City of Oak Creek v. State Dept. of Natural Resources

• Decision Date: 10 May 1994
• Docket Number: No. 93-1122,93-1122
• Citation: 185 Wis.2d 424,518 N.W.2d 276
• Parties: CITY OF OAK CREEK, Petitioner-Appellant, v. STATE of Wisconsin DEPARTMENT OF NATURAL RESOURCES, State of Wisconsin Department of Administration, and State of Wisconsin Division of Hearings and Appeals, Marvin Gleason Contractors and Elmer J. Sommers, Respondents, v. WISCONSIN PUBLIC INTERVENOR, Respondent.
• Court: Wisconsin Court of Appeals

Page 276

518 N.W.2d 276

185 Wis.2d 424

CITY OF OAK CREEK, Petitioner-Appellant, v. STATE of Wisconsin DEPARTMENT OF NATURAL RESOURCES, State of

Wisconsin Department of Administration, and State of

Wisconsin Division of Hearings and Appeals, Marvin Gleason

Contractors and Elmer J. Sommers, Respondents, v. WISCONSIN PUBLIC INTERVENOR, Respondent.

No. 93-1122.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 15, 1993.

Opinion Released May 10, 1994.

Opinion Filed May 10, 1994.

Before SULLIVAN, FINE and SCHUDSON, JJ.

SULLIVAN, Judge.

The City of Oak Creek appeals from orders of the circuit court which affirmed a determination of the Division of Hearings and Appeals (DHA) of the Department of Administration for the State of Wisconsin. ¹ The circuit court ordered the City of Oak Creek to remove a concrete channel from the west branch of Crawfish Creek and to submit to the Department of Natural Resources (DNR) a plan for restoration of the creek. The circuit court upheld the DHA's finding that Crawfish Creek is a "navigable waterway," and therefore, is subject to the DNR's jurisdiction. ² The circuit court also upheld the DHA's conclusion that the City of Oak Creek was in violation of certain DNR permit requirements under chapter 30 of the Wisconsin Statutes (Navigable Waters, Harbors and Navigation). Finally, the circuit court concluded that § 30.055, STATS., which exempted the City of Oak Creek from compliance with several permit requirements of chapter 30 for the Crawfish Creek concrete channel, was enacted in violation of WIS. CONST. art. IV § 18.

On appeal to this court, the City of Oak Creek challenges the trial court's conclusion that § 30.055 was enacted in violation of the Wisconsin Constitution. The City also challenges the DHA's finding of navigability, the resulting applicability of chapter 30 permit requirements, and several findings that underlie the conclusion that the creek must be restored to its natural condition. Because we conclude that § 30.055, STATS., was enacted in violation of WIS. CONST. art. IV, § 18, and because the DHA's finding of navigability and need for restoration are supported by credible and substantial evidence, see § 227.57(6), STATS., we affirm the orders of the circuit court. ³

BACKGROUND

The following facts are undisputed. Crawfish Creek runs through the City of Oak Creek. For many years the City had planned to relocate its course by creating a concrete channel upon its bed. In 1982, the DNR notified the City that Crawfish Creek was a navigable waterway, and as such, a permit from the DNR was required before the City could place any structure in or on the riverbed which might change the stream's course. In 1984, the DNR again notified the City of the permit requirement for changing a riverbed's course.

In 1985, despite the DNR's warning, the City changed the course of Crawfish Creek by placing a concrete channel, about one-fourth of a mile long, on the creek's west branch. Upon completion of the work, the City applied to the DNR for a permit. The DNR petitioned the Division of Hearings and Appeals for restoration of the creekbed. After a hearing, the DHA examiner determined that Crawfish Creek was navigable, and that the City had violated § 30.12, STATS., ⁴ which requires the DNR's authorization and permit for structures and deposits in navigable waters The City secured review in circuit court. While the City's appeal was pending in the circuit court, the legislature enacted § 30.055, STATS., which provides:

§ 30.195, [185 Wis.2d 435] STATS., ⁵ which prohibits the changing of the course of a navigable stream without a permit, and § 30.294, STATS., ⁶ which declares every violation of chapter 30 to be a public nuisance. The DHA examiner ordered the City to remove the concrete and restore the riverbed.

Exemption from certain permit requirements.

Notwithstanding ss. 30.12, 30.19, 30.195 and 30.294, the city of Oak Creek may not be required to remove any structure or concrete or other deposit that was placed in Crayfish Creek ⁷ in the city of Oak Creek before June 1, 1991, and may continue to maintain the structure, concrete or deposit without having a permit or other approval from the department.

The trial court granted the motion of the Wisconsin Public Intervenor to intervene in the matter to challenge the constitutionality of § 30.055, STATS. The trial court subsequently determined that the manner in which § 30.055 was enacted was unconstitutional under WIS. CONST. art. IV, § 18. The trial court also sustained the DHA's conclusion that Crawfish Creek is navigable, and that the creekbed must be restored to its natural state. The City now appeals.

The City contends that § 30.055 was validly enacted as part of the budget bill and that the findings of the hearing examiner concerning navigability of Crawfish Creek are not supported by substantial evidence.

CONSTITUTIONAL ISSUE

The Wisconsin Constitution provides: "No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." WIS. CONST. art. IV, § 18. The City concedes that § 30.055, STATS., was not contained in a single subject bill. The City argues, however, that § 30.055 is not a private or local law and, therefore, could be validly enacted as part of budget bill 1991 Wis. Act 39, § 966m.

Determination of § 30.055's constitutionality presents a question of law that we decide de novo without deference to the trial court or the administrative agency. Sacred Heart School Bd. v. LIRC, 157 Wis.2d 638, 641, 460 N.W.2d 430, 431-32 (Ct.App.1990). In Davis v. Grover, 166 Wis.2d 501, 520, 480 N.W.2d 460, 466 (1992), the supreme court set forth the methodology for determining whether a bill or statute violates WIS. CONST. art. IV, § 18:

The determination of whether a bill violates Wis. Const. art. IV, § 18 involves a two-fold analysis. We must first address whether the process in which the bill was enacted deserves a presumption of constitutionality. Second, we must address whether the bill is private or local. If the bill is found to be private or local, then the requirements of art. IV, § 18 apply; namely, that the legislation must be a single subject bill and the title of the bill must clearly reflect the subject.

Thus, our first line of inquiry is whether the process by which § 30.055, STATS., was enacted deserves the presumption of constitutionality. Although a statute generally enjoys a strong presumption of constitutionality, an exception to the rule occurs when the behavior of the legislature allegedly violates a law mandating the form in which bills must be enacted. City of Brookfield v. Milwaukee Metro. Sewerage Dist., 144 Wis.2d 896, 913 n. 5, 426 N.W.2d 591, 599 n. 5 (1988). The Wisconsin Supreme Court has stated:

In sec. 18 cases, because the legislature is alleged to have violated a law of constitutional Id. Nonetheless, this court may indulge the presumption of constitutionality where it is evident that the legislature did adequately consider or discuss the legislation in question, even where such legislation was passed as part of a voluminous bill. See Davis, 166 Wis.2d[185 Wis.2d 438] at 521-23, 480 N.W.2d at 466-67. ⁸ We, however, are not presented with such a case.

stature which mandates the form in which bills must pass, the court will not indulge in a presumption of constitutionality, for to do so would make a mockery of the procedural constitutional requirement.

In the present case, the City asserts, without citation to the record or to authority, that § 30.055 was originated by the Joint Committee on Finance and that it was reviewed and modified by both the Assembly and the Senate. Because modifications were adopted during the bill's odyssey through the legislature, the City argues that the bill was adequately considered and debated. We disagree.

The Joint Finance Committee, without the sponsorship of any individual legislators, introduced the proposal which culminated in § 30.055, STATS. The bill had not been proposed or introduced into the legislature previously.

No public hearings were held on its content. It ultimately passed as part of the budget bill, 1991 Wis. Act 39, § 966m. The budget bill contained many hundreds of unrelated provisions covering in excess of 700 pages of session laws. The statute did not receive the required legislative consideration necessary to assure this court that the legislation was not "smuggled or logrolled through the legislature without the benefit of deliberate legislative consideration." Davis, 166 Wis.2d at 522, 480 N.W.2d at 467. Thus, we conclude that the process by which § 30.055 was enacted is not entitled to a presumption of constitutionality.

Our next line of inquiry is whether § 30.055 is "private or local" legislation. ⁹ The supreme court has explained:

A law is local if it applies to a particular locality to the exclusion of others.... "An act is 'general,' as contradistinguished from and inconsistent with 'local,' ... only when its operation extends to the whole state, or perhaps to the whole of some class of localities therein...."

Soo Line R.R. Co. v. DOT, 101 Wis.2d 64, 73-74, 303 N.W.2d 626, 631 (1981) (citation omitted). "[A] private law is generally viewed as one applying to or affecting a particular individual or entity." Id. at 75, 303 N.W.2d at 632. Legislation that is geographically specific or entity specific will not automatically be considered "private or local," however, where the general subject matter of the legislation relates to a state responsibility--that is, where " 'the state itself has an interest therein as proprietor, or as trustee, or in its governmental capacity, for the benefit or in In Soo Line, the Wisconsin Supreme Court considered the legislation in question to be "private or local," despite the fact that it related to a matter of statewide responsibility. 101 Wis.2d at 76-77, 303 N.W.2d at 632. The challenged legisla...