City of Eau Claire v. Department of Natural Resources

Nos. 133-002; 133-003 (Wis. Cir. Ct. July 6, 1972)

Wisconsin law establishing procedures for voiding Department of Natural Resources sewerage connection orders to municipalities does not violate the public trust doctrine nor constitute an unlawful delegation of legislative authority. Public trust doctrine has developed with regard to navigable waters of state. There is no precedent for finding that subterranean ground waters involved in sewage pollution control are navigable waters. Therefore, public trust doctrine is inapplicable to disputed law. Even if the doctrine were applicable, this law would not necessarily be invalid since local regulation of navigable waters is permissible where not inconsistent with state interest. On issue of unlawful delegation of authority, court finds legislative attempt to strike reasonable compromise between competing interests of urban development and statewide pollution control to be lawful. Solution of this problem properly lies with legislature. Where state and local interests conflict, court may apply doctrine of "paramount interest" to the problem. Disputed law is statement by legislature that, even though water purity is matter of statewide concern, actual extension of local sewage services in primarily a matter of local concern. This determination is entitled to great weight in courts' consideration of delegability of certain powers to localities. Finally, Department of Natural Resources, as creature of legislature, is subject to legislative control of the procedures whereby its orders may be voided.

Counsel for Plaintiff
Ted Fisher City Attorney
City Hall
Eau Claire, Wisc. 54701

Counsel for Defendant
James A. Rodgers Assistant Attorney General
Department of Justice
Madison, Wisc. 53702

[2 ELR 20513]

Sachtjen, J.

The cities of Eau Claire and Altoona have petitioned for review of orders issued by the Department of Natural Resources.

On October 17, 1969, the department issued to the City of Eau Claire an order requiring:

"1. That by March 15, 1970, the City of Eau Claire, in conjunction with the Washington Heights Sanitary District and the City of Altoona develop plans and submit construction schedules for connections with the Washington Heights Sanitary District and the City of Altoona with construction to commence and connections to be completed in accordance with the terms of the approved construction schedules; or, in lieu thereof,

"2. On or before December 15, 1969, submit by joint agreement with the Washington Heights Sanitary District and the City of Altoona acceptable alternative plans and implementation schedules, consistent with the nonproliferation policy of the Department."

Corresponding orders were issued on that date to the City of Altoona and the Washington Heights Sanitary District.

The City of Eau Claire petitioned for a review of these orders, pursuant to sec. 144.56, Stats., and such a hearing was held on December 3, 1970. Following that hearing a new order was issued which rescinded the second paragraph of the original orders and amended the first paragraph to read as follows:

"That by April 15, 1971, the Cities of Eau Claire and Altoona and the Washington Heights Sanitary District jointly develop plans and submit a construction schedule for connection with the City of Eau Claire with construction to commence and connection to be completed in accordance with the terms of the approved construction schedule."

The petitioners then asked for review in this court of that amended order.

Subsequently, Chapter 89, Laws of 1971, was enacted. This law provides in essence that if, within thirty days of the issuance of such orders by the department, the cities subject to the orders initiate proceedings to annex an area with which they have to connect sewage facilities and such proposed annexation is defeated in the referenda, the orders are void.

The question presented to this court is whether Chapter 89 is constitutional. The attorney general argues that the law violates the "public trust doctrine" enunciated in Muench v. Public Service Comm. (1952), 261 Wis. 492, and that the statute constitutes an unlawful delegation of legislative authority. The petitioners, on the other hand, take the position that the public trust doctrine relates only to navigable waters and cannot be extended to the subterranean ground waters which are the subjects of Chapter 89 and that a municipality can be given authority in the area of pollution abatement, which is a matter of statewide concern.

The public trust doctrine has its roots in Article IX, Section 1, Wisconsin Constitution. This constitutional provision is derived verbatim from Article IV, Northwest Ordinance of 1787, and from the English common law. This body of law was created, and has been shaped and interpreted over many decades, with regard to navigable waters. The basic distinction stares one directly in the face when the public trust doctrine is sought to be applied to Chapter 89. The attorney general now seeks to extend the doctrine to include the subterranean ground waters, which are the subject of the orders issued in this case.

We can discover no case law — and none is cited — that has ever interpreted "navigable waters" to embrace subterranean ground waters such as we have here. We are of the opinion that the public trust doctrine is inapplicable to Chapter 89.

This is not to say that the subterranean water supply of the state is not a matter of statewide concern. The statewide importance of water pollution abatement in any given locality of the state is obvious since our rivers, streams, lakes and tributaries are not confined by municipal boundaries. Even if the public trust doctrine were applied to subterranean ground waters, we question the unconstitutional effects on Chapter 89. The Muench case does not hold that a municipality has no power to enact regulations affecting navigable waters. Statutory law provides for local regulation on navigable waters which are not inconsistent with state interests.

"Except as elsewhere in the statute specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government in good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The power hereby conferred shall be in addition to all other grants, and shall be limited only by express language." Wis. Stat. 62.11(5).

This proposition, that a municipality can enact regulations affecting navigable waters, was expounded in the cases of City of Madison vs. Tolzman, (1959), 7 Wis. 2d 570, 97 N.W.2d 513, and Menzer vs. Elkhart Lake, (1971), 51 Wis. 2d 70, 186 N.W.2d 290. In Tolzman the court could not find any express statutory powers for a municipality to enact a licensing fee on boats, nor could it be implied from existing statutes. The court stated:

"The legislature itself has defined navigability to include inland lakes as well as streams. The free and unobstructed use of the navigable waters of the state under the trust doctrine is a matter of statewide concern. We realize that trustees may delegate some authority. However, in this instance where the state is trustee not only for residents of Wisconsin but for all the people, such delegation of authority should be in clear and unmistakable language and cannot be implied from the language of a general statute delegating police power to cities."

The court relates that municipalities have only such powers as are expressly granted to them by the legislature and such others as are necessary and convenient to the exercise of the powers expressly granted. The court in Tolzman says there was no specific statutory delegation of power for the license fee, but this does not mean a municipality could not be given the power to enact regulations affecting water supply. The municipality has various powers over water supply such as flouridation and other water treatment concerns.

The Menzer case upheld this very proposition that the municipalities can be delegated authority to enact boating regulations under sec. 30.77, Wis. Stats. Likewise, limited authority has been granted to municipalities by Chapter 89. In Menzer the court says a city cannot "block advancement of paramount interests" of the state but it can have "limited authority or responsibility to further proper public interests. Menzer distinguishes the Muench rationale sharply by stating: "We would [2 ELR 20514] hold Muench to its facts," and "The purpose of the delegation as well as the area of concern in which it is made to appear relevant and material on the issue of whether delegation of state authority to local municipalities is proper or permissible."

The next question is whether Chapter 89 is an unlawful delegation of legislative authority. The attorney general contends that it is "untenable" to argue "that the preservation and upgrading of water quality by extending sewers to those areas now served extensively by septic tanks is not a matter of statewide concern." The petitioners argue that certain matters involving water quality are of local concern and that municipalities can be given power and authority in these matters.

In Chapter 89 the legislature recognized that pollution abatement is a matter of statewide concern but also recognized that the construction, modification and extension of local sewer facilities and the annexation of particular unincorporated territories are matters of primarily local concern. We are of the opinion that this action was proper and lawful. Urban development, both within and around cities, is also a matter of statewide concern, and Chapter 89 represents an effort by the legislature to reach a reasonable compromise between these two conflicting interests. Where matters of statewide concern and matters of local concern conflict, the court has adopted the "paramount interest" rule to assist it in determining the delegability of certain powers to localities. This doctrine was enunciated in the Muench case and then limited in the Menzer case by the court's holding that the paramount interest doctrine does not preclude the delegation of authority to municipalities in matters of statewide concern but limits it to prohibit local blocking or vetoing of matters of statewide concern. Chapter 89 emphasizes local control and concern over local municipal finances and utilities. In effect, Chapter 89 is a statement by the legislature that the actual extension of local sewer services is a matter of local concern. This determination is entitled to great weight in determining what is a local concern. The legislature has said that, even though water purity is a matter of statewide concern, the effect of a department order directing a municipality to connect its sewerage system with that of an adjacent town is a matter of primarily local concern.

This conflict between two competing matters of statewide concern — proper urban development versus pollution abatement — was recognized by the court in In re Petition for Fond du Lac Metro Sewerage District (1969), 42 Wis. 2d 323, 16 N.W.2d 225:

"All of the major cities and most of the smaller cities and villages in Wisconsin are surrounded by fringe areas with population densities at or near the normal city level. Even though these fringe areas appear to be a part of the city, they are governed, taxed and provided services by the town. No populated fringe area may become part of the city until a majority of the electors and/or property owners in a particular area desire to annex. Cities and villages invariably offer a higher level of services to their citizens as compared to the surrounding town, and almost without exception it follows that costs of municipal services are correspondingly higher. The argument of the cities is that if the surrounding areas can obtain the desired city services without becoming a part of the city, the growth of the cities is likely to be forever stifled, and the residents of metropolitan areas will be forever carrying an inequitable percentage of tax load.

"We can only acknowledge the hidden problem presented. It is not to be solved by judicial determination. The legislature has already stated that a metropolitan sewerage district is a legitimate solution to an areawide pollution problem. . . ."

This statement by the court succinctly expresses the facts of life involved here. The court recognized the problem resulting from the issuance of such connection orders but indicated that the solution lay with the legislature. The statement implies that the legislature could enact a provision, such as Chapter 89, designed to alleviate pollution but at the same time protect the local interests of the communities involved. In this atmosphere, Chapter 89 was enacted into law, thereby striking a compromise in the interest of both proper urban development and pollution control.

Finally, it should be observed that the Department of Natural Resources is a creature of the legislature. It derives all of its powers from the legislature. Certainly, the legislature can prescribe the procedures under which departmental connection orders may be voided. The legislature has spoken, and its action expressed in Chapter 89 is, in our opinion, a constitutionally valid legislative enactment in all respects.