68 Op. Att'y Gen. 3 | Wis. Att'y Gen. | 1979
ANTHONY S. EARL, Secretary Department of Natural Resources
Your letter requests an opinion on whether the Department of Natural Resources must comply with ch. 32, Stats., as amended by chs. 438 and 440, Laws of 1977, when engaging in land acquisition, even if the use of the Department's eminent domain power is not contemplated.
I have been advised that the situation you have in mind is the not uncommon occasion when a property owner initiates the acquisition of his property by the Department. Prior to the contact by the owner, the Department had no scheduled program for the acquisition. Thus, the acquisition, while it serves a clear public purpose, is an accommodation to the owner who wishes to sell his property. In short, under these circumstances, and if the Department has a bona fide intention not to condemn the property, it need not comply with ch. 32, except for secs.
The Department of Natural Resources' power to acquire land, by condemnation or otherwise, derives from sec.
Lands, acquisition. Acquire by purchase, lease or agreement, and receive by gifts or devise, lands or waters suitable for the purposes enumerated in this paragraph, and maintain such lands and waters for such purposes; and may condemn lands or waters suitable for such purposes after obtaining approval of the appropriate standing committees of each house of the legislature as determined by the presiding officer thereof:
1. For state forests for the purpose of growing timber, demonstrating forestry methods, protecting watersheds or providing public recreation.
2. For state parks for the purpose of preserving scenic or historical values or natural wonders.
3. For public shooting, trapping or fishing grounds or waters for the purpose of providing areas in which any citizen may hunt, trap or fish.
4. For fish hatcheries and game farms.
5. For forest nurseries and experimental stations.
6. For preservation of any species defined in s. 29.415 (2).
7. For state recreation areas as defined in s.
By its terms, the statute seems to contemplate two separate grants of power: one to "acquire by purchase, lease or agreement," and two, to "condemn lands or waters suitable." Nevertheless, both purchase or condemnation can be exercised only for the seven purposes enumerated. This indicates that any property that can lawfully be acquired by purchase by the Department could potentially be condemned by the Department.
The caveat in sec.
The distinction as to when the Department is using its acquisition power under sec.
However, in view of the dual nature of the power to acquire or condemn under sec.
Once the Department of Natural Resources Board passes a resolution of the necessity for the taking of a certain property, pursuant to sec.
Sections
CONDEMNOR. "Condemnor", for the purposes of ss.
32.19 to32.27 , means any municipality, board, commission, public officer or corporation vested with the power of eminent domain which acquires property for public purposes either by negotiated purchase when authorized by statute to employ its powers of eminent domain or by the power of eminent domain.
In my opinion, this definition indicates that the Department must comply with secs.
There seems to be an inconsistency in the requirements of sec. terms, sec.
Information on payments. Before initiating negotiations to acquire the property under s.
32.05 (2a),32.06 (2a) or chapter275 , laws of 1931, as amended (Kline Law), the condemnor shall provide displaced persons with copies of applicable pamphlets prepared under s.32.26 (6).
Strictly construed, the requirement for informational booklets does not attach unless the Department is operating under sec.
My conclusion, then, is that under the described situation where the Department of Natural Resources has no intention to condemn the property, it can lawfully negotiate for its purchase under sec.
BCL:CAB *7