Kreuziger v. Milwaukee County et al

Filing 80

ORDER signed by Judge J P Stadtmueller on 7/29/2022: DENYING as moot 52 Defendants' Motion to Bar Plaintiff's Expert; DENYING as moot 79 Defendants' Motion for Leave to File Sur-Reply; GRANTING 68 Defendants' Motion for Summary Judgment; DENYING 72 Plaintiff's Motion for Partial Summary Judgment; and DISMISSING CASE with prejudice. See Order. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRIAN KREUZIGER,
Plaintiff,
v.
MILWAUKEE COUNTY and
MILWAUKEE METROPOLITAN
SEWERAGE DISTRICT,

Case No. 19-CV-1747-JPS

ORDER

Defendants.
1.

INTRODUCTION
On November 27, 2019, Plaintiff Brian Kreuziger (“Kreuziger”) filed

the present action under Title 42, United States Code, Section 1983, alleging
takings and inverse condemnation claims against Defendants Milwaukee
County (the “County”) and Milwaukee Metropolitan Sewerage District
(“MMSD”) (together “Defendants”) in violation of the United States and
Wisconsin Constitutions. ECF No. 1. Kreuziger originally brought this suit
as a class action but, on March 22, 2021, the Court denied Kreuziger’s
motion for class certification. ECF No. 38. On March 14, 2022, the parties
filed cross-motions for summary judgment as to Kreuziger’s claims on his
own behalf. ECF Nos. 48, 55. On March 17, 2022, the Court denied both
motions without prejudice due to the parties’ failure to follow the summary
judgment protocols set forth in the Court’s July 16, 2021 scheduling order.
ECF No. 62.
On May 5, 2022, the parties refiled their cross-motions for summary
judgment and, as addressed herein, largely complied with the Court’s

protocols. ECF Nos. 68, 72. Both motions are now fully briefed. ECF Nos.
69, 72-1, 73, 76, 77, 78. For the reasons stated herein, the Court will grant
Defendants’ motion for summary judgment, ECF No. 68, and will deny
Kreuziger’s motion for partial summary judgment, ECF No. 72. The Court
will deny as moot Defendants’ motion to quash Kreuziger’s expert, ECF
No. 52, and Defendants’ motion for leave to file a sur-reply brief, ECF No.
79.
2.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, the “court shall grant

summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56; Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A
“genuine” dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts
and reasonable inferences in a light most favorable to the nonmovant.
Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). In
assessing the parties’ proposed facts, the Court must not weigh the
evidence or determine witness credibility; the Seventh Circuit instructs that
“we leave those tasks to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d
688, 691 (7th Cir. 2010).
3.

RELEVANT FACTS
3.1

The Parties’ Submissions

The parties submitted a stipulated statement of undisputed material
facts. ECF No. 70. Both Kreuziger and Defendants also submitted separate,
itemized sets of disputed facts. ECF Nos. 71, 72-2. The parties spill a great
deal of ink in their briefing arguing the merits of their respective separate,
Page 2 of 15

itemized sets of disputed facts. One contested issue is whether Kreuziger’s
separate set of disputed facts complies with the Court’s order, ECF No. 66
at 2, to keep any such separate sets of disputed facts to one page. The Court
determines that Kreuziger complied with the Court’s order, as Civil Local
Rule 56(b)(8)(A) allows captions and signature blocks to be excluded for
purposes of page length computations. Despite this, the Court notes that
any discussion of the parties’ separate sets of disputed facts is nothing more
than a sideshow. As both parties moved for summary judgment and
ostensibly believe their motions to be viable, any separate set of disputed
facts must be concededly immaterial. “[I]f any of the disputed facts are
material, then summary judgment is not appropriate. In short, simply
because an attorney can submit a motion for summary judgment does not
mean that they should.” ECF No. 66 at 2. Nonetheless, the Court makes the
following observations.
Defendants’ separate statement of disputed facts, which describes a
comparison of the surface water level of the Milwaukee River when the
gates of the Dam1 were open to the surface water level following removal
of the Dam, is immaterial to the dispositive question of law addressed
herein: whether Kreuziger has a property right to the space between the
high-surface water level and the low-surface water level of the portion of
the Milwaukee River upon which his property abuts. For the same reason,
Kreuziger’s separate statement of disputed facts, which describes the same
comparison of the Milwaukee River’s surface water levels, as well as the
post-removal effects on navigation and the ecosystem, is also immaterial.
Moreover, at least one of Kreuziger’s proffered facts is a legal conclusion

1

As defined infra, Section 3.2.

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inappropriately disguised as a fact. ECF No. 72-2 at 2 (“The results of the
removal of the Dam are contrary to the purposes commonly sanctioned by
the public trust doctrine.”).
Separately, and notwithstanding the Court’s order instructing the
parties to omit a facts section from their briefing, both parties “snuck” a
facts section into their moving briefs camouflaged as either an
“Introduction” or a “Summary Judgment Predicate” section. ECF Nos. 69,
72-1. For his part, the four-and-one-half page statement of facts in
Kreuziger’s moving brief cites almost exclusively to various affidavits of
Kreuziger; such facts go far beyond those stipulated between the parties
and even beyond those enumerated in Kreuziger’s separate set of disputed
facts. This is a clear flout of the Court’s order.
In light of all of this, the Court will rely only on the parties’ stipulated
statement of undisputed material facts, ECF No. 70. This is the more cogent
set of facts and most closely follows the Court’s directives. The Court will
adopt the statement of undisputed material facts with minor, nonsubstantive edits.
3.2

Statement of Undisputed Material Facts

Kreuziger and his wife purchased property in Glendale, Wisconsin
(“Kreuziger’s Property”) in September of 2000. Kreuziger’s Property abuts
the Milwaukee River and is upstream from the former site of the Estabrook
Dam (the “Estabrook Dam” or the “Dam”). The Milwaukee River meets the
statutory definition of a navigable waterway. The Estabrook Dam was a
public dam, located on the Milwaukee River, and was owned and operated
by the County until it was transferred to MMSD for purposes of removing
the Dam.

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The Public Service Commission issued a permit to the County to
construct the Dam on May 26, 1937, and the Dam was built shortly
thereafter. When the Dam existed, it had gates that could open and close
that could affect the surface water level of the Milwaukee River. Beginning
in at least 1986, there were seasonal drawdowns of the Milwaukee River
where the gates to the Dam would open and close during the year. In the
spring, the gates would close, the river would back up and result in an
artificial impoundment upstream of the Dam, raising the surface water
levels abutting Kreuziger’s Property. The gates would open sometime in
the fall through sometime in the spring the following year, during which
time the surface water level of the Milwaukee River would recede to lower
levels than the surface water levels which occurred without the impediment
of closed gates.
The permit for the Dam, issued in May 1937 by the Public Service
Commission of Wisconsin, makes no mention of authorization for the
seasonal drawdowns where the gates to the Dam would open and close
during the year. On July 28, 2009, the Wisconsin Department of Natural
Resources (the “DNR”) issued an Administrative Order to Repair or
Abandon the Dam. The County applied for a permit to transfer the Dam to
MMSD, which was issued by the DNR on January 19, 2017. MMSD then
applied for a permit to remove the Dam and on October 4, 2017, the DNR
issued an Order permitting MMSD to abandon and remove the Dam.
MMSD began actual demolition of the Dam on February 13, 2018 and
completed substantial removal of the Dam on June 7, 2018.
Since the removal of the Dam, Kreuziger’s Property has not been
permanently flooded above the ordinary high-water mark that existed at
the time the Estabrook Dam was in existence and the gates were closed.
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Currently, Kreuziger’s Property has a tax assessed value of $190,600 and an
estimated fair market value of $206,600.
4.

ANALYSIS
The Takings Clause of the Fifth Amendment provides that private

property shall not “be taken for public use, without just compensation.”
U.S. Const. amend. V. The United States Supreme Court recognizes two
forms of takings that are compensable under the Fifth Amendment: (1) “a
direct government appropriation or physical invasion of private property,”
and (2) “government regulation of private property [that is] . . . so onerous
that its effect is tantamount to a direct appropriation or ouster.” Lingle v.
Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005). Wisconsin law is on all fours.
E-L Enters., Inc. v. Milwaukee Metro. Sewerage Dist., 785 N.W.2d 409, 417 (Wis.
2010) (“Under the Wisconsin Constitution, two types of governmental
conduct can constitute a taking: (1) an actual physical occupation of private
property or (2) a restriction that deprives an owner of all, or substantially
all, of the beneficial use of his property.”) (citations omitted).
Within the latter category, there are three separate tests to determine
whether a regulatory taking has occurred, depending on the facts
presented: (1) “where [the] government requires an owner to suffer a
permanent

physical

invasion

of

her

property—however

minor,”

(2) “regulations that completely deprive an owner of all economically
beneficial use of her property,” and (3) a balancing of “the economic impact
of the regulation on the claimant,” with the “character of the governmental
action.” Lingle, 544 U.S. at 538–39 (citations omitted). Further, both the
United States Supreme Court and the Wisconsin Supreme Court have
“consistently recognized that ‘government action outside the owner’s
property that causes consequential damages within’ does not constitute a
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taking.” E-L Enters., Inc., 785 N.W.2d at 421 (quoting Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 428 (1982)).
Defendants allege that the parties’ dispute centers on whether a
regulatory taking took place and, therefore, falls within the second form of
takings. ECF No. 69 at 7. Kreuziger, though citing to the legal standards
applicable to both forms of takings, does not appear to take a firm stance
on which form he contends took place here, and his Complaint seemingly
brings both forms as two separate claims. ECF No. 72-1 at 6; ECF No. 1 at
10–13. Regardless of the applicable form(s) of takings at bar, the parties
agree that there are four factors that must be present to maintain any claim
for an unconstitutional taking: “(1) a property interest exists; (2) the
property interest has been taken; (3) the taking was for public use; and
(4) the taking was without just compensation.” Adams Outdoor Advertising
LP v. City of Madison, 914 N.W.2d 660, 664–65 (Wis. 2018).
The crux of the parties’ dispute is the first element: whether
Kreuziger has a property right to the area between the high-surface water
level and the low-surface water level of the portion of the Milwaukee River
upon which his property abuts. This issue is dispositive as to either form of
takings; thus, the Court need not analyze the question of whether the
alleged taking here was physical or regulatory. As explained herein, the
Court determines that Kreuziger has no such property right. Accordingly,
a takings claim will not lie.
In United States v. Willow River Power Co., the United States Supreme
Court confronted a legal question remarkably similar to the one presented
here. 324 U.S. 499 (1945). There, the Willow River Power Company, a public
utility corporation of the State of Wisconsin, operated a hydroelectric plant
that relied upon the waters of the St. Croix River to generate energy. Id. at
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500. In 1938, “in pursuance of a congressional plan to improve navigation,”
the government constructed the Red Wing Dam, which caused the surface
levels of the water accessed by the plant to increase by approximately three
feet. Id. at 501. The plant was consequently no longer able to produce
energy. Id. The plant alleged a taking in violation of the Fifth Amendment,
claiming that it had a property right in “the difference between [the
“natural level” of the river] and the artificial level of the impounded water.”
Id. at 509. The Court disagreed. The alleged right constituted but a
privilege or a convenience, enjoyed for many years,
permissible so long as compatible with navigation interests,
but it is not an interest protected by law when it becomes
inconsistent with plans authorized by Congress for
improvement of navigation.
Id. The Court continued, stating that the area below the high-surface water
level is “subject always to a dominant servitude in the interests of
navigation and its exercise calls for no compensation.” Id.
Kreuziger argues that Willow River is distinguishable on the basis
that the removal of the Estabrook Dam did not result in an “improvement
of navigation.” ECF No. 76 at 7. According to Kreuziger, the lowered water
level instead makes it more difficult to navigate the river at the shoreline of
Kreuziger’s Property. Id. (“The removal of the Dam has caused the water
level at the shoreline of Plaintiff’s residence to recede; uncovering a slimy,
boggy, marshy shore . . . and preventing access by recreational boats.”). This
argument is unavailing. Indeed, the Willow River Court expressly addressed
this argument in reiterating its holding that the space below the highsurface water level is not a private property right. “Operations of the
Government in aid of navigation oftentimes inflict serious damage or
inconvenience or interfere with advantages formerly enjoyed by riparian owners,
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but damage alone gives courts no power to require compensation where
there is not an actual taking of property.” Willow River, 324 U.S. at 510
(emphasis added).
The holding in Willow River is binding upon this Court and is
dispositive as to the question of law: whether the area between the highand low- surface water levels of the Milwaukee River is a property right.
Willow River teaches that the area is not a private property right, but rather
a mere privilege or convenience that must give way to the government’s
authority to regulate navigable waters. As Willow River further instructs,
simply because there is no “improvement” in navigation along an
individual riparian owner’s shoreline does not mean that a government
project—here, the DNR’s decision under the Wisconsin public trust
doctrine to issue the permit to remove the Dam— was not intended to aid
navigation overall.
The Wisconsin public trust doctrine derives from that portion of the
Wisconsin Constitution that provides that “the state holds the beds of
navigable waters in trust for public use.” ABKA Ltd. P’ship v. Wis. Dep’t of
Nat. Res., 635 N.W.2d 168, 177 (Wis. Ct. App. 2001). The public trust doctrine
is regulated by the legislature and the DNR and is designed to “protect
commercial navigation” as well as “protect the public’s use of navigable
waters for purely recreational and nonmonetary purposes.” Id. In enforcing
the public trust doctrine, the legislature and the DNR must consider such
factors as “the wish to preserve the natural beauty of [Wisconsin’s]
navigable waters, to obtain the fullest public use of these waters, including
but not limited to navigation, and to provide for the convenience of riparian
owners.” Id. Additional factors for the legislature’s and the DNR’s
consideration include “maintaining the safe and healthful conditions of the
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water, protecting spawning grounds and aquatic life, controlling the
placement of structures and land uses, preserving shore cover and natural
beauty, and promoting the general attractiveness and character of the
community environment.” Id.
The legislature has passed statutes pursuant to the Wisconsin public
trust doctrine that vest the DNR with the authority to “regulate and control
the level and flow of water in all navigable waters” with the aim to “protect
life, health, property, property values, and economic values.” Wis. Stat.
§ 31.02(1). Pursuant to that grant of authority, the DNR “may investigate
and determine all reasonable methods of construction, operation,
maintenance, and equipment for any dam so as to conserve and protect all
public rights in navigable waters and so as to protect life, health and
property.” Wis. Stat. § 31.02. Indeed, dams may not be removed or altered
without the DNR first issuing a permit for the same. Wis. Stat. § 31.185(1).
As part of the statutory scheme governing the issuance of permits for the
removal or alteration of dams, the DNR must, inter alia, investigate the
permit, including evidence offered by the applicant and any respondents,
make findings of fact and conclusions of law, and issue an order on the
permit. Wis. Stat. § 31.06. Such an order may then be challenged under
Chapter 227 of the Wisconsin statutes, which prescribes the method to seek
review of an agency decision.
On the record before it, there is nothing demonstrating to the Court
that the DNR did not abide by the prescribed statutory process when it
investigated and approved the permit to remove the Estabrook Dam. Thus,
the DNR acted within its authority to regulate navigable waters and, under
the guidance of Willow River, the “privilege or convenience” of a higher
shore level that Kreuziger enjoyed at times during years past must give way
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to this authority. See Protect Our Parks, Inc. v. Buttigieg, No. 21-2449, 2022
WL 2376716, at *6 (7th Cir. July 1, 2022) (when “agencies considered the
proper factors . . . their decision is entitled to deference”) (citations omitted).
At any rate, the DNR is not a party to this case and any challenge to its order
issuing the permit to remove the Dam must proceed through the proper
channels, which are discussed infra. Regarding the arguments presently
before the Court, Willow River instructs that, because the subject area is not
a private property right, the exercise of the DNR’s authority “calls for no
compensation” under the Fifth Amendment. 324 U.S. at 509.
Wisconsin case law holds similarly to Willow River. A riparian owner
has an absolute property right to the area above the high-surface water
level. Ill. Steel Co. v. Bilot, 84 N.W. 855, 856 (Wis. 1900). And, under the
public trust doctrine, the State of Wisconsin holds the waters under the lowsurface water level in trust for the public. ABKA, 635 N.W.2d at 177.
Although not a takings case, Doemel v. Jantz addresses the issue of whether
a riparian owner’s property right extends to the low-surface water level or
stops at the high-surface water level. 193 N.W.393, 394 (Wis. 1923). There,
the Wisconsin Supreme Court held that, “as to the strip between ordinary
high and low water marks, the title of the riparian owner [i]s only a
qualified title,” and is ”subject to the trust under and pursuant to which the
state has title for the benefit of the public for the purposes of navigation and
incidents thereto belonging.” Id. at 398. In other words, as in Willow River,
a riparian owner enjoys the privilege of the area between the high- and lowsurface water levels of a navigable waterway, subject to the government’s
authority to regulate it for navigation. See also Mayer v. Grueber, 138 N.W.2d
197, 202 (Wis. 1965) (“The title of the riparian owner is, however, a qualified
one, subject to the paramount interest of the state.”).
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Kreuziger hinges his argument on the Wisconsin Supreme Court’s
holding in Smith v. Youmans, 70 N.W. 1115 (Wis. 1897). There, the plaintiffriparian owner brought suit against a fellow riparian owner to restrain the
latter, who owned a dam, from lowering the water levels of the lake upon
which both owners’ properties abutted. Id. at 1115. The court held that the
defendant-riparian owner must be so restrained because the plaintiff had a
property right in the high-surface water levels. Id. at 1116. While seemingly
on point, this argument misses the mark. In Willow River, decided after
Youmans, the United States Supreme Court explicitly addressed the
difference between property rights in water levels as between two equal
riparian owners and property rights in water levels as between one riparian
owner and the government:
Whatever rights may be as between equals such as riparian
owners, they are not the measure of riparian rights on a
navigable stream relative to the function of the Government
in improving navigation. Where these interests conflict they
are not to be reconciled as between equals, but the private
interest must give way to a superior right, or perhaps it would
be more accurate to say that as against the Government such
private interest is not a right at all.
324 U.S. at 510. Youmans is thus inapposite. Moreover, in addition to predating Willow River, Youmans also pre-dated the codification of the public
trust doctrine in 1915, which granted the DNR and the legislature the
exclusive authority to regulate navigable waters. Wis. Stat. § 31.02.
Kreuziger next argues that Wisconsin courts construe the word
“taken” from the Wisconsin Constitution broadly to “include cases in which
the access to abutting premises is obstructed,” though Kreuziger stops short
of applying this legal principle to the facts of this case. ECF No. 78 at 9
(quoting Damkoehler v. Milwaukee, 101 N.W. 706, 708 (Wis. 1904)).
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Nonetheless, Damkoehler too is inapposite as it deals with a private property
right, which the Court has determined is not present here, as well as “actual
appropriation” of that right. Id. at 708. There, a highway improvement
project caused damage to an abutting landowner, but it was not the damage
that was dispositive for the court in determining a taking took place; it was
the fact that the land subsided and “f[e]ll into the street,” which amounted
to “an actual appropriation of the soil.” Id. No such appropriation of any
private property has occurred here.
Finally, Kreuziger argues that, in the alternative to a property right
to the area between the high- and low- surface water levels, he has rights to
the area as a member of the public under the public trust doctrine. ECF No.
72-1 at 7. Specifically, Kreuziger argues that his public rights to “boating,
swimming, fishing, hunting, and preserving scenic beauty” have been
violated by Defendants’ removal of the Dam. Id. at 7–9 (quoting Movrich v.
Lobermeier, 905 N.W.2d 807, 814 (Wis. 2018) (“The public rights protected
under the public trust doctrine include boating, swimming, fishing,
hunting, and preserving scenic beauty.”)). Kreuziger contends that such
public rights under the public trust doctrine were “taken” because the DNR
issued the permit that allowed Defendants to “orchestrate[] the removal of
the Dam to avoid the cost of repairing the Dam.” ECF No. 78 at 15.
Although Kreuziger seemingly acknowledges this maxim of the
public trust doctrine, the Court finds it prudent to remind Kreuziger that
“[t]he public trust doctrine does not convey private property rights.” Movrich,
905 N.W.2d at 815 (emphasis added). Both the Fifth Amendment of the
United States Constitution and Article I, Section 13 of the Wisconsin
Constitution apply expressly to only private property. U.S. Const. amend. V
(“[N]or shall private property be taken for public use, without just
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compensation.”); Wis. Const. art. I, sec. 13 (titled “Private property for
public use.”). Consequently, a takings claim is the incorrect vehicle to bring
arguments regarding deprivation of public rights under the public trust
doctrine. Kreuziger should have recognized as much through a close read
of his proffered case law. See, e.g., ECF No. 78 at 13 (citing Rock-Koshkonong
Lake Dist. v. State Dep’t of Nat. Res., 833 N.W.2d 800, 804–10 (Wis. 2013)).
Rock-Koshkonong analyzes efforts, under the public trust doctrine, to appeal
a DNR decision regarding the surface water levels of navigable waters, as
affected by dams. The process the parties employed to pursue such a claim
against the DNR (which, as mentioned supra, is not a party to this case) was
governed by Chapter 227 of the Wisconsin statutes for administrative
procedure and review—not the takings clauses of the United States and
Wisconsin Constitutions.
This case presents the Court with a narrow legal question: whether
the area between the high- and low- surface water levels of a navigable
waterway upon which a riparian owner’s property abuts is a property right.
The Court has reviewed binding United States Supreme Court precedent,
as well as Wisconsin case law in lockstep, and answers the question in the
negative. Because a private property right is a required element of
Kreuziger’s claims, the Court is constrained to dismiss this action with
prejudice.
5.

CONCLUSION
For the reasons explained above, the Court grants Defendants’

motion for summary judgment, ECF No. 68, and denies Kreuziger’s motion
for summary judgment, ECF No. 72. Kreuziger’s claims are dismissed with
prejudice. The Court denies as moot Defendants’ motion to quash

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Kreuziger’s expert, ECF No. 52, and Defendants’ motion for leave to file a
sur-reply, ECF No. 79.
Accordingly,
IT IS ORDERED that Defendants Milwaukee County and
Milwaukee Metropolitan Sewerage District’s motion to quash Plaintiff
Brian Kreuziger’s expert, ECF No. 52, be and the same is hereby DENIED
as moot;
IT IS FURTHER ORDERED that Defendants Milwaukee County
and Milwaukee Metropolitan Sewerage District’s motion for leave to file a
sur-reply, ECF No. 79, be and the same is hereby DENIED as moot;
IT IS FURTHER ORDERED that Defendants Milwaukee County
and Milwaukee Metropolitan Sewerage District’s motion for summary
judgment, ECF No. 68, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff Brian Kreuziger’s motion
for partial summary judgment, ECF No. 72, be and the same is hereby
DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of July, 2022.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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