In a victory for property owners, the Supreme Court of Wisconsin held (6-1) that the Department of Natural Resources (DNR) does not have the authority to amend an expired construction permit (Myers v. Department of Natural Resources (2019 WI 5)). The opinion was authored by Justice Rebecca Dallet, her first opinion involving agency authority.

 

Facts

The DNR issued a permit to Philip and Terrie Myers to build a pier on Lake Superior. Over ten years later, DNR issued an amendment to the permit, requiring the Myers to significantly change their pier. The Myers filed a petition for judicial review of the DNR’s permit amendment. The issue before the Supreme Court was whether DNR has the statutory authority to amend the previously issued permit.

 

Court Decision

DNR argued that a condition within the permit stating “the authority herein granted can be amended or rescinded…” provided the agency authority to amend the permit. However, the court ruled that without explicit statutory authorization the condition itself did not allow DNR to amend the permit.

DNR further argued its statutory authority came from Wis. Stat. § 30.12(3m)(d)2. and § 30.12(3m)(c), which states that DNR “may establish reasonable conditions” in permits to satisfy certain statutory criteria for building piers. According to the DNR, the condition that DNR may amend the permit was such a “reasonable condition.” However, the court read the past tense of the statute to mean that the criteria must be satisfied only when the permit is granted. Once the permit is issued, the statute does not allow DNR ongoing review and authority to enforce whether the criteria are continuously being met.

Finally, DNR argued that Wis. Stat. § 30.2095(2), which states DNR may modify permits for good cause before their expiration, gave it authority to amend the Myers’ permit because the permit never expired.  However, the court, rejecting DNR’s reading of § 30.2095(1), determined the permit did expire because the Myers completed construction within the authorized three-year period.

In a dissent, Justice Walsh Bradley argued that DNR does have the authority to amend permits. Walsh Bradley states the statutes necessarily imply that DNR has the authority to continuously enforce the § 30.12(3m)(c) criteria. Furthermore, pier permits apply not only for construction but also for ongoing maintenance, so the Myers’ permit was not expired.