SPECIAL NOTE
On May 23, 2013, Judge Mac Davis issued a Bench Decision in which he vacated the DNR's November 2010 Manual Code Approval Permit as well as its Storm Water Permit (See Document No. 49 at right). He also reversed the ALJ's underlying 2012 decisions in their entirety. He based his Bench Decision in part on two joint briefs filed by the RRNA and the NLMD, one dated March 22, 2013 and one dated May 8, 2013. Both those briefs appear at the right as Documents Number 47 and 48. On July 24, 2013, Judge Davis signed the Final Order in these cases (See Document No. 50 at right). The DNR did not appeal the Bench Decision and the Final Order and so they stand as the law of the case.
BACKGROUND
The RRNA was formed in September of 2007 by Attorneys Bill Gleisner and Dave Kern. It hired experts and lawyers and sought to “get the ball rolling.” In late 2008 the RRNA turned its lawyer and its experts over to the North Lake Management District (“NLMD”). The RRNA assumed that the NLMD would carry the ball going forward.
In May of 2010 the RRNA learned that there were problems developing in the fight with the DNR, such as the failure to appeal certain important decisions. In particular, the RRNA learned that an important decision concerning the so-called Kuchler Site had not been appealed.
The Kuchler Site is an alternative to the Kraus Site (see the “North Lake” tab on this web site). On March 1, 2010 the DNR issued a lengthy decision denying an application for a permit by the North Lake Development Group and the North Lake Management District (“NLMD”) to build a boat launch on the Kuchler Site. See the first document to the right, entitled “March 1, 2010 DNR Decision Denying Kuchler Permit.” The NLMD did not appeal that decision and that failure led to the RRNA’s current litigation efforts on behalf of the Reddelien Road Neighborhood and North Lake.
THE RRNA'S COURT AND ADMINISTRATIVE LAW CASES
At the present time there are three actions pending before three different judges. The Judicial reviews (Waukesha Case Nos. 5085 and 5096) are pending before Judge Ramirez but are stayed until November 7, 2011. There is also a case involving a storm water permit (Waukesha Case No. 5341) which is pending before Judge Mac Davis. A contested case hearing regarding navigability is scheduled to begin in Waukesha County on September 19, 2011 before Administrative Law Judge Boldt.
In early August of 2010 the RRNA learned the U.S. Army Corps of Engineers had given permission to the DNR to begin work on the Kraus Site. The NLMD did not appeal the Army Corps decision, but the RRNA did and that appeal is still pending.
On September 3, 2010 the RRNA commenced a lawsuit against the DNR and sought an injunction against them doing any work on the Kraus Site. See the second document to the right entitled “September 3, 2010 Summons & Complaint in Case 3792.” Clearly, this lawsuit prevented the DNR from doing any work until December of 2010.
On August 13, 2010 the North Lake Development Group again filed an application for a permit to build a boat launch on the Kuchler Site. On October 5, 2010 the DNR issued another decision denying that application. See the second document to the right entitled “October 5, 2010 DNR decision denying Kuchler Permit.” The NLMD also failed to appeal that decision. Unfortunately, the RRNA lacked standing to appeal that decision.
On November 4, 2010, two days after the election that saw Scott Walker become Governor the DNR issued a permit to itself allowing it to begin work immediately. See document no. 4 on the right entitled “November 4, 2010 DNR Permit to itself to Develop Kraus” also known as the "Manual Code Permit."
In addition, on November 4, 2010 the DNR issued a storm water permit to itself concerning the Kuchler property but did not serve it on anyone except an employee. See document no. 4A at the right entitled “November 4, 2010 Hartsook Storm Water decision.” The RRNA appealed this decision, but once again the NLMD did not. See document no. 8 at the right entitled “December 20, 2010 RRNA Petition for Judicial Review in Case 5341.” The RRNA’s appeal has been the subject of a hearing and a transcript of that hearing is available at right as document no. 11 entitled “June 17, 2011 transcript of hearing before Judge Davis in Case 5341.” See also document no. 10 at right entitled “May 23, 2011 Brief in Opposition to Dismissal in Case 5341.”
On November 22, 2010 the RRNA sought a contested case hearing regarding the Manual Code Permit. See document no. 5 on the right entitled “November 4, 2010 RRNA Petition for a Contested Case Hearing." In early December of 2010 the RRNA sought judicial review regarding the Manual Code Permit. See document no. 6 on the right entitled “December 3, 2010 RRNA Petition for Judicial Review in Case 5096.” In December of 2010 the RRNA obtained an agreement (“stay”) from the DNR that any land disturbing construction would not begin. That stay will continue at least until November 7, 2011.
On December 13, 2010 the DNR issued a decision denying 7 of the 8 contested case issues raised by the RRNA in its November 22, 2010 Request. See document no. 7 to the right entitled “December 13, 2010 DNR decision regarding contested case hearings.”
PROCEEDINGS DURING 2011
The struggle with the DNR has been proceeding primarily on two tracks. There is a dispute as to whether the proposed launch on the Kraus Site will adversely impact navigable water (pending as Case 12CV1751). And there is a dispute about a storm water permit which the DNR secretly issued to itself in November of 2010 (pending as Case 10CV5341). We will take the latter dispute first.
On June 17, 2011 there was a hearing before Judge Mac Davis in Case No. 5341. The Judge heard arguments for one hour and then adjourned the hearing until July 29, 2011. The Judge requested the submission of additional affidavits and briefs by the 15th of July. The transcript of that June 17th hearing is available for downloading. See Document No. 11 at the right of this page.
On July 15, 2011 The RRNA filed a Supplemental Brief in Opposition to the DNR's Motion to Dismiss in Case No. 5341. See Document No. 13 at the right of this page. On July 29, 2011 Judge Davis ruled against the DNR in Case No. 5341 and an Order in conformity with his ruling was entered on August 11, 2011. See Document No. 14 at the right of this page.
After the filing of lengthy additional briefs (see Documents 15-17 at right) and another lengthy hearing before Judge Davis (see Document 18 at right), Judge Davis ruled in favor of the RRNA on December 12, 2011 (see Document 19 at right) that the entire matter of storm water management had to be remanded to an Administrative Law Judge. This occasioned a dispute as to how the remand Order would be worded.
On December 23, 2011 Assistant Attorney General Milligan wrote a letter to the Judge (No. 20 at right), and we responded by letter on December 28, 2011 (No. 21 at right). Then Assistant Attorney General Kloppenburg weighed in on December 29, 2012 (No. 22 at right). Judge Davis granted our request and issued a January 6, 2012 Order (No. 23 at right). The storm water management issue was scheduled for a hearing before the ALJ April 18-19, 2012. As of the end of the year, the DNR had refused to produce a transcript of that hearing.
The hearing on navigability (pending under Case 1751) resulted in a prolonged hearing which lasted from September to November of 2011. A number of prehearing briefs were exchanged (see Document 24 at right). A number of depositions were taken, the transcripts of which are set forth at right (Documents 25, 26, 27, 28 & 29) and the hearing took place over five days: September 19, 20, 21, October 31 and November 1, 2011 (See Documents 30, 31, 32, 33 & 34 at right).
The RRNA submitted a post hearing brief on February 10, 2011 (No. 35 at right), which contains color copies of many of the most crucial exhibits produced during the heairng. The DNR filed a responsive brief on March 9 and the RRNA filed a reply brief on March 23 (see No. 36).
PROCEEDINGS DURING 2012
A hearing was held before ALJ Boldt on April 18-19, 2012 (concerning the subject matter of Case 5341). After the hearing, the ALJ refused to prepare a transcript of that hearing. When a transcript is finally prepared, it will appear at the right as Item No. 37. Post hearing briefs were filed following the April 2012 hearing a decision of the ALJ was rendered in July of 2012.
After a stipulated dismissal of the navigability case which had been pending before then Judge Davis, the navigability case was refiled pursuant to a Joint Petition of the NLMD and the RRNA on June 1, 2012 as Case 1751 (See No. 38 at right). Following the ALJ's decision on storm water (pending as Case 5341), the RRNA moved to consolidate Cases 5341 and 1751 on August 3, 2012 (See No. 39 at right).
On August 23 the DNR filed a brief in opposition to the RRNA's motion to consolidate Cases 1751 and 5341 (See No. 40 at right). Judge Davis ruled in favor of an administrative consolidation on October 16, 2012 (See No. 45 at right).
Also on August 3, 2012, the RRNA filed a petition in Case 5341 seeking to have Judge Davis resume his judicial review of the DNR's storm water permit (See No. 41 at right). On August 23, 2012, the DNR moved to dismiss that Petition (See No. 42 at right). The RRNA filed a brief in opposition to that motion (See No. 43 at right) and the DNR filed a reply brief in support of its motion to dismiss on October 3, 2012 (See No. 44 at right).
Following a hearing on November 14, 2012, Judge Davis entered a lengthy Bench Decision in Case 5341 (See No. 46 at right) wherein the Judge: 1) Granted the RRNA's Petition that the Judge resume judicial review; 2) Denied the DNR's motion to dismiss; 3) Ruled that the DNR had waived its right to bring such a motion to dismiss; 4) Over the sternuous objection of the DNR, ruled that the issue of whether the DNR had conducted a necessary NR 103 analysis was a proper issue for the Court to consider; and 5) Required the DNR to at long last prepare a transcript of the April 2012 hearing regarding the DNR's motion to dismiss.
PROCEEDINGS DURING 2013
In 2013, Judge Davis asked for briefs on the merits concerning both Case 5341 (concerning the Manual Code Approval Permit the DNR had issued to itself) and Case 1751 (concerning the Storm Water Permit the DNR had issued to itself). The joint merit briefs of the RRNA and the NLMD are set forth at right as Document No. 47 and Document No. 48. Judge Davis' May 23, 2013 Bench Decision against the DNR is set forth at right as Document No. 49, and Judge Davis' Final Order against the DNR is set forth at right as Document No. 50.
Technical Note
You can access the documents at right in two ways. You can click on the hyperlink and the document will open in another window. You can also click on the "download" link and save the document to your hard drive. Some documents, like the December 3, 2010 Complaint, may load somewhat slower than the rest of the documents due to their size.