Friends of the Black River Forest v. DNR ( 2022 )

2022 WI 52SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP299 & 2019AP534
COMPLETE TITLE: Friends of the Black River Forest and Claudia
Bricks,
Petitioners-Appellants,
v.
Kohler Company,
Intervenor-Respondent-Petitioner,
Wisconsin Department of Natural Resources and
Natural Resources Board,
Respondents-Respondents-Cross
Petitioners.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 394 Wis. 2d 523, 950 N.W.2d 685(2020 – unpublished)
OPINION FILED: June 30, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 1, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sheboygan & Dane
JUDGE: Edward L. Stengel & Stephen E. Ehlke
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN,
JJ., joined. HAGEDORN, J., filed a concurring opinion. KAROFSKY,
J., filed a dissenting opinion, in which ANN WALSH BRADLEY and
DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the intervenor-respondent-petitioner, there were briefs
filed by Deborah C. Tomczyk, Jessica Hutson Polakowski, Monica
A. Mark, and Reinhart Boerner Van Deuren S.C., Madison. There
was an oral argument by Eric A. Shumsky.
For the respondents-respondents-cross-petitioners, there
were briefs filed by Gabe Johnson-Karp, assistant attorney
general, with whom on the briefs was Joshua L. Kaul, attorney
general. There was an oral argument by Gabe Johnson-Karp.
For the petitioners-appellants, there was a brief filed by
Christa O. Westerberg, Leslie A. Freehil, Aaron G. Dumas and
Pines Bach LLP, Madison. There was an oral argument by Christa O
Westerberg.
Amicus curiae briefs were filed by Katie Nekola and Evan
Feinauer for Clean Wisconsin, Inc.
2
2022 WI 52NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP299 & 2019AP534
(L.C. No. 2018CV178 & 2018CV2301)
STATE OF WISCONSIN : IN SUPREME COURT
Friends of the Black River Forest and Claudia
Bricks,
Petitioners-Appellants,
v.
FILED
Kohler Company,
JUN 30, 2022
Intervenor-Respondent-Petitioner,
Sheila T. Reiff
Wisconsin Department of Natural Resources and Clerk of Supreme Court
Natural Resources Board,
Respondents-Respondents-Cross
Petitioners.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN,
JJ., joined. HAGEDORN, J., filed a concurring opinion. KAROFSKY,
J., filed a dissenting opinion, in which ANN WALSH BRADLEY and
DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA GRASSL BRADLEY, J. Kohler Company (Kohler),
the Natural Resources Board (the Board), and the Department of
No. 2019AP299 & 2019AP534
Natural Resources (the Department) seek review of a court of
appeals decision1 reversing orders of the circuit court for
Sheboygan and Dane Counties dismissing challenges by the Friends
of the Black River Forest and Claudia Bricks (collectively, the
Friends) to a land exchange between Kohler and the Department.2
Kohler asserts the Friends do not have standing to challenge the
Board's land swap decision under Wis. Stat. §§ 227.52 and 227.53
(2017–18)3 because their alleged injuries satisfy neither the
"injury-in-fact" nor the "zone of interests" elements of the
two-part standing analysis, both of which must be satisfied in
order to establish standing. Kohler claims the court of appeals
decision unlawfully expanded the zone, opening the door to
challenges of any agency decision related to the management of
state-owned lands. The Department separately contends the
Friends lack standing under the "zone of interests" prong.
¶2 We hold the Friends lack standing to challenge the
land transfer decision. We assume without deciding that the
Friends allege sufficient injuries under the "injury-in-fact"
element of the standing test. While historically we have
labeled the second prong of the test as a "zone of interests"
1 Friends of the Black River Forest v. DNR, Nos. 2019AP299 &
2019AP534, unpublished slip op. (Wis. Ct. App. Sept. 15, 2020)
(per curiam).
2 The Honorable L. Edward Stengel, Sheboygan County Circuit
Court, and the Honorable Stephen E. Ehlke, Dane County Circuit
Court, presided.
3 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
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No. 2019AP299 & 2019AP534
inquiry in line with federal standing principles, this
nomenclature has no basis in the text of Wis. Stat. §§ 227.52 or
227.534 and does not accurately describe the test we have
consistently applied. We ground our decision instead in our
well-established formulation for standing to challenge
administrative decisions, which requires the alleged injury to
adversely affect "an interest which the law recognizes or seeks
to regulate or protect." Waste Mgmt. of Wis., Inc. v. DNR, 144
Wis. 2d 499, 505, 424 N.W.2d 685 (1988); see also Foley-
Ciccantelli v. Bishop's Grove Condominium Ass'n, Inc., 2011 WI
4 Evidently dissatisfied with the outcome in this case,
Justice Karofsky launches a diatribe against textualism.
Dissent, ¶¶71-73. Justice Karofsky mimics Justice Dallet's
disparagement of textualism and the canons of statutory
construction the approach employs as comprising "'a rhetorical
smokescreen' obscuring a result-oriented analysis." Id., ¶73;
James v. Heinrich, 2021 WI 58, ¶23 n.12, 397 Wis. 2d 517, 960
N.W.2d 350. Like Justice Dallet, Justice Karofsky fundamentally
"misunderstands how to interpret legal texts." James, 397
Wis. 2d 517, ¶23 n.12. Justice Karofsky thinks textualism means
judges "[j]ust read and apply the law as written. Simple,
right?" Dissent, ¶72. Justice Karofsky's conception of
textualism is uninformed. "[N]either written words nor the
sounds that the written words represent have any inherent
meaning. Nothing but conventions and contexts cause a symbol or
sound to convey a particular idea." James, 397 Wis. 2d 517, ¶23
n.12 (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts xxvii (2012)). Textualism and the
canons which guide its application "represent 'a generally
agreed-on approach to the interpretation of legal texts.'"
Id. (quoting Scalia & Garner, supra, at xxvii).
Justice Karofsky's "marginalization of their role flies in the
face of centuries of jurisprudence and her proffered method of
statutory interpretation falls on the fringes of acceptable
approaches, far outside of the judicial mainstream." Id.
"'[L]egislators enact; judges interpret' and the canons simply
'explain how [judges] should perform this task.'" Id. (quoting
Scalia & Garner, supra, at xxx).
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No. 2019AP299 & 2019AP534
36, ¶55, 333 Wis. 2d 402, 797 N.W.2d 789 (lead opinion) ("[T]he
question is whether the party's asserted injury is to an
interest protected by a statutory or constitutional
provision."); Fox v. DHSS, 112 Wis. 2d 514, 529, 334 N.W.2d 532(1983) ("[T]he injury must be to a legally protected
interest.").
¶3 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.
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." Accordingly, we reverse the court of
appeals.
I. BACKGROUND
A. The Land Swap Decision
¶4 Kohler-Andrae State Park (the Park), located on the
Lake Michigan shoreline in Sheboygan County, borders private
land owned by Kohler. In 2014, Kohler revealed plans to build
an 18-hole golf course, which has since become the subject of
numerous lawsuits, including this one.5 In June 2017, the
Department initiated a master planning process to consider
See Friends of the Black River Forest v. DNR, 2021 WI App
554, 964 N.W.2d 342; Kohler Co. v. DNR, No. 2021AP1187 (Wis. Ct.
App., Filed July 12, 2021); Friends of the Black River Forest v.
DNR, No. 2019CV000080 (Wis. Cir. Ct. Sheboygan Cnty., Filed Feb.
8, 2019).
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No. 2019AP299 & 2019AP534
Kohler's request to use Park land for the proposed golf course.
As part of this process, on February 16, 2018 the Department
recommended a land exchange agreement with Kohler, seeking
approvals from both the Board and the governor.
¶5 At its next meeting later that month and following
public comment, the Board first determined that a 4.59-acre
parcel of upland woodland within the Park was "not being used
for any park functions" and was no longer needed for the state's
use for conservation purposes and therefore removed it from Park
boundaries. The Board next approved an agreement between the
Department and Kohler for a land exchange, under which the
Department would transfer the 4.59 acres to Kohler, in addition
to a 1.88-acre easement, in exchange for 9.5 acres of Kohler
land——including upland woodland, crop land, and a building——
straddling the boundary of the Park. Kohler planned to use the
4.59 acres for a maintenance facility and parking area, and the
easement for public access to the golf course. The agreement
required "[r]estrictions placed on the deed transferring title
to Kohler" in order to "ensure that" the transferred land "is
adequately landscaped and screened, that its use will not
compromise park aesthetics, and that its proposed future use
will be compatible with adjacent park uses."
B. The Friends' Amended Petition and Circuit Court Proceedings
¶6 The Friends filed a Wis. Stat. ch. 227 petition in
Sheboygan County Circuit Court seeking review of the Board's
February 28, 2018 "vote to convey 4.89 acres of land within
Kohler-Andrae State Park to Kohler Co., as well as a 1.88 acre
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No. 2019AP299 & 2019AP534
easement."6 Kohler intervened and filed a motion to dismiss
under Wis. Stat. § 227.56(3), arguing that the Friends were not
an "aggrieved" party because, as relevant here, they failed to
satisfy both the "injury in fact" and "zone of interest" prongs
of the test for Chapter 227 standing. The Friends filed an
Amended Petition, identifying the following alleged injuries
from the land exchange:
24. Petitioners are aggrieved by the Respondents'
decisions to approve the land transaction. The
Respondents' decision permanently eliminates
Petitioners' opportunity to use land within Kohler
Andrae State Park currently available to the public
for recreation and enjoyment, which members of FBRF
such as Ms. Felde and Ms. Bricks have used and enjoyed
previously, and would continue to use and enjoy but
for Respondents' decision.
25. The Respondents' decision will also reduce
habitat for and populations of plants, birds, and
animals that are currently enjoyed by FBRF members
such as Ms. Felde, as well as Ms. Bricks, harming
their ability to observe wildlife and study nature in
and around the park.
26. The Respondents' decision will impact and reduce
enjoyment of other resources used by FBRF members such
as Ms. Felde, as well as Ms. Bricks, including areas
of the park adjacent to the proposed road and
maintenance facility. Construction of Kohler Co.'s
facility will harm the aesthetics of these adjacent
6 The Friends also filed a common law certiorari action in
Dane County Circuit Court against the Board, challenging the
same land swap decision. Kohler and the Board moved to dismiss.
The Dane County Circuit Court dismissed the complaint under Wis.
Stat. § 802.06(2)(a)10. This case was consolidated with the
Sheboygan County case on appeal, and the court of appeals
reversed and remanded the Dane County Circuit Court's decision,
concluding it erred in dismissing the complaint. Friends of the
Black River Forest, Nos. 2019AP299 & 2019AP534, at ¶3.
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No. 2019AP299 & 2019AP534
areas and impair Petitioners' use and enjoyment of the
areas for recreation and conservation.
27. FBRF and its members, including Ms. Felde and Ms.
Bricks, will be affected by increased traffic and
noise caused in and around the park by the
Respondents' decision, as Kohler Co.'s project is
constructed and operated.
28. FBRF and its members, including Ms. Felde and Ms.
Bricks, are also interested in the Respondents
following required procedures for state park planning
that ensure uses in the park are properly classified
to avoid user conflicts and preserve recreational and
scenic qualities, and are aggrieved by the
Respondents' decision to follow procedures in this
case.
¶7 The Sheboygan County Circuit Court determined the
Friends lacked standing because the alleged injuries did not
flow directly from the land swap decision and accordingly
granted Kohler's motion to dismiss. Reasoning that "[t]he land
swap agreement does not clear the way for the immediate
construction of the proposed golf course or any other
structures," the circuit court concluded the Friends failed to
meet the first element of the two-part test establishing that
they were aggrieved because none of the alleged injuries were a
direct consequence of the land transfer. Consequently, the
court did not address the "zone of interests" element of the
standing analysis.
C. The Court of Appeals' Decision
¶8 The court of appeals, in an unpublished, per curiam
opinion, reversed and remanded the decision of the Sheboygan
County Circuit Court and held that the Friends alleged
sufficient injuries to satisfy standing under Wis. Stat.
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No. 2019AP299 & 2019AP534
§§ 227.52 and 227.53. Friends of the Black River Forest v. DNR,
Nos. 2019AP299 & 2019AP534, unpublished slip op., ¶3 (Wis. Ct.
App. Sept. 15, 2020) (per curiam). That court determined the
alleged injuries included "recreational, aesthetic, and
conservational injuries caused by the land exchange." Id., ¶17.
Looking "beyond the land exchange to the sequence of events that
has been set in motion," including Kohler's desired end result
of the construction of the golf course, the court of appeals
determined the Friends' alleged injuries were neither
hypothetical nor conjectural, and had a close causal
relationship "to a change in the physical environment
precipitated by the land exchange," satisfying the first element
of the standing inquiry. Id., ¶¶19–27.
¶9 The court of appeals also concluded the Friends
satisfied the "zone of interests" prong by alleging injuries to
interests recognized by law, including Wis. Stat. §§ 23.11,
23.15, 27.01(1), and Wis. Admin. Code chs. NR 1 & 44. Id.,¶¶28–32. Kohler petitioned for review, the Department cross-
petitioned, and we granted both petitions.
II. STANDARD OF REVIEW
¶10 "Whether a party has standing is a question of law
that we review independently." City of Mayville v. DOA, 2021 WI
57, ¶15, 397 Wis. 2d 496, 960 N.W.2d 416 (citing Marx v. Morris,
2019 WI 34, ¶21, 386 Wis. 2d 122, 925 N.W.2d 112). In reviewing
a motion to dismiss a petition seeking judicial review of an
agency decision, we determine "whether a petition on its face
states 'facts sufficient to show that the petitioner named
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No. 2019AP299 & 2019AP534
therein is aggrieved . . . by the decision sought to be
reviewed.'" Wisconsin's Env't Decade, Inc. v. Pub. Serv. Comm'n
of Wis. (WED I), 69 Wis. 2d 1, 8, 230 N.W.2d 243 (1975).
¶11 On review of a motion to dismiss for lack of standing,
the court must "take all facts alleged by [the petitioner] to be
true in determining whether he has standing to bring his claim."
McConkey v. Van Hollen, 2010 WI 57, ¶14 n.5, 326 Wis. 2d 1, 783
N.W.2d 855 (citing Repetti v. Sysco Corp., 2007 WI App 49, ¶2,
300 Wis. 2d 568, 730 N.W.2d 189). In evaluating a Wis. Stat.
ch. 227 motion to dismiss, we apply "the rules that the
allegations of the petition are assumed to be true; that the
allegations are entitled to a liberal construction in favor of
the petitioner; and that this court is not concerned with the
ability of the petitioner to prove the facts alleged at trial."
WED I, 69 Wis. 2d at 8–9.
III. DISCUSSION
¶12 Because Wisconsin's current standing analysis is
derived from federal standing principles, we begin there. We
then discuss the principles of standing under Wisconsin law,
including the two prongs of the standing test in the context of
a petition for judicial review under Wis. Stat. ch. 227. Next,
we explain how the "zone of interests" prong represents an
improper departure from Wisconsin standing principles and a
misnomer in the context of our well-established test. Finally,
assuming without deciding that the Friends' injuries satisfy the
"injury-in-fact" prong of the standing test, we conclude none of
the statutes or regulations cited by the Friends "recognize[] or
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No. 2019AP299 & 2019AP534
seek[] to regulate or protect" the Friends' asserted interests.
Waste Mgmt., 144 Wis. 2d at 505. Accordingly, for purposes of
standing, the Friends fail to establish they are "person[s]
aggrieved" within the meaning of Wis. Stat. §§ 227.52,
227.53(1), and 227.01(9), whose "substantial interests are
adversely affected by a determination of" the Board.
A. Federal Standing Principles
¶13 In federal court, "[t]here are two concepts of
standing." See, e.g., MainStreet Org. of Realtors v. Calumet
City, 505 F.3d 742, 744 (7th Cir. 2007). "There is Article III
standing, which requires just an injury in fact, and
'prudential' standing, a more complex, judge-made concept of
standing. . . . This doctrine precludes the federal courts from
exercising jurisdiction over some types of case[s] that Article
III would not forbid the courts to adjudicate." Id. at 744–45.
Under the "irreducible constitutional minimum of standing"
identified by federal courts, a plaintiff "must have suffered or
be imminently threatened with a concrete and particularized
'injury in fact' that is fairly traceable to the challenged
action of the defendant and likely to be redressed by a
favorable judicial decision." Lexmark Int'l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 125 (2014) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); see
also Bank of America Corp. v. City of Miami, 137 S. Ct. 1296,
1302 (2017). This standing threshold arises from Article III,
which limits the jurisdiction of federal courts to "cases" or
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No. 2019AP299 & 2019AP534
"controversies." McConkey, 326 Wis. 2d 1, ¶15 n.6 (quoting U.S.
Const. art. III, § 2, cl. 1).
¶14 Apart from the "constitutional minimum" of an "injury
in fact" that is "fairly traceable" to the defendant's conduct
and likely to be "redressed by a favorable decision," see
Bennett v. Spear, 520 U.S. 154, 162 (1997), "prudential
standing" encompasses "judicially self-imposed limits on the
exercise of federal jurisdiction . . . founded in concern about
the proper——and properly limited——role of the courts in a
democratic society[.]" Id. (quotations omitted). The
"prudential standing" doctrine has traditionally included the
"zone of interests" inquiry, which first appeared in Association
of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150(1970) and its companion case, Barlow v. Collins, 397 U.S. 159(1970). See Bennett, 520 U.S. at 162–63. In Data Processing,
the United States Supreme Court explained that a plaintiff
challenging an administrative agency decision under the
Administrative Procedure Act (the APA) must meet the two-pronged
standing requirement, including suffering an "injury in fact"
within the "zone of interests to be protected or regulated by
the statute or constitutional guarantee in question."7 397 U.S.
at 153.
7The statutory language of the APA, interpreted by Data
Processing, provided, "A person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to
judicial review thereof." 5. U.S.C.A. § 702 (1964 ed., Supp.
IV).
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No. 2019AP299 & 2019AP534
¶15 The United States Supreme Court later clarified in
Lexmark that the "zone of interests" inquiry is more
appropriately understood as a question of whether a cause of
action exists, rather than a matter of "prudential standing."
Lexmark, 572 U.S. at 127. As framed by Lexmark, this inquiry
requires the Court to "determine, using traditional tools of
statutory interpretation, whether a legislatively conferred
cause of action encompasses a particular plaintiff's claim."
Id. (citing Steel Co. v. Citizens for Better Environment, 523
U.S. 83, 97 & n.2 (1998); Clarke v. Sec. Indus. Ass'n, 479 U.S.
388, 394–95 (1987); Holmes v. Sec. Inv. Prot. Corp., 503 U.S.
258, 288 (1992) (Scalia, J., concurring in judgment)). The
Court elaborated:
In sum, the question this case presents is
whether . . . [the plaintiff] has a cause of action
under the statute. That question requires us to
determine the meaning of the congressionally enacted
provision creating a cause of action. In doing so, we
apply traditional principles of statutory
interpretation. We do not ask whether in our judgment
Congress should have authorized [the plaintiff's]
suit, but whether Congress in fact did
so. . . . Thus, this case presents a straightforward
question of statutory interpretation: Does the cause
of action in [the statute] extend to [the plaintiff]?
Id. at 128-29.
¶16 In the context of the APA, the Lexmark Court explained
that the "lenient" zone-of-interests approach "is an appropriate
means of preserving the flexibility of the APA's omnibus
judicial-review provision, which permits suit for violations of
numerous statutes of varying character that do not themselves
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No. 2019AP299 & 2019AP534
include causes of action for judicial review." Id. at 130.
Nevertheless, the Court emphasized "that the breadth of the zone
of interests varies according to the provisions of law at issue,
so that what comes within the zone of interests of a statute for
purposes of obtaining judicial review of administrative action
under the 'generous review provisions' of the APA may not do so
for other purposes." Id. at 130 (quoting Bennett, 520 U.S. at
163) (internal quotation marks omitted). Finally, the Lexmark
Court clarified that the zone of interests test "forecloses suit
only when a plaintiff's 'interests are so marginally related to
or inconsistent with the purposes implicit in the statute that
it cannot reasonably be assumed that' Congress authorized that
plaintiff to sue." Id. (quoting Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012)).
B. Standing Principles in Wisconsin
¶17 Federal law on standing is not binding in Wisconsin.
Foley-Ciccantelli, 333 Wis. 2d 402, ¶46 n.23 (lead op.); see
also id., ¶46 n.24 (citing WED I, 69 Wis. 2d at 11; Metro
Builders Ass'n of Greater Milwaukee v. Village of Germantown,
2005 WI App 103, ¶13, 282 Wis. 2d 458, 698 N.W.2d 301) ("Federal
standing terminology has been used in cases that do not involve
constitutional challenges."). Because our state constitution
lacks the jurisdiction-limiting language of its federal
counterpart, "standing in Wisconsin is not a matter of
jurisdiction, but of sound judicial policy." McConkey, 326
Wis. 2d 1, ¶15 (citing Zehetner v. Chrysler Fin. Co., 2004 WI
App 80, ¶12, 272 Wis. 2d 628, 679 N.W.2d 919); see also Wis.
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Legis. v. Palm, 2020 WI 42, ¶12, 391 Wis. 2d 497, 942 N.W.2d 900(quoting Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, ¶38, 327
Wis. 2d 572, 786 N.W.2d 177 (lead op.)). Nevertheless,
Wisconsin has largely embraced federal standing requirements,
and we "look to federal case law as persuasive authority
regarding standing questions." McConkey, 326 Wis. 2d 1, ¶15 n.7
(citing WED I, 69 Wis. 2d at 11).
¶18 Although not constitutionally required, we have
described our two-step standing approach as "conceptually
similar to the analysis required by the federal rule." WED I,
69 Wis. 2d at 10. As a matter of "sound judicial policy,"
McConkey, 326 Wis. 2d 1, ¶15, typically our courts ask first
"whether the decision of the agency directly causes injury to
the interest of the petitioner" and second "whether the interest
asserted is recognized by law." WED I, 69 Wis. 2d at 10. We
likened this approach to the federal two-pronged standing
inquiry: "(1) Does the challenged action cause the petitioner
injury in fact? and (2) is the interest allegedly injured
arguably within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in
question?" Id. (citing Data Processing Service, 397 U.S. at
153); see also Waste Mgmt., 144 Wis. 2d at 509 ("[T]he Wisconsin
standing analysis is conceptually similar to the federal
analysis."); Cornwell Pers. Assocs., Ltd. v. DILHR, 92
Wis. 2d 53, 61, 284 N.W.2d 706 (Ct. App. 1979) ("The Wisconsin
Supreme Court construed ['person aggrieved'] to impose a
standing requirement similar to the federal rule in [WED I].").
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¶19 We construe the law of standing "liberally, and 'even
an injury to a trifling interest' may suffice." McConkey, 326
Wis. 2d 1, ¶15 (quoting Fox, 112 Wis. 2d at 524); see also WED
I, 69 Wis. 2d at 13 (citing Kubista v. State Annuity & Inv. Bd.,
257 Wis. 359, 43 N.W.2d 470 (1950)). At the same time, "while
standing is to be liberally construed, the claim asserted must
be legally recognizable in Wisconsin jurisprudence." Foley-
Ciccantelli, 333 Wis. 2d 402, ¶165 (Roggensack, J., concurring)
(citing Krier v. Vilione, 2009 WI 45, ¶22, 317 Wis. 2d 288, 766
N.W.2d 517).
¶20 In the context of judicial review of an administrative
decision, standing is governed by Wis. Stat. §§ 227.52 and
227.53. See WED I, 69 Wis. 2d at 9; Waste Mgmt., 144 Wis. 2d at
504. "Both sections require a petitioner to 'show a direct
effect on his legally protected interests.'" Fox, 112
Wis. 2d at 524 (quoting WED I, 69 Wis. 2d at 9). Section 227.52
provides, in relevant part:
Administrative decisions which adversely affect the
substantial interests of any person, whether by action
or inaction, whether affirmative or negative in form,
are subject to review as provided in this chapter,
except as otherwise provided by law and [certain
exceptions.]
§ 227.52. Section 227.53(1) provides, as pertinent:
Except as otherwise specifically provided by law, any
person aggrieved by a decision specified in s. 227.52
shall be entitled to judicial review of the decision
as provided in this chapter and subject to [certain]
procedural requirements[.]
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No. 2019AP299 & 2019AP534
§ 227.53(1). Chapter 227 defines "[p]erson aggrieved" as "a
person or agency whose substantial interests are adversely
affected by a determination of an agency." Wis. Stat.
§ 227.01(9).
¶21 In applying the first element of standing——"injury in
fact"——we ask "whether the petition alleges injuries that are a
direct result of the agency action." WED I, 69 Wis. 2d at 13.
We have applied the federal standard, maintaining that an
"[i]njury alleged, which is remote in time or which will only
occur as an end result of a sequence of events set in motion by
the agency action challenged, can be a sufficiently direct
result of the agency's decision to serve as a basis for
standing." Id. at 14. Nevertheless, the injuries must be
neither hypothetical nor conjectural. Milwaukee Brewers
Baseball Club v. DHSS, 130 Wis. 2d 56, 65, 387 N.W.2d 245(1986).
¶22 In cases alleging harm to the environment, "injuries
'must show a direct causal relationship to a proposed change in
the physical environment.'" Applegate-Bader Farm, LLC v. DOR,
2021 WI 26, ¶17 n.7, 396 Wis. 2d 69, 955 N.W.2d 793 (quoting
Fox, 112 Wis. 2d at 528). In the environmental context, the
"federal test [established in Data Processing Service, 397 U.S.
at 153] has been viewed as a substantial liberalization of the
standing requirements." WED I, 69 Wis. 2d at 10 (citing Kenneth
Culp Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev.
450 (1970); Donald W. Large, Is Anybody Listening? The Problem
of Access in Environmental Litigation, 1972 Wis. L. Rev. 62,
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No. 2019AP299 & 2019AP534
94). Since then, we have concluded that "allegations of injury
to aesthetic, conservational, recreational, health and safety
interests will confer standing so long as the injury is caused
by a change in the physical environment." Milwaukee Brewers,
130 Wis. 2d at 65 (citing Metro. Edison v. People Against
Nuclear Energy, 460 U.S. 766, 771–73 (1983); Joseph v. Adams,
467 F. Supp. 141, 156 (E.D. Mich. 1978); Fox, 112 Wis. 2d at
525). "The question of whether the injury alleged will result
from the agency action in fact is a question to be determined on
the merits, not on a motion to dismiss for lack of standing."
WED I, 69 Wis. 2d at 14.
¶23 Under what we have described as the "zone of
interests" prong of the analysis, expressed in terms derived
from federal standing cases——we ask whether "the injury is to an
interest which the law recognizes or seeks to regulate or
protect." Waste Mgmt., 144 Wis. 2d at 505. This inquiry
requires us to "examine a specific statute to determine standing
rather than consider all interests of the petitioner." MCI
Telecomms. Corp. v. Pub. Serv. Comm'n, 164 Wis. 2d 489, 493, 476
N.W.2d 575 (Ct. App. 1991). In WED I, we acknowledged the
federal courts' "willingness to find that environmental
interests are arguably within the zone of interest[s] protected
by virtually any statute related to environmental matters." WED
I, 69 Wis. 2d at 10–11 (citing Env't Def. Fund, Inc. v. Hardin,
428 F.2d 1093 (D.C. Cir. 1970); W. Va. Highlands Conservancy v.
Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971); Citizens
Comm. for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970)).
17
No. 2019AP299 & 2019AP534
¶24 For example, federal courts have determined the
National Environmental Protection Act (NEPA) provides an
adequate basis "for standing to challenge an agency's failure to
comply with its provisions." WED I, 69 Wis. 2d at 19 (citing
United States v. SCRAP, 412 U.S. 669 (1973); W. Va. Highlands
Conservancy, 441 F.2d at 232; Scherr v. Volpe, 336 F. Supp. 882(W.D. Wis. 1971)). We have likewise concluded that the
Wisconsin Environmental Policy Act (WEPA) "does, similar to
NEPA, recognize an interest sufficient to give a person standing
to question compliance with its conditions where it is alleged
that the agency's action will harm the environment in the area
where the person resides."8 Id.¶25 Having been adopted from federal jurisprudence
interpreting the APA, the "zone of interests" terminology is
8 In our prior cases recognizing standing in the
environmental context, the petitioners successfully sought to
challenge the administrative decision at issue under WEPA. See,
e.g., Applegate-Bader Farm, LLC v. DOR, 2021 WI 26, ¶17 n.7, 396
Wis. 2d 69, 955 N.W.2d 793 (concluding Applegate had standing to
challenge DOR's decision not to prepare an environmental impact
statement (EIS) because it alleged "an injury in fact to its
legally protected conservational interest" under WEPA);
Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 56, 70, 387
N.W.2d 245 (1986) (determining petitioners alleged injuries
sufficient to acquire standing under WEPA); Wisconsin's Env't
Decade, Inc. v. Pub. Serv. Comm'n of Wis. (WED I), 69 Wis. 2d 1,
19, 230 N.W.2d 243 (1975) (holding that WEPA "recognize[s] an
interest sufficient to give a person standing to question
compliance with its conditions where it is alleged that the
agency's action will harm the environment in the area where the
person resides"). In this case, an environmental impact study
was performed and the Friends have not asserted the Department
made a negative-EIS decision nor have they brought any claim
under WEPA.
18
No. 2019AP299 & 2019AP534
untethered to the text of Wis. Stat. ch. 227 and obscures the
standing test we have consistently applied in challenges to
administrative decisions. Chapter 227 authorizes persons who
are "aggrieved" to seek judicial review of administrative
decisions. Wis. Stat. § 227.53(1). A "person aggrieved" is
defined as "a person or agency whose substantial interests are
adversely affected by a determination of an agency." Wis. Stat.
§ 227.01(9). Consistent with our longstanding application of
this test for standing purposes, the adversely affected interest
must be protected, recognized, or regulated by law. The
determination of whether a statute protects, recognizes, or
regulates the asserted interest is a purely statutory inquiry,
from which the judicially subjective consideration of the "zone
of interests" is properly omitted. This has been our consistent
jurisprudential practice and we do not depart from it now.
¶26 The statutory history of Wis. Stat. §§ 227.52 and
227.53 confirms the "zone of interests" language is grounded
neither in the statutory text governing administrative
challenges nor in our longstanding conception of standing.
Prior to 1976, Wis. Stat. ch. 227 had not defined "person
aggrieved"; in the absence of a statutory definition, we applied
the definition articulated in Greenfield v. Joint County School
Comm., under which an "aggrieved party" meant "one having an
interest recognized by law in the subject matter which is
injuriously affected by the judgment." See Pasch v. DOR, 58
Wis. 2d 346, 357, 206 N.W.2d 157 (1973) (quoting Greenfield, 271
Wis. 442, 447, 73 N.W.2d 580 (1955)). The WED I court relied on
19
No. 2019AP299 & 2019AP534
Greenfield's definition of "a person aggrieved." WED I, 69
Wis. 2d at 9–10 (quoting Greenfield, 271 Wis. at 447). The
court explained:
We have held that a person must be "aggrieved" and
"directly affected" by the agency decision, and also
that the decision must "directly affect the legal
rights, duties or privileges" of the person seeking
review. [Sections] 227.15 and 227.16 do not, however,
create separate and independent criteria. It is clear
that both sections essentially require the petitioner
to show a direct effect on his legally protected
interests.9
Id. at 9. At the same time, WED I improperly framed its inquiry
in terms of the federal "zone of interests" test, with no
support in the text of Chapter 227 or our prior enunciation of
standing principles.10
9Wis. Stat. §§ 227.15 and 227.16 were the precursors to
Wis. Stat. §§ 227.52 and 227.53. The statutes were renumbered
in 1986. See 1985 Wis. Act 182, §§ 35, 37.
Even though it described the Wisconsin standing test as
10
similar to the federal "zone of interests" test, WED I seemingly
adhered to the "legally protected interest" test by asking
"whether the interest asserted is recognized by law." WED I, 69
Wis. 2d at 14. The WED I court concluded, "WED's members, who
are customers in the area affected by the PSC's order in this
case, have a sufficient interest under the cited sections of ch.
196, Stats., in the future adequacy of their service, and that
WED has standing, if the facts alleged in the petition are true,
to challenge the PSC's failure to consider conservation
alternatives to the proposed priority system." Id. at 17. WED
I partly based its determination on the "express recognition of
the protective purposes of the law," as determined by Wisconsin
P. & L. Co. v. Pub. Serv. Comm'n, 45 Wis. 2d 253, 259, 172
N.W.2d 639 (1969). Id. at 16. At the same time, WED I
recognized standing under WEPA, which it stated "recognize[s] an
interest sufficient to give a person standing to question
compliance with its conditions where it is alleged that the
agency's action will harm the environment in the area where the
person resides." Id. at 19. We have consistently recognized
20
No. 2019AP299 & 2019AP534
¶27 In 1976, the legislature made a number of relevant
amendments to Wis. Stat. ch. 227. See Chapter 414, Laws of
1975. First, the legislature amended Wis. Stat. § 227.15 so
that administrative decisions formerly required to "directly
affect the legal rights, duties or privileges," now must
"adversely affect the substantial interests of any person" to be
subject to judicial review.11 § 19, ch. 414, Laws of 1975.
Second, the legislature removed "directly affected" from
§ 227.16(1), rewording the statute to allow "any person
aggrieved by a decision specified in s. 227.15" to "be entitled
to judicial review thereof[.]"12 § 20, ch. 414, Laws of 1975.
Third, the legislature defined "person aggrieved" to "include[]
broad environmental interests under WEPA for standing purposes.
See supra, ¶24 n.8. The petitioners have not brought such a
claim in this case.
11 The previous language provided, as relevant:
227.15 Judicial review; orders reviewable.
Administrative decisions, which directly affect the
legal rights, duties or privileges of any person,
whether affirmative or negative in form, . . . shall
be subject to judicial review as provided in this
chapter[.]
Wis. Stat. § 227.15 (1973–74).
12 The previous language provided, as relevant:
227.16 Parties and proceedings for review. (1) Except
as otherwise specifically provided by law, any person
aggrieved by a decision specified in s. 227.15 and
directly affected thereby shall be entitled to
judicial review thereof as provided in this chapter.
Wis. Stat. § 227.16(1) (1973–74).
21
No. 2019AP299 & 2019AP534
any person or agency whose substantial interests are adversely
affected by a determination of an agency." § 5, ch. 414, Laws
of 1975. For purposes of standing, our subsequent cases have
not treated these statutory changes as either abrogating our
longstanding requirement that an alleged injury must be "to an
interest which the law recognizes or seeks to regulate or
protect," nor endorsing the "zone of interests" formulation
described in WED I. Waste Mgmt., 144 Wis. 2d at 504–05; see
also Milwaukee Brewers, 130 Wis. 2d at 65 ("[T]he Petitioner
must show that the alleged injury is an injury to a legally
protected interest."); Fox, 112 Wis. 2d at 529 ("[T]he injury
must be to a legally protected interest.").
¶28 We conclude the "zone of interests" nomenclature WED I
superimposed on Wisconsin's test for standing has no basis in
the text of Wis. Stat. ch. 227, which limits judicial review to
any "person or agency whose substantial interests are adversely
affected by a determination of an agency." See Wis. Stat.
§§ 227.01(9), 227.52, 227.53(1). The "zone of interests" test
risks an improper judicial overextension of our well-established
standing requirement that a person aggrieved by an agency
decision must allege an injury "to an interest which the law
recognizes or seeks to regulate or protect." Waste Mgmt., 144
Wis. 2d at 505. As substantively reflected in many of our prior
decisions, this inquiry centers on a textually-driven analysis
of the language of the specific statute cited by the petitioner
as the source of its claim to determine whether that statute
"recognizes or seeks to regulate or protect" the interest
22
No. 2019AP299 & 2019AP534
advanced by the petitioner.13 Id. at 505, 508; see also Air
Courier Conf. of Am. v. Am. Postal Workers Union AFL-CIO, 498
U.S. 517, 529 (1991) ("[T]he relevant statute [under the APA] of
course, is the statute whose violation is the gravamen of the
complaint." (quoting Lujan, 497 U.S. at 886)).
¶29 In WED I, this court misguidedly described this prong
of the standing test——citing an administrative law treatise as
sole authority for the proposition——as follows: "The only
This textually-driven analysis means the language of the
13
cited statutes drives the inquiry into whether the injured
interest is "protected, recognized, or regulated" by the law.
See Waste Mgmt., 144 Wis. 2d at 508. Despite accepting and
ostensibly applying this test, which it frames as "a 'statutory
question,'" the dissent misconstrues our application of this
"decades-old framework" as "prejudging the merits" and
"conflating standing with statutory interpretation." See
dissent, ¶¶53, 59, 67 (citing Moustakis v. DOJ, 2016 WI 42, ¶3
n.2, 368 Wis. 2d 677, 880 N.W.2d 142). The dissent’s
irreconcilable dual critique confuses the law of standing in
administrative cases. On the one hand, the dissent says it
accepts and applies our precedent that directs us to engage in
statutory interpretation. Id., ¶¶75, 82 (citing State ex rel.
Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶¶46, 48–49, 271
Wis. 2d 633, 681 N.W.2d 110). On the other hand, the dissent
also suggests that statutory interpretation is an improper
component of standing. Id., ¶67 (citing Moustakis, 368
Wis. 2d 677, ¶3 n.2). The dissent may believe the statutes on
which the Friends base their claims "protect[], recognize[], or
regulate[]" their injured interests just as the dissent believes
substantive criteria are not required, but positing the inquiry
itself is somehow improper would overturn the entirety of our
Wis. Stat. ch. 227 cases with a single footnote from a case
having nothing to do with Chapter 227. See Moustakis, 368
Wis. 2d 677, ¶3 n.2. Notably, the dissent does not attempt to
develop this point because its analysis in fact adheres to the
longstanding legal requirement that we analyze the statutes
cited by petitioners to determine whether they "recognize[],
protect[], or regulate[]" the Friends' injured interests.
Dissent, ¶77 (citing Waste Mgmt., 144 Wis. 2d at 505).
23
No. 2019AP299 & 2019AP534
problems about standing should be what interests deserve
protection against injury, and what should be enough to
constitute an injury. Whether interests deserve legal
protection depends upon whether they are sufficiently
significant and whether good policy calls for protecting them or
for denying them protection." See WED I, 69 Wis. 2d at 13(quoting Kenneth Culp Davis, Administrative Law Treatise
§ 22.00–4, at 722 (1970 Supp.)). In expressing standing in
Chapter 227 cases in terms of what "should be" and what
constitutes "good policy," this court cloaked itself with
legislative powers rather than adhering to its judicial duty to
say what the law is and not what the court may wish it to be.
If the "zone of interests" test comprises the WED court's
formulation of it, this court would be compelled to reject it.
However, in subsequent cases, this court grounded the inquiry in
the text of the statutes or regulations cited, rather than in
judicial notions of what "should be" or what may constitute
"good policy."
¶30 While Wisconsin cases frequently reference the "zone
of interests" test, they rarely apply it in the manner described
by WED I. See, e.g., Foley-Ciccantelli, 333 Wis. 2d 402, ¶56
(lead op.) (explaining that the phrase "legally protectable
interest" "is used in the case law to mean 'an interest within
the zone of interests protected by a statute or constitution'").
While discarding this anachronistic misnomer, we retain our
well-established standing test. Although the dissent
characterizes this clarification as a "twist[]" that "creat[es]
24
No. 2019AP299 & 2019AP534
additional barriers to judicial review,"14 removing the "zone of
interests" label leaves the test's substance intact: "the
injury" must be "to an interest which the law recognizes or
seeks to regulate or protect."15 Waste Mgmt., 144 Wis. 2d at
505.
¶31 In Waste Mgmt., this court framed "the issue presented
for our review" as "the statutory question of whether, under
secs. 227.15 and 227.16(1)" the statute to which the petitioner
pointed as the source of its protected interests "operates to
grant standing." Id. at 503-04 (emphasis added). In that case,
the court explained Wisconsin's "zone of interests" test asks
whether "the injury is to an interest which the law recognizes
or seeks to regulate or protect." Id. at 505. Properly absent
from the analysis were any considerations of whether the
asserted interests "deserve" legal protection; instead, the
court tailored the test to whether the law actually affords the
asserted interest legal protection. See also Applegate-Bader
Farm, 396 Wis. 2d 69, ¶17 n.7 ("A party has standing to
14 Dissent, ¶89.
The dissent claims no party asked us to "overhaul" the
15
zone of interests limitation, and that "[d]eciding this issue,
when no one asked us to do so, both deprives our deliberations
of analysis refined in the fires of adversarial litigation and
unfairly surprises the parties." Dissent, ¶57. This overblown
assertion overlooks decades of precedent demonstrating that the
"zone of interests" label does not accurately reflect the test
we have consistently applied and apply no differently in this
case. Our conclusion seeks not to avoid the "fires of
adversarial litigation" but to extinguish any last embers of a
fire that has long since died out.
25
No. 2019AP299 & 2019AP534
challenge an administrative decision when 'the decision of an
agency directly causes injury to the interest of the petitioner'
and if the 'interest asserted is recognized by law."); Milwaukee
Brewers, 130 Wis. 2d at 65 ("In addition to showing a direct
injury" requiring petitioner to "show that the alleged injury is
an injury to a legally protected interest" rather than within a
"zone of interests"); Fox, 112 Wis. 2d at 529 (phrasing the
second prong of the standing test as "the injury must be to a
legally protected interest" and making no mention of a "zone of
interests" test). Recognizing that the second prong of the
standing test requires the allegedly adversely affected interest
to be one protected, recognized, or regulated by an identified
law, we next consider whether the interests asserted by the
Friends satisfy this element of standing.
C. The Statutes Cited Do Not Protect or Regulate the Friends'
Asserted Interests
¶32 The Friends allege five aesthetic, recreational,
conservational, and procedural injuries arising from the land-
swap decision.16 We assume without deciding the Friends' alleged
injuries satisfy the first prong of the standing analysis.
The dissent hyperbolically concludes the Department will
16
have "the unfettered right to redraw all state park boundaries"
and "not a single Wisconsin citizen . . . could challenge that
conduct in court." Dissent, ¶89. Nothing in our opinion
supports such a bewildering misconception. Our standing review
in this case is limited by the Friends' Amended Petition
challenging the "decision to convey" the property to Kohler,
under the statutes identified by the Friends. See id., ¶77.
The dissent premises its entire analysis on a basic misreading
of the Friends' claims. See infra, ¶45 n.21.
26
No. 2019AP299 & 2019AP534
Standing to challenge an agency decision under Wis. Stat.
§§ 227.52 and 227.53 also requires the Friends to identify a
statute protecting or regulating the interests they allege were
injured by the decision. While the Friends cite several
statutes and regulations to support their standing argument,
none of them protect or regulate their asserted interests.
1. Wisconsin Stat. §§ 27.01, 23.11 & 23.15
¶33 The Friends first point to Wis. Stat. § 27.01(1),17
which describes the purpose of the state parks system. The
statute declares it is "the policy of the legislature to
acquire, improve, preserve and administer a system of areas to
be known as the state parks of Wisconsin. The purpose of the
state parks is to provide areas for public recreation and for
public education in conservation and nature study." § 27.01(1).
Such a statutory statement of purpose, however, "does not
provide for an independent, enforceable claim, as it is not in
17 Section 27.01(1) provides in full:
Purpose. It is declared to be the policy of the
legislature to acquire, improve, preserve and
administer a system of areas to be known as the state
parks of Wisconsin. The purpose of the state parks is
to provide areas for public recreation and for public
education in conservation and nature study. An area
may qualify as a state park by reason of its scenery,
its plants and wildlife, or its historical,
archaeological or geological interest. The department
shall be responsible for the selection of a balanced
system of state park areas and for the acquisition,
development and administration of the state parks. No
admission charge shall be made to any state park,
except as provided in subs. (7) to (9).
27
No. 2019AP299 & 2019AP534
itself substantive." Schilling v. Crime Victims Rts. Bd., 2005
WI 17, ¶14, 278 Wis. 2d 216, 692 N.W. 2d 623. Merely expressing
a statement of purpose, nothing in § 27.01(1) establishes the
requisite "substantive criteria" by which petitioners could
challenge the Department's or the governor's decisions impacting
state parks. Chenequa Land Conservancy, Inc. v. Village of
Hartland, 2004 WI App 144, ¶21, 275 Wis. 2d 533, 685 N.W.2d 573.
Lacking such substantive criteria, nothing in § 27.01 protects,
recognizes, or regulates any person's interests or contemplates
a challenge to the agency's decision to convey the land to
Kohler.
¶34 The Friends also assert Wis. Stat. § 23.1118 affords
them standing, focusing on the following statutory language:
"In addition to the powers and duties heretofore conferred and
imposed upon said department by this chapter it shall have and
take the general care, protection and supervision of all state
18 Section 23.11(1) provides in full:
In addition to the powers and duties heretofore
conferred and imposed upon said department by this
chapter it shall have and take the general care,
protection and supervision of all state parks, of all
state fish hatcheries and lands used therewith, of all
state forests, and of all lands owned by the state or
in which it has any interests, except lands the care
and supervision of which are vested in some other
officer, body or board; and said department is granted
such further powers as may be necessary or convenient
to enable it to exercise the functions and perform the
duties required of it by this chapter and by other
provisions of law. But it may not perform any act upon
state lands held for sale that will diminish their
salable value.
28
No. 2019AP299 & 2019AP534
parks[.]"19 Similar to Wis. Stat. § 27.01, this statute lacks
any "substantive criteria" by which petitioners could challenge
the Board's decisions regarding state parks and nothing in the
text protects, recognizes, or regulates any person's interest in
state parks or contemplates a challenge to agency action related
to state parks.
¶35 The Friends' reliance on Wis. Stat. § 23.15 is
likewise unavailing. That statute provides for the sale of
state-owned lands by the Board and includes a number of
procedures by which the Board is to conduct such sales,
including gubernatorial approval. The statute provides, in
part:
The natural resources board may sell, at public or
private sale, lands and structures owned by the state
under the jurisdiction of the department of natural
resources, . . . when the natural resources board
determines that the lands are no longer necessary for
the state's use for conservation purposes[.]
§ 23.15(1). The statute further requires the Board to "present
to the governor a full and complete report of the lands to be
sold, the reason for the sale, the price for which said lands
should be sold together with an application for the sale of the
19 Although the Friends did not include Wis. Stat. § 23.11among the "Grounds for Review" in its Amended Petition for
Judicial Review, the Friends did allege the Department "is
responsible for the general care, protection and supervision of
all state parks pursuant to Wis. Stat. § 23.11." Because we
review a motion to dismiss, we elect to apply a liberal
construction of the Amended Petition in favor of the Friends and
therefore consider § 23.11 as a basis for Friends' claims. See
WED I, 69 Wis. 2d at 8.
29
No. 2019AP299 & 2019AP534
same." § 23.15(2). The governor shall then investigate the
sale "as the governor deems necessary" and "approve or
disapprove such application." Id.
¶36 Nothing in Wis. Stat. § 23.15, including its other
procedural requirements relating to land sales, empowers private
parties alleging environmental injuries to challenge Board
decisions under this land-management provision. Wisconsin Stat.
§ 23.15 contains no textual indication that this statute
protects, recognizes, or regulates any individual's interests
that might be injured by a decision to exchange state-owned land
for privately-owned land, nor does it provide any standards by
which to do so. The Department cites Chenequa to support its
contention that § 23.15 does not provide the Friends a legally
protectable interest in the land exchange. In Chenequa, the
court of appeals concluded petitioners lacked standing under a
similarly-worded statute——Wis. Stat. § 84.09(5)——to challenge a
land sale authorized by the Department of Transportation (DOT)
and approved by the governor. Chenequa, 275 Wis. 2d 533, ¶¶25–
26, 30. We agree that Chenequa is on point.
¶37 The statute at issue in Chenequa, Wis. Stat.
§ 84.09(5), outlined certain procedural requirements the DOT
must follow in the sale of land, including presenting to the
governor "a full and complete report of the property to be sold,
the reason for the sale, and the minimum price for which the
same should be sold, together with an application for the
governor's approval of the sale." Id., ¶4 n.2 (quoting
§ 84.09(5)). In order to sell the land, the DOT must have
30
No. 2019AP299 & 2019AP534
determined "that the property is no longer necessary for the
state's use for highway purposes[.]" Id. (quoting § 84.09(5)).
This language mirrors the text of Wis. Stat. § 23.15(1) and (2),
authorizing the Board to sell state land when it "determines
that the lands are no longer necessary for the state's use for
conservation purposes" and requiring the Board to "present to
the governor a full and complete report of the lands to be
sold[.]" See § 23.15(1), (2).
¶38 The court of appeals concluded in Chenequa that Wis.
Stat. § 84.09(5) imposes "no substantive requirements governing
the sale . . . on either DOT or the governor, other than DOT's
obligation to determine that the property is no longer necessary
for highway purposes[.]" Chenequa, 275 Wis. 2d 533, ¶25.
Regarding the statute's lack of substantive or procedural
criteria, the court explained:
Other than the determination under the first point
[that the property is no longer necessary for the
state's use for highway purposes], there are no
substantive criteria for determining what property to
sell. There are also no substantive criteria for
determining whether to sell at a public or private
sale or for determining to whom to make the sale. The
only procedures established in the statute for the
sale . . . relate to the process between DOT and the
governor . . . .
There is nothing in Wis. Stat. § 84.09(5) that
indicates this section was intended to establish
procedures to protect persons or entities interested
in purchasing state property. The "full and complete
report" is plainly for the governor's benefit, not the
benefit of potential purchasers.
31
No. 2019AP299 & 2019AP534
Id., ¶¶21–22. The court elaborated, "[t]here is nothing in
§ 84.09(5) that suggests it is intended to ensure the public
gets the highest price for the property, or that the sales be
carried out in particular ways to benefit the public." Id.,
¶25. Consequently, the court determined "neither the
[petitioner's] interest as a potential purchaser of property for
sale under Wis. Stat. § 84.09(5) nor the general public's
interest in such sales are arguably within the zone of interests
the statute is intended to protect." Id., ¶26.
¶39 Although the court of appeals in Chenequa referenced
what the statute "intended," that decision was released less
than one month after this court declared in Kalal "[i]t is
the law that governs, not the intent of the lawgiver." State
ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶52, 271
Wis. 2d 633, 681 N.W.2d 110 (quoting Antonin Scalia, A Matter
of Interpretation, at 17 (Princeton University Press, 1997)).
In describing the pre-Kalal approach to ascertaining statutory
meaning, this court explained "[t]he typical statutory
interpretation case will declare that the purpose of statutory
interpretation is to discern and give effect to the intent of
the legislature, but will proceed to recite principles of
interpretation that are more readily associated with a
determination of statutory meaning rather than legislative
intent[.]" Id., ¶43. This description fits the court of
appeals' opinion in Chenequa to a tee. Chenequa's focus on the
absence of textually-imposed procedures designed to protect
interested persons or textually-imposed "substantive
32
No. 2019AP299 & 2019AP534
requirements" on the agency or the governor reflected an effort
to ascertain statutory meaning, rather than an endeavor to
divine the legislature's "intent." Notwithstanding Chenequa's
use of the "zone of interests" terminology, we affirm the
soundness of the statutory interpretation applied in Chenequa.20
¶40 Like the parallel land-sale statute in Chenequa, Wis.
Stat. § 23.15 provides no substantive criteria governing the
sale other than the Department's obligation to determine the
lands are no longer necessary for the state's use for
conservation purposes. See § 23.15(1). Similar to Wis. Stat.
§ 84.09(5), nothing in § 23.15 "establish[es] procedures to
protect persons or entities interested in" challenging land-sale
decisions. See Chenequa, 275 Wis. 2d 533, ¶22. Additionally,
the statute's gubernatorial-approval provision does not confer
upon or contemplate the authority of private citizens to veto
the governor's land-sale decisions via Wis. Stat. ch. 227. See
§ 23.15(2). Because the interests the Friends assert are not
protected, recognized, or regulated under § 23.15, that statute
cannot serve as a basis for conferring standing on the Friends
under Chapter 227.
In Chenequa, the court of appeals addressed standing in
20
the context of a declaratory judgment action, determining the
"zone of interests" requirement in administrative agency
challenges was "essentially equivalent" to the "logical nexus"
requirement in declaratory judgment actions. See Chenequa Land
Conservancy, Inc. v. Village of Hartland, 2004 WI App 144, ¶¶14–
16, 275 Wis. 2d 533, 685 N.W.2d 573. We confine our review of
the "zone of interests" terminology to the context of petitions
filed under Wis. Stat. ch. 227.
33
No. 2019AP299 & 2019AP534
2. Wisconsin Admin. Code §§ NR 1.47 & 44.04
¶41 In addition to the aforementioned statutes, the
Friends cite "various provisions of Wis. Admin. Code chs. NR 1
and 44, including §§ NR 1.47 and 44.04" as a basis for their
claims. For purposes of determining a petitioner's standing to
challenge agency decisions, we apply the same analysis to the
Wisconsin Administrative Code as we apply to statutes. The
rules the Friends cite, dealing with procedures for selling land
and the master plan process, do not protect, recognize or
regulate any interests of the petitioners sufficient for
standing under Wis. Stat. §§ 227.52 and 227.53.
¶42 Wisconsin Admin. Code § NR 1.47, addressing the
disposition of state park lands, provides that "[s]tate-owned
lands within state park boundaries shall not be sold or
otherwise disposed of." Wis. Admin. Code § NR 1.47(1). "State-
owned lands outside state park boundaries and not within any
other department project which serve no project purpose may be
sold when the natural resources board determines such lands are
no longer necessary for the state's use for conservation
purposes and then shall be disposed of only in accordance with
the following priorities: (a) Sale to or exchange with a local
unit of government when required for a public use[,] (b)
Exchange with others to consolidate state ownership within a
park boundary[, and] (c) Sale to others." § NR 1.47(2).
Finally, "[r]estrictions may be imposed on lands disposed of to
insure aesthetic park settings or compatible adjacent land
uses." § NR 1.47(3).
34
No. 2019AP299 & 2019AP534
¶43 None of these procedural regulations contain any
"substantive criteria" by which petitioners could challenge the
Board's determination that "such lands are no longer necessary
for the state's use for conservation purposes" or the
Department's sale or exchange of land, whether within or beyond
state park boundaries, or the discretionary selection of
restrictions "to insure" either "aesthetic park settings or
compatible adjacent land uses." Nothing in the text of these
regulations indicates they establish procedures designed to
protect individuals or entities who may be interested in the
lands. In the absence of such standards or procedures, these
regulations do not protect, recognize, or regulate the interests
of private parties who may wish to challenge agency action under
them.
¶44 The Friends' argument regarding Wis. Admin. Code § NR
44.04 as a source for its claims is not well-developed. As well
as we can discern, the Friends argue § NR 44.04(7) requires
"[t]he public" to "be provided opportunities to participate
throughout the planning process for a property," but the Friends
do not allege denial of an opportunity to participate. In their
Amended Petition, the Friends allege the Department in 2017
"initiated a master planning process under Wis. Admin. Code ch.
NR 44 to consider Kohler Co.'s request to use state park land
for the golf course" and that the Friends "testified and
provided comments" at the Board's meeting in February 2018
regarding the land exchange, which the Board approved "before
the master planning process was complete." Nowhere in the
35
No. 2019AP299 & 2019AP534
Amended Petition do the Friends assert they were denied
"opportunities to participate throughout the planning process."
¶45 The Friends additionally cite § NR 44.04(9), under
which "only those management and development activities
identified in the master plan may be pursued by the department."
Nowhere in the Amended Petition, however, do the Friends assert
the master plan did not include a transaction with Kohler
involving state land; to the contrary, the Amended Petition
specifically says: "In 2017, the DNR initiated a master planning
process under Wis. Admin Code ch. NR 44 to consider Kohler Co.'s
request to use state park land for the golf course." Although
in their brief the Friends later suggest the removal of land
from the Park and its conveyance to Kohler required "being
approved in the master plan under Wis. Admin. Code § NR
44.04(9)," nothing in that regulation imposes such a
requirement. Neither of these code provisions serve as a basis
for the Friends' challenge to the Board's decision to exchange
land with Kohler.21
The dissent points to a number of WEPA cases in support
21
of the Friends' alleged procedural violations. Dissent, ¶84
n.21 (citing Applegate-Bader Farm, 396 Wis. 2d 69; Milwaukee
Brewers, 130 Wis. 2d 56; WED I, 69 Wis. 2d 1). Although the
dissent asserts the Friends raise the kind of procedural
violation which "routinely bestow[s] standing on any member of
the public directly injured by a procedurally flawed agency
action," the Friends did not in fact raise such a violation
under WEPA. Id., ¶84.
36
No. 2019AP299 & 2019AP534
IV. CONCLUSION
¶46 In clarifying that the "zone of interests" expression
of standing has no basis in Wisconsin law, we retain our well-
established standing inquiry for challenges to administrative
decisions. In order for Wis. Stat. ch. 227 petitioners to
satisfy the second standing element, they must identify a
statute which protects, recognizes or regulates an interest the
petitioners allege has been "adversely affected." Wis. Stat.
§§ 227.01(9), 227.52, 227.53(1). Absent from this purely
statutory analysis is any subjective judicial assessment of
whether the asserted interest falls within a "zone of interests"
under an identified statute.
¶47 The Friends' Amended Petition identifies statutes and
regulations they assert protect or regulate interests they
allege have been injured. None of the statutes the Friends
cite, however, protects, recognizes or regulates their asserted
interests. Accordingly, the Friends lack standing to challenge
the Board's decision to approve the exchange of land between the
Department and Kohler.
By the Court.—The decision of the court of appeals is
reversed.
37
No. 2019AP227 & 2019AP534.bh
¶48 BRIAN HAGEDORN, J. (concurring). The majority
correctly concludes that the petitioners in this case do not
have a right to judicial review of the land transfer decision.
I join the opinion. In refocusing the zone-of-interests
analysis on whether an agency decision "adversely affect[s] the
substantial interests of any person," the court rightly turns
the analytical framework closer to the statutory text it
implements. See Wis. Stat. § 227.52. I write separately to
highlight a potential issue implicit in the majority's
discussion.
¶49 In 1976, the legislature amended Wis. Stat. ch. 227,
replacing "legal rights, duties or privileges" with "substantial
interests." § 19, ch. 414, Laws of 1975. As the majority
observes, our cases have largely applied an identical analytical
framework both before and after the 1976 amendment. We have not
addressed whether the 1976 amendment modified the right to
judicial review of administrative decisions. A careful focus on
the text of our laws, rather than incorporating federal caselaw,
may require an alteration to this approach. While the parties
do not raise or develop these issues, today's decision is a good
step toward aligning the inquiry with the statute, as we should.
Therefore, I join the majority opinion and respectfully concur.
1
Nos. 2019AP299 & 2019AP534.jjk
¶50 JILL J. KAROFSKY, J. (dissenting). The law plainly
grants the Friends standing to seek judicial review of the
Department of Natural Resource's (DNR) actions that the Friends
allege were unlawful and harmful to its members. Yet a majority
of this court prefers to slam shut the courthouse doors and
reworks the law to reach its desired result. The majority
reworks the law by distorting case law, conflating standing with
the merits, and failing to engage in any meaningful
interpretation of the legislative text. In the end, the
majority reinvents the limits on judicial review in a manner not
otherwise found in the legislatively enacted text. Because I
would apply the law as the legislature wrote it——which
guarantees harmed parties like the Friends their day in court——I
respectfully dissent.
I
¶51 This case implicates statutes and regulations related
to DNR's management of state parks and DNR-owned lands. These
laws exist entirely for the sake of the public's interest in
conserving, enjoying, and using Wisconsin's cherished natural
resources. These laws were precipitated by concerns that our
state had done too little to protect this paramount interest.
Having witnessed other states squander opportunities to protect
their natural resources from "commercial vandalism" and
exclusive "private ownership," in 1907 Wisconsin Governor James
Davidson, at the direction of the legislature, convened the
state park board. See John Nolen, State Parks for Wisconsin 7-8
(1909); § 1, ch. 495, Law of 1907. That board eventually
endorsed the recommendation of renowned landscape architect John
1
Nos. 2019AP299 & 2019AP534.jjk
Nolen to establish state parks open to the public's use and
enjoyment. As Nolen stated:
The issue appears plain. Is Wisconsin going to look
upon its bay and lake shores, its rivers and bluffs,
its dells, its inland lakes, its forests, as natural
resources to be conserved and some portion at least
acquired and held for the benefit of all the people——
both for present and future generations?
Nolen, supra, at 38 (emphasis added). Wisconsin answered by
adopting a state park system for the benefit of all
Wisconsinites——a system protected in part by the laws DNR
allegedly violated.
¶52 Members of the public need not sit idly by when a
state agency may have transgressed the very laws designed to
protect their interests. Rather, the legislature has guaranteed
that any person "whose substantial interests are adversely
affected" by an agency decision may call upon the judiciary to
be a check on executive decision-making. Wis. Stat.
§§ 227.01(9) & 227.53(1); see State ex rel. First Nat. Bank of
Wis. Rapids v. M & I Peoples Bank of Coloma, 82 Wis. 2d 529, 544
n.10, 263 N.W.2d 196 (1978) ("[J]udicial review of the action of
an administrative agency is one of the checks and balances to
achieve a proper balance between government regulation and the
protection of personal and property interests from arbitrary
action."). This right to judicial review is broad; our
precedent recognizes only two narrow limits on it. First, the
challenged action must "adversely affect[]" the person, that is,
it must "directly cause[]" the person's injury. Waste Mgmt. of
Wis., Inc. v. DNR, 144 Wis. 2d 499, 505, 424 N.W.2d 685 (1988)
(quoting Wis.'s Env't Decade, Inc. v. PSC, 69 Wis. 2d 1, 10, 230
2
Nos. 2019AP299 & 2019AP534.jjk
N.W.2d 243 (1975) (WED I)). Second, the person's injured
interest must be "recognized by law," meaning it must be one
"which the law recognizes or seeks to regulate or protect." Id.¶53 Applying this decades-old framework, the Friends
brought a routine environmental injury case. The Friends claim
that DNR's grant of an easement through the Kohler-Andrae State
Park and DNR's removal and subsequent transfer of lands from the
Park injured its members' aesthetic, conservational, and
recreational interests. Moreover, the Friends contend DNR's
injurious actions were procedurally and substantively unlawful.
Procedurally, the Friends complain that DNR's actions
contravened the Park's master plan because the agency failed to
revise that plan as required by Wis. Admin. Code ch. NR 44.
Substantively, the Friends allege that the agency transferred
the removed Park lands to private ownership without a lawful
finding that the "lands are no longer necessary for the state's
use for conservation purposes," as required by Wis. Stat.
§ 23.15(1) and Wis. Admin. Code § NR 1.47(2).
¶54 Existing law entitles the Friends to judicial review
of these claims. Yet the majority opinion inexplicably and of
its own accord rewrites the law to restrict the right to
judicial review beyond that which the legislative text grants.
The majority does this in two regards. First, it purports to
realign the "zone of interests" limitation on Wis. Stat. ch. 227
standing with the relevant text. But upon closer inspection,
all the majority has done is rename the test "substantial
interests" to mimic the statutory language without any regard
for what the words "substantial interests" actually mean. This
3
Nos. 2019AP299 & 2019AP534.jjk
entire relabeling exercise turns out to be a distraction from
the majority's second, more serious rewrite of the law. Subtly,
the majority opinion injects its own additional "substantive
criteria" limitation into law, which finds no home in the
legislative text. Compounding its errors, the majority then
misapplies its newly minted limit on ch. 227 review, sowing more
confusion into ch. 227 standing. Collectively, the majority
opinion's errors provide a prime example of how "textualism" can
be manipulated to conceal a result-oriented legal analysis.
A. The Atextual "Zone of Interests" Test
¶55 Let's start with a point of agreement. This court's
determination that a person's injured interest must fall within
the relevant law's "zone of interests" is disconnected from the
legislative text. We first adopted the "zone of interests"
limitation in 1975, styling it after the United States Supreme
Court's contemporaneous interpretation of the federal
Administrative Procedure Act. See WED I, 69 Wis. 2d at 10
(citing Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397
U.S. 150, 153 (1970) & Barlow v. Collins, 397 U.S. 159 (1970)).
But even in 1975, the two statutes being interpreted
meaningfully differed:
 The state statute read: "any person aggrieved by a[n
agency] decision . . . and directly affected thereby shall
be entitled to judicial review thereof," Wis. Stat.
§ 227.16 (1973-74);
 The federal statute read: "A person suffering legal wrong
because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
4
Nos. 2019AP299 & 2019AP534.jjk
statute, is entitled to judicial review thereof," 5 U.S.C.
§ 702 (emphasis added).
¶56 From the latter's underlined text, it is evident why
the United States Supreme Court limited federal judicial review
to only those injuries "arguably within the zone of interests to
be protected or regulated by the [relevant] statute." Ass'n of
Data Processing, 397 U.S. at 153. Wisconsin Stat. § 227.16
contained no similar language which would justify this court's
imposition of an identical limitation. To this day, Wisconsin
statutory law omits its federal counterpart's "within the
meaning of a relevant statute" language, stating instead that
any "person or agency whose substantial interests are adversely
affected by a determination of an agency" "shall be entitled to
judicial review of the decision."1 The only change in Wisconsin
law since our 1975 decision relevant here is that the statute
now includes the words "substantial interests."
¶57 In short, I agree that the "zone of interests"
limitation lacks a textual basis in the otherwise broad cause of
action the Wisconsin legislature affords those affected by
agency decisions; in the appropriate case, perhaps this court
should revisit it. Here, though, no party asks us to do so,
making this case an inappropriate vehicle for such an overhaul.
1 This simplified formulation combines Wis. Stat. § 227.53("any person aggrieved by a decision specified in [§] 227.52
shall be entitled to judicial review of the decision") and Wis.
Stat. § 227.01(9)'s definition of a "person aggrieved" ("a
person or agency whose substantial interests are adversely
affected by a determination of an agency"). See also Wis. Stat.
§ 227.52 ("Administrative decisions which adversely affect the
substantial interests of any person, whether by action or
inaction, whether affirmative or negative in form, are subject
to review . . . .").
5
Nos. 2019AP299 & 2019AP534.jjk
Deciding this issue, when no one asked us to do so, both
deprives our deliberations of analysis refined in the fires of
adversarial litigation and unfairly surprises the parties. See,
e.g., City of Janesville v. CC Midwest, Inc., 2007 WI 93, ¶68,
302 Wis. 2d 599, 734 N.W.2d 428 (Ann Walsh Bradley, J.,
concurring). Still, the majority heedlessly marches forward.
¶58 Though the majority opinion pays homage to a
"textually-driven analysis,"2 its analysis is anything but based
in the text. Removing the atextual "zone of interests"
limitation on Wis. Stat. ch. 227 standing should make judicial
review easier to obtain. But the majority manages to do the
opposite by: (1) merely applying the same restrictive "zone of
interests" test under a label only superficially matching the
text; and (2) using the nominally textual critique of "zone of
interests" as cover for the introduction of a new, more
restrictive, and still atextual, "substantive criteria"
limitation.
B. Same Test, New Name
¶59 The majority opinion declares a textualist victory
over the "zone of interests" test. In reality, all it has done
is relabel the existing test to create the illusion that it is
consistent with the legislative text. The majority claims it
has eradicated the subjectivity supposedly present in WED I's
articulation of the "zone of interests" test. But the truth is
2See, e.g., majority op., ¶28; id., ¶25 (complaining "the
'zone of interests' terminology is untethered to the text");
id., ¶26 (proclaiming that "the 'zone of interests' language" is
not "grounded . . . in the statutory text"); id., ¶39
(criticizing a "pre-Kalal approach" to statutory
interpretation).
6
Nos. 2019AP299 & 2019AP534.jjk
that as early as the 1980s this court has articulated the "zone
of interests" test exactly the same way the majority opinion now
asserts: a "statutory question" on whether the "nature of the
statute" "recognizes or seeks to regulate or protect" the
plaintiff's injured interest. See Waste Mgmt., 144 Wis. 2d
at 503-508. The only change the majority opinion makes is
renaming the test "substantial interests" rather than "zone of
interests."3
¶60 Simply renaming the test "substantial interests,"
however, fails to actually interpret what the words "substantial
interests" mean. Is "substantial interests" a legal term of
art? Or is this test the result of those two words' common,
ordinary, and accepted meaning? The majority does not say.
Yes, the majority opinion recites some statutory history, but
its conclusory musing that those changes somehow do not
"endorse[]" the "zone of interests" label while simultaneously
not "abrogating" its substance is far from a true text-based
analysis.4 See majority op., ¶27. In sum, the majority opinion
See, e.g., majority op., ¶¶12 & 30 (calling "zone of
3
interests" a "misnomer"); id., ¶25 (claiming to change only "the
'zone of interests' terminology" (emphasis added)); id., ¶¶2
& 28 (concluding that the "'zone of interests' nomenclature" has
"no basis in the text" (emphasis added)); id., ¶46 (purporting
to clarify only "that the "zone of interests" expression of
standing has no basis in Wisconsin law" (emphasis added)).
4 Citation to three cases decided after the 1975 amendment
that never even mention "substantial interests"——except in
footnotes merely quoting the full statutory text——does not cure
the dearth of a "textually-driven analysis." Those cases
expressly rely on WED I's pre-amendment interpretations without
reservation or even acknowledging the statutory changes.
7
Nos. 2019AP299 & 2019AP534.jjk
maintains a judicial limitation on Wis. Stat. ch. 227 standing
that remains unaddressed in light of the legislature's
"substantial interest" language.
C. A Distraction from the New "Substantive Criteria" Limit
¶61 The majority opinion's hollow label change only
obscures the subtle insertion of another, more exacting atextual
limitation——and the majority's prompt misapplication of that
limitation. According to the majority, standing to invoke
judicial review now turns on whether the law underlying the
claim both: (1) protects, recognizes, or regulates the
petitioner's injured interest; and (2) contains "substantive
criteria." The problem with the new "substantive criteria"
limitation is threefold. First, it is based on a single court
of appeals decision that neither cites any authority for this
limitation nor supports how the majority opinion applies it
here. Second, the search for "substantive criteria" conflates
standing with a prejudgment on the merits. And finally,
demanding "substantive criteria" forsakes the actual legislative
text. Such a condition overrides the substantive criteria and
procedures that Wis. Stat. ch. 227 already provides, thus
A real analysis of "substantial interests" might mean that
neither the "zone of interests" label nor its substance survive.
The test (under whichever label) requires interpreting the law
allegedly violated. That makes sense under the federal "within
the meaning of a relevant statute" language; it makes little
sense in a statute lacking similar language. Perhaps
Wisconsin's legislature crafted a broader judicial review
provision to ensure a more robust judicial check on state
agencies than the federal Congress deemed necessary. Whatever
the answer is, the majority opinion's label change simply puts
spoiled milk into a new carton, which fails to address the
problem.
8
Nos. 2019AP299 & 2019AP534.jjk
overruling the legislature's policy decision to grant broad
standing to challenge agency decisions.
1. Chenequa
¶62 The majority opinion draws its "substantive criteria"
limitation from Chenequa Land Conservancy, Inc. v. Village of
Hartland, 2004 WI App 144, 275 Wis. 2d 533, 685 N.W.2d 573. The
majority's reliance on Chenequa is puzzling, however. For one,
the Chenequa court created the "substantive criteria" limitation
out of whole cloth as it cites no case or statute for this
limit. See id., ¶¶21 & 25. More confounding, though, the
majority misapplies Chenequa's "substantive criteria" limit to
reach a result contrary to the one Chenequa compels.
¶63 To explain, Chenequa involved a prospective buyer, the
Chenequa Land Conservancy, Inc. ("Chenequa"), displeased that
the Department of Transportation (DOT) sold DOT-owned lands to a
competing bidder. Chenequa's challenge invoked Wis. Stat.
§ 84.09(5), a statute containing a similar provision to one in
Wis. Stat. § 23.15(1) at issue in this case. Section 84.09(5)
authorizes DOT to sell department-owned property when it
"determines that the property is no longer necessary for the
state's use for transportation purposes." That language
parallels the "no longer necessary for the state's use for
conservation purposes" language in § 23.15(1). See also Wis.
Admin. Code § NR 1.47(2).
¶64 As a prospective buyer, Chenequa was not challenging
the determination that the land was no longer necessary for the
state's use; it needed the land sale to happen in order to
purchase it. Rather, Chenequa's challenge centered on how DOT
9
Nos. 2019AP299 & 2019AP534.jjk
selected the winning bidder——a matter unrelated to whether the
land remained "necessary for the state's use for transportation
purposes." But § 84.09(5) was silent as to the substantive
criteria by which DOT should select the winning bid. As such,
the court of appeals concluded that because "there are no
substantive requirements governing the sale . . . other than
DOT's obligation to determine that the property is no longer
necessary for highway purposes," Chenequa lacked standing to
seek judicial review of the bidding process. Chenequa, 275
Wis. 2d 533, ¶25 (emphasis added). By using "other than," the
Chenequa court held that the statute's only substantive
criterion was the determination about the lands' necessity for a
specified purpose.5 But because that determination was the only
substantive criterion and Chenequa's bid-selection challenge did
not implicate it, Chenequa lacked standing.
¶65 From this holding, the majority opinion engages in a
glaring non sequitur. Like the Chenequa court, the majority
recognizes that "§ 23.15 provides no substantive criteria
governing the sale other than [DNR]'s obligation to determine
the lands are no longer necessary for the state's use for
conservation purposes." Majority op., ¶40 (emphasis added).
But then, without explanation or analysis, the majority
concludes that despite the Friends' challenge directly invoking
the substantive criterion in § 23.15, the Friends'
conservational interests "are not protected, recognized, or
5Other than, Collins Dictionary, https://www.collinsdiction
ary.com/us/dictionary/english/other-than ("You use other than
after a negative statement to say that the person, item, or
thing that follows is the only exception to the statement.").
10
Nos. 2019AP299 & 2019AP534.jjk
regulated under § 23.15, [and] that statute cannot serve as a
basis for conferring standing on the Friends." Id. That simply
does not follow.
¶66 Under the most generous read, the majority opinion is
falsely equating the Friends' interests with those of Chenequa.
But the two petitioners raised different challenges. Chenequa
did not challenge DOT's determination that the land was no
longer necessary for state purposes (because they wanted the
sale to occur, just under different terms). The Friends, by
contrast, do not want the transfer to occur and directly
challenge DNR's determination that the affected lands are no
longer necessary for conservational purposes. Therefore,
applying Chenequa's "substantive criteria" holding actually
leads to the opposite conclusion than the one the majority
reaches.
2. Prejudging the merits at the standing stage
¶67 A threshold standing determination decides only
whether a petitioner is entitled to be heard by the court;
"standing in no way depends on the merits of the p[etitioner]'s
contention that particular conduct is illegal." Warth v.
Seldin, 422 U.S. 490, 500 (1975). Indeed, as we explained in
Moustakis v. DOJ, "[s]tanding and statutory interpretation are
distinct and should not be conflated." 2016 WI 42, ¶3 n.2, 368
Wis. 2d 677, 880 N.W.2d 142. Yet the majority's new
"substantive criteria" limitation appears to do just that——it
conflates the Friends' standing with a prejudgment on the laws
allegedly violated. Thus, not only is the majority's new
"substantive criteria" limit on judicial review unsupported by
11
Nos. 2019AP299 & 2019AP534.jjk
any precedent, it also runs counter to our case law by
conflating standing with statutory interpretation.
3. No basis in the text
¶68 More fundamentally, this "substantive criteria"
limitation betrays the legislative text. No provision in Wis.
Stat. ch. 227 directs courts to seek out substantive criteria in
the statute or regulation at issue. In fact, such a directive
conflicts with portions of ch. 227 that already provide the
substantive lens for judicial review and the applicable
procedures.
¶69 Under Wis. Stat. § 227.57, a reviewing court
substantively evaluates the agency decision for:
 "a material error in procedure or a failure to follow
prescribed procedure" that impaired "the fairness of the
proceedings or the correctness of the action";
 an erroneous interpretation of applicable law;
 "any finding of fact" on which the agency action depends
"that is not supported by substantial evidence in the
record" or was "determined without a hearing"; or
 an exercise of discretion "outside the range of discretion
delegated to the agency by law," "inconsistent with an
agency rule, an officially stated agency policy or a prior
agency practice, if deviation therefrom is not explained to
the satisfaction of the court by the agency," "or is
otherwise in violation of a constitutional or statutory
provision."
Critically, these provisions provide the only substantive
criteria by which a court may review an agency's decision. See
12
Nos. 2019AP299 & 2019AP534.jjk
§ 227.57 (limiting the scope of judicial review to these
criteria).6 Chapter 227 likewise establishes comprehensive
procedures for judicial review of agency decisions.
See §§ 227.40-227.60.
¶70 Despite ch. 227's existing substantive and procedural
judicial-review provisions, the majority opinion denies the
Friends standing in part because "nothing in § 23.15
'establish[es] procedures to protect persons or entities
interested in' challenging land sale decisions." Majority
op., ¶40 (alteration in original) (quoting Chenequa, 275 13
Wis. 2d 533, ¶22). But never has this court held, and certainly
no statute directs, that the only reviewable agency decisions
are those that implicate substantive laws containing their own
judicial-review criteria and procedures. Such a rule forsakes
the plain text of ch. 227. That rule is also nonsensical: Why
would the right to judicial review depend on substantive
statutes containing their own judicial-review criteria and
procedures when those criteria and procedures already appear in
a statutory chapter entirely dedicated to judicial review? The
majority opinion's newly crafted "substantive criteria"
limitation is nothing short of the enactment of judicial policy
at odds with legislative policy enshrined in the statutory text.
6 The Friends' challenge fits well within these criteria.
For example, a court could adjudicate whether redrawing the
Park's boundaries without amending the Park's master plan was
"inconsistent with" or "otherwise in violation of" Wis. Admin.
Code ch. NR 44. So, too, could a court answer whether the
factual finding that the disposed lands were "no longer
necessary for the state's use for conservation purposes" lacked
"support[] [from] substantial evidence in the record."
13
Nos. 2019AP299 & 2019AP534.jjk
D. The Textualism Smokescreen
¶71 Though the majority opinion seeks to style itself as a
"textually-driven analysis," the above shows it actually gives
little regard to the text. This dissonance supplies a prime
example of how the textualism descriptor and the objectivity it
allegedly imparts can be used to conceal or distract from an
otherwise result-orientated analysis.
¶72 Broadly speaking, textualism is an approach to
interpreting laws that focuses almost exclusively on the "plain
meaning" of the statutory text. See generally State ex rel.
Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶¶38-52, 271
Wis. 2d 633, 681 N.W.2d 110. That emphasis on the text
generally disregards the enacting body's intent and the law's
underlying purpose, to the extent either is not "ascertainable
from the text and structure." Id., ¶¶48-51. The purported
virtue of this approach is that it constrains judicial
discretion by curbing any tendency to let policy preferences
color legal interpretations under the guise of legislative
"intent" or "purpose."7 Just read and apply the law as written.
Simple, right?
¶73 Unfortunately, that's not always the case. Empirics
and experience tell us that a textualist approach is as
susceptible to a result-driven analysis as any of its
alternatives. That is because textualism invites the very
7See Antonin Scalia, A Matter of Interpretation 17-18, 22,
40-41 (Amy Gutmann ed., 1997); Antonin Scalia & Bryan A. Garner,
Reading Law at xxviii (2012); see also John F. Manning, Justice
Scalia and the Idea of Judicial Restraint, 115 Mich. L. Rev. 747(2017).
14
Nos. 2019AP299 & 2019AP534.jjk
judicial discretion it claims to oust; it simply shifts that
discretion to between the lines. Which version of textualism is
appropriate?8 Which words deserve attention?9 When do those
words shift from "plain" to "ambiguous"?10 Which canons of legal
8 Multiple ideological "camps" of textualism have emerged
that emphasize either formalism or flexibility. See Tara Leigh
Grove, Which Textualism?, 134 Harv. L. Rev. 265, 279-90 (2020).
The divergent textualist opinions in Bostock v. Clayton
County, 590 U.S. ___, 140 S. Ct. 1731 (2020), exposed the wide
discretion a textualist Justice exercises in identifying the
relevant "context"——semantic, social, or otherwise——in which she
interprets the text. See Grove, supra, at 279-90.
9 Not only do the United States Supreme Court's recent cases
reveal that courts have a wide "choice of context," they also
face a "choice of text" dilemma that can be outcome
determinative. See William N. Eskridge, Jr. & Victoria F.
Nourse, Textual Gerrymandering, 96 N.Y.U. L. Rev. 1718, 1738-88
(2021). "[T]he number of 5-4 splits in cases involving textual
method deployed by both sides," which regularly turn on the
Justices' differing "choice of text," indicate that no singular
"plain meaning" actually exist. See Victoria Nourse,
Textualism 3.0, 70 Ala. L. Rev. 667, 669-84 (2019).
10"Language is often ambiguous; the distinction between
'plain' and 'ambiguous' is in the eye of the beholder; and both
words too often are conclusory labels a court pins on a statute,
making its decision appear result-oriented." State ex rel.
Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶63, 271
Wis. 2d 633, 681 N.W.2d 110 (Abrahamson, C.J., concurring)
(footnotes omitted); see also State v. Byers, 2003
WI 86, ¶¶45-56, 263 Wis. 2d 113, 665 N.W.2d 729 (Abrahamson,
C.J., concurring).
15
Nos. 2019AP299 & 2019AP534.jjk
interpretation apply?11 Which canons carry the day when two
different sets of canons compel separate outcomes?12 What
happens when a single canon cuts in both directions?13 Judicial
discretion abounds, yet rarely does the rationale for how a
court exercises any of that discretion find its way on to the
11The choice of canons is vast, with as much as 187
different options from which to cherry pick. See William N.
Eskridge, Jr., The New Textualism and Normative Canons, 113
Colum. L. Rev. 531, 536 (2013) (reviewing Scalia & Garner, supra
note 6). Moreover, not every Justice on this court agrees on
which interpretive canons are actually "canon," which can lead
to diverging results. See, e.g., United Am., LLC v. DOT, 2021
WI 44, ¶15 & n.9, 397 Wis. 2d 42, 959 N.W.2d 317. Nor is there
agreement on when these canons should apply in any given case.
See State v. Peters, 2003 WI 88, ¶14, 263 Wis. 2d 475, 665
N.W.2d 171; see also James v. Heinrich, 2021 WI 58, ¶¶76-83, 397
Wis. 2d 517, 960 N.W.2d 350 (Dallet, J., dissenting).
12"[T]here is no canon for ranking or choosing between
canons; the code lacks a key." Richard A. Posner, The Federal
Courts: Crisis and Reform 277 (1985). More vexingly, some of
the most common canons directly spar against one another. See
Karl N. Llewellyn, Remarks on the Theory of Appellate Decision
and the Rules or Canons About How Statutes Are to Be
Construed, 3 Vand. L. Rev. 395, 401-06 (1950); see also Anita S.
Krishnakumar, Dueling Canons, 65 Duke L.J. 909 (2016).
13Case in point, the recent James v. Heinrch decision cited
the canon against surplusage as supporting the majority's end
result, despite the fact that the same canon cut in the opposite
direction. See James, 397 Wis. 2d 517, ¶81 (Dallet, J.,
dissenting). The majority opinion never explained why it
nevertheless applied this canon only for its conclusion.
16
Nos. 2019AP299 & 2019AP534.jjk
written page. Far from unfailing objectivity,14 the textualist
label can be "a rhetorical smokescreen" obscuring a result-
oriented analysis.15
¶74 The metaphor of a smokescreen precisely captures the
majority opinion. The majority attempts to pass its analysis
off as impartially applying the text. But in reality the
majority reaches a result unsupported by that text. Here the
majority perpetuates the "zone of interests" limitation on
ch. 227 standing by changing only its label. While this label
change from "zone of interests" to "substantial interests"
superficially aligns the same "zone of interests" test with the
statutory text, the majority's analysis fails to actually
address this test's substantive inconsistency with the text.
Indeed, that whole exercise of arbitrarily grafting the same
The textualist's various canons are often disconnected
14
from legislative realities, meaning a textualist analysis
"actively shape[s]" legal texts rather than "passively
reflect[s]" the enacting body's plain meaning. See Abbe R.
Gluck & Lisa Schultz Bressman, Statutory Interpretation from the
Inside-An Empirical Study of Congressional Drafting, Delegation,
and the Canons: Part I, 65 Stan. L. Rev. 901, 961-64 (2013).
Indeed, many of the canons require the court to indulge
substantive presumptions that reflect value preferences,
regardless of whether the enacting body shares those
presumptions or preferences. See Abbe R. Gluck, Justice
Scalia's Unfinished Business in Statutory Interpretation, 92
Notre Dame L. Rev. 2053, 2071-72 (2017).
Neil H. Buchanan & Michael C. Dorf, A Tale of Two
15
Formalisms, 106 Cornell L. Rev. 591, 640 (2021); see also
William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law As
Equilibrium, 108 Harv. L. Rev. 26, 77-78 (1994). Indeed,
textualism can, at times, function as "indirect purposive
analysis [that] enables just as much judicial discretion as the
purposivist interpretive tools that textualists decry——but under
the guise of neutral, objective linguistic or canon-based
analyses." Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke
L.J. 1275, 1280 (2020).
17
Nos. 2019AP299 & 2019AP534.jjk
test onto different text only distracts from the majority's
subtle adoption of an additional, judicially crafted
"substantive criteria" limitation that lacks any textual basis.
¶75 Further exposing the majority's disregard for
legislative text and this court's interpretive principles is the
majority's application of the enhanced limitations on Wis. Stat.
ch. 227 standing. The majority opinion ignores critical context
by interpreting each substantive law underlying the Friends'
petition in isolation. See majority op., ¶¶32–45. This divide-
and-conquer approach to legal interpretation is wholly foreign
to our interpretive principles. See Kalal, 271 Wis. 2d 633,
¶¶46, 48-49 (explaining that "statutory language is interpreted
in the context in which it is used; not in isolation but as part
of a whole"; "a plain-meaning interpretation cannot contravene a
textually or contextually manifest statutory purpose").
¶76 Of course, none of this is to say that the text of
statutes or regulations is inherently unreliable; every court
must read the law's words to interpret the law's meaning. But
here, the majority is not engaging in an objective, text-driven
analysis. Rather, the majority opinion's invocation of
textualist principles attempts to hide an otherwise result-
driven opinion aimed at keeping the Friends out of the
courtroom.
II
¶77 Turning next to the proper analysis in this case, I
conclude the Friends have standing to challenge DNR's actions.
Current law asks only two questions: (1) did the challenged
actions "directly cause[]" the Friends' injuries; and (2) are
18
Nos. 2019AP299 & 2019AP534.jjk
those injured interests ones that the challenged law recognizes,
protects, or regulates?16 See, e.g., Waste Mgmt., 144 Wis. 2d
at 505. The answer to both inquiries is a straightforward
"yes."
A. Injury
¶78 The Friends claim that DNR granted an easement through
the Park, removed Park lands, and conveyed those lands to
private ownership contrary to law. It contends these unlawful
acts injured its members' interests in:
 continuing to enjoy and recreate in the removed portion of
the Park——including camping, hiking, snowshoeing, and
biking——as they have in the past;
 observing and studying plants, birds, and animals whose
habitats will become inaccessible or reduced due to the
transfer of public land to private ownership;
 the conservational value of the affected Park lands in
preserving "the Black River, its wetlands, the forest, and
the adjoining Lake Michigan as an ecological whole"; and
 the aesthetics of the area adjacent to the affected Park
lands.17
16Though I question the continued validity of the second
limitation in light of the yet-to-be interpreted "substantial
interests" language, this issue has not been properly presented
to the court and so I continue to apply the law as it currently
stands. See supra, ¶¶6-8.
17 Because I ultimately deem these alleged injuries
sufficient to establish standing, I do not address the Friends'
other alleged injuries arising from a proposed golf course
project near the Park and their nearby homes. The link between
DNR's actions here and the golf course's construction raise a
more complex analysis than necessary to resolve this case. See
generally Wis.'s Env't Decade, Inc. v. PSC, 69 Wis. 2d 1, 14,
230 N.W.2d 243 (1975) (WED I).
19
Nos. 2019AP299 & 2019AP534.jjk
Perhaps trifling to some, these alleged injuries to the members'
"aesthetic, conservational and recreational interests ha[ve]
been readily accepted as sufficient to confer standing."
WED I, 69 Wis. 2d at 10; see also City of Mayville v. DOA, 2021
WI 57, ¶18, 397 Wis. 2d 496, 960 N.W.2d 416 (instructing that
"standing should be liberally construed" such that "even a
trifling interest may be sufficient to confer standing"
(citations omitted)). Indeed, the persuasive federal authority
on this point uniformly holds that so long as the allegations
include regular interaction with the affected lands and concrete
intentions to interact with them in the future,18 as opposed to a
solitary prior use or "some day" intentions,19 then the
environmental harm constitutes a direct injury. See, e.g.,
Waste Mgmt., 144 Wis. 2d at 509 (identifying the federal
administrative standing doctrine as "particularly persuasive").
¶79 The Friends' allegations raise concrete injuries to
its members' ongoing aesthetic, conservational, and recreational
interests in the affected Park lands. Accordingly, and
See,
18 e.g., Summers v. Earth Island Inst., 555
U.S. 488, 494 (2009); Friends of the Earth, Inc. v. Laidlaw
Env't Servs. (TOC), Inc., 528 U.S. 167, 181–82 (2000); Sierra
Club v. EPA, 939 F.3d 649, 664 (5th Cir. 2019); Sierra Club v.
U.S. Dep't of the Interior, 899 F.3d 260, 283 (4th Cir. 2018);
Nat'l Wildlife Fed'n v. Espy, 45 F.3d 1337, 1340–41 (9th
Cir. 1995); Save Our Cmty. v. EPA, 971 F.2d 1155, 1160–61 (5th
Cir. 1992); United States v. Metro. St. Louis Sewer Dist., 883
F.2d 54, 56 (8th Cir. 1989).
See,
19 e.g., Lujan v. Defs. of Wildlife, 504
U.S. 555, 563-64 (1992); Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 889 (1990).
20
Nos. 2019AP299 & 2019AP534.jjk
consistent with long-settled precedent, the Friends allege
sufficiently direct injuries to confer standing.
B. Protected, Recognized, or Regulated Interests
¶80 The question then becomes whether the Friends' injured
interests are "protected, recognized, or regulated" by the
"nature of" the laws supposedly violated. Id. at 508. To make
that determination, we employ our usual interpretative
principles. See Foley-Ciccantelli v. Bishop's Grove Condo.
Ass'n, Inc., 2011 WI 36, ¶¶43-44, 333 Wis. 2d 402, 797 N.W.2d
789; see also Lexmark Int'l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 127 (2014). Here, the Friends contend its
members' interests are protected, recognized, or regulated by
two categories of laws: (1) the substantive protections in Wis.
Stat. § 23.15(1) and Wis. Admin. Code § NR 1.47(2); and (2) the
procedural protections in Wis. Admin. Code ch. NR 44. I address
each in turn.
1. Substantive protections
¶81 "State−owned lands within state park boundaries shall
not be sold or otherwise disposed of." Wis. Admin Code
§ NR 1.47(1). Needing to circumvent this restriction so it
could transfer 4.59 acres of Park lands to private ownership,
DNR cleverly redrew the Park's boundaries to remove those 4.59
acres. With the lands now outside state park boundaries, DNR
faced only one additional hurdle——a determination that the
removed lands were "no longer necessary for the state's use for
conservation purposes." See Wis. Stat. § 23.15(1); Wis. Admin.
Code § NR 1.47(2). DNR made that determination, but the Friends
dispute whether DNR did so lawfully.
21
Nos. 2019AP299 & 2019AP534.jjk
¶82 The required determination that the lands are
unnecessary "for conservation purposes" repeated in § 23.15(1)
and § NR 1.47(2) plainly protects, recognizes, and regulates the
conservational interests of any member of the public. Though
these laws reference the "state's use," the mention simply
recognizes that the state is the steward of the public's
interests in state park lands. That is especially clear when
viewed in context. The closely related Wis. Stat. § 27.01(1)
declares it to be the legislative policy that such lands be
conserved "to provide areas for public recreation and for public
education in conservation and nature study" (emphases added).
See Kalal, 271 Wis. 2d 633, ¶49 (emphasizing the importance of
"closely-related statutes" such as "explicit statements of
legislative purpose"). The next subsection, § 27.01(2), then
empowers DNR to carry out that legislative policy as the steward
of park lands. This all comports with the precipitating
history, culminating in John Nolen's declaration that these
invaluable lands should be conserved "for the benefit of all the
people——both for present and future generations."20 Nolen,
supra, at 38.
¶83 Therefore, § 23.15(1) and § NR 1.47(2)'s conditioning
the disposition of DNR-owned lands on a finding that the lands
are no longer necessary for conservation purposes——read in the
Though the class of persons whom a law protects,
20
recognizes, or regulates can be large——as is the case here——that
does not mean anyone in that class may sue whenever the relevant
agency acts. The first prong still limits the judicial-review
right to those class members adversely affected (directly
injured) by the agency action. See Wis. Stat. § 227.01(9);
Waste Mgmt. of Wis., Inc. v. DNR, 144 Wis. 2d 499, 505, 424
N.W.2d 685 (1988).
22
Nos. 2019AP299 & 2019AP534.jjk
proper context of DNR's role as the public's steward over public
lands——makes clear that this required finding protects,
recognizes, and regulates the public's interest in conserving
those lands for their recreational, educational, and aesthetic
value. Cf. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians
v. Patchak, 567 U.S. 209 (2012) (concluding that a statute
authorizing discretionary land acquisition did, in context,
nonetheless regulate the acquired land's use, such that
"neighbors to the use . . . are reasonable——indeed, predictable—
—challengers" to the land's acquisition given how the new use
would affect their "economic, environmental, or aesthetic"
interests). Accordingly, § 23.15(1) and § NR 1.47(2)'s concern
for the Friends' aesthetic, conservational, and recreational
interests confer standing to raise its substantive challenge.
2. Procedural rights
¶84 "Procedural rights are special." Lujan v. Defs. of
Wildlife, 504 U.S. 555, 572 n.7 (1992) (cleaned up). Because
process matters, alleged procedural violations routinely bestow
standing on any member of the public directly injured by a
procedurally flawed agency action. We see this most often with
claimed violations of the procedural Wisconsin Environmental
Policy Act (WEPA).21 Though no WEPA claim is raised here, the
Friends do allege a qualifying procedural violation of the
See, e.g., Applegate-Bader Farm, LLC v. DOR, 2021
21
WI 26, 396 Wis. 2d 69, 955 N.W.2d 793; Milwaukee Brewers
Baseball Club v. DHSS, 130 Wis. 2d 56, 387 N.W.2d 245 (1986);
WED I, 69 Wis. 2d 1. In fact, a procedural violation confers
standing even when an agency might ultimately reach the same
decision after satisfying the missed procedural step. See
Massachusetts v. E.P.A., 549 U.S. 497, 517-18 (2007).
23
Nos. 2019AP299 & 2019AP534.jjk
analogous procedures required by Chapter NR 44 of the Wisconsin
Administrative Code.
¶85 Chapter NR 44 creates a process for the uniform
management of park lands following a land classification system.
See §§ NR 44.01, NR 44.05-44.07. "A master plan establishes the
authorized management and development on a property, and only
those management and development activities identified in the
master plan may be pursued by [DNR]." § NR 44.04(9) (emphases
added). The master plan must include, among other things, a
"general property description"; a "statement of general goals
and objectives for management and use, and a description of how
the property's statutory and other purposes and benefits will be
realized"; and "management, acquisition, development and use
plans, with appropriate maps showing the land management
classifications." § NR 44.04(9)(a). This regulatory chapter
also provides a process for revising a park's master plan. The
revision process demands that the affected public be given
opportunities to participate, see §§ NR 44.04(1)(a)
& 44.04(7)(f), and requires careful study of the issues similar
to (if not exactly) the environmental analysis required under
WEPA, see § NR 44.04(8) (cross-referencing Wis. Stat. § 1.11(WEPA)).22
¶86 Kohler sought to acquire Park land adjacent to its own
property to construct a golf course. Because a golf course was
22Even when a full WEPA-style impact analysis is not
needed, Wis. Admin. Code § NR 44.04(8)(c)3. still requires that
a plan revision or amendment involve "[a] regional analysis
addressing the economic, ecological and social conditions,
opportunities and constraints associated with the property on a
local and regional scale."
24
Nos. 2019AP299 & 2019AP534.jjk
apparently inconsistent with the Park's master plan, DNR
initiated a process to alter it; DNR never finished that plan
revision. Therefore, following its removal and transfer of Park
lands to Kohler, the master plan contained an inaccurate
"general property description" and land management
classifications inconsistent with the Park's new geographic
footprint. DNR also failed to study the environmental impact
this change would have on the Park. The Friends maintain all of
this is unlawful. See § NR 44.04(9) ("[O]nly those management
and development activities identified in the master plan may be
pursued by [DNR]" (emphases added)); § NR 44.04(8)(c)3.
¶87 While a plan's substance internally guides DNR's
management of park lands, the regulatory text makes clear that
the process to adopt or alter the plan exists to protect the
affected public. The affected public explicitly includes
"persons or groups who are affected by a master plan or project"
and "persons with an interest in [DNR] management practices
across a specific area or statewide." § NR 44.04(1)(a). Park
neighbors and users like the Friends' members are such affected
persons. The law protects these affected parties by ensuring
"public involvement"——a phrase repeated no less than 18 times
throughout ch. NR 44——in the process, which may take a variety
of forms. With few exceptions not applicable here, effectuating
public involvement in any master plan process is mandatory.
§ NR 44.04(7)(f).
¶88 The Friends' petition raises serious procedural
questions regarding the lawfulness of DNR's redrawing of Park
boundaries contrary to the master plan's property description or
25
Nos. 2019AP299 & 2019AP534.jjk
without sufficient environmental study. Our job here is not to
decide those procedural questions. Instead, we face a very
narrow question: do these procedures protect, recognize, or
regulate the interests of the Park's neighbors and users? The
answer is clearly yes. The Friends' members are the "[a]ffected
or interested parties" for whom the law's mandatory public
involvement processes are meant to protect. As such, the
Friends have standing to pursue this procedural challenge as
well.
III
¶89 The majority opinion goes to great lengths to slam
shut the courthouse doors on those who seek judicial review of
agency decisions. In creating additional barriers to judicial
review, the majority twists the statutory text and bends our
case law. And what's the toll of this court substituting its
policy judgment for that of the legislature? Taken to its
logical conclusion, the majority's new approach to Wis. Stat.
ch. 227 standing grants DNR the unfettered right to redraw all
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. 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. Because four Justices rule otherwise, I
respectfully dissent.
26
Nos. 2019AP299 & 2019AP534.jjk
¶90 I am authorized to state that Justices ANN WALSH
BRADLEY and REBECCA FRANK DALLET join this dissent.
27
Nos. 2019AP299 & 2019AP534.jjk
1