Abuse of Discretion – Sufficency of Evidence

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WI Court of Appeals – District IV

Case Name: Wingra Redi-Mix, Inc. v. Burial Sites Preservation Board, et al.

Case No.: 2014AP2498

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

Focus: Abuse of Discretion – Sufficency of Evidence

This appeal concerns Wisconsin’s Burial Sites Preservation statute, WIS. STAT. § 157.70 (2015-16), which requires the Director of the State Historical Society to “identify and record in a catalog burial sites in this state and … sufficient contiguous land necessary to protect the burial site from disturbance.” Pursuant to § 157.70(2)(a), the Director added Native American effigy mounds referred to as the Ward Mound Group (the Ward Mounds) to the catalog in 1991. In its present condition, the Ward Mounds consist of a full effigy mound of a bird and a partial effigy mound of a canine. The Ward Mounds are on three acres owned by the Wingra Stone Company, formerly known as Wingra Redi-Mix, Inc., which petitioned the Director in 2010 to remove the Ward Mounds from the catalog pursuant to WIS. ADMIN. CODE § HS 2.03(6). Wingra Stone appealed the Director’s decision to the Burial Sites Preservation Board, which affirmed and adopted in whole the Director’s decision, and the circuit court affirmed the Board. Wingra Stone appeals. For the reasons that follow, we affirm the circuit court’s order affirming the Board’s decision.

On appeal, Wingra Stone argues that the Board unreasonably concluded that Wingra Stone did not present, in the words of the administrative code, “sufficient evidence to indicate that a cataloged site does not contain any burials,” that is, human remains. Wingra Stone also make a series of arguments that attempt to recast its principal argument in alternative terms. We first explain why the record shows that Wingra Stone failed to present sufficient evidence that the Ward Mounds do not contain human remains and why we conclude that substantial evidence supports the Board’s denial of Wingra Stone’s removal petition. We next address and reject Wingra Stone’s arguments in support of its position that it presented sufficient evidence to support its petition for removal. We then address Wingra Stone’s alternative arguments challenging the Board’s decision.

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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.