From Legal Counsel Bill O'Connor

In contrast to the ALJ’s detailed factual findings, the decision devotes relatively little attention to the legal issues that are at the foundation of this proceeding.

All of the parties and the Administrative Law Judge agreed that Section 31.02(1) of the Wisconsin Statutes governs DNR’s Indianford Dam water level order authority.

That section empowers DNR to establish water level orders “in the interest of public rights and navigable waters or to promote safety and protect life, health and property.”

Although all parties accepted that statutory standard, the ALJ interpreted the protection of property interests under Section 31.02(1) very narrowly.

Specifically, the hearing examiner excluded from his consideration of protected property interests, extensive testimony and evidence relating to the economic impacts of DNR’s proposed water level order on public revenues, property values and business activity.