COURT OF APPEALS DECISION DATED AND FILED November 24, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of Plaintiff-Appellant, v. Matt H.
Poehnelt, Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
¶1 BRUNNER, J.[1] The State appeals from an order denying its request under Wis. Stat. § 30.298(5) for an order to restore waters that Matt Poehnelt was convicted of illegally altering. We conclude the circuit court erroneously exercised its discretion by placing the burden of proof on the State. In addition, we conclude the court erroneously considered inappropriate factors, and failed to consider appropriate ones, in denying the restoration request. We reverse and remand.
BACKGROUND
¶2 Poehnelt was cited for constructing an artificial waterway connecting with a navigable water of the state without a permit in violation of Wis. Stat. § 30.19(1g)(a). According to the citation, Poehnelt diverted a tributary of Cranberry Creek into a pond he constructed nearby. As a result, the tributary runs into Poehnelt’s pond before flowing into Cranberry Creek and, eventually, the Holcombe Flowage. Poehnelt pled no contest to the citation, was found guilty, and was fined $249.
¶3 The State petitioned the circuit court for restoration of the affected area. A Department of Natural Resources report accompanying the restoration request noted that Poehnelt created the pond in a wetland, which he filled by spreading the excavated soil around the perimeter of the pond. In addition, Poehnelt diverted the tributary by blocking the channel at two locations. Poehnelt also constructed a dam at the pond outlet. The DNR report concluded that proper restoration of the property would include removal of the dams blocking the flow of the tributary, removal of the wetland fill, and restoration of the original channel.
¶4 The circuit court held a hearing on May 16, 2008, to consider the State’s request. DNR water management specialist Dan Koich testified Poehnelt called the DNR in the summer of 2004 and requested permits to construct a pond. When Koich visited Poehnelt’s property, he informed Poehnelt the DNR was not likely to authorize a plan that included wetland fill, damming, and stream diversion. Koich provided Poehnelt with a permit application, but Poehnelt completed the project without submitting it. Poehnelt’s refusal to obtain a permit prevented the DNR from conducting an environmental assessment of the project. When Poehnelt testified at the May 16 hearing, the circuit court accepted Poehnelt’s invitation to view the affected property.
¶5 A second hearing commenced on October 13, 2008, immediately following the circuit court’s view. At the beginning of the hearing, the court opined Poehnelt’s was a “beautiful piece of property.” The court also heard additional evidence about issues it raised during the off-the-record view. DNR wildlife supervisor John Dunn testified the diverted tributary had been deemed navigable under case law.[2] Relying on its observations during the view, the circuit court disagreed with Dunn’s conclusion. The court expressed skepticism toward the definition of navigability, termed it “meaningless,” and eventually stated “[i]f that is the definition it should be changed.” The court concluded the State had not met its burden of proving the navigability of the waterway. It also concluded the State failed to demonstrate the harmful effects of Poehnelt’s violation. The State appeals the order denying its restoration request.
DISCUSSION
¶6 A circuit court’s decision to grant or deny an injunction is
a discretionary act. Nettesheim
v. S.G. New Age Prods., Inc., 2005 WI App 169, ¶9, 285
¶7 The State contends the circuit court erroneously denied its restoration request under Wis. Stat. § 30.298(5). That subsection provides that, in addition to forfeitures,
the court may order the defendant to perform or refrain from performing such acts as may be necessary to fully protect and effectuate the public interest in navigable waters. The court may order abatement of a nuisance, restoration of a natural resource or other appropriate action designed to eliminate or minimize any environmental damage caused by the defendant.
As the State notes, the statute’s
use of the word “may” vests a circuit court with considerable discretion in
deciding whether to order, and how to fashion, equitable relief.
¶8 In Goode, our supreme court considered
“whether a circuit court retains equitable power to deny injunctive relief
after a zoning ordinance violation has been proven.”
¶9 The supreme court also identified the methodology a circuit
court should follow when considering whether equitable relief is warranted in
an action to enforce shoreland zoning ordinances.
Once a violation [of a shoreland zoning ordinance] is established, a circuit court should grant the injunction except, in those rare cases, when it concludes, after examining the totality of the circumstances, there are compelling equitable reasons why the court should deny the request for an injunction…. [T]he circuit court also possesses equitable power to fashion an injunction that does justice. If the court is inclined to deny an injunction, it should first explore alternatives to the requested full injunction to determine whether a more equitably crafted injunction might be appropriate.
¶10 Under this standard, we conclude the circuit court erroneously
exercised its discretion in two distinct ways.
First, the circuit court considered inappropriate factors, and failed to
consider appropriate ones, in denying the restoration injunction. During the restoration hearing, the State
argued Poehnelt’s refusal to obtain a permit deprived it of the ability to
fully assess the environmental harm caused by wetland destruction. In addition, the State noted Poehnelt’s
violation was intentional. The circuit
court did not address either of these points in its decision, although both are
relevant equitable considerations under Goode. The court failed to consider other equitable
factors, including whether a more limited injunction than full restoration
could adequately protect the public interest.
As the State points out, one alternative would have been to require
Poehnelt to apply for an after-the-fact permit for the project. Further, the circuit court did not address
the substantial interest of
¶11 Second, the circuit court erroneously placed the burden on the
State to demonstrate the need for restoration.
The court repeatedly stressed it was “up to the [S]tate to prove that
[harm was done].” As we have explained,
once a violation of a statute protecting navigable waters has been established,
the presumption favors granting an injunction to restore the environment. See Goode, 219
[W]here a public entity is authorized to seek a statutory injunction enforcing a zoning ordinance, … the plaintiff does not have to show irreparable injury in order to obtain the injunction. A circuit court is one guardian of the protected shoreland, and should not deny injunctive relief lightly when a zoning ordinance violation is proven.
¶12 On remand, the circuit court should determine whether
restoration is appropriate and order any necessary restorative measures. The circuit court should grant the State’s
restoration motion unless Poehnelt presents “compelling equitable reasons why
the court should deny the request for an injunction.”
By the Court.—Order reversed and cause remanded with directions.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] A
body of water is navigable if it is “capable of floating any boat, skiff, or
canoe, of the shallowest draft used for recreational purposes.” State v. Kelley, 2001 WI 84, ¶30,
244
[3] Poehnelt correctly points out that the
court’s conclusion in Forest County v. Goode, 219
[4] “If the waterway is not navigable, no
permit is required.” Village
of Menomonee Falls v. DNR, 140