STATE OF WISCONSIN CIRCUIT COURT SAUK COUNTY BRANCH III

Transcription

1 STATE OF WISCONSIN CIRCUIT COURT SAUK COUNTY BRANCH III SAUK PRAIRIE CONSERVATION ALLIANCE. Petitioner, Case No CV v. WISCONSIN NATURAL RESOURCES BOARD AND WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Case Code: Administrative Agency Review Respondents. PETITIONER S BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION OF THE COURT S DECISION TO DENY PETITIONER S REQUEST FOR A PARTIAL STAY PENDING REVIEW INTRODUCTION The Court issued an oral decision denying the Sauk Prairie Conservation Alliance s (the Alliance or Petitioner ) Motion for Partial Stay and, Alternatively, Motion for Injunctive Relief Pending Review ( Petitioner s Stay Motion ) on March 15, The Alliance, by its undersigned attorneys Perkins Coie LLP, respectfully submits this brief in support of Petitioner s Motion for Reconsideration of the Court s Order to Deny Petitioner s Request for a Partial Stay Pending Review. The Court has considerable discretion when determining whether to grant the Alliance s motion for reconsideration, particularly if the Alliance presents either newly discovered evidence or establishes a manifest error of law or fact. See, e.g., Koepsell s Olde Popcorn Wagons, Inc. v. Koepsell s Festival Popcorn Wagons, Ltd., 2004 WI App 129, 44, 275 Wis. 2d 397, 685 N.W.2d 853, citing Otto v. Metro Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000).

2 The Alliance appreciates the careful consideration the Court gave to Petitioner s Stay Motion and does not lightly ask the Court to reconsider its decision. However, the Alliance respectfully submits that the Court made an error of law warranting reconsideration, namely misstating the irreparable harm test. Once that error is corrected, the Alliance respectfully requests that the Court reverse its decision on Petitioner s Stay Motion and issue a stay under Wis. Stat to prevent irreparable injury from occurring to Petitioner and the Sauk Prairie State Recreation Area ( the Property ) from the use of off-road motorized vehicles, the increased use of guns, and helicopter training at the Property. I. A MOVANT NEED ONLY SHOW THE POTENTIAL FOR IRREPARABLE INJURY, NOT ACTUAL IRREPARABLE INJURY, IN ORDER TO SECURE A STAY PENDING REVIEW UNDER WIS. STAT In its oral decision on March 15, 2017, the Court analyzed Petitioner s Stay Motion by discussing the legal standards for granting relief pending appeal and for a temporary injunction. (See e.g., 3/15/17 Transcript, pp. 5-6) Specifically, the Court discussed two leading cases, Werner v. A.L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 259 N.W.2d 310 (1977) and State v. Gudenschwager, 191 Wis. 2d 431, 529 N.W.2d 225 (1995), and outlined the factors from those cases that the Court would consider when deciding Petitioner s Stay Motion. (Id.) Although Petitioner agrees generally that the two cases cited by the Court can guide the Court s decision-making under Wis. Stat , the Alliance respectfully submits that the Court s discussion of the irreparable harm factor misstated that test under Wisconsin law. That is, in its oral decision, the Court repeatedly stated that Petitioner must show that it will suffer irreparable harm in the absence of a stay pending review. (See, e.g., 3/15/17 Transcript, pp. 5, 9, 13, emphasis added) In its conclusion, the Court went on to note that Petitioner had -2-

3 shown the potential for irreparable harm, but reiterated that the Alliance had not shown that actual irreparable harm would occur absent a stay: Plaintiffs have shown, as they variously put it, in their arguments in the briefing that these uses could cause some irreversible harm. There is a risk of harm. There are potential risks of concern. There is a potential for irreparable harm to the environment and so forth. The plaintiff finds fault with the DNR s supporting analysis that it has not taken the, quote, hard look, end quote that the law requires. That remains to be an issue determined later, whether the DNR has met its burden in that regard, but this weakness, if true, is not the same as an affirmative showing by plaintiff at this stage that the permitted uses will, unless stayed, cause plaintiffs, or the environment or the public interest to suffer irreparable harm. Stated differently, this factor, irreparable harm, must be shown to exist and it is plaintiff s burden to show it, not the DNR s burden to show that it does not before the stay as requested can be granted. (Id. at 13-14, emphasis added) Petitioner does not dispute that it has the burden of showing the threat of irreparable harm from the Wisconsin Department of Natural Resource s ( WDNR ) and Wisconsin Natural Resources Board s ( NRB ) proposed high-impact uses on the Property; however, Petitioner submits that showing a threat or potential of irreparable harm is sufficient rather than showing that irreparable harm will, definitively, occur absent a stay. Indeed, the Wisconsin Supreme Court has made clear that an injunction is designed to prevent injury, and that an injunction may issue merely upon proof of a sufficient threat of future irreparable injury. Pure Milk Products Co-op v. National Farms Organization, 90 Wis. 2d 781, 802, 280 N.W.2d 691 (1979) (emphasis added). The Wisconsin Supreme Court further explained: This court has held that to establish a sufficient probability that a defendant s conduct will injure a plaintiff it is not necessary for the plaintiff to wait until some injury has been done; equity will prevent, if possible, an injury. Threat of an injury is sufficient. Id. (internal citations omitted, emphasis added) -3-

4 Thus, the Court should reconsider Petitioner s Stay Motion by examining whether Petitioner has shown the threat of irreparable harm with respect to the uses it seeks to stay during the pendency of its judicial reviews and request for administrative proceedings. Petitioner also clarifies the three specific uses that it seeks to stay, namely: (1) off-road motorized vehicles including dual-sport motorcycles and any other off-road motorized activity a person may seek a permit for in the special use area; (2) increased gun use including Class II dog training, paintballing, and any other activity involving guns that a person may seek a permit for in the special use area; and (3) helicopter training. Whether a stay pending appeal should be granted should be examined separately using the threat of irreparable harm standard for each of the three types of activities the Alliance seeks to stay. II. A STAY PENDING REVIEW IS APPROPRIATE FOR EACH OF THE THREE IRREPARABLE HARMS THE ALLIANCE SEEKS TO PREVENT. In its oral decision, the Court considered the following factors from the Gudenschwager and Grootemaat cases when analyzing Petitioner s Stay Motion: (1) irreparable harm; (2) likelihood of success on the merits; (3) no substantial harm will come to other interested parties or the public interest; and (4) whether a stay is needed to preserve the status quo. (3/15/17 Transcript, pp. 5-6) The Court first looked at those factors one at a time, and noting that it was a close call, found that on balance the scales tipped against the granting of a partial stay. (Id. at 6, 9 and 19) The Alliance respectfully requests that the Court reconsider all four factors and its final decision in light of this motion s clarification regarding the irreparable harm standard and the three separate and distinct types of uses the Alliance seeks to stay. When analyzed under the appropriate standard it is clear, as the Court already found, that the Alliance has demonstrated the potential for irreparable harm if each of the three types of uses are permitted on the Property pending review. Specifically, the affidavits submitted by the -4-

5 Alliance in conjunction with Petitioner s Stay Motion and the information in the WDNR s Master Plan and Final Environmental Impact Statement show that the use of motorized vehicles off established roads can cause displacement, nest desertion, breeding failure, and other impacts to some native species, including death to some slow-moving animals and harm to some sensitive species from motor-vehicle exhaust. 1 (See, e.g., Master Plan, p. 140; Meine Affidavit, p. 4, 9) Similarly, gun noises from increased gun use can irreparably harm Petitioner and the Property by harming the well-being and habitats of important native animal species, including nesting birds, and causing noise pollution. (See, e.g., Master Plan, p. 189; Meine Affidavit, p. 4, 9) Lastly, helicopter training generates substantial noise and wind which can have negative cumulative impacts on wildlife and visitors seeking quiet experiences. (Master Plan, pp. 134 and 161) Helicopters also generate considerable localized dust conditions which may include harmful or contaminated substances given the prior uses at the Property. (Master Plan, p. 131) When analyzing the merits of the case, the Court can consider whether DNR s and NRB s decision to allow those uses should be over-turned, but for purposes of Petitioner s Stay Motion, allowing those uses now clearly creates the threat of irreparable harm to Petitioner and the Property. With respect to the likelihood of success on the merits factor, the Court correctly noted in its oral decision that the level of deference, if any, that should apply to the issues raised in the Alliance s petitions is not before it at this moment. (3/15/17 Transcript, p. 8) Petitioner will address that issue in detail in its brief on the merits. The issue is a tricky one to fully parse at this stage since the Alliance has identified numerous concerns with the WDNR s and NRB s 1 Tomorrow, March 31, 2017, Petitioner is filing its Brief in Support of Petition for Judicial Review of Respondents Denials of Requests for Contested Case Hearing, which includes additional information supporting the threat of irreparable harm to the Petitioner and the Property. -5-

6 decisions, and the level of deference to apply to each issue, if any, will require extensive discussion. 2 Regardless, the level of deference is not dispositive of the likelihood of success on the merits criteria for a stay pending appeal. Petitioner has raised a host of issues, including that the high-impact uses WDNR and the NRB chose to allow are incompatible with governing documents regarding land transfer that demonstrate that Petitioner is likely to prevail on its Petition to overturn the agency s decision. Moreover, the likelihood of success factor is not to be viewed in isolation from the other factors when considering a request for a stay pending review. For example, in Gudenschwager, the Wisconsin Supreme Court noted that: To justify granting a stay, a movant need not always establish a high probability of success on the merits. It has been said that the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the plaintiff will suffer absent the stay. In other words, more of one factor excuses less of the other. Gudenschwager, 191 Wis. 2d at 441, internal citations omitted. As explained above, Petitioner has established significant threats of irreparable harm from each of the three types of uses it seeks to stay pending review. Similarly, when considered in the context of the threat of irreparable harm to Petitioner and the Property from the three types of uses Petitioner seeks to stay, the remaining criteria do not outweigh the dangers to Petitioner and the Property from allowing those uses to continue during the pendency of this appeal. As the Court noted in its oral decision, the status quo and substantial harm criteria are interrelated. (See 3/15/17 Transcript, p. 15) As the Court also 2 For example, the Clean Wisconsin v. Pub. Service Comm n of Wisconsin case cited by Respondents states that, The PSC s determination that an [Environmental Impact Statement] is adequate is a conclusion of law to which this court accords great weight deference. Clean Wisconsin v. Pub. Service Comm n of Wisconsin, 2005 WI 93, 190, 282 Wis. 2d 250, 700 N.W.2d 768. However, no deference will be owed to the WDNR s and NRB s interpretation of the federal property transfer laws or the Final Report of the Badger Reuse Committee. -6-

7 noted, there has been no off-road motorized vehicle use or increased gun usage allowed at the Property for many years; there is only the history of helicopter training. (Id. at 14-15) As such, the status quo supports Petitioner s request for two of the three types of uses it seeks to stay. Moreover, with respect to helicopter training, although the Alliance has been involved in the restoration planning for the Property for the last 20 years, it is only in the last two years that the general public has been allowed on the site. 3 As such, the history of the co-existence of Petitioner and helicopter training has not been in place for the last 20 years. Likewise, whatever harm may come from delaying increased gun usage like Class II dog training or off-road motor vehicle use like dual-sport motorcycling is not outweighed by the irreparable harm to the Petitioner and the Property that could occur if those uses are not stayed pending review. Snakes that are killed during a dual-sport motorcycle racing event and birds that abandon their young due to being startled by increased gun usage cannot be replaced, but the approximately 18 percent of public commenters that commented in support of those uses can wait another year, or however long it takes to resolve the Alliance s petitions for review and request for administrative proceedings, before using the Property to those ends. With respect to helicopter training, as the DNR and NRB noted in the Master Plan, that training may need to be phased out anyway since it is incompatible with the National Park Service s transfer of lands through the Federal Lands to Parks program. (See, e.g., Master Plan, p. 35) Whatever harm applies to the Wisconsin Army National Guard from temporarily halting the training while the Court considers the Alliance s petitions for review is not outweighed by 3 See, e.g., AP, New rec area on old munitions site to get final inspection, DailyReporter.com, March 27, 2015, available at: and WDNR, Sauk Prairie Recreation Area open for fall hunting and other outdoor activities, September 11, 2015, available at: -7-

8 the threat of irreparable harm to the environment from continuing the practice during the Court s review. In sum, applying the threat of irreparable harm standard and balancing the criteria for stay pending appeal against each of the three types of harm Petitioner seeks to prevent, Petitioner has shown that the Court should reconsider and reverse its decision to deny Petitioner s Stay Motion. CONCLUSION For the foregoing reasons, Petitioner respectfully requests that the Court reconsider and reverse its decision to deny Petitioner s Stay Motion and enjoin the WDNR and NRB from allowing the use of off-road motorized vehicles, the increased use of guns, and helicopter training at the Property pending resolution of the Alliance s petitions for judicial review and requests for administrative proceedings. DATED: March 30, 2017 PERKINS COIE LLP By: s/ Brian H. Potts Brian H. Potts Wisconsin Bar No BPotts@perkinscoie.com Jeff J. Bowen Wisconsin Bar No JBowen@perkinscoie.com Danielle S. Grant-Keane Wisconsin Bar No DGrantKeane@perkinscoie.com 1 East Main Street, Suite 201 Madison, WI Attorneys for Petitioner Sauk Prairie Conservation Alliance -8-