Fath, Garbowicz answer enhanced wake ordinance questions

St. Germain’s enhanced-wake committee conducted a question-and-answer session with Vilas County Sheriff Joe Fath during its Feb. 5 meeting.

The group also discussed legal advice from town attorney Steve Garbowicz on the matter of regulating the use of enhanced-wake boats on town lakes.

The ad-hoc body is tasked with the single goal of preparing and presenting a draft ordinance for the town board’s consideration regarding the regulation of enhanced-wake boats on local waters.

Wake committee member Bob Schell presented a draft ordinance to the lakes committee in May of last year.

“I think most of you have been reading the papers,” Schell said at the time and added, after naming other area towns that had recently adopted an enhanced wake ordinance or were also considering one, that “it’s coming folks and that’s what this committee has been talking about for three years.” 

The enhanced-wake committee is a subcommittee of the St. Germain Lakes Committee. Town supervisor Patric Niggemeier is the chair of both bodies and the enhanced-wake group held its inaugural meeting in December.

Since then, the Little Saint Germain Lake Association withdrew its participation from the subcommittee.

“They decided to drop out,” Niggemeier told The Lakeland Times. “They resigned from the committee. They will not be included in any ordinance that is brought to the town board.”

He said even with the change in committee membership, the matter isn’t “dead in the water.”

“There are members on the committee that want to get this to the town board as soon as possible,” Niggemeier said. 

If an ordinance were eventually to be adopted by the town, he said it “would apply to Lost Lake, Found Lake, Alma and Moon Lakes, and Big Saint (Germain Lake), and that is it.”

“The committee has a formatted template of a draft,” Niggemeier explained. “Meaning an outline of how it’s going to be typed. We are starting to now put things into it. It could be by the end of the next meeting that something is finalized and brought to the lakes committee to bring to the town board.”

Enforcement issue

Niggemeier shared with the committee at the Feb. 5 meeting a letter written by Garbowicz, who was unable to attend.

“The letter basically recommends that — because there is no way the town of St. Germain could enforce such an ordinance, and that’s including with the town chairman, just due to the unknown of liability concerns — he is hesitant that the town should pass something,” Niggemeier summarized from Garbowicz’s correspondence. “Though he (Garbowicz) also suggested the town is welcome to pass this ordinance if it wanted to, but just let us know that all it is just a feel-good ordinance, basically. There would be little to no — if any — enforcement involved. He’s hesitant but he said if the town wants to pass it, go ahead. But his advice is that there could be liability concerns.”

“One example regarding liability would be there’s an injured party with the injury caused by a negligent wake-boat owner,” he said.

“The injured party’s attorney — if the injured party knew that St. Germain has an ordinance that can’t be enforced — could subpoena and deposition the entire board as to why it’s not enforced, and therefore possibly the liability of a lawsuit,” Niggemeier told the Times. “Attorney Garbowicz advised against it, Sheriff Fath was more neutral about it. I have to applaud the sheriff. He was bombarded with questions. He was very neutral but he was also very blunt.”

The gist of the discussion with Fath, he said, was that, as Fath has told the Times previously over the course of the past year, neither his department or the Wisconsin Department of Natural Resources (DNR) can enforce it.

“So it’s on the town,” Niggemeier said. 

During the meeting, Niggemeier asked Fath about the proper steps that a town chairman should take to issue a proper citation, avoiding any pitfalls such as illegal detainment. 

“He flat-out said ‘That is a good question; I can’t tell you,” Niggemeier told the Times. “And the majority of the questions were framed as ‘How can a town chairman do this? Because the town chairman is the one responsible for writing citations. Well, OK, then; how is he going to do it?’”

A violation of a hazardous wake ordinance, Niggemeier said, is one that needs to have a witness. 

“And unless you’re going to have the town chairman just motor around on all five lakes, it’s not going to happen,” he said. “And (Fath) reiterated Mr. Garbowicz’s response in his letter that pictures and videos don’t really work as evidence. It has to be eye witnessed.”

Niggemeier said the sheriff also recommended if the town chairman were to issue citations, doing so would best be done in the presence of a second individual who could act as a witness on behalf of the town.

He said the meeting with Fath and the information shared by Garbowicz was very informative. 

“Wake boat owners still have to follow all of the rules and regulations, just the same as normal-boat owners, such as 200 feet from shore and 100 feet from another boat, and that type of thing,” Niggemeier said. “There are no rules and regulations specific to wake boats. Proposed on this ordinance, there are distance-from-shore/structure, depth, and acreage restrictions. Those numbers are still being worked on. This is still a work-in-progress.”

One thing he said everyone on the committee agrees with regarding the enforcement issue is if something is posted “a solid 95 percent of the time,” it will be followed. 

“Which begs the question on my end: why enforce it?” Niggemeier asked. “Why have forfeitures involved? I just don’t want the town to end up in legal trouble over something that could have been prevented if the committee would have done its due diligence.”

Should the lakes committee vote to send an ordinance draft to the town board, the board would then discuss the draft and take its own straight-up-or-down vote on the proposed ordinance. Should the board reject the document, town supervisors could then suggest their own changes and return the draft to the enhanced-wake committee for further discussion and/or amendments. 

The enhanced-wake committee will hold its next meeting on Friday, Feb. 21.