Wisconsin's Collectivist Bureaucracy: Part II

Wisconsin's Bureaucracy Will Do Whatever It Takes

The sheer magnitude and scope of regulation in the United States and in Wisconsin is hard to put one’s head around and by itself tells a daunting story of oppression: In Wisconsin’s administrative code alone, the number of state restrictions lassoing life tops 165,000, and the government is adding more than three restrictions every day we breathe.

Try going 24 hours without breaking a state regulation. Likely you will violate one, and it’s also likely you won’t even know it most of the time. What’s worse, the government spends tens of thousands of hours each year thinking up new restrictions, and they are far from done. The reach of government control today and the fear used by bureaucrats to attain it would startle George Orwell and cause Ayn Rand to flinch.

Ayn Rand flinched very little.

If we dare to dip into mythology, the collectivist bureaucracy might be described as a modern Typhon, one of the deadliest of all gods, today’s version a spectacular serpentine mammoth with a burgeon of bureaucrats writhing atop tentacles of terror. At least that’s how many average citizens might see it, but maybe that’s just because the state has seriously disrupted their lives and ruined more than a few.

In characterizing these creatures in a more modern and pop culture context, and certainly in a less macabre way, the Wisconsin Manufacturers and Commerce (WMC) has come up with a term of its own—super-regulators. That’s accurate but generous. Super-regulators they are, but their impact and power does not stop with the black-and-white of the regulatory page. Indeed, it’s not just the sheer numbers or impact of any single regulation that indicts the administrative state in modern life, or even the cumulative impact of those regulations, as costly and burdensome as they are.

Rather, it’s the administrative state’s whole-of-government approach to its life work, to its core mission of total power, that takes bureaucrats above and beyond the climbing frame of its regulatory playground. It seeks not to regulate but to reign over all aspects of life. It seeks to impose the bureaucratic equivalent of a police state—sometimes armed with actual police power and weapons and courts—and it imposes its will and way, that is to say, its regulations through the use of a saturating, all-encompassing methodology, backed up by intimidation and fear. Whether it is through preferential clientelism; or through coercive federalism; or through legislative subversion; or through a maze of technical paperwork and protocol; or through the sheer repetition of enforcement and threat of enforcement using the bully pulpit; or through sue-and-settle lawsuits—through all these and more the bureaucracy rules.

It writes and rewrites its interpretations, or it writes new rules to fill statutory voids, until it achieves the declared bureaucratic mission; it issues citations and punishes through its own courts when necessary; it harasses citizens in court until they give up or go broke. It revokes occupational licenses, robs local governments of participation in critical decisions affecting their communities, and even seizes private property when it’s necessary.

And bureaucrats do so for as long as it takes. They are less super-regulators than they are overlords—the lords of lords, the supreme rulers of the landscape.

At least that’s what they want to be. Thankfully an ongoing resistance by determined conservatives and taxpayers—while not wildly successful in constraining big government—has at least prevented the supreme-ruler wannabes from attaining overlord status completely.

But the bureaucrats keep trying.

A Pox On Your (Boat)house

It pays in any examination of the administrative state to first take a bird’s eye view to see how the bureaucracy works over time to secure its collective power, how its mitigates the ability of average citizens to enjoy their lives, and how it creeps into every corner of those lives. And there’s no better case study to do so than the state Department of Natural Resources (DNR) and its more than 50-year war against Wisconsin’s boathouses, one of the state’s more iconic and identifying outdoor features.

A boathouse might not seem like an issue so critical that the DNR would spend thousands of employee hours and tens of thousands of dollars—not to mention five full decades—trying to rid the Badger state of them. But to the agency it has been and is a defense of a core environmental proposition—that the touch of any human hand is by definition pollution—and a declaration that its ‘scientific’ views must never be challenged.

That might seem unhinged, given that the image of an idyllic boathouse perched on the serene shore of a northern Wisconsin lake is ingrained in the state’s culture. So integral to the folklore of the state’s history, in fact, that in 2014 photographer Tom Freeman published a book featuring 155 of the structures—some grand, some humble, all inviting. More than a few are on the National Register of Historic Places. One such example is the Northwoods’s William H. Yawkey Boathouse, built in 1917 by Yawkey, a lumber tycoon who at one time also owned the Detroit Tigers.

The registration form for the National Register describes the boathouse as retaining “a high degree of historic integrity with its original materials, picturesque setting, skillful workmanship, and clean, Craftsman style design.” The boathouse was placed on the National Register in 2009, a designation that has saved it from any of the DNR’s darker ambitions, but the Northwoods is loaded with similar boathouses that, if not so worthy of historic designation, are nonetheless treasured not only by their owners but by their communities and all who seek solace in this midwestern Americana. Many vivid memories of summer Northwoods vacations conjure up images not just of canoes and kayaks and rope swings on trees overhanging the lake but of burnt orange, rich brown, and earthy green boathouses settled against the lake, as welcoming and as comfortable looking as an Adirondack chair.

Naturally, such boathouses are also exactly the kind of structures the DNR and its environmental allies have wanted to go away. They represent a culture for which the state bureaucracy reserves some of its greatest wrath, for boathouses represent all that the bureaucracy despises: a human dimension to aesthetic beauty; the call of the lakes and the opportunity to relax. An exquisitely designed boathouse defies social uniformity with its individual expression.

None of that speaks to the government’s belief in joyless functionality and harmony with grey government sameness. None of that speaks to the government’s “science of beauty” itself, and its desire to clamp down on any alternative expression. And so that is why state government, through the DNR, has waged a war against boathouses for the last 50 years.

Zero Tolerance

To be sure, the agency’s mission has evolved over time, reshaped in ever more subversive ways as their overall sentiment for elimination was rejected time and again. In the beginning, though, boathouses were marked for total elimination, and the DNR concocted as many reasons as there were boathouses to extinguish them. For one, the bureaucrats asserted they conflicted with the mission of an arbitrarily divined 75-foot setback from the ordinary high-water mark, a setback zone designed to be free of all human influence. The idea that new boathouses could be built, or older ones maintained forever, was anathema.

The campaign for elimination dates back to at least the 1960s, but it became a public crusade in 1973, when the agency was sued over a wet boathouse permit denial and order of removal, not because the boathouse posed a safety hazard and not because it was an environmental threat, but because it offended the DNR’s aesthetic tastes. The agency thought it ugly because, well, in their view anything made by human hands is by definition ugly.

As other court cases and depositions make clear, the DNR has long been run by a group of extreme conservationists, otherwise known as radical aestheticists, whose most important belief is in the absolute integrity and untouched nature of natural habitats. To them, human culture exists outside the realm of the natural environment. Any human interaction with the “pure earth” is looked upon as an act of desecration that spoils the landscape’s objective beauty, and human presence in the environment is by its very nature “aesthetic pollution.”

As I have written before, the aestheticists do not so much care about having clean air, clean water and clean landscapes; they want beautiful air, beautiful water, beautiful landscapes.

This is not hyperbole. As the DNR has proclaimed in actual court depositions, what’s naturally beautiful isn’t subjective. Beauty doesn’t lie in the eye of the beholder. Rather, there is a definition for it: The lack of human interaction is beautiful; anything made by humans detracts from beauty. In one court deposition in the mid-2000s involving piers in Manitowish Waters, a DNR water specialist actually proclaimed that "every structure that’s a human-placed structure . . . diminishes natural scenic beauty”:

"Well, I don't know that I would phrase it in terms of spotting beauty, but our responsibility as an agency in evaluating water regulatory permits is to evaluate impacts of a proposal on natural scenic beauty,” the water specialist said. "And we have some pretty clear direction from case law that indicates that natural scenic beauty would be something that is, does not visibly show impacts of human interactions, of human effects on the landscape.”

That quaint covered bridge you always thought so beautiful? It’s not. That rustic boathouse on the peaceful autumnal shore? It’s an eyesore. And the DNR would like it to go away, thank you very much.

Putting The Rule Before The Law

The elevation of that kind of thinking started in earnest in the aforementioned 1973 case, Claflin v DNR, which was the first big test of the DNR’s bid to rid the state of boathouse ugliness. It involved a permit denial and order for removal of a boathouse built below the ordinary high water mark (OHWM). All sides agreed the structure did not pose a material obstruction to navigation or reduce effective flood flow. As the court observed, testimony by a “variety of neighbors, builders, architects, an assessor, and by [the complainant] Claflin himself, support[ed] a determination that the boathouse was well designed and maintained; that it is not an eyesore and that, indeed, it does not impair natural beauty.”

Ah, but it impaired natural beauty in the eyes of the DNR, by its very definition of natural beauty. As was the case generally back then, the lawsuit was originally heard in Dane County, and the Dane County judge unsurprisingly backed the DNR when it was challenged. And so did the Supreme Court of the day, remanding the case back to the agency to consider the permit again but agreeing that, as justice Horace Wilkie wrote for the court, such an aesthetic regulation in navigable waters was acceptable:

Like boathouses. So the administrative state had the right to decide what is beautiful and what is not, and the administrative state had the power to tell Wisconsin residents they could not build a boathouse simply because, in the state’s view and contrary to the testimony of citizens, it was ugly. Who knew that DNR specialists were not just experts in scientific fields such as hydrology but trained to know what beauty itself was?

In the 1970s, Wisconsin, at least by law, allowed two types of boathouses—both those adjacent to the shore and those extending out over the water, the latter so-called “wet boathouses” that were built below the ordinary high water mark. It was the wet boathouses that the DNR targeted first and foremost, again mostly for aesthetic reasons and because they were also considered low-hanging fruit. The Claflin boathouse was a wet boathouse, and the Claflin decision emboldened the agency’s pursuit of violators. Finally, the DNR and its environmental allies whipped up enough support to have the legislature ban the structures in 1979.

But here’s what most people don’t know: The DNR, by rule with the force and effect of law, had declared wet boathouses illegal back in 1970, nine years before elected officials addressed the issue. The regulation was a major arrow in the agency’s shoreland regulatory quiver, and it was a major reason the agency felt confident in denying wet boathouse permits. It was also one of the DNR’s major arguments against Claflin, and Wilkie cited the heavy weight the agency assigned to it:

So wet boathouses were already illegal in the DNR’s eyes. In this case, the court said it could not consider the rule in the specific decision because it was enacted after Charles Claflin had filed his application and hearings were held. Wilkie also mildly rebuked the agency, writing that “the merits of the application should have been considered in the light of the provisions of [state law] and without regard to the general policy incorporated in the DNR’s own administrative code.” Even so, Wilkie sidestepped any consideration of the validity of the rule, saying it was not relevant to the pre-rule application.

Given An Inch But Taking A Mile

That gave the court an opening to avoid voiding the rule and to base its decision on aesthetic beauty, which was an even better outcome for the DNR. As long-time DNR attorney Michael Cain wrote in 2010, “his decision has served as the basis for much of the progress we have made in the ‘natural scenic beauty’ and ‘aesthetics’ area under the public trust doctrine. … [T]his case affirmed that impairment of natural beauty by itself could serve as the basis for determining that a project is ‘detrimental to the public interest.’”

With its rule banning wet boathouses for all sorts of reasons intact—from waterway obstruction to water quality degradation—and armed with a newly validated standard of aesthetic beauty, the DNR began to charge hard against wet boathouses long before the elected legislature ever uttered a word, and long before a compliant legislature years later finally weighed in. The tail was wagging the dog even then.

Not only that, but, at the DNR’s urging, lawmakers in that 1979 law gave the agency another hammer by which to get rid of wet boathouses: The so-called 50 percent rule that limited repair and maintenance to 50 percent of the assessed value of the structure over its lifetime (a rule that was applied to nonexempt nonconforming structures as well). That in and of itself was a pernicious policy intended to require property owners to eventually let wet boathouses fall into disrepair and dilapidation—to literally rot away before everyone’s eyes. How’s that for scenic beauty? Still, it guided state policy for years.

The DNR was not content to eliminate just wet boathouses. It wanted all boathouses and indeed all structures within the 75-foot setback (nonconforming structures) gone. Still, there were obstacles in its way. For one, nonconforming dry boathouses—by public demand and tradition—were considered exempt non-conforming structures and then, during the late 1980s and 1990s, Republican Tommy Thompson was governor. Thompson gave conservationists many things that ultimately worked against private property rights—comprehensive planning, the Stewardship program—but he also did something that somewhat checked the agency: He made the DNR secretary a gubernatorial appointment. Suddenly, the agency, which had been guided by an activist environmentalist in Tony Earl, first as DNR secretary and then as governor, was under democratic control, and however much a conservationist Thompson was, he also believed much more in private property rights than did agency officials or Earl. The DNR may not have been caged, but it was no longer running unleashed. Not to mention, overall comprehensive planning became the hot-button topic in those years, not shoreland zoning.

The Dark Days Of Doyle

That all ended with the coming of Democrat Jim Doyle. During his tenure, the agency began to gin up its aggressive activism and lawmaking and once again shoreland issues and boathouses were at the top of the list. The DNR strategy unfolded on both macro-political and micro-political levels. On the macro-level, the state set dead aim at all shoreland nonconforming structures.

One trick of the book involved a disingenuous attempt to deceive the public by twisting state statutes and case law on nonconformity. Both aimed for the eventual elimination of nonconforming uses—for example, the operation of a commercial interest in a residential zone. But the Doyle administration declared, without any legislative input, that case-law interpretations had expanded that to include the elimination of both nonconforming uses and structures—your boathouse, in other words—as quickly as possible.

Assistant attorney general Joanne Kloppenburg outlined the agency’s philosophy in a 2003 presentation: “While the statutes refer to structures used to carry on a prohibited trade or industry, as shown later the courts have determined that this language—along with the broad language giving counties general zoning power—leaves unfettered a county’s power, and indeed constitutional obligation, to regulate so as to limit and ultimately eliminate all nonconforming uses and structures,” Kloppenburg wrote.

The combination of a broadly interpreted nonconforming use statute with general zoning powers helps the agency, she wrote, provide for the “speedy elimination” of nonconforming uses and structures. Legally and practically, she wrote, in the state’s eyes there was no distinction between a nonconforming use and a nonconforming structure.

“In sum, as the court said in Seitz II… , the spirit of zoning is to restrict nonconforming uses and structures and to eliminate them as speedily as possible,” Kloppenburg wrote in her “Review of Nonconforming Zoning Law,” March 24, 2003.

The problem is, Kloppenburg’s assertion was rubbish, a legal eyesore. In her review of zoning law, Kloppenburg quoted the court in Seitz II as defining the spirit of zoning as the speedy elimination of nonconforming structures and uses. However, the court did no such thing. The Seitz II decision referred only to uses, not structures—Kloppenburg cleverly added the latter. Here’s what the court actually wrote in the decision: “We hold that the trial court properly placed the burden of proof on Seitz. We wrote in Seitz I that the spirit of zoning is to restrict a nonconforming use and to eliminate such uses as quickly as possible...”

That was still the case, the court determined. So not only had the legislature not weighed in, neither had the court. The administrative state was on the move.

Make no mistake how badly Kloppenburg and her ilk wanted nonconformities eliminated. In that shoreland zoning review, she also compared traditional cottages and boathouses to junkyards:

So your boathouse and your cottage, they are junkyards in the eyes of the state.

On the micro-level, while the DNR was transforming state policy to eliminate as quickly as possible all nonconforming structures and uses, it was turning the screws anyway it could on existing property owners, through changes in rule and statutory interpretation. As one property owner told the Chicago Tribune in 2003: “We’re trying harder to keep our places and keep them up, and the DNR [Department of Natural Resources] appears to be working harder to let the places run down so they can kick us out.”

The pace increased not only during Doyle’s tenure but throughout the early years of Scott Walker’s governorship, though not because Walker wanted it. Exactly the opposite. For example, during Walker’s first term, the DNR changed the way it thought about pre-1979 boathouses. Here’s how attorney Paul Kent put it in 2016: “[O]ver the last several years, the DNR has taken an increasingly rigid view of the legality of pre-1979 boathouses. Recently, the DNR began maintaining that pre-1979 boathouses not exclusively used for navigational purposes are illegal. This potentially affected thousands of boathouses that have been partially or entirely converted into vacation homes or other uses.”

From both ends of the spectrum, the DNR was sandwiching the owners of boathouses and other nonconforming traditional structures, including cottages owned by families for generations, in a massive but incremental assault. They were nothing but junkyards, eyesores interfering with aesthetic beauty, after all.

Property Owners Fight Back

Of course, with Republicans in control of government after 2010, such abuses were bound to be noticed. Noticed they were, and the legislature and the governor acted. A 2012 law scrapped the 50 percent rule and allowed owners of wet boathouses unlimited repair and maintenance. A 2016 law re-asserted riparian landowners’ rights in boathouse maintenance and repair, and, as a Wisconsin Legislative Council memo pointed out, modified the legal definition of a boathouse “to remove the requirement that boathouses may only be continuously used for the storage of watercraft and specifies that foundation repair is included under allowable maintenance and repair of boathouses.”

It should be noted—because this is the heart and soul of the way the bureaucracy works—that the 2016 change in boathouse definition was needed to slap down the DNR’s new interpretation on pre-1979 boathouses, which the DNR had imagined as one way to get around the 2012 law.

Calling it cat-and-mouse is not sinister enough to describe the ways the DNR responds to legislative efforts to control it. After Walker was elected in 2010, and the GOP gained control of the legislature, the DNR could no longer keep the elimination of boathouses on its to-do list. The legislature codified the structures. The people had pushed back. But that didn’t mean agency bureaucrats were willing to let boathouse owners live in peace.

It wasn’t just wet boathouses the agency had in its crosshairs. Turns out, many boathouses have flat roofs that were ideal for use as a deck, a place where families and friends could gather to chat and watch a sunset, with maybe a few drinks in hand. And that’s what many people did. Naturally this, too, offended the agency, so if they could not take the boathouse away, they surely would take the use of the deck for any enjoyment away. And so the agency had also begun to assert the statutory definition of a boathouse as a structure “used for the storage of watercrafts and associated materials.” The DNR bureaucrats took it upon themselves to add the words, in their interpretation, “and used only for those purposes.”

Indeed, DNR boathouse standards declared that they “shall not be designed or used as decks, observation platforms, or for other similar uses.” By fiat, agency bureaucrats just wrote a rule that boathouse roofs could not be used as decks. Use any part of a boathouse for fun or anything else and you would earn the wrath of the agency. Never mind that the legislature never made any such determination.

And the DNR was adamant about it. Things got so bad with the harassment of boathouse owners that Republican lawmakers, led by then state Rep. Adam Jarchow, actually got another 2016 statute enacted specifically prohibiting the DNR from stopping people from using their boathouse roofs as decks: It read:

Another Day, Another Interpretation

That should have been the end of the story, but there’s more. After the law was enacted, an Oneida County resident decided to actually construct a deck on his boathouse, and, when the county asked the DNR for its opinion, the DNR issued a guidance document to advise that he couldn’t do it. Here’s how the DNR’s shoreland zoning policy coordinator, Kaye Lutz, explained it in a letter to Oneida County officials:

“Act 167 allows exempt structures (such as boathouses) to be replaced, repaired, etc. provided there is no expansion of the 3-dimensional building envelope. Act 391 allows the roof to be used as a deck, meaning that you can sit on the roof, read on the roof, lounge on the roof and do the activities that you could do on a deck, on the roof. It does not say construct a new deck on the roof. It says, ‘may be used as a deck.’”

As I reported at the time in The Lakeland Times, that foreclosed the possibility of a deck for most people because virtually no one already had a deck, given that the DNR considered them illegal in the days before Jarchow’s bill was enacted. So, in the astounding interpretative minds of the DNR, you could use a deck but you couldn’t build one. After the guidance document was issued, Jarchow, in a letter to surveyor Jimmy Rein, reiterated the intention of the legislation:

“This provision is clear that the intent of Act 391 was, and still is, to allow decks on top of boathouses. The plain language in Act 391 was crafted specifically to permit such a project — counties should not prohibit nor should they pass an ordinance prohibiting decks to be constructed on top of boathouses. Decks and other materials should absolutely be allowed on top of boathouses.”

In this case, a little publicity goes a long way, and the DNR surrendered on the issue:

“Upon reflection we believe that we must revise our position to be in-line with the legislative intent,” Lutze wrote. “Statutes are interpreted to avoid absurd results. It would be absurd for the Legislature to specifically allow a roof to be used as a deck, and for railing to be installed, while simultaneously refusing to allow modifications to the platform itself to make it useable as a deck.”

But until it became a public controversy, the DNR had no qualms advising the county that the absurd position it was now revising was the correct one.

So now that’s the end of the story, right?

Well, again, no. The bureaucrats in the DNR are still angling to shut down boathouse rooftop decks. In 2023, the Oneida County planning and development committee decided to rewrite its shoreland zoning code, mainly to codify actual practices as a result of recent statutory changes and amendments to statutes. One of the elements local officials considered necessary was to codify that boathouse owners who had stairs leading to the roofs of their boathouses—how else to get there in most cases, right?—was an allowable and necessary part of the exempt boathouse structure.

Nobody gave it a second thought.

That is, until the county submitted its proposed changes to the DNR for review, as it must under state law. The county was stunned and infuriated when the DNR casually informed officials that it would not approve the change because boathouse owners were not allowed to have stairways to boathouse rooftop decks. Just as the agency had before said a boathouse roof could be used as a deck so long as an actual deck was not built, now the agency was saying that a boathouse roof could be built and used as a deck, so long as you had no way to get to it.

DNR: Logic Is Not Our Job

The agency interpretations defied logic and common sense, as Oneida County supervisor Bob Almekinder said: “The DNR says you can have a deck, but you can’t use it. Does that make sense?”

The disconnect was lost on DNR shoreland specialist Dale Rezabek, who wrote in a March 28, 2023 letter to the county: “At this time the proposed amendments listed below remain out-of-compliance with State Statute and Administrative Code and cannot be certified by the Department: Section 9.94 A. 1. J.: Stairs to a boathouse roof on the exterior are not an exempt accessory structure in statute or code.”

But the conclusion about the statute requires a DNR interpretation that a stairway to an allowable deck is an accessory structure and not part of the boathouse. It’s a rigid and narrow statutory interpretation, as absurd as the previous interpretation concerning building a deck. The county has now hired outside counsel and is contesting the DNR on the matter.

In the administrative state, there’s always another way to skin a cat, and the quest to eliminate boathouses serves up the quintessential example of DNR skullduggery. First, they had to be eliminated because they polluted natural scenic beauty. Then, when the agency was forced to exempt dry boathouses, it reinterpreted the public trust doctrine to assert the quick elimination of all nonconforming structures, including your great grandparents lake cottage. After the legislature allowed maintenance and repair of wet boathouses, the agency wrote new criteria for wet boathouse eligibility, to whinny out the oldest structures. After the legislature decreed that boathouses were OK, then the state punished all but the strictest use of a boathouse, eliminating all personal use. After that didn’t work, and the legislature granted people the right to have a deck for personal enjoyment of a flat boathouse roof, the DNR told people that was only if they already had such a deck because it was still illegal to build one, which was quite like saying, on the first day Prohibition ended, it’s all right to have alcohol so long as you already have it. And when that gambit didn’t work, the agency said it was all right to have a boathouse or even build one, so long as you could get to it without stairs.

The administrative state seeks total control. It persists for decades because the bureaucracy is an eternal creature powered by the warm water of longevity. It thrives on a broken civil service system that allows partisan ideologues to stay employed forever even as they work brazenly against the will of elected officials. It invents unique interpretations to take advantage of legislative omission despite obvious common sense intent. It seeks to undermine legislative authority at every turn.

The administrative state is a Colossus—until the people and their elected representatives stand up and say, once and for all, it will no longer be.