Denial of Burial Sites Permit

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WI Court of Appeals – District IV

Case Name: Wingra Redi-Max, Inc. v. State Historical Society of Wisconsin, et al.

Case No.: 2015AP1632; 2015AP1844

Officials: Kloppenburg, P.J., Lundsten and Higginbotham, JJ.

Focus: Denial of Burial Sites Permit

This appeal is the second case concerning two Native American effigy mounds called the Ward Mound Group (the Ward Mounds), which were added to the catalog of burial sites by the Director of the State Historical Society in 1991 pursuant to WIS. STAT. § 157.70(2) (2015-16). The Ward Mounds are on three acres, surrounded by a large quarry, all owned by Wingra Stone Company, formerly known as Wingra Redi-Mix, Inc. Wingra Stone petitioned the Director for permission to “disturb” the Ward Mounds pursuant to WIS. STAT. § 157.70(5), for purposes of mining sand and gravel near and, apparently, under the Ward Mounds. The Director referred the petition to the division of hearing and appeals (DHA), which conducted a contested case hearing and denied the petition. Wingra Stone sought judicial review of DHA’s decision in the circuit court, which reversed and remanded the case for additional fact finding consistent with the circuit court’s ruling.

The State Historical Society and the Ho-Chunk Nation appeal and Wingra Stone cross-appeals the circuit court’s decision. The relief Wingra Stone seeks in its cross-appeal is not fully clear. In its cross-appeal brief Wingra Stone requests that we vacate, modify, or remand the decision of DHA for further proceedings consistent with this court’s conclusions. We are uncertain whether Wingra Stone’s cross-appeal arguments are additional arguments in support of the circuit court’s decision, or instead in support of this court issuing an opinion directing DHA to grant Wingra Stone the permit, or both. We need not resolve this uncertainty. For the reasons below, we reject all of Wingra Stone’s arguments challenging DHA’s denial of the permit. Also, for this reason, we need not distinguish between the arguments Wingra Stone makes in its response brief in the appeal and in its cross-appeal briefs. We simply identify and reject each of Wingra Stone’s arguments. Accordingly, we reverse the circuit court’s decision and affirm DHA’s decision denying Wingra Stone’s petition for a permit to disturb the Ward Mounds.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.