Zastrow v. Am. Transmission Co.

2018 WI App 51, 916 N.W.2d 821, 383 Wis. 2d 644
CourtCourt of Appeals of Wisconsin
DecidedJuly 3, 2018
DocketAppeal No. 2017AP1848
StatusPublished
Cited by1 cases

This text of 2018 WI App 51 (Zastrow v. Am. Transmission Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zastrow v. Am. Transmission Co., 2018 WI App 51, 916 N.W.2d 821, 383 Wis. 2d 644 (Wis. Ct. App. 2018).

Opinion

STARK, P.J.

¶ 1 This appeal involves efforts by American Transmission Company LLC and ATC Management Inc. (collectively ATC) to acquire an easement over property owned by Lila Zastrow and David Hendrickson (collectively, Zastrow) in order to construct two high-voltage transmission lines. The Public Service Commission (PSC) issued ATC a certificate of public convenience and necessity (Certificate) for the construction of the transmission lines. After receiving a jurisdictional offer from ATC, Zastrow filed the instant lawsuit under WIS. STAT. § 32.06(5) (2015-16),1 challenging ATC's right to condemn her property. Zastrow contended ATC had failed to negotiate with her in good faith regarding the terms of a vegetation management plan within the proposed easement. She argued such good faith negotiation was required under § 32.06(2a).

¶ 2 The circuit court granted summary judgment in favor of ATC, concluding WIS. STAT. § 32.06(2a) does not require a condemnor to negotiate in good faith regarding any subject other than compensation. We agree with the circuit court's conclusion.

*824We further conclude that nothing in the Certificate required ATC to negotiate with Zastrow regarding the terms of a vegetation management plan. We also reject Zastrow's argument that ATC made false statements about its obligation to negotiate, in violation of WIS. STAT. § 32.29. Ultimately, we conclude that, while framed as a challenge to ATC's duty of good faith negotiation, the instant lawsuit is actually an attempt to indirectly challenge the PSC's failure to include specific vegetation management conditions in the Certificate. However, Zastrow did not seek judicial review of the PSC's decision, and she has therefore forfeited her right to consideration of that issue. For all of these reasons, we affirm the circuit court's grant of summary judgment in favor of ATC.2

BACKGROUND

¶ 3 Zastrow owns property in Outagamie County. At the time of Zastrow's purchase in 1987, Wisconsin Electric Power Company held a transmission line easement over the property. A single, 138-kilovolt transmission line was located within the easement. The easement was subsequently acquired by ATC. On May 1, 2014, ATC filed an application with the PSC for a Certificate permitting ATC to construct and place in operation two high-voltage transmission lines connecting an electrical substation in Outagamie County with another substation in Oconto County. See WIS. STAT. § 196.491(3). The new lines would cross Zastrow's property, running next to the existing transmission line.

¶ 4 Zastrow actively participated in the PSC proceedings regarding ATC's Certificate application. She opposed the project, arguing ATC's vegetation management practices were excessive. The record reflects that ATC's preferred practice was to clear an entire right-of-way of vegetation during the construction of transmission lines, and to repeat the clearing process thereafter on a five-year recurring basis. ATC's aim was to "convert trees and woody vegetation to grasses and forbs (e.g., milkweed, sunflowers, etc.)" in order to "create a tree-resistant right-of-way." ATC contended these practices were necessary to keep transmission lines "clear of all incompatible trees, brush and other vegetation that could interfere with the safe operation and maintenance of" the lines.

¶ 5 Zastrow disagreed, referring to ATC's practices as "scorched earth" vegetation management. Zastrow argued ATC should instead employ a "wire-border zone technique." She explained that, under this technique, the area within a transmission line right-of-way is separated into two zones: (1) a wire zone, encompassing the area "directly under the wires and extending outward about 10 feet on each side"; and (2) a border zone, encompassing the remaining area within the right-of-way. According to Zastrow, the wire zone "is managed to promote a low-growing plant community dominated by grasses, herbs and small shrub[s]," while the border zone "is managed to establish small trees and tall shrubs." Zastrow argued this approach would "not only protect the electric facility and reduce long-term maintenance, but *825also enhance wildlife habitat, forest ecology and aesthetic values."

¶ 6 During the administrative proceedings on ATC's Certificate application, PSC staff prepared a "Decision Matrix" outlining the issues the PSC needed to decide, summarizing the parties' positions on those issues, and providing recommendations. Addressing the vegetation management issue, PSC staff concluded ATC's "justification for its current vegetation management practices and subsequent impacts upon landowner properties [was] insufficient." PSC staff therefore recommended that the PSC impose certain conditions on ATC related to vegetation management, including a requirement that ATC "manage and maintain applicable ROWs [right-of-ways] in accordance with the wire zone-border zone technique."

¶ 7 The PSC issued its final decision on May 21, 2015, granting ATC a Certificate for the construction and operation of the new transmission lines. The PSC's decision included a number of conditions related to environmental and agricultural factors.

¶ 8 As relevant to this appeal, the PSC acknowledged the concerns that Zastrow and the PSC's own staff had raised about ATC's vegetation management practices. However, contrary to its staff's recommendations, the PSC did not impose any conditions requiring ATC to employ wire zone-border zone vegetation management techniques. Instead, the PSC stated it would "engage in a dialogue and informal process to review vegetation management practices of ATC and other transmission owners." To that end, the PSC directed both its staff and ATC to "promptly commence an informal stakeholder process to examine ROW practices." The PSC explained, "The intention is not simply to determine what the plan and practice is for this project, but to gain additional knowledge regarding an issue that is of great concern to many residents throughout the state who live near electric ROWs." The PSC further stated, "If a consensus on modifications to current practices cannot be reached, the [PSC] may decide to investigate this matter further in a generic docket." The PSC also expressly stated, "To the extent any other conditions that were proposed or discussed in the record of this proceeding have not been imposed, the [PSC] finds that they are unreasonable, not necessary or inconsistent with the conditions proposed in other similar transmission cases."

¶ 9 Zastrow moved for clarification and/or reconsideration of the PSC's decision. As relevant here, she argued a "final, equitable, verifiable and compensatory vegetation management plan must ... be in place before easement negotiations begin." The PSC did not respond to Zastrow's motion, which was therefore deemed denied. See WIS. ADMIN. CODE § PSC 2.28 (Apr. 2007).

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Bluebook (online)
2018 WI App 51, 916 N.W.2d 821, 383 Wis. 2d 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zastrow-v-am-transmission-co-wisctapp-2018.