A controversial provision of the Governor’s budget bill proposes to abolish the Office of Wisconsin Public Intervenor.  That would be a grave mistake.  [The Office was abolished in 1995.]

The Public Intervenor, created as part of a comprehensive government reorganization initiated by Republican Governor Warren P. Knowles, is a uniquely Wisconsin institution.  It is the means by which rights that belong to all of us, “public rights in natural resources,” are protected from destruction by either private or government action.

In 1967 after over a year of meetings, public hearings and debate, Governor Knowles’ “Kellett Commission” proposed a sweeping reorganization of the executive branch of Wisconsin state government.  The proposal included a merger of the Conservation Department and the Department of Resource Development.   Opposition to the merger was immediate, as conservationists feared loss of the Conservation Department would mean loss of an advocate for public rights in natural resources.

The advocacy role played by the Conservation Department, in conjunction with the Attorney General, is exemplified by Muench v. Public Service Commission,  a 1952 Wisconsin Supreme Court case reviewing Public Service Commission authorization of a dam on the Namakogan river.  Chief Justice George Curry, writing the court’s opinion in Muench, stated the classic argument for public rights representation:

“Counsel for the company advances as an argument, in opposition to the state’s application to intervene in the review proceedings, that such intervention was entirely unnecessary because it is the duty of the Public Service commission, and not the attorney general, to represent the state in the proceedings upon the application of the company for a permit to erect a dam…. In such proceedings there are usually conflicting interests represented.  On the one side [are those who] favor the application; while on the other side are those [who] oppose [it] on the ground that … public rights will be endangered or destroyed if the dam be constructed.  To hold that the Public Service Commission should not only decide between these conflicting interests … but should also represent the state in protecting public rights, would make the commission both judge and advocate at the same time.  Such a concept violates our sense of fair play and due process which we believe administrative agencies acting in a quasi-judicial capacity should ever observe.” [emphasis added]

The Public Intervenor has, for almost 30 years, played the role envisioned by the Legislature and Governor Knowles.  The office has advocated on behalf of public rights in water under Wisconsin’s “public trust doctrine” and public rights in other natural resources --- including land, ground water, air and wildlife.  That advocacy has been in court proceedings, administrative hearings, committees drafting rules and legislation, and in any other forums in which decisions affecting public rights are made.

When, in 1983, judicial decisions cast doubt on the authority of the Public Intervenor to follow public rights wherever they were threatened, the Legislature responded by promptly declaring that “in carrying out his or her duty to prot3ect public rights in water and other natural resources … the public intervenor has the authority to initiate action and proceedings before any agency or court in order to raise issues, including issues concerning constitutionality …” (1983 Act 410 creating Se. 165.075, Stats.)

Despite these broadened powers the primary role of the public intervenors continues to be advocacy on behalf of public rights in the bureaucratic process.   Bureaucratic decisions such as DNR rules governing hazardous wastes, DILHR septic system approvals [now under the Commerce Dept.], DOT highway authorizations, and DATCP pesticide regulations all affect ordinary citizens who, for example, cannot drink from their wells due to pollution.   These citizens are generally unfamiliar with the ways of administrative agencies.   Because public rights benefit when ordinary citizens are heard, the Public Intervenors office has helped hundreds of citizens in their attempts to navigate the bureaucratic maze.

Whether as “ombudsman” for bewildered citizens, advocate in court or insurer of fair play and due process in the administrative process the Public Intervenor is guided by the statutory duty to protect public rights in natural resources.   Assistance in deciding just how that statutory charge translates into specific action is provided by a Citizens Advisory Committee (CAC) appointed pursuant to Se. 165.076, Stats.  The priorities of the office as well as decisions to initiate or intervene in specific actions are made only after review by the CAC, all of whom are required to “have backgrounds in or demonstrated experiences or records relating to environmental protection or natural resource conservation.”

No one seriously suggests that cutting this office is a money saving effort; the office costs less than a nickel per Wisconsin citizen per year.  Quite the contrary a strong argument can be made that by helping cut red tape the office saves money.   Arguments in favor of abolishing the Public Intervenor seem to boil down to two contentions:  the office is redundant because environmental organizations can and should perform the same functions and the state should not finance litigation against itself.

The Public Intervenor Office, not infrequently, finds itself aligned with environmental and conservation groups such as Trout Unlimited or the Sierra Club.   But the Public Intervenor does not represent them.   The intervenor’s role is distinct from that of any other entity.   The Public Intervenor protects public rights --- rights we all share to fish a stream, hunt a slough, canoe a river, drink clean water, breathe clean air and enjoy scenic vistas.  Other groups are free to take a narrower view; to represent other interests.  When those interests diverge from protecting public rights only the Public Intervenor remains to do what the old Conservation Commission did --- fight for those rights in natural resources that belong to all the people.

The history of the Conservation Commission also illustrates the fallacy of the argument that one state agency should not litigate against another.   Agencies have different missions, goals and constituencies.  Especially when public rights in natural resources are at stake one must have the mission of protecting those rights.   Justice Curry said it best.  If one agency is to be “both judge and advocate” we are all denied the “fair play and due process” to which we and our “public rights” in natural resources are entitled.   The role of the Public Intervenor is to help insure our rights in the environment, the fair hearing to which they are entitled and to help insure that state agencies comply with the laws the Legislature created to that end.
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