High Court Leaves Kohler-Andrae At Risk

On June 30, the Wisconsin Supreme Court announced its decision to deny Friends of the Black River Forest, a grassroots Sheboygan County environmental group, standing to sue the state Department of Natural Resources (DNR) to halt its land swap deal with Kohler Company. Intended to facilitate a proposed golf course, the land swap trades more than 9 acres of no conservation value to the state in exchange for 4.9 prime acres of Kohler-Andrae State Park.

Written by Rebecca Bradley and supported by all of the court’s conservative justices, including sometime swing vote Justice Brian Hagedorn, the 4-3 decision means the land swap could proceed, if – and it’s still a big “if” – Kohler’s wetland mitigation permit is reinstated by the courts. The court of appeals has yet to rule on the permit, but two Wisconsin judges have declared it invalid, including Circuit Court Judge Edward Stengel, whose 32-page decision called the permit allowing Kohler Company to bulldoze a globally rare wetland “not based on scientific facts and definitive plans, but speculation and promises.”

In ruling against the Friends on the standing issue, the court agreed with an earlier Stengel ruling that the land swap did not result in an injury to the Friends, reasoning that “[t]he land swap agreement does not clear the way for the immediate construction of the proposed golf course or any other structures.” At last October’s oral arguments, Bradley, questioning Friends’ attorney Christa Westerberg of Pines Bach Madison, suggested that since any harms the Friends claimed from the land swap hadn’t happened yet (and won’t until the golf course is actually built), they could not be claimed.

The majority decision written by Bradley and released last Thursday was based on readings of state statutes that would grant standing in the event that a group or individual could prove their interests had been harmed. According to Bradley’s opinion, “Nothing in the text of these regulations indicates they establish procedures designed to protect individuals or entities who may be interested in the lands. In the absence of such standards or procedures, these regulations do not protect, recognize, or regulate the interests of private parties who may wish to challenge agency action under them.”

The dissenting opinion written by the Supreme Court’s newest justice, Jill Karofsky, alleges that in the majority decision, the state Supreme Court had decided to “slam shut the courthouse doors and reworks the law to reach its desired result.”

Karofsky’s dissent appears to have irked Rebecca Bradley, who, in a testy footnote to her opinion, took a swipe at her fellow justice. Karofsky, she wrote in her footnote, “fundamentally misunderstands how to interpret legal texts.”

Mary Faydash, president of Friends of the Black River Forest, praised Karofsky’s dissent, calling it “powerful” and added, “I encourage you to take a look at it.” She said the high court’s decision came as “a surprise because rather than sticking to a 50-year-old standing ‘test’ of our challenge being within the zone of interest, the majority decided to create a new standard. . . and [to] say FBRF violated substantive criteria for standing.” And yet, Faydash said, “We showed numerous criteria that were met.”

Whether or not the next high court decision favors them or Kohler Company, the Friends’ ability to permanently hold off the golf course project may ultimately depend on a gerrymandered state Legislature with a track record of favoring developers. The day before the ruling in the Friends’ case was announced, the Supreme Court ruled that Frederick Prehn, a Scott Walker appointee, is within his rights to remain chair of the Natural Resources Board, despite the fact that his term expired in May 2021. The Legislature has thus far failed to approve Gov. Tony Evers’ appointee to the position, and the Supreme Court upheld Prehn’s legal right to indefinitely mantain his obstinance.

A legislature that has held up millions in conservation funds when a developer expressed an interest in the land to be preserved is likely in no hurry for a change of leadership at the Natural Resources Board, the body that made the land swap decision in Kohler’s favor. That leaves a grassroots citizens group, which has since been joined by the Sierra Club-Wisconsin Chapter and others, as the only thing standing in the way of a golf course plan that would clear-cut an old growth forest, bulldoze rare wetlands, destroy the habitat of many species of rare and endangered plants and animals, and poison an aquifer relied on by hundreds of citizens. With this decision, Wisconsin’s Supreme Court clearly came down on the side of big business, which rules our state as never before, and against those whose aim is to protect our dwindling natural resources.