¶ 1 N. PATRICK CROOKS, J.
Jim Hilton, acting on behalf of the Pages Homeowners' Association (Association) appeals an unpublished decision of the court of appeals, reversing the decision of the circuit court which had modified the order of the Administrative Law Judge (ALJ)
¶ 2 We affirm the decision of the court of appeals. We hold that because the DNR did not appeal the decision of the ALJ, and adopted by rule the decision as its own, the decision is entitled to great weight deference, because it is a decision within the DNR's area of expertise and satisfies the other necessary criteria. Furthermore, the decision of the DNR was reasonable, consistent with applicable law, and supported by substantial evidence in the record. The decision of the DNR was neither arbitrary nor capricious. Finally, because the issue of whether the reduction in the number of boat slips allowed on the Association pier is an unconstitutional taking is not properly before this court, we decline to address it.
¶ 3 The relevant facts are not in dispute. Nelson Page (Page) owned a 77-foot wide riparian lot on Green Lake, as well as nearby nonriparian land. In 1958 and again in 1961, Page subdivided, platted, and recorded the nonriparian land, developed a subdivision, and sold the lots. At the same time, Page also conveyed various undivided 1/38 interests in the riparian lot and a common pier to those buyers who purchased and built on the nonriparian land. The Association, an unincorporated entity, was established in 1966. Association membership consists of those persons who each own the 1/38 interest in the riparian lot.
¶ 4 Since 1966, the Association has placed an unpermitted pier, with various
¶ 5 The Association first contacted the DNR regarding its pier in 1993, at which point Association representatives were told that although the pier's size and density were both excessive under DNR "reasonable use" guidance, the DNR would not commence an enforcement action unless a complaint was received.
¶ 6 In 1997, the DNR received a complaint about possible riparian zone conflicts involving the Association's pier. When the conservation warden inspected the site, an Association member informed him that the Association was interested in increasing the number of slips on the pier above the existing 22.
¶ 7 In 1998, the Association asked the DNR if it needed a permit to replace its existing pier with two piers containing 14 slips each. In response to that proposal, and repeatedly over the next four years, DNR staff advised the Association of the DNR's position: that the existing pier and any proposed expansion exceeded Wis. Stat. § 30.13 (1997-98) standards to maintain a pier without a permit; that the Association must apply for a permit if it wished to maintain the current pier or any pier exceeding the § 30.13 (1997-98) standards; if the Association did not reduce the pier to meet the standards, or submit a permit application, the DNR would seek an abatement hearing under § 30.03 (1997-98).
¶ 8 In 1998 and in 2000, the DNR received further complaints about the pier. By June 2001, having still not received a pier permit application, pursuant to its enforcement powers under Wis. Stat. § 30.03 (2001-02),
¶ 9 In May 2002, all Association members but one submitted an application for a pier permit. The abstaining member opposed the application. Because the Association is an unincorporated entity, it does not have the authority to act on behalf of its members unless the members are unanimous. The DNR's policy is that it does not have a complete application for which it can grant a permit unless all owners apply.
¶ 10 The abatement hearing began on August 27, 2002, and testimony ensued for three days. Administrative Law Judge Jeffrey D. Boldt issued his decision in the abatement action on November 22, 2002, and determined that the existing pier violated public rights in exceeding the "reasonable use" threshold, negatively impacted the aquatic habitat, and created a safety hazard. After considering both the rights of riparians and the rights of the public, ALJ Boldt determined that the Association should be limited to a 226-foot pier with no more than 11 slips. Eleven slips also happened to be the number he had concluded represented the "historic use" of the pier.
¶ 11 On December 17, 2002, the Association petitioned for judicial review in the circuit court of the DNR decision. The circuit court found that the DNR's determination of the historic use of the pier at 11 slips was arbitrary, without rational basis, and without sufficient basis in the record. The circuit court determined that a better historic use date was 1993, when the antipyramiding ordinance went into effect. At that time there were 17 slips on the pier. Therefore, the circuit court set the number of allowable slips at 17. The DNR appealed.
¶ 12 The court of appeals reversed the circuit court. In an order dated August 18, 2004, the court of appeals determined that the circuit court had applied an improper standard of review and substituted its judgment for the decision adopted by the DNR. The court of appeals, therefore, reinstated that determination. The Association appealed, and this court granted its petition for review.
¶ 13 The parties disagree as to the appropriate standard of review a court should apply to an ALJ determination that has been expressly adopted by the DNR. The Association suggests that the determinations of the ALJ should be reviewed de novo, because the DNR failed to employ its expertise in evaluating the ALJ decision. The DNR maintains that the decision is entitled to great weight deference. We agree with the DNR.
¶ 14 In this case, we review the ALJ's determination as a decision of the DNR. See Borsellino v. DNR, 2000 WI App 27, ¶ 5, 232 Wis.2d 430, 606 N.W.2d 255 (citing Sea View Estates Beach Club, Inc. v. DNR, 223 Wis.2d 138, 146-47, 588 N.W.2d 667 (Ct.App.1998)). We do so because "the DNR did not petition for judicial review of the ALJ's decision, and adopted the decision as its own pursuant to § 227.46(3)(a) Stats.,
¶ 15 When an appeal is taken from a circuit court order reviewing an agency decision, we review the decision of the agency, not the circuit court. Clean Wisconsin v. Pub. Serv. Comm'n, 2005 WI 93, ¶ 36, 282 Wis.2d 250, 700 N.W.2d 768. The DNR's decision consisted of both findings of fact and conclusions of law. "We apply different standards of review to agency conclusions of law and agency findings of fact." Borsellino, 232 Wis.2d 430, ¶ 6, 606 N.W.2d 255 (citation omitted). Great weight deference is applied to an agency's legal conclusions when:
Clean Wisconsin, 282 Wis.2d 250, ¶ 39, 700 N.W.2d 768 (citations omitted). Further "the correct test is whether the agency `has experience in interpreting [the] particular statutory scheme' at issue." Id., ¶ 40, 700 N.W.2d 768.
¶ 16 In reviewing agency findings of fact, we apply the "`substantial evidence' standard." Borsellino, 232 Wis.2d 430, ¶ 7, 606 N.W.2d 255 (citation omitted). Wisconsin Stat. § 227.57(6) requires the court to set aside or remand an agency action "if the agency's decision depends on any findings of fact not supported by substantial evidence in the record." Borsellino, 232 Wis.2d 430, ¶ 7, 606 N.W.2d 255. "Substantial evidence does not mean a preponderance of the evidence." Madison Gas & Elec. Co. v. Pub. Serv. Comm'n, 109 Wis.2d 127, 133, 325 N.W.2d 339 (1982). Instead, the test is whether, after considering all the evidence of record, reasonable minds could arrive at the same conclusion. Id.
¶ 17 Because we conclude this is a decision of the DNR, and that the requirements set forth in Sea View and Roehl Transportation v. Div. of Hearings & Appeals, 213 Wis.2d 452, 458, 570 N.W.2d 864 (Ct.App.1997) are met, the DNR's legal conclusions should be granted great weight deference, and the factual findings should be evaluated using the substantial evidence test. Under great weight deference, we will sustain an agency's interpretation, if reasonable, even if an equally reasonable or more reasonable interpretation is offered. Therefore, we will affirm the decision of the DNR if it conforms to applicable law and is supported by substantial evidence from which reasonable minds could arrive at the same conclusion. See Hixon v. Pub. Serv. Comm'n, 32 Wis.2d 608, 615-16, 146 N.W.2d 577 (1966).
¶ 18 Our first inquiry is to examine applicable law to determine whether the
¶ 19 The legislature has the primary authority to administer the public trust for the protection of the public's rights, and to effectuate the purposes of the trust. See State v. Bleck, 114 Wis.2d 454, 465, 338 N.W.2d 492 (1983). Even though the beds of navigable waters are held in trust, "the legislature may authorize limited encroachments upon the beds of such waters where the public interest will be served." Hixon, 32 Wis.2d at 618, 146 N.W.2d 577 (citing State v. Pub. Serv. Comm'n, 275 Wis. 112, 117, 81 N.W.2d 71 (1957)). Furthermore, under the common law, riparian rights must be reasonably exercised. Borsellino, 232 Wis.2d 430, ¶ 21, 606 N.W.2d 255 (citing Sterlingworth Condo. Ass'n v. DNR, 205 Wis.2d 710, 731, 556 N.W.2d 791 (Ct.App.1996)).
¶ 20 The legislature has delegated to the DNR the duty of enforcing the state's environmental laws. Sea View, 223 Wis.2d at 149, 588 N.W.2d 667 (citing Barnes v. DNR, 178 Wis.2d 290, 304, 506 N.W.2d 155 (1993)). Particularly relevant to this case, the legislature "has charged the DNR with regulating piers under §§ 30.12 and 30.13, and the DNR has technical expertise in regulating piers and waterways." Borsellino, 232 Wis.2d 430, ¶ 6, 606 N.W.2d 255 (citation omitted).
¶ 21 There are three policy factors identified by the legislature that the DNR must balance in enforcing environmental laws related to navigable waters: "the desire to preserve the natural beauty of our navigable waters, to obtain the fullest public use of such waters, . . . and to provide for the convenience of riparian owners."
¶ 22 Under existing statutory guidelines, a riparian owner with a lot including 77 feet of shoreline would be entitled by statutory presumption to maintain a pier, without a permit:
¶ 23 Because we have concluded that the DNR's decision to limit the number of permissible slips was consistent with applicable law, we next turn to the DNR's specific findings of fact and conclusions of law. We must determine whether the decision is reasonable and is supported by substantial evidence in the record.
¶ 24 There are four elements of the decision, in particular, that the Association challenges: that the pier directly and cumulatively adversely impacts the aquatic habitat, that the pier presents a safety hazard, that the determination of 11 slips as the "historical use" of the pier was reasonable, and that a 226-foot pier with 11 slips is the most that can reasonably be maintained, without a permit. There is a dispute as to which elements of the decision are findings of fact versus conclusions of law.
¶ 25 The "substantial evidence" rule affords significant deference to an agency's factual findings. "The agency's decision may be set aside by a reviewing court only when, upon an examination of the entire record, the evidence, including the inferences therefrom, is such that a reasonable person, acting reasonably, could not have reached the decision from the evidence and its inferences." Sterlingworth, 205 Wis.2d at 727, 556 N.W.2d 791 (citing Hamilton v. DILHR, 94 Wis.2d 611, 618, 288 N.W.2d 857 (1980)). Additionally, "the weight and credibility of the evidence are for the agency, not the reviewing court, to determine." Id. (citing Bucyrus-Erie Co. v. DILHR, 90 Wis.2d 408, 418, 280 N.W.2d 142(1979)).
¶ 26 First, we will examine whether there is sufficient evidence in the record to support the DNR's finding that the Association pier, in its current form, has direct and cumulative adverse impacts to the wildlife and fish habitat in Green Lake. The area in which the Association pier is located is part of the littoral zone
¶ 28 Department of Natural Resources fisheries biologist, David Bartz, testified that the pier had a detrimental impact on the fish in the area. He stated that there was no question that fish habitat in the area would improve if the pier and boats in the area were removed. Finally, the ALJ heard testimony from DNR wildlife biologist James Holzwart that, to a reasonable degree of scientific certainty, allowing the pier to remain as it is will continue to have a degrading effect on the aquatic habitat. We are satisfied that there is sufficient evidence in the record to support a reasonable conclusion that aquatic life was and is harmed by the existing pier. As the court in Sterlingworth noted:
Sterlingworth, 205 Wis.2d at 721, 556 N.W.2d 791.
¶ 29 Next, we turn to the DNR's finding that the existing pier creates a safety hazard due to congestion and impaired visibility. Warden Alsteen testified that the west end of Green Lake, where the Association pier is located, is a heavy use, high boat traffic area. He expressed concerns for safety posed by the fact that the Association pier extends beyond the line of navigation, and is one of the longer privately-owned piers on the western side of Green Lake. Warden Alsteen also expressed concern for safety of swimmers and boaters as a result of the design and congestion of the slips on the Association's pier, which causes limited visibility for boat operations.
¶ 31 The ALJ, uniquely in a position to weigh the credibility of the testimony of the witnesses, determined that the greater weight of the credible evidence demonstrated that the existing pier constitutes a hazard to navigation because of its length, configuration, and the large number of boats navigating in a relatively narrow access area. There is substantial evidence in the record to support the finding that the Association pier creates a safety hazard.
¶ 32 Next we turn to the conclusions of law, to which we give great weight deference. Under great weight deference, if the conclusions of law are reasonable, are based upon substantial evidence in the record, and are consistent with the applicable law, we will uphold the decision of the agency.
¶ 33 The Association first urges that the DNR's determination that 11 slips constituted the historic use of the pier was not reasonable. In contrast to the DNR's conclusion, the Association maintains that the circuit court's determination of 17 slips as the proper historic use number, dating to the antipyramiding ordinance, is reasonably supported by the evidence.
¶ 34 The Association's position is based upon the assertion that the ALJ ignored the legal methodology for establishing historic use with reference to actual events, as articulated in Sea View, and what it claims is the legal requirement enunciated in Sterlingworth to consider similar pier usages on Green Lake. The Association misinterprets the holdings in those cases.
¶ 35 Sea View and Sterlingworth suggest that historical use, however it is determined, is one of the factors that the ALJ may weigh in balancing the private rights and public interests at stake in riparian rights/public trust doctrine cases like this one. See Sea View, 223 Wis.2d at 155-56, 588 N.W.2d 667; Sterlingworth, 205 Wis.2d at 733, 556 N.W.2d 791. The cases do not establish any set definition of historical use or any hard and fast methodology for determining it. The court of appeals in Sea View and Sterlingworth did not even use the phrase "historic use" (or "historical use"), let alone define it.
¶ 36 To the extent that the Association is suggesting that historic use must be based on something like passage of an ordinance or DNR contact, that suggestion is without solid underpinnings in the law, and is not required by public policy considerations. In fact, in Borsellino, a case decided shortly after Sea View and Sterlingworth, the court of appeals explained that, under Sea View, "an ALJ may review local ordinances in making a permit determination under § 30.12(2), Stats., but an ALJ is not required to do so." Borsellino, 232 Wis.2d 430, ¶ 10, 606 N.W.2d 255 (citation omitted).
¶ 37 The DNR found that the evidence showed the following maximum number of members and/or slips in the following years:
Years: Numbers: 1966-68 5-6 1971 8 1972-74 10 1974-76 11 1978 15 1981 17 1988 19 1990 22 1991 19 1994-95 16 2000 21 Present 22
Considering these facts, the ALJ made a determination to use 11 slips as the "historic use" factor, in that "no more than 11 slips were placed at the site for the first 10 years that the Association placed a pier." Although he acknowledged that "the number of slips has increased beyond 11 after 1976," he did not determine that the increase reflected the "`historic use' but rather the Association's continuing effort to pack as many boats as possible into its small riparian zone to accommodate Association members."
¶ 38 The Association and the circuit court found this conclusion to be unreasonable and arbitrary. We disagree. While the circuit court's conclusions were reasonable, arguably even more reasonable than that of the DNR, the standard of review requires us to decide differently. Certainly, the DNR could have reasonably selected a different number of slips as determinative of the historic use factor, based on the facts of record, but the DNR did not. The Association's argument is apparently that historic use had to be considered to be the high end of the various levels of use through the last 40 years, but that argument is no more reasonable or accurate than what the DNR did in light of the evidence. It would not have been unreasonable, perhaps, if the DNR had selected the original number of slips as the historic use. It must be kept in mind that this is not a case where the same number of slips had remained constant over a long period of time. Rather, it is a case where the number of slips started out very small and slowly increased over four decades, sometimes even decreasing in certain years. Thus, the DNR's decision to choose some sort of midpoint as historic use was both supported by substantial evidence in the record and was a reasonable determination.
¶ 39 We now turn to the DNR's conclusion that an unpermitted reasonable use for the Association is a 226-foot pier with 11 boat slips, which would adequately balance riparian rights with the public interest.
¶ 40 In Sterlingworth, the court of appeals noted that the common law requires "reasonable use" by riparian owners to be determined by "`the extent and capacity of the [lake], the uses to which it has been put, and the rights that other riparian owners on the same [lake] also have.'" Sterlingworth, 205 Wis.2d at 731, 556 N.W.2d 791, (citing Apfelbacher v. State, 167 Wis. 233, 239, 167 N.W. 244 (1918)). Such an inquiry is a highly fact-specific
¶ 41 In this case, the decision of the DNR that the limit of "reasonable use" by the Association was a 226-foot, 11 slip pier was reasonable, consistent with applicable law, and supported by substantial evidence in the record. The Association was entitled to no more than reasonable use, without a permit, for its pier. Riparian rights have always been qualified by reasonable use and subordinate to public rights. It is evident from the record that the ALJ considered the convenience of riparians, environmental impacts, natural scenic beauty, historic use, safety, the statutory presumption in Wis. Stat. § 30.12(1g)(f)(2003-04), the absence of a permit, and the DNR's delayed enforcement. While not the only reasonable conclusion, the ALJ weighed all of the relevant factors in light of the public trust doctrine and arrived at a conclusion that is reasonable and supported by substantial evidence in the record. Therefore, applying great weight deference, we affirm the ALJ's decision and, thus, the decision of the DNR.
¶ 42 Finally, we turn to the Association's argument that the abatement of the present number of boat slips constitutes an unconstitutional taking. Because neither party appealed that portion of the circuit court's decision, the issue is not properly before this court. We decline, therefore, to address it.
¶ 43 We hold that because the DNR did not appeal the decision of the ALJ, and adopted by rule the decision as its own, the determination is entitled to great weight deference, since it is a decision within the DNR's area of expertise and satisfies the other necessary criteria. Furthermore, the decision of the DNR was reasonable and supported by substantial evidence in the record and was consistent with applicable law. The decision of the DNR was neither arbitrary nor capricious. Finally, we determine that the issue of whether the reduction in the number of boat slips allowed on the Association pier is an unconstitutional taking is not properly before this court. We decline to address it further.
The decision of the court of appeals is affirmed.
¶ 44 SHIRLEY S. ABRAHAMSON, C.J. (concurring).
I join the majority opinion.
¶ 45 I write separately to point out that the standard of review of and deference to a decision of the Division of Hearings and Appeals, discussed by the majority opinion at ¶¶ 13-17, was also raised in Racine Harley-Davidson, Inc. v. State, Division of Hearings & Appeals, 2006 WI 86, ___ Wis.2d ___, 717 N.W.2d 184.
¶ 46 Racine Harley-Davidson and the present case were both argued in November 2005. In Racine Harley-Davidson the court requested supplemental briefing of the issue of the standard of review. Part I of the Racine Harley-Davidson opinion, ___ Wis.2d ___, ¶¶ 8-58, discusses in detail the standard of review of (including deference to) decisions issued by the Division of Hearings and Appeals, including the cases upon which the present decision relies.
¶ 47 DAVID T. PROSSER, J. (concurring).
This case involves much more than the number of boat slips on a long-established pier in Green Lake County. This case epitomizes the growth of agency power, the decline of judicial power, and the tenuous
STANDARD OF REVIEW
¶ 48 In this case, the standard of review is prescribed by Wis. Stat. § 227.57(2) (2003-04):
¶ 49 The court may review the agency's procedure, its interpretation of law, and its determinations of fact. Wis. Stat. § 227.57(3).
¶ 50 In review, however, the court must grant great weight deference to an agency's interpretation of law in situations where (1) the agency is charged by the legislature with the duty of administering the statute at issue; (2) the agency determination is one of long standing; (3) the agency employed its expertise or specialized knowledge in forming its interpretation; and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. See majority op., ¶ 15; UFE, Inc. v. LIRC, 201 Wis.2d 274, 284, 548 N.W.2d 57 (1996) (quoting Harnischfeger Corp. v. LIRC, 196 Wis.2d 650, 660, 539 N.W.2d 98 (1995)); Sea View Estates Beach Club, Inc. v. DNR, 223 Wis.2d 138, 148-49, 588 N.W.2d 667 (Ct.App.1998). "If the foregoing criteria are met, we will sustain the agency's interpretation even if an equally or more reasonable interpretation is offered." Sea View, 223 Wis.2d at 149, 588 N.W.2d 667 (citing Roehl Transp., Inc. v. Wis. Div. of Hearings & Appeals, 213 Wis.2d 452, 459, 570 N.W.2d 864 (Ct.App.1997)).
¶ 51 Once an agency's legal interpretation is entitled to great weight deference, it will be set aside or modified only if the court "finds that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action," Wis. Stat. § 227.57(5), or if the agency's interpretation violates a constitutional provision. Wis. Stat. § 227.57(8).
¶ 52 Moving to the facts, courts apply a substantial evidence standard in reviewing an agency's findings of fact. Majority op., ¶ 16. See Wis. Stat. § 227.57(6) ("The court shall ... set aside agency action ... if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record"). Substantial evidence "is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Sterlingworth Condo. Ass'n, Inc. v. DNR, 205 Wis.2d 710, 727, 556 N.W.2d 791 (Ct. App.1996) (emphasis added). It does not mean a preponderance of the evidence. Madison Gas & Elec. Co. v. Pub. Serv. Comm'n, 109 Wis.2d 127, 133, 325 N.W.2d 339 (1982). The court may set aside the agency's decision "only when, upon an examination of the entire record, the evidence, including the inferences therefrom, is such that a reasonable person, acting
COMMENTARY ON JUDICIAL REVIEW OF AGENCY DECISIONS
¶ 53 These standards of review frequently put reviewing courts in a straitjacket and are sometimes at odds with the role of courts.
¶ 54 First, the supreme court is the state's preeminent law-developing court. When the supreme court grants great weight deference to an agency's interpretation of law, however, it ceases to be "preeminent." This is contrary to the fundamental role of the judiciary as articulated in Marbury v. Madison: "It is emphatically the province and duty of the judicial department to say what the law is." Marbury, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). When the Wisconsin Supreme Court elects to hear only ten percent of the cases presented to it for review, the public expects and deserves that the court "take[ ] . . . case[s] to decide the substantive issues presented [and provide meaningful analysis and guidance on important issues], not to avoid deciding them by judicially created avoidance doctrines." See Patience D. Roggensack, Elected to Decide: Is the Decision-Avoidance Doctrine of Great Weight Deference Appropriate in this Court of Last Resort?, 89 Marq. L.Rev. 541, 541, 544 (2006).
¶ 55 In these situations, it is not enough for this court to perceive a more reasonable interpretation of a statute than the agency. When deference is invoked,
Roggensack, supra, at 546. The supreme court and other Wisconsin courts are expected to rationalize and rubberstamp the agency's decision unless the agency's legal interpretation is plainly wrong. The result is that many litigants have lost their right to a decision by an independent judiciary. In fact, the public's right to meaningful judicial determinations of applicable law steadily contracts as the scope of agency regulation expands. In essence, litigants lose the right to meaningful appellate review, which involves:
Roggensack, supra, at 542.
¶ 56 Second, judicial deference to administrative decisions is greater than it used to be. In reviewing a decision of the Wisconsin Tax Appeals Commission in 1977, this court stated:
¶ 57 In State v. Department of Industry, Labor & Human Relations, 101 Wis.2d 396, 402, 304 N.W.2d 758 (1981), the court repeated the proposition that when the facts before an agency are not in dispute, the court is "not bound by the [agency's] determination of a question of law."
¶ 58 In these older cases,
¶ 59 Third, agencies lack the same degree of political accountability as elected office holders, yet agency officials are often given substantial latitude to make law. They then turn to the courts for enforcement. When agency decisions are given great weight deference, they are expected to be upheld uncritically by elected judges. To illustrate the point, the critical statutes in this case are Wis. Stat. §§ 30.12(2) and 30.13(1) (2001-02). These broadly worded statutes include key phrases such as "detrimental to the public interest," "interfere with public rights in navigable waters," and "interfere with rights of other riparian proprietors." It is very difficult for a court to conclude that an agency's interpretation of the broad language in these statutes is erroneous or lacks a rational basis.
¶ 60 To illustrate further, in Claflin v. DNR, 58 Wis.2d 182, 206 N.W.2d 392 (1973), a property owner applied for a permit to build a boathouse. A hearing examiner recommended the permit. The Public Service Commission (predecessor to the DNR on such issues) denied the permit on a 2-to-1 vote. A circuit court
¶ 61 It has long been understood that beauty is in the eye of the beholder. Under the law, however, the agency's eye for beauty is entitled to great weight deference. This brings to mind the insightful observation that: "Expert discretion is the lifeblood of the administrative process, but `unless we make the requirements for administrative action strict and demanding, expertise ... can became a monster which rules with no practical limits on its discretion.'" Transp. Oil, Inc. v. Cummings, 54 Wis.2d 256, 266, 195 N.W.2d 649 (1972) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 167, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)).
¶ 62 Fourth, courts defer to an agency's decision in large part because of the presumed experience and expertise of the agency. This does not resolve the problem of "agencies" in conflict with each other. In this case, the "agency" entitled to great weight deference is deemed to be the Department of Natural Resources, not because the DNR actually made the decision at issue, but because the DNR automatically adopted the decision of the ALJ when it did not seek judicial review. See Wis. Admin. Code § NR 2.155(1) (Sept., 2004). The plain truth is, however, that when a rule turns an agency's inaction into the agency's "final decision," the affected litigant may never know whether the agency actually employed its expertise or not. The agency certainly could have agonized over the decision not to seek judicial review, but it could also have ignored the ALJ's decision or simply missed a filing deadline.
¶ 63 Great weight deference is given to the agency's decision, even though the decision may be sharply at odds with the position the agency took before the ALJ. In this matter the DNR's position was given no deference by the ALJ at the abatement hearing. Moreover, if the DNR had decided to seek judicial review, it is not clear which "agency"—the DNR or the Division of Hearings and Appeals (DHA)—would have been given deference, or whether any agency would have been given deference. If the DNR and the ALJ in the DHA had disagreed about the proper interpretation of the law, there would be little reason to believe that either interpretation would provide uniformity and consistency in the application of the statute—a prerequisite to great weight deference.
¶ 64 Fifth, uniformity and consistency may not be achievable. Compare the following cases:
¶ 65 The seamless "consistency" in these cases is not self-evident. Moreover, the statutory law can change over time,
¶ 66 Finally, the agency has been given enormous latitude in finding facts. Finding facts involves more than determining the existence of A, B, and C. Finding facts involves the authority to select Fact B for emphasis, and deemphasize Fact C as unimportant. In this case, the majority joins the "agency" in emphasizing the value of
¶ 67 From time to time courts can overstep their bounds, but when they are at their best, courts serve as the great protector of people's rights to life, liberty, and property. The legislature and the courts have worked in tandem to dilute the role of the courts in protecting substantial rights and interests in agency cases. Property rights become tenuous when they are subject to largely unreviewable ad hoc decision-making—even by well-qualified, dedicated administrative officials.
¶ 68 I respectfully concur with the hope that this commentary will help to generate discussion of current law.
¶ 69 I am authorized to state that Justices JON P. WILCOX and PATIENCE DRAKE ROGGENSACK join this opinion.
Ordinance # 146-76, § 4.8 RC Recreation District (c)(19) (2003)(emphasis in original).
Hixon, 32 Wis.2d at 631-32, 146 N.W.2d 577.