Court reinstates challenge to Kohler-DNR land swap for Lake Michigan golf course project

The Wisconsin Court of Appeals on Tuesday reinstated a lawsuit challenging a deal that would trade part of Kohler-Andrae State Park for other lands so Kohler Company can build a golf course along Lake Michigan.

The state's Natural Resources Board in 2018 approved a land trade Kohler had negotiated with the Department of Natural Resources — nearly 10 acres west of the park for 4.6 acres of the park, and easement over another 1.8 acres of the park.

The park property that would go to Kohler includes thick woods, open sand dunes and wetlands. The state would get upland woodland, cropland, a home and outbuildings. 

The deal was part of Kohler's plans to add a third championship golf course to the two it already owns, Blackwolf Run and Whistling Straits — the latter of which had been scheduled to host the 2020 Ryder Cup, until the coronavirus pandemic forced cancellation. 

Friends of the Black River Forest and Claudia Bricks sued the DNR and the board. Kohler intervened and argued that the swap was not a decision subject to judicial review, but merely a ministerial act by the bureaucracy. The state joined Kohler's motion to dismiss, arguing the plaintiffs had no protected interest in the swap.

Sheboygan County judge Edward Stengel dismissed the action for lack of standing. He considered only whether the swap itself, not the expected development of the golf course, would impact the plaintiffs.

The same parties then sued in Dane County as well, and that was also dismissed. The appeals were consolidated.

In Tuesday's ruling, the court found that the plaintiffs had in fact alleged sufficient injuries to be heard, not just dismissed. It is "not hypothetical or conjectural that the land exchange may cause the Friends to suffer the alleged recreational, aesthetic, and conservational injuries as a result of the golf course construction," the court wrote.

The injuries included the plaintiffs' loss of use of the portion of the park given to Kohler, loss of wildlife likely to result from development of the course, and the impact the course would have on the remaining part, including more traffic and noise. The plaintiffs also contend the DNR didn't follow proper procedures in conveying the park property to Kohler. 

The decision was issued jointly by judges Joseph Donald, Timothy Dugan and Brian Blanchard. Calls to lawyers for the plaintiffs and Kohler were not immediately returned Tuesday.

Earlier this year, the Supreme Court sided with Kohler on another dispute related to the golf course project, upholding a gerrymandered annexation of the site into the city of Sheboygan to avoid a possible denial of a special use permit from the Town of Wilson.

Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.