May Invasive Species Invade Municipal Ordinances?

Municipal Law Alert, March 2009

An influx of invasive species has caused considerable damage to local fauna, lakes and waterways in our area. This has resulted in an increased public concern about regulating the movement of invasive species. The most common concern is watercraft moving between lakes and waterways. Municipalities are responding to the concerns by enacting ordinances regulating the transport of invasive species. The ordinances typically require that watercraft be free of weeds and other forms of aquatic life before transport.

Prior to enacting ordinances that regulate invasive species, municipalities need to consider whether they have the authority to regulate transport of aquatic plants and invasive animals. The Federal Government and the State of Wisconsin, through the Department of Natural Resources (DNR), have adopted a series of rules and regulations addressingthe treatment of aquatic plants and invasive animals. The fact that both the federal and state governments have regulated in this area raised a question of whether they have exclusive authority to enact and enforce regulations concerning the transport of aquatic plants and invasive animals. If the state and federal government have exclusive authority, any ordinance enacted by a municipal governmental body would be pre-empted by the state and federal regulations and, as a consequence, would be null and void.

The Wisconsin Attorney General addressed the question in an opinion released on February 22, 2008. The attorney general’s opinion concluded that a county had authority to enact an invasive species ordinance. The attorney general cautioned that any invasive species ordinance must be narrowly drafted to avoid pre-emption by state and federal regulations. The attorney general relied on the broad home rule powers held by a county to

support his interpretation. See http://www.doj.state.wi.us/ag/opinions/.

Municipalities may rely on the attorney general’s opinion when deciding whether to enact an ordinance of this nature. However, the attorney general’s opinion relied on the fact that state and federal rules and regulations did not specifically limit the authority of local governmental bodies to regulate. The legislature and the DNR, through its rule making authority, may change those rules to specifically ban local regulation. If the federal or state rules change, the basis for the attorney general’s opinion would be undercut. Federal or state rule changes could mean that the federal or state laws would pre-empt local municipal attempts at regulation by ordinance.

Aside from concerns about pre-emption, as a practical matter, a municipality may desire to consult with state DNR officials prior to enacting an ordinance. The municipality should inquire if the DNR is in support of local legislation and if the DNR intends to pre-empt local regulation in this area. At this point, the DNR has generally not objected to local regulation.

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Open Records Request: Tips for Responses

Municipal Law Alert, March 2009

The following list is intended for clerks and other public officials who receive requests for government records. The list’s purpose is to give some helpful guidelines on responding to record requests. The list is not intended as a complete summary of all the open records law’s requirements and nuances. Consult a municipal attorney for advice on responding to specific requests.

  • Respond.

The first guideline is that the law requires a response. The law does not necessarily require a municipality to make a record available. To the contrary, since there are exceptions to the open records law, some records should not be made available. Nevertheless, the municipality must respond by (1) making the records available; or (2) by denying the request. If there are concerns or reasons the information should not be released, consult a municipal attorney as soon as possible, prior to responding.

  • Respond promptly, not immediately.

The law requires a response “as soon as practicable and without delay.” While there is no exact timeframe specified by the statute, a municipality should respond within a reasonable time based on the request and on staff availability and workload. If the request is complicated and will be time consuming, a reasonable response time might be five to ten working days. Again, if there are reasons the information should not be released, it is reasonable to delay responding until after consultation with a municipal attorney.

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Be Careful How You Regulate

Municipal Law Alert, March 2009

Burnett County learned an expensive lesson on how not to enact ordinances in a recent Court of Appeals decision. Yourchuck Video, Inc. v. Burnett County, 2007AP2093, unpublished slip op. (WI App August 19, 2008). In that case, the County was ordered to pay $200,000.00 in damages because it enacted an ordinance that failed to provide adequate due process under the United States Constitution.

The County enacted an ordinance regulating signs. Yourchuck applied to install a sign larger and taller than the County ordinance permitted. The County rejected the application. When Yourchuck requested a hearing on the rejection, the County informed Yourchuck it could not have a hearing because the ordinance had no provisions for granting variances.

Yourchuck refiled the application. When the application was once again rejected, Yourchuck filed a notice of claim and challenged the constitutionality of the ordinance based on due process. They claimed that they had been denied notice and an opportunity to be heard before they were deprived of their property rights to erect a sign.

The matter went to trial, where the trial court found the ordinance was constitutional. The Court of Appeals, however, reversed that decision. The Court of Appeals held the ordinance was unconstitutional because it did not have a variance or other review procedure for permit applicants to redress grievances. Yourchuck Video, Inc. v. Burnett County, 2004AP2345, unpublished slip op. (WI App July 6, 2005).

The case was returned to the trial court, and a trial was held to determine Yourchuck’s damages caused by the County’s enforcement of its unconstitutional ordinance. The jury awarded Yourchuck $200,000.00 in damages. The County once again appealed and on the second appeal, the Court of Appeals upheld the damage award.

None of the Yourchuck court decisions are published and, therefore, they are not binding on other courts in different cases. However, the decisions serve as a cautionary tale for municipalities. Any governmental entity enacting ordinances should have the ordinances carefully reviewed prior to enactment. Ordinances are a very effective tool for a municipality to utilitize in performing its governmental functions. However, citizens have rights that must be considered by a governmental entity when conducting its business. Failure to comply with those rights can have expensive consequences.

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