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DNR Case Analysis

The question that leaps out when reading this opinion is, “How can this issue be considered without any reference to sec. 227.57(8)?”

Indisputably, the Legislature has given the DNR broad authority. If the DNR’s interpretation of sec. 30.03(4) and NR 362.02 were actually embodied within NR 362.02, there would be no question that the enforcement action here was lawful, and the DNR’s decision reasonable.

But the DNR’s interpretation of NR 262.02 is flatly contrary to the actual text of the rule.

The rule lists five enumerated situations in which the DNR “may” bring an enforcement action, and states those are the “only” situations in which it may do so. The facts in this case do not even arguably fit into any of the five.

Section 227.57(8) provides as follows:

“The court shall reverse or remand the case to the agency if it finds that the agency’s exercise of discretion is outside the range of discretion delegated to the agency by law; is inconsistent with an agency rule, an officially stated agency policy or a prior agency practice, if deviation therefrom is not explained to the satisfaction of the court by the agency; or is otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion.” (emphasis added).

Had the court employed this section, it would have to acknowledge that, while the DNR’s action is within its authority delegated by statute, and is consistent with agency policy and practice, it is also plainly inconsistent with the agency rule, and must therefore be reversed or remanded.

The court correctly notes that an agency’s interpretation of its own rules is controlling “unless it is plainly erroneous or inconsistent with the language of the rule.” The DNR’s interpretation falls into this exception.

Instead of applying sec. 227.57, however, the court purports to hold that the text of NR 362.02 ineffective in constraining the DNR’s authority, because it constitutes a limitation of its statutory duty to protect “public rights relating to navigable waters” under sec. 30.03(4)(a).

However, it is not clear that sec. 30.03(4)(a) imposes such a duty. The most recent Supreme Court decision to consider the statute appears to regard the statute as nothing more than a grant of jurisdiction.

ABKA Limited Partnership v. DNR, 2002 WI 106, 225 Wis.2d 486, 648 N.W.2d 854.

Before reaching the merits of that case (whether a transfer of riparian rights to a condominium is lawful), the court considered whether the DNR had jurisdiction under sec. 30.03(4)(a).

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Holding that it did, the court wrote, “to summarize the import of this statute for our purposes here: it provides that if the DNR ‘learns of a possible violation of the statutes relating to navigable waters,’ it may pursue an enforcement action ‘either in lieu of or in addition to any other relief provided by law.’ … Essentially, under sec. 30.03(4), the DNR has jurisdiction to pursue any ‘possible violation’ of the public trust doctrine as embodied in ch. 30, and it may request broad injunctive-type relief.” ABKA, 648 N.W.2d at 859.

Nothing in that statement suggests that the DNR has a statutory duty to draft rules granting to itself the fullest authority provided by the Legislature; rather, it has broad jurisdiction to do so.

Perhaps there is some constitutional duty imposed by the public trust doctrine that can’t be undermined by an agency rule, but a general grant of jurisdiction like sec. 30.03(4)(a) should not have such an effect.

Thus, while the DNR has broad authority to amend its rules to allow what it did in this case, and the Legislature has the power to compel it to do so, sec. 227.57 should bar it from doing so until the DNR amends its rules, or the Legislature acts.

– David Ziemer

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David Ziemer can be reached by email.

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