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.”
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.
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: