Myers v. Wis. Dep't of Natural Res.
| Decision Date | 18 January 2019 |
| Docket Number | No. 2016AP1517,2016AP1517 |
| Citation | 2019 WI 5,922 N.W.2d 47,385 Wis.2d 176 |
| Parties | Terrie MYERS and Philip Myers, Petitioners-Appellants-Cross-Respondents-Petitioners, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent-Cross-Appellant. |
| Court | Wisconsin Supreme Court |
For the petitioners-appellants-cross-respondents-petitioners, there were briefs filed and an oral argument by Matthew A. Biegert and Doar, Drill & Skow, S.C., New Richmond.
For the respondent-respondent-cross-appellant, there was a brief filed and an oral argument by Gabe Johnson-Karp, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.
¶ 1 Philip and Terrie Myers seek review of an unpublished per curiam decision of the court of appeals1 affirming in part and reversing in part the circuit court.2 The Myers seek review of the Wisconsin Department of Natural Resources' (DNR) unilateral amendment to their pier permit.
¶ 2 In 2001, the Myers were granted a permit by the DNR and built a pier at their waterfront property on Lake Superior. In 2012 and 2013, the DNR received complaints from a neighboring property owner about the Myers' pier. The DNR conducted an investigation and requested that the Myers substantially modify their pier. The Myers declined to make the DNR's proposed changes. The DNR then issued a "Notice of Pending Amendment," held a public informational hearing, and ultimately issued a formal permit amendment requiring the Myers to significantly change their pier in one of two ways.
¶ 3 The Myers declined to comply with the DNR's permit amendment and instead filed a petition for Wis. Stat. ch. 227 (2015-16)3 judicial review in the Ashland County Circuit Court. The circuit court denied the Myers' petition, finding that the DNR had the authority to issue an amendment to the Myers' pier permit. The circuit court then remanded the case to the DNR, finding that more fact-finding was needed as to the applicability of several statutory exemptions which could bar the DNR's action. Both parties appealed the circuit court's decision.
¶ 4 The court of appeals affirmed the circuit court's conclusion that the DNR had the authority to issue the Myers' permit amendment. The court of appeals reversed the circuit court as to the statutory exemptions, concluding as a matter of law that the statutory exemptions did not apply.
¶ 5 On petition to this court, the Myers seek review of three issues: (1) whether the DNR had the authority to amend their permit; (2) whether two exemptions in Wis. Stat. § 30.12(1k) barred the DNR's actions; and (3) whether the court of appeals could rely on "implicit findings" made by the DNR at a public informational hearing to conclude that the statutory exemptions in § 30.12(1k) did not apply to the Myers' pier.
¶ 6 We conclude that the DNR did not have the authority to unilaterally amend the Myers' permit. We therefore reverse the decision of the court of appeals. Because the DNR did not have the authority to amend the Myers' permit, we need not reach the issues related to the application of the statutory exemptions set forth in Wis. Stat. § 30.12(1k).
¶ 7 The Myers own waterfront property on Madeline Island on Lake Superior. In December 1999, the Myers filed an application, pursuant to Wis. Stat. § 30.12, to construct a rock-filled pier next to the remnants of a dock that had been built on their property in the 1930s. The DNR received several objections to the Myers' application. The objectors were concerned that the proposed pier would result in beach erosion and other shoreline changes related to "littoral drift," the process of moving sediment along the shore.
¶ 8 In June 2001, the DNR held a contested hearing on the Myers' permit application. On July 23, 2001, an administrative law judge (ALJ) granted the Myers "a permit under Wis. Stat. § 30.12 for the construction of a structure." The permit granted the Myers permission to construct a pier consisting of "rock-filled cribs 10 feet in width extending 70 feet waterward from an existing 16-foot crib." The pier design also included a 14-foot L-extension with a 12-foot "flow-through opening" that would allow water and sediment to flow underneath and through the structure. The ALJ concluded that it was "unlikely that there [would] be detrimental impacts relating to shoreline alterations." However, the ALJ found that it was not always possible to predict the impact of a particular structure so he included the following language in the Myers' permit: "[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" ("Condition 1"). The ALJ explained that Condition 1 would be "protective of unexpected impacts on neighboring properties relating to sand accumulation or beach starvation."
¶ 9 The Myers completed construction of their pier in October 2001 in accordance with the specifications set forth in the permit. In 2012 and 2013, the DNR received complaints from a neighboring riparian property owner who alleged that there was shoreline erosion and a loss of riparian property4 due to the Myers' pier.
¶ 10 As a result of these complaints, the DNR conducted an investigation and consulted with a coastal engineer, Gene Clark. Clark visited the Myers' property and wrote a report, detailing his opinion as to the effects of the Myers' pier. Clark ultimately concluded that because of "complexity of the mix of older and newer structures," as well as the fact that some littoral material "existed with just the older structures in place several decades ago," it was "extremely difficult to estimate how much if any additional littoral material trapping is occurring due only to the [Myers'] newer pier structures." The DNR sent the Myers a letter in July 2013, informing them that their pier was not in compliance with the 2001 permit. The DNR informed the Myers that the flow-through opening was not functioning as intended. Further, the DNR required the Myers to remove the two 24-foot cribs and replace the "bridge" between the crib and the L with a different system that allowed for the free movement of water and sediment. The Myers declined to institute the DNR's proposed changes.5
¶ 11 In November 2013, the DNR issued a Class I "Notice of Pending Amendment" indicating that it proposed to amend the Myers' 2001 permit to require expansion of the flow-through opening from 12 to 60 feet. The notice requested public comment on the proposed amendment. On January 7, 2014, the DNR held a public informational hearing on the amendment. An engineer testified in support of the Myers at the public informational hearing, asserting that the amendment was not supported by the site observations or any relevant technical evaluation.
¶ 12 On April 21, 2015, 14 years after the original permit was issued, and 15 months after the public hearing, the DNR issued an amendment which required the Myers to modify their pier in one of two ways. The DNR gave the Myers the following options: (1) remove two waterward cribs on the main stem of the pier to expand the flow-through opening from 12 to 60 feet; or (2) provide the DNR with certified engineering plans that depict an alternative opening to allow for the free movement of water and sediment. The DNR asserted that it had authority under Wis. Stat. § 30.12(3m) to issue this permit amendment. The DNR gave the Myers 30 days to decide on a modification option and 18 months to complete that modification.
¶ 13 The Myers filed a petition for Wis. Stat. ch. 227 judicial review in the Ashland County Circuit Court.6 In that action, the Myers asserted that: (1) the DNR lacked authority to apply for and grant itself an amendment; (2) their pier was exempt from permit requirements, pursuant to Wis. Stat. § 30.12(1k)(b) ; (3) their pier was exempt from enforcement actions, pursuant to § 30.12(1k)(cm) ; and (4) the evidence did not support the DNR's decision to amend their permit.
¶ 14 The circuit court rejected the Myers' claim that the DNR lacked the authority to amend their 2001 permit. However, the circuit court remanded the case to the DNR for additional factual development as to whether the exemptions in Wis. Stat. § 30.12(1k) applied to the Myers' pier. The Myers appealed the circuit court's decision. The DNR cross-appealed the circuit court's decision to remand for additional fact-finding.
¶ 15 The court of appeals issued a decision affirming in part and reversing in part the circuit court. The court of appeals affirmed the circuit court's holding that the DNR had the authority to amend the permit and reversed the circuit court's remand for additional fact-finding. The court of appeals concluded as a matter of law that neither of the exemptions applied because of "implicit findings" made by the DNR at the public informational hearing.
¶ 16 The Myers raise three issues on appeal to this court: (1) whether the DNR had authority to amend their permit; (2) whether two exemptions in Wis. Stat. § 30.12(1k) barred the DNR's actions; and (3) whether the court of appeals could rely on "implicit findings" made by the DNR at a public informational hearing to conclude that the statutory exemptions in § 30.12(1k) did not apply to the Myers' pier.
¶ 17 On a Wis. Stat. ch. 227 appeal we review the decision of the agency, not the circuit court. Hilton ex rel. Pages Homeowners' Ass'n v. DNR, 2006 WI 84, ¶ 15, 293 Wis. 2d 1, 717 N.W.2d 166. We have ended our practice of deferring to administrative agencies' conclusions of law. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶ 3, 382 Wis. 2d 496, 914 N.W.2d 21. Instead, we give "due weight" to the experience, technical competence, and specialized knowledge of an administrative agency in evaluating the persuasiveness of the agency's argument. Id. When a determination of the scope of an agency's power...
To continue reading
Request your trial
-
Clean Wis., Inc. v. Wis. Dep't of Natural Res.
...2d 55, 953 N.W.2d 318. When interpreting statutes, we start with the text, and if its meaning is plain on its face, we stop there. Myers v. DNR, 2019 WI 5, ¶18, 385 Wis. 2d 176, 922 N.W.2d 47. We also consider the statutory context, interpreting language consistent with how it is used in cl......
-
Moran v. Wis. Dep't of Justice
...227.58 involving an agency decision. In such an appeal, we review the decision of the agency, not the decision of the circuit court. Myers v. DNR , 2019 WI 5, ¶17, 385 Wis. 2d 176, 922 N.W.2d 47. Our supreme court recently ended the practice of deferring to an administrative agency’s conclu......
- Koss Corp. v. Park Bank
-
Hall v. Wis. Dep't of Justice
...§ 227.58 involving an agency decision, and therefore we review the decision of the agency, not the decision of the circuit court. Myers v. DNR , 2019 WI 5, ¶17, 385 Wis. 2d 176, 922 N.W.2d 47. We no longer defer to an administrative agency’s conclusions of law. Tetra Tech EC, Inc. v. DOR , ......
-
JUDICIAL DEFERENCE TO MUNICIPAL INTERPRETATION.
...doctrine. Because Wisconsin has abandoned agency deference, Davidson's arguments do not apply. (79.) Myers v. Wis. Dep't of Nat. Res., 922 N.W.2d 47, 52 (Wis. 2019) ("[Administrative agencies are creatures of the legislature. An administrative agency has only those powers expressly conferre......