DNR’s duty
trumps agency’s own rules
By
David Ziemer
david.ziemer@wislawjournal.com
Oct.
18, 2006
|
What
the court held
Case:
Baer v. DNR, No. 2005AP668
Issue:
Can the DNR bring an enforcement action pursuant to sec.
30.03(4)(a), even if none of the enumerated prerequisites
in Wis. Admin. Code NR 326.02(2) are present?
Holding:
Yes. The DNR cannot limit its statutory duties via agency
rule.
Attorneys:
For Appellant: Peterson, P. Philip, Madison; For Respondent:
Fitzpatrick, Michael R., Janesville
|
The
DNR can enforce actions against oversized piers, even if no one
complains about them.
The
Wisconsin Court of Appeals on Oct. 10 held that, notwithstanding
agency rules to the contrary, the DNR’s obligation to protect
the public trumps the rule.
Thomas
and Michele Baer own lakefront property in Vilas County, and maintained
two piers on the lake.
In
November 1999, an agent from the Department of Natural Resources
visited the area to inspect a boat shelter the Baers had built
on their property. In the process of viewing the boat shelter,
the agent observed that the piers exceeded the dimensions allowed
by the DNR without a permit.
When
the Baers failed to take action to reduce the size of the piers,
the DNR commenced an enforcement action, pursuant to sec. 30.03(4)(a),
which authorizes such an action, “[i]f the department learns
of a possible violation of the statutes relating to navigable
waters or a possible infringement of the public rights relating
to navigable waters.”
An
administrative law judge ordered that the piers be reduced in
size. The Baers petitioned for judicial review, and Rock County
Circuit Court Judge John W. Roethe vacated the orders, concluding
that the DNR lacked authority to bring the action because a department
employee first discovered the alleged pier violations on her own,
rather than as a result of a third-party complaint or a request
from the pier owner for information or a permit.
The
DNR appealed, and the court of appeals reversed, in a decision
by Judge David G. Deininger.
The
court held that Sec. 30.03(4)(a) trumps the language of Wis. Admin.
Code NR 326.02.
The
administrative rule provides that the department can commence
an enforcement action “only in response” to five circumstances,
all involving complaints by other parties or actions by a pier
owner.
The
Baers argued that, therefore, the department may only apply ch.
NR 326 under those enumerated circumstances, none of which were
present in this case.
However,
the court rejected the argument, concluding that the DNR has a
statutory duty to take action if it believes a pier violates Chapter
30 of the state statutes.
The
court quoted Clintonville Transfer Line, Inc. v. PSC, 248 Wis.
59, 70-71, 21 N.W.2d 5 (1945), for the rule that an agency may
not enlarge or limit its own power: “The power to limit or
prescribe the field of action of an administrative agency is the
kind of legislative power that cannot be delegated.”
The
court concluded, “The Baers’ proffered interpretation
of Wis. Admin. Code NR 326.02(2) violates the principle enunciated
in Clintonville Transfer because the rule would then constitute
an attempt by the Department to ‘limit or prescribe [its]
field of action,’ something only the legislature is empowered
to do.”
The
Baers argued that, because the Leg-islature has taken no action
in regards to the DNR’s rule, therefore the Legislature has
endorsed the rule.
The
Baers relied on a footnote in the case of Wisconsin Citizens Concerned
for Cranes and Doves v. DNR, 2003 WI App 76, par. 15, n.5, 263
Wis. 2d 370, 661 N.W.2d 858, where the court concluded it should
look beyond the text of the authorizing statute, because the Legislature
held hearings on a rule, yet took no action to prevent its promulgation.
However,
the court found Cranes and Doves distinguishable, noting, “our
discussion in Cranes and Doves was premised in large measure on
the notoriety of the mourning dove hunting issue. There was simply
no question that the legislature was acutely aware of the Department’s
rule establishing an open season for hunting the birds.”
The
Baers, however, presented no similar evidence that the Legislature
was even aware of sec. NR 362.02.
The
court added, “it is at least equally plausible, if not more
so, that if the legislature had been broadly aware of the provisions
of sec. NR 326.02(2), it shared the Department’s interpretation
that the rule does not purport to limit the Depart-ment’s
enforcement authority under sec. 30.03(4).”
The
Baers also emphasized that sec. 30.02(4) repeatedly uses the term
“may” in referring to the DNR’s authority to bring
an enforcement action. Thus, they argued that the Legislature
has empowered the DNR to limit its exercise of enforcement authority.
Rejecting
the argument, the court concluded, “A far more reasonable
reading of ‘may proceed’ in sec. 30.03(4) is that the
legislature intended to imbue the Department with a degree of
prosecutorial discretion by permitting it, in individual cases,
to achieve compliance with Wis. Stat. Ch. 30 by means other than
administrative enforcement actions.”
Accordingly,
the court held that sec. 326.02(2) does not preclude the DNR from
commencing administrative actions based its own observations,
and reversed.
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Case Analysis.
