(dissenting). 1. Reviewability of the commission’s denial of approval. We agree with the majority of the court that the proceeding in which the commission considered the bulkhead line was not a contested case as defined in sec. 227.01, Stats., but that an administrative decision may be reviewable under secs. 227.15 and 227.16, even though not made in a contested case-as so defined. If a denial of approval of a bulkhead line under sec. 30.11 can be said directly to affect the legal rights, duties, or privileges of any person (here, in particular, the town of Ashwaubenon) then such denial is reviewable in a proceeding such as this.
2. The town’s standing to seek judicial review. Whether the denial of approval directly affected the legal rights, duties, or privileges of the town of Ashwaubenon, and whether the town was thus a person aggrieved and directly affected under these statutes is a difficult question. In Ashwaubenon v. State Highway Comm.1 the same town challenged an order of the highway commission relocating a state trunk highway. There the interest the town sought to protect was the economic well-being of those who resided, did business, or owned property in the town. We said, at page 128:
“It may even be doubted that the town of Ashwaubenon is an aggrieved party entitled to seek review of the commission’s decision. See sec. 227.16, Stats. The town has sought judicial review because its officials consider the Highway Commission’s decision to be erroneous. What we have before us is the contention of one governmental unit (the town) challenging the wisdom of another governmental unit (the Highway Commission). See Milwaukee v. Milwaukee County School Comm. (1959), 8 Wis. (2d) 226, 232, 99 N. W. (2d) 186.”
*53Here the town has a similar interest in riverfront development. It is also seeking to render effective a determination which it has made pursuant to statute as a unit of government. The majority consider that this latter interest is a sufficient basis for deeming the town to be a person aggrieved, under sec. 227.16, Stats., by the commission’s denial of approval. We prefer to express no opinion on this facet of the case, in view of our conclusion, different from that of the majority, that on the merits, even assuming the propriety of the review, the town was not entitled to reversal of the commission’s decision.
3. Decision on review. We respectfully disagree with the conclusion reached, on the merits, by the majority of the court.
Our analysis is as follows:
The state of Wisconsin holds the beds underlying navigable waters in trust for all its citizens.2 The legislature may, consistent with such trust, authorize limited encroachments upon the beds of such waters, where the public interest will be served. The purposes of the trust include all public uses of watér, including commercial navigation, pleasure boating, sailing, fishing, swimming, hunting, skating, and enjoyment of scenic beauty.3 The advancement of one such public use may be promoted at relatively minor sacrifice of other uses 4 but the weighing of the relative values is always, under the trust doctrine, a decision which affects the interests of the *54people of the entire state.5 The choice is legislative in character.6
In sec. 30.11, Stats., the legislature has authorized encroachments upon navigable waters as a result of the establishment of bulkhead lines, and has provided two standards: (1) The line shall be in the public interest, and (2) it shall conform as nearly as practicable to the existing shores. A municipality is authorized to establish such line, but it is without effect unless the Public Service Commission gives its approval.
The first standard, whether the line is in the public interest, must be considered in the light of the trust doctrine. It leaves wide room for debate in the weighing of the various elements of state public interest in the preservation of waters in their natural state.' The second standard, whether the line conforms as nearly as practicable to the existing shores, is more specific, but, again, is a matter of opinion, and its very phrasing suggests that the commission should be conservative in approach to any alteration in natural shorelines.
In our view, the map which the town submitted to the commission showed on its face that a relatively gross invasion of the bed of the river was being proposed. Private filling of from 90 to 1,000 feet out into the stream would be authorized, over a total area of 137 acres. Although the witnesses produced by the town made out a strong case that the proposed line would be adapted to dockage of oceangoing vessels, their evaluations of all the elements of public interest and the practicability of a line close to the existing shores necessarily involved their own opinions on such subjects. Such opinions were not binding on the commission. We think the negative findings made by the commission on these points simply meant that the commission remained un*55convinced that so great an invasion of a navigable stream was in the public interest.
Sec. 227.20, Stats., defines the scope of judicial review of administrative decisions and specifies limited grounds upon which the administrative decision may be reversed or modified. Sub. (2) provides, in part:
“Upon such review due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it.”
In Ashwaubenon v. State Highway Comm., supra, we pointed out, citing Borden Co. v. McDowell7 that (p. 131):
“. . . when the ‘substantial evidence’ rule of sec. 227.20 (1) (d), Stats., is applied to a legislative-type decision, the test is whether reasonable minds could arrive at the same conclusion reached by the commission.”
The commission had before it the map showing that the bulkhead line would authorize a very substantial encroachment by private interests upon navigable waters. In our view, applying the substantial evidence test to this quasi-legislative, rather than adjudicative, type of administrative decision, this fact alone supports the commission in remaining unconvinced that the line was in the public interest or as close as practicable to the existing shores. We who join in this opinion are unable to say that the commission’s refusal to approve was either arbitrary or capricious.
With respect to the scope of review of an administrative decision which is essentially legislative in character, we note that sec. 227.05 (5), Stats., prescribing the grounds on which a court may find a rule invalid, specifies only that the rule “violates constitutional provisions or exceeds the statutory authority of the agency or was adopted without compliance *55awith statutory rule-making procedures.” Concededly the approval or refusal to approve a bulkhead line is not a rule as defined in sec. 227.01 (3). The character of the administrative act, in both cases, however, is quasi-legislative rather than quasi-judicial.
We would reverse the judgment and affirm the decision of the commission.
The following memorandum was filed March 5, 1964:
Per Curiam (on motion for rehearing). Normally on rehearing this court would not write a memorandum except to clarify or correct the opinion. We are at a loss to understand why both counsel seem to assume that on the remand the commission has been ordered to approve the town’s proposed bulkhead line. We thought the opinion was clear in holding a bulkhead line or its predecessor “established shore line” is not to be determined solely by an approximation to the geographical shoreline. In so determining, we did not hold a bulkhead line could be established by a municipality at a location which would be proper for a pierhead line which a municipality under sec. 30.11 (1), Stats., does not have the power to establish.
We stated the record did not contain facts to support the commission’s conclusion that the two statutory standards for the establishment of a bulkhead line had not been met. Arguments of counsel are not a substitute for evidence upon appeal. The Public Service Commission must support on the record its denial of an approval. For such purpose, this court remanded, clearly stating, “The commission upon remand may, if it deems it to be appropriate, take further testimony or supplement the record with additional materials and,,in such event, the commission should then exercise its discretion upon such expanded record.”
Motion for rehearing denied.
(1962), 17 Wis. (2d) 120, 115 N. W. (2d) 498.
Muench v. Public Service Comm. (1952), 261 Wis. 492, 499, 53 N. W. (2d) 514, 55 N. W. (2d) 40.
State v. Public Service Comm. (1957), 275 Wis. 112, 118, 81 N. W. (2d) 71.
Milwaukee v. State (1927), 193 Wis. 423, 214 N. W. 820; Illinois Central R. Co. v. Illinois (1892), 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018; Fransini v. Layland (1903), 120 Wis. 72, 97 N. W. 499; Merwin v Houghton (1911), 146 Wis. 398, 131 N. W. 838.
Muench v. Public Service Comm., supra, p. 515g, footnote 2.
1 Farnham, Waters and Water Rights, pp. 398, 399, sec. 84.
(1959), 8 Wis. (2d) 246, 258, 99 N. W. (2d) 146.