Sept. 10, 2013 – A private property owner who constructed a road through protected wetlands must remove the road and restore the wetland, a state appeals court has ruled, reversing a circuit court decision to deny injunctive relief.
Catherine deBarros purchased property on Birch Lake in the Town of Laona, about 40 miles east of Rhinelander. She purchased the property from CGIP Lake Partners LLP, which deBarros owned with her three brothers. CGIP owned neighboring parcels.
The deed granted deBarros, who built a house on the Birch Lake property, a permanent access easement across neighboring CGIP property. But deBarros discovered that she could create a shortcut if a new road were built across adjacent wetlands.
State statute required deBarros to obtain a “water quality certification” before construction could begin. In her application, deBarros indicated that the new road was necessary because current access was not permanent. This wasn’t true, because deBarros had a permanent access road easement across CGIP property.
The DNR relied on deBarros’s representation in granting the application. However, members of the public had 30 days to appeal the DNR’s decision, and deBarros began constructing the road before that 30-day period ended. Four neighbors filed appeals.
During administrative hearings, it was discovered that deBarros made false or inaccurate representations about her right to use existing roads.
The administrative law judge found that deBarros “knew or should have known” that those representations we not true and denied the application, concluding that deBarros had alternative access and a new road would cause adverse environmental impacts.
The circuit court reversed, concluding that the DNR used the wrong procedure to review deBarros’s application. The wetlands at issue were above the ordinary high water mark of a navigable water body. The DNR processed the application using more stringent procedures for projects involving wetlands below the ordinary high water mark.
According to the circuit court, using the wrong procedure violated deBarros’s constitutional rights. An appeals court reversed the circuit court decision, and upheld the administrative law judge’s decision to deny the water quality certification.
However, deBarros refused to remove the road upon the state’s request, which led the state to file an enforcement action for penalties and injunctive relief.
In circuit court, a DNR specialist testified that deBarros’s road crossed pristine sedge meadow, a rare wetland. He said the wetland could be restored easily without further damage, and failing to do so could have serious negative impacts on fish and wildlife.
deBarros’s father testified, claiming the area on which the new shortcut road was built was “just a bunch of weeds.” He also said his daughter’s misrepresentation about road access was unintentional. The court ordered deBarros and CGIP to pay $30,135 in penalties and attorney fees, but the circuit court refused to order restoration.
Recently, in State v. deBarros, 2012AP2346 (Sept. 10, 2013), a three-judge appeals court panel reversed, concluding that deBarros and company must restore the wetland.
The state argued that restoration was appropriate because there were no compelling equitable reasons to deny it, relying on the state supreme court’s decision in Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998), a shoreland zoning case.
The appeals court agreed that Goode applied. “[A]s with shoreland protection, the public has a substantial interest in protecting the state’s wetlands,” wrote Judge Lisa Stark. “It therefore makes sense to apply Goode’s methodology in this case.”
Under Goode, a defendant must convince the court that compelling equitable reasons exist to deny injunctive relief, once a statutory violation is found.
“[W]e conclude the circuit court erroneously exercised its discretion when it concluded there were compelling equitable reasons to deny the injunction,” wrote Judge Stark, noting the judge substituted his own lay opinions about the importance of the wetland area and improperly disregarded the DNR expert’s testimony, among other things.
DeBarros did not overcome the burden to block the injunction with compelling equitable reasons, the panel explained, and the state offered undisputed testimony that removing the road was necessary to restore an environmentally valuable area.
“We therefore remand to the circuit court with directions that it issue an injunction requiring deBarros and CGIP to remove the road and restore the wetland, pursuant to the DNR’s restoration plan,” Judge Stark wrote for the three-judge panel.