Updated July 13 at 3:26 p.m. CDT
A conservative member of the state Department of Natural Resources policy board can remain on the panel indefinitely even though his term ended more than a year ago, a divided state Supreme Court decided Wednesday.
The justices ruled 4-3 that gubernatorial appointees can hold their positions indefinitely until the state Senate confirms their successors. The decision means by not voting the Senate can ensure Republican appointees can hold their spots under a Democratic governor, giving the party at least partial control over executive branch functions.
Liberal-leaning Justice Rebecca Dallet called the ruling “absurd” in a dissent.
The case centers on Fred Prehn, a Wausau dentist appointed to the DNR board in 2015 by former Republican Gov. Scott Walker.
His six-year term ended May 1, 2021. Democratic Gov. Tony Evers appointed Sandra Naas to replace him but Prehn refused to step aside. He argued that the state Supreme Court ruled in 1964 that gubernatorial appointees don't have to resign until the Senate confirms their successors. Republicans who control the Senate have refused to hold a hearing on Naas' confirmation.
Democratic Attorney General Josh Kaul sued in August to force Prehn off the board. Dane County Circuit Judge Valerie Bailey-Rihn sided with Prehn in September and dismissed the case. Kaul asked the state Supreme Court to take the case directly without waiting for an appellate ruling.
Prehn's refusal to budge has ensured that Walker appointees maintain a majority on the seven-member board and can control environmental and hunting policy until at least May 2023, when three other Walker appointees' terms end. If Republicans maintain their majority in the Senate in the November elections — which they almost certainly will — they likely won't vote on those appointees successors and conservative control will continue.
Since his term expired Prehn has voted with the conservative majority to scale back restrictions on PFAS chemicals in state waters and increase the quota for the fall wolf season. A Dane County judge ultimately put the season on hold and it was canceled outright after a federal judge in February put wolves back on the endangered species list.
The executive director of the environmental law firm Midwest Environmental Advocates, Tony Wilkin Gibart says this ruling raises concerns about the state of democracy in Wisconsin.
“Even though the majority [of Wisconsin voters] voted for the Governor’s [Evers] clean water agenda, the previous governor’s appointees are still controlling state natural resources policy and those appointees that remain on the Natural Resources Board have used that power to weaken clean drinking water standards.” He adds, “There are some significant implications of this decision to the rest of the DNR as it relates to the health of our democracy in Wisconsin.”
Dave Clausen served on the Natural Resources Board from 2006 to 2013. The last year and a half of his term, Clausen chaired the board.
Looking back, Clausen says board members were able to sort out differences in opinion amicably.
“That has kind of deteriorated and been open hostility or differences of opinion between [DNR] management and the board now and that’s something that never happened when I was on the board.” He says, “When I was on the board, science was pretty greatly respected; people came with good science. Natural resources management should be scientific. I don’t see that being the case — whether it’s with wildlife management now or environmental management.”
MEA obtained Prehn emails through an open records request that show he consulted with Republican lawmakers and lobbyists about staying on the board.
The request also revealed a November 2020 an exchange between Prehn and former Republican Gov. Scott Walker.
“Fred Prehn had asked former Gov. Scott Walker if it would be appropriate for him to hold over past his term to keep Walker’s appointees in control of the board and Scott Walker said you should do that,” Wilkin Gibart says.
MEA’s lawsuit calling for the release of additional communications under the Wisconsin Public Records Law is ongoing.
“Because we believe there are other text messages that will elucidate exactly what was going on,” Wilkin Gibart says. “At the very least, I think it’s important for there to be public transparency about what’s going on because I think when folks understand the small group of people who have schemed to take away their voice as it relates to the protection of the healthy environment, there’s more motivation, more energy to change the situation in the long term.”
