A major, precedent-setting victory for our environment and our democratic process has been won.  A favorable decision was handed down last week by a Circuit Court judge on a lawsuit filed in November, 1999, claiming that two wetland fill exemptions snuck into the state biennial budget bill as political favors to local entities were unconstitutional.

This decision sends a clear message to our legislators and to the Governor that our environment is not for sale to the largest campaign contributors and special lobbying interests.  Furthermore, the decision upholds our state Constitution and our democratic process.

The story began in January, 1999, when then-Governor Tommy Thompson introduced his version of the biennial Budget Bill.  His proposed budget included a small but significant phrase exempting a private industry from state water quality regulations by allowing a wetland less than 15 acres in Trempealeau County to be filled.

Under current law, anyone who wants to fill or dredge a wetland must file a permit application and meet the Department of Natural Resources (DNR) water quality standards.

The exemption language, as we later learned, was written by Ashley Furniture lobbyist William Gerard, and the exemption was a special favor to Ashley.  Ashley CEO Ron Wanek, family members and employees had graced Thompson’s re-election war chest with generous contributions for many years.

Fortunately, the Joint Finance Committee smelled a rat and cut this exemption from the state budget bill, and we thought the issue was dead.  The exemption resurfaced in both Senate and Assembly versions of the budget just days before final passage of the budget bill in both Houses, however.  Once it was learned that the exemption was re-inserted into the budget, legislators were warned that the exemption was very likely unconstitutional.  The Wisconsin Wetlands Association (WWA) and other state groups threatened legal action.

Despite the warning, the legislature passed the bill with the exemption intact, and in fact included a second similar wetland fill exemption for an industrial park in the City of Menomonie.  The bill was signed into law by Tommy Thompson, and the Wetlands Association, along with four other environmental organizations, filed a lawsuit the day after the law was passed.

The other organizations in the lawsuit included Sierra Club-John Muir Chapter, 1000 Friends of Wisconsin, River Alliance of Wisconsin and Wisconsin’s Environmental Decade.

The lawsuit struggle was truly a “David and Goliath” match—Ashley with its considerable economic and political clout against a handful of non-profit environmental organizations.  Ashley hired several crack lawyers and waged a huge fight, arguing that the exemption for Ashley was important for the state’s economy and therefore was appropriate to be inserted into a state budget bill.

Attorney Glenn Stoddard (of Garvey and Stoddard), who represented the environmental groups, also brought expert economic testimony into the argument and repeatedly refuted Ashley’s claims.  Stoddard offered considerable pro-bono legal services to this lawsuit beyond what WWA and the other organizations could afford.

On August 2, 2001, Circuit Court Judge Dane Morey issued his summary judgment on the case in which he clearly and succinctly proclaimed the exemptions unconstitutional (Section 18, Article IV, Wisconsin Constitution) and declared Section 281.165 that contained the exemptions null and void.

The sites involved are a 14-acre wetland adjoining the Trempealeau River owned by Ashley Furniture near its plant in Arcadia, and a 4.2 acre wetland portion of a 16-acre wetland associated with Stout Technology Park in Menomonie (Dunn County).  The DNR indicated that the two wetlands at issue are high-quality wetlands that the agency would likely not issue permits for if permits were sought.

After Ashley was repeatedly told that DNR would not issue a permit for their wetland fill, they threatened to "take the issue to their legislators."  They obviously followed through on this threat, as they were successful in convincing Tommy Thompson to include their exemption into his version of the budget bill.

The message is simple:  elected officials must uphold our state constitution when passing laws and must resist special interests offering large contributions in exchange for special favors.  Let this legal challenge and decision be a warning as the Governor deliberates the next biennial budget.