Challenge to land swap for proposed Kohler golf course thrown out

A conservative majority of the Wisconsin Supreme Court ruled Thursday that a grassroots group has no standing to challenge the transfer of state park land for a proposed golf course. Liberal justices say the decision gives the Wisconsin Department of Natural Resources free rein to redraw state park boundaries.

Friends of the Black River State Forest sued the DNR and its policy-setting board for approval of a land exchange in 2018. The Natural Resources Board allowed transferring nearly 5 acres of Kohler-Andrae State Park and a roughly 2-acre easement in exchange for 9.5 acres of Kohler Co. property.

The Friends group argued the land swap would harm public access and wildlife habitat, saying the exchange violated rules over selling or disposing of state park property.

The DNR moved to dismiss the case under former Republican Gov. Scott Walker’s administration, and judges in Sheboygan and Dane counties ruled the group had no standing in the exchange. The Wisconsin Court of Appeals reversed that ruling in 2020, finding the Friends could suffer harm from the land transfer. Kohler and the DNR argued the group hasn’t suffered injuries because no construction has begun.

In a 4-3 decision Thursday, the court’s conservative majority reversed the appeals court ruling.

“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,” wrote Justice Rebecca Bradley for the majority. “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.’”

The court’s three liberal justices disagreed. In her dissent, Justice Jill Karofsky wrote the court’s conservative majority went to great lengths to “slam the courthouse doors” on those seeking review of agency actions. She accused conservative justices of twisting the statutes and bending case law, saying its approach gives the DNR an unrestricted right to redraw state park boundaries.

“In redrawing the boundaries, DNR will be able to remove, and then sell off, every last inch of this cherished land to private entities, and not a single Wisconsin citizen — for whom the parks exist — could challenge that conduct in court,” wrote Karofsky. “Not only is that result absurd, it betrays the broad cause of action the legislature endowed on citizens to challenge such lawless agency behavior in court. We have upheld that right for many just like the Friends, and we should uphold that right here.”

Kohler wants to add a “world class” 18-hole golf course, up to 16,000-square-foot clubhouse, 22,000-square-foot maintenance facility and other amenities similar in size to its Whistling Straits course. That existing course recently hosted the Ryder Cup. The project is anticipated to create 227 jobs with a $21 million annual economic impact on Sheboygan County residents and businesses.

Mary Faydash, president of the Friends group, said the ruling will make it more difficult for the public to challenge any “giveaway” of state park land.

“I’m fighting this until the end because it’s absolutely wrong,” said Faydash. “It’s not community-based. It’s not pro-environment, and basically they’re on the side of denying citizens their right to use lawful means for redress.”

The park land that’s proposed for development includes a rare dune system and wetlands that support threatened and endangered species. Kohler would destroy nearly 4 acres of wetlands, as well as remove half the trees on the property to allow for views of Lake Michigan. The company intends to create or restore wetlands elsewhere in exchange for those that would be filled.

In 2018, Wisconsin Watch reported DNR staff felt pressured to sign off on a wetlands permit for the project. An administrative law judge revoked that permit in 2019. Kohler appealed the decision, and a Sheboygan County judge ruled in June last year that the permit can’t be reinstated. Kohler now wants a state appeals court panel to reverse that decision, and a ruling is still pending.

In a statement, a DNR spokesperson said the agency is charged with being a steward of the public’s interests in state park lands.

“The Department takes that responsibility seriously and works hard to ensure that the public’s recreational, environmental, aesthetic and other interests are protected,” said Sarah Hoye, a DNR spokesperson. “If land is exchanged with Kohler in the future, the DNR will ensure the public’s interests are safeguarded and secured.”

Dirk Willis, Kohler’s vice president of golf, landscape and retail, said company officials are pleased the state Supreme Court upheld the land exchange.

“We look forward to developing our public golf course in the City of Sheboygan on property owned by Kohler Co. for more than 75 years, and are committed to creating a world-class golf course that respects the property’s natural character and opens up private land to the public for the first time,” said Willis in a statement. “Our company has an established track record of good environmental stewardship with a commitment to following all applicable municipal, state and federal regulations.”

Kohler-Andrae State Park, which spans more than 900 acres, extends along the Lake Michigan shoreline near Sheboygan. The park sees more than 400,000 visitors each year.