My first real law job was working in the Bureau of Legal Services at the Wisconsin Department of Natural Resources doing work on wetlands regulation, in particular the state’s authority to regulate wetlands under Chapter 30 and the Wisconsin State Constitution as well as the state’s authority to take over jurisdiction over wetlands post-SWANCC as a result of 2001 WI Act 6. Wisconsin wetlands jurisprudence, with cases like Just v. Marinette Co., was considered to be constitutional jurisprudence due to Article IX, section 1 of the Wisconsin Constitution. It provides that “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 as to the inhabitants of the state as to the citizens of the United States.” I wrote about this extensively in my article "Environmentalism and the Wisconsin Constitution."

That is why the recent decision by the Wisconsin Supreme Court regarding wetlands jurisprudence is so disappointing. There is excellent description and commentary here at Environmental Law Prof Blog by Robin Kundis Craig. As Robin notes, The Court’s "reinterpretation of Just and its reversal of the Wisconsin Court of Appeals divorced WDNR’s regulatory authority from its constitutional public trust doctrine duties." Might my favorite quote from Just v. Marinette County be no more? "An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others."

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