922 N.W.2d 47
Wis.2019Background
- In 2001 the Myers received a DNR permit to construct a rock-filled pier on Lake Superior; the ALJ’s permit included Condition 1 reserving that "[t]he authority herein granted can be amended or rescinded if the structure becomes a material obstruction to navigation or becomes detrimental to the public interest."
- The Myers built the pier consistent with the permit, including a 12-foot flow-through opening.
- In 2012–13 a neighbor complained of shoreline erosion; the DNR investigated, obtained an engineer’s assessment, and concluded the 12-foot opening was not functioning as intended.
- In 2013–15 the DNR issued a Notice of Pending Amendment, held a public informational hearing, and in 2015 formally amended the permit to require either removal of cribs to expand the opening to 60 feet or submission of certified engineering plans for an alternative.
- The Myers refused to comply and sought judicial review under Wis. Stat. ch. 227. The circuit court upheld DNR authority to amend but remanded for additional factfinding on statutory exemptions; the court of appeals affirmed DNR authority and reversed the remand. The Wisconsin Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument (Myers) | Defendant's Argument (DNR) | Held |
|---|---|---|---|
| Whether DNR had authority to unilaterally amend the 2001 permit | Condition 1 cannot create authority that the statute does not provide; the permit was a time-limited building permit that expired when the pier was placed | Condition 1 reserved amendment power; alternatively statutory authority exists under §30.12(3m)(d)2. or §30.2095(2) to amend permits for good cause | Held: DNR lacked authority to unilaterally amend the permit; Condition 1 alone does not confer amendment power and statutory provisions cited do not authorize amendment 14 years after placement |
| Whether §30.12(3m)(d)2. authorized insertion of Condition 1 or ongoing permit compliance requirement | Myers: §30.12(3m)(c) criteria are predicates for issuance, not ongoing obligations; no statutory text requires continuous compliance | DNR: statute permits rules and conditions to implement the §30.12(3m)(c) criteria, implying continuing authority to amend | Held: §30.12(3m)(d)2. does not support a continuous post-placement obligation or permit-reservation authorizing unilateral amendment |
| Whether §30.2095(2) empowered DNR to modify or rescind the permit for "good cause" after pier placement | Myers: §30.2095 treats permits as time-limited (void if project not completed within 3 years); once placement is complete permit is akin to a building permit and the statutory modification window closed upon completion/expiration | DNR: because the permit never "expired" (pier completed within time), §30.2095(2) allows modification for good cause at any time | Held: Permit is akin to a building permit; expiration is triggered by completion or the permit date—§30.2095(2) does not allow modification of a voidless, long-completed placement 14 years later |
| Whether court of appeals could rely on "implicit findings" from the DNR informational hearing to rule on statutory exemptions (§30.12(1k)) | Myers: factual development required to determine applicability of exemptions (grandfather and enforcement exemptions) | DNR/court of appeals: implicit findings at the informational hearing establish that exemptions do not apply | Held: Court did not reach the exemptions because it resolved that DNR lacked authority to amend; thus the exemptions issue was unnecessary to decide |
Key Cases Cited
- Kimberly-Clark Corp. v. Public Serv. Comm'n of Wis., 110 Wis. 2d 455 (agency has only powers expressly conferred or necessarily implied)
- Rock-Koshkonong Lake Dist. v. DNR, 350 Wis. 2d 45 (agency-authority scope is independently decided when central to the controversy)
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (statutory interpretation starts with text; ordinary meaning controls)
- Tetra Tech EC, Inc. v. DOR, 382 Wis. 2d 496 (courts give due weight to agency expertise but independently review legal questions)
- Noffke ex rel. Swenson v. Bakke, 315 Wis. 2d 350 (statutory interpretation is a question of law reviewed de novo)