02-1166 Wisconsin Citizens Concerned for Cranes and Doves v. Wisconsin Department of Natural Resources

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This is so even though mourning doves are not specified as “game birds” in sec. 29.001(39).

“At first blush it seems incongruous to conclude that a given creature could be both ‘game’ and a ‘nongame species.’ A reasonably well-informed person, however, would be aware that Wis. Stat. sec. 29.001 provides detailed definitions of terms employed in Wis. Stat. ch. 29, and that these statutory definitions are meant to supplant common or dictionary definitions of the defined terms. …

“We therefore conclude that the presence of definitions for ‘game birds,’ which the department concedes does not include mourning doves, and for ‘nongame species,’ which does include the doves, does not render the term ‘game’ as used in Wis. Stat. sec. 29.014(1) ambiguous. The legislature has separately and specifically defined the term ‘game’ to include ‘all varieties of wild mammals or birds.’ Wis. Stat. sec. 29.001(33). That definition plainly includes mourning doves, and it is that definition which we must apply in interpreting the scope of the department’s authority under sec. 29.014(1). …

“We therefore conclude that, by virtue of its authority under Wis. Stat. sec. 29.039(1), as well as its authority under Wis. Stat. sec. 29.014(1), the department may, as it has done in Wis. Admin. Code sec. NR 10.01(1)(h), declare that mourning doves may be hunted only during September and October.”

Order reversed.

Recommended for publication in the official reports.

DISSENTING OPINION: Dykman, J. “I conclude that the legislature signaled its intent that there should not be a hunting season for doves. Perhaps not as loudly or emphatically as it could have, but enough that this intent is discernible to those who inquire. Certainly, it did not signal the opposite intent beyond any reasonable doubt. Accordingly, the DNR exceeded its authority when it set a hunting season for the birds. The result is that its action is invalid. Oneida County v. Converse, 180 Wis. 2d 120, 125, 508 N.W.2d 416 (1993). Since that is not the opinion of the majority, I respectfully dissent.”

Dist IV, Dane County, Moeser, J., Deininger, J.

Attorneys:

For Appellant: P. Philip Peterson, Madison

For Respondent: George B. Strother IV, Madison