¶ 44. (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. Division of Hearings & Appeals, 2006 WI 86, 292 Wis.2d 549, 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, 292 Wis.2d 549, ¶¶ 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.
*27DAVID T. PROSSER, J.¶ 47. (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 state of property rights in the 21st Century. I join the majority opinion because, under current law, this court is bound to uphold the decision of the administrative law judge (ALJ) even though several members of the court believe that the circuit court reached a more reasonable decision. Although reluctantly conceding the result, I write separately to offer additional perspective.
STANDARD OF REVIEW
¶ 48. In this case, the standard of review is prescribed by Wis. Stat. § 227.57(2) (2003-04):1 "Unless the court finds a ground for setting aside, modifying, remanding or ordering agency action or ancillary relief under a specified provision of this section, it shall affirm the agency's action." (Emphasis added.) See also Wis. Stat. § 227.57(10). Pursuant to § 227.57, a court's review is confined to the record except in cases of alleged irregularities in procedure. Wis. Stat. § 227.57(1).
¶ 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 *28standing; (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 (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 *29(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 reasonably, could not have reached the decision from the evidence and its inferences." Sterlingworth, 205 Wis. 2d at 727 (citing Hamilton v. DILHR, 94 Wis. 2d 611, 618, 288 N.W.2d 857 (1980)) (emphasis added).
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 (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).
*30¶ 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,
[t]here is no discussion of the facts and how the relevant statutes bear on them. There is no explanation of why the agency decision accords with the intent of the legislature in enacting the law under consideration. Therefore, there is no reasoned decision about whether the law was correctly applied or interpreted.
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:
review of factual records ... ; extensive legal research of the laws of Wisconsin, of federal laws, and the laws of other states; careful attention to briefs and to oral arguments of the parties; thorough discussion among members of the court; and the synthesis of a written opinion that distills the facts and the law and comes to a reasoned conclusion that is both understandable and useable by the parties, other tribunals, and the public.
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:
The first matter to be determined on this appeal is the standard of review to be applied. In Dept. of *31Revenue v. Smith Harvestore Products, 72 Wis. 2d 60, 240 N.W.2d 357 (1976), this court held that the question of whether facts found by an administrative commission fulfill a particular legal standard is one of law properly reviewable by this court. Moreover, while due deference must be accorded an agency's application of the law to the found facts when the agency has particular competence or expertise in the matter at hand (Chevrolet Division, G.M.C. v. Industrial Comm., 31 Wis. 2d 481, 488, 143 N.W.2d 532 (1966); sec. 227.20(2), Stats.), this court has held that such deference is not required when this court is as competent as the agency to decide the question involved. Dept. of Revenue v. Smith Harvestore Products, supra; Pabst v. Dept. of Revenue, 19 Wis. 2d 313, 120 N.W.2d 77 (1963). Finally, when the material facts are not disputed, and only matters of law are in issue, this court may review the record ab initio and substitute its own judgment for that of the Commission. H. Samuels Co. v. Dept. of Revenue, 70 Wis. 2d 1076, 1083-84, 236 N.W.2d 250 (1975).
Wis. Dep't. of Revenue v. Milwaukee Ref. Corp., 80 Wis. 2d 44, 48, 257 N.W.2d 855 (1977).
¶ 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."2 This statement was followed by the assurance that the court "does defer to some extent to the legal construction and application of a statute by the agency." Id. (quoting Larson v. ILHR Dep't, 76 Wis. 2d 595, 603, 252 N.W.2d 33 (1977), and De Leeuw v. *32ILHR Dep't, 71 Wis. 2d 446, 449, 238 N.W.2d 706 (1976)) (emphasis added). This point/counterpoint. was once typical in our case law.
¶ 58. In these older cases,3 the court appeared to reserve the ultimate authority to interpret the law. Significantly, the phrase, "we are not bound by the agency's interpretation of law" — with its admitted qualifications — has almost disappeared from judicial decisions. When this court does not reserve its authority to interpret the law, it is ratifying a decline in judicial power.
¶ 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 *33examiner recommended the permit. The Public Service Commission (predecessor to the DNR on such issues) denied the permit on a 2-to-l vote. A circuit court reversed, and then this court reversed the circuit court. We said: "Specific structures may be determined to be detrimental to the public interest on the ground that they impair natural beauty. This is a proper basis for denial of a permit." Id. at 193 (emphasis added).
¶ 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 (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 *34seek 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:
1. Hilton v. DNR. In the present case, the Green Lake riparian lot has 77 feet of shoreline and is owned by 38 landowners who have built and maintained a pier on the riparian lot. Currently, the pier is 249 feet long, 3 feet wide, and contains 22 boat slips. The DNR brought an action to reduce the size of the pier. After an abatement hearing, the ALJ ordered that the pier be reduced in size to 226 feet with no more than 11 slips. At one point, the DNR was advocating only 6 slips.
2. Sea View Estates Beach Club v. DNR. In Sea View, the riparian lot had 60 feet of shoreline with a 215-foot pier with 23 boat slips. Sea View, 223 Wis. 2d at 144, 161. At a permit hearing, the DNR recommended a 190-foot pier with 24 boat slips. Id. at 144. The ALJ concluded the riparian landowners should be *35issued a permit authorizing a 110-foot pier with 12 boat slips. Id. at 145. The DNR adopted the ALJ's decision. Id.
3. Borsellino v. DNR. In Borsellino the riparian lot had 12 feet of shoreline with a 78-foot pier. Borsellino, 2000 WI App 27, ¶ 2, 232 Wis. 2d 430, 606 N.W.2d 255. Borsellino challenged the pier as an unreasonable use of the lot. Id., ¶ 3. An ALJ decided the pier exceeded reasonable use for the lot and ordered it removed. Id. The landowners of the 12-foot lot applied for a permit for a 96-foot-long pier, generally 6 feet wide, with an 8.5-foot wide boatlift attached. Id. The ALJ granted the permit and the DNR adopted the ALJ's decision. Id., ¶ 4.
4. Sterlingworth Condo. Ass'n, Inc. v. DNR. Sterlingworth owned a riparian lot with 331 feet of lakeshore on Mill Lake and 429 feet on Sterlingworth Bay. Sterlingworth, 205 Wis. 2d at 718. Sterlingworth sought a permit for a pier along each section of shoreline with a total number of 34 boat slips (15 slips on Mill Lake and 19 slips on Sterlingworth Bay). Id. The DNR issued a permit for 25 boat slips. Id. at 719 n.l. Sterlingworth petitioned for administrative review and the ALJ upheld the DNR's determination that 25 boat slips were appropriate. Id. at 719.
5. Nagawicka Bay Sailing Club Owners Ass'n, Inc. v. DNR. The Nagawicka Bay Sailing Club Owners Association owned a riparian lot with 56 feet of shoreline and a pier 3.5 feet wide, consisting of two "Ts" of approximately 33 feet in width. Nagawicka Bay Sailing Club Owners Ass'n, Inc., No. 1996AP2805, unpublished slip op. at 570 (Wis. Ct. App. Sept. 10, 1997). The pier was designed to accommodate eight boats. The DNR filed an action to have the pier removed. The ALJ concluded the Nagawicka Bay Sailing Club Owners Association could build a pier 44 feet long provided it had no more than one "T" which did not exceed 33 feet in width.
*36¶ 65. The seamless "consistency" in these cases is not self-evident. Moreover, the statutory law can change over time,4 and the ability of local governments to adopt their own ordinances under Wis. Stat. § 30.13(2),5 or, conversely, not adopt any ordinance, almost assures that the regulation of "wharves, piers and swimming rafts" will not be uniform.6
¶ 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 wild celery over the importance of a longstanding pier that has not had as few as 11 boat slips since 1976.
¶ 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 *37tandem 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 E WILCOX and PATIENCE DRAKE ROGGENSACK join this opinion.All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.
See also City of La Crosse v. DNR, 120 Wis. 2d 168, 179, 353 N.W.2d 68 (Ct. App. 1984) ('We are not bound by an agency's conclusions on matters of law.").
See, e.g., Am. Motors Corp. v. LIRC, 119 Wis. 2d 706, 710, 350 N.W.2d 120 (1984) ("[Questions of law are always reviewable by this court. Although this court is not bound by an agency's conclusions of law, we hesitate to substitute our judgment for that of the agency on a question of law if the agency's conclusion has a rational basis.") (citation omitted).
The majority opinion, ¶ 22, quotes from Wis. Stat. § 30.12(1g)(f) (2003-04). However, subsection (lg) was not adopted by the legislature until 2004, after both the ALJ and the circuit court had rendered their decisions. See 2003 Wis. Act 118, § 22 (effective Feb. 6, 2004).
The "agency" — whatever it is — will be given great weight deference when it answers the legal question whether the local ordinance is "not inconsistent with" § 30.13.
Petitioner effectively demonstrates inconsistencies between the ALJ's decision in this case and the decision in Sterlingworth Condominium Association, Inc. v. DNR, 205 Wis. 2d 710, 556 N.W.2d 791 (Ct. App. 1996) (history of existing structure), and Sea View Estates Beach Club, Inc. v. DNR, 223 Wis. 2d 138, 588 N.W.2d 667 (Ct. App. 1998) (number of boats moored at pier at the time of adoption of local pyramiding ordinance).