PUBLISHED OPINION
Case No.: 95‑3125
For Complete Title Petition
to review Filed
of Case, see attached opinion
Petition
to review filed by Petitioner‑Respondent
Submitted on Briefs
May 14, 1996
JUDGES: Cane,
P.J., LaRocque Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS For the respondent-appellant the cause was submitted on
the brief of James E. Doyle, attorney general, and John S. Greene,
assistant attorney general.
Respondent
ATTORNEYS For the petitioner-respondent the cause was submitted on
the brief of Catherine R. Quiggle of Rodli, Beskar, Boles &
Krueger, S.C. of River Falls.
Amicus
curiae brief was filed by Steven T. Zobbi of Minneapolis, for Wolf River
Alliance and Wolf River Territories.
Amicus
curiae brief was filed by Anthony S. Earl, Waltraud A. Arts and Sarah
E. Coyne of Quarles & Brady of Madison for Wisconsin
Manufacturers & Commerce.
Amicus
curiae brief was filed by Lawrence Classen of Madison, for Wisconsin's
Environmental Decade, Inc.
COURT OF APPEALS DECISION DATED AND RELEASED June 11, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3125
STATE
OF WISCONSIN IN
COURT OF APPEALS
RUSK COUNTY CITIZEN
ACTION GROUP, INC.,
Petitioner-Respondent,
v.
WISCONSIN DEPARTMENT
OF
NATURAL RESOURCES,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Rusk County:
FREDERICK A. HENDERSON, Judge. Reversed.
Before Cane, P.J., Myse
and Wedemeyer, JJ.
MYSE, J. The Wisconsin Department of Natural
Resources appeals a judgment reversing the DNR's decision that it lacked
authority to promulgate a rule banning sulfide mineral mining in Wisconsin as
requested in a petition filed by Rusk County Citizen Action Group, Inc.
(RCCAG). Because we conclude that the
DNR does not have the authority to promulgate a rule banning all sulfide
mineral mining in Wisconsin, we reverse the judgment.
RCCAG presented a
petition to the DNR pursuant to § 227.12, Stats.,
requesting that the DNR "promulgate rules that ban the mining of sulfide
mineral deposits in the state of Wisconsin." In support of its petition, RCCAG submitted signatures of
citizens supporting the mining ban and materials suggesting that it is
impossible to operate a sulfide mineral mine without causing serious
environmental harm. The DNR denied the
petition on the ground that the legislature did not grant the DNR authority to issue
a blanket rule banning sulfide mineral mining.
RCCAG sought circuit
court review of the DNR's decision.
After receiving briefs and hearing oral arguments, the circuit court
held that the DNR has authority to issue such a rule and remanded the matter
back to the DNR for consideration of the merits of RCCAG's petition. The DNR appeals.
First, we note that
there is little dispute that historically sulfide mineral mining operations
have caused significant environmental problems. The wisdom of the requested rule banning sulfide mineral mining,
however, is not the issue before us.
The issue before us is whether the legislature empowered the DNR to
issue a rule that would ban all sulfide mineral mining in Wisconsin. The wisdom of a ban on sulfide mineral
mining in Wisconsin is a matter of public policy that must be resolved by the
legislature and the administrative agencies it charges with this
responsibility, not the courts of this state.
We therefore are required to resolve this issue without regard to the
merits of the proposed rule.
On appeal, we review the
decision of the DNR, not the trial court.
See La Crosse v. DNR, 120 Wis.2d 168, 179, 353
N.W.2d 68, 73 (Ct. App. 1984). Our
scope of review is identical to that of the trial court. Id. The extent of the DNR's statutory authority is a question of
law. See Wisconsin Power
& Light Co. v. PSC, 181 Wis.2d 385, 392, 511 N.W.2d 291, 293
(1994). We give no deference to the
agency's decision regarding its own statutory authority. Id.
"An administrative
agency has only those powers which are expressly conferred or can be fairly
implied from the statutes under which it operates." Oneida County v. Converse, 180
Wis.2d 120, 125, 508 N.W.2d 416, 418 (1993).
The statutes do not expressly authorize the DNR to ban all sulfide
mineral mining in Wisconsin. Therefore,
we must determine whether the power to ban sulfide mineral mining is implied
from the language of the statutes.
"Any reasonable doubt as to the existence of an implied power in an
agency should be resolved against the exercise of such authority." Kimberly-Clark Corp. v. PSC,
110 Wis.2d 455, 462, 329 N.W.2d 143, 146 (1983).
The Metallic Mining
Reclamation Act (Mining Act), §§ 144.80 through 144.94, Stats., delineates the DNR's authority regarding metallic
mineral mining. The Mining Act
authorizes metallic mineral mining within certain limitations, and it is
undisputed that sulfide mineral mining is one type of metallic mineral
mining. Section 144.83, Stats., entitled Department powers and
duties, provides in relevant part:
(1) The department shall:
(a) Adopt rules, including rules for prehearing discovery, implementing
and consistent with ss. 144.80 to 144.94.
....
(2) (a) The department by rule after
consulting with the metallic mining council shall adopt minimum standards
for exploration, prospecting, mining and reclamation to ensure that such
activities in this state will be conducted in a manner consistent with the
purposes and intent of ss. 144.80 to 144.94. The minimum standards may classify exploration, prospecting and
mining activities according to type of minerals involved and stage of
progression in the operation.
(b) Minimum standards for exploration, prospecting and mining shall
include the following:
....
11. Identification and prevention of pollution as defined in s.
144.01(10) resulting from leaching of waste materials.
12. Identification and prevention of significant environmental pollution
as defined in s. 144.01(3).
....
(d) The minimum standards adopted under this
subsection shall also provide that if any of the following situations may
reasonably be expected to occur during or subsequent to prospecting or mining,
the prospecting or mining permit shall be denied[.] (Emphasis added.)
In addition, § 144.85, Stats., sets up a comprehensive permit
application process for metallic mineral mining in Wisconsin, and § 144.836, Stats., provides for hearings on
applications for mining permits.
Section 144.85(5)(a) states that after a public hearing, "the
department shall issue the mining permit" if it finds that certain
conditions have been met.
Section 144.83(1)(a), Stats., requires the DNR to adopt rules
consistent with the Mining Act.
However, because the Mining Act sets up a comprehensive permit
application process and requires the DNR to adopt minimum standards for
exploration, prospecting, mining and reclamation to insure that the purposes
and intent of the Mining Act are met, we conclude that the Mining Act does not
give the DNR authority to issue a rule banning all sulfide mineral mining.
The Mining Act directs
the DNR to establish standards and to administer a permit application process
in such a way as to insure the standards are met. Adopting standards for a permit application process is inconsistent
with imposing a ban on all sulfide mineral mining. A standard is defined as "something that is set up and
established by authority as a rule for the measure of quantity, weight, extent,
value or quality[.]" Webster's Third New International Dictionary
2223 (Unabr. 1976). In contrast to a
standard, a ban precludes any comparison or measurement by prohibiting the
activity altogether. A ban is
inconsistent with the case-by-case analysis based on standards envisioned by
the Mining Act because a ban precludes any such analysis. If the legislature had concluded that the
DNR should have the authority to ban mining, it could have specifically
authorized such a ban. However, the
Mining Act envisions a case‑by‑case analysis of each mining permit
application. Because a rule banning
sulfide mineral mining would be inconsistent with the Mining Act, we conclude that the Mining Act does not
give the DNR the authority to issue a rule banning all sulfide mineral mining
in Wisconsin.
RCCAG contends that
because the DNR has the authority to control sulfide mineral mining through its
standards and the permit process, it has the authority to promulgate a rule
banning sulfide mineral mining. We
disagree. The DNR's authority to
control sulfide mineral mining is not absolute; the DNR's authority is given
under specific conditions and mandated procedures for a case‑by‑case
analysis of each mining permit application.
As previously discussed, a total ban on sulfide mineral mining would be
inconsistent with the case‑by‑case analysis required by the Mining
Act.
Next, RCCAG contends
that § 144.82, Stats., authorizes
the DNR to ban sulfide mineral mining.
Section 144.82 states that "[t]he department shall serve as the
central unit of state government to ensure that the air, lands, waters, plants,
fish and wildlife affected by prospecting or mining in this state will receive
the greatest practicable degree of protection and reclamation." We conclude that § 144.82 is only a
statement of purpose and not a grant of authority to issue a ban on mining
activity. This section does not
expressly give the DNR any authority; it only states that the DNR shall serve
as the central unit of state government.
Section 144.83, Stats.,
deals with the powers of the DNR under the Mining Act and we have already
determined that it does not give the DNR the authority to impose a ban on
sulfide mineral mining. The purpose
stated in § 144.82 is consistent with the case‑by-case analysis
envisioned by the Mining Act.
RCCAG next contends the
circuit court correctly concluded that § 144.025, Stats., in the Water and Sewage subchapter, gives the DNR
authority to promulgate a rule banning all sulfide mineral mining in
Wisconsin. We disagree. Section 144.025(2)(a) provides that the DNR
shall have general supervision and control over the waters of the state and
shall carry out the planning, management and regulatory programs necessary for
implementing the policy and purpose of this chapter. Section 144.025(2)(b) requires the DNR to promulgate rules
setting standards of water quality to be applicable to the waters of the
state. While § 144.025 gives the
DNR responsibility for the water quality in Wisconsin, we conclude that the
power granted is not so sweeping as to authorize the DNR to ban all activities
that might adversely affect water quality.
Section 144.025 does not authorize the DNR to establish limitations for
any one specific industry. For example,
it would not be suggested that the DNR could ban all industrial activity which
adversely affects water quality under § 144.025. We conclude that the circuit court read the authority of the DNR
granted under § 144.025 far more broadly than the statutory language itself
warrants. While we agree that the DNR
does have a responsibility as to the quality of Wisconsin water, we do not find
authorization within the terms of § 144.025 to ban all activities that may
adversely affect water quality.
Even if we were to
assume such a grant of authority may be implied in § 144.025, Stats., we must use rules of statutory
construction to resolve the apparent conflict between the power found by the
circuit court in § 144.025 and the specific grant of authority in the Mining
Act which envisions the issuance of mining permits upon the meeting of certain
conditions. The Mining Act is the more
specific statutory grant of authority dealing with the question of sulfide
mineral mining and it was enacted eight years after § 144.025. When a specific grant of authority to an
agency conflicts with a more general grant of authority, the specific statute
controls. Grogan v. PSC,
109 Wis.2d 75, 81, 325 N.W.2d 82, 85 (Ct. App. 1982). This is especially true when the specific statute is enacted
after the general statute. Id. Accordingly, we conclude that the Mining
Act, which envisions a permit application process and case-by-case analysis,
controls over any implied authority of § 144.025 regarding a ban on sulfide
mineral mining.
We note that § 144.937, Stats., provides that if there is a
standard under another statute which specifically regulates an activity also
regulated under the Mining Act, the other statute controls. However, this section does not change our
analysis. Section 144.025, Stats., does not specifically regulate
sulfide mineral mining; it specifically regulates water quality in
Wisconsin. Thus, the water quality
standards set up by § 144.025 would control over the water quality standards in
the Mining Act. Therefore, we conclude
that under § 144.937, the water quality standards of § 144.025 may be relevant
to the standards and permit process in the Mining Act, but do not affect the
DNR's authority to ban sulfide mineral mining in Wisconsin.
Finally, we address
RCCAG's contention that its petition does not ask the DNR to adopt an outright
ban of sulfide mineral mining. RCCAG
contends that their petition could also be read to request the DNR to adopt
standards for reclamation or pollution prevention that would have the effect of
banning sulfide mineral mining. We
disagree. The petition specifically
requests that the DNR "promulgate rules that ban the mining of sulfide
mineral deposits in the state of Wisconsin." While the petition does not suggest the specific language of the
rule, it identifies a total ban on all sulfide mineral mining. The petition does not request the DNR to
strengthen its standards relating to reclamation or pollution control. Nowhere in the petition is it suggested that
a modification of the permit application process is being sought, or that the
mining of sulfide minerals would be permitted upon meeting standards imposed by
the DNR. Section 227.12(2)(a), Stats., requires a petition for rule
making to "state clearly and concisely ... [t]he substance or nature of
the rule making requested."
Therefore, we conclude that the clear and unambiguous language of the
petition requested an absolute ban on sulfide mineral mining in Wisconsin. Because we conclude that the DNR does not
have the authority to issue a rule banning sulfide mineral mining in Wisconsin,
we reverse the judgment.
By the Court.—Judgment
reversed.