Lake Beulah Management District v. State ( 2011 )

ANNETTE KINGSLAND ZIEGLER, J.

¶ 68. {concurring). I join the majority opinion because its holding is the legally correct result. Given that our review "shall be confined to the record," Wis. Stat. § 227.57(1), I simply cannot dissent. Still, I write separately to express my uneasiness with the result in this case. Notwithstanding our decision today, there remains credible, concrete evidence that Well No. 7, now constructed and in operation since August 1, 2008, has the potential to harm the wetland and navigable surface waters of Lake Beulah. If the Wisconsin Department of Natural Resources (DNR) was not aware of this evidence then, it most certainly is aware now. However, such evidence is not part of the record for purposes of judicial review, and consequently, we may not consider it. Although this case does not sit well with me, this court cannot sua sponte supplement the record and permit the end to justify the means.

¶ 69. The waters of this state are deeply revered, especially by those who live alongside them. As the late Justice William A. Bablitch so eloquently observed, "Fishing is many things, the least of which to many who indulge is the catching of fish." Cnty. of Adams v. Romeo, 191 Wis. 2d 379, 391, 528 N.W.2d 418 (1995) (Bablitch, J, concurring in part, dissenting in part).¹ Well over a century ago, this court recognized one of the unique and most significant rights enjoyed by riparian landowners: "The right of the riparian owner to the natural flow of water substantially unimpaired in volume and purity is one of great value, and which the law nowhere has more persistently recognized and jealously protected than in Wisconsin." Winchell v. City of Waukesha, 110 Wis. 101, 108, 85 N.W. 668 (1901). This is the very right that is potentially threatened by Well No. 7. According to Wisconsin licensed geologist Robert J. Nauta (Nauta), water pumped from Well No. 7 disrupts groundwater supply to Lake Beulah and diverts surface water from Lake Beulah, thereby adversely affecting the lake and the wildlife dependent upon the lake. See also Ken Bradbury & Jim Krohelski, Groundwater Use and its Consequences in Wisconsin, Groundwater Advisory Committee (Apr. 1, 2005), http://dnr. wi.gov/org/water/dwg/gac/minutes/GAC040105min.pdf; http://www.dnr.state.wi.us/org/water/dwg/gac/presentations/bradbury 040105.pdf.

¶ 70. However, the fact of the matter is that Nauta's affidavit is not part of the record for purposes of our review. See majority op., ¶¶ 57-58. Moreover, there is nothing in the record indicating that the DNR decision makers possessed the affidavit. See id., ¶ 6; Lake Beulah Mgmt. Dist. v. DNR, 2010 WI App 85, ¶¶ 15, 35, 327 Wis. 2d 222, 787 N.W.2d 926. Because that evidence is not part of the record, I simply cannot conclude that the DNR erroneously exercised its discretion when it issued the 2005 permit to the Village of East Troy for Well No. 7 without investigating or considering potential harm to Lake Beulah. See Wis. Stat. § 227.57(6) (providing that the court has the authority to "set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record" (emphasis added)).

¶ 71. Accordingly, I respectfully concur.

1 Justice Bablitch continued:

It is, in the winter doldrums, the casual browsing through the fishing catalogues, the fisherperson's equivalent of the gardener's seed catalogues, contemplating the coming renewal;

It is the snap of a twig across the lake on a dew filled morning signalling the approach of a deer taking the first sip of the dawn;

It is the desolate cry of a loon signalling its mate in a most haunting communion indecipherable to mere humans;

It is the screech of the owl ten feet above the river bend warning the invader of its displeasure as we approach at dusk to witness the fleetingly hypnotic hatch of the mayfly, ironically renewing itself at the moment of its demise;

It is the swish swish swish of the giant wings of the heron as it rises reluctantly from its shallow water preserve, glaringly reminding us that this is its home, not ours.

It is all of this, and more, that brings us back again and again. This is fishing; the catching of a fish is merely ancillary.

Cnty. of Adams v. Romeo, 191 Wis. 2d 379, 391-92, 528 N.W.2d 418 (1995) (Bablitch, J., concurring in part, dissenting in part).