Rhinelander, WI

Site last updated: Thursday, July 29, 2004

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Judge wants parties to negotiate alleged contamination case

Daily News Staff

A judge is urging the parties in a case involving the alleged contamination of property adjacent to the Wisconsin River to attempt to resolve the matter without a trial.

Judge Robert E. Kinney told attorneys for the state of Wisconsin and other defendants, as well as the attorney representing Bill and Jerri Osberg, to sit down and attempt to mediate their dispute.

At issue are contaminated lands near the Wisconsin River.

According to a lawsuit filed last year, the Osbergs are claiming that runoff from the Highway 8 West bypass project contaminated their property in 2002. It has since been determined that wildlife habitat in the Wisconsin River has also been compromised by the runoff.

According to their attorneys, Richard Sommer and William Schroeder, the plaintiffs are asking for approximately $3 million in damages for what happened to their land.

They have also asked the court to rule the state's actions constitute a "taking" of their property.

Kinney declined to rule on that motion Wednesday. He explained "takings" cases are resolved through court trials during which judges hear testimony. He also said the burden of proof in a takings case is extraordinarily high.

To prove their case the Osbergs would have to show evidence they have been deprived of all use of their property, he said.

Kinney indicated he would like the parties to try mediation in the hope of either trimming the number of defendants attached to the case or resolving the case in its entirety.

Currently, there are approximately eight defendants other than the State of Wisconsin involved. The other defendants are primarily contractors and sub-contractors who worked on the highway project.

The defendants indicated they are willing to try mediation but first asked the court to instruct the plaintiffs to come up with a settlement offer backed up by proof of damages.

Several attorneys expressed frustration with not knowing how much money might be necessary to resolve the case. One attorney, John Runde, claimed the Osbergs' property is valued at approximately $400,000 and wondered how the defendants calculated their damages in million dollar sums.

Kinney ultimately agreed it would help the process if the Osbergs made a firm offer, supported by proof, two weeks in advance of the mediation hearing in August. The mediation will be conducted by a Wausau attorney.

If the mediation is unsuccessful Kinney said he likely would schedule two trials in this case. One trial would be to a jury on the issue of whether the state, or anyone else, was negligent in causing the pollution.

The second trial would be to the court on the takings issue.

He also set a date for summary judgment hearing. That hearing will be held, barring any earlier settlement of the case, on October 26.

Also Wednesday Kinney declined to hear testimony on whether the state's plan to remediate the damaged land is working. Despite the plaintiffs' insistence that the state's remediation plan is a disaster that's exacerbated the damage to the property, Kinney said the state could continue its work to shore up the area.

He also rejected the plaintiff's claim that the state's attorney, Assistant Attorney General Monica Burkert Brist, engaged in ex parte communication with him when she sent him an update letter on the case.

Kinney said he doesn't like to "litigate cases through the mail" but found nothing improper about Burkert Brist's letter.

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