Meteor Timber, LLC v. Wisconsin Division of Hearings and Appeals ( 2021 )

2022 WI App 5COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2020AP1869
†Petition for Review filed
Complete Title of Case:
METEOR TIMBER, LLC,
PETITIONER-APPELLANT, †
V.
WISCONSIN DIVISION OF HEARINGS AND APPEALS AND
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENTS-RESPONDENTS,
HO-CHUNK NATION AND CLEAN WISCONSIN,
INTERESTED PARTIES-PLAINTIFFS-RESPONDENTS.
Opinion Filed: December 16, 2021
Submitted on Briefs: June 17, 2021
Oral Argument:
JUDGES: Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the
briefs of G. Richard White and John Robert Behling of Weld Riley,
S.C., Eau Claire.
Respondent
ATTORNEYS: On behalf of the respondents-respondents, the cause was submitted on
the brief of Gabe Johnson-Karp, assistant attorney general, and Joshua
L. Kaul, attorney general.
Respondent
ATTORNEYS: On behalf of the interested parties-plaintiffs-respondents, the cause was
submitted on the brief of Rob Lee, Rob Lundberg, and Andrea Gelatt of
Midwest Environmental Advocates, Madison, and Evan Feinauer of
Clean Wisconsin, Inc., Madison.
2
2022 WI App 5COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 16, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2020AP1869 Cir. Ct. No. 2018CV123
STATE OF WISCONSIN IN COURT OF APPEALS
METEOR TIMBER, LLC,
PETITIONER-APPELLANT,
V.
WISCONSIN DIVISION OF HEARINGS AND APPEALS AND WISCONSIN
DEPARTMENT OF NATURAL RESOURCES,
RESPONDENTS-RESPONDENTS,
HO-CHUNK NATION AND CLEAN WISCONSIN,
INTERESTED PARTIES-PLAINTIFFS-RESPONDENTS.
APPEAL from orders of the circuit court for Monroe County:
TODD L. ZIEGLER, Judge. Affirmed.
Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.
No. 2020AP1869
¶1 KLOPPENBURG, J. The Department of Natural Resources
(Department) issued to Meteor Timber, LLC, a permit (the permit or the initial
permit) and, some months later, an amended permit (the amended permit) allowing
Meteor Timber to fill wetlands for purposes of constructing a facility for drying and
storing industrial sand and an associated facility for loading the sand onto rail cars
and shipping the sand by rail. After a contested case hearing, the Administrative
Law Judge (ALJ) issued a decision and order reversing the decisions to issue the
permit and amended permit based on his conclusions that the permit and amended
permit decisions did not comply with the statutes governing wetland-fill permits.
The Department adopted the ALJ’s decision without change as its own final
decision.1 The circuit court, in a detailed and comprehensive oral ruling, affirmed.
On appeal, Meteor Timber argues first that the ALJ’s decision is unsupported by the
record and legally erroneous. Second, Meteor Timber argues that the circuit court
erred in denying its motion to present additional evidence pertaining to a different
wetland restoration project.
¶2 Resolution of the first issue turns not on the merits of Meteor Timber’s
proposed project as a whole but, instead, turns on whether the Department complied
with statutory requirements when it issued the permit and amended permit for the
proposed project. We conclude that the ALJ’s determination that the Department
did not comply with the requirements is based on findings of fact that are supported
by the record and on a correct reading of the applicable statutes.
1
For ease of reading, we will generally refer to the Department’s final decision as the
ALJ’s decision, as distinct from the Department’s decisions to issue the permit and amended
permit, which were reversed.
2
No. 2020AP1869
¶3 Specifically, the ALJ properly determined that the Department failed
in the following three, related respects to follow statutory requirements when it
issued the permit.
¶4 (1) Insufficient Information to Consider Environmental Impact.
WISCONSIN STAT. § 281.36(3n)(b)5. (2019-20) requires that the Department
consider the net positive or negative environmental impact of the proposed project
before deciding to issue a wetland-fill permit.2 This consideration is necessary for
the Department to meet the mandate in § 281.36(3n)(c)3. that it may issue a
wetland-fill permit only if it determines that the proposed project will not result in
significant adverse environmental impacts. However, the permit states that the
Department lacked sufficient information to enable it to assess the proposed
project’s net positive or negative environmental impact. In addition,
correspondence from the Department and undisputed testimony by the Department
wetland mitigation coordinator and the Meteor Timber hydrology consultant
confirmed that the proposed project lacked sufficient hydrologic and hydraulic
information to enable the Department to make a meaningful assessment of net
environmental impact at the time that the permit was issued. Accordingly the
Department improperly issued the permit without being able to consider the
proposed project’s net positive or negative environmental impact, contrary to
§ 281.36(3n)(b)5.
¶5 (2) Impact to Wetland Functional Values. Because the Department
lacked sufficient information to assess the proposed project’s net positive or
negative environmental impact, it follows that the Department was specifically
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
No. 2020AP1869
unable to determine that the project will not result in significant adverse
environmental impacts, including, specifically, significant adverse impact to
wetland functional values, as required under WIS. STAT. § 281.36(3n)(c)3.
Moreover, the permit states that the proposed project will result in the direct
permanent loss of 16.25 acres of wetlands, including the irreversible and highly
significant loss of 13.37 acres of rare wetlands of “exceptional” value, and that the
proposed project will likely not fully compensate for irreversible and highly
significant secondary impacts to wetlands. That permit language, along with expert
testimony of the wetland ecologist who worked on the permit application credited
by the ALJ, that the proposed mitigation plan will not compensate for the loss of the
wetlands, establish that the Department could not determine that the proposed
project will not result in significant adverse impact to wetland functional values.
Accordingly the Department improperly issued the permit contrary to
§ 281.36(3n)(c)3.
¶6 (3) Inadequate Mitigation Plan. WISCONSIN STAT. § 281.36(3n)(d)
provides that the Department must require mitigation via a mitigation plan, under
§ 281.36(3t) and WIS. ADMIN. CODE § NR 350.03(3) and .08-.09, that will offset the
loss of the filled wetlands and that includes standards for comparing restored or
created wetlands to the filled wetlands and for measuring success.3 However, the
permit’s mitigation plan lacked necessary hydrology standards and, according to
expert testimony of the wetland ecologist who worked on the permit application
credited by the ALJ, will not compensate for the loss of the filled wetlands because
it lacked necessary soils and hydrology data as well as hydrology performance
3
All references to the Wisconsin Administrative Code are to the November 2021 register.
4
No. 2020AP1869
standards. Accordingly, the Department improperly issued the permit with an
inadequate mitigation plan contrary to § 281.36(3n)(d).
¶7 As stated, the ALJ’s decision reversing the Department’s decision to
issue the permit based on the Department’s failure to comply with these statutory
requirements is based on findings of fact that are supported by substantial evidence
in the record and on a correct reading of the law. Accordingly, we conclude that the
Department’s decision to issue the permit was properly reversed. Because Meteor
Timber fails to identify any law that authorizes the Department to issue an amended
permit absent a valid initial permit, we conclude that the Department’s decision to
issue the amended permit was also properly reversed.
¶8 As to the second issue on appeal, we conclude that the record
establishes that the circuit court properly exercised its discretion in denying Meteor
Timber’s motion to present additional evidence.
¶9 Accordingly, we affirm the circuit court’s rulings.
BACKGROUND
¶10 In March 2016, Meteor Timber applied to the Department for a
“wetland individual permit,” see WIS. STAT. § 281.36(3m) (titled “Wetland
Individual Permits”), to fill wetlands for purposes of constructing a dry plant
processing facility and rail transloading facility for shipment of industrial sand in
the Town of Grant, Monroe County.
¶11 In May 2017, the Department issued to Meteor Timber a “wetland
individual permit” to fill 16.25 acres of wetlands, including 13.37 acres of rare
White Pine-Red Maple wetlands of exceptional quality. The permit contained
“[c]onditions necessary to allow Department consideration of the applicant’s
5
No. 2020AP1869
proposals respective to ‘net positive or negative environmental impact’” under WIS.
STAT. § 281.36(3n)(b)5. Seven of the conditions required the submission to the
Department for its approval of additional information relating to various aspects of
the project. An additional thirty-eight conditions required Meteor Timber to either
modify the proposed wetland compensatory mitigation plan or submit to the
Department for its approval additional information related to that plan.
¶12 Meteor Timber submitted to the Department some of the additional
information required by the permit conditions along with a revised mitigation plan.
In October 2017 the Department issued to Meteor Timber an amended “wetland
individual permit.” Like the initial permit, the amended permit contained
“[c]onditions necessary to allow Department consideration of the applicant’s
proposals respective to ‘net positive or negative environmental impact’” as required
by WIS. STAT. § 281.36(3n)(b)5. Seven of the conditions required Meteor Timber
to submit to the Department for its approval additional information relating to
various aspects of the project. An additional forty conditions required
modifications, or the submission to the Department for its approval of additional
information, relating to the proposed mitigation plan for the project. Most of the
conditions in the amended permit sought the same additional information and
modifications as the permit.
¶13 Clean Wisconsin timely petitioned the Department for a contested
case hearing challenging the Department’s decisions to issue the permit and the
amended permit, and the Department granted the petitions. Ho-Chunk Nation
intervened as a petitioner. ALJ Eric D. DéFort in the Division of Hearing and
Appeals held the contested case hearing from February 26 until March 2, 2018. At
the hearing the parties presented testimony by twelve witnesses (who had each also
6
No. 2020AP1869
submitted pre-filed written testimony that was accepted at the hearing) along with
over one hundred exhibits, and several members of the public made statements.
¶14 In May 2018, the ALJ issued a decision and order reversing the
Department’s decisions to issue the permit and the amended permit. The ALJ
concluded that the Department improperly issued the permit because: (1) the
Department lacked sufficient information to determine the net positive or negative
environmental impact as required under WIS. STAT. § 281.36(3n)(b)5.; (2) the
Department issued a permit for a proposed project that, based on the information
provided, will result in significant adverse impacts to wetlands contrary to
§ 281.36(3n)(c)3.; and (3) the Department issued a permit for an inadequate
mitigation plan contrary to § 281.36(3n)(d). The ALJ also concluded that the
Department lacked statutory authority to issue the amended permit.
¶15 Meteor Timber petitioned the Department secretary for review of the
ALJ’s decision under WIS. ADMIN. CODE § NR 2.20. The secretary issued an order
adopting the ALJ’s decision, without change, as “the final decision of the
[D]epartment” under WIS. ADMIN. CODE § NR 2.155(1).
¶16 Meteor Timber separately petitioned for judicial review of the ALJ’s
decision and the Department Secretary’s order, and the two actions were
consolidated. Meteor Timber subsequently filed motions in the circuit court to
present additional evidence pertaining to a different wetland restoration project. In
two detailed oral rulings, the circuit court denied Meteor Timber’s motions and
denied Meteor Timber’s petitions for judicial review.
7
No. 2020AP1869
¶17 Meteor Timber appeals both rulings.4
DISCUSSION
¶18 Meteor Timber challenges both the circuit court’s denial of its petition
for review of the ALJ’s decision and the circuit court’s denial of its motion to
present additional evidence. We address each challenge in turn.
I. PETITION FOR REVIEW OF THE ALJ’S DECISION
¶19 Meteor Timber argues that the circuit court erred in denying its
petition for review because the ALJ’s decision is unsupported by the record and
legally erroneous. We first summarize the applicable standard of review of
administrative agency decisions and the statutory and regulatory provisions
governing individual wetland-fill permits. We next provide additional background
pertinent to the Meteor Timber permits and the ALJ’s findings of fact and
conclusions of law. We then explain our conclusion that the ALJ’s decision is based
on factual findings that are supported by the record and is consistent with the law,
and address Meteor Timber’s arguments to the contrary.
4
In its ruling denying Meteor Timber’s motions to present additional evidence, the circuit
court addressed both the motion asking the court to receive additional evidence and remand to the
ALJ to consider that evidence under WIS. STAT. § 227.56(1), and the motion asking the court to
supplement the record under WIS. STAT. § 227.55(1). Meteor Timber appeals only the court’s
denial of the motion under § 227.56(1). Accordingly, we address only the court’s denial of that
motion, and we follow Meteor Timber’s lead in referring to that motion as the motion to present
additional evidence.
In its ruling denying Meteor Timber’s petitions for judicial review, the circuit court
explained that it dismissed the petition for judicial review of the Department secretary’s order
because Meteor Timber made no argument as to that order. Meteor Timber also makes no argument
as to that order on appeal, and, accordingly, we do not consider that order further.
8
No. 2020AP1869
A. Standard of Review
¶20 “When an appeal is taken from a circuit court order reviewing an
[administrative] agency decision, we review the decision of the agency, not the
circuit court.” Hilton ex rel. Pages Homeowners’ Ass’n v. Dep’t of Nat. Res., 2006
WI 84, ¶15, 293 Wis. 2d 1, 717 N.W.2d 166; see also Tetra Tech EC, Inc. v. DOR,
2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21. Pursuant to the Department’s
authority under WIS. STAT. § 227.46(3)(a) (providing that agencies may in contested
cases “direct that the [ALJ’s] decision be the final decision of the agency”), the
Department of Natural Resources has provided by rule that, “[u]nless the
department petitions for judicial review as provided in s. 227.46(8), Stats., the
[ALJ’s] decision shall be the final decision of the department.” WIS. ADMIN. CODE
§ NR 2.155(1). Here, the Department Secretary did not petition for judicial review
of the ALJ’s decision and expressly adopted that decision, without change, as the
Department’s final decision. Accordingly, we review the ALJ’s decision as the
Department’s final decision. See Hilton, 293 Wis. 2d 1, ¶14 (reviewing ALJ’s
decision as the Department’s final decision when the Department did not appeal the
ALJ’s decision, pursuant to § 227.46(3) and § NR 2.155(1)); Sierra Club v. DNR,
2010 WI App 89, ¶20, 327 Wis. 2d 706, 787 N.W.2d 855 (when the agency adopts
the ALJ’s decision, courts review that decision as the Department’s decision “by
operation of WIS. STAT. § 227.46(3)(a) and WIS. ADMIN. CODE § NR 2.155(1) ….
[T]he [ALJ’s] decision becomes the [Department’s] decision.”).
¶21 We deferentially review the ALJ’s factual findings and uphold them
if they are supported by substantial evidence. As our supreme court has explained:
WISCONSIN STAT. § 227.57(6) requires the court to set aside
or remand an agency action if the agency’s decision depends
on any findings of fact not supported by substantial evidence
in the record. Substantial evidence does not mean a
9
No. 2020AP1869
preponderance of the evidence. Instead, the test is whether,
after considering all the evidence of record, reasonable
minds could arrive at the same conclusion.
Hilton, 293 Wis. 2d 1, ¶16 (internal quotation marks and quoted sources omitted).
It is for the ALJ to determine the weight and credibility of the evidence. Milwaukee
Symphony Orchestra, Inc. v. DOR, 2010 WI 33, ¶31, 324 Wis. 2d 68, 781 N.W.2d
674.
¶22 We review the ALJ’s legal conclusions de novo. Tetra Tech, 382
Wis. 2d 496, ¶84. Pursuant to WIS. STAT. § 227.57(5), a reviewing court “shall set
aside or modify the agency action if it finds that the agency has erroneously
interpreted a provision of law and a correct interpretation compels a particular
action, or it shall remand the case to the agency for further action under a correct
interpretation of the provision of law.”
¶23 Meteor Timber makes a series of arguments that are inconsistent with
the standard of review set forth above, all concerning the level of deference to be
accorded the various experts who testified at the contested case hearing and the
ALJ’s decision. We address and reject each of these arguments as follows.
¶24 Meteor Timber argues that the ALJ’s decision is entitled to “no
deference.” However, consistent with the standard of review set forth above, our
analysis does not rely on giving the ALJ’s decision deference, other than the
deference we are bound to give his factual findings under the substantial evidence
test.
¶25 Meteor Timber separately argues that the ALJ was obligated to give
either of two levels of deference to the expertise and specialized knowledge of those
Department witnesses who testified in support of the permit on which they worked.
10
No. 2020AP1869
Meteor Timber argues at one point that the ALJ “was duty bound to provide
significant deference” to the Department witnesses’ testimony because the
contested hearing was held before our supreme court “modified controlling law
regarding administrative agency deference.” See Tetra Tech, 382 Wis. 2d 496,
¶¶10-16, 32, 83-4 (eliminating the three-tiered standard of giving “great weight
deference,” “due weight deference,” or no deference, by courts to agency decisions).
Meteor Timber also argues that the ALJ legally erred in not giving due weight
deference to the Department witnesses’ testimony. See id., ¶¶78, 108 (citing WIS.
STAT. § 227.57(10) and (11)) (directing that a court give “‘due weight’ to the
experience, technical competence, and specialized knowledge of an administrative
agency as [the court] consider[s] its arguments” and exercises “independent
judgment in deciding questions of law”). Meteor Timber cites no legal authority
that applies this directive given to courts to ALJs, and we reject it on that basis. See
Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25,
318 Wis. 2d 148, 769 N.W.2d 82 (“Arguments unsupported by legal authority will
not be considered, and we will not abandon our neutrality to develop arguments.”
(citation omitted)). This argument amounts to no more than a disagreement with
how the ALJ weighed and assessed the credibility of the expert testimony.
However, that is not for us to disturb. See WIS. STAT. § 227.57(6) (“the court shall
not substitute its judgment for that of the agency as to the weight of the evidence on
any disputed finding of fact.”).
¶26 We make one additional observation regarding Meteor Timber’s
deference arguments. In essence, Meteor Timber argues that the ALJ is required as
a matter of law to defer to current Department staff’s expert testimony over the
testimony of opposing parties’ experts. Not only does Meteor Timber fail to cite
any legal authority supporting such a proposition, but it is not reasonable on its face.
11
No. 2020AP1869
As an example, if the Department had denied the wetland-fill permit, we doubt that
Meteor Timber would argue that at a contested case hearing on that denial the ALJ
would be required as a matter of law to defer to Department staff’s expert testimony
over the testimony of Meteor Timber’s experts.5
¶27 We now review the provisions of law that pertain to wetland-fill
permits.
B. Applicable Legal Provisions
¶28 “No person may discharge dredged material or fill material into a
wetland unless the discharge is authorized by a wetland general permit or individual
permit issued by the department.” WIS. STAT. § 281.36(3b)(b).
¶29 This appeal concerns a “wetland individual permit.” Within thirty
days after submission of an application for a wetland individual permit, the
Department must “determine that either the application is complete or that
additional information is needed.” WIS. STAT. § 281.36(3m)(c). If the Department
determines that the application is incomplete, it may make only one request for
additional information within that thirty-day period. Sec. 281.36(3m)(d). Within
ten days of receiving all of the requested information, the Department shall notify
the applicant as to whether the application is complete. Id. Once the Department
has determined that an application is complete or, after receiving all requested
additional information, that an application is still incomplete, the Department shall
proceed to provide “notice of pending application” to the public, provide a period
for public comment on the application, hold a public informational hearing if
5
To the extent that Meteor Timber argues that an ALJ could err by saying that he or she
could not consider agency expertise, that argument has no bearing on the circumstances here.
Accordingly, we do not consider that argument further.
12
No. 2020AP1869
requested, and issue or deny the permit. Sec. 281.36(3m)(g)-(j). If the Department
denies the permit, it must explain why the permit is inadequate or incomplete. Sec.
281.36(3m)(i).
¶30 Three particular aspects of the statutory and regulatory contours of the
Department’s review of an application for a wetland individual permit are pertinent
to this appeal.
¶31 One aspect is that the Department shall issue a wetland individual
permit only if it determines three things: that “[t]he proposed project will not result
in significant adverse impact to wetland functional values, in significant adverse
impact to water quality, or in other significant adverse environmental
consequences.” WIS. STAT. § 281.36(3n)(c)3.6
¶32 Another aspect is that, in assessing the impact to wetland functional
values as part of its review of a wetland-fill permit application, the Department must
consider all of the following factors:
1. The direct impacts of the proposed project to
wetland functional values.
2. The cumulative impacts attributable to the
proposed project that may occur to wetland functional values
based on past impacts or reasonably anticipated impacts
caused by similar projects in the area affected by the project.
6
“Wetland functional values” include: storm and flood water storage; hydrologic
functions relating to dry-season streamflow, discharge of groundwater, and groundwater recharge;
filtering or storing sediments, nutrients, or toxins; erosion protection; habitat for aquatic organisms
and wildlife; recreational, educational, cultural, scientific, and scenic-beauty values and uses. WIS.
ADMIN. CODE § NR 103.03(1)(a)-(g).
For ease of reading, we at times follow the lead of the Department in referring to all three
of the determinations specified in WIS. STAT. § 281.36(3n)(c)3. as “significant adverse
environmental impacts.”
13
No. 2020AP1869
3. Potential secondary impacts of the proposed
project to wetland functional values.
4. The impact on functional values resulting from
the mitigation that is required under sub. (3r).
5. The net positive or negative environmental
impact of the proposed project.
WIS. STAT. § 281.36(3n)(b)1.-5. (emphasis added).
¶33 Finally, the application must include mitigation to offset any adverse
environmental impacts of the proposed project. WIS. STAT. § 281.36(3n)(d). A
mitigation plan must include baseline studies of the wetlands to be filled and of the
mitigation sites; plan and design requirements regarding hydrology; standards for
comparing restored or created wetlands to the filled wetlands based on the wetlands’
size, location, type, quality, and functional values; and performance standards for
measuring success of the mitigation. Sec. 281.36(3t)(d), (e), (f), (h); see also WIS.
ADMIN. CODE § NR 350.08(3), .09(3)(b) (providing that an adequate mitigation plan
must include performance standards and pre-project baseline data including soils
and hydrology).
C. Additional Background
¶34 We first summarize pertinent portions of the permit and amended
permit issued to Meteor Timber, and then summarize pertinent portions of the ALJ’s
decision and order.
1. Permit and Amended Permit
¶35 Pertinent to the Department’s statutorily required consideration of the
proposed project’s net positive or negative environmental impact, the permit issued
to Meteor Timber contained forty-five “[c]onditions necessary to allow Department
14
No. 2020AP1869
consideration of the applicant’s proposals respective to ‘net positive or negative
environmental impact’” under WIS. STAT. § 281.36(3n)(b)5. (emphasis added).
Many of those conditions required that Meteor Timber submit additional
information regarding the mitigation plan and other aspects of the proposed project.
¶36 The additional non-mitigation-related information that Meteor
Timber was required to submit included the following:
To ensure proper assessment of the
environmental impact of the change in land use,
the total number of acres of land removed from
cranberry beds and total number of acres of land
that will be industrial use;
To ensure proper assessment of the
environmental impact of reduction in use of
chemicals, a description of all chemicals and
amounts to be eliminated from the elimination of
cranberry operations and to be used for
mitigation, restoration, and preservation;
To enable success of proposed wildlife habitat
protection, scientific data to support efficacy of
proposed wildlife passage methods;
Detailed plans for wetland restoration of Old
Town Road;
Detailed plan for drawdown of reservoir areas;
Endangered species habitat mitigation and
management plan;
Wetland delineation, detailed vegetation survey,
invasive species management plan, and
conservation easement to document existence
and ensure maintenance of claimed existing high
quality White Pine-Red Maple wetlands in
preservation area.
¶37 The mitigation-related additional information that Meteor Timber was
required to submit concerned the “restoration area” comprising the cranberry beds
15
No. 2020AP1869
to be restored to wetlands, including White Pine-Red Maple wetlands, and the
“preservation area” comprising existing unfilled wetlands elsewhere on the Meteor
Timber site, also including White Pine-Red Maple wetlands. The required
information included collection of data to dictate hydrology performance standards
for the restoration area and for the preservation area, and baseline soils data in the
restoration area to dictate needed changes to soils components of the mitigation
plan.
¶38 In October 2017, after Meteor Timber submitted some, but not all, of
the additional required information, the Department issued an amended permit that
contained forty-seven “[c]onditions necessary to allow Department consideration of
the applicant’s proposals respective to ‘net positive or negative environmental
impact’” under WIS. STAT. § 281.36(3n)(b)5. Those conditions required that
Meteor Timber submit additional information and make modifications regarding the
mitigation plan and other aspects of the proposed project, most of which included
the same information and modifications that had been required in the permit.
¶39 As to the functional values of the wetlands to be filled, the permit
contained the following findings. White Pine-Red Maple wetlands are rare and
imperiled in Wisconsin. The wetlands to be filled are of exceptional quality in terms
of “floristic integrity,”7 human use values, wildlife habitat, and groundwater
processes; of high quality in terms of fish and aquatic life habitat and water quality
7
“Floristic integrity” refers to the biologic condition of the wetland plant community,
including the distribution of native and non-native species. See Thomas W. Bernthal, Development
of a Floristic Quality Assessment Methodology for Wisconsin, page 1,
https://dnr.wi.gov/topic/Wetlands/documents/FQAMethodWithAcknowledgements.pdf;
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
https://dnr.wisconsin.gov/topic/wetlands/methods.html (last visited December 9, 2021).
16
No. 2020AP1869
protection; and of medium quality in terms of shoreline protection and flood and
storm water support.
¶40 As to direct impacts to wetland functional values, the permit contained
the findings that the mitigation plan “may not compensate for the direct loss of 13.37
acres of exceptional quality White Pine-Red Maple Swamp,” and that, while the
mitigation plan “could compensate for the direct wetland loss” if “the required
performance standards [to be included] in the final, Department approved wetland
compensatory mitigation plan” are met, the direct wetland loss “is expected to be
irreversible and has high significance.”
¶41 As to secondary impacts to wetland functional values, the permit
identified adverse impacts to hydrology, presence of invasive species, and wildlife
habitat. The permit contained the finding that “[s]econdary impacts to wetlands are
expected to be permanent and irreversible and the significance of those impacts is
high” and that proposed actions to offset secondary impacts to wetland functional
values “are not likely to fully compensate for secondary impacts to impacted
wetlands.”
¶42 As to cumulative impacts to wetland functional values, the permit
identified adverse impacts to “spatial/habitat integrity” and increased filling of
similarly rare, sensitive, and valuable wetland plant and animal communities. The
permit contained the finding that “significant cumulative impacts [to wetland
functional values] may occur.”
¶43 The amended permit contained the identical findings as to direct
impacts, secondary impacts, and cumulative impacts to wetland functional values
as the initial permit findings described above.
17
No. 2020AP1869
2. ALJ’s Decision
¶44 We present pertinent portions of the ALJ’s decision related to each of
the conclusions challenged by Meteor Timber.
¶45 Insufficient Information to Consider Environmental Impact. As to the
issue of the Department’s required consideration of the proposed project’s net
environmental impact, the ALJ found that the permit itself stated that the
Department did not have the information necessary to determine the net positive or
negative environmental impact of the proposed project, and he detailed the missing
information identified in the permit in his factual findings. He highlighted, based
on the permit, that the mitigation plan lacked a performance standard for hydrology
and adequate soils data. In addition, based on undisputed correspondence between
the Department and Meteor Timber, the mitigation plan lacked hydrologic and
hydraulic information. Further, he found that all of this missing information was,
according to the permit and correspondence, necessary to provide a meaningful
assessment of environmental impact associated with the proposed project.
¶46 The ALJ summarized these findings in his discussion as follows: “it
is abundantly clear that the [Department] did not have the necessary information to
assess the net positive or negative environmental impact of the proposed project at
the time that [it] issued the permit[].” Based on these findings, the ALJ concluded
that the Department “improperly granted the permit application because [it] did not
have sufficient information to determine the net positive or negative environmental
impact under WIS. STAT. § 281.36(3n)(b)5.”
¶47 Impact to Wetland Functional Values. As to the issue of whether the
Department could determine that the proposed project will not result in significant
adverse impact to wetland functional values, the ALJ found as follows. The ALJ
18
No. 2020AP1869
identified the wetland functional values of the wetlands to be filled as stated in the
permit and found, as stated in the permit, that the mitigation plan may not
compensate for the direct loss of the rare, exceptional quality White Pine-Red Maple
wetland. The ALJ also found, as stated in the permit, that the loss of the wetlands
will be irreversible and highly significant; that the secondary impacts will be highly
significant, permanent, and irreversible and not likely to be fully compensated for;
and that the cumulative impacts will occur as described in the permit. The ALJ also
credited testimony by Patricia Trochlell, a retired Department wetland ecologist
who had worked on the permit and was also a licensed professional soil scientist
and hydrologist. Trochlell testified in pertinent part that, without necessary soils
and hydrology data, “there is nearly a zero percent likelihood that the mitigation
plan would compensate for the loss created by the proposal to fill the existing
wetlands.”
¶48 The ALJ summarized these findings in his discussion as follows: “the
permanent and irreversible destruction of the rare and exceptionally high-quality
wetlands,” together with a mitigation plan that had “virtually no chance of
successfully compensating” for that loss, established that the proposed project “will
most certainly result in significant adverse impacts to wetland function values.”
Based on these findings, the ALJ concluded that the Department improperly issued
the permit because “the proposed project will result in significant adverse impacts
to wetland functional values, in violation of WIS. STAT. § 281.36(3n)(c)3.”8
8
Stated in a way that tracks the statutory language in WIS. STAT. § 281.36(3n)(c)3., the
ALJ essentially concluded that the Department improperly decided to issue the permit because,
based on the information before it, it could not determine that the proposed project will not result
in significant adverse impact to wetland functional values. The parties do not argue that the
difference in the language of the statute and that used by the ALJ matters.
19
No. 2020AP1869
¶49 Inadequate Mitigation Plan. As to the adequacy of the mitigation
plan, the ALJ, again relying on language in the permit, found that the mitigation
plan lacked a necessary performance standard for hydrology and necessary soils and
hydrology data. The ALJ summarized these findings in his discussion as follows:
the mitigation plan was missing the performance standards and description of
baseline conditions including soils and hydrologic conditions that are required for
an “adequate” mitigation plan under WIS. ADMIN. CODE § NR 350.08(3). Based on
these findings, the ALJ concluded that the Department “improperly granted the
permit because the mitigation plan was inadequate, in violation of WIS. STAT.
§ 281.36(3n)(d).”
¶50 Amended Permit. The ALJ found that the amended permit suffered
from the same factual deficiencies as the permit and was, therefore, improperly
issued. In addition, the ALJ concluded that the Department lacked statutory
authority to issue the amended permit because WIS. STAT. § 281.36(3m)(i) only
authorizes the Department to issue or deny a wetland-fill permit.
D. Analysis
¶51 We now discuss whether the ALJ’s decision is supported by
substantial evidence in the record and consistent with applicable law. We first
address the three conclusions by the ALJ reversing the Department’s decision to
issue the permit for its failure to follow statutory requirements, along with Meteor
Timber’s arguments challenging those conclusions. We then address the ALJ’s
reversal of the Department’s decision to issue the amended permit.
20
No. 2020AP1869
1. The Permit
¶52 Insufficient Information to Consider Environmental Impact. The ALJ
concluded that the Department improperly issued the permit in the absence of
sufficient information to enable it to consider the proposed project’s net positive or
negative environmental impact, contrary to WIS. STAT. § 281.36(3n)(b)5. As is
evident from the additional background above, this conclusion is fully supported by
the language of the permit itself and by correspondence between the Department
and Meteor Timber confirming the hydrologic and hydraulic information that was
missing before the Department could assess the impacts associated with certain
aspects of the mitigation plan. That is, the information missing from the mitigation
plan was necessary to assess the proposed project’s impact on wetland functional
values, which was necessary for the Department to determine the proposed project’s
net environmental impact.
¶53 This conclusion is also supported by Meteor Timber’s consultant’s
testimony confirming the contents of the correspondence and by testimony of the
Department’s wetland mitigation coordinator, Pamela Schense, who worked on the
permit. Schense testified that the permit’s conditions “documented … where [the
Department] was still asking for information” necessary for the mitigation plan to
be assessed and accepted. She testified that a site-specific hydrology performance
standard was required for this project, and that there was no final hydrology
performance standard at the time the permit was issued. In addition, there was not
a final vegetation performance standard. She testified that the Department did not
at that time have the baseline data necessary to assess the impacts of the mitigation
plan, including soils data and sufficient information about hydrology, wetland
delineation, and functional value assessment. All of this testimony mirrored the
testimony of retired Department wetland ecologist Trochlell. Like Schense,
21
No. 2020AP1869
Trochlell testified that a site-specific hydrology performance standard was
appropriate for this project and that the Department lacked hydrology and soil
performance standards as well as sufficient hydrology data to assess the mitigation
plan and its resulting impacts.
¶54 Taken together, the permit itself, the correspondence between the
Department and the Meteor Timber hydrology consultant and his testimony, and the
testimony of Schense and Trochlell constituted more than substantial evidence to
support the finding that the Department lacked sufficient information to consider
the proposed project’s net positive or negative environmental impact. That finding
leads to the conclusion consistent with the statute that the Department improperly
issued the permit, based on the information before it, without being able to properly
undertake that consideration. See WIS. STAT. § 281.36(3n)(b)5.
¶55 Impact to Wetland Functional Values. The ALJ concluded that the
Department improperly issued the permit for a project that will result in significant
adverse impact to wetland functional values, contrary to WIS. STAT.
§ 281.36(3n)(c)3. As is evident from our additional background above, this
conclusion is fully supported by the language of the permit itself. It is also supported
by Trochlell’s testimony that: the plan’s vegetation standards are not adequate to
compensate for the lost wetlands; and without necessary hydrology performance
standards and adequate vegetation performance standards and without necessary
soils and hydrology data, the likelihood that the mitigation plan will compensate for
the loss of the irreplaceable high quality wetlands is “pretty much zero.” The permit
language and Trochlell’s testimony constitute substantial evidence to support the
ALJ’s finding that the proposed project will not compensate for the loss of the White
Pine-Red Maple wetland. That finding leads to the conclusion, consistent with the
statute, that the Department improperly decided based on the information before it
22
No. 2020AP1869
to issue the permit even though it lacked the information to determine that the
proposed project will not result in significant adverse impact to wetland functional
values. See § 281.36(3n)(c)3.
¶56 Inadequate Mitigation Plan. The ALJ concluded that the Department
improperly issued the permit for a project with an inadequate mitigation plan,
contrary to WIS. STAT. § 281.36(3n)(d). Again, as is evident from our additional
background above, this conclusion is fully supported by the language of the permit
itself, along with correspondence between the Department and the Meteor Timber
hydrology consultant and testimony by both Trochlell (“there is nearly a zero
percent likelihood that the mitigation plan would compensate for the loss created by
the proposal to fill the existing wetlands”) and Schense (an adequate mitigation plan
is needed “to offset … functional loss” due to the project). The permit,
correspondence, and testimony constitute substantial evidence to support the finding
that the mitigation plan was missing “necessary” baseline data including soils and
hydrology and hydraulic information as well as hydrology performance standards,
in order for the mitigation plan to be accepted as adequate. That finding leads to the
conclusion consistent with the statute that the Department improperly decided,
based on the information before it, to issue the permit without an adequate
mitigation plan. See § 281.36(3n)(d).
¶57 In sum, we conclude that, taking into account the evidence in the
record, the substantial evidence test is satisfied and the ALJ’s three conclusions are
consistent with the applicable law.
¶58 We now address Meteor Timber’s arguments to the contrary. We first
address its arguments specific to each of the three challenged conclusions. We then
23
No. 2020AP1869
address its argument that applies to the ALJ’s decision as a whole, which we refer
to as the “conclusions of law argument.”9
¶59 As a preface to our consideration of Meteor Timber’s arguments
directed specifically at each of the ALJ’s three conclusions, we note that, consistent
with the often conclusory nature of those arguments, Meteor Timber concludes
those arguments by asserting that the Department and Clean Wisconsin and Ho-
Chunk Nation “will proffer a wide array of dizzying minutiae” to support their
position on appeal. However, after five days of testimony by twelve expert
witnesses and admission of over one hundred exhibits, and under the substantial
evidence standard of review that governs this appeal, it is the specific facts that
matter.
¶60 Insufficient Information to Consider Environmental Impact
Argument. Meteor Timber argues that the ALJ’s analysis of whether the
Department had sufficient information to consider the proposed project’s net
positive or negative environmental impact is flawed in several respects. We address
each asserted flaw in turn.
¶61 First, Meteor Timber argues that the ALJ erroneously relied too
heavily on the heading in the permit, “[C]onditions necessary to allow Department
consideration of the applicant’s proposals respective to ‘net positive or negative
environmental impact’ ….” This argument ignores the substantial evidence
summarized above, including the extensive listing in the permits of the missing
9
We admonish Meteor Timber’s counsel for making repeated unprofessional and
disrespectful comments about the ALJ that have no support in the record. Counsel makes
unsupported references to various aspects of the ALJ’s analysis as “presumptuous and superficial,”
“ludicrous,” and “astounding.” Zealous advocacy is furthered by supported challenges to
administrative actions or decisions that could have legal merit, not by gratuitous, disrespectful
comments from counsel.
24
No. 2020AP1869
information reflected in the ALJ’s detailed findings of fact, as well as testimony by
the Department’s wetland mitigation coordinator Schense and then-wetland
ecologist Trochlell, both of whom worked on the permit, that the Department at the
time it issued the permit was missing information necessary for it to be able to assess
the proposed project’s environmental impacts.
¶62 Moreover, the permit states not only in the heading that the
submission of the information required by the conditions was necessary for that
assessment, but it also repeats in the list of conditions that some of the required
missing information was necessary “to ensure” proper assessment of the
environmental impact of various aspects of the proposed project. Meteor Timber’s
assertion that the conditions merely laid out how the activities must be carried out
to result in the “desired” positive impact is not supported by references to the record.
See State v. McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d 79, 742 N.W.2d 322(court of appeals may “choose not to consider … arguments that lack proper
citations to the record.”). In addition, that assertion does not accurately describe the
specific conditions that, according to the testimony we have already referenced,
required the submission of information without which the proposed project’s net
positive or negative environmental impact could not be determined.
¶63 Second, Meteor Timber argues broadly that conditions are permissible
in wetland-fill permits. Certainly that may be true as to conditions, for example,
that specify what the performance standards are that will result in a certain
environmental impact and what an applicant can and cannot do in light of those
standards. However, that cannot be true as to conditions that require the submission
of information that the Department needed to make a determination as to the
proposed project’s environmental impact, as required before it may issue a permit.
See WIS. STAT. § 281.36(3n)(c)3. and (b).
25
No. 2020AP1869
¶64 It would eviscerate the statutory process to allow conditions that, in
Meteor Timber’s words, “address information not otherwise available at the point
of permit application,” when that information is necessary for the Department to
assess whether it may issue the permit for the proposed project under statutory
standards. Meteor Timber does not explain how the Department could determine
the proposed project’s environmental impact based on information that it did not yet
have, particularly in light of the permit’s language and the testimony of experts
Schense and Trochlell that the Department needed the missing information to make
that determination.
¶65 There would be no basis for the Department to deny an application as
incomplete if it could simply condition every permit on the submission of additional
information, regardless of what the newly submitted information might show as to
the proposed project’s then-unknown environmental impact. To assert, as Meteor
Timber does, that the Department had completed its statutorily required assessment
without the information required to make the assessment is illogical. Further,
Meteor Timber does not explain the significance of its assertion that the conditions
“were not requests for information but were, rather, requirements that certain
designated information be provided.” Substantial evidence established that the
conditions in the permit required the submission of information that the Department
needed to fulfill its statutory mandate to consider the proposed project’s
environmental impact before issuing the permit.
¶66 The legislature has set a tight timeline for the Department to process
a wetland-fill permit application. See WIS. STAT. § 281.36(3m)(c) and (d). And the
legislature has mandated that at the end of that timeline the Department must decide
to issue or deny the permit, and explain in the case of a denial why the permit does
not meet statutory standards or is incomplete. Sec. 281.36(3m)(i). Meteor Timber
26
No. 2020AP1869
points to no statutory language authorizing the Department to issue a permit if it has
not received sufficient information within that timeline. In that situation, the
legislature has provided that the Department must deny the permit as incomplete,
and the applicant may seek administrative and judicial review of that denial or
submit a new application with all necessary information. Sec. 281.36(3q)(b), (h)
(requests for administrative and judicial review, respectively).
¶67 Meteor Timber’s concluding remark on this topic is that the ALJ’s
finding that the Department lacked sufficient information to consider the proposed
project’s environmental impact, and his conclusion that the Department thereby
violated WIS. STAT. § 281.36(3n)(b), were “premised on the erroneous belief that
the Department lacks authority to include conditions in wetland permits.” This
assertion fails. Meteor Timber cites no part of the ALJ’s analysis to support it. In
addition, that analysis and the factual findings on which it is based affirmatively
refute it, as we have explained in detail above.
¶68 Meteor Timber’s third argument against the insufficient information
conclusion is undeveloped. It consists of assertions that the conditions requiring the
submission of information unrelated to the mitigation plan seek information that did
not matter or was impractical to provide. Putting aside the fact that these assertions
largely misrepresent the conditions, we reject the assertions because they are
conclusory and unsupported.
¶69 Fourth, Meteor Timber attempts to excuse its failure to provide the
required information before the permit was issued by noting that it provided the
required information before the Department issued the amended permit. It asserts
that the amended permit renders moot any violation by the Department in issuing
the initial permit without sufficient information to consider the proposed project’s
27
No. 2020AP1869
environmental impact. However, the record belies Meteor Timber’s premise that it
provided all of the missing information required in the permit; the ALJ found to the
contrary, and Meteor Timber’s consultant confirmed as much in his testimony.
Moreover, Meteor Timber does not explain how its post-permit submission of
necessary information “fixes” the Department’s failure to follow the statutory
requirement that it assess the proposed project’s environmental impact before
issuing the permit in the first place. Finally, Meteor Timber’s argument is not
supported by any citations to legal authority, and we do not consider it further. See
McMorris, 306 Wis. 2d 79, ¶30 (court of appeals “may choose not to consider
arguments unsupported by references to legal authority, arguments that do not
reflect any legal reasoning, and arguments that lack proper citations to the record.”).
¶70 Impact to Wetland Functional Values Argument. In a footnote,
Meteor Timber suggests that the flaws that it asserts regarding the ALJ’s analysis
of whether the Department improperly decided to issue the permit without having
sufficient information to be able to consider the proposed project’s environmental
impact, all addressed and rejected above, also apply to the ALJ’s analysis of whether
the Department improperly decided to issue the permit for a project that will result
in significant adverse impact to wetland functional values. We reject this apparent
attempted “incorporation” argument because the two statutory requirements depend
on distinct analyses of different sets of facts. Therefore, we conclude that, other
than the broad deference argument that we have rejected above and a similarly broad
legal conclusion argument that we reject below, Meteor Timber fails to make a
developed argument that the ALJ improperly concluded that the Department issued
the permit without a proper basis to find that the proposed project will not adversely
impact wetland functional values, contrary to WIS. STAT. § 281.36(3n)(c)3. We
could affirm the ALJ’s reversal of the Department’s decision to issue the permit as
28
No. 2020AP1869
contrary to § 281.36(3n)(c)3. on that basis. See Wisconsin Conf. Bd. of Trs. of the
United Methodist Church, Inc. v. Culver, 2001 WI 55, ¶38, 243 Wis. 2d 394, 627
N.W.2d 469 (stating that we do not address arguments that are conclusory and
insufficiently developed). Instead, we affirm this aspect of the ALJ’s decision based
on our conclusion, explained above, that it is supported by substantial evidence and
consistent with the law.
¶71 Inadequate Mitigation Plan Argument. Meteor Timber argues that the
ALJ erred in crediting Trochlell’s testimony over the testimony of current
Department staff, and that “independent review of the record leads to the
inescapable conclusion that the Meteor Timber mitigation plan satisfied statutory
standards.” We reject this argument generally because, as stated, we do not second-
guess the ALJ’s weighing of the evidence and determinations of credibility; rather
our role is to review the record to determine whether the conclusion of law is based
on findings of fact that are supported by substantial evidence, and is therefore a
conclusion that reasonable minds could make. See Hilton, 293 Wis. 2d 1, ¶16. We
have explained why we have so determined.
¶72 We also reject this argument based on the seven specific points that
Meteor Timber makes in its support.
¶73 First, Meteor Timber argues that “the single most qualified person in
Wisconsin to address wetland mitigation,” Department wetland mitigation
coordinator Pamela Schense, endorsed permit issuance and her opinion is
controlling. Both Schense and Trochlell were long-time Department employees
who had worked on many wetland-related projects. Meteor Timber cites Schense’s
testimony as to many aspects of the mitigation plan, “well beyond soils and
hydrology.” However, Meteor Timber fails to cite any testimony that directly
29
No. 2020AP1869
contradicts Trochlell’s testimony, summarized above, that, without the missing
hydrology performance standard and hydrology and soil data, the mitigation plan
will not compensate for the loss of the exceptional wetlands to be filled. Meteor
Timber cites Schense’s testimony that it submitted soils data, but only after
submission of that data was required by the permit, and ignores her testimony that
at the time the Department issued the permit it lacked necessary baseline data to
approve a scientifically feasible mitigation project. Meteor Timber also cites
Schense’s general testimony that safeguards were in place in the permit and the plan
to try to make the project successful. However, Meteor Timber identifies no specific
testimony from any of the Department staff or its own experts as to the missing
hydrology and soil data that the ALJ should have found more persuasive than
Trochlell’s testimony. The ALJ could reasonably credit Trochlell’s specific
testimony as to the reasons why the mitigation plan based on the information
presented will not compensate for the loss of the wetlands to be filled.
¶74 Second, Meteor Timber argues that other Department staff agreed that
the mitigation plan was adequate. However, Meteor Timber cites primarily to the
staff’s pre-filed written testimony and ignores their qualifications of that testimony
at the hearing. Again, the ALJ could reasonably credit Trochlell’s more specific
testimony on the issue of the mitigation plan’s adequacy.
¶75 Third, Meteor Timber argues that the project’s approval by the United
States Army Corps of Engineers is “significan[t].” However, Meteor Timber does
not explain its significance or develop any argument that the federal approval
establishes that the mitigation plan was adequate under state law.
¶76 Fourth, Meteor Timber argues that the mitigation plan was the result
of exhaustive work by recognized professionals in consultation with Department
30
No. 2020AP1869
staff. However, Meteor Timber does not develop any argument that the specific
evidence that it cites establishes that the mitigation plan was adequate.
¶77 Fifth, Meteor Timber argues that the ALJ ignored the permit
requirements for ongoing mitigation work and monitoring until the performance
standards are met. However, Meteor Timber does not explain how those
requirements render adequate a mitigation plan that lacked a hydrology performance
standard and necessary soil and hydrology data showing that the plan will be likely
to compensate for the loss of the wetlands to be filled.
¶78 Sixth, Meteor Timber seems to argue that the mitigation plan’s
success in terms of wetland restoration does not matter because success will merely
put Meteor Timber “over the amount of required mitigation credits” earned for other
components of the plan such as unfilled wetlands preservation. However, this
argument disregards that compensation for the loss of the wetlands to be filled was
required regardless of how many credits Meteor Timber earned for other
components of the mitigation plan. Schense made this clear when she testified that
the proposed project will not meet the number of compensatory mitigation credits
required by law if restoration is not successful.
¶79 Seventh, Meteor Timber argues that Trochlell lacks credibility. This
argument disregards our standard of review. Meteor Timber asserts that she was a
“disgruntled former Department employee,” but cites no evidence of resentment or
bias in the record. Meteor Timber also characterizes her testimony criticizing the
project as “neck-wrenching.” But it acknowledges that she criticized the project
while still working at the Department and that her testimony was “similar” to her
comments while at the Department. As the Department and Clean Wisconsin and
Ho-Chunk Nation note in their response briefs, Meteor Timber had the opportunity
31
No. 2020AP1869
to challenge the soundness of Trochlell’s analysis, the weight to be given to her
testimony, and her credibility through cross-examination and other means of
impeachment. Meteor Timber offers no supported reason for the ALJ to discredit
her testimony.
¶80 Conclusions of Law Argument Regarding Decision as a Whole.
Meteor Timber broadly argues that the ALJ’s decision cannot be sustained because
all of the thirty-two “findings of fact” except for the first seventeen “findings of
historical fact” are not factual findings but legal conclusions that are entitled to no
deference. The record refutes this argument. Because Meteor Timber returns to
this argument in various iterations throughout its appellate briefing, we address each
iteration and explain in detail why the argument fails.
¶81 All but four of the fifteen challenged factual findings are based on,
and generally repeat or quote, factual statements in the conditions and factual
findings of the permit. We refer to these factual findings based on language in the
permit as “the permit-based findings.” Meteor Timber does not explain how the
Department’s own permit language—which Meteor Timber elsewhere appears to
argue reflected the specialized knowledge and expertise of the Department staff who
testified as to their work on the permit and to which we should accord deference—
constitutes conclusions of law.
¶82 The four non-permit-based factual findings also do not support
Meteor Timber’s legal conclusion argument. One of these findings is based
exclusively on Trochlell’s testimony and addresses the inadequacy of the soil data
that Meteor Timber submitted after the permit was issued; it is not relevant to our
analysis of the Department’s decision to issue the permit.
32
No. 2020AP1869
¶83 Two findings are based on and repeat language in correspondence
between the Department and Meteor Timber’s hydrology consultant that concern
the hydrologic and hydraulic information that both the Department and Meteor
Timber agreed was both necessary to enable the Department to assess the mitigation
plan’s environmental impact and missing at the time the permit was issued. Meteor
Timber does not explain how the undisputed language in this correspondence,
confirmed by Meteor Timber’s consultant’s testimony, constitutes conclusions of
law.
¶84 The remaining non-permit-based factual finding is based solely on
Trochlell’s testimony and repeats verbatim finding number thirteen, which Meteor
Timber states is a historical fact that it “does not dispute.” Meteor Timber appears
to backtrack on this concession by later arguing that this finding is a legal conclusion
that the mitigation plan does not meet statutory standards. Meteor Timber is
incorrect. The finding states that, “without the necessary soils and hydrology data,
there is nearly a zero percent likelihood that the mitigation plan would compensate
for the loss created by the proposal to fill the existing wetlands.” This finding
mirrors Trochlell’s testimony as discussed above, which was offered as her expert
opinion “with a reasonable degree of scientific certainty,” based on what
information was missing and what both that missing information (soils and
hydrology data and a hydrology performance standard) as well as the information
that existed (inadequate vegetation performance standards) meant in terms of the
likelihood that the mitigation plan would compensate for the loss of the filled
wetlands. Meteor Timber does not specify what about this factual finding taken
from Trochlell’s expert science-based testimony is a legal conclusion. To repeat,
the finding states that the mitigation plan will not succeed given the missing
information, and it is based on Trochlell’s expert opinion that, to a reasonable
33
No. 2020AP1869
scientific certainty, the mitigation plan will not succeed given that missing
information. The finding does not state, as Meteor Timber asserts, that the
“mitigation plan failed to satisfy statutory standards.” That is the legal conclusion
that the ALJ reached, based on his factual findings, and we have already explained
why the factual findings support that legal conclusion.
¶85 For the sake of completeness, we note that the two permit-based
findings that identify, based on the permit language, missing information
comprising a hydrology performance standard and soils data for the mitigation plan,
also include two additional statements based only on Trochlell’s testimony. Those
additional statements are that hydrology and suitable soil and soil depth are critical
to successful wetlands restoration. Meteor Timber does not develop any argument
that these two statements are legal conclusions.
¶86 In its reply brief, Meteor Timber reiterates its legal conclusion
argument with respect to the three non-permit-based factual findings described
above plus the two permit-based findings that the Department issued the permit
without a performance standard for hydrology and necessary soils data.
Specifically, Meteor Timber argues that these six factual findings are legal
conclusions as to what information was necessary to satisfy the statutory
requirement that the Department assess the proposed project’s environmental
impact before issuing the permit. We have explained why the three non-permit-
based factual findings are findings of fact. As for the two additional permit-based
findings, they state only that the Department was missing certain information when
it issued the permit. Meteor Timber identifies nothing in those findings that states
whether the missing information was necessary to satisfy statutory standards.
34
No. 2020AP1869
¶87 It is factual finding number eighteen that quotes language in the
permit to the effect that submission of the missing information identified in the other
factual findings—hydrology, hydraulic, and soils data and a hydrology performance
standard—was “necessary to allow” the Department to assess the proposed project’s
environmental impact. Summarizing these various factual findings, the ALJ found
that the Department did not have the necessary information to assess the net positive
or negative environmental impact of the proposed project when it issued the permit.
It is based on this factual finding that the ALJ made the legal conclusion that the
Department’s issuing the permit without being able to assess the proposed project’s
environmental impact violated the statutory requirement that the Department
consider the project’s environmental impact before issuing a wetland-fill permit.
We have already explained why the factual findings as a whole support that
conclusion of law.
2. Amended Permit
¶88 Meteor Timber argues that the ALJ misinterpreted the law in
reversing the Department’s decision to issue the amended permit. Specifically,
Meteor Timber argues that the ALJ misinterpreted WIS. STAT. § 281.36(3m)(i) to
limit the Department’s authority only to issuing or denying a permit, not amending
a permit. Meteor Timber points to § 281.36(3q)(b)1, which provides that an
interested party may seek review of “the issuance, denial, or modification” of any
wetland individual permit, and argues that this provision recognizes the
Department’s authority also to amend a permit.
¶89 Clean Wisconsin and Ho-Chunk Nation acknowledge that the
Department has permit amendment authority but respond that, under WIS. STAT.
§ 281.36(3m)(i), when the statutory timeline has run, the Department must issue a
35
No. 2020AP1869
permit or a denial explaining why the application is inadequate or incomplete.
While the Department must issue a permit upon receipt of a complete and adequate
application and may later amend that permit, the statute provides no authority for
the Department to issue a permit based on an application that is incomplete and then
to issue an amended permit after it determines that it has finally received the missing
information. The Department and Clean Wisconsin and Ho-Chunk Nation also
argue that the amended permit suffers from many, if not most, of the same
substantive deficiencies as the initial permit, and the Department improperly
decided to issue the amended permit on that basis alone.
¶90 Meteor Timber fails to cite in its briefing any law supporting the
proposition that the Department is authorized to issue an amended permit when
there is no valid permit to amend. In the absence of any such citation, and in light
of our conclusion that the Department’s decision to issue the permit was properly
reversed, we conclude that the Department’s decision to issue the amended permit
was also properly reversed.
II. MOTION TO PRESENT ADDITIONAL EVIDENCE
¶91 Meteor Timber argues that the circuit court erroneously exercised its
discretion in denying its motion to present additional evidence pertaining to a
different wetland restoration project. We first summarize the applicable law and
standard of review, next present additional background, and then explain why we
conclude that the court properly exercised its discretion.
¶92 WISCONSIN STAT. § 227.56(1) provides in part:
If before the date set for trial, application is made to
the circuit court for leave to present additional evidence on
the issues in the case, and it is shown to the satisfaction of
the court that the additional evidence is material and that
36
No. 2020AP1869
there were good reasons for failure to present it in the
proceedings before the agency, the court may order that the
additional evidence be taken before the agency upon such
terms as the court may deem proper.
¶93 Whether to grant a motion to present additional evidence “is a
discretionary determination by the [circuit] court.” Shoreline Park Pres., Inc. v.
DOA, 195 Wis. 2d 750, 773, 537 N.W.2d 388 (Ct. App. 1995). As we stated in that
case,
where the record shows that the court looked to and
considered the facts of the case and reasoned its way to a
conclusion that is (a) one a reasonable judge could reach and
(b) consistent with applicable law, we will affirm the
decision even if it is not one with which we ourselves would
agree.
Id. (quoted source omitted).
¶94 The additional evidence that Meteor Timber sought to present
comprised documentation pertaining to the Kreyer Creek Wetland Mitigation Bank
in Tomah, Wisconsin. As indicated by the documentation, the Kreyer Creek
Mitigation Bank involves rehabilitating and restoring wooded swamp. The
documentation includes comments by both Trochlell and Schense in 2015 on
various aspects of the planning for the Kreyer Creek Mitigation Bank. The
documentation also includes a 2018 monitoring report for the Kreyer Creek
Mitigation Bank that is certified by one of Meteor Timber’s consultants and expert
witnesses at the contested case hearing, Heidi Kennedy, as having been “prepared
by me or under my direct supervision.” Meteor Timber asserted that it first became
aware of the Kreyer Creek Mitigation Bank when it received this documentation
from the Department in response to a public records request after the close of the
contested case hearing.
37
No. 2020AP1869
¶95 The circuit court first considered whether Meteor Timber established
good reason for its failure to present the evidence at the contested case hearing
before the ALJ. The court summarized Meteor Timber’s arguments that it had good
reason for not producing this evidence and explained why those arguments failed.
The court pointed to Kennedy’s certification of the 2018 monitoring report that
references White Pine-Red Maple Swamp restoration and the fact that her company
worked on the Kreyer Creek Mitigation Bank. The court acknowledged her
averment in her affidavit that she was not aware that the Kreyer Creek Mitigation
Bank involved White Pine-Red Maple Swamp restoration, but found that she
nevertheless had that information available to her both from the contents of the
report she certified and, as an expert in this case, from her company.
¶96 The circuit court also pointed out that, despite the fact that Meteor
Timber had initially proposed to the Department that it use mitigation credits from
the Kreyer Creek Mitigation Bank to mitigate the wetland impacts of its project, it
never sought discovery specific to the Kreyer Creek Mitigation Bank or asked the
Department more generally before, during, or after the hearing if there was any other
project that involved work related to White Pine-Red Maple Swamp. Finally, the
court pointed to the public websites from which the information about the Kreyer
Creek Mitigation Bank would have been available, even though “it may not have
been easy.” In sum, the court found that information regarding the Kreyer Creek
Mitigation Bank existed and was available and discoverable at and before the time
of the contested case hearing.
¶97 The circuit court then addressed whether Meteor Timber established
that the evidence was material, using the standard also cited by Meteor Timber in
its appellate brief, that the evidence is calculated to have a substantial bearing on a
vital issue in the case. Village of Cobb v. PSC, 12 Wis. 2d 441, 459, 107 N.W.2d
38No. 2020AP1869
595 (1961). The court addressed Meteor Timber’s argument that the evidence it
sought to offer went to the credibility of the two witnesses, Trochlell and Schense,
who testified that they were not aware of any previous project reviewed by the
Department that sought to restore White Pine-Red Maple Swamp. The court noted
that the evidence indicated that whether the Kreyer Creek Mitigation Bank includes
White Pine-Red Maple Swamp restoration would be disputed by the experts.
Regardless, the court found that there is no indication in the ALJ’s decision that the
cited testimony had any effect on the decision, noting that he did not mention either
the testimony or the words “White Pine-Red Maple.” The court determined that,
while the evidence would have been relevant, Meteor Timber failed to show that it
was material.
¶98 Finally, the circuit court stated that, even if Meteor Timber met its
burden to show both good reason and materiality, the court would in its discretion
deny the motion for the reasons that the court already discussed.
¶99 On appeal, Meteor Timber makes the following arguments. As to
good reason, it argues that the circuit court’s good reason rationale was inconsistent
because the court found both that the report certified by Kennedy refers to White
Pine-Red Maple Swamp restoration and also that the experts would dispute whether
the Kreyer Creek Mitigation Bank actually involves White Pine-Red Maple Swamp
restoration. Meteor Timber also points to Kennedy’s averments that she had no
reason to know this fact because she did not read the report for substance and had
been repeatedly advised by Trochlell that the White Pine-Red Maple Swamp
restoration in the Meteor Timber mitigation plan was unprecedented. Meteor
Timber argues that the court should have drawn different inferences from this
evidence.
39
No. 2020AP1869
¶100 As to materiality, Meteor Timber argues that the fact that the experts
would dispute whether the Kreyer Creek Mitigation Bank actually involves White
Pine-Red Maple Swamp restoration does not render the evidence immaterial.
Meteor Timber argues that what matters is that the evidence would undermine
Trochlell’s testimony that the Meteor Timber project is unprecedented and her
opinion that the Meteor Timber mitigation plan will not succeed in replacing the
filled White Pine-Red Maple wetland.
¶101 The Department and Clean Wisconsin and Ho-Chunk argue that there
is no good reason for not earlier presenting the evidence because: Meteor Timber
had itself raised the Kreyer Creek Mitigation Bank with the Department as a
possible source of mitigation credits over a year before the contested case hearing;
Meteor Timber’s own expert knew about the evidence before the contested case
hearing; that expert herself testified at the hearing that Meteor Timber was
“proposing the first white pine-red maple mitigation project in the state;” Meteor
Timber did not access publicly available websites, pursue discovery, or question its
own experts and the other experts about the Kreyer Creek Mitigation Bank; and
Meteor Timber’s reference in its appellate brief to its experts’ “tireless work” on
this project does not persuasively explain how the experts could have missed the
Kreyer Creek Mitigation Bank evidence if it is as material as Meteor Timber now
argues it is.
¶102 The Department and Clean Wisconsin and Ho-Chunk argue that the
evidence is not material because: Meteor Timber fails to show why information at
another wetland restoration site would have negated any of the ALJ’s conclusions
based on its factual findings as to the Meteor Timber site; none of those findings
state that no White Pine-Red Maple Swamp restoration has previously been
attempted; Meteor Timber’s assertion that the ALJ’s decision was affected by
40
No. 2020AP1869
testimony regarding the unprecedented nature of the Meteor Timber restoration is
unsupported by citations to the record; and the evidence does not itself show
successful restoration of a White Pine-Red Maple Swamp at the Kreyer Creek
Mitigation Bank.
¶103 In its reply brief, Meteor Timber does not respond to any of these
arguments in support of the circuit court’s denial of its motion. Accordingly, we
could deem Meteor Timber to have conceded that these arguments are correct. See
United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (appellant’s failure to respond in reply brief to an argument made in
response brief may be taken as a concession). However, we affirm because the
transcript amply shows that the circuit court considered the facts and reached a
reasonable conclusion consistent with the law, and Meteor Timber’s arguments
amount to no more than that the circuit court should have drawn different inferences
and differently weighed the facts. Accordingly, we conclude that the court properly
exercised its discretion in denying the motion to present additional evidence.
CONCLUSION
¶104 For all the reasons stated above, we affirm the circuit court’s decision
affirming the ALJ’s decision reversing the Department’s decisions to issue to
Meteor Timber a wetland-fill permit and an amended permit based on the
Department’s failure to comply with statutory standards. We also affirm the circuit
court’s denial of Meteor Timber’s motion to present additional evidence.
By the Court.—Orders affirmed.
41