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DNR denies hearing to frac sand foes
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The contested-case hearing requested from the Wisconsin Department of Natural Resources by Crawford Stewardship Project on July 26 was denied.

 Crawford Stewardship Project submitted an Administrative Law Hearing Request pursuant to Wisconsin Statute 227.42 on the Pattison Sand Nonmetallic Mining Operations Permit.

CSP had hoped for independent scientific review of the non-metallic mining permit and storm water plan approved for Pattison Sand Company’s Bridgeport Township mine.

The DNR interpreted CSP’s contested-case hearing as contesting the General Permit ruling issued on June 29, 2009, rather than it’s application to the specific permit issued to Pattison Sand Company. Thus, the request would have needed to be made by August 28, 2009, according to the DNR ruling.

Further, the DNR determined that CSP could not make a case for injury on the basis of being a citizen advocacy group.

“The Petition does not allege an injury to the petitioner that is different in kind or degree from injury to the general public,” wrote DNR Deputy Secretary Matt Moroney, in his decision upon the request. “That the Crawford Stewardship Project (CSP) is a citizen advocacy group with a mission to protect the environment of Crawford County does not establish an injury to the members of CSP that is different in kind of degree from an injury to the general public.”

The statute reads: 227.42  Right to hearing.

(1)  In addition to any other right provided by law, any person filing a written request with an agency for hearing shall have the right to a hearing which shall be treated as a contested case if:

(a) A substantial interest of the person is injured in fact or threatened with injury by agency action or inaction;

(b) There is no evidence of legislative intent that the interest is not to be protected;

(c) The injury to the person requesting a hearing is different in kind or degree from injury to the general public caused by the agency action or inaction; and

(d) There is a dispute of material fact.

The CSP request was based upon possible environmental impacts for endangered and special concern species, specifically the Cerulean Warbler, Acadian Flycatcher, Prothonotary Warbler, Little Brown Bat, Eastern Pipistrelle, Gray Rat Snake and Bull Snake.

“There is a whole legal process for these issues,” said Edie Ehlert, Crawford Stewardship Project Co-Coordinator. “I was under the gun to get this request in.”

“There used to be a Public Intervener’s Office to help citizens navigate the process for registering concerns and challenging actions,” Ehlert said.

Lacking the Public Intervener’s Office (PIO), citizens must either attempt to navigate Wisconsin statutes and regulation on their own or hire a lawyer to do so on their behalf.

The PIO was created in 1967 by Republican Governor Warren P. Knowles to protect public rights in the state’s natural resources and ensure fair play and due process for matters of environmental concern. It was created in response to public outcry after the DNR and Wisconsin Conservation Department were merged. The fear was that the development aspect of the DNR would overwhelm the conservation aspect. Specifically, the PIO focused on the government’s failure to enforce existing laws aimed at protecting the environment or health and safety of Wisconsin citizens.

The PIO was dissolved in Governor Tommy Thompson’s 1995-1996 budget. In the same budget, appointment of the Secretary of the DNR was made an appointment by the governor, rather than being appointed by the seven-citizen member Wisconsin Natural Resources Board created in 1967 to insulate the DNR from political pressure and special interests.

The DNR and the state do make all regulatory documents available online.

“This was the process put in place to make it more accessible,” Ehlert said. “Yet, the process is very complicated to navigate and understand. Most people use lawyers, anymore. All of these rules and regulations are fairly complicated.”

“There are two ways to challenge a decision, material fact, which is very specific, and legal fact,” according to DNR staff attorney Jane Landretti.

Two paths exist for challenging material fact. The first, used by CSP is statute 227.42.

The second, through statute 283.63, allows the terms of a permit to be challenged, but only insofar as it relates to water discharge affects upon indigenous populations of shellfish, fish, and wildlife in and on the water into which the discharge is made.

“To challenge an individual permit, you would make the request under Wisconsin Statute 283.63,” said Landretti. “Under 283.63, a group of five citizens can challenge a condition upon the basis that it wasn’t reasonable.”

Challenging a decision based upon legal fact takes place through the use of judicial review. The judicial review, under statute 227.52, takes place in circuit court and contests legal fact. Within that venue, intent of the law may be more easily addressed, according to Landretti.

 Reading and interpretation of the law is inherently very narrow and specific within the DNR, Landretti explained.

“Legal staff are counseled only to give legal advice to staff,” Landretti said, so citizens looking for advice on state statutes and challenging DNR decisions are referred the Wisconsin State Bar to find a private attorney.

“While CSP is very disappointed with the decision, truthfully there is only so much we can do,” said Ehlert, noting that the group did not intend to seek legal review.

“There is such a lack of independent monitoring, which then falls back on citizens and citizen groups to do,” Ehlert said. “There’s not enough personnel at the DNR to monitor these issues. When they do, they issue a citation that orders the violators to change their behavior, but there is no real enforcement in place.”

CSP has begun monitoring water quality around the mine site to set a baseline should problems arise in the future. In the meantime, they and five Bridgeport citizens filed a lawsuit against the Town of Bridgeport on Wednesday, Aug. 21 in Crawford County Circuit Court. The CSP and five local residents are seeking to stop the mine and restart the township’s permitting process, citing ethics breaches and unfair practices in the decision-making process that led to the approval of a conditional use permit and reclamation permit for the mine earlier this spring.