A railroad and the City of Fond de Lac were engaged in negotiations to replace a crossing with an overpass. The Wisconsin DOT wanted a soil sample off the right of way as part of its due diligence to construct the overpass. Relocating crossings and railroad right of way is subject to state law, always has been, and it’s clearly highly regulated. The court even cites the railroad drug testing case of Skinner. [Not even mentioned is implied consent from agreeing to a study and open fields because how does a railroad have a right of privacy on a railroad track?] Wisconsin Central Ltd v. Gottlieb, 2013 WI App 61, 348 Wis. 2d 141, 832 N.W.2d 359 (2013):
P17 Railroad operations—their construction, alteration, maintenance, and daily operations—are heavily regulated by state and federal statutes and administrative codes. See, e.g., Wis. Stat. chs. 190-92, 195, and Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). WCL's ability to close or alter its tracks where they cross public roadways is governed by state statutes, see Wis. Stat. §§ 195.28 and 195.29. WCL followed that law when it wanted to close or alter the crossing at Lakeshore Drive in North Fond du Lac, by initially petitioning the OCR in Petition No. 9164-RX-611. While WCL voluntarily withdrew its petition to close the crossing, it also voluntarily complied with the OCR's order that it cofund (with the village) a study to develop a plan to change the crossing. And it was that study, done on behalf of the village and WCL, which expressly provided that "any project alternative selected for further development should include a HAZMAT investigation for the selected route," and that such investigation "may require field sampling of soils and laboratory testing." Thus, when the OCR ultimately approved of the parties' settlement and authorized the village to construct the crossing "consistent with Alternative B as set forth in Exhibit 1," it was also ordering that environmental due diligence would have to take place as set forth in the study.
P20 We also reject WCL's assertion that the DOT's involvement in the overpass project and, in particular, its involvement in the environmental sampling of the railroad's property is "anomalous." WCL vehemently argues that the DOT is an agency it "does not answer" to and "is not regulated by." But while WCL is correct as far as it goes—it is true that the DOT is not the state agency with regulatory authority over railroads—WCL's argument ignores the fact that the DOT's area of authority, the highway system, quite literally intersects with railroads on occasion.
P21 In fact, both state and federal regulations expressly direct how the DOT is to proceed in situations involving railroads. See, e.g., Wis. Admin. Code TRANS ch. 30 (program of loans for relocation of railroads and public utilities); Wis. Admin. Code § TRANS 400.08(1)(a)3. and (1)(c)1.c. In particular, as WCL itself pointed out at oral argument, the DOT regulations requiring the DOT to perform environmental due diligence in this project in large part mirror federal regulations that specify in minute detail exactly what sort of environmental due diligence must be done for a myriad of transportation projects.
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"A system of law that not only makes certain conduct criminal, but also lays
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—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
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or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)