In a decision that produced both dismay and satisfaction among those in attendance, Grant County Circuit Court Judge Craig Day ruled in favor of Pattison Sand Company in their lawsuit against the Lower Wisconsin State Riverway Board (LWSRB) on Tuesday, June 10.
The ruling overturns the decision by the LWSRB last August to deny permits to the Pattison Sand Company to mine frac sand within the Riverway boundary. Unless the LWSRB chooses to appeal the decision, Pattison Sand Company will receive the permits.
Noting that much of the material provided in the court record was not germane to the issue, Day addressed what he considered to be the primary definition of excavation.
Wisconsin Department of Justice attorney Mark Bromley argued that excavation was a process and not simply the hole in the ground, thus allowing for consideration of dust and light pollution to be considered.
Trying to preserve river
“We are trying to preserve the river as it is, and not as Pattison envisions it,” Bromley said.
“We are easily tempted to think of excavation as only one thing, the hole in the ground. It means two things, the hole in the ground and the process by which that hole in the ground is made,” Bromley said. “The excavation of this hole was clearly going to be vividly, indisputably…visible from the river.”
Peter Conrad of Pietz, Vanderwaal, Stack & Rottier S.C. represented Pattison Sand Company and co-applicant landowners Alan and Kathy Flansburgh, Earl and Amber Pulda, Lee and Joan Pulda, and Rodney and Sandra Marfilius.
Attorney Peter Conrad argued that defining the excavation as the process went beyond the statute governing non-metallic sand mining in the Riverway and that if accepted would undermine the legislature, which had expressly permitted non-metallic sand mining in the Riverway.
“They do not say the board could or may issue permits in this type of situation where performance standards are met,” Conrad said. “They say the board shall. They made the board as an administrative body that is obligated to issue a permit when these three items (structures, stockpiles, and excavation cannot be seen from the river) are met.”
Judge uses dictionary
In deciding the point, Day looked to the Webster Dictionary, noting that there was no legal definition of excavation. The dictionary defined excavation as a noun and not a verb. In choosing to use the dictionary definition, Day set aside the Bromley’s argument that the process must be considered.
In his judgment, Day issued the opinion that the LWSRB had erroneously interpreted the law governing their right to deny the permit applications and that to do so was unsustainable and abrogated the rights of landowners unreasonably.
In deciding the case, Day chose to follow conditions proposed by LWSRB Executive Director Mark Cupp in his original recommendation that the board approve the permits.
Day, while making some clarifications in the wording, upheld that the LWSRB was within its rights to place conditions on a permit, if those conditions reasonably applied to the board’s mission to protect the Riverway.