By Bruce Ross, Executive Director bross@wisducks.org
This article originally appeared in Wisconsin Waterfowl Association’s July, 2024 Newsletter edition.
Landowners with property subject to flooding cheered when a Jefferson County Judge issued a ruling that the DNR’s “Feet Wet” guidance to the public is flawed. Other duck hunters began to make plans to hunt locations not subject to this ruling .
First, Wisconsin’s public trust doctrine (enshrined in the Constitution) states that our navigable waters are held in trust for all citizens of the state, and shall be forever free for public use. This ruling doesn’t change that.
Second, The Ordinary High Water Mark (OWHM) defines the normal boundary between navigable waters and private lands. This ruling doesn’t change that.
What this ruling does change (at least for now), is the DNR’s longstanding interpretation that as long as your feet stay wet, persons may navigate and recreate over private property in conditions of flooding (i.e. above the OHWM) for purposes that are acceptable below the OHWM. This ruling said the DNR is wrong on this interpretation.
This is a significant change to long-standing concepts for waterway users. Whether this is a good ruling or bad depends on where you hunt:
- Duck hunters who are used to running over flooded private property to get to their spots will have to seek other locations or methods of getting there.
- Duck hunters who own such land will now be able to enforce property boundaries for land they bought, and on which they now pay property taxes.
It’s not clear if the DNR will accept this ruling or appeal. Even if they accept the ruling, there will be a significant period where the DNR must follow the rulemaking process to issue new guidance. I suspect we will know in the next 30 days, which is the legal limit on making an appeal. So, stand by for a DNR decision shortly.
In the meantime, this is a good opportunity to consider how our actions as duck hunters may affect property owners. The plaintiff landowner brought this action because users of airboats and other conveyances were destroying some of his property as they travelled over it. That’s a tough thing to justify.
