State v. Schnepf
| Decision Date | 29 November 2018 |
| Docket Number | Appeal No. 2017AP1776 |
| Citation | 385 Wis.2d 211,2019 WI App 1,923 N.W.2d 168 (Table) |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Allen SCHNEPF, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Allen Schnepf appeals a judgment imposing civil forfeitures and injunctive relief after he was found liable for discharging fill material into a wetland without a certification of compliance with state water standards. On appeal, Schnepf argues summary judgment was improper for several reasons. Generally, he contends the State failed to establish a prima facie case for summary judgment; alternatively, he argues that his own submissions established a genuine dispute of material fact. We affirm.
¶2 In May 2009, Schnepf purchased property from Joseph Wojcik in the Town of Ogema. In April 2010, a Wisconsin Department of Natural Resources (DNR) conservation warden observed a dump truck haul soil onto a site located on that property. The truck was driven by Bryan Kennedy, a contractor hired by Schnepf. When questioned by the warden, Schnepf admitted that he was filling the site with soil and that he had not acquired a permit prior to any fill being placed. The DNR determined that the 0.82-acre site had been designated as part of a wetland and, after further investigation, that a significant amount of fill material covered wetland vegetation and soils on that wetland site. Schnepf and Kennedy were thus issued notices of violations. At a July 2010 enforcement conference, the DNR requested that Schnepf remove the fill and follow a wetland restoration plan recommended by Gary Starzinski, whom Schnepf had retained as an environmental consultant. Neither request had been fulfilled as of April 1, 2014.
¶3 The State subsequently filed a complaint alleging that Schnepf and Kennedy had filled waters of the state without DNR certification of compliance with state water quality standards, in violation of WIS. ADMIN. CODE § NR 299.03(1) (Apr. 2013).2 Less than one month after the complaint was filed, Kennedy entered a stipulated judgment with the State in which he was assessed $3500 in forfeitures and fees. It appears from the appellate record that Kennedy’s involvement with the proceedings ended at that point.
¶4 The State eventually moved for summary judgment against Schnepf. It argued, among other things, that Schnepf discharged fill material into the wetland site on his property. In support, the State submitted affidavits that included deposition testimony from Starzinski, Allen O’Leary (another consultant Schnepf had hired), and Schnepf. It also submitted affidavits from John Kleist (a DNR water resources management specialist), DNR warden Daniel Michaels, and Wojcik. These various individuals averred the following facts.
¶5 In his deposition, Schnepf stated he had bought the property with the intent to cultivate a garden on it. In late 2009, he began clearing underbrush, cutting the larger trees using chainsaws, and grinding and removing stumps. In doing so, he cleared approximately sixty trees. Schnepf also rototilled the wetland site’s soil to a depth of four inches. Eventually, Schnepf realized the site "was not going to be a very good garden area" unless more topsoil was added. Schnepf then hired Kennedy in the early spring of 2010 to "level out" two small hills on his property into the wetland site, in addition to hauling in additional topsoil to fill it. Schnepf instructed Kennedy that he "wanted the garden area to be a foot thick of topsoil and 3 inches everywhere else," and Schnepf "left it in [Kennedy’s] hands" to place the topsoil. Schnepf estimated that the hills—once they had been levelled into the wetland site—contained 200 to 350 cubic yards of soil, and Kennedy had invoiced Schnepf for hauling 1000 cubic yards of additional soil onto the site. Schnepf denied adding any gravel to the wetland site or knowing if anyone else had ever done so.
¶6 Warden Michaels questioned Wojcik about any fill activity on the property during the fifteen years Wojcik had owned it. Wojcik told Michaels that he placed topsoil on a portion of the property different than the wetland site when he added a culvert and driveway four years before selling the property to Schnepf. But Wojcik denied placing fill anywhere else on the property, including on the 0.82-acre site. Additionally, he denied clearing any trees on the property, except for "a few dead trees for campfire wood." Wojcik also was unaware if any other fill had been placed anywhere else on the property since his childhood, when his grandfather owned it.
¶7 After Jon Kleist inspected the site on April 27, 2010, he concluded that it was a wetland and that the wetland had not been filled before "Schnepf, or someone working for Schnepf, placed and spread fill material into the wetland." He averred that "topsoil is a fill material," fill material can consist of "rock, sand, soil, [or] clay," and the placement of such fill material "into a wetland constitutes a discharge into waters of the state." He observed differing layers of soil in two pits dug into the wetland site. In the first pit located "in the undisturbed wetland" on the site, Kleist observed "muck soil (wetland soil)" that "was saturated to the surface with water and the hole immediately filled in with water as it was dug." He discovered "sandy soil" in the second pit that "appeared to be recently placed filled material," was "un-compacted and very clean," and showed no signs of "plant roots." Kleist also observed wetland vegetation on the wetland site, as well as standing water and saturated fill along the north and west boundaries of the site’s fill area. In addition to his on-site observations, Kleist noted the site had been recorded on the Wisconsin Wetland Inventory as a mapped wetland. After reviewing "air photos" of the site from the years 1939, 1955, 1978, 1994, 2008 and 2010, Kleist also determined "that the fill area was a wetland in the 2008 air photo and in all of the photos that pre-date 2008."
¶8 Allen O’Leary investigated the wetland site in August 2010. After the excavation of three pits, he discovered wetland vegetation at depths of forty-eight, thirty-two, and twenty-four inches below the surface. This vegetation had grown within what O’Leary stated was wetland soil, while a layer of "soil that was obviously fill" rested on top of that soil. O’Leary stated that the wetland site’s "fill material" at that time "seemed like it didn’t have anything growing on it, so it hadn’t been there real long." O’Leary believed the fill material "could have been there a year" beforehand due to the condition of the buried vegetation, but he expressed uncertainty about the exact time at which the fill had been added to the wetland site.
¶9 Gary Starzinski performed a wetland delineation and soil test of the wetland site in May 2013. He identified three distinct layers of soil within five pits that had been dug into the wetland site. The lowest layer was composed of a mucky type of native, hydric soil with high organic matter content that is commonly found in wetland systems. Starzinski noted that native vegetation—some of which he opined was still living—had grown in the muck and could "rebound" if the higher soil layers were removed. The middle layer was composed of thirty inches of "gravelly sandy loam" (GSL) that Starzinski determined was not native to the site. The highest layer consisted of twelve inches of topsoil, which was also not native to the site. In one pit, Starzinski also discovered that the topsoil directly overlaid the natural wetland soil without an intervening layer of GSL.
¶10 Starzinski opined that the topsoil constituted fill material and that the GSL had been "brought in recently." He estimated that the GSL had been placed on the wetland site about five years before his May 2013 investigation, but he said he could not precisely distinguish whether placement first occurred "five years, eight years or two years" before 2013. Starzinski did not find signs of wood chips, other vegetation, or any root systems that were present within the GSL layer. Based on his findings, Starzinski opined, in his "best professional judgment," that the site was a filled wetland.
¶11 In opposing the State’s motion, Schnepf primarily argued there was a genuine dispute of whether the site was still a "wetland," as defined in WIS. STAT. § 23.32(1), at the time he placed the topsoil. His theory in this regard was nuanced. Schnepf argued that while he did place the topsoil on the wetland site, he did not place the GSL. Schnepf then pointed to two interrogatory responses from the State. Responding to Schnepf’s fourth interrogatory, the State answered, in part, that the GSL was "neither a wetland soil nor a soil indicative of wetland conditions." Responding to Schnepf’s fifth interrogatory, the State answered, in part, that it did not contend "that previous to the deposit of loamy topsoil on the Site, water was at, near or above the land surface long enough to be capable of supporting" wetland vegetation where topsoil overlaid GSL. In his affidavit, Schnepf "readily admitted" he had directed Kennedy to place topsoil on the site, but he denied ever "haul[ing] or ask[ing] anyone else to haul ... fill material (not the topsoil)" on it. As such, Schnepf was distinguishing between the topsoil and the GSL found on the wetland site.
¶12 Schnepf also averred that, based upon the 0.82-acre site’s appearance, at no point did he believe it was a wetland. As part of his argument, Schnepf also cited O’Leary’s uncertainty about how recently the fill material was introduced to the wetland site, as well as Starzinski’s statement that the "site had been a wetland system prior to the fill." In essence, Schnepf argued that the State had failed to show he placed the GSL on the wetland site, and that the site was no longer a wetland after someone else had placed the GSL. Therefore, Schnepf argued, he did not "fill" a...
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