Philip Myers v. Wisconsin Department of Natural Resources

2019 WI 5

SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1517
COMPLETE TITLE: Terrie Myers and Philip Myers,
Petitioners-Appellants-Cross-
Respondents-Petitioners,
v.
Wisconsin Department of Natural Resources,
Respondent-Respondent-Cross-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 378 Wis. 2d 220, 904 N.W.2d 144
(2017 – unpublished)

OPINION FILED: January 18, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 25, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ashland
JUDGE: Robert E. Eaton

JUSTICES:
CONCURRED:
DISSENTED: A. W. Bradley, J. dissents (opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

For the petitioners-appellants-cross-respondents-
petitioners, there were briefs filed and an oral argument by
Matthew A. Biegert and Doar, Drill & Skow, S.C., New Richmond.

For the respondent-respondent-cross-appellant, there was a
brief filed and an oral argument by Gabe Johnson-Karp, assistant
attorney general, with whom on the brief was Brad D. Schimel,
attorney general.
 2019 WI 5
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1517
(L.C. No. 2015CV36)

STATE OF WISCONSIN : IN SUPREME COURT

Terrie Myers and Philip Myers,

Petitioners-Appellants-
Cross-Respondents-Petitioners,
FILED
v. JAN 18, 2019

Wisconsin Department of Natural Resources, Sheila T. Reiff
Clerk of Supreme Court

Respondent-Respondent-
Cross-Appellant.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 REBECCA FRANK DALLET, J. Philip and Terrie Myers

seek review of an unpublished per curiam decision of the court

of appeals1 affirming in part and reversing in part the circuit

court.2 The Myers seek review of the Wisconsin Department of

Natural Resources' (DNR) unilateral amendment to their pier

permit.

1
Myers v. DNR, No. 2016AP1517, unpublished slip op. (Wis.
Ct. App. Aug. 29, 2017).
2
The Honorable Robert E. Eaton of Ashland County Circuit
Court presided.
 No. 2016AP1517

¶2 In 2001, the Myers were granted a permit by the DNR

and built a pier at their waterfront property on Lake Superior.

In 2012 and 2013, the DNR received complaints from a neighboring

property owner about the Myers' pier. The DNR conducted an

investigation and requested that the Myers substantially modify

their pier. The Myers declined to make the DNR's proposed

changes. The DNR then issued a "Notice of Pending Amendment,"

held a public informational hearing, and ultimately issued a

formal permit amendment requiring the Myers to significantly

change their pier in one of two ways.

¶3 The Myers declined to comply with the DNR's permit

amendment and instead filed a petition for Wis. Stat. ch. 227

(2015-16)3 judicial review in the Ashland County Circuit Court.

The circuit court denied the Myers' petition, finding that the

DNR had the authority to issue an amendment to the Myers' pier

permit. The circuit court then remanded the case to the DNR,

finding that more fact-finding was needed as to the

applicability of several statutory exemptions which could bar
the DNR's action. Both parties appealed the circuit court's

decision.

¶4 The court of appeals affirmed the circuit court's

conclusion that the DNR had the authority to issue the Myers'

permit amendment. The court of appeals reversed the circuit

3
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.

2
 No. 2016AP1517

court as to the statutory exemptions, concluding as a matter of

law that the statutory exemptions did not apply.

¶5 On petition to this court, the Myers seek review of

three issues: (1) whether the DNR had the authority to amend

their permit; (2) whether two exemptions in Wis. Stat.

§ 30.12(1k) barred the DNR's actions; and (3) whether the court

of appeals could rely on "implicit findings" made by the DNR at

a public informational hearing to conclude that the statutory

exemptions in § 30.12(1k) did not apply to the Myers' pier.

¶6 We conclude that the DNR did not have the authority to

unilaterally amend the Myers' permit. We therefore reverse the

decision of the court of appeals. Because the DNR did not have

the authority to amend the Myers' permit, we need not reach the

issues related to the application of the statutory exemptions

set forth in Wis. Stat. § 30.12(1k).

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶7 The Myers own waterfront property on Madeline Island

on Lake Superior. In December 1999, the Myers filed an
application, pursuant to Wis. Stat. § 30.12, to construct a

rock-filled pier next to the remnants of a dock that had been

built on their property in the 1930s. The DNR received several

objections to the Myers' application. The objectors were

concerned that the proposed pier would result in beach erosion

and other shoreline changes related to "littoral drift," the

process of moving sediment along the shore.

¶8 In June 2001, the DNR held a contested hearing on the
Myers' permit application. On July 23, 2001, an administrative
3
 No. 2016AP1517

law judge (ALJ) granted the Myers "a permit under Wis. Stat.

§ 30.12 for the construction of a structure." The permit

granted the Myers permission to construct a pier consisting of

"rock-filled cribs 10 feet in width extending 70 feet waterward

from an existing 16-foot crib." The pier design also included a

14-foot L-extension with a 12-foot "flow-through opening" that

would allow water and sediment to flow underneath and through

the structure. The ALJ concluded that it was "unlikely that

there [would] be detrimental impacts relating to shoreline

alterations." However, the ALJ found that it was not always

possible to predict the impact of a particular structure so he

included the following language in the Myers' permit: "[t]he

authority herein granted can be amended or rescinded if the

structure becomes a material obstruction to navigation or

becomes detrimental to the public interest" ("Condition 1").

The ALJ explained that Condition 1 would be "protective of

unexpected impacts on neighboring properties relating to sand

accumulation or beach starvation."
¶9 The Myers completed construction of their pier in

October 2001 in accordance with the specifications set forth in

the permit. In 2012 and 2013, the DNR received complaints from

a neighboring riparian property owner who alleged that there was

4
 No. 2016AP1517

shoreline erosion and a loss of riparian property4 due to the

Myers' pier.

¶10 As a result of these complaints, the DNR conducted an

investigation and consulted with a coastal engineer, Gene Clark.

Clark visited the Myers' property and wrote a report, detailing

his opinion as to the effects of the Myers' pier. Clark

ultimately concluded that because of "complexity of the mix of

older and newer structures," as well as the fact that some

littoral material "existed with just the older structures in

place several decades ago," it was "extremely difficult to

estimate how much if any additional littoral material trapping

is occurring due only to the [Myers'] newer pier structures."

The DNR sent the Myers a letter in July 2013, informing them

that their pier was not in compliance with the 2001 permit. The

DNR informed the Myers that the flow-through opening was not

functioning as intended. Further, the DNR required the Myers to

remove the two 24-foot cribs and replace the "bridge" between

the crib and the L with a different system that allowed for the
free movement of water and sediment. The Myers declined to

institute the DNR's proposed changes.5

4
Riparian rights are "special rights to make use of water
in a waterway adjoining [an] owner's property." Movrich v.
Lobermeier, 2018 WI 9, ¶22, 379 Wis. 2d 269, 905 N.W.2d 807
(citation omitted).
5
Shortly thereafter, the Myers filed a petition for
administrative review of the DNR's July 2013 letter. However,
the DNR denied the request for review on the ground that no
final agency action had taken place.

5
 No. 2016AP1517

¶11 In November 2013, the DNR issued a Class I "Notice of

Pending Amendment" indicating that it proposed to amend the

Myers' 2001 permit to require expansion of the flow-through

opening from 12 to 60 feet. The notice requested public comment

on the proposed amendment. On January 7, 2014, the DNR held a

public informational hearing on the amendment. An engineer

testified in support of the Myers at the public informational

hearing, asserting that the amendment was not supported by the

site observations or any relevant technical evaluation.

¶12 On April 21, 2015, 14 years after the original permit

was issued, and 15 months after the public hearing, the DNR

issued an amendment which required the Myers to modify their

pier in one of two ways. The DNR gave the Myers the following

options: (1) remove two waterward cribs on the main stem of the

pier to expand the flow-through opening from 12 to 60 feet; or

(2) provide the DNR with certified engineering plans that depict

an alternative opening to allow for the free movement of water

and sediment. The DNR asserted that it had authority under Wis.
Stat. § 30.12(3m) to issue this permit amendment. The DNR gave

the Myers 30 days to decide on a modification option and 18

months to complete that modification.

6
 No. 2016AP1517

¶13 The Myers filed a petition for Wis. Stat. ch. 227

judicial review in the Ashland County Circuit Court.6 In that

action, the Myers asserted that: (1) the DNR lacked authority

to apply for and grant itself an amendment; (2) their pier was

exempt from permit requirements, pursuant to Wis. Stat.

§ 30.12(1k)(b); (3) their pier was exempt from enforcement

actions, pursuant to § 30.12(1k)(cm); and (4) the evidence did

not support the DNR's decision to amend their permit.

¶14 The circuit court rejected the Myers' claim that the

DNR lacked the authority to amend their 2001 permit. However,

the circuit court remanded the case to the DNR for additional

factual development as to whether the exemptions in Wis. Stat.

§ 30.12(1k) applied to the Myers' pier. The Myers appealed the

circuit court's decision. The DNR cross-appealed the circuit

court's decision to remand for additional fact-finding.

¶15 The court of appeals issued a decision affirming in

part and reversing in part the circuit court. The court of

appeals affirmed the circuit court's holding that the DNR had
the authority to amend the permit and reversed the circuit

court's remand for additional fact-finding. The court of

appeals concluded as a matter of law that neither of the

6
Following the DNR's issuance of the permit amendment, the
Myers filed a request for a contested case hearing. After the
DNR granted the request, the Myers waived that hearing and
pursued judicial review. The parties entered into a stipulation
that the DNR would not raise the exhaustion doctrine as a
defense to the Myers' petition.

7
 No. 2016AP1517

exemptions applied because of "implicit findings" made by the

DNR at the public informational hearing.

¶16 The Myers raise three issues on appeal to this court:

(1) whether the DNR had authority to amend their permit; (2)

whether two exemptions in Wis. Stat. § 30.12(1k) barred the

DNR's actions; and (3) whether the court of appeals could rely

on "implicit findings" made by the DNR at a public informational

hearing to conclude that the statutory exemptions in § 30.12(1k)

did not apply to the Myers' pier.

II. STANDARD OF REVIEW

¶17 On a Wis. Stat. ch. 227 appeal we review the decision

of the agency, not the circuit court. Hilton ex rel. Pages

Homeowners' Ass'n v. DNR, 2006 WI 84, ¶15, 293 Wis. 2d 1, 717

N.W.2d 166. We have ended our practice of deferring to

administrative agencies' conclusions of law. Tetra Tech EC,

Inc. v. DOR, 2018 WI 75, ¶3, 382 Wis. 2d 496, 914 N.W.2d 21.

Instead, we give "due weight" to the experience, technical

competence, and specialized knowledge of an administrative
agency in evaluating the persuasiveness of the agency's

argument. Id. When a determination of the scope of an agency's

power is central to resolution of the controversy, as in this

case, we independently decide the extent of the agency-authority

that the statute provides. See Rock-Koshkonong Lake Dist. v.

DNR, 2013 WI 74, ¶¶61-62, 350 Wis. 2d 45, 833 N.W.2d 800.

¶18 This case involves interpretation of Wis. Stat. ch.

30, which regulates navigable waters. Statutory interpretation
is a question of law that this court reviews de novo. Noffke ex
8
 No. 2016AP1517

rel. Swenson v. Bakke, 2009 WI 10, ¶9, 315 Wis. 2d 350, 760

N.W.2d 156. The purpose of statutory interpretation is to

"determine what the statute means so that it may be given its

full, proper, and intended effect." State ex rel. Kalal v.

Circuit Court, 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.

Statutory interpretation begins with the language of the

statute. Kalal, 271 Wis. 2d 633, ¶45. Statutory language is

"given its common, ordinary, and accepted meaning," unless there

are technical or specially-defined words or phrases. Id., ¶45.

If the statutory language yields a "plain, clear statutory

meaning, then there is no ambiguity," and there is no need to

consult extrinsic sources of interpretation. Id., ¶46.

III. ANALYSIS

¶19 This dispute centers around whether the DNR had

authority to unilaterally amend the Myers' permit 14 years after

their pier was placed. Although not explicitly argued by the

DNR, the court of appeals held that the DNR had the authority to

amend the Myers' permit by reserving to itself that authority in
Condition 1. Before this court, the DNR cites to two statutory

authorizations of power in support of its ability to amend the

Myers' permit: Wis. Stat. § 30.12(3m)(d)2. and Wis. Stat.

§ 30.2095(2). The DNR asserts that § 30.12(3m)(d)2. statutorily

authorizes the placement of Condition 1 in the Myers' permit.

Alternatively, the DNR argues that even absent Condition 1,

§ 30.2095(2) provides it with the authority to modify or rescind

the permit for "good cause" because the Myers' permit never
expired. We address each argument in turn.
9
 No. 2016AP1517

A. Reservation of Authority

¶20 We first address the court of appeals' holding that

the DNR could, absent statutory authorization, reserve to itself

the authority to amend the Myers' permit in Condition 1. See

Myers v. DNR, No. 2016AP1517, unpublished slip op., ¶14 (Wis.

Ct. App. Aug. 29, 2017). Condition 1 reads "[t]he authority

herein granted can be amended or rescinded if the structure

becomes a material obstruction to navigation or becomes

detrimental to the public interest." The court of appeals

looked to the language of Condition 1 and held that no other

explicit grant of authority was necessary. See Myers, No.

2016AP1517, ¶14 & n.2. The court of appeals also placed an

additional burden on the Myers to cite to law indicating that

the DNR was unable to reserve to itself such authority. See

Myers, No. 2016AP1517, ¶14 & n.2. The court of appeals further

determined that the Myers "agreed to the condition allowing

amendment by accepting the permit."7 See Myers, No. 2016AP1517,

¶14.
¶21 We conclude that the court of appeals erred in holding

that Condition 1 in and of itself provided the DNR the authority

to amend the Myers' permit. It is important to remember that

administrative agencies are creatures of the legislature. An

administrative agency has only those powers expressly conferred

7
As the ALJ noted, this type of condition was "standard for
solid dock structures on Lake Superior." There is no support
for the premise that by accepting the permit the Myers waived
their right to challenge future DNR actions.

10
 No. 2016AP1517

or necessarily implied by the statutory provisions under which

it operates. See Kimberly-Clark Corp. v. Public Serv. Comm'n of

Wis., 110 Wis. 2d 455, 461-62, 329 N.W.2d 143 (1983); Brown Cty.

v. DHSS, 103 Wis. 2d 37, 43, 307 N.W.2d 247 (1981); American

Brass Co. v. Wisconsin State Bd. Of Health, 245 Wis. 440, 448,

15 N.W.2d 27 (1944). We resolve any reasonable doubt pertaining

to an agency's implied powers against the agency. See Kimberly-

Clark Corp., 110 Wis. 2d at 462. We conclude that absent

statutory authorization, Condition 1 in and of itself cannot

provide the DNR the authority to amend the Myers' permit. We

next turn to whether the DNR had statutory authorization to

amend the Myers' permit.

B. Wisconsin Stat. § 30.12(3m)(d)2.

¶22 The DNR argues that it had statutory authority

pursuant to Wis. Stat. § 30.12(3m)(d)2. to insert Condition 1

in the Myers' 2001 permit because that condition implemented

the criteria under § 30.12(3m)(c)1.-3. Section 30.12(3m)(d)2.

allows the DNR to "promulgate rules that limit the issuance of
individual permits for solid piers."8 The statute further

explains that these rules "may establish reasonable conditions

to implement the criteria under par. (c)1. to 3." Section

30.12(3m)(c) reads:

(c) The department shall issue an individual permit
to a riparian owner for a structure . . . if the

8
The rules promulgated by the DNR for pier-permitting
standards are found in Wis. Admin. Code § NR 326 (Apr. 2005).

11
 No. 2016AP1517

department finds that all of the following
requirements are met:

1. The structure or deposit will not materially
obstruct navigation.

2. The structure or deposit will not be
detrimental to the public interest.

3. The structure or deposit will not materially
reduce the flood flow capacity of a stream.
¶23 The DNR likens Condition 1 to a "reasonable

condition[] to implement the criteria under par. (c)1. to 3.,"

pursuant to Wis. Stat. § 30.12(3m)(d)2. The DNR reads the

language of § 30.12(3m)(c) as imposing a requirement that a

permit continuously satisfy the criteria in paragraphs 1.

through 3. Therefore, according to the DNR, when, if at all, a

permit fails to satisfy all three criteria in § 30.12(3m)(c)1.-

3., the DNR may amend or rescind the permit pursuant to

Condition 1.

¶24 There is no support in the plain language of Wis.

Stat. ch. 30 for the DNR's claim that a pier permit carries with

it an ongoing requirement to satisfy the criteria in Wis. Stat.

§ 30.12(3m)(c)1.-3.9 The language of § 30.12(3m)(c)1.-3.

explicitly uses the past tense "met" when it lists the

requirements for granting a permit, thus signifying that the

9
We decline to address legislative history or alleged
legislative intent because the statute is unambiguous. If
statutory language yields a "plain, clear statutory meaning,
then there is no ambiguity," and there is no need to consult
extrinsic sources of interpretation. State ex rel. Kalal v.
Circuit Court, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.

12
 No. 2016AP1517

conditions must be fulfilled before the permit is granted.

Courts must avoid interpretations that require inserting words

into statutes. See Heritage Farms, Inc. v. Markel Ins. Co.,

2009 WI 27, ¶14, 316 Wis. 2d 47, 762 N.W.2d 652; C. Coakley

Relocation Sys., Inc. v. City of Milwaukee, 2008 WI 68, ¶24, 310

Wis. 2d 456, 750 N.W.2d 900. There is no language in ch. 30

that requires a permit to continuously satisfy the criteria in

§ 30.12(3m)(c)1.-3. and we will not read such language into the

statute.

¶25 The DNR also argues that "the entire tenor" and

"spirit" of Wis. Stat. ch. 30 suggests that a permit includes a

requirement to continuously satisfy the criteria in Wis. Stat.

§ 30.12(3m)(c)1.-3. When pressed at oral argument, the DNR

cited to several sections of ch. 30 that allegedly illustrate

the legislature's intent that permits continue to govern piers

indefinitely. This brings us to the question of whether a

permit issued under § 30.12 is akin to a building permit or is a

permit governing possession. This question is intertwined with
the DNR's alleged second statutory authorization of power, Wis.

Stat. § 30.2095.

C. Wisconsin Stat. § 30.2095

¶26 Apart from the alleged authorization given to the DNR

in Wis. Stat. § 30.12(3m)(d)2., the DNR relies on Wis. Stat.

§ 30.2095(2) as a separate avenue of independent authority to

amend the Myers' permit. Section 30.2095(2) reads: "[f]or good

cause, the department may modify or rescind any permit or
contract issue under ss. 30.01 to 30.29 before its expiration."
13
 No. 2016AP1517

The DNR's argument rests on the premise that because the Myers'

pier was completed within three years, the Myers' permit never

expired. Therefore, the DNR could modify or rescind the Myers'

permit at any time pursuant to § 30.2095(2) for "good cause."

We must first address the parties' dispute as to whether the

permit was akin to a building permit or is a permit governing

possession, and, accordingly when, if at all, the Myers' permit

expired.

¶27 The Myers contend that their permit was akin to a

building permit and that, according to its terms, it expired on

July 23, 2004, three years after its issuance. The DNR asserts,

and the court of appeals agreed, that because the pier was

completed within the time limit set forth in the permit, the

Myers' permit did not expire. As additional support for its

position, the DNR asserts that a permit controls ongoing

maintenance and use of a pier, even after its placement.10

¶28 We agree with the Myers' interpretation and conclude

that, based upon a plain reading of the language of Wis. Stat.
ch. 30, a permit issued under Wis. Stat. § 30.12 is akin to a

building permit.

¶29 The Myers were granted "a permit under Wis. Stat.

§ 30.12 for the construction of a structure" that expired "three

years from the date of [July 23, 2001], if the structure is not

10
However, the DNR conceded at oral argument that there is
no statutory language that indicates that a pier permit is a
"possession permit."

14
 No. 2016AP1517

completed before then." This language comports with the

language set forth in Wis. Stat. § 30.2095(1)(a) which provides,

in pertinent part, that a permit "issued under ss. 30.01 to

30.29 . . . is void unless the activity or project is completed

within 3 years after the permit or contract was issued."

Section 30.2095(1)(b) allows for an extension of the permit for

"no longer than an additional 5 years if the grantee requests an

extension prior to expiration of the initial time limit."

¶30 "[S]tatutory language is interpreted in the context in

which it is used; not in isolation but as part of a whole; in

relation to the language of surrounding or closely-related

statutes; and reasonably, to avoid absurd or unreasonable

results." Kalal, 271 Wis. 2d 633, ¶46. By employing the phrase

"unless the activity or project is completed" in Wis. Stat.

§ 30.2095(1)(a) as a reference point for when the permit becomes

void, the legislature expressed its intent that the permit be

for the completion of the activity or project for which the

permit was granted, i.e., the placement of a pier. When
§ 30.2095(1) is read in conjunction with § 30.2095(2), it is

clear that the "expiration" for the modification of a permit

discussed in § 30.2095(2) is the earlier of the expiration date

of the permit or the actual date when pier placement was

completed.11

11
Because a permit to build a pier expires upon its
placement, the Myers' permit expired in October 2001 and would
have been void by July 23, 2004 had the pier not been placed.

15
 No. 2016AP1517

¶31 According to the DNR and the court of appeals, if pier

placement is complete within the timeframe determined by Wis.

Stat. § 30.2095(1)(a), the permit never expires. If that were

the case, the phrase "before its expiration" in § 30.2095(2)

becomes superfluous since the DNR could "[f]or good cause"

modify or rescind any non-void permit or contract at any time.

¶32 It is also noteworthy that the legislature made a

distinction between the term "void," as used in Wis. Stat.

§ 30.2095(1)(a), and the term "expiration," as used in

§ 30.2095(1)(b) and (2). These terms are presumed to have

distinct meanings. See Johnson v. City of Edgerton, 207 Wis. 2d

343, 351, 558 N.W.2d 653 (Ct. App. 1996). Given its plain

meaning, where a grantee needs additional time to complete a

project, he or she may ask to extend the expiration date of a

permit pursuant to § 30.2095(1)(b) to prevent a permit from

becoming void under § 30.2095(1)(a). The DNR possesses a

limited right to modify a permit until the earlier of the

expiration date of the permit or the date when pier placement
was completed, as set forth in § 30.2095(2). However, that

right does not include the ability to require partial removal of

a pier, and substantial modification to a permit, over 14 years

after a pier was placed.12

12
The dissent opines that the DNR selected a "permit
amendment track," via its necessarily implied authority.
Dissent, ¶73. The DNR did not follow any statutorily proscribed
procedures; instead, the DNR appeared to act unilaterally in
demanding changes to the Myers' pier.

16
 No. 2016AP1517

¶33 A review of the language used in ch. 30 further

supports the conclusion that a pier permit is akin to a building

permit and includes no additional requirements for ongoing

maintenance and use. As previously noted, "[s]tatutory language

is interpreted in the context in which it is used; not in

isolation but as part of a whole; in relation to the language of

surrounding or closely-related statutes; and reasonably, to

avoid absurd or unreasonable results." Kalal, 271 Wis. 2d 633,

¶45. Pier permits are described throughout ch. 30 in reference

to the "placement" of a structure. See, e.g., Wis. Stat.

§ 30.12(1)(a)(providing that a permit is required to "place

any structure upon the bed of any navigable water");

§ 30.12(3m)(a)(providing that a permit is required "in order

to place the structure for the owner's use"). The Merriam

Webster Dictionary defines place as "to put in or as if in

a particular place or position: set." "Place," Merriam Webster

Online Dictionary (2018), https://www.merriam-webster.com/

dictionary/place. Therefore, "[p]lacement" refers to setting a
pier in the navigable waters, not the ongoing use of a pier.

¶34 Where the legislature intends to include the

responsibility of ongoing maintenance, it specifies as such, as

seen in Wis. Stat. § 30.131, which regulates piers "placed and

maintained by persons other than riparian owners." If "placed"

was synonymous with "maintained," the word "maintained" in

§ 30.131 would be surplusage. Additionally, in enacting

regulations for a permit for a dam, the legislature clarified
that the permit also includes ongoing maintenance. See, e.g.,
17
 No. 2016AP1517

Wis. Stat. § 31.05 (describing the permit as one "to construct,

operate and maintain a dam"). We look to the words chosen by

the legislature in the context of the entirety of Wis. Stat. ch.

30 and conclude that the Myers' pier permit was akin to a

building permit.

¶35 Because we conclude that the DNR lacked authority to

amend the Myers' permit, we need not reach the issues that

surround the application of the statutory exemptions in Wis.

Stat. § 30.12(1k), including the court of appeals' reliance on

"implicit findings" made by the DNR at a public informational

hearing.

IV. CONCLUSION

¶36 On petition to this court, the Myers sought review of

the DNR's authority to amend their 2001 pier permit. The Myers

also sought review as to whether two exemptions in Wis. Stat.

§ 30.12(1k) barred the DNR's actions. Lastly, the Myers sought

review of whether the court of appeals could rely on "implicit

findings" made by the DNR at a public informational hearing to
conclude that the statutory exemptions in § 30.12(1k) did not

apply to the Myers' pier.

¶37 We conclude that the DNR could not reserve to itself

the authority to amend the Myers' permit through Condition 1.

We conclude that Wis. Stat. § 30.12(3m)(d)2. did not provide the

DNR with statutory authorization to insert Condition 1 in the

Myers' permit. Further, we conclude that because the Myers'

permit expired, Wis. Stat. § 30.2095 did not provide the DNR
with the authority to modify or rescind the Myers' permit for
18
 No. 2016AP1517

"good cause." Because the DNR had no authority to amend the

Myers' permit and we reverse the court of appeals' decision, we

need not address whether the statutory exemptions found in

§ 30.12(1k) applied to the Myers' pier.

By the Court.—The decision of the court of appeals is

reversed.

19
 No. 2016AP1517.awb

¶38 ANN WALSH BRADLEY, J. (dissenting). Although the

administrative law judge initially found that granting the

Myers' permit request would likely not have detrimental effects,

he also observed "it is not always possible to predict the

impact of a particular structure in such a dynamic system."

¶39 The ALJ's admonition proved prescient. A decade after

the Myers completed construction of their pier, the DNR received

complaints from neighbors that the Myers' pier was not operating

as intended. Specifically, the neighbors asserted that the pier

was exacerbating shoreline erosion and causing "loss of riparian

property." Majority op., ¶9.

¶40 To remedy the now-apparent defects in the pier, the

DNR issued a permit amendment requiring that the Myers modify

their pier in one of two ways. Id., ¶12. The Myers declined to

pursue either modification option presented by the DNR and

instead have pursued judicial review of the DNR's action.

¶41 Upon review, the majority concludes that the DNR lacks

the statutory authority to amend the permit. Id., ¶37; see Wis.
Stat. §§ 30.12(3m)(d)2., 30.2095. It reaches this erroneous

conclusion by writing words into the statutes, failing to follow

its own analytical construct, and arriving at an unreasonable

result that could leave the DNR toothless to address some piers

that violate the public interest. In my view, the pier-

permitting statutes necessarily imply a grant of power to the

DNR to amend permits. Accordingly, I respectfully dissent.

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I

A

¶42 The majority's first error lies in reading words into

the pier-permitting statutes that simply are not there.

¶43 Pursuant to Wis. Stat. § 30.12(1), all structures that

are "placed" upon the bed of any navigable water require a

permit. In the majority's view, "placement" "refers to setting

a pier in the navigable waters, not the ongoing use of a pier."

Majority op., ¶33. Accordingly, in the majority's estimation, a

pier permit is "akin to a building permit," and is not required

for the ongoing maintenance of a pier. Id., ¶28.

¶44 Such a distinction is salient because if the permit is

for building only, then the permit conditions would not govern

the ongoing maintenance of the pier. Conversely, if the permit

is required for maintenance of a pier, then the obligations it

creates do not end when construction is complete.

¶45 As a threshold to its analysis, the majority correctly

sets forth the principles that govern statutory interpretation.
See majority op., ¶18. Statutory interpretation begins with the

language of the statute. State ex rel. Kalal v. Circuit Court

for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.

If the meaning of the statute is plain, we need not further the

inquiry. Id. However, we must interpret statutes reasonably,

to avoid absurd or unreasonable results. Id., ¶46.

¶46 With repeated assurances to the reader that it is

embracing a plain meaning interpretation, the majority warns of
the nemesis of plain meaning, i.e. writing words into the

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statute. Majority op., ¶24. And it advises the reader that we

will refrain from doing so here. Id. Nevertheless, after such

proclamations and protestations, the majority fundamentally

alters the statute by writing into it an outcome-determinative

word not written by the legislature. Although it pays lip

service to a plain meaning interpretation, the majority fails to

follow it.

¶47 Nowhere in the statutes on which the majority relies

does the legislature delineate that a pier permit is a

"construction" or "building" permit. This stands in marked

contrast to the numerous statutes where the legislature has

specified that a permit is a "construction" permit or "building"

permit. See, e.g., Wis. Stat. § 31.05 (specifying that a permit

is to "construct, operate and maintain a dam"); § 66.1036

(referring to the requirement that a "building permit" be the

provided to county clerk); § 101.654(1)(a) (setting forth

requirements for the issuance of a "building permit"); § 145.195

(referring to a "permit for construction" of any structure);
§ 285.60(1)(a) (referencing a "construction permit" for

construction, reconstruction, replacement, or modification of a

stationary air pollution source). When the legislature wants a

permit to be a construction or building permit, it knows how to

indicate as much.

¶48 Additionally, a standard principle of statutory

interpretation requires that, except for technical or specially

defined words, we give words their common, ordinary, and
accepted meaning. Kalal, 271 Wis. 2d 633, ¶45. Yet, contrary

3
 No. 2016AP1517.awb

to this principle, the majority asserts that the word "building"

is essentially a substitute for the word "placement." In the

majority's view, "placement" cannot be ongoing. Such an

assertion lacks citation and support in either the statute or

the dictionary.1

¶49 The Merriam Webster dictionary offers two sentences as

examples for the use of the word "placement" indicating that

"placement" does not end when an object is initially installed.

"Placement," Merriam Webster Online Dictionary (2018),

https://www.merriam-webster.com/dictionary/placement. Neither

supports the majority's assertion.2 Another commonly utilized

dictionary includes in the definition of "placement," "[t]he

state of being placed or arranged." The American Heritage

Dictionary of the English Language 1382 (5th ed. 2011). There

is no indication that this "state of being" is not ongoing.

¶50 As set forth in chapter 30, the plain language of the

statutory scheme leads me to the conclusion that a permit is

required to maintain a pier, not only to construct one. For
example, the plain language of Wis. Stat. § 30.12(3m)(c) states

that the DNR "shall issue an individual permit to a riparian

owner for a structure" if the statutory requirements are met

1
See State v. Sample, 215 Wis. 2d 487, ¶21, 573 N.W.2d 187
(1998) ("For purposes of statutory interpretation or
construction, the common and approved usage of words may be
established by consulting dictionary definitions.").
2
Two examples offered are "the strategic placement of
products at the entrance of a store" and "the placement of
microphones around the room."

4
 No. 2016AP1517.awb

(emphasis added). The statute does not say that a permit shall

be issued for the construction or building of a structure only.

By reading the word "building" into the statute, the majority

violates our established framework of statutory interpretation.

¶51 The upshot of my analysis is that the Myers' permit

did not "expire" when construction on their pier was finished.

Rather, the statutes set forth a continuing obligation to meet

the requirements of the permit.

B

¶52 The majority's second error lies in its failure to

follow its own analytical construct.

¶53 It correctly observes that "[a]n administrative agency

has only those powers expressly conferred or necessarily implied

by the statutory provisions under which it operates." Majority

op., ¶21 (emphasis added) (citing Kimberly-Clark Corp. v. Public

Serv. Comm'n of Wis., 110 Wis. 2d 455, 461-62, 329 N.W.2d 143

(1983)). However, the majority's analysis suffers from a

singular focus on powers "expressly conferred" by chapter 30
while neglecting to analyze those "necessarily implied."

¶54 A permit for the placement of a pier shall not issue

if the pier materially obstructs navigation, is detrimental to

the public interest, or materially reduces the flood flow

capacity of a stream. Wis. Stat. § 30.12(3m)(c). In the

majority's view, these three requirements need only apply at the

time a pier is constructed, and "[t]here is no support in the

plain language of Wis. Stat. ch. 30 for the DNR's claim that a

5
 No. 2016AP1517.awb

pier permit carries with it an ongoing requirement to satisfy"

them. Majority op., ¶24.

¶55 Essentially, the majority determines that the DNR has

the power to issue a permit that is akin to a building permit,

but not a permit for the maintaining of a pier. It bases its

conclusion on the language of the statute, but neglects to even

consider that such a power is "necessarily implied" in the

statutory scheme. In my view, it is.

¶56 Wisconsin Stat. § 30.12(3m)(c) clearly provides that a

permit shall issue if the three enumerated criteria are met. As

a corollary, if any of the criteria are not met, a permit shall

not issue.

¶57 The question raised in this case is what happens when

a pier meets the criteria of Wis. Stat. § 30.12(3m)(c) when it

is initially installed, but at some point conditions change and

the pier no longer meets the statutory requirements. The

statute dictates that if the requirements are not met, then a

permit shall not issue. This means that the non-compliant
condition must be corrected.

¶58 In order to bring the pier into compliance with the

statute, the permit must be amended, and the statute

"necessarily implies" that the DNR has this power. If the DNR

did not have this power, the result would be a host of piers

that violate the requirements of Wis. Stat. § 30.12(3m)(c), and

the DNR possibly left with no means to address them. See infra,

¶¶59-66. As I discuss next, this is an unreasonable result that
the legislature could not have intended.

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 No. 2016AP1517.awb

C

¶59 The majority's third error lies in reaching an

unreasonable result.

¶60 In denying the DNR the ability to amend the Myers'

permit, the majority allows for the very thing the legislature

has explicitly prohibited in Wis. Stat. § 30.12(3m)(c), i.e. it

allows a pier to remain even if it obstructs navigation, is a

detriment to the public interest, or reduces flood flow

capacity. Further, the majority's interpretation may deprive

the DNR of any remedy at all in similar situations.

¶61 The majority's result is unreasonable because it

allows for a pier to remain in a state of disrepair and

impairment of the public interest. Wisconsin Stat.

§ 30.12(3m)(c)2. is clear in its mandate that a permit shall not

issue if a structure will be detrimental to the public interest.

Yet, the majority allows for this very thing——as long as a pier

does not begin to become detrimental to the public interest

until after it is constructed, the permit for that pier can
never be amended.

¶62 It is also unreasonable to potentially leave the DNR

toothless in the face of a pier that obstructs navigation, is

detrimental to the public interest, or will reduce the flood

flow capacity of a stream. If the DNR cannot modify the permit

to remedy a detrimental condition in a pier, its remaining

option (absent informal resolution) is to bring an enforcement

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 No. 2016AP1517.awb

action. See Wis. Stat. § 30.03(4)(a) (authorizing DNR to bring

an enforcement action).3

¶63 However, in some situations a pier may be exempt from

enforcement. See Wis. Stat. § 30.12(1k)(cm). In such a

situation, the majority would leave the DNR powerless to act to

remedy a defect that is detrimental to the public interest or

the riparian rights of surrounding landowners. I view this

result as unreasonable.

¶64 Although the Myers' pier was not contrary to the

public interest when it was built, it is perfectly plausible

that conditions may change. Here it is alleged that the pier

has become contrary to the public interest or interferes with

the rights of other riparian owners.

¶65 Indeed, the DNR determined that "the existing 12-foot

flow-through opening is not functioning as intended consistently

enough to provide sufficient movement of water and sediment on a

regular basis to prevent the interruption of the natural

littoral processes." The impact is that "[t]his disruption, in
turn, is exacerbating the formation of land on the bed of Lake

Superior and starving adjacent 'down-drift' properties of

sediment."

¶66 If the DNR cannot modify a permit and cannot bring an

enforcement action because of an exemption, the public interest

3
An enforcement action can be maintained for "a possible
violation of s. 281.36 or of the statutes relating to navigable
waters or a possible infringement of the public rights relating
to navigable waters." Wis. Stat. § 30.03(4)(a).

8
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in maintaining the waters of this state falls by the wayside in

the event lake conditions change. The DNR should not be so

hamstrung in fulfilling its duty.

II

¶67 Because I determine that the DNR has the necessarily

implied authority to amend the Myers' pier permit, I briefly

address the Myers' arguments that statutory exemptions bar such

permit amendments.4 The Myers cite to two statutory exemptions

in an attempt to avoid the DNR's permit amendments. First, they

assert that the grandfather exemption, Wis. Stat.

§ 30.12(1k)(b), applies to their pier. Second, they contend

that the enforcement exemption, § 30.12(1k)(cm), bars the permit

amendments in this case. Neither provision has the effect the

Myers desire.

¶68 The grandfather exemption, Wis. Stat. § 30.12(1k)(b),

provides in relevant part:

4
The Myers also argue that the evidence presented at the
informational hearing was insufficient to support the permit
amendment. The DNR made the following factual finding:

Based on the information gathered and further
discussion with the Sea Grant coastal engineer, the
Department has determined that the existing 12-foot
flow-through opening is not functioning as intended
consistently enough to provide sufficient movement of
water and sediment on a regular basis to prevent the
interruption of the natural littoral processes. This
disruption, in turn, is exacerbating the formation of
land on the bed of Lake Superior and starving adjacent
'down-drift' properties of sediment.

Such a finding is certainly sufficient to support the
determination that the pier is detrimental to the public
interest.

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 No. 2016AP1517.awb

[A] riparian owner of a pier or wharf that was placed
on the bed of a navigable water before April 17, 2012,
is exempt from the permit requirements under this
section unless any of the following applies:

1m. The department notified the riparian owner
before August 1, 2012, that the pier or wharf is
detrimental to the public interest.

2. The pier or wharf interferes with the riparian
rights of other riparian owners.
¶69 If the grandfather exemption applies, the consequences

are set forth in Wis. Stat. § 30.12(1k)(e):

[A] riparian owner who is exempt . . . may do all of
the following:

1. Repair and maintain the exempt structure
without obtaining a permit from the department
under this section unless the owner enlarges the
structure.

2. If the exempt structure is a pier or wharf,
relocate or reconfigure the pier or wharf if the
riparian owner does not enlarge the pier or
wharf.
In other words, if the exemption applies, the Myers need not

obtain a permit to repair and maintain the pier.

¶70 The DNR contends that the grandfather exemption does

not apply here because the Myers possess a permit for their

pier. I agree. The grandfather exemption states that if the

conditions are met, a pier owner is not required to "obtain" a

permit in order to maintain the pier. Wis. Stat.

§ 30.12(1k)(e)(1). The use of the word "obtain" indicates that

a pier covered by the statute did not have a permit before,

hence the need to "obtain" one. As analyzed above, I determine

that the Myers' pier was permitted. Accordingly, the
grandfather exemption does not apply.

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¶71 Similarly, the enforcement exemption does not apply.

The enforcement exemption provides:

The department may not take any enforcement action
under this chapter against a riparian owner for the
placement of any of the following:

1. A structure for which the department has
issued a permit under this section, if the
structure is in compliance with that permit.

2. A structure for which the department has
issued a written authorization, if the structure
is in compliance with that written authorization.

3. A structure that is exempt under par. (b)
[the grandfather exemption].
Wis. Stat. § 30.12(1k)(cm).

¶72 Any argument that this exemption is applicable must be

based on the premise that DNR's actions here in amending the

permit constitute an "enforcement action." This premise fails.

¶73 Pursuant to chapter 30 of the Wisconsin statutes, the

DNR can remedy a defect in a pier by following one of two

tracks: permit amendment by way of its necessarily implied

authority or enforcement via Wis. Stat. § 30.03. In this case,

the DNR chose to follow the permit amendment track. The DNR did

not bring an "enforcement action" here, thus the "enforcement"

exemption is not applicable.

¶74 There are key differences between the permit amendment

and enforcement tracks. An enforcement action is brought

pursuant to Wis. Stat. § 30.03. Enforcement hearings proceed in

accordance with ch. 227. See § 30.03(4)(a). The end result of

an enforcement action can be an order issued by a hearing
examiner "directing the responsible parties to perform or

11
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refrain from performing acts in order to comply with s. 281.36

or to fully protect the interests of the public in the navigable

waters." § 30.03(4)(a).

¶75 That is not what happened in this case. Here there

was only a public informational hearing. A hearing examiner did

not enter any injunction against the Myers. Rather, the DNR

issued a permit amendment. Because there was no enforcement

action, the enforcement exemption is inapplicable.

¶76 In sum, the majority allows a pier with clear defects

to remain in a state of disrepair and impairment of the public

interest. The impact of the majority opinion, however, is not

limited to the Myers' pier. On bodies of water large and small,

the majority opinion raises the specter that riparian owners

cannot rely on the DNR to protect the public interest if a

neighboring pier stops working as intended due to shifting lake

conditions. Because this result is contrary to the legislative

intent, I respectfully dissent.

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1