*1 Jr., SHEARER, Carajou Haight, T. John Charles Inc., Club, Club, Inc., Hunting Thiebeau Shooting Association, Wildlife & Wetland River Basin Rock Inc., Petitioners-Appellants,

v. OF NATURAL DEPARTMENT Wisconsin RESOURCES, Respondent. ROCK, Petitioner-Appellant,

COUNTY OF

v. NATURAL OF DEPARTMENT Wisconsin RESOURCES, Respondent. Appeals

Court of 6, February 1989. Decided No. 87-0268. Submitted briefs April 1989. 669.) (Also reported in 443 N.W.2d *2 Shearer, et petitioners-appellants For the Charles C. al., Glenn was submitted on the briefs of cause S.C., Reynolds, & Reynolds O'Brien Madison. Rock, County petitioner-appellant For the Fowler, of James H. cause was submitted on the brief III, of Janesville. was on the respondent

For the the cause submitted Hanaway, attorney J. general, of Donald brief Sumi, attorney Maryann general. assistant M. filed Brief amicus curiae was Kathleen Falk, Madison, Public *3 on behalf of Wisconsin Intervenor. Gartzke, P.J., Eich, and Dykman

Before JJ. EICH, J. Charles and other individuals Shearer Koshko- owning abutting Lake and associations land "Shearer") judgment from a (collectively, appeal nong Department of the affirming order a decision and an (DNR) water levels which established Natural Resources County, Rock directed for the lake. The order also dam the lake and also at the foot of owner dam case, in operate to and maintain appellant this specified levels. to attain the so as depart- as whether dispositive see the issue We "con- request for a grant Shearer's required was ment 227.42, Stats.1 pursuant hearing" tested was, judg- we reverse the it we conclude Because department's they as affirm the and insofar ment order unchanged. in 1982 remain All statutes effect relevant statutory 1987-88 will to the Consequently, references all volume.

lake level order and its denial of request. We also conclude that the trial court lacked jurisdiction to County's it, too, consider Rock claim that was entitled to a contested case before the department and we therefore affirm the trial court's dis- missal of that claim.

The material facts are not in dispute. Lake Koshko- nong was created the construction of a dam Indianford, Rock River at a location several miles lake, downriver from present in 1851. Lake Koshko- nong large shallow, is both disputes and and over its water particularly complaints by riparian prop- levels— erty owners that their lands being were high lost to waters —have been ongoing ever since. See State ex rel. Att'y Norcross, Gen. v. 534, Wis. N.W. 40 (1907).

In department, on its own motion and without public hearing, issued an order establishing sea- sonal water levels for Koshkonong Lake directing County Rock to make certain improvements Indi- anford Dam. The order was promulgated under sec. 31.02(1), Stats., department, which authorizes the "in of public the interest rights navigable waters or to promote safety protect life, health property [to] regulate and control level and flow of water all waters," navigable and it findings contains several fact and conclusions of outlining law the reasons for the *4 department’s action. earlier,

Some time Shearer and the other landown- ers, who were aware of department's intentions to levels, establish the water agency request- wrote ing, among things, other that a hearing"2 "contested case proposal held on the any before order was issued.

2 requirements The hearing" a "contested case are set 227.44, forth sec. Stats. sev- under entitlement to such

They claimed 31.13, Stats., hear- which authorizes sec. eral statutes: dams; sec. enlarge" or requests to "raise ings on Stats., hearings for on 144.025(7), provides which 144; sec. under ch. orders issued "substantial persons whose entitles generally which of a by the action injured or threatened are interest[s]" hearing. to a state on Shearer's took no action department Then, several weeks issuing the order.

request prior to Shearer, him informing later, department wrote (1) that: being grounds denied request was that his sec. proceeded, department under which the statute such Stats., any provisions for not contain did depart- because the (2) apply not sec. 31.13 did hearings; enlarging raising involve "a did not ment's action statute; (3) meaning of within the existing dam" depart- Stats., because the apply not did sec. (4) 144; ch. under being not taken ment's action was Two because, Town under apply 227.42 did not (Ct. 721, DNR, N.W.2d 377 2d v. 105 Wis. Rivers Sewerage Dist. overruled, 1981), Milwaukee Met. App. (1985), 648, 72, DNR, 375 N.W.2d v. some hearing under to a must have the party a con- in order to receive the statutes provision of sec. 227.42. hearing under tested case review of court for the circuit petitioned Shearer the lake levels setting department's order both the Rock hearing. request denying his its decision review dam, petitioned also of the County, the owner in Shearer's joined level order and of the lake hold a contested department be directed that the hearing. temporary County sought a

Shearer and Rock DNR order. staying implementation injunction *5 days hearings request, The court held seven of on the during testimony which it heard the of dozens wit- lay expert, history nesses, both on the of the lake underlying and dam and the factors and reasons both the county's objections DNR order and Shearer's and the request injunctional it. The court then denied the for grounds opinion, that, relief on in the court's Shearer county succeeding and the had little likelihood of on the petitions merits of their for review. parties petitions

The then briefed the merits February and, 5, 1986, for review the trial court dis- lengthy missed them in a decision, and considered con- cluding party that neither was entitled to a contested hearing, and that the DNR order should be affirmed supported by it because was the evidence adduced at the lengthy hearings tempo- on the earlier motions for rary relief. will Other facts be discussed below. request

We consider first denial of Shearer's for hearing. right a contested case Whether Shearer has a question such a ais independently, law which we decide without deference to Depart- the trial court's See decision. Nottelson v. ILHR ment, 106, 115-16, 287 N.W.2d (whether (1980) particular legal the facts fulfill a stan- law). question dard is a parties whether,

We need not consider as various argue, and amicus curiae secs. 31.02 Stats.— "public give or even the historic trust doctrine" — order, Shearer the to a on the lake level provides right. Stats., we believe sec. statute reads as follows: law, any right provided by

In addition to any person filing a written with an *6 hearing hearing shall have the which shall a as if: be treated contested (a) person is A substantial interest of the by agency injury in or injured fact threatened with inaction; action or

(b) legislative There is no evidence of intent protected; that the interest is not to be (c) person requesting hear- injury to the degree injury in from to the ing is different kind or general public by the action inac- caused tion; and

(d) dispute There is a of material fact. that, asserted as request Shearer's for the owners, petitioners he and the other riparian met requirements of the statute because: enumerated own- proposal . . . threatens these land The [DNR] injury which has suffered ers with to their land twenty years damage past due to over the extensive no Dam. There is the existence of the Indianford legislative intent which indicates evidence of Injury property rights protected. not be these should question, peculiar the land to land is without owner; finally, previous comments as our written enormous proposals suggest, there are on these dis- putes of material fact. explains review the basis petition greater Specifically, detail. in that: alleged

Shearer hun- petitioners 10. Since have lost of wetlands and shoreline because dreds acres Koshkonong. high levels on Lake water dam, placement of flashboards 13. [The higher . . . water as ordered will cause DNR] Koshkonong contribute levels ... on Lake gradual wetlands, destruction of wildlife habitat agricultural contiguous land to Lake Koshkonong.

14. These flashboards will also contribute to septic system increased vicinity failure of Lake Koshkonong long and a term decrease overall quality water Koshkonong. of Lake petitioners aggrieved 15. The are [DNR's] decision to at Koshkonong increase water levels Lake they wetlands, in that are the owners wildlife agricultural habitat and land that is threatened with petitioners destruction. The aggrieved are also *7 they septic systems own homes with that are subject to failure if water levels are raised on Lake Koshkonong they and because have an interest in Koshkonong's quality. Lake water b. If the flashboards . . are installed. increases in water level Koshkonong in Lake will cause the petitioners[ irreparable by contributing harm to ] the property of causing destruction their as aswell the permanent d[y]sfunction already marginal septic of systems.

c. Increases water levels in Lake Koshko- nong upset will ecology jeopardize also lake aquatic, and terrestrial wildlife. avi[a]n pending court, While the case was circuit supreme Rivers, court overruled Town Two of on which DNR its deny had based decision to hearing request. In Met. Milwaukee Sewerage DNR, 63, 72, 75, Dist. v. 648, 652, N.W.2d (1985), the court held that sec. 227.42 does not require person hearing seeking a to show that he or she a "preexisting hearing has right" statute, under another but sec. 227.42 itself "creates independent an to a conditioned only [the outlined in . . . satisfaction of the elements statute]." Sewerage

Applying Dist, Met. Milwaukee testimony relying again of and exhibits on the volumes gleaned hearings on the for a from the earlier motion temporary injunction, the trial court ruled that department properly had denied Shearer's 227.42, Stats., because, in the court's co-peti- opinion, established that his or his he had not be harmed or tioners' substantial interests would threatened with harm as a result the DNR order. attempt characterizing court, DNR order as an impoundment "keep stable, minimize [and] more possi- eroding power to the extent of water motion manipulation dam," of the reasoned that the order ble stability" provide lake, "increased would thus riparian process" "ought slow the the loss which is The court then stated: "That not land to the water. injury." injury. That is not a threat reaching conclusion, In the court evaluated its testifying testimony hear- at the of the several witnesses persuaded ing, stating . . . that there it was "not relationship ordered lake [the between a cause and effect petitioners con- for which the levels] the detriment *8 view, that, evi- in its the then stated tend." The court possible levels to the "new" dence did not "connect" whole, that, erosion, on the and concluded shoreland protected riparians be better "will and the other Shearer Finally, noting implemented." its if DNR order is the experts testimony who of two reliance on the —one " " order, DNR he debate' stated that 'wouldn't "agreed 'all had addressed [that] the DNR who another project study" court in of the of the factors' its —the by stating "no that decision concluded its memorandum necessary hearing what is to determine is contested case essentially attempt scientifically handle nature's idiosyncra[s]ies for the benefit of birdwatchers and boat- ers, hunters, waterfowl, landowners and fish and swim- mers and sailboats."

The trial court's decision that Shearer was not enti- hearing agency's tled a DNR on the merits of the proposal analysis was based on its of volumes of testi- mony hearings and exhibits from its earlier on Shearer's request temporary injunction. prob- for a And is that hearing supplanted agency hearing. lem. The court weighing evaluating court, The trial evidence on the agency's merits order—evidence that was in often determining weight credibility conflict—and assigned testimony expert to the several wit- place. nesses, Then, became the factfinder DNR's the basis of its own assessment evidence taken its at hearings, own it that ruled Shearer had no to a hearing Stats.3 properly rejected

When the court ruled that for the sec. because, on the basis of the court's own assessment of the extensive on the evidence merits of DNR's ultimate proved compliance case, order Shearer had not statutory prerequisites hearing, with the such cart overtook the horse and the court assumed the assumption functions. The extent of clear made rather remarkable assertion in the attorney general's hearings brief that the court were equivalent" "functional of a contested ruled, evidence, also on the basis of same department's that the level lake order should be In affirmed. words, ruling the court supported by was the order was "substantial evidence in meaning the record" within the of sec. 227.57(6), Stats., evidentiary where no there was record and where, fact, department. no evidence was ever taken before the *9 Department of Natural Resources.4 before the simply contemplate pro- The statutes do not such a cedure, or such a result. Section is provide agency charged before designed a its making expertise with a decision within area of so may persons whose interests be threatened with be heard on injury by agency's proposed action can Hearings before is before question the action taken. court, sitting as an tribunal appellate the circuit proceedings, something altogether. else review are review of administrative under decisions [J]udicial record, envisages upon review and there ch. a during such is no trial de in the circuit court novo procedure appeal proceedings . . .. The whole is decisions the circuit court from administrative as no the trial court's action more The dissent characterizes agency review" of a state deci than the traditional "deferential and evaluated its is, however, court sion. The fact that the elicited by project approved own evidence on the merits of the obviously, which, was never then ruled that that evidence — heard, considered, adequate much less even —was among things, agency's support, determination warranting qualify case hear not one a contested the case did as DNR, course, as never heard much ing under sec. Stats. testimony days taken the trial as minute of the seven court, hearing in DNR never held a the case. proceeded this manner in the trial

If the which action, isit defer- simply of the a "deferential review" days full highest for the court seven degree, in the held ence support gather would hearings in order to evidence that agency's ruling. believe, opinion, hold in this continue to as we

We allowing take limited utilization trial courts to of the statutes less cum- proceedings is a much review administrative evidence way bersome, approaching the issues appropriate, more much in this case. raised *10 nature,

summary in it ordinarily only since involves proceeding review of the agency, before the of instead a trial of fact issues. Wis. Environmental Decade v. Comm., Public Service 161, 170, (1977). N.W.2d

It makes little sense either for the court or DNR to hearings parties' full, hold contested on the ultimate positions in in the case to order determine whether the petitioners would be entitled to a contested agency before the on those same issues. Neither the agency put court nor the should to such on efforts the preliminary question hearing. the entitlement to

Unfortunately, pro- the statutes and the DNR rules guidance persons vide scant requesting as to the extent to which hearings

contested case 227.42, under sec. Stats., must them, establish their either before agency post-denial judicial instance, the in the first or in proceedings Presumably, in review circuit court. DNR acceptance rejection requests bases its of such on the applications themselves, in statements the as it in did required by case, this for all Stats., writing is that the denial be in state the reasons reviewing result, therefor.5 As a court has little way validity of a "record" which to consider the And, action. the trial in court's actions this contrary, provides authority case to the ch. 227 little court, After this was adopted decided the trial setting general rules out the form requests content of hearings contested case simply Stats. The form petitioner action, asks the describe the the interests injured by action, claimed to be threatened or evidence legislative protect interests, disputes intent the factual case, why injury involved or how the is different degree injury general Code, kind or public. from to the Wis. Adm. 2.05(5). sec. NR reviewing its own to deter- court to hear evidence on petitioner is entitled to the

mine whether wholly statutory The court is not criteria. under authority, such however. without 227.57(1), Stats., limits the circuit court While sec. agency, it made before the also to review of record exception: irregularities alleged "in cases contains testimony may agency, procedure thereon before the *11 case, In in the . . .." this Shearer be court taken proposal requested DNR's to establish a on Koshkonong September 2,1982. for on levels Lake water Septem- setting on issued its order the water levels considering request. Then, 8,1982, Shearer's ber without request. department September 20, the As on the denied holding Town indicated, the restrictive because of of department Rivers, whether never considered Two the request of sec. 227.42. met the criteria case, us in such a where the record It seems to might reviewing nonexistent, court to is minimal "procedural irregularities" provisions of utilize the well only Stats., for the lim- to evidence sec. take petitioner purpose determining of whether is ited prima to a make a case for entitlement able to facie peti- If the case under 227.42. contested so, then is able to do the trial court would reverse tioner grant agency remand to the with directions to and request. agency's not, If affirmed.6 denial would be 6 Alternatively, application of the court could consider the portions of sec. allow for remand to which pro (7), example, purposes. agency for certain Subsection that, "depends in cases where the action facts vides aside, modify hearing, a court set or without shall determined compel particular agency if a action as a order action the facts law, may case for further or it remand the to the matter agency's responsibility." and action within the examination Sub- An necessarily not "irregularity" impropriety. is an also It is an act that is "inadequate because failure to prescribed conform to a course" —one to that "fail[s] accepted[ accord with is . . . or right." what Webster's ] Dictionary (1976). Third New International Cer- tainly procedure give adequate use of a that fails to con- claim statutory sideration to a entitlement a hear- may ing "irregularity." be considered an

If, denying hearing, before a for a the agency proceedings, itself conducts brief or supple- considers mental materials or submissions petitioner, requirements order to determine whether of sec. met, Stats., reviewing have been court will before may proceed have record it and on that basis. here,

If, however, as the record is no more than exchange correspondence or is inadequate, otherwise should able take limited see evidence to petitioner prima whether the can state facie is, hearing; entitlement to the he whether she "evidentiary they able offer facts . . . which if remain *12 . . . in uncontradicted resolve all factual issues the mov- Kassuba, Bauch, ing party's favor." Walter Inc. v. 38 648, 655, 387, (1968).7 Wis. 2d We 158 N.W.2d authority believe circuit court has the under sec. Stats., on ques- hear evidence that limited in proceedings. tion the review (5) permits modify section the court to either set aside or action, action, agency agency upon a or remand to further erroneously finding interpreted provision "that a has interpretation compels particular and a a law correct action. Kassuba, summary judgment The fact Walter Inc. is a mean, surmises, any does not as dissent we are in case way adopting applying "summary judgment methodology" in this case. hearings

Because the record of the on the motion for temporary adequate relief in this case is more than prima determine whether Shearer has stated a facie Stats., entitlement question and because the independently, Muggli is one of law which we review Taylor,

Dental v. Studio 142Wis. (Ct. App. 1987), 696, 699, 2d 419 N.W.2d we appropriate believe it is to consider the issue. employee One of Shearer's witnesses was a DNR acknowledged who that the order would raise Koshkonong minimum water levels on Lake one foot during open water He season. written the had department's preliminary impact environmental assess- ment, and he indicated in that document that even minor in increases water levels contribute to shoreline degradation adjoining

erosion and the of wetlands lake.

Several scientists testified also behalf. professor agricultural engineering using A stated that required by dam, order, dashboards on the as the DNR average would raise the A water levels on the lake. hydrogeologist testified that this would turn cause ground rise, water levels to which would have adverse riparian effects on the farms and other lands owned co-petitioners. professor, spe- Shearer and his Another opinion, lakes, that, cialist in inland in his testified average DNR order would raise water levels in Lake Koshkonong inches, between four and six this substantially adjoin- would increase shoreline erosion on ing A third lands. testified increase scientist that an average only water levels of three cause would inches peat erosion of substantial soils the shoreline and resulting that the dam- increase the water table would age Finally, backwater wetlands in the area. the Jeffer- *13 County Zoning sep- son identified several Administrator systems tic Koshkonong the Lake area that would be adversely levels, by affected increased lake and a limnol- ogist importance protect- described the environmental ing the wetlands surrounding dangers the lake from by higher caused water levels.

We are satisfied that this evidence is more than adequate prima to state a case that the "substantial facie and the petitioners Shearer other were interests]" action, injury by threatened with the DNR and that these injuries were different kind and from degree any injury general public to the might result from the Further, suggestion order. there is no in the record that legislature did not intend that the interests asserted by petitioners protected, were not to be and it is apparent short, in dispute. that material facts In are prima Shearer has established entitlement to a con- facie tested case Stats.8 County's it, We next consider Rock argument too, earlier, hearing. entitled to a DNR As indicated county's petition for review of the lake level order allegations department included that the had "erred" not granting county and, hearing, contested case relief, among requested it the matter be department remanded to the In hearing. the review proceedings, county joined for a temporary injunction and offered evidence of the cost of remodeling comply order, the dam to with the DNR injunc It is immaterial that there was also evidence at the tion opposite that could lead to an conclusion —that petitioners Shearer injury and the other were not threatened with prima the DNR order. The existence of a case for relief facie depend balancing testimony, only upon does not on a of the but Kassuba, Walter support request. the facts offered in Inc. v. Bauch, 648, 655, (1968). 158 N.W.2d *14 comity which the claimed "injury" constituted within meaning of sec. Stats. The trial court con- expenditure cluded that of funds would not be an "injury" county to the because it receiving would be a (the "capital improvement" equivalent value remod- dam) in money spent.9 eled return for the however, county,

The never any request made hearing prior DNR for a institution the judicial Indeed, proceedings. review its mention hearing first of a Then, petition for review. some nine months filed, petition after the was counsel county for the "stipulated" county that should be treated as request made having department, such a to the it; and, further, having DNR as denied county should also be treated as having timely appeal taken a from the denial. any

Section requires party a seeking request" agency, a written with the "fil[e] "[a]ny states that denial of a for shall in writing be shall state the for reasons denial [and] . . .." may Under sec. an unsuccessful party petition judicial of the agency's review written denial request, of the hearing and the statute directs petition days 30 served and filed "within after the agency upon party]." service of the decision of the [the 227.53(1)(a)2. Sec.

It is well-settled that to seek and obtain 227, Stats., depen review of action under ch. "is Kos upon compliance chapter." dent strict with that matka v. DNR, 887, 892 558, 568, 253 N.W.2d

9 county the fact that trial also concluded leasing private purposes was the dam to a individual of electric power production any possible against "injury" also militated required by resulting expenditures from the the DNR order. (1977). And statutory requirements are "[u]nless strictly with, complied party seeking review cannot subject jurisdiction invoke the matter of the circuit court." Schiller v. Wisconsin ILHR Department, 353, 355, (Ct. 1981). Wis. 2d App. N.W.2d *15 jurisdiction The of the circuit court over a claim of 227.42, hearings entitlement to contested case under sec. Stats., to reviewing limited denied of a hearing request. County requested Because Rock never a one, hearing, and thus was never denied the court never subject jurisdiction obtained matter county's over the claim. county however, sirgues, stipulation that attorney

between its lawyer any and DNR's cures juris- problem permits dictional us to consider its entitle- 227.42, hearing ment to a under disagree. sec. Stats. We personal jurisdiction, Unlike subject jurisdiction matter upon cannot conferred the court consent of the Revenue, parties. Cudahy Department v. 253, 259-60, (1974). 224 N.W.2d The circuit claim, acquired jurisdiction county's never over the circumstances, and under these we do not see how the county complain can now be heard to the court (on erred when it ruled grounds) county was not entitled to a hearing. contested case We there- portion fore affirm In of the order. so ruling, how- ever, express opinion we no county's participate intervene or otherwise hearings we department now direct the to hold.10 challenged prepare Shearer also DNR's refusal to an envi impact 1.11, ronmental statement for its order under sec. Stats. conceded, however, He has that should we order a contested case done, department, before the as we have this issue becomes moot. By the Judgment and order affirmed Court. —

part, in part reversed cause remanded with direc- tions to the trial court to enter an remanding order Department matter of Natural Resources and directing the department grant for a Stats. (dissenting).

DYKMAN, J. As purportedly majority, 227.42(lm), redrawn Stats., would provide:

(a) person requests Whenever hearing pur- a suant to sec. shall: (1) proceedings brief supple- hold or consider mental person materials or submissions from the requesting hearing, and thereafter determine requirements whether the of sec. have met; been

(2) correspondence determine from or other- inadequate wise requirements material whether *16 of sec. 227.42 have met. been

(b) If agency proceeded the has under sec. 227.42(lm)(a)(l), judicial pursuant review shall be to 227.52, sec. Stats.

Of the legislature has not sec. enacted 227.42(lm), Stats. Nor it do so major- need because the ity opinion legislative unnecessary. makes action I dis- I sent because conclude ch. changes that substantive by legislature. 227 are better made agree legislature I that majority with has not provided question: an answer to "Who determines 227.42, requirements Stats., whether of sec. met are and how is that I disagree determination made?" that we

171 summary judg by injecting that answer provide should of administra judicial into reviews methodology ment supreme previously have followed decisions.1 We tive proce summary judgment holding that precedent reviews under ch. inapplicable to administrative dure is Comm., v. Labor & Ind. Rev. Chicago & N. W.R.R. 227. (Ct. 475-76, 603, App. 462, 2d 283 N.W.2d 91 Wis. (1980). 592, We 1979), 2d 297 N.W.2d 819 aff'd, 98 Wis. Lossman, 118 2d so. State v. Wis. continue to do should 159, (1984). 533, 526, 348 N.W.2d procedure particularly I am concerned substantially departs from the by majority enacted review only judicial there is limited concept that general per- determinations. Whether agency of administrative should be a contested case son is entitled by reviewed agency question answered a circuit court The has substituted judiciary. majority does so because it agency review of action. It trial for a in this is unreviewable. action concludes difficult, I not that the agree is but do agree I that review majority mini-trial has is the circuit court solution decreed. inadequate findings of a circuit court makes

When unreviewable, may we still fact, making its decision entitlement," "prima a con majority's facie case for The Kassuba, procedure required Walter Inc. cept from the taken (1968) Bauch, 648, 655, 158 N.W.2d v. summary judgment reality nothing method other than standard why procedure majority explain it ology. does not chose employed in procedures, such criminal as rather than procedure, hearings, That involv preliminary Stats. *17 review, evidentiary hearing an affidavit would ing rather than an my way This reinforces belief to find facts. seem to be a better legislature ought issues such as the one to decide opinions. in these addressed

172 if judgment support evidence, affirm the finds may findings. we remand Perrenoud v. Perre further noud, 658, 661 36, 42-43, (1978). 82 Wis. 260 2d N.W.2d procedure use a We similar where a circuit court abuses its failing proper discretion to consider factors. Olsen, 228, v. 111 237, 547, Schmid 2dWis. 330 N.W.2d (1983). I 552 see no to be reason less deferential to an determination, agency given policy of judicial limited 227, review found in ch. Stats.

Ironically, majority criticizes circuit court conducting very of majority sort now an requires agency's where is conclusion difficult review. cart overtook the horse and the "[T]he [circuit] court assumed the Majority opinion functions." at 162. That is not what occurred. circuit court Scope considered The Judicial Review Administra of Agency Wisconsin, tive Decisions in L.Wis. Rev. 554, scope and the deferential of an agency's review Dept. conclusions of law found in v. Revenue Milwau Refining Corp., 44, kee 855, 2dWis. 257 N.W.2d (1977). opinion The circuit court's reflects that it recognized its limited role in deci reviewing It support findings sion. wrote: "Does the record does," the DNR? It "I am and satisfied the find reason," ings are rooted ability during dam of the to control

[t]hat high episodes regrettable, water is minimal is but required up perfect DNR is not come with the any problem solution for all time to this or it empowered to address. DNR must consider all those statutory procedural required matters to reach decision, this will its then affirm decision. required do, The DNR has done it is what and this court must affirm. *18 reviewing by not used a trial court

These are words language novo, of deferential review. a matter de but the complexity majority length and The has confused the purpose: hearing "The trial circuit court with its was not entitled to a court's decision that Shearer hearing proposal was based on the merits of the testimony analysis the court's of volumes hearings on Shearer's exhibits from its earlier problem." temporary injunction. is the a And that opinion Majority the trial court's at 162. That was not decide was that DNR's What the trial court did decision. supported record, therefore was conclusion should be affirmed. findings take no more than

DNR's and conclusions pages. imply typewritten That does not three assumptions underlying the data and to test cursory. Given the those facts and conclusions would history 138-year Dam, the Indianford and the various conflicting Lake affected the water level of interests surprised Koshkonong, I am not that the trial court days hearings whether to determine needed seven appellants improperly denied contested case DNR had proposed agree I with the trial on its order. did not court's conclusion that require hearing. the DNR to hold a contested majority issues not address the other does by appellants the issue it addresses deter- because raised Berge, 61, 67, 334 Sweet v. mines the case. 1983). (Ct. App. There is therefore no N.W.2d dissent, I other issues this to address those reason do not do so.