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COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1982
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
MICHAEL VAN ESS,
Petitioner-Appellant,
v.
DEPARTMENT OF NATURAL
RESOURCES, an
administrative
agency of The State
of Wisconsin,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Door County:
JOHN D. KOEHN, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Michael Van Ess appeals a judgment that
affirmed the Department of Natural Resources' decision to deny Van Ess's
application for a permit to construct a concrete boat ramp on his property
abutting the shores of Green Bay.
Van Ess argues that (1) no substantial evidence supports the DNR's
findings that the proposed boat ramp would adversely affect fishing and
macroinvertebrate habitat; (2) the boat ramp would not detract from
natural beauty; (3) the DNR's introduction of a learned treatise was erroneous;
and (4) the DNR failed to give notice of new objections to the permit. For the reasons that follow, we affirm the
judgment.
Section 227.57(6), Stats., defines the scope of judicial
review.
If the agency's action depends on any fact
... the court shall not substitute its judgment for that of the agency as to
the weight of the evidence ... The
court shall, however, set aside agency action or remand the case ... if it
finds that the agency's action depends on any finding of fact that is not
supported by substantial evidence in the record.
We
review the agency's decision, not the circuit court's. Richland Sch. Dist. v. DILHR,
166 Wis.2d 262, 273, 479 N.W.2d 579, 584 (Ct. App. 1991), aff'd, 174
Wis.2d 878, 498 N.W.2d 826 (1993).
Van
Ess applied for a permit pursuant to § 30.12, Stats.,
to build a concrete boat ramp ten feet by sixty feet long, of which
approximately thirty-three feet would be below the ordinary high water
mark. The ramp would consist of eight
inches of poured concrete reinforced with a mesh of steel reinforcing
rods. The edges nearest the lake would
be up to twelve inches thick. It would
be poured in one piece over the heavy cobblestone substrate.
The administrative law
judge (ALJ) made the following findings of fact. The concrete color of the proposed ramp would blend with the
natural cobblestone and, although it would have some detrimental aesthetic
impact, it would not be enough to deny the permit on this basis alone. The proposed ramp would not cause erosion,
obstruct navigation, adversely affect water quality or reduce flood flow. However, based upon the testimony of DNR
Area Fish Manager Terrence Lychwick, "[p]ouring concrete over such areas
directly destroys this habitat for burrowing insects and renders the area
inhospitable for walleye spawning. The
cumulative effects of this loss of habitat was demonstrated by the number of
similar, mostly unpermitted, boat ramps in the area." It concluded that the proposed project would
be detrimental to the public interest in maintaining fishery values.
Van Ess argues that the
proposed boat ramp does not detract from the scenic beauty and does not
adversely affect invertebrate population or spawning. There is no dispute that the proposed boat ramp would not sufficiently
detract from aesthetics so that aesthetics alone would provide a sufficient
basis for the denial of the permit.
However, the ALJ determined that aesthetic considerations, taken
together with the cumulative adverse impact on fish and macroinvertebrate
habitat, precluded a finding that the project is "not detrimental to the
public interest" within the meaning of § 30.12, Stats. Our review of
the record discloses substantial evidence to support the challenged findings.
Terrence Lychwick, who
holds a bachelor of science degree from the University of Wisconsin in
ecosystems analysis, an environmental science specializing in aquatic ecology,
works as senior fisheries biologist in the Green Bay DNR office. He testified as an expert witness on behalf
of the agency, stating: "[o]ver the course of the last 20 years, I've
probably been along every inch of the shoreline of Green Bay, and I, I
know the shoreline fairly well."
Lychwick testified that
the Van Ess property is located in the vicinity of perch, walleye and
smallmouth bass habitat. He testified
that he was familiar with the shoreline along the Van Ess property, having
walked it and boated it. Lychwick
testified that the type of cobble along that shoreline is used by walleye for
spawning. He testified that actual
construction of the ramp would not interfere with spawning, but eggs would be
destroyed if boats were brought up the ramps during incubation. Later in the season, the walleye return to
forage for minnows because in those areas invertebrate populations are
available for the forage species to feed on.
He testified that he personally has not done an invertebrate assessment
in this area, but has done substrate invertebrate sampling in other areas. It was his opinion, based on observations in
other areas, that invertebrate populations would be found in this area.[1]
Lychwick stated:
I can
also indirectly show that ... the statement about the forage species being
associated with this area based on firsthand and collective material in survey
work along shorelines, including this shoreline where we have done
electrofishing surveys which includes staying in waters that are less than
6-foot of depth. We do that type of
survey routinely ... and ... where we
have this type of habitat, we collect forage species. And associated with the forage species, we're also finding those
game fish.
Lychwick testified that
concrete ramps interfere with invertebrate habitat because many of the forms
must burrow in and utilize the material in the interstitial spaces, for
example, where the cobble is over sand, they would burrow down into the
sand. "That would not be available
to them over a concrete base." He
testified that at any one location the impact of concrete ramps may be small,
"but incrementally ... given the opportunity to have this occur many times
over the course of ... a stretch of beach, yes, it will have an impact, and it
can be significant." Lychwick
testified that in their immature aquatic form, invertebrates use the shoreline
for nurturing and the incremental effect of many ramps removing habitat
adversely affects them.
Lychwick added: "[A]ny one issue at any one point in
time does not seem to be important to the ... individual that wants to have
something done. However, we, as an
agency, see this as a continuing problem."
Lychwick's unrebutted
testimony provided substantial evidence to support the ALJ's finding that the
proposed ramp would adversely affect invertebrate habitat and spawning. Conflicting inferences in testimony are for
the fact-finder, not the appellate court to resolve. See VTAE v. DILHR, 76 Wis.2d 230, 240, 251
N.W.2d 41, 46-47 (1977). The ALJ
properly considered Lychwick's testimony concerning the cumulative incremental
effect of permitting individual ramps over a period of time. See Hixon v. PSC, 32
Wis.2d 608, 631-32, 146 N.W.2d 577, 589 (1966).
Van Ess argues that it
is pure speculation that there is an actual adverse impact on invertebrate
population, citing common knowledge that fish populations are diminishing
rapidly while bayflies and mayflies are on the increase. A review of the record demonstrates that
Lychwick's concern was with habitat, not just invertebrate population. The ALJ was entitled to rely on Lychwick's
expert testimony that the incremental effect of the destruction of habitat
adversely affects the invertebrates, which provide food for the forage species
sought by game fish. The weight and credibility of the evidence is for the
fact-finder, not the reviewing court, to evaluate. Bucyrus-Erie Co. v. DIHLR, 90 Wis.2d 408, 418, 280
N.W.2d 142, 147 (1979).
Next, Van Ess argues
that the ALJ erroneously admitted a learned treatise into evidence. Van Ess's complaint fails to establish
grounds for reversal. Lychwick was
asked to testify with respect to findings of a study done on Lake Erie, published
in the Journal of Great Lakes Research.
Van Ess objected, on the grounds that the document was hearsay and
concerned itself with Lake Erie, not Lake Michigan. The ALJ overruled the objection, stating
that document fit within the learned treatise exception to the hearsay
prohibition and that the objection that it involved Lake Erie went to its
weight, not the admissibility. The ALJ
indicated that it would entertain a continuance motion to allow Van Ess time to
respond to the study, but Van Ess declined because of his desire to resolve the
proceedings quickly.
Van Ess argues that because
Lychwick is not a microbiologist, he was not able to verify the article as
required by § 908.03(18), Stats. Van Ess further argues that he did not
receive notice of the agency's plan to use the article as required by §
908.03(18). First, we observe that the
rules of evidence do not strictly apply to administrative hearings. State v. McFarren, 62 Wis.2d
492, 506, 215 N.W.2d 459, 467 (1974); § 227.45(1), Stats. If they did,
however, Van Ess's objections would not prevail because at the hearing he made
no objection on the ground that Lychwick was not able to verify the article and
thereby waived this specific objection.
See § 901.03, Stats. Also, because the ALJ invited a motion for
continuance, which Van Ess declined, any lack of notice was without
prejudice. See § 805.18, Stats.
For the same reason, we reject Van Ess's claim that he was denied
fundamental due process rights by the agency's lack of notice to him of new
reasons to deny his permit.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.