DNR official cautions towns about enhanced wake regs

Multiple towns across Wisconsin are passing ordinances regulating artificial enhanced wakes on state waters, but many of them lack any evidentiary mechanism, and last week a state Department of Natural Resources administrative warden cautioned that towns could be headed for troubled legal waters of their own if they resort to ad hoc or citizen enforcement.

Some towns have talked about forming citizens’ committees to have citizens stop boats they suspect of using tools to enhance wakes, or urging citizens to take photos or videos of boats they suspect of breaking a town ordinance and sending that “evidence” to the town chairman or other appropriate official to write a ticket.

Going that route could pose big legal problems for any town that does so, Darren Kuhn, the state Department of Natural Resources’ (DNR) boating law administrator, told The Lakeland Times last week. 

Kuhn said towns could safely enter into enforcement agreements with law enforcement agencies or form boat safety patrols pursuant to state statutes, but he said volunteer citizen enforcement was a different creature.

“I have very strong concerns that some of these towns, especially the ones that don’t have enforcement arms, if they’re asking citizens to make law enforcement and prosecutorial decisions, that’s bad and they shouldn’t,” Kuhn said. “I just think of the wardens in my career. I would love to get photographic evidence from a citizen on a violation, but that’s not going to be the basis for my citation. The basis for my citation is going to be an actual interview and a physical contact with the suspect.”

Getting a photo or video is only one step, Kuhn said. 

“Great, I’ve got a picture,” he said. “That’s phase one. But if a town is using that as the judge and the jury, they’re going to get themselves sued and they’re going to lose, and they’re ultimately going to rescind that ordinance, would be my guess.”

Plethora of ordinances, paucity of enforcement tools

That concern has not stopped towns across the state from enacting enhanced wake ordinances, or from actively considering them. In Oneida County, the towns of Newbold and Lake Tomahawk recently added their names to the growing list.

Under the Newbold ordinance, for example, no person may use or employ water sacks, fins, ballast tanks, ballast bags, mechanical fins, or similar devices to cause a boat to operate in a bow-high manner, or that increases or enhances a boat’s wake, and no person may operate a boat in an artificially bow-high manner, having the effect of increasing the boat’s wake. 

Exempt activities include water skiing, tubing, wakeboarding employing a tow rope, a brief transition operation to empty a boat of water, and brief transition operation of a boat accelerating into a planing condition, provided the boats do not use water sacks, fins, ballast tanks, ballast bags, mechanical fins, and similar devices.

The penalty for violating the ordinance is $500 for a first offense and $1,000 for a second offense within a year. 

The question is, how are towns intending to enforce such penalties?

In Newbold, town chairman Dan Hess raised the specter of writing tickets, though he said education rather than ticket-writing was the goal.

“The people of the town have to educate,” Hess said, as reported in the Times previously. “Our goal isn’t to go out and write tickets. If someone’s doing something wrong on the lake I’d hope someone would talk to them first …. The big thing is, and I’m not a big one for writing tickets on this, so it has to come from the people.”

While writing tickets isn’t the goal, Hess did not say tickets would not be issued or could not be issued and, by raising the possibility, seemed to suggest tickets could be a last resort if education failed.

In a pitch to the Lake Tomahawk town board, the ability to write tickets was more explicit. Richard Phillips, a retired Exxon/Mobil corporate attorney who now lives in Presque Isle and who is assisting some towns in writing enhanced wake ordinances, said Wisconsin uniquely gives towns the right to enact boating ordinances to protect their waters and to have citations issued for violations.

“The way I draft enforcement provisions is this ordinance may be enforced by any individual or entity that is authorized to enforce ordinances for the town of Lake Tomahawk,” Phillips said. “The enforcement would be exactly the same as it would for the breach of any other ordinance … And the way this works in Wisconsin for smaller towns that don’t have their own magistrate and don’t have their own police force is, … it empowers the local county court here, and for payment of a $5 fee, they will have an officer of the court come out and issue a citation. And then there would be a court hearing just like on a speeding ticket or anything else.”

To be sure, Phillips stressed in his talk that enforcement was unlikely and that in his view the key to compliance was simply passing the ordinance.

“I very often hear two big complaints,” he said. “The first one is, it’s not enforceable. I spent a lot of time working with the 20 towns that have enacted ordinances in the state. The number of times in the entire state of Wisconsin that any of these ordinances has been enforced is zero. And that sounds surprising.”

Phillips said there were cautions given on two occasions.

“In both cases, the boater claimed not to know the ordinance,” he said. “In both cases when they learned of it, they stopped immediately. They went to another town. But basically wake surfing is so obvious and it gets so much on the nerves of other people on the lakes that if there is an ordinance in place, there was just no instance in the state of Wisconsin thus far. First ordinance was 2008, 16 years ago. There is no instance where anyone has ever had to enforce an ordinance. It may come someday, but by and large people will respect laws, particularly if they think they can’t get away with violating them.”

That said, the backstop of Phillips’s model ordinance is enforcement through citation.

Where’s the beef?

The problem with that enforcement format comes not in any lack of enforcement mechanism, but in the ability of towns to constitutionally gather evidence in the absence of an official law enforcement presence.

For one thing, the DNR cannot enforce local town boating ordinances. Still, as Phillips states, an enforcement mechanism exists, the surest being when towns have police department boat safety patrols that can statutorily make contact when there is reasonable suspicion to believe the ordinance is being violated. In those instances, those law enforcement officers have the power to stop a boat and make contact and — with probable cause — actually board the boat. 

If there is no police department or boat safety patrol, towns and municipalities can also enter into contractual arrangements with other law enforcement agencies, such as sheriff’s departments, to enforce boating ordinances. However, many if not most towns lack such arrangements, and, says Oneida County sheriff Grady Hartman, that is the situation for his department throughout Oneida County.

“We do not enforce town or city ordinances, so we will not be enforcing the local wake ordinances,” Hartman said. “In order to enforce those, we would have to enter into a service contract with the local municipality and we currently don’t have any of those.”

Even if there is an available law enforcement arm, it’s questionable what authority they have to carry out what is necessary to discover evidence of an ordinance violation, namely, the right to board a vessel.

While the state statute governing boat patrols gives officers the right to board a boat with only reasonable suspicion — “Officers patrolling the waters as part of a water safety patrol unit may stop and board any boat for the purpose of enforcing [statutory boating regulations] … if the officers have reasonable cause to believe there is a violation …” — many law enforcement officials in Wisconsin believe that statute is constitutionally suspect and, whether it is or not, won’t board a boat without probable cause or a warrant.

Hartman says that’s the case with him. 

“I don’t believe you can enter a boat, home, or car with reasonable suspicion,” he said. “I also don’t know of any water patrols in Oneida County that are actually boarding boats, that’s more of a Coast Guard thing.”

Hartman says there are times when a law enforcement officer can enter a boat, but those are limited to consent, probable cause (hot pursuit, plain view, search incident to arrest, among others) and warrants.

Over at the DNR, Kuhn agreed about the need for probable cause. If a municipality had an enforcement arm that was designated or agreed to enforce that particular ordinance, Kuhn said a boat could be stopped because of reasonable suspicion, to ask the operator if he’s using his ballast systems. But, the boating law administrator said, without more than reasonable suspicion, that’s as far as law enforcement can go unless the boat operator agrees to let officers on board.

“We believe there would be reasonable suspicion to make the stop, to ask the question,” he said. “ …And if he says no, then absolutely that’s pretty much a done deal. You have not met probable cause to get a search warrant.”

Surf’s — ur, the gig’s — up

So even with a law enforcement arm, there is a high bar to meet for boarding a boat to prove an enhanced wake ordinance violation, in the view of many law enforcement officials. Lacking any enforcement arm makes the enforcement wave even harder to surf.

To be sure, towns would still have an enforcement mechanism. By ordinance, towns can confer on certain town officials the ability to write citations for violations of town ordinances, be it the town chairperson or officials whose responsibilities are related to the ordinance, and, if there is no municipal court to hear the case, the county’s circuit court automatically attains jurisdiction.

The problem is, without an official law enforcement presence, it would be almost impossible for the town to gather evidence constitutionally. And the notion that citizens committees or individual citizens can do so on the water is a big concern, said the DNR’s Kuhn.

“A concern that I have is the detention — actually physically stopping somebody and saying, ‘I’m going to stop you on the water and I don’t have the authority to do it,’” Kuhn said. “I mean, that’s a Fourth Amendment violation if I’ve ever seen one.”

And it’s possible that town officials and involved citizens could be sued.

“If they have people out there stopping boats, if they have citizens out there without the proper requirements, they’re asking for some serious civil liability,” Kuhn said. “No doubt about it.”

Kuhn stressed that it takes a lot of information and knowledge to become a law enforcement officer. 

“Knowledge of the constitution is one of them,” he said. “And what you can and can’t do under each circumstance, and if we have members of the public out there doing something that they’re not constitutionally able to do, that is a problem.”

Safety was another concern with such contact, Kuhn said.

“I can only imagine pulling up to a boat or making a contact in a law enforcement capacity as a citizen and running into who-knows-who nowadays without any training or equipment or communications with other law enforcement,” he said. “I mean, at some point, somebody’s going to get themselves hurt.”

Boating is supposed to be fun, Kuhn said.

“We have enough people getting hurt on boats already doing things they probably shouldn’t be doing, and pretending that you’re going to do enforcement when you’re not trained or equipped or authorized, we don’t need that out there,” he said.

Video games

It has also become popular and routine for ordinance supporters to suggest to towns and citizens that they can video or photograph a boat they suspect is guilty of an enhanced wake violation and then send it to the town chairperson or other appropriate official for prosecution.

Phillips himself offered such advice at the recent Lake Tomahawk town board meeting and he suggested that the DNR was urging towns to engage in the practice.

“The DNR says, ‘Here’s what you do,’” Phillips said. “If somebody’s doing that, make sure you get some people out there with one of these wonderful things [Phillips pulled out his cellphone] and just pretend you’re taking pictures or you can take pictures. They always stop if they’re violating an ordinance and this really does keep people from violating ordinances because they know you can get their boat registration number.”

Phillips said a camera can easily capture a boat making a big wake, or one that has a wake surfer, or when the boat operates in a stern down manner. 

“It’s cut and dried and you’re not going to have to enforce,” he said. “I bet no one has had to enforce yet. I’d be surprised if it happened in Lake Tomahawk, but if it does, you go to the court, there is a vehicle for doing it, but no one’s had to do it yet.”

However, Kuhn says, that is not what the DNR urges people to do, and he says it could be problematic for those who do.

“If that’s how the ordinance is written where they’re going to base prosecution on a citizen photograph or a citizen video without any sort of contact and evidence to take into court other than a photograph, I think that is bad policy,” he said.

Kuhn said he had not personally seen an ordinance that urged citizens to take a video and send it to the town chairman for prosecution: “But that definitely would be a red flag if I saw an ordinance that said, do that,” he said.

The DNR boating law administrator agreed that a photo could not provide the evidence needed to prove the violation because the photo could not show that ballast tanks were full or that fins were down. Again, Kuhn said photographic evidence was nice, but he would not use it as the basis for a citation, which would be contingent on an actual interview and physical contact.

Kuhn also addressed the issue of supporters of enhanced wake ordinances who tell towns considering such ordinances that the DNR is signing off on — and has approved — such ordinances.

That’s not true, the warden said.

“There’s a very big misconception, and we fight this all the time with the towns where they say, ‘Well, the DNR approved this,’” he said. “We don’t have the authority to approve or deny, and it’s no different than ATV ordinances, which I’m sure in that section of the state you have road routes and ATV ordinances through all these towns. Even if we 100 percent disagree with it, we can make suggestions, but the town or the local unit of government is free to make their own choice.”

The DNR has pointed out to towns that if they encroach on somebody’s constitutional rights or infringe on public rights, the town will be liable, Kuhn said, adding that state statutes require the agency to review such ordinances to look for any conflicts with state statutes.

“We’re not signing off or approving or denying it,” he said. “That’s not our role. Our role is to make sure that it’s consistent with statute. The department statutorily has the requirement to administratively review any local boating ordinances for inland lakes in the state of Wisconsin. But that’s merely a review. It’s not an approval or denial process.”

Towns may in fact say the DNR is approving the ordinances, Kuhn said, but the public should know that doesn’t make it so.

“The town can say whatever they want to say,” he said. “We have no control over what a town chairman or town clerk or town board member says. But the fact of the matter is, we make it abundantly clear that we are not approving or denying anything. We don’t have the statutory authority to do so. We take an ordinance, we review it, we make suggestions on how to improve an ordinance or make suggestions on what’s already covered by state statute. We really only make suggestions and make sure that it’s consistent with state statute, that we’re not infringing on the public trust doctrine or anything like that.”

Ultimately, the towns make the decisions, Kuhn said, and that’s true for enforcement decisions, too.

“If the town chooses to take those suggestions, that’s up to the town,” he said. “If they choose not to, that’s up to the town, and we make these suggestions, and if they want to enact an ordinance and there’s nobody to enforce it, we don’t have the statutory authority to say yes or no. We recognize it, and say, ‘You don’t have an enforcement arm to do this. This is literally just going to be a gentleman’s agreement if you don’t have any enforcement’ and the town runs with it or doesn’t run with it.”

Other misconceptions

In his presentation in Lake Tomahawk, Phillips said one of the concerns he hears is that towns will be sued for constitutional violations. 

“Every time I work with the town to enact an ordinance, somebody says we’re going to be sued,” Phillips said. “In the entire history of wake surf ordinances in the state of Wisconsin, going back to 2008 and Mequon, not a single suit. There have been many threatened. There’s never been a single suit brought.”

Phillips says that’s because the public trust doctrine does not prevent a town from enacting a enhanced wake ordinance but in fact allows towns to regulate boating. That might be true, but another reason might be because towns drop ordinances that are constitutionally unenforceable without violating other constitutional rights — such as Fourth Amendment or equal protection — or suspect ordinances might not survive a challenge, rather than there being no basis for a lawsuit in the first place.

In Waupaca County, the town of Farmington banned wake-enhanced boating on Round and Rainbow lakes but reversed its decision after a legal challenge was threatened. The town has since been collaborating with the nearby town of Dayton for each town to adopt an ordinance prohibiting artificial wake enhancement devices.

In the latest draft, language stating that enforcement would be provided by the Waupaca County Sheriff Office/Water Patrol of Waupaca County and all other individuals empowered to enforce ordinances in the town or state was replaced by language limiting enforcement to any law enforcement officer authorized to enforce the laws of the state of Wisconsin.

That could likely preclude town officials from an enforcement role and plop the towns into the same evidence-gathering conundrum that Kuhn raised on constitutional questions.

Finally, Kuhn stressed, another misconception is that wake boats and devices themselves can be banned, but that is not true.

“The public trust doctrine basically prohibits the excluding of a particular type of boat,” he said. “So the argument that’s being used on these ordinances is that these local units of government aren’t saying you can’t use your surf boat. They’re saying you can’t use your surf boat and the ballast technology that’s part of your surf boat. … Our legal staff has said the public trust doctrine doesn’t kick in because they’re not saying you can’t use a ballast boat. They’re saying you can’t use the ballast technology in a ballast boat.”

For his part, Hartman said many of the issues could be resolved by passing a state statute that his department could enforce, as well provide greater awareness and consistency. 

“A state statute would be more fair because it would be more widely known and would be in the boater regulation manuals,” he said.   

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.