Natural Resources — livestock facilities — state preemption

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Wisconsin Supreme Court

Civil

Natural Resources — livestock facilities — state preemption

A town may not condition the terms of a livestock facilities siting permit without following the guidelines set forth by the legislature.

“The Town argues that the Department may not, acting on its own, preempt local authority through its regulation. In general, we agree with this principle. However, the Town’s argument is not persuasive here because the Department did not act on its own, but instead acted pursuant to the express instruction of the legislature. Put simply, the Department acted precisely how an agency is supposed to act where the legislature has delegated rulemaking authority. Wis. Stat. § 227.11(2)(a) (permitting ‘[e]ach agency [to] promulgate rules interpreting the provisions of any statute enforced or administered by the agency’); see Oneida Cnty. v. Converse, 180 Wis. 2d 120, 125, 508 N.W.2d 416 (1993) (‘An administrative agency may not issue a rule that is not expressly or impliedly authorized by the legislature.’).”

“Accordingly, we conclude that by requiring the promulgation of state standards for livestock facility siting, the legislature expressly withdrew the power of political subdivisions to enforce varied and inconsistent livestock facility siting standards.”

Affirmed.

2009AP608 Adams v. State of Wisconsin Livestock Facilities Siting Review Board

Gableman, J.

Attorneys: For Appellant: Hunter, Robert M., Madison; McLeod, Eric M., Madison; For Respondent: McKeever, Peter E., Madison; Westerberg, Christa, Madison