Clean Wisconsin, Inc. v. DNR ( 2021 )

2021 WI 71SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1688
COMPLETE TITLE: Clean Wisconsin, Inc., Lynda Cochart, Amy
Cochart, Roger DeJardin, Sandra Winnemueller and
Chad Cochart,
Petitioners-Respondents,
v.
Wisconsin Department of Natural Resources,
Respondent-Appellant,
Kinnard Farms, Inc.,
Intervenor-Co-Appellant,
Wisconsin Legislature,
Intervenor.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: July 8, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 12, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: John W. Markson
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, and DALLET, JJ., joined.
DALLET, J., filed a concurring opinion, in which ANN WALSH
BRADLEY and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a
dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined.
REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.
NOT PARTICIPATING:
HAGGEDORN, J., did not participate.
ATTORNEYS:
For the intervenor-co-appellant, there were briefs filed by
Jordan J. Hemaidan, Nancy Cruz, and Michael Best & Friedrich
LLP, Madison. There was an oral argument by Jordan J. Hemaidan.
For the intervenor, there were briefs filed by Eric M.
McLeod, Kirsten A. Atanasoff, Lisa M Lawless, and Husch
Blackwell LLP, Madison and Milwaukee. There was an oral argument
by Eric M. McLeod.
For the petitioners-respondents, there was a brief filed by
Andrea Gelatt, Rob Lee, and Midwest Environmental Advocates,
Madison; with whom on the brief was Evan Feinauer and Clean
Wisconsin, Inc., Madison. There was an oral argument by Andrea
Gelatt.
For the respondent-appellant, there was a brief filed by
Jennifer L. Vandermeuse and Gabe Johnson-Karp assistant
attorneys general; with whom on the brief was Joshua L. Kaul,
attorney general, Madison. There was an oral argument by
Jennifer L. Vandermeuse.
An amicus curiae brief was filed by Ryan J. Owens, Verona.
An amicus curiae brief was filed on behalf of Wisconsin
Environmental Health Network by John S. Greene, Madison.
An amicus curiae brief was filed on behalf of Wisconsin
Manufacturers and Commerce, Midwest Food Products Association,
Wisconsin Cheese Makers Association, Dairy Business Association,
Wisconsin Potato and Vegetable Growers Association, Wisconsin
Farm Bureau Federation, Wisconsin Paper Council, Wisconsin Corn
Growers Association, Wisconsin Dairy Alliance, and Venture Dairy
Cooperative by Robert I. Fassbender and Great Lakes Legal
Foundation, Madison; with whom on the brief was Luca T. Vebber,
Corydon J. Fish, and Wisconsin Manufacturers & Commerce,
Madison.
An amicus curiae brief was filed on behalf of Food & Water
Watch, Family Farm Defenders, and Sustain Rural Wisconsin
Network by Zach Corrigan, Madison.
2021 WI 71NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1688
(L.C. No. 2015CV2633)
STATE OF WISCONSIN : IN SUPREME COURT
Clean Wisconsin, Inc., Lynda Cochart, Amy
Cochart, Roger DeJardin, Sandra Winnemueller
and Chad Cochart,
Petitioners-Respondents,
v. FILED
Wisconsin Department of Natural Resources,
JUL 8, 2021
Respondent-Appellant,
Sheila T. Reiff
Clerk of Supreme Court
Kinnard Farms, Inc.,
Intervenor-Co-Appellant,
Wisconsin Legislature,
Intervenor.
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, and DALLET, JJ., joined.
DALLET, J., filed a concurring opinion, in which ANN WALSH
BRADLEY and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a
dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined.
REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.
HAGEDORN, J., did not participate.
APPEAL from an order of the Circuit Court for Dane County,
John W. Markson, Judge. Affirmed.
No. 2016AP1688
¶1 JILL J. KAROFSKY, J. This case is about whether the
Wisconsin Department of Natural Resources (DNR) had the explicit
authority to impose an animal unit maximum condition and an off-
site groundwater monitoring condition upon a Wisconsin Pollutant
Discharge Elimination System (WPDES) permit it reissued to
Kinnard Farms, Inc. (Kinnard) for its concentrated animal
feeding operation (CAFO). The circuit court decided that the
DNR had the explicit authority to do so, and the court of
appeals certified this appeal to us, pursuant to Wis. Stat.
§ (Rule) 809.61 (2017-18).1
¶2 We conclude that the DNR had the explicit authority to
impose both the animal unit maximum and off-site groundwater
monitoring conditions upon Kinnard's reissued WPDES permit
pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations.
Accordingly, we affirm the order of the circuit court.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶3 Kinnard operates a large CAFO2 in the Town of Lincoln.
In 2012, Kinnard wanted to expand its dairy operation by
The Honorable John W. Markson of the Dane County Circuit
1
Court presided.
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
See Wis. Admin. Code § NR 243.03(12)(a)(defining a CAFO,
2
as relevant here, as "an animal feeding operation
[with] . . . 1,000 animal units or more at any time [that]
stores manure or process wastewater in a below or at grade level
storage structure or land applies manure or process
wastewater").
2
No. 2016AP1688
building a second site and adding 3,000 dairy cows. The
expansion required Kinnard to apply to the DNR for reissuance of
its WPDES permit to include both the original site and the
proposed expansion.3 Wis. Stat. § 283.59(1). The DNR approved
Kinnard's application and reissued Kinnard's WPDES permit with
effective dates of September 1, 2012-August 31, 2017.4
¶4 The five named petitioners in this appeal sought
review of the reissued WPDES permit because they lived near
Kinnard's CAFO, had private drinking wells, and were concerned
that Kinnard's proposed expansion would exacerbate current
groundwater contamination issues. The petitioners alleged that
the reissued WPDES permit was inadequate because, among other
failings, it did not set a "maximum number of animal units" or
"require monitoring to evaluate impacts to groundwater."
Accordingly, they petitioned for a contested case hearing to
review the DNR's decision, pursuant to Wis. Stat. § 283.63(1).
¶5 The DNR granted the petition and referred the matter
to an administrative law judge (ALJ), pursuant to Wis. Stat.
§§ 227.43(1)(b), 283.63. Kinnard filed for summary judgment,
alleging that the DNR lacked statutory authority to impose an
The second site, a quarter-mile away from the original
3
facility, is also a CAFO, and therefore a "point source" subject
to the WPDES permit program, as outlined in ch. 283. All owners
and operators of point sources in Wisconsin must obtain a WPDES
permit in order to discharge pollutants into the waters of the
State. Wis. Stat. §§ 283.31(1), 283.37.
See Wis. Stat. § 283.53(1)(establishing a 5-year maximum
4
term for WPDES permits).
3
No. 2016AP1688
animal unit maximum, citing 2011 Wis. Act 21, specifically Wis.
Stat. § 227.10(2m).5 The ALJ denied the motion, concluding there
were genuine issues of material fact, and set the matter for an
evidentiary hearing.
¶6 The ALJ conducted a four-day evidentiary hearing
during which Town of Lincoln community members who lived and
worked near Kinnard's CAFO testified about the contamination of
their well water and the impact of that contamination on their
businesses, homes, and daily lives. The community members
conveyed their belief that Kinnard's CAFO was the source of the
well water contamination. The ALJ also heard testimony from a
number of experts who established that up to 50 percent of
private wells in the Town of Lincoln were contaminated and that
30 percent of wells tested positive for E. coli bacteria.6
Additionally, an expert testified about the particular features
of the land underlying Kinnard's CAFO which made that land
extremely susceptible to groundwater contamination. According
5The only provision of 2011 Wis. Act 21 at issue in this
case is Wis. Stat. § 227.10(2m).
6As the ALJ noted, "No witness for the dairy or the DNR
disputed these numbers."
"The presence of large volumes of feces in and around
animals in CAFO[s] provides a breeding ground for many
bacteria," including E. coli. The bacteria can cause disease
outbreaks through "contact with these organisms via swimming,
eating shellfish, eating contaminated food, or drinking
contaminated water." United States Environmental Protection
Agency, Risk Assessment Evaluation for Concentrated Animal Feed
Operations, 1, 29-30 (May 2004).
4
No. 2016AP1688
to the testimony, pollution could travel over half a mile
through groundwater into wells in 24 hours.7
¶7 Based on the evidence presented, the ALJ concluded
that the "level of groundwater contamination including E. coli
bacteria in the area at or near the [second] site is [] very
unusual." Additionally, the ALJ identified "what could fairly
be called a groundwater contamination crisis in areas near the
site." The ALJ further found that "[t]he proliferation of
contaminated wells represents a massive regulatory failure to
protect groundwater in the Town of Lincoln." Of import to this
appeal, the ALJ determined that, based on the facts presented,
the DNR had "clear regulatory authority" to impose the two
conditions disputed in this action upon Kinnard's reissued WPDES
permit.
The groundwater beneath Kinnard's CAFO is in a featured
7
carbonated bedrock aquifer; this type of bedrock is referred to
as "karst." The Iowa Department of Natural Resources explains
karst geology as such:
Karst bedrock is characterized as bedrock that is
close to the land's surface and contains a vast
network of underground drainage systems that have
direct connections to the land's surface. In areas of
Karst . . . [s]ome of the water that originates at the
surface——possibly near sources of contamination——flows
undetected into the ground. This water can contain
contaminants that are found on the land's surface and
those not bound or utilized by the area[']s soils and
land cover. Once in the ground, this water that was
once on the surface becomes part of the groundwater
supply.
iowadnr.gov/environmental-protection/water-quality/private-well-
program/private-well-testing/contamination-in-karst
5
No. 2016AP1688
¶8 The first condition was an animal unit maximum. The
ALJ ordered the DNR to modify Kinnard's reissued WPDES permit to
"articulate the maximum number of animal units allowed at the
facility." The ALJ reasoned that "[e]stablishing a cap on the
maximum number of animal units will provide clarity and
transparency for all sides as to the limits that are necessary
to protect groundwater and surface waters." Additionally, the
ALJ noted that the condition would assure compliance with the
statutory requirement that CAFOs have and maintain 180 days'
worth of properly designed manure storage.8 This was especially
important due to Kinnard's recent history of noncompliance with
this storage requirement. The ALJ also reasoned that "[i]t is
not a question of either/or——the 180 day storage requirement
represents a good short term measure to detect an impending
problem, but the maximum animal unit number represents a useful
longer-term management tool."
¶9 The second condition was off-site groundwater
monitoring. The ALJ determined that "a groundwater monitoring
plan is essential given that the area is 'susceptible to
groundwater contamination' within the meaning of Wis. Admin.
Code § NR 243.15(3)(2)(a)." According to the ALJ, "it is
essential that the [DNR] utilize its clear regulatory
Pursuant to Wis. Admin. Code § NR 243.15(3)(i-k)(March
8
2019), CAFOs must have and maintain 180 days' worth of properly
designed manure storage to ensure sufficient storage capacity
during the winter months when spreading of manure is limited to
emergencies. See § NR 243.14(7)(a).
6
No. 2016AP1688
authority . . . to ensure that Kinnard Farms meet its legal
obligation under Wis. Admin. Code § NR 243.14(2)(b)(3)[9] not to
contaminate well water with fecal bacteria from manure or [from]
process wastewater." The ALJ ordered the DNR to modify the
permit "to include a groundwater monitoring plan which includes
no less than six monitoring wells. If practicable, the permit-
holder shall include at least two monitoring wells which are
located off-site on voluntarily willing neighboring properties
with water contamination issues or risks." The ALJ justified
the off-site monitoring as "better and more likely to yield
results that identified problem areas" and acknowledged that
"[o]bviously, this would require the voluntary participation of
off-site property owners."10
¶10 Kinnard appealed the ALJ's decision to the DNR
Secretary, pursuant to Wis. Admin. Code § NR 2.20(1) (February
2019).11 The DNR Secretary denied review, reasoning that the
issue "would most appropriately [be] decided by the courts of
this state." Kinnard then filed a petition for judicial review
9 This and all subsequent references to
the Wis. Admin. Code ch. NR 243 are to the March 2019 register
date unless otherwise indicated.
10The DNR's authority to require on-site groundwater
monitoring is not at issue in this case, as Wis. Admin. Code
§ NR 243.15(3)(c)2.a. fully supports the "on-site" groundwater
monitoring that the ALJ imposed in its decision.
11All subsequent references to the Wis. Admin. Code ch.
NR 2 are to the February 2019 register date unless otherwise
indicated.
7
No. 2016AP1688
in the Kewaunee County Circuit Court. The circuit court
determined that the petition for judicial review was premature
and was not "final" for purposes of appeal until the DNR imposed
the conditions ordered by the ALJ.
¶11 At this point, the DNR began implementing the two
conditions. Shortly thereafter, in August 2015, the DNR sought
review from the Wisconsin Department of Justice (DOJ) regarding
its ability to impose the conditions upon Kinnard's reissued
WPDES permit in light of Wis. Stat. § 227.10(2m). DOJ opined
that § 227.10(2m) precluded the DNR from imposing the
conditions, which prompted the DNR Secretary to reconsider her
decision denying review of the ALJ's decision. The DNR
Secretary concluded that such a review was appropriate and
quickly issued an order reversing the portion of the ALJ's
decision that imposed the animal unit maximum and off-site
groundwater monitoring conditions.
¶12 The five named petitioners filed a petition for
judicial review in the Kewaunee County Circuit Court, and Clean
Wisconsin filed a petition for judicial review in the Dane
County Circuit Court. The Dane County Circuit Court
consolidated the two cases and reversed the DNR Secretary's
decision, concluding that the DNR had the explicit authority to
impose the animal unit maximum and off-site groundwater
monitoring conditions on Kinnard's reissued WPDES permit
8
No. 2016AP1688
pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations.12
The circuit court remanded the case with instructions for the
DNR to implement the ALJ's order as to those conditions.
¶13 The DNR and Kinnard appealed the circuit court's
decision.13 The court of appeals certified the case to this
court and we accepted certification in April 2019.14 Shortly
thereafter, we granted the DNR's motion to modify the briefing
schedule since it was no longer advocating the same positions as
12At the outset, the circuit court determined that the
ALJ's decision became a final decision of the DNR when the DNR
Secretary denied Kinnard's petition for review and the DNR did
not petition for review itself under Wis. Admin. Code § NR 2.20,
pursuant to §§ NR 2.155(1), 2.20(3). Additionally, the circuit
court concluded that the DNR Secretary's attempt to reverse her
denial of Kinnard's petition was untimely and exceeded her
authority.
13The circuit court granted the petitioners their fees and
costs under Wis. Stat. § 814.245. The DNR appealed that
judgment and moved the court of appeals to consolidate the two
appeals, which it did. The DNR voluntarily dismissed the appeal
regarding fees and costs, Case No. 2016AP2502, in May 2019, so
the issue is no longer before the court.
14 While the appeals were pending, Kinnard's 2012 permit
expired and the DNR issued a subsequent permit that did not
contain either an animal unit maximum or an off-site groundwater
monitoring condition. A group of citizens petitioned for a
contested case hearing regarding the new permit, but the parties
agreed to put that dispute on hold until the resolution of this
appeal.
The court of appeals also certified another consolidated
"companion" case, Clean Wisconsin, Inc. v. DNR, No. 2018AP59.
Although both cases address the effect of Wis. Stat.
§ 227.10(2m) on the scope of the DNR's authority, each deals
with a different authorizing statute, thus presenting different
legal issues. See Clean Wis., Inc. v. DNR, No. 2018AP59, slip
op. (Wis. S. Ct. July 8, 2021).
9
No. 2016AP1688
it did in the circuit court. The Joint Committee on Legislative
Organization (the Legislature) also moved the court to
intervene. We granted that motion in January 2021.15
II. STANDARD OF REVIEW
¶14 "When an appeal is taken from a circuit court order
reviewing an agency decision, we review the decision of the
agency, not the circuit court." Hilton ex rel. Pages
Homeowners' Ass'n v. DNR, 2006 WI 84, ¶15, 293 Wis. 2d 1,
717 N.W.2d 166. We review questions of agency authority de
novo. Andersen v. DNR, 2011 WI 19, ¶¶25-26, 332 Wis. 2d 41,
796 N.W.2d 1.
¶15 This case also requires us to interpret several
statutory provisions, which we review de novo. Noffke ex rel.
Swenson v. Bakke, 2009 WI 10, ¶9, 315 Wis. 2d 350,
760 N.W.2d 156. The purpose of statutory interpretation is to
"determine what the statute means so that it may be given its
full, proper, and intended effect." State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633,
681 N.W.2d 110.
III. ANALYSIS
¶16 We are tasked with determining whether Wis. Stat.
§ 283.31(3)-(5), and related regulations, grant the DNR explicit
authority to impose the two conditions at issue upon Kinnard's
15 Although the caption of this case is Clean Wisconsin v.
DNR, that is a misnomer. Clean Wisconsin and the DNR are now
aligned in view, and the Legislature and Kinnard are likewise
aligned.
10
No. 2016AP1688
reissued WPDES permit. We first provide some background
regarding the WPDES permit program and its significance as it
relates to: (1) CAFOs; (2) restricting the amount of pollutants
discharged into waters of the state ("effluent limitations"16);
and (3) groundwater protection standards. We then interpret the
"explicit authority" requirement of Wis. Stat. § 227.10(2m).
Next, we examine the text of § 283.31(3)-(4), paying special
attention to the terms "effluent limitations" and "groundwater
protection standards." We conclude by determining whether
§ 283.31(3)-(5), and relevant regulations, explicitly authorized
the DNR to impose both the animal unit maximum and off-site
groundwater monitoring conditions upon Kinnard's reissued WPDES
permit.
A. Relevant Background
¶17 We begin with a discussion of the WPDES permit program
and its impact on CAFOs, effluent limitations, and groundwater
protection standards to provide context for our statutory
analysis. The WPDES permit program is outlined in ch. 283 of
the Wisconsin Statutes, wherein the DNR is granted "all
authority necessary to establish, administer and maintain a
state pollutant discharge elimination system" in order to
protect the "waters of this state," including groundwater and
Wisconsin
16 Stat. § 283.01(6) defines an "effluent
limitation" as "any restriction established by [DNR] . . . on
quantities, rates, and concentrations of chemical, physical,
biological, and other constituents which are discharged from
point sources into waters of this state."
11
No. 2016AP1688
surface water, from pollution. Wis. Stat. § 283.001(1)-(2).17
Chapter 283 prohibits the discharge of any pollutant into the
waters of the state unless the DNR authorizes the discharge in a
permit. Wis. Stat. § 283.31(1); 283.37. The DNR may issue a
WPDES permit "for the discharge of any pollutant, or combination
of pollutants . . . upon condition that such discharges will
meet" the requirements outlined in § 283.31(3). Additionally,
§ 283.31(4) mandates that the DNR prescribe "additional
conditions" necessary to "assure compliance" with the
requirements listed in § 283.31(3).
¶18 CAFOs are statutorily required to apply to the DNR for
a WPDES permit because they are "point sources" as defined in
Wis. Stat. § 283.01(12). Generally speaking, a CAFO is "a
specific type of large-scale industrial agricultural facility
that raises animals, usually at high-density, for the
[production] of meat, eggs, or milk." National Association of
Local Boards of Health, Understanding Concentrated Animal
Feeding Operations and Their Impact on Communities (2010). Due
to their size, CAFOs produce as much manure——waste——as do small
and medium-size cities. For example, "[a] farm with 2,500 dairy
cattle is similar in waste load to a city of 411,000 people."
The United States Environmental Protection Agency (EPA)
17
is authorized to allow States to administer their own permit
programs, in lieu of the National Pollution Discharge
Elimination System, so long as those States meet certain federal
requirements. 33 U.S.C. § 1342(b)-(c) (2019). The EPA approved
the WPDES permit program in 1974. Andersen v. DNR, 2011 WI 19,
¶37, 332 Wis. 2d 41, 796 N.W.2d 1.
12
No. 2016AP1688
United States Environmental Protection Agency, Risk Assessment
Evaluation for Concentrated Animal Feed Operations, 7 (May
2004).
¶19 CAFOs' agricultural waste, including manure and water
that comes into contact with animal feed and manure (also
referred to as "process wastewater"18), is defined as a
"pollutant" and subject to regulation. Wis. Stat. § 283.01(13).
WPDES permits establish effluent limitations, which are
restrictions on the amount of pollutants a point source like a
CAFO may release into the waters of the state. This includes
discharges both from the production area (on-site) and onto the
fields where manure is land-applied (off-site).19 "Because large
numbers of animals are confined in relatively small areas at
CAFOs, a very large volume of manure is produced and must be
kept in a correspondingly small area until disposed of." United
States Environmental Protection Agency, supra at 1. While
manure is useful to the farming industry as fertilizer, in large
quantities it has the potential to become hazardous because
See Wis. Admin. Code § NR 243.03(53) (defining "process
18
wastewater" as "wastewater from the production area directly or
indirectly used in the operation of animal feeding operation
that results from," among other things, "[w]ater that comes into
contact with any raw materials or animal byproducts including
manure [or] feed").
Wisconsin Admin. Code § NR 243.03(54) defines the
19
"production area," in part, as "that part of an animal feeding
operation that includes the animal confinement area, the manure
storage area, the raw materials storage area, and the waste
containment areas but not CAFO outdoor vegetated areas."
13
No. 2016AP1688
"[t]raditional means of using manure are not adequate to contend
with the large volumes present at CAFOs." Id. at 2.
¶20 Long-term manure storage requirements are common in
states like Wisconsin where long, cold winters prevent liquid
manure-spreading for several months each year. See Wis. Admin.
Code § NR 243.14(9) (requiring CAFOs to have "a minimum of 180
days of storage designed and maintained in accordance with ss.
NR 243.15(3)(i) to (k)"). The number of animals at a CAFO
corresponds to the amount of animal-generated waste that the
CAFO must store. See § NR 243.15(3)(k). If a CAFO fails to
properly manage its manure storage, it presents a higher risk of
storage overflow and groundwater contamination. National
Association of Local Boards of Health, supra at 3. Such
failures are hazardous because manure is a breeding ground for
many pathogens, including E. coli, and as a result creates a
serious risk for disease outbreak if it enters the groundwater.
Id. at 8-10. To protect against this risk, Wisconsin
regulations require CAFOs to comply with certain regulations
such as: (1) effluent limitations, promulgated in Wis. Admin.
Code ch. NR 243; and (2) groundwater quality standards. See NR
§ 243.13(5)(a). With this general background in mind, we
proceed to the statutory analysis.
B. Wisconsin Stat. § 227.10(2m)
¶21 The core issue in this case involves Wis. Stat.
§ 227.10(2m), which dictates that "[n]o agency may implement or
enforce any standard, requirement, or threshold . . . unless
that standard, requirement, or threshold is explicitly required
14
No. 2016AP1688
or explicitly permitted by statute or by a rule that has been
promulgated in accordance with this subchapter." (emphasis
added). The parties dispute the meaning of "explicitly required
or explicitly permitted" in the context of the DNR imposing
conditions upon Kinnard's reissued WPDES permit.
¶22 Kinnard and the Legislature assert that explicit means
specific, and that in order for the DNR to impose a condition
upon a WPDES permit, without promulgating a rule, that condition
must be listed verbatim in a statute or the administrative code.
According to Kinnard and the Legislature, because there is no
literal enumeration or verbatim mention of an animal unit
maximum or off-site groundwater monitoring condition in the
statutes or administrative code, Wis. Stat. § 227.10(2m)
precludes the DNR from imposing such conditions upon Kinnard's
reissued WPDES permit. Kinnard and the Legislature assert that
in the absence of such statutory or administrative authority,
the DNR must promulgate a rule in order to impose these
conditions upon Kinnard's reissued WPDES permit.
¶23 The DNR and Clean Wisconsin counter that such a
reading of "explicitly required or explicitly permitted" is too
narrow, and that Kinnard and the Legislature overlook the
explicit, but broad, authority given to the DNR in Wis. Stat.
§ 283.31(3)-(5) to prescribe such conditions. The DNR and Clean
Wisconsin assert that explicit means expressly conferred and
clear; and an explicit grant, like that given in § 283.31(3)-
(5), can be general and broad in nature. Said differently,
according to the DNR and Clean Wisconsin, an explicit grant of
15
No. 2016AP1688
authority does not necessarily have to be circumscribed or
exhaustively detailed.
¶24 To resolve this issue of interpreting the term
explicit, we examine its dictionary definition and Wis. Stat.
§ 227.10(2m) in context. Explicit and specific are not
synonymous. Black's Law Dictionary defines "explicit" as
"clear, open, direct, or exact" and "expressed without ambiguity
or vagueness." Explicit, Black's Law Dictionary 725 (11th ed.
2019). Similarly, the American Heritage Dictionary defines
explicit as "fully and clearly expressed; leaving nothing
implied" and "fully developed or formulated." Explicit,
American Heritage Dictionary (5th ed. 2011).
¶25 Additionally, when we review Wis. Stat. § 227.10(2m)
in context, we note that in Wis. Stat. § 227.11(2)(a)3., the
legislature used the word "specific." See Kalal,
271 Wis. 2d 633, ¶46 ("[S]tatutory language is interpreted in
the context in which it is used; not in isolation but as part of
a whole; in relation to the language of surrounding or closely-
related statutes . . . ."). This context shows us that the
legislature knew how to use the word "specific," but did not do
so in § 227.10(2m). As a result, we must presume the two words,
explicit and specific, mean different things. Because neither
the dictionary definition nor an examination of the statute in
context supports the premise that the terms explicit and
specific are synonyms, we conclude that an agency may rely upon
a grant of authority that is explicit but broad when undertaking
16
No. 2016AP1688
agency action, and such an explicit but broad grant of authority
complies with § 227.10(2m).
C. Wisconsin Stat. § 283.31(3)-(4)
¶26 Having clarified that explicit authority can be broad
in scope, we next examine Wis. Stat. § 283.31(3) and (4), and
related regulations, as the parties dispute whether these
provisions granted the DNR the explicit authority to impose the
animal unit maximum and off-site groundwater monitoring
conditions upon Kinnard's reissued WPDES permit.
¶27 Wisconsin Stat. § 283.31(3) allows the DNR to issue a
permit "for the discharge of any pollutant, or combination of
pollutants . . . upon condition that such discharges will meet
all the following, whenever applicable:"
(a) Effluent limitations.
(b) Standards of performance for new sources.
(c) Effluent standards, effluents prohibitions and
pretreatment standards.
(d) Any more stringent limitations, including those:
. . .
2. Necessary to comply with any applicable
federal law or regulation[.]
. . .
(e) Any more stringent legally applicable requirements
necessary to comply with an approved areawide waste
treatment management plan.
(f) Groundwater protection standards established under
ch. 160.
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No. 2016AP1688
§ 283.31(3). In this case we are focused on para. a (effluent
limitations) and para. f (groundwater protection standards).
¶28 Wisconsin Stat. § 283.31(4) mandates that the DNR
"shall prescribe conditions for permits issued under this
section to assure compliance with the requirements of sub. (3)."
A non-exhaustive list of examples, beginning with the phrase
"shall include at least the following," is outlined at
§ 283.31(4)(a-f). Therefore, § 283.31(4) requires the DNR to
prescribe conditions in a WPDES permit to assure compliance with
§ 283.31(3); in this case, the parties dispute the imposition of
conditions to enforce effluent limitations and groundwater
protection standards. Notably and of import, § 283.31(4) does
not say "promulgate rules to assure compliance with the
requirements of sub. (3)." Maple Leaf Farms, Inc. v. DNR,
2001 WI App 170, ¶30, 247 Wis. 2d 96, 633 N.W.2d 720 (stating
that "while [] § 283.31(4) directs the DNR to prescribe
conditions for permits to assure compliance with water quality
standards, the statute does not require the DNR to promulgate
such conditions by rule"). Additionally, the text of
§ 283.31(4) explicitly contemplates the DNR's ability to
prescribe conditions for permits that are not enumerated in
subs. (a-f) by prefacing that list with the phrase "at least the
following." (emphasis added).
¶29 Before we continue, we must briefly discuss two terms:
first, "effluent limitations," Wis. Stat. § 283.31(3)(a); and
second, "groundwater protection standards," § 283.31(3)(f). An
effluent limitation is a restriction established by the DNR "on
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No. 2016AP1688
quantities, rates, and concentrations of chemical, physical,
biological, and other constituents which are discharged from
point sources into waters of this state." Wis. Stat.
§ 283.01(6); see also Wis. Stat. § 283.13. In other words,
effluent limitations are restrictions on the amount of pollutant
a point source may release into bodies of water.20 As we
mentioned above, effluent limitations have been promulgated for
CAFOs in Wis. Admin. Code ch. NR 243. For example, and of
significance here: (1) CAFOs may not cause the fecal
contamination of water in a well, § NR 243.14(2)(b)3; and
(2) CAFOs must have 180 days of properly-designed manure
storage, § NR 243.15(3)(i-k), to be prepared for long winters
when spreading of manure is limited to emergencies.
¶30 The second term we must address is "groundwater
protection standards established under ch. 160," as set forth in
Wis. Stat. § 283.31(3)(f). The Legislature gave the DNR broad
authority to establish, monitor, and enforce health-based
groundwater standards in Wis. Stat. ch. 160, which resulted in
the promulgation of Wis. Admin. Code ch. NR 140 (February
2021).21 Chapter 140 contains the State's groundwater standards
and provides that the DNR "may take any actions within the
context of regulatory programs established in statutes or rules
Effluent limitations for CAFOs are based on proper manure
20
and process wastewater storage and land application practices.
All subsequent references to the Wis. Admin. Code ch.
21
NR 140 are to the February 2021 register date unless otherwise
indicated.
19
No. 2016AP1688
outside of this chapter, if those actions are necessary to
protect public health and welfare or prevent a significant
damaging effect on groundwater or surface water quality." § NR
140.02(4). Chapter 140 applies to all facilities regulated by
Wis. Stat. ch. 283, including Kinnard's CAFO. § NR 140.03. As
discussed above, ch. NR 243 requires CAFOs to comply with
groundwater quality standards. See § NR 243.13(5)(a). Having
provided some background to § 283.31(3)(a) and (f), we turn to
the two permit conditions at issue.
D. Whether Wis. Stat. § 283.31(3)-(5) Grants the DNR Explicit
Authority to Impose The Disputed Conditions
¶31 Having provided background regarding the WPDES permit
program, interpreted the "explicit authority" requirement of
Wis. Stat. § 227.10(2m), and examined the text of Wis. Stat.
§ 283.31(3)-(4), we next look at the animal unit maximum and
off-site groundwater monitoring conditions to determine whether
the DNR had explicit authority to impose these conditions upon
Kinnard's reissued WPDES permit.
¶32 We begin by noting that the ALJ imposed both of these
conditions after hearing four days of testimony specific to this
case and reviewing pre-filed reports. Examining the specific
facts surrounding a particular permit application is consistent
with how the DNR has historically imposed conditions upon WPDES
permits. This case-by-case analysis allows the DNR to use its
expertise to make fact-specific determinations and gives it the
flexibility to prescribe conditions that are specifically
tailored to a particular applicant. See Maple Leaf Farms,
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No. 2016AP1688
247 Wis. 2d 96, ¶31 (noting that the DNR "closely balance[s] the
specific needs of the permit holder with public environmental
concerns."); Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54, ¶43,
335 Wis. 2d 47, 799 N.W.2d 73 (reasoning that "[a]s with many []
environmental statutes," the DNR "utilizes its expertise and
exercises its discretion to make what, by necessity, are fact-
specific determinations.").
1. Animal Unit Maximum Condition
¶33 The ALJ concluded that the animal unit maximum
condition was necessary to assure Kinnard's compliance with
effluent limitations, as enumerated in Wis. Stat.
§ 283.31(3)(a). We agree.
¶34 The DNR customarily monitors 180-day manure storage
requirements through the use of permanent markers. Wis. Admin.
Code § NR 243.15(3)(e). However, as the ALJ found, Kinnard had
a history of failing to install those markers in 2009 and 2010.
The ALJ concluded that without permanent markers, Kinnard had
not established an effective means by which to measure the 180-
day manure storage requirement. We agree with the ALJ's
conclusions on this point. The animal unit maximum condition
was a practical means of assuring compliance with the 180-day
manure storage requirement——especially in light of Kinnard's
failure to effectively measure its manure in the past——and of
avoiding the potential hazardous consequences of storage
overflow.
¶35 Additionally, Wis. Stat. § 283.31(5) explicitly
requires that the DNR issue permits that "specify maximum levels
21
No. 2016AP1688
of discharges."22 Limiting the number of animal units at a CAFO
is a practical way to quantify and limit the amount of
agricultural waste produced and discharged from that CAFO both
on-site and off-site, since the number of animal units
correlates to the amount of manure and process wastewater
produced.
¶36 Accordingly, the DNR had the explicit authority to
prescribe the animal unit maximum condition, pursuant to Wis.
Stat. § 283.31(4), in order to assure compliance with effluent
limitations, as specified in § 283.31(3)(a), and pursuant to
§ 283.31(5).
2. Off-site Groundwater Monitoring Condition
¶37 The ALJ concluded that the installation of two off-
site monitoring wells, if practicable, was necessary to assure
Kinnard's compliance with effluent limitations and groundwater
protection standards pursuant to Wis. Stat. § 283.31(3). The
ALJ further determined that the legislature gave the DNR
explicit authority in § 283.31(4) to prescribe permit conditions
to assure compliance with these standards. We agree for two
reasons.
¶38 First, the off-site groundwater monitoring condition
assures Kinnard's compliance with effluent limitations,
primarily Wis. Admin. Code § NR 243.14(2)(b)3, which prohibits
We note that Wis. Stat. § 283.31(5), while not mentioned
22
in the ALJ's decision, was cited by the circuit court as a
reason for its ruling.
22
No. 2016AP1688
fecal contamination of a well by the landspreading of manure or
process wastewater. Given the overwhelming testimony regarding
contaminated wells near Kinnard's CAFO, this condition was
essential to ensure that Kinnard did not further contaminate the
well water of residents in the vicinity. Additionally, the
susceptibility of this area to groundwater contamination, as
defined by § NR 243.15(3)(c)2.a., further supports the ALJ's
imposition of this condition in accordance with the DNR's
explicit authority.23
¶39 Second, the off-site groundwater monitoring condition
was necessary to assure Kinnard's compliance with groundwater
protection standards. See Wis. Admin. Code § NR 243.13(5)(a)
(requiring that CAFOs comply with groundwater quality
standards); § NR 243.13(1) ("The department shall include
conditions in a WPDES permit for the production area and
ancillary service and storage areas . . . that are necessary to
achieve compliance with surface water and groundwater quality
standards contained in chs. NR 102 to 105, 140 and 207."). The
record in this case established that as many as 50 percent of
private wells in the Town of Lincoln were contaminated, 30
percent of wells had tested positive for E. coli bacteria, and
23It is also notable that Wis. Admin. Code ch. NR 140
establishes a public health standard for E. coli at zero. When
a preventative action limit for a substance of health or welfare
concern, like E. coli, is attained or exceeded ch. NR 140
provides for, among other responses, "the installation and
sampling of groundwater monitoring wells." See § NR 140.24(4).
23
No. 2016AP1688
manure had caused that contamination. Additionally, if the DNR
did not have the ability to impose a groundwater monitoring
requirement, then the groundwater protection standards would be
essentially unenforceable. For these reasons, we conclude that
the DNR had the explicit authority to prescribe the off-site
groundwater monitoring condition, pursuant to Wis. Stat.
§ 283.31(4), in order to assure Kinnard's compliance with
effluent limitations and groundwater protection standards, as
enumerated in § 283.31(3)(a) and (f).24
24The parties dispute whether the former DNR Secretary had
the authority to: (1) "reconsider" her initial denial of
Kinnard's petition for review under Wis. Admin Code § NR 2.20;
and (2) reverse the agency's final decision. We conclude that
the issue is moot.
"An issue is moot when its resolution will have no
practical effect on the underlying controversy." PRN Assocs.,
LLC, 2009 WI 53, ¶25, 317 Wis. 2d 656, 766 N.W.2d 559. We
generally decline to reach moot issues. Portage County v.
J.W.K., 2019 WI 54, ¶12, 386 Wis. 2d 672, 927 N.W.2d 509.
However, there are several well-established exceptions where we
may elect to address moot issues: (1) "the issues are of great
public importance;" (2) "the constitutionality of a statute is
involved;" (3) the situation arises so often "a definitive
decision is essential to guide the trial courts;" (4) "the issue
is likely to arise again and should be resolved by the court to
avoid uncertainty;" or (5) the issue is "capable and likely of
repetition and yet evades review." Id. (quoted source omitted).
Whether the DNR Secretary complied with the administrative
code in "reconsidering" her initial denial of Kinnard's petition
is purely academic, and therefore moot. Any resolution will
have no practical effect on the underlying controversy since
Kinnard's 2012 permit expired and, as of February 1, 2018, it
operates under a new WPDES permit and this procedural question
is no longer at issue.
24
No. 2016AP1688
IV. CONCLUSION
¶40 We conclude that the DNR had the explicit authority to
impose both the animal unit maximum and off-site groundwater
monitoring conditions upon Kinnard's reissued WPDES permit,
pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations.
Accordingly, we affirm the order of the circuit court.
By the Court.—The order of the circuit court is affirmed.
25
No. 2016AP1688.rfd
¶41 REBECCA FRANK DALLET, J. (concurring). I join the
majority in full. I write separately to make two points
regarding the dissent's1 use of extrinsic sources in its
statutory analysis. First, while I welcome what appears to be a
return to a more holistic statutory-interpretation approach, I
would dispense with the formalistic requirement that we must
first label a statutory term "ambiguous" before we consult
extrinsic sources to determine its meaning. Second, not all
extrinsic sources are created equal, and the materials the
dissent uses——a governor's press release and one legislator's
floor statement——are generally unreliable indicators of a
statute's meaning.
¶42 To fit its analysis within our current approach to
statutory interpretation, the dissent had no choice but to label
Wis. Stat. § 227.10(2m) "ambiguous" before it could look to
extrinsic sources to analyze the statute's meaning. But as the
dissent frames it, a statutory term is ambiguous so long as it
is defined differently in multiple dictionaries. Under that
framework, it is likely that all statutory terms can be labeled
ambiguous and therefore extrinsic sources can always be
consulted. I agree with this end result but not the process.
¶43 Instead of requiring that we first label a statute
"ambiguous," the better approach is to dispense with the
pretext. We should of course start with the text of the
In this opinion, "the dissent" refers to Justice Patience
1
Drake Roggensack's dissenting opinion.
1
No. 2016AP1688.rfd
statute, but our general approach to statutory interpretation
should be more comprehensive. Such a holistic methodology would
lead to more transparent analyses in which the court is upfront
and honest about considering relevant extrinsic sources to
interpret a statute's meaning. That includes being transparent
about those sources' actual analytical value when they support
more than one reasonable inference. See James v. Heinrich, 2021
WI 58, ¶68 n.3, ___ Wis. 2d ___, ___ N.W.2d ___ (Dallet, J.,
dissenting). Indeed, the court "must engage in an analysis of
both the evidence that supports a given interpretation as well
as the evidence that contradicts a given interpretation." Fox
v. Catholic Knights Ins. Soc'y, 2003 WI 87, ¶44, 263
Wis. 2d 207, 665 N.W.2d 181 (Abrahamson, C.J., concurring).
Ultimately, carefully weighed, relevant legislative history can
be an indicator of a statute's meaning and thus an important
tool in statutory interpretation. See United Am., LLC v. DOT,
2021 WI 44, ¶¶18-19, 397 Wis. 2d 42, 959 N.W.2d 317; State ex
rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶66, 271
Wis. 2d 633, 681 N.W.2d 110 (Abrahamson, C.J., concurring).
¶44 Of course, the same extrinsic sources will not be
helpful in every case, and some sources are more reliable than
others. The extrinsic materials the dissent uses are
uninformative and unreliable and therefore have minimal value.
There is little to be gleaned about a statute's meaning from a
governor's press release and one legislator's floor statement.
Then-Governor Walker's press release about what he hoped an
initial legislative proposal would achieve says nothing about
2
No. 2016AP1688.rfd
what the legislature's final enacted text means. Cf., e.g.,
Landwehr v. Landwehr, 2006 WI 64, ¶25, 291 Wis. 2d 49, 715
N.W.2d 180. As for Representative Tiffany's statement during a
floor debate, courts have long recognized that "debates in [the
legislature] are not appropriate sources of information from
which to discover the meaning of the language of a statute
passed by that body." See United States v. Trans-Missouri
Freight Ass'n, 166 U.S. 290, 318 (1897); United States v.
O'Brien, 391 U.S. 367, 384 (1968) ("What motivates one
legislator to make a speech about a statute is not necessarily
what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork."). Such cherry
picking is why even those who embrace a more holistic approach
to statutory interpretation have little use for a single
legislator's statement. See Kalal, 271 Wis. 2d 633, ¶¶64-72
(Abrahamson, C.J., concurring).
¶45 Nevertheless, I support the dissent's use of extrinsic
sources to inform its statutory analysis. When clear and
reliable, such sources can provide valuable context, regardless
of whether a statute is ambiguous. The dissent, however,
oversells the analytical value of two isolated and unreliable
statements, thus leading it astray from the majority opinion's
more reasoned interpretation of Wis. Stat. § 227.10(2m).
Accordingly, I join the majority opinion.
¶46 I am authorized to state that Justices ANN WALSH
BRADLEY and JILL J. KAROFSKY join this opinion.
3
No. 2016AP1688.pdr
¶47 PATIENCE DRAKE ROGGENSACK, J. (dissenting). It is
the legislative branch of government that enacts statutory laws
for Wisconsin. Whether we agree with the policy set forth in
those statutes, the words chosen by the legislature control.
This case turns on the phrase, "explicitly required or
explicitly permitted by statute or by a rule" in Wis. Stat.
§ 227.10(2m), which statute was enacted as part of 2011 Wis. Act
21. We previously described § 227.10(2m) in Wisconsin
Legislature v. Palm, 2020 WI 42, ¶52, 391 Wis. 2d 497, 942
N.W.2d 900.
¶48 In this case, which appears before us on
certification, Wis. Stat. § 227.10(2m) is argued to preclude
Wisconsin Department of Natural Resources (DNR) from requiring a
maximum number of animal units and off-site groundwater
monitoring as conditions of a Wisconsin Pollutant Discharge
Elimination System (WPDES) permit for Kinnard Farms, Inc.'s
concentrated animal feeding operation (CAFO) because no statute
or rule explicitly requires or permits that. The majority
opinion claims the DNR has the "explicit authority" to condition
the WPDES permit because it has broad authority pursuant to
"Wis. Stat. § 283.31(3)–(5) and related regulations."1 In so
doing, the majority opinion restores court deference to
administrative agency assertions of power that the legislature
explicitly limited in Act 21.
1 Majority op., ¶2.
1
No. 2016AP1688.pdr
¶49 I conclude that there is no explicit textual authority
in either statute or rule that grants the DNR power to set a
maximum number of animals that Kinnard's CAFO may contain or to
require off-site groundwater monitoring wells. Furthermore,
Wis. Stat. § 227.11(2)(a)1.–3. preclude agencies from
circumventing the "explicitly permitted or explicitly required"
directive of Wis. Stat. § 227.10(2m) through the use of broad
policy statements from other statutes. Accordingly, the WPDES
permit requirements that cap the number of animal units and
require groundwater monitoring through off-site wells are
unlawful, and should be vacated. Because the majority opinion
nullifies § 227.10(2m)'s plainly stated directive that, "No
agency may implement or enforce any standard, requirement, or
threshold . . . unless that standard, requirement, or threshold
is explicitly required or explicitly permitted by statute or by
a rule," and in so doing it overturns Act 21's legislative
command, I respectfully dissent.
I. BACKGROUND2
¶50 Kinnard operates a large dairy farm in Kewaunee
County, which it sought permission to expand. Expansion
required DNR approval and securing another WPDES permit for the
expanded CAFO.
The majority opinion ably sets out the factual background;
2
therefore, I shall narrate only that which is necessary to
understand the discussion that follows.
2
No. 2016AP1688.pdr
¶51 The requested permit was contested by Clean Wisconsin,
Inc. and others (hereinafter Clean Wisconsin) during a lengthy
administrative proceeding. The Administrative Law Judge (ALJ)
determined that the permit should have specified the maximum
number of animals allowed at the new facility and that a
groundwater monitoring plan was needed in order to assure
compliance with effluent limitations and groundwater protection
standards. He recommended two or three off-site groundwater
monitoring wells.
¶52 Kinnard sought review of the ALJ decision and
ultimately the DNR approved a groundwater monitoring plan,
without any off-site wells, and granted the WPDES permit without
a cap on the number of animal units. The former DNR Secretary,
citing Wis. Stat. § 227.10(2m), concluded that the DNR did not
have explicit authority to place those restrictions on the WPDES
permit.
¶53 Clean Wisconsin and others sought circuit court review
of the DNR decision, in both Kewaunee County and Dane County.
The Dane County Circuit Court, upon Clean Wisconsin's motion,
consolidated the reviews in Dane County.
¶54 The circuit court vacated the WPDES permit. It
concluded that the DNR had authority to impose off-site
groundwater monitoring wells and an animal unit maximum cap on
the WPDES permit, and the DNR should have complied with the
ALJ's recommendation. Kinnard appealed, and the court of
appeals certified the appeal to us.
3
No. 2016AP1688.pdr
¶55 After the matter was certified to us, Governor Evers
appointed a new DNR Secretary, who reversed the prior
Secretary's position. He embraced the ALJ's requirements of
animal unit caps and off-site groundwater monitoring wells for
Kinnard's WPDES permit. He relied on Wis. Stat. § 283.31(3) and
(4), and did not mention Wis. Stat. § 227.10(2m).
II. DISCUSSION
A. Standard of Review
¶56 This is a review of an administrative agency's
decision; here, arising from an ALJ decision that the current
DNR Secretary has endorsed. On appeal, we review the decision
of the DNR, not the decision of the circuit court. Wis. Indus.
Energy Grp., Inc. v. Pub. Serv. Comm'n, 2012 WI 89, ¶14, 342
Wis. 2d 576, 819 N.W.2d 240.
¶57 Statutory interpretation and application drive our
decision. We independently review questions of statutory
interpretation and application. State v. Mercado, 2021 WI 2,
¶32, 395 Wis. 2d 296, 953 N.W.2d 337.
B. General Principles
¶58 The purpose of statutory interpretation is to
determine what the statute means so that it may be applied
correctly. State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Statutory
interpretation begins with the words chosen by the legislature,
i.e., the text of the statute. Id., ¶45.
¶59 "If the words chosen for the statute exhibit a 'plain,
clear statutory meaning,' without ambiguity, the statute is
4
No. 2016AP1688.pdr
applied according to the plain meaning of the statutory terms."
State v. Grunke, 2008 WI 82, ¶22, 311 Wis. 2d 439, 752 N.W.2d
769 (quoting Kalal, 271 Wis. 2d 633, ¶46). However, if the
statute is "capable of being understood by reasonably well-
informed persons in two or more senses[,]" the statute is
ambiguous. Kalal, 271 Wis. 2d 633, ¶47.
¶60 When a statute is ambiguous we often consult extrinsic
sources such as legislative history. Id., ¶46. However, we
also have consulted legislative history to confirm or verify a
plain-meaning interpretation. Id., ¶51.
C. Wisconsin Stat. § 227.10(2m)
¶61 The outcome of this case turns on the interpretation
and application of Wis. Stat. § 227.10(2m) to undisputed facts.
Section 227.10(2m) provides in relevant part:
No agency may implement or enforce any standard,
requirement, or threshold, including as a term or
condition of any license issued by the agency, unless
that standard, requirement, or threshold is explicitly
required or explicitly permitted by statute or by a
rule that has been promulgated in accordance with this
subchapter.
The specific questions that we must address are whether the
agency requirements on the WPDES permit that caps the number of
animals in the CAFO and requires off-site groundwater monitoring
wells are "explicitly required or explicitly permitted by
statute or by a rule."
¶62 "Explicitly" is not a statutorily defined term.
Therefore, we employ common, ordinary definitions for that term.
Pulera v. Town of Richmond, 2017 WI 61, ¶13, 375 Wis. 2d 676,
5
No. 2016AP1688.pdr
896 N.W.2d 342. We often use a dictionary to find such
definitions. State v. Guarnero, 2015 WI 72, ¶16, 363 Wis. 2d
857, 867 N.W.2d 400. As the majority opinion points out, there
are many dictionary definitions for "explicit."3 Reasonably
well-informed persons could disagree about which definition best
defines explicitly. Accordingly, "explicitly," as employed in
Wis. Stat. § 227.20(2m), is ambiguous. Richards v. Badger Mut.
Ins. Co., 2008 WI 52, ¶21, 309 Wis. 2d 541, 749 N.W.2d 581.
¶63 Context also is important to meaning. Id., ¶14. In
that regard, we interpret "explicitly required or permitted" in
Wis. Stat. § 227.10(2m) in relation to closely-related statutes.
Id. Both § 227.10(2m) and Wis. Stat. § 227.11(2)(a)1.-3. were
enacted as part of 2011 Wisconsin Act 21; therefore, they are
closely related. Their connection is helpful in understanding
the meaning of "explicitly," as is the legislative history
underlying their enactments.
¶64 For example, what became Act 21 was introduced as
Assembly Bill 8 at the request of then-Governor Walker and then-
Representative-Tom Tiffany.4 As A.B. 8 was introduced, then-
Governor Walker said that the "legislation will take a multi-
pronged approach to improve Wisconsin's regulatory climate
3Majority op., ¶24, noting that Black's Law Dictionary
defines "explicit" as "expressed without ambiguity or vagueness"
and American Heritage Dictionary defines "explicit" as "leaving
nothing implied."
42011-2012 Wisconsin Legislature, January 2011 Special
Session, Assembly Bill 8, History.
6
No. 2016AP1688.pdr
[including prohibiting agencies from] creat[ing] rules more
restrictive than the regulatory standards or thresholds provided
by the Legislature."5 His statement evidences that Act 21 was
anticipated to cabin administrative authority so that
administrative agencies did not exceed the textual directives
from the legislature.
¶65 The importance of the executive's statement as
interpretative of an enacted statute is confirmed by United
States Supreme Court precedent where recognition of public
statements of past presidents have been employed in statutory
interpretation. For example, President Harrison is said to have
voiced concerns about the coupling of train cars, when a statute
addressing that issue was reviewed. Johnson v. S. Pac. Co., 196
U.S. 1, 19 (1904) (explaining that "President Harrison, in his
annual messages of 1889, 1890, 1891, and 1892, earnestly urged
upon Congress the necessity of legislation to obviate and reduce
the loss of life and the injuries due to the prevailing method
of coupling and braking."). See also Kathryn Marie Dessayer,
Note, The First Word: The President's Place in "Legislative
History", 89 Mich. L. Rev. 399, 413-420 (1990) (collecting
federal and state cases that have utilized executive branch
statements as legislative history).
¶66 Furthermore, the cabining of administrative authority
was a definitive change from past practice where administrative
5 Press Release, Scott Walker, Governor of Wisconsin,
Special Session Part 2: Regulatory Reform (Dec. 21, 2010).
7
No. 2016AP1688.pdr
agencies ordered what they decided was helpful to furthering
their administrative concerns and courts upheld such agency
actions.6 See e.g., Maple Leaf Farms, Inc. v. DNR, 2001 WI App
170, ¶13, 247 Wis. 2d 96, 633 N.W.2d 720 (examining DNR
authority under Wis. Stat. § 283.31 to regulate off-site manure
application because it was related to effluent regulation).
¶67 In Maple Leaf, the court of appeals reasoned that an
administrative agency has only those powers "expressly
conferred" or that can be "fairly implied" from statutes. Id.The court acknowledged that authority to regulate off-site
manure application was not expressly conferred on the DNR by
statute. Id. However, because the DNR asserted regulation of
off-site application of manure was necessary to furthering its
administrative regulation of effluents, the court concluded that
it was implied by Wis. Stat. § 283.31's general terms and the
DNR prevailed. Id., ¶27. The court explained that "the
legislature has conferred authority on the DNR to regulate
discharges, in the form of overapplication of manure, by CAFOs,
regardless of whether the discharge occurs on land owned by the
CAFO." Id.
¶68 Broad grants of administrative power to agencies were
regular court practices prior to Act 21.7 The legislative
Prior to Act 21, "[a] mere statement of policy or an
6
interpretation of a statute made in an agency decision in a
particular matter with a specific set of facts did not make the
statement or interpretation a 'rule' and did not require rule
promulgation." Wis. Leg. Council IM-2011-15, 2.
7 See e.g., State ex rel. Farrell v. Schubert, 52 Wis. 2d
(continued)
8
No. 2016AP1688.pdr
history of Act 21 shows that the legislature was cabining
administrative regulatory authority as it revised the Wisconsin
Administrative Procedure Act. The legislative history
underlying Wis. Stat. § 227.10(2m) is helpful to its
interpretation. Initially, § 227.10(2m) was written, "No agency
may implement or enforce any standard, requirement, or threshold
as a term or condition of any license issued by the agency
unless such implementation or enforcement is expressly required
or permitted by statute or by a rule." 2011 Spec. Sess. A.B. 8
(emphasis added). Senate Amendment 1 changed "expressly" to
"explicitly" because, as a sponsoring legislator explained,
"courts have interpreted expressly very broadly" and
"explicitly" was seen as a stronger limitation on agency
authority.8
351, 358, 190 N.W.2d 529 (1971) (concluding that the special
review board had the "implied power to hold hearings and make
investigations"); Racine Fire & Police Comm'n v. Stanfield, 70
Wis. 2d 395, 399, 234 N.W.2d 307 (1975) ("It is the general rule
that an agency or board created by the legislature has only
those powers which are either expressly conferred or which are,
by necessity, to be implied from the four corners of the statute
under which it operates."); DOA v. DIHLR, 77 Wis. 2d 126, 136,
252 N.W.2d 353 (1977) (same); Peterson v. Nat. Res. Bd., 94
Wis. 2d 587, 592, 288 N.W.2d 845 (1980) (same); Kimberly-Clark
Corp. v. Pub. Serv. Comm'n, 110 Wis. 2d 455, 461-62, 329 N.W.2d
143 (1983) (same); Watkins v. LIRC, 117 Wis. 2d 753, 761, 345
N.W.2d 482 (1984) (same); Tatum v. LIRC, 132 Wis. 2d 411, 421,
392 N.W.2d 840 (1986) (same and also noting that any reasonable
doubt regarding the existence of an implied power of an
administrative agency should be resolved in the agency's favor);
Oneida Cnty. v. Converse, 180 Wis. 2d 120, 125, 508 N.W.2d 416(1993) (same).
8 Representative Tom Tiffany, co-sponsor of A.B. 8, floor
debate on Senate Amendment 1. We have utilized floor debates as
(continued)
9
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¶69 When interpreting federal statutes, the United States
Supreme Court also has relied on statements from legislators as
part of legislative history. For example, in Sturgeon v. Frost,
139 S. Ct. 1066, 1085 (2019), the Court reviewed a statutory
provision regarding whether the National Park Service (NPS) had
the power to regulate the use of hovercraft on the Nation River,
which is within ANILCA.9 In its discussion, the Court reasoned
that the legislative sponsor of ANILCA in the House of
Representatives "described that provision's effect" as
"designed . . . to ensure that ANILCA's new boundary lines would
'not in any way change the status' of the state, Native, and
private lands placed within them." Id. (citing 125 Cong. Rec.
11158 (1979)). Therefore, because the use of hovercraft on the
Nation River was permitted before the enactment of ANILCA, it
continued after enactment, and the NPS could not prohibit such
use.
¶70 We employed both Wis. Stat. § 227.10(2m) and Wis.
Stat. § 227.11(2)(a)1.-3. in Palm. In doing so, we explained
that the "explicit authority requirement is, in effect, a
legislatively-imposed canon of construction that requires us to
assists in statutory interpretation in the past. See Strenke v.
Hogner, 2005 WI 25, ¶¶23-25, 279 Wis. 2d 52, 694 N.W.2d 296(relating that in "the floor debate on Senate Bill 11, which
later evolved into Wis. Stat. § 895.85(3)," Rep. Green responded
to Rep. Robson's question about the effect of the bill then
under consideration that we employed in our review).
9 Alaska National Interest Lands Conservation Act (ANILCA).
10
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narrowly construe imprecise delegations of power to
administrative agencies." Palm, 391 Wis. 2d 497, ¶52. We also
noted with approval, a recent law review comment that summarized
the interactions among the paragraphs of § 227.11(2)(a)1.-3. as
"'prevent[ing] agencies from circumventing this new "explicit
authority" requirement by simply utilizing broad statutes
describing the agency's general duties or legislative purpose as
a blank check for regulatory authority.'" Id. (quoting Kirsten
Koschnick, Comment, Making "Explicit Authority"
Explicit: Deciphering Wis. Act 21's Prescriptions for Agency
Rulemaking Authority, 2019 Wis. L. Rev. 993, 996 (2019)).
¶71 It is critical to note that because we are addressing
statutes or rules, i.e., written communications, the explicit
requirement or permission that is necessary to satisfy Wis.
Stat. § 227.10(2m) must be expressed within the text of the
statute or rule from which the agency asserts it was granted the
power that it is exercising. Here, the agency has identified no
statute or rule wherein the text of the statute or rule even
mentions that an agency may establish either a cap on the number
of animal units in a CAFO or the requirement for off-site
groundwater monitoring wells. Therefore, pursuant to
§ 227.10(2m), the DNR has no authority to add those requirements
to a WPDES permit.
¶72 The DNR relies on statutes that describe the agency's
general powers or duties, such as Wis. Stat. § 283.31, a
practice that Act 21, through creation of Wis. Stat.
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§ 227.10(2m) and Wis. Stat. § 227.11(2)(a)1.-3., prevents. The
majority opinion follows the lead of the DNR.
D. Majority Opinion
¶73 The majority opinion concludes first, that "explicit"
and "specific" are not synonymous.10 The majority then cites
Wis. Stat. § 227.11(2)(a)3. as support for that distinction
because the legislature used "specific" in § 227.11(2)(a)3., but
did not use it in Wis. Stat. § 227.10(2m).11
¶74 In order to understand Wis. Stat. § 227.11(2)(a)3., it
must be read in context, which includes (2)(a)'s directive that
"[a]ll of the following apply to the promulgation of a rule
interpreting the provisions of a statute enforced or
administered by an agency:"
1. A statutory or nonstatutory provision
containing a statement or declaration of legislative
intent, purpose, findings, or policy does not confer
rule-making authority on the agency or augment the
agency's rule-making authority beyond the rule-making
authority that is explicitly conferred on the agency
by the legislature.
2. A statutory provision describing the agency's
general powers or duties does not confer rule-making
authority on the agency or augment the agency's rule-
making authority beyond the rule-making authority that
is explicitly conferred on the agency by the
legislature.
3. A statutory provision containing a specific
standard, requirement, or threshold does not confer on
the agency the authority to promulgate, enforce, or
10 Majority op., ¶24.
11 Id., ¶25.
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administer a rule that contains a standard,
requirement, or threshold that is more restrictive
than the standard, requirement, or threshold contained
in the statutory provision.
§ 227.11(2)(a)1.-3.
¶75 As is apparent from Wis. Stat. § 227.11(2)(a)1.-3.,
that in § 227.11(2)(a)3., the legislature employed "a specific
standard, requirement, or threshold" as a means of describing a
statute that "explicitly conferred" legislative authority on an
administrative agency within the text of the statute, and that
such authority was not to be expanded beyond the text the
legislature chose.12
¶76 The legislature also prohibited the use of
declarations of purpose or policy to expand authority delegated
to an agency beyond that which was "explicitly conferred" by the
text of the statute upon which the agency relies. Wis. Stat.
§ 227.11(2)(a)1. And further, the legislature prohibited an
agency from relying on the agency's general powers or duties to
go beyond authority that was conferred on the agency by the
explicit text of a statute. § 227.11(2)(a)2. As a recent law
review comment pointed out, § 227.11(2)(a)1.-3. keep agency
action in check so that it does not supersede statutory textual
delegations.13
Wisconsin Stat. § 227.11(2)(a)1.-3., applies only to
12
agency rulemaking, and there is no rulemaking that underlies
this case. However, since it was enacted as part of Act 21, the
choice of words the legislature employed is revealing.
Kirsten Koschnick, Comment, Making "Explicit Authority"
13
Explicit: Deciphering Wis. Act 21's Prescriptions for Agency
Rulemaking Authority, 2019 Wis. L. Rev. 993, 996 (2019).
13
No. 2016AP1688.pdr
¶77 As explained above, the majority opinion's reliance on
Wis. Stat. § 227.11(2)(a)3. is misplaced because that statute
limits agency authority; it does not expand it. In addition,
the majority opinion relies on Wis. Stat. § 283.31(3)-(5)'s
general statements of purpose to permit agency regulation of the
number of animal units on Kinnard's CAFO and off-site
groundwater monitoring wells.14 Section 227.11(2)(a)2. prohibits
such an expansion.15 The majority opinion disregards Wis. Stat.
§ 227.10(2m)'s requirement that an agency must have explicit
textual authority before it may act. In so doing, the majority
opinion resurrects an administrative practice that the
legislature explicitly prohibited in Act 21.
¶78 First, although Wis. Stat. § 281.31(3) and (4) address
water pollutant discharge permits, neither subsection mentions
regulating the number of animal units or requiring off-site
groundwater monitoring wells. The text of both subsections are
general purpose provisions. For example, § 281.31(3) provides
that a WPDES permit may be issued subject to effluent
limitations.
¶79 Second, DNR rules discuss effluent limitations, but
there is no text that mentions animal unit limitations or off-
site groundwater monitoring wells for CAFOs. Rather, the cited
14 Majority op., ¶¶2, 16, et seq.
A statute that describes the agency's general powers or
15
duties does not grant authority beyond that which "is explicitly
conferred on the agency by the legislature." Wis. Stat.
§ 227.11(2)(a)2.
14
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rules are general requirements that are based on structural
requirements and calculations of various volumes of effluents.16
¶80 In regard to groundwater protection, which Wis. Stat.
§ 283.31(3)(f) references, no statute or rule mentions off-site
groundwater monitoring wells. Wisconsin Admin. Code § NR 140.01
states the chapter's purpose "is to establish groundwater
quality standards for substances detected in or having a
reasonable probability of entering the groundwater resources of
the state." Wisconsin Admin. Code § NR 214.21 addresses
groundwater monitoring requirements, but contains no mention of
off-site monitoring wells or caps on the number of animals
permitted in a CAFO. Rather, the monitoring wells all are tied
to the treatment area and the grade of the site. § NR 214.21(3)
and (4).
¶81 Simply stated, the majority opinion takes apart what
the legislature enacted in Act 21, and it reinstates control by
agency regulation, as was the circumstance in Wisconsin before
Act 21. In so doing, a majority of the court steps out of the
judicial lane as an interpreter of the law and becomes a maker
of law, contrary to the clear directive of the legislature in
Act 21.
III. CONCLUSION
¶82 I conclude that there is no explicit textual authority
in either statute or rule that grants the DNR power to set a
16 See e.g., Wis. Admin. Code § NR 243.13(2)(a) and (b).
15
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maximum number of animals that Kinnard's CAFO may contain or to
require off-site groundwater monitoring wells. Furthermore,
Wis. Stat. § 227.11(2)(a)1.–3. preclude agencies from
circumventing the "explicitly permitted or explicitly required"
directive of Wis. Stat. § 227.10(2m) through the use of broad
policy statements from other statutes. Accordingly, the WPDES
permit requirements that cap the number of animal units and
require groundwater monitoring through off-site wells are
unlawful, and should be vacated. Because the majority opinion
nullifies § 227.10(2m)'s plainly stated directive that, "No
agency may implement or enforce any standard, requirement, or
threshold . . . unless that standard, requirement, or threshold
is explicitly required or explicitly permitted by statute or by
a rule," and in so doing it overturns Act 21's legislative
command, I respectfully dissent.
¶83 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this dissent.
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¶84 REBECCA GRASSL BRADLEY, J. (dissenting). I join the
textual analysis of the operative statutes in Justice Patience
Drake Roggensack's dissent, which definitively resolves the
questions presented. I write separately to refute Justice
Rebecca Frank Dallet's mischaracterization of that writing.
Justice Dallet attempts to signal a change in the dissent's
approach to statutory interpretation. There is no deviation
from our seminal case on statutory interpretation, which
expounds textualism. State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. The dissent
simply applies Kalal, which says "as a general matter,
legislative history need not be and is not consulted except to
resolve an ambiguity in the statutory language, although
legislative history is sometimes consulted to confirm or verify
a plain-meaning interpretation." Id., ¶51.
¶85 Although Justice Dallet would prefer that Justice
Shirley Abrahamson's concurrence in Kalal govern statutory
interpretation in Wisconsin, the method it espoused was
affirmatively rejected 17 years ago and this court continues to
disavow the sort of results-oriented analysis Justice Dallet now
embraces. "We do not . . . endorse the methodology advanced by
the[n] chief justice [Shirley Abrahamson] in her concurrence
that calls for consultation of extrinsic, non-textual sources of
interpretation in every case, regardless of whether the language
of the statute is clear. Such an approach subordinates the
statutory text and renders the analysis more vulnerable to
subjectivity." Id., ¶49 n.8.
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¶86 Kalal was a "watershed decision in the modern history
of the Wisconsin Supreme Court" and is Wisconsin's "most cited
case of modern times." Daniel R. Suhr, Interpreting Wisconsin
Statutes, 100 Marq. L. Rev. 969, 969-70 (2017). "Kalal
transformed statutory interpretation in Wisconsin" and
"shift[ed] state courts from a vaguely intentionalist
interpretive method" to a "uniform method" focusing upon the
plain meaning of the words actually enacted into law. Id. at
970. Justice Dallet seems determined to do away with this
mainstream textual method of interpreting statutes, which would
usher in an "unusual, freewheeling method of statutory
interpretation" that prioritizes results over text. See State
v. Hayes, 2004 WI 80, ¶102, 273 Wis. 2d 1, 681 N.W.2d 203(Sykes, J., concurring).
¶87 While Justice Dallet "would dispense with" what she
describes as "the formalistic requirement that we must first
label a statutory term 'ambiguous' before we consult extrinsic
sources to determine its meaning," it is no mere formality for
judges who faithfully interpret statutory text. Concurrence,
¶41. "[T]he rule prevents the use of extrinsic sources of
interpretation to vary or contradict the plain meaning of a
statute[.]" Kalal, 271 Wis. 2d 633, ¶51. Because it would
interfere with the type of results-oriented decision-making the
majority employs in this case, Justice Dallet maligns the rule
as mere "pretext" and accuses the judges who follow it of being
something other than "upfront and honest about considering
relevant extrinsic sources to interpret a statute's meaning."
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Concurrence, ¶43. In doing so, Justice Dallet, once again,
simply "misunderstands how to interpret legal texts." James v.
Heinrich, 2021 WI 58, ¶23 n.12, __ Wis. 2d __, __ N.W.2d __.
Absent ambiguity, we do not consult any "extrinsic sources to
interpret a statute's meaning" because it is a cardinal rule of
statutory interpretation that "[t]he words of a governing text
are of paramount concern, and what they convey, in their
context, is what the text means." Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 56
(2012); Milwaukee District Council 48 v. Milwaukee Cnty., 2019
WI 24, ¶21, 385 Wis. 2d 748, 924 N.W.2d 153.
¶88 Although Justice Dallet would abandon it, the
textualist method of statutory interpretation is "rooted in and
fundamental to the rule of law. Ours is 'a government of laws
not men,' and 'it is simply incompatible with democratic
government, or indeed, even with fair government, to have the
meaning of a law determined by what the lawgiver meant, rather
than by what the lawgiver promulgated. It is the law that
governs, not the intent of the lawgiver . . . . Men may intend
what they will; but it is only the laws that they enact which
bind us.'" Kalal, 271 Wis. 2d 633, ¶52 (quoting Antonin Scalia,
A Matter of Interpretation: Federal Courts and the Law 17
(1997)).
¶89 Justice Dallet misconstrues the dissent to say "a
statutory term is ambiguous so long as it is defined differently
in multiple dictionaries." Concurrence, ¶42. Obviously, words
often bear different meanings in different contexts. The
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existence of varying definitions does not give judges a license
to declare a statute ambiguous and then rely on extrinsic
sources to give a statute a meaning it does not have. "[A]
statute is ambiguous if it is capable of being understood by
reasonably well-informed persons in two or more senses. It is
not enough that there is a disagreement about the statutory
meaning; the test for ambiguity examines the language of the
statute to determine whether well-informed persons should have
become confused, that is, whether the statutory . . . language
reasonably gives rise to different meanings." Kalal, 271
Wis. 2d 633, ¶47 (quoted source omitted).
¶90 While it is debatable whether reasonable minds may
differ on the meaning of "explicit,"1 there is nothing wrong with
consulting the history of a statute to confirm its plain
meaning; doing so does not treat such extrinsic sources as
authoritative on the meaning of the text. Contrary to Justice
Dallet's proffered method of interpretation, legislative history
1Compare Clean Wisconsin, Inc. v. DNR, 2021 WI __, ¶51, __
Wis. 2d __, __ N.W.2d __ (Rebecca Grassl Bradley, J.,
dissenting) (defining "explicit" as "something expressed without
ambiguity or vagueness" and "leaving no doubt") with Justice
Roggensack's dissent, ¶62.
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is not "an important tool in statutory interpretation"2 but a
thoroughly discredited one:
The notion that you can pluck statements from a couple
of legislators or even from a committee report, which
is usually written by some teenagers, and . . . very
often not even read by the committee, much less read
by the whole House, much less less read by the other
House, . . . [and presume the statements] somehow
[are] reflective of the intent of the whole Congress
and of the President . . . it truly is the last
surviving fiction in American law.[3]
¶91 Justice Dallet's approach would allow judges to misuse
legislative history in order to give an unambiguous statute a
meaning it does not bear. Adopting her approach would make the
law's history superior to the law itself: "The more [you] use[]
[legislative history], the more unreliable it's likely to become
and the less incentive legislators will have to legislate.
After all, canny politicians will have every reason to try to
achieve their lawmaking dreams through ever more enterprising
2Although Justice Dallet cites United America for this
proposition, that case actually says the "plain-meaning
interpretation of Wis. Stat. § 32.18 fully resolves [the
court's] interpretative inquiry," and quotes Kalal's limited
allowance for its use: "legislative history is sometimes
consulted to confirm or verify a plain-meaning interpretation."
United Am., LLC v. DOT, 2021 WI 44, ¶18, 397 Wis. 2d 42, 959
N.W.2d 317 (quoting State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶51, 271 Wis. 2d 633, 681 N.W.2d 110)
(emphasis added).
3Hoover Inst., Uncommon Knowledge with Justice Antonin
Scalia, YouTube, at 17:40 (Oct. 30, 2012), https://www.youtube.
com/watch?v=DaoLMW5AF4Y.
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uses of legislative history[.]" Neil Gorsuch, A Republic, If
You Can Keep It 141 (2019).
¶92 On a final note, Justice Dallet claims the dissent
uses "extrinsic sources to inform its statutory analysis." It
doesn't. But Justice Dallet persists in promoting, as she has
done in multiple cases this term,4 a results-oriented approach to
statutory interpretation to replace the neutral, text-based
methodology this court adopted in Kalal——in this case
encouraging "ever more enterprising uses of legislative history"
to achieve desired outcomes. As it did 17 years ago, this court
should resist any impulse to stray from the text in order to
shape the law as it may have preferred it to be written.
Preservation of the rule of law depends on it.
4 See, e.g., James v. Heinrich, 2021 WI 58, __ Wis. 2d __,
__ N.W.2d __ (Dallet, J., dissenting) (advocating to jettison
well-established canons of statutory construction in order to
reach a desired meaning of Wis. Stat. § 252.03); Schwab v.
Schwab, 2021 WI 67, __ Wis. 2d __, __ N.W.2d __ (declining to
interpret and follow the plain language of Wis. Stat. § 893.40,
as it in part "would produce an unreasonable result that would
not advance the statute's purpose").
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1