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Are frac sand miners failing to check for rare butterfly? Jan. 31, 2012

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View locations of sand deposits, frac sand mining operations and the Karner blue butterfly range. Click the image below to open a larger version.

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How Unimin dealt with its Karner blues

More reading

Hydrofrac sand mining: The resource and the issues, October 2011. Bruce Brown, senior geologist for the Wisconsin Geological and Natural History Survey.

Wisconsin DNR’s Karner blue butterfly page. Includes county maps of the butterfly’s high probability range.

U.S. Fish and Wildlife Service’s Karner blue butterfly main page. Also, a page for applicants or consultants to learn what federally listed, proposed and candidate species may be are in their project area and how to analyze whether their project may affect such species

Sand mining surges in Wisconsin, July 31, 2011. Wisconsin Center for Investigative Journalism.

Silica sand page at the Wisconsin Natural History and Geological Survey. Recently published fact sheet on frac sand, county maps and geological reports.

Contacts

Tom Woletz, DNR point person on frac sand: thomas.woletz@wisconsin.gov

Dave Lentz or Jenny Bardeen, Wisconsin Department of Natural Resources Karner blue habitat conservation plan, david.lentz@wisconsin.gov or jennifer.bardeen@wisconsin.gov

Cathy Carnes, U.S. Fish and Wildlife Service endangered species coordinator: cathy_carnes@fws.gov

Contact Kate Golden at kgolden@wisconsinwatch.org. The nonprofit and nonpartisan Center (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Spectrum Brands is moving its headquarters from Madison to Middleton. M.P. King/Wisconsin State Journal

By Bill Lueders
Wisconsin Center for Investigative Journalism

Spectrum Brands began its successful quest for a $4 million award from the state without revealing its identity or that it was already based in Wisconsin, public records show.

Initial overtures were made by Harry J. Joseph, an Atlanta-based real estate consultant. Joseph did not disclose which company he represented when he asked the state in January 2011 “what incentives might be available to our client should they decide to consolidate in Wisconsin.”

Emails obtained through an open records request by WTDY Radio in Madison and shared with the Wisconsin Center for Investigative Journalism show that Joseph suggested that the backlash over Wisconsin Gov. Scott Walker’s budget repair bill made his unidentified client reluctant to pick Madison — where it was, in fact, already located.

“I am concerned (that) the recent protests and ‘unrest’ occurring in Madison and splashed all over the national news could have a detrimental impact on my client’s interest in choosing Madison as its office consolidation location,” Joseph wrote in a Feb. 21 email. “You may recall we were evaluating Des Moines, western suburbs of Chicago, and Milwaukee as our other alternatives.”

Joseph, the president of Galaxy Partners Inc., asked how state officials could help “incent my client to look past this apparent community discord.”

Middleton move not part of deal

Last week, Spectrum announced plans to close its Madison headquarters and relocate to a new facility in nearby Middleton. The company said it had seriously considered moving its offices and Remington operations to Florida, but decided against this after the award was approved.

Paul Jadin, CEO of the Wisconsin Economic Development Corp., which awarded the $4 million incentive, said in an interview Tuesday that he first learned of Spectrum’s plan to relocate to Middleton from the company’s announcement. This move was “not a part of our dialogue.”

Joseph, in an interview, said his communications with the state were “cleared by the client,” but declined to discuss specifics, deferring to Spectrum spokesman Dave Prichard. But Joseph did say he was not a party to the company’s evaluation of a Florida move, which is why he did not name this potential site along with Des Moines and the other alternatives.

Prichard declined to comment on Joseph’s representations regarding unrest in Madison. As for Joseph’s list of site alternatives, he said, “I have no idea whether the locations he mentioned were inclusive or just examples of places we were considering.”

Joseph said his firm advises corporate clients across the nation, and that it’s common practice for initial overtures regarding site selection to be couched in confidentiality. “We didn’t want to mislead the state, nor our client, and get everybody unnecessarily excited until it became clear both parties had an interest,” he explained.

But WEDC (formerly the state Commerce Department) was apparently misled, believing the company was considering relocating, not just remaining. A Feb. 22 email between state staffers referred to “a site search to encourage the client to establish in Wisconsin.”

Jadin said the state learned the company’s identity in mid-March, when an application for assistance was submitted. He would “much prefer” that the company had made itself known from the start, but said the way it did proceed, in hiring a real-estate consultant, suggests it was serious about relocating out of state.

Spectrum Brands includes Rayovac batteries, Remington shavers, Black & Decker appliances and George Foreman grills. It  has been headquartered in Madison for all but six years since 1985. The company has battery plants in Fennimore and Portage and a returns center in DeForest. Prichard said the company has “$100 million a year of positive economic impact in the state.”

WEDC agreed to give the company $4 million in exchange for its promise to keep its 470 existing Dane County employees through Sept. 30, 2016, and invest $40 million in its Wisconsin operations by that time. If it fails to fulfill these requirements, it must pay back the $4 million with interest. Otherwise, it owes nothing beyond an $80,000 origination fee.

Incentives to stay put

Spectrum has said it plans to add 60 to 70 new jobs in Wisconsin, a prospect raised by Joseph in his exchanges with Kathleen Heady, a business and industry development manager at WEDC. But the agreement itself does not require Spectrum to add jobs. “This was just a straight retention,” WEDC spokesman Tom Thieding said.

In May, Joseph forwarded two articles to Heady about other states that have given cash to major corporations to keep them in-state. One, from Crain’s Chicago Business in Illinois, was headlined, “Motorola Mobility gets $100-mil. state incentive to stay put.”

Heady and other WEDC officials met with Joseph and arranged a meeting between company officials and Walker. Spectrum is usually referred to in the correspondence by a confidential code term, Project Infrared. Representing the company was attorney Raymond Carey of Foley & Lardner.

On Aug. 25, Carey wrote Heady to raise a new issue, asking “to explore whether this could be considered a grant, rather than a loan, but still keep the basic provisions in place, including the pay-back requirements (in case the deliverables are not met).”

This drew a cool response from Brenda Hicks-Sorensen, WEDC’s vice president of economic and community development.

“I appreciate his request but I am struggling with how to make this type of investment a grant versus a loan,” she wrote in an email. “We have talked for weeks … about eliminating forgivable loans and this grant is even tougher to swallow.” Her initial reaction was to recommend keeping it a loan.

Heady subsequently asked Carey what his client thought about calling it an “award” instead. His response: “Yes, and it appears everyone was consulting the same thesaurus because they recommended using the word ‘award’ too.”

The agreement for the $4 million award was signed on Nov. 9 and announced Nov. 29.

WEDC’s Jadin said the change in terminology did not alter the terms of the agreement, adding that this was “not the first time a company has said that, as part of our internal accounting, we would prefer that you would treat this as an award and not a loan.”

Bill Lueders is the Money and Politics Project director at the Wisconsin Center for Investigative Journalism. The project, a partnership of the Center and MapLight, is supported by the Open Society Institute.

The nonprofit and nonpartisan Center (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Ricardo Lisade waits to be fingerprinted on a bus at the Toussaint Louverture International Airport in Port-au-Prince, Haiti the morning of his arrival on Sep. 13, 2011. Jacob Kushner/Wisconsin Center for Investigative Journalism

By Jacob Kushner

PORT-AU-PRINCE, Haiti – The United States this year has deported more than 250 Haitians, half of whom were jailed without charges in facilities so filthy they pose life-threatening health risks.

Some Haitians faced lengthy confinement in U.S. immigration facilities before the deportations. Officials held Chicago resident Ricardo Lisade in a Kenosha, Wis. detention center for five months before deporting him, and Haitian authorities then placed him on probation without charging him with a crime.

An investigation by the nonprofit Florida Center for Investigative Reporting found evidence that the Obama administration has not followed its own policy of seeking alternatives to deportation when there are serious medical and humanitarian concerns.

One deportee who arrived in April suffered from asthma, hypertension, diabetes, bipolar disorder, post-traumatic stress disorder and head trauma, among other ailments. That same month, the U.S. government deported a mentally ill immigrant whose psychiatric medications were lost by Haitian authorities after his first day in jail.

“What’s distinct about the situation in Haiti is that, unlike in other countries, people are immediately jailed, and the conditions in Haitian jails are condemned universally for violating human rights,” said Rebecca Sharpless, director of the University of Miami Law School Immigration Clinic, which helps immigrants appeal deportation orders.

The health risks for incarcerated deportees have increased significantly since October 2010, the beginning of a cholera outbreak that has infected more than 470,000 people and killed 6,500, including some prisoners.

International health experts say deportees in Haiti’s jails are at risk of contracting cholera, which can spread rapidly in overcrowded cells that lack clean water, soap and waste disposal. Once exposed to cholera, victims can die in less than 24 hours. One deportee has already died — two days after he was released from detention in a Haitian jail cell where he became stricken with cholera-like symptoms.

Haitian authorities told FCIR that they place approximately half of all deportees in jails to monitor what they term “serious criminals” — a largely arbitrary determination.

These detentions, which have lasted as long as 11 days, have occurred although the Haitian constitution bans the detention of anyone for more than 48 hours without appearing before a judge, and a United Nations treaty states that “no one shall be subjected to arbitrary arrest, detention or exile.”

‘Crisis has not gone away’

One day after the Jan. 12, 2010 earthquake destroyed much of Haiti’s capital, the U.S. government suspended deportations. Since then, the United Nations and the Inter-American Commission on Human Rights, an independent initiative of the Organization of American States mandated to promote and protect human rights among member nations, have lobbied countries against deportations due to worsening conditions in Haiti.

“The crisis has not gone away,” said Michel Forst, the U.N. independent expert on human rights, appointed by the U.N. Human Rights Council to examine and report on conditions in Haiti. “The most important help the international community can give to Haiti is to suspend the forced return of Haitians.”

Still, the Department of Homeland Security resumed deportations to Haiti on Jan. 20 —the same day the U.S. State Department issued a travel warning urging Americans to avoid Haiti due to health risks and lawlessness.

Immigration and Customs Enforcement officials said deportations to Haiti resumed because a U.S. Supreme Court decision required detainees to be released after 180 days. That requirement, they said, would have placed“some detained Haitian nationals with significant criminal records into U.S. communities, which in turn poses a significant threat to the American public.”

But FCIR found at least three deportees arriving in August and September were convicted of non-violent drug offenses, and three-quarters of all Haitian deportees in recent years had no criminal convictions at all, according to immigration records.

“The hypocrisy is stunning,” Sharpless said. “U.S. officials have known for a long time that it’s dangerous to send people back to jail in Haiti. They also knew that the cholera outbreak raised the stakes even higher because cholera and Haitian jails are a deadly combination. Yet they decided to resume deportations anyway.”

Held in Wisconsin

When U.S. immigration officials finally placed Chicago immigrant Lisade on a deportation flight to Haiti in September, he was eager to be released after spending most of the previous 17 months in immigration detention centers in Wisconsin, Illinois and Kentucky.

Lisade, 33, who was brought to the United States from Haiti at age 8 as a legal resident, amassed a criminal record in the Midwest that included a 1994 conviction for armed robbery and home invasion, a 1999 residential burglary, and a 2007 domestic violence conviction.

Ricardo Lisade, 33, was deported to Haiti in September after spending 17 months in and out of immigration detention centers in Wisconsin and other states. Jacob Kushner/Wisconsin Center for Investigative Journalism

But in March 2010, after completing a prison sentence, Lisade was surprised that instead of being allowed to return to his family in Chicago, U.S. Immigration and Customs Enforcement officials took him into custody. He was confined in a section of Kenosha County Jail reserved for ICE detainees, from which an immigration judge ordered Lisade deported to Haiti two months later.

Because the U.S. had temporarily stopped deporting people to Haiti due to the conditions after the January 2010 earthquake, Lisade spent the next five months in that Kenosha jail.

Immigration authorities released Lisade on extended supervision in August 2010 because a 2001 U.S. Supreme Court ruling forbids ICE from detaining immigrants with final orders of removal for more than six months in most cases.

In December 2010, Lisade was taken back into custody on the premise that his deportation to Haiti was imminent. On Jan. 20, ICE sent the first flight of deportees to Haiti since the earthquake. But Lisade would spend an additional eight and a half months in a Kentucky immigration center before his time came.

Key details of his case were confirmed for this report by an attorney with the nonprofit National Immigrant Justice Center in Illinois.

An unexpected homecoming

After officials finally deported Lisade to Haiti on Sept. 13, he was surprised when Haitian authorities placed him on 18 months of probation — even though he was not charged with a crime in Haiti. The probation requires Lisade to report weekly to a judicial police station to sign his name, and forbids him from obtaining a passport, visa or other travel documents until he successfully completes the period.

A flight carrying deportees from a Louisiana detention center arrives at Toussaint Louverture airport in Port-au-Prince on Sept. 13, 2011. Jacob Kushner/Florida Center for Investigative Reporting

Some deportees have no other form of identification in Haiti, meaning they cannot receive wire transfers from their family in the United States and risk being apprehended by Haitian police who routinely stop people and demand such identification. At the time he was interviewed, Lisade said he did not have any Haitian ID.

“I haven’t been on probation since I was a juvenile,” Lisade said the morning he arrived at the airport in Port-au-Prince. “Now I have to do another probation for a country where I never committed a crime? A country I left when I was eight years old? That doesn’t make no sense at all.”

The day of Lisade’s arrival, another deportee, longtime Chicago resident Samuel Durand, learned he would be immediately placed in “administrative detention” — meaning a Port-au-Prince jail.

Durand said he moved to the United States in 1996 with his mother and five siblings to join their father, a U.S. citizen and longtime Chicago cab driver. He grew up playing soccer in the Oak Park neighborhood West of Chicago and graduated from Oak Park and River Forest High School in 1999.

WATCH VIDEO: Samuel Durand’s story

On Dec. 14, 2006, Durand violently confronted a man he says scratched his car, and he was arrested later that day – one of about 20 times he was arrested in the United States, court records show.

Durand eventually was convicted of robbery, battery and marijuana manufacturing and delivery, according to court records. He was sentenced to four years in prison and served two before being ordered deported to Haiti due to his felony conviction and because his 10-year legal residence had expired.

“It is a shock to me because the country is not functioning … and the U.S. government is still sending people here,” Durand said.

But the bigger shock came when he arrived in Haiti expecting freedom, only to be placed in a 20-by-10 foot cell along with three other deportees and various Haitian prisoners.

“The holding cell holding like 15, 17 people in that little cell,” Durand said. “Ain’t nowhere to sleep, people sleeping on top of other people—the jail condition is not good at all.”

Dr. John May, president of Health Through Walls, a North Miami nonprofit organization that works to improve jail conditions in foreign nations, travels frequently to Haiti. He visited the facility where Durand was held one week before his arrival.

“This is what we see everywhere,” May said. “Tuberculosis would thrive in this environment, certainly skin conditions like scabies, which we see often. And most seriously and concerning in Haiti recently is cholera, and it would just take one person with cholera here and it would quickly spread to the others.”

Because there is no waste disposal, a shower stall and toilet fill with garbage and urine in the Pettionville jail cell on a day when five deportees were held there. Jacob Kushner/Florida Center for Investigative Reporting

Cholera is spread primarily through feces and can result in severe vomiting and diarrhea. “Any situation that doesn’t have a lot of good hygiene is a great setting for the spread of cholera, which is what we have here,” May said.

In January, 34-year-old deportee Wildrick Guerrier, whose Florida criminal record included convictions for battery and possession of a firearm, died from what doctors described as cholera-like symptoms two days after being released from the holding cell where he became ill — one of the same cells where deportees are incarcerated today.

When asked if detaining deportees in such conditions poses life-threatening health risks, Chairman of Haiti’s Commission in Charge of Deportees Pierre Wilner Casseus said only that deportees exhibiting symptoms of illness are released immediately.

“We don’t give them any medicine,” Casseus said, adding that the International Organization for Migration, which works to improve living conditions in Haiti, attends to the health needs of jailed deportees. But an IOM spokesperson said Haitian officials do not allow access to the deportees once they are in jail.

Medical care denied

Sometimes, jailhouse conditions in Haiti complicate existing medical problems, as they did for Jeff Dorne, a longtime Boston resident from Haiti diagnosed with paranoid schizophrenia. Dorne served six years in prison for a 2003 rape conviction in New Jersey, after which he was ordered deported by an immigration judge because his felony violated his legal permanent residency, which had also expired while he was in prison.

An Aug. 12, 2011, photo of the Petionville jail cell where some deportees are detained upon their arrival in Haiti. Jacob Kushner/Florida Center for Investigative Reporting

After he was deported in April, Haitian authorities immediately imprisoned him — without charge — in the same Petionville cell where Durand would later be held. Dorne’s illness required him to take four medications daily, so U.S. immigration officers sent a one-month supply of those prescriptions to Haiti’s judicial police. But jails in Haiti do not have medical personnel and Haitian police are not trained in basic medical care.

On Dorne’s first night in the Petionville jail in Port-au-Prince, the municipal police gave him the medication, and then, according to Dorne, held onto — or lost — the remaining pills.

“The prescription said every night. So Saturday night I asked the chief officer, ‘Can you get my medication for me?’ ” Dorne said. “They told me they can’t find it. Every day I asked them for it. After two, three days, I stopped asking.”

During his next few days in jail, Dorne said some of the symptoms that had subsided after he began psychiatric treatment in the New Jersey prison returned.

“I couldn’t sleep,” he said. “My hands started shaking.”

May, the doctor at Health Through Walls, said mentally ill inmates face grave risks because they are often unable to negotiate for themselves.

“A person who requires antipsychotic medications … could rapidly deteriorate without having them,” May said.

The police officer in charge of that jail said he was not familiar with Dorne’s case.

An FCIR review of statements made by federal immigration authorities after deportations resumed in January found evidence that ICE sometimes fails to abide by its policy involving Haitians with medical problems. An April 1 ICE memorandum explaining the decision to resume deportations said alternatives would be considered for medical and humanitarian purposes. Yet Haitians with documented medical problems continue to be deported from the United States.

The U.S. government deported Dorne, for example, three days after the Department of Justice documented his paranoid schizophrenia and the four psychiatric medications prescribed to him.

Ralph Celestin, 51, was deported to Haiti in April even though he suffers from numerous health ailements including asthma, diabetes and hypertension. He has not been convicted of a crime in the United States since a burglary convction in 1978. Jacob Kushner/Florida Center for Investigative Reporting

Deportee Ralph Celestin, 51, suffered from so many health problems that a list of his conditions and medications filled six pages of a New Jersey prison document. Despite his having asthma, hypertension and diabetes, ICE deported Celestin to Haiti on the same April flight as Dorne.

Immigration attorneys in the United States are fighting deportations of individual Haitian clients under the 1984 U.N. Convention Against Torture, which forbids governments from deporting people to countries where they will undergo “severe pain or suffering.” In April, a mentally ill Haitian immigrant in Miami had his deportation deferred on the grounds that the conditions in a Haitian jail could meet that standard in his case.

Deportee detentions in Haiti are well-documented, dating back to at least 1998, when deportees were placed in the dangerous National Penitentiary sometimes for months. In some instances, deportees bribed their way out of jail, though FCIR found no evidence that suggested corruption influences deportee detentions today.

The 2010 earthquake destroyed all but one of the government ministry buildings and killed an estimated 20 to 40 percent of civil servants. Today, Haiti’s judicial police must process hundreds of U.S. deportees annually with drastically fewer resources. Each time a deportee flight arrives, for example, routine identification procedures at the judicial police station stop, so the only functioning digital camera can be used to photograph the deportees.

Freedom roulette

On the morning a deportee flight arrives in Haiti, members of Haiti’s Commission in Charge of Deportees arrive at the airport grounds. They mingle with Haitian police officers, U.S. immigration officials and deportee advocates.

The commission includes representatives from four government ministries and the independent Office of Citizen Protection. Once the deportees have been transferred to the judicial police holding station, commission members decide who will go free — and who will be incarcerated.

The process is largely ad hoc. No written policy exists, and there is little consensus among members of the deportee commission about the primary purpose of the detentions.

Secretary of State for the Ministry of Public Security Aramick Louis said detentions are meant for deportees’ protection during the “vulnerable” transition to Haiti.

Frederic Leconte, the commissioner of Haiti’s judicial police, said the detentions allow the state time to understand each individual’s situation — even though the U.S. government provides detailed files on each deportee two weeks prior to arrival, and FCIR was unable to document any instances in which detained deportees were interviewed or even observed directly by officials.

Head of Haiti's Citizen Protection ministry, Florence Elie serves as an adjunct member of the Haitian comission that decides which arriving deportees will be freed and which will be detained. Jacob Kushner/Florida Center for Investigative Reporting

Haiti’s Citizen Protection chief Florence Elie, an adjunct member of the commission, said the detentions are meant to allow authorities “to get to know” the deportees.

“Whenever I have to make a choice between the welfare of the community against the welfare of one person, I have to be very careful,” Elie said. “These people who come to Haiti are a threat to the society.”

But Haitian law does not allow someone to be jailed based on the possibility he may commit a crime in the future. “This is what I fought against,” said Privat Precil, the director general of Haiti’s Ministry of Justice from 2002 to 2004. “It is just a police policy that is not legal under Haitian law.”

Length of the deportee detentions varies. The deportees who were incarcerated after arriving Aug. 9 spent seven days in jail. After FCIR questioned government officials about the length of the detentions later that month, the head of the deportee commission was replaced, and deportees on the following flight were released after three days – still plenty of time to risk exposure to cholera.

According to an April memo from ICE, deportees are prioritized “through the consideration of adverse factors, such as the severity, number of convictions, and dates since convictions, and balance these against any equities of the Haitian national, such as duration of residence in the United States, family ties, or significant medical issues.”

Barbara Gonzalez, ICE’s press secretary, said in an email that the agency would “prioritize those who pose the greatest threat to the community.”

But an FCIR review of ICE data shows the agency deported at least 2,684 non-criminal immigrants to Haiti from 2007 to 2010, and FCIR found three deportees who arrived in August and September whose criminal records included only non-violent offenses.

The Department of Homeland Security, the State Department and the White House did not respond to questions about FCIR’s findings.

Total deportations have risen over the past decade, with the Obama administration deporting 387,000 immigrants worldwide in the year beginning October 2009 — more than twice the number deported under President George W. Bush at the beginning of his term in the year starting October 2001.

As recently as 2008, 74 percent of all Haitian deportees did not have criminal convictions, according to ICE data. In the three months leading up to Haiti’s earthquake, 67 percent of deportees were non-criminals.

In August, Gonzalez was asked to provide a list of post-earthquake deportees’ convictions to support the agency’s claim that those deported since the earthquake would have posed a threat if released in the United States. After nearly four weeks without a response, a follow-up elicited this answer from Gonzalez: “We have nothing to add. Regards.”

Deportations came as surprise

Whatever conditions the United States used to justify halting deportations to Haiti had not changed by the time ICE sent the first flight in January, said Laura Raymond, international human rights associate for the Center for Constitutional Rights, a New York-based nonprofit organization dedicated to protecting constitutional rights.

“You look at what they said right after the earthquake when they suspended deportations; it cited conditions. The only thing that changed in Haiti between then and when they reinstated deportations was a cholera epidemic — things got much worse,” Raymond said.

Today, approximately 587,000 Haitians live in the United States. Although only 426 of them are estimated to live in Wisconsin, an additional 4,439 reside in Illinois, giving it the eighth largest Haitian population in the country.

For Bernadette Durand, the September deportation of her son, Samuel Durand, is nothing short of tragedy.

“Haiti isn’t good for people to live. They have sicknesses, cholera. People who leave here have gone back and gotten sick from the water. All bad things happen in Haiti,” Bernadette, 56, said in Creole from her Chicago home. She said her husband died in 2002 from an unknown cause, leaving her job as a hotel maid as the family’s primary source of income. She also cares part-time for her son’s five children.

“They’re growing up without their daddy,” said Durand’s brother, Jean Marc, 34. “He was a good father. He had a part-time job. Now sometime they cry that they want to see their daddy. It’s painful.”

The nonprofit and nonpartisan Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

This story was produced for WBEZ/Chicago Public Media “Front and Center,” a project about critical issues facing the Great Lakes region. The latest round of reports, launched in November, covers the Great Lakes’ role in the region’s economic future.

By Bill Lueders
Wisconsin Center for Investigative Journalism

Call it Bud Harris’ theory of environmental relativity. The professor emeritus of natural and applied sciences at the University of Wisconsin-Green Bay has found that when people look at the Bergstrom wetland, “They see what they want to see,” depending on their perspective.

For wetland experts like Harris, the little patch of land less than a mile down the road from the stadium that hosts the world champion Green Bay Packers, is a rare and valuable resource that provides environmental benefits while supporting a rich array of flora and fauna.

To others, importantly including members of the state Legislature, it’s an obstacle in the way of job creation, a sadly degraded patch of wasted opportunity.

During debate over this parcel on Feb. 2, ironically World Wetlands Day, one lawmaker called it “this puddle.” Another blamed it for depriving kids of the hot dogs that might otherwise be going into their macaroni and cheese. More on this later.

The Bergstrom property, next to a highway and in the shadow of Lambeau Field. Kate Golden/Wisconsin Center for Investigative Journalism

In the end, the Legislature’s Republican majority voted to exempt the Bergstrom wetland from the meddlesome reach of state bureaucrats. The bill they passed will let “less than three acres” of the parcel be filled, with no additional permits or process, so long as 1.5 acres of new wetlands are created for each acre affected.

Republican Gov. Scott Walker promptly signed it into law as Act 6 of 2011.

It was the same number as an earlier law giving Wisconsin what George Meyer, former head of the state Department of Natural Resources, calls “the strongest wetland protections in the country.”

Act 6 of 2001, which plugged a loophole in federal wetlands regulation created by a U.S. Supreme Court ruling, unanimously passed both houses of the state Legislature. The Wisconsin Wetlands Association and Wisconsin Realtors Association, in a self-proclaimed “unlikely partnership,” issued a joint press release heralding the measure.

What a difference a decade makes. During the Feb. 2 debate, state Sen. Dale Schultz, R-Richland Center, blasted the protections in place for the Bergstrom wetland, saying,“This situation is the poster child for what’s wrong with state policy and how it prevents development and the creation of jobs in this state.”

Walker evidently agrees. This fall, he called the Legislature into special session for a package of bills he called “Back to Work Wisconsin.” These included a proposed revamping of the state’s rules regarding wetlands preservation.

No details have yet been announced — the bill is still in drafting — but Walker has promised an “improved and simplified wetland permitting process” and to “achieve an overall increase in wetland acreage.”

The bill, which the governor labeled “Wetland and Habitat Restoration,” will likely make it easier for property owners to fill in wetlands deemed of marginal quality in exchange for mitigation — the creation of new wetlands of supposedly superior quality.

Whether you see this as good or bad — well, that depends on your perspective.

In the Green Bay area, according to Bud Harris, wetlands losses are estimated at 90 percent. Remaining wetlands are shown here in green and blue over satellite imagery. Click to open a larger version.

Wetlands serve critical environmental functions — from preventing flooding, to improving water quality, to providing wildlife habitat. But for much of the nation’s history, they were seen as wastelands, and filled in at will.

Wisconsin once had 10 million acres of wetlands, approximately 50 percent of which have been destroyed. Other Great Lakes states have fared even worse: Illinois, Indiana and Ohio have each divested between 85 and 90 percent of their original wetlands stock.

But the virtues of wetlands have gradually seeped into the nation’s consciousness. The Wisconsin Supreme Court, in a 1972 ruling, decreed that “swamps and wetlands serve a vital role in nature, are part of the balance of nature and are essential to the purity of water in our lakes and streams.”

In fact, the state’s wetlands are of national significance.

“Wisconsin produces a lot of ducks,” says Gildo Tori, public policy director of nonprofit Ducks Unlimited’s Great Lakes/Atlantic Region, based in Ann Arbor, Mich. He cites data showing that ducks banded in Wisconsin were shot by hunters in more than 25 other states, as well as a study that found waterfowl hunters nationally generate billions of dollars of economic activity and support tens of thousands of jobs that, notes Tori, “can’t be exported.”

In early 2001, the U.S. Supreme Court issued a decision that the Army Corps of Engineers interpreted as limiting its regulatory authority to wetlands contiguous to navigable waterways. That removed federal protections from isolated wetlands, about 20 percent of the state’s total.

The state DNR, anticipating this decision, compiled a list of potentially affected wetlands, which it made public. “The reaction was overwhelming,” recalls Meyer, the former agency chief. “People said, ‘Wait a minute. I like going there!’ ”

Meyer, now head of the Wisconsin Wildlife Federation, estimates that the resulting wetlands protection bill was backed by between two-thirds and three-fourths of state residents. Support was even greater in the state Legislature, where not a single lawmaker opposed it.

Courtesy of Tom Larson.

“It was something Wisconsin legislators agreed on,” reflects Tom Larson, vice president of legal and public affairs for the Wisconsin Realtors Association. But now he believes the law has failed to do as was hoped — “strike a balance between environmental protection and economic development and private property rights.”

One problem, says Larson, is that the current rules “don’t differentiate between different sizes and qualities of wetlands.” Thus “a small depression in farmland” may be afforded the same protections as a quality wetland.

Larson also believes property owners must go through too many hoops before they can seek permission to infill wetlands on condition that they create new ones.

Under current DNR rules, property owners must first consider “practicable alternatives,” which Larson says can include doing the project somewhere else or not at all. And then they must try to minimize wetland damage, like by scaling back the size of the project.

What the Realtors Association would like, says Larson, is for mitigation to be considered early in the process “if there is a net environmental benefit.” He believes it’s possible to create new wetlands that are as good or better than the ones they replace, but acknowledges that wetlands advocates think this is seldom true.

Predicts Larson, “We probably won’t ever agree on that.”

Erin O’Brien of the Wisconsin Wetlands Association, walking in a Madison urban wetland, calls the choice between jobs and wetlands preservation “a false dichotomy.” Kate Golden/Wisconsin Center for Investigative Journalism

Not good as gold

Erin O’Brien is the policy director for the Wisconsin Wetlands Association, a nonprofit group devoted to protecting the state’s remaining wetlands. It occupies a small office in downtown Madison, in a building with other environmental groups.

Wisconsin has a good track record when it comes to wetlands protection, says O’Brien: “The DNR and Army Corps of Engineers take their obligations seriously.” Thanks to major investments in wetlands restoration, in part through the Great Lakes Restoration Initiative, a federal action plan, Wisconsin is now “restoring more wetlands than we’re infilling.”

But O’Brien notes that, with five million acres of wetlands lost, “it’s going to be a long time before we’re anywhere near where we used to be.” And she’s worried about the inroads being made by “groups lobbying to relax standards” regarding wetlands.

“We’re the gold standard,” she says of Wisconsin. “And the gold standard is being chipped away.”

O’Brien calls the argument that low-quality wetlands can be readily replaced “a really good sales pitch.” But she’s not buying it: “A lot of the wetlands that are being restored these days are open water ponds, as opposed to historically intact systems.”

Some wetland types, like bogs and fens, cannot be recreated at all, says O’Brien. And while her group is not dead-set against infilling, when necessary, even the best-case scenario involves the loss of wetlands in their current location. “We should be maintaining wetlands right where they are.”

Moreover, environmentalists and developers disagree over what constitutes a worthy wetland.

“People will talk about how they support wetlands,” sighs O’Brien. “Then they’ll say, ‘But this wetland’s really a dog.’ ” More aggravating still, at least to her, is that the wetlands dismissed in this fashion were typically degraded by human activity.

A Madison sedge meadow, rare for an urban area, in November 2011. Animals may nest atop these tussocks in the spring. Kate Golden/Wisconsin Center for Investigative Journalism

O’Brien arranges a tour for reporters of Madison wetlands, including two within walking distance of each other on the city’s near east side.

The first wetland abuts Starkweather Creek, behind a gas station and an apartment complex. The parcel is dominated by reed canary grass, an invasive species. O’Brien says this is a wetland developers would, if they could, be clamoring to fill — because it’s already so degraded. And yet it still serves important functions — preventing flooding and helping purify water.

The second wetland, along a railroad track a few blocks away, also contains some reed canary grass. But here there are sedge tussocks — large clumps of vegetation with deep roots that draw from the groundwater, making it an extraordinary urban wetland.

What would it take to restore the first wetland to the quality of this second one? O’Brien shakes her head. That, she says, would be “next to impossible.”
WATCH AUDIO SLIDESHOW: Jobs or wetlands. Must we choose one? Erin

Bud Harris, professor emeritus of natural and applied sciences at the University of Wisconsin-Green Bay, is surrounded by an invasive species at a Green Bay wetland. Kate Golden/Wisconsin Center for Investigative Journalism

Functional value

The Bergstrom property acquired its name because the proposed developer is John Bergstrom, head of the state’s largest car dealership, based in nearby Neenah, Wisconsin. The entire parcel occupies 21 acres, including 11 acres that were filled in sometime between 1998 and 2002; it’s not clear by whom, or whether this was done legally.

Lambeau Field and a strip mall can be seen in the distance. Cars and trucks traverse the property on three sides, mostly heavily on Highway 41, a major highway. The most visible areas, along the disturbed periphery, have been taken over by a tall, billowy invasive called Phragmites, or common reed. In the right-of-way near Argonne Street, someone has discarded a car battery.

“I suspect to an average person it’s not all that attractive,” admits Harris as he walks the parcel’s perimeter, not willing to trespass, on an overcast October day. “People don’t see the functional value.”

Harris is one of three UW-Green Bay professors, to whom he ascribes a combined 60 years of relevant experience, who inspected the wetland with permission last year. In a memo to the Wisconsin Wetlands Association, the trio wrote: “To our knowledge few, if any, urban wetlands in the greater Green Bay area continue to provide this level of ecosystem services.”

Common reed, an invasive species, has taken over on the disturbed edges of the Bergstrom wetland. Yet many native plants remain; one DNR staffer wrote that it was one of the best urban wetlands in his tenure. Kate Golden/Wisconsin Center for Investigative Journalism

Part of this wetland’s value, explains Harris, is that it has survived, even after being severed from its watershed by human actions. “About 90 percent of the wetlands in this area are gone,” he says. “Some people continue to feel there are better uses.”

An application to fill in wetlands on the Bergstrom site was submitted to the state DNR on April 30, 2010. Shortly thereafter, DNR wildlife biologist Dick Nikolai visited the site and found that it contained sedges and rare plants, as well as sandhill cranes, mourning doves and woodcocks. “This is one of the best urban wetlands in my tenure and deserves to remain functional and intact,” he wrote in his report.

Water management specialist Jon Brand declined to approve the project, noting the wetland’s high functional value and the existence of a viable alternative, on property he described as “available.”

A a DNR higher-up nonetheless green-lighted the permit, which prompted the Wetlands Association to file for a contested case hearing to review this decision. The request was granted but the hearing never held.

And then, within a few days of taking office, Gov. Walker proposed a bill to let the Bergstrom project go forward. He called the current approval process by DNR professionals “kind of backwards,” explaining, “there should be more power in the hands of elected officials.”

Meyer, the former DNR chief, says the original bill “would have affected thousands of acres in Brown County.” In the end, its reach was narrowed to only the Bergstorm wetland. Meyer sees this as a positive sign of ongoing strong support for wetlands protection.

But, as he acknowledges, there is also growing political pressure for Wisconsin to amend its wetlands rules.

Wetlands vs. jobs?

In pushing to exempt the Bergstrom wetland earlier this year, GOP legislators framed the issue in terms of jobs versus excessive regulation. The developer had announced plans for a retail project, purportedly the mega-outlet Bass Pro Shops.

State Rep. Scott Krug, R-Wisconsin Rapids, chided opponents for “keeping job creation on the back burner in lieu of getting bureaucrats their lifetime achievement awards.” Others took this line of reasoning even further.

“Right now, as we speak, there’s a mom and there’s a dad somewhere in the Green Bay area,” intoned Rep. Joel Kleefisch, R-Oconomowoc. “And they’re sitting with their kids at the dinner table and they’re eating mac and cheese with ‘em. And there’s a mom and there’s a dad who wish that they could afford to put hot dogs in the mac and cheese, but they don’t have a job right now.”
LISTEN: Rep. Kleefisch on mac, cheese and jobs

Kleefisch, calling the state’s wetland rules “an obstacle in the way,” challenged his colleagues: “This body has the ability, tonight, each one of you have the ability to say, ‘We’re going to remove that obstacle so that your mom or your dad can have a job.’ ”

This site plan, approved by DNR in 2010, would fill 1.65 of 11 acres of wetland on the north side of the structure. Legislators exempted up to three acres of the site from wetlands laws, allowing the developer to escape a contested case hearing. Courtesy of Paul Kent. Click to view PDF.

By this time, serious questions had been raised about the claimed tie to Bass Pro Shops, a Missouri-based chain with 58 stores in 26 states and Canada. The company, whose customer base includes hunters and anglers, disclaimed any interest in destroying wetlands.

“We had one casual phone call from somebody on that property,” says spokesman Larry Whiteley, explaining the depth of his conservation-minded company’s involvement. “We didn’t know it was a wetland then.” And while a Wisconsin store remains possible, it likely won’t be on the Bergstrom site, “after the crucifixion we took for something we didn’t do.”

State Rep. Brett Hulsey, D-Madison, cracks that the furor has “created so much blowback the only business they’ll be able to locate there is a payday lender.” Paul Kent, an attorney for Bergstrom, says the plan is still to land “some kind of destination retail” at the site. But more than nine months after the exemption was granted, no development has occurred.

Walker, in calling for a special session that will include revisiting state wetlands rules, said his goal was to focus “like a laser beam” on job creation. That’s been met with skepticism by opposition Democrats, who note that the ongoing session has included bills on deer hunting rules, public school sex education, early morning alcohol sales and home self-defense.

Democrats also say Republicans seem more intent on pleasing special interests than creating jobs. GOP support for restrictions sought by the Realtors Association and others on siting wind turbines has led to the suspension or cancellation of five major wind energy projects which, the Wisconsin State Journal reported, would have provided “a relatively quick infusion of about $1.6 billion in economic development and almost 1,000 temporary, full-time jobs.”

While business interests backing changes in state wetlands policy have considerable clout (see graph), O’Brien calls the choice between jobs and wetlands preservation “a false dichotomy.” She argues that, under current law, “there are many development projects around the state that have been developed while also avoiding and minimizing the impacts to wetlands.”

Todd Ambs, formerly the DNR’s water division administrator, agrees: “I have yet to see any concrete evidence that the way we are protecting our wetland resources in Wisconsin has in any way harmed the business activities of the state.”

Data provided by the state DNR show that 87.5 percent of the more than 6,500 permits for wetland mitigation between 2002 and late September 2011 were approved. And the average time of processing fell from 135 days in 2003 to 30 days last year.

The Realtors Association’s Larson calls these numbers misleading, because they don’t count projects rebuffed earlier in the process. “Unfortunately,” he says, “many projects never move forward or are dramatically scaled back.”

Ambs, now president of the national River Network in Portland, Ore., bristles at this, saying “applicants that work with the department can often find a middle ground where they can complete the project and protect the environment.”

Beyond that, Ambs knows of no case “where wetland mitigation and human restoration of a wetland can adequately compensate for destroying a wetland that Mother Nature took 10,000 years to create.”

But such talk may not matter as much to Wisconsin lawmakers as the wishes of developers — as represented by that family in Green Bay, still waiting for those hot dogs.

Bill Lueders is the Money and Politics Project director at the Wisconsin Center for Investigative Journalism. The project, a partnership of the Center and Maplight.org, is supported by the Open Society Institute.

The nonprofit and nonpartisan Center (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio and the UW-Madison School of Journalism and Mass Communication and other news media. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

The Wisconsin milk board removed claims that dairy consumption could aid weight loss after the Wisconsin Center for Investigative Journalism began publishing stories examining the board’s nutritional advice to consumers.

Reaction Piece to Two-Day Series

What do scientists say about the Wisconsin Milk Marketing Board’s health claims about dairy? A two-day series produced in collaboration with a University of Wisconsin-Madison journalism class taught by Professor Deborah Blum.

• Sunday, Oct. 16: Marketing dairy to children
• Monday, Oct. 17: A claim that dairy aids weight loss
• Today: The milk board retreats from claims that consuming dairy products could aid weight loss

Fact-checking the milk board’s health claims

Some statements checked out. But the Center also found some claims unsupported by science, and some where most evidence came from industry-funded studies. Click the image above to view a pop-up gallery.

Table: Nature’s sports drink?

See the Center’s review of findings and funding sources from eight studies on milk as a sports beverage.

By Amy Karon
Wisconsin Center for Investigative Journalism

The Wisconsin Milk Marketing Board has retreated from claims that consuming dairy products could aid weight loss after some experts branded the statements “deceptive” and “discredited.”

The state-supervised board, which is funded by dairy farmers, removed multiple claims about dairy’s role in weight loss and weight maintenance from its website early this week after the Wisconsin Center for Investigative Journalism began publishing stories examining the board’s nutritional advice to consumers.

“Over the past few weeks we have reviewed some of the nutrition messages and have made some changes to closer align our weight control message with the healthy diet message,” Patrick Geoghegan, the board’s senior vice president for communications, wrote Tuesday night in an email interview.

The board’s weight loss claims had been on the website for at least eight months, since a University of Wisconsin-Madison journalism class began investigating the milk board in collaboration with the Center.

State law prohibits Wisconsin’s seven nonprofit agricultural marketing boards from making “false or unwarranted claims” about their products. The state Department of Agriculture, Trade and Consumer Protection supervises the boards, and has not filed a complaint about them with the state Department of Justice in at least 15 years, as the Center reported Monday.

In an earlier email interview, department of agriculture employee Noel Favia, who works with the boards, said the milk board had “never made claims that weren’t substantiated with scientific evidence.”

But Stephen Gardner, litigation director for the Washington, D.C.-based Center for Science in the Public Interest, had reviewed the board’s weight loss claims at the Center’s request, along with 17 recent studies on dairy products and body weight. Gardner concluded the claims were “deceptive under Wisconsin law.”

The Center also interviewed nutrition experts at Harvard University and the Mayo Clinic, who pointed to limitations in the studies supporting the milk board’s claims. Dr. Walter Willett, chair of the nutrition department at the Harvard School of Public Health, said any tie between dairy consumption and enhanced weight loss “has been totally discredited by research not funded by the National Dairy Council.”

National dairy marketing groups halted similar claims four years ago, after the Federal Trade Commission intervened.

And the U.S. Department of Agriculture’s 2010 dietary guidelines state that “strong evidence in adults and moderate evidence in children and adolescents demonstrates that consumption of milk and milk products does not play a special role in weight management.”

But as of Saturday, the Wisconsin milk board, whose annual budget exceeds $30 million, still claimed on its website that “emerging research indicates consuming three servings of low-fat dairy products as part of a healthy diet and exercise plan will help with weight loss and weight maintenance.”

By Monday at 6:30 p.m., this and most similar claims were gone. One Web page still stated that low-fat dairy products “can play a role in better weight management.”

Geoghegan and Laura Wilford, a registered dietitian with the milk board, said in previous interviews that they didn’t know the board’s website included claims about dairy and weight loss.

But Geoghegan added that the board’s consumer messages were based on “sound, often peer-reviewed research that is continuously updated.”

In the email interview Tuesday, Geoghegan would not say whether the milk board planned other changes to its consumer messages, but wrote: “We constantly review all of our programs in an effort to improve them.”

Amy Karon is a reporter for the Wisconsin Center for Investigative Journalism. The nonprofit and nonpartisan Center (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Some experts call claim ‘deceptive’ and ‘discredited’

Part Two of Two

What do scientists say about the Wisconsin Milk Marketing Board’s health claims about dairy? A two-day series produced in collaboration with a University of Wisconsin-Madison journalism class taught by Professor Deborah Blum.

• Sunday: Marketing dairy to children
• Today: A claim that dairy aids weight loss
• Tuesday: Milk board retreats from weight loss claim

Fact-checking the milk board’s health claims

Some statements checked out. But the Center also found some claims unsupported by science, and some where most evidence came from industry-funded studies. Click the image above to view a pop-up gallery.

Table: Nature’s sports drink?

See the Center’s review of findings and funding sources from eight studies on milk as a sports beverage.

By Amy Karon
Wisconsin Center for Investigative Journalism

A major Wisconsin dairy group continues to promote dairy products for weight loss, four years after two national groups, under pressure from the Federal Trade Commission, agreed to stop.

The state-supervised, nonprofit Wisconsin Milk Marketing Board, whose annual budget exceeds $30 million, claims at least three times on its consumer website that dairy products can help people lose weight, and at least twice that the foods can aid weight management.

“Emerging research indicates consuming three servings of low-fat dairy products as part of a healthy diet and exercise plan will help with weight loss and weight maintenance,” claims a board Web page on dairy’s health benefits.

Leading nutrition experts from Harvard University and the Mayo Clinic contradict such claims. So do the U.S. Department of Agriculture’s 2010 dietary guidelines, which state that “strong evidence in adults and moderate evidence in children and adolescents demonstrates that consumption of milk and milk products does not play a special role in weight management.”

“There has been some back and forth on that particular issue,” said Laura Wilford, registered dietitian with the milk board. “You can’t say that any single food is a weight-loss aid, but you can say that a healthy diet that includes dairy products will help you to maintain or lose some weight.”

State law prohibits Wisconsin’s seven agricultural marketing boards from making “false or unwarranted claims” about their products. The state Department of Agriculture, Trade and Consumer Protection supervises the boards.

A nationally recognized consumer protection attorney told the Wisconsin Center for Investigative Journalism that the Wisconsin milk board’s claim that dairy can enhance weight loss is “unsubstantiated” by the bulk of scientific research and therefore “deceptive under Wisconsin law.”

Stephen Gardner, litigation director for the Washington, D.C.-based consumer advocacy group Center for Science in the Public Interest, reached that conclusion after reviewing recent studies, including research cited by dairy groups.

In subsequent phone interviews, Wilford and Patrick Geoghegan, the board’s senior vice president of communications, said they weren’t aware of the board website’s claims about weight loss.

Geogeghan said the board’s consumer messages are “based on sound, often peer-review research that is continually updated.”

Controversial research

In 2007, the National Fluid Milk Processor Promotion Board and the National Dairy Promotion and Research Board agreed to halt two national campaigns promoting dairy for weight loss after the Federal Trade Commission intervened.

The agency acted two years after the Physicians Committee for Responsible Medicine filed a petition arguing that most research didn’t support the weight-loss claims.

The Washington, D.C.-based physicians group promotes veganism and sponsored the recent controversial Grim Reaper billboard near Green Bay, which warned that eating cheese can be unhealthy. The group reviewed more than 30 studies on dairy and weight loss, concluding that only Michael Zemel’s work identified a link.

Zemel, a nutrition professor at the University of Tennessee and author of the book The Calcium Key: the Revolutionary Diet Discovery That Will Help You Lose Weight Faster, said his research shows consuming more calcium helps suppress a hormone that promotes fat storage. Since 1998, he has received $3.5 million in funds from the National Dairy Council, the nutrition communications arm of a national dairy marketing group called Dairy Management Inc.

A recent analysis of funding sources for 206 nutritional studies on soda, juice and milk found a significant association between funding source and results. But Zemel said the National Dairy Council hasn’t tried to influence his findings.

“I will take research money from anybody,” he said, “as long as they do not try to control the outcome or my right to publish.”

Zemel received degrees in nutritional sciences from the University of Wisconsin-Madison in the 1970s and 1980s. He and Dale Schoeller, a UW-Madison nutrition and obesity expert, have co-authored studies reporting that dairy-rich diets can increase fat loss and fat burning.

Studies on whether consuming more dairy can enhance weight loss have reported mixed results, Schoeller said, adding that the strongest effect was found for people who also cut calories and whose diets were previously low in calcium.

Schoeller said he has received about $40,000 from Dairy Management Inc. since 2000, with about half that money funding research on dairy and weight loss.

“The evidence is not strong,” said Jennifer Nelson, director of clinical dietetics at the Mayo Clinic. “Studies were narrow and quite limited, so we can’t make that strong a connection between dairy products and weight management at this time.”

Dale Schoeller.

Dr. Walter Willett, chair of the nutrition department at the Harvard School of Public Health,  co-authored a 2005 Harvard study of more than 12,000 adolescents that found those who consumed more than three daily servings of milk gained weight over three years, even when drinking skim or 1-percent.

In an email interview, Willett said any tie between weight loss and dairy consumption “has been totally discredited by research not funded by the National Dairy Council.”

Claim called ‘deceptive’

The Wisconsin Center for Investigative Journalism asked Gardner to review 17 recent studies the Wisconsin Center selected that either supported or refuted a link between dairy and weight loss.

Walter Willett.

Gardner also reviewed relevant research listed on the National Dairy Council’s website. The milk board’s website links to the council’s.

“The Center for Science in the Public Interest reviewed these weight-loss claims several years ago, prior to the Federal Trade Commission’s May 3, 2007 letter, and concluded that claims of this nature were unsubstantiated and thus deceptive under both Federal Trade Commission law and state consumer protections laws in general,” Gardner responded in an email interview.

“Based on our review of Wisconsin law, it is clear that a deceptive claim about calcium (or dairy products) and weight loss is deceptive under Wisconsin law in specific.”

Under Wisconsin law, violating the statutes governing agricultural boards can lead to a fine of up to $10,000 and imprisonment of up to nine months.

“The department (of Agriculture, Trade and Consumer Protection) could exercise its discretion not to enforce the law in this instance, but it is insupportable for it to encourage or sanction any deceptive claims,” Gardner wrote.

Noel Favia, who serves as the department’s liaison for the agricultural boards, said in an email interview that the milk board “has never made claims that weren’t substantiated with scientific evidence.”

The department has not filed a complaint against any of the marketing boards with the state Department of Justice in at least 15 years, said former justice spokesman Bill Cosh, who now works for the state Department of Natural Resources.

Amy Karon is a reporter for the Wisconsin Center for Investigative Journalism. Catherine Martin, Jessica Gressa, Andrew Golden and Eric Skvirsky contributed to this report in a UW-Madison journalism class taught by Professor Deborah Blum, in collaboration with the nonprofit, nonpartisan Center (www.wisconsinwatch.org). The Center also collaborates with Wisconsin Public Television, Wisconsin Public Radio and other news media.

All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Green Bay Packers quarterback Aaron Rodgers promotes milk’s health benefits to kids in an advertisement sponsored by the National Dairy Council. The Wisconsin Milk Marketing Board has cited such promotions during presentations to elementary students.

Part One of Two

What do scientists say about the Wisconsin Milk Marketing Board’s health claims about dairy? A two-day series produced in collaboration with a University of Wisconsin-Madison journalism class taught by Professor Deborah Blum.

• Today: Marketing dairy to children
• Monday: A claim that dairy aids weight loss
• Tuesday: Milk board retreats from weight loss claim

Fact-checking the milk board’s health claims

Some statements checked out. But the Center also found some claims unsupported by science, and some where most evidence came from industry-funded studies. Click the image above to view a pop-up gallery.

Table: Nature’s sports drink?

See the Center’s review of findings and funding sources from eight studies on milk as a sports beverage.

Board defends its conduct, says claims are science-based

By Amy Karon, Catherine Martin and Jessica Gressa
Wisconsin Center for Investigative Journalism

LODI — “How many of you have seen the ‘Got milk?’ ads with Aaron Rodgers and Greg Jennings?” Angie Edge of the Wisconsin Milk Marketing Board asked a roomful of elementary school students, invoking the names of two Green Bay Packers stars.

Hands shot up.

In Wisconsin — the nation’s top cheese producer, with more dairy cows per square mile than any other state — it’s hard to miss the message that milk does a body good. Especially if you’re a child.

That’s because the nonprofit milk board, funded by dairy farmers, spends about $950,000 a year on talks, concerts, posters and a website promoting dairy’s health benefits to school children. The group has challenged others’ claims, such as a recent Wisconsin billboard — sponsored by a national physicians group that promotes veganism — that featured the Grim Reaper to suggest eating cheese can be unhealthy.

But the state-supervised milk board sometimes overstates dairy’s health benefits, public records and interviews suggest.

An investigation by the Wisconsin Center for Investigative Journalism and a University of Wisconsin-Madison journalism class found that the milk board promotes chocolate milk as a sports recovery beverage for children and teenagers, although related studies have mostly focused on adult athletes.

In some materials, the milk board also recommends children consume three to four servings of dairy a day, although the U.S. Department of Agriculture recommends just three servings for teenagers and children over age 9, and less for those 8 and younger. Nutrition experts from Harvard University, New York University and the Mayo Clinic said three to four servings aren’t necessary.

A milk board spokesman defended the group’s conduct.

“Dairy’s role in a healthy diet for all Americans has long been established by the science and nutrition community,” said Patrick Geoghegan, the board’s senior vice president of corporate communications. “All the dietary guidance provided to students and consumers by the Wisconsin Milk Marketing Board… is based on sound, often peer-reviewed research that’s continually updated.”

A boy poses with a standup poster of Green Bay Packers player Greg Jennings holding a glass of chocolate milk. The Wisconsin Milk Marketing Board promotes the drink to children as a “natural sports beverage.” Photo: Wisconsin Dairy News

Chocolate milk: Health food or junk food?

The milk board touts chocolate milk as a natural sports drink for children and teenagers. “Muscles fueled with chocolate milk are muscles fueled with nutritious energy,” states a brochure for parents.

According to the board’s most recent annual report, during the 2009-10 school year, it sent 90 percent of Wisconsin schools promotional materials such as a stand-up poster of Jennings, the Green Bay Packers wide receiver, holding a glass of chocolate milk, and planned to give six high schools chocolate milk for the 2010 football season.

The group reinforces the messages during school visits. “Have you heard the research that chocolate milk is the ultimate sports beverage?” Edge asked students last April at Lodi Elementary School, 25 miles north of Madison.

Several small studies — mostly funded by dairy groups — have found that drinking chocolate milk can enhance recovery after exercising. But they focused on adult athletes with higher calorie needs, not children. Almost 28 percent of Wisconsin children were obese in 2007, according to the most recently available data from the National Survey of Children’s Health.

The topic of flavored milks in schools has taken central stage in recent childhood obesity debates. Last June, the Los Angeles Unified School District became the largest in the nation to ban them from school menus. And this fall, Madison schools cut chocolate milk from the breakfast menu for elementary and middle students.

Researchers haven’t tried to pinpoint flavored milk’s role in obesity, partly because few children drink it exclusively, Yale University children’s obesity expert Marlene Schwartz wrote in an email interview.

But Jennifer Nelson, director of clinical dietetics at the Mayo Clinic, said offering children too many sugary foods can foster long-term preferences for sweets.

“My preference is taking the longer view of establishing dietary patterns,” she added. “Maybe we have chocolate milk Wednesdays, but why do we need chocolate milk every day?”

Dale Schoeller, UW-Madison nutritional sciences professor.

Dale Schoeller, an obesity expert and nutritional sciences professor at the University of Wisconsin-Madison, said there’s no way to pinpoint a single food as a culprit in the obesity epidemic.

“Milk is a highly nutritious food,” Schoeller added. “It is one of the major sources of calcium in a child’s diet and a good source of protein.”

Schoeller said he wasn’t overly concerned about the frequency of chocolate milk served in schools, especially in light of new, lower-sugar chocolate milk formulas.

This fall, Dean Foods Company, which supplies milk to about 120 of Wisconsin’s 424 public school districts, switched to a reduced-calorie chocolate milk formula that’s 1-percent or fat-free with no high-fructose corn syrup, Dean spokesman Jamaison Schuler wrote in an email interview. A cup of the fat-free version has 130 calories and 22 grams of sugar — 40 calories and 10 grams of sugar more than plain milk.

When asked the reason for the new recipe, Schuler said that over the past decade, consumers have increasingly preferred less sugar, fewer calories and no high-fructose corn syrup.

Salud Garcia of Madison wasn’t impressed with the change, adding last spring that she was “dumbstruck” when she learned her daughter’s school, Gompers Elementary, had offered chocolate milk twice daily. “I couldn’t believe the schools would be serving so much sugar to kids,” said Garcia, founder of Madison Families for Better Nutrition, a small group that promotes healthier school district menus.

Ken Syke, Madison school district spokesman, said some parents had complained about chocolate milk, but the district hadn’t recorded how many. He said the district responded by telling parents that children need the nutrients in milk, and that some research has shown they drink less when flavored milk isn’t offered.

The milk board cites a 2009 study, funded by the dairy group that runs the “Got milk?” advertising campaign, that found school children drank 35 percent less milk when flavored milk was off the menu.

Marketers need to “stop sending the message that children will only eat healthy foods that have been reformulated with added sugar,” Yale’s Schwartz responded. “Sugared cereals, highly sugared yogurts and flavored milks are all examples of otherwise healthy foods that now have ‘kids’ versions’ heavily marketed to children and their parents.”

The state Department of Public Instruction doesn’t track chocolate milk sales, but spokesman Patrick Gasper said menu analyses suggest about 75 percent of milk sold in Wisconsin schools is chocolate.

“I have 24 kids in my classroom and at snack time, 23 have chocolate milk and one has plain,” said Tricia Kuluvar, who teaches sixth grade at Waunakee Intermediate School.  “And that’s consistent every year.”

Three to four servings a day?

The milk board website states that “increased dairy consumption” leads to higher bone density later in life and a lower risk of osteoporosis, or weak, fracture-prone bones.

At Lodi, Edge told students they should drink three to four glasses of milk “every single day” for strong bones, while the board’s poster for students recommends “three-four glasses a day for a healthy and hard-working body.”

Milk board representatives gave similar presentations to 30,865 elementary students during the 2009-10 school year, and sponsored “iRock with Milk” concerts for more than 6,000 middle schoolers, according to the board’s annual report.

The milk board’s Geoghegan said dozens of groups and individuals support its recommendations, including the National Osteoporosis Foundation, the U.S. Surgeon General, and the American Medical Association.

In fact, these groups mostly frame their guidance in terms of amounts of calcium to consume, not a preferred source. For example, the Osteoporosis Foundation recommends children and teenagers get 500 to 1,300 milligrams of calcium daily, depending on their age. (A cup of milk contains about 300 milligrams.)

The federal Centers for Disease Control and Prevention makes similar recommendations for calcium consumption and notes that good sources of the mineral include dairy products, dark green leafy vegetables, almonds and calcium-fortified orange juice, soy beverages and cereal.

The USDA’s 2010 Dietary Guidelines for Americans recommends adults and children ages 9 and older consume three cups per day of fat-free or low-fat “milk and milk products” — including fortified soy milk. The USDA recommends two-and-a-half cups daily for 4- to 8-year-olds and two cups daily for younger children.

Some research supports the milk board’s recommendations. A 2003 study on 28 teenage male weight lifters found that boys who drank three servings of milk a day for 12 weeks produced more bone mass than those who drank juice.

But several leading experts said so much milk isn’t needed.

“The so-called calcium requirement in the United States is based on very short-term studies (that are) irrelevant to long-term calcium needs,” Dr. Walter Willett, who chairs the nutrition department at the Harvard School of Public Health, wrote in an email interview about the federal government’s recommended dietary calcium levels.

Long-term studies show consuming more than one serving of dairy a day doesn’t further decrease the risk of weak bones or fractures, Willett added.

And the Mayo Clinic’s Nelson said even being vegan doesn’t increase that risk.

“We know that those individuals who avoid milk and animal products that contain calcium do just fine in terms of their growth, their development, and their bone health,” she said.

Nelson said that’s because vegan diets can be rich in other foods that are good calcium sources.

“The profile of the vegan diet also helps you conserve calcium,” she added. “The person who eats a lot of meat or a high animal-protein diet has a tendency to lose more calcium … it’s a metabolic process that’s quite complex.”

Marion Nestle, nutrition professor at New York University and author of six books on food politics, criticized the milk board’s claims.

She wrote in an email interview: “I wonder how the marketing board explains why the highest rates of osteoporosis are found in countries that drink the most milk, or how cows manage to make huge bones that support their weight while eating mostly grass?”

“It’s hard not to be sarcastic about this kind of marketing,” Nestle added. “Milk is a fine food if you like it, but it is not an essential nutrient.”

Amy Karon is a reporter for the Wisconsin Center for Investigative Journalism. Catherine Martin, Jessica Gressa, Andrew Golden and Eric Skvirsky contributed reporting in a UW-Madison journalism class taught by Professor Deborah Blum, in collaboration with the nonprofit, nonpartisan Center (www.wisconsinwatch.org). The Center also collaborates with Wisconsin Public Television, Wisconsin Public Radio and other news media.

All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

DHS Secretary Dennis Smith. Photo courtesy of Wisconsin Department of Health Services.

Health chief defends approach, says system should be nationwide

By Bill Lueders
Wisconsin Center for Investigative Journalism

Advocates for Wisconsin’s Women, Infants and Children nutrition program want the state to reconsider its decision not to seek nearly $9 million in federal grants to make the benefits more convenient and less open to fraud.

The decision by Dennis Smith, secretary of the Wisconsin Department of Health Services, will  “diminish the capacity to serve the 120,663 participants currently enrolled,” Barbara Sheldon, chairwoman of the Wisconsin WIC Association, said in a letter sent Aug. 12 to Smith.

Earlier this year, Smith rejected a proposal from Patti Hauser, who directs the state WIC program, to submit an $8.9 million grant application to the U.S. Department of Agriculture to convert to an Electronic Benefit Transfer (EBT) system — a swipe card — as all states are required by federal mandate to do by 2020.

The WIC program is for low-income women who are pregnant, nursing or who have children up to age 5. For example, a family of three earning up to $34,281 a year is eligible.

Program recipients in Wisconsin receive paper checks that they present at the grocery store to obtain staples including milk, cheese, eggs, cereal and peanut butter. The new system, already in place in several other states, would allow these purchases to be made using a swipe card.

Unlike paper checks, which can be traded or sold for non-eligible purchases, the cards create an electronic record for each transaction, making fraud easier to detect, according to the USDA.

A sample WIC check, made out to Jane Doe.

Smith, an appointee of Republican Gov. Scott Walker, said he rejected the grant request because there are still too many technological and policy problems that the USDA needs to work out. He added that “the most cost-efficient, best way to do this procurement is at the national level.”

“People want to boil it down to, we turned away money,” said Smith, adding that the funds would not have gone to Wisconsin but to “one of the vendors who do EBT benefits.” He said the decision would have no impact on the current state budget.

But Sheldon, whose association represents the state’s 71 county and tribal WIC programs, sees the state’s failure to seek the $8.9 million as a potential lost opportunity.

“This money is available now,” said Sheldon, who works with the WIC program in Winnebago County. “It may not be available in the future. It may have to fall to the state to pay for this.”

A spokeswoman for the USDA said the agency is making $13 million in grants available this year to help states convert WIC programs to the technology. The awards are expected to be completed by mid-September.

Last year, USDA awarded $30 million to help 23 states begin or continue their conversion to the electronic system.

Sheldon’s letter to Smith says prompt filing of the state’s grant application “puts Wisconsin in the line-up for implementation funding. Once the line-up is full, the federal funding will no longer be available.”

Hauser’s grant proposal summary, obtained by the Wisconsin Center for Investigative Journalism through an open records request, said that “with one or two other states applying,” the full $8.9 million would not likely be awarded at one time. She indicated that if Wisconsin were to receive initial funding, however, it would be in a better position to compete if additional money becomes available.

According to Hauser, the new system could be operational for WIC recipients by 2014. Smith said he considers that timeline “optimistic,” and that his priority as secretary is “doing things that help people today.”

Sheldon said switching to an EBT card, which is already used in Wisconsin for food stamps, would improve program efficiency, “be less cumbersome for grocery stores” and make the program more appealing to participants.

“It’s more in step with how people shop these days, and there would be less stigma to using a swipe card than the paper checks,” she said.

Suzanne Oehlke, advocacy chairwoman for the Wisconsin WIC Association, said some program participants are uncomfortable using the paper checks. They feel stereotyped as poor by cashiers and other shoppers — a reaction she’s also encountered while doing compliance buys in Portage County, where she works. “We know that keeps people from using the WIC program,” she said.

This is not the only federal grant that Smith, a former senior fellow at the conservative Heritage Foundation think tank, has declined to pursue. He also initially refused to support applications by agencies including the Milwaukee Health Department and University Health Services for about $30 million in federal grants over five years to promote healthier lifestyles and prevent disease.

After Smith’s decision was widely criticized, the department changed its stance and sent letters in support of several agencies seeking these grants.

Sheldon’s letter to Smith asks for a meeting to discuss how the state can meet the 2020 deadline to convert to the swipe cards. Smith, through a spokeswoman, said he would be “happy to meet” with the WIC organization.

Bill Lueders can be reached at blueders@wisconsinwatch.org. The nonprofit and nonpartisan Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio and the UW-Madison School of Journalism and Mass Communication and other news media. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

For a list of local WIC programs in Wisconsin, see: http://www.dhs.wisconsin.gov/wic/localproject/localprojects.htm

Angela Minerick holds a picture of her fiance, Samuel Milons Jr., who was killed last year in a car accident. Their son, Samuel Milons III, hangs on her shoulders. Because Minerick could stack two auto insurance policies after the accident, Samuel has a trust fund that is twice what it would be without stacking. In April, lawmakers voted to allow anti-stacking language in auto insurance policies. Kate Golden/WCIJ

Companies, trial lawyers dominated insurance rollback

By Kate Golden
Wisconsin Center for Investigative Journalism

Last year, a driver in Milwaukee had a seizure, crossed the median and killed Samuel Milons Jr., 38. After Milons’ death, his fiancee, Angela Minerick, couldn’t afford the rent on their Milwaukee townhouse and racked up credit card debt.

But Minerick, a funeral director, is more secure knowing that their young son, Samuel III, will likely be able to afford college. Because of a 2009 auto insurance law that allowed Minerick to “stack” her two auto insurance policies and collect $75,000 — twice what it would have been without the law — Samuel has a trust to support him when he turns 18.

Beginning Nov. 1, however, cases like Samuel’s could have very different outcomes. That’s because one of the new Republican-controlled state Legislature’s first acts was to allow companies to forbid policy stacking.

On April 6, lawmakers repealed every aspect of 2009’s so-called “Truth in Auto” law except mandatory auto insurance. In addition to allowing anti-stacking language, the new law lowered auto insurance minimums to 1982 levels.

And it once again allowed insurance companies to insert “reducing clauses” into under-insured motorist policies that can dramatically reduce how much insurance companies must pay in accidents.

The 2009 changes required drivers to have $50,000 in coverage for the injury or death of a person, $100,000 for the injury or death of more than one person, and $15,000 for property damage. The new law will restore levels to the former minimum amounts: $25,000, $50,000 and $10,000.

Both sides invoked the public good. Insurance companies argued that the 2009 changes would lead to higher premiums and more people going without insurance. They brought up examples of people whose bills had risen by hundreds of dollars a year.

Trial lawyers, on the other side, invoked catastrophic situations in which stacking or reducing clauses could make the difference in whether accident victims can pay their bills or go bankrupt.

And both sides spent heavily to influence the Legislature.

During 2009 and 2010, advocates for the two industries poured a total of at least $336,319 into the campaigns of state legislators they hoped would vote their way, according to data collected by MapLight, the California-based nonpartisan political money trackers.

In addition, the two industries spent nearly $1.1 million on lobbying in 2009 and 2010, much of it on the fight over auto insurance, an analysis by the Wisconsin Center for Investigative Journalism has found.

And while consumers’ pocketbooks were the main issue mentioned during a six-hour hearing on the bill in January, the insurers offered anecdotes — but no statistical evidence — that the 2009 law would drive drivers’ costs upward.

Citizen Action of Wisconsin, a nonprofit that opposed the new auto insurance law, last year reported that Wisconsin auto insurance rates — the cost per unit of insurance — were essentially flat from 2009 to 2010, when “Truth in Auto” took effect. The Property Casualty Insurers Association of America, a trade group that favored the rollback, issued a rebuttal to the report but did not dispute the statistic.

‘A very hot political football’

In the debate over auto insurance coverage, “consumers are virtually unrepresented, except at the margins,” says Robert Kraig, executive director of Citizen Action of Wisconsin, which advocates for affordable health care, good jobs and consumer protection.

Lobbying and legislative records show the battle was fought largely by trial lawyers against insurers. Car rental and trucking companies joined insurers in pushing for the rollback.

“It’s a very hot political football between trial lawyers and insurance companies,” says John Lehman, a former Democratic state senator from Racine who was defeated in November despite at least $28,655 that trial lawyers put into his race.

The gamble paid off for the insurance industry: Several Democrats supported by the trial lawyers lost, while some Republicans who got insurance company contributions won in November, an election in which the balance of power in the Assembly, Senate and the governor’s office tipped to the GOP.

“The way the legislative process works is, those people who have a major financial stake in the outcome of legislation have a major motivation in trying to invest money to achieve that result,” says former Rep. Spencer Black, a Democrat from Madison. “The average person … who drives a car and might get hit by a car doesn’t have that kind of leverage.”

Property and casualty insurance lobbyist Andy Franken of the Wisconsin Insurance Alliance disagrees, saying, “I don’t believe that legal contributions influence the Legislature.”

If so, there’s a whole lot of money being wasted.

Auto insurers, truckers and car rental companies donated at least $195,239 from January 2009 to December 2010, favoring Republicans nearly 3 to 1. Trial lawyers identified by the Center donated at least $141,081, nearly all to Democrats who lost, according to an analysis of MapLight data.

The money gap between the two sides widens with the addition of lobbying expenditures.

The Wisconsin Association for Justice, formerly the Wisconsin Academy of Trial Lawyers, spent $173,174 to lobby lawmakers in the last two years, lobbying records show. But the Wisconsin Insurance Alliance spent just over $1 million on lobbying in the last election cycle, six times as much.

“My experience over the years is that the insurance companies outspend all players,” says Douglas Heller, executive director of Consumer Watchdog, a national nonprofit. “That doesn’t always win the day, but it often plays a huge role in the battle.”

Bill passed quickly

Assembly Bill 4, introduced in January and signed in April, was one of the first bills to get through the Legislature this session. Leading the charge was state Rep. John Nygren, R-Marinette, an insurance agent who received $5,425 in donations from insurers and none from trial lawyers.

“A lot of our people made that an issue in the campaign, especially our freshmen talked about how they heard that as they went door to door,” Nygren says. “So the (Republican) caucus made it a priority.”

It was easy to pass, Republican leaders say, because it just repealed provisions passed in the 2009 biennial budget.

But opponents such as Dave Dwyer, legislative director for the motorcyclists’ group ABATE of Wisconsin, say they were shocked by the speed at which it was adopted. The group, closely aligned with a trial law firm, opposed the bill because lower minimums and reducing clauses could leave injured motorcyclists with hefty medical bills.

The Assembly bill was introduced on a Friday, and the public hearing for it and its companion bill, Senate Bill 7, was scheduled for the next Wednesday, Jan. 19. Dwyer says he scrambled to find people to testify on such short notice.

Speaking against the bill were six trial lawyers, two accident victims, two motorcyclists and Kraig. All 10 people who spoke in favor of the bill were from the insurance industry.

Mandatory insurance long a goal

Despite warnings that the insurance lobby was too powerful, Lehman introduced bills session after session to require drivers to carry insurance. He says he was motivated by “an old-timer from Racine” who was shocked to learn that the driver who hit him had no insurance — and that it was not required.

The effort failed every time. Lehman was not the first to try.

“I was in the Legislature 25 years or more ago, and used to author bills (mandating auto insurance),” says Joseph Strohl, a former Democratic Senate majority leader and now the trial lawyers’ lobbyist. “And they never passed, because of the strength of the auto insurance industry.”

By 2009, Wisconsin was one of two states that didn’t require auto insurance. Then-Gov. Jim Doyle, a Democrat heavily supported by lawyers, endorsed mandatory auto insurance and the other provisions in his budget.

Republican opponents like Nygren cried foul because they couldn’t vote on the items separately. He says the measure’s sudden appearance in the budget was a “red flag” that special interests, not the public, were behind it.

Opponents had the same suspicion about the rollback introduced by Nygren after it sailed at lightning speed through the Legislature. Nygren says it was constituents, not the insurance lobby, that pushed for the repeal.

Asked for constituent correspondence on auto insurance over the past two and a half years, Nygren released 42 emails — two-thirds of which came from people associated with the insurance industry. Most cited concerns that costs to consumers would rise.

Aside from three agents, no one mentioned stacking clauses. And no one talked about reducing clauses, which allow companies to cut payouts when accident victims get other compensation, such as insurance payments from drivers at fault, disability benefits or worker’s comp.

“Wisconsin has always had a very favorable insurance climate, but the recent mandates have changed that,” wrote Mark Truyman, an insurance agent from Seymour.

Nygren has been criticized for offering the bill while having a personal stake in the industry. But he says he has not sold auto insurance for years, and his statement of economic interests filed with the state lists no auto insurers.

Nygren had the ninth most donations from the bill’s supporters. The top three recipients were Rep. John Klenke, R-Green Bay, a co-sponsor of the bill, with $13,975; Sen. Frank Lasee, R-Bellevue, current chairman of the Senate insurance committee, at $8,590; and Sen. Kathleen Vinehout, D-Alma, a co-sponsor, at $7,900.

Of the 15 current legislators who got the most money from the bill’s supporters, all voted for it.

How do insurers profit? Unclear

Insurers’ main argument in favor of reducing clauses and against stacking policies is that such provisions would raise rates, pricing some drivers out of the market. Heller of Consumer Watchdog concedes that lower limits make some sense. He says if limits are too high, drivers required to buy insurance might not be able to afford it.

But Heller said he believes the real motivation is that companies profit more from lower minimums because they charge almost the same premiums but expose themselves to tens of thousands of dollars less in risk.

Kraig points to reports that insurance companies must file with state regulators showing auto insurers pay out 57 cents for every dollar of premium they take in, a calculation known as a pure loss ratio. The 43 cents they keep are for executive salaries, agent commissions, profits, marketing, reserves, litigation and other operating expenses.

“What we’d like to see is more in the 75-cent range” being paid out for every dollar, Heller says.

In 2009, the auto insurance industry wrote $2.7 billion in policies for personal and commercial vehicles in Wisconsin, and incurred $1.5 billion, or 56 percent of that, in losses, according to data from the state insurance commissioner’s office.

Franken says pure loss ratio is not an accurate picture of the profitability of auto insurance, because it doesn’t take companies’ expenses into account. The property casualty trade group says 10-year average Wisconsin profits are 8.9 percent, and the national margin is 7.5.

Trial lawyers profit from injured clients

At first, Minerick says, her son’s financial settlement “didn’t mean anything to me, to be perfectly honest.”

The loss of her fiance and the boy’s father could not be replaced with money. But now, more than a year later, she appreciates being able to “give my son a jump-start in life.”

Samuel Milons III wasn’t the only one to benefit from policy stacking. The lawyers, too, got more than they would under the new bill, which takes effect in policies written or renewed on or after Nov. 1.

Hupy and Abraham, the Milwaukee personal injury law firm that represented them, got 25 percent of the $100,000 payout to Samuel, says Minerick.

Says attorney Michael Hupy: “We only benefit to the extent our clients benefit.”

Kate Golden can be reached at kgolden@wisconsinwatch.org. Center reporter Amy Karon contributed to this report. This project was produced as part of the Center’s Money and Politics Project, a partnership with MapLight.

The nonprofit and nonpartisan Center (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio and the UW-Madison School of Journalism and Mass Communication and other news media. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Trucks move sand toward a processing plant in Valley Junction in the town of Byron in Monroe County in July. The plant, operated by Hi-Crush Chambers, is located next to a frac sand mine near Highway 173. The site is one of dozens of sand operations popping up in Wisconsin in response to the demand for sand for hydraulic fracturing, or fracking. Jason Smathers/Wisconsin Center for Investigative Journalism

Find a sand mine near you

Map

Click on the map below to open a larger version, or download the PDF.

Spreadsheet of sites

Frac sand: Wisconsin mines and plants Click to view a spreadsheet of the 41 mines or processing plants Center reporters found.

Sidebar: What’s fracking?

Hydraulic fracturing, also known as fracking, is used in 90 percent of natural gas wells in the United States. Gas companies drill down and across layers of rock and then pump a pressurized mixture of sand, water and chemicals deep into the earth, creating artificial rock fractures. Read more in a new page

By Jason Smathers
Wisconsin Center for Investigative Journalism

TUNNEL CITY — Retiree Letha Webster’s voice briefly cracks when she talks about leaving the town she and her husband have called home for 56 years. But she says selling her land to an out-of-state mining company was the best move she could have made.

The 84-year old was approached in late June by a Connecticut-based company, Unimin, that planned to build a sand mine in the area and was paying a good price for houses in the way.

Webster’s struggle to maintain her home and 8.5 acres of land while caring for her husband, Gene, who has Alzheimer’s, meant she would need to move soon anyway. Webster, whose property was valued last year at $147,400, says she has agreed to sell for more than double that amount: $330,000.

Others in the area are selling, too. In addition to Webster, there have been at least seven major transfers of land from residents of this unincorporated community in Monroe County to Unimin’s Eagle Land Investments since late May, according to state Department of Revenue records.

The 436 acres have a market value of just under $1.1 million. Unimin paid a combined $5.3 million to the property owners in Tunnel City, a community 45 miles northeast of La Crosse named for a nearby railroad tunnel.

This western Wisconsin community is in the midst of a land rush — call it a sand rush — fueled by exploding nationwide demand for fine silica sand used in hydraulic fracturing. In this process, nicknamed “fracking,” sand, water and chemicals are blasted into wells, creating fissures in the rock and freeing hard-to-reach pockets of oil and natural gas.

At least 16 frac-sand mines and processing facilities are operating, and an additional 25 sites are proposed, in a diagonal swath stretching across 15 Wisconsin counties from Burnett to Columbia, the Center has found. Chippewa County has seen the most action, as Wisconsin Public Radio’s Rich Kremer reported in June.

Most of the mining operations have sprung up over the past three years, stirring concerns about the effects on land and groundwater and health impacts on nearby residents. Of particular concern is crystalline silica, a dusty substance known to cause health problems including cancer and silicosis, a potentially fatal lung disease.

Companies are focusing on sand from easily accessible deposits of Wonewoc and Jordan sandstone, which can be found in central and western Wisconsin, including along the Mississippi River, says Bruce Brown, a senior geologist with the Wisconsin Geological and Natural History Survey in Madison.

The type of sand in the Wonewoc and Jordan formations is known as Northern White, highly sought after by oil and natural gas companies for its shape, size and strength needed for fracking operations.

Companies are rushing to Wisconsin because of the nearly “inexhaustible” supply of this type of sand, which can fetch up to $200 a ton, he says. Wisconsin sand is heaped onto railroad cars and sent out West and elsewhere to fuel the nation’s fracking boom.

“I get calls from companies out of Denver that say ‘We need a supply of 30,000 tons a month,’ ” Brown says.

Community activist Patricia Popple holds a container of frac sand in July picked up in Chippewa Falls. Popple is concerned about health risks from crystalline silica dust released when trains transport sand through the area. Julie Strupp/Wisconsin Center for Investigative Journalism

Health effects feared

Residents in several Wisconsin counties say they have been alarmed by the speed with which mining companies have snapped up land.

Some communities lack local land-use controls such as zoning that would allow them to manage the land rush. And despite concerns about the health and environmental impacts of such facilities, the state Department of Natural Resources has only a few regulations for sand mining operations.

Mining companies must file a reclamation plan with the county that spells how much land will be disturbed and how it will be rejuvenated once mining is completed, and they apply to be covered under a general DNR permit covering stormwater and wastewater. Other permits regulating air emissions and groundwater use may be required from the DNR.

But none specifically limits how much crystalline silica gets into the air, the main health worry for those living near the facilities. Drew Bradley, Unimin’s senior vice president of operations, says that while the risks of crystalline silica are well known in an occupational setting, there’s no evidence that ambient exposure poses any threat.

“I think (concerned residents) are blowing it out of proportion,” Bradley says. “There are plenty of silica mines sited close to communities. There have been no concerns exposed there. If you had five mines in a little community, maybe that’s a concentration that had to be looked at cumulatively.”

Judy Carey is among those concerned about the health effects of sand mining. Two years ago, Carey and her husband lived across the street from farmland in the Monroe County community of Oakdale. Now the only thing visible beyond the trees that pepper her lawn are mounds of frac-sand from the sand washing plant, which is operated by Proppant Specialists, an affiliate of FracTech Services of Brady, Texas.

As if the sand wasn’t close enough, Carey says the wind brings it into her house. She often finds a fine white powder on the side of her car and sand on dishes in her cabinet, which she rewashes each week. As messy as it is, she is more worried about the potential health risks. A spokeswoman for the company says it’s investigating Carey’s concerns.

“Your clothes are full of it, you can’t roll your car windows down,” says Carey, brushing sand from a chair on her front porch to welcome a visitor. “The breathing part of it isn’t good. You can just feel it in your throat, feel it in your nose.”

Crispin Pierce, an associate professor of environmental health at the University of Wisconsin-Eau Claire, says air quality monitors should be required to measure small particles from sand mining and processing.

The DNR currently requires air monitoring for some sand mining operations, but most companies ask for and are granted a variance to bypass the requirement, says Jeffery Johnson, a DNR environmental engineering supervisor. He knows of just one frac-sand processing plant that has been denied a waiver — EOG Resources of Houston, Texas. The company has been required to install a monitor for particulate matter because of concerns from neighbors of its Chippewa Falls plant.

Even then, the monitors do not detect the size of particles of most concern to people like Pierce. The DNR requires monitoring for large particles but says it lacks the expertise and resources to monitor for smaller particles commonly produced by frac-sand mining and processing. Pierce believes the DNR should develop a standard for safe exposure to silica that it can monitor.

In December, the state DNR confirmed there are potential risks from crystalline silica. But in a draft report, the agency recommended no additional regulation, in part because little is known about the how much crystalline silica escapes from these mining operations.

Jeff Myers, a DNR toxicologist who helped write the study, says any decision to regulate air quality around the sites would be up to the Natural Resources Board, which is expected to take up the issue once the report is finished in September or October.

Patricia Popple, a community activist and resident of Chippewa Falls, opposed the frac sand processing plant under construction in her community. Popple worries about potential health and environmental effects of the plant. Julie Strupp/Wisconsin Center for Investigative Journalism

Efforts to fight mining fail

For two years, Patricia Popple, a resident of Chippewa Falls, fought frac-sand operations in Chippewa County. Her group, Concerned Chippewa Citizens, even filed two lawsuits against the city to block a processing plant. But plans are still moving forward, and Popple has turned to advising other communities in similar positions to act quickly.

Two unzoned townships in Chippewa County also have unsuccessfully tried to block proposed mines. The towns of Howard and Cooks Valley in recent years each passed ordinances to stop sand-mining projects, but Chippewa County Circuit judges threw both out, ruling the zoning laws were invalid without County Board approval.

Cooks Valley took its case to the state Court of Appeals, where officials argued they had enacted a regulatory ordinance, not a zoning ordinance. The appellate court said the matter required further clarification from the state Supreme Court, which has not yet announced whether it will take the case.

After being contacted by constituents in her western Wisconsin district where mines are springing up, Sen. Kathleen Vinehout, D-Alma, asked the nonpartisan Legislative Council for clarification on what local communities can do to regulate them. The council determined that zoning is the most direct option, but it cannot be applied after plans for mining are under way.

Vinehout says she’s seeking ideas from residents and other states about regulating nonmetallic mines.

“I think everybody is very interested in economic development,” Vinehout says, “but we’re very concerned about losing our environmental resources.”

Six Republican legislators who have frac-sand operations in their districts were contacted, but didn’t immediately respond to requests for comment.

Sand falls at a frac sand washing plant near Oakdale in Monroe County in July. The plant, operated by Proppant Specialists, an affiliate of FracTech Services of Brady, Texas, separates silica sand from waste particles in preparation for transport. One resident says sand dust from the plant often blows into her yard and her home. Jason Smathers/Wisconsin Center for Investigative Journalism

Tunnel City girds for a fight

Soon after residents began raising concerns about Unimin’s proposed Tunnel City mine and processing plant, the company rented out the Greenfield Town Hall for a forum to unveil its plans to the community.

Even before the July 6 presentation began, resident Will Koukios was telling members of the overflow crowd of more than 100 what would happen. He said the picturesque rolling hills, tree farms and country houses in the town of 700, which includes Tunnel City, would be cleared for a strip mine, whose stream of trucks, noise and dust would make residents’ lives miserable and their homes worthless.

Koukios alerted some in attendance that Midwest Environmental Advocates, a nonprofit legal center in Madison, had agreed to take their case. Anyone who wanted to be represented could sign up.

One resident interjected, “But we haven’t listened to anything yet.”

“That’s a very good point,” Unimin’s Bradley said as he nodded toward the woman.

Most of the residents listened intently during the first half-hour of the meeting. Unimin representative Steve Groening laid out the plan: Unimin had purchased several hundred acres of land over the past month and a half under a newly created entity, Eagle Land Investments — a tactic used, Groening says, to keep its interest secret from competitors, not the townspeople. He also said the company planned to buy more land in the area.

While Groening cautioned that everything was “preliminary,” he said the plan was to build a frac-sand mine and a $100 million processing plant between unincorporated Tunnel City and the Fort McCoy military training center.

In contrast to other mines in the area, he said, the Tunnel City mine would be unobtrusive. The land would be reclaimed as mining progresses. According to the company’s reclamation plan, no more than 150 acres would be disturbed at any one time. The company would not mine into the water table. And the processing plant would be completely enclosed to reduce noise and dust.

“We can sleep at night knowing that we do things right and don’t leave people high and dry,” Bradley said.

Suspicion mounts

But as the meeting continued, residents began asking a series of pointed questions. They expressed concern about sand getting into their wells. Others worried about noise, health and potential depletion of water springs.

Unimin officials attempted to allay their fears, saying the scenarios they described would not happen. They said the company was the most conscientious of the sand-mining entities pouring into Wisconsin.

“If Unimin were to walk away today, I am certain, without a doubt, there will be other sand companies that come and look that come and try to set up,” Unimin vice president Chuck Collins said. “We’re No. 1 in the industry in frac sand … we’ll continue to be with or without a plant here. The next company that comes along will not be No. 1.”

Days before the meeting, Koukios and his neighbor, Tim Harmon, had confronted Greenfield Town Chairman Stephen Witt about why he had not alerted residents to the project. Witt acknowledges he knew about the mining company’s plans as early as June 16, when his own mother told him that she’d been asked to sell her property. But Witt said he agreed not to widely publicize their plans until Unimin was ready to make its announcement.

“If anybody has the responsibility to inform us,” Koukios says, “it’s him.”

Witt says after he heard about Unimin’s plans, he spoke with company representatives and took a tour of its processing plant near Mankato, Minn. He was impressed by the operation, saying the company appears to do a good job.

Witt’s mother and brother ended up selling their properties to Unimin, prompting some residents to question whether Witt had a conflict of interest as town board chairman. Witt acknowledges that he is the administrator of his mother’s estate but says he’s never looked at the will to see whether he would benefit. He also says town attorney Rick Radcliffe has advised him there is no conflict of interest. As far as Witt’s concerned, he’s representing the Greenfield voters as best he can.

Monroe County Supervisor Gail Chapman also has been approached to sell his land. He says he has made no decision yet.

“Our farm has been in the family for … 120-some years,” Chapman says. “I think that our family will not sell that for that purpose, but it’s my thinking anyway.”

Workers are busy building a sand processing plant in July near Chippewa Falls. The plant, operated by Canadian Sand and Proppants, is one of dozens of operations popping up across central and western Wisconsin to mine and process fine sand for hydraulic fracturing. Julie Strupp/Wisconsin Center for Investigative Journalism

Little study on silica effects

While all types of silica sand in Wisconsin produce airborne particles, the freshly fractured silica that comes from mining operations can be particularly dangerous, at least in a workplace setting, says Pierce, the UW-Eau Claire professor.

The problem, he says, is that most of the studies on crystalline silica exposure are based on its effect on miners and manufacturing employees.

The National Institute for Occupational Safety and Health reported 75 deaths in Wisconsin between 1996 and 2005 from silicosis, primarily among workers in manufacturing, construction and mining. The number is based on workers’ compensation claims, hospital data, death certificate information and reports from health-care providers.

Pierce says with the proliferation of mining operations, the risk of exposure outside the workplace becomes a greater concern.

“The analogy I like to use is secondhand smoke,” Pierce says. “We know people that are exposed to second-hand smoke increase their risk, but there are confounding factors. Folks who live near a sand processing facility (that) have asthma already, they have an immune system that’s impaired … it’s difficult to prove cause and effect.”

In late 2010, the DNR’s draft report on the health effects of silica acknowledged the possible dangers of long-term exposure. The agency found that just five states regulate silica outside the workplace, primarily by requiring facilities such as mines to control dust and particulate emissions. Only Texas and California have the authority to require specific monitoring for crystalline silica, the study found.

The DNR report concluded that the agency lacked the expertise and resources to conduct air monitoring for silica, especially since so little is known about the risk it poses outside the workplace.

“In summary, limited ambient air data is available in the U.S. for crystalline silica,” the report said, “and no monitoring data exists in Wisconsin.”

In the town of Greenfield, the town board met July 25 and authorized Witt and Radcliffe to begin negotiating with Unimin over land use issues, including protecting the town’s roads. The town also formed an advisory committee to explore options for zoning, in order to protect the town if another mine company comes in. A follow-up meeting is scheduled for Aug. 8.

While Unimin’s plans still draw heated words from some community members, Webster, for one, is confident Unimin will do right by her — and Tunnel City.

“I was in business for a number of years, so I learned to be a little hard, cynical,” Webster says. “I don’t feel as though I’m easily taken in … I really do think we’re dealing with a company that has some honor.”

Jason Smathers can be reached at jsmathers@wisconsinwatch.org. Reporters Julie Strupp and Lauren Hasler contributed to this report.

The nonprofit and nonpartisan Center (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio and the UW-Madison School of Journalism and Mass Communication and other news media. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.