Wis. Admin. Code NR § 2.20 is not a new rule – it was first published in 1976 – and its validity has been challenged before.1
Administrative agencies have the powers delegated to them by the Wisconsin Legislature,2 and may only promulgate administrative rules that are authorized by statute.3 The Legislature has only authorized three methods by which an agency may decide contested cases under Wis. Stat. section 227.46:
direct that the hearing examiner's decision be the agency's final decision;
direct that the record be certified to it without an intervening proposed decision; or
direct that the procedure of Wis. Stat. section 227.46(2) is followed, which provides for a proposed decision by a hearing examiner preceding a decision by agency officials.
But NR 2.20 provides review of a final decision from a contested case hearing by the DNR Secretary or Secretary’s designee, which adds a fourth method.
Wis. Stat. chapter 227 provides the statutory framework for an agency’s authority in deciding contested case hearings. It does not include any provisions that authorize the DNR to promulgate or enforce an administrative rule that allows the DNR Secretary or Secretary’s designee to review or reverse the final order and decision of an administrative law judge after a contested case hearing, which is what NR 2.20 permits.
Chapter 227 does authorize review of select hearing examiner findings and conclusions, but only those decisions that are proposed, not final.4
Hannah S. Richerson, U.W. Law School class of 2023, is a dual Ph.D./J.D. student studying environmental science, toxicology, and law.
Wis. Stat. section 227.43(1)(b) also authorizes both a hearing examiner and the DNR Secretary or Secretary’s designee to conduct contested case hearings, but the language is clear that it is either the hearing examiner or the Secretary, not the hearing examiner and the Secretary:
The administrator of the division of hearings and appeals in the department of administration shall: (b) Assign a hearing examiner to preside over any hearing of a contested case which is required to be conducted by the department of natural resources and which is not conducted by the secretary of natural resources (emphasis added).
In addition to exceeding the DNR’s authority granted under the governing statutes, NR 2.20 is unnecessary and undermining, as Wis. Stat. section 281.36(3q)(h)2 already provides an avenue to seek reversal of the final decision of a hearing examiner through judicial review.
Furthermore, had the Legislature intended secretarial authority to overturn a decision of a hearing examiner, would they have provided an explicit method for the DNR to seek judicial review, as in Wis. Stat. section 227.46(8)? Is there a reason the DNR would have made the hearing examiner decision the final decision of the DNR, pursuant to Wis. Admin. Code NR § 2.155, if the Secretary could set aside the decision? If the Secretary had this authority, it would need to be conferred by statute, and it does not appear it has been.
1 The public intervenor challenged the rule, but the case was overruled when the Supreme Court concluded the public intervenor lacked standing; the court did not reach the issue of the validity of NR 2.20. State Public Intervenor v. Wis. Dep’t of Nat. Res., 177 Wis. 2d 666, 670, 503 N.W.2d 305 (Ct. App. 1993), overruled on other grounds by 184 Wis. 2d 407, 515 N.W.2d 897 (1994).
2 Wis. Citizens Concerned for Cranes & Doves v. Wis. Dep't of Nat. Res., 2004 WI 40, ¶14, 270 Wis. 2d 318, 677 N.W.2d 612.
3 Wis. Stat. § 227.11(2)(a).
4 Wis. Stat. §§ 227.46(3)(c), 227.46(2).