September 8, 2022 at 11:20 a.m.
If Evers is re-elected, he's going to come after your piers
If Evers is re-elected, he's going to come after your piers
Take the DNR, for instance. You can always count on that pit full of fanged bureaucrats to try to subvert the democratic will of the people and to write law on a whim, all so they can punish innocent citizens with their radical environmental agenda.
Like the good little bureaucrats they are, they've apparently been busy, busy, busy working behind the scenes to dismantle our property rights. The specific subject in question this week is our legal right to place a pier from a riparian property.
Now, on its face it would seem - since Wisconsin law has long given riparian property owners the right to place a pier, and in the past few years that legal right has been mostly affirmed by the Supreme Court and then strengthened in the Legislature - that your pier or future pier is safe.
But that's not necessarily true, not when there are DNR bureaucrats lurking in the weeds. And there always are, and they have been trying for years and years to undermine that legal right anyway they can.
To be sure, piers can't run afoul of the state's Public Trust Doctrine, which protects the public's right to reasonable use and enjoyment of the state's waterways, and so the Legislature has granted the DNR rule-making authority to govern the placement of said piers - such things as design and construction, size, and location - so as to make sure a pier does not impede the Public Trust right.
But the Legislature, wise as they were to the DNR's long-standing tricks, also limited that rule-making authority because lawmakers knew for sure that, if they did not, the DNR would try to impose so many restrictions that they would regulate piers right out of existence.
And so they put in this limitation, namely, that agency rules "may not establish practices or requirements that prohibit the placement of structures or the deposit of material or that render the placement of structures or the deposit of material economically cost-prohibitive."
It should come as no surprise to anybody that the DNR has now come along with a proposed rule that would allow them to do just that - make the regulations on piers so onerous that it becomes ever more difficult to exercise the legal right to that pier.
In other words, once again, the DNR is trying to subvert legislative intent.
We report the details of this proposed rule in today's edition, and also kudos to Wisconsin Manufacturers & Commerce (WMC) for spotting the rule and critiquing it, which is also in our story. Basically, as the WMC points out in its critique, the DNR is trying to assume broad rule-making authority to impose restrictions on piers, culverts, and temporary boat shelters, among other things.
First off, in the rule's scope statement, the DNR asserts that the rule may establish "reasonable installation practices to minimize environmental impacts, reasonable construction and design requirements, and reasonable limitations on the location of the placement of exempt piers, wharves, and temporary boat shelters."
Apparently what's reasonable will be what the DNR decides is reasonable. And you can be sure that, because the DNR is promising new construction and design requirements, not to mention new limitations on pier location, the coming rule will open the door to regulations that are far stricter than they are now, and likely far more burdensome to those who want to place piers.
As the WMC also pointed out, the DNR completely left out of the scope statement any mention of existing policies relevant to the proposed rule, and forgot to put in the rule-limited requirement the statute imposes. A rule that allows for the DNR to decide what is reasonable without any statutory limitation imposed on the new language almost certainly guarantees onerous regulation.
Now, a couple of other concerns. One can argue that a Republican legislature can and will block such a rule from being enacted, but that is not necessarily true. True, for any bill whose economic impact exceeds $10 million in compliance costs over any two-year period, the Legislature must pass legislation, and the governor must sign it, for the rule to take effect.
Of course, the DNR is already maintaining that the costs of the new rule will be minimal, and it always says that, dishonestly many times. The legislature's joint rules committee can contract with a third party for an independent economic impact analysis, but that takes time and taxpayer money and it is no guarantee.
A big flaw in the state law known as the REINS Act was that it set such a high bar - $10 million in compliance costs over two years - to trigger the requirement of legislation to enact the rule. A rule like the DNR has proposed may cost property owners tens of millions of dollars over time but have relatively minimal impact, or at least not $10 million worth, over any two-year period.
Maybe, maybe not.
If not, the Legislature can still block such a rule, but only through the old passive means - by passing legislation to block it, and have the governor sign it. That won't happen with a Democratic governor.
So there's another reason the gubernatorial election is so important: If Evers is re-elected, he likely plans to come after your piers.
It is also true that there could be court challenges to an onerous rule in which litigants could argue that it effectively dismantles Wisconsin's long traditions of riparian rights, but the DNR will likely argue that the regulations are "reasonable" because they are needed to protect the waters of the state environmentally - they mention this in the scope statement - and on that point the constitutional Public Trust construction would trump the more statutorily conditioned bundle of riparian property rights, if the court found the restrictions environmentally reasonable.
There are larger concerns. The WMC critique correctly points out that the proposed rule includes two provisions that lack any statutory authority whatsoever: a provision allowing "additional changes" to be added later to the rule to achieve the goals of the scope statement, and another enabling performance-based standards for all permitting decisions.
As to the first, as WMC points out, state law prohibits changing a scope statement in "any meaningful or measurable way," such as tacking on new regulations for activities, businesses, and uses not specifically included in the original scope of the proposed rule.
In other words, the agency cannot just add new policies under the rule willy-nilly, as it proposes to do. And again, as WMC points out, the DNR does not cite any statutory authority to include performance-based requirements in permitting decisions.
They don't exist.
What's especially galling is that the DNR estimates that it will take 3,700 work hours just to develop the new rule. That's the equivalent of one full-time employee taking a year and nine months to craft this monstrosity. All the while we're paying for the agency to whittle away at our rights.
With vigilance, and especially with a new governor, this rule will likely not see the light of day. Still, it is possible that some parts of the package could survive unless we stay vigilant and vote.
The even larger concern is, that after all these years, the DNR is the same old DNR as it was under the days of Jim Doyle. The bureaucrats try to write their own laws and brutally carry them out, democracy be damned.
Many people these days are stunned by the ruthlessness and the authoritarianism of the state and national Democratic Party. But it has been a trait on the left for a long time, and for years before Scott Walker was elected governor we wrote repeatedly how the DNR imposed its will and way through the administrative code and ruined many peoples' lives.
Our newspaper archives are full of those stories, and they are worth taking another look at, for what is past could well be prologue.
When Walker was elected and the GOP gained a legislative majority, the DNR was toned down. Unfortunately, our state's civil service laws - we do not have employed-at-will in state government - protect partisan ideologues when the electoral tide turns because they can't be fired.
So during the Walker years, they simply burrowed deeply within the bureaucracy to wait things out. And, sure enough, their day has come.
They may not be as brazen as they were during the Doyle years, but make no mistake, the bully bureaucrats in the DNR, they've got plans, and likely this proposed rule is just the tip of the iceberg when it comes to what they have in store for us.
Better vote in November.
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