Friends of Blue Mound State Park v. Wisconsin Department of Natural Resources

2023 WI APP 38
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP1127

Complete Title of Case:

FRIENDS OF BLUE MOUND STATE PARK,

PETITIONER-APPELLANT,

V.

WISCONSIN DEPARTMENT OF NATURAL RESOURCES,

RESPONDENT-RESPONDENT.

Opinion Filed: June 27, 2023
Submitted on Briefs: March 17, 2023
Oral Argument:

JUDGES: Brash, C.J., Dugan and White, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the
briefs of Brian H. Potts, David R. Zoppo, and Olivia S. Radics of
Perkins Coie LLP in Madison.

Respondent
ATTORNEYS: On behalf of the respondent-respondent, the cause was submitted on
the brief of Joshua L. Kaul and Gabe Johnson-Karp of the Wisconsin
Department of Justice in Madison.
2023 WI App 38
COURT 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.
June 27, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP1127 Cir. Ct. No. 2021CV114

STATE OF WISCONSIN IN COURT OF APPEALS

FRIENDS OF BLUE MOUND STATE PARK,

PETITIONER-APPELLANT,

V.

WISCONSIN DEPARTMENT OF NATURAL RESOURCES,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Iowa County:
MARGARET MARY KOEHLER, Judge. Reversed and remanded for further
proceedings.

Before Brash, C.J., Dugan and White, JJ.

¶1 DUGAN, J. The Friends of Blue Mound State Park (“the Friends”)
appeal the order of the circuit court dismissing two petitions for judicial review of
actions by the Wisconsin Department of Natural Resources (“the Department”).
No. 2022AP1127

The circuit court determined that the Friends lacked capacity and standing to file the
petitions for review. Because we determine that the Friends has both capacity and
standing, we reverse the circuit court’s order and remand for proceedings consistent
with this opinion.

BACKGROUND

¶2 The Friends is a small nonprofit organization dedicated to supporting
and assisting the Department in providing recreational, interpretive, scientific,
historical, educational, and related visitor services to enhance Blue Mound State
Park. The Friends is incorporated as a non-stock corporation under Chapter 181 of
the Wisconsin Statutes. The Friends’ articles of incorporation state that the
corporation’s purpose is to “conduct any lawful activities of charitable and
educational nature to support, assist, and promote the Wisconsin Department of
Natural Resources, including interpretive, scientific, historical, educational, and
related visitor services at Blue Mound State Park.” The parties agree that the
Friends has entered into an agreement with the Department that authorizes the
organization to be recognized as a “Friends group” and to be eligible for certain
benefits in accordance with Department regulations.1

¶3 On May 26, 2021, the Department adopted a revised master plan for
Blue Mound State Park that authorized the creation of a new snowmobile trail. On
June 25, 2021, the Friends filed a petition for judicial review in Dane County Circuit
Court Case No. 2021CV114, seeking to challenge the Department’s adoption of the
revised master plan. Specifically, the Friends alleged that the Department failed to
conduct an adequate environmental analysis of the impact of the new snowmobile

1
We note that although both parties agree that this written agreement exists, the agreement
itself is not part of the record.

2
No. 2022AP1127

trail. On August 13, 2021, the Friends filed a second petition for judicial review in
Dane County Circuit Court Case No. 2021CV1955, challenging the Department’s
decision to deny the Friends’ petition for a contested case hearing.2

¶4 The Department moved to dismiss the Friends’ petitions, arguing that
the Friends lacked capacity and standing to seek judicial review of the Department’s
actions.3 The Dane County Circuit Court subsequently consolidated the Friends’
two petitions into a single case and further determined that the proper venue was
Iowa County. The Iowa County Circuit Court granted the Department’s motions to
dismiss both petitions, concluding that the Friends lacked capacity and standing.
However, the circuit court granted the Friends’ motion to stay the portions of the
revised master plan that authorized construction of the new snowmobile trail and
continued the stay, pending this appeal.

STANDARD OF REVIEW

¶5 “Whether a party has standing is a question of law that we review
independently.” Friends of the Black River Forest v. Kohler Co., 2022 WI 52, ¶10,
402 Wis. 2d 587, 977 N.W.2d 342 (citation omitted). “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 therein is aggrieved … by the decision sought to be reviewed.’” Id. (internal

2
In addition to the Department, the Friends’ petitions for judicial review also named the
Wisconsin Natural Resources Board (“the Board”) as a respondent. The circuit court concluded
that the Board was not a proper party to the second petition. The Friends do not challenge this
aspect of the circuit court’s decision.
3
The Department’s motion to dismiss the petition in Case No. 2021CV1955 does not
appear to be part of the record. We note that the Department cites to a letter filed with the circuit
court on July 20, 2021, but that is just a letter to the judge about the status of the Friends’ request
for a contested case hearing. However, the docket for Dane County Circuit Court Case
No. 2021CV1955 shows a motion to dismiss filed on September 2, 2021.

3
No. 2022AP1127

quotation marks omitted; quoting 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)). “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.’” Id., ¶11 (quoting McConkey v. Van Hollen, 2010 WI 57, ¶14 n.5, 326
Wis. 2d 1, 783 N.W.2d 855).

In evaluating a 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.”

Id. (quoting WED I, 69 Wis. 2d 1 at 8-9).

¶6 The parties have not identified the standard of review for the question
of whether the Friends has capacity to sue, nor have we found any published
Wisconsin cases addressing this issue directly. The Friends cite Mayo v. Boyd,
2014 WI App 37, ¶8, 353 Wis. 2d 162, 844 N.W.2d 652, for the proposition that our
review of the order granting the Department’s motion to dismiss is de novo. The
Department points to Data Key Partners v. Permira Advisers, LLC, 2014 WI 86,
¶17, 356 Wis. 2d 665, 849 N.W.2d 693, arguing that “[t]his [c]ourt independently
reviews whether a pleading can survive a motion to dismiss, benefitting from the
analysis of the circuit court.” We assume, without deciding, that the standard of
review proposed by the Department is correct.

4
No. 2022AP1127

DISCUSSION

I. The Friends has capacity to sue under WIS. STAT.
§ 181.0302(1).

¶7 “[N]ot every entity has the capacity to sue and be sued.” Mayhugh v.
State, 2015 WI 77, ¶40, 364 Wis. 2d 208, 867 N.W.2d 754 (citing WIS. STAT.
§§ 802.03, 802.06). “It is an accepted principle of law that an action cannot be
maintained by one who has no capacity to sue.” Joint Sch. Dist. No. 1, City of Wis.
Rapids v. Wisconsin Rapids Educ. Ass’n, 70 Wis. 2d 292, 302, 234 N.W.2d 289
(1975).

¶8 The Friends argues that it has capacity to sue under WIS. STAT.
§ 181.0302 (2021-22),4 which sets forth the general powers of a Chapter 181
corporation. This statute provides that “[u]nless its articles of incorporation provide
otherwise, a corporation … has the same powers as an individual to do all things
necessary or convenient to carry out its affairs.” Sec. 181.0302. As relevant to this
appeal, a corporation’s default powers include the power to “[s]ue and be sued,
complain and defend in its corporate name.” Sec. 181.0302(1). The Friends argues
that any waiver of its statutory right to sue must be express, and that the Department
has not identified any “clear and specific renunciation” of the Friends’ right to sue.
See Mulvaney v. Tri State Truck & Auto Body, Inc., 70 Wis. 2d 760, 767-68, 235
N.W.2d 460 (1975) (explaining that “[o]nly a clear and specific renunciation of the
statutory right” would be sufficient to demonstrate a waiver of the right to sue to
enforce warranty of title).

4
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

5
No. 2022AP1127

¶9 The Department agrees that the default powers in WIS. STAT.
§ 181.0302 are relevant to this appeal. However, the Department focuses on the
phrase, “[u]nless its articles of incorporation provide otherwise,” and argues that the
Friends’ articles of incorporation “limit[ ] [its] activities to those which support,
assist, and promote” the Department. The Department further points to the statutory
and regulatory scheme governing official friends groups, contending that both the
legislature and the Department have limited the Friends’ capacity to challenge the
Department’s revised master plan for Blue Mound State Park.

¶10 The circuit court agreed with the Department, concluding that the
Friends’ articles of incorporation “legally restrict Friends from acting in ways that
do not support the [Department]’s management of the Park.” The court determined
that the language requiring the Friends to assist and support the Department’s
properties was “in effect … a clear waiver of the statutory right to sue.” Likewise,
the court found it significant that the Department’s administrative rules require the
Friends “to support, assist, and promote the mission and activities of the
Department’s properties as approved by the Department.” Finally, the court noted
that the Friends group enjoyed “certain privileges and priorities over other unofficial
groups” by virtue of having entered a written agreement with the Department.
Although Wisconsin courts have permitted other friends groups to sue the
Department, the court concluded that the “Friends are materially distinguishable
from other groups due to its Articles of Incorporation [and] its status as an official
friends group.”

¶11 We disagree with the circuit court’s determination that the Friends
lacks capacity to sue. Both parties agree that the Friends is a Chapter 181
corporation and further agree that, as a general matter, a Chapter 181 corporation
has the capacity to sue and be sued. Although the Department makes several

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No. 2022AP1127

arguments for why the Friends has waived its statutory capacity to sue under WIS.
STAT. § 181.0302(1), we conclude that none of these arguments support the
conclusion that the Friends has clearly and specifically renounced its right to sue the
Department. See Mulvaney, 70 Wis. 2d at 768. Nor has the Department pointed to
any Wisconsin authority that would suggest that something less than a clear and
specific renunciation would be sufficient to overcome the Friends’ statutory
capacity to sue and be sued pursuant to § 181.0302(1). We address each of the
Department’s arguments below.

a. The legislature has not prohibited friends groups
from suing the Department.

¶12 To support its argument that the Friends lacks capacity to sue, the
Department points to several statutory provisions that govern the role of friends
groups in Wisconsin state parks. Specifically, the Department points to provisions
that:

 define the types of entities that may qualify as a
friends group (WIS. STAT. § 27.016(1)(b));

 authorize the Department to establish a grant
program for qualifying friends groups (WIS. STAT.
§ 27.016(2)(a));

 establish the criteria by which friends groups may
qualify for grant eligibility (WIS. STAT.
§ 27.016(2)(b), (3));

 make friends groups eligible for various state grants
or contracts (WIS. STAT. § 23.098 (grants for
property development on Department-owned
properties); § 23.0912(1g) (authorizing the
Department to “contract with nonprofit conservation
organizations and other 3rd parties to perform land
management, maintenance, and improvement
activities on Department land”); § 27.016 (governing
a grants program for state parks and forests));

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No. 2022AP1127

 direct the Department to establish a system to offer
grants “to eligible friends groups before … eligible
nonprofit conservation groups” (WIS. STAT.
§ 23.098(4)(am));

 require the Department to “promulgate rules to
establish criteria to be used in determining which
friends groups and which activities related to the
maintenance or operation of state parks [or other
properties] are eligible for these grants” (WIS. STAT.
§ 27.016(3));

 require a qualifying friends group to establish “an
endowment fund for the benefit of a state park” or
other property (WIS. STAT. § 27.016(2)(b)); and

 require a qualifying friends group to “enter[ ] into a
written agreement with the Department as required
by the Department by rule” (WIS. STAT.
§ 27.016(2)(b)).

¶13 The Department refers to qualifying friends groups that are eligible
for priority consideration for grants as “officially recognized friends groups” and
argues that the cited statutory provisions “establish that an officially recognized
friends group exists only by the authority granted in state law.” This argument is
patently incorrect. The Friends exists as a corporate entity pursuant to Chapter 181
of the Wisconsin Statutes. Indeed, one of the statutory provisions identified by the
Department provides that an entity can only qualify to become eligible for specified
grants, if that group first exists as a “non-stock, nonprofit corporation” that is tax-
exempt. WIS. STAT. § 27.016(1)(b). We conclude that having followed the
legislature’s prescribed path to recognition as a qualifying, grant-eligible friends
group, the Friends has the same default powers as any other Chapter 181
corporation, including the power to “sue and be sued, complain and defend in its
corporate name.” WIS. STAT. § 181.0302(1).

¶14 Moreover, none of the statutory provisions cited by the Department
expressly limit the capacity of friends groups to sue and be sued as set forth in WIS.

8
No. 2022AP1127

STAT. § 181.0302(1). To support its argument that the legislature has implicitly
altered the Friends’ statutory capacity to sue and be sued, the Department points to
two “instructive” decisions from the New York Court of Appeals holding that
legislatively-created entities lacked capacity to sue. See Community Bd. 7 of
Borough of Manhattan v. Schaffer, 84 N.Y.2d 148 (N.Y. 1994); Excess Line
Ass’n of N.Y. (ELANY) v. Waldorf & Assocs., 30 N.Y.3d 119 (N.Y. 2017).
However, neither of these decisions are persuasive on the question of whether the
Friends has capacity to sue.

¶15 The issue presented in ELANY was whether “a legislatively created
advisory association under the supervision of the Department of Financial Services
(DFS) … has capacity to sue its members.” ELANY, 30 N.Y.3d at 121. The New
York Court of Appeals concluded that “a right to sue cannot be derived from
[ELANY’s] enabling legislation or some other concrete statutory predicate.” Id. at
125 (internal quotation marks omitted; citation omitted). Here, the Department
contends that “Wisconsin law governing friends groups is … closely analogous to
New York’s laws governing ELANY.” We disagree. In the present case, the
legislature has directed that any qualifying friends group must be incorporated as a
non-stock, nonprofit, tax-exempt corporation. See WIS. STAT. § 27.016(1)(b). In
turn, WIS. STAT. § 181.0302(1) serves as the “concrete statutory predicate” that
gives such corporations the capacity to sue. See ELANY, 30 N.Y.3d at 125.

¶16 Further, the Department’s reliance on Community Board 7 is
similarly inapposite. That case involved a legislatively created community board
that sought to challenge the city’s denial of a public records request. Id., 84 N.Y.2d
at 152. The New York Court of Appeals concluded that the community board
lacked capacity to sue in light of “the terms and history of its own enabling
legislation.” Id. at 157. In reaching this conclusion, however, the court

9
No. 2022AP1127

distinguished “[g]overnmental entities created by legislative enactment” from
corporations that “are creatures of statute and, as such, require statutory authority to
sue and be sued.” Id. at 155-56. The court explained that a governmental entity’s
“right to sue, if it exists at all, must be derived from the relevant enabling legislation
or some other concrete statutory predicate.” Id. at 156. In the present case, there is
no need to examine any statutes other than Chapter 181, which serves as the concrete
statutory predicate that gives the Friends the default power to sue and be sued. See
WIS. STAT. § 181.0302(1).

¶17 Finally, the Department points to a series of Wisconsin decisions
holding that municipal corporations and quasi-governmental entities are not
permitted to sue the state or other government agencies. See Brown Cnty. v. DHSS,
103 Wis. 2d 37, 43, 307 N.W.2d 247 (1981) (“Because of its status as an arm of the
state, a county cannot be heard to challenge or question the wisdom of its creator”);
City of Marshfield v. Towns of Cameron, etc., 24 Wis. 2d 56, 63, 127 N.W.2d 809
(1964) (“Municipal corporations, being creatures of the state, are not permitted to
censor or supervise the activities of their creator”); id. (“Although towns are
denominated ‘quasi-municipal corporations,’ they are likewise ‘political
subdivisions and governmental agencies of the state.’”) (citation omitted);
Columbia Cnty. v. Board of Trs. of Wis. Ret. Fund, 17 Wis. 2d 310, 317, 116
N.W.2d 142 (1962) (“A county as a quasi municipal corporation and as an arm of
the state has no right to question the constitutionality of the acts of its superior and
creator or of another arm or governmental agency of the state.”). We conclude that
these decisions do not affect our analysis because the Friends is a Chapter 181
corporation and not a municipal corporation or quasi-governmental entity.

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No. 2022AP1127

b. The Department’s administrative regulations do not
prohibit friends groups from suing the Department.

¶18 To further support its argument that the Friends lacks capacity to sue,
the Department points to the administrative rules regarding qualifying friends
groups that the Department has promulgated pursuant to WIS. STAT. § 27.016(2)(b)
and (3). See generally WIS. ADMIN. CODE ch. NR 1.71 (May 2022).5 Specifically,
the Department asks us to consider the effect of rules that:

 define a qualifying friends group as “a non-profit,
non-stock, tax-exempt corporation organized to
support, assist and promote the mission and activities
of Department properties, facilities and programs
and other activities as approved by the Department
under the provisions of a written agreement with the
Department” (WIS. ADMIN. CODE §§ NR 1.71(3)(b),
(4)(b)1.);

 require a qualifying friends group to “be structured
through articles of incorporation and by-laws to
direct its mission and activities to the support of the
property, group of properties, or other Department
facilities and programs as approved by the
Department” (WIS. ADMIN. CODE
§ NR 1.71(4)(b)1.);6

5
All subsequent references to the Wisconsin Administrative Code are to the May 2022
version unless otherwise noted.
6
The Department highlights the phrase, “as approved by the Department,” suggesting that
this phrase applies to the entirety of WIS. ADMIN. CODE § NR 1.71(4)(b)1. The circuit court
appears to have adopted this broad interpretation. However, the Friends argues that the disjunctive
“or” in this subdivision means that this phrase only modifies “other Department facilities and
programs.” See United State v. Woods, 571 U.S. 31, 45 (2013) (when “operative terms are
connected by the conjunction ‘or’ … its ordinary use is almost always disjunctive”); Encino
Motorcars, LLC v. Navarro, __ U.S. __, 138 S. Ct. 1134, 1141 (2018) (“[w]here a sentence
contains several antecedents and several consequents, courts should “read them distributively and
apply the words to the subjects which, by context, they seem most properly to relate”) (citation
omitted). We agree with the Friends that the Department is asking us to interpret the phrase “as
approved by the Department” more broadly than its logical context permits.

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No. 2022AP1127

 authorize the Department to work with a qualifying
friends group “as the lead volunteer organization for
a property, facility or program,” making it eligible
for “certain privileges, such as use of Department
equipment and facilities” (WIS. ADMIN. CODE
§ NR 1.71(1));

 govern the distribution and administration of
legislative grant programs (see, e.g., WIS. ADMIN.
CODE ch. NR 51; Sec. NR 50.21); and

 require qualifying friends groups to “[p]rovide an
annual fiscal and program report” and “permit a
fiscal audit by the Department upon request.” (WIS.
ADMIN. CODE § NR 1.71(4)(b)2.a., c.).7

¶19 As with the statutory provisions that the Department has cited, we see
nothing in the administrative rules identified by the Department that limits the
Friends’ default capacity to sue and be sued under WIS. STAT. § 181.0302(1). To
the contrary, the list of items that must be included in a written agreement contains
several specific limits on what a friends group can and cannot do. See WIS. ADMIN.
CODE § NR 1.71(4)(b)2.a.-i. For example, the written agreement between a
qualifying friends group and the Department must “[p]rohibit Department
employees from serving as officers and directors” and must provide that a friends
group “[a]gree not to represent their employees and volunteers as Department
employees.” See § NR 1.71(4)(b)2.f., g. Importantly, missing from this long list of
requirements is any language to suggest that qualifying friends groups are prohibited
from filing suit against the Department.

¶20 In its opening brief, the Friends cites to Sauk Prairie Conservation
Alliance v. DNR, Sauk County Circuit Court Case No. 2016CV642 (Dec. 8, 2016),

7
The Department also contends that WIS. ADMIN. CODE §§ NR 1.71(3)(b) and (4)(b)1.
“require the Friends to conduct its operations subject to [Department] supervision and approval.”
However, the text of the cited regulations does not support the Department’s assertion. As noted
above, the Department appears to be taking the phrase “as approved by the Department” out of
context.

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No. 2022AP1127

and Friends of Stower Seven Lakes Trail v. DNR, Polk County Circuit Court Case
No. 2021CV38 (Feb. 4, 2021), to support its argument that several other friends
groups that were created to support Department properties have sued the
Department. The Department argues that these cases are distinguishable because
the Friends’ designation as an official friends group with priority consideration for
grants, alters its capacity to sue and be sued under WIS. STAT. § 181.0302(1).8
However, the Department points to no statute, regulation, or other Wisconsin
authority to support this proposition. We, therefore, see no basis for concluding that
the Department’s regulations affect the Friends’ default power to sue and be sued
under § 181.0302(1).

c. The Friends’ articles of incorporation do not waive
its right to sue the Department.

¶21 The Department further argues that the “plain terms” of the Friends’
articles of incorporation have waived the Friends’ statutory capacity to sue.9
Specifically, the Department focuses on the language in the Friends’ articles of
incorporation, stating that the entity’s purpose is to “conduct any lawful activities
of charitable and educational nature to support, assist, and promote the Wisconsin

8
We note that the cases cited by the Friends are not part of the record and they are not part
of its appendix. However, the Department does not dispute that in those cases, the friends groups
were permitted to sue the Department. Further, we note that the Friends cited Friends of Black
River Forest v. DNR, Nos. 2019AP299 and 2019AP534, unpublished slip op. (WI App Sept. 15,
2020), which is an unpublished per curiam decision. We remind counsel that the case may not be
cited on appeal. See WIS. STAT. RULE 809.23(3).
9
The Friends argues that the Department waived this argument because it raised it for the
first time in its reply brief to the circuit court. In its opening brief in support of its motion to dismiss,
the Department stated that “only two categories of information are relevant to the current motion:
(1) information about the administrative rules and statutes governing official ‘Friends groups’ like
the Friends here; and (2) information about the nature of the Friends’ current challenge in the
petition for judicial review.” Because we conclude that the circuit court erred on the merits of this
argument, we do not address whether the Department properly raised its argument that the Friends’
articles of incorporation waived the Friends’ default power to sue the Department under WIS. STAT.
§ 181.0302(1).

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No. 2022AP1127

Department of Natural Resources, including interpretive, scientific, historical,
educational, and related visitor services at Blue Mound State Park.” According to
the Department, this language means that the Friends has “elected not to exercise
the full extent of the powers authorized by law.” Instead, the Department asserts
that the Friends has “self-limited the activities [it] may undertake in relation to” the
Department.

¶22 We disagree that this language constitutes a clear and specific
renunciation of the Friends’ statutory capacity to sue the Department. See
Mulvaney, 70 Wis. 2d at 768. Our conclusion is bolstered by the Department’s
acknowledgement that the Friends’ articles of incorporation need not be construed
as a complete waiver of the Friends’ capacity to sue the Department. Indeed, if the
Friends’ articles completely waived the Friends’ capacity to sue the Department,
then the Friends would not even be able to sue the Department to enforce the terms
of their agreement. The Department appears to recognize that such an interpretation
would not make sense, and instead, asks this court to limit our analysis to the
question of whether the Friends lacks capacity to bring this particular action. We
conclude that the language in the Friends’ articles does not support this distinction.
If the Department is correct that the phrase “support, assist, and promote the
Wisconsin Department of Natural Resources” has expressly limited the Friends’
capacity to sue the Department for an inadequate review of environmental impacts
at a specified property, we fail to see how the same language would, nonetheless,
preserve the Friends’ capacity to bring any other type of claim against the
Department. We, therefore, decline to interpret this language as a partial waiver of
the Friends’ capacity to sue the Department under WIS. STAT. § 181.0302(1).

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No. 2022AP1127

¶23 Thus, for the reasons stated above, we conclude that the Friends has
capacity to sue the Department. We next address whether the Friends has standing
to seek judicial review of the Department’s decisions under Chapter 227.

II. The Friends has standing to seek judicial review of the
Department’s decision under Chapter 227.

¶24 “In the context of judicial review of an administrative decision,
standing is governed by WIS. STAT. §§ 227.52 and 227.53.” Friends of the Black
River Forest, 402 Wis. 2d 587, ¶20. Pursuant to § 227.52, a petitioner may seek
judicial review of “[a]dministrative decisions which adversely affect the substantial
interests of any person.” Likewise, § 227.53(1) provides that “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.” These statutory provisions “require a petitioner to
‘show a direct effect on his legally protected interests.’” Friends of the Black River
Forest, 402 Wis. 2d 587, ¶20 (quoting Fox v. Wisconsin DHSS, 112 Wis. 2d 514,
524, 334 N.W.2d 532 (1983)).

¶25 Wisconsin uses a two-step test to determine whether a particular
petitioner has standing under these statutes. See id., ¶18. Wisconsin courts
“typically … 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.’” Id. (quoting WED I, 69 Wis. 2d at 10). Wisconsin courts “construe the
law of standing liberally and even an injury to a trifling interest may suffice.” Id.,
¶19 (citations omitted).

¶26 To satisfy the first part of the test for standing, a petitioner must
“allege[ ] injuries that are a direct result of the agency action.” Id., ¶21 (quoting
WED I, 69 Wis. 2d at 13). “[A]llegations of injury to aesthetic, conservational,

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No. 2022AP1127

recreational, health and safety interests will confer standing so long as the injury is
caused by a change in the physical environment.” Milwaukee Brewers Baseball
Club v. DHSS, 130 Wis. 2d 56, 65, 387 N.W.2d 245 (1986). We conclude that the
allegations contained in the Friends’ petitions for judicial review are sufficient to
satisfy this part of the standing test. See WED I, 69 Wis. 2d at 14. “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.” Id.

¶27 In the Friends’ petitions for judicial review, the Friends allege direct
injuries to the organization and its members, including the negative impact of the
new snowmobile trail on their preservation work and ecological restoration efforts.
We also note that for the purposes of this appeal, the Department does not dispute
that the Friends has satisfied the first prong of the test for standing.

¶28 The second prong of Wisconsin’s test for standing requires that the
injury alleged by the Friends be “to an interest which the law recognizes or seeks to
regulate or protect.” Friends of the Black River Forest, 402 Wis. 2d 587, ¶28
(quoting Waste Mgmt. of Wis., Inc., 144 Wis. 2d at 505). “[T]his 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 advanced by the petitioner.” Friends of the
Black River Forest, 402 Wis. 2d 587, ¶28 (quoting Waste Mgmt. of Wis., Inc., 144
Wis. 2d at 505).

¶29 The circuit court focused on the Friends’ claim under the Wisconsin
Environmental Protection Act (WEPA), WIS. STAT. § 1.11, concluding that the
Friends “[is] not within the zone of interest under … WEPA.” In particular, the
court found that the Friends’ “unique relationship” with the Department meant that

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No. 2022AP1127

the Friends had failed to establish that it was within the zone of interests protected
by WEPA.10

¶30 At the outset, we note that the Wisconsin Supreme Court has
discarded the zone of interests label as an “anachronistic misnomer.” Friends of
the Black River Forest, 402 Wis. 2d 587, ¶30. Nonetheless, discarding this label
“leaves the test’s substance intact.” Id. The substance of the test asks whether the
injury is “to an interest which the law recognizes or seeks to regulate or protect.”
Id. (quoting Waste Mgmt. of Wis., Inc., 144 Wis. 2d at 505).

¶31 In applying this test, the circuit court concluded that the Friends’
unique relationship with the Department as an officially recognized friends group
prevented the Friends from having standing under WEPA. We see no basis for this
limitation on standing. The Wisconsin Supreme Court has “consistently recognized
broad environmental interests under WEPA for standing purposes.” Friends of the
Black River Forest, 402 Wis. 2d 587, ¶26 n.10. As relevant here, 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.” Id., ¶24 (quoting WED I, 69
Wis. 2d at 19). Thus, for example, WEPA has conferred standing on the corporate
owner of a farm to challenge an agency action that caused injury to “its legally
protected conservation interest.” Friends of the Black River Forest, 402 Wis. 2d
587, ¶24 n.8 (quoting Applegate-Bader Farm, LLC v. DOR, 2021 WI 26, ¶17 n.7,
396 Wis. 2d 69, 955 N.W.2d 793). Similarly, the Wisconsin Supreme Court has

10
In its opening brief, the Friends points to several other statutory grounds for standing,
including various property management laws and administrative regulations. The Department
contends that these other statutes and regulations do not confer standing because they are not
intended to protect the interests of private parties. In its reply brief, the Friends only argues standing
under WEPA.

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No. 2022AP1127

determined that “increased traffic congestion is an effect on the physical
environment cognizable under WEPA.” Milwaukee Brewers Baseball Club, 130
Wis. 2d at 70.

¶32 As with the petitioners in Applegate-Bader Farm and Milwaukee
Brewers Baseball Club, the Friends’ petition alleges harm to its conservation and
ecological interests due to the new snowmobile trail. These interests are within the
“broad environmental interests” protected by WEPA. Friends of the Black River
Forest, 402 Wis. 2d 587, ¶26 n.10.

¶33 Despite the broad standing conferred by WEPA, the circuit court,
nonetheless, determined that the Friends lacked a legally protected interest under
Columbia County. In Columbia County, the Wisconsin Supreme Court held that
“[a] county as a quasi municipal corporation and as an arm of the state has no right
to question the constitutionality of the acts of its superior and creator or of another
arm or governmental agency of the state.” Id., 17 Wis. 2d at 317. Here, the circuit
court concluded that the Friends’ “unique affiliation with the [Department] puts
Friends in the same position as the” county in Columbia County. However, as
explained above, the Friends is incorporated under Chapter 181, and we see no basis
for concluding that the statutes and regulations that make qualifying friends groups
eligible for grants, somehow turned the Friends into a quasi-municipal corporation
or an arm of the state. Thus, we conclude that Columbia County does not limit the
otherwise broad standing conferred by WEPA.

¶34 In this appeal, the Department argues that our standing inquiry should
be focused narrowly on whether WEPA “protect[s], recognize[s], or regulate[s] this
petitioner’s specific interests.” In arguing that WEPA does not protect the Friends’
specific interests, the Department relies on two Wisconsin decisions: Friends of

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No. 2022AP1127

Black River Forest, 402 Wis. 2d 587, and Chenequa Land Conservancy, Inc. v.
Village of Hartland, 2004 WI App 144, 275 Wis. 2d 533, 685 N.W.2d 573. Neither
of these decisions involves a petitioner who claimed standing under WEPA. Indeed,
in Friends of Black River Forest, the Wisconsin Supreme Court identified WEPA
as an example of a statute that conferred standing for claims asserting an injury to
the petitioner’s conservation or environmental interests. See id., 402 Wis. 2d 587,
¶24 & n.8. But the Court explained that cases that found standing under WEPA
were distinguishable because the petitioner in Friends of the Black River Forest
“ha[d] not asserted the Department made a negative-EIS decision nor ha[d] [the
petitioner] brought any claim under WEPA.” Id., ¶24 n.8. In contrast, in this case
the Friends has asserted that the Department made a negative-EIS11 decision, and
the Friends has brought its claim under WEPA. Thus, Friends of the Black River
Forest fully supports the conclusion that the Friends has standing in this case.

¶35 Our decision in Chenequa Land Conservancy, Inc. is similarly not
helpful to the Department. In that case, the petitioner sought review of a Department
of Transportation decision conveying state property to the Village of Hartland. Id.,
275 Wis. 2d 533, ¶1. The petitioner argued that the property transfer violated WIS.
STAT. § 84.09(5) (2001-02), as well as a Department manual. Id. We explained
that for the petitioner to have standing,

The injury asserted must be such that it gives the plaintiff a
personal stake in the outcome of the controversy.… The
injury need not be pecuniary; it may, for example, be an
injury to interests that are aesthetic, conservational, or
recreational. See [WED I], 69 Wis. 2d at 10. The injury
need not be of great magnitude…; and it need not have
already occurred, but instead may be one that will allegedly

11
EIS is an abbreviation for environmental impact statement. See generally WIS. STAT.
§ 1.11.

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No. 2022AP1127

result from a sequence of events set in motion by the
agency’s conduct. [Id.], 69 Wis. 2d at 14.

Chenequa Land Conservancy, 275 Wis. 2d 533, ¶17.
¶36 In Chenequa Land Conservancy, this court concluded that the
petitioner had established an injury, based on its allegation that it would have
arranged for the property to be purchased and preserved if the Department had
followed the correct procedures for surplus land. Id., ¶¶18-19. But we further
concluded that the petitioner had not satisfied the second part of the test for
standing—namely, a legally protectable interest—because “[t]here is nothing in
WIS. STAT. § 84.09(5) [(2001-02)] that indicates this section was intended to
establish procedures to protect persons or entities interested in purchasing state
property.” Id., ¶¶20-22.

¶37 In contrast to the petition in Chenequa Land Conservancy, the
Friends is bringing its claim under WEPA, WIS. STAT. § 1.11, which is intended to
establish procedures to protect persons or entities asserting environmental interests.
Friends of the Black River Forest, 402 Wis. 2d at 587, ¶26 n.10. Thus, Chenequa
Land Conservancy is readily distinguishable.

¶38 For the reasons stated above, we conclude that the Friends has
standing to challenge the Department’s revised master plan that authorized the
creation of a new snowmobile trail within Blue Mound State Park. Thus, we reverse
the circuit court’s order dismissing the Friends’ petition challenging the
Department’s revised master plan.

¶39 We next turn to the question of whether the Friends has standing to
seek judicial review of the Department’s denial of its contested case petition under

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No. 2022AP1127

WIS. STAT. § 227.42. This statute gives the Friends a right to a hearing, if the
Friends satisfies four criteria:

(a) A substantial interest of the person is injured in fact
or threatened with injury by agency action or
inaction;

(b) There is no evidence of legislative intent that the
interest is not to be protected;

(c) The injury to the person requesting a hearing is
different in kind or degree from injury to the general
public caused by the agency action or inaction; and

(d) There is a dispute of material fact.

WIS. STAT. § 227.42(1). The Department contends that the question of whether
these factors are satisfied is “necessarily intertwined with standing to bring the
underlying claim.”

¶40 In dismissing the Friends’ petition for judicial review of the
Department’s denial of a hearing, the circuit court relied on its determination that
the Friends lacked standing. Other than the argument that the Friends lack a legally
protected interest, which we have already rejected, the Department has not identified
any other basis for affirming the circuit court’s dismissal of the Friends’ petition
under WIS. STAT. § 227.42. Instead, the Department contends that “standing for a
contested case hearing is derivative of standing for any underlying claim.” Because
we have concluded that the Friends has standing to bring their underlying claim, we
also conclude that the Friends has standing to petition for a contested case hearing.
We, therefore, reverse the circuit court’s dismissal of the Friends’ petition for
judicial review of the Department’s decision denying the Friends’ petition for a
contested case hearing.

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No. 2022AP1127

CONCLUSION

¶41 We conclude that the Friends has capacity to sue the Department
under WIS. STAT. § 181.0302(1) and has not waived the right to sue through its
articles of incorporation or by becoming a qualifying, grant-eligible friends group
pursuant to WIS. STAT. § 27.016 and WIS. ADMIN. CODE § NR 1.71. We also
conclude that the Friends has alleged sufficient facts in its petition to satisfy the
standing requirements of WIS. STAT. § 227.52 and WIS. STAT. § 227.53. We,
therefore, reverse the dismissal of the Friends’ petitions and remand for proceedings
consistent with this opinion.

By the Court.—Order reversed and cause remanded for further
proceedings.

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