Background
Thomas Reiss owns residential and agricultural property abutting the Rock River. During periodic flooding, standing water accumulated on portions of his land. Reiss alleged that airboat users entered far beyond the riverbank, sometimes damaging fences and property, and invoked Wisconsin DNR guidance describing a “feet wet” policy.
Reiss sued the DNR, the Natural Resources Board, and Steven Little. He alleged that the guidance unlawfully expanded public-trust access beyond the ordinary high-water mark, constituted invalid rulemaking, and misinterpreted Wisconsin statutes governing navigable waters. The circuit court granted Reiss summary judgment and enjoined the Department from disseminating material promoting the policy.
The Court’s Holding
The Court of Appeals reversed. Reiss lacked standing under Wis. Stat. § 227.40 to challenge the guidance documents because he did not show that the documents directly caused, or threatened to cause, him an injury in fact. Read in context, the court held, the documents address the public’s right to use navigable lakes and streams while remaining in the water; they do not state that periodically flooded private land becomes subject to public-trust rights.
The alleged trespasses were committed by third parties, not directly by the Department or its guidance. The court further held that sovereign immunity barred Reiss’s general declaratory-judgment claim under Wis. Stat. § 806.04 because § 227.40 supplies the exclusive method for challenging the validity of agency guidance documents. The case was remanded with directions to grant summary judgment to the Department and dismiss the action.
Key Takeaways
- Agency guidance concerning navigable waters did not extend public access rights onto a landowner’s periodically flooded private property.
- A plaintiff challenging guidance under Wis. Stat. § 227.40 must establish a direct injury caused or threatened by the guidance itself.
- A general declaratory-judgment action cannot bypass § 227.40’s exclusive procedure for challenging the validity of agency guidance documents.
Why It Matters
The decision distinguishes navigable public waters from standing water that temporarily covers private uplands. It also underscores that alleged misuse or misreading of agency guidance by private actors does not, without a direct causal connection, establish standing to invalidate the guidance.
For challenges to Wisconsin agency guidance, the opinion emphasizes both the direct-injury requirement under § 227.40 and the limits imposed by sovereign immunity when a party attempts to use a different declaratory-judgment procedure.