DNR Opposes RKLD Motion for a Surreply

While there was discussion at the close of the hearing concerning the opportunity of the Joint Petitioner's to file a motion for the right to file surreply briefs, we respectfully object to the filing of additional briefs.

The Department has adopted administrative rules in Chapter NR 2 relating to Procedure and Practice before the DNR. NR 2.18, Wis. Adm. Code, provides, relative to briefs, that "The party or parties having the burden of proof shall file the first brief. Other parties may then file response briefs, which may be replied to." This is the protocol that has been followed here, and it reflects the normal protocol for the party with the burden of proof to file the initial brief and to file the final brief.

While the Department understands that Judge Coleman indicated that he would entertain this Motion, we urge you to deny it. There is no showing that there is a need for additional briefing here. The issues involved and the contentious nature of this proceeding would provide fodder for argument and counterargument for the foreseeable future. In dealing with cases such as this for 30 years, I have never been involved in a case where there have been additional rounds of brief.

As the party with the burden of proof, if you were to grant this motion, we would need to consider requesting leave to file a final brief in response to their surreply brief. In the interest of judicial and administrative economy, we urge you to deny this request.

Thank you for your consideration of this.

P Michael J. Cain
Staff Attorney
Bureau of Legal Services
Wisconsin Department of Natural Resources