Mortier v. Town of Casey

Ralph Forestry/Rights-Of MORTIER and Wisconsin

Wаy/Turf Coalition, Plaintiffs-Respondents, CASEY, Wisconsin, Eslinger, TOWN OF Imbert M. Place, Colby Louis N. Roland K. State of Wiscon Intervenor, Defendants-Appellants. sin Public

Supreme Court 7, Argued September No. 88-1423. 1989. Decided March 1990.

(Also reported 555.) in 452 N.W.2d For the defendants-appellants there were combined (in Monroe, briefs court appeals) by Madison, Linda Dawson, and Thomas J. attorney general assistant argument by oral Linda Monroe and Thomas J. Dawson.

For plaintiff-respondent (in there was a brief Kent, court appeals) by Paul G. Richard J. Lewan- dowski, DeWitt, Porter, Huggett, Schumacher and S.C., Morgan, by Madison and oral argument Mr. Kent. by Eugene

Amicus curiae brief was filed O. Gehl and Swan, Madison, Barbara J. for Wisconsin Power and Light Company, Northern Company, States Power Wis- consin Corporation Public Service and Wisconsin Elec- Cooperative tric Association.

HEFFERNAN, question CHIEF JUSTICE. The presented appeal in this declaratory from an order for a judgment county of the circuit is court Washburn Casey purporting of the Town ordinance

whether the pre- the Town is pesticides the use of regulate Insecticide, Fungicide by Federal empted (FIFRA).1 the ordi- We conclude Rodenticide Act law, legis- because the preempted is the federal nance in 1972 reveals a clear history of the enactment lativе congress all local of the circuit pesticides. use of We affirm order "void, Casey Town of ordinance declaring court of no effect."2 invalid and undisputed. plaintiffs

The are a coali- facts are grounds on persons challenge tion of who the ordinance preempted by legislation. both federal and state that it Mortier, portion plaintiffs, sought spray one of the Casey of his own land located the Town with a pesticide. applied permit permit He to do so. The a by granted subject was to restrictions mandated ordinance, Casey's precluded Town of which aerial spraying and limited the area which could be land sprayed. plaintiffs brought Mortier and his fellow declaratory judgment action to declare the ordinance preemption. on the grounds invalid analysis We our recognizing start separate constitutional basis sovereignty of the of the United States and of the state of Wisconsin. Tenth recog- Amendment to the United States Constitution seq. U.S.C., sec. 136 et 1 7 appeal 16, 1988,

2 This from the order entered on June was (sec. accepted bypass 809.60, Stats.) appeals on of the court of pursuant joint petition parties. to the of all controlling question

Because we decide the case оn preemption, question we do not address the of whether legislature enactments of the Wisconsin also the Town ordinance. The circuit court held town ordinance was preempted by legislation. both federal and state nizes powers that "The not delegated to the United Constitution, by States prohibited nor by it to the States, are reserved to the States respectively, or to the people." is, however,

There no intimation in the record that the enactment of FIFRA was proper not a and constitu- tional exercise of legislative power of the United any States. Nor is there intimation that the state of political Wisconsin or its subdivisions police lack the power regulations. enact The controlling question VI, 2, arises under art. clause of the United Constitution, States clause, the supremacy pro- which vides that all laws of the United States pursuant made the Constitution supreme are "the law of the land . . . any thing the constitution any or laws of state to the contrary notwithstanding."

This portion Constitution, latter at least 1824, since has been held to invalidate state laws with, to," that "interfere or are contrary federal law. See Ogden, (9 Wheat) Gibbons v. (1824), U.S. Mar- shall, C.J.

The test for determining whether the state law must be preempted invalidated or in light of a congressional variously enactment has been stated. The essence of the inquiry succinctly simply Judge summarized Coalition, Kaufman in New York State Pesticide Inc. v. Jorliny, 115, 118 (2d Cir., 1989), 874 F.2d task is "[0]ur also, to ascertain the intent of Allis Chal Congress." See Lueck, mers Corp. 202, (1985). v. pur 471 U.S. 208 For poses clause, of the supremacy constitutionality the of local ordinances is in analyzed way same as the that of Hillsborough state laws. County v. Automated Medical Labs, 707, (1985); City 471 U.S. 712 Burbank v. of Terminal, Inc., Lockheed Air 411 U.S. 624 however, said, In general, it can be general that the presumption system that arises out of the federal of dual is sovereignty preemption that there shall be no unless of congress intent is rather In Rice clear. v. Santa 218, (1947), Fe Corp., Elevator 331 U.S. the United Supreme Court States stated rule that his- ”[T]he police powers of toric the States were super- be seded the Federal Act unless that was the clear and purpose Congress.” manifest of Thus, preemption, superseding of the sovereign prerogatives state, of a lightly assumed, should not be but found only should be when it is the of intention congress primacy particular to assert federal in a field. simply clearest declaration of intent is a con- gressional in appearing statement the legislation which primacy. аsserts federal One example is to in referred City Terminal, Inc., Burbank Lockheed Air (1973): U.S. 626-27 '"The United States of America is to possess declared complete exercise exclusive sovereignty airspace national "3 United . . ..' States may

There also be of state laws or local ordinances where no express preemption appears congressional legislation, but the entire statutory con- text regulatory impels terrain the conclusion con- gress intended to states exclude and local from the City case, area of concern. The Burbank supra, type illustrative of this of determination congressional from pervasive 3 City Burbank analysis pervasive turned on an nature of the scheme aircraft noise and not on the quoted preemptive respect airspace. statement The state does, however, express ment illustrate an statement of federal preemption. 411 U.S. at 633. congressional examined completeness of the

nature or scheme. case, provision express was no

In the Burbank there control, court, relying noise but the preemption of supra at Corp., v. Santa Fe Elevator upon Rice pur- manifest there could be a "clear and concluded that no though even state- congressional pose" preemption appeared legis- the congressional ment оf congressional that clear and manifest lation. It found "pervasive of the scheme of federal nature purpose . . .." 411 U.S. at 633. aircraft noise regulation of preempt Thus, congressional although case, by implication, may, only apparent in some be purpose can nevertheless be clear. congressional pervasive nature of the be noted that It should not alone from the in Burbank was derived federal act regulations, but words of the act and concomitant bill, history of the anti-noise includ- legislative from the reports, state- appearing committee ing statements Commerce, Secretary of statements ments of the committees, congressional affected chairpersons of the contemporane- President made the statement of the bill.4 ously signing with the clause, supremacy express words of the Under way contradictory incompatible give must state law plaintiffs enactment. The provisions congressional of a here, for that, in must be the result practice, assert Rehnquist opposite con reaches the 4 The dissent of Justice regu clusion, i.e., congressional allow local intent was to that the a they as to whether Although differ in their conclusion lation. found, signif purpose" be cаn and manifest "clear majority in Burbank to the and the dissent of both the icance dissent, legislative history. In his reliance on instant case their preemption in acknowledges implied Rehnquist Justice history. legislative may proper case be based on Casey prohibit on its face the of Town ordinance could completely FIFRA-approved pesticides by of the use FIFRA-approved applicators according to FIFRA- approved While, law, label as instructions. a matter of we disagree plaintiffs' premise, do not with the the situation light hypothetical in complete prohibition one, of the is record for no such posed by facts,

is the and we need plaintiffs' light not address the in assertion of our reli- legislative history, ance on the which we conclude dem- congressional onstrates a clear and manifest intent to preempt regulation. all local paths many preemp-

Thus, there are to determine forthright, tion. The easiest and most in the absence of outright preemption legis- an statement of federal in the simply constitutionally lation, is to start out with the assumption that, directed of view the of nature system, there can be no unless there express unequivocal congressional is an statement partiсular legislation, congres- that, in the area of supreme sional actions are and state laws are If invalid. presumption literally, anything is taken less than a forthright preemption ambiguous statement is and tradi- powers tional state must be to allowed stand. While this logical option, is an law, attractive and it is not the preemption opinions Supreme almost all of the Court ambiguities express preemp- deal with where there is no respect congressional tive statement in to intent. any express preemp- While FIFRA does not contain language, language however, does, tion it contain which congress' deprive political of indicative intent to sub- Casey, authority regu- divisions, like the Town pesticides. congress only 136v, In late sec. authorizes regulate pesticides. 136(aa), Then, "states" to in sec. political act states that subdivisions are excluded from of "states." See Because it is the definition infra. statutory language alone evinces congress' clear that the deprive political manifest subdivisions authority regulate pesticides, ambiguous. it is Accord history ingly, legislative we look to ascertain the primary congressional purpose enacting these sections Aviation, particular language. Philko Inc. using this Shacket, 406, 410-11 (1983); City Burbank v. 462 U.S. Terminal, Lockheed Air 411 U.S. 634-38 local, congress but not

The intent —to state, abundantly clear when —becomes congress light is considered product end pesticide through congress.5 bill progress of country in this history pesticide regulation of The important recognizing between struggle reflects a United States a pesticides play making the leader role recognizing the risks that production food and world and the environment. pose public health pesticides mind, President competing public policies these With compre- develop in 1971 to a proposed legislation Nixon use and sale governing the regulatory scheme hensive basis for the served as the proposal This pesticides.6 jas H.R. introduced originally bill pesticide regulation provide] bill was proposed of the purpose 4152.7 The "[to in order to pesticides complete regulation for the more environment man and his protection provide for world around beauty of the of the the enhancement and a establishing goal by accomplished this him."8 FIFRA pesticide certifying training system nationwide is to 1983 FIFRA from 1947 perspective of An historical Co., U.S. v. Monsanto opinion Ruckelshaus by afforded 990-93 News, 4001, 1972. 3, p. Cong. & Admin. Vol. 6 See U.S. Code 92-5111, p. 12. Rep. H.R. No.

7 See News, supra Cong. 3995. Admin. at Code & 8 See U.S. requiring applicаtors, registration pesticides, lim- purposes iting permitted by use to law and making pesticides ‍‌‌‌​‌‌‌‌​‌​‌‌​‌​‌‌​​‌‌​​​​‌‌‌‌‌​​‌​​​​‌​‌‌‌​​‌​‌‍it unlawful to use in a manner inconsistent with the label instructions on the container pesticide. public hearings

After 17 and 19 closed business meetings, Agriculture reported the House on Committee Rep. p. full H.R. to the House. H.R. 92-511, No. rejected proposal This 13. committee a which would permitted political have subdivisions other than states regulate pesticides: to further rejected Committee proposal which would permitted political have subdivisions regu- to further pesticides grounds late on the that the 50 States and the Federal provide Government adequate should an regulatory jurisdictions. number Rep. p. 92-511, H.R. No. 16.

The bill was referred to the Senate Committee on Agriculture Forestry. The Senate on Committee Agriculture Forestry concurred with the House Agriculture's Represent- on Committee and the House of "deprive" political atives' decision to subdivisions of authority pesticide regulation. over That committee's report states:

The Senate Committee considered the decision of the House deprive political Committee to subdivi- sions of States any and other local authorities of authority jurisdiction or pesticides over and concurs with the decision of Representatives. the House of Clearly, fifty States and the Federal Government provide jurisdictions properly sufficient to regulate pesticides. Moreover, few, any, if local authorities towns, counties, whether villages, municipalities have the provide necessary financial wherewithal by comparable provided regulation with that expert On this basis Governments. State and Federal regulation permitting such basis that and on the commerce, burden on interstate be an extreme would providing any section it the intent and other local authority political subdivisions States, be understood in the should of or authorities political sub- and depriving such local authorities as authority jurisdiction and all divisions of pesticides. pesticides over supplied.] [Emphasis in 92-838, reprinted Cong. 92nd 2nd Sess. Rep.

S. No. 3993, 4008, News, 3, pp. Cong. & Admin. Vol. Code U.S. 1972. jurisdic- also had Committee

The Senate Commerce Committee bill.9 The Senate Commerce tion over the have which would to the bill an amendment introduced pesti- authority regulate governments given For- Agriculture on The Senate Committee cides.10 pesticide its intention estry reasserted regulation.11 almost deliberated

The two Senate Committees compromise a to arrive at and were able two months Commerce The Sеnate bill.12 of a substitute the form allowing local Committee's amendment substi- excluded regulation was role bill.13 tute full Senate. came before

Eventually, H.R. 10729 by the proposed rejected the amendment The Senate have allowed would Committee which Senate Commerce Cong. Rec. 32251 9 118 News, id. at 4066. Cong. & Admin.

10 U.S.Code 11 Id.at 4066.

12 Id. at 4091.

13 Id. 4091. at pesticides.14 regulate Senate passed the compromise version of H.R. 10729 a vote of 71-0.15 Concurring basically with the House version bill, addition, Allen, in Senator the Chair of the Agricultural Subcommittee on Research and General Legislation, Congressional Record, inserted into the following: should be understood as depriving such

[FIFRA] political local authorities and any subdivisions of jurisdiction pesticides all authority over and the regulation pesticides. [Emphasis supplied.] Id. at 32256.

Finally, members of the Senate and House met in conference to resolve differences between their respec- tive versions of the legislation. The Conference Committee's explanatory statement reflects that Committee did not consider regulation the issue pesticides16 previously as had been resolved.

The completed which, act included the language coupled with the legislative peregrinations pesti- bill, cide unmistakably demonstrates the intеnt of con- gress local ordinances such adopted as that by the Casey. U.S.C., (1982 Town ed.) sec. 136v provides part: Authority

§ 136v. of States (a) A may regulate State or sale use of federally registered pesticide State, or device only but if and to the extent does not permit any prohibited by sale or use subchapter. this

(b) Such impose State shall or continue in any requirements effect labeling packaging Cong. 14 See118 Rec.

15 Id.at 32263. Cong. News, id.,

16 SeeU.S. Code & Admin. at 4130-4135. required under from those addition to or different subchapter. this

(c)(1) may registration provide A for State federally pesticides registered of for- additional uses to and use within that State mulated for distribution special purposes meet local needs accord with has subchapter registration if for such use this of denied, disapproved, or previously been canceled not registration be by Such shall the Administrator. of under this title registration section 136a deemed subchapter, purposes of but shall author- all this for only use within such State. ize distribution and Thus, specific has been a authorization there effect, In pesticides. the sale or use of regulate "states" to i.e., preemption, it is negative a this is declaration inserted provision this was reasonable to conclude that implied any possible express purpose negating for the alone, is From this it regulations. state governmental to infer other possible that U.S.C., by 7 sec. from protected entities 136v, preempted. is it no what it meant when

Congress left doubt about 136(aa) provides: to a Section referred "State." (aa) State State, the District "State" means term Rico,

Columbia, of Puerto the Commonwealth Islands, Guam, Territory of the Virgin the Trust Islands, and American Samoa. Pacific under persuasive in itself is provision This such entities governmental exclusion that omitted rule deprived of the Casey are excluded as the Town of significant It regulate pesticides. the use right provi- distinguish between congress was careful which provisions apply sions which to "states" example, For subdivisions." political "states or apply to provides 136t(b) FIFRA in sec. that the EPA coop- shall erate with any appropriate agency any "State or any political Moreover, subdivision." provision, this when coupled repeated with references in the course of the legislative reports committee the decision both "deprive" House and Senate was political subdivi- sions of states and other local authorities of author- ity or jurisdiction over pesticides, leads to the unmistak- clearly able conсlusion that it was the manifested intent congress of the to preempt any regulation pesticides of by local units of government. While the regulation of pesticides traditionally police within the powers lies of communities, the federal legislation "deprives" them authority. of that

Moreover, the commentary to regulations federal FIFRA, promulgated pursuant although after the fact action, congressional expresses the administrative determination of the EPA that "It is not the intention of the or of regulations Act these political to authorize sub- divisions below the pesti- State level to further regulate cides." 40 Reg. Fed. 11700.17 agree

We with the basic conclusion of the United Maryland States District Court in Pest Control Assoc. Montgomery (D. County, F. Supp. Md., 1986), (4th 1987), aff'd cir., 822 F.2d 55 when it determined the posting provisions and notice of a local unit of 17 Hillsborough County Labs, v. Automated Medical 471 U.S. (1985), frequently a proposition is case cited for the that mere pervasiveness nothing may compel more preemption. conclusion opinion only We refer to the it because points by out that pre-empted "state laws can regula be federal by above, tions as well as P. statutes." 713. As stated the commentary is indicative of the EPA's authoritative construction congressional the regula intent of FIFRA to exclude tion below the state level. respect pesticides

government application were by provi- In preempted concluding FIFRA. that the local invalid, Court, sions were the United States District legislative history after the examining same which we above, recounted stated: history legislative could not be more clear.

[TJhis expressly Both the House and Senate considered question be of whether local should and, pesticides regulate although there authorized disagreement an Senate was interim between two issue, finally legislation as committees on the Senate and House did not include enacted clearly upon proposed in both language, focused chambers, pesti- would have authorized18 local which decision-making regulation. Principled cide legislative process respect integrity for the compel Congress knew and the conclusion that doing. it was meant what term, "authorize," parties to think that the 18 Whilethe seem thinking part of District sloppy on the Court indicative inherently (because pos is it contended that authority), police of court's lan power that view the sess that that, excepting language guage fact the overlooks the without law, statеs, govern as well as from the effect the "states" Hence, preempted. it powers, might well construed to be be ment authority. government Moreo speak appropriate was of local pellucid ver, report language used in makes the committee the committee, eventually by ratified the the of the that it was will "deprived of author congress, subdivisions of states be that local perceptive United States ity." appropriate for the It was whether, despite the question refer to District Court to the FIFRA, in by addi regulation imposed localities nature of authority impose the have tion to states should nevertheless unambiguous intent the regulations. Clearly, the additional government of their deprive congress local units of was to power authority. police usual Supp.

646 F. at 113. plaintiffs posited pol- Both the and defendants have icy why respective positions prevail. their reasons should plaintiffs question pesticide assert that the whole regulation complex govern- is so and technical that local possibly cope ever-changing ments cannot with the only advances science and medicine—that national Town, and state is feasible. The defendant on argues only hand, the other that the loсalities where pesticide will be used can be aware of the local condi- tions and the hazards that use can in a cause particular locality. Additionally, argued isit that to find preemption prerogatives affronts the constitutional rights positions states' All and home rule. of these in the reality question merit, abstract have but the posed for this court's resolution one of law and statu- tory interpretation: Was there a manifested intent congress preemption? that there be Because we con- preemption regulation, clude there was of local it is clear policymaker congress that the this case the —in —must given pol- be ultimate deference its determination of icy, policy i.e., it is of the United States Con- gress power regulate pesticides to allocate the at a stops policy level that at the state level. If that is less optimum, than the resolution must be left to the political judiciary. arena and not Moreover, if, to the as find, Congress, we was the fidelity requires to our constitutional structure that fed- supremacy recognized. eral be We conclude that cir- correctly preemptive cuit court concluded that the action congress deprived Casey police the Town of of its power regulate pesticides. affirm the declaration We Casey's pesticide of the circuit court ‍‌‌‌​‌‌‌‌​‌​‌‌​‌​‌‌​​‌‌​​​​‌‌‌‌‌​​‌​​​​‌​‌‌‌​​‌​‌‍that the Town of ordinance is invalid.

32 By affirmed. the Court. —Order ABRAHAMSON, S. J. (dissenting). SHIRLEY opinion enacting concludes that majority The Insecticide, Fungicide Rodenticide Act Federal and (FIFRA) Congress government local divested power regulate pesticides use of for the health to I Congress its citizens. Because conclude that safety of purpose a clear and manifest has not demonstrated powers its government under the Federal deprive Constitution, I dissent.1

HH analysis premise preemption The is fundamental pur showing absent of "a clear and manifest that governmen state pose Congress" preemption. not Rice the courts will infer regulation, tal (1947). 218, v. Fe 230 Corp., Santa Elevator 331 U.S. Supreme repeatedly has United States Court infer characteriz preemption, its expressed reluctance "Congress did presumption reluctance as a ing its Louisiana, displace Maryland v. state law." not intend is 725, (1981). presumption This even 746 451 U.S. governmental when the state or local stronger has charac safety, health which the Court relates to of local historically, a matter "primarily, and terized County v. Automated Medical Hillsborough concern." 707, (1985). Rice v. Labs, Inc., See also 471 U.S. 718 230; Chevron at Corp., supra Fe Elevator U.S. Santa (9th Hammond, Cir. U.S.A., F.2d 487-88 Inc. 1984), cert. denied 471 U.S. I my issue. to the federal

1 I limit discussion however, conclude, Casey's Ordinance Town of preempted by state law.

The Court's reluctance to infer is grounded in its deference to the role of states our system. If congressional purpose intent or ambiguous, courts should be slow to preemption, find powerless the state is remove ill "[f]or effects decision, our while the government, national which has power, remains free to remove the burden." Penn Comm'n, Dairies v. 261, Milk Control 318 U.S. 275 (1943).

The United Supreme States recognized Court has Congress may preempt governmental state and local power by express statutory (sometimes language referred express exemption). to as Jones v. Packing Rath Com 519, pany, (1977). 430 U.S. 525 By requiring congressional decision to restrict state and be made in a delib- erate manner through the exercise of law-making power, the Supreme attempts Court to ensure a sound balance between state sovereignty and Tribe, national interests. (1988). Constitutional Law 480 express statutory Absent language, courts must interpret the federal statute to determine whether challenged state or local action "stands аs an obstacle the accomplishment and execution of full purposes objectives Davidowitz, of Congress." Hines v. 312 52, U.S. 67 State or local action will be an obsta (1) if cle Congress regulatory dominates field structure or objective no and "leaves room" supple mentary (sometimes state regulation or local referred to implied as preemption), (2) if state or local (sometimes conflicts with federal law referred to as con preemption). Florida Lime & Avocado Growers v. flict Paul, 132, 142 (1963); Ray U.S. Richfield, 373 v. Atlantic 151, (1978); Motors, 435 U.S. Malone v. White (1977).2 U.S.

h-41—4 FIFRA these tests that under each of conclude Casey's the Town of ordinance. does not language preempting no express FIFRA contains political does it subdivisions regulation, nor exclude states, majority claims. Nor from the definition as "ambiguous" regarding statute is the —it majority op. pp. 25-26. simply silent. See Furthermore, in FIFRA that there is no indication exclu- pesticide regulation to be an Congress considered Congress occupied federal interest or that field. sive pesticides control of Labeling of is under the exclusive FIFRA Agency, but the Environmental Protection pesticides regulate states under explicitly authorizes provide The 1972 Amendments guidelines. federal may any federally use оf or regulate "a state sale State, if only in pesticide or device but registered any sale permit regulation the extent the does 136v(a). 7 U.S.C. sec. prohibited by subchapter." use this provided that the states and the Congress expressly thus pro Supremacy "The Clause of Art. VI of Constitution power Pre-emp Congress pre-empt law. with the state vides statute, Congress, enacting a federal tion occurs when law, pre-empt when there is expresses a state clear law, where outright federal and state or actual conflict between physically is in compliance with federal and state law effect both implicit impossible, in federal barrier to state where there is law a Congress legislated comprehensively, has thus regulation, where leaving room for the occupying an field of no entire law, supplement stands as federal or where the state law States to objec accomplishment full execution to the an obstacle FCC, Louisiana Public Service Comm'n Congress." tives of (citations omitted). (1986) 368-69 U.S. government pesti- share control over the use of safety

cides of citizens and their environment. Nothing expressly prohibits in FIFRA a state from delegating power municipalities. its under FIFRA to Congress apparently viewed the local as having 136t, some role. Under sec. the Environmental Agency cooperate Protection must with state or "any political carrying thereof, subdivision out the provisions securing uniformity Act, of this and in regulations." objective

I cannot find the structure or of the Act Congress regulatory has dominated the field and left supplementary regulation. no room for Finally, Casey the Town of ordinance does not con- flict with FIFRA. I therefore conclude that there is no preemption. conflict foregoing Congress

As indicates, the discussion was regarding governments' authority regulate silent local to pesticides Congressional preempt intent local governmental regulation. Congress occupy did not the regulatory field, and no conflict exists between FIFRA Casey Nevertheless, and the Town of ordinance. the majority opinion Congress expressly concludes that preempts governmental regulation pesticides. local majority opinion The reaches its conclusion that Con- gress's express Congressional silence amounts to an preempt by examining legisla- intent to local action the history surrounding passage tive of FIFRA in con- junction Majority op. pp. with sec. 136v. 25-29. methodological

I While have doubts about the approach majority employs,3 I need not reach that majority opinion

3 The pre- does not fit into the traditional legislative history upon which the issue because requisite with the majority relies does not demonstrate implied express preemption, preemption, emption analysis of or you accept catego- preemption the three conflict even when that Law, Tribe, Constitutional analytically airtight. ries are (1988). n.14 attempts express majority opinion apparently to find

The legislative but in preemptive intent not the text of the statute history history. legislative on to determine It defends its reliance Congressional preemption (majority op. express at intent about 22-24) authorizing by concluding states to pp. that secs. 136v federally registered raises regulate the sale or use of negative implication Congress intended to a that opinion pesticides. majority The governmental regulation of express saying Congress's raises authorization to states that proscribe Build- Congress's local action. question about opinion perceived "ambiguity," majority examines ing on this pre- history Congress's express intent legislative determine empt local action. approach majority opinion supports cites its

Neither case the finding history may sole basis for legislative serve as the that pur- express preemption clear and manifest intent about or the required pose Congress for of state regulations. City v. Lock Burbank majority opinion on first relies Terminal, Supreme In case the

heed Air 411 U.S. 624 pervasive of federal nature Court determined airports. precluded imposing on airspace local noise controls conclusion, Douglas, writing reaching this Justice After bill, history during passage of the majority, legislative referred to preemption rule change the stating the would not bill Senators previous statements of existing statutes and to under preempted asserting regulation federal and the President apparently placed in the regulation. were state These references pervasiveness of the federal opinion conclusion of the to bolster a (implied preemption). already had reached act that the Court congressional Rehnquist looked at earlier In dissent Justice clarity degree that Congress expressly or impliedly preempt regulation. intended to local enactments, legislative history passage bill, during of the Congress previously determine whether preempted had the field type from City state that the of Burbank majority apparently had enacted. The and dissent did not disa- gree legislative history during about They the passage. disagreed pervasiveness act, about the of the new federal about whether prior pervasive acts were Congress impliedly also and whether preempted local action.

I endorsing not read majority opinion's do Burbank as the conflicting claim that a court can legislative history examine Congress's express determine intent to local action. The majority opinion premise does not rest on the that FIFRA is pervasive occupies (implied and thus the preemption). field Aviation, Shacket,

In (1983), Philko Inc. v. 462 U.S. 406 question required was whether federal statute transfers of title writing to aircraft to be in and recorded with the FAA to be valid against parties. innocent third plane Philko was entitled to the if governed the federal statute all supplanted title transactions and govern transfer law. Shacket if would win state law could transactions where no written transfer title existed. Court legislative history examined the congressional not to determine help statutory intent about but to language define the relating conveyances, thereby determining scope of legislation and whether the state law conflicted with the federal láw. Once thе Court clarified the federal statute's use of conveyance, the term the Court concluded that the state law preempted (conflict conflicted with federal law was preemption).

Using approach, majority opinion the Philko should look legislative history for illuminating meaning of the word State. It does not. It cannot because the definition of state is clear. Instead, majority legislative history looks to to determine Congressional express preemption. intent about

The Philko case does not stand the rule that the Court legislative history will Congress's express examine to determine legislative have examined the his Four other courts contends is "abun tory majority of FIFRA that 25-26, clear," dantly majority op. pp. and reached con intent. One interpretations Congressional flicting history of legislative that FIFRA court concluded preempt intended to Congress demonstrates Montgom Assoc. v. Maryland Pest Control regulation. 1986), (D. ery County, Supp. F. 109 Md. with aff'd (4th 1987). Cir. courts opinion out 822 F.2d 55 Three history demonstrates legislative concluded that did not intend to Congress County Deukmejian ex rel.

pesticides. People (Cal. Mendocino, 1980); Main P. Central 2d (Maine Court, Supreme Power Co. v. Lebanon Judicial 6, 1990); Ltd. and Caranci v. Boul Coparr, March (Dist. der, Denver, Ct. Colo. Octobеr No. 87-M-1865 1989). light, suggest Put in their best these cases that the FIFRA surrounding the enactment of legislative history reading the same documents have ambiguous: courts in their conclusions. Viewed worst reached different in the cases confirms Harold light, the results reached statutory interpretation is Leventhal's observation that picking your a crowd out "looking akin to over noted, fact of the Judge friends."4 As Kozinski has "[t]he typical The Philko case is a preemption. case in intent about history legislative to determine the the Court examines which The Philko court language in meaning ambiguous the statute. of conflict. there was because then determined Legislative History on the Use 4 Wald, Some Observations Term, 195, 214 Supreme Court in the 1981 68 Iowa L. Rev. Mikva, Congress, has Judge a former member of Abner history. acceptance legislative against warned wholesale also attempt reports pieces are central of evidence when Committee legislative particular ing legislative intent behind a to determine frequently political reports used for are too act. But "[c]ommittee legislative history support matter is that can be cited to any proposition, frequently almost v. and is." Wallace (9th 1986). Christensen, 1539, 802 F.2d 1559 Cir. legislative history Courts must use federal with healthy skepticism, history reсognizing may that the always trustworthy congressional be a indication of written, colloquies intent. As Justice Scalia "[C]ommittee has reports, speeches, floor and even between con- gressmen upon are frail substitutes bicameral vote presentment the text of lawa and its to the President." Thompson Thompson, 174, 191-192, 484 U.S. 108 S. (1988) (Scalia, 513, 523, Ct. J., 98 L. 512 Ed.2d concur- ring). Hirschey (D.C. FERC, 1, u. See also 111 7-8 F.2d 1985) (Scalia, concurring). J., Cir. Reading horse-trading ego trips and Writ- and . .." individual . ing Statutes, 627, (1987). 48 U. Pitt. Judge L. Rev. Mikva directs our attempt attention to the minutiae which cloud prima divine the intent "535 donnas": legislative process Even nuts and bolts be can valuable divining Congress. reports the intent of The use of committee and (and it), floor debate lack of the difference between floor amend- amendments, statutory ments committee the trade-offs between language report language, impact and committee of conference changes bill, interpretations conflicting committee in a effect given by during members floor debate —all of these elements are weighed differently by judges exposed who have been to the tortuous way in a bill which becomes law. Others relying have also use counseled the of caution when Legislation: legislative history. Eskridge Frickey, on federal Policy, Statutes and thе Creation Public (1988), 695-776 Statutory Interpretation Eskridge Frickey, as Practical Rea- soning, (1990); Hertzel, Instilling 321, L. Stan. Rev. 324-340 Legislative Interpretation Skills in the Classroom and the Court- room, 663, (1987); Posner, Statutory U. Pitt. L. Rev. 678-87 Interpretation Courtroom, in the Classroom and U. 50 Chi. L. Rev. 805-815

In reaching the conclusion that FIFRA preempts local regulation, the majority opinion relies to a large interpretations extent on the provisions of H.R. 10729 found in Report of the House Committee Agricul- on Report ture and the of the Senate Committee on Agri- Forestry. culture and The usefulness of reports those as Congressional evidence of is limited.

First, the House and Reports Senate Committee included the legislative history of FIFRA and relied upon by majority opinion, 27-28, majority op. pp. see do not passed evaluate ‍‌‌‌​‌‌‌‌​‌​‌‌​‌​‌‌​​‌‌​​​​‌‌‌‌‌​​‌​​​​‌​‌‌‌​​‌​‌‍the bill Congress. The Committees significantly considered a different and earlier version of the legislation. The Senate Commerce Committee added numerous amendments after the Sen- Agriculture ate and Forestry Committee had considered legislation.5 the A joint up Senate committee made of members of the Agriculture Forestry and Committee and the Commerce Committee changed also further the bill reported to the by Senate the Commerce Committee and cоmpromise created a bill.6 passed The bill the Senate was by further modified the Committee of Conference composed of members of the House and The Senate.7 reports relevance of the Committee to the final bill passed by Congress signed by and the President speculative.

Second, contrary to the majority assertions of the opinion, language of in interpreted sec. 136v can be ways. several When the Senate Commerce Committee proposed clarify amendments to govern- role local structure, ments within FIFRA's regulatory it inter- Cong. (1972). 5 118 Rec. 32249-51 6Id. at 32257-58. Cong. News,

7 U.S. Code 3, pp. & Admin. vol. 4130-4134 preted regard preemption. sec. 136vas silent with The Commerce Committee stated: Agriculture

While the Committee bill does not specifically prohibit governments regulat- local from ing pesticides, report committee states explicitly governments regulate pes- local cannot Many ticides manner. now regulate pesticides specific to meet their own needs they perceive which are often better able to than are added.) regulators.8 State and (Emphasis Federal disagreement between the two committees over meaning depreciates and effect sec. 136v the value Agriculture Forestry interpreta- Committee's determining tion of sec. 136v the "clear and manifest purpose Congress." Despite disagreement this about meaning changed 136v, of sec. the statute was never clarify preempted regulation. whether FIFRA majority opinion's Agri-

Third, the reliance on the Forestry report culture and Committee’s does not take subsequent compromise into account the the two Senate Committees In reached. order to avoid a confrontation differing pesti- over differences between the versions legislation reported Senate, cide to the members of the Agriculture Forestry Senate Committee on and the nearly Committee on Commerce met for two months According report ultimately heated discussion. ato filed group legislative history, included (which "Commerce amendment[ ] Committee ... governments regulate pesti- authorized local to the use of cides) , . [is] . included the substitute."9 Rather indicating group pre- than that the intended FIFRA to empt plausible explanation action, local the more is that

8 Id. at 4111. Rec., Cong. supra

9 118 at 32252. Congress preemption. In never resolved the issue of the reporting a bill in the current session of interest of Con- gress, agreed both Senate committees to dis- members of preemption agree regulation. on issue of of local the majority opinion upon language Fourth, the relies immediately prior congressional record added the support finding the final vote of the Senate to its preemption. majority op. p. Upon See 28. examination of Congressional language Record,10 I find that the the upon by majority opinion simply relied restate- report Agricul- ment of the of the Senate Committee on Forestry already by majority. ture and cited See majority op. p. previously forth, 26. For the reasons set report questionable the Committee is a indication of congressional regarding of local pesticides. regulation of majority opinion

Fifth, the states that the Senate rejected the Commerce Committee's amendment that pesti- regulate would have allowed local majority op. p. majority opinion cides. See 28. The over- states what occurred on the floor of the Senate. The by amendments offered the Senate Commerce Commit- tee were from the withdrawn floor the Senate favor compromise struck of the Committee members Agriculture Forestry on and the Commerce Commit- Congressional I tee. As far as can discern from the Record, full Senate never considered the issue of pesticidеs reject and therefore did not by full it vote.11

Finally, majority opinion ignores political atmosphere in which FIFRA was enacted and which probably Congress's accounts for failure address regulation. issue of Both the Senate and the House 10 Id. at 32252-56. 11Id. at 32252. pressure agricultural, from

were under intense environ- regarding pesticide groups legisla- mental and industrial Congress nearly years attempting tion. two worked to compromise necessary pass forge pesti- delicate highly The was cide bill. bill considered controversial being nearly every at risk and was defeated at turn. A speakers, including Gaylord number then Senator speak highly parti- Wisconsin, Nelson of rose to on the fragility compro- san of the nature debate and of the political In mise reached on all sides.12 this turbulent specifically environment, the Senate never considered preempting governmental power, sug- the gesting issue the issue that was reached the interest of passage pesticide of a bill. legislative history highly partisan and the suggest Congress

nature of agree debate was unable to regulation. about of local While the compromise may necessary struck been FIFRA have passage bill, I to ensure of the do not think it dem- Congressional certainty onstrates intent with sufficient deprive Casey power the citizens of the Town of protect themselves and their environment.

> Congress I chose, do not that if doubt so it could prevent regulating e.g., See, localities from use. Metropolitan Authority, Garcia San Antonio Transit 469 U.S. 528 But absent "the clear and manifest purpose congress" accomplish end, such an

12 Id. 32259. id. Talmadge, at See also remarks of Senator at ("many highly controversial"); issues were remarks Packwood, id. at 32263 ("This package Senator has evolved deliberation, through agony, argument, much com reflection and promise. some."). give Each has had to presumption against preemption right the of citi Casey pesticides regulate of the zens Town of must prevail. opinion, majority prefer In to the contrast I construing regard presupposi FIFRA with "due for the embracing system, including of our tions principle federal the power a diffusion not as matter of doctri promoter democracy." localism naire but as San Diego Building Garmon, 236, Trades Council v. 359 U.S. (1959). 243 forth,

For the set I reasons dissent. I am authorized to state that Justices Steinmetz and join in Bablitch this dissent. (dissenting).

STEINMETZ, J. No affirmative general permit pesticides license by has been issued for government. state the or federal The federal and state grants which laws were of affirmative authorization were preemptions analyzed in discussed as as Wis. Environ Decade, DNR, 518, mental Inc. Wis. 85 2d 271 (1978). government preempts, 69 If the N.W.2d ability FIFRA, act, will this override the state's but Apt, Fungicide Insecticide, The Federal and Rodenticide seq., contemplates regulations. 136, 7 U.S.C. sec. et. Congressional unanimously Record contains a adopted report favoring preemption committee of local government regulation, but this recommendation came only house, Senate, from one the entire Congress. Cong. Indeed, See sec. 118 Rec. transcript Congressional the text of the taken from only upon respondents Record and relied states seemingly that committees the preemption from Senate and House However, on concurred the local issue. none specific Agricultural Senate Committee amend- clearly agree- ments read into record document this language ment and FIFRA's does not document this. legislation test is whether The federal clear, intent. contains a manifest The United States expressed this test of a Supreme Court the form start- assumption stating police historic ing-point "that superseded by States were not to be powers of the pur- unless that clear manifest Federal Act was Rice v. Santa Fe pose Congress."1 Corp., Elevator (1947).2 U.S.

Implied preemption must also be This is espe clear. cially light true in of the United States Supreme Court's finding implied preemption rule that a be negated will is compelling congressional when there no direction justifies preemption deeply which of "interests so rooted in feeling responsibility." local and Farmer v. 290, Carpenters, (1977); 430 U.S. 296-97 see also Brown 491, v. Hotel Employees, Here, 468 U.S. 502-03 must in authority doubt be decided favor of local to act; for, against, works not local governments.3 purpose

1 Congressional preempt may to be manifested in a First, may ways. Congress expressly number preemp mandate Second, congressional tion. language may impliedly preempt by adequately indicating fully occupy an to the field. Where field, both occupy federal and state preemption may law the same only be found when state and federal law so conflict that concur compliance physically impossible rent or when state law frus accomplishment purpose See trates of the full of the federal act. generally Employees, Brown v. Hotel 468 501. U.S. at Hillsborough County Labs.,

2 Seealso v. Automated Medical Paul, 707, (1985); Avocado 471 U.S. Florida Growers 715 373 U.S.A., Hammond, 132, 147 (1963); Chevron Inc. v. U.S. 726 F.2d (9th 1984). 488 Cir. analyzing possible implied 3 When preemption, a case for it is acknowledged generally that courts confine their studies to language legislative history See question. and of the statute in Chevron, F.2d at 491 n.10. As stated within the text of this attempting to whether an

When determine act is or preempted, "Congress line is is not bottom that can unequivocally make it act so as to clear that intends no regulation except (citing Rice, its own." 331 U.S. at Bethlehem Co. v. York State Steel New Labor Relations (1947)). Bd., 330 U.S.

FIFRA does not meet the clear manifestation of prove, respondents claim, to as intent test above unequivocally Congress governments intended local preempted acting from be on their local concerns as to contrary, applying test, To I use. find product congressional that the end committee and Congress appears the vote of the entire to have been in preemption. favor of no

Specifically, comparison product of the end lan- 136v(a) (b), guage found FIFRA at 7 U.S.C. sec. provides strong persuasive proof government did intend to affecting pesticide enacting from use. ordinances 24(a), 136v(a)4 amended, Section as 7 U.S.C. sec. impliedly regulate authorizes states authorizes delegate authority govеrnments.5 states to How however, dissent, language history I find neither nor FIFRA to clarity necessary implied preemption. meet the test of find especially light govern- This is true in I of what find to be deep justifiably protecting safety ment's interest in the health and through pesticide of its over citizens local control use. 136v(a), provides: 4 7U.S.C. sec. (a) may regulate any federally regis- A State the sale or use of State, only

tered or in device but if and the extent to permit any prohibited by does not sale or use this subchapter. unpersuaded by 5 I arguments am that the narrow definition 136(a) of the term at 7 "state" U.S.C. sec. constitutes clear Con gressional government intent to elimination

ever, 136v(b)6 express sec. preemp 7 U.S.C. contains an prohibits provision tion which states from enacting It this labeling laws. obvious from subsection that the full Congress preemption, where desired the law expressly ‍‌‌‌​‌‌‌‌​‌​‌‌​‌​‌‌​​‌‌​​​​‌‌‌‌‌​​‌​​​​‌​‌‌‌​​‌​‌‍(b) for it. provided Although only sub. prohibits states from expressly dealing labeling, with it impliedly governmental includes of local in Any units this area also. other interpretation would an create absurd result.

Congressional to allow local to in fairly take action this is also implied area from the 22(b).7 express language of FIFRA sec. This section EPA cooperate any instructs the administrator with any subdivision, agency political i.e., city, village, town, of a to secure uniformity regulations. state These meaningless instructions would be if local govern- perceived authority were not having ments as in adopt regulations Obviously, the fist full instance. Congress contemplated authority there in would be the point in language this area. At in action no of the act are prohibited powers exercising delegate from states their author- Likewise, ity clearly to local entities. I am unconvinced that disagreement plagued legislative history divisive of this easily decisively act was so resolved to the conclusion the proponents reading might suggest. of a narrow of "states" 136v(b) provides:

6 7U.S.C. (b) impose any Such in State shall not or continue effect requirements labeling packaging addition or different required subchapter. from those under this 136t(b), 7 7U.S.C. sec. reads: (b) Cooperation cooperate Department Agricul- The Administrator shall with ture, any agency, any appropriate agency other Federal thereof, any political carrying provi- State or subdivision out the subchapter, securing uniformity regulations.

sions of this adopt pesticide local laws for which the cooperative goal uniformity would be sought. Although individual committee recommendations mаy persuasive, they be do not dictate what the intent adopted by law is when it is the full Congress. That Congress great debated the issue length pro- at without viding preemption clear indications of leads con- clusion that no was intended. See Central Maine Power Company Lebanon, v. Town of (Me. 6, 1990); No. 5365 March ex People rel. Mendocino, Deukmejian Cty. 476, 36 Cal. 3d (1984) (neither P.2d 204 Cal. Rptr. 897 the lan- guage of FIFRA nor legislative history of FIFRA clear, evidence a manifest of Congress to preempt government use). control of The test of preemption, state analysis as well as the followed, to be closely coincides with the federal rules See DNR, stated Wis. Environmental Decade v. infra.8 144.025(2)(i), 85 Wis. 2d at 536 (analyzing Stats., sec. for purpose). clear legislative important that, It is to note Savings EOC, 8 See Anchor & Loan Ass'n v. Madison 391, 397, (1984) Wis. 2d 355 N.W.2d 234 which states the Wis preemption: consin rule on municipality legislative grant power Where a acts within the initiative,

but not within the constitutional the state has the author- ity power municipality to withdraw the of the act. tests determining legislatively whether such a intended withdrawal power necessarily nullify which would ordinance has occurred are: (1) legislature expressly power whether the has withdrawn the act; municipalities (2) logically whether the ordinance conflicts with the statе legislation; (3) purpose whether the ordinance defeats the of the state legislation; or (4) goes against spirit whether the ordinance state legislation. case, Casey the expressly this town ordinance states powers is exercising town its via secs. 60.10(2)(c)9 60.22(3),10 Stats., adopt powers and oth granted 61.34(1), under village erwise boards sec. Stats.11 option,

Having exercised this the town's enactment validity if enjoys presumption only which is lost it is clearly illegal. generally, to be See ex rel. found State Milwaukee, 203, 208-09, Bazaar v. Grand 105 Wis. 2d (1982); Refining Corp. N.W.2d Clark Oil & 805 Tomah, 547, 554, 2d Wis. N.W.2d 299 In expressly protect the ordinance is enacted Stats., 60.10(2)(c), provides:

9 Section meeting. 60.10 Powers town (2) DIRECTIVES OR GRANTS OF AUTHORITY TO resolution, By meeting may: TOWN BOARD .... the town (c) village powers. Exercise Authorize town board to powers 60.22(3). village exercise of a under A board s. resolution adopted general paragraph continuing. under this and 60.22(3), Stats., provides: 10 Section powers 60.22 General and duties. The town board: (3) 60.10(2)(c), If VILLAGE POWERS. under authorized s. may powers villages relating village exercise and conferred on powers except boards under ch. those which conflict with statutes relating to towns and town boards. 61.34(1), Stats., provides: 11 Section village (1) 61.34 Powers of board. GENERAL GRANT. Except provided law, by village as otherwise board shall have manаgement village finances, property, highways, and control of the streets, waters, service, navigable public and the and have shall power government good village, to act for the order of the its health, safety, commercial benefit and for the welfare and conve- public, may carry license, powers by nience of the its into effect regulation, suppression, borrowing, taxation, special assessment, fine, appropriation, imprisonment, necessary and other or conve- powers hereby nient means. The be in conferred shall to all addition grants only by express language. other and shall be limited safety general health, welfare of the citizens, town's enjoys protection being only it also limited express language. 61.34(1), See sec. Stats.

As was the case with act, I find no express implied preemption logical or conflict or inconsistency Casey between the ordinance and Wiscon- governing pesticides. sin laws 94.67-94.71, Sections specifically provide Stats., possibility for the of state pesticides. These sections of ch. 94 are not applicable They merely to the town. authorize the Department Agriculture promulgate declaring, to rules example, pesticides for certain be to toxic to humans. generally, See sec. 94.69.12

Chapter governments 94 is neutral as to what local may neutrality, do. Even absent clear if state law dis- pesticide permits gen- cussed the issue of affirmative preemptive language, eral licenses absent clear a local may paral- ordinance could still stand. Such rules run on lel tracks.13 94.69(9), following language Stats.,

12 The from sec. autho department rizes the promulgate governing to rules use pesticides: Pesticides; department may promulgate 94.69 rules. The rules: (9) govern pesticides, including To the use of their formula-

tions, application and to determine the times and methods of and other conditions of use. language authority however, permissive, of this is and corresponding speak Wisconsin Administrative Code sections only pesticides promulgated to restrictive uses of in that the rules expressly prohibit 20.03), pesticides (Ag the use of certain list may special 29.04), permit only (Ag those which be used and explain procedures receiving emergency permits (Ag use 29.06) special registrations prohibited and local need of otherwise 29.08). pesticides (Ag 13Although municipality this court has stated that a can especially state and local laws This true where the Here, of the town do conflict. both ordinance Casey spirit purpose and state law have the same protect which is to human health and the environment. specific example may comparison A be found Stats., 93.07(9), places upon department sec. which duty comply protect groundwater to with ch. 160 supplies, 410, and the laws of Wisconsin Act Laws of counties, encourage 1984 secs. and 2114 which cities, respectively, protect towns and ground- act to water resources. interesting 94.709, Stats.,

It is to note sec. that section, pesticide expressly aldicarb promotes depart- pesticide's ment research this transport mitiga- into See secs. 94.709(5)(a) tion groundwater. into 2. In statutorily encouraged pro- are groundwater tect their supplies, they it stands to reason are authorized to enact addressing, ordinances at least extent, this use.15 Since it is reasonable to neither forbid what nor state law sanctions sanction what state forbids, municipalities it regulate law has also stated can Racine, 542, 546, addition to state action. In Fox v. 225 Wis. 275 (1937), N.W. 513 we stated that: general rule, As a additional to that the state law does not constitute a conflict therewith. an The fact that ordinance enlarges upon provisions by requiring the of a statute more than thе requires therewith, statute creates no conflict the unless statute lim- requirement prescriptions. (Quoting its the for all cases to its own 43 220(b).) C.J. 219-20 sec. 410, 1984, (statute 14 See Wis. Act. Laws sec. 19 sec. 59.97(1)); 1984, (statute Wis. Act. 410 Laws of sec. sec. 60.74(l)(a)7, Stats., 60.61(1)(g), now codified sec. at Act. Wis. 532, 1983)); 410, 1984, 538 Laws of Wis. Act. Laws sec. (statute 62.23(7)(c)). sec. 162, Act,

15 Chapter the Pure Water stands contrast to the encouragement clear take action found the statutes cited municipalities may protect groundwater assume act to supplies, anomaly it would be an to find that these same municipalities protect sup- cannot act to also their food plies, homes, work and recreational areas from affirmatively contamination. Where the state authorizes emergency permits special permits, use local needs preempted acting local against would be from permits.16

such Since this was not the case rela- Casey tive ordinance, town of I find no form of state which works to void the local effective- ness of this enactment. unpersuaded by arguments

I am further that a call uniformity effectively preempts action this Specifically, 93.07(15), speaks Stats., area. sec. to uni- formity only expressly provides in that it Department Agriculture cooperate gov- will with local try goal uniformity. ernments to ilarly, and achieve the Sim- 93.07(1) department while sec. entrusts the with duty accompanying 94, to enforce ch. sec. 93.06(11),contemplates adoption regulations of local by "political uniformity state," subdivisions of the through cooperation which is to be secured with those department. provisions subdivisions Such are cer- tainly government preemption. an antithesis of local

Chapter 106 Laws of 1977 sec. Pur- Statement of pose, provides regulations that state should not exceed regulations may federal standards in that state supra accompanying Chapter 162, at note text. the Pure Act, (with expressly cities, preempts exception) Water small villages regulating towns and from in the area of construction and obtaining ground- reconstruction of wells and other methods of 59.067(5) See secs. consumption. 59.06(1), water for human Stats.; generally see ch. 162.

16 See Code; Code, Ag. Ag. 29.04 Wis. Adm. 29.06 Adm. Wis. Ag. 29.08 Wis. Adm. Code.

be more strict than federal rules. This is not uniform- ity.17 Agriculture gives Department Section 94.69 of authority go beyond regulation.18 federal This is not uniformity. Uniformity goal is a desired achieved cooperation. through Uniformity is not since it does not involve conflict. permitting, prohibi-

The town ordinance is a anot acting police pow- tive, ordinanсe. The town is under its grants permits. it ers when or denies The ordinance has goal trying protect the reasonable to minimize risks to safety general health, welfare of the local citi- superseding zens. town is EPA The board not label- ing restriction, when The rules it acts. label is a not a general permit, is and it one factor taken into considera- by permit application. tion the town as it reviews a The Casey prohibition town of ordinance not a blanket Rather, valid, use it town. is a affirma- police government's powers keep tive act under a local may negative impact tabs on activities that have a on reasons, of its welfare citizens. For these I would uphold the ordinance.

17 Chapter Purpose Laws sec. Statement reads: legislature update the need to finds ‍‌‌‌​‌‌‌‌​‌​‌‌​‌​‌‌​​‌‌​​​​‌‌‌‌‌​​‌​​​​‌​‌‌‌​​‌​‌‍the use application pesticides. legislature It is the intent of the regulations adopted

the State's shall exceed federal standards insecticide, fungicide, regula- under the federal and rodenticide act tions issued under the act. 94.69, Stats., legislature

18 Section illustrates that the did not regulations intend the extent of state be limited to a mirror image (6), (7), (10) (12) regulations. of federal Subsecs. con template regulations beyond state different and areas covered regulation. A.

I to state that Justice William am authorized opinion. dissenting joins this Bablitch

Case Details

Case Name: Mortier v. Town of Casey

Court Name: Wisconsin Supreme Court

Date Published: Mar 12, 1990

Citation: 452 N.W.2d 555

Docket Number: 88-1423

Court Abbreviation: Wis.