Wisconsin Citizens Concerned for Cranes & Doves v. Wisconsin Department of Natural Resources

I

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

¶ 2. The issue on appeal is whether the legislature has granted the DNR authority to set an open season for mourning doves. We have also asked the parties to *327 address what impact, if any, the recently adopted "Right to Hunt" amendment to the Wisconsin Constitution has on the outcome of this case. Wis. Const. art. I, § 26. For the reasons discussed below, we affirm the court of appeals' decision. We hold that the DNR has express authority under Wis. Stat. § 29.014(1) (1999_2000) 2 to adopt § NR 10.01(1)(h) because the legislature has granted broad authority to the DNR to set open and closed seasons for "game" under § 29.014(1) and mourning doves fall within the unambiguous definition of "game" contained therein.

II

¶ 3. The facts of this case are few and undisputed. On May 1, 2001, pursuant to § 29.014(1), the DNR adopted § NR 10.01(l)(h), which established an open season for mourning doves in Wisconsin from September 1 through October 30 and set daily bag and possession limits. 3 On June 19, 2001, Wisconsin Citizens Concerned for Cranes and Doves, John Wieneke, and Pat Fisher (collectively "WCCCD") commenced an action under Wis. Stat. § 227.40, seeking a declaration that the DNR exceeded its authority in promulgating *328 the dove hunting rule and an injunction prohibiting the DNR from enforcing the rule. The U.S. Sportsmen's Alliance Foundation (Alliance) intervened on behalf of the DNR. 4

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

Ill

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

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

¶ 7. A statute is not' ambiguous merely because the parties disagree as to its meaning, or because the circuit court and court of appeals reached different *330 conclusions; rather, a statute is ambiguous when it is readily susceptible to two or more meanings by reasonably well-informed individuals. Lincoln Sav. Bank, 215 Wis. 2d at 441-42. The test for ambiguity therefore examines the language of the statute "to determine whether 'well-informed persons should have become confused,' that is, whether the statutory.. . language reasonably gives rise to different meanings." Bruno, 260 Wis. 2d 633, ¶ 21 (citation omitted) (emphasis in original). Only if the statute is ambiguous must we turn to extrinsic sources such as legislative history to aid our interpretation. Seider v. O'Connell, 2000 WI 76, ¶¶ 50-52, 236 Wis. 2d 211, 612 N.W.2d 659.

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

¶ 9. The parties dispute whether WCCCD carries any burden in demonstrating the rule to be invalid and whether this court should give deference to the DNR's interpretation of the relevant statutes. The court of appeals concluded that while the standard of review is de novo, it could "benefit" from the interpretation of the DNR. Wis. Citizens Concerned for Cranes and Doves, *331 263 Wis. 2d 370, ¶ 5. The court of appeals also determined that WCCCD had the burden to convince the court that § NR 10.01(l)(h) was invalid. Id., ¶ 6. The DNR argues that WCCCD should bear such a burden and that this court should accord great weight deference to its interpretation of its rule- making authority. WCCCD maintains that it bears no burden and that this court should give no weight to the DNR's interpretation.

¶ 10. We first address whether WCCCD has any burden in this matter. The court of appeals relied on League of Wis. Municipalities v. DOC, 2002 WI App 137, ¶ 10, 256 Wis. 2d 183, 647 N.W.2d 301, for the proposition that a party challenging an administrative rule bears the burden of convincing the court that the rule is invalid. Wis. Citizens Concerned for Cranes and Doves, 263 Wis. 2d 370, ¶ 6. The court in League of Wis. Municipalities, 256 Wis. 2d 183, ¶ 10, in turn, relied upon Citizens' Utility Board v. PSC, 211 Wis. 2d 537, 552-53, 565 N.W.2d 554 (Ct. App. 1997), for this proposition. However, Citizens' Utility Board applied this burden in the context of reviewing an agency's application of legal standard to a set of facts. Id. at 552-53. The present controversy involves the construction of a statute, which is a purely legal question, subject to de novo review. Hutson v. State Pers. Comm'n, 2003 WI 97, ¶ 31, 263 Wis. 2d 612, 665 N.W.2d 212. Unlike factual questions, or questions where legal issues are intertwined with factual determinations, neither party bears any *332 burden when the issue before this court is whether an administrative agency exceeded the scope of its powers in promulgating a rule. 6

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

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

¶ 13. In Seider, we clearly stated that we apply a de novo standard in " 'exceeds statutory authority' cases under Wis. Stat. § 227.40(4)(a)." Seider, 236 Wis. 2d 211, ¶ 25. 7 Therefore, we will not defer to an agency's interpretation on questions concerning the scope of the agency's power. 8 In addition, we need not defer to the *334 interpretations of the circuit court or court of appeals on such matters. GTE North, 176 Wis. 2d at 564. 9

IV

¶ 14. In determining whether an administrative agency exceeded the scope of its authority in promulgating a rule, we must examine the enabling statute to ascertain whether the statute grants express or implied authorization for the rule. Wis. Hosp. Ass'n v. Natural Res. Bd., 156 Wis. 2d 688, 705, 457 N.W.2d 879 (Ct. App. 1990). It is axiomatic that because the legislature *335 creates administrative agencies as part of the executive branch, such agencies have "only those powers which are expressly conferred or which are necessarily implied by the statutes under which it operates." Kimberly-Clark Corp. v. PSC, 110 Wis. 2d 455, 461-62, 329 N.W.2d 143 (1983). See also DOR v. Hogan, 198 Wis. 2d 792, 816, 543 N.W.2d 825 (Ct. App. 1995). Therefore, an agency's enabling statute is to be strictly construed. Id. We resolve any reasonable doubt pertaining to an agency's implied powers against the agency. Kimberly-Clark Corp., 110 Wis. 2d at 462. Wisconsin has adopted the "elemental" approach to determining the validity of an administrative rule, comparing the elements of the rule to the elements of the enabling statute, such that the statute need not supply every detail of the rule. Wis. Hosp. Ass'n, 156 Wis. 2d at 705-06 (citing Kimberly-Clark Corp., 110 Wis. 2d at 461-62). If the rule matches the elements contained in the statute, then the statute expressly authorizes the rule. Grafft v. DNR, 2000 WI App 187, ¶ 7, 238 Wis. 2d 750, 618 N.W.2d 897. However, if an administrative rule conflicts with an unambiguous statute or a clear expression of legislative intent, the rule is invalid. Seider, 236 Wis. 2d 211, ¶¶ 72-73.

¶ 15. It is well established that "wild animals, including migratory birds, within the state, so far as it can be said such animals and birds are the subject of ownership, are owned by the state in its sovereign capacity in trust for the benefit of the people of the state[.]" State v. Herwig, 17 Wis. 2d 442, 446, 117 N.W.2d 335 (1962). Pursuant to Wis. Stat. § 227.11(2) (d), "an agency may promulgate rules implementing or interpreting a statute that it will enforce or *336 administer. . . The DNR claims authority under § 29.014(1) to promulgate the dove hunting rule.

¶ 16. Section 29.014(1) provides:

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

Wis. Stat. § 29.014(1). 10 As noted supra, § NR 10.01(l)(h) established an open season for mourning doves in Wisconsin from September 1 through October 30 and set daily bag and possession limits.

¶ 17. Following the "elemental" approach to agency authority explained supra, this case turns on whether mourning doves are "game" within the purview of § 29.014(1). Section 29.001(33) defines "game" as follows: " 'Game' includes all varieties of wild mammals or birds." 11 The DNR argues that mourning doves *337 clearly fall within the unambiguous definition of the term "game" in § 29.001(33), such that § 29.014(1) confers authority on the DNR to sanction an open hunting season for mourning doves.

¶ 18. In contrast, WCCCD argues that the term "game" is ambiguous when it is considered within the entire context of chapter 29. Specifically, WCCCD argues that "game" is readily susceptible to more than one meaning when read in conjunction with the terms "game birds" and "nongame species." 12 WCCCD argues, *338 and the DNR concedes, that mourning doves are not "game birds," but do fall under the category "nongame species." 13

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

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

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

Pet'r Br. at 27-28.

¶ 21. Despite WCCCD's impassioned argument, we find several flaws with its reasoning. First, the legislature has specifically chosen to provide a definition for the terms "game," "nongame species," and "game birds." "Game" is defined in § 29.001(33) to include "all varieties of wild mammals or birds." Mourning doves clearly fall within the definition of "game" that the legislature provided. The legislature has also specifically chosen, to define the term "nongame species": " 'Nongame species' means any species of wild animal not classified as a game fish, game animal, game bird or fur-bearing animal." Wis. Stat. § 29.001(60). Mourning doves clearly fall within this definition as well because they are not "game birds," as defined in Wis. Stat. § 29.001(39). Wisconsin courts have long followed the *340 rule that "[w]here a word or phrase is specifically defined in a statute, its meaning is as defined in the statute, and no other rule of statutory construction need be applied." Beard, 225 Wis. 2d at 23 (citing Fredricks v. Indus. Comm'n, 4 Wis. 2d 519, 522, 91 N.W.2d 93 (1958)). 14 Therefore, the definition the legislature has provided for a term controls the plain meaning of that term in the statute. State ex rel. Girouard v. Cir. Ct. for Jackson County, 155 Wis. 2d 148, 156, 454 N.W.2d 792 (1990).

¶ 22. WCCCD's argument that mourning doves cannot logically be both "game" and a "nongame species" fails because it erroneously relies on the ordinary meaning of these terms and their supposed contextual ambiguity, ignoring the definition the legislature has specifically chosen to provide for those terms in chapter 29. See id. Notably, the legislature defined "nongame species" in relation to "game birds," specifically excluding the latter from the definition of the former. Wis. Stat. § 29.001(60). However, the legislature chose to define "game" broadly in § 29.001(33). WCCCD would essentially have us define "game" as "all varieties of wild mammals or birds except those that have been designated as 'nongame species.'" We decline to rewrite the statute in such a fashion, as the legislature did not define "game" and "nongame species" as mutually exclusive terms. The legislature could have defined "game" as composed of "game birds," "game fish," and "game animals," for purposes of § 29.014(1), but chose not to do *341 so. 15 The provided legislative definition of "game" is clear and unambiguous: "all varieties of wild mammals or birds." The presence of the terms "nongame species" and "game birds" within chapter 29 does not render the term "game" ambiguous.

¶ 23. This court has previously recognized that the DNR has broad authority as custodian of Wisconsin's wildlife to enact regulations that maintain a balance between conserving and exploiting the state's wildlife. Barnes v. DNR, 184 Wis. 2d 645, 660, 516 N.W.2d 730 (1994). 16 The legislature has expressly granted the DNR broad regulatory authority to "establish and maintain open and closed seasons for fish and game . . . and conditions governing the taking of fish *342 and game that will conserve the fish and game supply and ensure the citizens of this state continued opportunities for good fishing, hunting, and trapping." Wis. Stat. § 29.014(1).

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

¶ 25. However, that does not mean that the DNR's authority to regulate "game" vis-a-vis birds is unfettered or unaffected by other provisions outside of § 29.014(1). As the DNR aptly notes, Wisconsin is subject to the restrictions contained in the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-711 (2000). 17 Further, the legislature may object to any proposed rule authorizing an open season of any given species pursuant to Wis. Stat. § 227.19. After a rule is promulgated, the *343 legislature may suspend operation of the rule. Wis. Stat. § 227.26. Despite these limitations, we have found no provision in chapter 29 that prohibits the DNR from authorizing an open season under § 29.014(1) for "non-game species," much less mourning doves.

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

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

¶ 28. Similarly, chapter 29 uses the term "game birds" in provisions that provide specific regulations governing those species listed as such. The first substantive occurrence of the term "game birds" is found in Wis. Stat. § 29.091, which concerns the taking of predatory game birds in a wildlife refuge. Wisconsin Stat. § 29.364(1) applies certain restrictions on the transportation of "game birds." See also Wis. Stat. § 29.741(2) (prohibiting taking plants that furnish food for game birds from the public waters); Wis. Stat. § 29.867 (providing for the establishment of and regulations pertaining to game bird farms); Wis. Stat. § 29.921(7) (empowering DNR wardens to kill dogs that destroy game birds). These provisions apply special protections to *344 "game birds" and limit certain activities with respect thereto. Again, there is no provision in chapter 29 that states a bird that is not listed as a "game bird" may not nonetheless constitute "game."

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

¶ 30. We conclude that the legislative scheme contained in Wis. Stat. ch. 29 uses the terms "game," "nongame species," and "game birds" at different times for different purposes, and does not demonstrate that the terms "game" and "nongame species" are mutually exclusive; nor does it indicate an intent to treat "game birds" as an exclusive subset of "game" in relation to birds that may be hunted. 18 Because the legislature has *345 provided a clear definition for the term "game" in chapter 29, that definition controls the plain meaning of that term in the statute. Girouard, 155 Wis. 2d at 156. The legislature defined "game" as "all varieties of wild mammals or birds." Wis. Stat. § 29.001(33). Mourning doves plainly fall within this definition. Neither the definition the legislature provided for the term "game" nor the context within which "game" is used throughout chapter 29 render its meaning ambiguous. Therefore, we conclude that mourning doves fall within the unambiguous definition of the term "game," such that the DNR has express authority under § 29.014(1) to adopt § NR 10.01(l)(h).

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

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

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

¶ 32. WCCCD asserts that as a "nongame species," mourning doves are regulated under § 29.039(1), which is more specific than § 29.014(1), and therefore should control. See Lindsey v. Lindsey, 140 Wis. 2d 684, 693, *346 412 N.W.2d 132 (Ct. App. 1987). As § 29.039(1), according to WCCCD, does not permit the DNR to allow hunting of "nongame species," § 29.039(1) rather than § 29.014(1) should govern the existence of the DNR's authority in this case. The DNR counters that § 29.014(1) is the more specific statute because it specifically relates to hunting, whereas § 29.039(1) relates to conservation. In any event, the DNR argues that it is authorized to set seasons for "nongame species" under § 29.039(1), as that section specifically authorizes the DNR to establish limits for the "taking" of "nongame species." We need not determine which provision of chapter 29 is more specific because that principle of statutory construction applies only where the two statutes are in conflict. State v. Maxey, 2003 WI App 94, ¶ 22, 264 Wis. 2d 878, 663 N.W.2d 811. We conclude that the statutes are not in conflict because § 29.039(1) implicitly empowers the DNR to set open seasons for "nongame species."

¶ 33. Although section 29.039(1) does not explicitly empower the DNR to set open seasons for "nongame species," it may nonetheless implicitly empower the DNR to do so because § 29.039(1) permits the DNR to regulate the "taking" of "nongame species." Whether § 29.039(1) implicitly empower