District IV
December 10, 2014
To:
Hon. Frank D. Remington
Circuit Court Judge
215 South Hamilton, Br 8, Rm 4103
Madison, WI 53703
Carlo Esqueda
Clerk of Circuit Court
Room 1000
215 South Hamilton
Madison, WI 53703
Donald K. Schott
Quarles & Brady, LLP
P.O. Box 2113
Madison, WI 53701-2113
Rachel Anne Graham
Quarles & Brady, LLP
P.O. Box 2113
Madison, WI 53701-2113
James E. Parra
Midwest Environmental Advocates, Inc.
612 W. Main Street, Ste. 302
Madison, WI 53703-4714
Elizabeth Lawton
Midwest Environmental Advocates, Inc.
612 W. Main Street, Ste. 302
Madison, WI 53703-4714
Bradley J. Motl
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Lorraine C. Stoltzfus
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
You are hereby notified that the Court has entered the following opinion and order:
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Midwest Environmental Defense Center, Inc. v. DNR and Foremost Farms USA (L.C. # 2012CV3352) |
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Before Blanchard, P.J., Lundsten and Sherman, JJ.
The Department of Natural Resources (DNR) and Foremost Farms USA appeal an order remanding this case back to DNR. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21 (2011-12).[1] We reverse.
We have received supplemental letter briefing on the effect of Clean Water Action Council of Northeast Wisconsin v. DNR, 2014 WI App 61, 354 Wis. 2d 286, 848 N.W.2d 336, review denied, 2014 WI 122, __ Wis. 2d __, 855 N.W.2d 697 (“CWAC”). In its supplemental brief, respondent Midwest Environmental Defense Center concedes that it was required to seek a contested case hearing under Wis. Stat. § 283.63 as a prerequisite to judicial review of the DNR decision before us. In other words, the Center concedes that it failed to exhaust its administrative remedies.
The remainder of the Center’s brief focuses on whether there are sufficient reasons for a discretionary decision not to apply the exhaustion doctrine in this particular case. However, the Center does not attempt to demonstrate that the circuit court made such a discretionary determination as an alternative to the court’s legal conclusion about the applicability of Wis. Stat. § 283.63. Our review of the record shows that the court did not make such a decision. The Center does not explain how we could affirm on the basis of discretion that was not exercised. Nor does the Center ask that we remand to the circuit court for an exercise of that discretion.
The Center may also be arguing that we should make such a discretionary determination ourselves, although the Center does not clearly ask us to do that. It provides no authority for the proposition that we can be the first court to exercise that discretion. However, even if we assume without deciding that we can exercise that discretion, we would not excuse the failure to exhaust here. The circumstances here are similar to those in CWAC in the sense that there is no reason to believe that the Center could not find four other petitioners. See CWAC, 354 Wis. 2d 286, ¶26. Furthermore, there are benefits to contested hearings, see id., ¶23, and the Center has not persuaded us that there would be no benefit to such a hearing in this case.
IT IS ORDERED that the order appealed is summarily reversed under Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals