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DNR action is not arbitrary, capricious

By: dmc-admin//July 12, 2006//

DNR action is not arbitrary, capricious

By: dmc-admin//July 12, 2006//

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ImageThe 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.

Related Links

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Case Analysis

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.

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