CITIZENS CONCERNED FOR CRANES AND DOVES v. DNR, 02-1166.

• Court: United States State Supreme Court of Wisconsin
• Citation: 270 Wis.2d 318,677 N.W.2d 612,2004 WI 40
• Docket Number: No. 02-1166.,02-1166.
• Parties: WISCONSIN CITIZENS CONCERNED FOR CRANES AND DOVES, John Wieneke and Pat Fisher, Plaintiffs-Respondents-Petitioners, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant, U.S. SPORTSMEN'S ALLIANCE FOUNDATION f/k/a Wildlife Legislative Fund of America, Defendant-Intervenor-Co-Appellant.
• Decision Date: 06 April 2004

270 Wis.2d 318
2004 WI 40
677 N.W.2d 612

WISCONSIN CITIZENS CONCERNED FOR CRANES AND DOVES, John Wieneke and Pat Fisher, Plaintiffs-Respondents-Petitioners,
v.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant,
U.S. SPORTSMEN'S ALLIANCE FOUNDATION f/k/a Wildlife Legislative Fund of America, Defendant-Intervenor-Co-Appellant

No. 02-1166.

Supreme Court of Wisconsin.

Oral argument January 15, 2004.

Decided April 6, 2004.

270 Wis.2d 326

For the plaintiffs-respondents-petitioners there were briefs by George B. Strother, IV and Krekeler Strother, S.C., Madison, and oral argument by George B. Strother, IV.

For the defendant-appellant the cause was argued by Philip Peterson, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

For the defendant-intervenor-co-appellant there was a brief by Beth Ermatinger Hanan and Reinhart, Boerner, VanDeuren, S.C., Milwaukee, and William P. Horn, Gretchen L. Gaston and Birch, Horton, Bittner and Cherot, Washington, D.C., and oral argument by Beth Ermatinger Hanan.

I

¶ 1. JON P. WILCOX, J.

This case is an appeal of a published court of appeals decision, Wisconsin Citizens Concerned for Cranes and Doves v. DNR, 2003 WI App 76, 263 Wis. 2d 370, 661 N.W.2d 858, reversing an order of the Dane County Circuit Court, Daniel R. Moeser, Judge, which declared Wis. Admin. Code § NR 10.01(1)(h) (Sept., 2000)¹ invalid and enjoined the Department of Natural Resources (DNR) from promulgating a rule authorizing a hunting season for mourning doves in Wisconsin.

¶ 2. The issue on appeal is whether the legislature has granted the DNR authority to set an open season for mourning doves. We have also asked the parties to

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address what impact, if any, the recently adopted "Right to Hunt" amendment to the Wisconsin Constitution has on the outcome of this case. Wis. Const. art. I, § 26. For the reasons discussed below, we affirm the court of appeals' decision. We hold that the DNR has express authority under Wis. Stat. § 29.014(1) (1999-2000)² to adopt § NR 10.01(1)(h) because the legislature has granted broad authority to the DNR to set open and closed seasons for "game" under § 29.014(1) and mourning doves fall within the unambiguous definition of "game" contained therein

II

¶ 3. The facts of this case are few and undisputed. On May 1, 2001, pursuant to § 29.014(1), the DNR adopted § NR 10.01(1)(h), which established an open season for mourning doves in Wisconsin from September 1 through October 30 and set daily bag and possession limits.³ On June 19, 2001, Wisconsin Citizens Concerned for Cranes and Doves, John Wieneke, and Pat Fisher (collectively "WCCCD") commenced an action under Wis. Stat. § 227.40, seeking a declaration that the DNR exceeded its authority in promulgating

270 Wis.2d 328

the dove hunting rule and an injunction prohibiting the DNR from enforcing the rule. The U.S. Sportsmen's Alliance Foundation (Alliance) intervened on behalf of the DNR.⁴

¶ 4. On April 16, 2002, the circuit court granted WCCCD's request for declaratory and injunctive relief, concluding that § 29.014(1) is ambiguous and that the legislature has not clearly authorized the DNR to set a hunting season for mourning doves, a "nongame species" regulated under Wis. Stat. § 29.039(1). In a split decision, the court of appeals reversed, concluding that § 29.014(1) is unambiguous and expressly authorizes the DNR to establish a hunting season for mourning doves because they are "game" within the meaning of that subsection. Wis. Citizens Concerned for Cranes and Doves, 263 Wis. 2d 370, ¶ 19. The court of appeals also concluded that even if mourning doves are a "nongame species," § 29.039(1) permits the DNR to regulate when "nongame species" may be hunted. Id.

III

¶ 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.

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[1-6]

¶ 6. The nature and scope of an agency's powers are issues of statutory interpretation. GTE North Inc. v. PSC, 176 Wis. 2d 559, 564, 500 N.W.2d 284 (1993). When interpreting a statute, our goal is to discern the intent of the legislature, which we derive primarily by looking at the plain meaning of the statute. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, ¶ 33, 644 N.W.2d 649. See also, Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶ 10, 267 Wis. 2d 59, 671 N.W.2d 633. The language of a statute is read in the context in which it appears in relation to the entire statute so as to avoid an absurd result. Landis v. Physicians Ins. Co. of Wis., 2001 WI 86, ¶ 16, 245 Wis. 2d 1, 628 N.W.2d 893. Words and phrases are generally accorded their common everyday meaning, while technical terms or legal terms of art are given their accepted legal or technical definitions. Wis. Stat. § 990.01(1). Words that are defined in the statute are given the definition that the legislature has provided. Beard v. Lee Enters., 225 Wis. 2d 1, 23, 591 N.W.2d 156 (1999). "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Bruno v. Milwaukee, 2003 WI 28, ¶ 20, 260 Wis. 2d 633, 660 N.W.2d 656. Thus, if the statute is unambiguous, we do not consult extrinsic sources such as legislative history to ascertain its meaning; we simply apply its plain meaning. Lincoln Sav. Bank v. DOR, 215 Wis. 2d 430, 441, 573 N.W.2d 522 (1998). See also, UFE Inc. v. LIRC, 201 Wis. 2d 274, 281-82, 548 N.W.2d 57 (1996).

[7-9]

¶ 7. A statute is not ambiguous merely because the parties disagree as to its meaning, or because the circuit court and court of appeals reached different

270 Wis.2d 330

conclusions; rather, a statute is ambiguous when it is readily susceptible to two or more meanings by reasonably well-informed individuals. Lincoln Sav. Bank, 215 Wis. 2d at 441-42. The test for ambiguity therefore examines the language of the statute "to determine whether `well-informed persons should have become confused,' that is, whether the statutory ... language reasonably gives rise to different meanings." Bruno, 260 Wis. 2d 633, ¶ 21 (citation omitted) (emphasis in original). Only if the statute is ambiguous must we turn to extrinsic sources such as legislative history to aid our interpretation. Seider v. O'Connell, 2000 WI 76, ¶¶ 50-52, 236 Wis. 2d 211, 612 N.W.2d 659

[10-12]

¶ 8. Thus, "[t]he well established tenets of the plain meaning rule preclude courts from resorting to legislative history to uncover ambiguities in a statute otherwise clear on its face." State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 37, 236 Wis. 2d 473, 613 N.W.2d 591. Indeed, "[t]he plain meaning of a statute takes precedence over all extrinsic sources and rules of construction, including agency interpretations." UFE, 201 Wis. 2d at 282 n.2. However, when a statute's plain meaning unambiguously evinces the legislative intent, we may consult legislative history to support our reading of the plain meaning of the statute. Columbus Park Hous. Corp., 267 Wis. 2d 59, ¶ 36. See also Seider, 236 Wis. 2d 211, ¶ 52.

¶ 9. The parties dispute whether WCCCD carries any burden in demonstrating the rule to be invalid and whether this court should give deference to the DNR's interpretation of the relevant statutes. The court of appeals concluded that while the standard of review is de novo, it could "benefit" from the interpretation of the DNR. Wis. Citizens Concerned for Cranes and Doves,

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263 Wis. 2d 370, ¶5. The court of appeals also determined that WCCCD had the burden to convince the court that § NR 10.01(1)(h) was invalid. Id., ¶6. The DNR argues that WCCCD should bear such a burden and that this court should accord great weight deference to its interpretation of its rule-making authority. WCCCD maintains that it bears no burden and that this court should give no weight to the DNR's interpretation

[13-15]

¶10. We first address whether WCCCD has any burden in this matter. The court of appeals relied on League of Wis. Municipalities v. DOC, 2002 WI App 137, ¶10, 256 Wis. 2d 183, 647 N.W.2d 301, for the proposition that a party challenging an administrative rule bears the burden of convincing the court that the rule is invalid. Wis. Citizens Concerned for Cranes and Doves, 263 Wis. 2d 370, ¶6. The court in League of Wis. Municipalities, 256 Wis. 2d 183, ¶10, in turn, relied upon Citizens' Utility Board v. PSC, 211 Wis. 2d 537, 552-53, 565 N.W.2d 554 (Ct. App. 1997), for this proposition. However, Citizens' Utility Board applied this burden in the context of reviewing an agency's application of legal standard to a set of facts. Id. at 552-53. The present controversy involves the construction of a statute, which is a purely legal question, subject to de novo review. Hutson v. State Pers. Comm'n, 2003 WI 97, ¶31, 263 Wis. 2d 612, 665 N.W.2d 212. Unlike factual questions, or questions where legal issues are intertwined with factual determinations, neither party bears any

270 Wis.2d 332

burden when the issue before this court is whether an administrative agency exceeded the scope of its powers in promulgating a rule.⁶

[16]

¶11. Next, we must determine whether this court owes any deference to the DNR's interpretation of § 29.014(1). This court has stated that we are not bound by an agency's decision that concerns the scope of its own power. Wis. Envtl. Decade, Inc. v. PSC, 81 Wis. 2d 344, 351, 260 N.W.2d 712 (1978). The court of appeals concluded that while it applied a de novo standard of review, it could "derive `benefit' from the experience and analysis of an administrative agency which the...