Milwaukee County leaders are eager to sell the Downtown Transit Center site to the developer of The Couture high-rise project. A parks advocacy group continues to argue that the land must be maintained for public use.

Preserve Our Parks says the transit center stands on the original bed of Lake Michigan and, therefore, is protected under the public trust doctrine. The group has been threatening to sue Milwaukee County if The Couture project advances.

This week, the County and the City of Milwaukee beat Preserve Our Parks (POP) to the punch and filed a lawsuit against the group in circuit court. The complaint states:

POP's threatened lawsuit has created uncertainty for both County and City concerning the redevelopment of the Property. Because of POP's threatened lawsuit, no title insurance company is currently willing to issue title insurance on the Property, thus making it impossible for any redevelopment to occur, until the issue presented by this case is resolved.

Environmental engineer and lawyer Neal O’Reilly says you have to look back in history to understand the nuances of the Couture debate. It relates to water rights.

O’Reilly teaches natural resources management at UW-Milwaukee. He says Wisconsin’s constitution contains a principle that originated thousands of years ago, called the public trust doctrine.

“You can actually follow it all the way back through the Magna Carta in Britain, and even into Roman law, and in our state constitution they put a clause in there...that these waters shall forever be free. And as a part of that, the state owns the bed of our natural waters, “ O’Reilly says.

That includes the bed of Lake Michigan.

Traditionally, O’Reilly says if the state legislature allocates what is called a lakebed grant, it must be used for public purposes. And, he adds, there are Supreme Court cases that reinforce the policy.

Over the decades, crews filled in sections of Lake Michigan bordering Milwaukee, including downtown.

O’Reilly says the first fill was OK'd in 1915 to create space for the Chicago and Northwestern Railway Company. “The railroad was given the right to fill into the lake because it was considered a public purpose. The rest of the fill was for parkland, so there never was really dispute about that,” he says.

Yet today, O’Reilly says puzzling out exactly where the original lakebed begins and ends is a formidable task.

“It’s easier to figure it out in areas to the north of downtown because you have this steep bluff that was the original shoreline of Lake Michigan, when you get further downtown, that bluff starts to fade,” he says.

POP argues that the bulk of the existing downtown transit building rests on the bed of Lake Michigan. O’Reilly says proving the assertion is problematic.

“The issue is, we don’t have tight survey maps from the 1800s; today we produce survey maps that have accuracy of plus or minus a tenth of a foot. Back then we had sketches of where the shoreline was and so part of the dispute is how do we interpret these older drawings,” O’Reilly says.

Milwaukee County thought the battle might end last year, when the Legislature set the border along the western curb of Lincoln Memorial Drive.

But O’Reilly says the move has added another layer to the legal debate, because the public trust doctrine resides in Wisconsin’s constitution. “Does the legislature have the right to move that line?,” he asks.

O’Reilly says the significance of the public trust document has evolved throughout Wisconsin’s history. At first, the crafters had commerce in mind.

“Then it evolved into recreation – one's ability to canoe or kayak up and down a stream – and it’s continued to evolve into aesthetic issues – people’s right to have [a view of the water],” he says.

Now, perhaps the next evolution.

"The County sees this transit facility as something that’s not generating any revenue, it’s being underutilized and something that if we put it into private use can generate property taxes. And then you have the parks people who say, wait a second, shouldn’t this land be protected for public use and it’s all about who gets to view Lake Michigan,” O’Reilly says

He says the public trust document protects things people care about in Wisconsin.

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