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Kinnard Farms, Inc. v. DNR – Act 21 Explicit Authority

Appeal No. 2016AP001688

DNR issued several permits to Kinnard Farms which five petitioners subsequently challenged before an administrative law judge. The judge found no basis in law for changing the permits, but ruled DNR needed to amend them anyway to include a limit on the number of animal units and the addition of monitoring wells.  This case was accepted by the Supreme Court and the Wisconsin Legislature moved to intervene in the case. The court put the case on hold while it decided the constitutionality of legislative intervention. On July 9, 2020, the Wisconsin Supreme Court ruled in SEIU v. Vos that the legislature could intervene in ongoing ligation. As of March, 2021, all briefs were filed and the case was moving towards oral argument.

Why This Case is Important

  • The administrative law judge’s holdings conflicts with 2011 Act 21, which unambiguously precludes DNR from imposing conditions on permits without explicit authority to do so. 

Case Summary

Kinnard Farms is a concentrated animal feeding operation located in Kewaunee County, Wisconsin. Looking to expand its operation in the area, it applied to the Department of Natural Resources (DNR) for a re-issuance of its Wisconsin Pollutant Discharge Elimination (WPDES) permit and for approval of its design plans on its new facility. DNR approved the permit and expansion plans.

However, Midwest Environmental Advocates, through five individual petitioners, requested a contested case hearing to challenge several portions of the WPDES permit. Their rational for the request centered around the contamination of Kewaunee County groundwater, allegedly due to the spreading of cow manure.  The petitioners were granted a contested case hearing on seven issues, one of which was decided on summary judgment. The two issues of note:

  • Whether sections of the WPDES permit are unreasonable because they do not require monitoring of groundwater.
  • Whether or not the permit is unreasonable because it does not include a limit on the proposed number of animal units in the facility.

In the Finding of Facts, Conclusion of Law, and Order the administrative law judge admitted, “no applicable rule or statute requires a WPDES permit to specify a number of animal units at a CAFO facility.” Despite admitting he had no statutory authority, the judge still held “the permit should be modified by the [DNR] to include a limit on the number of animal units.”

The administrative law judge also determined that, in order to monitor groundwater surrounding Kinnard Farms for contamination, no less than six monitoring wells should be placed on “Site 2,” a field where Kinnard Farms spreads cow manure. The petition for a contested case hearing did not specifically demand that DNR require Kinnard Farms to monitor groundwater at spreading sites, nor was it identified as an issue at the contested case hearing. No party briefed the issue.

The case made its way to the Wisconsin Court of Appeals who certified it to the Wisconsin Supreme Court. Subsequently, DNR—via  change in leadership at DOJ—requested to modify the briefing schedule and argue against its own lawfully given permits. The Wisconsin Legislature moved to intervene in the case. After requesting further briefing on the issue of intervention, the court put the case on hold. Over a year later, it still awaits a briefing schedule. 

Key Documents

Supreme Court Orders and Filings

Wisconsin Legislature Reply Brief (March 24, 2021) 
Kinnard Farms Reply Brief (March 24, 2021)
GLLF Amicus Brief (March 24, 2021) 
DNR/DOJ Response Brief (March 10, 2021) 
Clean Wisconsin Response Brief (March 10, 2021)
Kinnard Farms Opening Brief (February 4, 2021)
Legislature Opening Brief (February 4, 2021)
Supreme Court Order on Motion to Intervene (January 5, 2021) 
Supreme Court Order on Briefing Schedule (January 5, 2021)
Supreme Court Order on Intervention-Briefing (May 30, 2019)

Appellate Court Filings

Supreme Court Motion to Modify Briefing Schedule & Legislative Intervention
Clean Wisconsin Resp Memo IOT Legislature Petition to Intervene (July 9, 2019)
Leg Supp Resp Memo ISO Legislature Petition to Intervene (July 9, 2019)
DOJ/DNR Resp Memo IOT Legislature Petition to Intervene (July 9, 2019)
Kinnard Farms ISO Legislature Petition to Intervene (June 19, 2019)
Clean Wisconsin Memo IOT Legislature Petition to Intervene (June 19, 2019)
Leg Supp Memo ISO Legislature Petition to Intervene (June 19, 2019)
DOJ/DNR Memo IOT Legislature Petition to Intervene (June 19, 2019)
Clean Wisconsin Motion to Strike Legislature Response (May 20, 2019)
Legislature Response to Petition to Modify (May 13, 2019)
Clean Wisconsin’s Opposition to Legislative Intervention (May 9, 2019)
Clean Wisconsin Response to Motion to Modify Briefing (May 9, 2019)
DOJ/DNR Opposition WI Leg Petition to Intervene (May 6, 2019)
DOJ/DNR Dismissal and Motion to Modify Briefing (May 2, 2019)
Court of Appeals
Court of Appeals Certification to the Supreme Court (January 16, 2019)
Court of Appeals GLLF Amicus Brief (July 16, 2018)
Court of Appeals Kinnard Farm Reply Brief (July 12, 2018)
Court of Appeals DOJ/DNR Reply Brief (July 10, 2018)
Court of Appeals GLLF Motion to File Non-Party Brief (July 9, 2018)
Court of Appeals Clean Wisconsin Response Brief (June 25, 2018)
Court of Appeals DOJ/DNR Opening Brief (May 16, 2018)

Other Documents
DOJ-Clean Wisconsin Settlement Agreement (May 1, 2019)
DHA Findings of Fact, Conclusions of Law and Order (October 29, 2014)