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Fox v. Wisconsin Dep't of Health & Social Servs.

ELR Citation: 13 ELR 20932
Nos. No. 82-1594, 334 N.W.2d 532/112 Wis. 2d 514, (Wis., 06/01/1983)

The court rules that a district attorney and relative of prisoners lack standing to challenge the adequacy of an environmental impact statement prepared under the Wisconsin Environmental Policy Act (WEPA) for a maximum security prison. The court notes that the Wisconsin standing test is similar to the federal test, requiring an injury to an interest of the petitioner protected by law. The district attorney claimed that by locating the prison outside his county, where half the prisoners' families have homes, the state would disrupt visitation leading to increased prison stress, increased recidivism, and increased costs to the county and state. Incidentially, the location would also increase the county's cost of shipping prisoners to jail. The court finds that the latter claim is an injury under WEPA. The former claim, based upon presumed psychological harm, is too indirect to provide standing. Also, the district attorney has not alleged a relationship between the injuries and a change in the physical environment. Further, the injury claimed does not involve an interest protected by WEPA. WEPA only protects the physical environment or residents of the area most likely to be affected by the action.

The relatives allege that the potential transfer of prisoners will injure their family lives. The court rules that this injury does not provide standing because it is conjectural since no prisoners have yet been scheduled to be moved, and it is not reasonably closely connected with a change in the physical environment. Also, the injury is not to an interest protected by WEPA or by any other statutory or constitutional provision.

Although interevnors, residents of the area around the planned prison, would have standing under WEPA, they did not intervene until after the time had run for seeking judicial review. Thus, they cannot stand alone as petitioners, and the court below never properly had subject matter jurisdiction over their claims.

Counsel for Appellant
Bronson C. LaFollette, Attorney General; Robert W. Larsen
Department of Justice, 123 W. Washington Ave., Madison WI 53702
(414) 266-1221

Counsel for Appellees
Thomas G. Halloran
633 W. Wisconsin Ave., Milwaukee WI 53203
(414) 276-1717

Counsel for Appellees-Intervenors
Kevin J. Lyons, Renee Martin
Cook & Franke
Suite 401, 660 E. Mason St., Milwaukee WI 53202
(414) 271-5900