Tenpas v. Department of Natural Resources

EICH, J.

The Department of Natural Resources (DNR) appeals from a summary judgment declaring that sec. 94.26, Stats., exempts cranberry growers from compliance with sec. 710.11, Stats., which, by incorporating the provisions of sec. 31.14(4), Stats., requires purchasers of lands on which dams are located to provide the department with proof of financial responsibility. We reverse.

*601Jeffrey and Barbara Tenpas purchased land on which two dams were located. At all pertinent times the property has been devoted to cranberry production. Section 710.11, Stats., provides that "[a] person may not accept the transfer of the ownership of a specific piece of land on which a dam is physically located unless the person complies with s. 31.14(4).” Insofar as it is applicable here, sec. 31.14(4), Stats., requires the transferee of any such land to furnish DNR with proof of his or her financial ability to maintain the dam in good condition.

Section 94.26, Stats., known as the "cranberry law,” specifically authorizes owners of lands "adapted to the culture of cranberries” to "build and maintain ... such dams ... as shall be necessary for the purpose of flowing [the] lands.” Believing that sec. 94.26 made sec. 710.11, Stats., inapplicable to the purchased lands, the Tenpases failed to comply with the financial responsibility provisions of sec. 31.14(4), Stats. They later sought declaratory relief under sec. 806.04, Stats., requesting that the court determine whether sec. 94.26 exempts them and all other cranberry growers from the requirements of sec. 710.11. They moved for summary judgment, and the trial court granted the motion.

The issue is one of statutory interpretation — the application of secs. 94.26 and 710.11, Stats., to simple, undisputed facts.1 It is a question of law which we *602review de novo, without deference to the trial court’s determination or rationale. City of Waukesha v. Salbashian, 128 Wis. 2d 334, 347, 382 N.W.2d 52, 56 (1986). The goal of statutory interpretation is to give effect to the intent of the legislature, and our first resort is to the language of the statute. Id. at 351, 382 N.W.2d at 58. We will look beyond that language, resorting to the legislative history, context, subject matter, or object of the statute, in order to ascertain the legislative intent only if its wording is ambiguous or unclear. Ball v. District No. 4, Area Board, 117 Wis. 2d 529, 538, 345 N.W.2d 389, 394 (1984). We see no ambiguity or lack of clarity in sec. 710.11, Stats., nor do we see any conflict between that section and the cranberry law.

Section 94.26, Stats., authorizes cranberry growers to build and maintain dams in aid of cranberry production. Section 710.11, Stats., has nothing to do with the construction or operation of dams, and it imposes no limitations or restrictions on the growers’ ability to carry on those activities. It simply requires, upon transfer of ownership of dams, that the new owners file proof of their financial ability to maintain them. There is nothing on the face of sec. 710.11 that would prohibit or in any way restrict the activities permitted by sec. 94.26.

Nor are the objectives of the two statutes in conflict. Section 710.11, Stats., does no more than establish a mechanism for the orderly transfer of dams. The manifest objective of the statute is to protect adjoining landowners and the general public from the consequences of dam failures by assuring that purchasers of dams are able to adequately maintain them. Section 94.26, Stats., on the other hand, is an obvious encouragement to cultivation of *603cranberries in Wisconsin; and sec. 710.11 neither contravenes nor detracts from that purpose. We are satisfied that the two statutes can be construed together, giving full effect to each.

The Tenpases argue, however, that a contrary result is dictated by State v. Zawistowski, 95 Wis. 2d 250, 290 N.W.2d 303 (1980). In that case the court considered whether sec. 94.26, Stats., absolved cranberry growers of the necessity to obtain permits to divert water from navigable lakes and streams, as required by sec. 30.18, Stats. (1973). The court held that the language of sec. 94.26 permitting growers to construct such "dams ... drains and ditches” as may be necessary to flood and drain their lands must, of necessity, also allow them to divert water onto their lands. The court reasoned that "[i]t would be unreasonable to construe sec. 94.26 to allow only the construction of the means to divert water without allowing the actual diversion.” Id. at 261, 290 N.W.2d at 309.

We do not consider Zawistowski to be controlling. Unlike the situation that existed there, both sec. 94.26 and 710.11, Stats., may be given full effect without giving rise to conflict or suggesting an unreasonable result. As the Zawistowski court noted, if the right to divert water is lacking, the right to build dams, dikes, and ditches to flow the lands is meaningless. But the growers’ right to build and maintain dams in aid of cranberry production is wholly independent of, and unrelated to, the state’s interest in providing modest regulation of transfers of dam ownership — requiring proof of the transferee’s financial ability to maintain the dam.

The Tenpases suggest, however, that sec. 710.11, Stats., is much more than a modest regulation. They *604assert that if we declare its terms applicable to cranberry dams, we will subject growers to the entire panoply of DNR’s regulatory authority over navigable waters and dams. The argument, adopted by the dissent, is based on an overly-broad and strained reading of the statutes.

As indicated, sec. 710.11, Stats., requires persons acquiring dams to comply with sec. 31.14(4), Stats. Sec. 31.14(4), in turn, states that transfers of dam ownership are void if made without complying with secs. 31.14(2) and (3). The latter sections impose the proof of financial responsibility requirements.

The Tenpases seize upon an ancillary reference in sec. 31.14(2), Stats., to other portions of ch. 312 and suggest that those other regulations are also incorporated in sec. 710.11, Stats. The result, according to the Tenpases, is to make the entire chapter — and perhaps ch. 30 as well — applicable to cranberry growers, thus wholly negating the cranberry law.

We disagree. By its plain language, sec. 710.11, Stats., incorporates only sec. 31.14(4), Stats; and the latter statute refers only to the specific financial responsibility requirements of secs. 31.14(2) and (3). None of the three incorporates any other statutory provisions. The unrelated reference to other portions of ch. 31 in an introductory sentence in sec. 31.14(2) *605does not, as the Tenpases maintain, bring any other provisions of ch. 31 into play.

Section 710.11, Stats., incorporates only the financial responsibility provisions of secs. 31.14(2), (3) and (4), Stats; it goes no further than that. The statute is clear on its face and its existence side-by-side with the cranberry law creates neither ambiguity nor conflict. As a result, we need not look outside the two statutes to conclude, as we do, that they may coexist as written.3

Finally, DNR asks that we impose a penalty against the Tenpases for violating sec. (Rule) 809.23(3), Stats., prohibiting citation of unpublished appellate decisions except in specified circumstances. They did refer to an unpublished opinion in their brief, but we do not believe it was cited as precedent. It simply illustrates a particular point. We decline to assess a penalty.

*606By the Court. — Judgment reversed and cause remanded with directions to enter judgment dismissing the action.4

The dissenting opinion begins with the surprising statement that we are "construing] the wrong statute.” We believe that resort to the language of our opinion belies that statement. As we state, sec. 710.11, Stats., by requiring compliance with sec. 31.14(4), Stats., incorporates the terms of that section into its own provisions.

Section 31.14(2), Stats., begins:

Except as provided in sub. (3), a permit shall not be granted under s. 31.06, 31.08 or 31.13:
(a) Unless the applicant furnishes to the department proof of ability to operate and maintain the dam in good condition ....

Sections 31.06 and 31.08 govern hearings on applications for permits to construct dams, and sec. 31.13 governs amendments to existing dam permits to allow the raising or enlarging of dams.

Even if the two statutes, read together, could be considered ambiguous, their legislative history would lead us to the same result.

The explanatory note published with sec. 710.11, Stats., describes its purpose as promoting the accuracy of DNR’s records of Wisconsin dams, and improving the department’s dam safety program. As we have said, we see no conflict between the financial responsibility requirement upon transfer of dams and the growers’ rights to build and maintain them under the cranberry law. Indeed, the legislative history shows sec. 710.11 to be a statute promoting public safety and welfare — precisely the type of law the supreme court has said is superior to the growers’ rights under sec. 94.26, Stats. Cranberry Creek D. Dist. v. Elm Lake C. Co., 170 Wis. 362, 367, 174 N.W. 554, 556 (1920).

DNR did not move for summary judgment. Where, however, we conclude, as we do here, that the non-moving party is nonetheless entitled to judgment as a matter of law, we may direct the entry of such a judgment. Delmore v. American Family Mat. Ins. Co., 118 Wis. 2d 510, 512-13, 348 N.W.2d 151, 152-53 (1984).