Natural Resources — removing soil

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Wisconsin Court of Appeals

Criminal

Natural Resources — removing soil

On January 10, 2008, the Racine county circuit court, Honorable Allan B. Torhorst presiding, ordered Raymond R. Vogt, Jr. to refrain from removing soil from the banks of the waterway abutting his property unless or until a permit was issued or he was declared exempt by the DNR as required by Wis. Stat. § 30.20. On September 8, 2011, Vogt was found guilty of criminal contempt by the Hon. Gerald P. Ptacek after he did work on the waterway without a permit or an exemption. Vogt claims that the evidence was insufficient to prove two of the three elements of criminal contempt—that he had the ability to comply with the order and that he intentionally disobeyed it. His argument rests on the belief that Judge Torhorst referred to the wrong statute and should have used Wis. Stat. § 30.19. He asserts that this error made the order so ambiguous that he was unable to comply with it. As a result, he could not have intentionally disobeyed it. His argument will not fly. The order was simple enough to understand—he was not to dig up the soil that had been the subject matter of litigation with the DNR until the DNR gave him a permit to do it or declared him exempt. He dug without a permit or an exemption. The court properly held him in contempt. He also claims that the evidence was insufficient to prove that he “removed” soil; he only rearranged it. We reject that argument as well. This opinion will not be published.

2011AP2941-CR State v. Vogt

Dist II, Racine County, Ptacek, J., Brown, C.J.

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Weber, Gregory M., Madison; Wishau, Noah, Racine