Chapter 94

94.26 94.26 Cranberry culture; maintenance of dams, etc. Any person owning lands adapted to the culture of cranberries may build and maintain on any land owned by the person such dams upon any watercourse or ditch as shall be necessary for the purpose of flowing such lands, and construct and keep open upon, across and through any lands such drains and ditches as shall be necessary for the purpose of bringing and flooding or draining and carrying off the water from such cranberry growing lands, or for the purpose of irrigation, fertilization and drainage of any other lands owned by the person; provided, that no such dams or ditches shall injure any other dams or ditches theretofore lawfully constructed and maintained for a like purpose by any other person.

94.26 History History: 1993 a. 492.

94.26 Cross-reference Cross-reference: See also s. NR 19.03, Wis. adm. code.

94.26 Annotation This section exempts cranberry growers from the permit requirements of s. 30.18 for diversion of water for agricultural purposes. State v. Zawistowski, 95 Wis. 2d 250, 290 N.W.2d 303 (1980).

94.27 94.27 Liability for damages. Any person who builds or maintains any dam or constructs or keeps open any ditch or drain under s. 94.26 is liable to persons whose lands are overflowed or otherwise injured by the dam, ditch or drain for the full sum of damages sustained, which shall be ascertained under s. 94.28 and recovered under ss. 94.28 to 94.30.

94.27 History History: 1993 a. 492; 1997 a. 253.

94.28 94.28 Arbitrators to fix damages.

94.28(1) (1) If a person claiming damages from a dam, ditch or drain cannot agree with the person liable to pay the damages under s. 94.27, the damage claimant shall select one disinterested arbitrator and give notice of the selection to the person against whom the damages are claimed. The person from whom damages are claimed shall, within 10 days after receipt of the notice, select another disinterested arbitrator, not of kin to any of the parties interested in maintaining the dams, ditches or drains, and give notice of the selection to the claimant and to the persons selected as arbitrators.

94.28(2) (2) 

94.28(2)(a) (a) The persons selected as arbitrators under sub. (1) shall, within 20 days after notice of their appointment, do all of the following:

94.28(2)(a)1. 1. Appoint a disinterested 3rd person to act as arbitrator with them.

94.28(2)(a)2. 2. Fix a time and place at which the arbitrators shall meet to determine the claimant’s damages.

94.28(2)(a)3. 3. Give notice of the appointment of the 3rd arbitrator and the time and place of hearing to the interested parties.

94.28(2)(b) (b) At the time and place fixed under par. (a) 2., the arbitrators shall view the premises and hear the proofs and allegations of the parties. Within 10 days thereafter, the arbitrators, or any 2 of them, shall make duplicate statements of the proceedings had by them and of the amount that they order to be paid to the claimant for the claimant’s damages and the amount to be paid by the respective parties for the arbitrators’ fees and the costs of the proceedings. The arbitrators shall deliver a copy of the statement and order to each party. Within 20 days thereafter, the amount so ordered shall be paid by the party of whom required unless an appeal is taken as provided under s. 94.29.

94.28 History History: 1993 a. 492; 1997 a. 253.

94.29 94.29 Appeal. If either party is not satisfied with the award the party may, within 10 days after the delivery of the copy thereof to him or her, serve upon either of the arbitrators notice of appeal from their award to the circuit court of the county in which the lands or any part thereof are situated and pay to the arbitrators the whole amount of their fees plus the fee prescribed in s. 814.61 (8) (am) 1.; and if the party required to pay the damages gives notice of an appeal therefrom he or she shall file with the notice of appeal an undertaking, signed by 2 or more sureties, to be approved by at least 2 of the arbitrators, in double the amount of the award, conditioned to pay any judgment that may be rendered against the party upon appeal. Upon filing the notice of appeal and undertaking, when required, the arbitrators, or 2 of them, shall, within 10 days, make and sign a full statement of the proceedings had by them and of their award and file the same with the clerk of circuit court and pay the fee prescribed in s. 814.61 (8) (am) 1.; and thereupon the clerk shall enter an action in which the claimant is the plaintiff, which shall be deemed then at issue, and proceedings shall be had thereon in like manner as in other civil actions in the court. Unless the appellant obtains a more favorable judgment upon appeal, he or she shall pay costs; otherwise, the respondent.

94.29 History History: 1981 c. 317; 1993 a. 16; 1995 a. 27.

94.30 94.30 Rights on payment.

94.30(1) (1) If neither party appeals from the award under s. 94.28 and the responsible party pays the full amount of damages and costs awarded within the time prescribed under s. 94.28 (2) (b) or if, upon an appeal, a final judgment is rendered in favor of the claimant and the responsible party pays the judgment and all costs awarded to the claimant within 60 days after entry of the final judgment, that responsible party shall have the perpetual right to maintain and keep the dams, ditches or drains that caused the damage in good condition and repair. Neither the responsible party nor the responsible party’s assigns shall be liable for the payment of any further damages on account of the dams, ditches or drains.

94.30(2) (2) If the responsible party fails to make payment as described in sub. (1) within the applicable prescribed time, the responsible party shall forfeit all right under this chapter to maintain the dams, ditches or drains that caused the damage.

94.30 History History: 1993 a. 492; 1997 a. 253.

94.31 94.31 Service of notice. In all cases arising under ss. 94.26 to 94.30 when it shall be necessary to serve any notice upon any person who may be out of the state or whose whereabouts shall not be known to the person desiring to serve the same, such notice may be served upon any agent or employee of such person who may be found within this state, and such service shall have the same effect as if it was made upon the party interested.

94.32 94.32 Pay of arbitrators. The arbitrators appointed under s. 94.28 shall each receive $3 per day for their services, to be paid in whole or in part by either party as the arbitrators determine.

94.32 History History: 1997 a. 253.

94.35 94.35 Cranberry Growers Association. The Wisconsin Cranberry Growers Association shall obtain and publish information relative to the cultivation and production of cranberries. The association shall hold semiannual meetings in August and January at such place as it shall determine.

94.35 History History: 1983 a. 524.

94.36 94.36 Certified seed potatoes.

94.36(1) (1) Prohibition; waiver.

94.36(1)(a) (a) Except as provided in par. (b), no person may plant 5 or more acres of potatoes in this state in a calendar year unless all of the seed potatoes that will be used for planting in this state by the person are certified under ch. ATCP 156, Wis. Adm. Code.

94.36(1)(b) (b) The department, upon the request of one or more growers, may waive the prohibition under par. (a) for seed potatoes of a specific variety or genotype for a growing season if there are not enough certified seed potatoes of that variety or genotype reasonably available to growers during that calendar year and the department determines that the seed potatoes of that variety or genotype that will be used for planting do not pose a serious disease threat.

94.36(2) (2) Records.

94.36(2)(a) (a) A person who plants 5 or more acres of potatoes in this state in a calendar year shall retain all of the following records, for each field planted, for a period of 3 years after planting:

94.36(2)(a)1. 1. The name and location of the person from whom the seed potatoes were purchased.

94.36(2)(a)2. 2. A copy of the sales contract and invoice for the seed potatoes.

94.36(2)(a)3. 3. The certification tag for the seed potatoes.

94.36(2)(b) (b) Records required to be retained under par. (a) are open to inspection by the department during normal business hours. A person required to retain records under par. (a) shall provide a copy of those records to the department upon request.

94.36(3) (3) Penalties.

94.36(3)(a) (a) Any person who plants potatoes in violation of sub. (1) in a calendar year shall forfeit not more than $150, plus not more than $150 for each full acre planted in violation of sub. (1).

94.36(3)(b) (b) Any person who fails to retain, allow inspection of, or provide copies of records in violation of sub. (2) shall forfeit not more than $200.

94.36 History History: 2017 a. 46.

94.38 94.38 Agricultural and vegetable seeds; definitions. When used in ss. 94.38 to 94.46 unless the context requires otherwise:

94.38(1) (1) “Advertisement” means all representations, other than those on the label, disseminated in any manner or by any means relating to seed within the scope of ss. 94.38 to 94.46.

94.38(2) (2) “Agricultural seed” includes the seeds of grass, forage, cereal, fiber crops and lawn seeds and any other kinds of seeds commonly recognized and sold within this state for sowing purposes as agricultural seeds or mixtures thereof, and may include noxious weed seeds if used as agricultural seed.

94.38(7) (7) “Label” means the display of written, printed or graphic matter upon or attached to the container of seed or, for seed sold in bulk quantities, included with the invoice or shipping document furnished the purchaser at time of delivery.

94.38(8) (8) “Labeler” means any person who as grower, processor, jobber, distributor or seller labels or accepts responsibility for labeling information pertaining to any container or lot of agricultural seed or vegetable seed and whose name and address are required by the department by rule to appear on the label.

94.38(10) (10) “Lawn seed” means the seed of grasses, clovers or other agricultural seeds or mixtures thereof commonly used or sold for seeding lawns, parks or turf areas in this state.

94.38(11) (11) “Lot” means a definite quantity of seed identified by a lot number or other mark, every portion or bag of which is uniform within recognized tolerances for the factors which appear in the labeling.

94.38(14) (14) “Preinoculated seed” means legume seed which has received an application, prior to sale, of a culture of bacteria which will effectively inoculate the legume as shown by nodulation of the roots, growth of the plants and accumulation of nitrogen in the plants.

94.38(16) (16) “Record” means all information relating to lot, identification, source, origin, variety, amount, processing, blending, testing, labeling, sale and distribution of seed and includes a file sample of each lot.

94.38(18) (18) “Seizure” means the taking of legal custody over seed by court order.

94.38 History History: 1975 c. 39, 308; 1983 a. 189; 1985 a. 138; 1993 a. 112; 2009 a. 28.

94.385 94.385 Seed label requirements.

94.385(1) (1) No person may sell, distribute, or offer or expose for sale in this state a container of agricultural seed or vegetable seed for seeding or sprouting purposes unless the container bears or has attached to it in a conspicuous place a label containing the information required by the department by rule.

94.385(2) (2) Except as provided under s. 94.43 (2), no person may sell in this state a bulk lot of agricultural or vegetable seed for seeding or sprouting purposes unless the person includes with the invoice or shipping document furnished the purchaser at time of delivery a label containing the information required by the department by rule.

94.385 History History: 1985 a. 138; 2009 a. 28.

94.40 94.40 Seed certification.

94.40(2) (2) The Wisconsin Crop Improvement Association, a nonprofit organization incorporated under the laws of this state, in cooperation with the University of Wisconsin-Madison College of Agricultural and Life Sciences and the department, shall be the certifying agency for the certification of agricultural seed and vegetable seed in the state.

94.40(3) (3) The Wisconsin Crop Improvement Association, in cooperation with the University of Wisconsin-Madison College of Agricultural and Life Sciences and the department, shall establish standards and procedures for the certification of agricultural seed and vegetable seed, subject to approval of the department. Standards and procedures established under this subsection shall comply with rules promulgated by the department and be no less stringent than those prescribed by the Association of Official Seed Certifying Agencies.

94.40(4) (4) The Wisconsin Crop Improvement Association, in cooperation with the University of Wisconsin-Madison College of Agricultural and Life Sciences and the department, shall be the certifying agency for the certification of weed free mulch, hay, and straw, and shall base its certifications on the standards of the North American Weed Management Association.

94.40 History History: 1973 c. 335 s. 12; 1977 c. 29 s. 1650m (4); 1985 a. 138; 2009 a. 28.

94.41 94.41 Prohibitions.

94.41(1) (1) It is unlawful for any person to sell, distribute or offer or expose for sale any agricultural or vegetable seed:

94.41(1)(a) (a) Unless the test to determine the percentage of germination required by the department by rule is completed within a 12-month period immediately prior to the end of the month in which the seed is sold, distributed or offered or exposed for sale, except that seed packaged in hermetically sealed containers may be sold, distributed or offered or exposed for sale under any conditions that the department prescribes by rule, for a period of 36 months following the end of the month in which the seed is tested. No seed in hermetically sealed containers may be sold, distributed or offered or exposed for sale beyond that 36-month period unless it is retested within the 9-month period immediately prior to the end of the month in which it is sold, distributed, or offered or exposed for sale and the retested seed is labeled with the extended expiration date.

94.41(1)(b) (b) Not labeled in accordance with rules promulgated by the department, or containing any labeling statements which modify or deny label information required under rules promulgated by the department, or having any other false or misleading labeling.

94.41(1)(c) (c) Pertaining to which there has been a false or misleading advertisement, claim or representation.

94.41(1)(d) (d) Containing prohibited noxious weed seeds in excess of tolerances established by rules of the department.

94.41(1)(h) (h) Represented to be certified seed by means of any labeling, advertisement or other representations unless it is certified and bears an official certification label.

94.41(1)(i) (i) Having attached thereto a blue label, unless such label is an official certification label authorized for use on such seed by a seed certifying agency.

94.41(1)(j) (j) When the inoculum applied to preinoculated seed is ineffective as determined by standards established by rules of the department.

94.41(1)(k) (k) Not certified by an official seed certifying agency, if labeled under the variety name of a variety of seed which is protected by and can only be sold as a class of certified seed under a certificate of plant variety protection issued under the federal plant variety protection act (7 USC 2321 et. seq.), provided that seed from a certified lot may be labeled as to variety name when used in a mixture by, or with the approval of, the owner of the variety.

94.41(2) (2) It is unlawful for any person:

94.41(2)(a) (a) To detach, alter, deface or destroy any label attached to or accompanying seed, or to alter or substitute seed in a manner which would defeat the purposes of the rules of the department relating to the labeling of seed or result in the sale or distribution of seed in violation of ss. 94.38 to 94.46 or rules promulgated under those sections.

94.41(2)(b) (b) To disseminate any false or misleading advertisements, or make any false or misleading claims concerning agricultural or vegetable seeds in any manner or by any means.

94.41(2)(c) (c) To hinder or obstruct in any way, any authorized person in the performance of the person’s duties under ss. 94.38 to 94.46.

94.41(2)(d) (d) To fail to comply with a “stop sale” order or to make any other disposition of any lot of seed contrary to the provisions of such order.

94.41(2)(e) (e) To use the word “trace” as a substitute for any labeling required under rules of the department relating to the composition of seeds or seed mixtures.

94.41(2)(f) (f) To use the word “type” in any labeling in connection with the name of any agricultural seed variety.

94.41(2)(g) (g) To make a false declaration of gross annual sales on any application for a seed labeler’s license or to fail to keep available for inspection by the department accurate records of gross annual sales of seeds sold in this state as a labeler.

94.41 History History: 1973 c. 194, 195; 1985 a. 138; 1993 a. 492; 2009 a. 28.

94.42 94.42 Exemptions. The provisions of ss. 94.38 to 94.46 do not apply to:

94.42(1) (1) Seed or grain not intended for sowing purposes, except where it is made to appear by labeling, advertising or other representations that it is available for purchase or is being sold, distributed or offered or exposed for sale as seed; or where it is represented as being suitable for use as seed by such terms as cleaned, processed, treated, tested, certified or terms of similar import.

94.42(2) (2) To seed in storage in, or being transported or consigned to, a cleaning or processing establishment for cleaning or processing; but any labeling or other representation which may be made with respect to the uncleaned or unprocessed seed shall be subject to ss. 94.38 to 94.46.

94.42(3) (3) Any carrier in respect to any seed delivered or consigned to it by others for transportation in the ordinary course of its business as a carrier.

94.42(4) (4) Any person in respect to any seed sold, distributed or offered or exposed for sale which was incorrectly labeled or represented as to kind, variety or origin, provided that the seeds cannot be identified by examination thereof, unless the person has failed to obtain an invoice, genuine grower’s declaration or other labeling information reasonably necessary to insure the seed is as represented.

94.42 History History: 1985 a. 138.

94.43 94.43 Seed labeler’s license.

94.43(1) (1) Every person whose name and address are required to appear on the label of any seed as the labeler or person responsible for the labeling of the seed under the rules of the department relating to the labeling of seed, and every person who opens any bag or container of seed and sells any part of the seed contained therein, shall obtain a seed labeler’s license from the department before selling, distributing or offering or exposing, the seed for sale in this state.

94.43(2) (2) No person may sell, distribute or offer or expose for sale in this state any seed not labeled by the holder of a seed labeler’s license whose name and address are on the label, except that no license shall be required to sell seed of one’s own production if it is delivered to the purchaser only on the farm premises where grown or to sell seed only in bags or other closed containers labeled by the holder of a seed labeler’s license. Labels are not required for seed packaged at time of sale at retail by the holder of a seed labeler’s license if the bin or other container from which the seed is sold bears a label and the seed with its labeling may be readily examined by the purchaser prior to sale. Seed sold by a licensed labeler under this exception shall be considered as having been sold under his or her label for purposes of computing license fees under sub. (3).

94.43(3) (3) Application for a seed labeler’s license shall be submitted on a form prescribed by the department and shall be accompanied by a fee based on the gross sales of seed within the state by the applicant under his or her own label during the previous 12 months prior to filing the application. Fees for a labeler’s license shall be computed on gross sales according to the following schedule, except that the department may specify different fees by rule: