DNR’s duty trumps agency’s own rules

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The DNR can enforce actions against oversized piers, even if no one complains about them.

The Wisconsin Court of Appeals on Oct. 10 held that, notwithstanding agency rules to the contrary, the DNR’s obligation to protect the public trumps the rule.

Thomas and Michele Baer own lakefront property in Vilas County, and maintained two piers on the lake.

In November 1999, an agent from the Department of Natural Resources visited the area to inspect a boat shelter the Baers had built on their property. In the process of viewing the boat shelter, the agent observed that the piers exceeded the dimensions allowed by the DNR without a permit.

When the Baers failed to take action to reduce the size of the piers, the DNR commenced an enforcement action, pursuant to sec. 30.03(4)(a), which authorizes such an action, “[i]f the department learns of a possible violation of the statutes relating to navigable waters or a possible infringement of the public rights relating to navigable waters.”

An administrative law judge ordered that the piers be reduced in size. The Baers petitioned for judicial review, and Rock County Circuit Court Judge John W. Roethe vacated the orders, concluding that the DNR lacked authority to bring the action because a department employee first discovered the alleged pier violations on her own, rather than as a result of a third-party complaint or a request from the pier owner for information or a permit.

The DNR appealed, and the court of appeals reversed, in a decision by Judge David G. Deininger.

The court held that Sec. 30.03(4)(a) trumps the language of Wis. Admin. Code NR 326.02.

The administrative rule provides that the department can commence an enforcement action “only in response” to five circumstances, all involving complaints by other parties or actions by a pier owner.

The Baers argued that, therefore, the department may only apply ch. NR 326 under those enumerated circumstances, none of which were present in this case.

However, the court rejected the argument, concluding that the DNR has a statutory duty to take action if it believes a pier violates Chapter 30 of the state statutes.

The court quoted Clintonville Transfer Line, Inc. v. PSC, 248 Wis. 59, 70-71, 21 N.W.2d 5 (1945), for the rule that an agency may not enlarge or limit its own power: “The power to limit or prescribe the field of action of an administrative agency is the kind of legislative power that cannot be delegated.”

The court concluded, “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.”

The Baers argued that, because the Leg-islature has taken no action in regards to the DNR’s rule, therefore the Legislature has endorsed the rule.

The Baers relied on a footnote in the case of Wisconsin Citizens Concerned for Cranes and Doves v. DNR, 2003 WI App 76, par. 15, n.5, 263 Wis. 2d 370, 661 N.W.2d 858, where the court concluded it should look beyond the text of the authorizing statute, because the Legislature held hearings on a rule, yet took no action to prevent its promulgation.

However, the court found Cranes and Doves distinguishable, noting, “our discussion in Cranes and Doves was premised in large measure on the notoriety of the mourning dove hunting issue. There was simply no question that the legislature was acutely aware of the Department’s rule establishing an open season for hunting the birds.”

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The Baers, however, presented no similar evidence that the Legislature was even aware of sec. NR 362.02.

The court added, “it is at least equally plausible, if not more so, that if the legislature had been broadly aware of the provisions of sec. NR 326.02(2), it shared the Department’s interpretation that the rule does not purport to limit the Depart-ment’s enforcement authority under sec. 30.03(4).”

The Baers also emphasized that sec. 30.02(4) repeatedly uses the term “may” in referring to the DNR’s authority to bring an enforcement action. Thus, they argued that the Legislature has empowered the DNR to limit its exercise of enforcement authority.

Rejecting the argument, the court concluded, “A far more reasonable reading of ‘may proceed’ in sec. 30.03(4) is that the legislature intended to imbue the Department with a degree of prosecutorial discretion by permitting it, in individual cases, to achieve compliance with Wis. Stat. Ch. 30 by means other than administrative enforcement actions.”

Accordingly, the court held that sec. 326.02(2) does not preclude the DNR from commencing administrative actions based its own observations, and reversed.

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