ROCK-KOSHKONONG LAKE DIST. v. DNR

No. 2008AP1523.

833 N.W.2d 800 (2013)

2013 WI 74

ROCK-KOSHKONONG LAKE DISTRICT, Rock River-Koshkonong Association, Inc. and Lake Koshkonong Recreational Association, Inc., Petitioners-Appellants-Petitioners, v. STATE of Wisconsin DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent, Lake Koshkonong Wetland Association, Inc. and Thiebeau Hunting Club, Intervenors-Respondents.

Supreme Court of Wisconsin.

Decided July 16, 2013.


Attorney(s) appearing for the Case

For the petitioners-appellants-petitioners, there were briefs by William P. O'Connor , Mary Beth Peranteau and Wheeler, Van Sickle & Anderson, S.C., Madison, and Arthur J. Harrington and Douglas M. Poland and Godfrey & Kahn, S.C., Milwaukee, and oral argument by William P. O'Connor and Arthur J. Harrington.

For the respondent-respondent, the cause was argued by Cynthia R. Hirsch , assistant attorney general, and the brief was filed by Joanne F. Kloppenburg , assistant attorney general, with whom on the brief was J.B. Van Hollen , attorney general.

For the intervenors-respondents, there was a brief filed by Charles V. Sweeney and Mitchell R. Olson , and Axley Brynelson, LLP, Madison, and oral argument by Charles V. Sweeney.

An amicus curiae brief was filed by Miriam Ostrov and Midwest Environmental Advocates, Inc., Madison, on behalf of the River Alliance of Wisconsin.

An amicus curiae brief was filed by Thomas D. Larson , Madison, on behalf of the Wisconsin Realtors Association.

An amicus curiae brief was filed by Elizabeth Wheeler , Madison, on behalf of Clean Wisconsin, Wisconsin Wetlands Association and Wisconsin Lakes.

An amicus curiae brief was filed by Duffy Dillon , Janesville, on behalf of the Manitowish Chain Defense Fund, LLC.

An amicus curiae brief was filed by Andrew C. Cook and Emily Stever Kelchen , and Great Lakes Legal Foundation, Inc., Madison, on behalf of Wisconsin Manufacturers & Commerce and Midwest Food Processors Association.


DAVID T. PROSSER, J.

¶ 1 This case, involving a dispute about the water levels on Lake Koshkonong, presents fundamental questions about the authority of the Wisconsin Department of Natural Resources (the DNR), and the criteria it uses in regulating the level of water in navigable waters that are affected by dams.

¶ 2 Wisconsin Stat. § 31.02(1)1 authorizes the DNR to regulate the level and flow of water in the navigable...

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