Amendment SA1-SB900

LRBa1291/1

ZDW:skw

2021 - 2022 LEGISLATURE

SENATE AMENDMENT 1, TO SENATE BILL 900

February 16, 2022 - Offered by Senator Stroebel.

SB900-SA1,1,1 At the locations indicated, amend the bill as follows:

SB900-SA1,1,4 1. Page 2, line 2: delete “all of the following:" and substitute “the portions of all of the following rivers that are within the Great Lakes basin and within incorporated areas:".

SB900-SA1,1,5 2. Page 2, line 3: delete “River and Algoma Harbor." and substitute “River.".

SB900-SA1,1,6 3. Page 2, line 4: delete “and Green Bay." and substitute “in Brown County.".

SB900-SA1,1,7 4. Page 2, line 6: delete that line.

SB900-SA1,1,8 5. Page 2, line 7: delete “River and Kewaunee Harbor." and substitute “River.".

SB900-SA1,1,9 6. Page 2, line 8: delete lines 8 and 9 and substitute:

SB900-SA1,1,10 “(f) Kinnickinnic River, Menomonee River, and Milwaukee River.”.

SB900-SA1,1,12 7. Page 3, line 1: delete “River and Manitowoc Harbor." and substitute “River.".

SB900-SA1,2,1 8. Page 3, line 3: delete “River and Racine Harbor." and substitute “River.".

SB900-SA1,2,3 9. Page 3, line 4: delete “River and Sheboygan Harbor." and substitute “River.".

SB900-SA1,2,4 10. Page 3, line 5: delete “River and Superior Harbor." and substitute “River.".

SB900-SA1,2,6 11. Page 3, line 6: delete “River and Two Rivers Harbor." and substitute “River and East Twin River.".

SB900-SA1,2,8 12. Page 6, line 16: delete “The department" and substitute “For purposes of this section, the department".

SB900-SA1,2,9 13. Page 6, line 18: after “interest" insert “as provided in sub. (4) (c)".

SB900-SA1,2,11 14. Page 7, line 8: after “841.10." insert “A determination under this section shall be recorded with the register of deeds.".

SB900-SA1,2,12 15. Page 7, line 14: delete lines 14 to 20 and substitute:

SB900-SA1,2,19 “885.335 Actions concerning real estate near Great Lakes waters or commercial rivers. (1) No claim or counterclaim may be made in an action relating to the possession or title of any real estate if the claim or counterclaim is based on an assertion that the property includes portions of land that may have at one time been submerged beneath a Great Lakes water if such portions of land are upland, as defined in s. 30.2039 (1) (e), and the property is not subject to a lake bed grant or submerged land lease.

SB900-SA1,3,2 (2) No claim or counterclaim may be made in an action relating to the allowable use of any real estate if the claim or counterclaim is based on an assertion that the property includes portions of land that may have at one time been submerged beneath a commercial river, as defined in s. 30.01 (1h), or an assertion that the allowable use of the property is otherwise limited by a prior approval issued by the state or a local government, if s. 30.122 (2) is applicable to such portions of land.

SB900-SA1,8m Section 8m. Nonstatutory provisions.

SB900-SA1,3,4 (1) Legislative findings.

SB900-SA1,3,8 (a) The legislature recognizes and declares that the state is the trustee of the public trust established under article IX, section 1, of the Wisconsin Constitution and that the legislature is authorized as representative of the state to exercise the function of the trustee of that public trust in matters of specific application.

SB900-SA1,3,12 (b) The legislature recognizes that title to natural lake beds as existing at statehood, including those in the Great Lakes, generally is held by the state. State v. Bleck, 114 Wis. 2d 454 (1983); Illinois Steel Co. v. Bilot, 109 Wis. 418 (1901); State v. Trudeau, 139 Wis. 2d 91 (1987).

SB900-SA1,3,25 (c) However, the legislature finds that the original government survey of the state included many inaccuracies, especially along bodies of water, where the boundaries between lake or river beds and other low-lying areas like wetlands are difficult to determine, even with present-day methods. The combination of the dynamic nature of Great Lakes waters and the evolution of commercial harbors, urban areas, and other lakeshore development has resulted in considerable changes in lake bed shorelines since the original government survey. In many cases, these changes occurred between the time of the government survey and the date of statehood, resulting in a lack of reliable documentation of the location of shorelines on the date of statehood. The historical record on the extent of natural or artificial changes to lake bed areas before and after statehood is often incomplete and inconclusive. Similarly, the extent to which artificial fill has been authorized and the allowable uses of lake bed areas is often unclear.

SB900-SA1,4,6 (d) The legislature declares that the uncertainty of title to and the uncertainty associated with permissible uses of some lakefront property are a substantial impediment to orderly redevelopment and transfer of valuable lakefront properties, and it is in the public interest to promote the use of upland areas in a way that provides certainty and facilitates economic development, increased tax base, and public access.

SB900-SA1,4,11 (e) The legislature declares that lakefront areas serve a variety of public purposes beyond commercial navigation and are increasingly valuable for scenic and recreational uses. Redevelopment of lakefront areas has resulted in the cleanup of contaminated areas, elimination of blight, increased economic development, increased tax base, and improved public access to and enjoyment of lake waters.

SB900-SA1,4,18 (f) The legislature declares that the best available method to establish the shoreline between a Great Lakes lake bed and adjoining uplands for purposes of establishing ownership and allowable use of the adjoining uplands is the method established under s. 30.2039, as created by this act, and that this method is in the public interest, is consistent with the public trust doctrine, and promotes the most equitable method of determining the ownership and use rights applicable to lakefront property on the Great Lakes.

SB900-SA1,5,4 (g) The legislature finds, as the representative of the state with respect to the specific application of the public trust in navigable waters, that the system for establishing the shoreline of Great Lakes waters under s. 30.2039, as created by this act, is permissible under the law because this system is based upon the longstanding doctrine of accretion. In support of this finding, the legislature recognizes that courts have held that title to lake beds may be altered under the common law doctrines of accretion and reliction through both natural processes and through the placement of artificial fill. De Simone v. Kramer, 77 Wis. 2d 188 (1977); Heise v. Village of Pewaukee, 92 Wis. 2d 333 (1979); W. H. Pugh Coal Co. v. State, 105 Wis. 2d 123 (1981); Doemel v. Jantz, 180 Wis. 225 (1923); Angelo v. Railroad Com., 194 Wis. 543 (1928); Jansky v. City of Two Rivers, 227 Wis. 228 (1938).

SB900-SA1,5,10 (h) Should a reviewing court of competent jurisdiction disagree with the legislative finding in par. (g), the legislature finds that the system for establishing the shoreline of Great Lakes waters under s. 30.2039, as created by this act, is permissible under the law because the system is separately supported by the longstanding doctrine of adverse possession under both common law and the statutes. In support of this finding, the legislature recognizes all of the following:

SB900-SA1,5,13 1. Property subject to the system for establishing the shoreline of Great Lakes waters is required to have been upland for more than 40 years, which is consistent with the doctrine of adverse possession.

SB900-SA1,5,15 2. Adverse possession is a well-settled mechanism for conforming legal title to the expectations of and actual use by individuals in possession of property.

SB900-SA1,5,17 3. The legislature has authority to determine the criteria necessary to establish a claim of adverse possession against private parties or the state.

SB900-SA1,5,21 4. Multiple cases have indicated that the allowance for adverse possession of formerly submerged lands is constitutional. Illinois Steel Co. v. Bilot, 109 Wis. 418 (1901); State v. Bednarski, 1 Wis. 2d 639 (1957); State v. Adelmeyer, 221 Wis. 246 (1936).

SB900-SA1,6,12 (i) Should a reviewing court of competent jurisdiction disagree with the legislative findings in par. (g), the legislature finds that the system for establishing the shoreline of Great Lakes waters under s. 30.2039, as created by this act, is permissible under the law because the system is separately supported by case law allowing the legislature to make certain transfers of lake bed to a private party for private purposes. In particular, the legislature, as representative of the state with respect to the specific application of the public trust in navigable waters, may convey a nominal area of lake bed to a private party for private purposes if the conveyance furthers the public trust and is part and parcel of a larger scheme that is purely public in nature. Milwaukee v. State, 193 Wis. 423 (1927). The legislature finds that any transfers of former lake bed to a private party that may be held to occur under s. 30.2039, as created by this act, are nominal transfers and are part and parcel of a larger scheme that is purely public in nature, for the reasons recognized above. The department of natural resources is not required to prepare a report under s. 13.097 (2) with regard to the process by which the department may establish a shoreline under s. 30.2039, as created by this act.

SB900-SA1,6,18 (j) The legislature recognizes that in interpreting the public trust, the courts in Wisconsin have made a distinction between the ownership of the beds of navigable streams and natural lakes. For stream beds, the title is held by a fee title owner but this title is qualified by the rights of the public to use the water for navigation. Munninghoff v. Wis. Conservation Com., 255 Wis. 252 (1949); FAS, LLC v. Town of Bass Lake, 2007 WI 73.

SB900-SA1,7,2 (k) The legislature recognizes that in Muench v. Public Service Com., 261 Wis. 492 (1952), the court held that the public trust extends only to land under the stream of a navigable water so long as the land constitutes part of the bed of the stream, and if the course of the stream is changed so that the land is no longer is part of the river bed, it ceases to be impressed with the public trust. For instance, the provisions under s. 30.195 allow for the relocation of navigable streams. When such action is taken, any area that was formerly the bed of a stream is no longer subject to the public trust and may be used for any allowable private purpose.

SB900-SA1,7,9 (L) The legislature finds that river banks can move as a result of natural or artificial processes. In developed settings, major rivers and associated harbors were often used for commercial navigation, resulting in dredging of commercial channels and the placement of fill along riverbanks for piers, wharfs, seawalls, and similar structures. See, e.g., Wis. Leg. Council, “Conclusions and Recommendations of the Ports and Navigation Committee on Revision of the Ports and Navigation Laws,” 1959 Report vol. 1 (Madison, WI: Legislative Council, Jan. 1959).

SB900-SA1,7,19 (m) The legislature finds that the historic record on the extent of natural or artificial changes to the original riverbank and river bed is often incomplete and inconclusive. Similarly, the extent to which artificial fill has been authorized and the allowable uses of the original riverbank and river bed is often unclear. Historically, the state has authorized filling of riverbanks by legislative grant, permits under ch. 30, or legislative delegations to municipalities. These authorizations include pierhead lines, dock and wharf lines, dock lines, wharf lines, shorelines, bulkhead lines, and similar authorizations. Today, dredging and filling of navigable waters is regulated through permits issued by the department of natural resources under the provisions of ch. 30.

SB900-SA1,7,24 (n) The legislature finds that today, rivers and harbors serve a variety of public purposes beyond commercial navigation. Riverfront areas are increasingly valuable for scenic and recreational values. Redevelopment of riverfront areas has resulted in cleanup of contaminated areas, increased economic development, increased tax base, and improved public access to these rivers.

SB900-SA1,8,8 (o) The legislature finds that where riverfront properties in incorporated areas have been filled for an extended time, any public rights in navigable waters that existed in the submerged area were extinguished when that area became upland and pursuant to s. 30.122, as affected by this act, and riverfront properties in incorporated areas are no longer subject to the public trust. It is now in the public interest to promote the use of upland areas in a way that provides certainty and flexibility for property owners, facilitates economic development, and increases the local tax base.”.

SB900-SA1,8,9 (End)