State ex rel. Boehm v. Wisconsin Dept. of Natural Resources, No. 90-2691

CourtWisconsin Supreme Court
Writing for the CourtWILCOX
Citation174 Wis.2d 657,497 N.W.2d 445
Docket NumberNo. 90-2691
Decision Date30 November 1992
PartiesSTATE ex rel. Janet BOEHM, Dan Fisher, Joseph A. Lentz, Hildegarde Lesjak, Verner Lund, Wally A. Machulak, Virginia Schultz, Ruth White and Waste Management of Wisconsin, Inc., Petitioners-Appellants-Petitioners, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Wisconsin Department of Administration Division of Hearings and Appeals, and Patrick T. Currie, Respondents-Respondents, Emerald Park, Inc., Interested Party-Respondent. CITY OF MUSKEGO, a municipal corporation, Petitioner, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Wisconsin Department of Administration Division of Hearings and Appeals, and Patrick T. Currie, Respondents, Emerald Park, Inc., Interested Party. . Oral Argument

Page 445

497 N.W.2d 445
174 Wis.2d 657
STATE ex rel. Janet BOEHM, Dan Fisher, Joseph A. Lentz,
Hildegarde Lesjak, Verner Lund, Wally A. Machulak, Virginia
Schultz, Ruth White and Waste Management of Wisconsin, Inc.,
Petitioners-Appellants-Petitioners,
v.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Wisconsin
Department of Administration Division of Hearings
and Appeals, and Patrick T. Currie,
Respondents-Respondents,
Emerald Park, Inc., Interested Party-Respondent.
CITY OF MUSKEGO, a municipal corporation, Petitioner,
v.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Wisconsin
Department of Administration Division of Hearings
and Appeals, and Patrick T. Currie, Respondents,
Emerald Park, Inc., Interested Party.
No. 90-2691.
Supreme Court of Wisconsin.
Oral Argument Nov. 30, 1992.
Decided March 24, 1993.

Page 447

[174 Wis.2d 661] For the petitioners-appellants-petitioners there were briefs by William B. Guis, William S. Roush, Jr., [174 Wis.2d 662] Caren B. Goldberg and Friebert, Finerty & St. John, S.C., Milwaukee and oral argument by Mr. Roush.

For the respondents-respondents the cause was argued by Joanne F. Kloppenburg, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

For the interested party-respondent there was a brief by Michael P. Dunn and Davis & Kuelthau, S.C., Milwaukee and oral argument by Mr. Dunn.

WILCOX, Justice.

This is a review under sec. (Rule) 809.62, Stats., of an unpublished court of appeals decision affirming Waukesha County Circuit Court Judge Willis J. Zick's order upholding the conclusion of the Department of Natural Resources (DNR) that an environmental impact statement (EIS) was not required with respect to a landfill proposed by Emerald Park, Inc. to be located in Muskego, Waukesha County, Wisconsin.

Petitioners challenge the adequacy of the record developed by the DNR and its conclusion that an EIS was not necessary. The petitioners also contend that the trial court erred by refusing to supplement the administrative record with the deposition of Ken Wade. We conclude that the record prepared by the DNR was adequate and its decision not to prepare an EIS was reasonable.

Page 448

We further conclude that the trial court did not erroneously exercise its discretion in refusing to add the Wade deposition to the administrative record because leave was not granted by the court to take such testimony. We affirm.

Pursuant to sec. 144.44, Stats., Emerald Park submitted a feasibility report for the proposed landfill in August 1988. The initial feasibility report was supplemented by four addenda at the DNR's request. The [174 Wis.2d 663] DNR determined that the feasibility report was complete on November 30, 1989. Simultaneously, the DNR issued a draft environmental assessment in which it concluded that an EIS was not required under Wisconsin's Environmental Policy Act (WEPA) sec. 1.11, Stats., 1 because the proposed landfill would not significantly affect the quality of the human environment.

On March 19, 1990, a public informational meeting was held concerning the draft environmental assessment. At the public meeting the petitioners urged the DNR to prepare an EIS. The petitioners submitted information suggesting that wetlands may be affected by the proposed site. The DNR concurred following a site visit and required Emerald Park to provide additional information concerning the wetlands. After reviewing Emerald Park's Wetland Analysis, which identified approximately two acres of wetlands on the proposed [174 Wis.2d 664] site, the DNR concluded that the loss of wetlands would be minimal in nature.

The DNR issued a Certified Environmental Analysis on July 2, 1990. With a contested case hearing regarding the feasibility of the proposed landfill scheduled to begin on July 9, 1990, the petitioners filed a petition for review of the Certified Environmental Analysis and sought a preliminary injunction to stop the contested case hearing from going forward. The court found there was a substantial certainty that the petitioners would prevail regarding the inadequacy of the Certified Environmental Analysis and preliminarily enjoined the contested case hearing.

The DNR voluntarily chose to prepare a new environmental analysis which further addressed the wetland impact of the proposal. The petitioners filed extensive comments and supporting documentation on August 2, 1990. The DNR issued a revised environmental analysis on August 16, 1990. The revised environmental analysis addressed the wetland impact in more detail and found that the wetland impact would be minimal and that the nearby wetlands proposed to be enhanced would exceed the value of those wetlands eliminated. The revised environmental analysis concluded that an EIS was not necessary.

The circuit court conducted hearings on the adequacy of the revised environmental analysis and concluded that it was inadequate. The circuit court remanded the case to the DNR for further review of wetland and flooding impacts.

On November 16, 1990, the DNR issued a supplemental environmental analysis which addressed the concerns of the circuit court. The supplemental environmental analysis concluded that an EIS was not necessary. The circuit court concluded that the DNR's [174 Wis.2d 665] environmental analysis as supplemented complied with the court's earlier remand and satisfied the requirements

Page 449

of WEPA. The court of appeals affirmed the circuit court's decision. We granted the petition for review.

The purpose of WEPA is to insure that agencies consider environmental impacts during decision making. Wisconsin's Environmental Decade, Inc. v. Public Service Commission, 79 Wis.2d 409, 416, 256 N.W.2d 149 (1977) (WED III ); City of New Richmond v. Wisconsin Dept. of Natural Resources, 145 Wis.2d 535, 542, 428 N.W.2d 279 (Ct.App.1988). WEPA is procedural in nature and does not control agency decision making. Rather, it requires that agencies consider and evaluate the environmental consequences of alternatives available to them and undertake that consideration in the framework provided by sec. 1.11, Stats. WED III, 79 Wis.2d at 416, 256 N.W.2d 149; New Richmond, 145 Wis.2d at 542, 428 N.W.2d 279.

WEPA requires that all state agencies prepare an EIS for "every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the human environment...." Section 1.11(2)(c), Stats. Thus, only if it is a major action significantly affecting the quality of the human environment is an EIS to be conducted. Wisconsin's Environmental Decade, Inc. v. Wisconsin Dept. of Natural Resources, 115 Wis.2d 381, 394, 340 N.W.2d 722 (1983). In the instant case, the DNR concluded that an EIS was not required because the landfill proposal was not a major action which would significantly affect the quality of the human environment.

We must first determine the appropriate standard of review for a negative EIS determination by a state [174 Wis.2d 666] agency. The test as to whether an EIS should be conducted is one of reasonableness and good faith. Wisconsin's Environmental Decade, Inc. v. Dept. of Industry, Labor & Human Relations, 104 Wis.2d 640, 644, 312 N.W.2d 749 (1981); WED III, 79 Wis.2d at 423, 256 N.W.2d 149. The often repeated two-part test of this reasonableness and good faith standard is as follows:

First, has the agency developed a reviewable record reflecting a preliminary factual investigation covering the relevant areas of environmental concern in sufficient depth to permit a reasonably informed preliminary judgment of the environmental consequences of the action proposed; second, giving due regard to the agency's expertise where it appears actually to have been applied, does the agency's determination that the action is not a major action significantly affecting the quality of the human environment follow from the results of the agency's investigation in a manner consistent with the exercise of reasonable judgment by an agency committed to compliance with WEPA's obligations?

WED III, 79 Wis.2d at 425, 256 N.W.2d 149. 2

Accordingly, we first review the adequacy of the record developed by the DNR. We examine the record to see whether the DNR considered relevant areas of environmental concern and whether the DNR conducted a preliminary factual investigation of sufficient depth to [174 Wis.2d 667] permit a reasonably informed preliminary judgment of the environmental consequences of the proposed action. WED III, 79 Wis.2d at 425, 256 N.W.2d 149. We conclude that the record in this case reflects a sufficient preliminary investigation into the relevant areas of environmental concern to permit a reasonably informed preliminary judgment as to the environmental consequences of the proposed landfill. The record exceeds that which was envisioned by WED III.

The record produced by the agency need not follow any particular form. WED III, 79 Wis.2d at 425 n. 15, 256 N.W.2d 149. All it must do is "reveal in a

Page 450

form susceptible of meaningful evaluation by a court the nature and results of the agency's investigation and the reasoning and basis of it conclusion." Id. The record need not contain a primary document supporting each conclusion. The record in this case consists of well over 2,500 pages which includes a two-volume feasibility report with four addenda. The circuit court engaged in an extensive review of the factual record, considered petitioners several challenges in detail and twice remanded the case back to the DNR. In each instance, the DNR conducted further investigation into the specific environmental concerns raised by the circuit court and addressed those concerns in revised or supplemental environmental analyses. There was more than adequate documentation in the record reflecting a good faith investigation into each of the environmental concerns relevant to this project.

The petitioners assert that the DNR failed to evaluate the archaeological significance...

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  • Clean Wisconsin v. PUBLIC SERVICE COMM'N, No. 2004AP3179.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2005
    ...consequences will be controlled through compliance with the applicable administrative code provisions." State ex rel. Boehm v. DNR, 174 Wis. 2d 657, 676, 497 N.W.2d 445 (1993).39effects and (2) failed to adequately evaluate reasonable alternatives to the proposed action. I. The EIS s 305. A......
  • Clean Wisconsin, Inc. v. Public Service Commission of Wisconsin, No. 2004AP3179.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2005
    ...consequences will be controlled through compliance with the applicable administrative code provisions." State ex rel. Boehm v. DNR, 174 Wis. 2d 657, 676, 497 N.W.2d 445 (1993).39 Therefore, wcumulative environmental effects and (2) failed to adequately evaluate reasonable alternatives to th......
  • Lake Beulah Mgmt. Dist. v. State Dep't of Natural Res., No. 2008AP3170.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 6, 2011
    ...250, 700 N.W.2d 768 (recognizing “the DNR's special expertise on environmental matters”); State ex rel. Boehm v. Dep't of Natural Res., 174 Wis.2d 657, 677, 497 N.W.2d 445 (1993) (according deference to the DNR's decision because “the DNR is the state agency possessing staff, resources, and......
  • Applegate-Bader Farm, LLC v. Wis. Dep't of Revenue, No. 2018AP1239
    • United States
    • United States State Supreme Court of Wisconsin
    • March 16, 2021
    ...¶18 "The purpose of WEPA is to insure that agencies consider environmental impacts during decision making." State ex rel. Boehm v. DNR, 174 Wis. 2d 657, 665, 497 N.W.2d 445 (1993). In turn, "[t]he purpose of the EIS is to enable agencies to take a ‘hard look’ at the environmental consequenc......
  • Request a trial to view additional results
9 cases
  • Clean Wisconsin v. PUBLIC SERVICE COMM'N, No. 2004AP3179.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2005
    ...consequences will be controlled through compliance with the applicable administrative code provisions." State ex rel. Boehm v. DNR, 174 Wis. 2d 657, 676, 497 N.W.2d 445 (1993).39effects and (2) failed to adequately evaluate reasonable alternatives to the proposed action. I. The EIS s 305. A......
  • Clean Wisconsin, Inc. v. Public Service Commission of Wisconsin, No. 2004AP3179.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2005
    ...consequences will be controlled through compliance with the applicable administrative code provisions." State ex rel. Boehm v. DNR, 174 Wis. 2d 657, 676, 497 N.W.2d 445 (1993).39 Therefore, wcumulative environmental effects and (2) failed to adequately evaluate reasonable alternatives to th......
  • Lake Beulah Mgmt. Dist. v. State Dep't of Natural Res., No. 2008AP3170.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 6, 2011
    ...250, 700 N.W.2d 768 (recognizing “the DNR's special expertise on environmental matters”); State ex rel. Boehm v. Dep't of Natural Res., 174 Wis.2d 657, 677, 497 N.W.2d 445 (1993) (according deference to the DNR's decision because “the DNR is the state agency possessing staff, resources, and......
  • Applegate-Bader Farm, LLC v. Wis. Dep't of Revenue, No. 2018AP1239
    • United States
    • United States State Supreme Court of Wisconsin
    • March 16, 2021
    ...¶18 "The purpose of WEPA is to insure that agencies consider environmental impacts during decision making." State ex rel. Boehm v. DNR, 174 Wis. 2d 657, 665, 497 N.W.2d 445 (1993). In turn, "[t]he purpose of the EIS is to enable agencies to take a ‘hard look’ at the environmental consequenc......
  • Request a trial to view additional results

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