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Kohler golf course permit denied as Appeals Court upholds lower court

By: Steve Schuster, [email protected]//December 6, 2023//

Whistling Straits Photo by Paul Seifert / "Wisco Golf Addict"

Kohler golf course permit denied as Appeals Court upholds lower court

By: Steve Schuster, [email protected]//December 6, 2023//

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Published Dec. 6, 2023 at 11:05  a.m. CST.

The Wisconsin Court of Appeals has upheld the lower court’s decision to deny Kohler Co. a wetland permit to build the company’s sixth golf course on sacred Native American burial land that would also have had a widespread environmental impact, according to litigants.

According to court documents obtained by the Wisconsin Law Journal, the Court of Appeals ruling Tuesday stipulated that the DNR “lacked sufficient information” at the time it issued the wetland permit to Kohler Co.

As previously reported by the Wisconsin Law Journal, after Kohler Co. contributed to more than $80,000 to former Gov. Scott Walker’s campaign, Walker allegedly pressured the DNR to push the permit through.

Kohler Native American

Friends of the Black River Forest Inc., the grassroots group that requested a review of the wetland permit, was pleased by the Court of Appeals ruling.

“We are ecstatic and appreciate the court’s well-reasoned opinion,” said Friends of the Black River Forest in a written statement.

“Holding the DNR to its mission regardless of who is applying for a permit has been a major goal,” said Claudia Bricks, Friends co-spokeswoman and another party to the challenge, “and we have succeeded,” she said.

During an interview with the Wisconsin Law Journal on Wednesday, Attorney Christa Westerberg, who represented the environmental group, said, “This decision affirms the Legislature’s choice that the DNR is not just empowered, but is also required, to comprehensively review the environmental impact of projects that fill wetlands.”

In response to the Appeals court decision, on Wednesday, Kohler company issued the following statement:

“We are disappointed in the decision by the Wisconsin Court of Appeals to uphold a Circuit Court ruling in which an Administrative Law judge had rescinded the wetland permit that was previously issued by the Wisconsin Department of Natural Resources for our proposed golf course on Kohler Co. property in the City of Sheboygan.

We will now consider options to determine the best path forward for this project.  Our company has an established track record of sound environmental stewardship with a commitment to following all applicable municipal, state, and federal regulations. All along, our approach has been to enhance adjacent park facilities and to avoid, minimize, and mitigate potential impacts.

Our intention with this public golf course is for it to be an asset to our region, offering many benefits for the City of Sheboygan, including an expanded tax base, new tax revenues, and over 200 new jobs. This is a good project that makes sense for the community and its future by continuing to elevate the area’s growing reputation as a great place for tourists to visit and residents to live and raise their families.”

Neighbors of the proposed golf course and the Association on American Indian Affairs disagreed with Kohler.

“It is never too late to do the right thing. This decision offers the Kohler Company the opportunity to act in accordance with their values by preserving this precious land and the sanctity of native burial sites,” said Dr. Belle Rose Ragins during an interview with the Wisconsin Law Journal Wednesday. Ragins lives near the proposed golf course site.

Attorney Shannon O’Loughlin (Choctaw) and  Chief Executive Association on American Indian Affairs told the Wisconsin Law Journal Wednesday, “We are, or, The Association on American Indian Affairs is, grateful that the Court of Appeals simply followed the law and denied the permit. So many times courts ignore the importance of environmental and cultural heritage laws that require consultation with Native Nations, and instead act politically to protect the interests of corporations’ bottom dollars. It is not very often that courts do the right thing to protect our shared ecosystems and preserve our cultural heritage for the future.”

The Wisconsin Law Journal also reached out to the DNR on Wednesday and received the following response:

“We are reviewing the decision, however the department cannot comment on matters in active litigation,” a DNR spokeswoman said.

In the latest court of appeals ruling, the court cited Wisconsin wetland permit statutes that “require the DNR to consider the entirety of a proposed project when addressing a wetland individual permit.”

This required the DNR to consider “whether the proposed project will result in other significant adverse environmental consequences … beyond the physical footprint of directly impacted wetlands.”

The Appeals Court also affirmed the ALJ’s findings that key information was missing about the project’s environmental impacts, including that the nutrients and pesticides applied as part of the project would not result in significant adverse impacts to wetland functional values.

“Disrupting wetland systems has far reaching impacts on groundwater, water bodies, hydrology and habitat. This decision will become valuable authority for future cases,” Friends of the Black River Forest Inc. added.

Also as previously reported by the Wisconsin Law Journal, Kohler Co.‘s plans to build its sixth golf course have run into a number of legal challenges after human remains were recovered from seven locations during a 2018 field investigation, according to a letter and report obtained by the Wisconsin Law Journal.

Plans to advance the new golf course have been no stranger to litigation over a wide range of issues, the most recent of which have nothing to do with the Native American remains found.

As previously reported by the Wisconsin Law Journal, in 2020, the Wisconsin Supreme Court ruled in favor of Kohler Co. that the city of Sheboygan properly annexed land for a golf course back in 2017.

Kohler officials have an opportunity before them to do what’s right for the people of Wisconsin, Native America and the environment, said Attorney Shannon O’Loughlin during an interview with the Wisconsin Law Journal.

O’Loughlin, who teaches at Johns Hopkins University, is a citizen of the Choctaw Nation of Oklahoma, as well as the chief executive of the Association on American Indian Affairs, the oldest nonprofit serving Indian Country since 1922.

Should the Wisconsin Court of Appeals allow Kohler to proceed with golf course development?

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O’Loughlin said, “this is an opportunity for Kohler to return the land and burial sites back to tribes to care of their ancestors’ remains.”

“Much of Corporate America believes that Native peoples don’t exist. But being in a state like Wisconsin, which is so rich with Native culture and government, Kohler has an opportunity to do the right thing. Tribes contribute to Wisconsin’s economy, provide education, employment and economic growth for the state and local communities around the reservation,” O’Loughlin also noted.

According to O’Loughlin, if the land had been on a reservation and not a state park, federal and tribal law would have given priority to the tribes.

“Tribes would have had a seat at the table to decide what happens to their ancestors’ remains,” she said.

Kohler is not “connecting the past with the present. Our ancestors are relatives of present-day Native nations on lands they were removed from, often violently,” O’Loughlin added.

“The way Kohler talks about this, they have talked to a few tribal members, which is not how you work with sovereign Native nations,” O’Loughlin said, noting that tribes are separate and sovereign. “They have their own laws regarding cultural heritage and should be onsite.

“When our ancestors were buried, they weren’t buried randomly — it was with love and intention,” she added.

Change in the wind

In 2021, an administrative law judge sided with Friends of Black River Forest, the local group advocating for preservation of the land. The group sued to prevent Kohler Co.’s plans to advance construction on the future golf course. The issue in this matter pertained to a whether a wetland permit issued by the Wisconsin Department of Natural Resources (DNR) was proper.

During an interview with the Wisconsin Law Journal, one of the group’s members, Mary Faydash, says former Republican Gov. “Scott Walker pressured the DNR to advance a wetlands permit.”

The DNR issued a permit to fill 1.5 acres of rare wetlands and a land swap. But it gets worse, Faydash said.

“Kohler Company heavily donated to Walker, and then the DNR stated on their application to the National Park Service that the land wasn’t worth any value,” Faydash claimed.

“This is sacred ground. That’s what’s so alarming. Now the Wisconsin Supreme Court verdict opens the doors to what? Any state park could be used as bargaining chip by an administration,” Faydash said.

“It has been well documented that the DNR was pressured to get the permit through to create the land swap deal to give prime state park land – 6 acres of beachfront dunes – to the Kohler Company to level for their maintenance facility,” Faydash said during a July interview with the Wisconsin Law Journal.

Kohler Native American

“We have been litigating to hold the DNR and the Kohler Company to the letter of the law,” Faydash said.

“The Kohler Company using Walker and the DNR disenfranchised our residents from our ability to protect ourselves from pesticides, tournament traffic, depletion of wells, increased flooding from deforestation and filling of wetlands, decreased recreational activities from land stripped of its trees and vegetation, caused contamination of fish, increased ozone pollution from hundreds of diesel engines during construction and the use of golf course maintenance equipment,” Faydash added.

Molly Meister, a spokeswoman for the DNR, deferred all questions about this project to UW–Milwaukee, which has been working for the Kohler Co. on the project’s archeological aspects.

On June 26, the Wisconsin Law Journal reached out to the DNR again, this time about Walker’s ‘pay-to-play’ accusation.

Meister said, “in early 2019, an administrative law judge invalidated the wetland permit issued to Kohler Company. Kohler appealed that decision, and the case is presently at the Court of Appeals. The DNR cannot comment on active litigation matters.”

The circuit court also ruled in favor of Friends of Black River Forest in a 38-page decision that rejected Kohler’s interpretations of law and description of the ALJ’s decision.

Attorney Christa Westerberg of Pines Bach LLP, representing Friends of the Black River Forest, argued in the appellate brief that “Kohler relies on convoluted and incorrect interpretations of the law and the ALJ opinion, and an oversimplification of facts about the extraordinarily sensitive proposed golf course site.”

Kohler appealed.

In Kohler Co.’s reply brief also obtained by the Wisconsin Law Journal, counsel for Kohler argue that “in reversing the Department of Natural Resources’ (“Department”) decision to grant Kohler Company (“Kohler”) a wetland fill permit, the ALJ made multiple errors that require reversal.”

The law firm of Reinhart Boerner Van Deuren is representing the Kohler Co. Attorneys Deborah Tomczyk, Jessica Hutson Polakowski and Monica Mark are representing Kohler in the latest appeal, according to court documents. Washington, D.C.-based appellate lawyer Eric Shumsky is also listed as one of Kohler Co.’s attorneys.

Over the Summer of 2023, The Wisconsin Law Journal reached out to Tomczyk, Polakowski, Mark and Shumsky. Reinhart attorneys deferred questions to the Kohler Co.; Shumsky did not respond.

That case was just upheld by the Wisconsin Court of Appeals.

Plans to advance the golf course have also been litigated over the public’s right to object to the state selling a public park to build a high-end golf course. As previously reported by the Wisconsin Law Journal, in June 2022, the Wisconsin Supreme Court ruled that state law does not protect the public use of the park.

The court’s 2022 4-3 ruling declared that the Friends of the Black River Forest can’t challenge the Department of Natural Resources policy board’s 2014 decision to hand Kohler Co. 5 acres of Kohler-Andrae State Park and an additional 2-acre easement, to be used in the company’s planned “world-class” golf course in Sheboygan County.

Back in 2018 and 2019, UW-Milwaukee discovered fragments of human bone and teeth underneath the privately-owned portion of forest and wetlands on the future site of the new Kohler Co. Golf course, Faydash said.

“This has been a very rife location for Native Americans in this area along this section of Lake Michigan. It confirmed for us this whole area is pretty significant to not only indigenous culture history, but also ours. We’ve worked hard to preserve this land,” Faydash added.

Faydash also said the general public is scared to speak up against Kohler.

“People will not speak about what the company is doing because they are fearful of repercussions, or don’t understand how they will be critically impacted,” Faydash added.

“When Kohler Company first came to the town of Wilson Board in 2011 with a proposal to use its 247 acres as a Tented Forest — a glamping project — the DNR coordinated with the company to deceive the Board regarding ways to get an entrance into its land that Kohler preferred. After changing its direction to build a golf course, Kohler flooded our town with flyers telling us to vote for the development and local jobs. Our group, not yet incorporated, wanted oversight by our Kohler-friendly Board that had shown a lack of interest and incompetency in evaluating any environmental impacts,” Faydash added.

None of Sheboygan city or county officials returned phone calls from the Wisconsin Law Journal.

During an interview with the Wisconsin Law Journal in July, Jennifer Haas, the director of UW-Milwaukee Archaeological Research Laboratory Center, said Kohler needed to obtain a permit from the Army Corps of Engineers as part of the proposed development.

“Because of federal permit action, the Corps is required to look at cultural resources, including archaeological sites,” Haas said, noting that UWM engaged with Kohler to “do some archaeological investigations and to assess archaeological sites present, and some additional studies to determine if the site is significant.”

The Army Corps report obtained by the Wisconsin Law Journal said that the land has met the requirements for national historic preservation.

Kohler Native American

“During UWM’s investigation, we did identify an expansive Native American village site throughout proposed development area,” Haas said.

“Subsequent investigations by private sector companies resulted in the finding of a significant archaeological site,” she added.

Under the proposed development, the State Park would build a new entrance, and a new road would need to be cut through the state park, Faydash noted.

According to a report obtained by the Wisconsin Law Journal, during Phase III data recovery operations at Kohler Dunes and Swales, a multi-component prehistoric Native American habitation and uncatalogued burial site was uncovered.

The report continues to describe how the human remains belonged to Late Archaic, Woodland and Oneota Native Americans.

Kohler Native American Kohler Native American

Who knew what when?

“We have known for a long time there was a burial site on this land,” said Belle Ragins, during a phone interview with the Wisconsin Law Journal.

Ragins, who lives near the proposed development, coincidentally is also a UW-Milwaukee professor, though in a different department (the business school). Ragins (who is not of Native descent) currently serves as a University of Wisconsin distinguished professor, but was not speaking on behalf of the university.

Ragins said that not only did Kohler Co. officials know the land was sacred, but they continued to disrespect human remains.

“I don’t think anyone would want a multi-million dollar company to build a luxury golf course on the remains and burial site of their ancestors. The images of golfers on these sites are both disrespectful and abhorrent,” Ragins said, noting that one of Kohler’s existing golf courses, Blackwolf Run, is named after a Ho Chunk Nation Chief.

Hole number 2 at Blackwolf Run is called Burial Mounds.

Kohler Native American

“The Kohler Company may claim that their new course will treat burial mounds with respect, but look at their track record at Blackwolf Run, a neighboring course built on Native land. Their course appropriates Chief Black Wolf’s name, their website characterizes his tribe as warlike and violent, and they use simulated burial mounds as navigational hazards for their golfers. The company commodifies native people at Blackwolf Run and are likely to continue this tradition at their new golf course,” Ragins said.

“This is truly a commodification and commercialization of Native culture. If the Kohler Company truly values diversity like they claim, they would not build a luxury golf course on Native American burial grounds. The State Park land they are taking away is used by Wisconsin families who can’t afford a tee time at a Kohler golf course,” Ragins said.

“There’s a word for this — it’s called environmental racism,” Ragins added.

Kohler officials disagreed.

“Public support was the reason Kohler Co. got into the golf business. Our reputation for developing world-ranked public golf courses is well established and has resulted in significant public support and accolades. We have no reason to think differently about a favorable response for this new course. There has been a lot of scrutiny put into this potential development, including nearly four years of analysis, several public meetings, and a detailed and comprehensive environmental impact review. All along, our approach has been to avoid, minimize and mitigate potential impacts and to enhance adjacent park facilities,” Kohler officials said back in July.

O’Loughlin noted that Kohler is at a legal crossroads and can still do the right thing.

“If Kohler wants to be a good neighbor, not just to Native nations but to all people in Wisconsin, they will accept accountability and responsibility for what they would like to do. Kohler will work with the origin communities and nations to actually use this an educational opportunity, because it sounds like what they are doing now is spreading ignorance.”

Ragins then pointed out what she believes to be a double standard.

“There are a lot of cemeteries around here. Would Kohler ever think of building a golf course of on the remains of any of their ancestors?” Ragins asked.

The Kohler Co. proceeded with the golf course development after archeologists initially identified a site of burial mounds and an initial cache of Woodland-era Native American artifacts in 2016.

In response, Kohler Company officials said, “an approved archeology plan was developed in partnership with Native American tribes, the State Department of Natural Resources, the State Historical Society, and the U.S. Army Corps of Engineers. We are following all terms of the agreement and all appropriate laws that includes a detailed notification and recovery process involving discoveries of human remains fragments.”

When the Wisconsin Law Journal asked Kohler officials if now that the human remains discovery is known, will they still proceed with the golf course project, Kohler officials said, “The archaeology work presents an important opportunity for discovery, deeper learning and working together in a spirit of respect and collaboration. The known burial mounds on the property will be preserved and left undisturbed.”

O’Loughlin said, “I can’t believe (anyone) in this day and age is that ignorant to these issues and that they are clueless about the land they usurped for their commercial venture.”

“From a business perspective, one would think Kohler, a company that says they value diversity and environmental stewardship, would not plow through a state park to build luxury golf course on Native American burial sites,” Ragins said.

“There is such hypocrisy here. It is truly baffling that the company is not aware of the effects,” Ragins added.

According to Ragins, companies such as Kohler have a social responsibility beyond looking at profits, but, “they really don’t care,” Ragins said, noting that the timing and location is also off from a business plan perspective.

“Let’s be honest: Wisconsin isn’t Myrtle Beach. Golfing is seasonal in Wisconsin, not to mention the ongoing labor shortages,” she said.

Golfer’s perspective

The Wisconsin Law Journal reached out to several golfers for their perspective back in July. Most of the golfers interviewed had no idea about the environmental implications of the golf course’s development or that Native American remains were found.

During a telephone interview with the Wisconsin Law Journal from Blackwolf Run, avid golfer Gary D’Amato, who previously wrote for the Milwaukee Journal Sentinel said, “this is news to me” regarding the discovery of human remains on the proposed golf course.

“I didn’t know about the human remains, that makes it even more complicated,” D’Amato said back in July.

“It’s land that Kohler Company owns, they should be able do what they want with land that they own,” he added, noting that, “the economic impact would be huge. It would be World Class golf course that would bring millions and millions of dollars in the region. Does that offset some of the negative things? I don’t know,” he added.

Paul Seifert of WiscoGolfAddict.com says he plays golf at Kohler several times a year and was not aware that the proposed golf course was on Native American burial land.

“That certainly needs to be vetted out,” Seifert said, noting that Kohler has done some great things in advancing Wisconsin’s profile for golf and tourism, in general.

“What Kohler has done for the state of Wisconsin and the golf industry is unbelievable. Wisconsin is not just on the map for golf destinations these days, but we are a leader and that is in large part due to Kohler’s incredible “vision.”

Whistling Straits Photo by Paul Seifert / “Wisco Golf Addict”

“At the end of the day, I don’t think Kohler wants a PR nightmare,” said Brian Weis, a frequent golfer at Kohler.

Weis said he too was not aware of the environmental consequences for building the golf course, or that the venue is a Native American burial site.

“I don’t think anybody was aware; I wasn’t aware of it,” he said.

Praising the company, Weis also noted Kohler is an advertiser of his.

“Kohler has built the Disneyland of golf for golfer. It’s a Midwest golf mecca. When they announced the new course, it was hailed as another amusement ride at Disney, the excitement was there,” Weis said.

When asked by the Wisconsin Law Journal how he felt about playing golf on sacred land that contains the burial of Native American remains, he said, “I don’t think (Kohler) included that part in the press release. If Kohler wasn’t attached to this project, would people be this outraged?” he asked.

Weis and Seifert mentioned how much money the golf course could bring into the local economy, citing examples from The Ryder Cup, PGA Championship.

“Golfers want to play storied courses,” Weis said, noting that the proposed course was designed by the “brilliance” of the late Pete Dye. Dye passed away in 2020.

Seifert also noted that locals are resistant to the development and to change overall.

“The perspective I’ve always heard is that the local community doesn’t want additional high-end development that will continue to drive up the cost of living for local residents,” Seifert added.

On Sept. 13, 2018, UW-Milwaukee’s director of Cultural Resource Management sent a letter to the Wisconsin Historical Society stating that “human remains were inadvertently disturbed during Phase III archaeological excavations” at the site.

Faydash said Kohler Co. executives knew about the land being sacred, yet continued to advance plans to build a golf course.

“Of course they knew about it,” Faydash said in July.

 

Kohler Native American

Kohler is declining to comment on what and when they knew about Native American remains on the proposed golf course site. However, Haas, the director of UW-Milwaukee Archaeological Research Laboratory Center, told the Wisconsin Law Journal that the Wisconsin Historical Society maintains a database of documented archeological and burial sites.

According to emails obtained by the Wisconsin Law Journal authored by the U.S. Army Corps, in 2018, Kohler had ended its relationship with Commonwealth Heritage Group and had retained UW-Milwaukee’s Cultural Resource Management Program to conduct a data recovery plan on the proposed land.

“Part of the work we do is access to Wisconsin Historic Records database, which has record of all archaeological burial sites been reported to society,” Haas noted.

Haas serves as the principal investigator for the project.

She said there was a burial site reported to the north of the development area, but this project avoided that site.

According to Haas, development of the land would have long lasting consequences.

“If they develop this area, it would have an adverse impact,” Haas said, referring to archeological site.

According to neighbors of the project, photographs were taken of the Native American remains, which is a taboo in Native American culture.

Wisconsin and Native American Response

“I can’t believe they took these pictures. Members of tribes impacted would say that is like looking at my grandmother naked. It’s deeply offensive,” said O’Loughlin.

“Obviously this is extremely offensive, harmful and painful,” O’Loughlin added, noting that in Native culture, “when we pass on, we believe our body will be cared for to continue our journey.”

The Wisconsin Law Journal reached out to several Sheboygan County officials, Congressional members and state legislators. None have returned calls or responded to emails.

In response to the Wisconsin Law Journal’s inquiry, the Kohler Co. issued the following statement back in July:

“Kohler Co. has owned this property for more than 75 years and looks forward to developing it into a world class golf course that respects the property’s natural character and surrounding community, while opening these private lands for public use for the first time.

“Our company has an established record of environmental stewardship, and we institute sustainable practices at all our golf courses including the use of organic fertilizer applications where possible and select grasses that have natural resistance to regional diseases to help reduce pesticides. Sensors, which can be tied to GPS mapping, accurately measure soil moisture providing us with a better understanding of required irrigation quickly and efficiently.

“We continue to evolve our sustainable practices to further reduce energy consumption and harness renewable energy sources, such as moving to the primary use of EV mowers, landscape, and maintenance equipment to decrease carbon emissions, while also implementing solar to charge equipment and maintenance facilities.

“Our intention with this public golf course is for it to be among the top-ranked golf courses in the world. It will be an asset to our region, offering many benefits for the City of Sheboygan, including an expanded tax base, new tax revenues and over 200 new jobs. This is a good project that makes sense for the community and its future by continuing to elevate the area’s growing reputation as a great place for tourists to visit and residents to live and raise their families,” said Dirk Willis, vice president – Golf, Landscape & Retail, for Kohler Co.’s Hospitality & Real Estate Group.

Neighbors disagree

While Kohler contends “we are honoring the contours of the land. … We are cutting corridors through the land so that people can see through to the lake for the first time,” Faydash disagreed back in July.

“Kohler’s stewardship does not exist,” she said, citing fines and legal troubles Kohler has had in the past regarding environmental regulation.

In 2020, the Department of Justice, Environmental Protection Agency (EPA), and the State of California announced a settlement with the Kohler Co. for alleged violations of the Clean Air Act and California law. Under the terms of the settlement, Kohler was required to pay a $20 million civil penalty and retire more than 3 million kilograms (kgs) of unlawfully generated hydrocarbon (HC) + oxides of nitrogen (NOx) emission credits, according to documents obtained by the Wisconsin Law Journal.

In closing, O’Loughlin said, “I recommend Kohler’s governmental affairs and C-Suite leadership mitigate the damage already done by inviting tribal consultation and leadership to learn more about why these issues are so damaging and how Kohler has been swept in historic racism they aren’t even aware of. Is this who Kohler wants to be?”

Kohler Native American

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