LRBa1291/1
ZDW:skw
2021 - 2022 LEGISLATURE
SENATE AMENDMENT 1,
TO SENATE BILL 900
February 16, 2022 - Offered by Senator Stroebel.
SB900-SA1,1,4
21. Page 2, line 2: delete “all of the following:" and substitute “the portions of
3all of the following rivers that are within the Great Lakes basin and within
4incorporated areas:".
SB900-SA1,1,10
10“(f) Kinnickinnic River, Menomonee River, and Milwaukee River.”.
SB900-SA1,2,11
1014. Page 7, line 8: after “841.10." insert “A determination under this section
11shall be recorded with the register of deeds.".
SB900-SA1,2,19
13“
885.335 Actions concerning real estate near Great Lakes waters or
14commercial rivers. (1) No claim or counterclaim may be made in an action
15relating to the possession or title of any real estate if the claim or counterclaim is
16based on an assertion that the property includes portions of land that may have at
17one time been submerged beneath a Great Lakes water if such portions of land are
18upland, as defined in s. 30.2039 (1) (e), and the property is not subject to a lake bed
19grant or submerged land lease.
SB900-SA1,3,2
20(2) No claim or counterclaim may be made in an action relating to the allowable
21use of any real estate if the claim or counterclaim is based on an assertion that the
22property includes portions of land that may have at one time been submerged
23beneath a commercial river, as defined in s. 30.01 (1h), or an assertion that the
1allowable use of the property is otherwise limited by a prior approval issued by the
2state or a local government, if s. 30.122 (2) is applicable to such portions of land.
SB900-SA1,3,4
4(1) Legislative findings.
SB900-SA1,3,8
5(a) The legislature recognizes and declares that the state is the trustee of the
6public trust established under article IX, section 1, of the Wisconsin Constitution and
7that the legislature is authorized as representative of the state to exercise the
8function of the trustee of that public trust in matters of specific application.
SB900-SA1,3,129
(b) The legislature recognizes that title to natural lake beds as existing at
10statehood, including those in the Great Lakes, generally is held by the state.
State
11v. Bleck, 114 Wis. 2d 454 (1983);
Illinois Steel Co. v. Bilot, 109 Wis. 418 (1901);
State
12v. Trudeau, 139 Wis. 2d 91 (1987).
SB900-SA1,3,2513
(c) However, the legislature finds that the original government survey of the
14state included many inaccuracies, especially along bodies of water, where the
15boundaries between lake or river beds and other low-lying areas like wetlands are
16difficult to determine, even with present-day methods. The combination of the
17dynamic nature of Great Lakes waters and the evolution of commercial harbors,
18urban areas, and other lakeshore development has resulted in considerable changes
19in lake bed shorelines since the original government survey. In many cases, these
20changes occurred between the time of the government survey and the date of
21statehood, resulting in a lack of reliable documentation of the location of shorelines
22on the date of statehood. The historical record on the extent of natural or artificial
23changes to lake bed areas before and after statehood is often incomplete and
24inconclusive. Similarly, the extent to which artificial fill has been authorized and the
25allowable uses of lake bed areas is often unclear.
SB900-SA1,4,6
1(d) The legislature declares that the uncertainty of title to and the uncertainty
2associated with permissible uses of some lakefront property are a substantial
3impediment to orderly redevelopment and transfer of valuable lakefront properties,
4and it is in the public interest to promote the use of upland areas in a way that
5provides certainty and facilitates economic development, increased tax base, and
6public access.
SB900-SA1,4,117
(e) The legislature declares that lakefront areas serve a variety of public
8purposes beyond commercial navigation and are increasingly valuable for scenic and
9recreational uses. Redevelopment of lakefront areas has resulted in the cleanup of
10contaminated areas, elimination of blight, increased economic development,
11increased tax base, and improved public access to and enjoyment of lake waters.
SB900-SA1,4,1812
(f) The legislature declares that the best available method to establish the
13shoreline between a Great Lakes lake bed and adjoining uplands for purposes of
14establishing ownership and allowable use of the adjoining uplands is the method
15established under s. 30.2039, as created by this act, and that this method is in the
16public interest, is consistent with the public trust doctrine, and promotes the most
17equitable method of determining the ownership and use rights applicable to
18lakefront property on the Great Lakes.
SB900-SA1,5,419
(g) The legislature finds, as the representative of the state with respect to the
20specific application of the public trust in navigable waters, that the system for
21establishing the shoreline of Great Lakes waters under s. 30.2039, as created by this
22act, is permissible under the law because this system is based upon the longstanding
23doctrine of accretion. In support of this finding, the legislature recognizes that courts
24have held that title to lake beds may be altered under the common law doctrines of
25accretion and reliction through both natural processes and through the placement
1of artificial fill.
De Simone v. Kramer, 77 Wis. 2d 188 (1977);
Heise v. Village of
2Pewaukee, 92 Wis. 2d 333 (1979);
W. H. Pugh Coal Co. v. State, 105 Wis. 2d 123 (1981);
3Doemel v. Jantz, 180 Wis. 225 (1923);
Angelo v. Railroad Com., 194 Wis. 543 (1928);
4Jansky v. City of Two Rivers, 227 Wis. 228 (1938).
SB900-SA1,5,105
(h) Should a reviewing court of competent jurisdiction disagree with the
6legislative finding in par. (g), the legislature finds that the system for establishing
7the shoreline of Great Lakes waters under s. 30.2039, as created by this act, is
8permissible under the law because the system is separately supported by the
9longstanding doctrine of adverse possession under both common law and the
10statutes. In support of this finding, the legislature recognizes all of the following:
SB900-SA1,5,13
111. Property subject to the system for establishing the shoreline of Great Lakes
12waters is required to have been upland for more than 40 years, which is consistent
13with the doctrine of adverse possession.
SB900-SA1,5,15
142. Adverse possession is a well-settled mechanism for conforming legal title to
15the expectations of and actual use by individuals in possession of property.
SB900-SA1,5,17
163. The legislature has authority to determine the criteria necessary to establish
17a claim of adverse possession against private parties or the state.
SB900-SA1,5,21
184. Multiple cases have indicated that the allowance for adverse possession of
19formerly submerged lands is constitutional.
Illinois Steel Co. v. Bilot, 109 Wis. 418
20(1901);
State v. Bednarski, 1 Wis. 2d 639 (1957);
State v. Adelmeyer, 221 Wis. 246
21(1936).
SB900-SA1,6,12
22(i) Should a reviewing court of competent jurisdiction disagree with the
23legislative findings in par. (g), the legislature finds that the system for establishing
24the shoreline of Great Lakes waters under s. 30.2039, as created by this act, is
25permissible under the law because the system is separately supported by case law
1allowing the legislature to make certain transfers of lake bed to a private party for
2private purposes. In particular, the legislature, as representative of the state with
3respect to the specific application of the public trust in navigable waters, may convey
4a nominal area of lake bed to a private party for private purposes if the conveyance
5furthers the public trust and is part and parcel of a larger scheme that is purely
6public in nature.
Milwaukee v. State, 193 Wis. 423 (1927). The legislature finds that
7any transfers of former lake bed to a private party that may be held to occur under
8s. 30.2039, as created by this act, are nominal transfers and are part and parcel of
9a larger scheme that is purely public in nature, for the reasons recognized above. The
10department of natural resources is not required to prepare a report under s. 13.097
11(2) with regard to the process by which the department may establish a shoreline
12under s. 30.2039, as created by this act.
SB900-SA1,6,1813
(j) The legislature recognizes that in interpreting the public trust, the courts
14in Wisconsin have made a distinction between the ownership of the beds of navigable
15streams and natural lakes. For stream beds, the title is held by a fee title owner but
16this title is qualified by the rights of the public to use the water for navigation.
17Munninghoff v. Wis. Conservation Com., 255 Wis. 252 (1949);
FAS, LLC v. Town of
18Bass Lake, 2007 WI 73.
SB900-SA1,7,219
(k) The legislature recognizes that in
Muench v. Public Service Com., 261 Wis.
20492 (1952), the court held that the public trust extends only to land under the stream
21of a navigable water so long as the land constitutes part of the bed of the stream, and
22if the course of the stream is changed so that the land is no longer is part of the river
23bed, it ceases to be impressed with the public trust. For instance, the provisions
24under s. 30.195 allow for the relocation of navigable streams. When such action is
1taken, any area that was formerly the bed of a stream is no longer subject to the
2public trust and may be used for any allowable private purpose.
SB900-SA1,7,93
(L) The legislature finds that river banks can move as a result of natural or
4artificial processes. In developed settings, major rivers and associated harbors were
5often used for commercial navigation, resulting in dredging of commercial channels
6and the placement of fill along riverbanks for piers, wharfs, seawalls, and similar
7structures. See, e.g., Wis. Leg. Council, “Conclusions and Recommendations of the
8Ports and Navigation Committee on Revision of the Ports and Navigation Laws,”
91959 Report vol. 1 (Madison, WI: Legislative Council, Jan. 1959).
SB900-SA1,7,1910
(m) The legislature finds that the historic record on the extent of natural or
11artificial changes to the original riverbank and river bed is often incomplete and
12inconclusive. Similarly, the extent to which artificial fill has been authorized and the
13allowable uses of the original riverbank and river bed is often unclear. Historically,
14the state has authorized filling of riverbanks by legislative grant, permits under ch.
1530, or legislative delegations to municipalities. These authorizations include
16pierhead lines, dock and wharf lines, dock lines, wharf lines, shorelines, bulkhead
17lines, and similar authorizations. Today, dredging and filling of navigable waters is
18regulated through permits issued by the department of natural resources under the
19provisions of ch. 30.
SB900-SA1,7,2420
(n) The legislature finds that today, rivers and harbors serve a variety of public
21purposes beyond commercial navigation. Riverfront areas are increasingly valuable
22for scenic and recreational values. Redevelopment of riverfront areas has resulted
23in cleanup of contaminated areas, increased economic development, increased tax
24base, and improved public access to these rivers.
SB900-SA1,8,8
1(o) The legislature finds that where riverfront properties in incorporated areas
2have been filled for an extended time, any public rights in navigable waters that
3existed in the submerged area were extinguished when that area became upland and
4pursuant to s. 30.122, as affected by this act, and riverfront properties in
5incorporated areas are no longer subject to the public trust. It is now in the public
6interest to promote the use of upland areas in a way that provides certainty and
7flexibility for property owners, facilitates economic development, and increases the
8local tax base.”.
