03-3829 Bell v. Duperrault (60890)

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“Bell has provided no facts disputing that the DNR applied increasingly rigorous scrutiny to permit applications beginning in mid-1998 and continuing over the next several years due to environmental concerns. Therefore, Bell’s amended proposal, filed in February 1999, was not similarly situated to Hockers’s proposal which was filed in February 1998. It is also undisputed that after the environmental assessment was released in April 1998, the DNR began emphasizing the importance of ‘flow-through’ structures which would allow littoral currents to flow freely. For this reason, Bell’s proposal which lacked a flow-through was not similar to Koehn’s, Halbrook’s, or Pescheret’s proposals which all included flow-throughs. Additionally, Koehn’s application was filed in March 1998, eleven months before Bell’s amended proposal. And while Halbrook and Pescheret did not apply for permits until 2000, they were both replacing already existing structures rather than creating entirely new structures. The DNR argues that such renovations receive preference over applications for new structures because of the net gain to the environment when dilapidated older structures are replaced.

“It is not enough that the DNR acted in a way that Bell believes to be ineffective or even destructive. Rather, Bell must ‘eliminate any reasonably conceivable state of facts that could provide a rational basis for the classification.’ Id. at 282 (internal quotation omitted). He has not done so. The evidence shows that the DNR decided to increasingly scrutinize applications beginning in 1998 because of environmental concerns. This policy decision is a rational one. Also rational is the DNR’s preference for structures that allow currents to flow naturally and for older structures to be renovated when they become run-down. Furthermore, the DNR did not have any obligation to inform Bell of its reasoning in 1998. See id. It is possible, of course, that had Bell proceeded with his administrative hearing and created a more fulsome record on this issue, he may have discovered evidence that the DNR had no basis for these policies or that the policies were completely irrational. We find it puzzling that Bell chose to withdraw his permit application and file suit in federal court rather than attempt to eliminate the problem or at least develop the record with a simple administrative hearing. But on this record, we are left with nothing more than Bell’s speculation and conjecture that a jury could have disbelieved all of the DNR’s evidence. This is not enough to survive a summary judgment motion.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Flaum, J.