The Wisconsin Department of Natural Resources is asking judges to dismiss a lawsuit challenging the agency’s authority to overrule another judge’s findings regarding a controversial Monroe County frac sand processing facility.
Last month Clean Wisconsin and the Ho-Chunk Nation filed suits in Monroe and Dane county courts claiming DNR Secretary Dan Meyer overstepped his authority when he agreed to review an administrative law judge’s ruling that had invalidated a permit issued to Meteor Timber for the proposed $75 million processing and loading facility.
In court briefs filed Monday on behalf of the DNR, attorneys from the Wisconsin Department of Justice argue that the courts have no standing to review Meyer’s decision because it is not final.
Administrative law Judge Eric Defort ruled in May that the DNR didn’t have information required by state law when it issued a permit allowing Meteor to fill 16.25 acres of wetlands near Millston. His decision to reverse the permit followed a five-day hearing during which several former DNR employees said the agency granted the permit in spite of its own staff findings and a list of unanswered questions.
Acting on a request from the Georgia-based investment company, Meyer later appointed staff attorney Mark Herman to review Defort’s ruling.
State attorneys argue that Meyer’s decision to review Defort’s ruling is not final because it doesn’t affect anyone’s rights.
“The substantial rights of the parties are undetermined until the secretarial review is complete and a final decision is rendered,” the brief states. “At the end of the secretarial review, DNR will issue a final decision and either affirm the ALJ’s decision to deny the wetland permits or it will reverse the ALJ’s decision and issue the permits.”
Allowing “piecemeal, successive reviews” would result in multiple appeals, create the potential for inconsistent judicial decisions and make the process more complicated, according to the state’s brief.
The state also says neither Clean Wisconsin nor the Ho-Chunk Nation have standing to sue because they have not demonstrated actual harm.
Clean Wisconsin staff attorney Evan Feinaur said, “We expected this motion and we’re confident in the merits of our case.”
Tressie Kamp, staff attorney for Midwest Environmental Advocates, which is representing the Ho-Chunk, declined to comment on the motion to dismiss.
The DOJ has asked the courts to consolidate the cases before a Monroe County judge. Feinauer said Clean Wisconsin will seek to have the cases consolidated in Dane County, which MEA does not oppose.
“Our client’s claims have strength and merit regardless of venue,” Kamp said.Millston.