Gillen v. City of Neenah

Decision Date02 July 1998
Docket NumberNo. 96-2470,96-2470
Citation219 Wis.2d 806,580 N.W.2d 628
PartiesJohn GILLEN, Ann Gillen, William Dunwiddie, Friends of Our Neenah Parks and Clean Water Action Council of Northeastern Wisconsin, Inc., Plaintiffs-Appellants, v. CITY OF NEENAH, Minergy Corporation and P.H. Glatfelter Company, Defendants-Respondents.
CourtWisconsin Supreme Court

For the plaintiffs-appellants there were briefs by William P. O'Connor, Rhea A. Myers and Jennifer S. McGinnity and Wheeler, Van Sickle & Anderson, S.C., Madison and oral argument by William P. O'Connor.

For the defendants-respondents, City of Neenah and Minergy Corporation, there was a brief by James G. Gunz, City Attorney, Neenah; Arthur J. Harrington, Winston A. Ostrow, Michael B. Apfeld, and Godfrey & Kahn, S.C., Milwaukee and James G. Schweitzer, Joseph R. Cincotta and Schweitzer and Cincotta, LLP, Milwaukee and oral argument by Michael B. Apfeld.

For the defendant-respondent, P.H. Glatfelter Company there was a brief by Mark A. Thimke and Foley & Lardner, Milwaukee and David G. Mandelbaum, Harry R. Weiss and Ballard, Spahr, Andrews & Ingersoll, Philadelphia, PA and oral argument by David G. Mandelbaum.

Amicus curiae brief was filed by John S. Greene, Assistant Attorney General with whom on the brief was James E. Doyle, Attorney General, for the State of Wisconsin.

Amicus curiae brief was filed by Curt F. Pawlisch and Cullen, Weston, Pines & Bach, Madison for The Wisconsin Alliance of Cities.

¶1 PER CURIAM.

This is an appeal by the plaintiffs, John and Ann Gillen, William Dunwiddie, Friends of Our Neenah Parks and Clean Water Action Council of Northeastern Wisconsin, Inc., from a judgment of the circuit court for Winnebago County, Robert A. Hawley, Judge, granting motions to dismiss and motions for summary judgment for the defendants, City of Neenah, Minergy Corporation and P.H. Glatfelter Company. The circuit court dismissed the plaintiffs' complaint (as amended) with prejudice on several grounds, including that the plaintiffs lacked standing, failed to exhaust administrative remedies and sought to assert rights in a derivative action that were not properly asserted in their pleadings. 1

¶2 The court of appeals certified the following issue to the court: "Whether the public trust doctrine enables a citizen to directly sue a private party whom the citizen believes was inadequately regulated by the Department of Natural Resources?"

¶3 We hold that the plaintiffs may bring suit under Wis. Stat. § 30.294 (1993-94) against the defendants to abate a public nuisance. 2 For the reasons set forth, we reverse the judgment of the circuit court dismissing the complaint and remand the cause to the circuit court for further proceedings.

I

¶4 The dispute in this case concerns portions of Little Lake Butte des Morts in Winnebago County. In chapter 52, Laws of 1951, the legislature granted right, title and interest into certain submerged land near the south shore of Little Lake Butte des Morts (referred to as the Legislative Lakebed Grant) to the City of Neenah "for a public purpose." 3

¶5 Beginning in 1951 and continuing through at least 1975, fill material consisting of sludge generated by the primary wastewater treatment system of Bergstrom Paper Company, the predecessor to P.H. Glatfelter Company, was placed in the Grant Area that is, the area discussed in the Legislative Lakebed Grant). In addition, in 1951, 1974, and 1984 the City leased a certain portion of the Grant Area to the Bergstrom and Glatfelter Companies for construction and operation of a wastewater treatment plant and for vehicular parking. The Department of Natural Resources (the DNR), or its predecessor agency, had some knowledge of the development of the Bergstrom and Glatfelter Companies' facilities and was involved in reviewing and approving the wastewater treatment plant and paper sludge combustor.

¶6 In 1995 Minergy Corporation sought a lease from the City to construct and operate a commercial facility on approximately five acres of the Grant Area other than the area leased to the Bergstrom and Glatfelter Companies. The proposed Minergy facility would process paper sludge generated by paper mills in the Fox Valley area into a glass aggregate product.

¶7 In December 1995 the DNR, the City, Glatfelter Company and Minergy Corporation signed a stipulation and Settlement Agreement, which provided the following:

(1) The DNR asserted that both the proposed Minergy facility and the existing operations of Glatfelter Company are impermissible public trust uses and violate the Legislative Lakebed Grant, relevant portions of Chapter 30 including Wis. Stat. § 30.03 and the public trust doctrine as developed under Wisconsin law.

(2) Regardless of the foregoing, based on the historical development of the Grant Area, to which the DNR failed to object, and based on the DNR's enforcement discretion, the DNR agreed that it would not pursue enforcement action under its authority relating to the public trust laws and that it would not seek equitable relief, including removal of existing facilities and activities, during the term of the Settlement Agreement.

(3) The City, Minergy Corporation and Glatfelter Company agreed that applicable regulatory permits under chapters 30, 144 and 147 would be obtained for any activities in the Grant Area and that any violations of the Settlement Agreement could be treated as violations of chapter 30 and enforced in accordance with the provisions of chapters 23, 30 and 227.

(4) The DNR concluded that the legislative grant is a lakebed grant; the City of Neenah, Minergy Corporation, and Glatfelter Company disagreed with the DNR's characterization of the legislative grant as a lakebed grant.

¶8 After executing the Settlement Agreement, the City and Minergy Corporation entered into a lease, running through May 2050, that authorized Minergy Corporation to construct and operate the proposed facility.

¶9 The City conducted public meetings relating to the proposed lease with Minergy Corporation and received both support for and opposition to the proposal. Plaintiff Dunwiddie objected to the Minergy facility and requested that the lease be voided.

¶10 Nevertheless, the Minergy facility was approved by the City Common Council, the City Plan Commission, the City Board of Appeals, the City Finance Committee, and the City Park and Recreation Committee.

¶11 In April 1996 the DNR issued the Final Air Pollution Control Construction Permit (air permit) for the Minergy facility and prepared an Environmental Analysis and Decision on the Need for an Environmental Impact Statement. The DNR also provided notice of its approval of the air permit to several individuals who had requested copies of the final decision, including plaintiffs William Dunwiddie and John Gillen.

¶12 On or about May 8, 1996, a representative of plaintiff Friends of Our Neenah Parks applied to the City for a permit to hold a "Minergy Protest March" on May 18, 1996, over the Grant Area. As a part of that request, the representative of Friends of Our Neenah Parks asked for permission to use a boat ramp to launch a canoe. The request was denied by Glatfelter Company.

¶13 On May 21, 1996, the plaintiffs initiated suit in circuit court as individuals "and in the name of the State of Wisconsin." The complaint (as amended) challenges the legality of the Minergy lease and the actions of Glatfelter Company. More specifically, the complaint asserts the following seven theories or claims supporting the plaintiffs' ultimate conclusion that the defendants' actions are unlawful: (1) the Minergy lease is for a private purpose and violates the public trust doctrine established by Wis. const., art. IX, § 1; (2) the Minergy and Glatfelter leases constitute state action depriving the plaintiffs of their interest in the use of the area in issue in violation of Wis. const., art. XI, § 3a; the Fifth Amendment to the U.S. Constitution; and 42 U.S.C. § 1983; (3) the lease (the complaint does not specify which lease) deprives the plaintiffs of their interest in land held in trust by the state without due process of law in violation of the Fifth Amendment to the U.S. Constitution and 42 U.S.C. § 1983; (4) the Minergy lease constitutes a private nuisance; (5) the defendants' actions constitute a trespass; (6) the construction of the Minergy facility and Glatfelter Company's causing gravel to be dumped on Grant Area lands constitute public nuisances under Wis. Stat. § 30.294 on the ground that no DNR permits were obtained, as required by Wis. Stat. § 30.12; and (7) the Minergy lease constitutes an alienation of the public interest and violates Wis. const., art. XI, § 3.

¶14 The plaintiffs' prayer for relief requests that the circuit court declare that the Minergy lease is null and void; that the lease constitutes a private nuisance, a public nuisance and a trespass; and that the circuit court grant a permanent injunction against the construction of the Minergy facility. 4 The plaintiffs did not file a notice of claim against the City.

¶15 Glatfelter Company filed a motion to dismiss; the City and Minergy Corporation filed consolidated motions to dismiss and for summary judgment. The circuit court dismissed the plaintiffs' claims with prejudice, reasoning that the plaintiffs' proper remedy was to challenge the Settlement Agreement through the administrative review process established in chapter 227 of the statutes.

¶16 After the circuit court's ruling on the motion to dismiss, Minergy Corporation proceeded with construction of the facility. 5 ¶17 This court accepted the case on certification from the court of appeals and heard oral argument on January 6, 1998. In a letter to the parties dated January 23, 1998, the court asked the parties to consider alternative dispute resolution. In a letter to the court dated March 3, 1998, the parties requested that the court proceed to a decision in the case.

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