State Public Intervenor v. Wisconsin Department of Natural Resources

503 N.W.2d 305, 177 Wis. 2d 666, 1993 Wisc. App. LEXIS 674
CourtCourt of Appeals of Wisconsin
DecidedJune 10, 1993
Docket91-2031
StatusPublished
Cited by8 cases

This text of 503 N.W.2d 305 (State Public Intervenor v. Wisconsin Department of Natural Resources) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Public Intervenor v. Wisconsin Department of Natural Resources, 503 N.W.2d 305, 177 Wis. 2d 666, 1993 Wisc. App. LEXIS 674 (Wis. Ct. App. 1993).

Opinions

DYKMAN, J.

Green Bay Harbor, located at the mouth of the Fox River, is subject to shoaling because of silt deposits. In 1978, the U.S. Army Corps of Engineers dredged the harbor to permit larger ships to enter. The spoils were used to construct Kidney Island, about fifty-five acres in size.

The Corps subsequently determined that the fifty-five acres were insufficient to hold all of the spoils being generated, and petitioned the Department of Natural Resources (DNR) for permission to add 126 acres contiguous to the fifty-five-acre site. The DNR conditionally granted the petition. The public inter-venor petitioned for judicial review of this conditional grant. We upheld the DNR's action in State Pub. Intervenor v. DNR, 156 Wis. 2d 376, 456 N.W.2d 878 (Ct. App. 1990).

The DNR next issued a notice of preliminary determination of water quality certification. The public intervenor filed a petition for a contested case hearing to review the certification. The DNR granted a contested hearing and referred the case to the Department of Administration (DOA), Division of Hearings and Appeals pursuant to sec. 227.43, Stats., and Wis. Adm. Code sec. NR 299.06(6) (Aug. 1983).

The hearing examiner reversed the DNR's certification decision and made extensive findings as to various adverse effects which could result from the additional 126 acres of spoils. Brown County petitioned the DNR secretary for review of the examiner's deci[670]*670sion. Brown County and the Brown County Board of Harbor Commissioners also filed a petition for judicial review of the examiner's decision.1 That petition was not decided and apparently remains pending in the circuit court for Brown County.

The secretary issued a decision in which he concluded that he would review the examiner's decision. The public intervenor petitioned for judicial review of that decision. The secretary affirmed the hearing examiner, but on much narrower grounds. The public intervenor petitioned for judicial review of the secretary's second decision. The two judicial reviews were consolidated and the circuit court affirmed the secretary. This appeal resulted, and we certified this case to the supreme court pursuant to Rule 809.61, Stats. The supreme court denied the certification.

The public intervenor challenges the authority of the secretary to review the BOA hearing examiner's decision. He concedes that Wis. Adm. Code sec. NR 2.20 authorizes that action, but asserts that sec. NR 2.20 was invalidly adopted because it exceeds the statutory authority granted to the DNR.2 The public intervenor also claims that the secretary's review was tainted by a conflict of interest, that impermissible ex parte contacts require reversal of the secretary's decision, and that Brown County waived its right to petition for review. We conclude that sec. NR 2.20 was not legislatively authorized, and therefore reverse. We do not reach the other assertions of error.

[671]*671In Interest of A.L.W., 153 Wis. 2d 412, 417, 451 N.W.2d 416, 418 (1990), repeated the rule to follow when administrative rules are challenged for lack of statutory authority: "In determining whether an administrative agency has exceeded its statutory authority in promulgating a rule, we must look to the enabling statute to determine whether there is express or implied authorization for the rule." Agencies may exercise "power which arises by fair implication from the express powers." Wisconsin's Envtl. Decade, Inc. v. Public Serv. Comm'n, 69 Wis. 2d 1, 16, 230 N.W.2d 243, 251 (1975). But enabling statutes are strictly construed to preclude the exercise of a power not expressly granted. Racine Fire and Police Comm'n v. Stanfield, 70 Wis. 2d 395, 399, 234 N.W.2d 307, 309 (1975). Any reasonable doubt as to the existence of an implied power should be resolved against the exercise of such authority. Kimberly-Clark Corp. v. Public Serv. Comm'n, 110 Wis. 2d 455, 462, 329 N.W.2d 143, 146 (1983). Whether an administrative agency exceeded its statutory authority in promulgating a rule is a question we resolve without deference to the view of the trial court. Wisconsin Hosp. Ass'n v. Natural Resources Bd., 156 Wis. 2d 688, 705, 457 N.W.2d 879, 886 (Ct. App. 1990). To determine whether a rule is statutorily authorized, we are to "identify the elements of the enabling statute and match the rule against those elements." Id. at 706, 457 N.W.2d at 886.

Brown County identifies two statutes which it claims authorize the DNR to adopt Wis. Adm. Code sec. NR 2.20 — secs. 227.43(1)0») and 227.46(3), Stats.3 It [672]*672argues that sec. 227.43(l)(b) recognizes that the secretary may conduct a contested case hearing. That is correct, but it does not necessarily follow that the secretary may conduct that hearing after a decision by a hearing examiner, as sec. NR 2.20 authorizes.

Section 227.46(3), Stats., authorizes an agency to hear contested cases in three ways. The agency may direct that the hearing examiner's decision be the agency's final decision. The DNR did so in Wis. Adm. Code sec. NR 299.06(7)(b) (Aug. 1983). That rule, which was in effect when the examiner made his decision, read: "If a hearing is held under sub. (6), the hearing examiner shall make findings of fact, conclusions of law and a decision, which shall become final when issued in accordance with the procedures in ch. 227, Stats., and this section." (Emphasis added.)4

An agency may also direct that the record be certified to it without an intervening proposed decision. Section 227.46(3)(b), Stats. But there is no dispute that [673]*673this was not done in the case before us. Finally, an agency may direct that the procedure of sec. 227.46(2), Stats., be followed. That statute provides for a proposed decision by a hearing examiner followed by a decision by officials of an agency. But, that procedure was not followed by the DNR either. The hearing examiner's order was not designated a "proposed order."

Of the three methods of review authorized by sec. 227.46, Stats., only one was followed in this case. Comparing the elements of sec. 227.46(3), Stats., to Wis. Adm. Code sec. NR 2.20, we find no match. Accordingly, we conclude that that statute does not authorize the DNR to adopt sec. NR 2.20.

Brown County argues that Town of Two Rivers v. DNR, 105 Wis. 2d 721, 315 N.W.2d 377 (Ct. App. 1981), overruled on other grounds, Milwaukee Metro. Sewerage Dist. v. DNR, 126 Wis. 2d 63, 72, 375 N.W.2d 648, 652 (1985), holds that the secretary may review a hearing examiner's decision pursuant to Wis. Adm. Code sec. NR 2.20. In Two Rivers, we said:

Further, [Wis. Adm. Code sec.] NR 2.20 allows review of a decision by the independent hearing examiner even if it is a final decision.

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State Public Intervenor v. Wisconsin Department of Natural Resources
503 N.W.2d 305 (Court of Appeals of Wisconsin, 1993)

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503 N.W.2d 305, 177 Wis. 2d 666, 1993 Wisc. App. LEXIS 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-public-intervenor-v-wisconsin-department-of-natural-resources-wisctapp-1993.