legislature is "bound by its duty to protect the
navigable waters of the state for the citizens' benefit" and "to
evaluate," before acting to affect the water, "all potential
benefits that can be derived from water."     Gabe Johnson-Karp,
That the Waters Shall be Forever Free: Navigating Wisconsin's
Obligations Under the Public Trust Doctrine and the Great Lakes
Compact, 94 Marq. L. Rev. 415, 422 & n.37 (2010). For a general
discussion of the evolution of the public trust doctrine in
Wisconsin, see Melissa Kwaterski Scanlan, The Evolution of the
Public Trust Doctrine and the Degradation of Trust Resources:
Courts, Trustees and Political Power in Wisconsin, 27 Ecology
L.Q. 135 (2000).

                                       33
                                                                   No.        2008AP1523


     Territory to the Confederation, and the actual deed of
     conveyance was executed March 1, 1784.    This cession
     was made upon two conditions: (1) The new states to be
     admitted as members of the Federal Union were to have
     the same rights to sovereignty as the original states;
     and (2) the navigable waters flowing into the
     Mississippi and the St. Lawrence rivers, and the
     carrying places between them, were to be forever free
     public highways.   These conditions were incorporated
     into the Northwest Ordinance of 1787, which set up the
     machinery   for  the   government  of   the  Northwest
     Territory.

          Sec. 1, art. IX of the Wisconsin constitution,
     adopted by the territorial convention on February 17,
     1848, and approved by the act of congress admitting
     Wisconsin into the Union, incorporated verbatim the
     wording of the Northwest Ordinance with respect to
     navigable waters . . . .
Muench, 261 Wis. at 499.

     ¶74    Justice     Currie    then       explained      that       a    number    of

questions    rise     naturally       from    the    article:      (1)       What    are

"navigable waters"?          (2) Who owns the "land" under "navigable

waters"?     (3) What are the public rights in navigable streams

apart from navigation for commercial purposes?                    (4) What are the

geographic limits of the public trust in navigable waters?                           Id.

at 500–08.

     ¶75    The answers to these questions, in Muench and other

cases, are interrelated, and they help to explain the District's

concern with the DNR's position.

           1. Questions Raised by the Public Trust Doctrine

     ¶76    The     public    trust     doctrine      is     premised        upon    the

existence    of   "navigable      waters."          The    test   of       navigability

discussed in Olson v. Merrill, 42 Wis. 203, 212 (1877), whether

a stream has the capacity to float logs to market (at least part

                                        34
                                                     No.    2008AP1523



of the year), has long since been replaced by the standard of

"navigable in fact for any purpose."27     Muench, 261 Wis. at 505–

06.

      [S]ince 1911 it is no longer necessary in determining
      navigability of streams to establish a past history of
      floating   of  logs,  or   other  use   of  commercial
      transportation, because any stream is "navigable in
      fact" which is capable of floating any boat, skiff, or
      canoe, of the shallowest draft used for recreational
      purposes.
Id. at 506; see also Bleck, 114 Wis. 2d at 459; DeGayner & Co.
v. DNR, 70 Wis. 2d 936, 946–47, 236 N.W.2d 217 (1975).

      ¶77    The DNR's position seeks to extend its public trust

jurisdiction28 beyond navigable waters to non-navigable waters

and land.      Wetlands are often not "navigable in fact."        Non-

navigable land is by definition not navigable and may not be

marshy or "wet."      Eliminating the element of "navigability" from

the public trust doctrine would remove one of the prerequisites

for    the    DNR's   constitutional   basis   for   regulating    and




      27
       Justice Currie cites Olson v. Merrill, 42 Wis. 203, 212
(1877), as one of the early cases that established the "saw-log"
test.    Muench v. Pub. Serv. Comm'n, 261 Wis. 492, 500, 53
N.W.2d 514 (1952). The "saw-log" test first appears in Whisler
v. Wilkinson, 22 Wis. 546 (*572), 549 (*576) (1868).
      28
       In furtherance of the state's public trust obligations,
"the legislature has delegated substantial authority over water
management matters to the DNR."   Wis.'s Envtl. Decade, Inc. v.
DNR, 85 Wis. 2d 518, 527, 271 N.W.2d 69 (1978); see also ABKA
Ltd. P'ship v. DNR, 2002 WI 106, ¶12, 255 Wis. 2d 486, 648
N.W.2d 854 (noting that the "legislature has delegated to the
DNR broad authority to regulate under the public trust
doctrine").

                                  35
                                                              No.         2008AP1523



controlling water and land.29          Applying the public trust doctrine

to    non-navigable     land   above    the    OHWM   would    eliminate        the

rationale   for   the    doctrine.       The   ramifications        for    private

property owners could be very significant.

      ¶78   The public trust doctrine vests the ownership of land

under lakes——i.e., lake beds——in the state.               By contrast, the

public trust doctrine in Wisconsin gives riparian owners along

navigable streams a qualified title in the stream beds to the

center of the stream, while the state holds the navigable waters

in trust for the public.           In reality, the state effectively



      29
       This court has rejected theories that attempt to extend
the public trust doctrine beyond its historical limitations.
For instance, in DeGayner & Co. v. DNR, 70 Wis. 2d 936, 236
N.W.2d 217 (1975), the court reviewed the issue of whether Five
Mile Creek, a tributary of the Namekagon River in Bayfield
County, was navigable in fact, thereby requiring a permit to
construct a dam to create an artificial lake.    Id. at 938–39.
While the court determined that the creek was navigable in fact,
it rejected a theory offered by an amicus that a stream should
be considered "as a navigable water [irrespective of any other
finding], because it is a tributary of a natural and valuable
navigable resource, the Namekagon river."     Id. at 948.    The
DeGayner court continued:

      There is evidence to show that the flow of spring
      water from Five Mile Creek is important in maintaining
      the   fish  life   and  the   water   quality  of  the
      Namekagon . . . .   [Nonetheless, the] test, proposed
      by the amicus . . . , 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 eventually run into some
      navigable body of water, must be held navigable.

Id.

                                       36
                                                  No.   2008AP1523



controls the land under navigable streams and rivers without

actually owning it.

    ¶79    In Muench, the court observed:

    The United States [S]upreme [C]ourt in Barney v.
    Keokuk (1876), 94 U.S. 324, 24 L. Ed. 224, declared
    that the individual states have the right to determine
    for themselves the ownership of land under navigable
    waters. 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. See the discussion of this subject in
    McLennan v. Prentice (1893), 85 Wis. 427, 443-445, 55
    N.W. 764.
Muench, 261 Wis. at 501–02.

     ¶80   Muench quotes two sentences from Illinois Steel Co. v.

Bilot:

         The United States never had title, in the
    Northwest Territory out of which this state was
    carved, to the beds of lakes, ponds, and navigable
    rivers, except in trust for public purposes; and its
    trust in that regard was transferred to the state, and
    must there continue forever, so far as necessary to
    the   enjoyment    thereof   by  the   people  of   this
    commonwealth.   Whatever concession the state may make
    without violating the essentials of the trust, it has
    been   held,   can    properly  be   made   to  riparian
    proprietors.
Id. at 502 (quoting Ill. Steel Co. v. Bilot, 109 Wis. 418, 426,

84 N.W. 855 (1901)).

     ¶81   The Bilot case went on to say:

    Under that [concession to riparian proprietors], by
    long-established judicial policy, which has become a
    rule of property, a qualified title to submerged lands
    of rivers navigable in fact has been conceded to the

                                37
                                                                No.       2008AP1523


       owners of the shores.    Otherwise the title to lands
       under all public waters is in the state, and it is
       powerless to change it. . . . Hence we must presume
       from the evidence that the title to the land in
       dispute is where the evidence tends to show it is. We
       should say in passing that the term "qualified title"
       as above used refers to that interest in the beds of
       navigable  streams   which   has  passed   to  private
       ownership according to the uniform holdings of this
       court,——a full title, subject to the public rights
       which were incident to the lands forming such beds at
       the time of the creation of the trust above mentioned.
       No private ownership has been conceded which displaces
       or materially affects such public rights. As to them
       the state has not abdicated and cannot abdicate its
       trust.

Bilot, 109 Wis. at 426 (emphasis added).
       ¶82       The state's ownership of lake beds was confirmed in

State       v.    McDonald      Lumber    Co.,    18   Wis. 2d 173,      176,       118

N.W.2d 152        (1962),    Wisconsin's      Environmental    Decade,       Inc.    v.

DNR, 85 Wis. 2d 518, 526, 271 N.W.2d 69 (1978), and State v.

Trudeau, 139 Wis. 2d 91, 101–02, 408 N.W.2d 337 (1987).                             The

rule is different with respect to the beds under streams30 in

part    because      streams     can     change   course,   streams   can     become

unnavigable over time, and navigable streams can be very narrow

and shallow, so that state ownership of stream beds could be

problematic and impractical.

       ¶83       Writing in Diana Shooting Club, Justice Vinje observed

that "[i]t would no doubt have been more logical to hold, as

English          courts   do,     that     private     ownership      ends      where


       30
       "In some of the states embraced within the Northwest
territory the title to the bed of navigable streams remained in
the state.    In Wisconsin it is held to be in the riparian
owners." Diana Shooting Club, 156 Wis. at 268.

                                            38
                                                                No.     2008AP1523



navigability begins."         Diana Shooting Club, 156 Wis. at 269.

But he added that,

       there is nothing inconsistent in the doctrine of
       private ownership of beds of navigable streams subject
       to all the burdens of navigation and the incidents
       thereof.  As long as the state secures to the people
       all the rights they would be entitled to if [the
       state] owned the beds of navigable rivers, it fulfills
       the trust imposed upon it by the organic law which
       declares that all navigable waters shall be forever
       free.
Id.
       ¶84   Contemplating the question of ownership is important

because the public trust doctrine implicates state ownership or

virtual state ownership——by virtue of its trust responsibility——

of    land   under   navigable   waters.      If     the    public    trust   were

extended     to cover    wetlands that      are     not    navigable,   it would

create significant questions about ownership of and trespass on

private land, and it would be difficult to cabin expansion of

the state's new constitutionally based jurisdiction over private

land.31

       ¶85   In   its   discussion   of    public    trust,    the    DNR   points

specifically to M&I Marshall & Ilsley Bank v. Town of Somers,

141 Wis. 2d 271, 288, 414 N.W.2d 824 (1987), where this court


       31
       Virtual state ownership of navigable waters and the land
beneath navigable waters——under the public trust doctrine——does
not implicate questions of eminent domain.    The State has no
need to take what it already "owns."        However, geographic
expansion of the public trust beyond the boundaries of the OHWM
of navigable waters would inevitably raise a slew of new
questions about just compensation.  This has never been a part
of public trust jurisprudence.

                                      39
                                                                No.         2008AP1523



stated that a parcel of private wetland located "partly within

and partly outside a shoreland area should be treated as if the

entire wetland was located within a shoreland area."                        To apply

this reasoning to the scope of the public trust doctrine would

not represent a logical application of the doctrine.

    ¶86     There is no constitutional foundation for public trust

jurisdiction over land, including non-navigable wetlands, that

is not below the OHWM of a navigable lake or stream.                        Applying

the state's police power to land above or beyond the OHWM of

navigable waters——to protect the public interest in navigable
waters——is different          from    asserting    public    trust    jurisdiction

over non-navigable land and water.

     ¶87     The    public    trust    doctrine    entails    public       rights    in

navigable    waters,     including      non-commercial       "sailing,       rowing,

canoeing, bathing, fishing, hunting, skating, and other public

purposes."         Nekoosa-Edwards     Paper Co.,     201    Wis. at       47.      The

state's    public     trust    duty    "requires    the     state    not    only     to

promote navigation but also to protect and preserve its waters

for fishing, hunting, recreation, and scenic beauty."                            Wis.'s

Envtl. Decade, 85 Wis. 2d at 526 (emphasis added).                         The court

cited Muench to support scenic beauty.

     ¶88     Applying the "scenic beauty" referenced in Muench and

Wisconsin's Environmental Decade to this case takes the concept

beyond its original purpose to protect and preserve navigable

"waters."     In Muench, the court noted the passage of Chapter

523, Laws of 1929, which amended Wis. Stat. § 31.06(3) "so as to

provide that the enjoyment of scenic beauty is a public right to
                                         40
                                                                   No.         2008AP1523



be   considered    by    the    Public        Service    Commission        in    making

findings as to whether a permit for a proposed dam shall be

issued."     Muench, 261       Wis. at    508.32        See   also   DeGayner,         70

Wis. 2d at 949.

     ¶89    Considering        scenic     beauty        in    relation          to     the

construction   of a     dam    in navigable        waters     is   different          from

claiming public rights under the public trust doctrine to the

scenic    beauty   of   non-navigable         shoreland.      Yet,       the    DNR    has

taken the position that the public trust doctrine protects a

public right to "scenic beauty (which on its face extends to the

shore above the OHWM)."

     ¶90    Article IX, Section 1, does not vest the state with

constitutional     trust      powers    to     "protect"      scenic       beauty       by

regulating non-navigable land bordering lakes and rivers.                              As
will be noted, the state may have statutory authority to weigh

in on scenic beauty beyond its public trust jurisdiction, but

giving the state constitutional trust power to regulate "scenic

beauty" would arguably give the state authority to regulate any

private land that could be seen from navigable waters.




     32
       In Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761
(1972), the state correctly argued in its brief to this court
that the public trust doctrine requires the legislature to
preserve the trust in navigable waters: "The carrying out of
that duty requires not only a promotion of navigation . . . but
the protection and preservation of the incidents to navigation
such as hunting, fishing, recreation, and scenic beauty, as they
are defined in Muench v. Public Service Comm[ission] (1952), 261
Wis. 492, 53 N.W.2d 514, 55 N.W.2d 40." (Emphasis added.)

                                         41
                                                                No.     2008AP1523



        ¶91   Public trust jurisdiction has always been confined to

a limited geographic area.             In Diana Shooting Club, the court

said:

         Hunting on navigable waters is lawful when it is
    confined strictly to such waters while they are in a
    navigable stage,    and   between the    boundaries   of
    ordinary high-water marks.     When so confined it is
    immaterial what the character of the stream or water
    is. It may be deep or shallow, clear or covered with
    aquatic vegetation.    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. Am. W[riting]
    P[aper] Co., 144 Wis. 556, 562, 128 N.W. 440 [(1910)].
    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.
Diana    Shooting     Club,   156    Wis. at   272;     see   also    Bilot,   109
Wis. at 425.

        ¶92   The   Diana   Shooting    Club   holding    was    reaffirmed     in
Trudeau, 139 Wis. 2d at 104, where the court stated that "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."      (Emphasis added.).        See also McDonald Lumber Co., 18

Wis. 2d at 176–77; Houslet v. DNR, 110 Wis. 2d 280, 286, 329

N.W.2d 219     (Ct.    App.   1982)    ("[T]he    OHWM   marks    the   boundary

between lake bed titled in the state, which is subject to state

regulation     in     the   public    interest,   and    property     titled    in

private owners.").

                                        42
                                                                          No.         2008AP1523



     ¶93    The limitation thus stated in the cases is clearly

inconsistent       with     the     interpretation             of   the     public           trust

doctrine espoused by the DNR.

     ¶94    In sum, we believe the District has raised legitimate

concerns about the DNR's reliance upon the public trust doctrine

as authority for some of its regulation in this case.

    2. Police Power as a Basis for Protecting Water Resources

     ¶95    This review of the constitutionally based public trust

doctrine    does     not    disarm       the       DNR    in   protecting        Wisconsin's

valuable    water    resources.           For       instance,       the   DNR     has        broad

statutory    authority       grounded         in    the    state's    police          power     to

protect    wetlands        and    other    water         resources.        See        Just,     56

Wis. 2d at 10–11.          This police power is sometimes buttressed by

requirements imposed by federal law.                       Moreover, the agency has

explicit statutory authority in this case to consider the impact

of the water levels of Lake Koshkonong on public and private

wetlands adjacent to the lake, Wis. Stat. § 31.02(1), because it

has police power authority to "protect . . . property."

     ¶96    The     Just    case    is    a     textbook       example      of    using        the

state's     police     power       to     support         legislation           "to     protect

navigable     waters       and     the    public          rights    therein           from     the

degradation    and deterioration which                    results    from       uncontrolled

use and development of shorelands."                       Id. at 10.        The Wisconsin

Legislature approved the Water Quality Act of 1965 by Chapter

614, Laws of 1965.           The Act authorized the passage of shoreland

zoning ordinances by counties, subject to certain requirements.

Marinette County passed such an ordinance.                          It later prosecuted
                                               43
                                                                       No.     2008AP1523



Ronald Just for filling in wetlands on his shoreland property

without a required permit.                Id. at 14.

        ¶97   When the case reached the supreme court, the court

explained      that     the   real     issue      was   whether   "the       conservancy

district      provisions      and    the     wetlands-filling         restrictions     are

unconstitutional because they amount to a constructive taking of

the Justs' land without compensation."                  Id.

        ¶98   Marinette       County       and    the   state     argued      that     the

contested      provisions       constituted        "a   proper    exercise       of    the

police power of the state and do not so severely limit the use

or depreciate the value of the land as to constitute a taking

without compensation."              Id.      The state's principal argument in
its brief had been that "[t]he Marinette County Shoreland Zoning

Ordinance      Is   A   Valid       Police    Power     Regulation."          The     state

explained that the purpose of the ordinance was not intended to

"preserve wetlands in their natural state.                     The basic purpose of

the ordinance is the protection of navigable waters, and the

public rights therein, from the degradation and deterioration

which    results      from    the    uncontrolled        use    and    development      of

shorelands."        The state said:

         It has long been the law in Wisconsin that laws
    and regulations to prevent pollution and protect the
    waters of the state from degradation are valid police
    power enactments. . . .   The basis for such police
    power regulation is the legislature's duty to promote
    the general health, safety and welfare and to protect
    and preserve the public trust in navigable waters of
    the State of Wisconsin.

               . . . .


                                             44
                                                  No.      2008AP1523


     The ordinance should . . . be upheld as a valid police
     power regulation.
The court then responded in the Just opinion as follows:

     The protection of public rights may be accomplished by
     the exercise of the police power unless the damage to
     the property owner is too great and amounts to a
     confiscation. The securing or taking of a benefit not
     presently enjoyed by the public for its use is
     obtained by the government through its power of
     eminent domain.   The distinction between the exercise
     of the police power and condemnation has been said to
     be a matter of degree of damage to the property owner.
     In the valid exercise of the police power reasonably
     restricting the use of property, the damage suffered
     by the owner is said to be incidental. However, where
     the restriction is so great the landowner ought not to
     bear   such  a burden for      the public good,    the
     restriction has been held to be a constructive taking
     even though the actual use or forbidden use has not
     been transferred to the government so as to be a
     taking in the traditional sense.
Id. at 15.
     ¶99     The court's emphasis on the state's police power is

evident in the following passages:

         This case causes us to re-examine the concepts of
    public benefit in contrast to public harm and the
    scope of an owner's right to use of his property. In
    the instant case we have a restriction on the use of a
    citizen['s] property, not to secure a benefit for the
    public, but to prevent a harm from the change in the
    natural character of the citizens' property. . . .
    What makes this case different from most condemnation
    or police power zoning cases is the interrelationship
    of   the   wetlands,   the   swamps   and  the   natural
    environment of shorelands to the purity of the water
    and to such natural resources as navigation, fishing,
    and scenic beauty.      Swamps and wetlands were once
    considered     wasteland,     undesirable,   and     not
    picturesque.      But   as   the   people  became   more
    sophisticated, an appreciation was acquired that
    swamps and wetlands serve a vital role in nature, are
    part of the balance of nature and are essential to the

                                45
                                                                            No.      2008AP1523


     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 exercise of the police power in zoning must be
     reasonable and we think it is not an unreasonable
     exercise of that power to prevent harm to public
     rights [in navigable waters] by limiting the use of
     private property to its natural uses.

                . . . .

           Wisconsin has long held that laws and regulations
     to prevent pollution and to protect the waters of this
     state    from   degradation  are   valid   police-power
     enactments.
Id. at 16-18.33

        ¶100 If       there     is       any    question     that    the    court    was        not

relying on the public trust doctrine to sustain the shoreland

zoning        ordinance       and    its       authorizing    legislation,        the      court

noted        that    the     Marinette         County   ordinance     applied       to    "lands

within        1,000     feet        of    the     normal     high-water       elevation         of

navigable           lakes,    ponds,       or     flowages     and    300     feet       from     a

navigable river or stream."                      Id. at 10.         These dimensions far

exceed the geographic limitations of public trust jurisdiction.

It should be obvious that the state does not have constitutional
public trust jurisdiction to regulate land a distance of more

than three football fields away from a navigable lake or pond.



        33
       "In Just we upheld, as a valid exercise of the police
power, Marinette County's shoreland zoning ordinance against a
challenge that the ordinance amounted to a constructive taking
of the Just[s'] land without compensation."     M&I Marshall &
Ilsley Bank v. Town of Somers, 141 Wis. 2d 271, 286, 414
N.W.2d 824 (1987) (emphasis added).

                                                  46
                                                                          No.      2008AP1523



        ¶101 The police power is potent, and legislation grounded

in the state's police power is presumed constitutional and will

be   sustained     unless     it    is     deemed    unconstitutional              beyond   a

reasonable    doubt.          Nonetheless,          as     Just     makes       clear,    the

distinction       between    the        DNR's    constitutionally           based     public

trust    authority     and    the       DNR's     police        power-based        statutory

authority is that the latter is subject to constitutional and

statutory protections afforded to property, may be modified from

time to time by the legislature, and requires some balancing of

competing interests in enforcement.

      ¶102 Wisconsin        Stat.       § 31.02(1)       also     makes    a    distinction

between the DNR's public trust authority and its police power

authority.        Only part        of    Wis.    Stat.     § 31.02(1)       embodies      the

public trust doctrine.         See Wis. Power & Light Co. v. Pub. Serv.
Comm'n, 5 Wis. 2d 167, 174, 92 N.W.2d 241 (1958) (stating that

language                 in                      § 31.02                        "promot[ing]

safety . . . and . . . protect[ing]                       property"             "involve[s]

subjects covered by the police power of the state").

      ¶103 If the statute read only that the department "in the

interest of public rights in navigable waters," may regulate and

control the level and flow of water in all navigable waters, the

statute would be seen as a direct enforcement mechanism for the

public trust in navigable waters.                    But the statute does more.

It   contains      a   disjunctive          element        giving     the        department

authority    to    regulate    and       control     the    flow     of    water     in   all

navigable waters "to promote safety and protect life, health and

property."     Wis. Stat. § 31.02(1).               Because the quoted language
                                            47
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follows the key word "or," the department is given distinct and

different authority to consider interests affected by the level

of the "navigable waters."

     3. The History of Wis. Stat. § 31.02(1) and Application

     ¶104 Wisconsin       Stat.      § 31.02(1)         originated       in    Section    3,

Chapter 380, Laws of 1915.                  The "or" between the words "the

interest of public rights in navigable waters" and the words "to

promote    safety   and    protect          life,      health     and    property"       was

present in the beginning in relation to the power to control

water levels.       See Wis.         Stat.       ch.    69m.,   § 1596——2.1.          (1915)

(created by Section 3 of Chapter 380, Laws of 1915).

     ¶105 By contrast, Wis. Stat. ch. 69m., § 1596——7.3. (1915),

created by the same section of ch. 380, directs the Railroad

Commission to consider whether "the construction, operation or

maintenance of the proposed dam will not materially obstruct

existing navigation or violate other public rights and will not

endanger life, health or property."                    (Emphasis added.)

     ¶106 Both provisions distinguish "public rights" from other

interests, and those other interests need not be in or part of

navigable    waters.      The     section        relating       to    the     water    level

regulations    appears     to        give     the       Railroad      Commission       some

discretion    about    what     it     will       consider;       the    other    section

requires    consideration       of    multiple          factors      before    permitting

construction of a dam.

     ¶107 Clearly, both sections empower the Railroad Commission

to consider water level effects on property.                            Flooding was an

obvious concern.       The early statutes contain frequent references
                                            48
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to flooding caused by dams.                           We see no reason, however, why

"property"      would       not         include              property       rights        generally,

particularly riparian rights under common law.

      ¶108 The "bundle of rights conferred upon a property owner

by virtue of his contiguity to a body of water, whether a lake

or   stream,    are       referred          to       as     riparian      rights."         Mayer    v.

Grueber, 29 Wis. 2d 168, 174, 138 N.W.2d 197 (1965).                                         "It is

clear in Wisconsin that the mere fact that one owns property

abutting a natural body of water presumptively confers certain

rights."       Id.; see also Stoesser v. Shore Drive P'ship, 172
Wis. 2d 660, 667, 494 N.W.2d 204 (1993).                                   We see no evidence

that the legislature in 1915 intended to exclude riparian rights

from the consideration of property in Wis. Stat. § 31.02(1).

      ¶109 Property         abutting             a    natural       body    of    water     includes

wetlands,      which       make        up     12.4          miles    of     Lake        Koshkonong's

shoreline.        The      District          acknowledges            that    "privately          owned

wetlands    are      entitled      to        consideration             as   'property'        to   be

protected in establishing a water level order."                                  There can be no

dispute that the DNR can consider water level impact on all

adjacent property under Wis. Stat. § 31.02(1).

      ¶110 No     property         owner's             riparian        rights      are    absolute.

They are balanced against the rights of other riparians and the

public,    particularly           if    they           impinge      upon    public        rights   in

navigable    waters.         But        the          rights    of    all    riparians       must   be

considered      in    a    water        level              determination.           The    DNR     may

emphasize      some       rights            over          others     in     its      water       level

determinations, and its exercise of discretion will normally be
                                                      49
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upheld so long as it considers all property rights and so long

as it does not accord some non-navigable land or water above the

OHWM    a   constitutional        preference     as    trust    land       over    other

property.

                 C. Application of Water Quality Standards

       ¶111 We     next    turn    to    the   District's           contention         that

applying     wetland      water    quality     standards       in     a    Wis.    Stat.

§ 31.02(1) water level determination, specifically water quality

standards in Wis. Admin. Code § NR 103,34 is expressly prohibited

by Wis. Stat. § 281.92.

       ¶112 The District asserts          that    the    legislature         delegated

rule-making authority to the DNR in Chapter 614, Laws of 1965.

Chapter 614 extensively revised then-Wis. Stat. ch. 144 of the

statutes, giving what is now the DNR a directive to "adopt rules

setting     standards     of   water    quality   to    be     applicable         to    the

waters of the state, recognizing that different standards may be

required for different waters or portions thereof."35                       § 37, ch.

614, Laws of 1965.

       34
       Chapter NR 103 was promulgated pursuant to Wis. Stat.
§ 281.15(2)(b), which authorizes the DNR to adopt rules for
wetland water quality standards.
       35
       Wisconsin Stat. § 144.025(2)(b) (1965), which is now Wis.
Stat. § 281.15(1), read in full:

            The   department   shall   adopt   rules  setting
       standards of water quality to be applicable to the
       waters of the state, recognizing that different
       standards may be required for different waters or
       portions thereof.   Such standards of quality shall be
       such as to protect the public interest, which include
       the protection of the public health and welfare and
       the present and prospective future use of such waters
                                         50
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     ¶113 Chapter 614 defined "waters of the state":

          "Waters of the state" includes those portions of
     Lake Michigan and Lake Superior within the boundaries
     of Wisconsin, and all lakes, bays, rivers, streams,
     springs, ponds, wells, impounding reservoirs, marshes,
     watercourses, drainage systems and other surface or
     ground   water, natural    or  artificial,   public or
     private, within the state or its jurisdiction.
Wis. Stat. § 144.01(1) (1965).

     ¶114 The District asserts that:

     DNR erred as a matter of law in applying ch. NR 103.
     Those rules, which define wetland functions and values
     and are intended to be determinative of regulatory
     decisions, were promulgated under the authority of ch.
     281.   But DNR's authority to apply rules promulgated
     under sec. 281.15 has always been limited by sec.
     281.92, which provides: "Nothing in this chapter [ch.
     281] affects ss. 196.01 to 196.79 or ch. 31."
Therefore,     the   District   concludes,       consideration    of    "public

rights    in   navigable   waters"   in   Wis.    Stat.   § 31.02(1)     cannot

include the application of water quality standards in Wis. Stat.

ch. 281 and its underlying administrative code.              In effect, the

District contends that nothing in Wis. Stat. ch. 281 affects

Wis. Stat. ch. 31.36


     for public and private water supplies, propagation of
     fish and aquatic life and wildlife, domestic and
     recreational purposes and agricultural, commercial,
     industrial and other legitimate uses.   In all cases
     where the potential uses of water are in conflict,
     water quality standards shall be interpreted to
     protect the general public interest.
     36
       A March 27, 2006, memorandum from Patricia Ann Trochlell
of the DNR——labeled Exhibit 850 at the contested case hearing——
appears to confirm the District's contention, as Trochlell
wrote:

                                     51
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        ¶115 Once         again,   the    text      of        Wis.    Stat.       § 31.02(1)

authorizes the DNR to "regulate and control the level and flow

of water in all navigable waters" in the interest of "public

rights in navigable            waters     or   to     promote        safety      and    protect

life,        health    and   property."        Some      of    the    "property"          to   be

"protected" is wetlands, both public and private.                                 How should

the DNR square this with Wis. Stat. § 281.92?

       ¶116 The District's reading of these two statutes——that the

DNR cannot apply wetland water quality standards in § NR 103

when     making       a   § 31.02(1)     water      level      determination——is               not

reasonable.           The DNR should not be forced to ignore relevant

statutes        and    its   own   administrative         rules       on    water       quality

standards in making a water level determination.                            It should not

be     forced     to      disregard    its     recognized        statewide         statutory

mission as well as its own property.37


       Questions have arisen regarding the department's
       authority to consider water quality standards for
       activities regulated under ch. 31.          Ch. 281.92
       provides: "Nothing in this subchapter affects ss.
       196.01 to 196.79 or ch. 31.["]     This means that the
       department cannot apply water quality standards such
       as NR 102 and NR 103 to dams regulated under ch. 31.

(Emphasis added.)    However, Trochlell goes on to state that
DNR's responsibility under Wis. Stat. § 31.02(1), "in the
interest of public rights in navigable waters" and to "promote
safety and protect life, health and property" requires DNR to
"consider [effects] to wetlands under ch. 31 when evaluating
water level impacts to wetlands." (Emphasis added.)
        37
       See Wis. Stat. § 281.11 ("The [DNR] shall serve as the
central unit of state government to protect, maintain and
improve the quality and management of the waters of the state,
ground and surface, public and private.").

                                             52
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       ¶117 The    history          of    the      two    statutes       at     issue      is

enlightening.        As     previously       noted,       Wis.    Stat.       § 31.02     was

originally enacted in 1915 as Section 1596——2.1. of ch. 69m.

§ 3, ch. 380, Laws of 1915 (the Water Powers Act).                             The statute

in 1915 read: "The commission, in the interest of public rights

in   navigable     waters      or    to    promote       safety   and    protect        life,

health and property is empowered to regulate and control the

level and flow of water in all navigable waters."                              Wis. Stat.

ch. 69m, § 1596——2.1. (1915).                   This section was renumbered in

1917 as Wis. Stat. § 31.02, as part of the newly created Wis.

Stat. ch. 31.       § 3, ch. 474, Laws of 1917.                   The new § 31.02 was

entitled    "Powers       of    the       railroad       commission"          because     the

Railroad Commission was the state agency originally responsible

for making water level determinations.

       ¶118 Wisconsin Stat. § 281.92 was first enacted in 1919,

four    years     after     the       predecessor         statute     to      Wis.      Stat.

§ 31.02(1).       Section 1407m——1.(12) stated: "Nothing in this act

shall be construed to alter, amend, repeal, impair, or affect
any of the provisions of sections 1797m——1 to 1797m——109 or of

chapter 31 of the Wisconsin statutes."                      § 2, ch. 447, Laws of

1919 (emphasis added).              The state board of health originally had

the responsibility for enforcing the predecessor to Wis. Stat.

ch. 281.   See generally ch. 447, Laws of 1919.

       ¶119 Four years later, the latter statute was renumbered as

Wis.   Stat.    § 144.12       and       amended    to    read,     "Nothing      in     this

chapter shall be construed to affect the provisions of sections

1797m——1 to 1797m——109 or of chapter 31 of the statutes."                               § 27,
                                            53
                                                                No.     2008AP1523



ch. 448, Laws of 1923.             This section was renumbered as Wis.

Stat.    § 144.27   in    1979,    § 624,   ch.   221,   Laws    of    1979,   and

finally renumbered as the current Wis. Stat. § 281.92 in 1995.

1995 Wis. Act. 227, § 435.

     ¶120 The court of appeals looked at this history and made

the following observations:

         This statutory history shows that Wis. Stat.
    § 281.92 was originally adopted to demarcate the
    regulatory spheres of influence of the state Board of
    Health and the Railroad Commission; the Board of
    Health's   water  purification   and  water   pollution
    prevention responsibilities were not to affect the
    authority of the Railroad Commission in dam regulation
    under Wis. Stat. ch. 31, and the Railroad Commission's
    responsibilities were not to affect the authority of
    the Board of Health in its sphere of regulation.
Rock-Koshkonong Lake Dist., 336 Wis. 2d 677, ¶60.                 Now that both

Wis. Stat. ch. 281 and ch. 31 responsibilities fall to the DNR,

the court of appeals said, the District's reading of these two

statutes is illogical.       Id.

        ¶121 In our view, the effect of Wis. Stat. § 281.92 upon

Wis. Stat. § 31.02(1) cannot be so easily dismissed.                   Wisconsin

Stat.    § 281.92   has   remained    essentially    intact      for    nearly   a

century, including almost 50 years in which the DNR has had the

dual responsibility of enforcing Wis. Stat. chs. 31 and 281.

The DNR's jurisdiction in Wis. Stat. ch. 281 is broader and

different from its jurisdiction in Wis. Stat. ch. 31.                     If the

purpose served by Wis. Stat. § 281.92 had ceased to exist, the

statute would probably have been amended or eliminated rather

than simply renumbered.


                                       54
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       ¶122 Ultimately,               we     must     interpret      both        Wis.        Stat.

§§ 31.02(1) and 281.92 in a way that harmonizes the purposes of

the two statutes.                "Apparently conflicting provisions of law

should be construed so as to harmonize them and thus give effect

to the leading idea behind the law."                      Beard v. Lee Enters., 225

Wis. 2d 1, 15, 591 N.W.2d 156 (1999).                          Construing Wis. Stat.

§ 281.92      as     forbidding         the     DNR   from    applying      water       quality

standards       when        making      a    water    level    determination            in    the

interest of "public rights in navigable waters" is too absolute.

As     the     court        of        appeals       stated,    the    more        reasonable

interpretation is that "nothing in the DNR's water protection

responsibilities under ch. 281 and the associated administrative

rules expands or restricts its responsibilities to set water

levels       under    Wis.       Stat.       § 31.02(1)."        Rock-Koshkonong             Lake
Dist., 336 Wis. 2d 677, ¶57.                    That interpretation harmonizes the

statutes and "give[s] effect to" the idea behind both laws: that

the DNR should not be straitjacketed when managing the water

resources of this state.                   Beard, 225 Wis. 2d at 15.

       ¶123 The DNR may consider the water quality standards in

Wis. Admin. Code § NR 103, promulgated under Wis. Stat. ch. 281,

when making a Wis. Stat. § 31.02(1) water level determination.

Full     consideration           of    these     standards     is    different          from    a

requirement          that     the      DNR    always     apply      them    in     making       a

§ 31.02(1) determination.

       ¶124 As we understand it, the DNR did not apply the § NR

103 wetland water quality standards in this case.                                Rather, the

analysis in the ALJ's Decision stated that the DNR evaluated the
                                                 55
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proposed     water      level    increase      in    the     District’s            Petition

"against the appropriate regulatory standards, including chapter

NR 103, Wis. Admin. Code."

       ¶125 Therefore,      we     conclude     that      the    DNR     may       consider

wetland water quality standards in Wis. Admin. Code § NR 103

when    making     a    water    level    determination          under        Wis.       Stat.

§ 31.02(1).       Wisconsin Stat. § 281.92 does not preclude the DNR

from applying the wetland water quality standards in § NR 103 or

other parts of ch. 281, when appropriate, after weighing factors

under § 31.02(1).

                   D. Consideration of Economic Impacts

       ¶126 We turn now to the District's final contention that it

was wrong as a matter of law for the DNR to exclude most of the

evidence of economic impacts at the contested case hearing.                                The

District argues that the requirement in Wis. Stat. § 31.02(1) to

"protect . . . property" should be broadly interpreted so as to

consider    the    effect   of     proposed    water       levels      on     residential

property values, business income, and local tax revenue.                                   The

DNR, on the other hand, asserts that it properly interpreted
"protect . . . property"           to   include     consideration            of   only     the

direct "hydrologic impacts" to real property like flooding and
the impacts on          the utility      and   enjoyment        of   riparian        access

rights.
       ¶127 Statutory interpretation starts with the text of the

statute.     State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004   WI   58,   ¶45,    271    Wis. 2d 633,       681    N.W.2d 110.             "If     the

meaning     of    the    statute    is    plain,     we     ordinarily            stop     the
                                          56
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inquiry."         Id.        However, if a statute is ambiguous——that is,

"capable of being understood by reasonably well-informed persons

in    two   or    more       senses"——then           a    reviewing    court       may    turn   to

scope, history, context, and purpose of the statute.                                 Id., ¶¶47–

48.

       ¶128 Wis. Stat. ch. 31 does not define "property."38                                 If the

legislature       does       not    provide a            definition,    we    may    resort to

dictionaries.           DOR v. River City Refuse Removal, Inc., 2007 WI

27, ¶46, 299 Wis. 2d 561, 729 N.W.2d 396.                              However, dictionary

definitions are not especially helpful to us in this case.                                    See,

e.g., The American Heritage Dictionary of the English Language

1452    (3d      ed.    1992)       (defining        "property"       as     "1.a.       Something

owned;      a    possession.          b.    A    piece         of    real    estate . . . c.

Something tangible or intangible to which its owner has legal

title"); Black's Law Dictionary 1232 (7th ed. 1999) (defining

"property"        as     "The       right       to       possess,     use,     and       enjoy    a

determinate thing").

       ¶129 Regardless of how property is defined, certain rights

are traditionally associated with property ownership.                                    These are

known as the "bundle of rights" and commonly include the right

"to    possess,        use    and    dispose"            of   the   property,      among     other

       38
       As one legal scholar put it, "What is property?    Nearly
every first-year property course [in law school] begins and ends
with   this   query.     The   instructor   never  answers   the
question. . . .    The question is unanswerable because the
meaning of the chameleon-like word property constantly changes
in time and space."        John Edward Cribbet, Concepts in
Transition: The Search for a New Definition of Property, 1986 U.
Ill. L. Rev. 1, 1.

                                                 57
                                                                               No.     2008AP1523



rights.      Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419,      435–36     (1982)     (citation             and     internal        quotation      marks

omitted); see also Mitchell Aero, Inc. v. City of Milwaukee, 42

Wis. 2d 656,       662,    168      N.W.2d 183          (1969)        ("Ownership      is    often

referred     to    in    legal       philosophy         as        a   bundle    of    sticks    or

rights.");     Denise      R.       Johnson,          Reflections        on    the    Bundle    of

Rights, 32 Vt. L. Rev. 247, 253 (2007) (listing 11 incidents of

full ownership in property, including inter alia, the right to

possess, the right to use, the right to manage, the right to the

income, the right to capital, and the right to alienate); A.M.

Honoré, Ownership, in Oxford Essays in Jurisprudence, 107, 112–
24 (A.G. Guest ed., 1961).

         ¶130 In this case, we must determine whether the DNR must

consider     the     effects        of    a     water       level     determination       on   the

economic     incidents         of    "property."              The     meaning    of    the     word

"property," as used in Wis. Stat. § 31.02(1), is not clear on

its face in the context presented.                          Thus, the word is ambiguous,

as the court of appeals initially concluded in its certification

to this court.

         ¶131 What      does     the       word       "protect"        mean?          Again,    no

definition of the term exists in Wis. Stat. ch. 31.                                  Definitions

in   a    standard      dictionary         are    only        marginally       helpful.        The

American Heritage Dictionary of the English Language 1456 (3d

ed. 1992) (defining "protect" as "1. To keep from being damaged,

attacked, stolen, or injured; guard.").

         ¶132 Given       the            lack      of         a       plain      meaning         of

"protect . . . property," we must look further to interpret this
                                                 58
                                                                            No.         2008AP1523



phrase.       We find that history, purpose, precedent, and the DNR's

past    practice      support    a     broad      interpretation            of     the      phrase

"protect . . . property"             so    that       the   DNR       is   not     limited      to

consideration of hydrologic damage to real property and riparian

rights when making a water level determination under Wis. Stat.

§ 31.02(1).

       ¶133 The       construction        and     operation       of       dams,      the    water

levels    upstream      caused       by    dam    placement,          and    a     network      of

navigable waters have played an important role in Wisconsin's

economic development since early statehood.                            See, e.g., Joseph

A.     Ranney,    Trusting      Nothing          to    Providence:           A     History      of

Wisconsin's Legal System 137 (1999) (discussing the use of dams

for lumber mills and transportation of goods on navigable waters

in nineteenth-century Wisconsin).                      The territorial legislature

recognized the role that dams and streams played in economic

development with its passage of the Milldam Act.                                  DNR Waterway

and    Wetland    Handbook,      ch.      140    Dams,      at    2    (stating         that    the

purpose behind legislative regulation of dams was to "encourage

economic development").

       ¶134 This      court   also        recognized        the   economic            impacts    of

dams    and     the   resulting      sustained         water      levels         on    impounded

bodies of water.         In Fisher v. Horicon Iron & Manufacturing Co.,

this court, in considering the constitutionality of the Milldam

Act,    noted    that    "enterprising           towns      and   flourishing           villages

have grown up" around dams and depend upon the dams for their

"wealth and prosperity."             Fisher, 10 Wis. 293 (*351), 297 (*354)

(1860).       In Smith v. Youmans, this court similarly recognized an
                                             59
                                                                             No.         2008AP1523



interest      that     residential          riparian    owners       acquired           in    higher

lake    levels     behind       a    dam    maintained        over   a       40-year         period.

Smith, 96 Wis. 103, 109, 70 N.W. 1115 (1897).                            These higher lake

levels       led   property         owners     to    build      summer        homes,          summer

resorts, and make other "sundry valuable improvements" on lake

lots.        Id. at 106 (statement of facts).                    While these acts and

cases predate Wis. Stat. § 31.02, the history is instructive as

to     the     role      dams       and     water    levels      played            in    economic

development.

        ¶135 In       1909    the        legislature       created       a    joint          Special

Legislative Committee on Water Powers, Forestry, and Drainage.

A.J.R. 8, Laws of 1909.                    Two members of this joint committee,

state    Senators        Paul   O.        Husting    and    Henry    Krumrey,            issued    a

report       to    the       governor        and     legislature         detailing             their

observations of impounded lakes while touring the state with the

joint committee:

        Summer resorts have sprung up along the lake shores
        and summer homes have been built by people from
        various parts of the state and of the United States.
        Piers have been built into the lakes and other
        improvements made by the riparian.    By reason thereof
        the shores are beginning to become very valuable and
        property rights are becoming important.
Spec. Legis. Comm. on Water Powers, Forestry, and Drainage, 49th

Leg.,    Minority        Rep.       of    Senators     Paul    O.    Husting            and    Henry

Krumrey, at 24 (Wis. 1910).                    The report of the full committee

was even more expansive in its discussion of water power, the

resulting reservoirs of water and their importance to industry,

residential riparians, and commercial recreation interests.                                      See


                                               60
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generally    Rep.    of   the     Comm.       on    Water    Powers,    Forestry,          and

Drainage of the Wis. Leg. 1910, 49th Leg.                            For example, the

committee report noted that impounded waters behind dams created

very favorable conditions for summer cottages on lake banks and

launches for tourists and hunters.                   Id. at 27.

      ¶136 The      special       legislative          committee's          full     report

resulted in the Water Powers Acts of 1911, 1913, and 1915.                                 DNR

Waterway and Wetland Handbook, at 4.                    The 1915 Water Powers Act

survived,    while    this    court         found    the    former    two    acts     to    be

unconstitutional.39         The 1915 act included the requirement that

the then-Railroad Commission protect property when setting water

levels.     Wis. Stat. ch. 69m., § 1596——2. (1915).                          In 1917 the

legislature renumbered the Water Powers Law as Wis. Stat. ch.

31, with     its requirement           to    protect       property    as    it    survives

today.     § 3, ch. 474, Laws of 1917.                In light of the legislative

reports    giving    rise    to   the        Water    Powers    Act    containing          the

"protect . . .       property" language of Wis. Stat. § 31.02(1), one

can   reasonably     infer      that    riparian        residential         property       and

lake-based businesses were prime considerations for protecting

property.




      39
       Chapter 652, Laws of 1911 (the 1911 Water Powers Act) was
found unconstitutional as a taking of private property without
compensation.   State ex rel. Wausau St. R.R. Co. v. Bancroft,
148 Wis. 124, 134 N.W. 330 (1912).     The 1913 Water Powers Act
(ch. 755, Laws of 1913) was found unconstitutional because it
did not provide adequate due process.     State ex rel. Owen v.
Wis.-Minn. Light & Power Co., 165 Wis. 430, 162 N.W. 433 (1917).

                                             61
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      ¶137 One         of   the      first     cases      to     interpret         the     new

requirement       to    protect      property      was    Town     of       Bear   Lake     v.

Wisconsin-Minnesota Light & Power Co., 16 W.R.C.R. 710 (1915).

In that case, riparian property owners brought a complaint to

the Railroad Commission over a plan for a new dam that the

owners claimed would cause flooding, destroying town highways

and "rendering valu[e]less much taxable property therein."                                 Id.

at   710.        The   Railroad      Commission      held      that     property      to    be

protected from overflow was not limited to land downstream from

a dam, but applied upstream as well.                     Id. at 717.          Furthermore,
the respondent power company urged the Railroad Commission to

accept an expansive view of property in the Water Powers Act;

namely, the property interests in a water level determination

are "of sufficient magnitude and importance to the community or

the state as to make those property interests a matter of public

concern."        Id. at 719.         Notably, while the decision discussed

the location of property to be protected and the importance of

property to the community, the decision did not explicitly limit

the protection of property to only direct physical impacts.

      ¶138 Another early Railroad Commission case discussing the

protection       of    property       in     the   context       of     a     water      level

determination is informative.                  In In re Determining the High

Water Mark to be Established on the Rest Lake Reservoir Operated

by the Chippewa & Flambeau Improvement Co., riparian residents

opposed the raising of water levels on the Rest Lake reservoir

because     it   would      result    in   "injury       to    their    property."          16

W.R.C.R. 727, 731 (1915).                  The Railroad Commission recognized
                                             62
                                                                  No.         2008AP1523



that the waters of the affected area were "among the most famous

summer resort and fishing waters in the state."                         Id. at 733.

Residents and resort owners invested "large sums of money" in

improvements     on   the    waters.       Id.   at    733–34.        The     Railroad

Commission held:

     We are of the opinion that the Commission is required
     to take into consideration the effect of [water]
     levels fixed by it upon property which may be affected
     by those levels and that where the property to be so
     affected includes the most valuable property in the
     community, is large in acreage, and not shown to be
     subject to overflow, the protection of such property
     is a matter of more than private interest and becomes
     a matter affecting the public welfare.
Id. at 736.40      Thus, the Railroad Commission in Rest Lake made a

direct    link   between      protecting      property     in     a     water       level

determination      and    economic      damage   to    valuable       land.         While

initially    the      potential      damage      was     physical        in     nature

(overflowing     of      land),   the    Commission      was     mindful       of    the




     40
       This court affirmed the Rest Lake water level order in
Chippewa & Flambeau Improvement Co. v. Railroad Commission of
Wisconsin, 164 Wis. 105, 159 N.W. 739 (1916).

     The DNR correctly notes that this court's opinion in
Chippewa & Flambeau used the words "imperil[]," "injury," and
"damage" in relation to property.     Id.   The DNR argues that
these words "connote direct harm to property, not economic harm
to property values or taxes or business."        We decline the
invitation to take such a narrow view of these words. While one
can certainly suffer physical injury, one can also undergo
economic or financial injury as well, particularly as a result
physical damage.   See, e.g., U.S. Small Bus. Admin., Economic
Injury   Disaster   Loans,   http://www.sba.gov/content/economic-
injury-disaster-loans (last visited July 8, 2013).

                                         63
                                                             No.         2008AP1523



improvements to the land that increased its value and that the

value would no doubt be affected by the level of the water.41

     ¶139      It is unreasonable to conclude, given the preceding

history,       context,     and    interpretations      of         the     phrase

"protect . . . property,"         that    economic   impacts        cannot      be

considered when making a water level determination under Wis.

Stat. § 31.02(1).         The DNR, the agency currently charged with

making     a   water   level   determination    under   § 31.02(1),           must

protect the same property interests as in 1915 and before——that

is, not only land itself, but improvements to the land, the

     41
       The DNR and court of appeals look to this court's
decision in City of New Lisbon v. Harebo, 224 Wis. 66, 271 N.W.
659 (1937) for support that "protect . . . property" applies
only to the protection of property from events like flooding.
Rock-Koshkonong Lake Dist., 336 Wis. 2d 677, ¶45.   We disagree.
Harebo was about whether a permit for dam construction under
Wis. Stat. § 31.06(3) (1935) was required before condemnation
proceedings for flowage rights.   Specifically, was condemnation
of all the flowage rights necessary before the grant of a permit
so as not to "endanger property"? Harebo, 224 Wis. at 70.

     The Harebo court asked what is meant by property, and
looked to Wis. Stat. § 31.02, which has "precisely the same
formula" for protecting property as Wis. Stat. § 31.06(3)
(1935). Id. at 72. The court concluded, "It is not proper to
isolate the word 'property' and assert that injury to property
means normal flowage by the ordinary operation of the dam, since
this is the inevitable consequence of building and maintaining a
dam." Id. at 73.

     The Harebo holding was limited to whether the Public
Service Commission (at the time, the agency tasked with
regulating flowage and water level) was required to protect
property from being flooded by normal dam operation in the
context of dam permit approval.   While this holding obviously
implicates physical damage to property, it does not limit the
protection of property solely to physical impacts such as
flooding.

                                     64
                                                                             No.        2008AP1523



community's interest in the land, and investments in and capital

derived      from   the   land.         These       property      interests             have   not

diminished in importance, but now they must be balanced against

impacts on wildlife, water quality, wetlands, recreation, and

other more modern considerations.

       ¶140 The     DNR's     own    Waterway            and    Wetland        Handbook        has

guidelines in place for economic considerations when regulating

water levels        under Wis.      Stat.      § 31.02(1).             DNR     Waterway and

Wetland     Handbook,     ch.   130,     at     3    (stating         that    the       DNR    "may

regulate     and    control     water    level       and       flow    to: . . . Minimize

economic losses resulting from too much or too little water").

We also note that the DNR considered economic impacts of water

levels      on   Lake   Koshkonong      when        it    conducted      an        EA    for   the

proposed 1982 water level order.42

       ¶141 Equally significant, the DNR's model shoreland zoning

ordinance (which was adopted by Marinette County in 1967 and was

at issue in the Just case) stated in the beginning and states

now:

            1.2  Findings of Fact.   Uncontrolled use of the
       shorelands and pollution of the navigable waters of
       _____ County will adversely affect the public health,
       safety, convenience, and general welfare and impair
       the tax base.     The legislature of Wisconsin has
       delegated responsibility to the counties to further
       the maintenance of safe and healthful conditions;
       prevent and control water pollution; protect spawning
       grounds, fish and aquatic life; control building
       42
       The Environmental Impact Assessment Screening Worksheet
for the proposed 1982 water level order discussed how "taverns,
marinas, bait dealerships" and other commercial establishments
"will benefit from a stable recreational pond."

                                           65
                                                                         No.      2008AP1523


      sites, placement of structures and land uses; and to
      preserve shore cover and natural beauty.        This
      responsibility is hereby recognized by _____ County,
      Wisconsin.
Wis. Dep't of Natural Res.,              A        Model     County     Shoreland    Zoning

Ordinance     for     Wisconsin's      Shoreland          Protection      Program       at    5

(June    2010,      rev.    Dec.     2010)        (emphasis      added).         This    was

explicitly acknowledged by the Just court: "The Marinette county

shoreland     zoning       ordinance   in     secs.        1.2   and    1.3     states   the

uncontrolled        use    of     shorelands        and     pollution      of    navigable

waters . . . affect           public   health,            safety,      convenience,      and

general welfare and impair the tax base."                        Just, 56 Wis. 2d at
11 (emphasis added).              Reference to the tax base is generally

included in county shoreland zoning ordinances.                         See, e.g., Dane

Cnty., Wis., Code of Ordinances § 11.016(1) (2013); Marinette

Cnty.,   Wis.,      Code     of    Ordinances       § 21.01(2)         (2013);    Code       of

Ordinances, Rock Cnty., Wis. § 4.201(2) (2013).                            Consequently,

the DNR's stated position in the present case——disavowing any

consideration of the effects of water levels on the tax base——is

directly contrary to the statutory and case law authority it

relies on in the Decision.
      ¶142 In this case, the DNR considered riparian access and

enjoyment when making the water level determination for Lake
Koshkonong under Wis. Stat. § 31.02(1) but excluded testimony on

economic impacts of lower water levels on both riparian and non-
riparian property owners and communities in close proximity to

the   lake.      At    oral     argument,     the     DNR     claimed     that    economic




                                             66
                                                                            No.         2008AP1523



interests were subsumed into the admitted testimony on riparian

interests.

        ¶143 The DNR's Decision and current position relies on this

court's       previous   opinion          in    Wisconsin's       Environmental           Decade

when     it     characterized        the       evidence      of   economic         impacts     as

"secondary or indirect economic impacts."43                            In that case, the

court held that the DNR did not need to consider socioeconomic

impacts in determining whether to issue an EIS in connection

with     Wis.    Stat.   ch.    30    permits.          Wis.'s        Envtl.      Decade,     115
Wis. 2d at 395.

        ¶144 We disagree with the DNR's application of Wisconsin's

Environmental        Decade      to        this      case.        First,          the    alleged

socioeconomic        injuries        in    that      case——a      possible         decline     in

downtown        Appleton's     business         because      of   a   new    shopping        mall

outside of the city——did not have "a direct causal relationship

to the minor changes to the physical environment found by the

DNR."        Id. at 404.       Here, the decision to raise or lower water

levels has a direct economic impact on the riparian community.

Second, the case before us is not about issuing an EIS; this


        43
       Yet, the DNR did not exclude evidence of secondary
economic loss entirely; the ALJ admitted testimony on the loss
of board feet of green ash and diminished crop yields in
drainage districts.   In fact, the testimony of diminished crop
yields that would result from higher waters is an explicit
finding of fact in the Decision.

     It is inconsistent for the DNR to consider the economic
impacts of higher water level proposals like these, but refuse
to consider economic impacts from lower water levels under the
current order.

                                                67
                                                                              No.         2008AP1523



case     is   about     what       the        DNR    should        consider      in   protecting

property, as directed by Wis. Stat. § 31.02(1), when making a

water level determination.

        ¶145 It is important to note that the economic testimony

excluded        at    the        contested          case     hearing       supplemented          the

testimony of residents and business owners that the ALJ allowed

to     stay   in.       In       other    words,           the     excluded      testimony       was

different       from    the       testimony          that     the    ALJ    accepted.            The

included testimony spoke to how long the piers of lake-based

businesses       have       to    be     in    order        to     make    effective       use    of

navigable water, while the excluded expert testimony of John

Stockham spoke to the money lost by these businesses with water

levels on Lake Koshkonong reduced from their historical levels.

The included testimony covered riparian access and enjoyment,

while     the    excluded          testimony         of     Stockham       and      Dr.    Kashian

explained how property may have diminished in value or risen in

value more slowly than comparable lake property because of the

reduced access.             The included testimony spoke to the natural

scenic beauty, hunting, fishing, camping, and boating on and

around    Lake       Koshkonong,         while       the     excluded       testimony       talked

about the overall economic impact that lower water levels would

have     on     the     community         that           depends     on    these      enumerated

activities——not only the impact on businesses but also on the

municipalities          that       surround          the     lake.         The      DNR    rightly

considered the direct impact of lower water levels on riparian

properties, but wrongly excluded the cumulative economic effect

of the lower water levels on these properties.                              It is a familiar
                                                    68
                                                                          No.         2008AP1523



principle of environmental law that secondary effects are often

more substantial than the primary effects of an action.

       ¶146 The        DNR    asks    how    it    would     go     about       an     economic

analysis:44         How       would   it    monetize        the    value        of    riparian

property?        What would be its logical stopping point?                           We do not

hold    that     the    DNR    must   consider        remote      economic       impacts;      a

reasonableness standard should apply.                      The DNR has discretion as

to which impacts are too attenuated to consider,45 and it can

refute any economic evidence.                     Moreover, evidence of economic

impacts     is    not     dispositive       in    a   water       level    determination;

hypothetically, on remand the DNR could still reject a petition

for    higher      water       levels       on    Lake      Koshkonong          even      after

considering       the     economic      impacts       of    lower    water           levels   on

property.        However, it is clear that the DNR must consider the

economic impacts in the first place.
       44
       The DNR is capable of conducting an economic analysis in
other contexts.     See, e.g., Wis. Stat. §§ 285.01(12) and
227.137.   However, we are not requiring the DNR to conduct an
economic analysis, per se.   We hold that the DNR must consider
economic impacts to property when making a water level
determination under Wis. Stat. § 31.02(1).

     Furthermore, the DNR asserts that it cannot consider
economic impacts like property values on a proposed higher water
level order.   This assertion would produce an absurd result in
the case of a proposed lower water level order.       The DNR's
narrow interpretation of "protect . . . property" would mean
that only direct physical impacts to property could be
considered but no evidence of ruined property values or business
receipts could be considered.
       45
       It merits repeating that an ALJ must admit "all testimony
having reasonable probative value, but shall exclude immaterial,
irrelevant or unduly repetitious testimony or evidence."    Wis.
Stat. § 227.45(1).

                                             69
                                                                            No.        2008AP1523



      ¶147 We make one further observation.                        Raising and lowering

water levels, pursuant to Wis. Stat. § 31.02(1), is a classic

example of government regulation.                          A regulation may severely

diminish the value of property, but in a regulatory "taking"

under the Fifth Amendment, the "regulation or government action

'must deny the landowner all or substantially all practical uses

of a property in order to be considered a taking for which

compensation      is        required.'"         Eberle       v.    Dane      Cnty.      Bd.    Of

Adjustment, 227 Wis. 2d 609, 622, 595 N.W.2d 730 (1999).                                 If the

economic impact of government regulation is not considered at

the    time     the     regulation        is        initiated,       when       will     it    be

considered?

      ¶148 We     conclude        that    the        DNR    erred       when      it   excluded

testimony on economic impacts of lower water levels when making

a water level determination under Wis. Stat. § 31.02(1).

                                   III. CONCLUSION

      ¶149 The DNR's conclusions of law are subject to de novo

review      because the        DNR's   water        level    order       under     Wis. Stat.

§ 31.02(1) is heavily influenced by the DNR's interpretation of

the scope of its own powers, its interpretation of the Wisconsin

Constitution,         its    disputed     interpretation            of    the      statute     it

utilized, and its reliance upon statutes and rules outside of

Wis. Stat. ch. 31.

      ¶150 The        DNR     properly         considered         the     impact        of    the

Petition's proposed water levels on public and private wetlands

in    and     adjacent       to   Lake     Koshkonong.               However,          the    DNR

inappropriately        relied     on     the    public       trust       doctrine      for    its
                                               70
                                                                       No.      2008AP1523



authority to protect non-navigable land and non-navigable water

above the ordinary high water mark.                The DNR has broad statutory

authority grounded in the state's police power to protect non-

navigable      wetlands    and     other    non-navigable          water     resources.

Thus,    the   DNR   may    consider       the    water    level       impact      on    all

adjacent property under Wis. Stat. § 31.02(1).

        ¶151 The DNR was entitled to consider the water quality

standards in Wis. Admin. Code § NR 103, promulgated under Wis.

Stat. ch. 281, when making a Wis. Stat. § 31.02(1) water level

determination.       By statute, the DNR is responsible for writing

and enforcing wetland water quality standards in this state.

Accordingly, it       would   be    unreasonable        for      the   DNR    to    ignore

statutes and its own administrative rules when making a water

level determination affecting wetlands.                   Therefore, the DNR may

consider § NR 103 water quality standards when making a water

level    determination     under     Wis.       Stat.   § 31.02(1)       that      affects

wetlands and may apply these standards when appropriate after

weighing    the     factors   in    the     statute.        However,         Wis.    Stat.
§ 281.92 suggests that the DNR is not required to apply ch. 281

standards in making a determination under Wis. Stat. § 31.02

because ch. 31 is excepted from the provisions of ch. 281.

        ¶152 The    DNR   erroneously       excluded      most    testimony         on   the

economic impact of lower water levels in Lake Koshkonong on the

residents, businesses, and tax bases adjacent to and near Lake

Koshkonong.        This evidence was relevant to the DNR's decision-

making under Wis. Stat. § 31.02(1).                Although the DNR is granted

substantial discretion in its decision-making under the statute,
                                           71
                                                           No.     2008AP1523



it must consider all probative evidence when its decision is

likely to favor some interests but adversely affect others.                In

this case, the DNR's exclusion of most economic evidence was

inconsistent with its acceptance of competing economic evidence

that helped sustain its water level decision.



     By   the   Court.—The   decision   of   the   court   of    appeals   is

reversed and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.




                                   72
                                                                            No.    2008AP1523.npc




      ¶153 N.      PATRICK      CROOKS,         J.      (dissenting).                This        case

presents a question that the majority can——indeed does——answer

by   interpreting      Wis.     Stat.      §        31.02(1)      (2009-10).              Yet    the

majority     unnecessarily           reaches          out    to     the       constitutional

principle     of    the     public    trust          doctrine       from      the        Wisconsin

Constitution,       constricting          the       doctrine      and       misreading           this

court's precedent, especially the well-settled law articulated

in   Just   v.     Marinette    County,         56    Wis.     2d      7,    201    N.W.2d        761

(1972).     Wisconsin's long and robust history of protecting the

public trust is widely acknowledged and respected.                                   The public

trust doctrine imposes on the state, as trustee, the affirmative

duty to protect, preserve, and promote the public's right to

Wisconsin's waters.

      ¶154 The       majority     opinion            attempts       to       undermine           this

court's     precedent,      recharacterize             its     holdings,           and     rewrite

history.      Instead of limiting itself to addressing only what

must be addressed, the majority seizes this opportunity to limit
the public trust doctrine in an unforeseen way, transforming the

state's     affirmative duty         to    protect          the   public          trust    into    a

legislative choice.           It needlessly unsettles our precedent and

weakens     the    public    trust     doctrine         that      is       enshrined       in    the

Wisconsin     Constitution.           This          represents         a    significant          and

disturbing shift in Wisconsin law.

      ¶155 The      majority     also      errs        in    expanding            the     type    of

evidence that the Department of Natural Resources (DNR) must

consider in these cases.               A straightforward interpretation of

                                                1
                                                                        No.     2008AP1523.npc


Wis. Stat.      § 31.02(1)        would      not    require     the    DNR      to    consider

secondary or indirect economic impact when making water level

determinations.          The economic evidence admitted during the ten-

day contested case hearing was sufficient to discharge the DNR's

duty to "protect . . . property," and the excluded evidence was

not relevant or required.                 The DNR has a difficult job to do

under this statute, and in this case, the DNR did it well.                                   The

decisions     of   the     DNR,    the       circuit      court,     and   the       court    of

appeals each properly concluded that § 31.02(1) does not require

consideration       of    such    secondary        or     indirect    economic            impact.

The fact is that the DNR sufficiently considered the protection

of   property,     and    therefore,         it    was    not   error      to      strike    the

secondary or indirect economic evidence that it struck.

      ¶156 For these reasons, I respectfully dissent.


      I. WISCONSIN COURTS HAVE AGGRESSIVELY PROTECTED THE PUBLIC
                              TRUST DOCTRINE.


      ¶157 To      understand          the     significance          and      to     see     the
potential implications of the majority's novel interpretation of

the Just case, it is necessary to appreciate how settled the

public trust doctrine has been in Wisconsin until now.                                      This

court highlighted the constitutional basis of the public trust

doctrine in Muench v. Public Service Commission, 261 Wis. 492,

53   N.W.2d    514,      aff'd    on    reh'g,      261    Wis.    492,    55      N.W.2d      40

(1952).       In that case, the court traced the history of the

public    trust     doctrine       to    the       Northwest       Ordinance         of    1787.

Muench,   261      Wis.    at    499.        The    language       from    the       Northwest

                                               2
                                                              No.   2008AP1523.npc


Ordinance   of      1787   was   then     adopted       by   the    territorial

constitutional      convention   in     1848,   approved       by   an     act   of

Congress    which     admitted    Wisconsin          into    the    Union,       and

incorporated in the Wisconsin Constitution as follows:

     The state shall have concurrent jurisdiction on all
     rivers and lakes bordering on this state so far as
     such rivers or lakes shall form a common boundary to
     the state and any other state or territory now or
     hereafter to be formed, and bounded by the same; and
     the river Mississippi and the navigable waters leading
     into the Mississippi and St. Lawrence, and the
     carrying places between the same, shall be common
     highways and forever free, as well to the inhabitants
     of the state as to the citizens of the United States,
     without any tax, impost or duty therefor.
Wis. Const. art. IX, § 1.

    ¶158 Early on, this court declared that the public trust

not only required preservation of the trust, it also required

promotion of it.      City of Milwaukee v. State, 193 Wis. 423, 449,

214 N.W. 820 (1927) ("The equitable title to these submerged

lands vests in the public at large, while the legal title vests

in the state, restricted only by the trust, and the trust, being

both active and administrative, requires the lawmaking body to
act in all cases where action is necessary, not only to preserve

the trust, but to promote it." (emphasis added)).
     ¶159 In     Diana     Shooting     Club    v.     Husting,     this     court

described the state's responsibilities under the public trust
doctrine:

     The wisdom of the policy which, in the organic laws of
     our state, steadfastly and carefully preserved to the
     people the full and free use of public waters cannot
     be questioned. Nor should it be limited or curtailed
     by narrow constructions. It should be interpreted in
     the broad and beneficent spirit that gave rise to it
                                3
                                                                               No.   2008AP1523.npc

       in order that the people may fully enjoy the intended
       benefits.
Diana Shooting Club, 156 Wis. 261, 271, 145 N.W. 816 (1914)

(emphasis added).

       ¶160 The court in Muench adopted the language from Diana

Shooting Club and demonstrated the growth of the public trust

doctrine over time by describing its own holding as "keeping

with   the     trend      manifested       in    the      development          of    the    law    of

navigable      waters       in    this    state      to    extend     the       rights      of    the

general public to the recreational use of the waters in this

state,    and    to       protect    the    public         in   the       enjoyment        of    such

rights."       Muench, 261 Wis. at 512.

       ¶161 This          court     in    Just       v.    Marinette           County      further

interpreted         the    doctrine       while      upholding        a    shoreland        zoning

statute enacted pursuant to the state's public trust duty.                                        The

court stated:

       The active public trust duty of the state of Wisconsin
       in respect to navigable waters requires the state not
       only to promote navigation but also to protect and
       preserve those waters for fishing, recreation, and
       scenic beauty. To further this duty, the legislature
       may   delegate  authority   to  local  units  of   the
       government, which the state did by requiring counties
       to pass shoreland zoning ordinances.
Just, 56 Wis. 2d at 18 (emphasis added) (citations omitted).

This court explained that the purpose of the statute at issue in
that case was to "protect navigable waters and the public rights

therein      from    the    degradation          and      deterioration          which     results
from uncontrolled use and development of shorelands."                                       Id. at

10.       We    noted       that    the     stated         purpose        of     the    shoreland

regulation program is to "aid in the fulfillment of the state's

                                                 4
                                                                   No.    2008AP1523.npc


role as trustee of its navigable waters and to promote public

health, safety, convenience and general welfare."                      Id.

       ¶162 Since then this court has consistently reiterated the

purpose and the significance of the public trust doctrine in its

cases.      For example, Wisconsin's Environmental Decade, Inc. v.

DNR (Environmental Decade 1978), described the duties of the

state under the public trust as "not only to promote navigation

but    also    to    protect      and    preserve     its    waters      for    fishing,

hunting, recreation, and scenic beauty."                    Envtl. Decade 1978, 85

Wis.   2d     518,   526,   271    N.W.2d       69   (1978).      We   described       the

state's responsibility as long-acknowledged and highlighted the

legislature's        delegation     of    water      management    to     the    DNR   in

furtherance of "the state's affirmative obligations as trustee."

Id. at 526-27.

       ¶163    Recently, this court reiterated these principles in

Lake Beulah Management District v. DNR, holding that under the

applicable statutes and the public trust duties, the DNR can and

must consider whether an inland well would harm waters of the
state before issuing a permit for the well.                      Lake Beulah, 2011

WI 54, ¶3, 335 Wis. 2d 47, 799 N.W.2d 73.                      This court explained

jurisprudence on the public trust doctrine:

       We reaffirmed this maxim in Muench v. Public Service
       Commission in our examination of the history and
       evolution   of  the   public   trust   doctrine, which
       indicated a "trend to extend and protect the rights of
       the public to the recreational enjoyment of the
       navigable waters of the state." We have further
       explained, "The trust doctrine is not a narrow or
       crabbed concept of lakes and streams."
Id., ¶31 (emphasis added) (citations omitted).

                                            5
                                                                       No.   2008AP1523.npc


       ¶164 Our cases demonstrate that the scope of the public

trust doctrine is such that the state holds title to the land

between    the     ordinary    high    water       marks,     and    state     regulation

consistent with the public trust doctrine extends to surrounding

areas.     The ownership of land was emphasized in Diana Shooting

Club, which was a case about trespass.                      In that case, there was

no trespass because the hunter was hunting between the ordinary

high water marks, land that was held in trust for the public.

Diana Shooting Club, 156 Wis. at 272.                       In contrast, regulation

consistent with the public trust doctrine was at issue in Just

because the shoreland zoning statute extended well beyond the

ordinary high water mark, and the court held that it could be

regulated pursuant to the public trust doctrine.                         Just, 56 Wis.

2d at 14, 17.

       ¶165 In        furtherance           of         the       state's          trustee

responsibilities,       the     legislature           has     enacted        statutes    to

discharge its duties.           As the court explained in Environmental

Decade     1978,     several    chapters         of     the     Wisconsin       statutes,
including    Chapter    31,     which      is    at   issue     in   this     case,     were

enacted "[i]n furtherance of the state's affirmative obligations

as trustee of navigable waters."                   85 Wis. 2d at 527.            We dealt

with a similar situation in this court's unanimous decision in

Lake   Beulah,      where     the    legislature        had     used     a    statute    to

implement its public trust duties.                      This court stated, "[W]e

conclude    that,    through        Wis.   Stat.      §281.11    and    §    281.12, the

legislature has delegated the State's public trust duties to the

DNR in the context of its regulation of high capacity wells and

                                            6
                                                                     No.   2008AP1523.npc


their potential effect on navigable waters such as Lake Beulah."

Lake    Beulah,    335   Wis.      2d    47,   ¶34    (emphasis       added).         That

decision     dealt    with     non-navigable         water,    and     explained       its

relationship to the public trust doctrine.                    The statutes created

to preserve and promote the public trust doctrine allowed the

regulation    of     non-navigable        waters     because    of     the    potential

effects non-navigable waters have on navigable waters.


  II.     THE MAJORITY UNNECESSARILY UNDERMINES WELL-SETTLED LAW ON
                     WISCONSIN'S PUBLIC TRUST DOCTRINE.


       ¶166 The      heart    of   the    public      trust    doctrine        lies    in

protecting,    preserving,         and    promoting     the    public's       right    to

Wisconsin's waters, and this court has vigilantly guarded these

rights.     The public trust doctrine entrusts to the state the

duty to protect, preserve, and promote the public trust.                              The

majority    untethers        our   constitutional       jurisprudence         from    its

foundation and attempts to transform 165 years of constitutional

precedent into a mere legislative exercise of the state's police

power.     The citizens of Wisconsin may rightly wonder why the
majority is limiting the protection of Wisconsin's waters and

reaching a constitutional question that is not essential to its

holding.     I refuse to unnecessarily constrict our holdings on




                                           7
                                                                          No.    2008AP1523.npc


this       important    constitutional        doctrine,        especially         in    a   case

that should be decided on statutory grounds.1

       ¶167 The central issue in this case is one of statutory

interpretation——namely,          whether          the    DNR   can      consider       wetlands

above the ordinary high water mark when determining water levels

under Wis. Stat. § 31.02(1).              Wisconsin Stat. § 31.02(1) states

in relevant part: "The department, in the interest of public

rights in navigable            waters    or       to    promote       safety     and    protect

life, health and property[,] may regulate and control the level

and flow of water in all navigable waters . . . ."                                     Both the

majority       and    the   petitioner    agree         that      a    simple     reading    of

§ 31.02(1)           demonstrates       that           the     statute          allows      for

consideration          of   private   wetlands.              In       fact,     the    majority

       1
       Two other issues are decided by the majority. The first
is the standard of review.           The majority lays out the
appropriate framework to determine the standard of review.        It
then determines that the standard of review here should be de
novo review because it believes that the DNR has not
consistently interpreted Wis. Stat. § 31.02(1) and that the
question presented is one of the scope of the DNR's power.
Majority op., ¶¶58-64.    Because I would reach the same result
under any level of deference, I will not address the majority's
application of the oft-cited rules from Racine Harley-Davidson,
Inc. v. State, 2006 WI 86, 292 Wis. 2d 549, 717 N.W.2d 184. See
also Hilton ex rel. Pages Homeowners' Ass'n v. DNR, 2006 WI 84,
293 Wis. 2d 1, 717 N.W.2d 166 (discussing the standard of review
of an agency decision in a case related to the public trust
doctrine).      Even   applying   de    novo   review,   the   DNR's
interpretations   were   reasonable    and   should   therefore   be
affirmed.

     The second issue           decided by the majority is whether Wis.
Stat. § 281.92 bars             the DNR from considering water quality
standards from Wis.            Admin. Code § NR 103 when making its
determination under §          31.02(1). I agree with the majority that
Wis. Stat. § 281.92              does not bar the DNR from such a
consideration.

                                              8
                                                                No.    2008AP1523.npc


states:       "The     District    acknowledges      that    'privately        owned

wetlands       are   entitled     to   consideration   as    "property"       to   be

protected in establishing a water level order.'                 There can be no

dispute that the DNR can 'consider' water level impact on all

adjacent property under Wis. Stat. § 31.02(1)."                       Majority op.,

¶109.       Because that interpretation is dispositive of the issue,

I would stop the analysis there.

    ¶168 Instead, the majority reaches that conclusion and then

embarks on a constitutional analysis in which it reads the part

of the statute before the "or" to be a direct enactment of the

public trust doctrine and the part after the "or" as an exercise

of police powers.           Majority op., ¶¶102-103.        It speculates as to

how the statute could have been written so it "would be seen as

a direct enforcement mechanism for the public trust in navigable

waters" while explaining that the actual language could not be a

direct enforcement mechanism.              Majority op., ¶103.         The majority

does not cite any cases that interpret Wis. Stat. § 31.02(1) the

way it does now, and it ignores the cases that suggest that the

entire statute is an embodiment of the public trust doctrine.2

Reading the statute as the majority does attempts to strip the

state, trustee of the public trust doctrine, of the ability to

regulate anything that is not between the ordinary high water

marks       pursuant   to   the   public    trust   doctrine.         The   majority

reaches a constitutional issue that it is not required to reach,

        2
       See discussion of Wisconsin's Environmental Decade, Inc.,
v. DNR (Environmental Decade 1978), 85 Wis. 2d 518, 271 N.W.2d
69 (1978) and Lake Beulah Management Dist. v. DNR, 2011 WI 54,
335 Wis. 2d 47, 799 N.W.2d 73, at ¶165.

                                           9
                                                                              No.    2008AP1523.npc


and it engages in a strained analysis to bolster its holding.

Both Wis. Stat. § 31.02(1) and the long-settled public trust

doctrine    support       a    consideration          of     the       impact        on     wetlands

adjacent     to    Lake       Koshkonong           when     regulating              water    levels

pursuant to the public trust doctrine.

     ¶169 To support its holding, the majority misconstrues Just

v.   Marinette     County.          The    majority        calls        the     Just        case   "a

textbook example of using the state's police power [as opposed

to using the constitutional public trust doctrine] to support

legislation 'to protect navigable waters and the public rights

therein . . . .'"             Majority op., ¶96.                 The majority uses this

interpretation      of    Just to          explain        that    the    statute          at issue

here,     § 31.02(1),         is    only      half   based        on     the        public     trust

doctrine;    the    rest,          as   the   majority       would       have        us     believe,

derives only from the state's police power and is disconnected
                                               3
from the public trust doctrine.

      3
       Although it does not answer why it matters in this case,
the majority leaves no doubt about the significance of its novel
interpretation of the Just case, namely that it changes the ease
with which the legislature can modify regulation and creates a
more lenient legal standard for this court to apply when it
reviews such changes:

     The police power is potent, and legislation grounded
     in the state's police power is presumed constitutional
     and   will   be   sustained   unless   it   is   deemed
     unconstitutional    beyond    a    reasonable    doubt.
     Nonetheless, as Just makes clear, the distinction
     between the DNR's constitutionally based public trust
     authority and the DNR's police power-based statutory
     authority   is   that   the  latter   is   subject   to
     constitutional and statutory protections afforded to
     property, may be modified from time to time by the
     legislature, and requires some balancing of competing
     interests in enforcement.

                                               10
                                                       No.    2008AP1523.npc


    ¶170 The   clear   language   of   Just   rebuts    the     majority's

conclusion that it was only a police power case.4            The thrust of




Majority op., ¶101.      In other words, rights that are not
protected by the constitution are easier to take away.      In
addition, the majority's interpretation transforms what was an
affirmative duty on the state as trustee into a right to
regulate when the legislature chooses to do so, allowing the
state to ignore its duty with respect to things that impact
navigable waters but are not physically located between the
ordinary high water marks.
    4
       Scholarship interpreting Just supports the conclusion that
this court extended the public trust doctrine through Just to
allow for regulation above the ordinary high water mark.     See,
e.g., Melissa K. Scanlan, Implementing the Public Trust
Doctrine: A Lakeside View into the Trustees' World, 39 Ecology
L.Q. 123, 138 (2012) (explaining that "[a]s scientific knowledge
about the interconnectedness of hydrology has increased, courts
and the legislature have expanded the public trust doctrine to
cover activities on shorelands, wetlands, nonnavigable waters,
and groundwater adjacent to navigable waters."); Richard M.
Frank, The Public Trust Doctrine: Assessing Its Recent Past &
Charting Its Future, 45 U.C. Davis L. Rev. 665, 668 (2012)
("[I]n a controversial 1972 decision, the Wisconsin Supreme
Court expressly [held] that the public trust doctrine could be
asserted to bar the filling of privately-owned wetlands, in
order to preserve those wetlands in their natural condition.");
Jason   J.   Czarnezki,   Environmentalism   and  the   Wisconsin
Constitution, 90 Marq. L. Rev. 465, 470, 494 (2007) (referencing
Just to support a statement that the constitutionality of
shoreland and wetland protection via zoning ordinances was
upheld under the public trust doctrine and citing Just in
concluding that "the constitution might textually embrace the
notion that private property owners do not have inherent rights
to change the 'essential natural character of their land' for
development purposes.").

                                  11
                                                             No.    2008AP1523.npc


the Just opinion showed that the court believed it was relying

on the public trust doctrine.            The court explicitly held that

land above the ordinary high water mark is subject to the public

trust doctrine.       Just, 56 Wis. 2d at 18-19 ("Lands adjacent to

or near navigable waters exist in a special relationship to the

state.    They have been held subject to special taxation and are

subject    to   the   state    public   trust   powers    . . . ."     (emphasis

added) (citations omitted)).

     ¶171 In an attempt to circumvent the clear language of the

Just case, the majority makes a circular argument.                  The majority

imports its conclusion from earlier in the opinion——that the

public    trust   does   not   extend beyond     the     ordinary    high water




     See also Paul G. Kent & Tamara A. Dudiak, Wisconsin Water
Law: A Guide to Water Rights and Regulations 1, 12 (2d ed.
2001),        http://learningstore.uwex.edu/assets/pdfs/g3622.pdf
(stating that "because of the importance of public trust, the
courts have used the public trust doctrine as a justification
for regulation of shoreland and wetland areas adjacent to
natural navigable waters on the theory that such regulation is
necessary to protect public trust waters and to ensure the right
of the public to access those waters." (citation omitted));
Melissa K. Scanlan, The Evolution of the Public Trust Doctrine
and the Degradation of Trust Resources: Courts, Trustees and
Political Power in Wisconsin, 27 Ecology L.Q. 135, 165 (2000)
(citing Just in a section entitled "Cases in Which Trustees
Acted to Further the Trust"); Patrick O. Dunphy, The Public
Trust Doctrine, 59 Marq. L. Rev. 787, 807 (1976) (explaining
Just, "The strong public trust doctrine in Wisconsin may have
been the most significant reason for the court’s initiative. . .
. By recognizing the interrelationship of the land and the water
and extending the trust to shorelands, the court has added a new
dimension to the trust.")

                                        12
                                                                         No.      2008AP1523.npc


mark——and        applies      it    to    support     its   subsequent            conclusion.5

Regarding Just, it states:

       If there is any question that the court was not
       relying on the public trust doctrine to sustain the
       shoreland   zoning   ordinance  and   its  authorizing
       legislation, the court noted that the Marinette County
       ordinance applied to "lands within 1,000 feet of the
       normal high-water elevation of navigable lakes, ponds,
       or flowages and 300 feet from a navigable river or
       stream."   These dimensions far exceed the geographic
       limitations of public trust jurisdiction.
Majority     op.,      ¶100      (citation      omitted).         The    majority's         only

apparent support for its conclusion about the dimensions of the

public trust jurisdiction comes from its own earlier analysis.

The Just case establishes the opposite conclusion——that the DNR

pursuant to the public trust doctrine may consider the impact on

land above the ordinary high water mark.

       ¶172 Not only does an appropriate interpretation of Just

rebut      the    majority's        conclusions,       this    court        has     repeatedly

interpreted        the    public     trust      doctrine      more      broadly      than    the

majority does today, and there is no compelling reason presented

in this case to change that interpretation.                           See supra, ¶¶161-

165.       The case law indicates that the state has the power to
regulate         lands     beyond        the    ordinary      high       water       mark     in

discharging the duties entrusted to it under the public trust
doctrine.          See,     e.g.,        Lake   Beulah,     335      Wis.      2d    47,    ¶34.

Likewise,        the     cases     demonstrate       that   the    legislature         has    an



       5
       For an explanation of why the majority mistakenly believes
that the public trust doctrine cannot extend beyond the ordinary
high water marks, see infra, ¶172.

                                                13
                                                                 No.   2008AP1523.npc


affirmative duty as trustee to protect and promote the public

trust.       See, e.g., City of Milwaukee, 193 Wis. at 449.

        ¶173 One explanation for the majority's puzzling holding is

that it appears to confuse the concepts of ownership of (or

title to) the land with regulation pursuant to the public trust

doctrine.       In   the   cases    the   majority      cites    to    support   its

position that public trust jurisdiction is confined to limited

geographic       areas,     the    idea   of   ownership    of    the     land   was

paramount, but here, ownership of the private wetlands is not at

issue.6       The issue is only whether the DNR has the authority

under the public trust doctrine to consider the impact on those

adjacent wetlands consistent with its duties under the public

trust       doctrine.      After citing    cases   it    believes      support   its

proposition that the public trust doctrine is limited to water

between the ordinary high water marks, the majority explains the

problem it sees:

     Contemplating the question of ownership is important
     because the public trust doctrine implicates state
     ownership or virtual state ownership——by virtue of its
     trust responsibility——of land under navigable waters.
     If the public trust were extended to cover wetlands
     that are not navigable, it would create significant
     new questions about ownership of and trespass on
     private land, and it would be difficult to cabin
     expansion of the state's new constitutionally based
     jurisdiction over private land.




        6
       See, e.g., Diana Shooting Club v. Husting, 156 Wis. 261,
272, 145 N.W. 816 (1914) (holding that no trespass occurred
because the hunter was located between the ordinary high water
marks, property which was land held in trust for the public
pursuant to the public trust doctrine).

                                          14
                                                                  No.    2008AP1523.npc


Majority op., ¶84.       The quotation from the majority demonstrates

its misunderstanding of the argument of the DNR.                          The DNR in

this case was not asserting that the public trust doctrine gives

the state ownership of the private wetlands; rather it argues

that the public trust doctrine allows the DNR to consider the

impact on the wetlands when determining water levels.                       It quotes

the Just court's statement that "[l]ands adjacent to or near

navigable waters . . . are subject to the state public trust

powers"   and    emphasizes       the   Just      decision's   reference      to   the

wetlands "adjacent to" not "within" navigable waters.

     ¶174 Allowing       the      trustee    to    discharge   its      public   trust

duties by considering things that affect navigable waters is

consistent with our precedent.               If it could not, how then would

the state discharge its extensive duties "not only to promote

navigation      but   also   to    protect       and   preserve   its     waters   for

fishing, hunting, recreation, and scenic beauty"?                       Envtl. Decade

1978, 85 Wis. 2d at 526 (citations omitted).                   Therefore, the DNR

did not err in relying on its public trust power to consider the
impact of raising the water levels on adjacent private wetlands

even when the wetlands are above the ordinary high water mark.

The conclusion the majority reaches is a novel interpretation

that cannot be squared with the extensive public trust doctrine

case law.


      III. THE "PROTECT . . . PROPERTY" ELEMENT OF WIS. STAT.
         § 31.02(1) DOES NOT REQUIRE ADMISSION OF THE STRICKEN
                               EVIDENCE.




                                            15
                                                                             No.   2008AP1523.npc


        ¶175 Despite acknowledging that the decision adopted by the

DNR was "meticulous [and] comprehensive," the majority reverses,

holding           that      the      DNR   was    required       to     consider     additional

evidence          on     the      secondary      or     indirect      economic     impacts      of

raising the water level when making its determination under Wis.

Stat. § 31.02(1).7                 Because I do not believe the statute requires

the DNR to consider the evidence that was stricken to discharge

its duty to "protect . . . property," I dissent.

        ¶176 During               the      ten-day      contested         case     hearing,      a

significant amount of evidence was heard.                             The parties presented

testimony and other evidence related to the economic impact of

the    change          in    the      water   level,      including        testimony      on   the

implications for navigation, information about the impact on use

and enjoyment of riparian property by riparian owners, impact on

fish        and    fowl,       and      information      about    the     impact    on    natural

beauty and recreation.                      Some evidence was later stricken from

the record on               the grounds          that    the    "[s]econdary       or    indirect

economic impacts of a water level determination do not bear on

the statutory               standard set         forth    in     section    31.02(1)."         The

stricken evidence included testimony and exhibits from experts

who testified as to the potential economic effects of the water

level        determination            on   residential         property     values,      business

incomes,           and      tax      revenues.          However,      the    DNR's       decision

        7
       The majority holds: "We find that history, purpose,
precedent, and the DNR's past practice support a broad
interpretation of the phrase 'protect . . . property' so that
the DNR is not limited to consideration of hydrologic damage to
real property and riparian rights when making a water level
determination under Wis. Stat. § 31.02(1)." Majority op., ¶132.

                                                   16
                                                                             No.    2008AP1523.npc


specifically          noted    its        consideration          of     riparian        property

owner's interests in their property:

      The diminished ease of access experienced by many
      riparians and their desire for higher water levels,
      reflects their diminished utility and enjoyment of
      their property, which doubtless reduces the value of
      that property to them.    This diminished utility and
      enjoyment of the property, and the expectation that
      higher water would enhance the utility and enjoyment
      of riparian property, has been considered and weighed
      under the standards of Wis. Stat. § 31.02(1).

(Emphasis added).
      ¶177 As         explained      above,        Wis.       Stat.    § 31.02(1)        states:

"The department, in the interest of public rights in navigable

waters     or    to    promote       safety        and    protect          life,    health        and

property[,] may regulate and control the level and flow of water

in   all   navigable          waters      .   .    .     ."      Wis.       Stat.     § 31.02(1)

(emphasis       added).        The     majority          focuses      on    "protect        .    .   .

property" and interprets it to mean that striking the secondary

or   indirect      economic       impact          evidence      constituted           reversible

error.     The more reasonable interpretation of the statute, as

demonstrated by the quotation set forth above, is that the DNR

sufficiently considered the protection of property when making

its determination under Wis. Stat. § 31.02(1).

      ¶178 In         other    statutes       that        the    DNR       administers,           the

legislature        has    specifically            included         language         about        such

economic impact, whereas in § 31.02(1) the legislature has not

signaled that the DNR must consider such secondary or indirect

economic        impact.        For     example,          Wis.    Stat.        § 30.195(2)(c)2

requires    consideration            of    whether        the    proposed          change       "will

improve    the     economic       or      aesthetic        value      of     the    applicant's
                                              17
                                                                    No.   2008AP1523.npc


land."            Wisconsin   Stat.   § 285.01(12)           requires     the    DNR     to

consider "energy, economic and environmental impacts and other

costs"       to     determine    air-pollution          regulation.        The     DNR's

permitting process for dams under Wis. Stat. § 31.06(3)(b) looks

at whether the proposal is "in the public interest, considering

ecological, aesthetic, economic and recreational values."                              None

of this language is present in Wis. Stat. § 31.02(1).                            If the

legislature intended that the DNR must consider such secondary

or indirect economic impact, the legislature would have drafted

the statute to signal such a requirement.8

     ¶179 As the court of appeals aptly observed, the District's

interpretation,         now   adopted      by    the   majority,    has    no    logical

stopping point.          Rock-Koshkonong Lake Dist. v. DNR, 2011 WI App

115, ¶43, 336 Wis. 2d 677, 803 N.W.2d 853.                      If it is reversible

error       not    to   consider    this    type       of    secondary    or    indirect

economic      impact,     what     evidence       is   the    fact-finder,       in     its

discretion, allowed to exclude?                  The court of appeals explained

this problem:

     For example, it is unclear under the District's
     construction  whether   the  DNR's  consideration  of
     economic effects on real property would be limited to
     property values of riparian owners or would also
     include the values of adjacent or area properties not
     situated directly on the lake. Similarly, if the DNR
     were required to consider revenues of businesses
     directly linked to lake recreational activities, like

        8
       Further support for this proposition is found in the
majority's explanation of zoning ordinances which explicitly
require a consideration of the "tax base" when making zoning
decisions. Majority op., ¶141. Wisconsin Stat. § 31.02(1)
contains no such language evincing the legislature's intent that
the DNR consider secondary or indirect economic evidence.

                                            18
                                                                  No.   2008AP1523.npc

     marinas and bait shops, would it also be required to
     consider revenues of businesses with less direct links
     to use of navigable waters, such as gas stations and
     convenience stores?
Id., ¶43.    The majority's interpretation of this statute adds an

unnecessary layer of confusion for the DNR when reviewing these

cases.

     ¶180 Instead        of    applying    the    governing       statute   or   this

court's interpretation of similar statutes, the majority relies

on language from Railroad Commission cases from the early 1900s

to support its conclusion that the legislature in 1915 did not
intend to exclude riparian rights from consideration in Wis.

Stat. § 31.02(1), and that therefore, it was reversible error to

exclude evidence of such secondary or indirect economic impact

to   water   level       changes.9        The    language    in    these    Railroad

Commission decisions, on closer examination, supports the DNR's

position     that        the     duty     to     protect     property       requires

consideration       of    only    physical      impacts     on    property.       The


     9
       The majority also relies on a legislative report from
1910, Report of the Comm. on Water Powers, Forestry, and
Drainage of the Wis. Leg. 1910, 49th Leg., which explained that
land near the shores of lakes was becoming very valuable.    See
majority op., ¶135. The majority then states: "In light of the
legislative reports giving rise to the Water Powers Act
containing the 'protect . . . property' language of Wis. Stat.
§ 31.02(1), one can reasonably infer that riparian residential
property and lake-based businesses were prime considerations for
protecting property." Id., ¶136. The majority fails to connect
the observations in the legislative report with its "reasonable
inference." One could just as reasonably infer that protection
from physical damage to lakeshore property was the prime
consideration for including language about protecting property
in the statute and that the legislature did not expect the
Railroad Commission to consider such secondary or indirect
economic impact from changing water levels.

                                          19
                                                                           No.    2008AP1523.npc


majority finds its support, in one case, by focusing on what the

Railroad      Commission         did     not   say—which         is    dubious     support      at

best.       It finds its support in the second case by focusing on a

passing       reference            to     private           development,          while        not

acknowledging the actual basis given by the Railroad Commission

for    its    holding—which            clearly      focuses       on    the    potential       for

shoreline and property "to be destroyed."

       ¶181 The first of the Railroad Commission cases on which

the majority relies, Town of Bear Lake v. Wisconsin-Minnesota

Light & Power Co., 16 W.R.C.R. 710 (1915), involved a dispute

over    the    water       level       maintained      by    a    dam    and     that    level's

physical impact on surrounding land.                             The Railroad Commission

stated: "[t]his level will not endanger life or health . . .

[i]t will, however, affect property and overflow a large acreage

of land . . . ."               Id. at 716.           The majority explains that the

Railroad      Commission's         decision         "did    not     explicitly      limit      the

protection         of     property       to     only       direct       physical     impacts."

Majority op., ¶137.                The absence of an explicit limitation is
not evidence that the statute requires consideration of such

secondary or indirect economic impact; it is the natural result

of    the    fact       that    Bear    Lake     was   about       physical      flooding       of

property.

        ¶182 The other Railroad Commission case, In re Determining

the High Water Mark to be Established on the Rest Lake Reservoir

Operated      by    the        Chippewa       and    Flambeau         Improvement       Co.,    16

W.R.C.R. 727, 731 (1915), considered Rest Lake's water level,

and like the Bear Lake decision, involved severe physical damage

                                                20
                                                                    No.    2008AP1523.npc


to    property.    The    Chippewa          &    Flambeau       Improvement          Company

requested    permission       from    the       Railroad       Commission       to    adopt

certain high and low water marks, but property owners vigorously

protested——arguing      that    the    wide          variation     in     water      levels

negatively affected their property.                    Id. at 731.        The Railroad

Commission    agreed    with    property         owners     that    the     "disastrous

effects upon shore property are only too plainly visible" from

such a great variation in the water level.                         Id. at 734.            It

described the consequences as follows:

      Banks are lined with dead trees, logs, rocks and
      debris in an effort to prevent the shore lines from
      being obliterated. . . .     When the banks give away
      large trees fall into the water.      In one instance,
      thirty large green timber trees were counted lying in
      the lake where the shore had been taken away this
      year. . . .     In places the old shore lines have
      disappeared . . . . The gradual disappearance of what
      are now islands was fully shown by the testimony.
Id.    While the Railroad Commission briefly mentioned that large

sums of money were used to improve private homes along the lake,

its ultimate reason for protecting this property was concern for

potential    physical    damage      rather       than     secondary       or   indirect

economic     impact.      In    denying          the     petition,        the   Railroad
Commission found, "[t]he effect of [the proposed water level]

will be to give a very wide variation in levels, tending to
destroy the shore line and property around the lakes."                               Id. at

738   (emphasis   added).        Neither        of     these    cases     supports      the

majority's conclusion about the legislative intent in 1915.

      ¶183 Further,     the    majority         minimizes       this      court's      past

interpretation     of     similar      statutory           language,        which       has

explicitly limited its reading to a narrow interpretation of the
                                        21
                                                                 No.   2008AP1523.npc


language.     In City of New Lisbon v. Harebo, this Court held that

a dam may "endanger property" when "by reason of its location,

or manner of construction, or the character of the soil upon

which it is built . . . it [would] tend to flood cities or

villages or [would be] likely to give way and create havoc and

destruction below the dam . . . ."              New Lisbon, 224 Wis. 66, 73,

271 N.W. 659 (1937).          We made sure to point out that "we are of

the opinion that this is as much as the section can be held to

mean."      Id.   Thus, this court expressly limited the construction

of    "endanger    property,"    and    concluded     that   a    dam     would    not

endanger     property    if    injury      to   the   property     resulted       from

"normal flowage by the ordinary operation of the dam."                     Id.    The

court's narrow reading of "endanger property" as applying to

only physical damage and hydrologic events supports a limited

reading of "protect . . . property" in Wis. Stat. § 31.02.10

       ¶184 It is illogical and contrary to the plain meaning of

the    statute    to   hold,    as   the     majority   does,      that    language

referring to "protect[ing] life, health and property" requires
the DNR to consider such secondary or indirect economic impacts.

       10
       Another case that provides support for the conclusion
that such secondary or indirect economic impact is not required
to be considered is Wisconsin's Environmental Decade, Inc., v.
DNR (Environmental Decade 1983), 115 Wis. 2d 381, 340 N.W.2d 722
(1983). In Environmental Decade 1983, this court held that the
DNR did not need to consider socioeconomic impact in determining
whether it needed to issue an environmental impact study in
connection with a permit.        Id. at 395.       While it is
distinguishable on its facts (as noted by the majority), I agree
with the DNR decision's assessment that this court's reasoning
in Environmental Decade 1983 "applies with similar force here,
even though that case involved action by the DNR under Chapter
30, not Chapter 31, Stats."

                                        22
                                                                             No.    2008AP1523.npc


It is apparent that the cases relied on by the majority do not

lead to its conclusion.                  Further, contrary to the majority's

position, the plain language is clear and certainly does not

compel the majority's conclusion.                         The fact is that the DNR

sufficiently            considered       the       protection         of      property,        and

therefore,         I   conclude    that       it    was    not    error       to     strike    the

secondary or indirect economic evidence that it struck.


                                        IV.    CONCLUSION


       ¶185    This case presents a question that the majority can——

indeed does——answer by interpreting Wis. Stat. § 31.02(1).                                    Yet

the   majority         unnecessarily      reaches         out    to    the     constitutional

principle      of       the    public    trust       doctrine         from     the     Wisconsin

Constitution,           constricting      the       doctrine      and      misreading         this

court's precedent, especially the well-settled law articulated

in    Just    v.       Marinette   County.           Wisconsin's           long      and   robust

history of protecting the public trust is widely acknowledged

and respected.           The public trust doctrine imposes on the state,
as    trustee,         the    affirmative      duty       to    protect,       preserve,      and

promote the public's right to Wisconsin's waters.

       ¶186 The         majority     opinion         attempts         to     undermine        this

court's       precedent,        recharacterize         its       holdings,          and    rewrite

history.        Instead of limiting itself to addressing only what

must be addressed, the majority seizes this opportunity to limit

the public trust doctrine in an unforeseen way, transforming the

state's      affirmative duty to               protect     the    public           trust   into   a

legislative choice.              It needlessly unsettles our precedent and
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weakens    the    public      trust    doctrine      that     is       enshrined      in    the

Wisconsin    Constitution.             This       represents       a     significant        and

disturbing shift in Wisconsin law.

     ¶187 The         majority      also     errs    in    expanding           the   type       of

evidence     that      the    DNR     must    consider       in     these       cases.           A

straightforward interpretation                of    Wis.    Stat.       § 31.02(1) would

not require the DNR to consider secondary or indirect economic

impact when making water level determinations.                                 The economic

evidence admitted during the ten-day contested case hearing was

sufficient       to    discharge      the    DNR's    duty     to       "protect      .     .    .

property,"       and    the    excluded       evidence       was        not    relevant         or

required.     The DNR has a difficult job to do under this statute,

and in this case, the DNR did it well.                        The decisions of the

DNR, the circuit court, and the court of appeals each properly

concluded that § 31.02(1) does not require consideration of such

secondary or indirect economic impact.                     The fact is that the DNR

sufficiently          considered      the     protection           of     property,         and

therefore, it was not error to strike the secondary or indirect

economic evidence that it struck.

     ¶188 For the foregoing reasons I respectfully dissent.

     ¶189 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.




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