(dissenting). I conclude that the DOR rules eliminating the eight years of the phase-in are inconsistent with the express language of Wis. Stat. § 70.32(2r). The January 14, 2000, Opinion of the Attorney General and the Mallos' brief got it right.
¶ 35. I agree with the Opinion of the Attorney General, which reasons as follows:
In sum, the common sense reading of Wis. Stat. 70.32(2r) is that farmland is to be assessed at its 1995 assessed value in 1996 and 1997, or until the Council has recommended, and the Department has adopted, rules for implementing use value assessments, whichever is later. If necessary — that is, if the Council fails to make appropriate recommendations — the 1995 assessments are to provide the assessed value of agricultural land until as late as 2008. If the necessary recommendations are made before 2009, then beginning with the later of 1998 or the promulgation of use valuation rules, the assessed value of farmland will equal a weighted average of the land's 1995 assessed value and its use value. The use value weight will start at 10% and increase by 10% each year. If the phase-in begins in 1998, then 100% use valuation will be achieved in 2007 and full use valuation will provide the basis of assessment thereafter. If the necessary rules and recommendations are delayed, so that the partial use value assessment of farmland does not begin until 1999, then 100% use valuation will be achieved in 2008, and full use valuation will provide the basis of assessment thereafter. If the use valuation does not begin until 2000 or later, then the weighted average formula established in Wis. Stat. § 70.32(2r)(b) will provide the assessments for agricultural land until 2009, at which time farmland will be assessed at 100% use value.
Despite the difficulties presented by the statutory language, I am unable to find a reasonable interpretation *421of Wis. Stat. § 70.32(2r) or Wis. Stat. § 73.03(49) which would support the Department's ending the statutory phase-in period and implementing immediate use valuation.
There appear to be two bases to the Department's claim that'it has the authority to immediately terminate the [phase-in] period. The first is the absence of an express definition of the event or events that would result in "the valuation method under par. (b) no longer applying]," as provided in Wis. Stat. § 70.32(2r)(c). The other is the provision in Wis. Stat. § 73.03(49)(a) that the Council is to "[a]dvise the department of revenue ... on rules to implement use-value assessment of agricultural land ...." As I understand this argument, under Wis. Stat. § 73.03(49), one type of advice that the Council might give would be to forego [sic] any further transition to use valuation and to implement immediate, full use value assessments.
The problem with this interpretation is that even if Wis. Stat. § 73.03(49)(a) were read as granting the Council the authority to recommend the immediate end of the use value phase-in, there is no other statutory provision for implementing such a recommendation. That is, Wis. Stat. § 70.32(2r) does not contain language that the method of assessment established in paragraph (b) is to be used "for each year beginning with 1998 and ending with the farmland advisory committee's recommendation and promulgation of rules, but no later than December 31, 2008." I find it facially implausible that the Legislature would intend to grant to an advisory council an authority as important as the early termination of the use value phase-in, affecting the property taxes paid by all of the state's farmland and most of its non-farm property, but without any express language evincing such purpose. In point of fact, the express language of Wis. Stat. § 70.32(2r) points to the exact opposite interpre*422tation. Paragraph (b) provides that the issuance of the Council's recommendation causes the use value phase-in to start, not end.
The opening language in Wis. Stat. § 70.32(2r)(b) reads "[f]or each year beginning with 1998 or upon completion of the farmland advisory council's recommendation and promulgation of rules and ending no later than December 31, 2008, the assessed value of the parcel shall be reduced. . .." When something is to begin either upon Event A (1998) or upon Event B (completion of the Council's recommendation and promulgation of rules) and is to end by Event C (no later than December 31, 2008), Event B is a possible beginning date, not ending date. There is no other way to read this language.
Consideration of Extrinsic Interpretative Materials
Even if Wis. Stat. § 70.32(2r) were ambiguous, I am not aware of any aspect of the statute's subject matter, object, context or history that would support the claimed authority to immediately end the use value phase-in. The extrinsic aids to interpretation with which I am familiar indicate, to the contrary, that the statute was intended to create an initial period when agricultural assessments would be frozen, followed by a gradual phasing in of use valuation over a nine-year period, through a weighted average of frozen and use value assessments.
In addition to the Legislative Fiscal Bureau analysis prepared at the time of the statute's enactment, it is significant that both the Senate and the Assembly defeated bills for immediate full use valuation of farmland. It is hard to reconcile a legislative purpose of authorizing the immediate implementation of full use valuation, with the rejection of bills authorizing immediate, full use valuation. *423It is also significant that the Department originally interpreted the statute consistent with this common sense reading.
In addition, the use value statute is commonly understood to have resulted from a compromise between urban and rural interests which, on the one hand, allowed farmland to be assessed based on its lower use, as opposed to market, value, but which, on the other hand, attempted to cushion the impact of this change to non-farm property owners and jurisdictions through a gradual phase-in. A party wishing to challenge the Department's proposed use valuation rules would have little difficulty marshaling contemporaneous documents demonstrating this basic understanding.
Finally, simply on the basis of the statutory language, the interpretation provided by the Supreme Court in the first Norquist case is sensible, straight-forward and textual. In contrast, the Department's argument is striking for its lack of textual basis and for its assumption of a legislative purpose that would almost certainly find affirmative expression, had it really existed.
¶ 36. I also agree with the Mallos' brief that explains how Wis. Stat. § 70.32(2r) works, as follows:
Section 70.32(2r) shifts the method of assessing agricultural land from "market value" to "use value." The statute does not accomplish this shift immediately. Rather it provides for three steps, the freeze, the phase-in and the final rule, as laid out in subdivisions (a), (b) and (c) of the statute.
The first step is the freeze:
*424The freeze started January 1, 1996 and ended December 31, 1997.
Under the statutory scheme, once the freeze ends, the phase-in starts:
(b) For each year beginning with 1998 or upon completion of the farmland advisory council's recommendation and promulgation of rules and ending no later than December 31, 2008, the assessed value of the parcel shall be reduced as follows:
The statutorily mandated phase-in has a defined beginning and a defined end. The phase-in began in 1998. The phase-in began after the Department promulgated the rules needed to begin the phase-in.
Under the statute, phase-in has an end. It ends when the phase-in plays itself out, i.e., after ten years, but not later than December 31, 2008. The "no later than December 31, 2008" provision exists to ensure that full use value assessment would be the rule in 2009 and thereafter. When the statute was enacted in 1995, the legislature could not know when the Department would promulgate the rules needed to begin use value based assessment. If, for example, §TAX 18.07 was not promulgated until 2002, the phase-in would have started in year 2003. In that case, but there would not have been a full ten years of phase-in because the statute mandates full use value assessment no later than 2009. There would have been six, rather than ten,- years of phase-in. The legislature wanted to ensure that full use value assessment was the rule starting in 2009, no matter when the recommendation was made and the rules promulgated, so it added the "no later than" language to sub. (b)."
*425The end date of the freeze and the start date of the phase-in are known facts. TAX 18.07 was promulgated in time for the 1998 assessment. Phase-in started in 1998. As the Department recognized in 1997 when it promulgated §TAX 18.08(3) (1997), once started the phase-in would last 10 years, and full use value assessment would become operative January 1, 2008.
Once the phase-in plays itself out, farmland is to be assessed on full use value basis: ... § 70.32(2r)(c).
¶ 37. For the reasons set forth, I conclude that the DOR rules are clearly inconsistent with the statute and therefore I dissent.
¶ 38. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.