A Doctrine Adrift: Wisconsin's Public Trust

Abstract

This short and provocative article upends the current interpretation of Wisconsin’s public trust doctrine (“PTD”). Most states have some version of a PTD, requiring the government to hold water resources in trust for the public. The current consensus is that Wisconsin’s public trust is one of the most expansive and flexible in the country. The consensus is wrong. Wisconsin’s PTD is based upon language in the state constitution, and it is therefore limited by that language. But strangely, no court or commentator has ever examined that language under standard rules of constitutional interpretation. This article tackles that task and reveals that the state’s public trust, properly understood, is quite narrow. Simply put, most of Wisconsin’s vast PTD lacks a legal foundation.