Arguments for Plaintiff (Gillen):
We like private Attorneys General in cases like this because it puts the resolution of the matter in the hands of the court, and that's good because courts are so comparitively wise and unbiased. Plus, Del Monte Dunes: we shouldn't fear juries making these decisions because they're the last bastion of actual democratic rule.
Plus, courts like power, and NGOs (non-government organizations, like environmental interest groups) like to see this stuff also. Lawyers, too: there's often fee shifting in these things.
The relevant legislation gives the DNR a lot of discretion and power. The statutes carve our a major role for the DNR, just as you'd expect. So to allow a court and a litigant to undermine all this bypasses all the controls we've put in place.
Also, we defer to agencies: they have the expertise and accountability that the courts do not.
In recent years, public trust has arisen sporadically, but is is on an overall rise. Most environmental law is mostly statutory (the clean $whatever act, e.g.). Public trust will never supplant all this regulation, but it is an opportunity for courts to get in on the action of allocating public resources.
Water rights for cities are a popular use case of public trust: using the doctrine to force cities to negotiate more generously, rather than just steamroller across smaller (and consequently less represented) areas. States use this as a lever against one anoter (CHI vs. MKE sewers; SE WI vs. CHI air).
Public trust now refers to the use of land, not just the land itself. It now covers air pollution, water, and possibly even underground water (this is just filed; no idea whether it will prevail). This doctrine could possibly apply to nearly all uses of public resources. That would of course halt all development, so we await to see how it will be limited and defined.
Maybe this was influenced by oral arguments: he's quite reclusive and likes his solitude in the mountains very much. These college students were noisy and messy.
Anyway, we get a shoreland zoning ordinance: you can't build in a wetland or w/in 500 ft of navigable water w/o a permit. The Justs are said to be belligerent and anti-government. That's pretty much always a mistake, if you are going to litigate. So, they pour some sand in preparation for making a house, and without a permit.
They're denied pretty much any use of their property, other than picnicing or riding horses.
The court says this isn't a taking because it's not taking anything for public benefit. It's just restriction of use to prevent harm... a police power of regulation doesn't have to be paid for. Harm prevention is different from public benefit, says the WI SC. A police power taking has to be reasonable, and this is not unreasonable (limiting private property to its natural uses). Contra Jacque, public interest seems to outweigh the private interest: land belongs to the people, a little to the dead, some to the living, but most to the yet-to-be-born. So land seems to be publicly owned. Amazingly, this case precedes Jacque. Not clear what the law in WI is, then with respect to ownership.
The court says it's not a taking, because they read Lucas as only protecting against 100% taking, and this isn't that. Also, he's asking to alter the natural state of the land (outside the protection of Lucas), not preserve it. So we're not opposing Lucas.
So both Lucas and Just are good law in WI, in spite of apparent conflicts.
Arguments for the city:
So they argue that this is a nuisance. A nuisance is a tort. It is use of one's own property in a way that damages someone else's property or use thereof. Both damages and injunctive relief are standard remedies.
So much for precedent-- the court recognizes there's a rule, but says no injunctions, because there's no technology available now or in the near future that will fix the problem. Shutting the plant down would be economically catastrophic. Also, damages are going to be one-time only, for all time, and they're going to be calculated just by the court's eyeball.
If your farm is bisected to make a highway, can you sue for nuisance? The dissent says there should have been injunction, based on precedent. They also declare the nuisance damaging to the general public (cf. Gillen), so we want it to prevail. If there aren't injunctions, there's no incentive to stop the nuisance. It's not as though this is a state-owned cement factory after all-- why should the state treat them as though they are a public benefit? The majority is basically granting a taking, and if it's not for public use, it's unauthorized.
"Technology forcing:" the strategy of imposing future conditions that are unrealistic today as a way of incenting investiment in sufficient science that the problem can be addressed.
Arguments for Boomer:
Note that even though nuisance law was the original basis for environmental litigation, it turns out not to be a very effective means. Since the 1970s, regulatory control has been the vastly dominant mode of environmental stuff.
The lots:
+-----------+ | | | | | [Prah] | |___________| | [Maretti] | | | | | | | +-----------+
Prah puts up solar panels, then Maretti makes a house that blocks the light. This contravened an agreement with the original developer, who sold the lot to Maretti.
Prah sues Maretti for nuisance, because Maretti is so intractable. It turns out that Prah is in the solar panel business, so maybe it's less expensive for him, and it's also a PR move. Plus, he built on the very Southern edge: the best view. This is why Maretti built at the North edge.
Prah gave up, basically, even though it looks like he won this case; it went back down, and was headed for jury trial, and he quit at that point.
Generally, things have to be fairly severe in order for nuisance law to attach (particulate matter in the air, etc.), and here it's just interference with the use of a solar panel.
Interesting discussion of the "ancient lights" doctrine: a common law principle that you can't block your neighbor's sun. This was overridden in WI. But there is a WI statute saying that malicious spite fences are prohibited. And the court alleges that this is sort of a tendency towards sunlight protection. They're kind of making the best of the situation that they can.
The court (pre-Jacque, ironically) says that policy is tending away from protection of property rights. Also, sunlight is no longer an aesthetic thing-- it's also a sort of power. Development used to be a primary concern, but now it's done: we are developed. So all this old precedent is no longer relevant. So much for stare decisis.
"Unreasonable," allegedly a factual determination, is the operative matter in nuisance law. If it's unreasonable harm, you need to stop harming, and pay damages.
Arguments for Maretti: