JILL J. KAROFSKY, J.
¶1 This case is about whether the Wisconsin Department of Natural Resources (DNR) had the explicit authority to impose an animal unit maximum condition and an off-site groundwater monitoring condition upon a Wisconsin Pollutant Discharge Elimination System (WPDES) permit it reissued to Kinnard Farms, Inc. (Kinnard) for its concentrated animal feeding operation (CAFO). The circuit court decided that the DNR had the explicit authority to do so, and the court of appeals certified this appeal to us, pursuant to Wis. Stat. § (Rule) 809.61 (2017-18).
¶2 We conclude that the DNR had the explicit authority to impose both the animal unit maximum and off-site groundwater monitoring conditions upon Kinnard's reissued WPDES permit pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations. Accordingly, we affirm the order of the circuit court.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶3 Kinnard operates a large CAFO
¶4 The five named petitioners in this appeal sought review of the reissued WPDES permit because they lived near Kinnard's CAFO, had private drinking wells, and were concerned that Kinnard's proposed expansion would exacerbate current groundwater contamination issues. The petitioners alleged that the reissued WPDES permit was inadequate because, among other failings, it did not set a "maximum number of animal units" or "require monitoring to evaluate impacts to groundwater." Accordingly, they petitioned for a contested case hearing to review the DNR's decision, pursuant to Wis. Stat. § 283.63(1).
¶5 The DNR granted the petition and referred the matter to an administrative law judge (ALJ), pursuant to Wis. Stat. §§ 227.43(1)(b), 283.63. Kinnard filed for summary judgment, alleging that the DNR lacked statutory authority to impose an animal unit maximum, citing 2011 Wis. Act 21, specifically Wis. Stat. § 227.10(2m).
¶6 The ALJ conducted a four-day evidentiary hearing during which Town of Lincoln community members who lived and worked near Kinnard's CAFO testified about the contamination of their well water and the impact of that contamination on their businesses, homes, and daily lives. The community members conveyed their belief that Kinnard's CAFO was the source of the well water contamination. The ALJ also heard testimony from a number of experts who established that up to 50 percent of private wells in the Town of Lincoln were contaminated and that 30 percent of wells tested positive for E. coli bacteria.
¶8 The first condition was an animal unit maximum. The ALJ ordered the DNR to modify Kinnard's reissued WPDES permit to "articulate the maximum number of animal units allowed at the facility." The ALJ reasoned that "[e]stablishing a cap on the maximum number of animal units will provide clarity and transparency for all sides as to the limits that are necessary to protect groundwater and surface waters." Additionally, the ALJ noted that the condition would assure compliance with the statutory requirement that CAFOs have and maintain 180 days' worth of properly designed manure storage.
¶9 The second condition was off-site groundwater monitoring. The ALJ determined that "a groundwater monitoring plan is essential given that the area is `susceptible to groundwater contamination' within the meaning of Wis. Admin. Code § NR 243.15(3)(2)(a)." According to the ALJ, "it is essential that the [DNR] utilize its clear regulatory authority ... to ensure that Kinnard Farms meet its legal obligation under Wis. Admin. Code § NR 243.14(2)(b)(3)[
¶10 Kinnard appealed the ALJ's decision to the DNR Secretary, pursuant to Wis. Admin. Code § NR 2.20(1) (February
¶11 At this point, the DNR began implementing the two conditions. Shortly thereafter, in August 2015, the DNR sought review from the Wisconsin Department of Justice (DOJ) regarding its ability to impose the conditions upon Kinnard's reissued WPDES permit in light of Wis. Stat. § 227.10(2m). DOJ opined that § 227.10(2m) precluded the DNR from imposing the conditions, which prompted the DNR Secretary to reconsider her decision denying review of the ALJ's decision. The DNR Secretary concluded that such a review was appropriate and quickly issued an order reversing the portion of the ALJ's decision that imposed the animal unit maximum and off-site groundwater monitoring conditions.
¶12 The five named petitioners filed a petition for judicial review in the Kewaunee County Circuit Court, and Clean Wisconsin filed a petition for judicial review in the Dane County Circuit Court. The Dane County Circuit Court consolidated the two cases and reversed the DNR Secretary's decision, concluding that the DNR had the explicit authority to impose the animal unit maximum and off-site groundwater monitoring conditions on Kinnard's reissued WPDES permit pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations.
¶13 The DNR and Kinnard appealed the circuit court's decision.
II. STANDARD OF REVIEW
¶14 "When an appeal is taken from a circuit court order reviewing an agency decision, we review the decision of the agency, not the circuit court."
¶15 This case also requires us to interpret several statutory provisions, which we review de novo.
¶16 We are tasked with determining whether Wis. Stat. § 283.31(3)-(5), and related regulations, grant the DNR explicit authority to impose the two conditions at issue upon Kinnard's reissued WPDES permit. We first provide some background regarding the WPDES permit program and its significance as it relates to: (1) CAFOs; (2) restricting the amount of pollutants discharged into waters of the state ("effluent limitations"
A. Relevant Background
¶17 We begin with a discussion of the WPDES permit program and its impact on CAFOs, effluent limitations, and groundwater protection standards to provide context for our statutory analysis. The WPDES permit program is outlined in ch. 283 of the Wisconsin Statutes, wherein the DNR is granted "all authority necessary to establish, administer and maintain a state pollutant discharge elimination system" in order to protect the "waters of this state," including groundwater and surface water, from pollution. Wis. Stat. § 283.001(1)-(2).
¶18 CAFOs are statutorily required to apply to the DNR for a WPDES permit because they are "point sources" as defined in Wis. Stat. § 283.01(12). Generally speaking, a CAFO is "a specific type of large-scale industrial agricultural facility that raises animals, usually at high-density, for the [production] of meat, eggs, or milk." National Association of Local Boards of Health,
¶19 CAFOs' agricultural waste, including manure and water that comes into contact with animal feed and manure (also referred to as "process wastewater"
¶20 Long-term manure storage requirements are common in states like Wisconsin where long, cold winters prevent liquid manure-spreading for several months each year.
B. Wisconsin Stat. § 227.10(2m)
¶21 The core issue in this case involves Wis. Stat. § 227.10(2m), which dictates that "[n]o agency may implement or enforce any standard, requirement, or threshold... unless that standard, requirement, or threshold is
¶22 Kinnard and the Legislature assert that explicit means specific, and that in order for the DNR to impose a condition upon a WPDES permit, without promulgating a rule, that condition must be listed verbatim in a statute or the administrative code. According to Kinnard and the Legislature, because there is no literal enumeration or verbatim mention of an animal unit maximum or off-site groundwater monitoring condition in the statutes or administrative code, Wis. Stat. § 227.10(2m) precludes the DNR from imposing such conditions upon Kinnard's reissued WPDES permit. Kinnard and the Legislature assert that in the absence of such statutory or administrative authority, the DNR must promulgate a rule in order to impose these conditions upon Kinnard's reissued WPDES permit.
¶23 The DNR and Clean Wisconsin counter that such a reading of "explicitly required or explicitly permitted" is too narrow, and that Kinnard and the Legislature overlook the explicit, but broad, authority given to the DNR in Wis. Stat. § 283.31(3)-(5) to prescribe such conditions. The DNR and Clean Wisconsin assert that explicit means expressly conferred and clear; and an explicit grant, like that given in § 283.31(3)-(5), can be general and broad in nature. Said differently, according to the DNR and Clean Wisconsin, an explicit grant of authority does not necessarily have to be circumscribed or exhaustively detailed.
¶24 To resolve this issue of interpreting the term explicit, we examine its dictionary definition and Wis. Stat. § 227.10(2m) in context. Explicit and specific are not synonymous. Black's Law Dictionary defines "explicit" as "clear, open, direct, or exact" and "expressed without ambiguity or vagueness." Explicit,
¶25 Additionally, when we review Wis. Stat. § 227.10(2m) in context, we note that in Wis. Stat. § 227.11(2)(a)3., the legislature used the word "specific."
C. Wisconsin Stat. § 283.31(3)-(4)
¶26 Having clarified that explicit authority can be broad in scope, we next examine Wis. Stat. § 283.31(3) and (4), and related regulations, as the parties dispute whether these provisions granted the DNR the explicit authority to impose the animal unit maximum and off-site groundwater monitoring conditions upon Kinnard's reissued WPDES permit.
¶27 Wisconsin Stat. § 283.31(3) allows the DNR to issue a permit "for the discharge of any pollutant, or combination of pollutants ... upon condition that such discharges will meet all the following, whenever applicable:"
§ 283.31(3). In this case we are focused on para. a (effluent limitations) and para. f (groundwater protection standards).
¶28 Wisconsin Stat. § 283.31(4) mandates that the DNR "shall prescribe conditions for permits issued under this section to assure compliance with the requirements of sub. (3)." A non-exhaustive list of examples, beginning with the phrase "shall include at least the following," is outlined at § 283.31(4)(a-f). Therefore, § 283.31(4) requires the DNR to prescribe conditions in a WPDES permit to assure compliance with § 283.31(3); in this case, the parties dispute the imposition of conditions to enforce effluent limitations and groundwater protection standards. Notably and of import, § 283.31(4) does not say "
¶29 Before we continue, we must briefly discuss two terms: first, "effluent limitations," Wis. Stat. § 283.31(3)(a); and second, "groundwater protection standards," § 283.31(3)(f). An effluent limitation is a restriction established by the DNR "on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into waters of this state." Wis. Stat. § 283.01(6);
¶30 The second term we must address is "groundwater protection standards established under ch. 160," as set forth in Wis. Stat. § 283.31(3)(f). The Legislature gave the DNR broad authority to establish, monitor, and enforce health-based groundwater standards in Wis. Stat. ch. 160, which resulted in the promulgation of Wis. Admin. Code ch. NR 140 (February 2021).
D. Whether Wis. Stat. § 283.31(3)-(5) Grants the DNR Explicit Authority to Impose The Disputed Conditions
¶31 Having provided background regarding the WPDES permit program, interpreted the "explicit authority" requirement of Wis. Stat. § 227.10(2m), and examined the text of Wis. Stat. § 283.31(3)-(4), we next look at the animal unit maximum and off-site groundwater monitoring conditions to determine whether the DNR had explicit authority to impose these conditions upon Kinnard's reissued WPDES permit.
¶32 We begin by noting that the ALJ imposed both of these conditions after hearing four days of testimony specific to this case and reviewing pre-filed reports. Examining the specific facts surrounding a particular permit application is consistent with how the DNR has historically imposed conditions upon WPDES permits. This case-by-case analysis allows the DNR to use its expertise to make fact-specific determinations and gives it the flexibility to prescribe conditions that are specifically tailored to a particular applicant.
1. Animal Unit Maximum Condition
¶33 The ALJ concluded that the animal unit maximum condition was necessary to assure Kinnard's compliance with effluent limitations, as enumerated in Wis. Stat. § 283.31(3)(a). We agree.
¶34 The DNR customarily monitors 180-day manure storage requirements through the use of permanent markers. Wis. Admin. Code § NR 243.15(3)(e). However, as
¶35 Additionally, Wis. Stat. § 283.31(5) explicitly requires that the DNR issue permits that "specify maximum levels of discharges."
¶36 Accordingly, the DNR had the explicit authority to prescribe the animal unit maximum condition, pursuant to Wis. Stat. § 283.31(4), in order to assure compliance with effluent limitations, as specified in § 283.31(3)(a), and pursuant to § 283.31(5).
2. Off-site Groundwater Monitoring Condition
¶37 The ALJ concluded that the installation of two off-site monitoring wells, if practicable, was necessary to assure Kinnard's compliance with effluent limitations and groundwater protection standards pursuant to Wis. Stat. § 283.31(3). The ALJ further determined that the legislature gave the DNR explicit authority in § 283.31(4) to prescribe permit conditions to assure compliance with these standards. We agree for two reasons.
¶38 First, the off-site groundwater monitoring condition assures Kinnard's compliance with effluent limitations, primarily Wis. Admin. Code § NR 243.14(2)(b)3, which prohibits fecal contamination of a well by the landspreading of manure or process wastewater. Given the overwhelming testimony regarding contaminated wells near Kinnard's CAFO, this condition was essential to ensure that Kinnard did not further contaminate the well water of residents in the vicinity. Additionally, the susceptibility of this area to groundwater contamination, as defined by § NR 243.15(3)(c)2.a., further supports the ALJ's imposition of this condition in accordance with the DNR's explicit authority.
¶39 Second, the off-site groundwater monitoring condition was necessary to assure Kinnard's compliance with groundwater protection standards.
¶40 We conclude that the DNR had the explicit authority to impose both the animal unit maximum and off-site groundwater monitoring conditions upon Kinnard's reissued WPDES permit, pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations. Accordingly, we affirm the order of the circuit court.
By the Court.—The order of the circuit court is affirmed.
REBECCA FRANK DALLET, J. (concurring).
¶41 I join the majority in full. I write separately to make two points regarding the dissent's
¶42 To fit its analysis within our current approach to statutory interpretation, the dissent had no choice but to label Wis. Stat. § 227.10(2m) "ambiguous" before it could look to extrinsic sources to analyze the statute's meaning. But as the dissent frames it, a statutory term is ambiguous so long as it is defined differently in multiple dictionaries. Under that framework, it is likely that all statutory terms can be labeled ambiguous and therefore extrinsic
¶43 Instead of requiring that we first label a statute "ambiguous," the better approach is to dispense with the pretext. We should of course start with the text of the statute, but our general approach to statutory interpretation should be more comprehensive. Such a holistic methodology would lead to more transparent analyses in which the court is upfront and honest about considering relevant extrinsic sources to interpret a statute's meaning. That includes being transparent about those sources' actual analytical value when they support more than one reasonable inference.
¶44 Of course, the same extrinsic sources will not be helpful in every case, and some sources are more reliable than others. The extrinsic materials the dissent uses are uninformative and unreliable and therefore have minimal value. There is little to be gleaned about a statute's meaning from a governor's press release and one legislator's floor statement. Then-Governor Walker's press release about what he hoped an initial legislative proposal would achieve says nothing about what the legislature's final enacted text means.
¶45 Nevertheless, I support the dissent's use of extrinsic sources to inform its statutory analysis. When clear and reliable, such sources can provide valuable context, regardless of whether a statute is ambiguous. The dissent, however, oversells the analytical value of two isolated and unreliable statements, thus leading it astray from the majority opinion's more reasoned interpretation of Wis. Stat. § 227.10(2m). Accordingly, I join the majority opinion.
¶46 I am authorized to state that Justices ANN WALSH BRADLEY and JILL J. KAROFSKY join this opinion.
PATIENCE DRAKE ROGGENSACK, J. (dissenting).
¶47 It is the legislative branch of government that enacts statutory laws for Wisconsin. Whether we agree with the policy
¶48 In this case, which appears before us on certification, Wis. Stat. § 227.10(2m) is argued to preclude Wisconsin Department of Natural Resources (DNR) from requiring a maximum number of animal units and off-site groundwater monitoring as conditions of a Wisconsin Pollutant Discharge Elimination System (WPDES) permit for Kinnard Farms, Inc.'s concentrated animal feeding operation (CAFO) because no statute or rule explicitly requires or permits that. The majority opinion claims the DNR has the "explicit authority" to condition the WPDES permit because it has broad authority pursuant to "Wis. Stat. § 283.31(3)-(5) and related regulations."
¶49 I conclude that there is no explicit textual authority in either statute or rule that grants the DNR power to set a maximum number of animals that Kinnard's CAFO may contain or to require off-site groundwater monitoring wells. Furthermore, Wis. Stat. § 227.11(2)(a)1.-3. preclude agencies from circumventing the "explicitly permitted or explicitly required" directive of Wis. Stat. § 227.10(2m) through the use of broad policy statements from other statutes. Accordingly, the WPDES permit requirements that cap the number of animal units and require groundwater monitoring through off-site wells are unlawful, and should be vacated. Because the majority opinion nullifies § 227.10(2m)'s plainly stated directive that, "No agency may implement or enforce any standard, requirement, or threshold ... unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule," and in so doing it overturns Act 21's legislative command, I respectfully dissent.
¶50 Kinnard operates a large dairy farm in Kewaunee County, which it sought permission to expand. Expansion required DNR approval and securing another WPDES permit for the expanded CAFO.
¶51 The requested permit was contested by Clean Wisconsin, Inc. and others (hereinafter Clean Wisconsin) during a lengthy administrative proceeding. The Administrative Law Judge (ALJ) determined that the permit should have specified the maximum number of animals allowed at the new facility and that a groundwater monitoring plan was needed in order to assure compliance with effluent limitations and groundwater protection standards. He recommended two or three off-site groundwater monitoring wells.
¶52 Kinnard sought review of the ALJ decision and ultimately the DNR approved a groundwater monitoring plan, without any off-site wells, and granted the WPDES permit without a cap on the number of animal units. The former DNR Secretary, citing Wis. Stat. § 227.10(2m), concluded that the DNR did not have explicit
¶53 Clean Wisconsin and others sought circuit court review of the DNR decision, in both Kewaunee County and Dane County. The Dane County Circuit Court, upon Clean Wisconsin's motion, consolidated the reviews in Dane County.
¶54 The circuit court vacated the WPDES permit. It concluded that the DNR had authority to impose off-site groundwater monitoring wells and an animal unit maximum cap on the WPDES permit, and the DNR should have complied with the ALJ's recommendation. Kinnard appealed, and the court of appeals certified the appeal to us.
¶55 After the matter was certified to us, Governor Evers appointed a new DNR Secretary, who reversed the prior Secretary's position. He embraced the ALJ's requirements of animal unit caps and off-site groundwater monitoring wells for Kinnard's WPDES permit. He relied on Wis. Stat. § 283.31(3) and (4), and did not mention Wis. Stat. § 227.10(2m).
A. Standard of Review
¶56 This is a review of an administrative agency's decision; here, arising from an ALJ decision that the current DNR Secretary has endorsed. On appeal, we review the decision of the DNR, not the decision of the circuit court.
¶57 Statutory interpretation and application drive our decision. We independently review questions of statutory interpretation and application.
B. General Principles
¶58 The purpose of statutory interpretation is to determine what the statute means so that it may be applied correctly.
¶59 "If the words chosen for the statute exhibit a `plain, clear statutory meaning,' without ambiguity, the statute is applied according to the plain meaning of the statutory terms."
¶60 When a statute is ambiguous we often consult extrinsic sources such as legislative history.
C. Wisconsin Stat. § 227.10(2m)
¶61 The outcome of this case turns on the interpretation and application of Wis. Stat. § 227.10(2m) to undisputed facts. Section 227.10(2m) provides in relevant part:
The specific questions that we must address are whether the agency requirements on the WPDES permit that caps the
¶62 "Explicitly" is not a statutorily defined term. Therefore, we employ common, ordinary definitions for that term.
¶63 Context also is important to meaning.
¶64 For example, what became Act 21 was introduced as Assembly Bill 8 at the request of then-Governor Walker and then-Representative-Tom Tiffany.
¶65 The importance of the executive's statement as interpretative of an enacted statute is confirmed by United States Supreme Court precedent where recognition of public statements of past presidents have been employed in statutory interpretation. For example, President Harrison is said to have voiced concerns about the coupling of train cars, when a statute addressing that issue was reviewed.
¶66 Furthermore, the cabining of administrative authority was a definitive change from past practice where administrative agencies ordered what they decided was helpful to furthering their administrative concerns and courts upheld such agency
¶68 Broad grants of administrative power to agencies were regular court practices prior to Act 21.
¶69 When interpreting federal statutes, the United States Supreme Court also has relied on statements from legislators as part of legislative history. For example, in
¶70 We employed both Wis. Stat. § 227.10(2m) and Wis. Stat. § 227.11(2)(a)1.-3. in
¶71 It is critical to note that because we are addressing statutes or rules, i.e., written communications, the explicit requirement or permission that is necessary to satisfy Wis. Stat. § 227.10(2m) must be expressed within the text of the statute or rule from which the agency asserts it was granted the power that it is exercising. Here, the agency has identified no statute or rule wherein the text of the statute or rule even mentions that an agency may establish either a cap on the number of animal units in a CAFO or the requirement for off-site groundwater monitoring wells. Therefore, pursuant to § 227.10(2m), the DNR has no authority to add those requirements to a WPDES permit.
¶72 The DNR relies on statutes that describe the agency's general powers or duties, such as Wis. Stat. § 283.31, a practice that Act 21, through creation of Wis. Stat. § 227.10(2m) and Wis. Stat. § 227.11(2)(a)1.-3., prevents. The majority opinion follows the lead of the DNR.
D. Majority Opinion
¶73 The majority opinion concludes first, that "explicit" and "specific" are not synonymous.
¶74 In order to understand Wis. Stat. § 227.11(2)(a)3., it must be read in context, which includes (2)(a)'s directive that "[a]ll of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:"
¶75 As is apparent from Wis. Stat. § 227.11(2)(a)1.-3., that in § 227.11(2)(a)3., the legislature employed "a specific standard, requirement, or threshold" as a means of describing a statute that "explicitly conferred" legislative authority on an administrative agency within the text of the statute, and that such authority was not to be expanded beyond the text the legislature chose.
¶76 The legislature also prohibited the use of declarations of purpose or policy to expand authority delegated to an agency beyond that which was "explicitly conferred" by the text of the statute upon which the agency relies. Wis. Stat. § 227.11(2)(a)1. And further, the legislature prohibited an agency from relying on the agency's general powers or duties to go beyond authority that was conferred on the agency by the explicit text of a statute. § 227.11(2)(a)2. As a recent law review comment pointed out, § 227.11(2)(a)1.-3. keep agency action in check so that it does not supersede statutory textual delegations.
¶77 As explained above, the majority opinion's reliance on Wis. Stat. § 227.11(2)(a)3. is misplaced because that statute limits agency authority; it does not expand it. In addition, the majority opinion relies on Wis. Stat. § 283.31(3)-(5)'s general statements of purpose to permit agency regulation of the number of animal units on Kinnard's CAFO and off-site groundwater monitoring wells.
¶78 First, although Wis. Stat. § 281.31(3) and (4) address water pollutant discharge permits, neither subsection mentions regulating the number of animal units or requiring off-site groundwater monitoring
¶79 Second, DNR rules discuss effluent limitations, but there is no text that mentions animal unit limitations or off-site groundwater monitoring wells for CAFOs. Rather, the cited rules are general requirements that are based on structural requirements and calculations of various volumes of effluents.
¶80 In regard to groundwater protection, which Wis. Stat. § 283.31(3)(f) references, no statute or rule mentions off-site groundwater monitoring wells. Wisconsin Admin. Code § NR 140.01 states the chapter's purpose "is to establish groundwater quality standards for substances detected in or having a reasonable probability of entering the groundwater resources of the state." Wisconsin Admin. Code § NR 214.21 addresses groundwater monitoring requirements, but contains no mention of off-site monitoring wells or caps on the number of animals permitted in a CAFO. Rather, the monitoring wells all are tied to the treatment area and the grade of the site. § NR 214.21(3) and (4).
¶81 Simply stated, the majority opinion takes apart what the legislature enacted in Act 21, and it reinstates control by agency regulation, as was the circumstance in Wisconsin before Act 21. In so doing, a majority of the court steps out of the judicial lane as an interpreter of the law and becomes a maker of law, contrary to the clear directive of the legislature in Act 21.
¶82 I conclude that there is no explicit textual authority in either statute or rule that grants the DNR power to set a maximum number of animals that Kinnard's CAFO may contain or to require off-site groundwater monitoring wells. Furthermore, Wis. Stat. § 227.11(2)(a)1.-3. preclude agencies from circumventing the "explicitly permitted or explicitly required" directive of Wis. Stat. § 227.10(2m) through the use of broad policy statements from other statutes. Accordingly, the WPDES permit requirements that cap the number of animal units and require groundwater monitoring through off-site wells are unlawful, and should be vacated. Because the majority opinion nullifies § 227.10(2m)'s plainly stated directive that, "No agency may implement or enforce any standard, requirement, or threshold ... unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule," and in so doing it overturns Act 21's legislative command, I respectfully dissent.
¶83 I am authorized to state that Justice REBECCA GRASSL BRADLEY joins this dissent.
REBECCA GRASSL BRADLEY, J. (dissenting).
¶84 I join the textual analysis of the operative statutes in Justice Patience Drake Roggensack's dissent, which definitively resolves the questions presented. I write separately to refute Justice Rebecca Frank Dallet's mischaracterization of that writing. Justice Dallet attempts to signal a change in the dissent's approach to statutory interpretation. There is no deviation from our seminal case on statutory interpretation, which expounds textualism.
¶85 Although Justice Dallet would prefer that Justice Shirley Abrahamson's concurrence in
¶86 Kalal was a "watershed decision in the modern history of the Wisconsin Supreme Court" and is Wisconsin's "most cited case of modern times." Daniel R. Suhr,
¶87 While Justice Dallet "would dispense with" what she describes as "the formalistic requirement that we must first label a statutory term `ambiguous' before we consult extrinsic sources to determine its meaning," it is no mere formality for judges who faithfully interpret statutory text. Concurrence, ¶41. "[T]he rule prevents the use of extrinsic sources of interpretation to vary or contradict the plain meaning of a statute[.]"
¶88 Although Justice Dallet would abandon it, the textualist method of statutory interpretation is "rooted in and fundamental to the rule of law. Ours is `a government of laws not men,' and `it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. It is the
¶89 Justice Dallet misconstrues the dissent to say "a statutory term is ambiguous so long as it is defined differently in multiple dictionaries." Concurrence, ¶42. Obviously, words often bear different meanings in different contexts. The existence of varying definitions does not give judges a license to declare a statute ambiguous and then rely on extrinsic sources to give a statute a meaning it does not have. "[A] statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses. It is not enough that there is a disagreement about the statutory meaning; the test for ambiguity examines the language of the statute to determine whether well-informed persons
¶90 While it is debatable whether reasonable minds may differ on the meaning of "explicit,"
¶91 Justice Dallet's approach would allow judges to misuse legislative history in order to give an unambiguous statute a meaning it does not bear. Adopting her approach would make the law's history superior to the law itself: "The more [you] use [legislative history], the more unreliable it's likely to become and the less incentive legislators will have to legislate. After all, canny politicians will have every reason to try to achieve their lawmaking dreams through ever more enterprising uses of legislative history[.]" Neil Gorsuch,
¶92 On a final note, Justice Dallet claims the dissent uses "extrinsic sources to inform its statutory analysis." It doesn't. But Justice Dallet persists in promoting, as she
All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated.
"The presence of large volumes of feces in and around animals in CAFO[s] provides a breeding ground for many bacteria," including E. coli. The bacteria can cause disease outbreaks through "contact with these organisms via swimming, eating shellfish, eating contaminated food, or drinking contaminated water." United States Environmental Protection Agency,
The court of appeals also certified another consolidated "companion" case,
"An issue is moot when its resolution will have no practical effect on the underlying controversy."
Whether the DNR Secretary complied with the administrative code in "reconsidering" her initial denial of Kinnard's petition is purely academic, and therefore moot. Any resolution will have no practical effect on the underlying controversy since Kinnard's 2012 permit expired and, as of February 1, 2018, it operates under a new WPDES permit and this procedural question is no longer at issue.