$12,500 fine possible-placing culvert w/o a permit 2

[Scheer772]

I own property in Northern Wi.that has an old abandoned highway running through it. At least 35 years ago someone,either my grandfather or uncle, placed a black plastic culvert under the road to reduce flooding and erosion.The local DNR issused a citation on 11/11/2010 for placing 'new' plastic culverts on the bed of a navigable stream without required depar
tment permit and in violation of state laws.

Questions:

1.Were there laws in place 30+ years ago that required us to get a permit?
2.Does anyone know what kind of attorney I should hire to fight this fine?
3.Can they require me to get a new permit after the fact?

 

[bimr]

Pipe manufacturers are generally required to accurately identify their pipe both for internal record-keeping purposes, and for their customers. They are also required to mark these pipes with certain identification markings. This pipe mark provides identity and traceability for each pipe, thus enabling the manufacturer and the end-user to determine the manufacturing origin of the pipe.

Data that is generally marked on the outside of the pipe includes:
• Manufacturer
• Specification
• Compatible Standards
• Specified Dimensions
• Grade and Class
• Product Specification Level
• Process of Manufacture
• Test Pressure

To determine if the r/w was abandoned, you will need to do a property search at the local county assessor's office.

 

[fattdad]

write a letter of explanation/frustration to your governor's office. Include your transcription of events and attach the recent letter of violation. Explain just how illogical this "violation" appears for work that was done 35 years ago and your reluctance to pay a fine or take action to correct some perceived "defect" when conditons don't make sense.

You can worry about lawyers and regulations if you want to, but as a landowner, you deserve an explanation that you can understand.

Don't get defensive or frustrated, just remain calm and ask the governor's office for clarification.

It'll trickle down, but it'll have to pass through the DNR's cheif en route.

Just one way to approach this situation, which from reading this thread, doesn't make sense at all to me either!

f-d

¡papá gordo ain’t no madre flaca!

 

[zebco]

Concerning roadway abandonments: I work for a DOT. Typically when we abandon a roadway; we are in fact only abandoning maintenance. The road will always still exist, but we no longer have any interest in it. In my state, the local county commissioners are the governing body that can declare a road to no longer be a road. Also, typically my state has a right of way but does not actually own the property fee simple. You may want to check into the actual ownership and proper abandonment issues. It may still be a road.

 

[BigInch]

True. Even with no road surface left, the right-of-way and anything crossing it may still be technically subject to the same requirements.

 

[3feethighandrising]

I would claim that I knew nothing about the installation of the culvert. The fine is for "installation and maintenance of the culvert" and not ownership of an already installed in place culvert. Leave it to them to prove you either installed it, maintained it, or even knew about it. Unless they can prove that, you have not violated any ordinance.

In this case passive acceptance means nothing as it would preclude that you knew about its existance and the laws and chose to leave it in place. That would be very hard to prove in a court of law. If there is a law requiring you to actively search and decomission all such culverts found, then doing nothing is passive acceptance.

 

[bimr]

3feethighandrising, your arguement will not stand the light of day and is without merit according to Wisconsin case law. Read the case that was linked above.

"In the context of Wis. Stat. §30.123, “maintain” is not limited to actively performing maintenance but also includes
passively allowing the culvert to continue in existence."

http://dha.state.wi.us/home/Decisions/DNR/2002/3-NE-01-454.pdf

The case in this link is for exactly the same type of culvert situation.

Of course you can subcribe to the saying that lawyers sometimes use, don't tell me what the law is, tell me who the judge is.

 

[Scheer772]

Bimr,
The culverts are buried. The only way to get the info you mentioned would be to dig up the culverts. Will this possibly result in another fine? Is there any other way to accurately age the pipes without digging them up.

I've read that the WDNR should work with the property owner to find reasonable oost effective solutions.In this case the first hint of a problem was the recept of a citation(s).

 

[bimr]

You may be able to resolve the problem without a fine or court case. Request a meeting with the DNR, state the circumstances of your case, and then request how you can resolve the issue. If you are not sure what they want you to do, request the DNR to put it in a letter to you.

My personal opinion is that I would not get an attorney involved unless I was going to court.

 

[fattdad]

and again, I say, "write a good letter to the governor's office." You'll get your DNR meeting and the governor's office will know that it's taking place.

Not kidding.

f-d

¡papá gordo ain’t no madre flaca!

 

[cvg]

cooler heads prevail. I would not write any letters to the governor or hire an attorney until you have exhausted your efforts to try and work with DNR. Going over their heads will not make things go smoother for anybody. You need to show your good faith effort to work this out which by the way can work to your favor later on if you do go to court.

 

[3feethighandrising]

To be guilty of "passive acceptance" they would have to prove that you knew of its existance before hand. Without proving this, I don't see how they can prove you accepted the existance and functionality of the existing culvert. Unless, of course, you are clearly benefitting from the use of the culvert (it is visible from your house or driveway).

In the previous case cited, the owner regularly used and benefited from the culvert (bridge) that was installed without a permit and the owner clearly knew of its existance, function, and condition. The laws and statutes in the example referenced also refer to bridge structures (including culverts) over navigable waters.

I would reply to their $12,000 fine and letter stating that you did not know about the existance of the culvert, but you do now, and want to apply for the correct DNR permit to fill the entrance of the culvert in and abandon it in place. Since you are now aware of the culvert, you are now required to take action. Not doing so, would be passive acceptance.

Before contacting a lawyer, I would first see what DNR would require to abandon the culvert in place using the proper permit. If they refuse to remove the fine, I would get legal counsel.

 

[bimr]

"To be guilty of "passive acceptance" they would have to prove that you knew of its existance before hand."

Black's Law Dictionary 25 (8th ed. 2004), defines "acquiescence" as "[a] person's tacit or passive acceptance; implied consent to an act."

Tacit or passive conduct that implies agreement or consent. For example, if one makes a statement and another is silent when an objection should be forthcoming, the second person’s acquiescence to the statement may be inferred.


"If there is a law requiring you to actively search and decomission all such culverts found, then doing nothing is passive acceptance."

Generally speaking, ignorance of the law is no defense.

 

[ptmoss]

..."They have you on the "maintain". It will not matter when it was built."...

Not a chance. I don't live in WI, don't know a single law in WI. But if what you say is true then that puts every single driveway, private road, commercial/industrial site etc. that has a stream crossing built before the law came into effect in violation and subject to such a fine or other legal action.

Are you really saying that?

 

[bimr]

I am not making up a legal argument. I am just reporting what happened in a similar case. Before you comment, thoroughly read the case.

"In the context of Wis. Stat. §30.123, "maintain" is not limited to actively performing maintenance but also includes passively allowing the culvert to continue in existence."

The quoted passage is copied straight from a similar case.

http://dha.state.wi.us/home/Decisions/DNR/2002/3-NE-01-454.pdf

If one "thinks" the law should be interpreted differently, one can always argue in court against the law. However, you end up paying your own legal fees to do it and it is usually not worth your while to pursue it. In the US legal system for the majority of the cases, you will pay your own legal fees whether you win or lose a case.

You may even win in court. That is the basis of the attorney saying, "Don't tell me what the law is, tell me who the judge is."

 

[ptmoss]

OK, I read it. Doesn't really change how I feel. I think (uh-oh, here I go..) if the Millers had been able to show clearly the culverts pre-dated the law or even if it looked as such to the DNR then it never would have gone to court. Just my opinion though.

But I do agree the OP would do well to heed the outcome of that case because it doesn't sound like he can prove his culvert was installed prior to the enactment of the law.

One thing I didn't catch though was how big the stream is that the culvert (culverts? is there multiple pipes crossing?) that started this thread is crossing. DNR apparently said it is navigable, which doesn't seem to need to be too big or too deep to be claimed as navigable, but how big is it?

 

[Scheer772]

The statute does provide for exemptions, which I will argue made it unncessary to get a permit. The black pipes replaced culverts that were crushed by a loggers truck.These black pipes were placed 20-25 years ago WAG.I understand there is info on the pipe that will provide a date of manufacture.

I called and left a message with the DNR last week, no return call. I then e-mailed the DNR requesting a sit down, no reply yet. I did cc the Regional Director of the DNR as well as the governors office. My hearing is next Tuesday @ 1:30pm.

I feel pretty confident I'd win in court, but would prefer not to incur the expense.

The stream is not navigable by a common man's definition, but is according to the DNR'S definition.

Wish me luck.

 

[ptmoss]

Good Luck!!

 

[Scheer772]

HELP AGAIN. I have identified the manufacturer of pipe it's Prinsco Inc. out of Willmar Mn. To prove my innocence I must proof the date of manufacture. I cannot find a date anywhere on pipe. It says 18" heavy duty, there's some AAHSTO and ASTM marks but no date. I called Co, they aren't any help. Where would the date be? HELP. Court is fast approaching Please respond ASAP

 

[cvg]

from the yahoo search:

Prinsco - Manufacturers of GOLDFLO® and ECOFLO® HDPE ...
Prinsco, Inc. has been providing water management solutions for the agricultural, construction, golf, and landscaping industries since 1975.

http://www.prinsco.com

- Cached

 

[Erdbau]

Some plastic products have a series of imprints, circles with tick marks around them like a clock and an arrow pointing to one of the numbers. The numbers are a code to the manufacture date. I have no idea if these are found on plastic culverts, though. You would need to interpret the code, too, which might be tough if the manufacturer hasn't been of much help already.