Lawsuit Victory Sets Important Precedent for State

Lawsuit Victory Sets Important Precedent for State

by Charlie Luthin, Wisconsin Wetlands Association

A major precedent-setting victory for our environment and for our democratic process has been won in Wisconsin. A favorable decision was made last month by a Circuit Court judge on a lawsuit filed by five environmental groups in November 1999. In that lawsuit the groups claimed that two wetland fill exemptions “snuck into” the state’s 1999-2001 Biennial Budget Bill, as political favors to local entities, were unconstitutional. The decision upholds our state Constitution and our democratic process, and sends a clear message to our legislators and to the Governor that our environment is not for sale to the largest campaign contributors and special lobbying interests.

The story began in January 1999, when then-Governor Tommy Thompson introduced his version of the biennial Budget Bill. His proposed budget included a small but significant phrase exempting a private industry (Ashley Furniture Company) from state water quality regulations by allowing a wetland less than 15 acres in Trempealeau County to be filled. Under current law, anyone who wants to fill or dredge a wetland must file a permit application and meet the water quality standards of the Department of Natural Resources (DNR). Ashley had already been told a permit to fill the 15-acre floodplain wetland would be denied by the DNR.

The exemption language, as we later learned, was written by Ashley Furniture’s lobbyist. Ashley CEO and employees have graced Thompson’s re-election war chest with generous contributions for many years. It seems obvious that the exemption was clearly intended to serve as a special favor to the furniture company for campaign contributions. The budget bill passed with the exemption intact in October 1999.

The plaintiffs in the lawsuit included Sierra Club-John Muir Chapter, Wisconsin Wetlands Association, 1000 Friends of Wisconsin, River Alliance of Wisconsin, and Wisconsin’s Environmental Decade. The lawsuit struggle was truly a “David and Goliath” match—Ashley with its considerable economic and political clout against a handful of non-profit environmental organizations. Ashley hired several expensive lawyers and waged a huge fight, arguing that the exemption for Ashley was important for the state’s economy and therefore was appropriate to be inserted into a state budget bill.

On August 2, 2001, Circuit Court Judge Dane Morey issued a summary judgment decision in the case in which he clearly and succinctly proclaimed the exemptions unconstitutional. Ashley has recently indicated it would not appeal the decision, although they have not given up; they have requested that their “senator in the pocket” introduce a bill that would grant the exemption from state water law. If this happens, the environmental community has vowed, and stands ready, to oppose this breach of the state constitution and law.

This victory is extraordinary and precedent-setting. Extraordinary in that the legislature is almost never challenged for what it does “behind closed doors”—in this case cutting a deal with special interests in exchange for campaign contributions. Precedent-setting in that this decision sends a clear message to our elected officials that citizens are watching what they do and will challenge—in court if necessary—actions that are illegal and unconstitutional.

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Images courtesy of Steven Huyser-Honig,
West Grand Boulevard Collaborative, & Yellow Dog Watershed Preserve.