¶ 56. (dissenting). I dissent from the majority *648opinion's holding that the Attorney General lacks standing to bring this action.
¶ 57. The lengthy majority opinion gives many reasons, none persuasive, for reaching the wrong result. I shall limit my dissent to six points.
¶ 58. I. A major reason the majority opinion reaches the wrong result is that it begs the question presented in the case. Specifically, the majority asks whether the Attorney General has specific statutory authority to challenge the constitutionality of Wis. Stat. § 30.056. But the question properly presented by this case is whether the Attorney General has statutory authorization to bring the action to abate this alleged public and common law nuisance. I conclude the Attorney General clearly has statutory authority to bring this action and therefore he may challenge the constitutionality of Wis. Stat. § 30.056 as one of the arguments to support the litigation. See ¶¶ 64-78 below.
¶ 59. II. In answering the questions it poses, the majority opinion errs in implying that regardless of the Attorney General's statutory powers to initiate an action the Attorney General must also have specific statutory authority to challenge the constitutionality of Wis. Stat. § 30.056. See ¶¶ 79-83 below.
¶ 60. III. In reaching beyond this case to limit the powers of the Attorney General, the majority opinion rests on a 1908 case (and its progeny). Wisconsin state constitutional law scholars characterize the 1908 case and its progeny as "dubious." See ¶¶ 84-85 below.
¶ 61. IV. The majority opinion's simple recitation of state constitutional history to support its decision makes the history simpler than it really is. The omitted part of the story supports the position that *649the Attorney General has common law powers. See ¶¶ 86-93 below.
¶ 62. V. Three important doctrines — the great public concern doctrine, the Attorney General's power to bring an original action in the court challenging the constitutionality of a statute, and the public trust doctrine — read together, support the position that the Attorney General has standing to bring the action in the present case.- See ¶¶ 94-113 below.
¶ 63. VI. The majority opinion offers no compelling justification for reading the Attorney General's powers in such a restrictive manner. See ¶¶ 114-118 below.
HH
¶ 64. The majority opinion fails to ask and answer the determinative question presented in this case. The majority asks does the Attorney General have statutory authority to attack the constitutionality of § 30.056. Majority op. ¶¶ 1 and 55. The majority opinion correctly answers this question in the negative. I agree with the majority opinion that no statute expressly authorizes the Attorney General to attack the constitutionality of Wis. Stat. § 30.056 (1995-96).
¶ 65. The majority opinion also implicitly asks, does the Attorney General have authority to attack the constitutionality of a statute in a lawsuit that the Attorney General has statutory authority to bring? The majority opinion correctly suggests that this question should be answered in the affirmative. Majority op. ¶¶ 42, 44-46, 49 and n.25.1 I agree with the majority *650opinion that when a statute expressly authorizes the Attorney General to bring a lawsuit, the Attorney General may attack the constitutionality of a statute in pursuing that lawsuit. The majority opinion, however, also implies that the Attorney General needs express statutory authority to challenge the constitutionality of a particular statute.2
¶ 66. The majority opinion fails to ask and answer the question posed by the present case: Does any statute expressly authorize the Attorney General to bring the present lawsuit? I answer this question in the affirmative. Wis. Stat. §§ 30.924 and 823.01-.02 (1995-96)3 expressly provide a statutory basis for the Attorney General's power to initiate this lawsuit to enjoin a statutory and common law public nuisance.
¶ 67. In 1996 the Attorney General initiated this lawsuit in circuit court to enjoin a public nuisance (whether a statutory or a common law nuisance) created by the City of Oak Creek in Crawfish (a.k.a. Crayfish) Creek. As the majority opinion correctly *651acknowledges, this case is about the Attorney General's action to abate a public nuisance. Majority op. ¶ 1. The challenge to the constitutionality of Wis. Stat. § 30.056 is part of the underlying litigation brought against Oak Creek to enjoin the public nuisance.
¶ 68. The Attorney General sought injunctive relief under Wis. Stat. §§ 30.294 and 823.01-.02 to require the City of Oak Creek to remove a concrete channel from Crawfish Creek, claiming that the concrete was a public nuisance. Majority op. ¶ 1. These statutes by their express language authorize the Attorney General to seek injunctive relief against what the Attorney General alleges is a public nuisance.
¶ 69. Section 30.294 governing chapter 30 statutory public nuisances provides that "[ejvery violation of this chapter [30] is declared to be a public nuisance and may be prohibited by injunction and may be abated by legal action brought by any person."
¶ 70. Section 823.01, governing common law nuisances, expressly authorizes any person to bring an action to enjoin a public nuisance.4 The parties do not dispute that the Attorney General qualifies as "any person" under these statutes. Furthermore § 823.02 specifically authorizes the Attorney General to bring an action to enjoin a public nuisance.5
*652¶ 71. The majority opinion dismisses the Attorney General's claim to these express statutory powers to initiate this action to enjoin a public nuisance in one conclusory sentence. The majority opinion states that "those statutes do not provide specific authority to sue in this case because § 30.056 expressly negates the effect of § 30.294." Majority op. ¶ 36.
¶ 72. This sentence begs the question raised in this case. The question in the present case is whether Wis. Stat. § 30.294 or §§ 823.01-.02 authorize the Attorney General to bring an injunction action against Oak Creek for what the Attorney General concludes is a public nuisance. The answer to this question is clearly yes. It is clearly yes, even though § 30.056 declares that Oak Creek cannot be required to remove any deposit it placed in Crawfish Creek before June 1, 1991.
¶ 73. Section 30.056 provides that "notwithstanding ss. 30.12,6 30.19,7 30.1958 and 30.294," Oak *653Creek may not be required to remove any concrete placed in Crawfish Creek before June 1, 1991. The Attorney General's statutory power to initiate this action against Óak Creek under § 30.294 to enjoin what he thinks is a public nuisance remains in effect after the enactment of § 30.056. If § 30.056 is a constitutional enactment, a court might not grant the Attorney General the injunction he seeks.
¶ 74. Although a court may disagree with the Attorney General that Oak Creek's conduct constitutes a nuisance, the legislature has not vitiated in Wis. Stat. § 30.056 the Attorney General's express statutory authority to bring an action to enjoin what the Attorney General considers a nuisance. The legislature could have expressly stated in § 30.056 that no person may bring an action under § 30.294 against Oak Creek for its pre-1991 conduct regarding Crawfish Creek. The legislature did not enact such a law. Rather, the legislature in adopting § 30.056 eliminated one remedy available against Oak Creek, namely ordering removal of the concrete. After the adoption of § 30.056, any person may sue Oak Creek for its conduct, but § 30.056, if valid and applicable, may bar one remedy.
¶ 75. Furthermore, Wis. Stat. § 30.056 is silent about the Attorney General's powers under §§ 823.01-.02 relating to common law nuisances. The *654Attorney General alleges in this litigation that the concrete channel in Crawfish Creek constitutes a common law nuisance.
¶ 76. Section 30.056 does not refer to §§ 823.01-.02 and does not in any way address the Attorney General's power to enjoin an alleged common law nuisance under these sections. Oak Creek's defense in any injunction suit brought under these sections might be that the legislature has retroactively declared in § 30.056 that Oak Creek's conduct does not violate the listed statutory provisions in chapter 30 and is therefore not a common law public nuisance. One of the Attorney General's responses might be that § 30.056 is unconstitutional.
¶ 77. For the reasons set forth, I conclude that the Attorney General is authorized by three statutes to bring this action against Oak Creek for maintaining a public nuisance.9 Professor Christenson, upon whom the majority opinion relies, describes the power to enjoin public nuisances as "perhaps the most important of all the Attorney General's initiative powers" *655and allows the Attorney General to play an important role in the protection of the environment.10
¶ 78. The majority opinion's cavalier dismissal in one sentence of three statutes expressly authorizing the Attorney General to bring an action regarding a public nuisance is contrary to law and logic. In holding that the Attorney General does not have standing to bring this action against a public nuisance, this court is fundamentally restricting the Attorney General's express statutory powers.
J — i H-1
¶ 79. Although I have shown above that the majority opinion acknowledges that the Attorney General has authority to attack the constitutionality of a statute in a lawsuit that the Attorney General has statutory authority to bring, majority op. ¶¶ 42, 44-46, 49 and n.25, the majority opinion also suggests the contrary position. The majority opinion states that regardless of the Attorney General's statutory powers to initiate an action, the Attorney General must also have specific statutory authority to challenge the constitutionality of Wis. Stat. § 30.056.11
¶ 80. The majority opinion states at ¶ 35, for example, that "because the attorney general must defend the constitutionality of the statutes, any challenge to the statutes on his part would conflict with his duty to defend, unless specifically authorized by stat*656ute." It further states at ¶ 36 that "none of the statutory sections the attorney general cites gives him the specific authority to challenge § 30.056." See also majority op. ¶ 40. The majority opinion cites no authority for these sentences limiting the powers of the Attorney General in conducting litigation expressly authorized by statute, and I could find none.12 These inconsistent positions in the majority opinion are puzzling.
¶ 81. There is no statute or case law supporting the majority's position that when the Attorney General has express statutory authority to bring a cause of action he needs specific authority to challenge the constitutionality of a statute. Prohibiting the state's chief legal officer from challenging the constitutionality of a statute in the course of enforcing his statutory authority has no statutory or constitutional basis. Indeed the rule appears to be that the Attorney General has inherent discretion to act in furtherance of lawful litigation unless his action is palpably illegal.13
*657¶ 82. In numerous cases in which the Attorney General was authorized to appear, the Attorney General has challenged the constitutionality of legislative acts. See majority op. ¶ 49 n.25. No statute or case law prohibits the Attorney General from challenging the constitutionality of a statute in an action that he has authority to bring.
¶ 83. I agree with the Attorney General that holding that the Attorney General needs specific statutory authority to sue is significantly distinct from the majority opinion holding that when the Attorney General has express statutory authority to bring an action, he or she needs additional express statutory authority to challenge the constitutionality of a statute. The law is clear that if the Attorney General has authority to bring an action, he or she does not need express authority to challenge the constitutionality of a statute.
rH HH
¶ 84. In reaching beyond the facts of this case to limit the powers of the Attorney General, the majority opinion rests on a 1908 case, State v. Electric Railway & Light Co., 136 Wis. 179, 116 N.W. 900 (1908). This was the first case in which the court declared that the Attorney General is without power to initiate a suit without express statutory authority. Professors Scott Van Alstyne and Larry J. Roberts, in their article entitled The Powers of the Attorney General in Wisconsin, 1974 Wis. L. Rev. 721, 736-37, upon which the majority *658opinion relies, characterize Electric Railway as unpersuasive and lacking in historical analysis and in basic logic. They concluded that the case is "dubious." Van Alstyne and Roberts criticize the cases subsequent to Electric Railway, several of which are cited by the majority opinion, as adding nothing to the unpersuasive analysis of the original holding.14
¶ 85. The majority opinion's discussion of the constitutional and judicial history relating to the powers of the Attorney General unfortunately fails to acknowledge or correct the errors in our early cases. More importantly, the majority does not explain why these cases are persuasive. Stare decisis does not mean that the court should continue to adhere to unexplained and unpersuasive prior statements of this court.
IV
¶ 86. The majority opinion's recitation of state constitutional history to support its decision makes the history simpler and clearer than it is. The omitted part of the story supports the position that the Attorney General has common law powers.
¶ 87. The majority opinion relies on Charles M. Baker's 1849 revision of the Wisconsin laws to support its interpretation that the Wisconsin constitution denies the Attorney General common law powers.
¶ 88. The majority opinion attempts to persuade the reader that "Baker relied on [New York] laws that had similarly precluded the attorney general's common law powers." Majority op. ¶ 31. Nothing in the New York laws upon which Baker relied declared that the attorney general had no common law power.
*659¶ 89. The majority opinion's sole authority that the New York attorney general does not have common law powers is a 1941 New York case, People v. Dorsey, 29 N.Y.S.2d 637, 642 (Queens County Ct. 1941), that was decided almost 100 years after Charles Baker consulted the New York statutes.
¶ 90. Dorsey poses two problems for the majority opinion which the opinion chooses to ignore. First, in Dorsey itself, a 1941 case, the New York court wrote that "[a]s to the rights, powers and authority of the Attorney General, the decisions are in conflict." Dorsey, 29 N.Y.S.2d at 641. The Dorsey court went on to explain that in some earlier cases the New York courts held that the attorney general possesses common law powers. The Dorsey court's ultimate conclusion was that the New York attorney general had only those powers that are granted by the constitution and legislature. Dorsey, 29 N.Y.S.2d at 643-44. This statement does not help the majority opinion because it comes long after Charles Baker looked to New York law about the powers of the attorney general. Apparently whether the New York attorney general had common law powers was not a settled question when Baker examined New York law.
¶ 91. Second, Dorsey is of limited value in this case because Dorsey is a criminal case relating to the criminal prosecution powers of the New York attorney general. Dorsey was concerned with the authority of the New York attorney general versus the power of the county district attorneys to conduct criminal investigations. Most New York cases that cite to Dorsey do so for its holding that the New York attorney general lacks the common law power to prosecute criminal *660offenses.15 This purely criminal context renders Dorsey of limited value in the case before this court.
¶ 92. Third, in addition to New York law, Charles Baker also relied on the laws of Missouri in drafting the 1849 Wisconsin laws regarding the Attorney General.16 Like the Wisconsin constitution, the Missouri constitution grants to the Missouri attorney general powers "prescribed by law" (Missouri Const, art. V, § 1). However, the Missouri courts have held that its attorney general retains the powers available at common law, unless specifically excluded by the legislature. McKittrick v. Missouri Pub. Serv. Comm., 175 S.W.2d 857, 861 (Mo. 1943) (en banc)(relying on a statute similar to Wis. Const, art. XIV, § 13, which retains the common law that is not inconsistent with the constitution or statutes). Van Alstyne and Roberts carefully discuss Charles Baker's work and assert that the Wisconsin cases have ignored the possibility that the statutes drafted by Baker might have incorporated the common law.17
¶ 93. The majority opinion's recitation of the constitutional history, although superficially persuasive, *661is an oversimplification. The history does not unambiguously support the majority's position that the Attorney General has no common law powers, as the majority opinion would have us believe.
V
¶ 94. Three important doctrines — the great public concern doctrine, the Attorney General's power to bring an original action in the court challenging the constitutionality of a statute, and the public trust doctrine — read separately and read together, support the position that the Attorney General has standing to bring the action in the present case.
A, The Great Public Concern Doctrine
¶ 95. The general rule is that state agencies, public officers, and municipalities have no standing to challenge the constitutionality of statutes. Fulton Foundation v. Department of Taxation, 13 Wis. 2d 1, 11, 108 N.W.2d 312 (1961). One exception to this rule is that these governmental entities may challenge constitutionality of a statute when the issue is of great public concern. In Fulton Foundation we described great public concern as a "matter of great public interest." Fulton Foundation, 13 Wis. 2d at 13.
¶ 96. As was made clear in The Attorney General v. The City of Eau Claire, 37 Wis. 400 (1875), protecting Wisconsin rivers, which is exactly what this case is about, is a matter of great public interest to the state as a whole. This case involves a navigable stream and the "forever free" and public trust doctrines, which I discuss in greater detail below. It easily falls within our prior cases determining what constitutes "great public concern."
*662¶ 97. The majority opinion holds that the great public concern doctrine does not apply in this case for two reasons. First, it states that "it is not the attorney general's duty to challenge the constitutionality of Wis. Stat. § 30.056." Majority op. at ¶ 40. The question is not duty in this case but authority. I previously have discussed the Attorney General's authority to challenge the constitutionality of a statute when the Attorney General has express statutory authority to initiate an action.
¶ 98. Second, the majority opinion says that the "great public concern" doctrine does not apply "to suits between two creatures of the state," majority op. ¶ 41, and the Attorney General and Oak Creek are creatures of the state. Several cases have stated that the great public concern exception applies only between a state agency or municipality and a private litigant, not between two "creatures" of the state.18
¶ 99. These cases fail to explain, however, how this judicially created limitation relates to the question whether an issue is of great public concern. Furthermore, the cases fail to give any compelling reason for excluding disputes between arms of the government from the great public concern doctrine.
*663¶ 100. Indeed this court has ignored its own created bar and allowed suits between arms of the government. This court has, for example, allowed a municipality to challenge the constitutionality of a collective bargaining statute in its suit against a state agency. See Unified S.D. No. 1 of Racine Cty. v. WERC, 81 Wis. 2d 89, 259 N.W.2d 724 (1977). The cases are thus inconsistent about the application of the rule.
¶ 101. Furthermore, several of this court's holdings, including Fulton Foundation, the case that first recognized the great public concern exception, have suggested that the great public concern doctrine is most needed when private citizens are not apt to bring an action.19 In this case the Attorney General plays a critical role because no individual litigant is likely to challenge Oak Creek's conduct or § 30.056.
¶ 102. As is apparent from our own cases, the judicially created rule excluding suits between arms of government from the great public concern doctrine has no logical foundation and is not consistently applied. A doctrine that has been judicially created should be overturned when the rationale for the doctrine is not evident and the application of the doctrine has not been coherent or consistent.20 I would overturn the judi-*664daily created rule excluding suits between arms of government from the great public concern doctrine. I would allow the present suit to continue because it falls within the great public concern doctrine.
B. The Attorney General's Original Action Jurisdiction
¶ 103. The majority opinion recognizes, as it must, that this court has for more than 125 years permitted the Attorney General to challenge the constitutionality of statutes in original actions in this court without specific statutory authority to bring the action to challenge the constitutionality of the statute. Majority op. ¶¶ 42,45, n.22. See also Arlen C. Christen-son, The State Attorney General, 1970 Wis. L. Rev. 298, 303 (noting that the question of the Attorney General's authority to bring an original action has been assumed); Jack Stark, The Wisconsin State Constitution: A Reference Guide (1998) at 132 (noting that the power to bring original actions is an example of this court expanding the powers of an Attorney General beyond a strict reading of the constitution).
¶ 104. Original action cases by the Attorney General challenging the constitutionality of statutes do not *665square with today's holding. The majority opinion shrugs these cases off by writing that the Attorney General's power to bring original actions "appears to be an anomaly." Majority op. ¶ 44. Anomaly means deviation. But since the majority takes the position that the Attorney General is constitutionally prohibited from bringing actions or challenging the constitutionality of statutes unless the Attorney General has specific statutory authorization to do so (¶ 35), the majority opinion's allowing a deviation from this constitution-based rule is impermissible. Simply because this court has the power to accept or decline the Attorney General's petition for an original action does not mean that the agreement of four members of this court can permit what would otherwise be an uniconstitutional exercise of authority by the Attorney General.
¶ 105. I believe that the original action cases are best understood as a subset of the great public concern line of cases. A brief review of several cases will demonstrate that original actions brought by the Attorney General are allowed only if the matter is important to the state as a whole.
¶ 106. In The Attorney General v. The City of Eau Claire, 37 Wis. 400 (1875), the Attorney General brought an original action to challenge the constitutionality of a statute delegating authority to the city of Eau Claire to obstruct a navigable river. In that case, remarkably similar to the one at bar, the court concluded that allowing a city to dam a navigable river violated the public trust and merited the granting of original jurisdiction. 37 Wis. at 446-47. See also Petition of Heil, 230 Wis. 428, 440, 284 N.W. 42 (1939) (obstruction of navigable river invokes supreme court's original jurisdiction).
*666¶ 107. In State ex rel. Attorney General v. Cunningham, 81 Wis. 440, 51 N.W. 724 (1892), the court considered an original action brought by the Attorney General against the secretary of state challenging the constitutionality of a statute in order to enforce Wisconsin citizens' equal representation in government. "{T]he rights vindicated and protected from the prejudicial effect of an unconstitutional act of the legislature.. .were rights of sovereignty which the state in its political capacity held and was bound to guard and protect...." Cunningham, 81 Wis. at 500-501. The court analogized the right of equal representation to the rights discussed in City ofEau Claire, the right of citizens to have the public trust doctrine enforced and protected. Cunningham, 81 Wis. at 500-01. In State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 552, 126 N.W.2d 551 (1964), the court similarly stated that it "has consistently held that the state, acting either through the Governor or the Attorney General, may challenge the constitutionality of a state reapportionment plan... ."21
¶ 108. These and other cases demonstrate that the court allows an original action to proceed when the matter is publici juris (of importance for the state as a whole). But there are criteria other than publici juris for this court granting leave to bring an original action: the need for speedy resolution is one; no adequate remedy in the circuit court or disputed facts are others. Petition of Heil, 230 Wis. at 440-41. Thus even if a *667matter is publici juris this court might not grant original jurisdiction if, for example, facts are in dispute. According to the majority decision, then, if the court would have granted the Attorney General leave to bring an original action in this case then the Attorney General might challenge the constitutionality of § 30.056. See majority op. ¶ 42, n.22. But since the facts are in dispute, as Oak Creek claims in this case, we would not take the original action and the majority opinion would bar the Attorney General from bringing the publici juris lawsuit in circuit court. If this court would refuse original jurisdiction and remand the case to the circuit court, the Attorney General would have express statutory power to appear. See Wis. Stat. § 165.25(1). If this court merely dismisses the petition for original action, under the majority opinion the Attorney General could not bring the suit. This jurisprudence makes no sense. Judicially created law should make sense. If it doesn't, the court should try again.
¶ 109. This court's continuing recognition of the power of the Attorney General for the past 125 years, cases preceding the 1908 Electric Railway case, 137 Wis. 179, see ¶¶ 84^85 above, cannot be squared with today's holding. These original action cases are not anomalies; they are sound precedent that this court should follow and hold that the Attorney General has standing to bring this action.
C. Public Trust Doctrine
¶ 110. The third doctrine of importance here is the state public trust doctrine. This doctrine recognizes that the state holds beds underlying navigable waters in trust for all Wisconsin citizens. Muench v. Public *668Serv. Comm’n, 261 Wis. 492, 501-02, 53 N.W.2d 514 (1952).
¶ 111. Although the legislature has the primary authority to administer the public trust, the public trust doctrine allows a person, including the Attorney General, to sue on behalf of, and in the name of, the State " 'for the purpose of vindicating the public trust.'" Gillen v. City ofNeenah, 219 Wis. 2d 806, 822, 580 N.W.2d 628 (1998) (quoting State v. Deetz, 66 Wis. 2d 1, 13, 224 N.W.2d 407 (1974)). The importance of the public trust doctrine and the state's role in enforcing that doctrine have been emphasized for over 100 years.22
¶ 112. The public trust doctrine is clearly implicated in this case. The Attorney General claims that Oak Creek's concrete channel creates a public nuisance and that in trying to legalize that nuisance the legislature has violated the "forever free" clause of art. EX, § 1, of the Wisconsin Constitution and the public trust doctrine.23 Whether the legislature has abdicated the *669public trust in the navigable waters of the state is, without question, an issue of great public concern.
¶ 113. The state's constitutional history and our cases setting forth the three doctrines I have discussed support the proposition that the Attorney General has standing to bring this action.24
VI
¶ 114. Finally, the majority provides no compelling justification for reading the Attorney General's powers in such a restrictive manner. The majority offers two rationales to explain why the Attorney General lacks standing to bring this action. Both are weak and unpersuasive.
¶ 115. First, the majority argues that it is the duty of the Attorney General to defend the constitutionality of statutes. Majority op. at ¶ 35 (citing cases). The majority opinion refers to Wis. Stat. § 806.04(11) as setting forth this duty. That statute says nothing of the kind. It merely requires that the Attorney General be given notice when the constitutionality of a statute *670is challenged and allows the Attorney General to be heard on the issue.
¶ 116. There is no requirement, in the statutes or otherwise, that the Attorney General defend the constitutionality of all statutes. Indeed, such a duty would be completely at odds with original action cases in which the Attorney General has attacked the constitutionality of statutes.25 A duty to defend the constitutionality of all statutes contravenes the Attorney General's oath of office, the same oath judges take, to defend the Wisconsin Constitution. Defending the constitution includes a duty to assert the unconstitutionality of legislative or executive acts.26 The authority to challenge the constitutionality of a statute is properly located in the constitutionally created state law enforcement officer elected directly by the citizens.
¶ 117. The majority's second rationale for restricting the powers of the Attorney General is that the Department of Natural Resources is dominant to the Attorney General in protecting state waters and it is therefore the Department's duty to protect Crawfish Creek. See majority op. at ¶ 50 (citing Public Inter-*671venor v. DNR, 115 Wis. 2d 28, 38-39, 339 N.W.2d 324 (1983)). This very argument, that it is the sole province of the DNR to decide when a public trust violation has occurred and how it should be addressed, was handily rejected by this court in Gillen v. City of Neenah, 219 Wis. 2d 806, 831-32, 580 N.W.2d 628 (1998). In that case we declined to adopt such an interpretation of Wis. Stat. § 30.294, noting that the legislature authorized any person to abate public nuisances years before the DNR was even created and retained this statute after it created the DNR. Gillen, 219 Wis. 2d at 832.
¶ 118. Both of the rationales offered by the majority opinion to justify its result do not pass muster. Essentially, the majority opinion has strung together statements taken out of context from various cases. A careful reading of the opinion and the materials on which it relies demonstrates that the decision rests on rickety and unsteady foundations.
* * *
¶ 119. More than 25 years ago Van Alstyne and Roberts suggested in their article that this court reexamine the judicial limitation it has placed on the Wisconsin Attorney General's powers.27 The majority opinion is the latest in a series of questionable cases relating to the powers of the Attorney General. The result is that Wisconsin's jurisprudence about the power of the Attorney General is unduly restrictive and intellectually confusing and inconsistent. Our task is to clarify the confusion, not continue the confusion. We have failed in this case. I therefore dissent.
*672¶ 120. I am authorized to state that Justices WILLIAM A. BABLITCH and ANN WALSH BRADLEY join this dissent.1n n.25 the majority opinion apparently accepts that the Attorney General has the power to challenge the constitutionality of statutes in quo warranto actions because Wis. Stat. § 784.04(1) authorizes the Attorney General to bring quo war-*650ranto. Similarly, the majority opinion accepts the Attorney General's power to challenge the constitutionality of statutes at the behest of the legislature or governor because of Wis. Stat. § 165.25(1), which states that the Attorney General, "if requested by the governor or either house of the legislature, appear for and represent the state. . .[in any matter] in which the state or people of the state may be interested."
The majority opinion also recognizes that the Attorney General may attack the constitutionality of a statute in an original action in this court despite no statute authorizing the Attorney General to bring the original action. I will address this issue in Part V, ¶¶ 94-113 below.
1 will discuss this aspect of the majority opinion in Part II, ¶¶ 79-83 below.
All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise stated.
Wis. Stat. § 823.01 provides that "any person.. .may maintain an action to recover damages or to abate a public nuisance from which injuries peculiar to the complainant are suffered. ..."
Wis. Stat. § 823.02 provides that "an action to enjoin a public nuisance may be commenced and prosecuted in the name of the state, either by the attorney general on information obtained by the department of justice, or upon relation of a private individual...."
Wis. Stat. § 30.12(1) provides, in part:
[Ulnless a permit has been granted by the department pursuant to statute or the legislature has otherwise authorized structures or deposits in navigable waters, it is unlawful:
(a) To deposit any material or to place any structure upon the bed of any navigable water where no bulkhead line has been established; or
(b) To deposit any material or to place any structure upon the bed of any navigable water beyond a lawfully established bulkhead line.
Wis. Stat. § 30.19(l)(a) provides:
(1) Permits required... .Unless a permit has been granted by the department or authorization has been granted by the legislature, it is unlawful:
(a) To construct, dredge or enlarge any artificial waterway, canal, channel, ditch, lagoon, pond, lake or similar waterway where the *653purpose is ultimate connection with an existing navigable stream, lake or other navigable waters, or where any part of the artificial waterway is located within 500 feet of the ordinary high-water mark of an existing navigable stream, lake or other navigable waters.
Wis. Stat. § 30.195(1) provides that "[n]o person may change the course of or straighten a navigable stream without a permit issued under this section or without otherwise being expressly authorized by statute to do so."
The court of appeals and majority opinions' reliance on Public Intervenor v. DNR, 115 Wis. 2d 28, 35, 339 N.W.2d 324 (1983), as a limitation on the powers of the attorney general is misplaced. As noted at the outset of that opinion, the court was considering the power of a legislatively created official, not the constitutionally created office of the Attorney General. Public Intervenor, 115 Wis. 2d at 29. Furthermore, the public inter-venor's statutory authority in that case only allowed the Public Intervenor to intervene in an existing action, not to initiate a lawsuit. Public Intervenor, 115 Wis. 2d at 34-35. In the case at bar Wis. Stat. §§ 30.294 and 823.01-.02 expressly give the attorney general the power to initiate actions to abate public nuisances.
Arlen C. Christenson, The State Attorney General, 1970 Wis. L. Rev. 298,317-18 (citing Wis. Stat. § 280.02, renumbered as § 823.02). See also Scott Van Alstyne and Larry J. Roberts, The Powers of the Attorney General in Wisconsin, 1974 Wis. L. Rev. 721, 743 (noting the power of the attorney general to abate public nuisances).
Oak Creek takes this position in its brief.
The cases cited by the majority at ¶ 35 saying that the Attorney General has a duty to defend a statute's constitutionality do not support the conclusion that the Attorney General may not challenge the constitutionality of a statute.
See State ex rel. Reynolds v. Smith, 19 Wis. 2d 577, 120 N.W.2d 664 (1963)(Attorney General has inherent discretion with respect to prosecuting litigation at the Governor's direction; Attorney General could determine propriety of incurring particular expense in absence of showing that the action was palpably illegal).
See Fund Manager v. Corbin, 778 P.2d 1244, 1250 (Ariz. App. 1988), affirmed in part and dismissed in part on other grounds, 942 P.2d 428 (Ariz. 1989), in which the court stated that although the attorney general does not have common law powers and is limited to statutory powers, there is "nothing that would disable the attorney general from attacking the constitu*657tionality of an Arizona statute in the process of exercising his specific statutory powers." This language was quoted with approval in State ex rel. Woods v. Block, 942 P.2d 428 (Ariz. 1997) (en banc), holding that the attorney general can raise a constitutional challenge to a statute if he has statutory authority to bring the lawsuit.
1974 Wis. L. Rev. at 738.
See, e.g., People v. DiFalco, 377 N.E.2d 732, 735 (NY 1978); People v. Goldwater, 358 N.Y.S.2d 814, 817 (Schoharie Cty. Ct. 1974); People v. Hopkins, 47 N.Y.S.2d 222, 225 (N.Y. Cty. 1944).
The basic scheme established by the 1849 Wisconsin legislature is like that in New York. The district attorneys are the state's trial lawyers and the Attorney General, the state's appellate lawyer. Arlen C. Christenson, The State Attorney General, 1970 Wis. L. Rev. 298, 301.
Scott Van Alstyne and Larry J. Roberts, The Powers of the Attorney General in Wisconsin, 1974 Wis. L. Rev. 721, 733.
Scott Van Alstyne and Larry J. Roberts, The Powers of the Attorney General in Wisconsin, 1974 Wis. L. Rev. 721, 736.
This limitation on the great public concern exception seems to have been first established in Columbia Cty. v. Board of Trustees of Wis. Retirement Fund, 17 Wis. 2d 310, 318, 116 N.W.2d 142 (1962). In that case the court merely stated, "[w]e are not disposed to extend the [great public concern] exception to the general rule between two agencies of state government. . . ." Id. at 318. There is no further explanation of the court's "not being disposed" in that case or the subsequent cases that rely on it. See, e.g., City of Eau Claire v. DNR, 60 Wis. 2d 751, 752, 210 N.W.2d 771 (1973).
See Fulton Foundation, 13 Wis. 2d 1, 14b, 108 N.W.2d 312 (1961) (motion for rehearing) (noting that a further reason for allowing the department of taxation to challenge the constitutionality of a statute is that "there is little likelihood that any taxpayer will"). See also City of Madison v. Ayers, 85 Wis. 2d 540, 545, 271 N.W.2d 101 (1978); S.C. Johnson & Son Inc. v. Town of Caledonia, 206 Wis. 2d 292, 304, 557 N.W.2d 412 (Ct. App. 1996).
For an informative discussion about the Columbia County case, 17 Wis. 2d 310, and its progeny and how these cases fail to establish any reason for excluding disputes between *664state entities from the great public concern exception, see Silver Lake Sanitary Dist. v. DNR, 1999 WL1125252, Dee. 9,1999 (Ct. App.) (Verger ont, J. concurring). J. Verger ont urges this court to re-examine this limitation on the great public concern doctrine and clarify the existing case law. Id.
The Columbia County case was applied most recently in an order denying the Employe Trust Funds Board leave to commence an original action against the Department of Administration for lack of standing. Employe Trust Funds Board, et al. v. Lightbourn, Case No. 99-3297, Order dated of even date.
See also State ex rel. Martin v. Zimmerman, 249 Wis. 101, 111, 23 N.W.2d 610 (1946) (noting that because the issue affected the state in a sovereign capacity the court would have granted original jurisdiction and allowed the Attorney General to proceed if the underlying cause of action would have been valid).
See, e.g., Wisconsin's Environmental Decade v. Department of Natural Resources, 85 Wis. 2d 518, 526, 271 N.W.2d 69 (1978) ("[t]he state's responsibility in the area [of protecting navigable waters] has long been acknowledged"); Muench v. Public Serv. Comm'n, 261 Wis. 492, 513, 53 N.W.2d 514 (1952) (when navigable waters may be damaged by the erection of a dam "it is clearly the duty of the state to appear in behalf of the public in the proceedings"); City of Eau Claire, 37 Wis. at 447 ("[public rivers] are the charge of the state, and the state cannot abdicate its charge of them").
Wis. Const., art. IX, § 1 provides:
Jurisdiction on rivers and lakes; navigable waters. The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the river Mississippi and *669the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well as to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor.
Professor Christenson, upon whose article the majority-opinion relies, concludes that the power delegated by the legislature to the Attorney General to initiate litigation in a broad range of cases to protect the public interest gives him the ability to "initiate litigation in almost any civil case in which his English predecessors or his counterparts in other states possessed of inherent authority or 'common law powers' may act." Arlen C. Christenson, The State Attorney General, 1970 Wis. L. Rev. 298, 320-21.
See, e.g., City of Eau Claire, 37 Wis. 440 (1875); State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 126 N.W.2d 551 (1964). See also Jack Stark, The Wisconsin State Constitution: A Reference Guide, at 132 ("occasionally an attorney general has declined to defend a statute he or she thinks is unconstitutional.11)
See also Wis. Stat. § 14.11(2)(a)4, which provides that the Governor may employ special counsel. This statute apparently anticipates that the Attorney General may take positions opposite the Governor about the constitutionality of a statute.
State v. Chastain, 871 S.W.2d 661, 663 (Tenn. 1994) (concluding that most states recognize that the attorney general has "not only the authority, but the duty. . .to seek to have certain legislation declared unconstitutional").
1974 Wis. L. Rev. at 721-722.