Emmons Creek

Pending legislation would end the practice of courts giving deference to state agency actions when private property owners challenged those actions. Critics said the change could undermine water and air quality, siting of power lines, and wildlife habitat. 

Courts would be forced to stop giving special weight to the expertise of state agencies when individuals claimed in lawsuits that their property rights had been restricted, under a provision added last week to a bill moving quickly through the Wisconsin Legislature.

Republicans said they want to bolster private property rights, but critics maintained the change would upend decades of legal precedent and unleash a snarl of lawsuits challenging state decisions on everything from pollution permits to power line placement to dentist licenses.

“This is a major shift in decades of legal precedent in Wisconsin,” said Christa Westerberg, a Madison attorney who specializes in land use law representing clients appealing state agency decisions.

“Federal courts and other state courts also observe the concept of deference to agency decisions,” Westerberg said.

“I haven’t heard of any other jurisdiction obliterating that precedent in favor of private property rights, however that term is construed ... (and) it will probably take a lot of court cases to sort that out.”

“It’s a gift to trial attorneys,” said Susan Crawford, a Madison attorney who worked in the Department of Justice and as legal counsel to former Gov. Jim Doyle, a Democrat who was in office until Republicans took over state government in 2011. “I think the impact of this would be to increase litigation.”

Rep. Adam Jarchow, the author of Assembly Bill 582, said concerns about the proposal and his amendment forbidding judges from giving deference to agencies over private property rights were unfounded.

“All we are talking about is allowing a court to take a fresh look at the law and determine that the agency applied the law correctly,” said Jarchow, R-Balsam Lake. “I think that’s only fair when you are talking about people’s private property rights.”

But Crawford, Westerberg and others noted that the bill, if enacted, would deliver an advantage to private property owners fighting state decisions, but not to groups fighting state decisions they view as restricting the rights of the public to clean air and water.

“It is very discriminatory,” said George Meyer, a former state Department of Natural Resources secretary who is now executive director of the Wisconsin Wildlife Federation.

A property owner would gain an advantage in court when challenging a DNR decision halting construction that would harm fish habitat, Meyer said.

“If DNR grants the permit, the local fishermen who will lose the valuable fish habitat do not receive the same benefit,” Meyer said. “That is not equal treatment under the law and arguably (is) contrary to the equal protection and due process provisions of the Constitution.”

Government agencies often mediate conflicts between various property owners and interest groups, and this law would reduce government authority to do that, said Brian Ohm, an attorney who researches and teaches planning at UW-Madison.

Federal and state courts have chosen to give deference to state decisions on how the law should be interpreted, recognizing that the expertise and technical knowledge of agency officials who work with regulations every day is naturally much deeper than that of judges, who must be generalists, Ohm said.

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A law telling courts not to give deference to state agencies may raise concerns that the Legislature is overstepping its role under the Constitutional principle of separation of powers, Ohm said.

Jarchow said the real separation-of-powers problem was state agencies that write, interpret and enforce the laws in a system under which the courts then “rubberstamp” decisions.

For all state agencies

AB 582 is one of a raft of pending bills Republicans are pushing to roll back DNR and local government authority to regulate private development decisions that can affect the environment, especially in shoreline development filling wetlands.

Last week, in response to complaints from local governments, Jarchow offered an amendment that made several changes, including removal of a provision placing new limits on local authority to enact regulations on business developments, such as frac sand mines, after developers have applied for certain permits.

In place of that provision, Jarchow said, he added the new section to the bill changing how the courts handle challenges to state decisions. It applies to all state agencies.

The amended bill was approved Thursday on a 4-2 party-line vote by the Assembly Committee on Housing and Real Estate. An identical amendment has been offered by Sen. Frank Lasee, R-DePere, to the Senate version of the bill, SB 464.

Both bills were given public hearings before the amendments were offered.

Larry Konopacki, a principal lawyer for the nonpartisan Legislative Council, noted that if the bills are enacted, courts would still base decisions on the facts gathered by state agencies. They just wouldn’t give special weight to the state’s legal interpretations.

Jarchow said he was inspired by a 2006 opinion written by state Supreme Court Justice David Prosser in a case in which Prosser reluctantly agreed with the court majority that a DNR decision could not be overturned under the law.

“This case epitomizes the growth of agency power, the decline of judicial power, and the tenuous state of property rights in the 21st Century,” Prosser wrote in Hilton v. the DNR. “These standards of review frequently put reviewing courts in a straitjacket ...”

“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.’”

Prosser wrote that he hoped his commentary would “generate discussion of current law.”

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Steven Verburg is a reporter for the Wisconsin State Journal covering state politics with a focus on science and the environment as well as military and veterans issues.