WI DNR: Licensed to Do Whatever It Wants to Do

Preposterous? Inane?

Well, it's the opinion of some Blackrobes. YOU decide:

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.

Here's the background story:

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 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.”

Of course the question of "oversize piers" remains in debate.

HT: Random10