Debeck v. Wisconsin Dept. of Natural Resources
| Decision Date | 12 November 1992 |
| Docket Number | No. 91-1434,91-1434 |
| Parties | John W. DEBECK, Petitioner-Respondent, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Appellant. d |
| Court | Wisconsin Court of Appeals |
For the petitioner-respondent the cause was submitted on the brief of Michael P. Dunn of Davis & Kuelthau, S.C., Milwaukee.
Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.
This is an appeal from an order partially vacating two administrative orders of the Department of Natural Resources (DNR). The circuit court vacated the orders because it concluded that the DNR had based the orders on an administrative rule which conflicted with a statute. We agree with the trial court and therefore affirm.
In 1972, after obtaining approval from the DNR, John DeBeck opened a landfill in the town of Middleton, Dane county. In 1982, he transferred the landfill to Refuse Hideaway, Inc., a corporation of which DeBeck is president. In 1987, the DNR tentatively approved a closure plan for the landfill. In early 1988, several wells near the landfill tested positive for contaminants. DeBeck and the DNR entered a special consent order which required closure of the landfill. The order reserved to the DNR the right to modify the order and provided that "[n]othing in this order shall be construed as an admission of liability on the part of John DeBeck personally, or Refuse Hideaway, Inc., for any purpose...."
On September 6, 1988, the DNR issued an order tentatively approving the landfill closure plan. But the order also stated that both "John DeBeck and Refuse Hideaway, Inc., own and formerly operated a [landfill]." DeBeck petitioned for judicial review of this order, contending that he could not be held personally responsible to comply with the order. After a remand for further findings, the DNR issued an additional order on February 21, 1990, in which it asserted that it intended to impose personal liability on DeBeck. It grounded its authority to do so on Wis.Adm.Code sec. NR 500.03, which provides in part:
(92) "Operator" has the meaning specified in s. 144.442(9), Stats.
....
(94) "Owner" has the meaning specified in s. 144.442(9), Stats.
DeBeck petitioned for judicial review of the September 6, 1988 order and the February 21, 1990 order. The circuit court agreed with DeBeck's assertion that the dispositive definition of a landfill "owner" was found in sec. 144.01(9), Stats. That subsection provides: " 'Owner' means the state, county, town, town sanitary district, city, village, metropolitan sewerage district The circuit court reasoned that the legislature was well aware of the two definitions of an "owner" of a landfill and had reserved the more extensive version for actions to recover expenses for environmental repair. Therefore, the DNR's attempt to apply the more extensive version to all of ch. 144, Stats., conflicted with the legislature's decision to apply that version only to actions to recover expenditures. The court concluded that the DNR lacked authority to hold DeBeck personally responsible for complying with the terms of the September 6, 1988 and February 21, 1990 orders.
corporation, firm, company, institution or individual owning or operating any water supply, sewerage or water system or sewage and refuse disposal plant." The court recognized that sec. 144.442(9), Stats., entitled "RECOVERY OF EXPENDITURES," contains more expansive definitions of "operator" and "owner" which would include DeBeck personally. But the court concluded that those definitions were applicable only to sec. 144.442(9), [172 Wis.2d 385] because that subsection provides: "(a) Definitions. In this subsection: 1. 'Operator' means.... 2. 'Owner' means...." (Emphasis added.)
Section 227.40(4)(a), Stats., provides three bases which a court may use to declare an administrative rule invalid: (1) if the rule violates the constitution; (2) if it exceeds the statutory authority of the agency adopting it; or (3) if it was adopted without compliance with statutory rulemaking procedures. LeClair v. Natural Resources Bd., 168 Wis.2d 227, 233, 483 N.W.2d 278, 281 (Ct.App.1992). DeBeck's attack on Wis.Adm.Code sec. NR 500.03(92) and (94) falls under the "exceeds the statutory authority of the agency" part of sec. 227.40(4)(a).
The DNR asserts that Wisconsin law does not precisely define the appropriate standard of review for "exceeds statutory authority" challenges. It argues that we should use the standard used for the "violates constitutional provisions" portion of sec. 227.40(4)(a), Stats. The supreme court discussed that standard in Liberty Homes, Inc. v. DILHR, 136 Wis.2d 368, 374-75, 401 N.W.2d 805, 808 (1987). At least in a substantive due process challenge of a rule, the standard of review we are to use is whether the rule bears a reasonable relation to a legitimate governmental objective. Id.
In State v. McManus, 152 Wis.2d 113, 447 N.W.2d 654 (1989), the supreme court did not discuss the standard of review it would use in a statute-rule conflict. However, it is clear that it used a de novo standard. In Wisconsin Hosp. Ass'n v. Natural Resources Bd., 156 Wis.2d 688, 705, 457 N.W.2d 879, 886 (Ct.App.1990), we concluded that "exceeds statutory authority" questions are matters of statutory interpretation or construction, and, therefore, our review was de novo. In Wisconsin Hosp. Ass'n, the DNR argued that we should defer to its practical interpretation of the enabling statute. We declined to decide whether this was an appropriate standard of review. The DNR has now abandoned this argument in its attempt to apply its rules to DeBeck. We conclude that a de novo standard of review should be used in "exceeds statutory authority" cases under sec. 227.40(4)(a), Stats.
The question we face is whether the DNR's definitions of "operator" and "owner," found in Wis.Adm.Code sec. NR 500.03(92) and (94), conflict with the definition of "owner" found in sec. 144.01(9), Stats.
To determine whether an administrative agency has exceeded its statutory authority in promulgating a rule, we look to the enabling statute to determine if there is express or implied authorization for the rule. In Interest of A.L.W., 153 Wis.2d 412, 417, 451 N.W.2d 416, 418 (1990). The DNR identifies secs. 144.431(1)(a) and 144.435(1), Stats., as the enabling statutes upon which it relies.
Section 144.431, Stats., provides in relevant part:
(1) The department shall:
(a) Promulgate rules implementing and consistent with ss. 144.43 to 144.47.
Section 144.435, Stats., provides in relevant part:
(1) The department shall promulgate rules establishing minimum standards for the location, design, construction, sanitation, operation, monitoring and maintenance of solid waste facilities. Following a public hearing, the department shall promulgate rules relating to the operation and maintenance of solid waste facilities as it deems necessary to ensure compliance and consistency with the purposes of and standards established under the resource conservation and recovery act....
DeBeck agrees that the trial court correctly determined that these statutes impliedly authorized the DNR to promulgate Wis.Adm.Code sec. NR 500.03(92) and (94). Thus the question becomes whether those rules, defining "operator" and "owner," conflict with the legislative definition of "owner" found in sec. 144.01(9), Stats.
"[A]ny doubts as to the implied power of an agency are to be resolved against the existence of authority." Trojan v. Board of Regents of Univ. of Wis. Sys., 128 Wis.2d 270, 277, 382 N.W.2d 75, 78 (Ct.App.1985). The DNR objects to this rule because, in its view, when we use this rule, we ignore the presumption that administrative rules have the same force of law as statutes. We disagree. Administrative rules are equal to statutes in their power to regulate behavior. But administrative agencies do not have powers superior to those of the legislature. When a conflict occurs between a statute and a rule, the statute prevails. Richland School Dist. v. DILHR, 166 Wis.2d 262, 278, 479 N.W.2d 579, 586 (Ct.App.1991), review granted, --- Wis.2d ----, 485 N.W.2d 412 (1992). "An agency charged with administering a law may not substitute its own policy for that of the legislature." Niagara of Wis. Paper Corp. v. DNR, 84 Wis.2d 32, 48, 268 N.W.2d 153, 160 (1978). Though the DNR attempts to equate rules with statutes and then analyzes this case as a conflict between statutes, that analysis must fail...
To continue reading
Request your trial
-
Wis. Ass'n of State Prosecutors v. Wis. Emp't Relations Comm'n
...3:12 (2017).II¶67 Administrative agencies do not have powers superior to those of the legislature. Debeck v. Wis. Dep't of Nat. Res., 172 Wis. 2d 382, 387-88, 493 N.W.2d 234 (Ct. App. 1992). Thus, even if the majority were correct in focusing its analysis and conclusions on WERC's authority......
-
Seider v. O'CONNELL
...STANDARD OF REVIEW ¶ 25. This case requires a finely tuned understanding of the standard of review. In DeBeck v. DNR, 172 Wis.2d 382, 386, 493 N.W.2d 234 (Ct. App. 1992), the court of appeals concluded that courts should apply a de novo standard of review in "exceeds statutory authority" ca......
-
State v. Inglin
...refrain from interpreting or 're-writing' any statute solely to comport with our public policy concerns, see DeBeck v. DNR, 172 Wis.2d 382, 390, 493 N.W.2d 234, 238 (Ct.App.1992), we do agree with the State's essential argument that, because Inglin's deceit prompted Gennari's permission, th......
-
Wisconsin Dept. of Revenue v. Hogan
...statutory authority is a question of law, and legal issues are generally reviewed de novo on appeal. Debeck v. DNR, 172 Wis.2d 382, 386, 493 N.W.2d 234, 236 (Ct.App.1992). Because we review the legal basis for the commission's decision independently, and because the parties have fully brief......