The court ruled, 5-2, that the Wisconsin Department of Justice, which is representing the DNR, could move the case because state law gives those making the appeal the right to select the appeals court district where it wants to hear the case.
There are four appeals court districts in the state.
The ruling was a loss for two environmental groups — Clean Wisconsin and Midwest Environmental Advocates — and a group of citizens in Kewaunee County, in northeastern Wisconsin, and a win for Attorney General Brad Schimel whose office argued for the change in venue.
The majority opinion was written by Justice Daniel J. Kelly, who was joined by fellow conservatives Chief Justice Patience Roggensack, Michael Gableman, Annette Ziegler and Rebecca Bradley.
Dissenting were liberal Justices Shirley Abrahamson and Ann Walsh Bradley. (The Bradleys are not related.)
The case stems from a dispute over issues tied to a large dairy farm expansion and the Justice Department’s decision during the appeal process to move the case from liberal Madison to the appellate court in Waukesha, where Schimel was district attorney before he was elected attorney general in 2015.
Tuesday’s ruling focused on which court should hear the appeal. The high court could eventually rule on environmental issues at the heart of the case.
In her dissent, Abrahamson wrote: “No one court of appeals district is more fair than any other, and when the state is the appellant, it does not appear that any one court of appeals district is more convenient than any other.
“Where, then, is the harm that justifies an expensive appeal in the instant case paid for by taxpayers when District IV (Madison) is just as fair and arguably more convenient for the DNR than District II (Waukesha)?”
Kinnard Farms Inc. is one of the largest dairy farms in Wisconsin and currently has nearly 7,000 cows in a region where thin soils and fractured bedrock make it easier for manure to pollute groundwater.
The farm’s owners asked the DNR to grant a permit allowing for a major increase in the size of the herd from 4,500 to 6,500 cows. The expansion was challenged by environmental groups and some neighbors.
In a case with many twists and turns, Jeffrey Boldt, an administrative law judge hearing the case, said in 2014 that polluted wells in the region represented a “massive regulatory failure to protect groundwater…”
Boldt’s comments were widely circulated by critics of large farms to buttress their claims that the DNR has not adequately policed them. But supporters of large farms say that the size of a farm alone doesn’t dictate whether it can be farmed safely. They also say large farms are more heavily regulated than small farms.
Boldt allowed the expansion to proceed, but with a limit on the number of cows and a requirement that wells be drilled to detect potential bacteria contamination.
Kinnard appealed, but the DNR denied the appeal in November 2014.
But eight months later in 2015, then-DNR Secretary Cathy Stepp, an appointee of Republican Gov. Scott Walker, asked the Department of Justice whether her agency had the authority to impose such conditions.
One day later, Schimel’s office replied that the DNR did not. The expansion eventually went ahead. His office cited a 2011 law approved by the GOP-controlled Legislature that limited the regulatory powers of state agencies to those specifically granted them.
Environmentalists appealed the case. A Dane County judge ruled against the DNR and said regulators could not backtrack from a decision.
The DNR and the Justice Department then appealed.
Schimel selected the appeals court in Waukesha, pointing to a provision in state law that allows parties who appeal cases in some instances to pick their court. The law was approved by lawmakers in 2011 when Republicans were frustrated by having their policies blocked, at least initially by circuit and appeals judges in Madison, the seat of government.
In the Kinnard case, the appeals court in Madison ruled in September 2016 that it should hear the case.
Schimel appealed to the Supreme Court, and the majority sided with his agency and the DNR.
The Kinnard dairy farm in Kewaukee County milks 6,500 dairy cattle through a CAFO (concentrated animal feeding operations). The county has a problem with contaminated wells but the Kinnards say their precise manure measurement prevents run-off. Rick Wood/Milwaukee Journal Sentinel
By: Lee Bergquist,
Source: Milwaukee Journal Sentinel