Robinson v. Kunach, No. 75-536

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: ROBERT W. HANSEN
• Citation: 251 N.W.2d 449,76 Wis.2d 436
• Parties: , 10 ERC 1190, 7 Envtl. L. Rep. 20,365 Sharon H. ROBINSON, Appellant, v. John B. KUNACH, Individually and as Commissioner of Oneida County Highway Commission, Oneida County, a Municipal Corporation, and the Oneida County Highway Committee, Respondents.
• Docket Number: No. 75-536
• Decision Date: 15 March 1977

Page 449

251 N.W.2d 449 76 Wis.2d 436, 10 ERC 1190, 7 Envtl.
L. Rep. 20,365 Sharon H. ROBINSON, Appellant,
v.
John B. KUNACH, Individually and as Commissioner of Oneida
County Highway Commission, Oneida County, a
Municipal Corporation, and the Oneida
County Highway Committee, Respondents. No. 75-536. Supreme Court of Wisconsin. Argued Jan. 31, 1977.
Decided March 15, 1977.

James A. Johnson, Rhinelander, for appellant; Korth, Rodd, Sommer & Mouw, S. C., on brief.

Lawrence R. Heath, Corp. Counsel, Rhinelander, Oneida County, for respondents.

ROBERT W. HANSEN, Justice.

There were seven counts to plaintiff's complaint, five to which demurrer was sustained and two as to which summary judgment for defendants was granted. Trial court action as to all seven [76 Wis.2d 443] counts is before us and we will deal with each count separately. However, since both plaintiff and defendants devoted all of their oral argument on appeal to the second count, we will begin discussion with the second cause of action pleaded and the demurrer sustained thereto.

CAUSE OF ACTION NO. 2.

We are faced here with the question of whether or not the relocation of a county trunk highway requires the filing of an environmental impact statement. We deal only with the narrow question as to whether a county is an agency of the state as that phrase is used in sec. 1.11(2)(c), Stats. ¹ We do not deal with the broad underlying question of public policy as to whether counties in this state ought be required to file such statement before proceeding with highway construction. We will only determine

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whether a county was intended to be included within that section. The trial court here ruled a county was not one of the "agencies of the state" referred to in sec. 1.11(2)(c), the Wisconsin Environmental[76 Wis.2d 444] Protection Act. It is that ruling that is here challenged.

Whether the requirement of environmental impact statements applies to counties or refers only to the executive and administrative agencies of the state (as enumerated in ch. 15 of the statutes) ² is the question. Sec. 1.11(2)(c) is ambiguous. The phrase "agencies of the state" is not defined in the statute. So the statute on its face is capable of being understood by reasonably well-informed persons either as applying to or not applying to counties. And that is the test of ambiguity. ³ Since the statute is ambiguous, capable of being understood in either of two senses by reasonably well-informed persons, we consider the legislative history of the statute to determine legislative intent.

In checking the legislative history of the environmental impact statute, it is apparent that no fiscal note is present dealing with local government costs in preparing environmental impact statements. Such fiscal note must include ". . . a reliable estimate of the anticipated change in appropriation authority or state or general local government fiscal liability or revenues under the bill, including to the extent possible a projection of such changes in future biennia." ⁴ No such fiscal note as to [76 Wis.2d 445] county fiscal liability or projected future costs is attached to the bill creating sec. 1.11(2)(c), Stats.

In fact, no mention whatever is made as to funding of county participation in the state environmental impact act. Such omission of county fiscal liability in preparing impact statements and the concomitant costs thereof clearly indicates the legislature did not intend to include counties. That is, only if such were the legislative intent would sec. 13.10, Stats., not be violated.

This finding as to legislative intent to exclude counties is buttressed by the fact that an amendment providing state funds to local governments for preparing impact statements was introduced but not included in the final measure. This amendment, providing for reimbursement to local governments, at the least made clear the requirement of a fiscal note if local governments were covered. More than that, this suggested strongly that no mention of funding for local government impact statements was made because such local units were not reached by sec. 1.11(2)(c), Stats., as introduced and as enacted. Silence can be as eloquent as words, and here the complete silence as to fiscal liability of counties is persuasive that counties were not legislatively intended to be governed by the law.

Moreover, where the state legislature intended a county to be an "agency of the state," it has so provided. Thus, in ch. 92, Stats., entitled Soil and Water Conservation, it is specifically made clear that "Wherever used or referred to in this chapter " the phrase 'agency of this state' includes the government of the state "and any subdivision, agency or instrumentality, corporate or otherwise, of the government of this state." ⁵ (Emphasis supplied.)

[76 Wis.2d 446] It can be argued that this is intended to define the term "agency of the state" wherever

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used in the statutes, but this argument encounters the limitation to "Wherever used or referred to in this chapter." (Emphasis supplied.) We see as more reasonable the inference that where in a particular statute the legislature intends "agency of the state" to include local subdivisions of government, it will so state. Where no identification of counties as "agencies of the state" is made, we find a strong suggestion that where they are not included by legislative definition, it is not intended they become included by judicial construction.

Where an ambiguity exists in a statute the interpretation by the administrative agency charged with the duty of applying such statute is given great weight by this court. ⁶ It is true that construction of a statute is a question of law and therefore this court is not bound by the interpretation given to a statute by an administrative agency. ⁷ However the interpretation by the agency which applies the statute has great bearing on the determination as to what the appropriate construction should be. ⁸

If several rules or several applications of a rule are equally consistent with the purpose of the statute, our court will accept the agency's formulation and application of the standard. ⁹ Thus where there was no clear [76 Wis.2d 447] legislative mandate as to an appropriate definition of a term used in a statute, and it was incumbent upon the state employment relations commission to formulate a standard to be followed, this court approved the application of the statute as determined by the employment relations commission, finding it to be reasonable and consistent with the purpose of the statute. ¹⁰

As to sec. 1.11(2)(c), Stats., now before us, the responsibility for its implementation and application was on the governor of this state. Soon after sec. 1.11 was enacted into law, Governor Patrick J. Lucey sent out an executive order directing compliance with the new law. All state agencies listed in ch. 15, Stats., including boards and commissions, were directed to comply with the guidelines for administration of sec. 1.11. ¹¹

This executive order did not refer to counties and was not even sent to counties. Subsequently guidelines for the implementation of the environmental protection act were issued by the governor, once again not sent to counties and not referring to counties as included agencies. ¹² Thereafter the executive department issued WEPA Agency Action Lists, as required by its guidelines, listing as affected agencies all state government agencies under ch. 15, Stats., but not including counties. Such exclusion was reaffirmed by revised guidelines issued on February 12, 1976.

[76 Wis.2d 448] While we deal here with an executive department interpretation, not an administrative agency interpretation, we find supportive of the construction we have given

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sec. 1.11, Stats., the fact that the executive department directives providing for its application and enforcement do not include counties as "agencies of the state," as that term is used in sec. 1.11.

We conclude counties are not "agencies of the state," within the provisions of sec. 1.11(2)(c), Stats., and not required by such statute to prepare and file environmental impact statements as a prerequisite to undertaking construction or relocation of county trunk highways. If they are to be required so to do, it will be for the legislature to add such requirement to sec. 1.11(2)(c) as an amendment thereto. With this major issue resolved being the sole issue addressed during oral argument we now turn to consider seriatim the trial court's disposition of the remaining six counts in plaintiff's complaint.

CAUSE OF ACTION NO. 1.

As and for her first cause of action plaintiff alleges the building of the proposed road across her property will deprive her of her rights under sec. 29.415, Stats. In sub. (1) of that statute the state legislature finds that "certain fish and wildlife are endangered and are entitled to preservation and protection as a matter of general state concern," and further finds "the activities of both individual persons and governmental agencies are tending to destroy the few remaining whole plant-animal communities in this state." So finding, the statute concludes by providing that "the legislature urges all persons and agencies to fully consider all decisions in this light."

Plaintiff contends this statute, as does sec. 1.11, Stats., reviewed above, requires that decisions reached as to construction of a county highway be made only with full [76 Wis.2d 449] consideration of their impact upon endangered species of fish or wildlife. But the statute stops at "urging" rather than requiring such consideration of endangered species impact. To urge is to recommend but not to mandate or require. We hold the statute involved not to be proscriptive in nature, and not to form a basis for seeking injunctive relief against the proposed relocation of a county highway. The trial court's...