THE TRAGEDY OF FUNKS DAM
In the case of Froebel v. DNR, 217 Wis. 2d 652, 579 N.W.2d 774 (1998), it is reported that the DNR sought to remove what was then known as “Funks Dam.” This Dam blocked sediment and other pollutants from entering North Lake. Funks Dam was approximately one mile upstream of North Lake on the Oconomowoc River in the Town of Merton in Waukesha County. Id. at 656. Strong objections were made to the removal of Funks Dam by the North Lake Management District and other citizens of North Lake because it was feared the removal would pollute North Lake. The DNR was unmoved and gave strong assurances that the removal of Funk’s Dam would not cause harm to North Lake. Id.
In point of fact, as alleged and proven by the plaintiff in Froebel, when the DNR went ahead and removed Funks Dam in 1992 it failed to follow its own plans which led to foreseeable massive sediment discharges into North Lake which ruined the ecology of North Lake. Id. The effects of the injuries thus inflicted upon North Lake by the DNR continue to this day.
An Administrative Law Judge (“ALJ”) assigned in the Froebel case specifically determined and found that the plaintiff in Froebel had established that the removal of Funk’s Dam resulted in the infusion of considerable amounts of muck and sediment into North Lake and that the harm inflicted upon North Lake had i) been foreseeable by the DNR and ii) was a result of the DNR’s wrongful failure to follow its own plans. Id. at 659 to 660.
The plaintiff in Froebel sought an affirmative injunction after harm had been inflicted on North Lake by the DNR seeking to have the DNR “remove the fill, silt and sediment” from North Lake. The DNR sought to dismiss the request of the plaintiff in Froebel for legal redress on the grounds that the requested relief was not available to the plaintiff under and pursuant to Chapter 227 of the Wisconsin Statues. Id. at 661 to 662. The Court of Appeals in Froebel concluded that neither the ALJ nor the Circuit Court had the legal power to compel the DNR to take remedial action after the fact to undo the harm it had wrongfully done to North Lake. Id. at 662.
Thus, once the DNR had inflicted harm on North Lake in Froebel there was no legal redress available to the plaintiff. The Court of Appeals further found that the ALJ and the Circuit Court were without power to enter affirmative injunctive relief against the DNR (Id. at 666-667).
The Court of Appeals noted that one of the chief reasons why legal redress could not be ordered in favor of the plaintiff was that under the law the DNR was the enforcer of the law and could not properly be the subject of an action to impose a legal remedy for a wrong it had done. Id. at 666. Thus, by the reasoning of the Court in Froebel, it is clear to the citizens of North Lake that the only way to prevent the infliction of a wrong by the DNR is to pursue all legal options before that wrong has been perpetrated.
The Court of Appeals in Froebel recognized that the DNR had acted to harm the citizens of North Lake by polluting North Lake, but the Court of Appeals concluded that unfortunately those citizens were without a legal remedy. Judge Nettesheim, the author of the Froebel decision, put it this way:
"We join in the ALJ's criticisms of the DNR's practices in this case. We would expect the DNR, as the protector of this state's natural resources and the chief enforcer of our laws protecting those assets, to abide by the rules which it imposes and enforces on others. We also would expect it to abide by the promises and representations it makes to the public regarding its own activities. These expectations may perhaps explain why the legislature has not deemed it necessary to create laws which make the DNR subject to the requirements imposed on others. However, we cannot rewrite the existing laws to accommodate Froebel's legitimate complaints. His arguments and his criticisms are more properly directed to the legislature." Id. at 673.
WE MUST AVOID ANOTHER FUNKS DAM
The DNR has a demonstrated history of acting to harm and pollute the navigable waters of North Lake and its environs with complete impunity from any legal redress once it has so acted. History thus clearly teaches that the citizens of North Lake will be without any adequate legal remedy once the DNR has acted to construct the Kraus public launch. It is important to emphasize that the RRNA is not just fighting for Reddelien Road. The RRNA is just as concerned about the harm the DNR’s newest “plans” for North Lake will inflict on the environmental quality of North Lake and all of the citizens who own property on the Lake.