Final Estabrook Dam Lawsuit Ends

Estabrook Dam

The Estabrook Dam was removed in 2018, but the legal battle over the controversial project has only just ended.

The final lawsuit related to the dam has been concluded. On Feb. 13, Chief Judge Diane Sykes of the U.S. Seventh Circuit Court of Appeals dismissed a suit brought by Brian Kreuziger of Glendale seeking compensation for the loss of his riparian rights, specifically, the water level that existed before the destruction of the dam.

Kreuziger was seeking compensation from Milwaukee County and the Milwaukee Metropolitan Sewerage District (MMSD). In affirming a lower court’s dismissal of Kreuziger’s claim, Sykes wrote, “His argument presumes he has a right to a particular water level. He does not.”

The Estabrook Dam was built in the 1930s in response to flooding along the Milwaukee River. A limestone shelf formed during the Devonian Period some 300 to 400 million years ago was to blame. The dam was part of a large project to deepen the river channel along this outcropping of limestone. In 2009, the Wisconsin Department of Natural Resources (DNR) ordered the gates on the dam opened. Two years later, Milwaukee Riverkeeper sued to have the dam removed, and won, but that was just the beginning of the legal battles.

The position of the Riverkeepers was that removing the dam would improve water quality, ecological function and fish passage along this section of the river.

Then-county executive Chris Abele supported demolition.

“It would be an affront to the taxpayers who trust public officials to spend their hard-earned money in a smart and responsible way to essentially throw $4.1 million away by rebuilding an unnecessary dam that provides a nominal benefit to a handful of property owners upstream,” wrote Abele in a 2016 Urban Milwaukee op-ed.

Abele faced opposition on the county board, rallied by Sup. Theodore Lipscomb, Sr., who represented the area. In 2011 and 2014 members of the board took action to pursue a policy of repair for the dam. Between 2014 and 2017, when MMSD closed on a purchase of the dam from the county and the DNR granted a demolition permit, the Riverkeepers would also sue the county and the DNR seeking the dam’s removal. In 2018, the dam was demolished.

One result of the dam’s demolition was that property owners immediately north of it along the Milwaukee River saw the water level along their shoreline drop by approximately four feet from the previous “high water mark,” according to Sykes’ decision. Kreuziger was one of these property owners.

The receding water “exposed a 10-foot stretch of swampy land” on Kreuziger’s property, Sykes wrote. So he sued the county and MMSD, “alleging that their removal of the dam amounted to a taking of his riparian right to the prior surface water level without just compensation.”

Beginning in the 1980s, the dam was opened each fall to release water backed up in the channel. Sykes wrote that the water levels during these seasonal drawdowns were comparable to the water level following the removal of the dam. While Wisconsin residents that own property along rivers do have certain “riparian rights” they do not supercede the state’s public-trust doctrine covering the beds of all navigable lakes and rivers.

After dispensing with the legal arguments and precedents offered by Kreuziger’s claim, Sykes closed the decision, saying, “Kreuziger holds no right to have the Milwaukee River remain at the high-water level created by the Estabrook Dam. The defendants cannot have taken a right that he never had.”