State Public Intervenor v. Wisconsin Dept. of Natural Resources

• Decision Date: 01 November 1983
• Docket Number: No. 82-111,82-111
• Citation: 339 N.W.2d 324,115 Wis.2d 28
• Parties: STATE of Wisconsin PUBLIC INTERVENOR, Petitioner-Appellant and Cross-Respondent, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES and Natural Resources Board, Respondents and Cross-Appellants.
• Court: Wisconsin Supreme Court

Page 324

339 N.W.2d 324

115 Wis.2d 28

STATE of Wisconsin PUBLIC INTERVENOR, Petitioner-Appellant and Cross-Respondent, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES and Natural Resources Board, Respondents and Cross-Appellants.

No. 82-111.

Supreme Court of Wisconsin.

Argued Sept. 7, 1983.

Decided Nov. 1, 1983.

Thomas J. Dawson, Madison, Wis. Public Intervenor, for petitioner-appellant and cross-respondent.

Raymond M. Roder, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen., on brief, for respondents and cross-appellants.

STEINMETZ, Justice.

The issue is whether the public intervenor, a legislatively created entity, has standing to challenge the constitutionality of an administrative code, ch. NR 345, Wis.Adm.Code, promulgated pursuant to sec. 30.20, Stats. ¹

The Dane county circuit court, the Honorable Richard W. Bardwell, held the public intervenor had such standing but held ch. NR 345, Wis.Adm.Code, constitutional. The public intervenor appealed only the part of the trial court decision that declared the code constitutional, and this court accepted certification from the court of appeals.

This is an action brought under sec. 227.05, Stats., ² by the State of Wisconsin public intervenor, petitioner-appellant-cross-respondent, to challenge a rule adopted by the Wisconsin Department of Natural Resources (DNR) and the Natural Resources Board (NRB) pursuant to sec. 30.20.

The sequence of events leading to this litigation began on January 21, 1980, when the public intervenor received from the respondents, DNR and NRB, a notice of public hearings to consider the creation of ch. NR 345, Wis.Adm.Code, which pertains to the removal of material from the beds of waterways. On February 11, 1980, pursuant to sec. 30.20, Stats., the DNR held a public hearing to receive oral and written comments on ch. NR 345. At the hearing, the public intervenor was given the opportunity to submit written testimony and present oral comments pertinent to his viewpoint. The public intervenor urged the NRB to provide "notice and opportunity to be heard" in ch. NR 345, with respect to permit proceedings under sec. 30.20 for the public intervenor specifically and the public generally.

During the week of March 16, 1980, an agenda was issued for the NRB meetings of March 26 through March 28, 1980, during which the adoption of ch. NR 345, Wis.Adm.Code would be reconsidered. In response, the public intervenor, on March 21, 1980, submitted a "Written Presentation of the Public Intervenor." On March 24, 1980, he submitted a formal notice and statement of intervention in the matter; on March 26, 1980, the public intervenor appeared before the NRB Environmental Quality Committee to submit written testimony and another oral presentation. In each of these instances, the public intervenor was given the opportunity to present his particular views as to the proposed ch. NR 345, and in each instance, the public intervenor urged that provisions giving "notice and opportunity to be heard" to the public intervenor and the public for sec. 30.20, Stats., permit proceedings be included in ch. NR 345.

On March 27, 1980, the NRB made the determination to adopt ch. NR 345, Wis.Adm.Code, without the public intervenor's proposed amendments. Ch. NR 345 then went to the standing committees of the Wisconsin legislature for review pursuant to the provisions of sec. 227.018(1)(a) and (b), Stats., created by ch. 34, Laws of 1979. ³

On April 28, 1980, the public intervenor filed a petition to review under secs. 227.15 and 227.16, Stats. In response, the DNR filed a motion to dismiss. The trial court denied the DNR's motion to dismiss and permitted the public intervenor to amend his petition to seek a declaration under sec. 227.05, of the rule's validity. From this portion of the trial court's decision, the DNR and NRB now appeal.

In the petition for review and declaratory judgment, the public intervenor contended that ch. NR 345, Wis.Adm.Code, improperly fails to give notice and an opportunity for a hearing to the public and to the public intervenor in sec. 30.20(2)(c), Stats., permit proceedings, and requested the court to issue an order:

"(a) Declaring chapter NR 345 Wis.Adm.Code invalid; and "(b) Remanding the matter to respondents with instructions to adopt and amend chapter NR 345 Wis.Adm.Code to provide to petitioner and the public notice and opportunity for hearing in sec. 30.20, Stats., permit proceedings; and

"(c) Enjoining the respondents from granting any permits under sec. 30.20, Stats., until respondents amend and adopt chapter NR 345 Wis.Adm.Code to provide public notice and opportunity for hearing in sec. 30.20, Stats., permit proceedings; and

"(d) For such other relief that is appropriate."

The circuit court found that the public intervenor had standing to challenge the validity of the administrative rule. However, on December 11, 1981, the circuit court entered its judgment that ch. NR 345, Wis.Adm.Code, is a valid exercise of the DNR's rulemaking authority under sec. 30.20(2)(c), Stats.

The basic authority for the promulgation of ch. NR 345, Wis.Adm.Code, which deals with the removal of material from the beds of nonoutlying lakes and streams, is found in sec. 30.20(2)(c), Stats., which reads: "A permit to remove material from the bed of any lake or stream not included in sub. (1)(a) may be issued by the department if it finds that the issuance of such a permit will be consistent with the public interest in the water involved."

Sec. 165.07, Stats., ⁴ provides: "Written notices of all proceedings under chs. 30, 31, 144 and 147 shall be given to the public intervenor ...." It is made clear by this provision that the public intervenor is to receive notices of removal permits under sec. 30.20(2)(c), and the state concedes this to be required even though it has not been the practice of the DNR to give such notices to the public intervenor except in very limited permit matters.

Sec. 165.07, Stats., the enabling legislation for the public intervenor, states that he may "formally intervene in all such proceedings [in chs. 30, 31, 144 and 147] where such intervention is needed for the protection of 'public rights' in water and other natural resources, as provided in chs. 30 and 31 and defined by the supreme court... He may appeal from administrative rulings to the courts ...." This legislation gives the public intervenor the right only to intervene in proceedings. He is not given the full scope of authority to either initiate an action or to challenge a rule. All that the statute authorizes him to do is to intervene in proceedings and to appeal from administrative rulings in those proceedings.

Wisconsin's Environmental Decade, Inc. v. PSC, 69 Wis.2d 1, 10, 230 N.W.2d 243 (1975) held:

"The Wisconsin rule of standing envisions a two-step analysis conceptually similar to the analysis required by the federal rule. The first step under the Wisconsin rule is to ascertain whether the decision of the agency directly causes injury to the interest of the petitioner. The second step is to determine whether the interest asserted is recognized by law.... (1) Does the challenged action cause the petitioner injury in fact? and (2) is the interest allegedly injured arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question?"

Under the first step, petitioner is not injured by DNR's promulgation of NR 345, Wis.Adm.Code, since the public intervenor is already authorized to receive notice of all sec. 30.20, Stats., permit proceedings under sec. 165.07. There is no injury in fact to the public intervenor if a separate notice is not provided by ch. NR 345. Therefore, the first step of the standing test was not met.

Wisconsin has specifically limited the powers and duties of the attorney general. Wisconsin Constitution art. VI sec. 3 limits the powers and duties to those "prescribed by law."

"The attorney general is devoid of the inherent power to initiate and prosecute litigation intended to protect or promote the interests of the state or its citizens and cannot act for the state as parens patriae... Such power must be specifically granted by the legislature. Unless the power to prosecute a specific action is granted by law, the office of the attorney general is powerless to act." Estate of Sharp, 63 Wis.2d 254, 261, 217 N.W.2d 258 (1974).

In Sharp, the court held that the attorney general did not have the power to intervene in estate proceedings, because he had not been granted that power by the legislature. Hence, he could not be considered an interested party. Id. at 263. The attorney general therefore had no standing in the litigation. A particular assistant attorney general, the public intervenor, logically is limited to his statutory authority as an assistant attorney general, unless the legislature clearly stated otherwise.

The duties of the department of justice are set forth in sec. 165.25, Stats., ⁵ and include "representing the state" and in sec. 165.07, the public intervenor may "intervene" to protect public rights in water. Nowhere is there a statutory provision giving the attorney general or his assistants the power to challenge the constitutionality of a law or rule of this state or one of its agencies. City of Eau Claire v. Department of Natural Resources, 60 Wis.2d 751, 210 N.W.2d 771 (1973). To the contrary, it is the attorney general's duty to defend the constitutionality of state statutes.

The public intervenor also relies for standing on the public trust doctrine and cites Muench v. Public Service Comm., 261 Wis. 492, 53 N.W.2d 514 (1952) for that proposition. The issue in Muench was whether a private citizen has standing to participate as a party in a hearing which was provided by secs. 31.06 and 31.28, Stats. The attorney general intervened to support the plaintiff. The Muench case does not hold that standing derives from a substantive right apart...