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COURT OF APPEALS
DECISION
DATED AND FILED
January 15, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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Curt Andersen, John Hermanson, Rebecca Leighton Katers,
Christine Fossen Rades, Thomas Sydow and Clean Water
Action Council of Northeastern Wisconsin, Inc.,
Petitioners-Appellants,
National Wildlife Federation,
Petitioner,
v.
Department of Natural Resources,
Respondent.
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Ft. James Operating Company,
Petitioner-Respondent,
v.
Department of Natural Resources,
Defendant,
Curt Andersen, John Hermanson, Rebecca Leighton Katers,
Christine Fossen Rades, Thomas Sydow and Clean Water
Action Council of Northeastern Wisconsin, Inc.,
Intervenors-Appellants.
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APPEAL
from an order of the circuit court for Brown County: WILLIAM
M. ATKINSON, Judge. Reversed
and cause remanded for further proceedings.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. This appeal concerns petitions
for judicial review of an administrative decision by the DNR, which were
consolidated into one case by the circuit court. The appellants include a number of
individuals and Clean Water Action Council of Northeastern Wisconsin
(collectively “the Council”). The
respondent is Fort James Operating Company, which operates a paper mill in Green Bay, Wisconsin.
¶2 The Council petitioned the DNR for review of a Wisconsin
Pollutant Discharge Elimination System permit granted to Fort James. Fort
James claimed the
petition was not properly verified pursuant to Wis. Stat. § 283.63.
When the DNR disagreed, Fort
James petitioned the
circuit court for review.
¶3 The Council asserts the circuit court did not have
jurisdiction to hear Fort James’ petition for judicial review because the
administrative decision appealed by Fort James was not a final agency decision.
Alternatively, if the court did have
jurisdiction over Fort
James’ petition, the
Council claims the court erred when concluding that the Council’s petition for
DNR review of the permit was not properly verified. Because we agree that Fort James’
petition seeks review of a non-final agency decision, we reverse the circuit
court’s order and remand for further proceedings on the merits of the Council’s
petition.
BACKGROUND
¶4 On August 30, 2005, the DNR issued a Wisconsin Pollutant
Discharge Elimination System permit to Fort James. The Council filed a petition seeking DNR
review of the permit pursuant to Wis.
Stat. § 283.63, challenging aspects of the permit relating to
mercury and phosphorus. Fort
James challenged the
Council’s petition, contending it was not properly verified. After rejecting Fort James’
verification argument, the DNR partially granted and partially denied the
Council’s petition, allowing a hearing as to the phosphorus issue, while
denying a hearing on the mercury issue.
¶5 The Council petitioned for judicial review of the DNR’s
denial of a hearing on the mercury issue.
Fort James did not respond to the Council’s
petition for judicial review, but instead filed its own petition for judicial
review, challenging the DNR’s jurisdiction to grant a hearing on the permit,
arguing that the Council’s petition was
not properly verified.
¶6 The Council and the DNR both moved to dismiss Fort James’
petition for judicial review for lack of subject matter jurisdiction. One basis for challenging the court’s
jurisdiction was that the DNR’s decision was not a final order adversely affecting
Fort James’ substantial interests. Fort
James moved to
consolidate both cases or, alternatively, to intervene as a party to the case
involving the Council’s petition.
¶7 On July 28, the circuit court denied the motions to dismiss
Fort James’ petition and granted Fort James’ motion to consolidate the
cases. On November 16, the court granted
Fort James’ petition for judicial review, concluding
that the Council’s petition for DNR review of the permit was not properly
verified pursuant to Wis. Stat. § 283.63. Accordingly, the court dismissed the Council’s
petition for judicial review.
DISCUSSION
¶8 Before an administrative decision can be subject to judicial
review, it must adversely affect a person’s substantial interests. Wis.
Stat. § 227.52. Case law has
further established that an administrative decision must be “final” to be
reviewable. Sierra Club v. DNR, 2007
WI App 181, ¶13, 736 N.W.2d 918. Whether
an administrative decision is final for the purposes of judicial review is a
question of law we review de novo. Id.
¶9 An administrative order is final and subject to judicial
review when it “directly affects the legal rights, duties, or privileges of a
person.” Pasch v. DOR, 58 Wis. 2d 346, 356,
206 N.W.2d 157 (1973). An aspect of this
standard is whether the aggrieved party would have another opportunity for
judicial review. See id. at 357. The fact
that an early judicial review might avoid the expense and inconvenience of
further administrative proceedings is not a basis for concluding that an order
is subject to review. Sierra
Club, 736 N.W.2d 918, ¶16. It is
more important to avoid the delay and disruption of the administrative process
that would accompany piecemeal review of non-final agency decisions. Id.
¶10 An agency decision denying a jurisdictional challenge and
requiring a hearing on the merits is not a final agency decision subject to
review because, at that point, the party seeking review does not have a
substantial interest that has been adversely affected. Kimberly Area Sch. Dist. v. LIRC,
2005 WI App 262, ¶11, 288 Wis. 2d 542, 707 N.W.2d 872. Until the administrative hearing is
concluded, the effect of the hearing on the parties remains undetermined. Id.,
¶13. The party opposing the hearing may
ultimately prevail on the merits, rendering the question of whether the agency
had jurisdiction to hold the hearing moot.
See id. Alternatively, if the party opposing the
hearing does not prevail on the merits, it may contest the agency’s
jurisdiction upon judicial review of the agency’s final decision. Id.
¶11 Therefore, here, the DNR’s decision rejecting Fort James’
verification challenge and ordering a hearing on the merits was not a final
agency decision subject to judicial review. If Fort
James prevails in the
DNR’s final decision after a hearing, it will not need to seek judicial review
at all. See id., ¶¶11, 13. If Fort
James does not prevail, it
can then seek judicial review, including review of the verification issue. Id.
¶12 Fort
James nonetheless argues
that the verification issue is a separate reviewable issue from the phosphorus
issue on which the DNR ordered a hearing.
Fort James quotes Friends of the Earth v. PSC, 78
Wis. 2d 388, 407, 254 N.W.2d 299 (1977), for the proposition that “[i]f
[an] order finally disposes of matters having an immediate impact upon the
rights of a party, the order may well be reviewable as to such matters despite
the fact that further action by the agency is expected on other aspects of the
case.” Fort James argues that the DNR’s decision
rejecting its verification challenge and ordering a hearing on the merits immediately
impacted its “right to know that any process which is undertaken that may
result in changes to the permit terms—and therefore what constitutes compliance
with mandatory permit requirements—has a lawful basis and is proceeding in
accordance with statutory authority and statutory requirements.” Fort
James characterizes this impacted
right as a “due process injury.”
¶13 It is unclear why Fort
James’ “right to know”
how reviewing courts will rule on the verification issue amounts to a “due
process injury.” Fort James
does not dispute that it can obtain judicial review of the verification issue
after the agency’s final decision. If
its “due process injury” is merely the delay between now and then, we have already
rejected that as a justification for judicial review. See
Sierra
Club, 736 N.W.2d 918, ¶16. If Fort James
is claiming a violation of its constitutional due process rights, its argument
is inadequately developed, and we need not address it. See State v.
Gulrud, 140 Wis. 2d
721, 730, 412 N.W.2d 139 (Ct. App. 1987).
¶14 As an alternative argument, Fort James
argues that, even if the DNR decision is a non-final order, judicial review
should be permitted in the interest of judicial economy. Fort
James contends that
judicial economy is the sole basis for prohibiting judicial review of non-final
agency decisions, and because the Council’s petition for review already
disrupted the administrative process, judicial economy favors deciding both
parties’ claims now.
¶15 However, dismissing Fort James’ petition for judicial review is
consistent with the law prohibiting judicial review of non-final decisions,
along with the underlying purpose of judicial economy. Once a final decision is rendered on the
phosphorus issue, and possibly the mercury issue if the Council prevails in its
petition for judicial review, Fort
James will be able to
obtain judicial review if necessary. If Fort James
prevails in the final decision, it will not need to seek judicial review at
all. Because judicial review of Fort James’
claims may prove unnecessary, it would not be in the interest of judicial
economy to undertake that review now.
By the Court.—Order reversed and cause
remanded for further proceedings.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.