~TOHN C.

ALBERT
CIRCUIT COUR1', BR. 3
STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY

DAVID and DELORAS VIND

French Creek Hill Farm
N26992 Tolokken Road ~,'.
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Arcadia, WI 54612,

Plaintiffs,
10CVS248
v. Case No.
-------------------
Case Code: 30701
Declaratory Judgment

PUBLIC SERVICE COMMISSION

OF WISCONSIN
Sandra J. Paske, Secretary
610 N. Whitney Way
THIS IS fi~1 AU!l!ENTICATED COpy OF THE
P.O. Box 7854
ORIGINAL DOC! 'f,ENT FILED WITH THE DANE
Madison, WI 53707-7854,
COuNTY CLERK OF CIRCUIT COURT.

Defendant.
CARi 0 ESQUEDA
CLERK OF CtRCUIT COURT
SUMMONS

THE STATE OF WISCONSIN

To each person named above as a defendant:

You are hereby notified that the plaintiff named above has filed a lawsuit or other
legal action against you. The Complaint, which is attached, states the nature and basis of
the legal action.

Within 45 days of receiving this Summons, you must respond with a written
Answer, as that term is used in Chapter 802 of the Wisconsin Statutes, to the Complaint.
The court may reject or disregard an Answer that does not follow the requirements of the
statutes. The Answer must be sent or delivered to the court, whose address is:

Dane County Clerk of Circuit Court

Dane County Courthouse =<
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Room 1000 ;0 =
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215 S. Hamilton, St. rn 0

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 and to the following person:

Attorney Glenn M. Stoddard

STODDART) LAW OFFICE
316 N. Barstow Street, Suite B
P.O. Box 227
Eau Claire, WI 54702
Attorney for Plaintiff

You may have an attorney help or represent you.

If you do not provide a proper Answer within 45 days, the court may grant
judgment against you for an award of money or other legal action requested in the
Complaint, and you may lose your right to object to anything that is or may be incorrect
in the Complaint. A judgment may be enforced as provided by law. A judgment
awarding money may become a lien against any real estate you own now or in the future
and may also be enforced by garnishment or seizure of property.

Dated this /~day of October, 2010.

STODDARD LAW OFFICE

~~,~~
Glenn M. Stoddard
WI State Bar No. 1020964
Attorney for Plaintiffs David and
Deloras Vind

Mailing Address:
316 N. Barstow Street, Suite B
P.O. Box 227
Eau Claire, WI 54702
Tel: (715) 852-0345
Cell: (715) 864-3057
Fax: (715) 852-0349
Email: glennstoddard@gmail.com

2
STATE OF WISCONSIN "c;n~cmT COURT DANE COUNTY
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DAVID and DELORAS VIND

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French Creek Hill Farm f
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N26992 Tolokken Road
Arcadia, WI 54612,

Plaintiffs,
10CV5248
v. Case No. -------------------
Case Code: 30701
Declaratory Judgment

PUBLIC SERVICE COMMISSION

OF WISCONSIN
Sandra J. Paske, Secretary THIS IS AN AUTHENTICATED COpy OF THE
610 N. Whitney Way ORiGINft.L DOCUMENT FILED WITH THE DANE
P.O. Box 7854 COUN1Y CLERK OF CIRCUIT COURT.
Madison, WI 53707-7854,
CARLO ESQUEDA
Defendant.
CLERK OF CIRCUIT COURT

COMPLAINT

Plaintiffs, David and Deloras Vind, by Attorney Glenn M. Stoddard of

STODDARD LAW OFFICE, as and for their Complaint against Defendant Public

Service Commission of Wisconsin, complain and allege as follows:

FACTS

1. Plaintiffs David and Deloras Vind (hereinafter "plaintiffs") are adult

residents of the State of Wisconsin who own real estate and reside at French Creek Hill

Farm, N26992 Tolokken Road, Arcadia, Wisconsin 54612.

2. Defendant Public Service Commission of Wisconsin (hereinafter

"defendant") is an agency of the State of Wisconsin, created under Wis. Stat. § 15.79,
whose principal office is located at 610 N. Whitney Way, P.O. Box 7854, Madison,

Wisconsin 53707-7854.

3. Defendant has jurisdiction over public utilities under Wis. Stat. ch. 196,

including the approval of electric generating facilities of 100 megawatts or larger under

Wis. Stat. § 196.491.

4. Defendant has a duty to develop and administer wind siting rules under

2009 Wis. Act 40, but in doing so it has a duty to comply with Wis. Stat. § 1.11 (the

"Wisconsin Environmental Policy Act" or "WEP A"), Wis. Stat. § 1.13(2), and Wis.

Admin. Code ch. 4.

5. On August 31, 2010, defendant adopted the "Order Adopting Final

Rules," which created Wis. Admin. Code ch. PSC 128, also referred to as the "Wind

Siting Rule," 1-AC-231; Clearinghouse Rule 10-057 (attached hereto as Exhibit A).

6. Plaintiffs are interested in, concerned about, and aggrieved by defendant's

August 31, 2010 "Order Adopting Final Rules," which created Wis. Admin. Code ch.

PSC 128, also referred to as the "Wind Siting Rule."

7. Plaintiffs reside in an area where a wind energy development has been

proposed which would be a major action significantly affecting the quality of the human

environment, including plaintiffs' quality of life, health, safety, and property rights.

8. Plaintiffs reside in Trempealeau County, Wisconsin, which currently has a

wind energy ordinance in effect that protects the quality of the human environment,

including plaintiffs' quality of life, health, safety, and property rights, from the adverse

effects of wind energy developments.

2
 9. As approved by defendant on August 31,2010, Wis. Admin. Code ch.

PSC 128 is a major action which will significantly affect the quality of the human

environment because it will pre-empt the Trempealeau County wind energy ordinance

and render it ineffective in protecting the quality of the human environment, including

plaintiffs' quality of life, health, safety, and property rights.

10. Plaintiffs submitted comments to defendant concerning the provisions of a

draft version of Wis. Admin. Code ch. PSC 128, but plaintiffs' comments were rejected

or ignored by defendant.

11. Prior to its decision to approve Wis. Admin. Code ch. PSC 128, defendant

failed to conduct an environmental review, and it failed to prepare either an

environmental assessment (hereinafter "EA") or an environmental impact statement

(hereinafter "EIS") on the proposed rule, as required under Wis. Stat. § 1.11 and Wis.

Admin. Code § 4.10(2), Table 2.m.

12. In developing and approving Wis. Admin. Code ch. PSC 128, defendant

also failed to design the rule to reflect a balance between defendant's mission and the

goals specified in Wis. Stat. § 1.13(2).

CLAIMS & CAUSES OF ACTION

I. Defendant Failed to Fulfill its Duty Under WEPA, Wis. Stat. § 1.11(2), and
Wis. Admin. Code § PSC 4.10(2) to Conduct an Environmental Review Prior
to Approving the Rule.

13. Plaintiffs incorporate by reference all allegations set forth in the preceding

paragraphs.

14. Pursuant to WEPA, Wis. Stat. § 1.11(2), and Wis_ Admin. Code § PSC

4.10(2), Table 2.m., whenever defendant establishes "long-range commission plans or

3
policies that would predetermine future individual commission actions" which may

"significantly affect the human environment," it is required to prepare a formal EA,

unless defendant decides that a full EIS is necessary for the action or decision.

15. When defendant approved Wis. Admin. Code ch. PSC 128 it clearly

established "long-range commission plans or policies that would predetermine future

individual commission actions" which may "significantly affect the human environment"

by: (a) modifying Wis. Admin. Code ch. PSC 4, relating to defendant's responsibilities

under WEP A, Wis. Stat. § 1.11, in Section 1 of the rules; and (b) establishing a long-

range policy whereby defendant "shall consider whether the installation or use of a wind

energy system is consistent with the standards specified in [PSC 128] when reviewing an

application [for larger wind energy systems of 100 megawatts or larger] under s.

196.491(3)(d), filed on or after the effective date of [PSC 128]," under Wis. Admin. Code

§ PSC 128.02(3).

16. Although "proposed changes or additions to Administrative Code" are

classified as Type III actions under Wis. Admin. Code § PSC 4.10(3), Table 3.w., this

provision does not apply to the creation and approval of Wis. Admin. Code ch. PSC 128,

because it is an entirely new administrative code or rule that establishes "long-range

commission plans or policies that would predetermine future individual commission

actions" which may "significantly affect the human environment" and is, therefore, a

Type II action by defendant under Wis. Admin. Code § PSC 4.10(2), Table 2.m.

17. Even Type III actions, however, "may indicate that the preparation of an

EA or EIS is warranted for that proposal," under Wis. Admin. Code § PSC 4.10(3), and

WEPA, Wis. Stat. § 1.11(2).

4
 18. Under WEPA, Wis. Stat. § 1.11(2), defendant is expressly required by law

to "[i]nclude in every recommendation or report on proposals for legislation and any

other major actions significantly affecting the quality of the human environment, a

detailed statement, substantially following the guidelines issued by the United States

council on environmental quality under P.L.91-190, 42 USC 4331. .. on ... the

environmental impact of the proposed project. ... "

19. Because defendant did not prepare either an EA or an EIS it failed to

fulfill its duty under WEPA, Wis. Stat. § 1.11(2), and Wis. Admin. Code § PSC 4.10(2),

to conduct an environmental review of Wis. Admin. Code ch. PSC 128 prior to approving

the rule on August 31,2010.

20. Because defendant failed to fulfill its duty under WEP A, Wis. Stat. §

1.11(2), and Wis. Admin. Code § PSC 4.10(2) in approving Wis. Admin. Code ch. PSC

128, the Court must declare the rule invalid and remand the rule to defendant for

compliance with the law.

II. Defendant Failed to Fulfill its Duty Under Wis. Stat. § 1.13(2) to Design the
Rule to Reflect a Balance Between Defendant's Mission and the Goals
Specified in Wis. Stat. § 1.13(2)

21. Plaintiffs incorporate by reference all allegations set forth in the preceding

paragraphs.

22. Pursuant to Wis. Stat. § 1.13(2), defendant is encouraged to "design its

programs, [and] policies ... to reflect a balance between the mission of the agency

and .. .local comprehensive [land use] planning goals" and activities, including "balancing

individual property rights with community interests and goals" and "[p ]lanning and

5
development of land uses that create or preserve varied and unique urban and rural

communities. "

23. Defendant's approval of Wis. Admin. Code ch. PSC 128 did not address

how defendant complied with the mandate set forth in Wis. Stat. § 1.13(2), and it failed

to: (a) balance "individual property rights with community interests and goals"; and (b)

address "[p ]lanning and development of land uses that create or preserve varied and

unique urban and rural communities" within the context of the mandate set forth for

defendant under 2009 Wis. Act 40.

24. Because defendant failed to fulfill its duty under Wis. Stat. § 1.13(2), as

described above, the Court must declare the rule invalid and remand the rule to defendant

for compliance with the law.

RELIEF REQUESTED

WHEREFORE, plaintiffs respectfully request that the Court issue a declaratory

judgment in their favor, pursuant to Wis. Stats. §§ 1.11(2), 1.13(2), and 227.40(1):

1. That because defendant failed to fulfill its duty under WEP A, Wis. Stat. §

1.11(2), and Wis. Admin. Code § PSC 4.10(2) in approving Wis. Admin. Code ch. PSC

128, the rule is invalid and shall be remanded to defendant for compliance with the law;

2. That because defendant failed to fulfill its duty under Wis. Stat. § 1.13(2),

and it failed to: (a) balance "individual property rights with community interests and

goals"; and (b) address "[P]lanning and development ofland uses that create or preserve

varied and unique urban and rural communities" within the context of the mandate set

forth for defendant under 2009 Wis. Act 40, the rule is invalid and shall be remanded to

defendant for compliance with the law;

6
 3. That the Court award plaintiffs their statutory attorney fees and costs as

may be allowed by law; and

4. That the Court order such other and further relief in favor of plaintiffs as it

deems appropriate under the circumstances.

"-rr
Dated this /-;::..---day of October, 2010.

STODDARD LAW OFFICE

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Glenn M. Stoddard
WI State Bar No. 1020964
Attorney for Plaintiffs David and
Deloras Vind

Mailing Address:
316 N. Barstow Street, Suite B
P.O. Box 227
Eau Claire, WI 54702
Tel: (715) 852-0345
Cell: (715) 864-3057
Fax: (715) 852-0349
Email: glennstoddard@gmai1.com

7
HIL It

BEFORE TIm

PUBLIC SERVICE COMMISSION OF WISCONSIN

Wind Siting Rule 1-AC-231

Clearinghouse Rule 10-057

ORDER ADOPTING FINAL RULES

The Public Service Commission of Wisconsin proposes an order to create ch. PSC 128

relating to the siting of wind energy systems.

REPORT TO THE LEGISLATURE .

The Report to the Legislature is set forth as Attachment A.

FISCAL ESTIMATE

Fiscal information is included as Attachment B.

EFFECTIVE DATE

This rule shall take effect on the :firstday of the first month following publication in the

Wisconsin Administrative Register.

CONTACT PERSONS

Questions from the media may be directed to Teresa Weidemann-Smith at (608)

266-9600. Questions from small businesses may be directed to Anne Vandervort, Gas and

Energy Division at (608) 266-5814 or anne.vandervort@wisconsin.gov. Other questions

~.
regarding this matter should be directed to docket coordinator Deborah Erwin, at (608) 266-3905

or deborah.erwin@wisconsin.gov. Hearing or speech-impaired individuals may use the

,'lIt.r.T r $ t1 I .i . ' H un .Uti ,-It. _ JI, _ I . _&

Docket l-AC-231

commission's TTY number; if calling from Wisconsin use (800) 251-8345, ifcalling from

outside Wisconsin use (608) 267-1479.

The commission does not discriminate on the basis of disability in the provision of

programs, services, or employment. Any person with a disability who needs accommodations to

participate in this rulemaking or who needs to obtain this document in a different format should

contact the docket coordinator listed above.

Dated at Madison, Wisconsin,

-----=====~~~----~----~---------
By the Commission:

Secretary to the Commission

SJP;JMD:G:\RULES\ACTIVE\1·AC·23 1\Legislative Report\Final\Order Adopting Final Rules.doc

Attachments