Mortier v. Town of Casey

• Decision Date: 12 March 1990
• Docket Number: No. 88-1423,88-1423
• Citation: 154 Wis.2d 18,452 N.W.2d 555
• Parties: , 58 USLW 2562, 21 Envtl. L. Rep. 20,062 Ralph MORTIER and Wisconsin Forestry/Rights-Of-Way/Turf Coalition, Plaintiffs-Respondents, v. TOWN OF CASEY, Wisconsin, Imbert M. Eslinger, Louis N. Place, Roland K. Colby and State of Wisconsin Public Intervenor, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 555

452 N.W.2d 555

154 Wis.2d 18, 58 USLW 2562, 21

Envtl. L. Rep. 20,062

Ralph MORTIER and Wisconsin Forestry/Rights-Of-Way/Turf Coalition, Plaintiffs-Respondents, v. TOWN OF CASEY, Wisconsin, Imbert M. Eslinger, Louis N Place, Roland K. Colby and State of Wisconsin Public Intervenor, Defendants-Appellants.

No. 88-1423.

Supreme Court of Wisconsin.

Argued Sept. 7, 1989.

Decided March 12, 1990.

Linda Monroe, Madison, and Thomas J. Dawson, Asst. Atty. Gen., argued (in Court of Appeals), for defendants-appellants.

Paul G. Kent, argued, Richard J. Lewandowski, and DeWitt, Porter, Huggett, Schumacher and Morgan, S.C., on brief (in Court of Appeals), Madison, for the plaintiff-respondent.

Eugene O. Gehl and Barbara J. Swan, Madison, amicus curiae, for Wisconsin Power and Light Co., Northern States Power Co., Wisconsin Public Service Corp. and Wisconsin Elec. Co-op. Ass'n.

HEFFERNAN, Chief Justice.

The question presented in this appeal from an order for a declaratory judgment of the circuit court for Washburn county is whether the ordinance of the Town of Casey purporting to regulate the use of pesticides in the Town is preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). ¹ We conclude that the ordinance is preempted by the federal law, because the legislative history of the enactment in 1972 reveals a clear intent of the congress to preempt all local regulation of the use of pesticides. We affirm the order of the circuit court declaring the Town of Casey ordinance "void, invalid and of no effect." ²

The facts are undisputed. The plaintiffs are a coalition of persons who challenge the ordinance on grounds that it is preempted by both federal and state legislation. Mortier, one of the plaintiffs, sought to spray a portion of his own land located in the Town of Casey with a pesticide. He applied for a permit to do so. The permit was granted subject to restrictions mandated by the Town of Casey's ordinance, which precluded aerial spraying and limited the land area which could be sprayed. Mortier and his fellow plaintiffs brought a declaratory judgment action to declare the ordinance invalid on the grounds of preemption.

We start our analysis of preemption recognizing the constitutional basis of the separate sovereignty of the United States and of the state of Wisconsin. The Tenth Amendment to the United States Constitution recognizes that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

There is, however, no intimation in the record that the enactment of FIFRA was not a proper and constitutional exercise of the legislative power of the United States. Nor is there any intimation that the state of Wisconsin or its political subdivisions lack the police power to enact pesticide regulations. The controlling question arises under art. VI, clause 2, of the United States Constitution, the supremacy clause, which provides that all laws of the United States made pursuant to the Constitution are "the supreme law of the land ... any thing in the constitution or laws of any state to the contrary notwithstanding."

This latter portion of the Constitution, at least since 1824, has been held to invalidate any state laws that "interfere with, or are contrary to," federal law. See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 211, 6 L.Ed. 23 (1824), Marshall, C.J.

The test for determining whether the state law must be invalidated or preempted in light of a congressional enactment has been variously stated. The essence of the inquiry is succinctly and simply summarized by Judge Kaufman in New York State Pesticide Coalition, Inc. v. Jorling, 874 F.2d 115, 118 (2d Cir., 1989), "[O]ur task is to ascertain the intent of Congress." See also, Allis Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985). For purposes of the supremacy clause, the constitutionality of local ordinances is analyzed in the same way as that of state laws. Hillsborough County v. Automated Medical Labs, 471 U.S. 707, 712, 105 S.Ct. 2371, 2374, 85 L.Ed.2d 714 (1985); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973).

In general, it can be said, however, that the general presumption that arises out of the federal system of dual sovereignty is that there shall be no preemption unless that intent of congress is rather clear. In Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), the United States Supreme Court stated the rule that "[T]he historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."

Thus, preemption, the superseding of the sovereign prerogatives of a state, should not be lightly assumed, but should be found only when it is the intention of the congress to assert federal primacy in a particular field.

The clearest declaration of intent is simply a congressional statement appearing in the legislation which asserts federal primacy. One example is referred to in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 626-27, 93 S.Ct. 1854, 1856, 36 L.Ed.2d 547 (1973): " 'The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States....' " ³

There may also be preemption of state laws or local ordinances where no express preemption appears in the congressional legislation, but the entire statutory context or regulatory terrain impels the conclusion that congress intended to exclude states and local governments from the area of concern. The City of Burbank case, supra, is illustrative of this type of determination of congressional intent to preempt from the pervasive nature or completeness of the examined congressional scheme.

In the Burbank case, there was no express provision for preemption of noise control, but the court, relying upon Rice v. Santa Fe Elevator Corp., supra 331 U.S. at 230, 67 S.Ct. at 1152, concluded that there could be a "clear and manifest purpose" of congressional preemption even though no statement of congressional preemption appeared in the legislation. It found that clear and manifest congressional purpose in the "pervasive nature of the scheme of federal regulation of aircraft noise...." 411 U.S. at 633, 93 S.Ct. at 1859.

Thus, although the congressional intent to preempt may, in some case, only be apparent by implication, the congressional purpose can nevertheless be clear.

It should be noted that the pervasive nature of the federal act in Burbank was derived not alone from the words of the act and concomitant federal regulations, but from the legislative history of the anti-noise bill, including statements appearing in committee reports, statements of the Secretary of Commerce, statements of the chairpersons of the affected congressional committees, and the statement of the President made contemporaneously with the signing of the bill. ⁴

Under the express words of the supremacy clause, state law must give way to contradictory or incompatible provisions of a congressional enactment. The plaintiffs assert that, in practice, that must be the result here, for on its face the Town of Casey ordinance could prohibit completely the use of FIFRA-approved pesticides by FIFRA-approved applicators according to FIFRA-approved label instructions. While, as a matter of law, we do not disagree with the plaintiffs' premise, the situation in light of the record is a hypothetical one, for no such complete prohibition is posed by the facts, and we need not address the plaintiffs' assertion in light of our reliance on the legislative history, which we conclude demonstrates a clear and manifest congressional intent to preempt all local regulation.

Thus, there are many paths to determine preemption. The easiest and most forthright, in the absence of an outright statement of federal preemption in the legislation, is simply to start out with the constitutionally directed assumption that, in view of the nature of the federal system, there can be no preemption unless there is an express and unequivocal congressional statement that, in the particular area of legislation, the congressional actions are supreme and state laws are invalid. If the presumption is taken literally, anything less than a forthright preemption statement is ambiguous and traditional state powers must be allowed to stand. While this is an attractive and logical option, it is not the law, for almost all preemption opinions of the Supreme Court deal with ambiguities where there is no express preemptive statement in respect to congressional intent.

While FIFRA does not contain any express preemption language, it does, however, contain language which is indicative of congress' intent to deprive political subdivisions, like the Town of Casey, of authority to regulate pesticides. In sec. 136v, congress authorizes only "states" to regulate pesticides. Then, in sec. 136(aa), the act states that political subdivisions are excluded from the definition of "states." See infra. Because it is not clear that the statutory language alone evinces congress' manifest intent to deprive political subdivisions of authority to regulate pesticides, it is ambiguous. Accordingly, we look to the legislative history to ascertain the primary congressional purpose in enacting these sections and using this particular language. Philko Aviation, Inc. v. Shacket, 462 U.S. 406, 410-11, 103 S.Ct. 2476, 2478-79, 76 L.Ed.2d 678 (1983); City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 634-38, 93 S.Ct. 1854, 1860-62, 36 L.Ed.2d 547 (1973).

The intent of congress--to preempt local, but not state, regulation--becomes abundantly clear when the end product of the congress is considered in light of the progress of the pesticide bill through the congress. ⁵

The...