Permit Amendment – Legal Authority Exemptions

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WI Court of Appeals – District III

Case Name: Philip Myers, et al. v. Wisconsin Department of Natural Resources

Case No.: 2016AP1517

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Permit Amendment – Legal Authority Exemptions

Philip and Terrie Myers (collectively, Myers) appeal a circuit court order entered on judicial review of a decision by the Wisconsin Department of Natural Resources (DNR). The DNR’s decision amended a 2001 permit allowing Myers to construct a pier. Myers argues the DNR lacked legal authority to amend the permit. Alternatively, Myers contends that, even if the DNR had legal authority to amend the permit, the amendment was nevertheless improper because: (1) the pier was exempt from permit requirements, pursuant to WIS. STAT. § 30.12(1k)(b) (2015-16); 1 and (2) the pier was exempt from enforcement actions, pursuant to WIS. STAT. § 30.12(1k)(cm), and the DNR’s attempt to amend the permit constituted an enforcement action. Myers also asserts the record did not support the DNR’s decision to amend the permit. The DNR cross-appeals, arguing the circuit court erred by remanding this matter to the DNR for additional fact-finding regarding the two statutory exemptions cited above.

We conclude the DNR had legal authority to amend Myers’ permit. We therefore affirm the circuit court’s order in that respect. However, based on the DNR’s factual findings, we conclude as a matter of law that neither of the two statutory exemptions Myers cites is applicable in this case. Accordingly, a remand to the DNR for further fact-finding regarding the exemptions is unnecessary, and we reverse that portion of the circuit court’s order remanding this matter to the DNR. We further conclude the record contains sufficient evidence to support the DNR’s decision to amend Myers’ permit. We therefore remand with directions that the circuit court enter an order affirming the DNR’s decision

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