The League's League-EL
August 31, 2021
Recent Cases Address DNR Authority and Public Records Law

DNR Authority
The Wisconsin Supreme Court recently decided two important cases certified to it by the court of appeals. These cases required the Court to interpret Wisconsin Department of Natural Resources (DNR) authority to take certain actions given 2011 Wis. Act 21, which limited state agency authority to promulgate administrative rules and was intended to prevent state agencies from writing administrative rules without specific legislative authorization. Wisconsin Stat. § 227.10(2m) prohibits an agency from implementing or enforcing any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is “explicitly required or explicitly permitted” by statute or by rule promulgated in accordance with certain standards.

In Clean Wisconsin v. Wisconsin Department of Natural Resources (Kinnard Farms), 2021 WI 71, the Court concluded that Wis. Stat. § 283.31(3)-(5) and related regulations gave the DNR explicit authority to impose an animal unit maximum condition and an off-site groundwater monitoring condition upon a Wisconsin Pollutant Discharge Elimination System (WPDES) permit it reissued to Kinnard Farms, Inc. for its concentrated animal feeding operation (CAFO).
Turning to dictionary definitions, the Court determined that “explicit” and “specific” are not synonymous. The legislature used “explicitly” in § 227.10(2m) but used “specific” in a related section, § 227.11(2)(a)3. Based on that, the Court said it needed to presume the legislature knew how to use the word “specific” but chose not to do so in § 227.10(2m), and that it must presume the words mean different things. 2021 WI 71 ¶24.

The Court concluded that an agency may rely upon a grant of authority that is explicit but broad when undertaking agency action and such an explicit but broad grant of authority complies with § 227.10(2m). Id. ¶25.

Read the full decision here.

In Clean Wisconsin and Pleasant Lake Management Dist. v. DNR, 2021 WI 72, the Wisconsin Supreme Court held that the Wisconsin Department of Natural Resources (“DNR”) has explicit and broad authority to consider the environmental effects of high-capacity wells. Clean Wisconsin v. DNR, 2021 WI 72. This case involved eight well applications submitted to DNR. Although the applications did not require a formal environmental review, DNR had information that the wells would have an adverse environmental impact. Despite this knowledge, DNR concluded it did not have the authority to consider the wells’ potential environmental impact and approved the applications. Clean Wisconsin appealed the DNR’s decision to circuit court, arguing that the DNR’s ruling was contrary to the Supreme Court’s decision in Lake Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73 which concluded that DNR “has ‘the authority and the general duty’ to consider the environmental impact of proposed high capacity wells, especially when it is presented with evidence of potential environmental harms.” DNR responded by arguing that Lake Beulah was no longer good law in light of Wis. Stat. § 227.10(2m), which was enacted around the time of the Lake Beulah decision and limits an agency’s actions to those explicitly required or permitted by statute or rule. The circuit court rejected this argument and DNR appealed, with the State Legislature and various business associations (collectively, “Intervenors”) intervening on behalf of DNR. The Court of Appeals then certified the question to the Supreme Court.

Upon review, the Supreme Court reexamined its decision in Lake Beulah, and concluded that it was not affected by the enactment of Wis. Stat. § 227.10(2m) because DNR authority to consider environmental impacts of proposed high capacity wells is explicitly permitted by statute.

Read the full decision  here.

Prevailing Party Under Public Records Law

Meinecke v. Thyes
On July 7, 2021, the Wisconsin Court of Appeals held that, for purposes of receiving attorney fees, costs, and damages, a public records requester prevails in substantial part when the court orders the release of some previously withheld requested records. Meinecke v. Thyes, 2021 WI App 58.

Meinecke was a trustee in the village of Grafton who filed public records requests with two village employees. In response to her request, Meinecke received some, but not all, of the requested records. Meinecke then filed a mandamus action to obtain the withheld documents. The circuit court ordered more, but still not all, of the request records be released. Meinecke then moved for fees, but the circuit court denied the request finding she did not prevail in substantial part as required by Wis. Stat. § 19.37(2)(a).

On appeal, the Court of Appeals stated that the fee shifting provision of § 19.37(2)(a) is mandatory and the circuit court does not have discretion to deny fees to a prevailing party. Once eligibility for fees is determined, the circuit court’s discretion only extends to determining the reasonable amount of fees to be awarded. Moreover, the Court of Appeals held that a party prevails in substantial part in a mandamus action if they successfully access records that were improperly withheld, even if they do not receive access to every record requested.

Read the full decision here.

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