Wisconsin Supreme Court Hears Arguments Regarding Kohler Co.-DNR Land Swap For Proposed Golf Course

The Wisconsin Supreme Court is hearing arguments in a dispute over a land swap over Kohler Co.’s plans to build a new golf course along Lake Michigan.

In 2018, the Wisconsin Natural Resources Board approved the exchange of 4.6 acres of Kohler-Andrae State Park and an easement of almost 2 acres for 9.5 acres of Kohler Co. property. Park that the company would receive includes a rare dune system and wetlands that are home to threatened and endangered species.

Company plans to add a “world class” 18-hole golf course, 16,000 square foot clubhouse, 22,000 square foot maintenance facility and other similar sized facilities to its Whistling Straits course which recently hosted the Ryder Cup.

Kohler’s proposed golf course would involve destroy nearly four acres of wetlands, as well as removing half of the trees on the property to allow a view of Lake Michigan. The company intends to create or restore wetlands elsewhere in exchange for those that would be filled.

Friends of the Black River Forest opposed the destruction of the rare ecosystem and sued the Wisconsin Department of Natural Resources and its board of directors, arguing that the land swap violated the rules for selling or d alienation of ownership of the state park. Then Attorney General Brad Schimel and the DNR decided to dismiss the case and a Sheboygan County judge ruled the group lacked standing to pursue the land swap.

Last fall, the Wisconsin Court of Appeal overturned this decision, noting that the Friends of the Black River Forest could suffer “recreational, aesthetic and conservation injuries” as a result of the land swap.

In her submissions to the Supreme Court, Christa Westerberg, an attorney for Friends, argued that the group had standing to challenge the land swap because it had caused multiple injuries to Friends due to loss of access to the park. state and future construction activities.

“There are aesthetic impacts. There is the loss of habitat for wildlife and plants that Friends enjoy and there are impacts from increased traffic and noise, ”Westerberg said.

Supreme Court Justice Rebecca Bradley said the land swap in itself wouldn’t hurt friends, although she said the decision theoretically set Kohler’s plans in motion.

“You’ve alleged other things Kohler could do or other things MNR could do in regards to the approval of permits. All of this could certainly cause an injury, ”said Judge Bradley. “In fact, I think what Justice Stengel is getting at is that this decision, in and of itself, does not hurt your clients in any way.”

Westerberg argued that the land swap must not result in immediate injury for the group to have standing, noting that the Friends would have had no further opportunity to challenge the state land surrender.

Eric Shumsky, a lawyer for Kohler Co., argued that the group had not sufficiently established its reputation showing that it had suffered direct injuries during the land swap, as the construction of the golf course did not do part of the decision.

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“The DNR’s decision to allow the land swap ignores and does not allow any construction,” Shumsky said. “Construction is far into the future. And it depends on the future decisions of the agencies which will be taken independently according to different legal standards. “

Without borders, Shumsky argued that “anyone can sue for anything they don’t like.”

Westerberg argued State Law makes it possible to challenge administrative decisions that affect the “substantial interests” of any person. Gabe Johnson-Karp, lawyer for the DNR and its board, argued state law governing the sale of state-owned land does not indicate that lawmakers allowed complaints against council decisions.

Judge Brian Hagedorn said that the idea that anyone can challenge almost any state action they see as having a negative impact on their enjoyment of the environment “could be almost limitless.”

“It feels like a really big trick to me,” Hagedorn said.

In a press conference ahead of the arguments, Mary Faydash, president of Friends, said citizens should be allowed to protect the public lands they use and enjoy.

“It’s not hard to imagine what would happen to our parks if MNR could sell, trade or donate these treasures from our state,” Faydash said.

A consultant for the company estimates that the proposed golf course would create 227 jobs with a $ 21 million in annual economic impact on residents and businesses of Sheboygan County.

Kohler Co.’s plans to build its third championship golf course have come under scrutiny for approval under the administration of former Republican Governor Scott Walker. Wisconsin Watch reported in 2018 that MNR staff felt compelled to sign a wetland permit for the project. The investigative journal also reported that human remains of Native Americans from thousands of years ago were found during the excavation of the 247-acre site.

The company maintained that it is committed to constructing the golf course in a manner that respects the natural resources and the remains found on the property. The project also faced challenges as rising Lake Michigan water levels eroded the site.

Editor’s Note: This story will be updated.

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