Tenpas v. Department of Natural Resources
| Decision Date | 01 March 1989 |
| Docket Number | No. 86-1430,86-1430 |
| Parties | Jeffrey B. TENPAS and Barbara Tenpas, Plaintiffs-Respondents-Petitioners, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Byron C. Crowns, argued, and Crowns, Midthun, Metcalf & Quinn, S.C., on brief, Wisconsin Rapids, for plaintiffs-respondents-petitioners.
Maryann Sumi, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on brief, for defendant-appellant.
This is an appeal from a decision of the court of appeals, 141 Wis.2d 599, 415 N.W.2d 853, which reversed the circuit court for Adams county, Raymond Gieringer, judge. We reverse the decision of the court of appeals. This case presents the question of whether cranberry dams in this state are subject to the financial responsibility requirements of sec. 710.11, Stats., and related portions of chapter 31 of the state statutes.
Plaintiffs Jeffrey and Barbara Tenpas are cranberry growers who in July of 1983 bought a cranberry marsh in Adams county. Their land is crossed by Bingham Creek, a navigable stream, and includes two dams across the creek. The dams were built in 1938 for the purpose of cranberry cultivation and have since been used continuously as cranberry dams.
On June 14, 1984, the Wisconsin Department of Natural Resources (DNR) wrote the Tenpases (hereinafter Tenpas) stating that the land they had bought was not properly transferred because Tenpas had no permit for the transfer of the dams as required under sec. 710.11, Stats. 1 The DNR letter suggested that noncompliance with the dam transfer statute clouded the Tenpas title to the land and would make mortgaging difficult.
Under protest, Tenpas applied for and obtained a DNR dam transfer permit. The issued permit identifies the two dams involved as earthen dikes that have concrete water control structures approximately eight feet wide and eight feet tall.
The dam transfer permit issued by the DNR contained several significant conditions which Tenpas was required to accept to receive the permit. First, Tenpas was ordered to complete certain specified repairs to the dams. 2 Tenpas was also ordered to file a $2,500 letter of credit for ten years, the credit amount to be reduced to $1,000 after the specified repairs were completed. Tenpas was ordered to waive any objection to unlimited DNR inspection of the dam. And finally, the DNR permit established a maximum level for the water behind the upper dam. The permit also reserves for the DNR the right to establish by subsequent order a minimum flow of water from the lower dam.
While the permit application was pending, Tenpas began this action asking the circuit court to declare that cranberry growers are not subject to sec. 710.11, Stats. Judge Gieringer decided the matter on summary judgment, finding that DNR regulation of cranberry dams under sec. 710.11 would impermissibly conflict with rights granted to growers by the cranberry laws, secs. 94.26 to 94.30, Stats., passed in 1867. Tenpas was granted summary judgment declaring his right to be free of the requirements of sec. 710.11. The DNR appealed.
The court of appeals reversed the judgment, finding that the dam transfer permit requirement of sec. 710.11, Stats., applies to all dams in the state, including cranberry dams; and that the dam transfer permit requirement does not conflict with the scheme set up by the legislature under the cranberry laws. Judge Sundby, dissenting, stated that chapter 31 dam transfer regulations do not apply to cranberry growers. He concluded that the power of cranberry growers to use water and dams for cranberry cultivation has been independently regulated for 120 years by the cranberry laws, without interference by the DNR or its predecessors. Sundby urged that if a legislative act seeks to impose DNR regulation under chapter 31 on the cranberry industry, it must be more advertent than sec. 710.11.
This case involves application of statutes to undisputed facts. It therefore presents a question of law, a question to be reviewed by this court de novo, without deference to the decisions of the courts below. City of Waukesha v. Salbashian, 128 Wis.2d 334, 347, 382 N.W.2d 52 (1986).
The parties agree that cranberry dam owners were granted certain rights by the legislature in 1867. Presently codified in sec. 94.26 et. seq., Stats., the essential grant of the cranberry laws provides: 3 Any person owning lands adapted to the culture of cranberries may build and maintain on any land owned by him such dams upon any watercourse or ditch as shall be necessary ...
The cranberry laws also impose liability for, and provide a procedure for recovering, damages that are caused by cranberry dams. Sections 94.27 to 94.30, Stats., provide a comprehensive scheme for the erection and maintenance of cranberry dams and detailed procedures for arbitration and recovery of damages if injury is occasioned by the failure of a dam. They appear to provide strict liability subject to implementation under special procedures.
The DNR urges that the rights granted by the cranberry laws only narrowly limit their general power to regulate dams under chapter 31 of the statutes. The DNR argues that their regulatory power is displaced by the cranberry laws only with regard to whether, where and for what purpose a cranberry cultivator seeks to build a dam. Tenpas argues, on the other hand, that as cranberry growers the specificity of the cranberry laws exempt them from general DNR regulation of dams under chapters 30 and 31.
The DNR has also urged, and the court of appeals majority generally agreed, that this case should focus on sec. 710.11, Stats. The DNR argues that sec. 710.11 establishes regulation of financial responsibility for all dams. Recently enacted, 4 it contains no express exception or cross-reference to the cranberry laws. Even if it conflicts with rights granted under the cranberry laws, the DNR urges us to hold that sec. 710.11 supersedes earlier, contrary law.
We conclude, however, that sec. 710.11, Stats., is not amenable to strictly independent interpretation. On its face, sec. 710.11 itself does not define a new or separate wrong. Section 710.11 provides,
[a] person may not accept the transfer of the ownership of a specific piece of land on which a dam is physically located unless the person complies with s. 31.14(4).
The statute merely gives notice of a consequence of failure to comply with sec. 31.14(4), Stats. The legislative note accompanying sec. 710.11 states that the purpose of the provision is to: 5
... ensure that people working in the real estate profession, including brokers, attorneys and mortgage insurance companies, will be aware of the requirements of sections 31.14(4) and 31.185(1) and (2) ...
At oral argument, counsel for the DNR agreed that sec. 710.11, Stats., is no more than a provision giving notice of some of the requirements of ch. 31. We therefore consider the relevant portions of chapter 31 of the statutes.
Chapter 31 of the statutes is entitled, "Regulation of Dams and Bridges Affecting Navigable Waters." Together with chapter 30 ("Navigable Water, Harbors and Navigation"), it provides a comprehensive scheme for the regulation of Wisconsin's waters, dams and bridges through the use of permits issued by the DNR. The DNR has broad regulatory power under these chapters. For example, sec. 31.02, Stats., empowers the DNR to regulate the level and flow of all navigable water and to determine methods of construction, operation and maintenance of any dam. The legislative commitment to comprehensive administrative regulation of Wisconsin's water use law under chapters 30 and 31 is longstanding, beginning with the water power acts of 1911, 1913 and 1915. A. Kanneberg, Wisconsin Law of Waters, 1946 Wis.L.Rev. 345, 360.
The specific portion of chapter 31 under which the DNR claims to act in this case is sec. 31.14(4), Stats. Section 31.14 regulates dam maintenance by requiring special permits for dam building, improvement or transfer. Section 31.14(2) provides that all dams built or enlarged will be issued permits only after the "applicant furnishes to the department proof of ability to operate and maintain the dam in good condition." Subsection (4) imposes the same financial responsibility requirement whenever the ownership of a dam is transferred. 6
To determine whether sec. 31.14(4), Stats., applies to cranberry dams, we look to the language of the statute itself. Ball v. District No. 4 Area Board, 117 Wis.2d 529, 539, 345 N.W.2d 389 (1984). Operation of sec. 31.14(4) is triggered by the transfer of the ownership of "a dam." And although we construe sec. 31.14 as a comprehensive statute, the term "dam" is not specifically limited or defined in that section, or elsewhere in the chapter. We might presume that the unqualified term "dam" makes this section applicable to every dam in the state, including cranberry dams.
We do not adopt the construction of sec. 31.14(4), Stats., advocated by the DNR because, as we explain more fully below, it would conflict with rights granted growers under the cranberry laws. We will construe statutes, where it is reasonable, so as to avoid conflict with other statutes. State ex rel. McManman v. Thomas, 150 Wis. 190, 196, 136 N.W. 623 (1912). Consequently, we find the most reasonable construction of sec. 31.14(4) provides the DNR with regulatory power over dams generally, with the exception of cranberry dams.
The provisions of sec. 31.14, Stats., seem designed to accommodate the regulation of large power dams. Section 31.14(2) speaks of proving financial responsibility for maintenance by establishing special assessment districts. The statute also allows nonmunicipal dam owners to prove financial responsibility by posting bond. Section 31.14(5) provides also that the DNR may require creation of a fund for major repairs or removal of the dam when...
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