Clean Wisconsin, Inc. v. DNR ( 2021 )

2021 WI 72SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP59
COMPLETE TITLE: Clean Wisconsin, Inc. and Pleasant Lake
Management
District,
Petitioners-Respondents,
v.
Wisconsin Department of Natural Resources,
Respondent-Appellant,
Wisconsin Manufacturers & Commerce, Dairy
Business Association, Midwest Food Processors
Association, Wisconsin Potato & Vegetable
Growers Association, Wisconsin Cheese Makers
Association, Wisconsin Farm Bureau
Federation, Wisconsin Paper Council and
Wisconsin Corn Growers Association,
Intervenors-Co-Appellants,
Wisconsin Legislature,
Intervenor.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: July 8, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 12, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Valerie Bailey-Rihn
JUSTICES:
DALLET, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, and KAROFSKY, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion,
in which ROGGENSACK, J., joined.
NOT PARTICIPATING:
HAGEDORN, J., did not participate.
ATTORNEYS:
For the intervenor, there were briefs filed by Eric M.
McLeod, Kirsten A. Atanasoff, Lisa M. Lawless, and Husch
Blackwell LLP, Madison and Milwaukee. There was an oral argument
by Eric M. McLeod.
For the intervenors-co-appellants, there were briefs file
by Robert I. Fassbender and Great Lakes Legal Foundation,
Madison. There was an oral argument by Robert I. Fassbender.
For the petitioners-respondents, there was a brief file by
Carl A. Sinderbrand and Axley Brynelson, LLP, Madison. There was
an oral argument by Carl Sinderbrand.
For the respondent-appellant, there was a brief filed by
Gabe Johnson-Karp and Jennifer L. Vandermeuse assistant
attorneys general; with whom on the brief was Joshua L. Kaul,
attorney general, Madison. There was an oral argument by Gabe
Johnson-Karp.
An amicus curiae brief was filed on behalf of Central Sands
Water Action Coalition by Andrea Gelatt, Rob Lundberg, Adam
Voskuil, and Midwest Environmental Advocates, Madison.
An amicus curiae brief was filed on behalf of Wisconsin
Trout Unlimited, Inc. by Henry E. Koltz and Schmidt, Darling &
Erwin, Milwaukee.
2
2021 WI 72NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP59
(L.C. Nos. 2016CV2817, 2016CV2818, 2016CV2819, 2016CV2820, 2016CV2821,
2016CV2822, 2016CV2823, 2016CV2824)
STATE OF WISCONSIN : IN SUPREME COURT
Clean Wisconsin, Inc. and Pleasant Lake
Management District,
Petitioners-Respondents,
v.
Wisconsin Department of Natural Resources,
Respondent-Appellant, FILED
Wisconsin Manufacturers & Commerce, Dairy JUL 8, 2021
Business Association, Midwest Food Processors
Association, Wisconsin Potato & Vegetable Sheila T. Reiff
Growers Association, Wisconsin Cheese Makers Clerk of Supreme Court
Association, Wisconsin Farm Bureau Federation,
Wisconsin Paper Council and Wisconsin Corn
Growers Association,
Intervenors-Co-Appellants,
Wisconsin Legislature,
Intervenor.
DALLET, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, and KAROFSKY, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion,
in which ROGGENSACK, J., joined.
HAGEDORN, J., did not participate.
No. 2018AP59
APPEAL from a judgment and an order of the Circuit Court
for Dane County, Valerie Bailey-Rihn, Judge. Modified and
affirmed, and, as modified, cause remanded.
¶1 REBECCA FRANK DALLET, J. One of the Department of
Natural Resources' (DNR) many responsibilities is to evaluate
applications to operate high capacity groundwater wells. For
certain wells, the DNR must follow a specific environmental
review process before approving the application. For all other
wells, that process is not required, although the DNR sometimes
still considers the potential environmental effects of a
proposed well when evaluating the well's application. The eight
well applications at issue here fall into the latter
category: a formal environmental review was not required, but
the DNR had information that the wells would negatively impact
the environment. Despite that knowledge, the DNR approved the
applications after concluding it had no authority to consider
the proposed wells' environmental effects.
¶2 Clean Wisconsin, Inc. and the Pleasant Lake Management
District (collectively, "Clean Wisconsin") appealed that
decision to the circuit court.1 They argued that the DNR's
decision was contrary to Lake Beulah Management District v.
DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, where we held
that the DNR had the authority and discretion to consider the
The Honorable Valerie
1 Bailey-Rihn of the Dane County
Circuit Court presided.
2
No. 2018AP59
environmental effects of all proposed high capacity wells. The
DNR argued that Lake Beulah is no longer good law because Wis.
Stat. § 227.10(2m) (2019-20),2 enacted at roughly the same time
we decided Lake Beulah, limits an agency's actions to only those
"explicitly required or explicitly permitted by statute or by a
rule," and, for these wells, a formal environmental review was
not required under Wis. Stat. § 281.34.3 Thus, the question
presented is whether § 227.10(2m) commands a different
conclusion here than in Lake Beulah. The circuit court decided
that it does not and we agree. We hold that the DNR erroneously
interpreted the law when it concluded it had no authority to
consider the environmental effects of the eight wells at issue
here. Accordingly, we affirm the circuit court's order with the
modification that the circuit court remand all eight well
applications to the DNR.
I
¶3 Consolidated in this case are eight permit
applications for high capacity wells, all of which were filed
2 All references to the Wisconsin Statutes are to
the 2019-20 version.
3 The DNR "shall review" a well application "using the
environmental review process in its rules" when a proposed well
is "located in a groundwater protection area," loses more than
95 percent of the water it withdraws, or "may have a significant
environmental impact on a spring." Wis. Stat. § 281.34(4)(a).
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No. 2018AP59
between March 2014 and April 2015.4 At the time, and consistent
with our holding in Lake Beulah, the DNR's common practice was
to review environmental-impact information for most high
capacity well applications, regardless of whether Wis. Stat.
§ 281.34(4)(a) required such a review. If the review revealed
that the proposed well would cause adverse environmental
effects, the DNR would either deny the application or place it
"on hold," neither denying nor approving it. For all eight
wells at issue here, the DNR flagged the applications for
further review of their potential environmental impacts. For
seven of the wells,5 it completed that review and determined that
approving the well would adversely affect waters covered by the
public trust doctrine.6 The DNR then placed all eight well
applications on hold.
The well owners and respective case numbers are: Lutz,
4
2016CV2817; Pavelski, 2016CV2818; Peplinski, 2016CV2819;
Frozene, 2016CV2820; Turzinski, 2016CV2821; Laskowski,
2016CV2822; Lauritzen, 2016CV2823; Derousseau, 2016CV2824.
There is no dispute that all eight wells are "high-capacity
wells" as defined in Wis. Stat. § 281.34(1)(b).
A
5 DNR scientist had recommended investigating the
Turzinski well's effect on the headwaters of a nearby creek, but
the DNR approved the application before collecting any evidence
on those potential effects.
Rooted in the Wisconsin Constitution, the public trust
6
doctrine requires the state to protect its "navigable waters"
for the public's benefit. See Wis. Const. art. IX, § 1; Movrich
v. Lobermeier, 2018 WI 9, ¶¶25-29, 379 Wis. 2d 269, 905
N.W.2d 807.
4
No. 2018AP59
¶4 While those applications were on hold, the DNR's well-
approval process changed. In 2016, then-Attorney General Brad
Schimel released an opinion regarding Wis. Stat. § 227.10(2m)
and its effect on the DNR's well-permit authority and our
holding in Lake Beulah. The Attorney General's opinion
concluded that this court did not address § 227.10(2m) in Lake
Beulah and that, after the enactment of § 227.10(2m), the DNR
had no authority to impose specific permit conditions that were
not explicitly listed in a relevant statute. See Opinion of
Wis. Att'y Gen. to Robin Vos, Assembly Committee on Organization
Chairperson, OAG-01-16, ¶2 (May 10, 2016). He read Lake Beulah
as holding that the legislature had "impliedly delegated" to the
DNR broad, public-trust authority, which could not withstand
§ 227.10(2m):
Although the Lake Beulah Court found that DNR had
broad implied authority to impose permit
conditions, 335 Wis. 2d 47, ¶3, that holding now
directly conflicts with Act 21. I conclude that
through Wis. Stat. §§ 227.10(2m) [and 227].11(2)(a),
the Legislature has limited DNR's authority to
regulate high capacity wells only as explicitly
enumerated through statute or rule. DNR cannot
premise such authority on broad statements of policy
or general duty, such as those found in Wis. Stat.
§§ 281.11-.12.
OAG-01-16, ¶31 (footnote omitted). The DNR adopted this opinion
and began approving most of the applications it had placed on
hold. And, despite its having evidence that some of those
proposed wells would adversely affect public-trust waters, the
DNR generally imposed no permit conditions to protect those
waters. The DNR also stopped reviewing the potential
5
No. 2018AP59
environmental effects of proposed wells except when such a
review was required under Wis. Stat. § 281.34(4). Under this
new approach, and despite its prior determination that the wells
at issue here would adversely affect public-trust waters, the
DNR approved all eight well applications without any conditions.
¶5 Clean Wisconsin appealed each approval to the circuit
court under Wis. Stat. ch. 227. Clean Wisconsin argued that the
DNR approved those wells based upon an erroneous legal
determination that it had no authority outside of Wis. Stat.
§ 281.34(4) to consider the environmental effects of a proposed
high capacity well. Citing Lake Beulah for support, Clean
Wisconsin argued that the DNR has both a public-trust duty and
the express statutory authority to consider the environmental
impact of all proposed high-capacity wells. The DNR countered
that Lake Beulah did not control for two reasons: (1) it was
"decided incorrectly" because it "amalgamat[ed]" an "implied"
authority for the DNR to review a proposed well's environmental
effects rather than looking to the statutes' explicit text; and
(2) per the Attorney General's 2016 opinion, Wis. Stat.
§ 227.10(2m) negated Lake Beulah's holding. Several business
associations intervened and urged the circuit court to find that
the DNR had properly approved the well applications.7 These
The intervenors at the circuit court were Wisconsin
7
Manufacturers and Commerce, Dairy Business Association, Midwest
Food Products Association, Wisconsin Potato and Vegetable
Growers Association, Wisconsin Cheese Makers Association,
Wisconsin Farm Bureau Federation, Wisconsin Paper Council, and
Wisconsin Corn Growers Association.
6
No. 2018AP59
associations argued that ruling otherwise would create a permit
system without standards and leave applicants without clear
guidance about which applications would be further reviewed for
their potential environmental impact.
¶6 The circuit court agreed with Clean Wisconsin that
Lake Beulah applied and that the DNR erred in determining it
could not consider the environmental effects of all proposed
high capacity wells. The circuit court pointed to a footnote in
Lake Beulah in which we briefly mentioned that Wis. Stat.
§ 227.10(2m) did not affect our analysis. It then explained
that the DNR, the business associations, and the Attorney
General's opinion raised arguments that we had rejected in Lake
Beulah. Having concluded that the DNR was bound by Lake Beulah,
the circuit court found that "[a]bsent the Attorney General['s]
opinion, the DNR would have denied all . . . of these well
applications [except for the Turzinski application] as impacting
navigable waters." It therefore vacated the seven approved
applications and remanded to the DNR the Turzinski application
so that the DNR could consider the well's potential effect on
the headwaters of a nearby creek.
¶7 The DNR and the business associations appealed, and,
in early 2019, the court of appeals certified the appeal to this
7
No. 2018AP59
court.8 After we accepted certification, two noteworthy
procedural developments occurred. First, we granted the
legislature's motion to intervene, creating two sets of
intervenors: the business associations and the legislature.
Throughout this opinion, we refer to them collectively as the
"Intervenors." Second, the DNR now agrees with the circuit
court and Clean Wisconsin that the DNR has the authority to
review the environmental impact of a proposed well even if such
a review is not required by Wis. Stat. § 281.34(4).
II
¶8 This certified appeal presents two questions:
(1) Does Wis. Stat. § 227.10(2m) prohibit the DNR from
considering the potential environmental effects of a
proposed high capacity well when such consideration is
not required by Wis. Stat. § 281.34(4)?
(2) Does Wis. Stat. § 281.34(5m) bar Clean Wisconsin's
claims?
¶9 The scope of the DNR's statutory authority is a
question of law, which we review de novo. See Papa v. DHS, 2020
WI 66, ¶19, 393 Wis. 2d 1, 946 N.W.2d 17. When reviewing an
agency's decision under Wis. Stat. ch. 227, we will generally
8 The court of appeals also certified another consolidated
"companion" case, Clean Wisconsin, Inc. v. DNR, No. 2016AP1688.
Although both cases address the effect of Wis. Stat.
§ 227.10(2m) on the scope of the DNR's permit-approving
authority, each deals with a different authorizing statute, thus
presenting different legal questions. See Clean Wis., Inc. v.
DNR, No. 2016AP1688, slip op. (Wis. S. Ct. July 8, 2021).
8
No. 2018AP59
uphold that decision unless we conclude that "the agency has
erroneously interpreted a provision of law." Wis. Stat.
§ 227.57(2), (5). If an agency erroneously interpreted a
provision of law and the correct interpretation of law does not
"compel[] a particular action," we remand the cause to the
agency "for further action" according to the correct statutory
interpretation. § 227.57(5); see also Applegate-Bader Farm, LLC
v. DOR, 2021 WI 26, ¶¶39, 41, 396 Wis. 2d 69, 955 N.W.2d 793.
¶10 Statutory interpretation is a question of law that we
review de novo. Moreschi v. Village of Williams Bay, 2020
WI 95, ¶13, 395 Wis. 2d 55, 953 N.W.2d 318. When interpreting
statutes, we start with the text, and if its meaning is plain on
its face, we stop there. Myers v. DNR, 2019 WI 5, ¶18, 385
Wis. 2d 176, 922 N.W.2d 47. We also consider the statutory
context, interpreting language consistent with how it is used in
closely related statutes. Moreschi, 395 Wis. 2d 55, ¶¶13, 23.
We afford no deference to the agency's interpretation of the
statute in question. Wis. Stat. § 227.10(2g).
III
¶11 Our analysis starts with a brief overview of the
public trust doctrine and the statutes governing high capacity
wells. We next review our Lake Beulah decision and whether Wis.
Stat. § 227.10(2m) changes any of our conclusions there. We
conclude with a discussion of whether Wis. Stat. § 281.34(5m)
bars any of the claims here.
9
No. 2018AP59
A
¶12 Any analysis of agency actions affecting the state's
navigable waters "must start with the public trust doctrine."
Hilton v. DNR, 2006 WI 84, ¶18, 293 Wis. 2d 1, 717 N.W.2d 166.
This doctrine, enshrined in the Wisconsin Constitution, entrusts
the State to protect Wisconsin's "navigable waters":
The state shall have concurrent jurisdiction on all
rivers and lakes bordering on this state so far as
such rivers or lakes shall form a common boundary to
the state and any other state or territory now or
hereafter to be formed, and bounded by the same; and
the river Mississippi and the navigable waters leading
into the Mississippi and St. Lawrence, and the
carrying places between the same, shall be common
highways and forever free, as well to the inhabitants
of the state as to the citizens of the United States,
without any tax, impost or duty therefor.
Wis. Const. art. IX, § 1; see also Movrich v. Lobermeier, 2018
WI 9, ¶26, 379 Wis. 2d 269, 905 N.W.2d 807 (noting that the
doctrine's roots stretch back to the 1787 Northwest Ordinance).
We have long interpreted this provision broadly and consistent
with its sweeping scope, explaining that it protects more than
strictly navigable waters or related commercial navigation
rights. See, e.g., Diana Shooting Club v. Husting, 156
Wis. 261, 271, 145 N.W. 816 (1914); Muench v. PSC, 261 Wis. 492,
53 N.W.2d 514 (1952); Rock-Koshkonong Lake Dist. v. DNR, 2013
WI 74, ¶72, 250 Wis. 2d 45, 833 N.W.2d 800. For instance, we
have held that the doctrine extends to "all areas within the
ordinary high water mark of the body of water in question."
Movrich, 379 Wis. 2d 269, ¶27. It protects not only the Great
Lakes' beds but also "lesser inland waters," including "areas
10
No. 2018AP59
covered with aquatic vegetation" within a particular high water
mark. R.W. Docks & Slips v. State, 2001 WI 73, ¶19, 244
Wis. 2d 497, 628 N.W.2d 781. Similarly, we have held that the
doctrine safeguards the public's use of the state's waters for
even "purely recreational purposes." Id.; Nekoosa Edwards Paper
Co. v. R.R. Comm'n, 201 Wis. 40, 47, 228 N.W. 144 (1930)
(explaining that the public has a right to use certain state
waters for "sailing, rowing, canoeing, bathing, fishing,
hunting, skating, and other public purposes").9
¶13 The legislature, as one of the public's trustees, has
delegated to the DNR some of its public trust responsibilities.
Lake Beulah, 335 Wis. 2d 47, ¶34; see also Wis.'s Env't Decade,
Inc. v. DNR, 85 Wis. 2d 518, 527, 271 N.W.2d 69 (1978). Broadly
speaking, the legislature charged the DNR with the "general
supervision and control over the waters of the state." Wis.
Stat. § 281.12(1). To carry out that mission, the legislature
granted the DNR the "necessary powers" to enhance the "quality
management and protection of all waters of the state" against
"all present and potential sources of water pollution." Wis.
Stat. § 281.11. More specifically, the legislature has mandated
9The public-trust doctrine is not unlimited in scope. It
does not apply to unnavigable wetlands that are part of no body
of water's ordinary high water mark. Rock-Koshkonong Lake Dist.
v. DNR, 2013 WI 74, ¶¶85-90, 110, 250 Wis. 2d 45, 833 N.W.2d 800(noting, however, that the DNR may still regulate such areas if
it has the statutory authority to do so). And we have explained
that the public-trust jurisdiction does not extend to "non-
navigable land." See id.11
No. 2018AP59
that the DNR "shall carry out the planning, management[,] and
regulatory programs necessary for implementing the policy and
purpose of this chapter," including "plans and programs for the
prevention and abatement of water pollution and for the
maintenance and improvement of water quality." § 281.12(1).
The legislature explained that this "comprehensive program under
a single state agency" was "needed to protect human life and
health" as well all uses of water throughout the state.
§ 281.11. It also directs courts to "liberally construe[]" the
water-protection statutes "in favor of the [statutes'] policy
objectives" so as to ensure that the DNR serves the "vital
purpose[]" of protecting the state's public-trust waters. Id.
¶14 To that end, the DNR regulates the construction and
operation of high capacity groundwater wells. All high capacity
wells must be approved by the DNR through a discretionary permit
process. Wis. Stat. §§ 281.34(2), 281.35. The DNR is never
obligated to give its approval. Lake Beulah, 335 Wis. 2d 47,
¶41. When it does approve an application, it is required to
impose certain permit conditions, such as the condition that
"all high capacity wells" comply with the groundwater-withdrawal
requirements in § 281.35(4)-(6). See § 281.34(5)(e). And in
certain circumstances, the DNR is required to deny a permit,
such as when it is unable to ensure, via permit conditions, that
a well will not "cause significant environmental impact" or that
such impact is not "balanced by the public benefit of the well
related to public health and safety." See § 281.34(5)(a)-(d).
Additionally, the DNR must conduct an environmental-impact
12
No. 2018AP59
analysis before approving a permit for three categories of
wells, a process detailed in its administrative rules. See
§ 281.34(4)(a); Wis. Admin. Code § NR 820.29-.32 (June 2020).
¶15 The parties agree that an environmental review is not
required for any of the eight wells in this case. Because
environmental review is legislatively required for some well
applications but not for the ones at issue, the Intervenors
allege that the DNR is implicitly prohibited from considering
environmental-impact evidence in its permit-approval decision.
B
1
¶16 We addressed the same issue in Lake Beulah. As the
Intervenors argue here, the Village of East Troy argued in Lake
Beulah that the DNR had no authority to consider the
environmental effects of a proposed high capacity well that fell
outside the scope of Wis. Stat. § 281.34(4). See Lake Beulah,
335 Wis. 2d 47, ¶29. East Troy asserted that because the
legislature required the DNR to conduct an environmental review
in limited circumstances, it had implicitly precluded the DNR
from conducting such reviews in all other circumstances. Id.And, according to East Troy, the "general policy provisions" of
Wis. Stat. §§ 281.11 and 281.12 could not "supersede[]" that
specific requirement. Id. East Troy argued that allowing the
DNR to consider the environmental effects of all applications
for high capacity wells, not just those required under
§ 281.34(4), would "create a permit system without standards"
and cause confusion for permit applicants. See id., ¶¶29, 42.
13
No. 2018AP59
¶17 We unanimously rejected those arguments, holding that
the DNR has both a constitutional duty and the statutory
authority to consider the environmental effects of all proposed
high capacity wells. Id., ¶39. We held that the DNR's
constitutional public-trust duty stems from the legislature
delegating to the DNR that obligation via Wis. Stat. §§ 281.11and 281.12. Id., ¶¶34, 39. And for the DNR to fulfill its duty
under § 281.11 to "protect, maintain, and improve" the state's
water supply, it had to consider the environmental effects of a
proposed high capacity well. Id., ¶39 & n.29. Put another way,
a permit application for a high capacity well triggers the DNR
to act on its public-trust duty, under which it cannot ignore
"concrete, scientific evidence of potential harm to waters of
the state." Id., ¶¶39 n.28, 46.
¶18 We also explained that what the DNR's duty sometimes
requires, its statutory authority likewise permits. "[T]here is
nothing in either Wis. Stat. § 281.34 or § 281.35" that prevents
the DNR from considering the environmental effects of proposed
wells for which it is not required to do so. Id., ¶41. Rather,
the legislature has "expressly granted" the DNR the "discretion
to undertake the review [the DNR] deems necessary for all
proposed high capacity wells." Id., ¶39. As for East Troy's
argument that the DNR's broad discretion over permit approvals
created a system "without standards," we explained that "broad
standards [are] not . . . non-existent ones." Id., ¶43.
Indeed, "[g]eneral standards are common in environmental
statutes" because they allow the DNR to "utilize[] its
14
No. 2018AP59
expertise" in determining how best to protect the environment
within its statutory limits. Id., ¶43 & n.34. To ignore that
expertise and prevent the DNR from considering evidence of
potential environmental effects both "conflict[ed] with the
permissive language in the statutes" and might have led to the
"absurd result" where the DNR would be forced to approve a
permit for a well that met other statutory requirements but that
the DNR "knew . . . would cause harm to the waters of the
state." Id., ¶¶28, 42. We therefore concluded that the DNR has
"the authority and the general duty" to consider the
environmental impact of proposed high capacity wells, especially
when it is presented with evidence of potential environmental
harms. Id., ¶¶64, 66.
¶19 We reaffirm our statutory analysis in Lake Beulah.
Our unanimous decision there correctly interpreted the well-
permitting statutes, each of which is the same today as it was
in 2011. Accordingly, there is no need to re-interpret those
statutes.
2
¶20 But Lake Beulah alone does not resolve this case
because, after we heard oral arguments in that case, the
legislature passed Act 21. See 2011 Wis. Act 21; Lake Beulah,
335 Wis. 2d 47, ¶39 n.30. The Act contained significant
revisions to Wis. Stat. ch. 227, which governs administrative
agencies and procedures, including adding subsec. (2m) to Wis.
Stat. § 227.10:
15
No. 2018AP59
No agency may implement or enforce any standard,
requirement, or threshold, including as a term or
condition of any license issued by the agency, unless
that standard, requirement, or threshold is explicitly
required or explicitly permitted by statute or by a
rule that has been promulgated in accordance with this
subchapter . . . .
The question is therefore what effect, if any, does § 227.10(2m)
have on our analysis in Lake Beulah? The Intervenors argue that
the DNR correctly determined, based on then-Attorney General
Schimel's 2016 opinion, that § 227.10(2m) prohibits it from
considering the environmental effects of a proposed high
capacity well, except for when required under Wis. Stat.
§ 281.34(4).
¶21 We hold that Wis. Stat. § 227.10(2m) does not alter
our analysis or conclusion in Lake Beulah. The DNR's authority
to consider the environmental effects of proposed high capacity
wells, while broad, is nevertheless explicitly permitted by
statute.
¶22 The key to understanding § 227.10(2m) is to understand
the meaning of the term "explicitly." There is no definition of
"explicit" in the statutes, but it is a common word and the
parties generally agree on its ordinary, dictionary definition.
See Moreschi, 395 Wis. 2d 55, ¶21. "Explicit" is ordinarily
defined as meaning "'clearly expressed' so as to 'leav[e]
nothing implied.'" See, e.g., American Heritage Dictionary 645
(3d ed. 1994). The parties disagree about the relationship of
"explicit" to "broad." The Intervenors read "explicit" as the
16
No. 2018AP59
opposite not only of "implicit" but also of "broad" and
"general,"10 arguing that explicit authority must be specific.
Clean Wisconsin counters that explicit authority can be broad or
general, so long as the broad authority is clear.
¶23 Explicit authority and broad authority are different
concepts but not mutually exclusive ones. An explicit phrase
can be broad or specific; broad authority can be either explicit
or implicit. See, e.g., Lake Beulah, 335 Wis. 2d 47, ¶39 ("the
legislature has explicitly provided the DNR with the broad
authority"); City of Columbus v. Ours Garage & Wrecker Serv.,
536 U.S. 424, 433 (2002) (noting that a "general" provision
"explicitly" preempted certain regulations); Explicit, American
Heritage Dictionary 645 (3d ed. 1994) (providing the example
phrase: "generalizations that are powerful, precise, and
explicit"). The Intervenors err by treating "explicit" and
"broad" as incapable of co-existing in a statute's authorizing
language. In doing so, they misinterpret the scope of Wis.
Stat. § 227.10(2m).
¶24 Section 227.10(2m) targets, in a general sense, only
the distinction between explicit and implicit agency authority.
It requires courts to strictly construe an agency's authorizing
Implicit, American Heritage Dictionary 906 (3d ed. 1994)
10
("not directly expressed" or "not readily apparent"); Broad, id.
at 241 ("covering a wide scope" or "general"); General, id.
at 755 ("not limited in scope . . . or application"). Given the
similarities in the definitions of "broad" and "general," and
the fact that "general" is a synonym for "broad," we use those
two terms interchangeably.
17
No. 2018AP59
statute as granting the agency no implicit authority.
Section 227.10(2m) does not, however, strip an agency of the
legislatively granted explicit authority it already has. Nor
does it negate a more targeted "directive from the legislature"
to "liberally construe" the specific statutes that expressly
confer an agency's authority. See Wis. Stat. § 281.11; Wis.
Dep't of Justice v. DWD, 2015 WI 114, ¶30, 365 Wis. 2d 694, 875
N.W.2d 545 ("We take such a directive . . . seriously.").
Accordingly, for purposes of § 227.10(2m), if the legislature
clearly expresses in a statute's text that an agency can
undertake certain actions, the breadth of the resulting
authority will not defeat the legislature's clear expression.
See also Clean Wis., Inc. v. DNR, No. 2016AP1688, slip op., ¶25
(Wis. S. Ct. July 8, 2021).
¶25 That is the case here: the legislature has granted
the DNR the broad but explicit authority to consider the
environmental effects of a proposed high capacity well. As we
explained in Lake Beulah, the legislature clearly granted that
authority by delegating to the DNR certain public-trust
responsibilities in Wis. Stat. § 281.12. See Lake Beulah, 335
Wis. 2d 47, ¶¶34, 39. The text of § 281.12 explicitly requires
the DNR to "carry out the planning, management[,] and regulatory
programs necessary" to achieve the purpose of ch. 281. Just as
explicitly, but even more specifically, the DNR "shall formulate
plans and programs" to protect the state's waters. § 281.12(1).
In considering the potential environmental impacts of proposed
high capacity wells, the DNR is carrying out those express
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directives. See Lake Beulah, 335 Wis. 2d 47, ¶¶39-44. That its
explicit authority to do so is broad does not negate that
authority.
¶26 Wisconsin Stat. §§ 281.34 and 281.35 are further
explicit legislative permission for the DNR to exercise its
broad authority under Wis. Stat. § 281.12. By the plain text of
§§ 281.34(5)(e) and 281.35(5)(d), the DNR "shall" impose
conditions on an approved well to ensure that, among other
requirements, the well will neither "adversely affect[]" any
"public water rights in navigable waters" nor "have a
significant detrimental effect on the quantity or quality of the
waters of the state." For some well applications, the DNR will
be able to impose the necessary permit conditions based solely
on its "expertise in water resources management." See Lake
Beulah, 335 Wis. 2d 47, ¶¶42-43, 46. But for others, the DNR
may need to collect and review evidence about a well's potential
environmental effects before it knows what permit conditions
will prevent those adverse effects. See id. In either case,
the DNR is carrying out its explicit statutory directive to
protect the state's waters via certain permit conditions.
Therefore, the well-permitting statutes, in addition to Wis.
Stat. §§ 281.11 and 281.12, explicitly allow the DNR to consider
a proposed well's potential effect on the environment. See Wis.
Stat. §§ 281.12, 281.34(5)(e); Lake Beulah, 335 Wis. 2d 47, ¶46.
¶27 Because the legislature explicitly granted the DNR
broad authority to consider the potential environmental impact
of proposed high capacity wells, we conclude that the enactment
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No. 2018AP59
of Wis. Stat. § 227.10(2m) does not change our holding in Lake
Beulah. The DNR's authority to consider the environmental
effects of all high capacity wells is consistent with
§ 227.10(2m) and the DNR erred when it concluded otherwise.
3
¶28 The Intervenors' remaining arguments miss the mark and
mirror the arguments we rejected in Lake Beulah. Like East Troy
in Lake Beulah, the Intervenors argue that a general statute
cannot confer explicit authority. As discussed above, however,
and exemplified in Wis. Stat. § 281.12, general and explicit are
not mutually exclusive concepts.
¶29 The Intervenors' claim that Wis. Stat. § 227.10(2m)
"superseded" and "nullif[ied]" Lake Beulah falters for the same
reason, but also because it rests on a misrepresentation of our
holding in Lake Beulah. The Intervenors misleadingly report
that we "found" the DNR's broad public-trust duty "implicitly
contained the more specific power" to consider the environmental
effects of all proposed high capacity wells. Nowhere in Lake
Beulah did we describe the DNR's environmental-review authority
as "implicit." What we actually said was that "the legislature
has expressly granted the DNR the authority and a general duty
to review all permit applications and decide whether to issue
the permit." Lake Beulah, 335 Wis. 2d 47, ¶39 (emphasis added).
Thus, § 227.10(2m) does not supersede or nullify our holding in
Lake Beulah. See id., ¶39 n.31.
¶30 The Intervenors' resort to Wis. Stat. § 227.11(2)(a)
does not save its argument. That statute prevents courts from
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No. 2018AP59
finding implicit agency-rule-making authority in general policy
or purpose statements that contain no explicit rule-making
authorization. But this case is not about the DNR's rule-making
power; section 227.11(2)(a) is therefore irrelevant.
C
¶31 Finally, regarding the second question in this
certified appeal, we agree with the circuit court that Clean
Wisconsin's claim is not barred by Wis. Stat. § 281.34(5m).
That provision bars a challenge "based on the lack of
consideration of the cumulative environmental impacts" of a
proposed high capacity well. Id. (emphasis added). Clean
Wisconsin's claims, however, are based on the fact that the DNR
considered the potential environmental impact of these wells
when deciding whether to grant the well permits. Accordingly,
§ 281.34(5m) is no bar to Clean Wisconsin's challenge.
III
¶32 The DNR erroneously interpreted a provision of law
when it interpreted Wis. Stat. § 227.10(2m) as a bar to
considering a proposed high capacity well's potentially adverse
environmental effects for which an environmental review was not
otherwise required. That error, however, does not compel the
DNR to either approve or deny the permits. See Wis. Stat.
§ 227.57(5). Rather, after considering the environmental
effects of these proposed wells, the DNR must use its discretion
and expertise to determine whether to approve the wells. We
therefore affirm the circuit court's vacating the DNR's approval
of the wells, but, on remand to the circuit court, we modify the
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circuit court's order with instructions that it remand all eight
applications to the DNR. See id.; Applegate-Bader Farm, 396
Wis. 2d 69, ¶¶39, 41.
By the Court.—The judgment and order of the circuit court
are modified and affirmed, and, as modified, the cause is
remanded to the circuit court.
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¶33 REBECCA GRASSL BRADLEY, J. (dissenting).
[F]reedom of men under government is, to have a
standing rule to live by, common to every one of that
society, and made by the legislative power erected in
it . . . and not to be subject to the inconstant,
uncertain, unknown, arbitrary will of another man[.]
John Locke, Second Treatise of Civil Government § 22 (John Gough
ed., 1947) (emphasis added). In a striking affront to the will
of the people, a majority of this court defies the law enacted
by the people's representatives in the legislature, warps the
plain language of enabling statutes, and affords administrative
agencies and unelected bureaucrats the power to override the
legislature from which they derive their delegated authority.
In doing so, the majority upends the foundational principle that
"administrative agencies are the creatures of the legislature
and are responsible to it." Schmidt v. Dep't of Res. Dev., 39
Wis. 2d 46, 57, 158 N.W.2d 306 (1968) (emphasis added).
¶34 Through Act 21,1 the Wisconsin Legislature curtailed
the exercise of regulatory power by abating the authority the
legislature delegated to administrative agencies. Specifically,
the legislature mandated that "[n]o agency may implement or
enforce any standard, requirement, or threshold, including as a
term or condition of any license issued by the agency,
unless . . . [it] is explicitly required or explicitly permitted
by statute or by a rule[.]" Wis. Stat. § 227.10(2m) (emphasis
added). Functionally, the legislature reclaimed a portion of
its constitutionally-conferred powers previously delegated to
1 2011 Wis. Act 21.
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No. 2018AP59.rgb
agencies, an act embodying the indelible principle that "an
agency's powers, duties and scope of authority are fixed and
circumscribed by the legislature and subject to legislative
change." Schmidt, 39 Wis. 2d at 56 (emphasis added).
¶35 Instead of giving effect to this legislative change,
the majority nullifies it. Disregarding Wis. Stat.
§ 227.10(2m)'s instruction that agencies may exercise only those
enforcement powers "explicitly" granted by the legislature or
properly promulgated by rule, the majority infuses its statutory
analysis with environmental policy concerns in order to reach
the conclusion that the Department of Natural Resources (DNR)
possesses the power to conduct environmental impact reviews for
the eight high capacity wells at issue in this case. It
doesn't.
¶36 To arrive at its favored holding, the majority severs
Wis. Stat. § 227.10(2m) from any relationship with DNR's
enabling authorities. Because DNR lacks any explicit authority
to conduct environmental impact reviews for the eight high
capacity wells, DNR may not undertake them. Lake Beulah Mgmt.
Dist. v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, does
not (and cannot) supersede the law. The circuit court erred in
vacating DNR's well approvals and the majority errs in affirming
the judgment. I dissent.
I. STATUTORY AND FACTUAL BACKGROUND
A. Statutes Governing High Capacity Wells
¶37 Wisconsin Stat. ch. 281 governs DNR's review and
approval of high capacity well applications. Under Wis. Stat.
2
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§ 281.34(1)(b), "high capacity wells" have a pumping capacity of
more than 100,000 gallons per day (gpd). Wells with a pumping
capacity of less than 100,000/gpd are subject to a different set
of requirements and are not at issue in this case. See Wis.
Stat. § 281.34(3)(a) (requiring owners of a well that is "not a
high capacity well" to simply notify the department before its
construction and pay a $50 fee).
¶38 Wisconsin Stat. ch. 281 divides high capacity wells
into two separate categories: wells with a "water loss" above
2,000,000/gpd in any 30-day period [hereinafter "large wells"],
and wells with a "water loss" below 2,000,000/gpd [hereinafter
"medium wells"].2 See Wis. Stat. § 281.35(4)(b)1. Under Wis.
Stat. § 281.34(1)(g), "water loss" means "a loss of water from
the basin from which it is withdrawn as a result of interbasin
diversion or consumptive use or both."
¶39 Wisconsin Stat. § 281.35(5)(d) sets forth express
requirements DNR must follow before approving an application for
a large well. Among other requirements, DNR "shall determine"
"[t]hat no public water rights in navigable waters will be
adversely affected [by the proposed large well]" and that "the
proposed withdrawal will not have a significant detrimental
effect on the quantity and quality of the waters of the state."
2 Although the phrases "large wells" and "medium wells" do
not appear in the Wisconsin Statutes, they are helpful labels
for conceptualizing the statutory scheme under which DNR reviews
and approves high capacity well applications. As will be
explained later, although "large wells" and "mediums wells" are
both "high capacity wells," only the former are subject to the
heightened mandates of Wis. Stat. § 281.35.
3
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§ 281.35(5)(d)1, 6. If DNR approves a large well application,
it "shall modify the applicant's existing approval or shall
issue a new approval that specifies" a number of permitting
conditions, including, among other things, "[t]he dates on
which . . . water may be withdrawn," "[t]he uses for which water
may be withdrawn," and "[a]ny other conditions, limitations and
restrictions that the department determines are necessary to
protect the environment[.]" § 281.35(6)(a)3, 4, 7.
¶40 In contrast, medium wells are subject to considerably
fewer permitting requirements than large wells; DNR is only
sometimes allowed to conduct an environmental impact review
before approving an application for a medium well. Unlike large
wells, DNR need not satisfy the requirements of Wis. Stat.
§ 281.35(5)(d) before approving a medium well application.
Instead, medium wells primarily fall under the purview of Wis.
Stat. § 281.34. Pursuant to § 281.34(4)(a), DNR may conduct an
environmental impact review only when a high capacity medium
well falls into one of three categories: (1) "[a] high capacity
well that is located in a groundwater protection area";3 (2) "[a]
3Wisconsin Stat. § 281.34(1)(am) defines "groundwater
protection area" as "an area within 1,200 feet of any of the
following:
1. An outstanding resource water identified under s. 281.15
that is not a trout stream.
2. An exceptional resource water identified under s. 281.15
that is not a trout stream.
(continued)
4
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high capacity well with a water loss of more than 95 percent of
the amount of water withdrawn"; and (3) "[a] high capacity well
that may have a significant environmental impact on a spring."
§ 281.34(4)(a)1-3.4
¶41 Under Wis. Stat. § 281.34(5), if a high capacity well
corresponds to one of these three categories, DNR follows its
environmental review process in accordance with its properly
promulgated rules. Pursuant to this process, if DNR determines
"that an environmental impact report . . . must be prepared for
a proposed high capacity well" falling under one of the above
three categories, DNR "may not approve the high capacity well"
unless it includes permitting conditions "that ensure that the
high capacity well does not cause significant environmental
impact." See § 281.34(5)(b)-(d) (emphasis added). Importantly
for purposes of this case, the Wisconsin Statutes do not
expressly authorize or require DNR to conduct an environmental
impact review for medium wells that do not fit at least one of
these three categories.
B. DNR's Approval of Eight High Capacity Wells
¶42 All parties agree that the eight wells at issue in
this case have a pumping capacity above 100,000/gpd and a water
3. A class I, class II, or class III trout stream, other
than a class I, class II, or class III trout stream that
is a farm drainage ditch with no prior stream history, as
identified under sub. (8)(a)."
"Large wells" are also subject to the provisions of Wis.
4
Stat. § 281.34(4)(a), in addition to the requirements set forth
in Wis. Stat. § 281.35(5)(d).
5
No. 2018AP59.rgb
loss below 2,000,000/gpd in any 30-day period. With these
characteristics, they are all medium wells. Between March 2014
and April 2015, DNR received permit applications for the eight
wells from parties uninvolved in this dispute. Ostensibly
guided by this court's decision in Lake Beulah, DNR screened the
applications for potential adverse impacts to waters of the
state. In relevant part, Lake Beulah held that "DNR has the
authority and a general duty to consider whether a proposed high
capacity well may harm waters of the state." Lake Beulah, 335
Wis. 2d 47, ¶3.
¶43 For three of the applications at issue in this case,
DNR delayed approval of the permits, citing concerns about
neighboring waters; however, it never conducted a formal
environmental review. For one of the applications, DNR
initially recommended approval with a limited capacity for the
well, but deferred its decision for further evaluation. For the
remaining four applications, DNR conducted an analysis of the
cumulative impacts these wells would have on surrounding waters
and concluded that these four applications should be denied.
However, instead of denying the applications, DNR offered the
applicants the option to place them "on hold," noting that "the
[Wisconsin] Legislature is currently discussing legislation that
may affect the review of these applications." That new
legislation was Act 21, which, as relevant to this case, created
Wis. Stat. § 227.10(2m). DNR accurately anticipated that
§ 227.10(2m) would have an impact on the approval of well
applications, among other agency actions. Under that statute,
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agencies——including DNR——may not enforce "any standard,
requirement, or threshold, including as a term or condition of
any license," unless it is "explicitly required or explicitly
permitted by statute or by a rule[.]" § 227.10(2m). In other
words, the legislature prohibited DNR (and all other agencies)
from acting beyond the authority explicitly delegated to it by
the legislature. Because the legislature enacted § 227.10(2m)
more than one month after this court heard oral argument in Lake
Beulah and just six weeks before this court released its
decision, the court did not apply the statute at all.
¶44 While all eight applications in this case were
pending, the Wisconsin State Assembly requested a formal opinion
from the Attorney General to resolve any confusion between Wis.
Stat. § 227.10(2m) and Lake Beulah. The Attorney General
concluded that § 227.10(2m) requires "an agency [to] have an
explicit authority to impose license and permit conditions."
2016 Wis. Op. Att'y Gen. 1, ¶29 (2016) (OAG-01-16). According
to the Attorney General, "[t]he timing of Act 21's passage, as
well as the plain language of the decision, supports [the]
conclusion that the Lake Beulah court did not interpret and
apply Wis. Stat. § 227.10(2m)." Id., ¶9. Fundamentally, the
Attorney General recognized that in enacting Act 21, the
legislature "explicitly limited agency authority."5 Id., ¶26.
In May 2020, a new Attorney General withdrew OAG-01-16 in
5
its entirety. See https://www.doj.state.wi.us/sites/default/
files/news-media/5.1.20_High_Cap_wells_Letter.pdf.
7
No. 2018AP59.rgb
¶45 In light of the Attorney General's formal opinion, DNR
proceeded to review the eight well applications to determine
whether environmental review of the medium wells was explicitly
required or permitted by statute or rule. DNR answered this
question in the negative, concluding that the eight wells did
not fit any of the three categories listed under Wis. Stat.
§ 281.34(4)(a) and therefore did not trigger environmental
review. DNR subsequently approved all eight well permits
without conducting a formal environmental review.
¶46 Clean Wisconsin, Inc. and Pleasant Lake Management
District (Petitioners) filed petitions for judicial review of
DNR's approval of the well permits. The actions were
consolidated in Dane County Circuit Court. The circuit court
ruled in favor of Petitioners, vacating seven of DNR's approved
permits and remanding for an evaluation of environmental impacts
on the eighth approved permit.
¶47 DNR, as well as a group of intervening industry
organizations,6 appealed the decision of the circuit court. The
court of appeals certified the case to this court. After we
accepted certification, DNR reversed its position before the
lower courts and aligned its arguments with those of
Petitioners. The Joint Committee on Legislative Organization,
6 Intervening industry organizations include Wisconsin
Manufacturers & Commerce, Dairy Business Association, Midwest
Food Processors Association, Wisconsin Potato & Vegetable
Growers Association, Wisconsin Cheese Makers Association,
Wisconsin Farm Bureau Federation, Wisconsin Paper Council, and
Wisconsin Corn Growers Association.
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on behalf of the Wisconsin Legislature, intervened. After a
stay of proceedings, briefing proceeded on the merits and this
court heard oral argument.
II. DISCUSSION
¶48 Emphasizing the adverse environmental effects of
approving these wells, the majority declines to apply the plain
language of Wis. Stat. § 227.10(2m) and affirmatively rejects
the legislature's limitations on agency authority——and not just
DNR's. Contrary to the majority's conclusions, there is no
legal authority for DNR to conduct environmental impact reviews
of any of the eight proposed high capacity wells, much less any
"explicit authority" as § 227.10(2m) commands. The public trust
doctrine certainly doesn't confer it. Lake Beulah did not
decide otherwise——the court never interpreted or applied
§ 227.10(2m) in that case. The majority conducts its analysis
exactly backwards, purportedly seeking "explicit" agency
authority first, finding only broad policy statements and
general duties in the enabling statutes, and then torturing the
language and meaning of § 227.10(2m) in order to achieve an
absolute obstruction of that law. A proper analysis starts with
§ 227.10(2m).
A. The "Explicit Authority" Requirement
¶49 When it enacted Wis. Stat. § 227.10(2m) more than a
decade ago, the "legislature lamented that state agencies were
somehow exercising regulatory authority far beyond what it
intended to grant them." Kirsten Koschnick, Making "Explicit
Authority" Explicit: Deciphering Wis. Act 21's Prescriptions
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for Agency Rulemaking Authority, 2019 Wis. L. Rev. 993, 995
(2019). In response, the legislature——as the elected voice of
the people of Wisconsin——"spoke up and clarified, through a
piece of legislation, the ways in which it confers regulatory
authority upon agencies." Id. at 996. Act 21 "dramatically
alter[ed] the regulatory authority enjoyed by all state
agencies." Id.
¶50 As part of Act 21, the legislature created Wis. Stat.
§ 227.10(2m), which imposes an "explicit authority" requirement
upon agencies. In relevant part, the statute provides as
follows:
No agency may implement or enforce any standard,
requirement, or threshold, including as a term or
condition of any license issued by the agency, unless
that standard, requirement, or threshold is explicitly
required or explicitly permitted by statute or by a
rule that has been promulgated in accordance with this
subchapter, except as provided in s. 186.118(2)(c) and
(3)(b)3.
§ 227.10(2m) (emphasis added). Contrary to the majority's
vitiating reading of it, the statute speaks for itself: an
agency may not enforce any standard, requirement, or threshold
(including as a condition of a license) unless the agency is
explicitly required or permitted to do so by statute or by
properly promulgated rules.
¶51 "Explicit" means what any person would reasonably
understand it to mean: something "[e]xpressed without ambiguity
or vagueness" and "leaving no doubt." Explicit, Black's Law
Dictionary 725 (11th ed. 2019); see also Explicit, Oxford
English Dictionary 901 ("[d]istinctly expressing all that is
10
No. 2018AP59.rgb
meant; leaving nothing merely implied or suggested; unambiguous;
clear"); State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI
58, ¶53, 271 Wis. 2d 633, 681 N.W.2d 110 (instructing courts to
turn to dictionary definitions to ascertain the plain meaning of
a statute). "Required" and "permitted" likewise hold
commonplace meanings. The former means to "to stipulate as
obligatory by authority," particularly to comply with a "law
[or] regulation." Require, The American Heritage Dictionary
1492 (5th ed. 2011); Require Oxford English Dictionary 2541 (6th
ed. 2007). The latter means to "allow or give consent to a
person or thing to do . . . something." Permit, The American
Heritage Dictionary 2166 (5th ed. 2011); Permit Oxford English
Dictionary 1315 (6th ed. 2007) ("to allow the doing of
(something); consent to"). After Act 21, agency authority may
no longer be derived by implication. As the plain language of
§ 227.10(2m) provides, if an enabling statute or lawfully
promulgated rule does not unambiguously——and without any
intimation of doubt——confer authority upon an agency to exercise
a certain power (either to comply with the law or in accordance
with the legislature's express consent), the agency simply does
not possess that power; instead, the legislature retains it.
¶52 This interpretation of Wis. Stat. § 227.10(2m)
conforms to our precedent. In Palm, we noted that the
legislature "significantly altered our administrative law
jurisprudence by imposing an 'explicit authority requirement' on
our interpretations of agency powers." Wisconsin Legislature v.
Palm, 2020 WI 42, ¶51, 391 Wis. 2d 497, 942 N.W.2d 900 (citation
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omitted). In particular, we determined that the language of
§ 227.10(2m) "requires us to narrowly construe imprecise
delegations of power to administrative agencies." Id., ¶52
(citation omitted). Agencies may not, for example, glean
implied powers from general statutory language, nor can they
transform broad statutory statements of legislative purpose or
intent into a conferral of authority.7 See id. The
legislature's new statutory scheme "prevent[s] agencies from
circumventing this new 'explicit authority' requirement by
simply utilizing broad statutes describing the agency's general
duties or legislative purpose as a blank check for regulatory
authority." Id. (quoted source omitted).
¶53 Just last year in Papa v. DHS, this court applied the
plain language of Wis. Stat. § 227.10(2m) in considering whether
the Department of Health Services (DHS) had the authority to
recoup payments made to Medicaid service providers. See Papa v.
DHS, 2020 WI 66, ¶2, 393 Wis. 2d 1, 946 N.W.2d 17. Applying
explicit language in DHS's enabling statutes and properly
7 Even within the space of agency rulemaking, Act 21 forbids
agencies from promulgating rules under merely implicit grants of
authority. For example, agencies may not promulgate rules by
relying upon statements of "legislative intent, purpose,
findings, or policy," Wis. Stat. § 227.11(2)(a)1, nor can
agencies rely upon "statutory provision[s] describing the
agency's general powers or duties." § 227.11(2)(a)2. Neither
do "statutory provision[s] containing a specific standard,
requirement, or threshold" "confer rule-making
authority . . . or augment [any agency's] rule-making authority
beyond the rule-making authority that is explicitly conferred on
the agency by the legislature." § 227.11(2)(a)3 (emphasis
added).
12
No. 2018AP59.rgb
promulgated rules, we concluded that DHS had the authority to
recoup such payments only in three specific circumstances: when
DHS cannot verify (1) the actual provision of covered services,
(2) that the reimbursement claim is appropriate for the service
provided, or (3) that the reimbursement claim is accurate for
the service provided. Id., ¶40. Because DHS's recoupment
policy exceeded the explicit grant of authority to DHS, it was
unlawful. Id., ¶41. Significantly for this case, we determined
that "absent any explicit authority" for DHS's recoupment
policy, "we are left with a clear conclusion[:] [t]here is no
legal basis for [that policy]." Id. Under the directives of
§ 227.10(2m), this court is supposed to "look to the statutes
and promulgated [agency] rules to determine the scope of [the
agency's] explicit . . . authority." Id., ¶32 (emphasis added).
If these sources of law do not explicitly confer authority, the
agency lacks any lawful power to take that specific agency
action.
¶54 Elevating its environmental policy preferences over
the legislature's prerogative to reclaim its constitutional
authority, the majority distorts the plain language of Wis.
Stat. § 227.10(2m) to achieve its own ends. In doing so, the
majority flagrantly flouts foundational principles of
constitutional governance. "We have long recognized that
administrative agencies are creations of the legislature and
that they can exercise only those powers granted by the
legislature." Martinez v. DILHR, 165 Wis. 2d 687, 697, 478
N.W.2d 582 (1992) (citation omitted) (emphasis added). "[T]he
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legislature may withdraw powers which have been granted,
prescribe the procedure through which granted powers are to be
exercised, and if necessary wipe out the agency entirely."
Schmidt, 39 Wis. 2d at 57. Administrative agencies are not only
"creatures of the legislature," but they "are responsible to
it." Chicago & N.W. Ry. Co. v. Pub. Serv. Comm'n, 43
Wis. 2d 570, 579, 169 N.W.2d 65 (1969). When the legislature
confines agency authority within the legislature's explicit
consent, that is the law and the will of the people, which this
court is duty-bound to respect and to uphold.
¶55 The majority frees administrative agencies from the
legislature's "explicit authority" requirement in Wis. Stat.
§ 227.10(2m), to the detriment of the structural separation of
powers embodied in our constitutional architecture. "The United
States and Wisconsin Constitutions both vest exclusive powers in
each of three independent branches of government, not four."
Koschkee v. Taylor, 2019 WI 76, ¶47, 387 Wis. 2d 552, 929
N.W.2d 600 (Rebecca Grassl Bradley, J., concurring). An
administrative state was "not the Framers' design." Peter J.
Wallison, Judicial Fortitude: The Last Chance to Rein in the
Administrative State ix (2018). Instead, the Framers
"structured a tripartite system of separate powers in which each
branch of the government had an assigned but limited role." Id."The legislature makes, the executive executes, and the
judiciary construes the law." Wayman v. Southard, 23 U.S. 1, 46
(1825). Neither our state nor federal constitutions empower
anyone other than the legislature to make law——including any
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administrative agency. See U.S. Const. art. I, § 1 ("All
legislative Powers herein granted shall be vested in a
Congress[.]"); Wis. Const. art. IV, § 1 ("The legislative power
shall be vested in a senate and assembly[.]"). "Through the
Constitution, after all, the people had vested the power to
prescribe rules limiting their liberties in Congress alone."
Gundy v. United States, 139 S. Ct. 2116, 2133 (2019) (Gorsuch,
J., dissenting) (emphasis added). As James Madison declared,
"[n]o political truth is certainly of greater intrinsic value,
or is stamped with the authority of more enlightened patrons of
liberty" than the separation of powers. The Federalist No. 47,
at 301 (James Madison) (C. Rossiter ed., 1961). Preserving the
legislature's prerogative to control its constitutionally-vested
law-making powers safeguards the peoples' liberty.
¶56 Courts "have too long abrogated [their] duty to
enforce the separation of powers required by our Constitution."
DOT v. Ass'n of Am. Railroads, 575 U.S. 43, 91 (2015) (Thomas,
J., concurring). The majority abrogates the court's duty in
this case. While some may applaud the court's advancement of
environmental goals, its decision "sanctions the growth of an
administrative system that concentrates the power to make laws
and the power to enforce them in the hands of a vast and
unaccountable administrative apparatus that finds no comfortable
home in our constitutional structure." Id. (Thomas, J.,
concurring). The majority makes administrative agencies
superior to the legislature, which is irreconcilable with the
republican system of governance established by the Framers. "In
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republican government, the legislative authority necessarily
predominates." Morrison v. Olson, 487 U.S. 654, 698 (1988)
(Scalia, J., dissenting) (quoting The Federalist No. 51, at 322
(James Madison) (C. Rossiter ed. 1961)). "The people bestowed
much power on the legislature, comprised of their
representatives whom the people elect to make the laws." Gabler
v. Crime Victims Rights Bd., 2017 WI 67, ¶60, 376 Wis. 2d 147,
897 N.W.2d 384 (emphasis added). The people never imparted any
power on administrative bureaucrats insulated from any
democratic oversight by the people. Through Act 21, the
legislature reclaimed the power the people gave it and this
court has no authority to override this legislative choice.
¶57 The majority's move has injurious impact far beyond a
handful of wells. "Although the Framers could not have
envisioned the modern administrative state, they certainly
envisioned the danger to liberty posed by the accumulation of
government powers in the hands of federal officials." Charles
J. Cooper, Confronting the Administrative State, 25 Nat'l Aff.
96, 96 (Fall 2015). This concern exists no less at the state
level. Although the legislature created our current
administrative system, the majority transforms it into
Frankenstein's monster, a behemoth beyond legislative control
unless the legislature kills it. While the majority's decision
in this case is an affront to the legislature, it is the people
who will suffer in its aftermath. "The concentration of power
within an administrative leviathan clashes with the
constitutional allocation of power among the elected and
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accountable branches of government at the expense of individual
liberty." Koschkee, 387 Wis. 2d 552, ¶42 (Rebecca Grassl
Bradley, J., concurring). When the judiciary rides roughshod
over laws restricting the exercise of delegated legislative
authority, it imperils "the liberty of all citizens." Operton
v. LIRC, 2017 WI 46, ¶80, 375 Wis. 2d 1, 894 N.W.2d 426 (Rebecca
Grassl Bradley, J., concurring). "The Framers 'believed the new
federal government's most dangerous power was the power to enact
laws restricting the people's liberty.'" Fabick v. Evers, 2021
WI 28, ¶56, 396 Wis. 2d 231, 956 N.W.2d 856 (Rebecca Grassl
Bradley, J., concurring) (quoting Gundy, 139 S. Ct. at 2134(Gorsuch, J., dissenting)). In this case, the majority affords
administrative agencies carte blanche to regulate the people and
entities they govern, based solely on broad grants of authority,
denying the legislature the ability to check the actions of the
bureaucracy it created.
¶58 Notwithstanding the absence of a constitutional basis
for the administrative state, "many commentators assert that
there is little alternative to the powerful administrative
agencies we have today," in light of an increasingly "complex
U.S. economy and society." Wallison, supra, at 19, 30. But
"[g]overnmental efficiency can never be allowed to trump the
people's liberty." Fabick, 396 Wis. 2d 231, ¶67 (Rebecca Grassl
Bradley, J., concurring). "The end result" of the majority's
view of agencies "may be trains that run on time (although I
doubt it), but the cost is to our Constitution and the
individual liberty it protects." Ass'n of Am. Railroads, 575
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U.S. at 91 (Thomas, J., concurring). Instead of "straying
further and further from the Constitution without so much as
pausing," we should "stop to consider that document before
blithely giving the force of law to any other agency." Michigan
v. E.P.A., 576 U.S. 743, 763-64 (2015) (Thomas, J., concurring).
The people of Wisconsin gave the legislature——not administrative
agencies——the power to make law. Accordingly, if the
legislature decides to curtail the delegated powers of agencies
by enacting legislation limiting agency action to that which is
explicitly required or permitted by the legislature, this court
must uphold the law. The legislature neither requires nor
permits DNR to conduct an environmental review of the eight
wells at issue in this case and the majority's conclusion to the
contrary undermines the rule of law.
B. DNR Lacks Explicit Authority to Conduct Environmental
Impact Reviews for the Eight High Capacity Wells.
¶59 Nowhere in the Wisconsin Statutes or in any lawfully
promulgated rules does DNR have the explicit authority to
conduct an environmental impact review of the high capacity
wells at issue in this case. All parties agree that the eight
wells have a "water loss" below 2,000,000/gpd and a pumping
capacity above 100,000/gpd, qualifying each as a medium well.
None of them are large wells, so Wis. Stat. § 281.35(5)(d) does
not apply. The only statutory authority authorizing DNR to
conduct environmental reviews of medium wells lies in Wis. Stat.
§ 281.34(4)(a). Nothing in that statute expressly authorizes
DNR to do so in this case.
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¶60 To reiterate, Wis. Stat. § 281.34(4)(a) explicitly
authorizes DNR to conduct environmental impact reviews only for
three specific types of high capacity wells: (1) "[a] high
capacity well that is located in a groundwater protection area";
(2) "[a] high capacity well with a water loss of more than 95
percent of the amount of water withdrawn"; and (3) "[a] high
capacity well that may have a significant environmental impact
on a spring." § 281.34(4)(a)1-3. The parties all agree that
the eight wells in this case do not fit any of these three
categories. This fact is fatal to Petitioners' claim. Section
281.34(4)(a) is the only statute requiring DNR to conduct an
environmental impact review for high capacity medium wells, but
only for three categories of wells to which the eight wells in
this case do not belong: "[DNR] shall review an application for
approval of any of the following [three categories] using the
environmental review process[.]" (Emphasis added.) Even the
majority acknowledges that "an environmental review is not
required for any of the eight wells in this case." Majority
op., ¶15. No statute permits environmental reviews of these
wells either. Because the eight high capacity medium wells
under consideration do not fall into any of the three statutory
categories explicitly requiring DNR action, DNR has no authority
to conduct environmental impact reviews of them.8
8 DNR——now arguing in support of Petitioners——contends that
allowing DNR to conduct environmental impact reviews for high
capacity medium wells only if they fall under Wis. Stat.
§ 281.34(4)(a)'s three categories would lead to absurd results.
According to DNR, under the definition of "groundwater
protection area" for example (see footnote 3, supra), DNR
(continued)
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¶61 The majority gives short shrift to Wis. Stat.
§ 227.10(2m) and contrives "explicit" authority from broadly
worded statements of policy and purpose rather than express
requests or permissions from the legislature. In particular,
the majority relies on Wis. Stat. §§ 281.11 and 281.12. These
broadly-worded statutes leave everything to inference and
implication. The former——nothing more than a "[s]tatement of
policy and purpose"——states in part that DNR
"shall . . . protect, maintain and improve the quality and
management of the waters of the state[.]" § 281.11. The
latter——a provision of "[g]eneral department powers and duties"—
—states in part that DNR "shall have the general supervision and
control over the waters of the state" and "shall carry out the
possesses the authority to conduct an environmental impact
review for proposed wells within 1,200 feet of high-quality
waters but not wells just a few feet further——a result it deems
absurd. But the legislature engages in this sort of line-
drawing all the time and DNR's position abandons basic
principles of statutory interpretation. It is the job of this
court to "apply [a] statute as written, not interpret it as we
think it should have been written." Columbus Park Hous. Corp.
v. City of Kenosha, 2003 WI 143, ¶34, 267 Wis. 2d 59, 671
N.W.2d 633. "Policy decisions are left to the legislature."
Milwaukee J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶37, 341
N.W.2d 607, 815 N.W.2d 367. "[W]e are not permitted to second-
guess the policy choice of the legislature" that it was
"entitled to make." Kohn v. Darlington Cmty. Sch., 2005 WI 99,
¶43, 283 Wis. 2d 1, 698 N.W.2d 794. Under Wis. Stat.
§ 281.34(4)(a)1, the legislature mandates environmental impact
reviews for high capacity wells located in a groundwater
protection area, which the legislature defines as areas within
1,200 feet of high-quality waters. See § 281.34(1)(am). The
legislature set the standard, which DNR may not override. There
is nothing absurd about this provision or its application. The
legislature established a threshold of 1,200 feet and that is
the standard we must apply.
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planning, management and regulatory programs necessary for
implementing the policy and purpose of this chapter."
§ 281.12(1). Branding these nebulous grants of authority
"explicit" empties the word of any meaning and impermissibly
defeats the legislature's curtailment of agency power.
¶62 Wisconsin Stat. §§ 281.11 and 281.12 contain no
explicit statement authorizing DNR to conduct environmental
impact reviews; notably, the phrase "environmental impact
review" (or anything remotely similar) does not appear in the
statute at all. Section § 227.10(2m) flatly prohibits agencies
from deriving authority from such sweeping statements of "policy
and purpose" or "general duties." See § 227.10(2m) (stating
that agencies can impose permitting conditions only as
"explicitly required or explicitly permitted by statute or by a
rule"). As we just construed it in Palm, Act 21 "prevent[s]
agencies from circumventing this new 'explicit authority'
requirement by simply utilizing broad statutes describing the
agency's general duties or legislative purpose as a blank check
for regulatory authority." Palm, 391 Wis. 2d 497, ¶52 (quoted
source omitted). The majority's reliance on these descriptions
of general duties, policies, and purpose is in error.
¶63 DNR's properly promulgated rules afford it no
authority to conduct an environmental impact review for these
eight wells either. DNR——now arguing in support of Petitioners—
—points to Wis. Admin. § NR 140.02(4) as a basis for such
authority. Under that rule, DNR "may take any actions . . . if
those actions are necessary to protect public health and welfare
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or prevent significant damaging effect on groundwater or surface
water quality[.]" § NR 140.02(4). Just like Wis. Stat.
§§ 281.11 and 281.12, this provision makes no mention of
environmental impact reviews, nor does its decidedly broad
language contain any explicit authorization for such reviews.
"Any actions necessary" cannot be reasonably construed as an
"explicit" requirement or permission as Wis. Stat. § 227.10(2m)
demands. DNR additionally cites Wis. Admin. § NR 150.20, but
that provision does not explicitly require or allow
environmental impact reviews for the wells at issue in this
case. Under § NR 150.20(1m)(h), an environmental impact
analysis is not a prerequisite for the approval of wells under
Wis. Stat. § 281.34 "except for wells under [§] 281.34(4)."
(Emphasis added.) Under DNR's own rules, approvals of high
capacity wells outside of § 231.34(4)(a)'s three categories are
merely "minor actions." See § NR 150.20(1m).
¶64 Attempting to buttress its flimsy statutory analysis,
the majority disclaims any "need to re-interpret" Wis. Stat.
§§ 281.11 or 281.12 and instead elects to "reaffirm our
statutory analysis in Lake Beulah" despite its abrogation by the
legislature's enactment of Wis. Stat. § 227.10(2m). Majority
op., ¶19. In blatant defiance of duly enacted law, the majority
refuses to allow § 227.10(2m) to take effect, instead
illegitimately allowing the court's superseded decision to
supplant the law. In relevant part, Lake Beulah held that "DNR
has the authority and a general duty to consider potential
environmental harm to the waters of the state when reviewing a
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high capacity well permit application." Lake Beulah, 335
Wis. 2d 47, ¶44. The court further determined that "[t]he high
capacity well permitting framework along with the DNR's
authority and general duty to preserve waters of the state
provides the DNR with the discretion to undertake the review it
deems necessary for all proposed high capacity wells, including
the authority and a general duty to consider the environmental
impact of a proposed high capacity well on waters of the state."
Id., ¶39. According to the Lake Beulah court, Wis. Stat. ch.
281——reflecting a "delegation of the State's public trust
obligations"——endows DNR with this extraordinary authority. Id.
¶65 Setting aside its questionable constitutional
validity,9 Lake Beulah was superseded by the legislature's
See Koschkee v. Taylor, 2019 WI 76, ¶48, 387 Wis. 2d 552,
9
929 N.W.2d 600 (Rebecca Grassl Bradley, J., concurring)
("Applying an originalist interpretation of the Constitution,
some United States Supreme Court justices and several
commentators have opined against the legislature relinquishing
its vested legislative power 'or otherwise reallocat[ing] it,'
echoing the historical understanding that '[t]he legislative
c[ould not] transfer the power of making laws to any other
hands: for it being but a delegated power from the people, they
who have it [could not] pass it over to others.' DOT v. Ass'n
of Am. Railroads, 575 U.S. 43, 73 (2015) (Thomas, J.,
concurring) (quoting John Locke, Second Treatise of Civil
Government § 141, at 71 (J. Gough ed. 1947)) (emphasis added;
alterations in original). See also Richard A. Epstein, Why the
Modern Administrative State Is Inconsistent with the Rule of
Law, 3 N.Y.U. J. of L. & Liberty 491, 496 (2008) (the argument
'that the Constitution authorizes the creation of independent
agencies with aggregated powers of a legislative, executive, and
judicial nature . . . fails so long as it depends on any form of
originalism' and 'the text itself points to a system whereby the
tripartite division is meant to be rigid in law'); Phillip
Hamburger, Is Administrative Law Unlawful? 336 (2014) ('[T]he
government can bind Americans only through laws, and only
through courts with juries and judges, thus preserving the most
(continued)
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rollback of regulatory discretion in Wis. Stat. § 227.10(2m),
which abrogated that decision. As a preliminary matter, Lake
Beulah never considered the impact of § 227.10(2m) on its
analysis, although the majority pretends they coalesce. The
legislature enacted this statute in 2011, more than one month
after the Lake Beulah court heard oral argument and only six
weeks before the court released its decision. In a footnote,
the Lake Beulah court acknowledged that "[n]one of the parties
argue[d] that the amendments to Wis. Stat. ch. 227 in [Act 21]
affect the DNR's authority in this case." Id., ¶39 n.31. In
supplemental briefing after oral argument, both DNR and Lake
Beulah Management District discussed the impact of Act 21 on the
case, but the court simply concluded that Act 21 "[did] not
affect [its] analysis" and that it "does not address this
statutory change any further." Id. Obviously, the Lake Beulah
court declined to consider the impact of Act 21 in declaring
DNR's broad agency powers. In this case, the court addresses
Act 21's impact on DNR's powers for the first time.
¶66 Regardless of the timing between Act 21 and this
court's decision in Lake Beulah, the court's pronouncements in
that case are contrary to the legislature's curtailment of
agency powers in Wis. Stat. § 227.10(2m), which abrogated that
case. It is the duty of this court "to say what the law is"
lest we "risk perpetuating erroneous declarations of the law."
Operton, 375 Wis. 2d 1, ¶73 (Rebecca Grassl Bradley, J.,
basic conditions of freedom.').").
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concurring). Instead of recognizing that the legislature now
prohibits agencies from enforcing "any standard, requirement, or
threshold" unless it is "explicitly required or explicitly
permitted by statute or rule" the majority doubles down on Lake
Beulah's pre-§ 227.10(2m) analysis, which sanctions agency
action so long as "[t]here is nothing in either Wis. Stat.
§§ 281.34 or 281.35 that prevents the DNR from considering the
environmental effects of proposed wells for which it is not
required to do so." Majority op., ¶18 (quoted source omitted).
This is the exact opposite of what § 227.10(2m) says. Instead
of respecting the legislature's decision to confine agency
action within the bounds of the legislature's explicit
requirements and permissions, the majority restores the status
quo ante Act 21. The majority rewrites the law to give agencies
a free hand to act unless the legislature explicitly prohibits
the specific agency action. Such judicial activism subverts the
will of the people expressed in the laws enacted by their
elected representatives.
¶67 The majority is quite transparent about its motives in
rewriting the law, explaining that denying "DNR the discretion
to undertake the review the DNR deems necessary" would preclude
DNR from "utiliz[ing] its expertise in determining how best to
protect the environment[.]" Majority op., ¶18 (quoted sources
omitted). In this stunning admission, the majority reveals the
policy preferences motivating its decision to allow anointed
"experts" to reign over the people as bureaucratic overlords,
unconstrained by the democratic safeguards the majority
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immobilizes in this decision. The majority's decision is
"antithetical to the Founders' vision of our constitutional
Republic, in which supreme power is held by the people through
their elected representatives." Koschkee, 387 Wis. 2d 552, ¶45
(Rebecca Grassl Bradley, J., concurring).
¶68 Preserving Lake Beulah as an accurate declaration of
law despite superseding legislative action overthrows the
legislature as the "supreme lawmaking body" of this state. City
of Milwaukee v. State, 193 Wis. 423, 448, 214 N.W. 820 (1927).
As we recognized nearly a century ago:
Where the Legislature has enacted statutes within the
proper field of legislation, and not violative of the
provisions of the federal and state Constitutions, its
edicts are supreme, and they cannot be interfered with
by the courts; and, where legal principles have been
laid down by the courts in the proper exercise of
their judicial functions, and have continued in force
for such a period as to create vested rights, such
principles are clothed with a force possessed by a
statutory enactment, and should be recognized and
applied until the lawmaking body sees fit either to
abrogate or modify them.
Id. at 428 (emphasis added). No one contends Wis. Stat.
§ 227.10(2m) violates our state or federal constitutions. If
anything, the statute represents at least a partial restoration
of the constitutional order. Section 227.10(2m) has the force
of law but the majority violates the constitutional separation
of powers by making this court a super-legislature, effectively
vetoing law because it interferes with the majority's
environmental policy preferences. The legislature's mandate in
§ 227.10(2m) precludes DNR from conducting an environmental
impact review on a proposed well unless it is "explicitly
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required or explicitly permitted by statute or by a rule[;]" a
mere "general duty" or only implied "discretion" fall short of
an explicit authorization.
¶69 The majority seems to suggest the public trust
doctrine provides independent authority for DNR to conduct
environmental impact reviews of the wells in this case, although
it also recognizes that "DNR's constitutional public-trust duty
stems from the legislature delegating to the DNR that obligation
via Wis. Stat. §§ 281.11 and 281.12." Majority op., ¶17.
Because the constitution does not mention DNR anywhere, the only
mechanism by which the legislature could delegate its public
trust duty to DNR would be statutory. Because neither § 281.11
nor § 281.12 explicitly require or permit DNR to exercise the
legislature's public trust duties, § 227.10(2m) precludes DNR
from exercising them regardless of how §§ 281.11 and 281.12 were
interpreted in the past.
¶70 The public trust doctrine developed from language in
Article IX, Section 1 of the Wisconsin Constitution, which
provides in relevant part:
The state shall have concurrent jurisdiction on all
rivers and lakes bordering on this state so far as
such rivers or lakes shall form a common boundary to
the state and any other state or territory now or
hereafter to be formed, and bounded by the same; and
the river Mississippi and the navigable waters leading
into the Mississippi and St. Lawrence, and the
carrying places between the same, shall be common
highways and forever free, as well to the inhabitants
of the state as to the citizens of the United States,
without any tax, impost or duty therefor.
Wis. Const. art. IX, § 1. Interpreting this language, this
court has held that "[t]he legislature has the primary authority
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to administer the public trust for the protection of the
public's rights, and to effectuate the purposes of the trust."
Hilton ex rel. Pages Homeowners' Ass'n v. DNR, 2006 WI 84, ¶19,
293 Wis. 2d 1, 717 N.W.2d 166 (emphasis added); see also State
v. Bleck, 114 Wis. 2d 454, 465, 338 N.W.2d 492 (1983) ("The
primary authority to administer this trust for the protection of
the public's rights rests with the legislature, which has the
power of regulation to effectuate the purposes of the trust.").
Accordingly, DNR possesses authority under the public trust
doctrine only to the extent "the legislature has delegated to
DNR the duty of enforcing the state's environmental laws."
Hilton, 293 Wis. 2d 1, ¶20. DNR does not hold any
constitutional authority; rather, its powers exist only insofar
as the legislature grants them to DNR.
¶71 By enacting Wis. Stat. § 227.10(2m), the legislature
limited its delegation of powers to DNR, which may conduct an
environmental impact review only if the legislature explicitly
requires or permits one. As explained, the legislature has not
done so, and the public trust doctrine confers no such authority
on DNR. As the Attorney General recognized, Act 21 "revert[ed]"
the public trust duties the legislature previously delegated to
DNR "back to the Legislature, which is responsible for making
rules and statutes necessary to protect the waters of the state.
The Legislature is free to grant the authority to DNR to impose
any conditions the Legislature finds necessary. However, the
DNR has only the level of public trust duty assigned to it by
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the Legislature, and no more." 2016 Wis. Op. Att'y Gen. 1, ¶53
(2016) (OAG-01-16).
¶72 A faithful reading of Wis. Stat. § 227.10(2m) leads to
the inescapable conclusion that the legislature abrogated Lake
Beulah and curtailed the broad grants of authority previously
delegated to agencies——including DNR. DNR has no explicit
authority to conduct an environmental impact review for any of
the eight high capacity wells at issue in this case because the
legislature has not explicitly required or permitted such
reviews. No statute or lawfully promulgated rule provides DNR
with any explicit authority to take this regulatory action. The
circuit court erred in vacating DNR's well approvals in order to
accommodate such reviews and the majority errs in upholding the
circuit court's mistake.
* * *
¶73 The people of Wisconsin constitutionally conferred
limited powers of governance across three (not four) branches of
government. Extending beyond the parties to this case, the
majority's decision undermines the sovereignty of the people and
disturbs the equilibrium of governmental power to the detriment
of the governed:
Frequently an issue comes before this court clad, so
to speak, in sheep's clothing: the potential of the
asserted principle to effect important change in the
equilibrium of power is not immediately evident, and
must be discerned by a careful and perceptive
analysis. But this wolf comes as a wolf.
Morrison, 487 U.S. at 699 (Scalia, J., dissenting). The
majority patently disregards the law, impermissibly shifting
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power from Wisconsin's citizens to unelected bureaucrats. The
people never gave this court any authority to recalibrate the
constitutional powers of the legislature vis-a-vis the
executive. While doing so may accomplish the environmental
protection agenda of the majority, its decision to ignore duly
enacted law wounds our democracy and renders the legislature
impotent to reclaim authority it imprudently delegated to the
administrative state.10 The majority's decision stands athwart
the liberty-preserving principle that the legislature may modify
or altogether terminate its delegation of power to
administrative agencies, as subordinate creatures of the
legislature.
¶74 "Administrative agencies are created by the
legislature. The legislature has the ability to withdraw an
agency's power, dictate how any agency is exercised, and
extinguish the agency's power entirely." Palm, 391 Wis. 2d 497,
¶189 (Kelly, J., concurring) (citing Wis. Stat. § 15.02 and
Schmidt, 39 Wis. 2d at 57). Through Act 21, the legislature
both withdrew a portion of agency power and dictated how that
power is to be exercised, but the majority overrides those
See Koschkee, 387 Wis. 2d 552, ¶45 (Rebecca Grassl
10
Bradley, J., concurring) ("Transferring to administrative
agencies the core legislative duty of making laws abnegates
powers the people gave their elected representatives. The
consolidation of power within executive branch agencies 'often
leaves Americans at the[ir] mercy' endowing agencies with 'a
nearly freestanding coercive power' and '[t]he agencies thereby
become rulers of a sort unfamiliar in a republic, and the people
must jump at their commands.' Phillip Hamburger, Is
Administrative Law Unlawful? 335 (2014).").
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exclusively legislative choices. "It is not too much to say
that we risk losing our democracy unless we can gain control of
the agencies of the administrative state." Wallison, supra, at
ix. Defying the law of this state, the majority nullifies the
legislature's chosen mechanism for taking back some control,
leaving the legislature with no apparent alternative but to
repeal the statutes by which it has delegated its constitutional
authority to make law, thereby extinguishing agency power
altogether. Whether a majority of this court would respect that
legislative act, or instead trigger a constitutional crisis,
must await the legislature's response to this calamitous
decision. I dissent.
¶75 I am authorized to state that Justice PATIENCE DRAKE
ROGGENSACK joins this dissent.
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