By Amanda Durish Cook

A Wisconsin wildlife hospital’s dispute with American Transmission Co. over its “Grandfather Spruce” tree will go to trial after a judge this month denied the utility’s motion to dismiss the case.

Yvonne Wallace Blane and Steven Blane, founders of Fellow Mortals Wildlife Hospital in southeastern Wisconsin, filed the lawsuit in June against ATC after the company proposed to clear-cut a 50-foot easement into the 5-acre wildlife sanctuary for a 138-kV transmission line.

On Aug. 15, ATC’s motion to dismiss the case was denied by Walworth County Circuit Court, which also imposed a temporary restraining order preventing the company from cutting any trees or applying herbicides on the hospital’s property pending a four-day trial scheduled for Oct. 10.

Fellow Mortals’ lawyer Robert Kennedy, of law firm Rizzo & Diersen in Kenosha, said he plans to argue that the 1970 easement — between the property’s previous owners and ATC predecessor Wisconsin Power and Light — is ambiguous and intends that trees should be cut only if ATC’s lines are in danger.

‘Tough Case’

“We have a very tough case ahead because in one interpretation, we have a 50-year-old easement that does state that ATC can cut down any trees they want,” Kennedy said. “Our argument is the trees do not pose a threat.”

Kennedy said if ATC is allowed to clear-cut, it’s “very likely” that Fellow Mortals would have to shut down the sanctuary.

“ATC does not think Fellow Mortals is unique enough to warrant an exception, yet wildlife rehabilitation itself is an endangered resource,” said Yvonne Blane, who first opened the hospital with her husband, Steven, from their home in the mid-1980s before selecting the current location in 1994.

According to Blane, there were 229 licensed wildlife rehabilitators in Wisconsin in 2001; today there are 110. “Honestly, there aren’t a whole lot of wildlife hospitals like us left,” Blane said.

Blane said Fellow Mortals’ acreage used to be part of a farm that was split up following a house fire. “That simple farmer signed that easement so long ago because he had a kind heart. I don’t think he ever dreamed this would have happened,” she said. “I don’t think people think about easements, and this is a cautionary tale. Never ever find out later what contracts are tied to your property.”

Blane said she receives a letter from ATC “every few years” notifying them of trimming. Near the first of the year, Blane said she received another letter and assumed it was for routine trimming. “We worked with them in the past, and they’ve always been great,” she said.

However, Blane said she woke up one morning in February to see the area partitioned off with orange tape and blue X’s spray-painted on several trees.

“It’s a tremendous amount of wildlife habitat that they could be destroying,” said Kennedy, who first came across the hospital years ago when he brought in two orphaned woodchuck cubs.

Vegetation Management Plan

ATC says its vegetation management plan will minimize service interruptions and create access for maintenance, and that pruning trees, as has been done in the past, is less efficient than cutting the tall-growing vegetation on a regular rotation.

The company, which spoke to local media earlier in the dispute, is no longer commenting because of the litigation. Spokesperson Alissa Braatz would only say that the company is “removing all incompatible vegetation from the easement area for safety and reliability purposes.”

The Blanes say that mature trees and dense undergrowth on the easement are necessary to provide the animals a buffer against wind, snow and noise from the adjacent road.

They also say they are willing to pay for trimming. An estimated 100-year-old Norway spruce, or “Grandfather Spruce” as Fellow Mortals staff refer to it, has been periodically trimmed for the nearly 50 years the easement has been in place, most recently in 2009.

“The idea is to keep these animals segregated from humans as much as possible,” Kennedy said.

The Blanes posted photos on Facebook to show the spruce in winter, when it “alone buffers the wind and snow and noise and provides screening and privacy” for the wildlife. There is additional cover from young walnut trees and other vegetation “during the busy summer months, when traffic on rural Palmer Road is nearly constant,” they wrote.

Hawks, Woodchucks and Deer

Unlike other animal rescue facilities that transfer wildlife elsewhere for care and rehabilitation, Fellow Mortals keeps its animals from the time they are admitted to when they’re released. Over the years, its patient list has included owls, hawks, rabbits, woodchucks, beavers and deer. The Blanes and their small staff have treated 1,400 animals so far in 2016.

Blane said the hospital treats about five large birds per year, including cranes that are admitted with leg fractures from colliding with transmission lines. She said the hospital has spent about $25,000 in donations so far on the case, and she regrets it can’t be spent on the “hundreds” of animals currently in the hospital’s care.

“We bought [the property] for the trees and the location,” Blane said. “Everything has been built around the property we chose. We were offered other property for free and turned it down. We created a very special place here that we thought would be around for a long time.”

Room for Settlement?

The couple argues that no power interruption incidents have ever occurred on their premises.

According to the Blanes, the spruce was recently examined by a certified master arborist and given a low risk of falling. Kennedy said he is prepared to call on a tree expert who can testify the spruce is “solid as a rock” and any weather event that causes the tree to fall would also cause severe damage to ATC’s lines.

Their attorney says the only suggestion ATC has offered Fellow Mortals in the dispute is not much of a compromise: The company has offered to plant low-lying vegetation after the trees are removed. Kennedy says that is not an option.

“We would accept some trimming, but we have pictures of the clear-cutting they’ve done in other places. It looks like a Brontosaurus rampaged it,” he said.

“There’s no question that it’s more profitable for ATC to clear rather than trim periodically. If you clear-cut, you can wait 20 years before sending crews back out. But it’s a cost-saving measure on the backs of all these landowners with nice forested areas,” Kennedy said.

Town Weighs In

The hospital’s online petition protesting ATC’s plans has gathered more than 86,000 supporters, nearing their 90,000 goal. It also gained an ally in the town of Geneva, which has an ordinance that requires town approval for all tree cutting and sharply restricts clear-cutting.

“As I am sure you are also aware,” Town Attorney Richard W. Torhorst wrote in a June 9 letter to ATC, “the Federal Energy Regulatory Commission takes the position that best practices relating to vegetation management does not require clear-cutting along the right of way.”

ATC attorney Christopher Zibart fired back with a letter the following day saying that the company recognized the state Public Service Commission — and not the town — as having “the authority to regulate this core public utility function.”

Zibart also swatted away Torhorst’s reference to FERC, noting that ATC’s line X-55 is below FERC’s 200-kV voltage threshold.

“In any event, the FERC does not manage specific vegetation practices and has stated that it does not ‘mandate nor prohibit’ removal of trees,” Zibart continued. “Where, as here, the specific trees in the right of way are incompatible with the line (they will continue to grow back into the lines and would not likely survive whatever ‘trimming’ could be done), it is best to remove them.”

The town attorney acknowledged that the town’s ordinance does give public utilities an exemption from obtaining a permit for tree trimming, but he said ATC is “not exempt from the prohibition against clear-cutting,” which allows exceptions only for residential properties.

‘Positive Balance’

ATC’s Braatz told local website MyWalworthCounty.com in June that the company hopes to reach a settlement that would include “compatible vegetation and fencing to help create the privacy and noise buffering that they desire.” The company has a Web page illustrating the low-lying plants it recommends for rights of way.

“We believe this would accomplish a positive balance between ATC’s responsibility for ensuring safe and reliable electric service and the Fellow Mortals’ compassion and commitment for healing wildlife,” she said.

“I think what ATC is doing is unethical and not community-minded, and I think there are employees in the company who are uncomfortable with how far this has gone,” Blane said. “I don’t know why it’s so important for ATC to be right except they might be afraid that this is going to set a precedent.

“The voltage has remained the same. The poles have remained the same. The only thing that’s changed is ATC’s policy.”