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10/04/83 STATE WISCONSIN v. MARTIN C. BLECK

October 4, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT
v.
MARTIN C. BLECK, DEFENDANT-APPELLANT-PETITIONER; STATE OF WISCONSIN, PLAINTIFF-RESPONDENT V. BRYAN J. KELENY, DEFENDANT-APPELLANT-PETITIONER; STATE OF WISCONSIN, PLAINTIFF-RESPONDENT V. WILLIAM B. PRINCE, DEFENDANT-APPELLANT-PETITIONER



Review of a decision of the Court of Appeals. Affirming William A. Bablitch, J.

The opinion of the court was delivered by: Bablitch

This is a review of an unpublished decision of the court of appeals affirming judgments of the circuit court for Dane county, Honorable Moria Krueger, Judge. Martin Bleck, Bryan Keleny and William Prince (petitioners) were convicted of violating sec. 30.15(1) (d), Stats., which provides that anyone who constructs or places any structure or deposits any material in navigable waters in violation of sec. 30.12 or 30.13, is subject to a forfeiture not to exceed $50.

The issues presented for review are:

1) What are "navigable waters" within the meaning of secs. 30.12 and 30.15, Stats., for the purpose of establishing the state's jurisdiction under those statutes?

2) Is sec. 30.12, Stats., applicable to the petitioners' placement of a water ski jump on the bed of a navigable lake?

3) Does the application of sec. 30.12, Stats., to the petitioner's placement of a water ski jump that is secured to the bed of a navigable lake violate the public trust doctrine?

4) Does sec. 30.12, Stats., violate the equal protection guarantees of the United States or Wisconsin Constitutions?

We conclude that "navigable waters" under secs. 30.12 and 30.15, Stats., for the purpose of establishing the state's jurisdiction, are waters that are navigable in fact. We also conclude that sec. 30.12 is applicable to the petitioners' placement of the ski jump. Finally, we conclude that sec. 30.12 and its application to the petitioners neither violates the public trust doctrine nor denies the petitioners equal protection of the law. We affirm the decision of the court of appeals.

In the spring of 1980, the petitioners placed a water ski jump on Bass Lake, which is located in Dane county. The ski jump measured twenty-two feet by fourteen feet by six feet, and either rested on the lake bed or was secured to the lake bottom by ropes connected to four sixteen-gallon drums filled with concrete.

In May, 1980, the petitioners, who are not riparian owners, applied to the department of natural resources (DNR) for a permit to place the ski jump on Bass Lake, pursuant to sec. 30.12, Stats. Sec. 30.12 1979-80, provided in relevant part: *fn1

"Structures and deposits in navigable waters prohibited; exceptions; penalty.

"(1) General prohibition. Except as provided under sub. (4), unless a permit has been granted by the department pursuant to statute or the legislature has otherwise authorized structures or deposits in navigable waters, it is unlawful:

"(a) To deposit any material or to place any structure upon the bed of any navigable water where no bulkhead line has been established; or

"(b) To deposit any material or to place any structure upon the bed of any navigable water beyond a lawfully established bulkhead line.

"(2) Permits to place structures or deposits in navigable waters. (a) The department may, upon application and after notice and hearing, grant to any riparian owner a permit to build or maintain for his own use a structure otherwise prohibited by statute, provided such structure does not materially obstruct navigation or reduce the effective flood flow capacity of a stream and is not detrimental to the public interest."

The petitioners' application was accompanied by a letter from a riparian owner, who advised that he owned property on Bass Lake and had given the petitioners permission to have access to the lake across his property and to dock their boat adjacent to his land. The owner did not, however, individually apply for a sec. 30.12, Stats., permit.

DNR rejected the application because it was not made by a riparian owner, as required by sec. 30.12, Stats. The petitioners left the ski jump on Bass Lake during the summer of 1980, even though DNR had not issued a permit. On September 17, 1980, a warden from DNR observed the ski jump still on the lake. He issued citations to the petitioners pursuant to sec. 30.15(1) (d) for violation of sec. 30.12.

After a trial to the circuit court, the court found the petitioners guilty of violating sec. 30.15(1) (d), Stats., and imposed a forfeiture of $50 on each. The court found that Bass Lake is a navigable lake within the meaning of sec. 30.10(1). The court also determined that sec. 30.12 is applicable to the petitioner's ski jump, and it concluded that sec. 30.12 did not violate the public trust doctrine or the equal protection guarantees of the Wisconsin and United States Constitutions.

The petitioners appealed to the court of appeals, which affirmed the circuit court. The petitioners filed a ...


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