Chapter 94

94.10(5)(a) (a) Nursery stock shipped to grower or dealer. No person may sell or distribute any shipment of nursery stock to a nursery grower or nursery dealer, and no nursery grower or nursery dealer may accept a shipment of nursery stock, unless that shipment is labeled with all of the following:

94.10(5)(a)1. 1. The name and address of the person selling or distributing the shipment to the nursery grower or nursery dealer.

94.10(5)(a)2. 2. A certification, by the person under subd. 1., that all of the nursery stock included in the shipment is from officially inspected sources.

94.10(5)(b) (b) Unlabeled shipments. Each nursery grower, nursery dealer, and Christmas tree grower shall promptly report to the department any shipment of nursery stock tendered to the nursery grower, nursery dealer, or Christmas tree grower that is not fully labeled according to par. (a).

94.10(5)(c) (c) Nursery stock sold at retail. A person selling nursery stock at retail shall ensure that the nursery stock is labeled with the common or botanical name of the nursery stock.

94.10(6) (6) Care of nursery stock.

94.10(6)(a) (a) Adequate facilities. A nursery grower or nursery dealer shall maintain facilities that are reasonably adequate for the care and keeping of nursery stock held for sale, so that the nursery grower or nursery dealer can keep the nursery stock in healthy condition pending sale.

94.10(6)(b) (b) Reasonable examinations. Nursery growers and nursery dealers shall make reasonable examinations of nursery stock held for sale to determine whether that nursery stock is capable of reasonable growth, is infested with injurious pests or is infected with disease.

94.10(7) (7) Prohibitions.

94.10(7)(a) (a) Nursery dealers. No nursery dealer may misrepresent that the nursery dealer is a nursery grower.

94.10(7)(b) (b) Nursery growers and dealers. No nursery grower or nursery dealer may do any of the following:

94.10(7)(b)1. 1. Sell, offer to sell or distribute any nursery stock that the nursery grower or nursery dealer knows, or has reason to know, is infested with plant pests or infected with plant diseases that may be spread by the sale or distribution of that nursery stock.

94.10(7)(b)1m. 1m. Obtain, hold, sell, offer to sell or distribute nursery stock from any source other than an officially inspected source.

94.10(7)(b)2. 2. Sell, offer to sell or distribute any nursery stock that the nursery grower or nursery dealer knows, or has reason to know, will not survive or grow.

94.10(7)(b)3. 3. Misrepresent the name, origin, grade, variety, quality, or hardiness of any nursery stock or make any other false or misleading representation in the advertising or sale of nursery stock.

94.10(7)(b)4. 4. Conceal nursery stock to avoid inspection by the department, falsify any record required under this section or make any false or misleading statement to the department.

94.10(7)(c) (c) Christmas tree grower. No Christmas tree grower may obtain nursery stock from any source other than an officially inspected source.

94.10(8) (8) Department inspection. The department may inspect nurseries and premises at which nursery stock is held for sale or distribution. The department may inspect premises at which evergreen trees are grown for eventual sale as Christmas trees and premises at which Christmas trees are held for sale or distribution.

94.10(9) (9) Department orders.

94.10(9)(a) (a) Holding orders and remedial orders. An authorized employee or agent of the department may, by written notice, order a nursery grower or nursery dealer to do any of the following:

94.10(9)(a)1. 1. Temporarily hold nursery stock pending inspection by the department.

94.10(9)(a)2. 2. Remedy violations of this section.

94.10(9)(a)3. 3. Refrain from importing weeds or pests that threaten agricultural production or the environment in this state.

94.10(9)(a)4. 4. Permanently withhold nursery stock from sale or distribution, if the sale or distribution would violate this section or an order issued under this section and the violation cannot be adequately remedied in another manner.

94.10(9)(a)5. 5. Destroy or return, without compensation from the department, nursery stock that is sold or distributed in violation of this section, or an order issued under this section, if the violation cannot be adequately remedied in another manner.

94.10(9)(b) (b) Hearing. If the recipient of an order under par. (a) requests a hearing on that order, the department shall hold an informal hearing within 10 days unless the recipient of the order consents to a later date for an informal hearing. The request for a hearing is not a request under s. 227.42 (1). If a contested matter is not resolved at the informal hearing, the recipient of the order is entitled to a class 2 contested case hearing under ch. 227. The department is not required to stay an order under par. (a) pending the outcome of any hearing under this paragraph.

94.10(10) (10) Reciprocal agreements with other states.

94.10(10)(a) (a) General. The department may enter into reciprocal agreements with other states to facilitate interstate shipments of nursery stock.

94.10(10)(b) (b) Officially inspected sources. As part of an agreement under par. (a), the department may recognize sources of nursery stock in another state as officially inspected sources.

94.10(10)(c) (c) Inspection and certification standards. An agreement under par. (a) may specify standards and procedures for all of the following:

94.10(10)(c)1. 1. Inspecting officially inspected sources of nursery stock.

94.10(10)(c)2. 2. Inspecting and certifying interstate shipments of nursery stock.

94.10 History History: 1975 c. 394 ss. 20, 22; 1975 c. 421; Stats. 1975 s. 94.10; 1983 a. 189; 1989 a. 31; 1993 a. 16; 1995 a. 27; 1999 a. 9; 2007 a. 62; 2011 a. 209; 2015 a. 197 s. 51.

94.11 94.11 Special inspections; fees. Persons applying for any special inspection and certification of nursery stock or other plants or material as to freedom from infestation or infection shall pay a reasonable fee to cover travel and other expenses of the department.

94.11 History History: 1975 c. 394 s. 23; Stats. 1975 s. 94.11.

94.26 94.26 Cranberry culture; maintenance of dams, etc. Any person owning lands adapted to the culture of cranberries may build and maintain on any land owned by the person such dams upon any watercourse or ditch as shall be necessary for the purpose of flowing such lands, and construct and keep open upon, across and through any lands such drains and ditches as shall be necessary for the purpose of bringing and flooding or draining and carrying off the water from such cranberry growing lands, or for the purpose of irrigation, fertilization and drainage of any other lands owned by the person; provided, that no such dams or ditches shall injure any other dams or ditches theretofore lawfully constructed and maintained for a like purpose by any other person.

94.26 History History: 1993 a. 492.

94.26 Cross-reference Cross-reference: See also s. NR 19.03, Wis. adm. code.

94.26 Annotation This section exempts cranberry growers from the permit requirements of s. 30.18 for diversion of water for agricultural purposes. State v. Zawistowski, 95 Wis. 2d 250, 290 N.W.2d 303 (1980).

94.27 94.27 Liability for damages. Any person who builds or maintains any dam or constructs or keeps open any ditch or drain under s. 94.26 is liable to persons whose lands are overflowed or otherwise injured by the dam, ditch or drain for the full sum of damages sustained, which shall be ascertained under s. 94.28 and recovered under ss. 94.28 to 94.30.

94.27 History History: 1993 a. 492; 1997 a. 253.

94.28 94.28 Arbitrators to fix damages.

94.28(1) (1) If a person claiming damages from a dam, ditch or drain cannot agree with the person liable to pay the damages under s. 94.27, the damage claimant shall select one disinterested arbitrator and give notice of the selection to the person against whom the damages are claimed. The person from whom damages are claimed shall, within 10 days after receipt of the notice, select another disinterested arbitrator, not of kin to any of the parties interested in maintaining the dams, ditches or drains, and give notice of the selection to the claimant and to the persons selected as arbitrators.

94.28(2) (2) 

94.28(2)(a) (a) The persons selected as arbitrators under sub. (1) shall, within 20 days after notice of their appointment, do all of the following:

94.28(2)(a)1. 1. Appoint a disinterested 3rd person to act as arbitrator with them.

94.28(2)(a)2. 2. Fix a time and place at which the arbitrators shall meet to determine the claimant’s damages.

94.28(2)(a)3. 3. Give notice of the appointment of the 3rd arbitrator and the time and place of hearing to the interested parties.

94.28(2)(b) (b) At the time and place fixed under par. (a) 2., the arbitrators shall view the premises and hear the proofs and allegations of the parties. Within 10 days thereafter, the arbitrators, or any 2 of them, shall make duplicate statements of the proceedings had by them and of the amount that they order to be paid to the claimant for the claimant’s damages and the amount to be paid by the respective parties for the arbitrators’ fees and the costs of the proceedings. The arbitrators shall deliver a copy of the statement and order to each party. Within 20 days thereafter, the amount so ordered shall be paid by the party of whom required unless an appeal is taken as provided under s. 94.29.

94.28 History History: 1993 a. 492; 1997 a. 253.

94.29 94.29 Appeal. If either party is not satisfied with the award the party may, within 10 days after the delivery of the copy thereof to him or her, serve upon either of the arbitrators notice of appeal from their award to the circuit court of the county in which the lands or any part thereof are situated and pay to the arbitrators the whole amount of their fees plus the fee prescribed in s. 814.61 (8) (am) 1.; and if the party required to pay the damages gives notice of an appeal therefrom he or she shall file with the notice of appeal an undertaking, signed by 2 or more sureties, to be approved by at least 2 of the arbitrators, in double the amount of the award, conditioned to pay any judgment that may be rendered against the party upon appeal. Upon filing the notice of appeal and undertaking, when required, the arbitrators, or 2 of them, shall, within 10 days, make and sign a full statement of the proceedings had by them and of their award and file the same with the clerk of circuit court and pay the fee prescribed in s. 814.61 (8) (am) 1.; and thereupon the clerk shall enter an action in which the claimant is the plaintiff, which shall be deemed then at issue, and proceedings shall be had thereon in like manner as in other civil actions in the court. Unless the appellant obtains a more favorable judgment upon appeal, he or she shall pay costs; otherwise, the respondent.

94.29 History History: 1981 c. 317; 1993 a. 16; 1995 a. 27.

94.30 94.30 Rights on payment.

94.30(1) (1) If neither party appeals from the award under s. 94.28 and the responsible party pays the full amount of damages and costs awarded within the time prescribed under s. 94.28 (2) (b) or if, upon an appeal, a final judgment is rendered in favor of the claimant and the responsible party pays the judgment and all costs awarded to the claimant within 60 days after entry of the final judgment, that responsible party shall have the perpetual right to maintain and keep the dams, ditches or drains that caused the damage in good condition and repair. Neither the responsible party nor the responsible party’s assigns shall be liable for the payment of any further damages on account of the dams, ditches or drains.

94.30(2) (2) If the responsible party fails to make payment as described in sub. (1) within the applicable prescribed time, the responsible party shall forfeit all right under this chapter to maintain the dams, ditches or drains that caused the damage.

94.30 History History: 1993 a. 492; 1997 a. 253.

94.31 94.31 Service of notice. In all cases arising under ss. 94.26 to 94.30 when it shall be necessary to serve any notice upon any person who may be out of the state or whose whereabouts shall not be known to the person desiring to serve the same, such notice may be served upon any agent or employee of such person who may be found within this state, and such service shall have the same effect as if it was made upon the party interested.

94.32 94.32 Pay of arbitrators. The arbitrators appointed under s. 94.28 shall each receive $3 per day for their services, to be paid in whole or in part by either party as the arbitrators determine.

94.32 History History: 1997 a. 253.

94.35 94.35 Cranberry Growers Association. The Wisconsin Cranberry Growers Association shall obtain and publish information relative to the cultivation and production of cranberries. The association shall hold semiannual meetings in August and January at such place as it shall determine.

94.35 History History: 1983 a. 524.

94.36 94.36 Certified seed potatoes.

94.36(1) (1) Prohibition; waiver.

94.36(1)(a) (a) Except as provided in par. (b), no person may plant 5 or more acres of potatoes in this state in a calendar year unless all of the seed potatoes that will be used for planting in this state by the person are certified under ch. ATCP 156, Wis. Adm. Code.

94.36(1)(b) (b) The department, upon the request of one or more growers, may waive the prohibition under par. (a) for seed potatoes of a specific variety or genotype for a growing season if there are not enough certified seed potatoes of that variety or genotype reasonably available to growers during that calendar year and the department determines that the seed potatoes of that variety or genotype that will be used for planting do not pose a serious disease threat.

94.36(2) (2) Records.

94.36(2)(a) (a) A person who plants 5 or more acres of potatoes in this state in a calendar year shall retain all of the following records, for each field planted, for a period of 3 years after planting:

94.36(2)(a)1. 1. The name and location of the person from whom the seed potatoes were purchased.

94.36(2)(a)2. 2. A copy of the sales contract and invoice for the seed potatoes.

94.36(2)(a)3. 3. The certification tag for the seed potatoes.

94.36(2)(b) (b) Records required to be retained under par. (a) are open to inspection by the department during normal business hours. A person required to retain records under par. (a) shall provide a copy of those records to the department upon request.

94.36(3) (3) Penalties.

94.36(3)(a) (a) Any person who plants potatoes in violation of sub. (1) in a calendar year shall forfeit not more than $150, plus not more than $150 for each full acre planted in violation of sub. (1).

94.36(3)(b) (b) Any person who fails to retain, allow inspection of, or provide copies of records in violation of sub. (2) shall forfeit not more than $200.

94.36 History History: 2017 a. 46.

94.38 94.38 Agricultural and vegetable seeds; definitions. When used in ss. 94.38 to 94.46 unless the context requires otherwise:

94.38(1) (1) “Advertisement” means all representations, other than those on the label, disseminated in any manner or by any means relating to seed within the scope of ss. 94.38 to 94.46.

94.38(2) (2) “Agricultural seed” includes the seeds of grass, forage, cereal, fiber crops and lawn seeds and any other kinds of seeds commonly recognized and sold within this state for sowing purposes as agricultural seeds or mixtures thereof, and may include noxious weed seeds if used as agricultural seed.

94.38(7) (7) “Label” means the display of written, printed or graphic matter upon or attached to the container of seed or, for seed sold in bulk quantities, included with the invoice or shipping document furnished the purchaser at time of delivery.

94.38(8) (8) “Labeler” means any person who as grower, processor, jobber, distributor or seller labels or accepts responsibility for labeling information pertaining to any container or lot of agricultural seed or vegetable seed and whose name and address are required by the department by rule to appear on the label.

94.38(10) (10) “Lawn seed” means the seed of grasses, clovers or other agricultural seeds or mixtures thereof commonly used or sold for seeding lawns, parks or turf areas in this state.

94.38(11) (11) “Lot” means a definite quantity of seed identified by a lot number or other mark, every portion or bag of which is uniform within recognized tolerances for the factors which appear in the labeling.

94.38(14) (14) “Preinoculated seed” means legume seed which has received an application, prior to sale, of a culture of bacteria which will effectively inoculate the legume as shown by nodulation of the roots, growth of the plants and accumulation of nitrogen in the plants.

94.38(16) (16) “Record” means all information relating to lot, identification, source, origin, variety, amount, processing, blending, testing, labeling, sale and distribution of seed and includes a file sample of each lot.

94.38(18) (18) “Seizure” means the taking of legal custody over seed by court order.

94.38 History History: 1975 c. 39, 308; 1983 a. 189; 1985 a. 138; 1993 a. 112; 2009 a. 28.

94.385 94.385 Seed label requirements.

94.385(1) (1) No person may sell, distribute, or offer or expose for sale in this state a container of agricultural seed or vegetable seed for seeding or sprouting purposes unless the container bears or has attached to it in a conspicuous place a label containing the information required by the department by rule.

94.385(2) (2) Except as provided under s. 94.43 (2), no person may sell in this state a bulk lot of agricultural or vegetable seed for seeding or sprouting purposes unless the person includes with the invoice or shipping document furnished the purchaser at time of delivery a label containing the information required by the department by rule.