This page is an archive to document the successful six-year effort 2014-2020 (plus any ongoing related concerns, like in 2022) by ordinary citizens to protect the Public Trust Doctrine in Sturgeon Bay, WI. The materials below are in roughly reverse chronological order, most recent first. Also, see a gallery of images and maps. Also, read the Case Summary from Midwest Environmental Advocates (and as pdf). Also see everything we worked on in parallel, in support of a vibrant public waterfront.

This is a long story – a very difficult few years of seeking to hold local and state government and elected officials to the law and to protecting public resources, which, of course, should be the case to start with. The story is only partly told here. It is one full of heart and of inspiring people, too.

Friends of Sturgeon Bay Public Waterfront

15 April 2022 The Struggle Continues; the Governor stands up for the Public Trust Doctrine

​Read Governor Evers' veto of the troubling Republic legislation SB900 which sought to undermine the Public Trust Doctrine. "I am vetoing this bill in its entirety because I object to impinging on the constitutional public trust doctrine under Article IX, Section 1 of the Wisconsin Constitution. This bill would open the door to the whittling away of public land by allowing the transfer of public lands to private entities without a rigorous review process." Thank you, Governor. 

17 January 2020 Final Conclusion

​Read the Amended Judgment, reflecting the final OHWM Ruling and protection in the Public Trust below OHWM on Parcels 92 and 100. This is the final, successful, conclusion.

26 October 2019

​The WDNR OHWM Determination of January 2019 is now permanent. (Distressingly, a few landowners had contested the WDNR OHWM Determination of January 2019; their case was dismissed in late August, and the period for appeal of the dismissal has now expired. See one letter regarding this.)

05 April 2019

​The Judge Huber Ruling of February 2017 is now permanent. The appeal of that ruling has been voluntarily withdrawn.

 (Huber's ruling said that the City needed an OWHM determination on Parcel 92... and noted that it seemed to be all or nearly all of Parcel 92 in the Public Trust below that OHWM. See Feb 2017 below for ruling details.)

03 November 2019 Spring Forward Sturgeon Bay!

The issue of  the Ordinary High Water Mark location at the west waterfront parcel is finally over! The opportunity for the last contrarian appeal expired late last month. Judge Huber’s ruling in February 2017 which affirmed our constitutional right is controlling. The WDNR’s January 2019 determination of the OHWM at the Meander Line is final. The roughly 320 feet of filled lakebed from the Meander Line to the bulkhead is held in trust for the people.

This happened because of you!

Each of our community of Friends took the lead at some time to; speak at a meeting, send a letter, run for office, write an email, post on facebook, circulate petitions, bake cookies, drive to Madison for a meeting, research a topic, host an art show, start an organization or make a donation. Our wonderful, brilliant, leaderless collective of Friends got the job done. The community found a way and pooled what we had; our time, talent, voices, money, song and spirit. Heartfelt thanks from all of us, to all of us. And a special thank you to the plaintiffs for taking the step of publicly speaking to power. 

Sometime in our lifetime and beyond people will visit the Sturgeon Bay waterfront and remark that they love the way this place feels and they might say “I wonder who did this…” well, it was you! Your work will have a lasting effect on Sturgeon Bay and it is inspiring other communities to save what they have.

Let’s not fall back, let’s 
spring forward and continue to live the reality of a Sturgeon Bay community that is vibrant, caring, interesting and welcoming.

03 January 2019 OHWM Ruling

​A GREAT DAY!! DNR ruling on West Waterfront approved by City and Friends sets clear path for public and private development

The Friends of the Sturgeon Bay Public Waterfront are pleased to announce that the WDNR has issued a Declaratory Ruling establishing the exact location of the Ordinary High Water Mark (“OHWM”) on Sturgeon Bay’s Westside Waterfront.

 “This is a victory for Sturgeon Bay, for Wisconsin and defenders of the Constitution everywhere”, said Shawn Fairchild of the Friends. “Public rights matter. The Public Trust Doctrine has been championed by the Friends and the current City Council for the Westside Waterfront”.

 Dan Collins of the Friends said, “The location of the OHWM at the US Government 1835 Meander Line for Parcel 92 has the support of both the City Council and the Friends. The City has provided a survey of the line. The DNR Ruling states: ‘The City of Sturgeon Bay and the Friends of Sturgeon Bay Public Waterfront et. al. subsequently conferred and negotiated and now agreed to settle the issue of the location of the meander line/OHWM on Parcel 92 as declared in this department ruling and as shown on the attached Site Plan’” .

“This definitive line protects the City’s investments in future developments. A strong Public Trust Doctrine is an important tool for revitalization. Public open space along waterfronts is a rare commodity and the cornerstone of a strong, secure economy. It is also a gift to the future,” said Shawn Fairchild. “We are glad that the delineation will offer both an outstanding waterfront parcel for public space surrounding the former Granary location and ample lands available for commercial development”.

 “For years we have not wavered from the best interests of the public, relying on science and the State’s Constitution to lead the way. We are very excited about this decision. It is a great start for 2019 and the opportunities ahead for the citizens of Sturgeon Bay”, said Kathleen Finnerty of the Friends.

Read the WDNR Ruling

2018 - Year of Waiting

03 October 2018

​We are pleased to see signs of progress toward resolution in the recent Common Council agendas, but are frustrated with delays. It seems like this would have been resolved some time ago if the City's plate weren't so full and seemingly complex.

​08 June 2018, 21 May 2018

​The DNR’s recent withdrawal of their OHWM ruling, which acknowledges the lack of evidence for their flawed line, is very good news. Judge Huber’s 2017 permanent injunction against the sale of Parcel 92 for private development stands. The DNR has indicated that it can’t offer a specific or expeditious timeline for taking further action on the Friends’ petition for an OHWM ruling, and has therefore suggested that the City and the Friends together bring forward a proposed fact-based OHWM for DNR consideration. Such an OHWM, if approved by DNR and Judge Huber, would then modify the injunction to allow the non-public-trust portion of Parcel 92 above the OHWM to be sold. And we would be done. Friends are working to resolve this matter expeditiously.

There is now only one legal action pending (although it is paused for the moment), and that is the City’s appeal of Judge Huber’s final March 2017 ruling. With the DNR recently re-asserting that the Public Trust Doctrine protection does indeed apply to filled lakebed, we hope that the City will withdraw their appeal.

February-May 2018

DNR had previewed a preliminary ruling (six months before receiving testimony at the hearing) and then issued it (six months after receiving testimony). The ruling spent a great deal of content clarifying the importance of the public trust, the legal basis, DNR’s role in protecting the public interest in waters and in filled lakebed (all good) … then incompletely defined an indefensible and nonsensical line with wrong math (bad). The parties appealed. DNR withdrew the ruling (good). Argh.

In April, a new city council has a majority in support of the public trust doctrine. On a personal note added in 2022: without courageous and honorable people running for local office and state office and enough being elected, the public trust doctrine might not have carried the day. When municipal staff and elected officials at local and state levels have a “who’s gonna make us follow the law” attitude, and inject politics into agencies too, it’s very, very hard.

28 January 2018 STILL waiting (waiting since the public hearing September 6th). 

​See media, DNR Dragging Feet on High Water Mark Declaration. "Rasmussen said DNR staff is looking at the historical record, a wide variety of maps, and other records to determine a line. He did not say if the department has turned up any new evidence other than the trove of historical documents, maps, and images presented at the September hearing."

As simply as possible:

​1. "Everyone knows this is all fill" (City development director). Filled lakebed is subject to the State Constitution's Public Trust Doctrine protection, restricting the filled land ("made land") for approved public and maritime use.

2. The 1873 City Plat map (left image, below) is the first plat map/survey in Sturgeon Bay, and the shoreline is shown. Other later maps actually show some shorelines landward of this.

3. The City's soil borings (right image) clearly confirm the 1873 shoreline is about right. Only one soil boring, WMW6, in the corner near Maple, indicates it is near the shoreline. The others show several feet of artificial fill (the old dock).

That's it. Seems simple.

2017 - The Year We Won in Court, then months filled with stress and bad local politics, then a Declaratory Ruling Hearing

13 October 2017 In Another Court Case

 Another Wisconsin Circuit Court just upheld with strong language the Public Trust Doctrine. See Midwest Environmental Advocates information

 "This Court is bound by nearly 120 years of precedent and a long rich history in this State of respecting the Wisconsin Constitution and its fundamental protection of the waters of the State for the enjoyment of all."

02 October 2017 Amicus Brief Filed to City's Appeal

While awaiting the DNR determination, unfortunately we are having to deal with the City's appeal of Judge Huber's clear ruling in favor of Friends. Read our response here. And (new), read our Amicus Brief filed today.

“Wisconsin has vigorously followed the following public trust principles: (1) The State holds a ‘legal title’ and Wisconsin citizens have an ‘equitable title’ in the public trust bottomlands and waters of the Great Lakes... Whether filled or unfilled, the bottomlands of the Great Lakes are considered to be fully vested in and owned by the State as sovereign. (2) Control and uses of state-owned bottom lands cannot be transferred except by express legislative grant. (3) If there is an express legislative grant, state-owned bottomlands cannot be conveyed or transferred to private owners or for private purposes. (4) Any transfers of control or authorized uses must achieve a public purpose consistent with the public trust. Any express legislative grant must be based on explicit determinations that establish a primary public purpose (such as public access and uses including navigation, fishing, boating, and recreation) and no impairment of the State’s legal and public’s equitable title in the waters, bottomlands, and public trust uses.”

17 September 2017 DNR Public Hearing and Public Testimony Complete

More than a dozen community members from Friends provided spoken and written testimony at the Public Hearing held September 6th in Sturgeon Bay. Read our compelling testimony of abundant and consistent facts and evidence below. 

We also provided supplemental testimony prior to the deadline of September 15th. 

Now DNR staff review all information and proceed with a determination as to Ordinary High Water Mark on Parcel 92. 

Read our Letter to the Editor here. Thank you to all who provided testimony!

And a reminder to the City: Both Council and WRA and City Atty were reminded in July 2015, prior to any lawsuit, that there was NO OHWM determination on Parcel 92 - by Ald. Catarozoli, by DNR, by MEA, by Dan Collins (Dan's audio below). For video or transcript, let us know.

Testimony provided at September 6th, 2017 Public Hearing held by DNR in Sturgeon Bay as part of the  Ordinary High Water Mark Determination process:

Speaker 1 script, slides - Overview

Speaker 2 script, slides - Historical Platted Shorelines

Speaker 3 script, slides - U.S. Public Land Survey

Speaker 4+5 script, slides - Map and Newspaper Evidence

Speaker 6 script, slides - Photo Evidence

Speaker 7 script, slides - Physical Evidence

Speaker 8 script, slides - Army Corps + Lakebed Evidence

Speaker 9 script, slides - 3D Visualization

Speaker 10 slides - Soil Cores Filled Lakebed Evidence

Speaker 12 script, slides - MEA Letter

Speaker 13 letter - DNR OHWM Process 

Historical Newspaper References - Parcel 92 is a Dock

Historical Newspaper References - Filling Around Dock

Historical Newspaper References - Little Fire Dock

U.S. Army Corps Map Series

Supplemental Written Testimony delivered by Friends of Sturgeon Bay Public Waterfront to DNR prior to September 15th, 2017 deadline for comment, as part of the DNR's Ordinary High Water Mark Determination process:

Narrative

Attachment - Soil Borings and Fill

Attachment - 1965 Photo

Attachment - Parcels Map and Legal

Attachment - Legal Description

23 August 2017 Notice of DNR Public Hearing

​Public Hearing has been officially noticed by DNR; this contains details of how to submit testimony on location of the Ordinary High Water Mark.

We are troubled and disheartened by the five non-elected members of the WRA who decided to scuttle the settlement arrived at unanimously by the Friends' delegation and the Council's unanimously appointed delegation -- in opposition to the Council's vote in favor of settlement. But we proceed with facts to the Public Hearing.

21 August 2017 Response Filed to City's Appeal

Yes, unfortunately we are having to deal with the City's appeal of Judge Huber's clear ruling in favor of Friends. Read our response here

"...The City has a duty to protect the rights of the public, and should not be heard to claim a proprietary interest adverse to the public. [...]... the City itself does not have title to Parcel 92 in a proprietary capacity. As a subdivision of State government, however, the City is in a unique position to exercise the duties of the State as trustee to preserve Parcel 92 for public access and uses related to navigation and its incidents."

07 August 2017 Public Hearing Date Planned for September 6th

 Attorneys for both City and Friends of Sturgeon Bay Public Waterfront met on Friday morning August 4th with WDNR. Items of significance were discussed. One item was the date for the public hearing of the declaratory ruling process, which is planned for Wednesday, September 6th to be held in the Greene Room at the Sturgeon Bay Library from 3 pm - 7 pm. Those wanting to offer testimony informing the Ordinary High Water Mark will be able to do so in writing as well. When we have further details we will share them.

.Friends remain hopeful that WRA will re-vote to approve settlement, prior to that date. We hope that the WRA members review all of the important information. Atty Nesbitt and Administrator Vanlieshout, who both promised June 14th to actively support the settlement, ought to be working with WRA to reconsider their vote on settlement. The unanimously reached settlement is the sanest, surest, taxpayer-dollar-saving, fastest, most positive route to resolution and brighter days of economic development for Sturgeon Bay.

01 August 2017 Common Council Votes 4-3 in favor of Settlement 

…However, on 26 July 2017, the Waterfront Redevelopment Authority (WRA) voted 5-2 against Settlement. As reported by media, the five non-elected WRA members voted against Settlement. The two elected Council members on the WRA voted for Settlement. We hope the WRA considers full information and re-votes with a majority supporting Settlement.

17 July 2017 Ad Hoc Settlement Committee Recommends Settlement

Public statement from the City's unanimously empowered ad hoc settlement committee. It was signed by the committee July 12th, 2017 and read into the public record July 17th. 

30 June 2017 Another Step

 Attorneys for Friends and for the City have DNR's commitment to move forward with an OHWM determination that is consistent with the parties' agreement.

21 June 2017 Hope 

We hope the City acts promptly to ratify the agreement reached June 14, so that the next steps with DNR can proceed.

Press Release (text is below)

 A delegation of the Friends group and the City’s ad hoc negotiating committee, administrator and counsel met for two days of facilitated discussions (June 12 and June 14) resulting in a stipulation as to the location of the ordinary high water mark (OHWM) of 92 East Maple Street. The negotiating parties anticipate that they will jointly recommend to DNR approval of an OHWM that is parallel to and 60 feet waterward of the original meander line according to the U.S. government land survey of 1835.

Additional elements of an agreement to resolve the pending litigation and appeal include the City’s commitment to an inclusive public process to redevelop the west waterfront site, to strive to maintain a scenic view and public use on 100 East Maple, and to withdraw the City Council’s resolution seeking a legislative designation of the OHWM on 92 East Maple.

The parties’ OHWM stipulation is founded in the evidence presented at trial and respects the circuit court’s previous findings as well as DNR’s 2014 OHWM concurrence determination for 100 East Maple. The parties and DNR recognize that uncertainties remain despite the historical evidence. In recognition of these uncertainties, the proposed OHWM grants the City, as riparian owner, the benefit of the doubt of the range of error inherent in the surveyed meander line, which itself was an approximation of the Lake Michigan shoreline near the time of statehood.

DNR will be asked to declare the OHWM consistent with this stipulation within the framework of the pending declaratory ruling proceeding. Supporting evidence will be placed on the record at a forthcoming hearing which will be held in Sturgeon Bay and open to the public.

(In the two days of discussions in Madison, WI facilitated by Jeremy Kautza, interim director of Madison College's Interest-Based Problem Solving (IBPS), present for the plaintiffs were Nancy Aten, Carri Catarozoli Andersson, Kathleen Finnerty and Christie Weber as well as attorneys Mary Beth Peranteau and Sarah Geers. The City was represented by Council members Laurel Hauser and David Ward, City Attorney Randy Nesbitt and City Administrator Josh Van Lieshout, and accompanied by Attorney John Greene).

07 June 2017 City Behaving Badly Again 

(1) Six days prior to our first settlement meeting (11am - 5pm Monday June 12 in Madison), one of the City's delegation, David Ward, passed a resolution 4-3 at City Council to ask the State Legislature (Rep. Kitchens / Sen. Lasee) to reverse the Court ruling and draw an Ordinary High Water Mark (OHWM) for Parcel 92 that would convert public trust lands entirely to private development - contrary to all evidence, facts and law. This unilateral action was taken six days before the Plaintiffs and the City Council are scheduled to meet for a facilitated settlement discussion. Ugh. One citizen's plea to the Council yesterday. Help us Stop the Grab of Sturgeon Bay's Public Waterfront.

(2) Meanwhile, the June 2 meeting with facilitator, and with attorneys from both City and plaintiffs, was a productive meeting to set up the framework for settlement discussions. Plaintiffs proceed with hard work and best faith and principled basis - on to Madison on Monday.

18 May 2017 Meetings Scheduled 

(1) City's attorneys Kent/Greene recommended a facilitator, Jeremy Kautza of Madison College IBPS.

(2) Kautza is meeting June 2nd with Kent/Greene and Friends' attorneys in Madison to discuss structure of settlement meetings.

(3) Kautza is not available May 31 or June 1. His first availability for all-day first settlement meeting is June 7, 12, or 14 in Madison. Friends are okay with any. City chose June 12 in Madison.

(4) Current planned attendance at first settlement meeting is from City: Ward, Hauser, VanLieshout, Nesbitt, plus Kent/Greene. From Friends: Aten, Andersson, Weber, Finnerty, plus Peranteau/Geers. And Kautza.

12 May 2017 Meetings Scheduled 

(1) Friends have agreed to meet for the first of multiple settlement discussions with City (Hauser, Ward, Vanlieshout, Nesbitt) and attorneys on May 31st or June 1st in Madison, per the City's resolution passed May 2nd. We hope for a win-win resolution that honors public trust doctrine and its benefit to long-term economic sustainability in the city.
(2) Meanwhile, a placeholder date for the Public Hearing for the DNR's Declaratory Ruling Process for determining OHWM (Ordinary High Water Mark) is  August 3rd in Sturgeon Bay, with both daytime and early evening hours to accommodate public input on OHWM. Friends and City agreed to slightly delay this hearing in order give settlement discussions the best possible opportunity for success.

03 May 2017 Council Listens to Citizens 

Glad to report pretty good news, Sturgeon Bay. At the Common Council yesterday, a substitute resolution by Catarozoli passed unanimously - creating the opportunity for Friends to meet with WDNR and City represented by Council members and Waterfront Redevelopment Authority members Hauser and Ward (not the Mayor), and also the overreach request for legislation was tabled indefinitely. We look forward to productive meetings with WDNR and Hauser/Ward and have hope for a win-win outcome.

30 April 2017 City Behaving Badly

On April 15, WDNR issued to the City a Preliminary OHWM Determination that is ludicrous. On April 18, WDNR formally agreed to Friends' petition for an open, transparent OHWM Declaratory Ruling process, setting a meeting for April 27 to discuss scheduling the hearing and details for public participation and expert witness testimony. On April 26, though, City filed an Appeal of Judge Huber's clear ruling that "all or most of Parcel 92" is in the Public Trust. This delayed discussions of the public hearing. Meantime, on April 28, City filed an agenda for the Tuesday, May 2 Council meeting - that is terrible. Items 10 and 11 combined seek to give the Mayor sole authority to effectively draw the ordinary high water mark where he wants it - he wants to exclude ALL OF PARCEL 92 - the big old granary dock - from Public Trust - in direct contradiction of the court's finding of facts - and then cooperation from the State Legislator to legislate that line. We will fight as hard as we can to stop this. Meantime, see Why the WDNR Preliminary Determination is Very Wrong. Friends of the Sturgeon Bay Public Waterfront look forward to explaining the big old granary dock to WDNR in the public hearing that will be part of the Declaratory Ruling process, so they can get it right. Maybe we can just read the trial transcript out loud with exhibits. Meantime we must also fight the Appeal - with clear facts and law on our side.

March 2017 Friends Gathering

Notice of Gathering

Other things going on:

Help us Stop the Grab of Sturgeon Bay (Feb 19).

If you have 17 minutes, listen to Carri "give a recap post-trial and look ahead to what the decision could mean for Sturgeon Bay".

Read "Facts, Laws and Ostriches", March 15th Letter to the Editor.

Read "The Unrealized Potential of Sturgeon Bay's West Side", February 17th Letter to the Editor 

10 February 2017 Win in Court - Win for our Community

Fellow citizens, how wonderful it is to have protected public trust lands for the whole community and for future generations. City government, we hope to see you move forward, work with the recent judgment rather than against it, and be grateful for this protection of public lands along with us. 

​Facts and law were both so clear that the judge ruled yesterday immediately after closing arguments. 

08 March 2017, today the judge's final ruling was signed. This makes clear the injunction on parcel 92 - that all or most of parcel 92, the historical granary dock, it is in the public trust. The injunction is subject to the normal DNR process of establishing the Ordinary High Water Mark (OHWM) and whether any portion of parcel 92 near Maple St is determined to be above OHWM.

Also, per the ruling, today a Petition for Declaratory Ruling for normal OHWM determination on parcel 92 was delivered to the DNR. This is what the public have been asking for, for two years. The normal process should include a public hearing and opportunity for review.

This section is a quick reference guide to the 10 Feb 2017 Decision with key exhibits and complete plaintiff trial exhibits.

Context: Left: 2015 drawing showing parcel 92 (labeled Fill - it's a historical dock) and parcel 100 (in two parts, labeled Above OHWM and Below OHWM - green is the "DNR Letter of Concurrence" parcel). The judge ruled that peach/tan (parcel 92) and purple (part of 100) remain in the Public Trust (see below).

Right: 1904 map, not long after the granary (that still exists) was built, showing the Teweles and Brandeis dock as it was configured then, with a large U-shaped warehouse. And, indicating the areas that became parcel 92 (the dock) and parcel 100.

On Friday, 10 February 2017, Door County case 16CV23 was adjudicated. The judged ruled immediately following closing arguments, saying that it was obvious that all, or nearly all, of parcel 92 was artificially filled lakebed [a large historical dock], filled by the riparian and remains in the Public Trust.

The judge also said parcel 92 was subject to an OHWM determination (to clarify where, near Maple Ave, the line is). The Friends of the Sturgeon Bay Public Waterfront are providing the exhibits that supported the judge’s ruling, that all or nearly all of parcel 92 is artificially filled lakebed filled by the riparian owners and remains in the Public Trust, in the event the current riparian owner (the City) requests an OHWM determination from WDNR.

Parcel 92 is quite different from Parcel 100. Parcel 92 was a dock, constructed by the riparian owner. Parcel 100 was the space between two docks, for which the DNR issued a Letter of Concurrence of the approximate OHWM in October 2014.

Parcel 92 does not have any intact field indicators of the Ordinary High Water Mark. Alternate information sources that are routinely used to determine the OHWM were presented at the recent trial. Some that are noteworthy for an OHWM determination may include historic maps / map overlays (Exhibits
8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 23, 24, 32), chain of title (Exhibits 5, 7, 13, 14), historic aerial photographs (Exhibits  26, 27, 28), historic newspaper accounts of the riparian owner constructing, filling and extending the dock (Exhibits 29, 30), Phase I and Phase II and other environmental reports (Exhibits 37, 38, 39, 40, 41, 42), and core samples or soil boring reports (Exhibits 43, 44, 45, 46, 47, 48, 49).

When using navigation maps from the US Army Corps of Engineers (USACE) it is noteworthy that the sounding depth datum are set to the “low water datum” which is several feet (typically 3 feet) below the OHWM datum set by the USACE at 581.5 feet for Lake Michigan. For example if an USACE map indicates a two-foot sounding depth this would mean it is actually five feet of water from the lakebed to the OHWM.

The following historical summary uses a subset of key exhibits:

Review 
Exhibit 8 - Historical platted shorelines and Exhibit 16 - Shorelines and 1904 Sanborn and Exhibit 19 - Overlay historical shorelines, docks. A collection of some of the Historical Maps clearly shows the development of the dock extending into the water. The City developed an interpretive sign, Exhibit 32 - City's overlay, historical docks, which also shows the construction of the dock that is parcel 92.

Exhibit 26 - 1930 aerial photoExhibit 27 - 1938 USDA aerial photo, and Exhibit 28 - 1940 aerial photo are helpful historical photographs of the waterfront.

The soil cores on both parcels 92 and 100 are clear that the profile is artificially placed fill (of assorted types) of several feet over lacustrine or lakebed sediment. See Exhibit 44 - Soil Cores map, and Exhibit 45 - Artificial Fill Over Lakebed, and Exhibit 47 - Artificial Fill Over Lakebed, as examples showing a picture of what the below-surface artificial fill over lakebed looks like from those soil cores. At the trial, expert witness Huntoon was clear in explaining that the City’s engineering studies showed and described several feet of artificial fill on top of lakebed across both parcels 92 and 100. Transcripts of Ms. Huntoon’s testimony are available.

Noteworthy in the title history, the artificially filled dock that became parcel 92 did not appear in any title records until 1944 after Isidore Brandeis’s death, when the Brandeis family declared that lots 1-4 of Block 8 (previously in the water) were now made land. See Historical shorelines at riparian lots showing lots 1-10 of Block 8 in relationship to the historical platted shoreline. See Exhibit 13 - Historical Title Chain and Exhibit 14 - Historical Title Chain, for history of title.

Parcel 100 did not appear until 2014 when the City quit-claimed it to itself, at the same time as recording the DNR’s Letter of Concurrence as to the approximate ordinary high water mark on parcel 100, in order to create title and parcel.

For parcel 92, the record is clear. Successive riparian owners (of the land bounding the water over which the dock extends) were the ones that constructed, filled under, and extended what we know as the Teweles and Brandeis dock. For this, the title records as well as Exhibit 29 - Newspaper, Dock Fill, explain the history of the dock filling clearly.

For parcel 100, where the riparian owner was the City, this area was a municipal dump and also was filled by the City when Maple Ave and Neenah were extended and connected over the water. Exhibit 30 - Newspaper, Concurrence Parcel Fill, explains this history.

In the 1950s, the City received a ‘stamp’ approval for a bulkhead, that was declared to not be near the shoreline. This is the bulkhead we know today. The public trust regulators of the time were clear that this further fill around the docks to the bulkhead, on both parcels 92 and 100, remained the property of the state and subject to public trust.

In the Judge’s decision immediately following closing arguments on 10 February 2017, he concluded it was obvious that parcel 92 was all, or nearly all, artificially filled lakebed - the historical dock - filled by the riparian owner(s) over time as they constructed and expanded the dock, and must remain in the public trust.

For parcel 100, although we believe the record is clear (from historical maps, newspaper records and from the actual soil cores in the City’s engineering reports) that parcel 100 was also artificially filled over decades by the City as riparian owner and should remain in the public trust, the Judge decided to defer to the DNR’s Letter of Concurrence, which had said that a landward portion of parcel 100 could have been filled by “natural accretion”, through wave action between the Teweles and Brandeis dock and the Bushman dock (now Sawyer Park and Oregon Street bridge).

Plaintiffs' complete trial exhibits are below. (Gaps in numbering were placeholders that were not used). The trial transcript is not yet available (where the expert witnesses explain the exhibits and provide the narrative connecting the facts).

Exhibit 1 - Chaput CV

Exhibit 2 - CSM - Hotel Parcel (2015)

Exhibit 3 - Overlay Hotel Parcel on Aerial Photo Base

Exhibit 4 - Overlay Hotel Parcel - Concurrence - Legacy - Meander

Exhibit 5 - City Chain of Title Door Co-op to City

Exhibit 6 - WDNR Concurrence

Exhibit 7 - 2014 Quit Claim Deed To-From City of Sturgeon Bay

Exhibit 8 - Overlay Hotel Parcel - Bay View Lots - Platted Shorelines

Exhibit 9 - Plat of Bay View 1873

Exhibit 10 - Plat of Harris First Addition 1888

Exhibit 11 - Sanborn 1891

Exhibit 12 - Overlay Sanborn 1891 - Hotel Parcel - Platted Shorelines

Exhibit 13 - Chain of Title Harris to Lawrence

Exhibit 14 - Chain of Title Teweles & Brandeis to Door Co. Co-op

Exhibit 15 - 1898, 1904 and 1919 Sanborn Maps

Exhibit 16 - Overlay Sanborn 1904 - Hotel Parcel - Platted Shorelines

Exhibit 17 - ACOE Maps 1908-1914 and 1925

Exhibit 18 - Overlay 1925 ACOE - Hotel Parcel

Exhibit 19 - Overlap Map - Multiple Dock-Shorelines

Exhibit 20 - 1955 Bulkhead Map

Exhibit 23 - Sanborn Map Series

Exhibit 24 - ACOE Map Series

Exhibit 26 - Aerial - 1930 Sturgeon Bay HS Yearbook

Exhibit 27 - Aerial - USDA-AAA June 12, 1938

Exhibit 28 - Aerial - 1940 Door Co. Historical Museum

Exhibit 29 - Newspaper Articles - Dock Fill

Exhibit 30 - Newspaper Articles - Concurrence Parcel Fill

Exhibit 31 - Book Excerpt - History of Door County

Exhibit 32 - Sawyer Park - Interpretive Sign

Exhibit 35 - Huntoon CV

Exhibit 36 - DNR Certification of Filed Reports

Exhibit 37 - STS Phase I Report

Exhibit 38 - AECOM Plase I Report

Exhibit 39 - STS Phase II Report (October 2005)

Exhibit 40 - VPLE - NR716 Addendum (June 2015)

Exhibit 41 - VPLE - RIWP Revision #2 (October 2015)

Exhibit 42 - Site Map - RIWP Figure 2

Exhibit 43 - WDNR Soil Boring Instructions

Exhibit 44 - Compilation - STS Phase II soil borings map and logs

Exhibit 45 - Geological Cross Section B-B', map and soil borings

Exhibit 46 - Geological Cross Section C-C', map and soil borings

Exhibit 47 - Geological Cross Section D-D', map and soil borings

Exhibit 48 - Geological Cross Section E-E', map and soil borings

Exhibit 49 - RIWP Revision #2 Figure 4

Exhibit 53 - Bruhn Deposition Excerpt

Exhibit 54 - Development Contract

Exhibit 55 - 9-13-2013 Olejniczak email RE Mtg with Webb

Exhibit 56 - Green Team Meeting Notes 11-22-2013

Exhibit 57 - Tom German email, memo, map 7-23-2014

Exhibit 58 - Jim Smith email RE Waterfront OHWM on City Parcel

Exhibit 59 - Survey Line with X

Exhibit 60 - 10-31-2014 Olejniczak email RE Lakebed lease

Exhibit 61 - Application Historical Fill Site Exempt

Maps are knowledge

1. Block 8 Plat Series: Our expert witness Don Chaput made a great point about lots 1-10 in Block 8 of the Bay View Plat (along the water) - these, along with all the adjoining lots and blocks, were first surveyed in 1873, and have been perpetuated by surveyors through to the present day. You can easily see them on the Door County Land Information Office webmap - zoom in, and turn on 'plats' under 'Parcels' on the layers. 

Overlaying platted lot rectangles (along with the street grid, etc.) is pretty straightforward. These maps below are of the same space at the same scale (I added light blue from the indicated edge of water, for clarity). Yes, indeed, speculative land developer and dock builder Joseph Harris had some of his subdivision lots platted into the water. Where he was going to build a dock. Eventually a big dock. With the Teweles & Brandeis grain elevator.

This is the kind of information readily available and important to any ordinary high water mark determination.

2. How to Read Water Depths: The US Army Corps Lake Survey maps are referenced to low water datum - i.e. the shallowest depth a boat has to worry about given our lake fluctuation cycle. In the 1925 USACE Survey (used for the WDNR Letter of Concurrence), you have to add 3 feet to the depth numbers to get depth to OHWM. Thus it's not a 2' shallow bay, it's a 5' near-shore depth at the Concurrence parcel. 

If you hear anyone say "but it was so shallow", please explain this to them. I know of state legislators and city government members who do not understand this (or who ignore it). 

This is the kind of information readily available and important to any ordinary high water mark determination.

Did I mention these surveys had three survey teams working together - the land crew, the near-shore crew, and the off-shore crew?

2015-2017 - Preparation - Building community, consensus, being creative, trying to avoid a lawsuit, being met continually with bad-behaving City

19 January 2017

A Win-Win Vision for Sturgeon Bay's Westside Waterfront

23 January 2017

 Side-by-Side Comparison of Friends' Win-Win plan with City's sent with utility bill. (Yes, the mayor used the utility bill for a misleading statement.)

25 January 2017 

Correcting the Advocate Story. Advocate story today contains factual error in included map from Sturgeon Bay Community Development Office. See The only recorded Ordinary High Water Mark. See also this drawing, sent to City in June 2015.

January 2017

A few of the relevant items from filings and open records

Document 1 – Oct 31, 2014, Issues w/ Parcel 92, email Olenjniczak to Smith, McNeil; and 2016 Olejniczak deposition excerpt

Document 2 – Jul 16, 2013, Constitutional/Legal public trust issues for title insurance, emails Smith, Schenker, Nesbitt, Olejniczak, Haines, Arts

Document 3 – Nov 21, 2013, Public Trust issues and followup on bypassing process to go to governor's office, emails Olejniczak, Smith, Nesbitt, McNeil, Arts

Document 4 – Jul 23, 2014, Public trust restrictions and map, "strong likelihood that all or most of parcel 92 is below OHWM", German to Smith, McNeil, Olejniczak, Nesbitt, Correll

Document 5 – Sep 17, 2016, No OHWM dermination on parcel 92, Bruhn deposition

Document 6 – Jun 2015, map showing all of parcel 92 as Fill, old dock, Ayres Associates (City's consultant)

Document 7 – Jul 01 2015, clarifying Public Trust restrictions, email Collins to Thiede, Nesbitt, Mayor, Council, attaching Midwest Environmental Advocates' letter and attachments

Document 8 – Jul 21, 2015, Common Council meeting, partial transcript, at which it is clarified DNR said there is no OHWM determination on parcel 92

2016 Nov 04 

Working on Alternate Resolutions article or pdf – to Sturgeon Bay’s Westside Waterfront Lawsuit

​2016 Nov 03 

Letter to the Editor article or pdf – Oppose Flawed Legislation that Would Give Away Public Lands

31 October 2016

News Release – Several announcements made at Friends' Fall Social

27 October 2016 

Write to Your Legislator – Three simple steps and sample talking points for you to send an important email opposing flawed legislation.

28 October 2016 

Slideshow – See historic to contemporary photos and maps

25 October 2016 

Letter to the Editor – In opposition to flawed legislation that would give away public lands (long version).​

September 2016

Early this fall, the developer proposed a new location for the hotel, shown here in orange. (The prior location is shown shaded to the right of the granary). When the Friends saw this, we thought of an idea to couple this new location along with a permanently protected public conservation easement zone that used the original surveyed shoreline approximation (dashed line along pink-shaded easement zone). We saw this as hopefully a win-win - the city could have two commercial areas, a hotel and a second development, closer to Madison and Maple streets. The public zone could include a portion of parking to support those developments. The conservation easement would protect a reasonable approximation of the public trust lands, in the absence of an ordinary high water mark determination from the DNR, in perpetuity - the strongest protection possible. And the granary, which is so clearly on an old dock and therefore in the public trust, would be in that conservation easement.

10 October 2016 

This section follows from months of work - depositions taken, maps found, analyses made, titles searched - with ordinary citizens as well as experts assisting our attorney. The facts and the law are clear.

Press Release – Friends of Sturgeon Bay Public Waterfront Confident in Brief Filed in Support of Motion for Summary Judgment.

Plaintiffs' Motion for Summary Judgment

Exhibits Part One - Peranteau 

Exhibits Part Two - Peranteau

Exhibits Part Three - Peranteau

Exhibits Part Four - Huntoon

Exhibits Part Five - Chaput

Exhibits Part Six - Chaput

March 2016

Letter to the editor: This is where the Friends were (also as pdf)

29 January 2016 

Friends of Sturgeon Bay Waterfront File Suit Locally (also as pdf)

December 2015

Letter to the editor: Too many changes motivated by business (also as pdf)

November 2015

Letter to the editor: Waterfront misinformation (also as pdf)

20 November 2015 

Friends Fall Social Draws a Crowd (also as pdf)​

Fall 2015

A little summary

18 September 2015

Friends’ Press Release about lawsuit

03 September 2015 

Citizens Group Sues City of Sturgeon Bay (also as pdf)

20 August 2015 

Citizens Say Public Land and Water Risked (also as pdf)

2015

See so many creative efforts at finding a solution

26 August 2015

In support of a vibrant public waterfront, the Lake Michigan Research Institute idea was launched. See also here.

17 July 2015

In support of a vibrant public waterfront, a proposal for repurposed granary.

23 June 2015

Midwest Environmental Advocates' Letter to City of Sturgeon Bay with attachments

2015 May 8

Midwest Environmental Advocates' Letter to WDNR cc: City of Sturgeon Bay

2015 April 1

Davis & Kuelthau's Letter to City of Sturgeon Bay on behalf of concerned community members

November 2014 – How it began

The proposed hotel appeared suddenly in a front page newspaper rendering. People showed up. The November 19th, 2014 Plan Commission meeting’s public comments section ran for almost two hours. One of the subsequent meetings had to be moved to the fire truck bay to accommodate the crowd. Several meetings were standing room only. Read some excerpts from public comment from that meeting through August 2015.

Excerpts from public outpouring on the issue

Read the Case Summary from Midwest Environmental Advocates (and as pdf)

Q. Why is a lawsuit necessary?

A. The City and the Wisconsin Department of Natural Resources (WDNR) have not responded to multiple letters written by Midwest Environmental Advocates (MEA) carefully presenting what the Friends and its attorneys believe to be incontrovertible facts showing that the public has perpetual rights to the land the City currently intends to sell for the Lindgren Hotel. The letters and other reference material may be viewed at www.friendsofsturgeonbaypublicwaterfront.com.

Q. What is the suit hoping to achieve?

A. The suit seeks to have the court declare that the City-owned lands below the OHWM belong to the public under the Public Trust Doctrine. This will clarify that the developer’s prospective title in the parcel is defective, because the City cannot sell what it does not own.

Q. Who is the plaintiff?

A. Several local citizens have stepped forward to be plaintiffs, along with the Friends of the Sturgeon Bay Public Waterfront. Public endorsement of the suit has come from the following groups: Door County Environmental Council, Door Property Owners, Wisconsin League of Conservation Voters, Midwest Environmental Advocates, Preserve Our Parks, Democratic Party of Door County and the Great Lakes Commons.

Q. Who are the attorneys in this case?

A. The lead attorneys are the water law experts at Wheeler, Van Sickle & Anderson S.C. in Madison, WI. They are considered to be the best firm in the State on this topic and have a proven track record with cases like ours. MEA is co-counsel.

Q. There has been commercial development on this land for a long time; why is development a problem now?

A. The City has recently reclaimed ownership of this public filled lakebed land. Filled lakebed land is the people’s land. Other commercial uses in the past, to the extent they exceeded the riparian land owner’s right to access navigable waters, should be considered un-prosecuted public trust violations. But as a governmental entity, the City has a duty to protect public rights under the Wisconsin Constitution, and should not seek to justify its actions based on prior uses. By way of example, if a museum comes into possession of a stolen painting, the incontrovertible right thing is to return the property to the rightful owner.

Q. What’s the problem with putting a hotel or other private development on the filled lakebed land contained by the sheet-pile wall?

A. The filled lakebed land below the OHWM is held in trust for all the people of Wisconsin. Landfilling below the OHWM does not extinguish the public rights to the filled lakebed. To allow a process of commercialization and privatization of our collectively owned assets undermines the rights and privileges of our community and state. Taking the people’s land is a bad idea. The failure to hold local government and private developers accountable weakens the effectiveness of the Public Trust Doctrine’s ability to forestall additional “land grabs” of some of the most valuable property in our State. Private development is encouraged, just not on public land.

Q. The waterfront has had commercial property for decades; it even had a gas station.

A. Getting a chance to fix a mistake is a good thing. We get a “do over” on this one, and it’s okay for us to insist that it is done correctly this time.

Q. What about existing waterfront development?

A. While some other waterfront projects may not have been the best decisions from a Public Trust Doctrine perspective, we are not proposing in any way that prior decisions be undone; they just don’t have to be repeated. The Coast Guard Station, the WDNR facility, or the Maritime Museum could be appropriate examples of the kinds of facilities that are either governmental, navigation-related uses or that maintain the public’s right of access and would be in keeping with the accepted uses below the Ordinary High Water Mark.

The Friends group established a fund at [our local bank] and is seeking contributions toward legal expenses. Please consider joining your friends and neighbors who have made a financial contribution.

MEA and others have provided thousands of dollars in pro-bono services so far on this matter in gathering the facts, writing letters and researching similar cases. Donated funds will only be used to fund the fees of the attorney and direct legal expenses. Donations are not tax-deductible. Contributions of any amount are greatly appreciated.

Fall 2015 – Protecting the Sturgeon Bay waterfront for ourselves and for generations to come

Friends of the Sturgeon Bay Public Waterfront was formed in August 2015 to challenge the sale of land along Sturgeon Bay’s westside waterfront to a private developer. The group hired one of the state’s pre-eminent water issue law firms, Wheeler, Van Sickle and Anderson of Madison, Wisconsin, to file a federal lawsuit. The suit filed on September 17, 2015 contends that two-thirds of the land earmarked for the proposed Lindgren Hotel sits below the ordinary high water mark (OHWM) and, therefore, according to the Public Trust Doctrine of the Wisconsin State Constitution, is held in trust for the public. One of the founders of the Friends group, Kathleen Finnerty, explains, “We believe that selling this public land is no different than selling one of our State Parks or a non-profit-protected nature preserve. The land is held in trust for the people and all improvements done on the land should benefit everyone, not a private developer.”

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Courage. Persistence. Community. Creativity. Open hearts and minds. Showing up. Speaking out. Never giving up. Having big ideas. Sharing them. Running for office. Defending truth and facts. Believing a better world is possible. Thank you.