Friends of the Black River Forest v. Kohler Co.

• Decision Date: 30 June 2022
• Docket Number: 2019AP299,2019AP534
• Citation: 2022 WI 52
• Parties: Friends of the Black River Forest and Claudia Bricks, Petitioners-Appellants, v. Kohler Company, Intervenor-Respondent-Petitioner, Wisconsin Department of Natural Resources and Natural Resources Board, Respondents-Respondents-Cross Petitioners.
• Court: Wisconsin Supreme Court

2022 WI 52

Friends of the Black River Forest and Claudia Bricks, Petitioners-Appellants, v. Kohler Company, Intervenor-Respondent-Petitioner, Wisconsin Department of Natural Resources and Natural Resources Board, Respondents-Respondents-Cross Petitioners.

Nos. 2019AP299, 2019AP534

Supreme Court of Wisconsin

June 30, 2022

ORAL ARGUMENT: October 1, 2021.

Circuit Court Sheboygan & Dane County, L.C. No. 2018CV178 & 2018CV2301, Edward L. Stengel & Stephen E. Ehlke Judge.

ATTORNEYS:

For the intervenor-respondent-petitioner, there were briefs filed by Deborah C. Tomczyk, Jessica Hutson Polakowski, Monica A Mark, and Reinhart Boerner Van Deuren S.C., Madison. There was an oral argument by Eric A. Shumsky.

For the respondents-respondents-cross-petitioners, there were briefs filed by Gabe Johnson-Karp, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Gabe Johnson-Karp.

For the petitioners-appellants, there was a brief filed by Christa O. Westerberg, Leslie A. Freehil, Aaron G. Dumas and Pines Bach LLP, Madison. There was an oral argument by Christa O Westerberg.

Amicus curiae briefs were filed by Katie Nekola and Evan Feinauer for Clean Wisconsin, Inc.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN JJ., joined. HAGEDORN, J., filed a concurring opinion. KAROFSKY, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.

REBECCA GRASSL BRADLEY, J.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 Kohler Company (Kohler), the Natural Resources Board (the Board), and the Department of

Natural Resources (the Department) seek review of a court of appeals decision^[1] reversing orders of the circuit court for Sheboygan and Dane Counties dismissing challenges by the Friends of the Black River Forest and Claudia Bricks (collectively, the Friends) to a land exchange between Kohler and the Department.^[2]Kohler asserts the Friends do not have standing to challenge the Board's land swap decision under Wis.Stat. §§ 227.52 and 227.53 (2017-18)^[3] because their alleged injuries satisfy neither the "injury-in-fact" nor the "zone of interests" elements of the two-part standing analysis, both of which must be satisfied in order to establish standing. Kohler claims the court of appeals decision unlawfully expanded the zone, opening the door to challenges of any agency decision related to the management of state-owned lands. The Department separately contends the Friends lack standing under the "zone of interests" prong.

¶2 We hold the Friends lack standing to challenge the land transfer decision. We assume without deciding that the Friends allege sufficient injuries under the "injury-in-fact" element of the standing test. While historically we have labeled the second prong of the test as a "zone of interests" inquiry in line with federal standing principles, this nomenclature has no basis in the text of Wis.Stat. §§ 227.52 or 227.53^[4] and does not accurately describe the test we have consistently applied. We ground our decision instead in our well-established formulation for standing to challenge administrative decisions, which requires the alleged injury to adversely affect "an interest which the law recognizes or seeks to regulate or protect." Waste Mgmt. of Wis., Inc. v. DNR, 144 Wis.2d 499, 505, 424 N.W.2d 685 (1988); see also Foley-Ciccantelli v. Bishop's Grove Condominium Ass'n, Inc., 2011 WI 36, ¶55, 333 Wis.2d 402, 797 N.W.2d 789 (lead opinion) ("[T]he question is whether the party's asserted injury is to an interest protected by a statutory or constitutional provision."); Fox v. DHSS, 112 Wis.2d 514, 529, 334 N.W.2d 532 (1983) ("[T]he injury must be to a legally protected interest.").

¶3 The Friends alleged injuries resulting from the Board's land swap decision under several statutes and regulations, arguing the interests harmed fall within the zone of interests protected or regulated by these laws. We disagree. None of the statutes or regulations cited protect any legally protected, recognized, or regulated interests of the Friends that would permit them to challenge the Board's decision as "person[s] aggrieved." Accordingly, we reverse the court of appeals.

I. BACKGROUND

A. The Land Swap Decision

¶4 Kohler-Andrae State Park (the Park), located on the Lake Michigan shoreline in Sheboygan County, borders private land owned by Kohler. In 2014, Kohler revealed plans to build an 18-hole golf course, which has since become the subject of numerous lawsuits, including this one.^[5] In June 2017, the Department initiated a master planning process to consider Kohler's request to use Park land for the proposed golf course. As part of this process, on February 16, 2018 the Department recommended a land exchange agreement with Kohler, seeking approvals from both the Board and the governor.

¶5 At its next meeting later that month and following public comment, the Board first determined that a 4.59-acre parcel of upland woodland within the Park was "not being used for any park functions" and was no longer needed for the state's use for conservation purposes and therefore removed it from Park boundaries. The Board next approved an agreement between the Department and Kohler for a land exchange, under which the Department would transfer the 4.59 acres to Kohler, in addition to a 1.88-acre easement, in exchange for 9.5 acres of Kohler land--including upland woodland, crop land, and a building-- straddling the boundary of the Park. Kohler planned to use the 4.59 acres for a maintenance facility and parking area, and the easement for public access to the golf course. The agreement required "[r]estrictions placed on the deed transferring title to Kohler" in order to "ensure that" the transferred land "is adequately landscaped and screened, that its use will not compromise park aesthetics, and that its proposed future use will be compatible with adjacent park uses."

B. The Friends' Amended Petition and Circuit Court Proceedings

¶6 The Friends filed a Wis.Stat. ch. 227 petition in Sheboygan County Circuit Court seeking review of the Board's February 28, 2018 "vote to convey 4.89 acres of land within Kohler-Andrae State Park to Kohler Co., as well as a 1.88 acre easement."^[6] Kohler intervened and filed a motion to dismiss under Wis.Stat. § 227.56(3), arguing that the Friends were not an "aggrieved" party because, as relevant here, they failed to satisfy both the "injury in fact" and "zone of interest" prongs of the test for Chapter 227 standing. The Friends filed an Amended Petition, identifying the following alleged injuries from the land exchange:

24. Petitioners are aggrieved by the Respondents' decisions to approve the land transaction. The Respondents' decision permanently eliminates Petitioners' opportunity to use land within Kohler Andrae State Park currently available to the public for recreation and enjoyment, which members of FBRF such as Ms. Felde and Ms. Bricks have used and enjoyed previously, and would continue to use and enjoy but for Respondents' decision.

25. The Respondents' decision will also reduce habitat for and populations of plants, birds, and animals that are currently enjoyed by FBRF members such as Ms. Felde, as well as Ms. Bricks, harming their ability to observe wildlife and study nature in and around the park.

26. The Respondents' decision will impact and reduce enjoyment of other resources used by FBRF members such as Ms. Felde, as well as Ms. Bricks, including areas of the park adjacent to the proposed road and maintenance facility. Construction of Kohler Co.'s facility will harm the aesthetics of these adjacent areas and impair Petitioners' use and enjoyment of the areas for recreation and conservation.

27. FBRF and its members, including Ms. Felde and Ms. Bricks, will be affected by increased traffic and noise caused in and around the park by the Respondents' decision, as Kohler Co.'s project is constructed and operated.

28. FBRF and its members, including Ms. Felde and Ms. Bricks, are also interested in the Respondents following required procedures for state park planning that ensure uses in the park are properly classified to avoid user conflicts and preserve recreational and scenic qualities, and are aggrieved by the Respondents' decision to follow procedures in this case.

¶7 The Sheboygan County Circuit Court determined the Friends lacked standing because the alleged injuries did not flow directly from the land swap decision and accordingly granted Kohler's motion to dismiss. 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," the circuit court concluded the Friends failed to meet the first element of the two-part test establishing that they were aggrieved because none of the alleged injuries were a direct consequence of the land transfer. Consequently, the court did not address the "zone of interests" element of the standing analysis.

C. The Court of Appeals' Decision

¶8 The court of appeals, in an unpublished, per curiam opinion reversed and remanded the decision of the Sheboygan County Circuit Court and held that the Friends alleged sufficient injuries to satisfy standing under Wis.Stat. §§ 227.52 and 227.53. Friends of the Black River Forest v. DNR, Nos. 2019AP299 & 2019AP534, unpublished slip op., ¶3 (Wis. Ct. App. Sept. 15, 2020) (per curiam). That court determined the alleged injuries included "recreational, aesthetic, and conservational injuries caused by the land exchange." Id., ¶17. Looking "beyond the land exchange to the sequence of events that has been set in motion," including Kohler's desired end...