Myers v. DNR: An End to Pier Pressure?
For how long, if at all, can the Wisconsin Department of Natural Resources (DNR) amend conditions that it had included in granting a pier permit? That was the question the Wisconsin Supreme Court recently confronted in its decision in Myers v. DNR[1]. In this case, the DNR had included certain conditions governing the construction of a residential pier, which the property owner had followed. After the permit was issued, however, the DNR sought to revise the conditions it had imposed in its permit approval to respond to unpredicted environmental concerns. The Wisconsin Supreme Court determined that the DNR cannot modify the terms of the permit after the property owners have relied upon those conditions to construct their pier and have constructed it in accordance with those conditions, particularly once the permit has expired.
This case originated nearly twenty years ago in 1999, when the Myers, the property owners, first filed an application with the DNR to construct a pier at their property. They planned to construct their pier from rock-filled cribs, which would extend 70 feet into Lake Superior from their lakefront property on Madeline Island. However, neighboring property owners were concerned that a pier of this size and design could adversely affect the flow of water and consequently lead to increased coastal erosion and loss of beachfront property at adjacent properties. After a contested case hearing was held to consider these public concerns, the permit was granted by an administrative law judge (ALJ), but with certain conditions imposed on the size and design of the pier.
These conditions, which maintained the original length and materials design but required certain features to permit water to flow through the pier, were designed to minimize “beach erosion and other shoreline changes related to ‘littoral drift,’ [which is] the process of moving sediment along the shoreline, ”[2] The conditions were expected to address the several objections the DNR had received regarding the pier application. The Myers then constructed their pier in 2001 in accordance with the conditions imposed by the ALJ. However, in 2012 and 2013, the DNR received complaints from neighboring property owners regarding coastal erosion and loss of riparian property allegedly due to the Myer’s pier, and so the DNR began the process of amending their pier permit.
After issuing a notice of pending amendment to the Myers and holding a public information hearing in 2014, the DNR issued an amendment in 2015 requiring the Myers to make substantial modifications to their pier, nearly 14 years after the initial permit had been issued and the pier was constructed. The DNR gave the Myers two options for modifications, both of which would have resulted in significant costs to implement. The Myers declined to proceed with either modification and instead filed a petition for review in the Ashland County Circuit Court. After the circuit court rejected their claims, and the court of appeals affirmed the lower court decision with regards to the question of the DNR’s authority to amend the permit, the Myers brought their appeal to the Wisconsin Supreme Court. The Myers sought review of the question of whether the DNR has the authority to amend a pier permit, particularly after the pier had been constructed in accordance with its permit, and whether the conditions of that permit remain indefinitely or if the DNR’s authority to impose or modify those conditions ends once the pier has been constructed.
First, it is important to note that, in reaching its decision in Myers, the Court reinforced its recently reformed deference standard that was announced in the 2018 Wisconsin Supreme Court decision, Tetra Tech EC, Inc. v. DOR, 2018 WI 75. In that case, the Court held that it would no longer defer to an administrative agency’s conclusions of law. Instead, the Court will give “due weight” to the experience and technical expertise of the agency’s conclusions, but it will “independently decide the extent of the agency-authority that the statute provides.”[3] Therefore, the Court made clear that it was not going to simply accept the DNR’s conclusions regarding the meaning of the relevant statutes.
Second, the Court reviewed the relevant statute, which in this case is Wis. Stat. § 30.12 governing “Structures and deposits in navigable waters.” Specifically, the Court reviewed Wis. Stat. § 30.12(3m)(c), which specifies three requirements that must be met in order for the DNR to issue an individual pier permit. The DNR’s position was that a pier must continuously satisfy these criteria. The Court did not agree, as it did not find language in the statute requiring permittees to continuously meet these requirements.[4]
Third, the Court reviewed the alternative statutory language that the DNR had argued provided it an additional basis to modify the terms of the permit. Wis. Stat. § 30.2095(2) states that “For good cause, the department may modify or rescind any permit or contract issued under ss. 30.01 to 30.29 before its expiration.” This raised the interesting questions: is a pier permit more akin to a building permit, meaning that it would expire at some point, which in this case was three years? Alternatively, is a pier permit one which governs possession, in which case it would not expire and would allow the DNR to govern maintenance and use of the pier, even after it is constructed?
The Court determined that the pier permit is akin to a building permit, and it would, therefore, expire three years after its issuance. The Court based its determination on Wis. Stat. § 30.2095(1)(a), which states that “every permit or contract 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.” Therefore, the Court found that, because the Myers had constructed their pier under the conditions specified in the permit, once the three-year statutory review period had passed, the DNR then lacked the authority to continue to amend or modify the conditions specified in the pier permit.
There was a dissenting opinion, which disagreed with the majority opinion’s analysis on three points. First, the dissent found that a pier permit is more akin to a possession permit, which would permit the DNR to continue to regulate it. Second, the dissent disagreed with the majority’s analysis of other, relevant, statutory language. Third, and most significantly, the dissent stated, “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,” and it “potentially leave[s] the DNR toothless in the face of a pier that obstructs navigation. ”[5] The dissent fears that, as a result of this decision, the DNR’s only recourse to seek the modification of a deficient pier would be to bring an enforcement action. Furthermore, in some situations, pier permit exemptions would leave the DNR powerless to even bring an enforcement action or otherwise act to cure a defective pier and thereby protect the public trust. This seems to be a signal to the Legislature that legislative action will now be necessary to grant the DNR authority to impose modifications to piers that no longer meet the statutory requirements.
While the right of a waterfront property owner to place a pier to aid in navigation has long been recognized in the common law in Wisconsin, and later by statute, piers must be placed to meet specific statutory requirements in order to be exempt from obtaining a DNR permit. Otherwise, piers may still be placed under other circumstances, as the statute allows the DNR to issue either General or Individual Permits. However, the property owner must first obtain one of these types of permits, the provisions for which are provided in the statute.[6] It is important to note that there may also be municipal ordinances or shoreland zoning ordinances that can affect pier design and placement.
The DNR helpfully provides the Pier Planner,[7] which is a guidance document that answers frequently asked questions regarding piers and provides some helpful placement diagrams to aid in the property owner’s decision-making. The DNR can also provide permit exemption determinations if there is a question. Nonetheless, the pier statutes and other ordinances can be complicated and getting advice before you place your pier can save considerable challenges down the road. If you would like to discuss your options regarding the placement or modification of your pier or other waterfront structure, please contact the attorneys at Axley Brynelson to further review your options.
[1] Myers v. Wisconsin Department of Natural Resources, 2019 WI 5.
[2] Myers v. DNR, ¶ 7.
[3] Myers v. DNR, ¶ 17, referencing Rock-Koshkonong Lake Dist. V. DNR, 2013 WI 74, 350 Wis. 2d 45. 833 N.W.2d 800.
[4] Myers v. DNR, ¶ 24.
[5] Myers v. DNR, ¶¶ 61, 62
[6] Wis. Stat. § 30.12(3), (3m)
[7] Pier Planner, WDNR Pub. FH 017 – August 2012.
