Alliance Post-Hearing Brief Filed from Contested Case Hearing against DNR
On Friday, March 22, our attorneys with Perkins-Coie law firm filed a “post-hearing brief” summarizing the Alliance’s arguments presented during the 4-day contested case hearing against the Wisconsin Department of Natural Resources held in January of this year. The hearing was presided over by an Administrative Law Judge.
The Alliance brought 11 witnesses to the hearing (appearing in this order)—Jeb Barzen (birds and grassland ecosystems), Gary Casper (birds and salamanders), William Hauda (Nonmotorized Recreation and Transportation Trails Council), Robin Meier (Bluffview Sanitary District), Charlie Luthin (SPCA, birds, general high-impact recreation impacts), Dr. Anna Pidgeon (UW-Madison, impacts to birds), Paul Senner (grassland bird ecology), Curt Meine (Badger Reuse Committee, Plan & history of process), Gene Dalhoff (BRC), Tom Gilbert (former NPS rep on BRC) and Mike Mossman (birds of Badger).
DNR brought nine witnesses to the hearing: Major Nils Henderson (WI Army National Guard, WIARNG), Stephen Warrner (DNR), Diane Brusoe (former DNR planner for Badger), John Pohlman (planner for SPSRA Master Plan), Eric Lobner (wildlife, dog training/trialing), Paul Zajackowski (DNR regional parks manager), James Pardee (DNR Environmental Impact Analysis), Brigit Brown (DNR State Trails Coordinator), Dave Sample (DNR’s grassland bird expert).
The brief was filed with the Natural Resources Board per the judge’s direction. However, as our brief elucidates, the NR Board (a political body that approved the original Plan in December 2016) has no authority to make a decision on a contested case hearing. Rather, as our attorneys argue, that decision should be made by the law judge himself or by the DNR Secretary (currently Preston Cole).
If you’re interested in reading the full (74-page) brief, click here: Sauk Prairie Conservation Alliance’s Post-Hearing Brief.
Here is a summary of our key arguments taken from the brief. The DNR’s master planning process was unlawful for the following reasons:
• The challenged high-impact uses will have significant adverse environmental impacts and are not compatible with the ecological capability of the Sauk Prairie Recreation Area (SPRA) This was unequivocally established during the contested case hearing by the Alliance’s expert witnesses— including one of the DNR’s prior grassland bird experts (Michael Mossman), a current University of Wisconsin-Madison professor who specializes in avian ecology (Dr. Pidgeon), a thirty-year veteran avian ecologist who used to be the Director of the Field Ecology Department at the International Crane Foundation (Jeb Barzen), and three additional scientists (one with a PhD, Dr. Meine, and two
with master’s degrees, Mr. Luthin and Mr. Senner).
• Wisconsin Statutes require that prior to designating a property as a State Recreation Area, the DNR must have completed the master planning process. The Board designated the Badger property as a State Recreation Area in 2002. It is undisputed in the record, however, that the challenged master plan was a “new” master plan, and this new master plan was not approved by this Board until December of 2016. As such, either the Board’s original designation in 2002 was unlawful, or this master planning process should have been conducted as a modification to a prior plan (the Badger Reuse Plan), not as a new master planning process.
• The high-impact uses are incompatible with the land’s ability to support and sustain the intended management, development and recreational uses in violation of Wisconsin Statutes.
• DNR did not follow its own master planning rules, and its purported environmental impact statement in this case was woefully deficient and violated numerous provisions in state statutes.
• DNR did not consult with the State Non-motorized Recreation and Transportation Trails Council while drafting the master plan in violation of state statutes.
• DNR was also required by statute to “consult with and obtain the comments of any agency which has jurisdiction or special expertise with respect to any environmental impact involved, but DNR did not do so.
• DNR did not adequately “consult with federal, state, county, town, and local units of government, local agencies and Indian tribes” during the master plan development and adoption process, as required by Wisconsin Administrative Code.
• And last, but certainly not least, DNR failed to adequately consider and avoid the effects of the high-impact uses on adjacent management areas, such as Devil’s Lake State Park, in violation of Wisconsin Administrative Code.
We’ll keep you informed as we learn more about this case.