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A setback for opponents of the Wisconsin DNR swapping state parkland to help a golf course developer

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Screengrab from DNR Environmental Impact Statement
An image of the proposed location of the golf course the Kohler Co. wants to build in southern Sheboygan County.

Conservatives on the Wisconsin Supreme Court have given a setback to a citizen's group who opposed the Kohler Corporation building another golf course along Lake Michigan.

A lawyer for the group says the decision may damage the rights of other people too.

Kohler, which owns the high-profile Whistling Straits and Blackwolf Run courses, wants to develop another high-end course just south of Sheboygan near the Black River and next to Kohler-Andrae State Park. About four years ago, the Wisconsin DNR, under then-Governor Scott Walker, agreed to give the company five acres of land, plus a nearly two-acre easement inside the park. In return, Kohler—a longtime maker of plumbing fixtures, which also has a growing hospitality business—said it would give the state nine acres just west of the park.

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Screengrab Friends of Black River Forest website.
A photo of the Kohler-Andrae State Park.

The Friends of Black River Forest sought to get a judge to review the DNR's decision. Kohler argued the group lacked legal standing. The company won at circuit court in Sheboygan and Madison, but lost at the State Court of Appeals.

Now, the state's highest court has ruled 4-3 that the Friends of Black River Forest group lacks legal standing, with occasional swing vote Justice Brian Hagedorn joining consistent conservatives Rebecca Bradley, Annette Ziegler and Patience Roggensack in the majority.

Friends' attorney Leslie Freehill says her clients are disappointed.

"The most immediate impact of this decision is that [of] public citizens in Wisconsin—for whom the parks are dedicated for their use and enjoyment—those citizens cannot challenge the DNR when they remove part of those parklands and give them to a private company," Freehill says.

In a written statement, the DNR responds that the legislature gave the DNR the authority to "acquire, improve, preserve and administer" the state park system and that if the land exchange with Kohler goes ahead, "the DNR will ensure the public's interests are safeguarded and secured."

But Friends group attorney Freehill says the state court ruling could also hamper citizens from challenging other government decisions. The ruling seems to throw out the zone of interest test that Freehill says has long been used for determining legal standing.

"Standing is just the threshold, the gatekeeper to even get into court. As long as you could show this decision was going to injure you and that the injury was going to fall within the zone of interest that the law was intended to protect, then you would be okay to bring your challenge into court," Freehill says.

Justice Rebecca Bradley, author of the majority opinion, insists zone of interest is not a test of standing the court has consistently applied, adding that no regulation the plaintiffs cited permits the Friends Group to challenge the DNR's decision as persons aggrieved.

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Chuck Quirmbach
The Kohler Co. already owns one golf course along Lake Michigan. This is the Whistling Straits course north of Sheboygan just prior to last year's Ryder Cup competition.

Kohler Vice-President Dirk Willis says the company looks forward to developing the public golf course on land the company has owned for 75 years. Willis says the intention remains to make the course among the top-ranked ones in the world, bringing new tax revenues to Sheboygan and more than 200 new jobs.

But there is apparently no firm start date for the project as there are still pending challenges to stormwater and wetland permits the DNR issued Kohler.

Chuck Quirmbach joined WUWM in August 2018. He focuses his longform stories on health, innovation, science, technology, transportation, utilities and business.
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