Friends of the Black River Forest v. Wisconsin DNR , 2021 WI App 54 ( 2021 )

2021 WI App 54COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2019AP2434
Complete Title of Case:
FRIENDS OF THE BLACK RIVER FOREST AND CLAUDIA BRICKS,
PETITIONERS-APPELLANTS,
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT-RESPONDENT,
KOHLER CO.,
INTERVENOR-RESPONDENT.
Opinion Filed: July 1, 2021
Submitted on Briefs: July 17, 2020
JUDGES: Kloppenburg, Graham, and Nashold, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the petitioners-appellants, the cause was submitted on the
briefs of Christa O. Westerberg and Leslie A. Freehill of Pines Bach
LLP, Madison.
Respondent
ATTORNEYS: On behalf of the respondent-respondent, the cause was submitted on
the brief of Gabe Johnson-Karp, assistant attorney general, and
Joshua L. Kaul, attorney general.
On behalf of intervenor-respondent, the cause was submitted on the
brief of Deborah C. Tomczyk and Jessica Hutson Polakowski of
Reinhart Boerner Van Deuren s.c., Madison.
A non-party brief was filed by Andrea Gelatt and Rob Lee of Midwest
Environmental Advocates, Inc., Madison.
2
2021 WI App 54COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 1, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2019AP2434 Cir. Ct. No. 2018CV82
STATE OF WISCONSIN IN COURT OF APPEALS
FRIENDS OF THE BLACK RIVER FOREST AND CLAUDIA BRICKS,
PETITIONERS-APPELLANTS,
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT-RESPONDENT,
KOHLER CO.,
INTERVENOR-RESPONDENT.
APPEAL from an order of the circuit court for Sheboygan County:
L. EDWARD STENGEL, Judge. Affirmed.
Before Kloppenburg, Graham, and Nashold, JJ.
No. 2019AP2434
¶1 NASHOLD, J. Under the Wisconsin Environmental Policy Act
(WEPA), a state agency contemplating a “major action[] significantly affecting the
quality of the human environment” must prepare and publish an Environmental
Impact Statement (EIS): a detailed report evaluating potential environmental
effects. See WIS. STAT. § 1.11(2)(c) (2019-20); WIS. ADMIN. CODE § NR 150.30(4)
(through May 2020).1 The EIS is meant to inform decision-makers and the public,
so that actions are approved or denied only on full consideration of their
environmental consequences. Wisconsin’s Env’t Decade, Inc. v. DNR (WED
1979), 94 Wis. 2d 263, 271, 288 N.W.2d 168 (1979). Separately, WIS. STAT. ch.
227, Wisconsin’s Administrative Procedure Act, provides a mechanism for judicial
review of final agency decisions that adversely affect a person’s substantial
interests. See WIS. STAT. § 227.52; Sierra Club v. DNR, 2007 WI App 181, ¶13,
304 Wis. 2d 614, 736 N.W.2d 918. The question before us is whether an EIS is
itself a final agency decision subject to standalone review under § 227.52, or,
alternatively, whether a court may review an EIS only on a petition for review of
the agency decision regarding the proposed “major action” that the EIS analyzes.
¶2 Friends of the Black River Forest and Claudia Bricks (collectively,
Friends) sought judicial review of an EIS analyzing the environmental impact of a
proposed golf course. Although there was no longer any final permit in effect,
Friends argued that it had an independent right to challenge the underlying EIS. The
circuit court disagreed and dismissed the petition. We conclude that an EIS, by its
plain terms, is not a final decision: it analyzes the effects of, and alternatives to, a
proposal without dictating any course of action or establishing the rights of any
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted. All references to the Wisconsin Administrative Code are to the May 2020 Register unless
otherwise noted.
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No. 2019AP2434
interested party. Accordingly, a party must wait for some final agency decision it
is aggrieved by, such as the issuance or denial of a permit, at which point it may
raise its challenges to the EIS in a petition for judicial review of the agency decision
that the EIS analyzes. Because no such decision exists here, we affirm the dismissal
of Friends’ petition.
BACKGROUND
¶3 For the purpose of this decision, we accept as true the following
allegations in Friends’ petition for judicial review. In 2014, Kohler Company
(Kohler) announced plans to build a golf course complex on 247 acres it owns in
Sheboygan County, portions of which contain high-quality wetlands and other
environmental and cultural resources. The Department of Natural Resources (DNR)
began the environmental review process, which—after public hearings, field visits,
staff assessments, and the preparation of multiple drafts of an EIS—concluded with
the January 2018 publication of a final EIS. On the same day that DNR published
the final EIS, it issued a permit allowing Kohler to fill 3.69 acres of wetland. Kohler
anticipated that this would be the first of many permits for the golf course project.
¶4 Friends filed a petition for judicial review, alleging that DNR started
the EIS process prematurely and prepared and published the final EIS before
receiving all necessary permit applications. Friends alleged that, as a result, the
final EIS contains an incomplete discussion of the project’s environmental effects,
understates the effects it does discuss, omits required components of the EIS
analysis, contains a truncated analysis of alternatives to the proposed project, and
“incorrectly concludes that this project will not set a negative precedent for wetland
fills and mitigation in similar circumstances.” Friends requested a stay of the permit
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No. 2019AP2434
and the final EIS, as well as declarations that the decisions approving both be
reversed, vacated, or remanded for further agency action.
¶5 One month later, DNR granted Friends’ petition for a contested case
hearing on the wetland permit. See WIS. STAT. § 227.42 (providing for the right to
an agency hearing, which shall be treated as a contested case if certain criteria are
met). In March 2019, an administrative law judge (ALJ) reversed DNR’s grant of
the permit. As DNR did not seek judicial review, this became DNR’s final decision.
See WIS. ADMIN. CODE § NR 2.155(1).
¶6 DNR then moved the circuit court to dismiss Friends’ petition,
arguing that it was moot. Friends agreed with respect to the wetland permit, but
argued that it had a separate right to challenge the EIS on which the permit was
based. The circuit court disagreed, concluding that, as a matter of law, an EIS is not
a final agency decision subject to judicial review under WIS. STAT. § 227.52. The
court dismissed the petition, and this appeal follows.
DISCUSSION
Principles of Law and Standard of Review
¶7 WEPA embodies “a clear legislative declaration that protection of the
environment is among the essential considerations of state policy and as such, is an
essential part of the mandate of every state agency.” Wisconsin’s Env’t Decade,
Inc. v. PSC (WED 1977), 79 Wis. 2d 409, 416, 256 N.W.2d 149 (1977) (internal
quotations and quoted source omitted). Accordingly, WEPA establishes a process
for agencies to follow “to ensure adequate consideration of environmental factors
… before resources are irreversibly and irretrievably committed.” WED 1979, 94
Wis. 2d at 271. Before an agency undertakes any “major action[] significantly
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No. 2019AP2434
affecting the quality of the human environment,” it must prepare an EIS that
evaluates, among other considerations, the environmental impacts of and
alternatives to the proposal. WIS. STAT. § 1.11(2)(c). At minimum, the agency must
publish a draft EIS, accept public comments, and hold a hearing before publishing
a final EIS. WIS. ADMIN. CODE § NR 150.30(3)-(4). The final EIS itself does not
ultimately control agency decision-making. Clean Wis., Inc. v. PSC, 2005 WI 93,
¶188, 282 Wis. 2d 250, 700 N.W.2d 768. Rather, it is an “informational tool” that
“represents an important procedural step agencies must take during their decision-
making process,” “enabl[ing] agencies to take a ‘hard look’ at the environmental
consequences of a proposed action.” Id., ¶¶188-89, 203; see also WIS. ADMIN.
CODE § NR 150.30(1)(b) (“[t]he EIS is an informational tool that does not compel
a particular decision by the agency”); Applegate-Bader Farm, LLC v. DOR, 2021
WI 26, ¶37, 396 Wis. 2d 69, 955 N.W.2d 793 (“WEPA is a procedural statute. It is
not intended to control agency decision making.” (citation omitted)).
¶8 WEPA does not provide for judicial review; instead, WIS. STAT. ch.
227 governs. Chapter 227 establishes circuit court jurisdiction over certain agency
actions, creating a right to appeal that “is statutory and does not exist except where
expressly given.” Pasch v. DOR, 58 Wis. 2d 346, 352, 206 N.W.2d 157 (1973);
State v. WERC, 65 Wis. 2d 624, 630-31, 223 N.W.2d 543 (1974). Specifically,
under WIS. STAT. § 227.52, judicial review is limited to “[a]dministrative decisions
which adversely affect the substantial interests of any person.” Madison Landfills,
Inc. v. DNR, 180 Wis. 2d 129, 140, 509 N.W.2d 300 (Ct. App. 1993).
¶9 Although WIS. STAT. § 227.52 does not use the term “final,” “case
law has established that the legislative intent was to limit judicial review to ‘final
[decisions] of [an] agency.’” Sierra Club, 304 Wis. 2d 614, ¶13 (quoted source
omitted); see also Waste Mgmt. of Wis., Inc., v. DNR, 128 Wis. 2d 59, 87-90, 381
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No. 2019AP2434
N.W.2d 205 (1986). A final decision determines “the substantial rights of the
parties involved” and concludes the agency proceeding. Pasch, 58 Wis. 2d at 354.
Alternatively, if a decision is “preliminary or procedural,” then judicial review is
unavailable. Id. at 354-55. “[N]either the form of the [decision] nor the label of
‘final’ or ‘interlocutory’ necessarily determines … reviewability.” Id. at 356.
Rather, the inquiry is pragmatic: do immediate legal consequences attach? See
Friends of the Earth v. PSC, 78 Wis. 2d 388, 407, 254 N.W.2d 299 (1977) (agency
decision may be reviewable if it “finally disposes of matters having an immediate
impact upon the rights of a party”); Sierra Club, 304 Wis. 2d 614, ¶15 (“A final
administrative [decision] for purposes of judicial review has been described as one
that directly affects the legal rights, duties, or privileges of a person.” (internal
quotations and quoted source omitted)).
¶10 Whether a specific agency decision is final, and thus reviewable under
WIS. STAT. ch. 227, is a question of law that we decide de novo. Kimberly Area
Sch. Dist. v. LIRC, 2005 WI App 262, ¶¶9, 12-13, 288 Wis. 2d 542, 707 N.W.2d
872.
Application to Friends’ Appeal
¶11 Friends acknowledges that, following the resolution of its wetland
permit challenge, the only live issue before the circuit court was whether DNR
complied with the regulatory requirements for preparing and publishing the final
EIS. Friends also appears to concede that this EIS, like all EISs, does not approve
any proposal or dictate any agency action. On its face, the EIS evaluates the impact
of, and alternatives to, Kohler’s planned golf course, including the proposed wetland
fill at issue here. The EIS does not itself allow or prohibit Kohler from proceeding
with any aspect of the project; nor does it require DNR to take any action with
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No. 2019AP2434
respect to any aspect of the project. Nevertheless, Friends raises what we discern
to be five arguments as to why the EIS is a final agency decision subject to judicial
review. See WIS. STAT. § 227.52; Pasch, 58 Wis. 2d at 352-56. We address and
reject each of these arguments in turn.
¶12 Friends’ first and primary argument rests on three court decisions
purportedly allowing for judicial review of a final EIS. As a preliminary matter,
none of these decisions specifically addresses the issue raised here: whether an EIS
is subject to a standalone challenge, separate and apart from a final agency decision
like a permit issuance or denial. Instead, in each case, the circuit court reviewed the
EIS as part of a challenge to some decision that the EIS analyzed and that was
“final,” as that term has been interpreted by Wisconsin courts. In Fox v. DHSS,
112 Wis. 2d 514, 520-23 & 522 n.6, 334 N.W.2d 532 (1983), and Milwaukee
Brewers Baseball Club v. DHSS, 130 Wis. 2d 56, 60-62, 387 N.W.2d 245 (1986),
petitioners sought judicial review of a subsequent “record of decision” formally
committing the agency to the proposal. See Fox, 112 Wis. 2d at 522 n.6 (citing 40
C.F.R. § 1505.2) (a “record of decision” is the agency’s final decision on the
proposal that is informed by the alternatives, information, and analyses in the final
EIS). In Shoreline Park Preservation, Inc. v. DOA, 195 Wis. 2d 750, 756-57, 537
N.W.2d 388 (Ct. App. 1995), petitioners challenged the legislature’s authorization
of a parking facility project on several bases, including that the EIS was inadequate.
In all three cases, petitioners alleged some defect in the final EIS, but in none of the
cases was the challenge independent of the challenge to the governmental decision
informed by the EIS. Neither Friends nor we have identified any other case law
conceivably permitting judicial review of a document that, by its very nature, does
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No. 2019AP2434
not and cannot “directly affect[] the legal rights, duties, or privileges of a person.”
See Sierra Club, 304 Wis. 2d 614, ¶15.2
¶13 Second, Friends cites to regulations applying the National
Environmental Protection Act (NEPA), on which WEPA is substantially patterned.
See WED 1977, 79 Wis. 2d at 414. NEPA created the Council on Environmental
Quality (CEQ) to facilitate NEPA administration, see 42 U.S.C. §§ 4342, 4344, and
CEQ guidance constitutes persuasive authority in interpreting WEPA, Larsen v.
Munz Corp., 167 Wis. 2d 583, 590-91, 482 N.W.2d 332 (1992). Friends directs us
to 40 C.F.R. § 1500.3, “NEPA compliance,” which—at the time Friends submitted
its briefs—provided in pertinent part:
It is the [CEQ’s] intention that judicial review of agency
compliance with [regulations implementing NEPA] not
occur before an agency has filed the final environmental
impact statement, or has made a final finding of no
significant impact (when such a finding will result in action
affecting the environment), or takes action that will result in
irreparable injury.
(Emphasis added.)
¶14 Even assuming that this version of 40 C.F.R. § 1500.3 implies that
that judicial review may be available upon an agency’s filing a final EIS (which we
do not decide), § 1500.3 was amended after briefing in this appeal concluded. It
now reads, “It is the [CEQ’s] intention that judicial review of agency compliance
with [regulations implementing NEPA] not occur before an agency has issued the
2
Friends also cites to cases reviewing the agency’s decision not to prepare an EIS at all,
based on the agency’s determination that the proposed action had no significant impact. Friends
argues that an aggrieved party may independently challenge a decision not to prepare an EIS and,
therefore, should likewise be able to challenge an EIS. Friends has not established that case law
concerning the review of a decision not to prepare an EIS has any bearing on the reviewability of
an EIS.
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No. 2019AP2434
record of decision or taken other final agency action.” See § 1500.3(c) (emphasis
added). In addition, § 1500.3(d) provides, in pertinent part:
Remedies. Harm from the failure to comply with
NEPA can be remedied by compliance with NEPA’s
procedural requirements as interpreted in the regulations in
this subchapter. It is the Council’s intention that the
regulations in this subchapter create no presumption that
violation of NEPA is a basis for injunctive relief or for a
finding of irreparable harm. The regulations in this
subchapter do not create a cause of action or right of action
for violation of NEPA, which contains no such cause of
action or right of action. It is the Council’s intention that
any actions to review, enjoin, stay, vacate, or otherwise alter
an agency decision on the basis of an alleged NEPA
violation be raised as soon as practicable after final agency
action to avoid or minimize any costs to agencies,
applicants, or any affected third parties.
(Emphasis added.) By its terms, the current version of § 1500.3 strongly suggests
that an EIS is not independently reviewable, in that the CEQ anticipates judicial
review only on issuance of “the record of decision or … other final agency action”
and “intend[s]” that NEPA violations not be actionable in of themselves. Moreover,
the implication of the amendment is that the CEQ meant to clarify that judicial
review should not solely be of the final EIS, independent of review of the final
agency decision based on alleged defects in the final EIS.3
3
We rely for guidance on cases interpreting NEPA. State ex rel. Boehm v. DNR, 174
Wis. 2d 657, 675 n.4, 497 N.W.2d 445 (1993). Friends does not point to any federal case law
establishing a standalone right to challenge a final EIS under NEPA. On our own research, we
have located cases that, on first glance, suggest that an EIS may be considered a final agency
decision. See, e.g., Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir. 1997) (citing, inter alia, to
Oregon Natural Resources Council v. Harrell, 52 F.3d 1499, 1504 (9th Cir. 1995), for the
proposition that “it appears well-established that a final EIS or the [record of decision] issued
thereon constitute the ‘final agency action’ [under 5 U.S.C. § 704] for purposes of the
[Administrative Procedures Act]”). But on closer review of these cases, the respective plaintiffs
challenged the EIS as part of their challenge to some final agency decision on the proposal. See
Sierra Club, 120 F.3d at 629-31 (concluding that petitioners’ challenge to the final EIS became
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No. 2019AP2434
¶15 Third, Friends refers us to a separate “WEPA compliance document”
for the golf course project: a publication, required for any final EIS, containing
“findings of fact, conclusions of law and a determination that summarizes the
procedures and process steps used to achieve compliance with [WIS. ADMIN. CODE
ch. NR 150, implementing WEPA].” See WIS. ADMIN. CODE § NR 150.35(1m).
Friends argues that the WEPA compliance document supports its position because
“[t]ypically written findings and conclusions are an indication that an agency action
is ‘final’ and appropriately teed up for judicial review.” This argument is
unpersuasive for at least the following reasons. First, the EIS and the WEPA
compliance document are two separate documents, each separately required under
WEPA. See §§ NR 150.30, 150.35. Thus, even if the WEPA compliance document
were a final agency decision, Friends does not explain why it necessarily follows
that the EIS is also a final decision. Moreover, although Friends challenged the EIS
in its petition for judicial review, it did not challenge the WEPA compliance
document. Finally, the form of a particular decision does not supplant the test for
finality set forth in Pasch, which, as set forth above, rests on the decision’s effect
on the rights of the parties.
¶16 Fourth, Friends appears to argue that an EIS is a final agency decision
under WIS. STAT. ch. 227 simply by virtue of being a final (i.e., not a draft) EIS
under WEPA. This argument again ignores the larger point that the label “final”
does not determine reviewability, which is a substantive inquiry into the decision’s
effect on the rights of the parties. See Pasch, 58 Wis. 2d at 356.
ripe for review on the date the agency issued the record of decision memorializing final approval
of a highway project); Oregon Nat. Res. Council, 52 F.3d at 1503-04 (concluding that the record
of decision approving the construction of a dam was a final agency action).
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No. 2019AP2434
¶17 Finally, Friends implies that it will not have the ability to challenge
all of the alleged flaws in the EIS if it is forced to seek judicial review only of
discrete permits (or similar final actions). Friends appears to believe that unless it
can independently challenge the EIS, there will be no opportunity for the circuit
court to consider its central argument: that DNR prematurely issued an EIS without
considering the full scope of the proposed golf course. Amicus curiae Midwest
Environmental Advocates raises the same point, asking us to decide how a petitioner
may challenge “all WEPA compliance issues, including EIS deficiencies” that do
not relate to the permit at issue.
¶18 As a threshold matter, the “final decision” requirement is
jurisdictional; where a petitioner seeks review of an interim or interlocutory order,
the “court only has jurisdiction to dismiss the appeal.” WERC, 65 Wis. 2d at 631.
Thus, we do not have the power to allow standalone review of a non-final decision,
such as an EIS.
¶19 Moreover, we disagree with Friends’ assumption that review of the
EIS, in part or in full, might thereby be precluded. We do not perceive any legal
barrier to Friends, on judicial review of a specific permit, raising any argument
concerning DNR’s alleged noncompliance with WIS. ADMIN. CODE ch. NR 150.
DNR likewise agrees that an EIS is fully reviewable when a final agency action,
such as a permit, is challenged. Where a major action significantly affecting the
environment is proposed, preparation of an EIS in compliance with WEPA
regulations is not optional. See WIS. STAT. § 1.11. Here, if DNR indeed did not
“address the entire proposed project,” see WIS. ADMIN. CODE § NR 150.30(1)(b),
then the EIS may be challenged as invalid and unable to support the final agency
decision informed by the EIS. See §§ NR 150.20(4), 150.30 (outlining procedure
for completing an EIS); see also State ex rel. Boehm v. DNR, 174 Wis. 2d 657, 665,
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497 N.W.2d 445 (1993) (WEPA “requires that agencies consider and evaluate the
environmental consequences of alternatives available to them and undertake that
consideration in the framework provided by [WIS. STAT. §] 1.11” (emphasis added)).
¶20 To conclude, we emphasize that Friends successfully made its case
before the ALJ: Kohler’s wetland permit was denied. Friends fears that, down the
road, DNR may approve other permits for this project based on what it considers to
be a flawed EIS. But that circumstance does not allow for judicial review of the
EIS at this stage. By definition, an EIS considers the environmental impact of a
proposal; it does not determine “the substantial rights of the parties involved,”
Pasch, 58 Wis. 2d at 354, or “directly affect[] the legal rights, duties, or privileges
of a person,” Sierra Club, 304 Wis. 2d 614, ¶15 (internal quotations and quoted
source omitted). Accordingly, an EIS is not a final agency decision independently
reviewable under WIS. STAT. ch. 227. We affirm.4
By the Court.—Order affirmed.
4
Because we determine that an EIS is not a final agency decision independently
reviewable under WIS. STAT. ch. 227, we need not address Kohler’s arguments that: (1) an EIS is
never reviewable per the statutory scheme; and (2) even if the EIS were a final decision, Friends
would not have standing to challenge it. See Barrows v. American Fam. Ins. Co., 2014 WI App
11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (we need not decide all issues where one is
dispositive). For completeness, however, we reiterate that WIS. STAT. ch. 227 governs WEPA
challenges, including, where properly before the circuit court, challenges to a final EIS. See, e.g.,
Town of Holland v. PSC, 2018 WI App 38, ¶¶8-9, 14, 35-40, 382 Wis. 2d 799, 913 N.W.2d 914(challenge to legal sufficiency of EIS addressed in WIS. STAT. ch. 227 petition for judicial review
of PSC’s final “certification of public convenience and necessity”). We further agree with Friends
that Kohler forfeited any standing challenge by not raising it below. See Jackson v. LIRC, 2006
WI App 97, ¶¶13, 17-18, 293 Wis. 2d 332, 715 N.W.2d 654; State v. Huebner, 2000 WI 59, ¶¶11-
12 & 11 n.2, 235 Wis. 2d 486, 611 N.W.2d 727. As a final matter, we note that counsel for Kohler
has cited a summary disposition order in its brief. We remind counsel that such citation violates
our appellate rules. See WIS. STAT. RULE 809.23(3)(b).
12