Robinson v. Kunach

No. 75-536 (Wis. March 15, 1977)

ELR Digest

The court affirms a trial court's dismissal of plaintiff's first five claims and grant of summary judgment for defendant on the sixth and seventh causes of action in a landowner's suit to enjoin condemnation of land for the purpose of relocating a county highway. Addressing the sole issue raised during oral argument, the court rules that plaintiff is mistaken in contending that the relocation project requires an environmental impact statement under the state environmental protection act, Wis. Stat. 1.11(2)(C). The statute's legislative history shows that counties were not intended to be included among those "agencies of the state" to which the impact statement preparation requirement was to apply. Moreover, executive implementation of the act through executive orders and issuance of guidelines has been aimed solely at state agencies and these orders and guidelines have neither referred to nor been sent to counties. This executive interpretation of an ambiguous statutory provision is reasonable and thus must be accepted by the court. Milwaukee v. WERC, 71 Wis. 2d 709, 715, 239 N.W.2d 63 (1976).

The court finds further that the state law "urging" consideration of the impact of proposed actios on endangered species, Wis. Stat. 29.415, is not proscriptive and thus does not provide a basis for injunctive relief against the highway relocation. The allegations of violations of Wis. Stat. 144.025, which gives the Department of Natural Resources the responsibility to protect the quality of waters of the state, and Wis. Stat. 29.456, which prohibits the destruction of American lotus plants, are similarly defective. The claims are premature at this point, and both statutes in any event provide for forfeiture or fine as the relief available for violations and cannot be enforced by citizen suits seeking injunctive relief.

Plaintiff has generally alleged a violation of the public trust doctrine, but has pointed to no violation of any specific statute enacted pursuant to the doctrine. Such a general allegation, in addition to being premature in this case, is insufficient to state a cause of action. State v. Deetz, 66 Wis. 2d 1, 13, 224 N.W.2d 407, 413 (1974). Plaintiff's two remaining allegations, that defendants condemned plaintiff's land without following the required procedures and that defendants are liable in damages for a trespass in entering upon plaintiff's land to perform survey and appraisal work, are likewise without merit.

The trial court's judgment is affirmed, with costs to defendants.

The full text of this opinion is available from ELR (10 pp. $1.25, ELR Order No. C-1113).

Counsel for Plaintiff-Appellant
James A. Johnson
Korth, Rodd, Sommer & Mouw
8-A West Davenport St., Rhinelander WS 54501
(715) 368-4880

Counsel for Defendants-Respondents
Lawrence R. Heath, Corporation Counsel
Oneida County
E. Davenport St., Rhinelander WS 54501
(715) 369-1465

Hansen, J.

(OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE)