RKLD Supports Cause for a Surreply Brief

Dear Judge Coleman,

I am writing on behalf of the Petitioners in response to Attorney Cain's email opposing the our request for leave to file a brief in response to the reply briefs filed by the Department and Attorney Sweeney last Friday.

This hearing deviates from the typical in many respects. The entire proceeding was precipitated by the Rock-Koshkonong Lake District's petition for a modification in the 1991 water level order. Because it issued a proposed amended order, the Department has the burden of proof in this case, even though its proposeod order does not materially change the current order.

The Department's brief-in-chief consists of a litany of its witnesses testimony in support of its current order. The Petitioner's response brief raises significant legal issues not addressed in DNR's brief. The Department's reply responds to those arguments, using arguments and citing authorities raised only in the reply brief. The District has had no opportunity to respond to those arguments. We anticipated that this could occur and the possible need for a surreply brief was discussed at the close of the hearing.

With due respect to the points made by Mr. Cain, we believe the arguments he has raised warrant response by the Petitioners and understood that opportunity would be afforded to us if needed. We have proposed a short turnaround time for the brief and would be willing to limit its length as you see fit.

But we do not accept Mr. Cain's view that his legal arguments should stand without a response.

Thank you for your consideration.
William P. O'Connor