Tuesday, June 1, 2021

Judge: DNR erred issuing golf course wetland-fill permit

Opponents of the Kohler golf course project won a major round Friday when Sheboygan Circuit Court Judge L. Edward Stengel affirmed that the WI DNR had awarded the project its key wetland-fill permit based on incomplete and inaccurate information, as the opponents had argued.

The ruling can be appealed, and I will write about this later, but this is one giant step towards re-establishing law, logic and science in the public interest  - a 21-part series about this history is here, with Chapter 10 devoted to the golf course fight - after all the intentional Walker-era damage intentionally done to the DNR and so much Wisconsin land, water and clean air the DNR was supposed to be leading.

Part of the actual acreage within Kohler Andrae State Park which would be transferred by the DNR to the privately-owned golf course for road, parking and property storage.

Below is the heart of the ruling: "ALJ" refers to an Administrative Law Judge who had found the permit invalid - a ruling which Kohler Co. had challenged: 

In his decision, the ALJ extensively discussed his findings that the full risk assessments and final operational documents submitted by Kohler were not completed at the time that the permit was issued. 

The ALJ concluded that the Department issued the wetlands fill permit on the basis of incomplete, and possibly incorrect, information, making it impossible for the DNR to make the appropriate and necessary findings to comply with Wisconsin statutes and administrative regulations. Without having the necessary information required by law before it, the ALJ concluded that the DNR had no basis upon which to issue the permit and that the Department improperly relied on promises from Kohler that it would adhere environmental regulations and restrictions that were not part of the mandated conditions listed in the final permit.

The responsibility of the ALJ at the contested case hearing was to determine if the permit was issued on sound evidence. However, after a hearing that lasted five days and reviewing the record assembled before the DNR, the ALJ concluded that the Department issued the permit on incomplete and inaccurate information. The contested case hearing was not a second permitting hearing. 

 The contested case hearing was conducted to review a decision issued by the DNR. Kohler attempts to tum the contested case hearing into a second fact finding hearing to cure defects that arose during the original permitting process. The time to submit complete and accurate information was during the initial permitting hearing. The contested case hearing is not the proverbial "second kick at the cat", a chance to cure all the defects of the initial permitting process. Accepting Kohler's argument would ignore the language of statutes regarding the purpose and the rules governing both the initial permit proceeding and a contested case hearing review.

Wisconsin courts have already ruled that statutory language should be read to give

reasonable effect to every word published in the statute. Martin, supra at 893-894. Kohler's argument would have the court ignore this long standing doctrine in favor of a novel theory without basis in statute or case law.

If Kohler's argument were to be adopted, any entity requesting a wetlands fill permit would be allowed to provide incomplete and inaccurate evidence to support its request at the initial hearing stage, yet avoid any consequences from its failure to prove its case by requesting a contested case hearing. Under Kohler's new rules, a developer could request a contested case hearing, present information that should have be submitted in the initial hearing, along with any new evidence that it could uncover or develop in the time between its original hearing and the contest case proceeding, and submit it in support of its case. The permitting hearing before the DNR would, in effect, become a practice run for the real proceeding before the ALJ. Instead of being reviewed by numerous personnel and with the full weight of the resources available to the DNR, one judicial officer would issue the final permit. This would make the standards and procedures set out in law and regulation for obtaining a wetland fill permit superfluous and drain them of any meaning. 

If Kohler's argument were to be adopted, the initial hearing requesting a permit would become a trial run for the real permitting hearing which would take place during the contested case proceeding. This would be in direct contradiction to the intent of the legislature and be a waste of both agency and judicial resources. Taken to its final conclusion, Kohler's argument results the nullification of existing statutes without legislative consent and the creation of new law by the judicial fiat in direct violation of the separation of powers under the state constitution.

Based on the foregoing review and analysis, the request of Kohler to overturn the decision of the ALJ is DENIED and this matter DISMISSED in its entirety.


Laurette McGovern said...

So, can I dare hope that reason--and the public good--will prevail?

Nic said...

Keep us posted and try to take a shot at the archaeological situation and litigation if you want! :)