Wisconsin Constitutional Crisis in the Making???

In January of this year, the Milwaukee Journal-Sentinel published a blog which referenced the Wisconsin state constitution and its protection of waters flowing to the Mississippi and St. Lawrence rivers as a public trust. This blog is referenced below:


In addition, today I received an email from the Madison Action for Mining Alternatives group. This is reproduced in full below (except for the hyperlinks following the text of the email). PLEASE CONTACT YOUR ASSEMBLY REP AND YOUR STATE SENATOR AND URGE A VOTE AGAINST SB1/AB1 LATER THIS WEEK!  

February 19, 2013

RE: Mining Bill Threatens ALL of Wisconsin's Water - Act Now!

Dear Wisconsin Citizen,

As someone who shares a direct connection with our Wisconsin lakes and streams, we're contacting you today about the legislature's upcoming votes on Assembly Bill 1 and Senate Bill 1 (AB1/SB1), which make drastic changes to Wisconsin's ferrous mining laws. As you may know, AB1 and SB1 have moved quickly through committees and could be voted on in either house of the legislature at any time. But the debate is not over yet ...

Among the many other changes to our environmental laws, these bills would permit mining operations to fill lakes, ponds, and stream channels with mining waste.

To visualize the possible impacts from changes this would create to navigable waters, we asked for an independent analysis. The map below shows in red those streams and lakes near the Penokee Range that could be permitted for alteration or destruction based on standards for navigable water impacts now in the bill.


When we first saw that map on Friday we had just one reaction: Wow!

The degree of alteration or outright obliteration of lakes and streams that could be allowed under this proposal, for the benefit of a private corporation, has never even been considered in Wisconsin before.

Not only does the mining bill exempt iron mining from a long list of basic environmental protections, it threatens the long tradition of protection for navigable waters that have existed since before Wisconsin became a state.

For people who care about water and our tradition of protecting waters, AB1/SB1 represents an unprecedented rollback of one of the bedrock principles that protects our lakes, streams and rivers for the benefit of the public - our Public Trust Doctrine.

Article IX of the Wisconsin Constitution states that, " ... the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free ... ". This exact language, and the commitment it creates to protecting our waters as a public trust, comes directly
from the Northwest Ordinance of 1787 - one of the most important acts of our early Continental Congress, and which was later passed by the United States Congress and signed into law by George Washington.

Since 1865, executive agencies, the legislature, and our Supreme Court have consistently interpreted the Public Trust Doctrine to create a clear responsibility to protect the waters of the state from activities that would cause their destruction - from the Great Lakes to the smallest streams. Our public rights in water include the right to navigation, as well as rights to recreation, natural beauty, the prevention of pollution, the protection of water
quality, and the protection of shorelands and wetlands.

However, with the stroke of a pen, passage of AB1/SB1 would open the door wide to violating that tradition.

This mining bill, for the first time in Wisconsin, makes destruction of navigable waters permissible if a mining company takes "mitigation" measures in other locations. It also requires the WDNR to permit such activities under a more vague and much weaker set of standards that adds the word "significantly" to what are currently the absolute requirements to protect the public's rights and interests in navigable water, and protect the rights of riparian owners.

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. We believe that such a policy is squarely in conflict with our Public Trust Doctrine.

Anyone who understands water knows that you cannot "mitigate" filling in a lake, or erasing a stream right off the map. What's more, if such a precedent were to be established in Wisconsin case law for one activity, our Public Trust Doctrine would be weakened, and every citizen with a stake in our healthy lakes and streams could
be affected.

The effects of AB1/SB1 are huge, and would be felt far beyond the Penokee Hills. As affirmed by attorneys in our Legislative Council, AB1/SB1 will " ... make it more likely that the WDNR would approve mining activities in or near navigable waters."

We do not oppose responsible mining. But selling off our public waters to the highest bidder is bad policy and bad precedent. The place to stop this bad idea is right here.

We have only a very short time until AB1/SB1 heads to the floor of the Senate and Assembly for a full vote. If you share our concerns, please contact your Senator or Assembly Representative as soon as possible. Let them know you expect them to take our constitution seriously and you expect them to oppose any law that weakens protections for the waters of Wisconsin.

Rep. Fred Clark
81st Assembly District

Rep. Dana Wachs
91st Assembly District  



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