oag03-00

  First, there is the sub. (6r) and DNR rule or permit exception. The language as quoted above from Wis. Stat. § 29.604(4)(intro.) includes the following introductory exception: “Except as provided in sub. (6r) or as permitted by departmental rule or permit.” Wis. Stat. § 29.604(4)(intro.). This language presents two questions: What is provided under sub. (6r)? What may DNR authorize by rule or permit?

  Regarding the exception provided in sub. (6r), that subsection sets forth procedures for a state agency to follow when it conducts, approves, or funds an activity that may affect an endangered or threatened species. Taking a plant may be allowed by DNR under sub. (6r), but only if the conditions of that subsection are met. See Wis. Stat. § 29.604(6r). Thus, sub. (6r) does not exempt state agencies from the statute. Rather, it provides an alternative procedure that state agencies may be able to follow when their actions directly or indirectly affect listed plants. Responding here to your specific question, Wis. Stat. § 29.604 applies to state-listed endangered and threatened plants growing on public property. If a state agency is involved, the application of Wis. Stat. § 29.604 may be under sub. (6r), rather than under sub. (4) directly.

  Regarding the exception stated in sub. (4)(intro.) for what is “permitted by departmental rule or permit,” subs. (6) and (6m) give DNR authority to issue permits allowing listed plants to be adversely affected under certain specified circumstances. In my opinion, however, DNR may not by rule or permit allow what sub. (4) prohibits unless DNR is expressly authorized to do so under sub. (6) or (6m). Again, responding to your specific question, Wis. Stat. § 29.604 applies to state-listed endangered and threatened plants growing on public property. If a rule or permit is authorized under sub. (6) or (6m), the application of Wis. Stat. § 29.604 may be under sub. (6) or (6m), rather than under sub. (4) directly.

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  Wisconsin Statute § 29.604(6)(a) gives DNR authority to adopt rules setting the terms and conditions under which it may issue a permit authorizing the “taking, exportation, transportation or possession of any . . . wild plant on the list of endangered and threatened species for zoological, educational or scientific purposes, [or] for propagation . . . in captivity for preservation purposes.” Beyond the rulemaking authority delegated to it, DNR lacks general rulemaking authority enabling it to carve out other exceptions to sub. (4). Subsection (4)(intro.) may not be read more broadly to delegate to DNR rulemaking or permit issuing authority without any accompanying standards governing its exercise. See Niagara of Wis. Paper Corp. v. DNR, 84 Wis. 2d 32, 48, 268 N.W.2d 153 (1978) (“agency charged with administering a law may not substitute its own policy for that of the legislature”); Schmidt v. Local Affairs & Development Dept., 39 Wis. 2d 46, 59, 158 N.W.2d 306 (1968) (“power . . . to fix the limits within which the law shall operate—is a power which is vested by our constitutions in the legislature and may not be delegated”); Clintonville Transfer Line v. Public Service Comm., 248 Wis. 59, 68-69, 21 N.W.2d 5 (1945).

  Second, there is the “in the course of forestry or agricultural practices or in the construction, operation or maintenance of a utility facility” exception provided in Wis. Stat. § 29.604(4)(c). The forestry and agricultural practices exceptions appear clear. Listed plants may be affected by forestry or agriculture. The “utility facility” exception may be less clear. “Utility facility” is not defined in Wis. Stat. § 29.604, but it is defined in two other sections of the Wisconsin statutes. In Wis. Stat. §§ 30.40(19) and 84.063(1)(b), “utility facility” is defined to mean a structure used for the transmission, distribution, or delivery of electrical power or light, heat, water, gas, sewer, telegraph, or telecommunications services. Thus, consistent with the use of the term “utility facility” elsewhere in the statutes, only property used for these activities is exempt from sub. (4). Most governmentally owned lands and most governmental activities do not fall within the forestry, agricultural, or utility facility exceptions stated in the final portion of sub. (4)(c)(intro.).

  Finally, Wis. Stat. § 29.604 is not ambiguous, and so a review of its legislative history is unnecessary. See State v. Badzmierowski, 171 Wis. 2d 260, 263, 490 N.W.2d 784 (Ct. App. 1992). However, a review of that legislative history further supports a broad reading of the prohibitions in sub. (4)(c) and a narrow reading of the exceptions to those prohibitions.

  For these reasons, I conclude that Wis. Stat. § 29.604, which is the Wisconsin endangered and threatened species statute, applies to protect state-listed endangered and threatened plants growing on public property.

            Sincerely,

            James E. Doyle

            Attorney General

JED:PP:tw

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CAPTION:

  Wisconsin Stat. § 29.604, which is the Wisconsin endangered and threatened species statute, applies to protect state-listed endangered and threatened plants growing on public property.