Last June, the Wisconsin Supreme Court ruled that Friends of the Black River Forest did not have standing to sue the Department of Natural Resources. The grassroots group wants to stop a land swap deal in which the state deeds more than four acres of Kohler-Andrae State Park to Kohler Company in exchange for nine acres outside the park that already contain buildings and are of no conservation value. The decision was disappointing to the group, which is a Sierra Club partner and has been fighting Kohler’s plan to build a golf course north of the park for more than eight years. Kohler wants the land inside the state park to build a road to what would be its fifth golf course in Sheboygan County.
At a briefing on the upcoming spring election that will put a new justice on the Wisconsin Supreme Court, Tony Wilkin Gibart, executive director of Midwest Environmental Advocates, said, “If the logic of this decision is extended,” it will mean that, for large, powerful businesses like Kohler Company, “the door to our state Supreme Court is wide open, but if you are a citizen’s group, the door will be shut to you. What happens in February and April will have a decisive impact.”
While the state Supreme Court is supposed to be non-partisan, last June’s 4-3 decision pitted the court’s conservative majority against its three liberal justices. Justice Jill Karofsky wrote a stinging dissent in which she declared that the majority decision would “slam shut the courthouse doors” on the people of Wisconsin.
The state Supreme Court’s next decision on Kohler’s environmentally devastating golf course plan will likely take place after August 1, when the justice elected in April is seated. Two Wisconsin judges have already ruled that the wetlands mitigation permit issued to Kohler by the DNR is invalid. If that permit is reinstated, it will affect an entire ecosystem. Kohler’s plan includes clearcutting “mature woodlands of white pine, beech, and rare Lake Michigan hardwood,” according to naturalist Jim Buchholz, an expert on the area, as well as destroying rare, interdunal wetlands. The approximately 247 acres of forest and wetland in the Black River Forest where the golf course would be built is home to whippoorwills, bald eagles, bluebirds, red fox, Blanding’s turtles, endangered northern long-eared bats, and salamander. Threatened plant species include dune thistle, sand-reed grass, and marram grass. Each year, 10,000 migratory birds use the area as a stopover site.
The wetlands Kohler wants to bulldoze to build yet another golf course are some of the rarest in the world. And while a wetland mitigation permit would allow the company to destroy them, state law also calls for recreating those wetlands elsewhere. But such mitigation is simply not possible with a system of dunes that exists only on Lake Michigan’s already crowded shores.
Sheboygan Circuit Court Judge Edward Stengel, the second judge to decide against the company’s wetland permit, said in his 38-page ruling that “the original [DNR] decision to issue the wetland permit was not based on scientific facts and definitive plans, but speculation and promises.”
But almost the moment Judge Stengel’s long awaited ruling was announced, Kohler appealed. While the Wisconsin Court of Appeals has not yet announced its decision, it did side with the Friends on the standing issue. And if the appeals court rules against it, there is no doubt that Kohler Company will appeal to the Wisconsin Supreme Court.
While the upcoming Supreme Court election is technically non-partisan, politics looms large over this election. Dane County Circuit Court Judge Everett Mitchell and Milwaukee County Circuit Court Judge Janet Protasiewicz are widely held to be the liberal candidates in the race.
Both of the conservative judges running in the primary were Scott Walker appointees. Judge Jennifer Dorow was appointed by Walker to the Waukesha County Circuit Court in 2012. She was the judge in the Darrell Brooks trial, giving her state-wide name recognition. Daniel Kelly, who was appointed to the state Supreme Court by Governor Walker in 2016, is looking to regain a position on the bench that he lost in 2020 to Jill Karofsky.
The decisions governing Kohler’s wetland mitigation permit and its proposed use of state park land to build a road to a private development were made while the Department of Natural Resources was helmed by Scott Walker appointee Cathy Stepp. In keeping with Walker’s favorite slogan, the Stepp DNR was “open for business.”
But the people of Wisconsin need more than being “open for business” from their Supreme Court. “Our state Supreme Court will play a critical role in the future of environmental regulation and enforcement in this state,” Gibart said. “It will be nearly impossible for environmental regulation to work if these kinds of power grabs are allowed. The consequences of this election go beyond any one case or any one issue.” The question, he said, is “can our state government work using environmental law as intended?”
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