MacIver News Service | Jan. 24, 2019
By M.D. Kittle
MADISON — In a ruling last week in favor of Lake Superior property owners, the Wisconsin Supreme Court checked the overreach of the oft-overreaching Wisconsin Department of Natural Resources.
The 6-1 decision is a big victory for property rights, but perhaps more significantly the court reaffirmed that it will no longer defer to state agencies on matters of law.
Philip and Terrie Myers spent a lot of time and money litigating a case in which the DNR decided to amend the Myers’ building permit more than a decade after granting the couple approval to build a pier at their waterfront property on Lake Superior. They appealed two lower court rulings that sided with the government’s claim that the DNR had the authority to amend the permit.
The Supreme Court reversed the circuit and appeals court decisions, finding the DNR “could not reserve to itself the authority to amend the Myers’ permit” despite earlier conditions placed on it.
Matthew Biegert, attorney for the plaintiffs, told MacIver News Service the Myers’ are gratified by the ruling, which ends a long, frustrating legal battle.
“They had to litigate for years and spend their money on the case,” said Biegert, an attorney with the New Richmond, Wis. -based law firm Doar, Drill & Skow. “Most people aren’t going to spend the time and effort to litigate a case to the Supreme Court, but it was a clear case in our minds of government overreach. Unfortunately, that’s not the way the lower courts saw it.”
The couple’s legal journey goes back to December 1999, when they applied for a permit to build a rock-filled pier at their waterfront property on Lake Superior’s Madeline Island, according to court documents.
Despite several objections filed, an administrative law judge in 2001 granted the Myers a permit under state statute to build the 70-foot structure. While concluding that it was “unlikely that there [would] be detrimental impacts relating to shoreline alterations,” the ALJ did add a condition. The permit could be amended or rescinded “if the structure becomes a material obstruction to navigation or becomes detrimental to the public interest.”