author: BROWN, PJ.

text:
    Maple Leaf Farms, Inc., Plaintiff-Appellant, v. State of Wisconsin-Department of Natural Resources, Defendant-Respondent.
    Court of Appeals

      No. 00-1389.

      Oral argument April 24, 2001. —
    Decided July 3, 2001.

    2001 WI App 170
    (Also reported in 633 N.W.2d 720.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of and oral argument by Matthew H. Quinn oí Hand & Quinn, S.C. of Racine.
    On behalf of the defendant-respondent, the cause was submitted on the brief of John S. Greene, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by John S. Greene.

    An nonparty brief was filed by David A. Crass, Mary C. Turke and Porter J. Martin of Michael Best & Friedrich LLP of Madison.
    Before Brown, PJ., Nettesheim and Snyder, JJ.

       Petition to review denied 9-19-01.

   BROWN, PJ.

¶ 1. Maple Leaf Farms, Inc. (Maple Leaf) appeals from a trial court order upholding the administrative determination by the Wisconsin Department of Natural Resources (DNR) under the Wisconsin Pollution Discharge Elimination System (WPDES). Specifically, Maple Leaf contends that the DNR has no authority to prescribe conditions under which it landspreads off-site manure generated from its duck-growing facilities. We affirm the decision of the circuit court, which upheld the DNR's authority to regulate Maple Leafs landspreading of manure.

FACTS

¶ 2. Maple Leaf is the largest duck producer and processor in Wisconsin. It operates two duck-growing facilities in Racine County. The Downy Duck facility, located in the Town of Dover, houses 100,000 ducks and generates 34,000 tons of manure annually. The Main Farm, located in the Town of Yorkville, houses 250,200 ducks and generates 57,000 tons of manure annually. The operation of each of these facilities results in an actual or potential "discharge of pollutants" into the waters of the state within the meaning of Wis. Stat. § 283.01(5) (1999-2000). Because of their size, both Downy Duck and Main Farm are "point sources" subject to the WPDES program, specifically as concentrated animal feeding operations (CAFO) within the meaning of § 283.01(12)(a). Both facilities are also large animal feeding operations within the meaning of Wis. Admin. Code § NR 243.04(13).

¶ 3. The manure produced by Maple Leafs duck operations is valuable as a nutrient supplement for agricultural crops. Some of the manure is applied on fields located on company property, but Maple Leaf also contracts with a number of farmers for land application of the waste. The off-site landspreading is undertaken by Maple Leaf. It transports the manure and applies the waste to the fields using a large piece of equipment called a terregator. The farmers pay Maple Leaf according to the quantity of manure that Maple Leaf applies to their fields.

¶ 4. On June 25, 1997, the DNR issued WPDES wastewater permits to Downy Duck and Main Farm. These permits require Maple Leaf to maintain runoff control structures and to implement procedures for the storage and disposal of animal wastes, including an animal waste management plan. See Wis. Admin. Code §§ NR 243.13, 243.14. Maple Leaf sought and obtained a contested case hearing on numerous aspects of the two permits. On this appeal, Maple Leaf raises a single issue: the DNR's authority to regulate the land application of manure on off-site croplands.

STANDARD OF REVIEW

¶ 5. This court reviews the agency's decision rather than the decision of the circuit court. Sea View Estates Beach Club, Inc. v. DNR, 223 Wis. 2d 138, 145, 588 N.W.2d 667 (Ct. App. 1998). An agency's decision must be upheld when it is based on an accurate interpretation of the law and supported by substantial evidence in the record. Wis. Stat. § 227.57(5), (6). Courts apply one of three levels of deference to an agency's interpretation of a statute: great weight, due weight or de novo. Secor v. LIRC, 2000 WI App 11, ¶¶ 9-10, 232 Wis. 2d 519, 606 N.W.2d 175. The de novo standard applies if construction of the statute involves interpreting the scope of an agency's power. Capoun Revocable Trust v. Ansari, 2000 WI App 83, ¶ 6, 234 Wis. 2d 335, 610 N.W.2d 129. The parties agree that this appeal addresses the scope of the DNR's authority under the WPDES permit program. Therefore, we engage in a de novo analysis of the applicable law.

DISCUSSION

¶ 6. This case arises in the context of striking changes in the livestock production industries. "The character of livestock production in many parts of the world ... is changing rapidly and dramatically. Economies of scale, specialization, and regional concentration in all major livestock production sectors have fueled a trend toward fewer, larger operations that confine thousands of animals on limited acreage." Larry C. Frarey and Staci J. Pratt, Environmental Regulation of Livestock Production Operations, 9 Nat. Resources & Env't 8 (1995). Land disposal is the prevailing manure management strategy for most of these facilities. Id. at *11. Animal waste disposal' is thus a prime concern in our state and across the nation. See generally J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27 Ecology L.Q. 263, 285-87 (2000).

¶ 7. According to expert testimony elicited at the administrative hearing, landspreading manure improperly results in the release of pollutants to surface water or groundwater. If applied near streams, or on fields with drainage tile systems, runoff of pollutants into surface waters is likely. Soluble and fixed phosphorus can be carried away by surface water runoff and discharged into nearby surface waters. Runoff of phosphorus adds to the eutrophication of surface water, a condition where the dissolved nutrients stimulate excessive plant growth which can cause oxygen loss and subsequent harm to the fishery. When nitrogen leaches into groundwater, high levels of nitrate-nitrogen can make groundwater an unsafe source of drinking water.

¶ 8. To determine whether the DNR may regulate off-site manure applications, we first must determine if the exercise of such authority has been granted by the legislature. This requires the interpretation of the WPDES enabling statute contained in Wis. Stat. ch. 283. If the statute confers this authority, we must then look to Wis. Admin. Code ch. NR 243, which contains the rules governing animal waste management, to determine if these rules encompass off-site manure applications.

¶ 9. We preface our analysis with a brief review of the federal and state water pollution control programs. The federal Clean Water Act (CWA) prohibits the discharge of any pollutant by any person to navigable waters from any point source. 33 U.S.C. §§ 1311(a), 1362(12) (2000). "Pollutant" includes "solid waste" and "agricultural waste." Id. at § 1362(6). A "point source" includes "any discernible, confined and discrete conveyance" such as a ditch, channel or conduit, as well as any "concentrated animal feeding operation" (CAFO). Id. at § 1362(14). The CWA allows a point source to discharge pollutants only pursuant to the terms of a National Pollutant Discharge Elimination System (NP-DES) permit. In contrast to most industrial and municipal point sources that discharge effluent under NPDES permits, CAFOs are subject to a "no discharge" effluent limitation. Frarey & Pratt, supra, at *9. The "best available technology economically achievable" used by most CAFOs to satisfy the no discharge effluent limitation consists of one or more large lagoons or holding ponds to capture storm water runoff and process generated wastewater. Id. at *10.

¶ 10. The CWA authorizes states to implement their own permit programs as long as the state programs impose standards at least as stringent as those of the federal program. Niagara of Wis. Paper Corp. v. DNR, 84 Wis. 2d 32, 38, 268 N.W.2d 153 (1978). The WPDES program differs from the CWA in two important respects. First, it defines waters of the state, which are subject to regulatory protection, to include groundwater, Wis. Stat. § 283.01(20), whereas waters of the United States, as defined in 40 C.F.R. § 122.2 (2001), do not include groundwater. Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994) (congressional decision to exclude groundwater from CWA based upon complex jurisdictional issues). Second, the Wisconsin legislature has authorized the DNR to establish more stringent effluent limitations if necessary to meet water quality standards. Wis. Stat. § 283.13(5).

¶ 11. According to Maple Leaf, a key provision of the enabling statute is the uniformity provision contained in Wis. Stat. § 283.11(2):

[A] 11 rules promulgated by the [DNR] under this chapter as they relate to point source discharges, effluent limitations, municipal monitoring requirements, standards of performance for new sources, toxic effluent standards or prohibitions and pretreatment standards shall comply with and not exceed the requirements of the [CWA] and regulations adopted under that act.

Maple Leaf asserts that because the federal program does not regulate off-site manure spreading, the uniformity provision effectively eliminates the DNR's authority to impose permit conditions on this activity.

¶ 12. The DNR asserts that its authority to regulate this activity originates in a broad delegation of power enunciated in Wis. Stat. § 283.001, and its authority to condition permits on compliance with groundwater protection standards under Wis. Stat. § 283.31. The DNR further asserts that the uniformity provision is not applicable to permit conditions that are neither standards nor effluent limitations per se. We now turn the discussion to the legislation that establishes the WPDES program.

¶ 13. "An administrative agency has only those powers which are expressly conferred or can be fairly implied from the statutes under which it operates." Oneida County v. Converse, 180 Wis. 2d 120, 125, 508 N.W.2d 416 (1993). Wisconsin Stat. ch. 283 does not expressly authorize the DNR to regulate off-site manure applications; therefore, we must determine whether such regulatory power is fairly implied from the language of the statute. "Any reasonable doubt as to the existence of an implied power in an agency should be resolved against the exercise of such authority." Kimberly-Clark Corp. v. PSC, 110 Wis. 2d 455, 462, 329 N.W.2d 143 (1983). Furthermore, in construing a statute, the main goal is to discern the intent of the legislature and give it effect. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). We first look to the plain language of the statute; only if it is ambiguous do we turn to extrinsic aids such as legislative history. State ex rel. Dieckhoff v. Severson, 145 Wis. 2d 180, 189-90, 426 N.W.2d 71 (Ct. App. 1988).

¶ 14. Wisconsin Stat. § 283.001(1) sets forth the policy and purpose of Wisconsin's WPDES program. It recognizes that

[u]nabated pollution of the waters of this state continues to .. . endanger public health; to threaten ñsh and aquatic life, scenic and ecological values; and to limit the domestic, municipal, recreational, industrial, agricultural and other uses of water. It is the policy of this state to restore and maintain the chemical, physical, and biological integrity of its waters to protect public health, safeguard fish and aquatic life and scenic and ecological values, and to enhance the domestic, municipal, recreational, industrial, agricultural, and other uses of water.

¶ 15. The legislature granted the DNR "all authority necessary to establish, administer and maintain a state pollutant discharge elimination system to effectuate the policy set forth under sub. (1) and consistent with all the requirements of the federal water pollution control act." Wis. Stat. § 283.001(2). This broad grant of power authorizes the DNR to implement a permit program that protects groundwater as well as surface water. As we noted previously, in this respect, the state regulatory program is broader and more stringent than the federal program. This far-reaching power complements the DNR's broad regulatory power to protect waters of the state in other legislative enactments as well. Reading § 283.001(1) and (2) together, we find that the enabling statute clearly and unambiguously empowers the DNR to regulate where groundwater may be affected by the discharge of pollutants. We perceive no implication that the legislature intended to limit the DNR's authority to protect waters of the state to discharges of pollutants occurring on sites owned by the discharger.

¶ 16. Maple Leaf asserts that the uniformity provision constricts the authority of the DNR to regulate off-site by providing that state rules "as they relate to point source discharges [and] effluent limitations . . . shall comply with and not exceed the requirements of the federal water pollution control act. . . and regulations adopted under that act." Wis. Stat. § 283.11(2). This provision appears in subchapter III entitled "Standards; Effluent Limitations." We agree with the position of the DNR that this provision applies only where the federal program regulates the activity in question, for example, where the EPA has imposed specific discharge limits for defined categories of industrial discharges and the DNR has superimposed more stringent limits. It would not apply where the federal government has chosen not to regulate at all.

¶ 17. In addition, all parties agreed at oral argument that the permit conditions are not effluent limitations for purposes of the exception to the uniformity provision contained in Wis. Stat. § 283.13(5) of sub-chapter III. If these permit conditions are not effluent limitations under the exception, then they cannot be effluent limitations for any other purpose under sub-chapter III, including the uniformity provision. The case law cited by Maple Leaf supports our interpretation.

¶ 18. In Niagara of Wisconin Paper Corp., 84 Wis. 2d at 39-40, the EPA established specific phosphorus effluent standards for paper mills nationwide which were less stringent than the standards contained in permits the DNR had previously issued to Wisconsin paper producers. The court ruled that the DNR was required to modify the permits to conform to the phosphorus standards established by the EPA. Id. at 56-57. Maple Leaf has not presented us with any similar EPA categorical standards or limitations that are applicable in this case.

¶ 19. The other case cited by Maple Leaf, Wisconsin Electric Power Co. v. DNR, 93 Wis. 2d 222, 287 N.W.2d 113 (1980), also involved a categorical effluent limitation. That case involved challenges to chlorine limits in wastewater discharge permits issued to a Wisconsin utility for discharges from its power plants. The court held that the limits were de facto rules, although they had not been formally promulgated. Id. at 240. Because the state chlorine limits were more stringent than the federal limits, the court held that the permits violated the uniformity provision. Id. at 242-43.

¶ 20. Maple Leafs uniformity argument is most compelling for end-of-pipe discharges where the EPA imposes specific discharge limits from defined categories of pollution sources, such as paper mills and power plants. It is not as compelling in this instance where the federal government has chosen not to regulate and where the permit conditions involve not effluent limitations per se but rather preventive environmental practices, including maintenance of a manure management plan, a daily log and an annual spreading report. Therefore, we conclude that in the context of regulating a CAFO's manure applications, the broad grant of authority contained in Wis. Stat. § 283.001(2) is not limited by Wis. Stat. § 283.11(2).

¶ 21. Having concluded that the uniformity provision is not relevant to our statutory analysis, we must now consider whether the DNR's authority in Wis. Stat. § 283.001(2) can be harmonized with Wis. Stat. § 283.31 for conferring authority to regulate off-site applications of manure. Section 283.31 is found in subchapter IV entitled "Permits," and contains the following relevant language:

283.31 Water pollutant discharge elimination system; permits, terms and conditions. (1) The discharge of any pollutant into any waters of the state ... by any person is unlawful unless such discharge ... is done under a permit issued by the department under this section. ...
(3) The department may issue a permit under this section for the discharge of any pollutant... upon condition that such discharges will meet all the following, whenever applicable:
(a) Effluent limitations.
(b) Standards of performance for new sources.
(c) Effluent standards, effluent prohibitions and pretreatment standards.
(d) Any more stringent limitations, including those:
1. Necessary to meet federal or state water quality standards, or schedules of compliance established by the department....
(f) Groundwater protection standards established under ch. 160.
(4) The department shall prescribe conditions for permits issued under this section to assure compliance with the requirements of sub. (3)....

¶ 22. Looking at Wis. Stat. § 283.31(1), the first sentence explicitly states that if a person discharges any pollutant into waters of the state, such discharge will be unlawful unless it is done in compliance with a permit. Wisconsin Stat. § 283.01(5) defines "discharge of pollutants" as the addition of any pollutant to the waters of this state from any point source. Section 283.01(12) states that a "point source" means either of the following:

(a) A discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation . . . from which pollutants may be discharged . .. into the waters of the state ....
(b) A discernable, confined and discrete conveyance of storm water for which a permit is required under s. 283.33(1). (Emphasis added.)

¶ 23. Maple Leaf does not challenge that it is a concentrated animal feeding operation and therefore a point source subject to the permit requirements of Wis. Stat. § 283.31. Moreover, Maple Leaf does not challenge the DNR's authority under this statute to regulate its spreading of manure on land that it owns. We understand Maple Leaf to argue that this statute cannot be used to authorize the DNR to issue a permit regulating manure applications to off-site croplands. The plain language of the statute does not distinguish between discharges that occur off-site or on-site. The statute's focus is on whether there is a discharge from a point source to waters of the state. We focus our inquiry therefore on whether landspreading of manure off-site is a discharge to waters of the state by Maple Leaf. If we conclude that it is not, then the DNR has no authority under the statute to regulate this activity by permit.

¶ 24. There is no Wisconsin case which has analyzed landspreading practices under the WPDES permit program. In Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114 (2nd Cir. 1994), the Second Circuit held that the entire farm of a large dairy, not just the barns and pens, was a point source requiring an NPDES permit. Moreover, the Second Circuit ruled that the dairy's method of applying animal manure to its farmlands was a point source because the manure spreaders themselves were point sources. Id. at 119. Refusing to apply the CWA's exemption for agricultural storm water discharge, the court determined that any other result would allow farmers to get away with spreading animal waste on fields without regard for absorption capacity or runoff potential. See id. at 120-21.

¶ 25. Similarly, in Community Ass'n for Restoration of the Environment v. Henry Bosma Dairy, 65 F. Supp. 2d 1129 (E.D. Wash. 1999), the district court held that wastes removed from NPDES-regulated manure holding ponds and spread on land as fertilizer remain subject to the continuing jurisdiction of the NPDES permit. See id. at 1155. As a result of Bosma, noncompliance with a permit's waste management practices that results in discharges of runoff from manure laden fields is illegal.

¶ 26. We find these cases helpful to our determination of whether Wis. Stat. § 283.31 authorizes the DNR to issue permits that encompass manure applications to off-site croplands. We agree with the courts in Bosma and Southview Farm that a CAFO includes not only the ground where the animals are confined, but also the equipment that distributes and/or applies the animal waste produced at the confinement area to fields outside the confinement area. Any overapplication of manure by Maple Leaf through its landspreading activities would then be a discharge, either because of runoff to surface waters or percolation of pollutants to groundwater. Because the off-site croplands are used by Maple Leaf to dispose of waste produced at its on-site facility, the permit conditions imposed on Maple Leaf to enforce groundwater protection standards are as applicable to Maple Leafs off-site landspreading operations as they are on-site. Therefore, because a CAFO's overapplication of manure to fields can be a discharge to groundwater under the statute, we determine that the DNR has authority to issue permits regulating Maple Leafs off-site landspreading operations.

¶ 27. Under our analysis of Wis. Stat. §§ 283.001 and 283.31, we conclude that the legislature has conferred authority on the DNR to regulate discharges, in the form of overapplication of manure, by CAFOs regardless of whether the discharge occurs on land owned by the CAFO. We now must determine if Wis. Admin. Code ch. NR 243, governing animal waste management practices, implements this authority.

¶ 28. We begin by examining the purpose of the animal waste management regulation. "The purpose of this chapter is to establish design standards and accepted animal waste management practices for the large animal feeding operations category of point sources." Wis. Admin. Code § NR 243.01(1). Subsection (2) provides that "[o]nly those animal feeding operations which improperly manage their wastes and as a result cause ground or surface water pollution, or those subject to the requirements for large animal feeding operations will be regulated under this code." Wisconsin Admin. Code § NR 243.02 further states that this chapter applies to discharges of pollutants resulting from large animal feeding operations within the subcategories specified in § NR 243.11, Table 2. There is no question that Maple Leaf qualifies as a large animal feeding operation category of point source under these provisions and is therefore subject to the permitting requirements contained in the chapter. Like the enabling statute, these provisions are not concerned with where the discharge occurs with respect to its off-site or on-site location.

¶ 29. Subchapter II of the regulation requires an owner or operator of a large animal feeding operation to apply for a permit with the DNR. As part of the permit process, the applicant is required to submit an animal waste management plan for approval. In approving the management plan, the DNR is required to consider the following factors:

1. Potential impacts on waters of the state due to overapplication of the animal wastes.
2. Soil limitations such as permeability, infiltration rate, drainage class and flooding hazard.
3. Volume and water content of the waste material.
4. Available storage capacity and method of application.
5. Nutrient requirements of the crop or crops to be grown on the fields utilizing the animal wastes.

Wis. Admin. Code § NR 243.14(2)(a). The DNR views these measures as creating a pollution prevention program with respect to large animal feeding operations. We agree with the DNR that the effect of these measures is to require permit holders to implement sound environmental practices as a means to enforce compliance with surface and groundwater standards. See Wis. Stat. § 283.31(3)(f) (conditioning issuance of permits on compliance with groundwater protection standards established by DNR). In other words, the information sought by the DNR in the waste management plan is the basis for preventing overapplication of manure. Notably, the plain language of§NR 243.14(2)(a)l requires the DNR to consider the "[potential impacts on waters of the state due to overapplication" and does not distinguish between on-site and off-site activities. In the same vein, § NR 243.14(2)(a)5 refers generically to fields utilizing the animal wastes; there is no distinction made with respect to where the fields are located or who owns them. This reinforces our interpretation of the regulations that the permit conditions may encompass a permit holder's landspreading activities whether they occur on-site or off-site.

¶ 30. Maple Leaf and the amici curiae argue that even if the DNR has authority to impose permit conditions for off-site manure applications, it must do so by promulgating specific permit conditions by rule pursuant to Wis. Stat. ch. 227. See Wis. Elec. Power Co., 93 Wis. 2d at 236 (finding chlorine limitations contained in WPDES permits to be de facto rules requiring formal rulemaking). We find no merit in this position. In Wisconsin Electric Power Co., the DNR had imposed chlorine limitations in permits issued to power companies. These chlorine limitations were industrial point source effluent limitations which the legislature had explicitly directed must be promulgated by rule. This case, as we have already explained, involves general reporting requirements rather than effluent limitations. Moreover, while Wis. Stat. § 283.31(4) directs the. DNR to prescribe conditions for permits to assure compliance with water quality standards, the statute does not require the DNR to promulgate such conditions by rule.

¶ 31. Maple Leaf appears to argue that all permit language must be formally promulgated by rule. Carrying this logic further would result in a situation where permit writers could include in permits only restatements of the precise language contained in the administrative code. This would make the issuance of permits an untimely, cumbersome and inflexible exercise that would not benefit permit holders at all. It makes more sense that the legislature would allow the DNR flexibility in drafting conditions in permits. This allows the DNR to work individually with permit holders to fashion permits that more closely balance the specific needs of the permit holder with public environmental concerns.

¶ 32. In fact, the record reveals that Maple Leaf received the benefit of such flexibility in its permits. While most permit holders are required to submit additional spreading sites to the DNR for approval, Maple Leaf is allowed to use a new site seven days after the DNR receives its request if the DNR has not responded within the seven-day time frame. The testimony before the ALJ established that this was a concession by the DNR and no such specific turn-around time is in similar permits issued by the DNR. The ALJ reduced this turn-around time even further, to three days. This unusually beneficial term belies Maple Leafs assertion that permit conditions should be formally promulgated by rule.

¶ 33. In any event, we agree with the DNR that the conditions that Maple Leaf objects to are essentially restatements of the factors listed in Wis. Admin. Code § NR 243.14(2) and the incorporated technical guidelines and other promulgated water quality and protection standards. We detect no language in the permit conditions that strays so far from the language or requirements of ch. NR 243 that the conditions can be considered new rules.

¶ 34. Maple Leafs core issue concerns the requirement that it submit nutrient management plans for off-site applications. Nutrient management plans require Maple Leaf to report the quantity of manure to be spread, the nutrient needs of the crop and the corresponding nutrient content of the manure to be spread. This information insures manure application only at agronomic rates (i.e., no greater than the capacity of crops to utilize the nitrogen or phosphorus present in the manure applied). Maple Leaf and the amici curiae object to such burdensome conditions that call for extensive study, observations and reports required for lands other than the land they own. In particular, Maple Leaf points out that it has no control over the landowner's tillage practices, crop rotation, or application of other sources of fertilizer. Nevertheless, as a CAFO under the WPDES program, Maple Leaf would be held liable for discharges that occur from overapplication of manure.

¶ 35. These issues raise serious policy concerns regarding the wisdom of the DNR's decision to hold Maple Leaf ultimately responsible for the manure it generates and applies off-site. We cannot rule, however, on the wisdom of an agency's decision. We simply must determine whether the DNR is empowered by the legislature to exercise its authority in this manner and we have concluded that it is. There is nothing in Wis. Admin. Code ch. NR 243 which distinguishes between on-site and off-site landspreading activities. In either case, the purpose of the code is to prevent the discharge of pollutants to waters of the state. Furthermore, the WPDES statutory prohibition on discharges of pollutants from CAFOs would be of little value if the owners of the CAFOs could avoid responsibility merely by placing those pollutants onto the ground of third parties without regard to rates and quantities so that the pollutants would predictably leach into groundwater or runoff to surface waters. Our interpretation of the statute and regulation is consistent with the overall legislative goal to "restore and maintain the . . . integrity of [our state's] waters." Wis. Stat. § 283.001(1). The order affirming the agency's determination is affirmed.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       We heard oral argument on April 24, 2001. In addition to the parties, we heard from amici curiae who had jointly filed a brief in favor of Maple Leafs appeal. All of the amici parties are Wisconsin permit holders or have members who are permit holders. All such permit holders sell manure as fertilizer for off-site application.

       The term "landspreading" means the specific agricultural practice of applying wastes onto or into soil with mobile equipment such as a tanker truck or manure spreader.

       An effluent limitation is a measurement of pollutant discharge taken at the source. Niagara of Wis. Paper Corp. v. DNR, 84 Wis. 2d 32, 54, 268 N.W.2d 153 (1978).

       The DNR does not dispute that off-site manure applications are exempt from the NPDES program. See Guide Manual on NPDES Regulations for Concentrated Animal Feeding Operations, EPA 833-B-95-001 (December 1995), issued by the United States Environmental Protection Agency ("[T]he CWA does not regulate manure spreading once the manure leaves the property where it was generated. The CAFO ... is only responsible for complying with NPDES permit requirements relative to any manure spreading on-site.").

       For example, Wis. Stat. § 281.11 charges the DNR to "protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private. ... A comprehensive action program directed at all present and potential sources of water pollution whether home, farm, recreational, municipal, industrial or commercial is needed to protect human life and health .. . and domestic, municipal, recreational, industrial, agricultural and other uses of water." Similarly, Wis. Stat. § 281.12(1) grants the DNR "general supervision and control over the waters of the state.... The [DNR] also shall formulate plans and programs for the prevention and abatement of water pollution and for the maintenance and improvement of water quality."

       The amici parties assert that the DNR cannot rely on a statute's statement of purpose to confer authority on an agency. See Rusk County Citizen Action Group, Inc. v. DNR, 203 Wis. 2d 1, 9, 552 N.W.2d 110 (Ct. App. 1996). Their reliance on Rusk is misplaced. In Rusk, the court had to determine whether the statement of purpose in the Metallic Mining Reclamation Act authorized the DNR to ban all sulfide mineral mining in Wisconsin. The court observed that the statute required the DNR to establish standards and administer a permit application process to be implemented on a case-by-case basis. Id. at 8. The court concluded that a rule banning sulfide mineral mining would be inconsistent with the statute's permit program. Id. In distinguishing Rusk from the case before us, we note the obvious: the DNR is not seeking to ban all applications of manure on off-site croplands. Indeed, if it were we would have to agree with the court in Rusk that the statement of purpose cannot be read to empower the DNR to ban all activities that might adversely affect water quality. Id. at 10. Instead, the DNR is seeking to provide a permit upon meeting conditions imposed by it under its statutory authority.

       Wisconsin Stat. § 283.11(1) provides in part:
      The department shall promulgate by rule effluent limitations, standards of performance for new sources, toxic effluent standards or prohibitions ... for any category or class of point sources established by the U.S. environmental protection agency and for which that agency has promulgated any effluent limitations ....


source: Caselaw Access Project

license: Public Domain

text:
    Barbara Cohn, Bob Rohr, David Ott, Larry Yakutis, Stan Stawaaz, Mary Mavon, Richard Vogt, Valerie Kunde, Barbara Mertes-Wysocki, Brent Matson, Jeff Zwolak, John Dovgin, Carolyn Dovgin, Richard Peck, Marleen Peck, Edward Mooney, Steve Gutschick, Nadine Radtke, Victoria Rogers, Barry Shechtman, Kay Watters, Daniel Aronson, Ken Johnson, Kimberly Bernard, Maureen Alcorn, Roberta Weisner, Richard Poteracki and Rachelle Poteracki, Plaintiffs-Respondents-Cross-Appellants, v. Town of Randall, Defendant-Appellant-Cross-Respondent.
    Court of Appeals

      No. 00-2176.

      Oral argument May 16, 2001. —
    Decided July 3, 2001.

    2001 WI App 176
    (Also reported in 633 N.W.2d 674.)

      On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Raymond J. Pollen and Deborah S.R. Hoffmann of Crivello, Carlson, Mentkowski, Steeves, S.C. and Larry Steen of Larry Steen Law Office, Milwaukee. There was oral argument by Raymond J. Pollen and Larry Steen.

    On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the brief of Adrian P. Schoone of Schoone, Leuck, Kelley, Pitts & Knurr, S.C. and Robert E. Hankel of Knuteson, Powers & Wheeler, S.C., Racine. There was oral argument by Robert E. Hankel.

    Before Brown, RJ., Anderson and Snyder, JJ.

       Petition to review denied 9-19-01.

   BROWN, PJ.

¶ 1. The Town of Randall appeals from a summary judgment finding no dedication of roadways for public use. Residents who live in the subdivisions containing the roadways cross-appeal the dismissal of their suit for certiorari review of the actions of the Town Board. Because we determine that there has been an effective common law dedication of roadways for public use, we reverse the judgment in favor of the residents. Regarding the cross-appeal, we determine that there has been no misuse of discretion by the Town Board.

¶ 2. This case arises in the context of a contemplated road improvement project to certain streets located in the South Nippersink area of the Town. The contemplated project was substantial and resulted in a special assessment on a parcel unit basis in the amount of $13,297.47. Thereafter, owners of forty-five parcels in the South Nippersink area filed notifications with the Town Board that any purported dedication of land owned by them to the Town for public purposes was revoked. In light of the residents' opposition to the road project, the Town Board delayed approval of the project in order to allow the residents an opportunity to present an alternative plan for improving the roads.

¶ 3. On October 26,1999, the residents presented an alternative plan in a public hearing. The residents believed their plan would allow the roads to be improved with far less expense and disruption to their properties. Nevertheless, that evening, the Town Board voted to approve the original, more elaborate improvement project and declared the South Nippersink subdivision roads as public roads.

¶ 4. On appeal, the Town challenges the trial court's conclusion that the plats disclose an intent to create private rather than public roads. The residents request that we overturn the decision of the Town Board to lay out roads and levy assessments as arbitrary and capricious. We heard oral argument from the parties on May 16, 2001, in Racine.

Standard of Review

¶ 5. The court of appeals reviews summary judgment motions de novo. Blazekovic v. City of Milwaukee, 225 Wis. 2d 837, 840, 593 N.W.2d 809 (Ct. App. 1999), aff'd, 2000 WI 41, 234 Wis. 2d 587, 610 N.W.2d 467. For summary judgment to be granted, there must be no genuine issue of material fact and the moving party must be entitled to judgment as a matter of law. Calbow v. Midwest Sec. Ins. Co., 217 Wis. 2d 675, 679, 579 N.W.2d 264 (Ct. App. 1998). Furthermore, the interpretation of a written instrument is a question of law that this court decides without deference to the trial court. Jones v. Jenkins, 88 Wis. 2d 712, 722, 277 N.W.2d 815 (1979). Whether the language in the instrument is ambiguous is also a question of law. See Moran v. Shern, 60 Wis. 2d 39, 46-47, 208 N.W.2d 348 (1973). Where ambiguity exists, the court may consider extrinsic evidence to determine the intent of the parties. Id. at 48.

Discussion

1. Dedication for public use.

¶ 6. The first legal issue to address is whether there has been an offer and acceptance of a dedication of roads for public purposes. "Dedication is defined to be the act of giving or devoting property to some proper object, in such a way as to conclude the owner." Kennedy v. Barnish, 244 Wis. 137, 141, 11 N.W.2d 682 (1943). Wisconsin recognizes two distinct types of dedication— statutory and common law. Galewski v. Noe, 266 Wis. 7, 15, 62 N.W.2d 703 (1954). Statutory dedication consists in whatever conduct is prescribed by statute, which usually requires the execution and filing of a plat in accordance with local law. Kenneth H. Young, Anderson's American Law of Zoning § 25.26 (4th ed. 1997). Common law dedication requires an explicit or implicit offer to dedicate land, and an acceptance of the offer by the municipality or by general public use. Galewski, 266 Wis. at 12. Intent to dedicate to the public use is an essential component of either statutory or common law dedication, since the municipality cannot accept that which is not offered in the first instance. Therefore, in a question of common law dedication, the threshold issue to our inquiry is the intent of the grantor at the time the subdivisions were created. Although the Town contends that there was both statutory dedication and common law dedication, we need only discuss common law dedication as that will resolve this matter.

¶ 7. The issue of intent in common law dedication is usually resolved by the trier of fact and, upon review hy this court, is subject to the clearly erroneous rule. In this case, the grantor has long since passed away and the only evidence available to glean his intent is documentary evidence in the form of recorded plats and deeds. We are in just as good a position as the trial court to make factual inferences-based on documentary evidence and we need not defer to the trial court's findings. State ex rel. Sieloff v. Golz, 80 Wis. 2d 225, 241, 258 N.W.2d 700 (1977). Moreover, an interpretation of documentary -evidence involves a question of law to be reviewed independently on appeal. See DeLap v. Inst. of Am., Inc., 31 Wis. 2d 507, 510, 143 N.W.2d 476 (1966). Inferences drawn from documentary evidence do not bind this court. Id. However, despite our de novo standard of review, we nonetheless value the trial court's decision. Kailin v. Rainwater, 226 Wis. 2d 134, 147, 593 N.W.2d 865 (Ct. App. 1999).

¶ 8. On August 1, 1918, E.G. Shinner acquired land which became the 5th and 6th Additions to Nipper-sink Park. On July 6,1926, the plat map of Shinner's 5th Addition was recorded with the register of deeds. The Surveyor's Certificate stated that the land was subdivided into nine blocks and "again into lots as shown together with certain streets dedicated as common property to the owners of this subdivision and of any future adjacent subdivision." The Town approved the subdivision plat, noting that "certain streets are laid out and dedicated as common property to the owners of their subdivision and any future adjacent subdivision."

¶ 9. Shinner's 6th Addition was recorded on June 1,1929, with the surveyor subdividing the property into blocks and lots, "together with certain streets, walks and park, dedicated as common property as in former subdivisions to this park." The Town approved this plat also, stating "whereby certain streets, walks and park are laid out to the satisfaction of the Town Board therefor be it resolved . . . that the said map of said subdivision ... is accepted and approved for the purpose shown therein."

¶ 10. Other than the language emphasized above, there are no markings on the plat maps to indicate whether the roads are public or private. Therefore, we must construe the words "dedicated as common property to the owners," which appear explicitly or by incorporation in both plats, to determine whether Shin-ner intended to dedicate these roads for public use. The residents present a strong argument that common property to owners can only mean that Shinner intended these roads to be private, for the sole use of the homeowners. This would ensure that all owners of property in the subdivisions would have access along private roadways to public roads.

¶ 11. The Town contends that because the first plat refers to future adjacent subdivisions, Shinner must have intended that the roads would be used by the public as the subdivisions developed. The Town further argues that the word "common," when used in plats of that time period, signaled the intent to dedicate for public use. See, e.g., Mueller v. Schier, 189 Wis. 70, 79-80, 205 N.W. 912 (1926) (interpreting "the [land] to remain perpetually as a private common park, containing a common carriage drive and walk," as intent to create a public street).

¶ 12. We determine that the theories advanced by both sides are reasonable, and the plats are therefore ambiguous with respect to Shinner's intent to dedicate for public use. Under the current version of the law, such ambiguity is resolved in favor of the Town: platted streets that are not marked private are presumed to be public. See Wis. Stat. § 236.20(4)(c). However, this legislation was not in existence at the time these plats were recorded. To resolve the ambiguity we may, under principles of common law dedication, look beyond the plat maps and surveyors' certificates to other supporting documents and circumstances to discern Shinner's intent. See Galewski, 266 Wis. at 12 (offers to dedicate need not be in writing or in any particular form).

¶ 13. In 1928, Shinner sold several lots in the 5th Addition and recorded a deed that contained the following language:

This deed is made with the following restrictions and reservations which shall run with the title to the above described premises: ... 5. That the owner of the property described herein shall pay annually.. . for the upkeep, repair and maintenance of.. . roads, avenues, and boulevards in what is known as Nippersink Park which payments shall be made until said Nippersink Park shall be organized into a municipality .... 7. That the owner of the above described premises, his family, guests, servants and employees shall have the perpetual right to use any and all park-ways, parks, lanes, avenues, streets, boulevards, roadways, drives or land, including lake frontage, maintained for the use of the Public in what is known as Nippersink Park. (Emphasis added.)

The intent which was previously ambiguous is clarified by the highlighted language in the 1928 deed. The first highlighted language confirms the Town's position that Shinner envisioned public roads integral to a developing community. This deed foresees a Nippersink municipality taking responsibility for road maintenance; this could only occur if the roads had been dedicated to the public in the first instance. The intent to dedicate for public use is then clearly stated in the second highlighted language that preserves for homeowners perpetual use of roads maintained for the use of the public. No clearer statement of intent to dedicate for public use could be offered.

¶ 14. The next question to be determined is whether there was an acceptance by the proper public authorities or by general public users. We will assume for purposes of this opinion that the Town chairman's declination to sign the resolution for laying out the roads and levying the assessments means that the offer to dedicate has not yet been formally accepted. Relying on Lake Beulah Protective & Improvement Ass'n v. Christenson, 272 Wis. 493, 76 N.W.2d 276 (1956), however, we conclude there has been an acceptance by public user. As in Lake Beulah, we note the roads were never posted as private until this action was commenced. Id. at 497. The public was free to use the roads for ingress and egress for over seventy years without objection. As in Lake Beulah, it appears that residents made efforts through the years to have the Town take over and maintain the roads as public roads. We agree with the court in Lake Beulah that this indicates the residents considered the public's use of the roads to be sufficient to warrant their maintenance by the Town as public roads. Id.

¶ 15. In September 1999, the residents notified the Town Board that they revoked any offer to dedicate land for public use. See K.G.R. v. Town of East Troy, 191 Wis. 2d 446, 458, 529 N.W.2d 231 (1995) (grantor's offer to dedicate may be revoked only by unanimous action of all successors in interest). We determine, however, that prior acceptance by general public users prevented an effective revocation. Galewski, 266 Wis. at 14; City of Beaver Dam v. Cromheecke, 222 Wis. 2d 608, 615-18, 587 N.W.2d 923 (Ct. App. 1998).

¶ 16. The posture of the case before us then is that there exists a continuing offer to dedicate roads for public use. Seventy years of general public access without limitation prevents the revocation of the offer by the successors in interest. The remaining issue is whether the Town can formally accept the dedication more than seventy years after it is initially offered. Upon a formal acceptance by the Town, it becomes liable for the repair and maintenance of the roads and for damages that might result from defects. Galewski, 266 Wis. at 14. In its brief, the Town cites numerous cases in other states which allowed acceptance of a dedication even though decades of time had elapsed.

¶ 17. The residents, on the other hand, urge this court to determine that the lapse of time precludes acceptance of the offer to dedicate. They rely on a footnote in K.G.R. in which our supreme court observed, "[w]e do not herein hold that an unrevoked offer to dedicate is open for perpetuity. In general, it is subject to acceptance within a reasonable time." K.G.R., 191 Wis. 2d at 459 n.ll. In that case, the court allowed the town board to formally accept a dedication after the elapse of twenty-four years, id. at 460, but provided no guidance as to what a reasonable time frame might be in different circumstances.

¶ 18. The residents suggest that estoppel should defeat an asserted dedication in circumstances where injury would be suffered by parties that had acted in reliance on a municipality's conduct. Specifically, where a landowner has made improvements and has exercised exclusive control over the property, the residents argue, the municipality should be estopped to accept dedication.

¶ 19. The residents underestimate the quality of the evidence needed to establish an estoppel against a municipality. Estoppel is not applied as freely against the public as against private persons. City of Jefferson v. Eiffler, 16 Wis. 2d 123, 133, 113 N.W.2d 834 (1962). "[0]nly when some affirmative action has been taken, or when there has been some great negligence or delay with relation to some matter upon which the parties have a right to rely . . . will [the court] be authorized to apply [estoppel] so as to prevent manifiest injustice." Id. The evidence must be so clear and distinct that a contrary result would amount to a fraud. Id. Here, the record does not disclose any evidence to support a conclusion that a manifest injustice will occur by the Town's acceptance of the dedication of the roads.

¶ 20. Moreover, the case law does not support the residents' position. In Galewski, the plaintiff used a portion of the road as a garden and placed obstructions upon it; nevertheless, the court found a valid acceptance of a dedication after the elapse of twenty-six years. Galewski, 266 Wis. at 13-14. Significantly, the court refused to apply a theory of estoppel against the village even though it had undertaken no action with respect to the roads during the lapse of time. Id. at 15.

¶ 21. We accept the notion that the determination of whether a specific period of time precludes municipal acceptance of a dedication depends on the facts and circumstances of each case. We fail to see any facts and circumstances in this case that would cause us to impose a limitation on the Town's acceptance of the dedication. The documentary evidence discloses that the residents' landscaping and developed features fall within the fifty-foot expanse of road marked on the original plats. That being the case, individual residents had no right to devote land within the streets to private use as a garden. Even if the dedication was, as the residents contend, for the sole use of the common lot owners, such dedication would give to all current and future owners the use and benefit of a fifty-foot strip of road. Obstructions such as plantings and cultivation are inconsistent with the land's use as a road when, for example, they interfere with the accessibility and maneuverability of emergency vehicles. Because in our view the residents had no right to encroach upon the roadway space in the first instance, they cannot now claim irreparable harm by the removal of the encroachment due to the road improvement project. Cf. Maas v. Schwaab, 246 Wis. 102, 105, 16 N.W.2d 380 (1944) (homeowners could not erect gate to subdivision that would bar access to other owners of land in plat, whether or not the road was public or private); Kennedy, 244 Wis. at 143 (lot owner estopped to deny dedication against other lot owners where he made agricultural use of land marked as road).

¶ 22. We would be more inclined to rule in favor of the residents if they had relied to their detriment on the Town's refusal to accept the dedication during the last seventy years. For example, if the residents had invested in an upgrade of the roads at issue, the facts and circumstances might then justify a conclusion that the time to accept an unrevoked offer to dedicate had expired. In the absence of such a showing, we conclude that the Town may still accept the continuing offer to dedicate the roads for public use.

2. Certiorari review of the actions of the Town Board.

¶ 23. The residents assert that the Town Board's action declaring the South Nippersink roads to be public highways, levying assessments, and awarding bids was arbitrary and capricious and should be overturned. They accuse the Town Board of approving an expensive and destructive roadway project without regard to the facts, without regard to the wishes of its citizens, without regard to the tax burdens imposed and without regard to environmental considerations or protection.

¶ 24. Wisconsin Stat. § 80.17 provides for judicial review under Wis. Stat. § 68.13 of highway orders of the town laying out, altering, widening or discontinuing any highway. Section 68.13 allows aggrieved persons to seek review by way of certiorari. Certiorari lies only to review a final determination. State ex rel. Czapiewski v. Milwaukee City Serv. Comm'n, 54 Wis. 2d 535, 539, 196 N.W.2d 742 (1972). We assume for purposes of this issue only that the Town Board has made a final determination.

¶ 25. A certiorari court is limited to determining whether the board kept within its jurisdiction, acted according to law, acted arbitrarily or unreasonably, and whether the evidence was such that the board might reasonably make the order or determination it made. State ex rel. Richards v. Leik, 175 Wis. 2d 446, 455, 499 N.W.2d 276 (Ct. App. 1993).

¶ 26. On this review, we are primarily concerned with the manner in which the Town Board approved the resolution for improving the roads and levying assessments, an action the residents claim was arbitrary and represented the Town's will and not its judgment. In our review we do not weigh the evidence, but rather assess whether there is substantial evidence in the record to support the Town Board's determination. Van Ermen v. DHSS, 84 Wis. 2d 57, 64, 267 N.W.2d 17 (1978). A determination that has a rational basis is neither arbitrary nor capricious. Id.

¶ 27. The record before us is replete with evidence of the Town Board's thoroughness and care taken with respect to the road construction project. Public hearings have been held, bids solicited and approvals acquired. The resolution approving the project and awarding the bids is the end result of several years of consideration and planning. We recognize the point made by the residents that the Town Board approved the original plan without discussion or” consideration of the alternative plan they had submitted. Nevertheless, in light of the prior history of the project's development, we cannot conclude that such action is the result of the Town Board's will and not its judgment. The action of the Town Board has a rational basis and is affirmed.

By the Court. — Judgment reversed.

       The applicable statutes are as follows:
      Changing streets into highways. The town board of any town within which may be situated any village or other plat duly certified and recorded and not included within the limits of any incorporated village, may make an order to be recorded by the town clerk declaring such streets and alleys in such village or other plat as they may deem necessary for the public use to be public highways ....
      Wis. Stat. § 80.38 (1925). The above statute must be read in conjunction with Wis. Stat. § 236.11 (1925):
      [A]nd the land intended to be for the streets, alleys, ways, commons or other public uses as designated on said plat shall be held in the corporate name of the town, city or village in which such plat is situated in trust to and for the uses and purposes set forth, expressed and intended. Such map or the record thereof or a certified copy of such record shall be presumptive evidence of the truth of the facts therein stated in accordance with the provisions of this chapter.
      All other references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The Town also argues that under statutes in effect in 1926, the recording of plats with marked streets is evidence of the intent to dedicate the marked streets to the public. We are not convinced that this accurately describes the law in effect at the time. Moreover, the case law the Town relies on does not squarely state this proposition. Knox v. Roehl, 153 Wis. 239, 140 N.W 1121 (1913), involved a city which was dedicating its own land, a situation in which questions of intent and acceptance merge more or less into each other. Id. at 244.
      The Town also posits that the court in Lake Beulah Protective & Improvement Ass'n v. Christenson, 272 Wis. 493, 76 N.W.2d 276 (1956), found intent based on the fact that the roads were shown on the plat and the plat was offered for acceptance and recorded. In fact, the court based its finding of intent on a statute creating a presumption that streets marked on plats would be public unless clearly marked private. Id. at 497. Because that statute was not in effect at the time the plat was recorded, the court later withdrew its reliance on it, concluding that there was no evidence that the road was ever intended to be private. Id. at 498a. The court did not state that it found intent based on the fact the street was marked and recorded.
      Finally, in Gogolewski v. Gust, 16 Wis. 2d 510, 114 N.W.2d 776 (1962), the court expressed doubt that there was evidence of the owner's intent to dedicate a road for public purposes even though the road had been marked on a plat and recorded. Id. at 514.

       The trial court refused to consider the 1928 deed because it restricted the scope of its review of the documentary evidence to the four corners of the plats. We disagree with this approach. Our responsibility is to discern the intent of the grantor. Therefore, any documentary evidence that reflects Shinner's intent is highly relevant and meaningful to the inquiry and we are obligated to consider it in our review.

       Even the construction proposal offered by the residents recognized that it was in the best interests of the citizens to have the roads widened to improve emergency access for fire, police and rescue and to meet minimum standards for average daily traffic.

       As an alternative argument, the residents contend that they may defeat the dedication through adverse possession. We agree with the Town, however, that Wisconsin law does not permit adverse possession to run against a municipality. See Klinkert v. City of Racine, 177 Wis. 200, 188 N.W. 72 (1922).

       The Town Board passed the resolution for laying out the roads, but the resolution has not been signed by the Town chairman, apparently awaiting a final ruling on the private or public status of the roads at issue.


author: SNYDER, J.

text:
    Industry to Industry, Inc., Plaintiff-Appellant, v. Hillsman Modular Molding, Inc., Defendant-Respondent.

    Court of Appeals

      No. 00-2180.

      Submitted on briefs June 6, 2001. —
    Decided July 3, 2001.

    2001 WI App 177
    (Also reported in 633 N.W.2d 245.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Stephen L. Fox of Schmidt & Rupke, S.C. of Brookfield.
    On behalf of the defendant-respondent, the cause was submitted on the briefs of David H. Hutchinson and John E. Machulak of Machulak, Hutchinson, Robertson & ODess, S.C. of Milwaukee.
    On behalf of the Wisconsin Association of Manufacturers Agents, Inc., there was an amicus curiae brief by David J. Edquist and Thomas J. Kammerait of von Briesen, Purtell & Roper, S.C. of Milwaukee.
    Before Brown, PJ, Nettesheim and Snyder, JJ.

       Petition to review granted 10-23-01.

   SNYDER, J.

¶ 1. Industry to Industry, Inc., appeals from a nonfinal order of the trial court awarding partial summary judgment to Hillsman Modular Molding, Inc. Industry argues that the trial court erred when it determined that the definition of "independent sales representative," as defined in Wisconsin's Sales Representative's Act, Wis. Stat. § 134.93 (1999-2000), does not include corporations. We agree with Industry and reverse the order of the trial court.

FACTS

¶ 2. Industry is a manufacturer's representative and Hillsman, a Florida-based business, makes custom injection plastic parts. Industry had been Hillsman's Wisconsin representative since 1971. On May 6, 1999, Hillsman terminated its twenty-eight year relationship with Industry, to be effective August 6, 1999. Industry alleges that on that date, Hillsman's Wisconsin customers had submitted a substantial number of purchase orders for parts Hillsman later produced, but Hillsman refused to pay Industry commissions on the purchase orders unfilled as of August 6, 1999.

¶ 3. On August 6,1999, Industry filed suit against Hillsman alleging that Hillsman's failure to pay these commissions constituted both a breach of contract and a violation of the Wisconsin Sales Representative's Act, Wis. Stat. § 134.93. Industry also alleged that Hillsman violated the parties' agreement that Industry was to be Hillsman's exclusive Wisconsin representative by im-permissibly selling directly to certain Wisconsin customers.

¶ 4. On May 5, 2000, Hillsman filed a motion for partial summary judgment requesting dismissal of Industry's Wis. Stat. § 134.93 claim. Hillsman alleged that Industry, as a corporation, did not meet the definition of "independent sales representative" as set forth in § 134.93. The trial court, holding that § 134.93 was ambiguous, agreed that Industry did not qualify as an independent sales representative under the language of § 134.93, granted Hillsman's motion for partial summary judgment and dismissed the § 134.93 claim.

¶ 5. Industry petitioned this court for leave to appeal this nonfinal order granting Hillsman's motion for summary judgment, and we concluded that a grant of permissive appeal was warranted.

DISCUSSION

¶ 6. The sole issue presented in this interlocutory-appeal concerns the interpretation of Wis. Stat. § 134.93. Statutory construction is a question of law that we review de novo. Wis. Cent. Ltd. v. DOR, 2000 WI App 14, ¶ 9, 232 Wis. 2d 323, 606 N.W.2d 226, review granted, 2000 WI 36, 234 Wis. 2d 175, 612 N.W.2d 732 (Wis. Mar. 20, 2000) (No. 99-0194). The purpose of statutory interpretation is to ascertain the intent of the legislature. Id. We must first consider the language of the statute; if the language of the statute is clear and unambiguous, we apply that language to the case at hand and do not look beyond the statutory language to determine its meaning. Id. A statute is ambiguous if it is capable of being understood in two or more different approaches by reasonable persons. Id. If we determine that a statute is ambiguous, we can then look to the subject matter, object, context and history of the statute in order to ascertain legislative intent. Id. However, a statute is not rendered ambiguous merely because two parties disagree as to its meaning. State v. Kienitz, 221 Wis. 2d 275, 293, 585 N.W.2d 609 (Ct. App. 1998), aff'd, 227 Wis. 2d 423, 597 N.W.2d 712 (1999).

¶ 7. Wisconsin Stat. § 134.93 addresses payment of commissions to independent sales representatives and states, in relevant part:

(1) Definitions. In this section:
(b) "Independent sales representative" means a person, other than an insurance agent or broker, who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission. "Independent sales representative" does not include any of the following:
1. A person who places orders or purchases products for the person's own account for resale.
2. A person who is an employee of the principal and whose wages must be paid as required under s. 109.03.

It is this definition of "independent sales representative," particularly the meaning of the word "person," that instigated this appeal.

¶ 8. Hillsman's summary judgment motion argued that the definition of "independent sales representative" was ambiguous. The trial court agreed with Hillsman; it is unclear whether the trial court summarily concluded that Wis. Stat. § 134.93 was ambiguous without any analysis or examination of the language of the statute itself, or concluded that the legislative history of § 134.93 rendered it ambiguous. Furthermore, Hillsman argued, and the trial court concurred, that Industry did not qualify as an independent sales representative under the ambiguous language of the statute because as a corporation and not a human being, Industry was not a "person" as set forth in the statute. We disagree with both conclusions.

¶ 9. Examining legislative history of a statute presupposes ambiguity. One cannot look to a statute's legislative history to evaluate ambiguity; it is only after ambiguity is determined that we resort to legislative history. Dorr v. Sacred Heart Hosp., 228 Wis. 2d 425, 436-37, 597 N.W.2d 462 (Ct. App.), review dismissed, 230 Wis. 2d 276, 604 N.W.2d 574 (Wis. Sept. 20, 1999) (No. 98-1772). We must first examine the plain language of the statute. Id. at 436.

¶ 10. Again, Wis. Stat. § 134.93(1)(b) defines "independent sales representative" as "a person, other than an insurance agent or broker, who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission." The question is whether Industry, as a corporation, qualifies as a "person." Hillsman argues that the plain and ordinary meaning of "person" excludes corporations. We disagree. Hillsman completely ignores the explicit provisions of Wis. Stat. § 990.01(26).

¶ 11. Wisconsin Stat. § 990.01(26) states:
In the construction of Wisconsin laws the words and phrases which follow shall be construed as indicated unless such construction would produce a result inconsistent with the manifest intent of the legislature:
(26) Person. "Person" includes all partnerships, associations and bodies politic or corporate.

Wisconsin law mandates that when a statute uses the word "person," it includes associations and bodies corporate unless such a construction would produce a result inconsistent with the manifest intent of the legislature. Milwaukee Area Joint Plumbing Apprenticeship Comm. v. DILHR, 172 Wis. 2d 299, 317 n.10, 493 N.W.2d 744 (Ct. App. 1992).

¶ 12. Furthermore, a "person" is defined as "1. A human being. 2. An entity (such as a corporation) that is recognized by law as having the rights and duties of a human being." Black's Law Dictionary 1162 (7th ed. 1999). In contrast, a "natural person" is defined as a "human being, as distinguished from an artificial person created by law." Id.

¶ 13. Here, in enacting Wis. Stat. § 134.93, the legislature employed the word "person" instead of "natural person." We assume that the legislature enacts laws with full knowledge of existing statutes; consequently, the legislature must have enacted § 134.93 using the word "person" with full knowledge of the definition of "person" provided in Wis. Stat. § 990.01(26). We reasonably presume that the legislature chose its words carefully and precisely to express its meaning. Ball v. Dist. No. 4, Area Bd. of Vocational, Technical & Adult Educ., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984). Thus, with knowledge of the definition of "person" in § 990.01(26), we presume that in utilizing "person," the legislature intended for a "person" in § 134.93 to include corporations. Corporations, as in "person," can be considered "independent sales representatives" under § 134.93.

CONCLUSION

¶ 14. The language of Wis. Stat. § 134.93 unambiguously employs the word "person" which, as defined under Wis. Stat. § 990.01(26), includes not only natural persons but also all partnerships, associations and bodies politic or corporate. We therefore reverse the order of the trial court.

By the Court. — Order reversed.

       All statutory references are to the 1999-2000 version unless otherwise noted.

       Hillsman challenges this allegation, but this dispute is not relevant to our determination.


author: BROWN, EJ.

text:
    In re the Termination of Parental Rights to Erin R.S., a Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Kelly S., Respondent-Appellant.

    Court of Appeals

      No. 01-0328.

      Submitted on briefs May 25, 2001. —
    Decided July 3, 2001.

    2001 WI App 193
    (Also reported in 634 N.W.2d 120.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of John J. Grau of Grau Law Office of Waukesha.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Christopher W. Stock, district attorney of Fond du Lac County.

      A nonparty brief was filed by Guardian ad Litem Catherine Flaten Jones of Fond du Lac for Erin R.S.
    Before Brown, EJ., Nettesheim and Snyder, JJ.

       Petition to review denied 9-19-01.

   BROWN, EJ.

¶ 1. The parties and the trial court agree that the following statement is the law in Wisconsin: After a jury has found evidence supporting termination of parental rights, the trial court's duty is to determine whether such evidence was "egregious" such that termination should occur. B.L.J. v. Polk County DSS, 163 Wis. 2d 90, 103, 470 N.W.2d 914 (1991). The dispute centers on how the "egregious analysis" is conducted. We agree with Kelly S., up to a point, that this is a two-part, sequential test. Our understanding of the law is that, first, the court must consider whether the unfitness is of such strength that it undermines the ability to parent. Second, if so, then the court considers whether that inability is seriously detrimental to the child. Kelly claims that the trial court's analysis here was flawed because it considered the second question in tandem and as part of the first question, rather than doing so sequentially. We hold that although the trial court erred in its belief that the law mandates the questions to be considered in tandem, a close reading of the court's disposition shows that the law was, in actuality, followed. We affirm.

¶ 2. Kelly is the biological mother of Erin R.S. A CHIPS petition was filed on August 14, 1997, and a disposition finding Erin to be in need of protection and services was eventually entered on December 10, 1997. The order was extended twice for one year. On March 17, 2000, a petition to terminate Kelly's parental rights was filed. The petition claimed abandonment. A jury found that Erin had been adjudged to be in need of protection and services and was placed outside the home for a cumulative total period of six months or longer pursuant to one or more court orders containing the termination of parental rights notice as required by law. The jury also found that reasonable efforts had been made to provide services ordered by the court and that Kelly had failed to meet the conditions established for the safe return of Erin to Kelly's home. The jury further found that there was a substantial likelihood that Kelly will not meet these conditions within the following twelve-month period. A disposition hearing ensued and the trial court, after consideration, terminated Kelly's parental rights. Thereafter, Kelly brought a motion to vacate the disposition on grounds that the court had misunderstood the legal standard established in in evaluating Kelly's level of unfitness to parent. More precisely, Kelly alleged that the court had applied the wrong standard in determining whether her acts were egregious enough to warrant termination. The trial court denied the motion and Kelly then appealed to this court.

¶ 3. Since much of this case concerns what the law is, we will discuss this issue before getting into the facts. In the supreme court construed Wis. Stat. §§ 48.424 and 48.427(2) (1999-2000). We set forth the first three sections of this statute for completeness purposes. But we pay special attention to the first two sentences of sec. (4) and all of § 48.427(2):

48.424 Fact-finding hearing. (1) The purpose of the fact-finding hearing is to determine whether grounds exist for the termination of parental rights in those cases where the termination was contested at the hearing on the petition under s. 48.422.
(2) The fact-finding hearing shall be conducted according to the procedure specified in s. 48.31 except that:
(a) The court may exclude the child from the hearing; and
(b) The hearing shall be closed to the public.
(3) If the facts are determined by a jury, the jury may only decide whether any grounds for the termination of parental rights have been proven. The court shall decide what disposition is in the best interest of the child.
(4) If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall not preclude a dismissal of a petition under s. 48.427(2). ...
48.427 Dispositions.
(2) The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights.

The B.L.J. court construed §§ 48.424(4) and 48.427(2), in pari materia, to say that although a jury may find the "facts" which would constitute "grounds" for termination, the legislature gives the trial court the ultimate power to determine whether termination should occur. B.L.J., 163 Wis. 2d at 103-04. The supreme court wrote that even after a jury finding favorable to the government, the trial court may nonetheless dismiss the petition to terminate in two alternative ways. First, the trial court may find that the evidence is insufficient. Or, second, the trial court may determine that the evidence, even if sufficient, is not so "egregious" as to "warrant" termination. Id. The supreme court construed the legislature's use of the word "warrant" as evidence of a grant of authority to the trial court to make the final call concerning whether the parent's unfitness was egregious enough to merit termination.

¶ 4. The dispute between the parties centers on how the trial court is to make this call. The State, represented by the district attorney, points to a passage from the B.L.J. cáse in support of its belief that the trial court reaches the question of egregious conduct by considering three factors, all at the same time. These factors are the evidence, the findings of fact and the best interests of the child. The passage from B.L.J., relied upon by the State, is as follows:

Thus, it seems clear that in spite of what the evidence may show, whether such evidence warrants termination, is a matter within the discretion of the court. This is so because the word "warrant" implies an overview of the evidence, the findings, and also the implication of what is in the best interest of the child. (Emphasis added.)

Id. at 104. The trial court, in deciding a motion to vacate the TPR judgment, agreed with the State.

¶ 5. Kelly's argument is that this is a misapplication of what the supreme court was saying. According to Kelly, the egregious analysis consists of two phases and they are considered sequentially. First, according to Kelly, the court must consider whether the evidence was egregious. She takes this to mean that the court must consider whether, because of a parent's conduct, it is "essential to terminate" the parent's rights. Second, even if it is "essential" to terminate the parent's rights, the court must still decide whether it is in the child's best interest to terminate. Kelly maintains that, here, the court commingled the two functions in one and only decided whether it would be "better" that her rights to Erin be terminated.

¶ 6. We conclude that both sides are wrong. All we have to do to prove our point is detail what happened in the B.L.J. case and explain what the supreme court had to say about it. In B.L.J., the mother had issues with chemical abuse. The facts were that the mother had been abusing alcohol for a long time. The child in that case was in foster care, returned to the mother, returned to foster care again, returned to the mother again, and then returned to foster care once more as the mother's inability to control her alcoholic impulses ebbed and flowed. Finally, having seen enough, the County petitioned for termination. At trial, the County presented evidence of attempts to help the mother overcome her problem, but to no avail. The jury found for the County and the trial court terminated parental rights.

¶ 7. On review before the supreme court, the court recalled an earlier case of the court, Mrs. R. v. Mr. and Mrs. B., 102 Wis. 2d 118, 306 N.W.2d 46 (1981). The B.L.J. court explained that in Mrs. R., the trial court, after jury findings, proceeded to determine "whether the termination would promote the best interest of the child." 163 Wis. 2d at 110 (citations omitted). The court reasoned that this " 'puts the cart before the horse.1 Parental rights may only be terminated if the parent is unfit. Then a disposition looking to the best interest of the child takes place." Id. (citations omitted).

¶ 8. From the above passage, it is clear that consideration of the best interests, while a part of the analysis as to whether the parent's conduct is egregious enough to warrant termination, comes after a determination of unfitness by the trial court. So, to the extent that it is a two-part sequential test, we agree with Kelly and disagree with the State and the trial court. To say that best interests and a finding of serious unfitness are all part of one reasoning process does violence to Mrs. R.

¶ 9. But we part company with Kelly when we consider what the first test is. It is not, as Kelly claims, a question of whether her conduct was so bad that it was essential to terminate. That is really a meaningless test because it has no definition to it. Rather, in B.L.J., the court zeroed in on what the first test is. Referring to the mother's conduct, the court wrote:

It is clear from this record that the mother's parental rights were not terminated because she is an alcoholic but because of the effect her particular alcohol problem has on her ability to function as a parent.

B.L.J., 163 Wis. 2d at 112 (emphasis added). From this passage, the first test becomes apparent. The trial court's function is to determine whether the parent's conduct undermines his or her ability to function as a parent. Some parental conduct may show that the parent is less fit than other parents, but if the ability to parent is not seriously affected by the conduct, then the first test is not met. On the other hand, if the parental conduct is of such force that the ability to parent is compromised, then the first test has been met and the court moves to the second test, which is the best interests standard. And there, the question more precisely is whether the inability to function as a parent is so serious that further contact between the parent and child will be seriously detrimental to the child. Id. at 113.

¶ 10. The passage cited by the State and relied upon by the trial court at the hearing on the motion to vacate the judgment, which we quoted above, is not inconsistent with our understanding of B.L.J. The finding of whether such unfitness is egregious does in fact depend on the evidence, the findings and the best interests. We must not construe the language in that passage in a vacuum, but in the context of everything else that the supreme court wrote in B.L.J. We conclude that B.L.J. sets forth a two-part sequential test in determining whether the parent's unfitness was to such an egregious degree that it warranted termination. First, the trial court must answer whether the ability to function as a parent has been undermined. Second, if so, then the trial court must determine whether further contact between child and parent will be detrimental to the child.

¶ 11. It is true that the trial court did not frame its analysis in exactly the way the B.L.J. decision requires. But this does not necessarily mean, however, that we must reverse and remand for the trial court to do the analysis over. In fact, we use B.L.J. as authority for this point. There, the mother's counsel argued that there was no independent finding of parental unfitness and remand was appropriate. Id. at 109. The court disagreed. It wrote:

From the comments of the circuit court it is clear that the court was convinced her unfitness was sufficiently egregious to warrant termination. There would be no point in sending the case back to the circuit court for a specific, declaration to that effect....
[T]he circuit court here made "unmistakable but implicit findings" of parental unfitness such as to warrant termination of parental rights.

Id.

¶ 12. We have reviewed the trial court's decision and conclude that the same result should obtain here. The trial court made unmistakable but implicit findings that Kelly's actions affected her ability to parent and that it was to such an extent that the child's safety and welfare would be seriously jeopardized by continuing the parent-child relationship.

¶ 13. Following are the chronological facts that the trial court had at its disposal when making its determination.

¶ 14. On July 5,1995, Kelly was found intoxicated in a parking lot. She was sitting in the parking lot in dirt, gravel and glass. She was yelling and swearing. Erin was with her.

¶ 15. On June 22, 1997, Kelly received her third operating while under the influence violation. This included a penalty enhancer because there were three minors riding in the back of the pickup truck.

¶ 16. On June 25, 1997, Erin was removed from Kelly's home and placed with her maternal grandmother.

¶ 17. On July 25, 1997, Erin was returned to Kelly's home because of the grandmother's failing health and the difficulties she was having with Erin.

¶ 18. On August 27, 1997, Kelly was found to be operating while under the influence but was not charged or convicted. Erin was again moved to her grandmother's home. At this point, the CHIPS proceedings began and conditions were put in effect for Erin to return to Kelly's home.

¶ 19. As part of her treatment, a condition for the return of Erin, Kelly was to have regular drug screenings.

¶ 20. Sometime in 1997, Kelly was advised to not associate with Tom B., whom she had been living with, because of his past history with drugs, alcohol and crime. Kelly was unable to indicate for sure if Tom B. was using drugs or alcohol at the time. Kelly continued her relationship with Tom B., although she did not live with him.

¶ 21. In November 1998, Kelly tested positive for marijuana. Her individual counseling was discontinued at that time because she originally said that she had not been using drugs.

¶ 22. Kelly's group therapy was continued and urine samples were taken after these sessions.

¶ 23. On April 6,1999, Kelly's urine test indicated an abnormally low level of creatine in the sample. The lab technician indicated that Kelly would have to drink gallons of water in order for the level to be that low. She also indicated that the sample was most likely diluted with something. Kelly tested negative for all drugs.

¶ 24. On May 12, 1999, Kelly tested positive for THC, the drug found in marijuana.

¶ 25. On November 23,1999, Kelly tested positive for alcohol. Her alcohol level was .011%.

¶ 26. On April 18, 2000, Kelly again tested positive for marijuana. She also tested positive for nearly all the drugs tested for. This is very unusual; therefore a confirmation test was run. It was determined that an interferant was present in the sample. It was not confirmed that THC was present, however, and a retest was recommended.

¶ 27. In June 2000, Kelly's group therapy was also discontinued. This was because she consistently was absent from the meetings and did not provide doctor's excuses for her absences.

¶ 28. On July 11, 2000, Kelly again tested positive for alcohol. Her alcohol level was .013%.

¶ 29. Furthermore, Lynn Klapperich, Kelly's drug and alcohol abuse counselor, felt that Kelly had been dishonest with her. Kelly told her that she was not using drugs or alcohol, but the urine sample tests still came back positive. Kelly did admit to using marijuana when Klapperich confronted her about it. Klapperich discontinued her individual counseling with Kelly because of this dishonesty.

¶ 30. Group therapy was also terminated because Kelly was consistently absent. Urine samples are taken after these meetings. Kelly began to be absent once she tested positive for drugs. Lab results indicated that Kelly may have tampered with her urine samples. The abnormally low creatine level in the April 6, 1999 test was most likely the result of the sample being diluted with something. Also, an interferant was found in the April 18, 2000 test, which invalidated the test results. Her counselor opined that Kelly tampered with the samples and occasionally spilled them on purpose.

¶ 31. Kelly was also dishonest with her psychologist. When asked how long she had been clean from drugs and alcohol, she said three and a half years. This statement was false.

¶ 32. Klapperich stated that all of the treatment options that the county can offer have been exhausted. She opined that Kelly has not made progress in the ten years that she has been Kelly's counselor and that hope for progress in the future is very small. Klapperich noted that Kelly was unable to meet the conditions for Erin's return. She was originally given one year to complete the conditions. She was given two extensions and has yet to finish all of the conditions for Erin's return.

¶ 33. This case is remarkably like the facts in B.L.J. in that here, like the mother in B.L.J., the county tried to help Kelly with her chemical abuse, but to no avail. Meanwhile, like the child in B.L.J., Erin was bounced in and out of foster care such that there was no permanency in Erin's life. The trial court here alluded to the same concerns that the trial court alluded to in B.L.J. Basically, it came down to Kelly's failure to come to grips with her substance abuse problem. The trial court was concerned about Kelly's refusal to cooperate in a sustained and meaningful way despite attempts to help her cope. It was concerned about the instability existing in Erin's life as she bounced in and out of foster care. The trial court was obviously convinced that this evidence spoke to Kelly's inability to function as a parent. Thus, the trial court made implied findings consistent with the first test in the egregrious analysis.

¶ 34. As to the second test, our supreme court said in B.L.J., "To condemn this child to go from foster home to foster home, waiting for a parental relationship to come into existence for which the mother seems unwilling to take steps to make possible, is, it seems to us, 'seriously detrimental to the child.'" Id. at 113 (citation omitted). The trial court made similar observations here. Thus, the second part of the test is met. We see no need to remand.

By the Court. — Order affirmed.

       This case has been cited as the K.D.J. case in some past appellate opinions and also by the name we use here, the B.L.J. case. In another section of this opinion, we refer to the Mrs. R. case. That case has also been referred to as the J.L.W. case. The confusion in how to cite the cases can be traced to the old citation rule which instructed the courts to use the name of the child in termination of parental rights cases. Now, under the new rule, we use the first adversarial party's name. But, to avoid confusion, we point out that K.D.J. and B.L.J. are one and the same. Likewise, J.L.W. and Mrs. R. refer to the same case. We use the new citation rule because, quite simply, it is now the rule.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.