DNR Case Analysis

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Inasmuch as this property only has 77 feet of shoreline, it is difficult to take issue with the ultimate conclusion of the court — the DNR reasonably decided that 11 boatslips constitutes “reasonable use.”

Nevertheless, the court’s reasoning effectively grants the DNR a blank check to do whatever it wants in this area.

First, in concluding that the DNR reasonably found that the number of boatslips has an adverse impact on fish habitat, the court quoted with approval the following language from Sterlingworth Condominium Association v. DNR, 205 Wis.2d 710, 721, 556 N.W.2d 791 (Ct.App.1996): “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…”

This language will always support the DNR, whenever it finds that even one additional boatslip has an adverse impact on fish habitat. No matter how unreasonable a DNR decision may be, this language can always be used in defense of the agency’s position.

Similarly, the court notes that the DNR found that the pier was in the littoral zone of the lake — the shallow portion in which aquatic plant growth develops and provides habitat for fish.

However, all piers jut out from the shore into the shallow portion of the lake. Again, this finding will always be present and will always support the DNR, regardless of individual circumstances.

Second, the court’s decision grants unfettered discretion to the DNR to decide “historic use” of a pier.

The court wrote, “It would not have been unreasonable, perhaps, if the DNR had selected the original number of slips as the historic use.” That would be 5-6 in this case. The DNR could also have found the historical use to be 17 — the number of slips when the antipyramiding ordinance was enacted, as occurred in Sterlingworth.

In a footnote, the court concluded that the decision to pin the historical use at 11 slips was not arbitrary or capricious, but rational.

In the legal sense, the court is absolutely correct.

However, as the court notes, “The cases do not establish any set definition of historical use or any hard and fast methodology for determining it.”

In the absence of a definition, or even a requirement that the DNR adopt and apply some consistent definition, no DNR decision as to the “historical use” can ever be arbitrary and capricious, as a matter of law. But for the same reasons, all its decisions are inherently arbitrary and capricious in the vernacular sense of the phrase.

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As a result, the only real restriction on DNA power may be the Takings Clause, which the court declined to address, finding that the issue was not properly preserved for appeal. The Takings Clause presumably guarantees every riparian owner one pier with one boatslip (although “reasonable use” could be interpreted the same way).

Nevertheless, the situation is troublingly reminiscent of King Lear. Lear abdicated all power to his daughters, Goneril and Regan, with the reservation that he be allowed to keep 100 knights.

After abdication, Lear’s daughters soon sought to reduce the number of his allotted knights to 50, and then 25, until daughter Regan ultimately asks, “What need one?” King Lear: Act II, Scene IV, l. 263.

Even conceding that the majority opinion is on sound legal ground, should the DNR ever ask the same question about boatslips, the majority opinion does not give the property owner anything to cite in response.

– David Ziemer

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David Ziemer can be reached by email.