Wisconsin AG in Lawfare Battle With Farmers Over Water Dispute

Wisconsin Attorney General Josh Kaul, with the blessing of the Wisconsin Department of Natural Resources, is embroiled in a legal dispute with the state’s farmers over the issue of high-capacity wells. Kaul’s move against the farmers is yet another administrative power grab that denies sovereign rights to citizens.

What’s worse is this lawfare asserts government privilege in refusing to release documents that would incriminate itself — how incriminating!

The specific questions in that dispute are whether Wisconsin farmers can use high-capacity wells (wells that can draw more than 100,000 gallons per day) and under what conditions. Access to high-capacity wells is essential during drought conditions and can make a difference between farmers’ prosperity or poverty.

The Wisconsin legislature passed a series of laws that define the conditions under which the DNR can grant or deny permits for the construction and operation of high-capacity wells. Small towns in Wisconsin also utilize high-capacity wells and would be affected by laws that the attorney general seeks to avoid protections.

Wisconsin Senate Oks High-Capacity Wells Bill

Kaul seeks to legislate stewardship of Wisconsin’s water and its environmental impacts, in favor of giving the DNR the power to impose non-legislative conditions on Wisconsin’s citizens.

When Wisconsin goes to the polls, its citizens need to think of the bigger picture that affects life, liberty, and the pursuit of happiness. They have to decide whether or not an unelected state agency, such as the DNR, has the right to wield power through unchecked lawmaking.

As government power comes from the consent of the governed, Kaul has no right to reverse the state’s legal position in the middle of an ongoing lawsuit.

The Wisconsin Department of Justice has refused to turn over documents that would shed light on its decision to change legal positions, claiming attorney-client privilege. 

That privilege can also be used inappropriately to shield government actors from embarrassment and scrutiny, doing an end-run around the open-records laws — to hold government actors accountable and to prevent them from abusing their power.

When asked to identify the client who claimed the privilege, the DOJ responded that the DOJ itself was the client. 

In other words, the DOJ claimed the right to refuse open-records requests on behalf of itself. It’s like the constitution “pleading the Fifth” on itself, to itself. If the DOJ is its own client and can assert a privilege to avoid turning over documents, there is little (other than judicial challenges) stopping it from skirting Wisconsin’s open records laws, according to a report in the National Review.

Even if Kaul is motivated by good intent, the road to Hell is paved with good intentions. Legislature reigns supreme over bureaucracy every time.


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