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Review: Administrative Rule

WCCD v. DNR, 2004 WI 40, affirming 2003 WI App 76, 263 Wis. 2d 370, 661 N.W.2d 858


¶5. The central issue in this case is the validity of § NR 10.01(1)(h).5 A court may declare an administrative rule invalid “if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures.” Wis. Stat. § 227.40(4)(a). WCCCD alleges that § NR 10.01(1)(h) exceeds the statutory authority of the DNR.

5  “Administrative rules enacted pursuant to statutory rulemaking authority have the force and effect of law in Wisconsin.” Staples v. DHSS, 115 Wis. 2d 363, 367, 340 N.W.2d 194 (1983).

(The court goes on to say that the party challenging the validity of an administrative rule doesn’t bear any burden of showing that agency exceeded it authority in promulgating the rule; a question of law, subject to independent review, is presented. ¶10. Nor is the agency entitled to deference on the excess-authority issue. ¶¶11-13.)


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