Attorney General protects private rights by addressing public nuisances

Released 2/15/06 (Contact Tami Jackson lakeinfo @ wisconsinlakes.org)

The Attorney General—an independently elected official—protects the rights of Wisconsin consumers, property owners and taxpayers by representing the state and citizens in cases (such as consumer fraud and environmental pollution) that affect the public interest. In cases where no law exists to address a grievance, the attorney general can protect Wisconsin citizen’s public health, public rights, and private property rights by filing a public nuisance suit.

Two bills (Assembly Bill 278 and Senate Bill 425) working their way through the Wisconsin Legislature would dramatically diminish the Attorney General’s ability to work for Wisconsin’s citizens, and would prohibit the Attorney General from filing public nuisance cases.

The Legislature cannot proactively legislate to regulate against future threats that have not yet been invented. Public nuisance cases address significant and severe problems affecting public rights and private property rights that are unregulated under current law. The Department of Justice estimates there have been fewer than ten public nuisance cases over the last several decades. Even though the number of cases is small, the problems they seek to address are extreme.

An ongoing case on Lac Court d'Orielles is an example of individual property owners being affected by a public nuisance. The case partially alleges that private lakeshore homeowners cannot use their bay because polluted runoff from a cranberry operation has lead to massive algae blooms that may be harmful to humans and hinder musky spawning and navigation. Since cranberry operations are not regulated under Wisconsin's water law, the suit is based on general nuisance law rather than a specific statute or regulation.

Regardless of the outcome of this pending case, public nuisance law allowed each side’s perspective to be heard and judged in a court of law. Without public nuisance law, citizens who feel their lake is being significantly and adversely impacted by the actions of one individual would have no legal recourse.

The Wisconsin Association of Lakes does not see how preventing the Attorney General from acting on a small number of cases that protect public and private rights against unregulated, detrimental activities serves the public interest. We hope the Senate will reject both SB 425 and AB 278 so the Attorney General can continue to address public nuisances on the behalf of Wisconsin citizens.