VIII,11 Transportation Fund. Section 11 [As created Nov. 2014] All funds collected by the state from any taxes or fees levied or imposed for the licensing of motor vehicle operators, for the titling, licensing, or registration of motor vehicles, for motor vehicle fuel, or for the use of roadways, highways, or bridges, and from taxes and fees levied or imposed for aircraft, airline property, or aviation fuel or for railroads or railroad property shall be deposited only into the transportation fund or with a trustee for the benefit of the department of transportation or the holders of transportation-related revenue bonds, except for collections from taxes or fees in existence on December 31, 2010, that were not being deposited in the transportation fund on that date. None of the funds collected or received by the state from any source and deposited into the transportation fund shall be lapsed, further transferred, or appropriated to any program that is not directly administered by the department of transportation in furtherance of the department’s responsibility for the planning, promotion, and protection of all transportation systems in the state except for programs for which there was an appropriation from the transportation fund on December 31, 2010. In this section, the term “motor vehicle” does not include any all-terrain vehicles, snowmobiles, or watercraft. [2011 J.R. 4, 2013 J.R. 1, vote Nov. 2014]

IX ARTICLE IX.

EMINENT DOMAIN AND PROPERTY OF THE STATE

IX,1 Jurisdiction on rivers and lakes; navigable waters. Section 1. 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.

The boating registration law does not violate this section. State v. Jackman, 60 Wis. 2d 700, 211 N.W.2d 480 (1973).

There is no constitutional barrier to the application of s. 30.18, regulating diversion of water, to nonnavigable waters. Omernik v. State, 64 Wis. 2d 6, 218 N.W.2d 734 (1974).

The term “forever free” does not refer to physical obstructions but to political regulations that would hamper the freedom of commerce. Capt. Soma Boat Line, Inc. v. City of Wisconsin Dells, 79 Wis. 2d 10, 255 N.W.2d 441 (1977).

A fisherman who violated Minnesota and Wisconsin fishing laws while standing on the Minnesota bank of the Mississippi River was subject to Wisconsin prosecution. State v. Nelson, 92 Wis. 2d 855, 285 N.W.2d 924 (Ct. App. 1979).

An ordinance that provided for exclusive temporary use of a portion of a lake for public water exhibition licensees did not offend the public trust doctrine. State v. Village of Lake Delton, 93 Wis. 2d 78, 286 N.W.2d 622 (Ct. App. 1979).

It is appropriate to extend the public trust doctrine to include navigable waters and the shores appurtenant to ensure public access and free use of the waters. State v. Town of Linn, 205 Wis. 2d 426, 556 N.W.2d 394 (Ct. App. 1996), 95-3242.

A cause of action cannot be based only on a general allegation of a violation of the public trust doctrine. Borsellino v. DNR, 2000 WI App 27, 232 Wis. 2d 430, 606 N.W.2d 255, 99-1220.

There is no constitutional foundation for public trust jurisdiction over land, including non-navigable wetlands, that is not below the ordinary high water mark of a navigable lake or stream. This section does not vest the state with constitutional trust powers to “protect” scenic beauty by regulating non-navigable land bordering lakes and rivers. Rock-Koshkonong Lake District v. DNR, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800, 08-1523.

Riparian rights are the bundle of private property rights that may be conferred upon a property owner by virtue of the owner’s contiguity to a navigable body of water, subject to and limited to some extent by the public trust doctrine. Common law riparian rights may include: the right to reasonable use of the waters for domestic, agricultural, and recreational purposes; the right to use the shoreline and have access to the waters; the right to any lands formed by accretion or reliction; the right to have water flow to the land without artificial obstruction; the limited right to intrude onto the lakebed to construct devices for protection from erosion; and the right, conditioned by statute, to construct a pier or structure in aid of navigation. Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807, 15-0583.

Under the public trust doctrine, the state holds the beds underlying navigable waters in trust for all of its citizens. The public rights protected under the public trust doctrine include boating, swimming, fishing, hunting, and preserving scenic beauty. The doctrine traditionally applies to all areas within the ordinary high water mark of the body of water. The public trust doctrine is a limit on riparian rights. Wisconsin common law has established that the right to place structures for access to navigable water is qualified, subordinate, and subject to the paramount interest of the state and the paramount rights of the public in navigable waters. This is true even when the bed is privately held, as long as the body of water is public, navigable, and created by use of public waters. Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807, 15-0583.

Portages have lost the protection of the public trust doctrine under this section. 75 Atty. Gen. 89.

The riparian rights of waterfront property owners are subordinate to the government’s authority to regulate navigable waterways under the public-trust doctrine. In this case, by removing a dam and thereby lowering the river’s water level, the government did not take the owner’s riparian right to the previous water level. The owner had no property right to have the river remain at the previous level. Kreuziger v. Milwaukee County, 60 F.4th 391 (2023).

That the Waters Shall Be Forever Free: Navigating Wisconsin’s Obligations Under the Public Trust Doctrine and The Great Lakes Compact. Johnson-Karp. 94 MLR 415 (2010).

A Breach of Trust: Rock-Koshkonong Lake District v. State Department of Natural Resources and Wisconsin’s Public Trust Doctrine. Mittal. 98 MLR 1467 (2015).

A New Must of the Public Trust: Modifying Wisconsin’s Public Trust Doctrine to Accommodate Modern Development While Still Serving the Doctrine’s Essential Goals. Derus. 99 MLR 447 (2015).

Wisconsin’s Public Trust Doctrine: A New Framework for Understanding the Judiciary’s Role in Protecting Water Resources. Schinner. 2015 WLR 1129.

The “Invisible Lien”: Public Trust Doctrine Impact on Real Estate Development in Wisconsin. Harrington. Wis. Law. May 1996.

IX,2 Territorial property. Section 2. The title to all lands and other property which have accrued to the territory of Wisconsin by grant, gift, purchase, forfeiture, escheat or otherwise shall vest in the state of Wisconsin.

IX,3 Ultimate property in lands; escheats. Section 3. The people of the state, in their right of sovereignty, are declared to possess the ultimate property in and to all lands within the jurisdiction of the state; and all lands the title to which shall fail from a defect of heirs shall revert or escheat to the people.

X ARTICLE X.

EDUCATION

X,1 Superintendent of public instruction. Section 1. [As amended Nov. 1902 and Nov. 1982] The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties and compensation shall be prescribed by law. The state superintendent shall be chosen by the qualified electors of the state at the same time and in the same manner as members of the supreme court, and shall hold office for 4 years from the succeeding first Monday in July. The term of office, time and manner of electing or appointing all other officers of supervision of public instruction shall be fixed by law. [1899 J.R. 16, 1901 J.R. 3, 1901 c. 258, vote Nov. 1902; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982]

This section confers no more authority upon school officers than that delineated by statute. Fortney v. School District, 108 Wis. 2d 167, 321 N.W.2d 225 (1982).

The legislature may not give any “other officer” authority equal or superior to that of the State Superintendent of Public Instruction. Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d 123 (1996), 95-2168.

The State Superintendent of Public Instruction’s supervisory authority under this section is an executive function. However, the state superintendent’s powers and duties are set by the legislature. The state superintendent, therefore, has two different sources for its authority. The source for the state superintendent’s rulemaking authority is legislative delegation. Because rulemaking is not “supervision of public instruction” within the meaning of this section, it is of no constitutional concern whether the governor is given equal or greater legislative authority than the state superintendent in rulemaking. Koschkee v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600, 17-2278.