Reps. Clark and Wachs Issue Warning: Mining Bill Violates Public Trust Doctrine

 February 22, 2013 by Barbara With
Rep. Fred Clark (D-Baraboo) in the back row listening to testimony from GTac at the 1/23/13 mining hearing.

Rep. Fred Clark (D-Baraboo) in the back row listening to testimony from GTac at the 1/23/13 mining hearing. Photo: Leslie Peterson

Representatives Fred Clark (D-Sauk City) and Dana Wachs (D-Eau Claire) have issued a warning calling on all legislators to reject the new mining bill SB1/AB1 on the grounds that it violates the Public Trust Doctrine. The doctrine was originally established in 1787 as a way to proclaim that all navigable waterways should be held in a public trust to be managed and protected as “common highways and forever free.”

In Wisconsin, the State Constitution declares under Article IX that rivers and lakes belong to the public and should be protected as such:

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.

According to a statement issued by the Wisconsin Legislative Reference Bureau, public rights include not only recreation, but also natural beauty, the prevention of pollution, the protection of water quality, and the protection of shorelands and wetlands.

Last month in Milwaukee, Chairman of the Bad River band Mike Wiggins Jr. delivered an eloquent speech about the importance of the 23 streams, creeks and waterways of the Penokee Hills: "Lake Superior is the last stronghold for clean water. The Bad River tribe is economically poor, although we are the biggest employers in Ashland County. We can't promise the people of Wisconsin monetary riches. But absent a mine, we can promise clean, filtered water, a continued supply of lake sturgeon, walleye and perch, and unbelievably expansive and beautiful wild rice beds." Photo: Rebecca Kemble

Last month in Milwaukee, Chairman of the Bad River band Mike Wiggins Jr. delivered an eloquent speech about the importance of the 23 streams, creeks and waterways of the Penokee Hills: “Lake Superior is the last stronghold for clean water. The Bad River tribe is economically poor, although we are the biggest employers in Ashland County. We can’t promise the people of Wisconsin monetary riches. But absent a mine, we can promise clean, filtered water, a continued supply of lake sturgeon, walleye and perch, and unbelievably expansive and beautiful wild rice beds.” Photo: Rebecca Kemble

Clark and Wachs assert that AB1/SB1 allows the mining company to violate the law. “Our own Legislative Council attorneys have confirmed that there has never been a precedent in Wisconsin law for allowing the state to permit destruction of navigable waters in return for ‘enhancing’ water bodies somewhere else.” The bill would allow the State to destroy navigable waterways around the mine site in return for mitigating those bodies of water elsewhere in the state.

Speculation exists whether the Bad River Band of Lake Superior Chippewa, whose reserve is a mere six miles from the mine site (which is also on ceded territory) will sue for the violation of Treaty Rights if the bill is passed. Mike Wiggins Jr. commented at a recent talk in Mikwaukee that Bad River would likely be third in line of law suits being filed against the bill. First will be conservation groups suing over violation of Public Trust, and second would be the citizens of the state.

At a recent listening session in Ashland held by Sen. Bob Jauch (D-Poplar) and Rep. Janet Bewley (D-Ashland), sentiments were almost 10 to 1 against the mining bill. Sen. Tim Cullen summed up the day by saying, ““I learned one thing here today: You can’t mitigate Lake Superior.”

The map below shows the waterways around the mine site that would be adversely affected by the project:

Map: Great Lake Indian Fish and Wildlife Commission

Map: Great Lake Indian Fish and Wildlife Commission

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3 Comments on “Reps. Clark and Wachs Issue Warning: Mining Bill Violates Public Trust Doctrine”

  1. Laura Chern February 24, 2013 at 11:17 am #

    Is it possible that the real purpose of the mine is to get rid of the Public Trust Doctrine? If Wisconsin didn’t have that, we would have Western water law in which water is appropriated and paid for by users. In a state that has more water than most others, water would become a very profitable commodity.

  2. madravenspeak February 24, 2013 at 8:43 pm #

    Why doesn’t killing our wolves and bobcats and bears and all wildlife in the most horrific ways, violate the Public Trust Doctrine, Rep. Clark? Why should a new trapper go into the state agency and pay $4 for a license and kill hundreds of animals indiscriminately in the most horrific ways and I, an unequal citizen ( along with 90% of us who do not kill wildlife ) cannot go in and pay $4 and SAVE as many animals as we want. Killing removes animals permanently for private take. Why shouldn’t we, the citizens of this state be able to pay $4 and save permanently, to keep intact holistic healthy ecosystems, our wildLIFE???

    What happened to the Wildlife PublicTrust doctrine? Hound hunters and trappers rule. We the citizens of this state demand our equal rights.

  3. Ron Legro February 25, 2013 at 9:20 am #

    Lee Dreyfus said Madison is 25 square miles surrounded by reality. But that dig also applies to the big dig — the Penokee mine would be about 25 square miles in area, and of course also a thousand feet deep. More Wisconsin residents need to wrap their heads around the idea of just how huge this mine would be — and how many more like it the relaxed mining law would allow, all over the state.

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