Nat'l Wildlife Refuge Ass'n v. Rural Utils. Serv.

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NATIONAL WILDLIFE REFUGE ASSOCIATION, DRIFTLESS AREA LAND CONSERVANCY, and WISCONSIN WILDLIFE FEDERATION, Plaintiffs, v. RURAL UTITLITIES SERVICE; ANDY BERKE, Administrator, Rural Utilities Service; UNITED STATES FISH AND WILDLIFE SERVICE; WILL MEEKS, Midwest Regional Director, and SABRINA CHANDLER, Manager, Upper Mississippi River National Wildlife and Fish Refuge, UNITED STATES ARMY CORPS OF ENGINEERS, LIEUTENANT GENERAL SCOTT A. SPELLMON, Chief of Engineers and Commanding General, U.S. Army Corps of Engineers, COLONEL JESSE T. CURRY, Commander And District Engineer, Rock Island District, U.S. Army Corps of Engineers, and COLONEL ERIC SWENSON, Commander and District Engineer, St. Paul District, U.S. Army Corps of Engineers, Federal Defendants, and DAIRYLAND POWER COOPERATIVE, and ITC MIDWEST LLC, Intervenor-Defendants.

No. 24-cv-139-wmc

United States District Court, W.D. Wisconsin

March 25, 2024

ORDER

WILLIAM M. CONLEY, DISTRICT JUDGE

A preliminary injunction hearing was held on Friday, March 22 2024, in the above-captioned matter. Plaintiffs, comprised of various national and state recognized environmental groups appeared by attorneys Howard Learner, Daniel Abrams, Scott Strand, and Maria Dambruinas. The so-called “federal defendants” appeared by Reade Wilson and Kimberly Cullen. Finally, the intervenor-defendants, Dairyland Power Cooperative and ITC Midwest, LLC, appeared by Stacey Bosshardt and Thomas Jensen.

Although recently filed, this lawsuit has a lengthy history as recounted in National Wildlife Refuge Ass'n v. Rural Util. Serv,. 580 F.Supp.3d 588 (W.D. Wis. 2022). In that decision, this court held on the merits that federal defendants had failed “to meet the legal requirements for an Environmental Impact Statement, Compatibility Determination, and Land Transfer.” Id. at 593. On appeal, however, the Seventh Circuit held that the revocation of defendant United States Fish and Wildlife Services' initial compatibility determination under the Refuge Act, 16 U.S.C. § 668dd(d)(1)(A), prevented this court from reaching the merits, resulting in a remand order to vacate the final judgment and dismiss the case. Driftless Area Land Conservancy v. Rural Utilities Serv., 74 F.4th 489, 496 (7th Cir. 2023).

No one believed that would be the end of the parties' dispute, including the Seventh Circuit. Rather, that court explained any merits review must await a new, proposed federal action. Although unknown to either court at the time of their respective ruling, those actions were already underway as U.S. Fish and Wildlife Service and one of the intervenor-defendants, Dairyland Power, had already entered into a non-binding understanding for a land exchange/purchase in a private writing dated October 29, 2021, which detailed the basic terms for the exchange of 19.84 acres of land located within the Refuge (the “Exchange Property”) for 35.69 acres of land held by ITC and Dairyland (the “Wagner Property”). (Dkt. #1-36.)

Although the basic terms remained the same throughout, the details of that transaction were then apparently hammered out by the federal defendants and intervenors for the next two years without any public input until the issuance of an over 100 page, draft “Supplemental Environmental Assessment” in September 2023, which quickly became the final SEA after a truncated, 14-day public review and comment period. (Dkt. #1-21.) Although plaintiffs were able to meet the small window for comments, the federal agencies went dark again until last month when the federal defendants issued the following documents:

• Agreement for the Exchange of Lands (dkt. #1-18).

• Finding of No Significant Impact on Cardinal-Hickory Creek 345-kV Transmission Line Project Proposal for Route Modification B-IA3 and Land Exchange (dkt. #1-17).

• Land Exchange Net Benefit Analysis (dkt. #1-19).

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