DNR
Case Analysis
July
12, 2006
Inasmuch
as this property only has 77 feet of shoreline, it is difficult to take issue
with the ultimate conclusion of the court — the DNR reasonably decided that
11 boatslips constitutes “reasonable use.”
Nevertheless,
the court’s reasoning effectively grants the DNR a blank check to do whatever
it wants in this area.
First,
in concluding that the DNR reasonably found that the number of boatslips has an
adverse impact on fish habitat, the court quoted with approval the following language
from Sterlingworth Condominium Association v. DNR, 205 Wis.2d 710, 721, 556 N.W.2d
791 (Ct.App.1996): “Whether it is one, nine or ninety boat slips, each slip
allows one more boat which inevitably risks further damage to the environment
and impairs the public’s interest in the lakes...”
This
language will always support the DNR, whenever it finds that even one additional
boatslip has an adverse impact on fish habitat. No matter how unreasonable a DNR
decision may be, this language can always be used in defense of the agency’s
position.
Similarly,
the court notes that the DNR found that the pier was in the littoral zone of the
lake — the shallow portion in which aquatic plant growth develops and provides
habitat for fish.
However,
all piers jut out from the shore into the shallow portion of the lake. Again,
this finding will always be present and will always support the DNR, regardless
of individual circumstances.
Second,
the court’s decision grants unfettered discretion to the DNR to decide “historic
use” of a pier.
The
court wrote, “It would not have been unreasonable, perhaps, if the DNR had
selected the original number of slips as the historic use.” That would be
5-6 in this case. The DNR could also have found the historical use to be 17 —
the number of slips when the antipyramiding ordinance was enacted, as occurred
in Sterlingworth.
In
a footnote, the court concluded that the decision to pin the historical use at
11 slips was not arbitrary or capricious, but rational.
In
the legal sense, the court is absolutely correct.
However,
as the court notes, “The cases do not establish any set definition of historical
use or any hard and fast methodology for determining it.”
In
the absence of a definition, or even a requirement that the DNR adopt and apply
some consistent definition, no DNR decision as to the “historical use”
can ever be arbitrary and capricious, as a matter of law. But for the same reasons,
all its decisions are inherently arbitrary and capricious in the vernacular sense
of the phrase.
As a result,
the only real restriction on DNA power may be the Takings Clause, which the court
declined to address, finding that the issue was not properly preserved for appeal.
The Takings Clause presumably guarantees every riparian owner one pier with one
boatslip (although “reasonable use” could be interpreted the same way).
Nevertheless,
the situation is troublingly reminiscent of King Lear. Lear abdicated all power
to his daughters, Goneril and Regan, with the reservation that he be allowed to
keep 100 knights.
After
abdication, Lear’s daughters soon sought to reduce the number of his allotted
knights to 50, and then 25, until daughter Regan ultimately asks, “What need
one?” King Lear: Act II, Scene IV, l. 263.
Even
conceding that the majority opinion is on sound legal ground, should the DNR ever
ask the same question about boatslips, the majority opinion does not give the
property owner anything to cite in response.
-
David Ziemer
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David
Ziemer can be reached by email.
