Judge: Removing farmers' trout project was 'pigheaded move'

Sari Lesk
Stevens Point Journal

STEVENS POINT - Donald and Lynn Isherwood said it was a trout habitat. Their neighbors said it was a flood hazard.

Then a local board brought construction equipment to the Isherwoods' land and tore out the habitat in the drainage ditch there, citing a threat to other farmers' land.

Now those who removed the habitat could face legal consequences.

Judge Jon Counsell of Clark County was scheduled to hear arguments in late June from the Isherwoods and the Portage County Drainage Board about whether or not the trout habitat — essentially, woody debris such as Christmas trees that the Isherwoods placed in a drainage ditch — should be allowed to stay put while a lawsuit over the project played out. But on June 6, only weeks before the hearing, the board had the project pulled from the ditch.

That action earned them a rebuke from the judge.

"Looking at it from the outside, not as a judge, the question would seem to be: Why would somebody pull such a pigheaded move and do that?" Counsell said, according to a court transcript of the June 28 hearing.

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The Isherwoods had received approval from the Department of Natural Resources, granted after the project was already built. The Drainage Board, whose permission is also legally required, has not issued a permit. The Isherwoods said they constructed the project after seeking the Drainage Board's permission to no avail. 

The Isherwoods took the board to court over the matter, asking a judge to intervene and help obtain permission for the project. They also wanted a judge to temporarily ban the board from removing the project while the court considered the bigger question at stake.

The board, represented by attorney Mike McKenna, contends its actions were lawful and protected the drainage district. Court records show the board obtained permission from the DNR to work in the ditches early this year to remove the project.

McKenna compared the Drainage Board's actions to a highway department clearing the road to ensure safety for drivers.

The judge questioned why the board would prevent the court from deciding the question it was asked.

"You didn't care about the fact there was a motion pending and a hearing on the issue to prevent exactly what you did," Counsell told McKenna and the board, according to the transcript. "You simply decided that we are not going to give anybody a chance to rule on this, right?"

The Isherwoods and their attorney, Michael Lauterbach, are now asking a judge to punish the board for its conduct, arguing in court records that removing the project was "egregious"  and a "flagrant, knowing disregard of the judicial process." They asked the judge to consider awarding a ruling in their favor, the cost of replacing the project and/or reimbursement for some of their attorney's fees. The Drainage Board asked the judge to deny the request and grant their own for a ruling in their favor without a trial. 

Counsell said he will review the board's request before deciding on whether to sanction the board. He said at the June hearing that the board could still face a legal consequence if he rules in its favor to discourage similar actions in the future.

Paul Cieslewicz, the head of the Drainage Board, said in an email response to USA TODAY NETWORK-Wisconsin that Isherwood "knew he was breaking the law" and that the issue has been expensive to see through in court. He criticized coverage of the issue, stating he was "running out of time for the papers that just want the story from (Isherwood)."

Donald Isherwood said in June, as the project was removed, that he was unsure whether he'd seek permission to redo the work. Lynn Isherwood said this month that she believes that's important. 

"We're proving more than a point here," she said. "We did prove something with our project, and that is how absolutely fantastic it is for a trout habitat."

The two parties return to court Aug. 2.

Sari Lesk: 715-345-2257 or sari.lesk@gannettwisconsin.com; on Twitter @Sari_Lesk.