Friends of Blue Mound State Park v. Wis. Dep't of Nat. Res.

Decision Date02 February 2023
Docket Number21-cv-676-jdp
CourtU.S. District Court — Western District of Wisconsin


This case arises out of a dispute over the proposed construction of a snowmobile trail in Blue Mound State Park, which is located about 25 miles west of Madison, Wisconsin. The Friends of Blue Mound State Park is a volunteer group organized under state law to “support, assist, and promote the mission and activities” of the park. Wis Admin. Code § NR 1.71. In 2021, the Wisconsin Department of Natural Resources approved a master plan for the park that included a new snowmobile trail. The Friends objected to the trail and ultimately sued the department in state court alleging that the proposed trail was in “a sensitive ecological area” and contending that the department violated state law by failing to consider the environmental impact of the trail. Two months later, department officials threatened to terminate the Friends' agreement with the department unless the Friends dropped its lawsuit.

In response, the Friends filed this lawsuit, contending that the threat was retaliation in violation of the First Amendment and a denial of due process in violation of the Fourteenth Amendment. In addition, the Friends contends that defendants violated both the First Amendment and state law by issuing what the Friends calls a “rule against speaking out” and that the department failed to comply with an open records request related to the threat and alleged rule. Defendants move for summary judgment on each of these claims, Dkt. 52; the Friends moves for partial summary judgment on its claims related to the alleged “rule against speaking out.”

The court will deny defendants' motion for summary judgment on the Friends' retaliation claim. Defendants' position is that the Friends should be treated like an arm of the state that has no First Amendment rights against the department. The court is not persuaded by that extreme view. As a contractor for the department, the Friends has more limited First Amendment rights than a private citizen. But the Friends retains the right to advocate for matters of public concern that fall outside its contractual duties and do not unduly interfere with the department's ability to provide services. The Friends' state-court lawsuit appears to meet that standard.

The Friends' status as a friend group makes it well situated to protect interests of the park that may be overlooked by the department, but the Friends' contractual duties do not include advocacy activities. The objectives of the state-court lawsuit-preventing harm to a sensitive ecological area and requiring the department to comply with the law-are both matters of public concern that are consistent with the department's own mission and duties. The Friends' lawsuit may hinder the department's plans to build the trail, but the department hasn't met its burden to show that its interest in constructing the trail outweighs the Friends' right to seek enforcement of environmental laws in state court. The department isn't entitled to immunity from dissent.

As for the Friends' remaining claims, the court will deny defendants' summary judgment motion on the opens records claims and grant defendants' motion on the due process claim and the claims related to the alleged “rule against speaking out,” for the reasons explained below. The court will also give the parties an opportunity to explain whether a trial is needed to resolve the remaining claims, and, if so, whether the court or the jury should serve as the factfinder for the trial.


The following facts are undisputed.

State law gives the department the authority to enter into agreements with “organizations, individuals or others on any subject considered of concern and benefit to the state parks.” Wis.Stat. § 27.01(2)(d). Based on that authority, the department enacted Wis. Admin. Code § NR 1.71, which creates a policy on “friends groups,” defined as “non-profit, non-stock, tax-exempt corporation[s] organized to support, assist and promote the mission and activities of department properties, facilities and programs and other activities as approved by the department under the provisions of a written agreement with the department.” Id. § 1.71(3)(b). The stated objectives of friends groups include raising money for department properties and promoting department properties through publications, special events, and interpretive programs. Id. § 1.71(4).

The Friends is the official friends group for Blue Mound State Park. The Friends' agreement with the department allows the Friends to host special events, raise money for the park and the department, and sell souvenirs, merchandise, food and drink, among other things. Dkt. 28-2, §§ 5-9. The department must approve the Friends' interpretative activities and fundraising activities and, each year, the department must review the Friends' projects for compliance with the park's master plan. Id. §§ 1.D, 1.E, and 7.B. The Friends receives no compensation from the department or the state, and its members may not represent themselves as department employees. Id. § 2.H.

Either party may terminate the agreement with 30 days' written notice and an explanation of the reasons for the termination. Id. § 12.A. If either party terminates or the Friends dissolves, the Friends' assets become property of the department. Id. §§ 12.B and 12.C.

In May 2021, the Natural Resources Board for the department approved a Master Plan for the park, authorizing the construction of a new snowmobile trail. In June 2021, the Friends filed a petition for judicial review in Dane County Circuit Court and a petition for a contested case hearing with the department. In the lawsuit, the Friends challenged the department's decision to construct a new snowmobile trail, contending that the department violated state environmental laws by failing to adequately consider the environmental impact of the trail and that the decision to construct the trail was arbitrary and capricious. Dkt. 54-2. The Friends also alleged that the trail “will significantly harm the sensitive ecological landscape that is unique to the Park, create undue strain on other recreational uses at the Park, and decrease the attractiveness of the Park to silent sport enthusiasts.” Id., ¶ 24.

On July 15, 2021, the department denied the Friends' petition for a contested case hearing.[1]

In late July 2021, members of the Friends were contacted by defendant Melissa VanLanduyt, who is the recreation partnership section chief for the department's Bureau of Parks and Recreation Management. In an email, VanLanduyt requested a meeting with “one or two board members” to “discuss the Blue Mound [State Park] master plan, our agreement and answer any questions you may have.”

The day before the meeting, VanLanduyt sent an agenda for the meeting to defendant Steven Schmelzer, who is the department's Parks Director. The agenda included the following topics:

■ Review of existing agreement
We will be initiating our 30 days with an opportunity to cure if necessary
• Only way to cure is to drop the suit

Dkt. 28-11.

On August 5, Schmelzer, VanLanduyt, and two representatives from the Friends attended the meeting. Schmelzer told the Friends that it would have to drop its lawsuit, or the department would initiate termination of the existing friends group agreement. Dkt. 20 (Schmelzer Dep. 59:5-61:22).

Approximately one week after the meeting, the Friends filed a second petition for judicial review in Dane County Circuit Court, this time challenging the department's decision to deny the petition for a contested case hearing. The case was later consolidated with the previous petition, and both cases were transferred to Iowa County. In May 2022, the circuit court dismissed the case on the ground that the Friends was barred from suing the department by its articles of incorporation and by § NR 1.71. Dkt. 54-4, at 45.[2] The court also concluded that the Friends was “not in the zone of interests” protected by the statutes it was suing under. Id. at 46. The Friends' appeal of that decision is pending, and the circuit court has stayed construction of the snowmobile trail until the appeal is resolved. Dkt. 63-2.

On August 18, 2021, the Friends submitted a public records request to the department, asking for documents related to the August 5 meeting. In November 2021, the department produced the following email dated May 24, 2021, from VanLanduyt to Diane Brusoe, who is the department's deputy division administrator for the Division of Fish, Wildlife, and Parks:

Here are some points about friends groups.

We have agreements with friends groups. Those agreements outline our ability to dissolve the agreement for multiple reasons including friends groups speaking out publicly against the department
• Friends groups across the state are generally supportive of the department and remain neutral on most issues Potawatomi is a good example
• Friends groups provide nearly 100 000 hours of volunteer labor they donate tens of thousands of dollars per year in supplies and equipment in small individual amounts and are currently fundraising for more than 60 million in projects to improve the customer experience
• Friends groups from time to time do weigh in publicly on property issues
• The Blue Mound Friends group provided comment on all aspects of the plan and were in support of all elements except for the snowmobile route alternative
• Other partners of the property have also provided comment in support or in opposition of elements of the plan
• Property staff

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