Jessica McCarthy Trust v. Department of Natural Resources

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 4, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1445 Cir. Ct. No. 2022CV132

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

JESSICA MCCARTHY TRUST,

PETITIONER-APPELLANT,

V.

DEPARTMENT OF NATURAL RESOURCES,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Door County:
D. TODD EHLERS, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. The Jessica McCarthy Trust (“the Trust”) appeals
an order denying its petition for judicial review of a decision of the Wisconsin
No. 2023AP1445

Department of Natural Resources (DNR), which denied the Trust’s application for
a permit to construct a solid pier. The Trust argues that its application satisfied the
applicable statutory criteria for the construction of a solid pier and that the DNR’s
“policy against private solid piers exceeds its lawful authority.”

¶2 We conclude that the DNR did not err by denying the Trust’s
application for a solid pier permit because the Trust failed to meet its burden to
show that its proposed pier would not be detrimental to the public interest. We
further conclude that the DNR’s decision did not rely on a “policy against private
solid piers.” We therefore affirm the circuit court’s order denying the Trust’s
petition for judicial review of the DNR’s decision.

BACKGROUND

¶3 This case involves an application for a permit to construct a solid
pier on the lakebed of the Bay of Green Bay in Door County. Pursuant to statute,
a solid pier is defined as “a pier that does not allow for the free flow of water
beneath the pier.” WIS. STAT. § 30.12(3m)(d)1. (2023-24).1

¶4 In the mid-1990s, faced with an “increasing number of permit
applications for the placement of permanent solid dock structures” in
Door County, the DNR conducted an environmental assessment (hereinafter, “the
Solid Pier EA” or “the EA”) regarding “the cumulative physical, biological,

1
All references to the Wisconsin Statutes are to the 2023-24 version.

The Wisconsin Administrative Code similarly defines a solid pier as “a structure, not
allowing for the free flow of water beneath, extending into the water from the shore to serve as an
aid to navigation.” WIS. ADMIN. CODE § NR 326.03(12) (Nov. 2024). All references to WIS.
ADMIN. CODE ch. NR 326 are to the November 2024 register.

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socio-economic, and aesthetic impacts of permanent solid pier structures on the
bed of Green Bay.” The Solid Pier EA highlighted a number of concerns related
to these impacts.

¶5 For instance, the EA noted that solid piers alter the “natural scenic
beauty” of the shoreline. Solid piers also “consume a large amount of lakebed for
private purposes,” which can create “user conflicts in the near shore area” when
“[s]kiers, snowmobilers, canoers, kayakers, fishermen, swimmers and waders are
forced into deeper water to get around the solid piers.” The EA also concluded
that the construction of solid piers disturbs the littoral zone—that is, “the area
from the shoreline out to water depths of about eight feet”—because “[a]ccretion
and erosion take place on adjacent shorelines,” “[a]quatic species which use and
depend on the near shore area are disturbed, displaced, or buried,” and
“[s]urvivors are forced to move elsewhere, sometimes into deeper water.” The EA
acknowledged, however, that such concerns could potentially be mitigated by
“[e]ngineering designs which allow for the littoral drift[2] to move naturally” and
that “[s]panning portions of the littoral zone to allow for constant water flow can
partially compensate for the blockage of the littoral transport.”

¶6 The Solid Pier EA expressly stated that its purpose was not “to block
future shoreline developments.” Nevertheless, the Trust asserts—and the DNR
does not specifically dispute—that no new solid piers have been permitted by the
DNR in the area covered by the Solid Pier EA since its issuance.

2
“Littoral drift” is “the sedimentary material which moves in the zone of waves breaking
on the shore because of waves and current.” WIS. ADMIN. CODE § NR 326.03(5).

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¶7 Turning to the specific facts of this case, the Trust owns an
approximately two-acre property in the Town of Gibraltar in Door County. The
property has approximately 200 feet of Green Bay shoreline within an area known
as Juddville Bay. In 2012, the Trust constructed “a steel frame, pipe-supported
dock” with composite decking—i.e., a non-solid pier—which was exempt from
DNR permitting requirements. However, that pier was destroyed in 2018 by
“[w]ave and ice action.”

¶8 In June 2020, the Trust contacted the DNR to inquire about
constructing a solid pier at its property. A DNR employee informed the Trust
“that new solid piers are not likely to be permitted,” but she subsequently reached
out to colleagues for additional information “regarding the resources here.” A
series of communications between DNR employees and the Trust’s representatives
followed. In those exchanges, the DNR raised concerns about the Trust’s proposal
for “a solid dock with sheet piles and rip rap surrounding,” emphasizing the
fluctuating water levels on Lake Michigan and the need to ensure the adequate
movement of littoral drift.

¶9 Representatives from the DNR and the Trust met in September 2020
to discuss the Trust’s proposed solid pier. During that meeting, the Trust
explained that it sought to dock a 50-foot or 60-foot boat and believed that a solid
pier was the “only option,” given the destruction of its previous non-solid pier.
The DNR’s representatives, on the other hand, expressed concern about the size of
the proposed pier’s footprint, which they characterized as “extreme.” They also
emphasized that Juddville Bay is a “unique area with fisheries and habitat”—
particularly habitat for smallmouth bass.

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¶10 In March 2022, the Trust submitted a permit application for a solid
pier. It proposed an L-shaped pier with a “main dock” length of 147 feet, an “L”
section 72 feet long, and a dock width of 12 feet. In addition, the Trust proposed
adding rip rap around the outside of the pier, which would add 12 to 19 feet to the
structure’s overall width. In response to the DNR’s concerns regarding littoral
drift, the Trust proposed including a 50-foot “span” from the shore to the solid
section of the pier that was intended to allow water to pass underneath. The
Trust’s proposal also included a “breakwater” structure, running parallel to the
main length of the pier, that was to be 55 feet long and 16 feet wide, with two
corrugated steel culverts allowing water to pass through. Additionally, the
proposal involved a significant area of dredging between the pier and the
breakwater. The DNR calculated that, in total, the proposed pier and breakwater
would “privatize 5,248 square feet of public lakebed,” and the entire project,
“including the proposed structures and future planned dredging,” would affect
“11,473 square feet of public lakebed.”

¶11 The DNR subsequently wrote to the Trust stating that additional
information was needed to complete the permit review process. In particular, the
DNR sought information about how the sizes of the openings in the pier and
breakwater were determined and how the openings were “determined to be
adequate to pass littoral drift.” The DNR also questioned the representation in the
Trust’s proposal that littoral drift “is not an issue in this area,” noting that “[a]erial
photos show evidence of a scrape and/or dredging at the project site, which would
indicate there is accretion of materials along the shoreline.” In addition, the DNR
questioned the need for the breakwater, which would further impact littoral drift.
The DNR also asked the Trust to provide additional information regarding other
topics, as well as “plans with scale for reference.”

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¶12 The Trust responded to the DNR’s letter, providing scale plans and
some additional information. In response to the DNR’s question about the sizes of
the openings in the pier and breakwater, the Trust stated:

The littoral zone in this part of Green Bay typically extends
50 to 75 feet from shore. Based on that zone size, a 50-ft
long bridge span is proposed for the main dock. The dual
culverts on the south breakwall have an interior bottom
width of 8.2 feet in total. This represents an opening of
17.5% of the total length of the breakwall. In addition,
water flow will occur between the end of the breakwall and
the end of the dock, a 52-ft opening. The entire bridge span
and culverts will be installed below the ordinary high-water
mark.

¶13 The DNR denied the Trust’s permit application in August 2022,
determining that the proposed solid pier would “not be consistent with the public
interest in the navigable waters.” More specifically, the DNR determined that the
proposed pier would privatize a portion of public lakebed; would be an obstruction
to navigation; would adversely impact fish; would adversely impact littoral drift
and water quality; would contribute to the cumulative impacts of similar projects;
and would adversely affect adjoining riparian owners.

¶14 The Trust sought judicial review of the DNR’s decision under WIS.
STAT. ch. 227. The circuit court denied the Trust’s petition. The court rejected the
Trust’s argument that the DNR denied the Trust’s permit application based on “a
de facto policy that all solid piers of the type the [Trust] has proposed in this area
of Door County are summarily and categorically denied.” To the contrary, the
court concluded that the DNR’s decision was “supported by articulable and
site[-]specific facts.” The court further concluded that the Trust had not “met its
burden to show that its proposed solid pier complied [with] the criteria established
in [WIS. STAT. ch.] 30.”

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¶15 The Trust now appeals the circuit court’s order denying its petition
for judicial review of the DNR’s decision.

DISCUSSION

¶16 On appeal, we review the decision of the DNR, not the circuit court.
Sterlingworth Condo. Ass’n v. DNR, 205 Wis. 2d 710, 720, 556 N.W.2d 791 (Ct.
App. 1996). Unless we find “a ground for setting aside, modifying, remanding or
ordering agency action or ancillary relief under a specified provision of” WIS.
STAT. § 227.57, we must affirm the DNR’s decision. See § 227.57(2).

¶17 Where, as here, the DNR’s decision “depends on facts determined
without a hearing,” we will “set aside, modify or order agency action if the facts
compel a particular action as a matter of law,” or we may “remand the case to the
[DNR] for further examination and action within the [DNR’s] responsibility.” See
WIS. STAT. § 227.57(7). “Where there is no hearing … the question on review is
not whether the agency can produce substantial evidence to support its decision,
but rather whether the facts compel a particular result as a matter of law.” Koll v.
DOJ, 2009 WI App 74, ¶6, 317 Wis. 2d 753, 769 N.W.2d 69 (citation modified).

¶18 As to the DNR’s legal conclusions, we will “set aside or modify the
agency action” if we conclude that the DNR “has erroneously interpreted a
provision of law and a correct interpretation compels a particular action.” See
WIS. STAT. § 227.57(5). We “accord no deference to the [DNR’s] interpretation of
law.” See § 227.57(11). Nevertheless, we accord “due weight” to “the
experience, technical competence, and specialized knowledge of the [DNR], as
well as discretionary authority conferred upon it.” See § 227.57(10).

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¶19 Finally, we will “reverse or remand the case to the [DNR]” if we
conclude that the DNR’s

exercise of discretion is outside the range of discretion
delegated to the [DNR] by law; is inconsistent with [a
DNR] rule, an officially stated [DNR] policy or a prior
[DNR] practice, if deviation therefrom is not explained to
the satisfaction of the court by the [DNR]; or is otherwise
in violation of a constitutional or statutory provision.

See WIS. STAT. § 227.57(8). However, this court “shall not substitute its judgment
for that of the [DNR] on an issue of discretion.” See id.

I. The DNR properly denied the Trust’s permit application based on its
determination that the proposed solid pier would be detrimental to the
public interest.

¶20 “Any analysis of agency actions affecting the state’s navigable
waters ‘must start with the public trust doctrine.’” Clean Wis., Inc. v. DNR, 2021
WI 72, ¶12, 398 Wis. 2d 433, 961 N.W.2d 611 (citation omitted). The public trust
doctrine “recognizes that the state holds beds of navigable waters in trust for all
Wisconsin citizens.” Gillen v. City of Neenah, 219 Wis. 2d 806, 820, 580 N.W.2d
628 (1998). “Regulation and enforcement of this public trust rests with both the
legislature and the DNR.” ABKA Ltd. P’ship v. DNR, 2002 WI 106, ¶12, 255
Wis. 2d 486, 648 N.W.2d 854. “The legislature has delegated to the DNR broad
authority to regulate under the public trust doctrine and to administer [WIS. STAT.]
ch. 30.” Id.

¶21 WISCONSIN STAT. § 30.12, the statute at issue in this appeal, governs
the placement of structures on the beds of navigable waters. The statute provides
that “[u]nless an individual or a general permit has been issued under this section
or authorization has been granted by the legislature,” no person may “place any
structure upon the bed of any navigable water where no bulkhead line has been

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established” or “place any structure upon the bed of any navigable water beyond a
lawfully established bulkhead line.” Sec. 30.12(1)(a)-(b). As relevant here, the
DNR

shall issue an individual permit to a riparian owner for a
structure … if [it] finds that all of the following
requirements are met:

1. The structure … will not materially obstruct navigation.

2. The structure … will not be detrimental to the public
interest.

3. The structure … will not materially reduce the flood
flow capacity of a stream.

Sec. 30.12(3m)(c). Section 30.12 “authorize[s] the DNR to weigh the relevant
policy factors” when deciding whether to issue a permit, including “the desire to
preserve the natural beauty of our navigable waters, to obtain the fullest public use
of such waters, including but not limited to navigation, and to provide for the
convenience of riparian owners.” Sterlingworth Condo. Ass’n, 205 Wis. 2d at
724-25 (citation omitted).

¶22 WISCONSIN STAT. § 30.12 also grants the DNR authority to
“promulgate rules that limit the issuance of individual permits for solid piers.”
Sec. 30.12(3m)(d)2. However, “[t]he rules may not prohibit the issuance of
individual permits for solid piers used for private or commercial purposes.” Id.
The parties agree that § 30.12(3m)(d)2. gives the DNR authority to promulgate
rules regulating the issuance of solid pier permits, but it prohibits the DNR from
promulgating any rule that categorically prohibits the issuance of such permits.

¶23 Consistent with the grant of authority in WIS. STAT.
§ 30.12(3m)(d)2., the DNR has enacted a regulation stating that solid piers “shall
be provided with a sufficient opening to provide for the passage of littoral drift”

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and that “[t]he opening size shall be adequate to prevent the deposition of littoral
drift considering wave energy, littoral drift supply and near-shore water depths.”
WIS. ADMIN. CODE § NR 326.04(3)(b). DNR regulations also state that piers,
generally, “shall not totally enclose any portion of a navigable waterway”; “shall
not unreasonably obstruct navigation or otherwise interfere with public rights in
navigable waters”; “shall not interfere with the rights of other riparians”; and
“shall not interrupt the free movement of water nor cause the formation of land by
deposition of littoral drift upon the bed of the water.” Sec. NR 326.04(4)-(7).

¶24 Importantly, an applicant for a permit under WIS. STAT. § 30.12
“assume[s] the burden of proving that its proposal would not be detrimental to the
public interest.” Sterlingworth Condo. Ass’n, 205 Wis. 2d at 726. In this case,
the DNR concluded that the Trust had failed to meet its burden. The record
supports the DNR’s determination in that regard, and the facts do not compel a
contrary result as a matter of law. See WIS. STAT. § 227.57(7); Koll, 317 Wis. 2d
753, ¶6.

A. Detrimental effects on aquatic life

¶25 In its decision, the DNR found that the Trust’s proposed pier would
have a detrimental effect on aquatic life at the project site. The DNR noted that
the location of the proposed pier, Juddville Bay, is a popular fishery area for
multiple species of gamefish—including smallmouth bass, yellow perch, and
walleye—and provides important habitat for those species. In addition, the DNR
explained that Juddville Bay “has habitat characteristics important to panfish
species such as rock bass as well as for forage (minnow) species” and “supports a
multitude of other aquatic organisms that are key to the overall ecological function
of a typical riparian zone.”

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¶26 As to smallmouth bass, specifically, the DNR noted that Juddville
Bay has characteristics that provide “very good conditions for smallmouth bass
spawning,” including “good substrate, shallow water and some protection from
wave energy.” During a visit to the site on June 7, 2022, the DNR observed
smallmouth bass spawning and nesting in the proposed project area and in the area
adjacent to it. The Trust acknowledged in its submissions to the DNR that “the
eastern shore of Green Bay is a world class smallmouth bass fishery” and that
smallmouth bass fishing “accounted for roughly $264 million annually, much of
which was spent in Door County.” Consistent with those acknowledgements, the
DNR observed multiple anglers using the area during its site visit.

¶27 The DNR further noted that “[t]here are presently several
extensively dredged areas and solid structures in the immediate vicinity [of the
proposed pier] that result in direct loss of habitat for fish and other aquatic
organisms, most apparently nesting smallmouth bass.” Relying on the Solid Pier
EA, the DNR stated that the construction of such solid structures on the lakebed
eliminates the preferred habitat for “[i]ndividual species within benthic
communities”3 and that the resultant changes to a benthic community’s “structure
and diversity may have significant implications to the fisheries’ community which
relies on richness and diversity of the benthic community.”

¶28 Additionally, the DNR specifically noted during its site visit that the
lakebed within the proposed project area had a “mix of rock substrates including
smaller rubble and gravel with various sizes of cobble and larger boulders

3
“Benthic” means “of, relating to, or occurring at the bottom of a body of water.”
Benthic, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/benthic (last visited Oct. 2, 2025).

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No. 2023AP1445

interspersed throughout,” with a water depth of three to four feet. These
observations were significant because, as the Solid Pier EA explains, “the shallow
water area encompassing three feet or less (the littoral zone) is the more crucial
habitat affecting lake productivity and biodiversity,” as “shallow water areas
provide important spawning, nursery and life sustaining functions for a myriad of
fish, water fowl, and other aquatic organisms.” Consequently, the Solid Pier EA
explained that “[e]xtensive pier and seawall construction destroys and fragments
aquatic plant communities along with beneficial life cycle and food producing
habitats,” which “reduce[s] fish production.” Thus, solid structures negatively
affect the “fish community” by “the direct loss of natural spawning, nursery and
food production areas in the littoral zone.”

¶29 The Solid Pier EA further noted that smallmouth bass, in particular,
prefer “gravel to rubble areas” for spawning and most commonly nest in “3 to 8
feet of water”—in other words, the same conditions that the DNR observed at the
proposed project site. The Solid Pier EA acknowledged that smallmouth bass “do
use manmade structures … to locate nests,” but it concluded that such use does not
“mitigate[]” the “permanent loss of spawning areas” caused by such structures.

¶30 Based on its observations at the proposed project site and
background information provided by the Solid Pier EA, the DNR concluded that
the Trust’s proposed solid pier would have a detrimental impact on aquatic life—
specifically, the “fisheries’ community” in Juddville Bay. The record supports
this determination and does not compel a contrary result as a matter of law. See
WIS. STAT. § 227.57(7); Koll, 317 Wis. 2d 753, ¶6.

¶31 On appeal, the Trust argues that, contrary to the DNR’s
determination, the “anticipated impact” of its proposed pier on “Green Bay’s fish

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population” is “small” and is “as likely to be a net-positive as [a net-]negative.” In
support of these assertions, the Trust notes that its consultant “estimated that there
are 1,230 acres of suitable smallmouth bass habitat from the western tip of
Egg Harbor to the Liberty Grove Boat ramp in Ellison Bay” and that the Trust’s
proposed pier “would impact roughly only 0.0008% of this area.” The Trust also
contends that “the substrate loss resulting from this project would be minimal” and
that the presence of other solid piers along the eastern shore of Green Bay “has not
negatively impacted this world-class smallmouth bass fishery.”

¶32 The Trust’s arguments in this regard are unpersuasive. While the
Trust attempts to minimize the anticipated impact of its pier by asserting that
about 1,230 acres of smallmouth bass habitat exist along the shore of Green Bay in
Door County, the Trust’s consultant defined “[s]uitable habitat” as extending 200
feet from shore and including water depths of up to 15 feet. As discussed above,
however, the DNR determined that the key habitat for smallmouth bass nesting
and early development—and for the support of corresponding food sources—is
more restricted, typically involving areas much closer to shore and ranging from
three to eight feet in depth. The Trust’s proposed pier would impact exactly that
type of sensitive habitat.

¶33 Additionally, while the Trust contends that its proposed pier would
cause “minimal” substrate loss, that unsupported assertion is at odds with the
DNR’s determination that the project would disturb 11,473 square feet of lakebed.
Moreover, the Trust cites no evidence in support of its claim that the presence of
other solid piers along the shore of Door County has not negatively affected the
smallmouth bass fishery. And, while the Trust claims that solid piers may actually
be beneficial to the smallmouth bass population, the DNR considered that
possibility in the Solid Pier EA but ultimately determined that the potential

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positive effects of solid piers would not “mitigate[]” the “permanent loss of
spawning areas.”

¶34 In all, the Trust has not met its burden to show that its proposed pier
“would not be detrimental to the public interest” due to its negative effects on
aquatic life. See Sterlingworth Condo. Ass’n, 205 Wis. 2d at 726.

B. Detrimental effects on littoral drift and water quality

¶35 The DNR also concluded that the proposed pier would be
detrimental to the public interest due to its adverse impacts on littoral drift and
water quality. As noted above, littoral drift is “the sedimentary material which
moves in the zone of waves breaking on the shore because of waves and current.”
WIS. ADMIN. CODE § NR 326.03(5). By rule, “[s]olid piers shall be provided with
a sufficient opening to provide for the passage of littoral drift,” and piers, in
general, “shall not interrupt the free movement of water nor cause the formation of
land by deposition of littoral drift upon the bed of the water.” WIS. ADMIN. CODE
§ NR 326.04(3)(b), (7).

¶36 Here, the DNR found that the Trust’s proposed pier would adversely
impact littoral drift and water quality by interrupting “[n]earshore water
circulation and flow dynamics.” In support of that finding, the DNR specifically
noted that similar projects in the area showed “evidence of accretion and scour
around the structures.” Accretion occurs when sediment accumulates on one side
of a structure, and scour refers to the “corresponding erosion on the downdrift
side.”

¶37 The record shows that during the permit review process, the DNR
notified the Trust that “[a]erial photos show evidence of a scrape and/or dredging

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at the project site, which would indicate there is accretion of materials along the
shoreline.” During its subsequent site visit, the DNR found that the lakebed in the
project area consisted of “a mix of rock substrates including smaller rubble and
gravel with various sizes of cobble and larger boulders interspersed throughout.”
Notably, DNR had previously concluded in the Solid Pier EA that cobble “is not
stationary and is subject to littoral drift forces.” The EA also noted that “[w]here
solid structures have been placed, photographic evidence shows accumulation of
littoral sands in areas that are predominantly cobble.” In addition, the EA
observed that “cobblestone moves in response to storm action,” which can result
in “significant” accretion. As a result, the EA cautioned that “great care must be
taken to protect neighboring property owners from accretion activities caused by
solid structures.”

¶38 In addition, with respect to water quality, the DNR noted in its
decision that “[s]econdary impacts are expected for the long-term maintenance of
addressing accumulated sediments by dredging, which act as a sediment sink that
accumulates with algae and that negatively impacts water quality.” The DNR also
found that past permitted solid structures have negatively affected water quality by
limiting “water circulation,” which “increases water temperatures” and “oxygen
demand.” The DNR also noted that solid piers can affect water quality due to
“[a]dditional macrophyte and algae populations adjacent to the structures from
increased sedimentation by impacted littoral drift.” Based on a prior site
inspection at a neighboring property, the DNR found that the Trust’s property
“also has the potential for macrophyte growth later in the summer.”

¶39 Thus, the DNR found, based on site-specific observations coupled
with its prior conclusions in the Solid Pier EA, that the Trust’s proposed pier

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would negatively affect both littoral drift and water quality at the project site. The
Trust’s arguments that the DNR erred in this regard are unavailing.

¶40 The Trust relies on the fact that its pier proposal included a 50-foot
opening between the shore and the solid portion of the L-shaped pier. The Trust
asserts that this opening “will allow water to pass through which will collectively
provide more than adequate accommodation for any natural littoral drift that might
occur along the shoreline.” The Trust’s permit application, however, failed to
explain why the proposed 50-foot opening would be sufficient to allow for
adequate movement of littoral drift. As the DNR notes, the 50-foot opening
assumes “uniform nearshore flow/material transport,” which is “not always the
case on [Green Bay].” The documents that the Trust submitted in support of its
permit application did not explain how the Trust determined that a 50-foot opening
would be sufficient, given the actual conditions at the project site.

¶41 Additionally, while the Trust’s proposal included the placement of 2
culverts in the breakwater directly across from the 50-foot opening in the pier, the
Trust did not provide any evidence showing that the culverts would be sufficient
to allow adequate movement of littoral drift. As the DNR notes, the Trust
provided “no engineering or other basis for concluding that the combination of the
pier and the breakwater would allow for proper pass-through of littoral materials
as opposed to creating a combined barrier that would lead to accretion on one end
and starvation on the other.”

¶42 The Trust also emphasizes that its “professional consultants”
concluded “that there is and will be little or no littoral drift at the project location
because the substrate consists of primarily large rocks with minimal fine
particulate material and that area near-shore currents are inadequate to mobilize

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No. 2023AP1445

the substrate materials that are present.” The report that the Trust cites in support
of this proposition, however, provides no evidence in support of its conclusory
assertion that the currents at the project site are inadequate to move the substrate
materials.

¶43 Moreover, the Trust’s consultants’ conclusion that littoral drift will
not occur at the project site is directly contrary to the DNR’s findings in the Solid
Pier EA that “[w]here solid structures have been placed, photographic evidence
shows accumulation of littoral sands in areas that are predominantly cobble” and
that, as a general matter, cobble “moves in response to storm action.” In addition,
the DNR’s site visit showed that the lakebed at the project site consisted of not just
large cobble but also “smaller rubble and gravel.” The DNR also noted that there
were “similar projects in the area with evidence of accretion and scour around the
structures,” which supported a determination that the movement of littoral drift
was, in fact, a concern at the project site.

¶44 The Trust similarly asserts that the 50-foot opening in its proposed
pier, combined with the culverts in the breakwater, will be sufficient to “facilitate
‘freshwater flow through and around [the pier]’ to ‘help maintain water
temperature, dissolved oxygen and nutrient availability to the areas inside the solid
pier.’” Again, though, the Trust has provided no analysis or study showing that
the opening and culverts will actually allow adequate water flow so that the solid
pier will not negatively affect water and lakebed quality at the project site.

¶45 Ultimately, it was the Trust’s burden, as the permit applicant, to
show that its proposed solid pier would not be detrimental to the public interest.
See Sterlingworth Condo. Ass’n, 205 Wis. 2d at 726. For the reasons explained

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above, with respect to the DNR’s determinations regarding littoral drift and water
quality, the Trust failed to meet its burden.

C. Detrimental effects on public users

¶46 In assessing whether the Trust’s proposed solid pier would be
detrimental to the public interest, the DNR also properly considered the pier’s
impact on public users of Juddville Bay. See id. at 724 (stating that WIS. STAT.
§ 30.12 allows the DNR to consider, among other things, the public policy interest
in obtaining “the fullest public use” of public trust waters (citation omitted)). The
DNR found—and the Trust does not dispute—that the Trust’s proposal would
“privatize 5,248 square feet of public lakebed” and, including dredging, would
affect “11,473 square feet of public lakebed.” Citing the Solid Pier EA, the DNR
further observed that “[t]he construction of structures which create a partial
enclosure of navigable waters has in the past created the illusion and perception of
private ownership of these waters of the [s]tate,” which has “created user conflicts
between the owners of the structures and persons wishing to navigate on the
waters enclosed by them.” In particular, the DNR noted that solid piers are an
obstruction to “small boats troll[ing] the near shore area.” The DNR also noted
that it observed “multiple anglers” during its visit to the project site.

¶47 The Trust attempts to downplay the size of its project, characterizing
the proposed structures as “small” and as representing “approximately one-tenth of
an acre in one of the largest freshwater bodies on the planet.” Neither the DNR
nor this court, however, is required to accept that characterization of the project,
particularly in light of the undisputed evidence summarized above regarding the
project’s scale.

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No. 2023AP1445

¶48 The Trust also asserts that its proposed pier is “no larger than needed
to withstand the natural forces of the area.” As the DNR has noted, however,
“[m]any riparians use temporary flow through piers which are put in and taken out
annually,” and “these piers seem to work satisfactorily.” The Trust does not
address whether a removable pier would, in fact, serve its needs. Notably, while
the Trust asserts that its prior, non-solid pier was inadequate because it was
destroyed by wave and ice action, a removable pier—which would be taken out of
the water in the winter—would avoid that problem. In this respect as well, the
Trust has failed to meet its burden to show that its proposed pier would not be
detrimental to the public interest. See id. at 726.

D. Cumulative impacts of solid piers

¶49 Finally, the DNR also properly considered the cumulative impacts of
solid piers along Door County’s Green Bay shoreline when determining that the
Trust’s proposed pier would be detrimental to the public interest. Our supreme
court has confirmed that when assessing whether a particular project would be
detrimental to the public interest, it is appropriate to consider the cumulative
impacts of similar projects. See Hixon v. PSC, 32 Wis. 2d 608, 631-32, 146
N.W.2d 577 (1966). As the court explained in Hixon:

There are over 9,000 navigable lakes in Wisconsin
covering an area of over 54,000 square miles. A little fill
here and there may seem to be nothing to become excited
about. But one fill, though comparatively inconsequential,
may lead to another, and another, and before long a great
body of water may be eaten away until it may no longer
exist. Our navigable waters are a precious natural heritage;
once gone, they disappear forever.

Id. This court has similarly stated:

Although nine additional boat slips may seem
inconsequential …, we approach it differently. Whether it

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No. 2023AP1445

is one, nine or ninety boat slips, each slip allows one more
boat which inevitably risks further damage to the
environment and impairs the public’s interest in the lakes.
The potential ecological impacts include direct impacts on
water quality and sediment quality alteration, as well as
direct and indirect influences on flora and fauna. For this
very reason, the consideration of “cumulative impact” must
be taken into account.

Sterlingworth Condo. Ass’n, 205 Wis. 2d at 721.

¶50 Consistent with these authorities, the DNR properly considered the
cumulative impacts of solid piers along Door County’s Green Bay shoreline. For
instance, the DNR noted that “[t]here are presently several extensively dredged
areas and solid structures in the immediate vicinity” of the project site “that result
in direct loss of habitat for fish and other aquatic organisms, most apparently
nesting smallmouth bass.” These considerations further supported the DNR’s
determination that the Trust’s proposed pier would be detrimental to the public
interest, and the Trust did not meet its burden to show otherwise.

E. Ultimate determination that the proposed pier would be detrimental to
the public interest

¶51 As explained above, the DNR had at least four bases for its
determination that the Trust’s proposed pier would be detrimental to the public
interest. In reaching that conclusion, the DNR relied on its observations regarding
the project site and used prior studies, including the Solid Pier EA, to aid it in
interpreting those observations. It was the Trust, not the DNR, that had the burden
to show that the proposed pier would not be detrimental to the public interest, and
the Trust failed to meet its burden. Consequently, the DNR acted within its
discretionary authority by denying the permit, and we will not “not substitute [our]
judgment for that of the [DNR]” with respect to this issue. See WIS. STAT.
§ 227.57(8).

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No. 2023AP1445

II. The DNR did not apply a policy against private solid piers when denying
the Trust’s permit application.

¶52 The Trust argues that the DNR “as a matter of policy, prohibits
private solid piers on the bed of Green Bay along the shoreline in Brown, Door
and Kewaunee Counties based on the Solid Pier EA.” The Trust further asserts
that the DNR applied this policy when denying the Trust’s application for a solid
pier permit. The Trust notes, however, that the legislature has expressly
prohibited the DNR from promulgating rules that categorically “prohibit the
issuance of individual permits for solid piers used for private or commercial
purposes.” See WIS. STAT. § 30.12(3m)(d)2. The Trust therefore asserts that the
DNR exceeded its lawful authority by denying the Trust’s permit application
based on its policy prohibiting solid piers.

¶53 The DNR’s decision belies this assertion, as it shows that the DNR
did not apply an unlawful, categorical ban on solid piers but instead determined,
based on the specific facts of this case, that the Trust’s proposed solid pier would
be detrimental to the public interest. As discussed above, in reaching its decision,
the DNR relied on the specific characteristics of the project site and observations
that the DNR made during its site visit. The DNR then referenced the Solid Pier
EA and other scientific studies when interpreting its site-specific observations in
order to determine whether the Trust’s proposed pier would be detrimental to the
public interest. The Trust concedes that, in reaching its decision, the DNR could
properly use the Solid Pier EA as a “reference document” that provided
“methodologies and tools to evaluate impacts.” The DNR’s decision shows that
this is precisely what the DNR did. As such, we reject the Trust’s argument that
the DNR exceeded its authority by applying a policy prohibiting solid piers.

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No. 2023AP1445

¶54 In support of its argument that the DNR applied such a policy, the
Trust cites various emails written by DNR staff members. As the DNR correctly
notes, however, “Emails are not the subject of judicial review and have no legal
force …. No statement in an email can change the bases for [the] DNR’s actual
decision and what is subject to review here.” We agree with the DNR that,
regardless of what DNR employees may have stated in emails, the “DNR’s actual
decision—the decision subject to this judicial review—properly evaluated the
[Trust’s] application, addressed site-specific impacts, and denied the application
not based on a categorical ban but rather based on multiple factual reasons why the
pier was not in the public interest.”

¶55 In addition, even if we considered the staff emails cited by the Trust,
we agree with the DNR that they do not support the Trust’s assertion that the DNR
denied the permit application based on a policy prohibiting solid piers. For
instance, the Trust cites one email in which a staff member referred to a “solid pier
policy.” However, the email’s author—who was not the individual who ultimately
denied the Trust’s permit application—did not further describe the so-called “solid
pier policy,” and he acknowledged his own “knowledge gaps” regarding the
subject. Moreover, the email’s author emphasized the need for “detailed specific
observations” and suggested “tak[ing] a boat ride to evaluate the actual impacts,
take documentation, and describe the affected environment.” As such, this email
actually cuts against the Trust’s argument that the DNR applied a blanket policy
prohibiting solid piers.

¶56 The Trust also quotes another email—this one written by the
individual who ultimately denied the permit application—as stating that “we have
an Environmental Assessment for solid structures that we have used to defend ‘no
new solid structures…’” The actual quotation from the email, however, is: “While

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No. 2023AP1445

we have an Environmental Assessment for solid structures that we have used to
defend ‘no new solid structures[,]’ we will need to identify site specific qualities as
well.” (Emphasis added.) The email further states: “We have been invited to do a
site visit as the next step, and I encourage you to come with.” Again, rather than
supporting the Trust’s argument that the DNR applied a blanket policy prohibiting
solid piers, this email actually shows that the DNR understood the need to
consider the specific facts surrounding the Trust’s application.

¶57 The Trust also cites another email, in which a DNR employee stated
that “[s]olid piers in this stretch of Door County are rare and have not been
permitted since the 1990’s report on the area”—i.e., the Solid Pier EA. The Trust,
however, ignores the following language from the same email:

A solid pier does not allow for natural water flow to
continue along that stretch of shoreline which then creates
areas or zones which become less or non-productive.
Adding in a way to pass littoral drift would be mandatory
in order for this to be considered a complete permit
application as well as engineering and even modeling to
show that the opening is adequate to pass littoral drift.

(Emphasis added.) This additional language again shows that the DNR was not
applying a blanket policy prohibiting solid piers but, instead, was willing to
consider granting a solid pier permit where the proposal adequately addressed the
passage of littoral drift.

¶58 We therefore reject the Trust’s argument that the DNR applied a
blanket policy prohibiting solid piers when it denied the Trust’s permit
application. Instead, as summarized above, after applying the scientific principles
set forth in the Solid Pier EA to the specific facts of this case, the DNR made an
individualized determination that the Trust’s proposed pier would be detrimental

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No. 2023AP1445

to the public interest. Accordingly, the DNR did not exceed its lawful authority by
denying the permit application.4

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

4
The Trust also argues that the DNR “violated rulemaking requirements under” WIS.
STAT. ch. 227 because its blanket policy prohibiting solid piers constitutes an unpromulgated rule.
Because we conclude that the DNR did not apply a blanket policy prohibiting solid piers, we need
not address this argument. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628,
673 N.W.2d 716 (stating that this court need not address all issues raised by the parties if one is
dispositive).

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