Violation of water quality certification statute

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — violation of water quality certification statute

The state filed an enforcement action against respondents alleging they violated WIS. STAT. § 281.36(2)(a) (2009-10),1 by constructing a road through a parcel of wetland without first obtaining a water quality certification from the Department of Natural Resources (DNR). The circuit court agreed that CGIP and deBarros violated the statute, and it ordered them to pay penalties and attorney fees totaling $30,135. However, the court denied the State’s request for an injunction requiring CGIP and deBarros to remove the road and restore the wetland.

The Court of Appeals agreed with the state that the circuit court erroneously exercised its discretion by failing to order removal of the road. The court was required to grant the injunction unless CGIP and deBarros established compelling equitable reasons to deny injunctive relief but the court actually placed the burden on the State to show specific instances of environmental harm caused by the road. By applying an incorrect legal standard, the court erroneously exercised its discretion. The court also erroneously exercised its discretion by failing to base its decision on the facts of record, substituting its own lay opinions for the State’s undisputed expert testimony, failing to give appropriate weight to the previous decisions of this court and an administrative law judge, and giving undue weight to certain factors. On this record, the only reasonable conclusion would be to grant the injunction.

Reversed in part and remanded with directions.

2012AP2346 State v. CGIP Partners LLP and Catherine deBarros

Dist III, Forest County, Stenz, J., Stark, J.

Attorneys: For Appellant: Stoltzfus, Lorraine C., Madison; For Respondent: Wagman, John B., Wausau