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09/22/83 JEROME KAMMES v. STATE WISCONSIN

September 22, 1983

JEROME KAMMES, CHERI KAMMES, EARL TROXEL, JUDY TROXEL, HAROLD HOCKING, STEPHEN H. HOCKING, JOHN HATFIELD, DIANE HATFIELD, GEORGE FRANCH, NORMAN L. BRUIN, LEONA HAYDEN FARM, JOEL E. GRATZ, PETITIONERS-RESPONDENTS,
v.
STATE OF WISCONSIN, MINING INVESTMENT & LOCAL IMPACT FUND BOARD, APPELLANT



Appeal from a judgment of the Circuit Court for Lafayette County: Daniel P. McDonald, Judge.

Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Gartzke

The Investment and Local Impact Fund Board appeals from a judgment entered in a ch. 227, Stats., review setting aside the board's decision awarding partial compensation to Lafayette County for the cost of constructing new water wells on private properties. The circuit court held that if funds were available, the board must award full compensation. We disagree.

The issues are:

1. Did the circuit court lack jurisdiction because the country failed to petition the board for a rehearing within twenty days of the board's decision?

2. Do the respondents have standing to petition for judicial review of the board's decision?

3. May the board award partial compensation for mining-related impacts under sec. 70.395(2) (g), Stats. 1979?

4. Was the board's grant of partial compensation arbitrary and capricious?

We conclude that the circuit court had jurisdiction, that certain respondents lack standing to bring this action and that the board may award partial compensation. We direct the court to dismiss the petition for ch. 227, Stats., review as to those respondents who lack standing. Because the board did not explain why it awarded seventy-five percent of the cost of construction rather than some other amount, we reverse the judgment as to the respondents who have standing and direct the court to remand the matter to the board for further proceedings.

The board is attached to the Department of Revenue. The Board administers the Investment and Local Impact Fund from which it makes distributions in accordance with sec. 70.395(2) (d) and (f)-(i), Stats. 1979. Secs. 15.435(1) and 15.431(1), Stats. The fund was created by sec. 70.395(2) (b), Stats. It is financed under sec. 70.395(1), Stats. 1979, *fn1 through the net proceeds occupation tax on persons engaged in mining metalliferous minerals, imposed by sec. 70.375, Stats. 1979. The board distributes funds in accordance with sec. 70.395(2) (d) and (f)-(i), Stats. 1979. We assume for purposes of this opinion that the board may award compensation to the county to reimburse private persons for new wells on private property for mine-related reasons. *fn2

The facts are undisputed. Lead mines in Lafayette county were closed in October 1979. The closings contaminated ten water wells on private lands. Lafayette County filed an emergency grant application with the board in 1980 pursuant to sec. 70.395(2) (g), Stats. 1979, for $82,500 to replace the contaminated wells. *fn3 The board granted the county seventy-five percent of the construction costs. None of the respondents was a party to that proceeding. No findings were made in that proceeding as to who owned the ten wells.

In its March 30, 1981 letter informing the county of its decision, the board said that the county could appeal to the board within thirty days from receipt of the letter. The statutory time limit to petition for rehearing is twenty days. Sec. 227.12(1), Stats. April 23, 1981 the county "appealed for reconsideration." None of the respondents joined that "appeal." May 8, 1981 the board denied the county's appeal.

The eleven respondents petitioned the circuit court for ch. 227, Stats., review of the board's decision. Respondents describe themselves as farm owners, farm tenants, a farm operator, and a farmer who buys water. Each respondent alleges he owns or takes water from a contaminated well in Lafayette county. No respondent alleges that he owns or leases any of the ten wells specified in the county's application or the board's findings.

The court's judgment, entered without an evidentiary hearing, nevertheless directed the board to award one hundred percent of the damages sustained by respondents, provided the Investment and Local Impact Fund has sufficient funds and no other reason exists to award less.

The board appeals the judgment. The scope of our review under ch. 227, Stats., is identical to that of the circuit court. Sanitary Transfer & Landfill, Inc. v. DNR, 85 ...


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