author: JON E WILCOX, J.

text:
    Wisconsin Citizens Concerned for Cranes and Doves, John Wieneke and Pat Fisher, Plaintiffs-Respondents-Petitioners, v. Wisconsin Department of Natural Resources, Defendant-Appellant, U.S. Sportsmen's Alliance Foundation f/k/a Wildlife Legislative Fund of America, Defendant-Intervenor-Co-Appellant.
    Supreme Court

      No. 02-1166.

      Oral argument January 15, 2004.

      Decided April 6, 2004.

    2004 WI 40
    (Also reported in 677 N.W.2d 612.)

      For the plaintiffs-respondents-petitioners there were briefs by George B. Strother, TV and Krekeler Strother, S.C., Madison, and oral argument by George B. Strother, TV.

    For the defendant-appellant the cause was argued by Philip Peterson, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
    For the defendant-intervenor-co-appellant there was a brief by Beth Ermatinger Hanan and Reinhart, Boerner, VanDeuren, S.C., Milwaukee, and William P. Horn, Gretchen L. Gaston and Birch, Horton, Bittner and Cherot, Washington, D.C., and oral argument by Beth Ermatinger Hanan.

   I

JON E WILCOX, J.

¶ 1. This case is an appeal of a published court of appeals decision, Wisconsin Citizens Concerned for Cranes and Doves v. DNR, 2003 WI App 76, 263 Wis. 2d 370, 661 N.W.2d 858, reversing an order of the Dane County Circuit Court, Daniel R. Moeser, Judge, which declared Wis. Admin. Code § NR 10.01(l)(h) (Sept., 2000) invalid and enjoined the Department of Natural Resources (DNR) from promulgating a rule authorizing a hunting season for mourning doves in Wisconsin.

¶ 2. The issue on appeal is whether the legislature has granted the DNR authority to set an open season for mourning doves. We have also asked the parties to address what impact, if any, the recently adopted "Right to Hunt" amendment to the Wisconsin Constitution has on the outcome of this case. Wis. Const. art. I, § 26. For the reasons discussed below, we affirm the court of appeals' decision. We hold that the DNR has express authority under Wis. Stat. § 29.014(1) (1999_2000) to adopt § NR 10.01(1)(h) because the legislature has granted broad authority to the DNR to set open and closed seasons for "game" under § 29.014(1) and mourning doves fall within the unambiguous definition of "game" contained therein.

II

¶ 3. The facts of this case are few and undisputed. On May 1, 2001, pursuant to § 29.014(1), the DNR adopted § NR 10.01(l)(h), which established an open season for mourning doves in Wisconsin from September 1 through October 30 and set daily bag and possession limits. On June 19, 2001, Wisconsin Citizens Concerned for Cranes and Doves, John Wieneke, and Pat Fisher (collectively "WCCCD") commenced an action under Wis. Stat. § 227.40, seeking a declaration that the DNR exceeded its authority in promulgating the dove hunting rule and an injunction prohibiting the DNR from enforcing the rule. The U.S. Sportsmen's Alliance Foundation (Alliance) intervened on behalf of the DNR.

¶ 4. On April 16, 2002, the circuit court granted WCCCD's request for declaratory and injunctive relief, concluding that § 29.014(1) is ambiguous and that the legislature has not clearly authorized the DNR to set a hunting season for mourning doves, a "nongame species" regulated under Wis. Stat. § 29.039(1). In a split decision, the court of appeals reversed, concluding that § 29.014(1) is unambiguous and expressly authorizes the DNR to establish a hunting season for mourning doves because they are "game" within the meaning of that subsection. Wis. Citizens Concerned for Cranes and Doves, 263 Wis. 2d 370, ¶ 19. The court of appeals also concluded that even if mourning doves are a "nongame species," § 29.039(1) permits the DNR to regulate when "nongame species" may be hunted. Id.

Ill

¶ 5. The central issue in this case is the validity of § NR 10.01(l)(h). A court may declare an administrative rule invalid "if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures." Wis. Stat. § 227.40(4)(a). WCCCD alleges that § NR 10.01(l)(h) exceeds the statutory authority of the DNR.

¶ 6. The nature and scope of an agency's powers are issues of statutory interpretation. GTE North Inc. v. PSC, 176 Wis. 2d 559, 564, 500 N.W.2d 284 (1993). When interpreting a statute, our goal is to discern the intent of the legislature, which we derive primarily by looking at the plain meaning of the statute. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, ¶ 33, 644 N.W.2d 649. See also, Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶ 10, 267 Wis. 2d 59, 671 N.W.2d 633. The language of a statute is read in the context in which it appears in relation to the entire statute so as to avoid an absurd result. Landis v. Physicians Ins. Co. of Wis., 2001 WI 86, ¶ 16, 245 Wis. 2d 1, 628 N.W.2d 893. Words and phrases are generally accorded their common everyday meaning, while technical terms or legal terms of art are given their accepted legal or technical definitions. Wis. Stat. § 990.01(1). Words that are defined in the statute are given the definition that the legislature has provided. Beard v. Lee Enters., 225 Wis. 2d 1, 23, 591 N.W.2d 156 (1999). "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Bruno v. Milwaukee, 2003 WI 28, ¶ 20, 260 Wis. 2d 633, 660 N.W.2d 656. Thus, if the statute is unambiguous, we do not consult extrinsic sources such as legislative history to ascertain its meaning; we simply apply its plain meaning. Lincoln Sav. Bank v. DOR, 215 Wis. 2d 430, 441, 573 N.W.2d 522 (1998). See also, UFE Inc. v. LIRC, 201 Wis. 2d 274, 281-82, 548 N.W.2d 57 (1996).

¶ 7. A statute is not' ambiguous merely because the parties disagree as to its meaning, or because the circuit court and court of appeals reached different conclusions; rather, a statute is ambiguous when it is readily susceptible to two or more meanings by reasonably well-informed individuals. Lincoln Sav. Bank, 215 Wis. 2d at 441-42. The test for ambiguity therefore 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." Bruno, 260 Wis. 2d 633, ¶ 21 (citation omitted) (emphasis in original). Only if the statute is ambiguous must we turn to extrinsic sources such as legislative history to aid our interpretation. Seider v. O'Connell, 2000 WI 76, ¶¶ 50-52, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 8. Thus, "[t]he well established tenets of the plain meaning rule preclude courts from resorting to legislative history to uncover ambiguities in a statute otherwise clear on its face." State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 37, 236 Wis. 2d 473, 613 N.W.2d 591. Indeed, "[t]he plain meaning of a statute takes precedence over all extrinsic sources and rules of construction, including agency interpretations." UFE, 201 Wis. 2d at 282 n.2. However, when a statute's plain meaning unambiguously evinces the legislative intent, we may consult legislative history to support our reading of the plain meaning of the statute. Columbus Park Hous. Corp., 267 Wis. 2d 59, ¶ 36. See also Seider, 236 Wis. 2d 211, ¶ 52.

¶ 9. The parties dispute whether WCCCD carries any burden in demonstrating the rule to be invalid and whether this court should give deference to the DNR's interpretation of the relevant statutes. The court of appeals concluded that while the standard of review is de novo, it could "benefit" from the interpretation of the DNR. Wis. Citizens Concerned for Cranes and Doves, 263 Wis. 2d 370, ¶ 5. The court of appeals also determined that WCCCD had the burden to convince the court that § NR 10.01(l)(h) was invalid. Id., ¶ 6. The DNR argues that WCCCD should bear such a burden and that this court should accord great weight deference to its interpretation of its rule- making authority. WCCCD maintains that it bears no burden and that this court should give no weight to the DNR's interpretation.

¶ 10. We first address whether WCCCD has any burden in this matter. The court of appeals relied on League of Wis. Municipalities v. DOC, 2002 WI App 137, ¶ 10, 256 Wis. 2d 183, 647 N.W.2d 301, for the proposition that a party challenging an administrative rule bears the burden of convincing the court that the rule is invalid. Wis. Citizens Concerned for Cranes and Doves, 263 Wis. 2d 370, ¶ 6. The court in League of Wis. Municipalities, 256 Wis. 2d 183, ¶ 10, in turn, relied upon Citizens' Utility Board v. PSC, 211 Wis. 2d 537, 552-53, 565 N.W.2d 554 (Ct. App. 1997), for this proposition. However, Citizens' Utility Board applied this burden in the context of reviewing an agency's application of legal standard to a set of facts. Id. at 552-53. The present controversy involves the construction of a statute, which is a purely legal question, subject to de novo review. Hutson v. State Pers. Comm'n, 2003 WI 97, ¶ 31, 263 Wis. 2d 612, 665 N.W.2d 212. Unlike factual questions, or questions where legal issues are intertwined with factual determinations, neither party bears any burden when the issue before this court is whether an administrative agency exceeded the scope of its powers in promulgating a rule.

¶ 11. Next, we must determine whether this court owes any deference to the DNR's interpretation of § 29.014(1). This court has stated that we are not bound by an agency's decision that concerns the scope of its own power. Wis. Envtl. Decade, Inc. v. PSC, 81 Wis. 2d 344, 351, 260 N.W.2d 712 (1978). The court of appeals concluded that while it applied a de novo standard of review, it could "derive 'benefit' from the experience and analysis of an administrative agency which the legislature has empowered to administer a law it has enacted." Wis. Citizens Concerned for Cranes and Doves, 263 Wis. 2d 370, ¶ 5 (citing Seider, 236 Wis. 2d 211, ¶¶ 25-27). The DNR asks this court to go further and give "great weight" deference to its interpretation of its rule-making authority.

¶ 12. Our decision in Seider cannot be read as according any level of deference to an administrative agency when the question before the court is whether the agency exceeded its authority. When we stated that we may "benefit" from an agency's analysis in Seider, 236 Wis. 2d 211, ¶ 27, we meant the same thing as when we declare that we benefit from the analyses of the circuit court and court of appeals when deciding questions of law. See id. In both cases, we mean only that while we apply a de novo standard of review, it is useful to have before us the analysis of another learned body concerning the issue presented.

¶ 13. In Seider, we clearly stated that we apply a de novo standard in " 'exceeds statutory authority' cases under Wis. Stat. § 227.40(4)(a)." Seider, 236 Wis. 2d 211, ¶ 25. Therefore, we will not defer to an agency's interpretation on questions concerning the scope of the agency's power. In addition, we need not defer to the interpretations of the circuit court or court of appeals on such matters. GTE North, 176 Wis. 2d at 564.

IV

¶ 14. In determining whether an administrative agency exceeded the scope of its authority in promulgating a rule, we must examine the enabling statute to ascertain whether the statute grants express or implied authorization for the rule. Wis. Hosp. Ass'n v. Natural Res. Bd., 156 Wis. 2d 688, 705, 457 N.W.2d 879 (Ct. App. 1990). It is axiomatic that because the legislature creates administrative agencies as part of the executive branch, such agencies have "only those powers which are expressly conferred or which are necessarily implied by the statutes under which it operates." Kimberly-Clark Corp. v. PSC, 110 Wis. 2d 455, 461-62, 329 N.W.2d 143 (1983). See also DOR v. Hogan, 198 Wis. 2d 792, 816, 543 N.W.2d 825 (Ct. App. 1995). Therefore, an agency's enabling statute is to be strictly construed. Id. We resolve any reasonable doubt pertaining to an agency's implied powers against the agency. Kimberly-Clark Corp., 110 Wis. 2d at 462. Wisconsin has adopted the "elemental" approach to determining the validity of an administrative rule, comparing the elements of the rule to the elements of the enabling statute, such that the statute need not supply every detail of the rule. Wis. Hosp. Ass'n, 156 Wis. 2d at 705-06 (citing Kimberly-Clark Corp., 110 Wis. 2d at 461-62). If the rule matches the elements contained in the statute, then the statute expressly authorizes the rule. Grafft v. DNR, 2000 WI App 187, ¶ 7, 238 Wis. 2d 750, 618 N.W.2d 897. However, if an administrative rule conflicts with an unambiguous statute or a clear expression of legislative intent, the rule is invalid. Seider, 236 Wis. 2d 211, ¶¶ 72-73.

¶ 15. It is well established that "wild animals, including migratory birds, within the state, so far as it can be said such animals and birds are the subject of ownership, are owned by the state in its sovereign capacity in trust for the benefit of the people of the state[.]" State v. Herwig, 17 Wis. 2d 442, 446, 117 N.W.2d 335 (1962). Pursuant to Wis. Stat. § 227.11(2) (d), "an agency may promulgate rules implementing or interpreting a statute that it will enforce or administer. . . The DNR claims authority under § 29.014(1) to promulgate the dove hunting rule.

¶ 16. Section 29.014(1) provides:

The department shall establish and maintain open and closed seasons for fish and game and any bag limits, size limits, rest days and conditions governing the taking of fish and game that will conserve the fish and game supply and ensure the citizens of this state continued opportunities for good fishing, hunting and trapping.

Wis. Stat. § 29.014(1). As noted supra, § NR 10.01(l)(h) established an open season for mourning doves in Wisconsin from September 1 through October 30 and set daily bag and possession limits.

¶ 17. Following the "elemental" approach to agency authority explained supra, this case turns on whether mourning doves are "game" within the purview of § 29.014(1). Section 29.001(33) defines "game" as follows: " 'Game' includes all varieties of wild mammals or birds." The DNR argues that mourning doves clearly fall within the unambiguous definition of the term "game" in § 29.001(33), such that § 29.014(1) confers authority on the DNR to sanction an open hunting season for mourning doves.

¶ 18. In contrast, WCCCD argues that the term "game" is ambiguous when it is considered within the entire context of chapter 29. Specifically, WCCCD argues that "game" is readily susceptible to more than one meaning when read in conjunction with the terms "game birds" and "nongame species." WCCCD argues, and the DNR concedes, that mourning doves are not "game birds," but do fall under the category "nongame species."

¶ 19. WCCCD asserts that a reasonable mind could conclude that mourning doves cannot be "game" and at the same time not fall under the definition of "game birds," such that they are a "nongame species." Thus, utilizing various canons of statutory construction, WCCCD argues that the term "game" in § 29.014(1) encompasses only what it characterizes as the defined subcategories of "game birds," "game fish," or "game animals," such that under § 29.014(1), the DNR may authorize open seasons only for those defined subcategories and may not authorize the hunting of "nongame species." WCCCD claims that as "nongame species," mourning doves fall under the more specific statutory provision, Wis. Stat. § 29.039(1), which according to WCCCD, does not authorize the DNR to allow hunting of "nongame species."

¶ 20. WCCCD emphasizes that in 1971 the legislature designated the mourning dove as the state symbol of peace and removed mourning doves from the definition of "game birds." Ch. 129, Laws of 1971 (amending Wis. Stat. § 1.10 and Wis. Stat. § 29.01(3)(d)). WCCCD argues that this enactment indicates the intent of the legislature "that the symbol of peace not be subjected to destruction by the hunter's gun." Pet'r Br. at 26. WCCCD zealously proclaims:

The mourning dove is an official state symbol that reflects a philosophical concept, the pursuit of peace, and which was recognized officially in the context of an acrimonious and unpopular war. That this state symbol represents such a philosophical concept differentiates and distinguishes the dove from various other state symbols, and supports the contention that the Legislature intended that this gentle bird be accorded special status.

Pet'r Br. at 27-28.

¶ 21. Despite WCCCD's impassioned argument, we find several flaws with its reasoning. First, the legislature has specifically chosen to provide a definition for the terms "game," "nongame species," and "game birds." "Game" is defined in § 29.001(33) to include "all varieties of wild mammals or birds." Mourning doves clearly fall within the definition of "game" that the legislature provided. The legislature has also specifically chosen, to define the term "nongame species": " 'Nongame species' means any species of wild animal not classified as a game fish, game animal, game bird or fur-bearing animal." Wis. Stat. § 29.001(60). Mourning doves clearly fall within this definition as well because they are not "game birds," as defined in Wis. Stat. § 29.001(39). Wisconsin courts have long followed the rule that "[w]here a word or phrase is specifically defined in a statute, its meaning is as defined in the statute, and no other rule of statutory construction need be applied." Beard, 225 Wis. 2d at 23 (citing Fredricks v. Indus. Comm'n, 4 Wis. 2d 519, 522, 91 N.W.2d 93 (1958)). Therefore, the definition the legislature has provided for a term controls the plain meaning of that term in the statute. State ex rel. Girouard v. Cir. Ct. for Jackson County, 155 Wis. 2d 148, 156, 454 N.W.2d 792 (1990).

¶ 22. WCCCD's argument that mourning doves cannot logically be both "game" and a "nongame species" fails because it erroneously relies on the ordinary meaning of these terms and their supposed contextual ambiguity, ignoring the definition the legislature has specifically chosen to provide for those terms in chapter 29. See id. Notably, the legislature defined "nongame species" in relation to "game birds," specifically excluding the latter from the definition of the former. Wis. Stat. § 29.001(60). However, the legislature chose to define "game" broadly in § 29.001(33). WCCCD would essentially have us define "game" as "all varieties of wild mammals or birds except those that have been designated as 'nongame species.'" We decline to rewrite the statute in such a fashion, as the legislature did not define "game" and "nongame species" as mutually exclusive terms. The legislature could have defined "game" as composed of "game birds," "game fish," and "game animals," for purposes of § 29.014(1), but chose not to do so. The provided legislative definition of "game" is clear and unambiguous: "all varieties of wild mammals or birds." The presence of the terms "nongame species" and "game birds" within chapter 29 does not render the term "game" ambiguous.

¶ 23. This court has previously recognized that the DNR has broad authority as custodian of Wisconsin's wildlife to enact regulations that maintain a balance between conserving and exploiting the state's wildlife. Barnes v. DNR, 184 Wis. 2d 645, 660, 516 N.W.2d 730 (1994). The legislature has expressly granted the DNR broad regulatory authority to "establish and maintain open and closed seasons for fish and game . . . and conditions governing the taking of fish and game that will conserve the fish and game supply and ensure the citizens of this state continued opportunities for good fishing, hunting, and trapping." Wis. Stat. § 29.014(1).

¶ 24. The legislature did not limit that authority to set open seasons only for "game birds," "game fish," and "game animals" under § 29.014(1). Likewise, § 29.014(1) does not prohibit the DNR from authorizing an open season for "nongame species." Indeed, the only limitation upon the DNR's authority contained within § 29.014(1) is that any open season for "game" and the conditions therefor must conserve the game supply and provide continued opportunities for the citizens of this state to hunt. Regardless of the fact that mourning doves are no longer on the list of "game birds," § 29.014(1) does not refer to "game birds"; it refers to "game."

¶ 25. However, that does not mean that the DNR's authority to regulate "game" vis-a-vis birds is unfettered or unaffected by other provisions outside of § 29.014(1). As the DNR aptly notes, Wisconsin is subject to the restrictions contained in the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-711 (2000). Further, the legislature may object to any proposed rule authorizing an open season of any given species pursuant to Wis. Stat. § 227.19. After a rule is promulgated, the legislature may suspend operation of the rule. Wis. Stat. § 227.26. Despite these limitations, we have found no provision in chapter 29 that prohibits the DNR from authorizing an open season under § 29.014(1) for "non-game species," much less mourning doves.

¶ 26. Further, the context in which the terms "game," "game birds," and "nongame species" are used in chapter 29 refutes WCCCD's arguments. An examination of the use of the terms "game birds" and "nongame species" within chapter 29 belies any argument that the term "game birds" is a specific and exclusive subcategory of "game" that are birds, or that "game" and "nongame species" are mutually exclusive terms.

¶ 27. Section 29.039(1) is the only substantive provision concerning "nongame species" contained in chapter 29. The term "nongame species" does not occur anywhere else in Wis. Stat. ch. 29. As discussed infra, § 29.039(1) relates to the conservation of "nongame species." There is no provision in chapter 29 that indicates a "nongame species" cannot nonetheless constitute "game."

¶ 28. Similarly, chapter 29 uses the term "game birds" in provisions that provide specific regulations governing those species listed as such. The first substantive occurrence of the term "game birds" is found in Wis. Stat. § 29.091, which concerns the taking of predatory game birds in a wildlife refuge. Wisconsin Stat. § 29.364(1) applies certain restrictions on the transportation of "game birds." See also Wis. Stat. § 29.741(2) (prohibiting taking plants that furnish food for game birds from the public waters); Wis. Stat. § 29.867 (providing for the establishment of and regulations pertaining to game bird farms); Wis. Stat. § 29.921(7) (empowering DNR wardens to kill dogs that destroy game birds). These provisions apply special protections to "game birds" and limit certain activities with respect thereto. Again, there is no provision in chapter 29 that states a bird that is not listed as a "game bird" may not nonetheless constitute "game."

¶ 29. While it may seem odd, considering these terms in their normal, everyday usage, that a bird which is not a "game bird" may nevertheless be a bird that is "game," we are not applying the ordinary meaning of words. Rather, we are interpreting statutory provisions containing terms that the legislature has elected to define. While WCCCD's distinctions between "game," "game birds," and "nongame species" may be logical considering the ordinary meaning of these terms, we must utilize and apply the definitions the legislature has provided for these terms.

¶ 30. We conclude that the legislative scheme contained in Wis. Stat. ch. 29 uses the terms "game," "nongame species," and "game birds" at different times for different purposes, and does not demonstrate that the terms "game" and "nongame species" are mutually exclusive; nor does it indicate an intent to treat "game birds" as an exclusive subset of "game" in relation to birds that may be hunted. Because the legislature has provided a clear definition for the term "game" in chapter 29, that definition controls the plain meaning of that term in the statute. Girouard, 155 Wis. 2d at 156. The legislature defined "game" as "all varieties of wild mammals or birds." Wis. Stat. § 29.001(33). Mourning doves plainly fall within this definition. Neither the definition the legislature provided for the term "game" nor the context within which "game" is used throughout chapter 29 render its meaning ambiguous. Therefore, we conclude that mourning doves fall within the unambiguous definition of the term "game," such that the DNR has express authority under § 29.014(1) to adopt § NR 10.01(l)(h).

¶ 31. However, WCCCD argues that § 29.014(1) conflicts with § 29.039(1). Section 29.039(1) provides:

The department may conduct investigations of nongame species to develop scientific information relating to population, distribution, habitat needs, and other biological data to determine necessary conservation measures. The department may develop conservation programs to ensure the perpetuation of nongame species. The department may require harvest information and may establish limitations relating to taking, possession, transportation, processing and sale or offer for sale, of nongame species.

Wis. Stat. § 29.039(1) (emphasis added).

¶ 32. WCCCD asserts that as a "nongame species," mourning doves are regulated under § 29.039(1), which is more specific than § 29.014(1), and therefore should control. See Lindsey v. Lindsey, 140 Wis. 2d 684, 693, 412 N.W.2d 132 (Ct. App. 1987). As § 29.039(1), according to WCCCD, does not permit the DNR to allow hunting of "nongame species," § 29.039(1) rather than § 29.014(1) should govern the existence of the DNR's authority in this case. The DNR counters that § 29.014(1) is the more specific statute because it specifically relates to hunting, whereas § 29.039(1) relates to conservation. In any event, the DNR argues that it is authorized to set seasons for "nongame species" under § 29.039(1), as that section specifically authorizes the DNR to establish limits for the "taking" of "nongame species." We need not determine which provision of chapter 29 is more specific because that principle of statutory construction applies only where the two statutes are in conflict. State v. Maxey, 2003 WI App 94, ¶ 22, 264 Wis. 2d 878, 663 N.W.2d 811. We conclude that the statutes are not in conflict because § 29.039(1) implicitly empowers the DNR to set open seasons for "nongame species."

¶ 33. Although section 29.039(1) does not explicitly empower the DNR to set open seasons for "nongame species," it may nonetheless implicitly empower the DNR to do so because § 29.039(1) permits the DNR to regulate the "taking" of "nongame species." Whether § 29.039(1) implicitly empowers the DNR to set seasons for "nongame species" depends on whether "taking" is synonymous as "hunting," such that the power to regulate "taking" would necessarily imply establishing regulations for "hunting." No definition for the word "taking" is provided in § 29.001. However, "taking" is included in the definition of "hunting" in Wis. Stat. § 29.001(42), which provides that " 'hunt' or 'hunting' includes shooting, shooting at, pursuing, taking, capturing or killing or attempting to capture or kill any wild animal." Wis. Stat. § 29.001(42). The DNR argues that "taking" is synonymous with "hunting," whereas WCCCD asserts that while "taking" may be part of the activities included in the definition of "hunting," "taking" is separate and distinct from such concepts as shooting or killing. WCCCD argues that "taking" merely means taking into possession, and that § 29.039(1) contemplates only taking a species into possession for the purposes of scientific study or conservation.

¶ 34. As the term "taking" is not specifically defined in chapter 29, we must resort to its common, ordinary meaning. Wis. Stat. § 990.01(1); Weber v. Town of Saukville, 209 Wis. 2d 214, 224, 562 N.W.2d 412 (1997). The word "take" contains over 32 primary entries in the dictionary. More than one of these various definitions is arguably applicable to the statute. For example, entry l.a. defines "take" as follows: "To capture physically; seize." American Heritage Dictionary of the English Language 1829 (3d ed. 1992). However, entry l.c. defines "take" as follows: "To kill, snare, or trap (fish or game, for example)." Id. Therefore, the word "take" is reasonably susceptible to more than one meaning. As the legislature has not provided a definition for the word "take" and its use in § 29.039(1) is ambiguous, we must resort to canons of construction to determine whether § 29.039(1) allows the DNR to set open seasons for "nongame species."

¶ 35. A cardinal rule of statutory interpretation is that statutes must be construed so as to avoid absurd results. Seider, 236 Wis. 2d 211, ¶ 32; Wis. Hosp. Ass'n, 156 Wis. 2d at 709. Also, when interpreting a statute, statutes governing similar subjects should be considered together, such that where a statute governing one subject contains a given provision, the omission of that same provision from a statute governing a related subject is evidence that a different intention existed. State v. Welkos, 14 Wis. 2d 186, 190, 192, 109 N.W.2d 889 (1961).

¶ 36. First, we note that WCCCD's suggestion— that each of the delineated words contained in the definition of "hunt" must encompass separate and distinct concepts from the other terms, such that "taking" cannot mean the same as killing — would render absurd the meaning of the other terms enumerated in the definition of "hunting." If, for example, "taking" is conceptually distinct from "killing," then "shooting at" must be conceptually distinct from "shooting." Wis. Stat. § 29.001(42). Furthermore, if WCCCD's argument were correct, then "attempting to capture" a wild animal could not encompass "pursuing" a wild animal. Wis. Stat. § 29.001(42).

¶ 37. Second, the provision in chapter 29 empowering the DNR to set open and closed seasons uses the term "taking" and not "hunting": "The department shall establish and maintain open and closed seasons . .. and conditions governing the taking of fish and game ...Wis. Stat. § 29.014(1) (emphasis added). If "taking" did not involve killing, trapping, or shooting, the DNR would be authorized to regulate the taking into physical possession of "game" but would not be authorized to regulate shooting, shooting at, trapping, pursuing or killing "game" within open and closed seasons. It would be absurd to construe the word "taking" as encompassing only the act of taking possession of "game" and not the concomitant acts of killing, shooting, shooting at, pursuing, or trapping "game."

¶ 38. Third, the portion of chapter 29 regulating endangered and threatened species provides: "No person may take, transport, possess, process or sell within this state any wild animal specified by the department's endangered and threatened species list." Wis. Stat. § 29.604(4)(a) (emphasis added). If the word "take" is given the construction the WCCCD suggests, then a resident of this state would be prohibited from taking an endangered or threatened species into possession, but would not be barred from shooting, shooting at, or killing an endangered or threatened species. This would constitute an absurd result and would defeat the entire purpose of the endangered and threatened species provision. State ex rel. Cramer, 236 Wis. 2d 473, ¶ 18 ("This court attempts to resolve any ambiguities in a manner that advances the legislature's purpose in enacting the statute.").

¶ 39. Several other provisions of chapter 29 would also be rendered nonsensical if "taking" did not include other activities contained within the definition of "hunting," such as killing or shooting. See, e.g., Wis. Stat. § 29.091 ("The taking of predatory game birds and animals shall be done as the department directs.") (emphasis added); Wis. Stat. § 29.192(4) ("If the department decides to limit the number of hunters or trappers taking Canada geese, sharp-tailed grouse, fishers, otters, bobcats or sturgeon by issuing permits . . . the department shall issue the permits . . . .") (emphasis added).

¶ 40. Thus, an analysis of the use of the word "take" in chapter 29 compels us to conclude that "take" or "taking" includes those activities delineated under the definition of "hunting" in § 29.001(42), such as killing, shooting, shooting at, trapping, and pursuing. This interpretation is consistent with the canon of construction noscitur a sociis — "it is known by its associates" — which provides that an unclear statutory term should be understood in the same sense as the words immediately surrounding or coupled with it. See In re Estate of Nottingham v. Danielson, 46 Wis. 2d 580, 589-90, 175 N.W.2d 640 (1970); Black's Law Dictionary 1084 (7th ed. 1999). Under § 29.039(1), the DNR is authorized to regulate the "taking" of "nongame species."

¶ 41. However, WCCCD insists that the legislature intended to accord the same protection to "non-game species" as it did to endangered and threatened species. WCCCD directs our attention to chapter 370, Laws of 1977. This enactment created the specific statutory section relating to "nongame species." § 5, ch. 370, Laws of 1977. WCCCD notes that this law also created a specific fund for the conservation of nongame, endangered, and threatened species. § 1, ch. 370, Laws of 1977. WCCCD argues that this evinces a legislative intent to accord the same type of protection to these categories of species. However, given the fact that the legislature chose to create two separate and distinct regulatory schemes for "nongame species" and endangered or threatened species, § 29.039(1) and § 29.604 respectively, WCCCD's reliance on this budget enactment is dubious. While the legislature prohibited "taking" endangered or threatened species in § 29.604(4)(a), it failed to set forth a similar prohibition for "nongame species" and specifically empowered the DNR to regulate the "taking" of "nongame species" in § 29.039(1).

¶ 42. While WCCCD argues that mourning doves should be accorded the same protections as endangered or threatened species, mourning doves are not on the endangered or threatened species list. See Wis. Admin. Code § NR 27.03(l)-(2) (Nov., 2001). As much as WCCCD would like them to be, the mourning doves are simply not listed as an endangered or threatened species. Therefore, the prohibition against "taking" contained in § 29.604(4)(a) does not apply to mourning doves. We note that mourning doves were listed in Wis. Admin. Code § NR 10.02(5) (May, 2000) as a protected species, subject to the prohibition against "taking" contained in that section, but were removed from this list the same time § NR 10.01(l)(h) was adopted. See Wis. Admin. Code § NR 10.02 (Sept., 2000).

¶ 43. Therefore, we conclude that there is no conflict between § 29.014(1) and § 29.039(1) relating to the DNR's authority over mourning doves. The power to authorize open seasons for the "taking" of "game" under § 29.014(1) is not inconsistent with the authority to ensure the conservation of a "nongame species" under § 29.039(1). Under § 29.014(1), the DNR may set open and closed seasons for "taking" mourning doves, as they constitute "game" for the purposes of that section. In addition, the DNR may conduct investigations, develop conservation programs, require harvest information, and limit the "taking" of mourning doves in order to ensure their perpetration because mourning doves are a "nongame species" for the purposes of § 29.039(1). These statutory sections are not inconsistent in relation to the DNR's authority over mourning doves. Indeed, at times it may be necessary to authorize the "taking of a "nongame species" if disease, overpopulation, or other factors jeopardize the perpetuation of the species.

¶ 44. Having determined that § 29.014(1) confers upon the DNR express authority to establish an open season for mourning doves, we next examine whether that authority is in any way affected by the newly enacted "Right to Hunt" amendment to the Wisconsin Constitution. Article I, Section 26 of the Wisconsin Constitution, as adopted by the citizens of this state in April of 2003, provides: "The people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law." Wis. Const, art. I, § 26. We interpret provisions of the Wisconsin Constitution de novo, examining three primary sources to determine a provision's meaning:

the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption.

State v. Cole, 2003 WI 112, ¶ 10, 264 Wis. 2d 520, 665 N.W.2d 328 (quoting Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996)).

¶ 45. An examination of the plain language of Article I, Section 26 of the Wisconsin Constitution reveals that the 2003 constitution amendment was intended to codify the common law right to hunt that existed prior to its adoption. In State v. Nergaard, 124 Wis. 414, 420, 102 N.W. 889 (1905), this court declared that the citizens of the state have a common law right to hunt and fish game as they see fit in the absence of state regulations, so long as they do not infringe private rights. This court described the right as follows:

[T]he state has the right, in the exercise of its police power, to make all reasonable regulations for the preservation of fish and game within its limits. It may ordain closed seasons; it may prescribe the manner of taking, the times of taking, and the amount to be taken within a given time, as it may deem best for the purpose of preserving and perpetuating the general stock. In the absence of legislation the citizen may doubtless pursue, take, and dispose of fish and game as he sees fit and without restraint, so long as he violates no private rights; but when the state steps in and makes proper police regulations, the citizen takes his right of fishing or fowling hampered by such regulations; in other words, his right is the right which the state leaves to him, no more and no less.

Id.

¶ 46. The language of the 2003 constitutional amendment closely parallels the language in Nergaard, providing that the people of this state have the right to take game, subject to reasonable regulations. The 2003 amendment does not impose any limitation upon the power of the state or DNR to regulate hunting, other than that any restrictions on hunting must be reasonable. However, the WCCCD has not alleged that § NR 10.01(l)(h) is unreasonable. Therefore, the 2003 constitutional amendment does not affect our analysis of the DNR's authority in this case.

¶ 47. However, we do note that the fact that citizens of this state enjoy the right to hunt in the absence of reasonable regulations does not necessarily mean that it is "open season" on any species of birds not regulated by the DNR. Wisconsin Admin. Code § NR 10.02 currently provides that certain enumerated species are protected and may not be taken without authorization by the DNR. Specifically, Wis. Admin. Code § NR 10.02(8) (Nov., 2003) provides that "[a]ny other wild bird not specified in this chapter[ ]" may not be taken absent express authorization by the DNR. Therefore, under § NR 10.02(8), the DNR must engage in rule-making and expressly authorize the taking of any species of wild bird that is not currently regulated. If the DNR elects to do so, it is obviously restrained by its own rule-making procedures, federal law governing migratory birds, and federal and state law relating to endangered or threatened species.

V

¶ 48. In summation, we hold that the DNR has express authority under § 29.014(1) to adopt § NR 10.01(l)(h) because the legislature has granted broad authority to the DNR to set open and closed seasons for "game" under §29.014(1) and mourning doves fall within the unambiguous definition of "game" contained therein. We further hold that there is no conflict between § 29.014(1) and § 29.039(1) because mourning doves constitute "game" within the meaning of the former provision and qualify as a "nongame species" under the latter. Section 29.014(1) authorizes the DNR to set open season for the "taking" of "game," and § 29.039(1) empowers the DNR to set limits on the "taking" of "nongame species" to further the goal of conservation. The word "take" within relevant statutory provisions encompasses more than the act of mere possession and includes the other activities listed in § 29.001(42) under the definition of "hunting," including killing and shooting. Therefore, we conclude that the DNR had express authority under § 29.014(1) to adopt Wis. Admin. Code § NR 10.01(l)(h).

By the Court. — The decision of the court of appeals is affirmed.

       The dove hunting rule first appeared in the Wisconsin Administrative Code in September of 2000. Wis. Admin. Code § NR 10.01(l)(h) (Sept., 2000). It took effect May 1, 2001.

       The DNR adopted the dove hunting rule on May 1, 2001. As discussed infra, by virtue of 2001 Wis. Act 56, which took effect in April of 2002, several changes were made to pertinent provisions of chapter 29 that are reflected in the 2001-02 version of the Wisconsin Statutes. See 2001 Wis. Act 56, §§ 19-20. Therefore, unless otherwise noted, all subsequent statutory references are to the 1999-2000 version.

       Pursuant to Wis. Stat. § 15.34, the Natural Resources Board supervises and directs the DNR. Technically, the Natural Resources Board adopted the dove hunting rule. However, for simplicity, this opinion will refer to the DNR, as the Natural Resources Board is not a party to this action.

       As the Alliance makes substantially the same arguments as the DNR in this case, the opinion shall refer to the two collectively as the DNR when discussing their positions.

       "Administrative rules enacted pursuant to statutory rule-making authority have the force and effect of law in Wisconsin." Staples v. DHSS, 115 Wis. 2d 363, 367, 340 N.W.2d 194 (1983).

       Nor does the present case involve the constitutionality of an administrative rule. "[L]ike statutes enacted by the legislature, regulations adopted by administrative agencies 'carry a heavy presumption of constitutionality and the challenger has the burden of proving unconstitutionality beyond a reasonable doubt.'" LeClair v. Natural Res. Bd., 168 Wis. 2d 227, 236, 483 N.W.2d 278 (Ct. App. 1992) (quoting Skow v. Goodrich, 162 Wis. 2d 448, 450, 469 N.W.2d 888 (Ct. App. 1991)).
      One commentator has described this difference as follows:
      While a constitutional challenge entails presumptions and burdens in support of the rule, a statutory authority challenge favors the challenger. The principle is that where no explicit authorizing statute exists, any reasonable doubt of the existence of implied power in an agency is resolved against its existence.
      Steve Levine, How to Review an Administrative Rule, Wisconsin Bar Bulletin 56, Oct. 1983, at 40, 42.

       We articulated the basis of this rule as follows:
      Independent review is the appropriate standard in these circumstances because it preserves the ultimate authority of the judiciary to determine questions of law, seeking to discern and fulfill the intent of the legislature. Our first duty is to the legislature, not the agency.. . . Even if we accorded the agency that promulgated a rule great weight deference, we would not uphold a rule that directly contravenes the words of a statute.

        Seider v. O'Connell, 2000 WI 76, ¶ 26, 236 Wis. 2d 211, 612 N.W.2d 659 (internal citations omitted).

        Grafft v. DNR, 2000 WI App 187, ¶ 4, 238 Wis. 2d 750, 618 N.W.2d 897 ("Where, as here, we are construing a statute involving the scope of an agency's power, we give no deference to the agency's opinion, but rather, interpret the statute de novo."); Amsoil, Inc. v. LIRC, 173 Wis. 2d 154, 165, 496 N.W.2d 150 (Ct. App. 1992) ("Because this is a novel issue that involves an agency defining its own power, we owe no deference to LIRC's interpretation of its power...."); State ex rel. St. Michael's Evangelical Lutheran Church v. DOA, 137 Wis. 2d 326, 335, 404 N.W.2d 114 (Ct. App. 1987) ("[W]e agree, that [the circuit court] owed no deference to the agency's construction of the statute, since the statute affects the power of the agency to proceed.") (citing Wis. Envtl. Decade, Inc. v. PSC, 81 Wis. 2d 344, 351, 260 N.W.2d 712 (1978)).
      The cases cited by the DNR that give great weight deference to an agency's interpretation of a statute are inapplicable. For instance, in Trinwith v. LIRC, 149 Wis. 2d 634, 640, 439 N.W.2d 581 (Ct. App. 1989), the court of appeals recited the familiar circumstances in which courts apply the "great weight" standard. However, the issue in Trinwith involved the application of a statute to a set of undisputed facts, not a question of an agency's power. Id.

       As one commentator has explained:
      [M]ost challenges on the basis of lack of agency authority are questions of statutory construction — legal rather than factual issues. With no facts or factual presumptions to justify the rule, the issue becomes a legal one for the appellate court, not the agency and not the trial court.
      Levine, supra at 42 (citing Big Foot Country Club v. DOR, 70 Wis. 2d 871, 875, 235 N.W.2d 696 (1975)).

       Wisconsin Stat. § 29.014(2)(b) provides that "[a]ll of the rules promulgated under this chapter are prima facie reasonable and lawful until found to be otherwise in a final determination by a court."

       Generally, the word "includes" is to be given an expansive meaning, indicating that which follows is but a part of the whole. Milwaukee Gas Light Co. v. Dept. of Taxation, 23 Wis. 2d 195, 203 & n.2, 127 N.W.2d 64 (1964). However, under the doctrine of expressio unius est exclusio alterius — "the expression of one thing excludes another" — courts may read "includes" as a term of limitation or enumeration, so that a statute encompasses only those provisions or exceptions specifically listed. State v. Delaney, 2003 WI 9, ¶ 22, 259 Wis. 2d 77, 658 N.W.2d 416. See also State v. Engler, 80 Wis. 2d 402, 408, 259 N.W.2d 97 (1977); Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974). This rule may be applied only where there is some evidence that the legislature intended it to apply. Pritchard v. Madison Metro. Sch. Dist., 2001 WI App 62, ¶ 13, 242 Wis. 2d 301, 625 N.W.2d 613. Here, many of the terms contained in Wis. Stat. § 29.001 are not defined by a general definition, but rather are defined by the use of the word "includes" followed by a list of certain species. See, e.g., Wis. Stat. §§ 29.001(30)-(41). As discussed infra, the mourning doves were once on the list of "game birds" contained in § 29.001(39), but were later removed by the legislature. Had the legislature intended that the doctrine of expressio unius est exclusio alterius was not to apply, there would be no point in removing a single species from the definition of a term. Examining Wis. Stat. § 29.001 as a whole, we believe the legislature intended the narrow meaning of "includes," such that the doctrine of expressio unius est exclusio alterius is applicable.

       Wisconsin Stat. § 29.001(39) defines "game birds" as follows: " 'Game birds' includes wild geese, brant, wild ducks, wild swan, rails, coots, gallinules, snipe, woodcock, plovers, sandpipers, ruffed grouse, prairie chicken, sharp-tailed grouse, pheasants, Hungarian partridge, Chukar partridge, bobwhite, quail, crows and wild turkey." Wisconsin Stat. § 29.001(60) defines "nongame species" as follows: " 'Nongame species' means any species of wild animal not classified as a game fish, game animal, game bird or fur-bearing animal."

       Pursuant to 2001 Wis. Act 56, § 19, Wis. Stat. § 29.001(39) (2001-02) currently defines "game birds" as follows: " 'Game birds' means birds that are in the wild and includes wild geese, brant, wild ducks, wild swan, rails, coots, gallinules, snipe, woodcock, plovers, sandpipers, ruffed grouse, prairie chicken, sharp-tailed grouse, pheasants, gray partridge, chukar partridge, bobwhite, quail, crows and wild turkey." (Emphasis indicates change from 1999-2000 version.) Likewise, pursuant to 2001 Wis. Act 56, § 20, Wisconsin Stat. § 29.001(60) (2001-02) now defines "nongame species" as follows:' "Nongame species' means any species of wild animal that is living in the wild and that is not classified as a game fish, game animal, game bird or fur-bearing animal." (Emphasis indicates change from 1999-2000 version.) The parties have not briefed and therefore we do not discuss what impact, if any, these changes have on the present controversy.

        See also Republic Airlines, Inc. v. DOR, 159 Wis. 2d 247, 253, 464 N.W.2d 62 (Ct. App. 1990); Britton v. DOT, 123 Wis. 2d 226, 229, 365 N.W.2d 919 (Ct. App. 1985).

       See Wis. Stat. § 29.047(l)(a)2. (defining "game" for purposes of this subsection as "any wild animal, wild bird or game fish").

       The Legislative Council Note to 1997 Wis. Act 248, § 77 provides, in pertinent part:
      Note: Under s. 227.11(2), state agencies are authorized to "promulgate rules interpreting the provisions of any statute enforced or administered by it...The DNR therefore clearly has authority to promulgate rules under all provisions of ch. 29, subject only to the specific limitations on its rule-making authority set forth in ch. 29 .. ..
      Note: One of the disadvantages, for the purposes of statutory interpretation, of individual examples of permissive rule-making authority, is the potential for an implication that by granting permissive rule-making authority for some provisions of ch. 29, the legislature did not intend to grant rule-making authority for other provisions of the chapter. This is clearly not the case, and such an implication would in fact be contrary to the legislature's broad grant of authority to the DNR under ch. 29 to regulate fish and game.

       A list of migratory birds protected by the Migratory Bird Treaty Act is contained in 50 C.F.R. § 10.13 (Oct., 2000). See 50 C.ER. § 20.1 et seq. (providing specific regulations relating to the taking of migratory birds). The Wisconsin Administrative Code recognizes that migratory birds are protected under federal law and delineates certain actions that must be taken to implement an adequate protection program for migratory birds. Wis. Admin. Code § NR 1.12 (Apr., 2002).

       Moreover, chapter 29 explicitly contemplates that birds that are not "game birds" may be hunted. Wisconsin Stat. § 29.341 describes the duties of a hunter when an accidental shooting occurs, requiring:
      Any person who, while hunting any wild animal or bird, discharges a firearm or arrow, and by that discharge injures or kills another person, shall immediately give his or her name and address to the injured person, render assistance to the injured person and obtain immediate medical or hospital care for the injured person, and immediately report the injury or death to the sheriff or police of the locality in which the shooting took place.

        Wis. Stat. § 29.341 (emphasis added). The language "wild animal or bird" parallels the definition of "game." See Wis. Stat. § 29.001(33).

       WCCCD directs our attention to Wis. Stat. § 169.01(34) (2001-02), which provides that" '[t]ake' means to capture, but does not include killing." Wisconsin Stat. ch. 169, relating to captive wildlife, was created by 2001 Wis. Act 56. See 2001 Wis. Act 56, § 224. We note, however, that this definition is specific to Wis. Stat. ch. 169. See Wis. Stat. § 169.01 (2001-2002). While the legislature may have chosen to define "take" in this fashion in chapter 169, it did not so define "take" in chapter 29. Furthermore, the inclusion of this definition of the word "take" in chapter 169 and the absence of such a definition in chapter 29 actually bolsters the DNR's position, as it is a strong indication that the term "take" in chapter 29 must have a different meaning than that term as it appears in chapter 169. See State v. Welkos, 14 Wis. 2d 186, 190, 192, 109 N.W.2d 889 (1961).

        See also Kimberly-Clark Corp. v. PSC, 110 Wis. 2d 455, 463, 329 N.W.2d 143 (1983) (accord).

        See also Citizens' Util. Bd. v. PSC, 2003 WI App 206, ¶ 8, 267 Wis. 2d 414, 671 N.W.2d 11 (noting that "[u]nder noscitur a sociis, ordinarily the coupling of words denotes an intention that they be understood in the same general sense") (citing State v. Johnson, 171 Wis. 2d 175, 181, 491 N.W.2d 110 (Ct. App. 1992)).

       The list of engendered or threatened species has not been amended since September 1999.

       Pursuant to Wis. Stat. § 29.604(3), the legislature has delegated authority to the DNR to establish a list of endangered and threatened species in Wisconsin. Whether a particular species appears on the endangered or threatened species list is subject to the DNR's discretion. Barnes v. DNR, 184 Wis. 2d 645, 662, 516 N.W.2d 730 (1994).


source: Caselaw Access Project

author: N. PATRICK CROOKS, J.

license: Public Domain

text:
    Beloit Liquidating Trust, a Delaware Trust, Plaintiff-Appellant, v. Jeffrey T. Grade, Francis M. Corby, Jr., Mark E. Readinger, James A. Chokey, Robert A. Messier, Alton L. Daffin, and Thomas E. Engelsman, Defendants-Respondents-Petitioners.
    Supreme Court

      No. 02-2035.

      Oral argument February 19, 2004.

      Decided April 6, 2004.

    2004 WI 39
    (Also reported in 677 N.W.2d 298.)

      For the defendant-respondent-petitioner Engels-man there were briefs by Gregory A. Kotsonis and VonBriesen & Roper, S.C., Milwaukee and Mitchell Bryan and Levenfeld Pearlstein, Chicago, and oral argument by Mitchell Bryan.

    For the defendants-respondents-petitioners Chokey, Readinger, Messier & Daffin there were briefs by Paul F. Linn, Christopher C. Mohrman, Charles J. Crueger, and Michael Best & Friedrich, LLP, Milwaukee, and oral argument by Paul F. Linn.

    For the defendants-respondents-petitioners Grade and Corby there was a brief by Christopher T. Hale, K. Scott Wagner and Hale & Wagner, S.C., Milwaukee.
    For the plaintiff-appellant there were briefs by John F. Hovel, Leonard G. Leverson and Kravit, Gass, Hovel & Leitner, S.C., Milwaukee, and Curtis C. Mechling and Stroock & Stroock & Lavan, LLP, New York, and oral argument by Curtis C. Mechling.

   N. PATRICK CROOKS, J.

¶ 1. The petitioners in this case, Jeffrey T. Grade, Francis M. Corby, Jr., Mark E. Readinger, James A. Chokey, Robert A. Messier, Alton L. Daffin, and Thomas E. Engelsman, officers and directors of Beloit Corporation, or its former parent corporation, Harnischfeger Industries, Incorporated (Harnischfeger), seek review of a published court of appeals' decision, Beloit Liquidating Trust v. Grade, 2003 WI App 176, 266 Wis. 2d 388, 669 N.W.2d 232, reversing a circuit court decision. The court of appeals held that the petitioners (officers and directors) had a duty to Beloit Corporation's creditors before it went out of business. The circuit court dismissed the supplemental complaint filed by Beloit Corporation Liquidating Trust (Trust), which alleged that the officers and directors breached their fiduciary duties. The circuit court held that no duty is owed to the creditors of a corporation unless the corporation is both insolvent and no longer a going concern. The court of appeals reversed the circuit court, concluding that the officers and directors had a duty to the creditors before Beloit Corporation went out of business. The court of appeals further concluded that Delaware, not Wisconsin, law was applicable to the present case. The court of appeals also held that the petitioners were precluded from asserting 11 U.S.C. § 108(a) (1999) as a defense, and the Official Committee of Unsecured Creditors of Beloit Corporation (Committee) could use § 108(a) to extend the statute of limitations for its breach of fiduciary duty claims.

¶ 2. We conclude that, given the legislature's enactment of Wis. Stat. § 180.1704 (1999-2000) and the prevailing Wisconsin case law regarding choice of law, Wisconsin law applies in this case. Primarily relying on the decisions of Boyd v. Mutual Fire Ass'n, 116 Wis. 155, 90 N.W 1086 (1902), and McGivern v. Amasa Lumber Co., 77 Wis. 2d 241, 252 N.W.2d 371 (1977), we further conclude that, in order for officers and directors to have a fiduciary duty to creditors, a corporation must be both insolvent and no longer a going concern. Because Beloit Corporation was a going concern during the applicable two-year period in which a claim could have been brought, we conclude that its officers and directors owed no duty to its creditors during that time. Given these conclusions, we do not need to address the court of appeals' holding regarding issue preclusion in this case.

I — I

¶ 3. For approximately 140 years, Beloit Corporation designed and manufactured pulp and papermaking machines. Beloit Corporation was a profitable corporation for many of those years and reported an operating income of over $65 million as late as 1995. Although Beloit Corporation was organized under the laws of Delaware, its primary place of business was located in Beloit, Wisconsin. Beloit Corporation also operated 65 wholly-owned or partially-owned subsidiaries, including subsidiaries located in the United Kingdom, Asia, Italy, Poland, and Austria. Harnischfeger was organized under Delaware law as well, and its principal place of business was in Milwaukee County, Wisconsin. Harnis-chfeger owned 80 percent of Beloit Corporation, while Mitsubishi Heavy Industries owned the remaining 20 percent of the corporation.

¶ 4. On June 7, 1999, Harnischfeger, Beloit Corporation, and all of the other businesses owned by Harnischfeger filed for bankruptcy protection in Delaware under Chapter 11 of the United States Code. At the time of filing, Beloit Corporation's reported liabilities exceeded its reported assets by more than $1 billion. While bankruptcy proceedings were pending, the bankruptcy court appointed the Committee to explore potential conflicts of interest between debtors and related parties. The Committee'then sought the right to sue, on behalf of Beloit Corporation, the current and former officers and directors of Beloit Corporation and Harnischfeger for their alleged mismanagement of Be-loit Corporation and breach of fiduciary duty.

¶ 5. The bankruptcy court confirmed Beloit Corporation's reorganization plan on May 18, 2001. According to the plan, Beloit Corporation's unsecured creditors were given the right to share in the proceeds resulting from the liquidation of Beloit Corporation's assets. The unsecured creditors were also given title to Beloit Corporation's potential claims, including the claims of Beloit Corporation asserted in this action. On June 5, 2001, the bankruptcy court permitted Beloit Corporation's unsecured creditors to initiate this action. On June 7, 2001, the Committee commenced this action in Milwaukee County Circuit Court.

¶ 6. On July 12, 2001, the Trust was created to liquidate Beloit Corporation's remaining assets. The Trust filed a supplemental complaint, in which the Trust was substituted as the plaintiff in this action in place of the Committee. Aside from general claims of mismanagement and corporate waste, the Trust cited two major events as contributing to the demise of Beloit Corporation. First, the Trust alleged in its complaint that the directors and officers breached their duties in 1994 by entering into a contract to build a de-inking and pulping mill in Fitchburg, Massachusetts. According to the Trust, Beloit Corporation never fulfilled its contractual obligations to the mill. The mill closed two years later, and its owner filed bankruptcy. The directors and officers of Beloit Corporation decided that, instead of forfeiting their sizeable investment, they would take over the mill and resume its operation. Beloit Corporation assumed the mill's lease obligations, and the corporation invested more money in the project. The mill continued to sustain substantial losses, and the bankruptcy court authorized Beloit Corporation to cease the mill's operations in July 1999.

¶ 7. The second event cited by the Trust as leading to the demise of Beloit Corporation occurred in 1996. The officers and directors concluded that, in order for Beloit Corporation to regain some of its market share, it needed to expand its business dealings abroad. Thus, Beloit Corporation, through its wholly-owned subsidiary, Beloit Corporation Asia Pacific, Incorporated, entered into two contracts with Asia Pulp and Paper Company (Asia Pulp), the largest Indonesian pulp and paper producer, to build and install two large fine paper machines in Indonesia. The complaint alleged that there were substantial cost overruns on these first two contracts because the officers and directors miscalculated various start-up and construction costs.

¶ 8. Beloit Corporation then decided to enter into two more contracts with Asia Pulp. However, due to its dissatisfaction with Beloit Corporation's performance on the first two contracts, Asia Pulp ultimately can-celled the second two contracts at a substantial loss to Beloit Corporation. The Trust alleged that the decision of the officers and directors to enter into these contracts resulted in a breach of the officers' and directors' fiduciary duties. The Trust further alleged that the officers and directors attempted to conceal the losses from the Asia Pulp contracts. The complaint acknowledged, however, that losses incurred from those contracts were disclosed on Beloit Corporation's March 1998 financial statements.

¶ 9. The Trust further alleged that, beginning in 1996, the officers and directors should have managed Beloit Corporation for the benefit of the unsecured creditors. The complaint alleges that Beloit Corporation was rapidly losing its market share in 1995. The complaint alleged that, by early 1996, Beloit Corporation was able to pay its outstanding debt only by virtue of hundreds of millions of dollars in loans from Harnis-chfeger. According to the complaint, Beloit Corporation was continuously insolvent as early as 1996. From 1995 to 1999, the officers and directors allegedly mismanaged Beloit Corporation and drove it further into insolvency by negligently entering into contracts the corporation was incapable of performing.

¶ 10. The Trust asserted that the officers and directors breached their fiduciaiy duties to Beloit Corporation and its creditors. The complaint alleged that, during the time when Beloit Corporation was insolvent or near insolvency, the directors and officers negligently allowed the corporation to enter into money-losing contracts, failed to keep adequate accounting systems to deal with the losses, continued operations after prudent managers would have shut the corporation down, and failed to disclose the corporation's losses.

¶ 11. The officers and directors answered the Trust's complaint and moved for judgment on the pleadings. Their motion alleged that the creditors1 breach of fiduciary duties claims failed to state claims upon which relief could be granted because no fiduciary duty was owed to the creditors. The motion further stated that both Beloit Corporation's and the creditors' breach of fiduciary duties claims were time-barred under the two-year statute of limitations set forth in Wis. Stat. § 893.57.

¶ 12. Judge Timothy G. Dugan, Milwaukee County Circuit Court, granted the officers' and directors' motion for judgment on the pleadings and dismissed the creditors' breach of fiduciary duty claims with prejudice. The circuit court concluded that the creditors' claims should be separated from the corporation's claims for purposes of analysis. With respect to the creditors' claims, the circuit court concluded that the breach of fiduciary duty claims alleged in the complaint were governed by Wisconsin law. The circuit court also stated'that the officers and directors of an ongoing entity owed no duty to its creditors. Thus, because Beloit Corporation was an ongoing corporation at the times relevant to this case, the officers and directors owed no duty to the creditors. Moreover, the circuit court noted that the creditors' claims were derivative of the corporation's claims. Thus, if the corporation was barred from asserting certain claims, the creditors were equally limited by such restrictions.

¶ 13. With respect to the corporation's claims, the circuit court dismissed the creditors' breach of fiduciary duty claims because the statute of limitations had expired. The court concluded that the statute of limitations in Wis. Stat. § 893.57 regarding intentional torts was applicable in this case. Citing the Boyd case, the court rejected the Trust's assertion that the adverse domination doctrine extended the applicable window of time through the June 1999 bankruptcy filing. The court asserted that the two-year extension permitted in 11 U.S.C. § 108(a) could not be used to toll the statute of limitations, as only a trustee or a debtor-in-possession had standing to assert § 108(a). The court noted that, when the bankruptcy court confirmed the plan of reorganization on May 18, 2001, Beloit Corporation ceased to he a debtor-in-possession, and its assets revested with Beloit Corporation until the Trust was formed in July. Thus, the circuit court reasoned, no one could take advantage of § 108(a).

¶ 14. A divided court of appeals reversed the circuit court's decision. The court of appeals, Judges Ralph Adam Fine and Charles B. Schudson, concluded that, under McGivern and other Wisconsin case law, officers and directors of an insolvent corporation have a duty to its creditors prior to the time the corporation actually goes out of business. Beloit, 266 Wis. 2d 388, ¶ 41. In analyzing the claims, the court of appeals did not separate the corporation's claims from the creditors' claims. Relying on the internal affairs doctrine and the factors outlined in Heath v. Zellmer, 35 Wis. 2d 578,151 N.W.2d 664 (Ct. App. 1967), the court of appeals concluded that Delaware law applied in this case. Moreover, the court of appeals sua sponte concluded that issue preclusion barred the defendants from raising a defense under 11 U.S.C. § 108(a). The court stated that the creditors' committee that originally filed this action could use § 108(a), because Beloit Corporation remained a debtor-in-possession until the reorganization plan went into effect. Thus, the court reasoned that the breach of fiduciary duty claims were timely under a two-year statute of limitations. The court concluded that § 108(a) extended the applicable statute of limitations to June 7, 2001, the second anniversary of Beloit Corporation's bankruptcy filing. The court noted that, because the Trust's complaint alleged that the officers and directors breached their fiduciary duties within two years preceding the 1999 bankruptcy filing, the claims were brought within the time period proscribed by the applicable statute of limitations.

¶ 15. In his dissent, Judge Ted E. Wedemeyer, Jr. stated that he would affirm the circuit court's holding that officers and directors of a corporation have a duty to creditors only when the corporation is both insolvent and no longer a going concern. The dissent noted that, although the majority relied on the internal affairs doctrine, no controlling Wisconsin law had adopted this doctrine. Given that Wis. Stat. § 180.1704 applies to all foreign corporations transacting business in Wisconsin, the dissent concluded that Wisconsin corporate law governed Beloit Corporation's activities.

¶ 16. In response to the court of appeals' decision, the officers and directors filed a motion for reconsideration. The court of appeals' majority denied the defendants' motion and slightly amended ¶ 9 of its decision, stating that the court based its decision on federal bankruptcy law. Thus, the court of appeals reasoned, it did not have to decide the issue of whether the discovery rule set forth in Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 335 N.W.2d 578 (1983), the non-corporate analog to the adverse domination doctrine, was applicable or which state statute of limitation was applicable.

HH I — I

¶ 17. We now consider which state's laws apply to the issues in this case, and whether the officers and directors of Beloit Corporation owed a duty to its creditors. Procedurally, this case centers on whether the circuit court appropriately granted judgment on the pleadings to the officers and directors. The issue of whether a complaint states a claim is a question of law, and we review the matter de novo. Watts v. Watts, 137 Wis. 2d 506 512, 405 N.W.2d 303 (1987). A motion to dismiss a complaint for failure to state a claim upon which relief can be granted tests the legal sufficiency of the complaint. Id. All facts pleaded and reasonable inferences that may be drawn from such facts are accepted as true, but only for purposes of testing the complaint's legal sufficiency. Id.; State v. Mauthe, 123 Wis. 2d 288, 292, 366 N.W.2d 871 (1985). Nevertheless, legal inferences and unreasonable inferences need not be accepted as true. Morgan v. Pa. Gen. Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660 (1979). A complaint should not be dismissed as legally insufficient unless it appears certain that a plaintiff cannot recover under any circumstances. Watts, 137 Wis. 2d at 512; Morgan, 87 Wis. 2d at 731.

¶ 18. The officers and directors assert that they did not owe a fiduciary duty to Beloit Corporation's creditors. The officers and directors contend that, given Wis. Stat. § 180.1704, Wisconsin law is applicable to the issues in this case. The officers and directors point out that Wisconsin has never adopted the internal affairs doctrine. Moreover, they contend that application of Wisconsin's choice of law principles clearly show that Wisconsin law is applicable. Under Wisconsin law, as explained in cases such as McGivern and Boyd, the officers and directors assert that they owe no duty to creditors unless the corporation is both insolvent and no longer a going concern. They state that the definition of insolvency found in Schmitz v. Wisconsin Soap Mfg. Co., 204 Wis. 149, 235 N.W. 409 (1931), should be used, because it allows for directors to take calculated business risks without having to change their strategies to protect creditors from month to month, simply because the corporation appears short on cash. The officers and directors contend that the facts alleged in the Trust's complaint prove that Beloit Corporation was a going concern because it was entering into contracts directly related to its product.

¶ 19. The officers and directors further assert that the Trust's claims are time-barred. According to them, the statute of limitations found in Wis. Stat. § 893.57 applies to both Beloit Corporation's and the creditors' breach of fiduciary duties claims. The officers and directors note that, since this action was filed on June 5, 2001, the claims are time-barred because the complaint alleges that all of the instances of breaches of fiduciary duties accrued before June 5, 1999. Further, they claim that 11 U.S.C. § 108(a) is inapplicable to the present case, as only trustees or debtors-in-possession may use § 108(a) to extend a statute of limitations. Because the Trust is a creditors' committee, and not a trustee or debtor-in-possession, the officers and directors contend that the Trust does not have the power to toll the statute of limitations under § 108(a). As further evidence of § 108(a)'s inapplicability, the officers and directors contend that the Bankruptcy Code does not contain a plain statement that unsecured creditors' committees may take advantage of the provision. They note that Beloit Corporation itself was no longer a debtor-in-possession after the bankruptcy plan was confirmed. Finally, the officers and directors assert that the theory of adverse domination does not toll the claims of Beloit Corporation or its creditors. The petitioners contend that adverse domination would apply to Beloit Corporation's claims only, not its creditors. According to the petitioners, Wisconsin rejected the adverse domination doctrine in Boyd, and Hansen's discovery rule did not overrule this holding.

¶ 20. According to the Trust, officers and directors owe a fiduciary duty to creditors when a corporation is in the vicinity of insolvency, regardless of whether Wisconsin or Delaware law is applicable. Nevertheless, the Trust asserts that the laws of Delaware should govern this case. The Trust rejects the officers' and directors' argument that Wisconsin law should apply, given Wisconsin choice of law principles. The Trust argues that if Wisconsin law is held to be applicable simply because Beloit Corporation had more significant contacts with Wisconsin, and the acts complained of occurred in this state, the laws governing officers and directors would vary in each individual case, according to where the relevant events occurred.

¶ 21. The Trust contends that application of the internal affairs doctrine would prevent such inconsistencies and protect parties' expectations. The Trust rejects the argument that Wis. Stat. § 180.1704 supplants the internal affairs doctrine and contends that, even applying Wisconsin choice of law principles, Delaware law is applicable. According to the Trust, Delaware has a significant interest in regulating the directors and officers of companies incorporated within its state. The Trust notes that Delaware law states that directors and officers owe a fiduciary duty to creditors before the corporation goes out of business. Under Delaware case law, the Trust asserts that such duty arises when a corporation is in the vicinity of insolvency. Moreover, even if this court concludes that Wisconsin law is applicable, the Trust contends that Wisconsin does not require that a corporation be both insolvent and no longer a going concern before a duty is owed to its creditors.

¶ 22. The Trust further asserts that the creditors' committee had the benefit of 11 U.S.C. § 108(a) because it brought this action on behalf of Beloit Corporation. The Trust rejects the defendants' contention that Beloit Corporation ceased to be a debtor-in-possession after the bankruptcy court confirmed the reorganization plan. Moreover, the Trust contends that its breach of fiduciary duty claims are governed by the six-year statute of limitations found in Wis. Stat. § 893.53. The statute of limitations, the Trust contends, was tolled by either the adverse domination doctrine or the discovery rule set forth in Hansen.

¶ 23. First, we must resolve the choice of law issue presented in this case. We begin our analysis by examining Wis. Stat. § 180.1704, which states, in relevant part, that Chapter 180, which governs Wisconsin's business corporations, "applies to all foreign corporations transacting business in this state." Although the court of appeals' majority opinion rejected § 180.1704's application to the circumstances presented in this case, we find the plain language of § 180.1704 helpful in discerning our legislature's intent with respect to corporations and choice of law principles. Section 180.1704 puts all corporations on notice that, when transacting business in Wisconsin, they are subject to Chapter 180. Given this clear statutory language, and Wisconsin's failure to adopt the internal affairs doctrine, either by statute or through case law, we conclude that the language of § 180.1704 supports the holding that Wisconsin law should be applied in determining whether the directors or offices breached their fiduciary duty to Beloit Corporation's creditors.

¶ 24. The application of Wisconsin law to this case is further supported by the choice of law principles articulated in Wisconsin's case law. In American Standard Ins. Co. v. Cleveland, 124 Wis. 2d 258, 263, 369 N.W.2d 168 (Ct. App. 1985), the court of appeals noted that there are two applicable tests when deciding which forum's laws apply. First, we must judge "whether the contacts of one state to the facts of the case are so obviously limited and minimal that application of that state's law constitutes officious intermeddling." Id. (citing Gavers v. Fed. Life Ins. Co., 118 Wis. 2d 113, 115-16, 345 N.W.2d 900 (Ct. App. 1984)). In deciding whether ápplication of Delaware laws would constitute officious intermeddling, we are required to look at Beloit Corporation's contacts with both Delaware and Wisconsin. While Beloit Corporation was incorporated under Delaware laws and filed bankruptcy in Delaware, that comprised the extent of Beloit Corporation's contact with Delaware. In contrast, Beloit Corporation's contacts with Wisconsin exceeded its isolated interaction with Delaware. Beloit Corporation's principal place of business was located in Wisconsin for 140 years. The majority owner of Beloit Corporation's stock, Harnis-chfeger, was also headquartered in Wisconsin. Moreover, every officer and director named in this case worked in Wisconsin for either Beloit Corporation or Harnischfeger, and the alleged breaches of fiduciary duty occurred within Wisconsin. After considering these factors, we conclude that application of Delaware law in this case would constitute officious intermed-dling with the laws of Wisconsin.

¶ 25. The second test involves examining the choice of law factors set forth in Heath' See Am. Standard, 124 Wis. 2d at 263. In Heath, we listed five factors and concluded that they should be considered when taking into account choice of law considerations, regardless of the precise area of law involved. Heath, 35 Wis. 2d at 596. See also Zelinger v. State Sand and Gravel Co., 38 Wis. 2d 98, 106, 156 N.W.2d 466 (1968). Such factors to be considered are (1) predictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum's governmental interests; and (5) application of the better rule of law. Heath, 35 Wis. 2d at 596. See State Farm Mut. Auto. Ins. Co. v. Gillette, 2002 WI 31, ¶ 53, 251 Wis. 2d 561, 641 N.W.2d 662. The importance of each factor will vary depending upon the specific facts presented in each case. Zelinger, 38 Wis. 2d at 106. We now discuss each of these factors as it relates to the present case.

¶ 26. With respect to the predictability factor, the court of appeals' majority opinion noted the numerous places, both domestic and foreign, where Beloit Corporation conducted business and cited Heath for the proposition that parties entering into a legal relationship need to "know that their rights will be the same, irrespective of the forum." Beloit, 266 Wis. 2d 388, ¶¶ 31-32 (quoting Heath, 35 Wis. 2d at 596). See also State Farm, 251 Wis. 2d 561, ¶ 53. Wisconsin Stat. § 180.1704 is clear on its face and puts corporations on notice that, if they choose to transact business in this state, they will be subject to Wisconsin law. Thus, we conclude that applying Wisconsin law to the present case will enhance predictability of results for corporations doing business in this state.

¶ 27. Moreover, the maintenance of interstate order will be retained by applying Wisconsin law to this case. In Heath, we noted that "(d)eference to the substantial interests of another state are necessary and for a state that is only minimally concerned with a transaction or tort to thrust its law upon the parties would be disruptive of the comity between states." Heath, 35 Wis. 2d at 596. See State Farm, 251 Wis. 2d 561, ¶ 55. Beloit Corporation's principal place of business was in Wisconsin for over 140 years. Although Beloit Corporation was incorporated and filed bankruptcy in Delaware, its contacts with Delaware end there. Certainly, Beloit Corporation has had more substantial contacts with Wisconsin in carrying out its routine business transactions for 140 years, and Wis. Stat. § 180.1704 leads to the conclusion that such contact is sufficient to render Wisconsin law applicable here.

¶ 28. Simplification of the judicial task means that a" 'simple and easily applied rule of substantive or procedural law is to be preferred.'" Id., ¶ 59 (citation omitted). In Heath, we noted that "a court's task is rarely simplified when the lawyers and judges must apply themselves to foreign rather than forum law." Heath, 35 Wis. 2d at 597. Wisconsin law regarding whether officers and directors owe a fiduciary duty to a corporation's creditors is not complex or unmanageable. Thus, application of Wisconsin law in this case will simplify our task of reaching a decision in this case.

¶ 29. Further, this state's governmental interests will be advanced by applying Wisconsin law. In Heath, we stated the following:

(E)ven when we are confronted with the law of another jurisdiction and that jurisdiction is admittedly a "concerned jurisdiction" as determined by our analysis of relevant contacts, forum law should continue to be a primary concern of the forum court for "Courts are instruments of state policy . . . ," and it is the duty of a Wisconsin court to identify and effectuate Wisconsin policies.

Id. (citation omitted). See also Hunker v. Royal Indem. Co., 57 Wis. 2d 588, 603, 204 N.W.2d 897 (1973).

¶ 30. We further noted that "(i)f it appears that the application of forum law will advance the governmental interest of the forum state, this becomes a major, though not in itself a determining, factor in the ultimate choice of law." Heath, 35 Wis. 2d at 598. Certainly, as evidenced by the enactment of Wis. Stat. § 180.1704, Wisconsin has an interest in having its laws applied to corporations, and their officers and directors, transacting business within the state.

¶ 31. Finally, Wisconsin law regarding liability to creditors is the better law and should be applied in this case. "(C)ourts will select the law that most adequately does justice to the parties and has the greatest likelihood of being applicable with justness in the future." Id. Wisconsin laws regarding a corporation's duty to its creditors are not obsolete or senseless, as contemplated by Heath. Since Beloit Corporation's activities that are the subject of this case primarily occurred in Wisconsin, it makes sense to apply the laws of this state.

¶ 32. Based on the abovementioned factors, we conclude that Wisconsin law is applicable in this case. We note that, although Beloit Corporation had contact with Delaware for both its incorporation and its bankruptcy, the continuous nature of the contacts of Beloit Corporation and its officers and directors with Wisconsin for the duration of its 140-year business outweigh any interests supporting the application of Delaware law to this case.

¶ 33. We further conclude that Wisconsin law regarding fiduciary duties to creditors governs this case as well. The Trust contends that Hinz v. Van Dusen, 95 Wis. 503, 70 N.W. 657 (1897), stands for the proposition that there is no requirement that a corporation must no longer be a going concern, in order for it to be declared insolvent. The Trust cites the following language in support of this argument:

It is when a corporation ceases to be a going institution, or its business is in such shape that its directors know, or ought to know, that suspension is impending, that its assets in the hands of such directors become, by equitable conversion, a trust fund for the benefit of its general creditors ....

Id. at 508.

¶ 34. Nevertheless, we conclude that the Trust's argument misses its mark, as subsequent cases interpreting and applying our Hinz decision clearly contemplate that a corporation must be both insolvent and no longer a going concern before a duty is owed to the corporation's creditors. In Hamilton v. Menominee Falls Quarry Co., 106 Wis. 352, 81 N.W. 876 (1900), this court stated the following:

It is now settled in this state, as the result of a series of decisions, that the directors of a going corporation are in no sense trustees for the corporate creditors in the management of the corporate business, even though the corporation be insolvent; and that it is only when the corporation ceases to be a going concern, or the situation is such that its directors know, or ought to know, that suspension is impending, that its assets become a trust fund, so that directors may not prefer themselves over general creditors ....

Id. at 360 (citing Hinz, 95 Wis. at 508).

¶ 35. Moreover, in Slack v. Northwestern National Bank of Superior, 103 Wis. 57, 79 N.W. 51 (1899), this court stated:

It has been held by this court in a number of cases that when a corporation is insolvent and has ceased to be a going concern, and its officers know, or ought to know, that suspension is impending, then such officers are so far trustees that they may not transfer corporate property to themselves in payment of debts due them, and that such a transfer constitutes a fraud in law.

Id. at 64 (citing Hinz, 95 Wis. at 508). See also Killen v. Barnes, 106 Wis. 546, 564, 82 N.W. 536 (1900).

¶ 36. Our decision in Boyd further supports the notion that a duty is owed to a corporation's creditors only when the corporation is insolvent and no longer a going concern. In Boyd, creditors brought suit against an insolvent corporation to wind up its affairs after the officers and directors of such corporation grossly mismanaged its financial affairs. Boyd, 116 Wis. at 165-66. We noted that "the managing officers of a corporation are at all times trustees for the corporation and its stockholders, and also for the creditors after the corporation is adjudged insolvent." Id. at 173. This court granted a rehearing in the case to determine whether the statute of limitations had run in favor of the officers and directors. In this court's second opinion in Boyd, we noted that our previous opinion did not hold that officers and directors of a corporation that remained a going concern were trustees of its creditors. Id. at 178. We further explained that "(n) either the corporation nor its governing body, so long as it is a going concern, holds its property in trust for creditors." Id. at 181.

¶ 37. While the abovementioned cases discussed whether officers and directors were trustees or held property in trust for the creditors when the corporation was still a going concern, we conclude that the reasoning in such cases is equally applicable to determining whether a fiduciary duty is owed to such creditors. We disagree with the court of appeals' conclusion that "Boyd and the cases upon which it relied merely recognized that Wisconsin law would not impose a trust on the property of a corporation that, although financially distressed, was still 'a going concern.'" Beloit, 266 Wis. 2d 388, ¶ 41 n.7 (quoting Boyd, 116 Wis. at 170-74). Having the benefit of previous case analyses, it seems clear that a fiduciary duty on the part of officers and directors is owed to a corporation's creditors, only after the corporation is both insolvent and no longer a going concern.

¶ 38. Our decision in McGivern further solidified this conclusion based on this line of cases by holding that officers and directors owe no fiduciary duty to creditors, unless the corporation is insolvent and no longer a going concern. In McGivern, a creditor sued, among others, the former president of a corporation to which she had loaned a total of $67,000. McGivern, 77 Wis. 2d at 249. The corporation ultimately went out of business and failed to repay the creditor. Id. However, during the time the former president was associated with the corporation, it remained solvent and a going concern. Id. at 250.

¶ 39. We noted that, while "some have viewed officers and directors of a solvent corporation as trustees or agents for creditors of the corporation, this court has not adopted this view." Id. at 253. Although we noted that language in Haywood v. Lincoln Lumber Co., 64 Wis. 639, 26 N.W. 184 (1885) could be interpreted as supporting a fiduciary relationship between officers and directors and creditors generally, regardless of the solvency status of the corporation, we concluded that our "(d)ecisions after Haywood have moved away from the concept of a director's fiduciary duty to creditors except perhaps where the corporation was insolvent and no longer a going concern." McGivern, 77 Wis. 2d at 255 (citing Killen, 106 Wis. at 564; Boyd, 116 Wis. at 181; and Schmitz, 204 Wis. at 154). See also Malloy v. Korf, 352 F.Supp. 569, 572 (E.D. Wis. 1972). Thus, our conclusion in McGivern was consistent with our decisions in Boyd and other cases discussing the duties of officers and directors to the corporation's creditors.

¶ 40. Here, we hold that Beloit Corporation was a going concern during the relevant time period. We conclude that the two-year statute of limitations set forth in Wis. Stat. § 893.57 is applicable, because a breach of fiduciary duty claim involves an intentional tort. Thus, the applicable window of time is from June 7, 1997 through June 7, 1999, the date that Beloit Corporation filed for bankruptcy protection. In the complaint, the only significant occurrence alleged during this time frame was the disclosure of Beloit Corporation's losses from the Asia Pulp contracts in March 1998. However, Beloit Corporation was still a going concern at this time; thus, any claim asserted by Beloit Corporation's creditors for breach of fiduciary duty during this time frame is not actionable, and any claim on behalf of Beloit Corporation resulted in no injury to the corporation. Accordingly, 11 U.S.C. § 108(a) has no application to the claims made here.

¶ 41. While we invited the parties to address the matter of issue preclusion and the position taken by the court of appeals in this case, it is not necessary that we resolve this issue in order to reach our holding. Thus, we decline to delve into a lengthy analysis and discussion regarding issue preclusion here.

I — I I — I hH

¶ 42. In summary, we conclude that, given the legislature's enactment of Wis. Stat. § 180.1704 and the prevailing Wisconsin case law regarding choice of law, Wisconsin law applies in this case. Primarily relying on the decisions of Boyd v. Mutual Fire Ass'n, 116 Wis. 155, 90 N.W. 1086 (1902), and McGivern v. Amasa Lumber Co., 77 Wis. 2d 241, 252 N.W.2d 371 (1977), we further conclude that, in order for officers and directors to have a fiduciary duty to creditors, a corporation must be both insolvent and no longer a going concern. Because Beloit Corporation was a going concern during the applicable two-year period in which a claim could have been brought, we conclude that its officers and directors owed no duty to its creditors during that time. Given these conclusions, we do not need to address the court of appeals' holding regarding issue preclusion in this case.

By the Court. — The decision of the court of appeals is reversed.

¶ 43. DAVID T. PROSSER, JR., J., did not participate.

       Unless otherwise indicated, all references to United States Code are to the 1999 edition. In relevant part, 11 U.S.C. § 108(a) states:
      If applicable nonbankruptcy law, an order entered in a nonbank-ruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence . . . only before the later of —
      (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
      (2) two years after the order for relief.

       Unless otherwise indicated, all references to Wisconsin Statutes are to the 1999-2000 edition. In relevant part, Wis. Stat. § 180.1704 states: "(T)his chapter applies to all foreign corporations transacting business in this state on or after January 1, 1991."

       After emerging from bankruptcy, Harnischfeger changed its name to Joy Global, Incorporated.

       Only Chokey, Readinger, Messier, and Daffin filed the motion for judgment on the pleadings with the circuit court.

       The parties in this case ultimately entered into a stipulation dismissing the Trust's fourth and fifth claims, which alleged that the officers and directors conspired to commit a fraudulent conveyance, and which sought to declare that any officer release of liability was null and void, respectively. The stipulation and order stated that the claims were dismissed without prejudice. Moreover, the Trust was not permitted to reassert its fourth and fifth claims until the date of the ultimate disposition of any appeal. As these claims are not material to this appeal, we decline to further address them in this opinion.

       Wisconsin Stat. § 893.57 states in relevant part: "An action to recover damages for libel, slander, assault, battery, invasion of privacy, false imprisonment or other intentional tort to the person shall be commenced within 2 years after the cause of action accrues or be barred."

       The adverse domination doctrine involves an equitable principle to the effect that the statute of limitations on a breach of fiduciary duty claim against officers and directors is tolled as long as a corporate plaintiff is controlled by the alleged wrongdoers. The statute is tolled until a majority of the disinterested directors discover or are put on notice of the claim against the wrongdoers. This doctrine is available to benefit only the corporation. Black's Law Dictionary 54 (7th ed. 1999).

       The internal affairs doctrine is a conflict of laws rule that states that in disputes involving a corporation and its relationships with its shareholders, directors, officers, or agents, the law to be applied is the law of the state of incorporation. Black's Law Dictionary 820 (7th ed. 1999).

       In Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 560, 335 N.W.2d 578 (1983), we adopted the discovery rule for all tort actions other than those governed by a statute. We stated that "(s)uch tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first."

       Chokey, Readinger, Messier, and Daffin filed a brief for the petitioners, which Grade and Corby joined in its entirety. Engelsman also adopted his co-petitioners arguments but filed an additional brief regarding the question of issue preclusion.

       The officers and directors also included arguments regarding issue preclusion. Because we do not discuss this issue in this opinion, those arguments have been omitted.

       Wisconsin Stat. § 893.53 states in relevant part: "An action to recover damages for an injury to the character or rights of another, not arising on contract, shall be commenced within 6 years after the cause of action accrues, except where a different period is expressly prescribed, or be barred."

       The Trust also included arguments regarding issue preclusion. Because we do not discuss this issue in this opinion, those arguments have been omitted.

       The court of appeals' majority stated that, except for Wis. Stat. §§ 180.0740-180.0747 regarding shareholder derivative actions, provisions regulating the liability of officers and directors for breach of fiduciary duty to a corporation were absent from Chapter 180. The court of appeals' majority further stated that, under §§ 180.0740-180.0747, the laws of the state of incorporation are applicable. Beloit Liquidating Trust v. Grade, 2003 WI App 176, ¶ 33, 266 Wis. 2d 388, 669 N.W.2d 232.

       The factors set forth in Heath v. Zellmer, 35 Wis. 2d 578, 595, 151 N.W.2d 664 (Ct. App. 1967) were suggested by Robert A. Leflar in his article, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L. Rev. 267 (1966).

       This court defined insolvency in Schmitz. We noted that insolvency
      does not mean the inability of the concern or person giving the alleged preference to meet current obligations as they become due in the regular course of business. Neither does it mean that the company or person is presently operating its business at a loss. It simply means that the assets of the alleged insolvent are insufficient, at a fair valuation, to pay his debts.

        Schmitz v. Wis. Soap Mfg. Co., 204 Wis. 149, 153, 235 N.W. 409 (1931) (emphasis added). McGivern relied on this definition of insolvency provided in Schmitz. We reaffirm that this is the appropriate test for insolvency, as it permits officers and directors of a corporation sufficient latitude to take calculated business risks.