Wisconsin's Environmental Decade, Inc. v. Department of Natural Resources

Decision Date31 October 1978
Docket NumberNo. 76-086,76-086
Citation271 N.W.2d 69,85 Wis.2d 518
PartiesWISCONSIN'S ENVIRONMENTAL DECADE, INC., Petitioner, City of Madison, a Municipal Corporation, Petitioner-Appellant, v. DEPARTMENT OF NATURAL RESOURCES of the State of Wisconsin, Anthony S. Earl, Secretary of the Department of Natural Resources of the State of Wisconsin, and Douglas W. Morrissette, District Director of Field Operations for the Southern District, Department of Natural Resources of the State of Wisconsin, Robert Wing and The Lake Biologist, Inc., Respondents.
CourtWisconsin Supreme Court

This is a proceeding to review an order of an administrative agency, the Department of Natural Resources (DNR). The order in question granted permits for chemical treatment of aquatic weeds to a small group of riparian property owners on Lakes Mendota and Monona. The lakes are in the City of Madison and other municipalities but for the purpose of this review are considered to be in the City of Madison. The City of Madison was joined by Wisconsin's Environmental Decade, Inc., in the petition for review before the Circuit Court for Dane County. The order of the DNR was affirmed. The City of Madison has appealed.

Helen E. Gibson, Asst. City Atty. (argued), for petitioner; Henry A. Gempeler, City Atty., on the brief.

Linda H. Bochert, Asst. Atty. Gen. (argued), for respondents D.N.R.; Anthony S. Earl and Alta E. Ehly; Bronson C. La Follette, Atty. Gen., on the brief.

BEILFUSS, Chief Justice.

In 1941 the legislature enacted sec. 144.025(2)(i), Stats., (then sec. 144.53(3) by ch. 307, Laws of 1941). This statute gave the responsible administrative agency (now the DNR) authority to issue permits and to "supervise chemical treatment of waters for the suppression of algae, aquatic weeds, swimmers' itch and other nuisance-producing plants and organisms." As of June, 1975, no permit which met the administrative body's procedural requisites had ever been denied; neither had the department initiated chemical treatment by its own action or direction.

For several years prior to 1971 the department annually issued a "blanket permit" to the city for chemical treatment of Madison lakes. On January 12, 1971, the Common Council adopted Resolution No. 21.527 repudiating this practice and establishing a city policy of protesting and preventing the use of chemicals by others. The effect of this resolution is the central issue in this case. It provides as follows:

"RESOLVED: That it is the policy of the Common Council of the City of Madison to prohibit City Departments or subdivisions thereof the application of all herbicides and chemicals in Madison lakes except for reasons of public health as determined by the Health Department,

"and be it further,

"RESOLVED: That the City reject the annual blanket permit granted by the State of Wisconsin, Department of Natural Resources for the purpose of allowing individuals or governmental units to apply herbicide or chemical treatment to the Madison lakes,

"and be it further,

"RESOLVED: That the City of Madison file with the Department of Natural Resources a permanent objection for issuance of a permit for individuals or governmental units to apply herbicides or chemicals to Madison Lakes."

In 1974, DNR permits were applied for by Robert Wing and The Lake Biologist, Inc., (representing three separate groups), requesting authorization to chemically treat aquatic weeds along designated and limited parts of the shoreline of Lakes Mendota and Monona. The combined proposed treatment area for both lakes was approximately 75 acres. The combined total of the two lakes is several thousand acres.

The city notified the DNR of its objection to the issuance of the permits. On July 31, 1974, an informal meeting was held where objections were made and alternative methods of weed control were discussed. All permits were approved and issued on August 6, 1974, for use the following year. The record contains the affidavit of the late Alta E. Ehly, then Director of the DNR's Southern District, that prior to issuance of the permits he read the EIA reports on the application of the chemicals at the four sites, requested information from the Mayor of Madison concerning the granting of the permits, held a meeting to hear objections, and considered the comments of all interested parties.

On March 21, 1975, the city filed a petition for a writ of mandamus in Dane County Circuit Court to require the department to hold a public hearing on the permit approval orders as provided in sec. 144.56, Stats. The writ was granted on June 2, 1975, and the department suspended the orders pending the outcome of the review hearing.

On June 19, 20 and 21, 1975, a hearing was held before Examiner David Schwarz to review the necessity for and reasonableness of the permits issued by the department August 6, 1974.

At the hearing an extensive amount of testimony and evidence was received. Testimony was given by several people concerning the extreme nuisance condition caused by the weeds, which hinder motorboating increase risk of serious boat motor burnout, produce offensive odors, render sailing impossible, and swimming uninviting if not downright hazardous. The difficulties of mechanical harvesting were testified to. It was stated that mechanical harvesting was very time-consuming, costly ($68-$94 per acre), plagued by frequent machine clogging and breakdown, and of limited use in shallow areas under four and one-half feet deep. Expert witnesses on the nature of diquat, endothal, 2, 4-D, and copper sulfate were in substantial agreement that these chemicals are relatively non-toxic and would pose no hazard to nontarget species if properly applied. All four substances are registered with the EPA and all four are very effective for treatment of aquatic weeds. The record reveals the applicator to be an experienced professional, who would have direct DNR supervision to guarantee proper application. The riparian municipalities of Westport, Middleton, Shorewood Hills, Monona, Maple Bluff and Dane County supported the use of chemicals for aquatic weed control. Only the City of Madison objected.

Based on the record of the hearing, the department made findings of fact and conclusions of law and ordered the issuance of modified permits to the original applicants for the same four areas of the two lakes.

On June 26, 1975, the city and Wisconsin's Environmental Decade jointly filed a petition for review of the department's findings, conclusions and order pursuant to sec. 144.56(2) and ch. 227, Stats. Application for a stay of enforcement of the agency decision pending the determination on review was denied on June 30, 1975. On May 10, 1976, judgment was entered affirming the order of the DNR.

The issues presently before the court may be stated as follows:

Was the DNR's decision to issue permits for the chemical control of lake weeds in excess of its statutory authority or jurisdiction or affected by other error of law?

Is City of Madison Resolution No. 21.527 unconstitutional as an unlawful exercise of power and is it an enactment inconsistent with state statutes?

Does the record support Findings of Fact 8 and 9 that the chemicals permitted to be used are safe and effective and will not adversely affect water quality if treatments are properly applied?

The issues raised in the present case and the opposing positions taken by the parties concerning the appropriateness of alternative methods of water quality maintenance and general water management require analysis of the constitutional and statutory "division of power" between the Department of Natural Resources and the City of Madison with respect to chemical treatment of aquatic weeds in Lakes Mendota and Monona. 1

Title to the navigable waters of the state and to the beds of navigable waters is "vested and continues in the state of Wisconsin in trust for the use of the public." Madison v. Wisowaty, 211 Wis. 23, 27, 247 N.W. 527 (1933); Diana Shooting Club v. Lamoreux, 114 Wis. 44, 54, 89 N.W. 880 (1902). This "public trust" duty requires the state not only to promote navigation but also to protect and preserve its waters for fishing, hunting, recreation, and scenic beauty. Muench v. Public Service Comm., 261 Wis. 492, 53 N.W.2d 514, 55 N.W.2d 40 (1952); Just v. Marinette County, 56 Wis.2d 7, 18, 201 N.W.2d 761 (1972). The state's responsibility in the area has long been acknowledged. However, increased leisure time, improved transportation facilities, the consequent growth of Wisconsin's water-centered recreation industry, and the continued deterioration of the quality of the waters of the state have awakened widespread interest in all Wisconsin's waters and have served to underscore the fact that maintaining pure and attractive rivers, lakes and streams is a matter of statewide concern.

In furtherance of the state's affirmative obligations as trustee of navigable waters, the legislature has delegated substantial authority over water management matters to the DNR. 2 The duties of the DNR are comprehensive, and its role in protecting state waters is clearly dominant. Relevant language of sec. 144.025, Stats., is as follows:

"Department of natural resources water resources. (1) Statement of Policy and Purpose. The department of natural resources shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private. Continued pollution of the waters of the state has aroused widespread public concern. It endangers public health and threatens the general welfare. A comprehensive action program directed at all present and potential sources of water pollution whether home, farm, recreational, municipal, industrial or commercial is needed to protect human life and health, fish and aquatic life, scenic and ecological values and domestic, municipal, recreational, industrial,...

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