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2005AP668 Baer v. DNR

By: dmc-admin//October 16, 2006//

2005AP668 Baer v. DNR

By: dmc-admin//October 16, 2006//

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The DNR may bring an enforcement proceeding against oversized piers, even if no third party complained about their size.

“[E]ven if the Department had sought by rule to narrow its statutory authority and duties under Wis. Stat. ch. 30 to enforce the provisions of that chapter and protect the public’s rights in navigable waters, it could not do so. More than sixty years ago, when the law regarding agency rule-making was in its infancy, the Wisconsin Supreme Court concluded that an agency could not by rule shirk statutory duties by divesting itself of authority legitimately delegated to it by the legislature: ‘While by [cited statute] the commission is given power “to adopt rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings,” this provision does not confer upon the commission power to enlarge or limit its own power. There is a wide constitutional gap between an order regulating procedure before the commission and an order which operates to limit the exercise of the statutory powers of the commission. The first is made in the exercise of a power delegated to it by the legislature. The power to limit or prescribe the field of action of an administrative agency is the kind of legislative power that cannot be delegated.’ Clintonville Transfer Line, Inc. v. PSC, 248 Wis. 59, 70-71, 21 N.W.2d 5 (1945). 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.”

Reversed and Remanded.

Recommended for publication in the official reports.

Dist. IV, Rock County, Roethe, J., Deininger, J.

Attorneys: For Appellant: Peterson, P. Philip, Madison; For Respondent: Fitzpatrick, Michael R., Janesville

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