Kohler Co.’s quest to build another major golf course — the group that owns and operates Whistling Straits, which is scheduled to host the Ryder Cup this year — along Lake Michigan in Sheboygan County has hit another legal obstacle.
A Sheboygan County judge on Friday dismissed the company’s lawsuit that sought to preserve a Department of Natural Resources permit to fill a wetland, a permit that an administrative law judge later ruled was mistakenly granted.
Mary Faydash, a spokesperson for the Friends of the Black River Forest, called Stengel’s ruling a victory, saying it “affirms the (administrative law judge’s) conclusion that the DNR should not rely on vague promises to protect groundwater and wetlands from golf course development and operation.”
Friends of the Black River Forest had challenged the 2018 permit, and contested the hearing that summer, Administrate Law Judge Mark Kaiser issued a decision in 2019 rejecting the permit, on the grounds the DNR didn’t have enough information about the potential impacts of the Kohler project.
Kohler sought review in Sheboygan County Circuit Court and to have the permit reinstated.
But in a 38-page decision, Circuit Judge Edward Stengel concluded that Kaiser acted properly and rejected Kohler’s arguments that Kaiser exceeded the authority granted administrative law judges by the Legislature.
Stengel wrote that Kohler seems to want to read the statutes very narrowly in some instances and broadly in others but “ignores clear language in the statute requiring the (DNR) to consider factors in the immediate environment that could affect the wetlands should the permit be issued.”
Kohler had argued that if administrative law judges can consider a fill permit’s impact on a broader area than the wetland itself, developers will start cutting trees and grading land before they even apply for a wetland fill permit, causing greater environmental damage.
Stengel wrote that few developers would risk such substantial investment before obtaining a critical permit.
The permitting process, Stengel found, can and should consider development activities outside the wetlands itself, like cumulative impacts from the project or other development it may attract.
Kohler’s alternative argument was that the administrative law judge — after hearing all the evidence from the initial permit process plus new information submitted during the contested hearing — should have then amended the permit in some way to make it legal.
Stengel characterized that argument as unique but “unavailing,” saying Kohler doesn’t rely on any statutes or case law to support the notion that administrative law judge can amend the permit at a contested hearing.
Stengel points out that he was not interpreting any evidence and reaching his own conclusion about the wisdom or legality of the wetlands fill permit, only concluding that Kaiser relied on a sufficient record and was within his authority to overturn the DNR permit.
Mary Faydash, a spokesperson for the Friends of the Black River Forest, called Stengel’s ruling a victory, saying affirms the administrative law judge’s conclusion that the DNR should not rely on vague promises to protect groundwater and wetlands from golf course development and operation.”
The state’s Natural Resources Board in 2018 approved a land trade Kohler had negotiated with the DNR — 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, which faces a separate legal challenge before Stengel about the land swap, 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 is scheduled to host the Ryder Cup in September.
The contested permit focused on 3.7 acres of wetlands mostly located on property Kohler already owned.
“This rare piece of coastal landscape is the wrong place for a golf course,” said Claudia Bricks, co-spokesperson for the Friends. “The Kohler company claims that the impacts to our environment will be minimal, but (Administrative Law Judge) Kaiser’s and Judge Stengel’s decisions affirm the need for a complete review when such significant impacts are at stake.”
Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.