Barge fight still afloat after Supreme Court ruling (UPDATE)

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An eight-year fight between the state and a former Milwaukee storage yard owner over a sunken barge is going back to the courthouse where it all began.

The Wisconsin Supreme Court on Tuesday sent back to Milwaukee County Circuit Court the case involving Basil Ryan Jr. and the state Department of Transportation. The high court ruled a circuit judge erroneously submitted a summary judgment in the forfeiture case, which involves the government seizing a person’s assets.

Circuit Judge Thomas Cooper, who now is retired, submitted a 2009 summary judgment ordering Ryan place in a trust account $100,000 for the removal of the barge from the Menomonee River in Milwaukee. The barge was next to Ryan’s former property in the Menomonee Valley, and the money was to come from the state’s eminent domain payment for the land.

Cooper also fined Ryan $37,691 because the barge was in violation of environmental regulations.

Summary judgments only are allowed in civil cases in which there are no material facts in question and a court can interpret the law and submit a ruling, said Daniel Biersdorf, a Ryan attorney who works for Minnesota-based Biersdorf & Associates SC. Criminal cases, he said, guarantee a trial for the defendant.

But forfeiture cases, Biersdorf said, have aspects of criminal and civil and represented a gray area in the law until the state Supreme Court cleared it up.

“All the penalties that were imposed really need to be vacated,” he said. “But the Supreme Court didn’t do that, so it goes back to the circuit court to address that.”

Assistant Attorney General Joanne Kloppenburg argued the case for the state on behalf of the Department of Justice and WisDOT. According to a Tuesday email attributed to Dana Brueck, spokeswoman for the DOJ, no one from the department would comment on the case.

The court’s ruling presented another turn in the protracted legal battle between Ryan, a former Franklin alderman, and the state. Neither side wanted to accept ownership of the 120-foot-long by 30-foot-wide barge.

In March 2004, the state condemned Ryan’s 10-acre property at 260 N. 12th St. along the Menomonee River so WisDOT could use the land as a staging area during the Marquette Interchange reconstruction.

But the property included the barge, which was moored to a concrete wall and floating in the river. State officials told Ryan after the condemnation to remove the barge by August 2005, according to court records, but Ryan asserted the state assumed responsibility for barge by taking control of the property.

The barge sank July 13, 2006, according to court records. In February 2008, the state sued Ryan for unlawfully placing an obstruction on the bed of a navigable stream.

Biersdorf said the barge, which was chained to the wall, sank because WisDOT didn’t maintain it. He said the barge required occasional bailing.

“The DOT kind of screwed up in two ways,” Biersdorf said. “They didn’t pump the water out, and they cut the chains.”

Paul Bucher, an attorney for Delafield-based Bucher Law Group LLC who also represents Ryan, said Ryan paid a “significant amount” to remove the barge in fall, but the money did not come from the $100,000 trust account, which is untouched.

“I don’t know the exact dollar amount,” he said. “It’s not triple figures, but I wouldn’t be surprised if it’s in the $50,000 range.”

Both of Ryan’s attorneys said they expected a scheduling conference for circuit court.

But Bucher said the state should move on.

“It doesn’t seem to be a wise use of the government’s resources to continue this case,” he said. “The barge is out of the water. It’s a moot issue. I can’t see why we’d have a do-over.”

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