Philip Myers v. Wisconsin Department of Natural Resources , 385 Wis. 2d 176 ( 2019 )

2019 WI 5SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1517
COMPLETE TITLE: Terrie Myers and Philip Myers,
Petitioners-Appellants-Cross-
Respondents-Petitioners,
v.
Wisconsin Department of Natural Resources,
Respondent-Respondent-Cross-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 378 Wis. 2d 220, 904 N.W.2d 144(2017 – unpublished)
OPINION FILED: January 18, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 25, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ashland
JUDGE: Robert E. Eaton
JUSTICES:
CONCURRED:
DISSENTED: A. W. Bradley, J. dissents (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
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.
2019 WI 5NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1517
(L.C. No. 2015CV36)
STATE OF WISCONSIN : IN SUPREME COURT
Terrie Myers and Philip Myers,
Petitioners-Appellants-
Cross-Respondents-Petitioners,
FILED
v. JAN 18, 2019
Wisconsin Department of Natural Resources, Sheila T. Reiff
Clerk of Supreme Court
Respondent-Respondent-
Cross-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA FRANK DALLET, J. 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seek review of an unpublished per curiam decision of the court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.
1
Myers v. DNR, No. 2016AP1517, unpublished slip op. (Wis.
Ct. App. Aug. 29, 2017).
2
The Honorable Robert E. Eaton of Ashland County Circuit
Court presided.
No. 2016AP1517
¶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
3
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
No. 2016AP1517
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).
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶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
3
No. 2016AP1517
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
4
No. 2016AP1517
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
4
Riparian rights are "special rights to make use of water
in a waterway adjoining [an] owner's property." Movrich v.
Lobermeier, 2018 WI 9, ¶22, 379 Wis. 2d 269, 905 N.W.2d 807(citation omitted).
5
Shortly thereafter, the Myers filed a petition for
administrative review of the DNR's July 2013 letter. However,
the DNR denied the request for review on the ground that no
final agency action had taken place.
5
No. 2016AP1517
¶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.
6
No. 2016AP1517
¶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
6
Following the DNR's issuance of the permit amendment, the
Myers filed a request for a contested case hearing. After the
DNR granted the request, the Myers waived that hearing and
pursued judicial review. The parties entered into a stipulation
that the DNR would not raise the exhaustion doctrine as a
defense to the Myers' petition.
7
No. 2016AP1517
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.
II. STANDARD OF REVIEW
¶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 is central to resolution of the controversy, as in this
case, we independently decide the extent of the agency-authority
that the statute provides. See Rock-Koshkonong Lake Dist. v.
DNR, 2013 WI 74, ¶¶61-62, 350 Wis. 2d 45, 833 N.W.2d 800.
¶18 This case involves interpretation of Wis. Stat. ch.
30, which regulates navigable waters. Statutory interpretation
is a question of law that this court reviews de novo. Noffke ex
8
No. 2016AP1517
rel. Swenson v. Bakke, 2009 WI 10, ¶9, 315 Wis. 2d 350, 760
N.W.2d 156. The purpose of statutory interpretation is to
"determine what the statute means so that it may be given its
full, proper, and intended effect." State ex rel. Kalal v.
Circuit Court, 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.
Statutory interpretation begins with the language of the
statute. Kalal, 271 Wis. 2d 633, ¶45. Statutory language is
"given its common, ordinary, and accepted meaning," unless there
are technical or specially-defined words or phrases. Id., ¶45.
If the statutory language yields a "plain, clear statutory
meaning, then there is no ambiguity," and there is no need to
consult extrinsic sources of interpretation. Id., ¶46.
III. ANALYSIS
¶19 This dispute centers around whether the DNR had
authority to unilaterally amend the Myers' permit 14 years after
their pier was placed. Although not explicitly argued by the
DNR, the court of appeals held that the DNR had the authority to
amend the Myers' permit by reserving to itself that authority in
Condition 1. Before this court, the DNR cites to two statutory
authorizations of power in support of its ability to amend the
Myers' permit: Wis. Stat. § 30.12(3m)(d)2. and Wis. Stat.
§ 30.2095(2). The DNR asserts that § 30.12(3m)(d)2. statutorily
authorizes the placement of Condition 1 in the Myers' permit.
Alternatively, the DNR argues that even absent Condition 1,
§ 30.2095(2) provides it with the authority to modify or rescind
the permit for "good cause" because the Myers' permit never
expired. We address each argument in turn.
9
No. 2016AP1517
A. Reservation of Authority
¶20 We first address the court of appeals' holding that
the DNR could, absent statutory authorization, reserve to itself
the authority to amend the Myers' permit in Condition 1. See
Myers v. DNR, No. 2016AP1517, unpublished slip op., ¶14 (Wis.
Ct. App. Aug. 29, 2017). Condition 1 reads "[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." The court of appeals
looked to the language of Condition 1 and held that no other
explicit grant of authority was necessary. See Myers, No.
2016AP1517, ¶14 & n.2. The court of appeals also placed an
additional burden on the Myers to cite to law indicating that
the DNR was unable to reserve to itself such authority. See
Myers, No. 2016AP1517, ¶14 & n.2. The court of appeals further
determined that the Myers "agreed to the condition allowing
amendment by accepting the permit."7 See Myers, No. 2016AP1517,
¶14.
¶21 We conclude that the court of appeals erred in holding
that Condition 1 in and of itself provided the DNR the authority
to amend the Myers' permit. It is important to remember that
administrative agencies are creatures of the legislature. An
administrative agency has only those powers expressly conferred
7
As the ALJ noted, this type of condition was "standard for
solid dock structures on Lake Superior." There is no support
for the premise that by accepting the permit the Myers waived
their right to challenge future DNR actions.
10
No. 2016AP1517
or necessarily implied by the statutory provisions under which
it operates. See Kimberly-Clark Corp. v. Public Serv. Comm'n of
Wis., 110 Wis. 2d 455, 461-62, 329 N.W.2d 143 (1983); Brown Cty.
v. DHSS, 103 Wis. 2d 37, 43, 307 N.W.2d 247 (1981); American
Brass Co. v. Wisconsin State Bd. Of Health, 245 Wis. 440, 448,
15 N.W.2d 27 (1944). We resolve any reasonable doubt pertaining
to an agency's implied powers against the agency. See Kimberly-
Clark Corp., 110 Wis. 2d at 462. We conclude that absent
statutory authorization, Condition 1 in and of itself cannot
provide the DNR the authority to amend the Myers' permit. We
next turn to whether the DNR had statutory authorization to
amend the Myers' permit.
B. Wisconsin Stat. § 30.12(3m)(d)2.
¶22 The DNR argues that it had statutory authority
pursuant to Wis. Stat. § 30.12(3m)(d)2. to insert Condition 1
in the Myers' 2001 permit because that condition implemented
the criteria under § 30.12(3m)(c)1.-3. Section 30.12(3m)(d)2.
allows the DNR to "promulgate rules that limit the issuance of
individual permits for solid piers."8 The statute further
explains that these rules "may establish reasonable conditions
to implement the criteria under par. (c)1. to 3." Section
30.12(3m)(c) reads:
(c) The department shall issue an individual permit
to a riparian owner for a structure . . . if the
8
The rules promulgated by the DNR for pier-permitting
standards are found in Wis. Admin. Code § NR 326 (Apr. 2005).
11
No. 2016AP1517
department finds that all of the following
requirements are met:
1. The structure or deposit will not materially
obstruct navigation.
2. The structure or deposit will not be
detrimental to the public interest.
3. The structure or deposit will not materially
reduce the flood flow capacity of a stream.
¶23 The DNR likens Condition 1 to a "reasonable
condition[] to implement the criteria under par. (c)1. to 3.,"
pursuant to Wis. Stat. § 30.12(3m)(d)2. The DNR reads the
language of § 30.12(3m)(c) as imposing a requirement that a
permit continuously satisfy the criteria in paragraphs 1.
through 3. Therefore, according to the DNR, when, if at all, a
permit fails to satisfy all three criteria in § 30.12(3m)(c)1.-
3., the DNR may amend or rescind the permit pursuant to
Condition 1.
¶24 There is no support in the plain language of Wis.
Stat. ch. 30 for the DNR's claim that a pier permit carries with
it an ongoing requirement to satisfy the criteria in Wis. Stat.
§ 30.12(3m)(c)1.-3.9 The language of § 30.12(3m)(c)1.-3.
explicitly uses the past tense "met" when it lists the
requirements for granting a permit, thus signifying that the
9
We decline to address legislative history or alleged
legislative intent because the statute is unambiguous. If
statutory language yields a "plain, clear statutory meaning,
then there is no ambiguity," and there is no need to consult
extrinsic sources of interpretation. State ex rel. Kalal v.
Circuit Court, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.
12
No. 2016AP1517
conditions must be fulfilled before the permit is granted.
Courts must avoid interpretations that require inserting words
into statutes. See Heritage Farms, Inc. v. Markel Ins. Co.,
2009 WI 27, ¶14, 316 Wis. 2d 47, 762 N.W.2d 652; C. Coakley
Relocation Sys., Inc. v. City of Milwaukee, 2008 WI 68, ¶24, 310
Wis. 2d 456, 750 N.W.2d 900. There is no language in ch. 30
that requires a permit to continuously satisfy the criteria in
§ 30.12(3m)(c)1.-3. and we will not read such language into the
statute.
¶25 The DNR also argues that "the entire tenor" and
"spirit" of Wis. Stat. ch. 30 suggests that a permit includes a
requirement to continuously satisfy the criteria in Wis. Stat.
§ 30.12(3m)(c)1.-3. When pressed at oral argument, the DNR
cited to several sections of ch. 30 that allegedly illustrate
the legislature's intent that permits continue to govern piers
indefinitely. This brings us to the question of whether a
permit issued under § 30.12 is akin to a building permit or is a
permit governing possession. This question is intertwined with
the DNR's alleged second statutory authorization of power, Wis.
Stat. § 30.2095.
C. Wisconsin Stat. § 30.2095
¶26 Apart from the alleged authorization given to the DNR
in Wis. Stat. § 30.12(3m)(d)2., the DNR relies on Wis. Stat.
§ 30.2095(2) as a separate avenue of independent authority to
amend the Myers' permit. Section 30.2095(2) reads: "[f]or good
cause, the department may modify or rescind any permit or
contract issue under ss. 30.01 to 30.29 before its expiration."
13
No. 2016AP1517
The DNR's argument rests on the premise that because the Myers'
pier was completed within three years, the Myers' permit never
expired. Therefore, the DNR could modify or rescind the Myers'
permit at any time pursuant to § 30.2095(2) for "good cause."
We must first address the parties' dispute as to whether the
permit was akin to a building permit or is a permit governing
possession, and, accordingly when, if at all, the Myers' permit
expired.
¶27 The Myers contend that their permit was akin to a
building permit and that, according to its terms, it expired on
July 23, 2004, three years after its issuance. The DNR asserts,
and the court of appeals agreed, that because the pier was
completed within the time limit set forth in the permit, the
Myers' permit did not expire. As additional support for its
position, the DNR asserts that a permit controls ongoing
maintenance and use of a pier, even after its placement.10
¶28 We agree with the Myers' interpretation and conclude
that, based upon a plain reading of the language of Wis. Stat.
ch. 30, a permit issued under Wis. Stat. § 30.12 is akin to a
building permit.
¶29 The Myers were granted "a permit under Wis. Stat.
§ 30.12 for the construction of a structure" that expired "three
years from the date of [July 23, 2001], if the structure is not
10
However, the DNR conceded at oral argument that there is
no statutory language that indicates that a pier permit is a
"possession permit."
14
No. 2016AP1517
completed before then." This language comports with the
language set forth in Wis. Stat. § 30.2095(1)(a) which provides,
in pertinent part, that a permit "issued under ss. 30.01 to
30.29 . . . is void unless the activity or project is completed
within 3 years after the permit or contract was issued."
Section 30.2095(1)(b) allows for an extension of the permit for
"no longer than an additional 5 years if the grantee requests an
extension prior to expiration of the initial time limit."
¶30 "[S]tatutory language is interpreted in the context in
which it is used; not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable
results." Kalal, 271 Wis. 2d 633, ¶46. By employing the phrase
"unless the activity or project is completed" in Wis. Stat.
§ 30.2095(1)(a) as a reference point for when the permit becomes
void, the legislature expressed its intent that the permit be
for the completion of the activity or project for which the
permit was granted, i.e., the placement of a pier. When
§ 30.2095(1) is read in conjunction with § 30.2095(2), it is
clear that the "expiration" for the modification of a permit
discussed in § 30.2095(2) is the earlier of the expiration date
of the permit or the actual date when pier placement was
completed.11
11
Because a permit to build a pier expires upon its
placement, the Myers' permit expired in October 2001 and would
have been void by July 23, 2004 had the pier not been placed.
15
No. 2016AP1517
¶31 According to the DNR and the court of appeals, if pier
placement is complete within the timeframe determined by Wis.
Stat. § 30.2095(1)(a), the permit never expires. If that were
the case, the phrase "before its expiration" in § 30.2095(2)
becomes superfluous since the DNR could "[f]or good cause"
modify or rescind any non-void permit or contract at any time.
¶32 It is also noteworthy that the legislature made a
distinction between the term "void," as used in Wis. Stat.
§ 30.2095(1)(a), and the term "expiration," as used in
§ 30.2095(1)(b) and (2). These terms are presumed to have
distinct meanings. See Johnson v. City of Edgerton, 207 Wis. 2d
343, 351, 558 N.W.2d 653 (Ct. App. 1996). Given its plain
meaning, where a grantee needs additional time to complete a
project, he or she may ask to extend the expiration date of a
permit pursuant to § 30.2095(1)(b) to prevent a permit from
becoming void under § 30.2095(1)(a). The DNR possesses a
limited right to modify a permit until the earlier of the
expiration date of the permit or the date when pier placement
was completed, as set forth in § 30.2095(2). However, that
right does not include the ability to require partial removal of
a pier, and substantial modification to a permit, over 14 years
after a pier was placed.12
12
The dissent opines that the DNR selected a "permit
amendment track," via its necessarily implied authority.
Dissent, ¶73. The DNR did not follow any statutorily proscribed
procedures; instead, the DNR appeared to act unilaterally in
demanding changes to the Myers' pier.
16
No. 2016AP1517
¶33 A review of the language used in ch. 30 further
supports the conclusion that a pier permit is akin to a building
permit and includes no additional requirements for ongoing
maintenance and use. As previously noted, "[s]tatutory language
is interpreted in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Kalal, 271 Wis. 2d 633,
¶45. Pier permits are described throughout ch. 30 in reference
to the "placement" of a structure. See, e.g., Wis. Stat.
§ 30.12(1)(a)(providing that a permit is required to "place
any structure upon the bed of any navigable water");
§ 30.12(3m)(a)(providing that a permit is required "in order
to place the structure for the owner's use"). The Merriam
Webster Dictionary defines place as "to put in or as if in
a particular place or position: set." "Place," Merriam Webster
Online Dictionary (2018), https://www.merriam-webster.com/
dictionary/place. Therefore, "[p]lacement" refers to setting a
pier in the navigable waters, not the ongoing use of a pier.
¶34 Where the legislature intends to include the
responsibility of ongoing maintenance, it specifies as such, as
seen in Wis. Stat. § 30.131, which regulates piers "placed and
maintained by persons other than riparian owners." If "placed"
was synonymous with "maintained," the word "maintained" in
§ 30.131 would be surplusage. Additionally, in enacting
regulations for a permit for a dam, the legislature clarified
that the permit also includes ongoing maintenance. See, e.g.,
17
No. 2016AP1517
Wis. Stat. § 31.05 (describing the permit as one "to construct,
operate and maintain a dam"). We look to the words chosen by
the legislature in the context of the entirety of Wis. Stat. ch.
30 and conclude that the Myers' pier permit was akin to a
building permit.
¶35 Because we conclude that the DNR lacked authority to
amend the Myers' permit, we need not reach the issues that
surround the application of the statutory exemptions in Wis.
Stat. § 30.12(1k), including the court of appeals' reliance on
"implicit findings" made by the DNR at a public informational
hearing.
IV. CONCLUSION
¶36 On petition to this court, the Myers sought review of
the DNR's authority to amend their 2001 pier permit. The Myers
also sought review as to whether two exemptions in Wis. Stat.
§ 30.12(1k) barred the DNR's actions. Lastly, the Myers sought
review of 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.
¶37 We conclude that the DNR could not reserve to itself
the authority to amend the Myers' permit through Condition 1.
We conclude that Wis. Stat. § 30.12(3m)(d)2. did not provide the
DNR with statutory authorization to insert Condition 1 in the
Myers' permit. Further, we conclude that because the Myers'
permit expired, Wis. Stat. § 30.2095 did not provide the DNR
with the authority to modify or rescind the Myers' permit for
18
No. 2016AP1517
"good cause." Because the DNR had no authority to amend the
Myers' permit and we reverse the court of appeals' decision, we
need not address whether the statutory exemptions found in
§ 30.12(1k) applied to the Myers' pier.
By the Court.—The decision of the court of appeals is
reversed.
19
No. 2016AP1517.awb
¶38 ANN WALSH BRADLEY, J. (dissenting). Although the
administrative law judge initially found that granting the
Myers' permit request would likely not have detrimental effects,
he also observed "it is not always possible to predict the
impact of a particular structure in such a dynamic system."
¶39 The ALJ's admonition proved prescient. A decade after
the Myers completed construction of their pier, the DNR received
complaints from neighbors that the Myers' pier was not operating
as intended. Specifically, the neighbors asserted that the pier
was exacerbating shoreline erosion and causing "loss of riparian
property." Majority op., ¶9.
¶40 To remedy the now-apparent defects in the pier, the
DNR issued a permit amendment requiring that the Myers modify
their pier in one of two ways. Id., ¶12. The Myers declined to
pursue either modification option presented by the DNR and
instead have pursued judicial review of the DNR's action.
¶41 Upon review, the majority concludes that the DNR lacks
the statutory authority to amend the permit. Id., ¶37; see Wis.
Stat. §§ 30.12(3m)(d)2., 30.2095. It reaches this erroneous
conclusion by writing words into the statutes, failing to follow
its own analytical construct, and arriving at an unreasonable
result that could leave the DNR toothless to address some piers
that violate the public interest. In my view, the pier-
permitting statutes necessarily imply a grant of power to the
DNR to amend permits. Accordingly, I respectfully dissent.
1
No. 2016AP1517.awb
I
A
¶42 The majority's first error lies in reading words into
the pier-permitting statutes that simply are not there.
¶43 Pursuant to Wis. Stat. § 30.12(1), all structures that
are "placed" upon the bed of any navigable water require a
permit. In the majority's view, "placement" "refers to setting
a pier in the navigable waters, not the ongoing use of a pier."
Majority op., ¶33. Accordingly, in the majority's estimation, a
pier permit is "akin to a building permit," and is not required
for the ongoing maintenance of a pier. Id., ¶28.
¶44 Such a distinction is salient because if the permit is
for building only, then the permit conditions would not govern
the ongoing maintenance of the pier. Conversely, if the permit
is required for maintenance of a pier, then the obligations it
creates do not end when construction is complete.
¶45 As a threshold to its analysis, the majority correctly
sets forth the principles that govern statutory interpretation.
See majority op., ¶18. Statutory interpretation begins with the
language of the statute. State ex rel. Kalal v. Circuit Court
for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
If the meaning of the statute is plain, we need not further the
inquiry. Id. However, we must interpret statutes reasonably,
to avoid absurd or unreasonable results. Id., ¶46.
¶46 With repeated assurances to the reader that it is
embracing a plain meaning interpretation, the majority warns of
the nemesis of plain meaning, i.e. writing words into the
2
No. 2016AP1517.awb
statute. Majority op., ¶24. And it advises the reader that we
will refrain from doing so here. Id. Nevertheless, after such
proclamations and protestations, the majority fundamentally
alters the statute by writing into it an outcome-determinative
word not written by the legislature. Although it pays lip
service to a plain meaning interpretation, the majority fails to
follow it.
¶47 Nowhere in the statutes on which the majority relies
does the legislature delineate that a pier permit is a
"construction" or "building" permit. This stands in marked
contrast to the numerous statutes where the legislature has
specified that a permit is a "construction" permit or "building"
permit. See, e.g., Wis. Stat. § 31.05 (specifying that a permit
is to "construct, operate and maintain a dam"); § 66.1036
(referring to the requirement that a "building permit" be the
provided to county clerk); § 101.654(1)(a) (setting forth
requirements for the issuance of a "building permit"); § 145.195
(referring to a "permit for construction" of any structure);
§ 285.60(1)(a) (referencing a "construction permit" for
construction, reconstruction, replacement, or modification of a
stationary air pollution source). When the legislature wants a
permit to be a construction or building permit, it knows how to
indicate as much.
¶48 Additionally, a standard principle of statutory
interpretation requires that, except for technical or specially
defined words, we give words their common, ordinary, and
accepted meaning. Kalal, 271 Wis. 2d 633, ¶45. Yet, contrary
3
No. 2016AP1517.awb
to this principle, the majority asserts that the word "building"
is essentially a substitute for the word "placement." In the
majority's view, "placement" cannot be ongoing. Such an
assertion lacks citation and support in either the statute or
the dictionary.1
¶49 The Merriam Webster dictionary offers two sentences as
examples for the use of the word "placement" indicating that
"placement" does not end when an object is initially installed.
"Placement," Merriam Webster Online Dictionary (2018),
https://www.merriam-webster.com/dictionary/placement. Neither
supports the majority's assertion.2 Another commonly utilized
dictionary includes in the definition of "placement," "[t]he
state of being placed or arranged." The American Heritage
Dictionary of the English Language 1382 (5th ed. 2011). There
is no indication that this "state of being" is not ongoing.
¶50 As set forth in chapter 30, the plain language of the
statutory scheme leads me to the conclusion that a permit is
required to maintain a pier, not only to construct one. For
example, the plain language of Wis. Stat. § 30.12(3m)(c) states
that the DNR "shall issue an individual permit to a riparian
owner for a structure" if the statutory requirements are met
1
See State v. Sample, 215 Wis. 2d 487, ¶21, 573 N.W.2d 187(1998) ("For purposes of statutory interpretation or
construction, the common and approved usage of words may be
established by consulting dictionary definitions.").
2
Two examples offered are "the strategic placement of
products at the entrance of a store" and "the placement of
microphones around the room."
4
No. 2016AP1517.awb
(emphasis added). The statute does not say that a permit shall
be issued for the construction or building of a structure only.
By reading the word "building" into the statute, the majority
violates our established framework of statutory interpretation.
¶51 The upshot of my analysis is that the Myers' permit
did not "expire" when construction on their pier was finished.
Rather, the statutes set forth a continuing obligation to meet
the requirements of the permit.
B
¶52 The majority's second error lies in its failure to
follow its own analytical construct.
¶53 It correctly observes that "[a]n administrative agency
has only those powers expressly conferred or necessarily implied
by the statutory provisions under which it operates." Majority
op., ¶21 (emphasis added) (citing Kimberly-Clark Corp. v. Public
Serv. Comm'n of Wis., 110 Wis. 2d 455, 461-62, 329 N.W.2d 143(1983)). However, the majority's analysis suffers from a
singular focus on powers "expressly conferred" by chapter 30
while neglecting to analyze those "necessarily implied."
¶54 A permit for the placement of a pier shall not issue
if the pier materially obstructs navigation, is detrimental to
the public interest, or materially reduces the flood flow
capacity of a stream. Wis. Stat. § 30.12(3m)(c). In the
majority's view, these three requirements need only apply at the
time a pier is constructed, and "[t]here is no support in the
plain language of Wis. Stat. ch. 30 for the DNR's claim that a
5
No. 2016AP1517.awb
pier permit carries with it an ongoing requirement to satisfy"
them. Majority op., ¶24.
¶55 Essentially, the majority determines that the DNR has
the power to issue a permit that is akin to a building permit,
but not a permit for the maintaining of a pier. It bases its
conclusion on the language of the statute, but neglects to even
consider that such a power is "necessarily implied" in the
statutory scheme. In my view, it is.
¶56 Wisconsin Stat. § 30.12(3m)(c) clearly provides that a
permit shall issue if the three enumerated criteria are met. As
a corollary, if any of the criteria are not met, a permit shall
not issue.
¶57 The question raised in this case is what happens when
a pier meets the criteria of Wis. Stat. § 30.12(3m)(c) when it
is initially installed, but at some point conditions change and
the pier no longer meets the statutory requirements. The
statute dictates that if the requirements are not met, then a
permit shall not issue. This means that the non-compliant
condition must be corrected.
¶58 In order to bring the pier into compliance with the
statute, the permit must be amended, and the statute
"necessarily implies" that the DNR has this power. If the DNR
did not have this power, the result would be a host of piers
that violate the requirements of Wis. Stat. § 30.12(3m)(c), and
the DNR possibly left with no means to address them. See infra,
¶¶59-66. As I discuss next, this is an unreasonable result that
the legislature could not have intended.
6
No. 2016AP1517.awb
C
¶59 The majority's third error lies in reaching an
unreasonable result.
¶60 In denying the DNR the ability to amend the Myers'
permit, the majority allows for the very thing the legislature
has explicitly prohibited in Wis. Stat. § 30.12(3m)(c), i.e. it
allows a pier to remain even if it obstructs navigation, is a
detriment to the public interest, or reduces flood flow
capacity. Further, the majority's interpretation may deprive
the DNR of any remedy at all in similar situations.
¶61 The majority's result is unreasonable because it
allows for a pier to remain in a state of disrepair and
impairment of the public interest. Wisconsin Stat.
§ 30.12(3m)(c)2. is clear in its mandate that a permit shall not
issue if a structure will be detrimental to the public interest.
Yet, the majority allows for this very thing——as long as a pier
does not begin to become detrimental to the public interest
until after it is constructed, the permit for that pier can
never be amended.
¶62 It is also unreasonable to potentially leave the DNR
toothless in the face of a pier that obstructs navigation, is
detrimental to the public interest, or will reduce the flood
flow capacity of a stream. If the DNR cannot modify the permit
to remedy a detrimental condition in a pier, its remaining
option (absent informal resolution) is to bring an enforcement
7
No. 2016AP1517.awb
action. See Wis. Stat. § 30.03(4)(a) (authorizing DNR to bring
an enforcement action).3
¶63 However, in some situations a pier may be exempt from
enforcement. See Wis. Stat. § 30.12(1k)(cm). In such a
situation, the majority would leave the DNR powerless to act to
remedy a defect that is detrimental to the public interest or
the riparian rights of surrounding landowners. I view this
result as unreasonable.
¶64 Although the Myers' pier was not contrary to the
public interest when it was built, it is perfectly plausible
that conditions may change. Here it is alleged that the pier
has become contrary to the public interest or interferes with
the rights of other riparian owners.
¶65 Indeed, the DNR determined that "the existing 12-foot
flow-through opening is not functioning as intended consistently
enough to provide sufficient movement of water and sediment on a
regular basis to prevent the interruption of the natural
littoral processes." The impact is that "[t]his disruption, in
turn, is exacerbating the formation of land on the bed of Lake
Superior and starving adjacent 'down-drift' properties of
sediment."
¶66 If the DNR cannot modify a permit and cannot bring an
enforcement action because of an exemption, the public interest
3
An enforcement action can be maintained for "a possible
violation of s. 281.36 or of the statutes relating to navigable
waters or a possible infringement of the public rights relating
to navigable waters." Wis. Stat. § 30.03(4)(a).
8
No. 2016AP1517.awb
in maintaining the waters of this state falls by the wayside in
the event lake conditions change. The DNR should not be so
hamstrung in fulfilling its duty.
II
¶67 Because I determine that the DNR has the necessarily
implied authority to amend the Myers' pier permit, I briefly
address the Myers' arguments that statutory exemptions bar such
permit amendments.4 The Myers cite to two statutory exemptions
in an attempt to avoid the DNR's permit amendments. First, they
assert that the grandfather exemption, Wis. Stat.
§ 30.12(1k)(b), applies to their pier. Second, they contend
that the enforcement exemption, § 30.12(1k)(cm), bars the permit
amendments in this case. Neither provision has the effect the
Myers desire.
¶68 The grandfather exemption, Wis. Stat. § 30.12(1k)(b),
provides in relevant part:
4
The Myers also argue that the evidence presented at the
informational hearing was insufficient to support the permit
amendment. The DNR made the following factual finding:
Based on the information gathered and further
discussion with the Sea Grant coastal engineer, the
Department has determined that the existing 12-foot
flow-through opening is not functioning as intended
consistently enough to provide sufficient movement of
water and sediment on a regular basis to prevent the
interruption of the natural littoral processes. This
disruption, in turn, is exacerbating the formation of
land on the bed of Lake Superior and starving adjacent
'down-drift' properties of sediment.
Such a finding is certainly sufficient to support the
determination that the pier is detrimental to the public
interest.
9
No. 2016AP1517.awb
[A] riparian owner of a pier or wharf that was placed
on the bed of a navigable water before April 17, 2012,
is exempt from the permit requirements under this
section unless any of the following applies:
1m. The department notified the riparian owner
before August 1, 2012, that the pier or wharf is
detrimental to the public interest.
2. The pier or wharf interferes with the riparian
rights of other riparian owners.
¶69 If the grandfather exemption applies, the consequences
are set forth in Wis. Stat. § 30.12(1k)(e):
[A] riparian owner who is exempt . . . may do all of
the following:
1. Repair and maintain the exempt structure
without obtaining a permit from the department
under this section unless the owner enlarges the
structure.
2. If the exempt structure is a pier or wharf,
relocate or reconfigure the pier or wharf if the
riparian owner does not enlarge the pier or
wharf.
In other words, if the exemption applies, the Myers need not
obtain a permit to repair and maintain the pier.
¶70 The DNR contends that the grandfather exemption does
not apply here because the Myers possess a permit for their
pier. I agree. The grandfather exemption states that if the
conditions are met, a pier owner is not required to "obtain" a
permit in order to maintain the pier. Wis. Stat.
§ 30.12(1k)(e)(1). The use of the word "obtain" indicates that
a pier covered by the statute did not have a permit before,
hence the need to "obtain" one. As analyzed above, I determine
that the Myers' pier was permitted. Accordingly, the
grandfather exemption does not apply.
10
No. 2016AP1517.awb
¶71 Similarly, the enforcement exemption does not apply.
The enforcement exemption provides:
The department may not take any enforcement action
under this chapter against a riparian owner for the
placement of any of the following:
1. A structure for which the department has
issued a permit under this section, if the
structure is in compliance with that permit.
2. A structure for which the department has
issued a written authorization, if the structure
is in compliance with that written authorization.
3. A structure that is exempt under par. (b)
[the grandfather exemption].
Wis. Stat. § 30.12(1k)(cm).
¶72 Any argument that this exemption is applicable must be
based on the premise that DNR's actions here in amending the
permit constitute an "enforcement action." This premise fails.
¶73 Pursuant to chapter 30 of the Wisconsin statutes, the
DNR can remedy a defect in a pier by following one of two
tracks: permit amendment by way of its necessarily implied
authority or enforcement via Wis. Stat. § 30.03. In this case,
the DNR chose to follow the permit amendment track. The DNR did
not bring an "enforcement action" here, thus the "enforcement"
exemption is not applicable.
¶74 There are key differences between the permit amendment
and enforcement tracks. An enforcement action is brought
pursuant to Wis. Stat. § 30.03. Enforcement hearings proceed in
accordance with ch. 227. See § 30.03(4)(a). The end result of
an enforcement action can be an order issued by a hearing
examiner "directing the responsible parties to perform or
11
No. 2016AP1517.awb
refrain from performing acts in order to comply with s. 281.36
or to fully protect the interests of the public in the navigable
waters." § 30.03(4)(a).
¶75 That is not what happened in this case. Here there
was only a public informational hearing. A hearing examiner did
not enter any injunction against the Myers. Rather, the DNR
issued a permit amendment. Because there was no enforcement
action, the enforcement exemption is inapplicable.
¶76 In sum, the majority allows a pier with clear defects
to remain in a state of disrepair and impairment of the public
interest. The impact of the majority opinion, however, is not
limited to the Myers' pier. On bodies of water large and small,
the majority opinion raises the specter that riparian owners
cannot rely on the DNR to protect the public interest if a
neighboring pier stops working as intended due to shifting lake
conditions. Because this result is contrary to the legislative
intent, I respectfully dissent.
12
No. 2016AP1517.awb
1