DNR
action is not arbitrary, capricious
By
David Ziemer
Wisconsin Law Journal
July
12, 2006
The
DNR’s decision to reduce the number of boatslips from 22 to 11 was not arbitrary
and capricious, the Wisconsin Supreme Court held on July 6.
The
holding sparked an ad-monishing three-justice concurrence addressing “the
growth of agency power, the decline of judicial power, and the tenuous state of
property rights in the 21st Century.”
Nelson
Page owned a 77-foot wide riparian lot on Green Lake, as well as nearby nonriparian
land. In 1958 and again in 1961, Page subdivided, platted, and recorded the nonriparian
land, developed a subdivision, and sold the lots.
At
the same time, Page conveyed undivided 1/38 interests in the riparian lot and
a common pier to the nonriparian owners.
The
Pages Homeowners’ Association, an unincorporated entity, was established
in 1966, and consists of those persons who each own the 1/38 interest in the riparian
lot.
| What
the court held Case:
Hilton v. DNR, No. 2003AP3353. Issue:
Did the DNR unreasonably order that an unpermitted pier containing 22 boatslips
be reduced to 11 slips? Holding:
No. Given the pier's historical use, and DNR evidence of adverse effects on the
lake, the decision was reasonable. Counsel:
Kloppenburg, Joanne F., Madison, for appellant; Hoeper, Peter J., Waupun,
for Respondent. |
Since
1966, the Association has placed an unpermitted pier, with various numbers of
boat slips, extending from the riparian lot into Green Lake. In 1966, the pier
had six boat slips. In 1974-76, the number of slips increased to 11. In 1990,
the number of slips had increased to 20. The slips decreased to 16 in 1994-95
then rose to 21 by 2000.
Currently,
the pier is 249 feet long, 3 feet wide, and contains 22 boat slips.
In
1993, when Green Lake County adopted an antipyramiding ordinance, there were 17
slips on the pier. “Pyramiding” is the use of riparian lots to provide
lake access for back lot nonriparian owners.
The
association contacted the DNR regarding its pier in 1993, at which point they
were told that although the pier’s size and density were both excessive under
DNR “reasonable use” guidance, the DNR would not commence an enforcement
action unless a complaint was received. In 1997, the DNR received such a complaint.
In
2001, the DNR requested an abatement hearing, recommending that six slips represented
the “reasonable use” that the pier could legally maintain without a
permit.
The
ALJ determined that the association should be limited to a 226-foot pier with
no more than 11 slips — the number he found to represent the “historical
use” of the pier.
The
association appealed, and Green Lake County Circuit Court Judge William M. McMonigal
reversed, concluding that the ALJ’s determinations were arbitrary. The court
found that the proper historic use date was 1993, when the antipyramiding ordinance
went into effect, and when there were 17 piers.
The
DNR appealed, and the court of appeals reinstated the ALJ’s decision in an
unpublished decision. The Supreme Court granted review, and affirmed the court
of appeals in a decision by Justice N. Patrick Crooks. Both Chief Justice Abrahamson
and Justice David T. Prosser wrote concurrences, with Justices Jon P. Wilcox and
Patience Drake Roggensack joining the concurrence of Prosser.
“The
legislature and the courts have worked in tandem to dilute the role of the courts
in protecting substantial rights and interests in agency cases. Property rights
become tenuous when they are subject to largely unreviewable ad hoc decision-making
— even by well-qualified, dedicated administrative officials.”
Hon.
David T. Prosser concurring |
The
court first held that the decision of the ALJ is entitled to great weight deference.
Because the DNR did not appeal the decision of the ALJ, the court concluded that
the decision represents the final decision of the DNR, and is thus, entitled to
the same deference.
Applying
that standard, the court concluded that the findings and conclusions of the ALJ
were reasonable.
First,
it found support for the conclusion that the pier has adverse impacts on the wildlife
and fish habitat. DNR experts testified at the hearing that the pier restricts
the growth of wild celery, upon which migratory birds feed, and that the pier
has a detrimental impact on fish in the lake.
The
court quoted the following statement of the court of appeals’ decision in
Sterlingworth Condominium Association v. DNR, 205 Wis.2d 710, 721, 556 N.W.2d
791 (Ct.App.1996), with approval: “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..”
The
court also concluded that the evidence supported the DNR’s finding that the
pier constituted a hazard to navigation and safety.
“It
is evident from the record that the ALJ considered the convenience of riparians,
environmental impacts, natural scenic beauty, historic use, safety, the statutory
presumption, the absence of a permit, and the DNR's delayed enforcement.”
Hon.
N. Patrick Crooks
Wisconsin Supreme Court |
Turning
to historic use, the court then held that the DNR’s determination that 11
slips constituted the historic use of the pier was reasonable.
The
court rejected the Association’s argument that Sea View Estates Beach Club,
Inc., v. DNR, 223 Wis.2d 138, 588 N.W.2d 667 (Ct.App.1998), and Sterlingworth
establish historic use as the number existing at the time the antipyramiding ordinance
was passed.
Because
the number of slips increased over the course of four decades, the court concluded
that the DNR’s choice of a midpoint as historic use was reasonable.
Concluding
that 11 slips balanced the riparian rights of the owners and the public trust
doctrine, the court wrote, “It is evident from the record that the ALJ considered
the convenience of riparians, environmental impacts, natural scenic beauty, historic
use, safety, the statutory presumption in Wis. Stat. sec. 30.12(1g)(f)(2003-04),
the absence of a permit, and the DNR’s delayed enforcement.”
Finally,
the court concluded that the Association failed to properly preserve its argument
that the decision constituted an unconstitutional taking, and declined to address
the issue.
The
Concurrences
Chief
Justice Abrahamson wrote a concurrence, to refer the reader to the opinion in
Racine Harley-Davidson, Inc. v. DHA (decided the same day) for a detailed discussion
of the appropriate standard of review for agency decisions.
Justice
Prosser concurred “reluctantly,” because under current law, the court
is bound to uphold the DNR, even if it believes the circuit court’s decision
is more reasonable.
Citing
a recent law review article by Justice Roggensack, Prosser wrote, “[T]he
Supreme Court is the state’s preeminent law-developing court. When the supreme
court grants great weight deference to an agency’s interpretation of law,
however, it ceases to be ‘preeminent.’ This is contrary to the fundamental
role of the judiciary as articulated in Marbury v. Madison: ‘It is emphatically
the province and duty of the judicial department to say what the law is.’”
Prosser
opined, “From time to time courts can overstep their bounds, but when they
are at their best, courts serve as the great protector of people’s rights
to life, liberty, and property. The legislature and the courts have worked in
tandem to dilute the role of the courts in protecting substantial rights and interests
in agency cases.
Property
rights become tenuous when they are subject to largely unreviewable ad hoc decision-making
— even by well-qualified, dedicated administrative officials.”
Click
here for Case Analysis.
David
Ziemer can be reached by email.
