Friends Forest v. Wis. Dep't of Natural Res.

• Decision Date: 01 July 2021
• Docket Number: Appeal No. 2019AP2434
• Citation: 2021 WI App 54,964 N.W.2d 342
• Parties: FRIENDS OF THE BLACK RIVER FOREST and Claudia Bricks, Petitioners-Appellants, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent, Kohler Co., Intervenor-Respondent.
• Court: Wisconsin Court of Appeals

964 N.W.2d 342

2021 WI App 54

FRIENDS OF THE BLACK RIVER FOREST and Claudia Bricks, Petitioners-Appellants,

v.WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent,Kohler Co., Intervenor-Respondent.

Appeal No. 2019AP2434

Court of Appeals of Wisconsin.

Submitted on Briefs: July 17, 2020

Opinion Filed: July 1, 2021

On behalf of the petitioners-appellants, the cause was submitted on the briefs of Christa O. Westerberg and Leslie A. Freehill of Pines Bach LLP, Madison.

On behalf of the respondent-respondent, the cause was submitted on the brief of Gabe Johnson-Karp, assistant attorney general, and Joshua L. Kaul, attorney general.

On behalf of intervenor-respondent, the cause was submitted on the brief of Deborah C. Tomczyk and Jessica Hutson Polakowski of Reinhart Boerner Van Deuren s.c., Madison.

A non-party brief was filed by Andrea Gelatt and Rob Lee of Midwest Environmental Advocates, Inc., Madison.

Before Kloppenburg, Graham, and Nashold, JJ.

NASHOLD, J.

¶1 Under the Wisconsin Environmental Policy Act (WEPA), a state agency contemplating a "major action[ ] significantly affecting the quality of the human environment" must prepare and publish an Environmental Impact Statement (EIS): a detailed report evaluating potential environmental effects. See WIS. STAT. § 1.11(2)(c) (2019-20); WIS. ADMIN. CODE § NR 150.30(4) (through May 2020).¹ The EIS is meant to inform decision-makers and the public, so that actions are approved or denied only on full consideration of their environmental consequences.

Wisconsin's Env't Decade, Inc. v. DNR (WED 1979) , 94 Wis. 2d 263, 271, 288 N.W.2d 168 (1979). Separately, WIS. STAT. ch. 227, Wisconsin's Administrative Procedure Act, provides a mechanism for judicial review of final agency decisions that adversely affect a person's substantial interests. See WIS. STAT. § 227.52 ; Sierra Club v. DNR , 2007 WI App 181, ¶13, 304 Wis. 2d 614, 736 N.W.2d 918. The question before us is whether an EIS is itself a final agency decision subject to standalone review under § 227.52, or, alternatively, whether a court may review an EIS only on a petition for review of the agency decision regarding the proposed "major action" that the EIS analyzes.

¶2 Friends of the Black River Forest and Claudia Bricks (collectively, Friends) sought judicial review of an EIS analyzing the environmental impact of a proposed golf course. Although there was no longer any final permit in effect, Friends argued that it had an independent right to challenge the underlying EIS. The circuit court disagreed and dismissed the petition. We conclude that an EIS, by its plain terms, is not a final decision: it analyzes the effects of, and alternatives to, a proposal without dictating any course of action or establishing the rights of any interested party. Accordingly, a party must wait for some final agency decision it is aggrieved by, such as the issuance or denial of a permit, at which point it may raise its challenges to the EIS in a petition for judicial review of the agency decision that the EIS analyzes. Because no such decision exists here, we affirm the dismissal of Friends’ petition.

BACKGROUND

¶3 For the purpose of this decision, we accept as true the following allegations in Friends’ petition for judicial review. In 2014, Kohler Company (Kohler) announced plans to build a golf course complex on 247 acres it owns in Sheboygan County, portions of which contain high-quality wetlands and other environmental and cultural resources. The Department of Natural Resources (DNR) began the environmental review process, which—after public hearings, field visits, staff assessments, and the preparation of multiple drafts of an EIS—concluded with the January 2018 publication of a final EIS. On the same day that DNR published the final EIS, it issued a permit allowing Kohler to fill 3.69 acres of wetland. Kohler anticipated that this would be the first of many permits for the golf course project.

¶4 Friends filed a petition for judicial review, alleging that DNR started the EIS process prematurely and prepared and published the final EIS before receiving all necessary permit applications. Friends alleged that, as a result, the final EIS contains an incomplete discussion of the project's environmental effects, understates the effects it does discuss, omits required components of the EIS analysis, contains a truncated analysis of alternatives to the proposed project, and "incorrectly concludes that this project will not set a negative precedent for wetland fills and mitigation in similar circumstances." Friends requested a stay of the permit and the final EIS, as well as declarations that the decisions approving both be reversed, vacated, or remanded for further agency action.

¶5 One month later, DNR granted Friends’ petition for a contested case hearing on the wetland permit. See WIS. STAT. § 227.42 (providing for the right to an agency hearing, which shall be treated as a contested case if certain criteria are met). In March 2019, an administrative law judge (ALJ) reversed DNR's grant of the permit. As DNR did not seek judicial review, this became DNR's final decision. See WIS. ADMIN. CODE § NR 2.155(1).

¶6 DNR then moved the circuit court to dismiss Friends’ petition, arguing that it was moot. Friends agreed with respect to the wetland permit, but argued that it had a separate right to challenge the EIS on which the permit was based. The circuit court disagreed, concluding that, as a matter of law, an EIS is not a final agency decision subject to judicial review under WIS. STAT. § 227.52. The court dismissed the petition, and this appeal follows.

DISCUSSION

Principles of Law and Standard of Review

¶7 WEPA embodies "a clear legislative declaration that protection of the environment is among the essential considerations of state policy and as such, is an essential part of the mandate of every state agency." Wisconsin's Env't Decade, Inc. v. PSC (WED 1977) , 79 Wis. 2d 409, 416, 256 N.W.2d 149 (1977) (internal quotations and quoted source omitted). Accordingly, WEPA establishes a process for agencies to follow "to ensure adequate consideration of environmental factors ... before resources are irreversibly and irretrievably committed." WED 1979 , 94 Wis. 2d at 271, 288 N.W.2d 168. Before an agency undertakes any "major action[ ] significantly affecting the quality of the human environment," it must prepare an EIS that evaluates, among other considerations, the environmental impacts of and alternatives to the proposal. WIS. STAT. § 1.11(2)(c). At minimum, the agency must publish a draft EIS, accept public comments, and hold a hearing before publishing a final EIS. WIS. ADMIN. CODE § NR 150.30(3)-(4). The final EIS itself does not ultimately control agency decision-making. Clean Wis., Inc. v. PSC , 2005 WI 93, ¶188, 282 Wis. 2d 250, 700 N.W.2d 768. Rather, it is an "informational tool" that "represents an important procedural step agencies must take during their decision-making process," "enabl[ing] agencies to take a ‘hard look’ at the environmental consequences of a proposed action." Id. , ¶¶188-89, 203 ; see also WIS. ADMIN. CODE § NR 150.30(1)(b) ("[t]he EIS is an informational tool that does not compel a particular decision by the agency"); Applegate-Bader Farm, LLC v. DOR , 2021 WI 26, ¶37, 396 Wis. 2d 69, 955 N.W.2d 793 ("WEPA is a procedural statute. It is not intended to control agency decision making." (citation omitted)).

¶8 WEPA does not provide for judicial review; instead, WIS. STAT. ch. 227 governs. Chapter 227 establishes circuit court jurisdiction over certain agency actions, creating a right to appeal that "is statutory and does not exist except where expressly given." Pasch v. DOR , 58 Wis. 2d 346, 352, 206 N.W.2d 157 (1973) ; State v. WERC , 65 Wis. 2d 624, 630-31, 223 N.W.2d 543 (1974). Specifically, under WIS. STAT. § 227.52, judicial review is limited to "[a]dministrative decisions which adversely affect the substantial interests of any person." Madison Landfills, Inc. v. DNR , 180 Wis. 2d 129, 140, 509 N.W.2d 300 (Ct. App. 1993).

¶9 Although WIS. STAT. § 227.52 does not use the term "final," "case law has established that the legislative intent was to limit judicial review to ‘final [decisions] of [an] agency.’ " Sierra Club , 304 Wis. 2d 614, ¶13, 736 N.W.2d 918 (quoted source omitted); see also Waste Mgmt. of Wis., Inc., v. DNR , 128 Wis. 2d 59, 87-90, 381 N.W.2d 318 (1986). A final decision determines "the substantial rights of the parties involved" and concludes the agency proceeding. Pasch , 58 Wis. 2d at 354, 206 N.W.2d 157. Alternatively, if a decision is "preliminary or procedural," then judicial review is unavailable. Id. at 354-55, 206 N.W.2d 157. "[N]either the form of the [decision] nor the label of ‘final’ or ‘interlocutory’ necessarily determines ... reviewability." Id. at 356, 206 N.W.2d 157. Rather, the inquiry is pragmatic: do immediate legal consequences attach? See Friends of the Earth v. PSC , 78 Wis. 2d 388, 407, 254 N.W.2d 299 (1977) (agency decision may be reviewable if it "finally disposes of matters having an immediate impact upon the rights of a party"); Sierra Club , 304 Wis. 2d 614, ¶15, 736 N.W.2d 918 ("A final administrative [decision] for purposes of judicial review has been described as one that directly affects the legal rights, duties, or privileges of a person." (internal quotations and quoted source omitted)).

¶10 Whether a specific agency decision is final, and thus reviewable under WIS. STAT. ch. 227, is a question of law that we decide de novo. Kimberly Area Sch. Dist. v. LIRC , 2005 WI App 262, ¶¶9, 12-13, 288 Wis. 2d 542, 707 N.W.2d 872.

Application to Friends’ Appeal

¶11 Friends acknowledges that, following the resolution of its wetland permit challenge, the only live issue before the circuit court was whether DNR complied with the regulatory requirements for preparing and publishing the final EIS. Friends also appears to concede that this EIS, like all EISs, does not...