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Wisconsin justices weigh challenge to swap of parkland

Associated Press

MADISON, Wis. (AP) — A conservation group asked the Wisconsin Supreme Court on Friday to let it challenge the state’s decision to transfer state park land to a company planning to build a golf course.

Friends of the Black River Forest contend that the Department of Natural Resources board’s 2014 decision to hand the Kohler Co. a 5-acre parcel and nearly 2-acre easement within the Kohler-Andrae State Park will deprive the public from enjoying that land and harm wildlife habitat.

Kohler and the DNR want the Supreme Court to toss out the lawsuit, arguing that the conservation group lacks standing to sue because course construction hasn’t begun and until it does, no one has suffered harm.

The group’s attorney, Christa Westerberg, conceded during oral arguments Friday morning that the company hasn’t closed the parcels to the public, but she said the swap has set the stage for future harm, which should be enough to keep the lawsuit alive.

Kohler-Andrae State Park encompasses about 990 acres along the shore of Lake Michigan just south of Sheboygan. The DNR’s board, which was under the control of then-Republican Gov. Scott Walker at the time, agreed to transfer the parcel and easement to Kohler so the company can build a parking lot, a maintenance facility and a road for the golf course. The company handed the DNR about 10 acres it owned west of the park in exchange.

Friends of the Black River Forest challenged the land swap in court in 2018, alleging that it would deprive group members and the public of the use of public park land, reduce habitat for a range of animals and plants, and lead to increased noise and traffic around the park.

Judges in Sheboygan and Dane counties rejected the lawsuit, saying the group lacked standing to sue because the swap itself hadn’t caused any harm. An appellate court reversed those decisions last year, finding that the swap started a sequence of events that could lead to harm.

The DNR and Kohler asked the Supreme Court to reverse that appellate decision.

The court’s conservative justices appeared to side with Shumskey. Justice Rebecca Bradley said Westerberg has to show that the swap directly caused an injury to prove standing.

“There’s a break in the link your clients are trying to make between the swap decision and injuries they could suffer in the future,” Bradley said. “The swap hasn’t injured your clients.”

Justice Brian Hagedorn said that under Westerberg’s standing theory, anyone concerned about future impacts from an agency decision could sue that agency.

“That’s almost limitless,” he said.

It’s unclear when the court might rule.

Friends of the Black River Forest won a court order in a separate lawsuit in June blocking Kohler’s permit that would allow the company to fill wetlands during course construction, mostly on property Kohler already owns.

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