Myers v. Wisconsin Department of Natural Resources

On Friday, January 18th, the Wisconsin Supreme Court issued a ruling in Myers v. Wisconsin Department of Natural Resources.   The court found that the DNR exceeded its authority when it amended the Myers’ permit, requiring them to make substantial changes in a 70-foot long rock crib pier, that had been constructed on the shores of Lake Superior.

 

In 2001, Attorney Biegert’s client obtained a permit from the DNR for the construction of a cribbed pier in the same location as a previously constructed dock that had been present since 1937.  In 2013, a neighboring land owner complained that the pier was contributing to beach erosion, commencing what would be a roughly five-year litigation battle between Attorney Biegert’s client and the Wisconsin DNR.

 

The DNR demanded the pier be removed or modified and unilaterally amended their earlier permit to require the changes or face significant penalties.   The Myers appealed, contending that there was no evidence the pier was causing beach erosion and that the DNR had no authority to amend the permit without pursuing an enforcement action in the courts.  The Ashland County Circuit Court and the Wisconsin Court of Appeals held that the DNR could require the modification by unilateral amendment of the permit 14 years after it had been granted.

 

On January 18th, the Wisconsin Supreme Court majority reversed the lower courts’ rulings, in a 6-1 decision.  It concluded that the DNR’s authority to “amend” the permit ended with the pier’s construction in 2001.  It found that any action by the DNR to fully or partially remove the pier must proceed as an enforcement action, giving the Myers legal protections, such as a neutral decision maker and the requirement that the DNR prove that the pier was detrimental to the public interest. 

 

The court struck down the DNR’s “amendment” of the Myers pier permit.  This court’s decision reiterated the limitation on the power of administrative agencies like the DNR which had taken actions which were unauthorized by law.