Industry Task Force for DDT v. Department of Natural Resources of Wisconsin

No. 132-078 (Wis. Cir. Ct. November 4, 1971)

Association of DDT manufacturers do not have standing to challenge a ruling by the Wisconsin Department of Natural Resources that DDT is an environmental pollutant because the Wisconsin statute which prohibits the sale or use of the pesticide in the state eliminates their interest in the administrative decision. The fact that the ruling impedes plaintiff's opposition to anti-DDT policy decisions in other states is of no consequence in determining their standing because this grievance is not a direct result of the administrative decision.

Counsel for Plaintiffs
Willard S. Stafford
204 South Hamilton Street
Madison, Wisconsin 53702

Counsel for Defendants
James A. Rogers Ass't. Attorney General
Department of Justice
Madison, Wisconsin 53702

[2 ELR 20002]

Maloney, C.J.

MEMORANDUM OPINION

The Petitioners are asking for a Judicial Review of a Declaratory Ruling of the Department of Natural Resources dated October 23, 1970, in which the Department ruled that "DDT and its analogs are * * * environmental pollutants" within the definitions of Wis. Stats. Secs. 144.01(11) and 144.30(9). It is contended that there were procedural irregularities in the issuance of this ruling, and that the Department was without jurisdiction to make rulings concerning DDT due to previously enacted legislation concerning the regulation of all pesticides. Chap. 146, Laws of 1969.

The Court finds it unnecessary to confront either of these contentions. On March 12, 1970 (prior to the Department ruling), Chap. 426, Laws of 1969 became effective, making unlawful the distribution, sale or use of DDT within the State of Wisconsin. This enactment destroyed the petitioners' standing to seek review of the Department Declaratory Ruling.

Sec. 227.06, Wis. Stats., specifically provides that "a ruling shall be subject to review in the circuit court in the manner provided for the review of administrative decisions." Concerning such judicial review of administrative decisions, Sec. 227.15 states that "administrative decisions, which directly affect the legal rights, duties, or privileges of any person, whether affirmative or [2 ELR 20003] negative in form, * * * shall be subject to judicial review * * *." § 227.16 further provides that "(e)xcept as provided by law, any person aggrieved by a decision specified in § 227.15 and directly affected thereby shall be entitled to judicial review." (Emphasis Added).

An "aggrieved person" within the meaning of the statutes governing appeals has been defined by the Wisconsin Supreme Court as follows:

"An 'aggrieved party' * * * is one having an interest recognized by law in the subject matter which is injuriously affected by the judgment." Town of Greenfield v. Joint County School Committee of Milwaukee and Waukesha Counties, (1955) 271 Wis. 442, 73 NW 2d 580. (Emphasis Added).

American Jurisprudence expands upon this definition:

"An 'aggrieved party' * * * include(s) only those who have rights which may be enforced at law and whose pecuniary interests might be established in whole or in part by the decree, the true test being whether the appellant's legal rights have been invaded, not whether he has suffered any actual pecuniary loss or been deprived of any actual peuniary benefit.

"The substance of the judgment, not the opinion of the party, determines whether or not he is aggrieved; the damage or grievance must be a direct and positive one, effected by the judgment concluding and acting upon his rights, and such damage must be by the record, and not in consequence of it." 4 Am. Jur. Appeal & Error, § 83. (Emphasis Added).

As is disclosed by its Petition to this Court, the sole interest of the Industry Task Force for DDT in this proceeding is that it "is engaged in the business of manufacturing and selling DDT * * *." As of March, 1970, this interest was no longer recognized by law in this state. It was, therefore, legally impossible for the Department, seven months later, to adversely affect such legal interests in their ruling, since such interests no longer existed.

Petitioner argues, however, that the Department ruling has adversely affected their interests in that the mere existence of this ruling impedes their efforts to oppose legislation and rulings restricting the use of DDT in other states. The petitioners' interest in this regard is neither recognized nor enforceable at law. Further, such a grievance is, at most, an indirect consequence of the Declaratory Ruling, unrelated to the substance of the ruling.

Although the Court has found no Wisconsin precedent dealing with "out-of-state" interests, similar to that here asserted, it is clear from previous decisions that the interests involved in judicial review of administrative rulings are only those rights and privileges established by Wisconsin statutes and protectable by Wisconsin courts. Tyler v. State Dept. of Public Welfare (1963) 19 Wis. 2d 166, 119 NW 2d 460; Wisconsin Power & Light Co. v. Public Service Comm. (1969) 45 Wis. 2d 253, 172 NW 2d 639. The interest of the petitioner here is clearly not within this class.

It is apparent that if the petitioner has been aggrieved or has had his interests and privileges affected directly, that has been due to the action of the Legislature, and as such his possibility of remedy resides there.

It is questionable whether the Declaratory Ruling, coming seven months after the Legislature had acted, was efficacious other than to endorse the Legislature's action.But this question is not properly before the Court because the petitioner is not an "aggrieved party."

Counsel for the Department of Natural Resources may prepare the proper Judgment, submitting same to opposing counsel ten days before presenting it to the Court for signature.

JUDGMENT ON PETITION TO REVIEW (NOVEMBER 23, 1971)

Norris M. Maloney, J.:

This action was brought before the court on the petition of the Industry Task Force for DDT of the National Agricultural Chemicals Association for review of the Declaratory Ruling of the Department of Natural Resources, dated October 23, 1970, in which "DDT and its analogs" were declared to be environmental pollutants within the meanings of Wisconsin Statutes sections 144.01(11) and 144.30(9).

Briefs were filed by Mr. Willard S. Stafford, Esq., on behalf of petitioner, by Mr. James A. Rogers, Assistant Attorney General, on behalf of respondents, and by Mr. Edward Lee Rogers, Esq., General Counsel, Environmental Defense Fund on behalf of that organization as amicus curiae. Oral argument was made by Messrs. Stafford and Rogers.

On the basis of these briefs and argument, and for the reasons set forth in the Memorandum Opinion of this court dated November 4, 1971, and on the motion of counsel for respondents,

IT IS ADJUDGED:

That the petition for review of the Declaratory Ruling of the Department of Natural Resources rendered October 23, 1970, is hereby dismissed.