Judge Suggests DOJ, DNR Practiced Willful Ignorance of Law

When the Wisconsin Department of Natural Resources announced on Sept. 11 that it was granting a petition for the modification of a pollution permit for Kinnard Farms in Kewaunee County that included ignoring two actions deemed necessary by Administrative Law Judge Jeffrey Boldt last November, they certainly caught the attention of the judge.

A press release sent out by the DNR announcing the granting of the permit said “the DNR is not able to comply with two of the orders” because, as DNR Secretary Cathy Stepp went on to explain in the release, the Department of Justice advised the DNR that following the orders “would be a violation of state law.”

The two actions the DOJ and DNR said would violate state law included putting a cap on how many cows the farm could have and requiring an offsite groundwater monitoring system.

On Sept. 17 Judge Boldt sent a letter to DNR Chief Legal Counsel Timothy Andryk, pointing out that the DNR conclusion that the off-site monitoring condition is not explicitly required or explicitly permitted by statute or rule “appears to conflict with longstanding legal precedent apparently not considered by the Department of Justice.”

Boldt then refers Andryk to Maple Leaf Farms v. DNR, a 2001 case in which “the Wisconsin Court of Appeals held that the Wisconsin legislature has ‘clearly and unambiguously’ given the DNR specific authority to regulate off-site landspreading activities from a CAFO that impacts groundwater.”

Boldt went on to site from that decision: “Therefore, because a CAFO’s over application of manure to fields can be a discharge to groundwater under the statute, we determine that the DNR has authority to issue permits regulating Maple Leaf’s off-site landspreading operations” and “that the legislature has conferred authority on the DNR to regulate discharges, in the form of over application of manure by CAFOs, regardless of whether the discharge occurs on land owned by the CAFO.”

He goes on to point out the 2001 ruling also stated: “[A] CAFO includes not only the ground where the animals are confined, but also the equipment that distributes and/or applies the animal waste produced at the confinement area to fields outside the confinement area…Because the off-site croplands are used by Maple Leaf to dispose of waste produced at its on-site facility, the permit conditions imposed on Maple Leaf to enforce groundwater protection standards are as applicable to Maple Leaf’s off-site landspreading operation as they are on-site.”

Finally, Boldt pointed out the 2001 court’s conclusion that “The WPDES [Wisconsin Pollutant Discharge Elimination System] statutory prohibition on discharges of pollutants from CAFOs would be of little value if the owners of the CAFOs could avoid responsibility merely by placing those pollutants onto the ground of third parties without regard to rates and quantities so that the pollutants would predictably leach into groundwater or run off to surface waters.”

“The Maple Leaf Farms case was well known to the parties,” Boldt writes. “Maple Leaf Farms is even cited several times in the bound version of the Wisconsin Statutes. Further, the underlying DHA [Division of Hearings and Appeals] decision in that case was even cited by Kinnard Farms in its June 2014, Proposed Conclusions of Law…I regret not including it in my Order as a Conclusion on Law, but no party made the argument now relied upon by the DNR.”

As to the cow cap, Boldt wrote, “Because I am aware of no such precedent relating to the other disputed condition, relating to establishing a maximum number of animal units, I will let my decision speak for itself on that issue. That would have been my strong preferences on both issues.”

Asked if she has ever seen a judge make a statement like this, Attorney Sarah Geers of Midwest Environmental Advocates, said “No, but I’ve also never seen the DNR do this before either.”

Geers has been representing the five Kewaunee County residents who petitioned the court to look at the Kinnard operation in the first place.

What did she make of the judge’s letter?

“Judge Boldt was reminding the DNR in a sort of public way that there is legal authority for the conditions that he imposed,” she said. “I think it’s a very measured and appropriate way for Judge Boldt to invite the DNR to reconsider their decision, which I think is unlikely, nevertheless, I appreciate his input. I think at this point it’s sort of up to the parties. Now it falls back to the petitioners to assert their legal rights and to call out the DNR for using a process that is not authorized by the statutes.”

Geers said options are being discussed for a next step.

“At this point, basically the primary legal option to us is an appeal to the circuit court, and that would be an appeal from the DNR’s decision to now essentially dismiss or refuse to adopt ALJ Boldt’s decision,” she said.

Responding to a request for comment, the DNR’s Andryk said, “The Department of Justice is representing DNR in the Kinnard Farms litigation and thus questions or requests for comments need to be directed to DOJ.”

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