DNR finally wins one over Baer

From the Lakeland Times

...A state appeals court ruled last week that a DNR rule authorizing the agency to take enforcement actions against illegal piers only when certain criteria exist should not and does not block the agency from taking action in some situations where those criteria aren’t present.

With that determination, the court paved the way for the DNR to continue its enforcement action against Tom and Michele Baer of Manitowish Waters for two allegedly oversized piers.

...The department said it brought its action under the broader statute to protect the public’s rights – it defined Baer’s piers as a public nuisance – and not under the rule, the enforcement criteria of which the DNR said applied only to certain specific standards outlined in that rule.

...In the circuit court decision, Roethe said case law had established a rule “that statutes granting powers to an agency are strictly construed so that any reasonable doubt about whether the agency has power implied by a statute should be resolved against the exercise of such authority.”

...But Deininger pointed to the statute’s broad reading: “If 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, the department may proceed as provided in this paragraph.”

...And so the DNR was well within its rights under state statutes to bring the enforcement action, the court concluded. However, it chose to send the matter back to the administrative law judge rather than reinstate his earlier order because, the judges stated, the ALJ wrongly relied on the administrative rule to reach his conclusions.

In other words, the ALJ did use the guidelines and standards within the rule – for example, determining that a pier was illegal because it allegedly extended to a water depth beyond three feet, a standard found in the rule but not in the statute.

... In the latter case, the DNR cited Baer after he restored a collapsed seawall on his Lake Alder property in Vilas County. The agency said the seawall constituted a public nuisance; however, a DNR warden had visited the property after construction had begun and approved the project.

An administrative law judge ultimately found no basis for the agency’s allegations or proposed remedies, concluding that a wall was needed for erosion control and that it did not significantly harm the environment or damage natural beauty.

The agency also sued Baer for repairing a boathouse, even though he had applied for and received both town and county permits and even though the DNR had acknowledged it had no jurisdiction in the matter because the boathouse sat above the ordinary high water mark (OHWM).

Later, however, Lehmann reversed the earlier OHWM determination, a decision rendering Baer’s remodeling work illegal in the agency’s eyes.