DNR Case
Analysis
Oct.
18, 2006
The
question that leaps out when reading this opinion is, “How
can this issue be considered without any reference to sec. 227.57(8)?”
Indisputably,
the Legislature has given the DNR broad authority. If the DNR’s
interpretation of sec. 30.03(4) and NR 362.02 were actually embodied
within NR 362.02, there would be no question that the enforcement
action here was lawful, and the DNR’s decision reasonable.
But
the DNR’s interpretation of NR 262.02 is flatly contrary
to the actual text of the rule.
The
rule lists five enumerated situations in which the DNR “may”
bring an enforcement action, and states those are the “only”
situations in which it may do so. The facts in this case do not
even arguably fit into any of the five.
Section
227.57(8) provides as follows:
“The
court shall reverse or remand the case to the agency if it finds
that the agency’s exercise of discretion is outside the range
of discretion delegated to the agency by law; is inconsistent
with an agency rule, an officially stated agency policy or a prior
agency practice, if deviation therefrom is not explained to the
satisfaction of the court by the agency; or is otherwise in violation
of a constitutional or statutory provision; but the court shall
not substitute its judgment for that of the agency on an issue
of discretion.” (emphasis added).
Had
the court employed this section, it would have to acknowledge
that, while the DNR’s action is within its authority delegated
by statute, and is consistent with agency policy and practice,
it is also plainly inconsistent with the agency rule, and must
therefore be reversed or remanded.
The
court correctly notes that an agency’s interpretation of
its own rules is controlling “unless it is plainly erroneous
or inconsistent with the language of the rule.” The DNR’s
interpretation falls into this exception.
Instead
of applying sec. 227.57, however, the court purports to hold that
the text of NR 362.02 ineffective in constraining the DNR’s
authority, because it constitutes a limitation of its statutory
duty to protect “public rights relating to navigable waters”
under sec. 30.03(4)(a).
However,
it is not clear that sec. 30.03(4)(a) imposes such a duty. The
most recent Supreme Court decision to consider the statute appears
to regard the statute as nothing more than a grant of jurisdiction.
ABKA
Limited Partnership v. DNR, 2002 WI 106, 225 Wis.2d 486, 648 N.W.2d
854.
Before
reaching the merits of that case (whether a transfer of riparian
rights to a condominium is lawful), the court considered whether
the DNR had jurisdiction under sec. 30.03(4)(a).
Holding
that it did, the court wrote, “to summarize the import of
this statute for our purposes here: it provides that if the DNR
‘learns of a possible violation of the statutes relating
to navigable waters,’ it may pursue an enforcement action
‘either in lieu of or in addition to any other relief provided
by law.’ ... Essentially, under sec. 30.03(4), the DNR has
jurisdiction to pursue any ‘possible violation’ of the
public trust doctrine as embodied in ch. 30, and it may request
broad injunctive-type relief.” ABKA, 648 N.W.2d at 859.
Nothing
in that statement suggests that the DNR has a statutory duty to
draft rules granting to itself the fullest authority provided
by the Legislature; rather, it has broad jurisdiction to do so.
Perhaps
there is some constitutional duty imposed by the public trust
doctrine that can’t be undermined by an agency rule, but
a general grant of jurisdiction like sec. 30.03(4)(a) should not
have such an effect.
Thus,
while the DNR has broad authority to amend its rules to allow
what it did in this case, and the Legislature has the power to
compel it to do so, sec. 227.57 should bar it from doing so until
the DNR amends its rules, or the Legislature acts.
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David Ziemer
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David
Ziemer can be reached by email.
