Town of Christiana v. Public Service Commission of Wisconsin

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.
May 30, 2025
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. 2023AP2230 Cir. Ct. No. 2022CV1273

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

TOWN OF CHRISTIANA,

PETITIONER-APPELLANT,

ROXANN ENGELSTAD AND CHRIS KLOPP,

INTERVENORS-CO-APPELLANTS,

EDWARD LOVELL AND TARA VASBY,

INTERVENORS,

V.

PUBLIC SERVICE COMMISSION OF WISCONSIN,

RESPONDENT-RESPONDENT,

KOSHKONONG SOLAR ENERGY CENTER LLC,

INTERVENOR-RESPONDENT.
No. 2023AP2230

APPEAL from an order of the circuit court for Dane County:
DIANE SCHLIPPER, Judge. Affirmed.

Before Kloppenburg, P.J., Nashold, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. This appeal concerns the application of
Koshkonong Solar Energy Center (“Koshkonong”) for a certificate of public
convenience and necessity (“CPCN”) pursuant to WIS. STAT. § 196.491(3) (2023-
24) to construct a large solar electric generation facility.1 The Town of Christiana
(“the Town”), Roxann Engelstad, and Chris Klopp (collectively, “the appellants”)
intervened in the administrative proceedings before the Public Service
Commission of Wisconsin (“PSC”), and on appeal they challenge the PSC’s final
decision granting Koshkonong’s application, which the circuit court affirmed. The
appellants raise five primary arguments: (1) Koshkonong’s CPCN application was
not for a “wholesale merchant plant” under § 196.491(1)(w) and, therefore, the
PSC improperly applied the wholesale-merchant-plant exemptions in
§ 196.491(3)(d)2. and 3.; (2) the PSC violated the Wisconsin Environmental
Policy Act; (3) the PSC violated Wisconsin’s Energy Priorities Law; (4) the circuit
court erred by not taking judicial notice of certain documents; and (5) the PSC was
biased. We reject the appellants’ arguments and affirm.

1
All references to the Wisconsin Statutes are to the 2023-24 version.

2
No. 2023AP2230

BACKGROUND

¶2 In April 2021, Koshkonong applied for a CPCN for the construction
of a large solar electric generation facility (“the project” or the “proposed
facility”). The project area is located on primarily agricultural land, partly in the
Town of Christiana in Dane County, and consists of 6,384 acres, with 2,349 acres
proposed as the “Primary Array” area that would host the facility. The major
components of the project include “[photovoltaic] panels, inverters, collector
circuits, a collector substation, and a Battery Energy Storage System.”

¶3 Koshkonong’s CPCN application stated, “Koshkonong Solar … is
currently the entity anticipated to own and operate the Project.” The application
also contemplated the possibility that the project would be sold or assigned:

Koshkonong Solar, provided it receives a CPCN
from the [PSC], would directly or indirectly through its
affiliates, construct and operate the Project by selling the
power using long term power purchase agreements.
Alternatively, Koshkonong Solar would sell or assign the
Project, or a portion thereof, to a public utility or other
qualified entity at any time before, during or after the
Project is constructed….

¶4 The PSC issued a notice of proceeding and opened a docket to
consider Koshkonong’s CPCN application. We refer to the proceedings in this
docket as “the CPCN proceedings.”

¶5 Approximately 15 days after Koshkonong applied for a CPCN, in a
separate docket before the PSC, Wisconsin Electric Power Company, Wisconsin
Public Service Corporation, and Madison Gas and Electric Company (collectively,
(“the Utilities”) applied for a certificate of authority from the PSC under WIS.
STAT. § 196.49(3)(b) to acquire the project, including “upon approval, the transfer

3
No. 2023AP2230

of the CPCN rights and obligations authorized in [the CPCN proceedings],” from
Koshkonong. We refer to the proceedings in that docket as “the acquisition
proceedings.”

¶6 In the CPCN proceedings, the appellants (among others) intervened,
and a contested case hearing was held before an administrative law judge (ALJ)
pursuant to WIS. STAT. §§ 196.491(3)(b), 227.01(3)(a), and 227.44. Over the
course of three days, the ALJ heard testimony from Koshkonong, the appellants
and other intervenors, and the public. The PSC also accepted written public
comments through its website and prepared an Environmental Assessment (“EA”)
to determine whether an Environmental Impact Statement (“EIS”) was required
under the Wisconsin Environmental Policy Act (“WEPA”). The PSC determined
that an EIS was not required under WEPA because the project is unlikely to have a
significant impact on the human environment.

¶7 The PSC issued a final decision granting Koshkonong’s CPCN
application. In its final decision, the PSC concluded that the proposed facility is a
wholesale merchant plant. The PSC also, pursuant to the Energy Priorities Law,
considered and rejected an alternative proposed by one of the intervenors, Rob
Danielson, who is not a party in this appeal. We discuss the PSC’s final decision
in the CPCN proceedings in greater detail below.

¶8 Approximately one year after approving Koshkonong’s CPCN
application, the PSC issued a final decision in the acquisition proceedings, which
granted the Utilities’ application for a certificate of authority allowing them to
acquire, construct, own, and operate the project, subject to various conditions.

¶9 Each appellant separately petitioned for judicial review of the PSC’s
final decision in the CPCN proceedings, and the circuit court consolidated their

4
No. 2023AP2230

cases. The Town moved the court to take judicial notice of documents from the
acquisition proceedings, and the court took “judicial notice that the documents
presented to the Court by [the Town] reside in [the acquisition] docket.” The
appellants also moved to consolidate the circuit court proceedings regarding the
PSC’s final decision in the CPCN docket with other circuit court proceedings
challenging the PSC’s final decision in the acquisition docket.2 The court denied
that motion.

¶10 The circuit court affirmed the PSC’s final decision granting
Koshkonong’s CPCN application. The court stated:

The petitioners’ primary argument is that PSC erred
because it defined the [project] as a “wholesale merchant
plant” under [WIS. STAT.] § 196.491(1)(w). According to
the petitioners, a utility has since purchased the [project],
so PSC should never have treated it like a wholesale
merchant plant. The Court can share these concerns over
what is apparently a commonly-used loophole in
Wisconsin’s process for the approval of new power plants
and, at the same time, the Court can also conclude PSC
properly applied the plain statutory definition of a
wholesale merchant plant. The Court can neither add
words to a statute nor overturn PSC’s correct interpretation
of that statute. The petitioners’ remaining … arguments are
not persuasive.

The Court must therefore affirm PSC’s final
decision.

This appeal follows.3

2
Englestad argued that the cases need not be consolidated, but that the circuit court
should consider them together pursuant to its “inherent case administration powers.”
3
After the parties submitted their briefs, Koshkonong moved to substitute the Utilities
for Koshkonong pursuant to WIS. STAT. § 803.10(3), which states, “In case of any transfer of
interest, the action may be continued by or against the original party unless the court upon motion
directs the person to whom the interest is transferred to be substituted in the action or joined with
(continued)

5
No. 2023AP2230

STANDARD OF REVIEW

¶11 This appeal is brought pursuant to WIS. STAT. § 227.58; accordingly,
“we review the decision of the agency, not the circuit court.” Sierra Club v. PSC,
2024 WI App 52, ¶10, 413 Wis. 2d 616, 12 N.W.3d 854.

¶12 “When reviewing questions of law decided by an agency, including
statutory interpretation, our review is de novo.” DOR v. Microsoft Corp., 2019
WI App 62, ¶13, 389 Wis. 2d 350, 936 N.W.2d 160; see also WIS. STAT.
§ 227.57(11) (“Upon review of an agency action or decision, the court shall accord
no deference to the agency’s interpretation of law.”).

¶13 In reviewing the PSC’s decision, we accord “due weight” to “the
experience, technical competence, and specialized knowledge of the agency
involved, as well as discretionary authority conferred upon it.” WIS. STAT.
§ 227.57(10); see also Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶¶3, 78, 382
Wis. 2d 496, 914 N.W.2d 21. “If the agency’s action depends on any fact found
by the agency in a contested case proceeding,” we will not “substitute [our]
judgment for that of the agency as to the weight of the evidence on any disputed

the original party.” Although § 803.10(3) permits the substitution of parties, it does not compel
it, and Koshkonong does not cite any authority that requires substitution under these
circumstances. In light of this, and considering that the PSC’s final decision in the acquisition
proceedings is still being litigated, we decline to substitute the Utilities for Koshkonong, and deny
Koshkonong’s motion.

Separately, the briefs submitted by Koshkonong and the PSC do not comply with WIS.
STAT. RULE 809.19(8)(bm), which addresses the pagination of appellate briefs. See
RULE 809.19(8)(bm) (providing that, when paginating briefs, parties should use “Arabic numerals
with sequential numbering starting at ‘1’ on the cover”). As our supreme court explained when it
amended the rule, the pagination requirement ensures that the numbers on each page of the brief
“will match … the page header applied by the eFiling system, avoiding the confusion of having
two different page numbers” on every page of a brief. S. CT. ORDER 20-07 cmt. at x1.

6
No. 2023AP2230

finding of fact.” Sec. 227.57(6). However, we will “set aside [an] agency action
or remand the case to the agency if [we] find[] that the agency’s action depends on
any finding of fact that is not supported by substantial evidence in the record.”
Sec. 227.57(6). “An agency’s findings are supported by substantial evidence if a
reasonable person could arrive at the same conclusion as the agency, taking into
account all the evidence in the record.” Clean Wis., Inc. v. PSC, 2005 WI 93,
¶46, 282 Wis. 2d 250, 700 N.W.2d 768. “The burden in a [WIS. STAT.] ch. 227
review proceeding is on the party seeking to overturn the agency action, not on the
agency to justify its action.” City of La Crosse v. DOR, 120 Wis. 2d 168, 178,
353 N.W.2d 68 (Ct. App. 1984).

¶14 This appeal requires us to interpret various statutes. “[S]tatutory
interpretation ‘begins with the language of the statute. If the meaning of the
statute is plain, we ordinarily stop the inquiry.’ Statutory language is given its
common, ordinary, and accepted meaning, except that technical or specially-
defined words or phrases are given their technical or special definitional
meaning.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (citation omitted).

DISCUSSION

¶15 As stated, the appellants raise the following primary arguments:
Koshkonong’s CPCN application was not for a “wholesale merchant plant” under
WIS. STAT. § 196.491(1)(w) and, therefore, the PSC improperly applied the
wholesale-merchant-plant exemptions in § 196.491(3)(d)2. and 3.; the PSC did not
comply with WEPA or Wisconsin’s Energy Priorities Law when granting
Koshkonong’s CPCN application; the circuit court erred by not taking judicial
notice of documents from the acquisition proceedings; and the PSC was biased

7
No. 2023AP2230

because it opened the docket for the acquisition proceedings while the CPCN
proceedings were pending.4 We reject the appellants’ arguments for the reasons
that follow.

I. In granting the CPCN to Koshkonong, the PSC properly considered the
proposed facility to be a “wholesale merchant plant” under WIS. STAT.
§ 196.491(1)(w).

¶16 The appellants argue that the PSC improperly granted the CPCN to
Koshkonong because Koshkonong’s application was not for a “wholesale
merchant plant.” This argument is not supported by the record or the law.

¶17 Before addressing the appellants’ specific arguments on this issue,
we clarify that our review is limited to the PSC’s decision granting the CPCN to
Koshkonong. Accordingly, we reject any arguments by the appellants directed at
decisions by the PSC other than its decision granting Koshkonong the CPCN in
the CPCN proceedings. Specifically, the appellants’ arguments are largely
premised on the contention that, in issuing the CPCN to Koshkonong and then
granting the certificate of authority to transfer the project and CPCN to the
Utilities, the PSC took advantage of a statutory loophole and violated WIS. STAT.
§ 196.491. However, as summarized above, the CPCN and acquisition
proceedings were separate administrative proceedings, and the Utilities were not a
party to the CPCN proceedings. Moreover, although the appellants moved to
consolidate the circuit court proceedings challenging the PSC’s final decisions in
the CPCN proceedings and the acquisition proceedings, that motion was denied,

4
The appellants make additional arguments, which we briefly address and reject in
footnotes 8 and 23, infra, because they are either outside the scope of our review in this appeal or
because they violate one or more appellate rules.

8
No. 2023AP2230

and the appellants do not challenge that denial on appeal. Here, we are reviewing
only the PSC’s decision to grant Koshkonong’s application for a CPCN, not its
decision in the acquisition proceedings. As a result, we do not address the
appellants’ arguments challenging the PSC’s decision to grant a certificate of
authority to the Utilities allowing them to acquire the project and CPCN.

¶18 Having clarified that the acquisition proceedings are not the subject
of this appeal, we now address the appellants’ specific arguments as to whether the
PSC, in granting a CPCN to Koshkonong, properly considered the proposed
facility to be a wholesale merchant plant, thereby entitling it to specified statutory
exemptions. WISCONSIN STAT. § 196.491(3)(a)1. provides in pertinent part that
“no person may commence the construction of a facility unless the person has
applied for and received a certificate of public convenience and necessity.” See
also § 196.491(1)(e) (“‘Facility’ means a large electric generating facility or a
high-voltage transmission line.”). Section 196.491(3)(d) states that the PSC shall
approve a CPCN application if the PSC makes certain determinations. However,
some of these requirements do not apply when the proposed facility is a wholesale
merchant plant. Specifically, for wholesale merchant plants, the PSC does not
consider whether “[t]he proposed facility satisfies the reasonable needs of the
public for an adequate supply of electric energy”; nor does it consider “alternative
sources of supply or engineering or economic factors” when determining whether
“[t]he design and location or route [are] in the public interest.”
Sec. 196.491(3)(d)2., 3.

¶19 WISCONSIN STAT. § 196.491(1)(w) defines “wholesale merchant
plant” in relevant part:

1. “Wholesale merchant plant” means … electric
generating equipment and associated facilities located in

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No. 2023AP2230

this state that do not provide service to any retail customer
and that are owned and operated by any of the following:

a. Subject to the approval of the commission under
sub. (3m)(a), an affiliated interest of a public utility.

b. A person that is not a public utility.

A facility is thus not a “wholesale merchant plant” if it is owned and operated by a
public utility. The parties do not dispute that the Utilities are public utilities and
that Koshkonong is not.

¶20 Here, the PSC concluded that the proposed facility is a wholesale
merchant plant. The PSC stated in its final decision:

Certain intervenors argued that this project is not or
should not be treated as a wholesale merchant facility
because, at some point in the future the applicant may sell
some or all of the project to a public utility. The
Commission disagrees and finds that the applicant’s project
has been appropriately reviewed and considered by this
Commission as a wholesale merchant plant. While there
may be an acquisition of the solar facility in the future, as
of the date of this Final Decision, there has been no sale.
Therefore, it remains appropriate to evaluate the proposed
project as a merchant plant. This is consistent with
previous Commission decisions authorizing the transfer of
a merchant CPCN to a public utility prior to completion of
construction of the project. Further, nothing in [WIS.
STAT.] § 196.491 prohibits the transfer of rights granted
under a CPCN.

As a wholesale merchant plant, the Commission’s
review in this docket was appropriately limited to those
statutory criteria applicable to merchants. The fact that a
project may be acquired by a public utility at some point in
the future does not transform the project into a non-
merchant plant, nor does it require that the potential would-
be buyers be co-applicants. To the extent that certain
intervenors find fault with this framework, their argument
is with the Legislature and not with the Commission. As
[WIS. STAT.] ch. 196 is currently written, the process by
which the applicant seeks a CPCN in this docket is a lawful
one, and the Commission may not impose additional

10
No. 2023AP2230

requirements on the applicant that are not prescribed by the
applicable legislation.

(Footnote omitted.) Consistent with this determination, pursuant to WIS. STAT.
§ 196.491(3)(d)2. and 3., the PSC did not consider whether the project “satisfies
the reasonable needs of the public for an adequate supply of electric energy,” nor
did the PSC consider “alternative sources of supply or engineering or economic
factors” in determining whether the design and location or route are in the public
interest.

¶21 The appellants contend that the PSC improperly considered the
proposed facility to be a wholesale merchant plant under WIS. STAT.
§ 196.491(1)(w) so as to entitle it to the exemptions in § 196.491(3)(d). The
appellants advance a series of arguments in support of this contention; however, as
we explain, none of those arguments demonstrate that Koshkonong is not a
wholesale merchant plant as defined by § 196.491(1)(w). Thus, the appellants fail
to show that the PSC erred in its application of § 196.491(1)(w) and (3)(d).

¶22 The Town argues that Koshkonong, in its CPCN application,
“flagged its ultimate intent to never own and operate a wholesale merchant plant.”
However, this mischaracterizes Koshkonong’s CPCN application. The language
that the Town identifies (which is in a section regarding the “[a]nnual energy to be
delivered under contract or expected to be delivered”) states:

Koshkonong Solar, provided it receives a CPCN
from the Commission, would directly or indirectly through
its affiliates, construct and operate the Project by selling the
power using long term power purchase agreements.
Alternatively, Koshkonong Solar would sell or assign the
Project, or a portion thereof, to a public utility or other
qualified entity at any time before, during or after the
Project is constructed….

11
No. 2023AP2230

This language does not reflect an “ultimate intent to never own and operate” the
project, but rather acknowledges the possibility that Koshkonong might sell or
assign the project to a public utility. In a different section titled “Ownership,” the
application unqualifiedly states, “Koshkonong Solar … is currently the entity
anticipated to own and operate the Project.”5 Consistent with this, the PSC
granted the CPCN to Koshkonong: the PSC’s final decision states, “The
Commission grants the applicant a CPCN for construction of the proposed …
facility,” and, “The applicant is authorized to construct the proposed …
facilities.”6 (Emphasis added.) In granting the CPCN, the PSC did not authorize
the CPCN’s transfer to the Utilities, nor did the PSC authorize the Utilities to
construct or operate the facility proposed in Koshkonong’s CPCN application. As
stated, the Utilities were not parties to the CPCN proceedings, and our review is
limited to the PSC’s grant of a CPCN to Koshkonong.

¶23 The appellants argue that the proposed facility is not a “wholesale
merchant plant” in light of the Utilities’ application for a certificate of authority to
acquire the project, which was submitted to the PSC approximately 15 days after
Koshkonong submitted its CPCN application, and before the PSC had issued a
final decision regarding Koshkonong’s CPCN application. Specifically, Engelstad

5
Relatedly, Engelstad identifies language in the project’s EA (which was submitted after
Koshkonong’s CPCN application) that states, “The applicant anticipates that Wisconsin utilities
would own the solar generation project, since many utilities have publicly expressed the need for
solar power and have plans to decommission fossil fuel power plants. On April 30, 2021, [the
Utilities] submitted a joint application for a Certificate of Authority to acquire, own, and operate
the proposed project.” However, as the PSC points out, the EA goes on to say that Koshkonong
“also anticipates building the project upon CPCN approval regardless of the approval of [the
Utilities’ application for a certificate of authority to acquire the project in the acquisition
proceedings].” Thus, the language highlighted by Engelstad does not show that the Koshkonong
never intended to own or operate the project.
6
The final decision explicitly states that “applicant” refers to Koshkonong.

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No. 2023AP2230

argues that in order for a CPCN to be issued for the project as a wholesale
merchant plant, the project must actually be “owned and operated” by a person
“that is not a public utility” for at least some amount of time. However,
notwithstanding the intended transfer of Koshkonong’s CPCN rights to the
Utilities, as stated, the PSC granted the CPCN to Koshkonong, and in granting the
CPCN, the PSC did not authorize the transfer of CPCN rights to the Utilities prior
to the project’s construction or prior to Koshkonong’s ownership and operation of
the project. It is the PSC’s decision to issue a CPCN to Koshkonong that we are
reviewing, and the appellants’ arguments are thus beyond the scope of our
review.7

¶24 Engelstad and the Town also argue that, pursuant to WIS. STAT.
§ 196.491(3)(a)1., it is the person who actually constructs a large electric
generating facility who must apply for and receive a CPCN. See § 196.491(3)(a)1.
(“[N]o person may commence the construction of a facility unless the person has
applied for and received a certificate of public convenience and necessity under
this subsection.”). Here, Engelstad and the Town argue, the Utilities cannot
construct the project because they did not apply for and receive a CPCN;
Koshkonong did. Relatedly, Engelstad argues that allowing the Utilities to
construct the project without requiring the Utilities to obtain their own CPCN for
the project “does not conform to the provisions and structure of the CPCN law as

7
We additionally observe that under the appellants’ reading of WIS. STAT.
§ 196.491(3)(d), the PSC would have to determine whether a proposed facility might
subsequently be acquired by a public utility (and when), which could be uncertain at the time of
application, in order to determine whether to apply § 196.491(3)(d)2. and 3.’s wholesale-
merchant-plant exemptions.

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No. 2023AP2230

the legislature designed it.”8 Here again, we do not address these arguments based
on the scope of our review in this case. As stated, we are reviewing the PSC’s
final decision, which grants a CPCN to Koshkonong, and which does not authorize
the Utilities to construct the project. The PSC’s subsequent final decision
authorizing the Utilities to acquire Koshkonong’s CPCN and construct the
proposed facility is not at issue here, and does not negate that, within the scope of
the proceedings that are under review in this case, the proposed facility is a
wholesale merchant plant as defined in § 196.491(1)(w).

¶25 In sum, we reject the appellants’ arguments and conclude that the
PSC properly considered the proposed facility to be a wholesale merchant plant
and, therefore, properly applied WIS. STAT. § 196.491(3)(d)’s wholesale-
merchant-plant exemptions in granting a CPCN to Koshkonong.

II. The PSC did not violate WEPA by not preparing an EIS.

¶26 Klopp argues that the PSC violated WEPA by failing to have an EIS
prepared. WEPA requires that state agencies contemplating a “major action[]

8
In a separate section of Engelstad’s brief, Engelstad argues that allowing the Utilities to
acquire the CPCN that Koshkonong obtained for the project deprives the intervenors of their right
to a contested case hearing regarding the requirements enumerated in WIS. STAT.
§ 196.491(3)(d)2. and 3. that do not apply to a CPCN for a wholesale merchant plant. We treat
this as a variation of Engelstad’s argument that allowing the Utilities to construct the project
without requiring the Utilities to obtain their own CPCN for the project “does not conform to the
provisions and structure of the CPCN law as the legislature designed it,” and we similarly reject it
as beyond the scope of this appeal. For the same reason, we also reject a number of additional
arguments that Engelstad raises. This includes Engelstad’s argument that depriving the
intervenors of their right to a contested case hearing regarding those requirements enumerated in
§ 196.491(3)(d) that do not apply to a CPCN application for a wholesale merchant plant violates
equal protection, that the transfer of Koshkonong’s CPCN to the Utilities is anticompetitive and
violates general state policy, that allowing Koshkonong to obtain the CPCN and then transfer it to
the Utilities “improperly eliminated the required Agricultural Impact Statement,” and that the
transfer of the CPCN from Koshkonong to the Utilities renders Koshkonong’s leases with private
landowners for the project unconscionable.

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No. 2023AP2230

significantly affecting the quality of the human environment” prepare an EIS.
WIS. STAT. § 1.11(2)(c).9 “‘The purpose of WEPA is to insure that agencies
consider environmental impacts during decision making.’” Clean Wis., 282
Wis. 2d 250, ¶188 (quoting Boehm v. DNR, 174 Wis. 2d 657, 665, 497 N.W.2d
445 (1993)). “WEPA is procedural in nature and does not control agency decision
making. Rather, it requires that agencies consider and evaluate the environmental
consequences of alternatives available to them and undertake that consideration in
the framework provided by [§] 1.11.” Boehm, 174 Wis. 2d at 665.

9
WISCONSIN STAT. § 1.11(2)(c) states in full:

(2) All agencies of the state shall:

(c) Include in every recommendation or report on …
major actions significantly affecting the quality of the human
environment, a detailed statement, substantially following the
guidelines issued by the United States council on environmental
quality under P.L. 91-190, 42 USC 4331, by the responsible
official on:

1. The environmental impact of the proposed action;

2. Any adverse environmental effects which cannot be
avoided should the proposal be implemented;

3. Alternatives to the proposed action;

4. The relationship between local short-term uses of the
human environment and the maintenance and enhancement of
long-term productivity;

5. Any irreversible and irretrievable commitments of
resources that would be involved in the proposed action should it
be implemented; and

6. Such statement shall also contain details of the
beneficial aspects of the proposed project, both short term and
long term, and the economic advantages and disadvantages of
the proposal.

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No. 2023AP2230

¶27 The “procedures to provide the [PSC] with adequate information on
the short-term and long-term environmental effects of its actions, as required by
[WEPA]” are set forth in WIS. ADMIN. CODE ch. PSC 4. Ch. PSC 4 (prefatory
note).10 The type of environmental analysis required depends on the category of
action being proposed. WISCONSIN ADMIN. CODE § PSC 4.10 differentiates
between Type I actions, which “are major actions that significantly affect the
quality of the human environment”; Type II actions, which “have the potential to
significantly affect the quality of the human environment”; and Type III actions,
which “normally do not have the potential to significantly affect the quality of the
human environment.” Sec. PSC 4.10(1)-(3). Type I actions require an EIS,
Type II actions require an Environmental Assessment (EA), and Type III actions
normally do not require an EIS or an EA. Sec. PSC 4.10.11 WISCONSIN ADMIN.
CODE § PSC 4.20(1) describes what an EA is and what it must contain:

10
All references to the WIS. ADMIN. CODE are to the March 2025 register unless
otherwise noted.
11
WISCONSIN ADMIN. CODE § PSC 4.10 states in full:

(1) TYPE I ACTIONS. Type I actions are major actions
that significantly affect the quality of the human environment,
within the meaning of [WIS. STAT. §] 1.11(2)(c)[.] The
commission shall prepare an EIS on any of the proposed actions
involving a request for commission approval, categorized as
Type I actions, listed in Table 1. The commission shall also
prepare an EIS for actions not listed in Table 1 that it determines
are Type I actions.

(2) TYPE II ACTIONS. Type II actions are proposed
actions involving requests for commission approval that have the
potential to significantly affect the quality of the human
environment, within the meaning of [WIS. STAT. §] 1.11(2)(c)[.]
Unless the commission decides an EIS is necessary, the
commission shall prepare an EA on any of the proposed actions
involving a request for commission approval, categorized as
Type II actions, listed in Table 2.
(continued)

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No. 2023AP2230

The commission shall prepare an EA as a concise
document that provides a factual investigation of the
relevant areas of environmental concern in sufficient depth
to permit a reasonably informed preliminary judgment of
the environmental consequences of the proposed action.
The EA shall include a recommendation whether the
proposed action is a major action significantly affecting the
quality of the human environment, within the meaning of
[WIS. STAT. §] 1.11(2)(c) … for which an EIS is required.

¶28 Here, the PSC classified the proposed project as a Type III action,
which does not normally require an EA or an EIS. See WIS. ADMIN. CODE
§ PSC 4.10(3) tbl. 3. The PSC nonetheless prepared an EA “due to the size and
amount of land that would be covered by the proposed project.” 12 The EA is
approximately 75 pages long and concludes that “approval and construction of this
project is unlikely to have a significant impact on the human environment” and
that, as a result, “the preparation of an EIS is not required.” When reviewing a
“negative-EIS decision,” we apply a two-part test:

First, has the agency developed a reviewable record
reflecting a preliminary factual investigation covering the
relevant areas of environmental concern in sufficient depth
to permit a reasonably informed preliminary judgment of
the environmental consequences of the action proposed;
second, giving due regard to the agency’s expertise where it
appears actually to have been applied, does the agency’s

(3) TYPE III ACTIONS. Type III actions are proposed
actions involving requests for commission approval that
normally do not have the potential to significantly affect the
quality of the human environment, within the meaning of [WIS.
STAT. §] 1.11(2)(c)[.] As such, they do not normally require an
EA or an EIS. An evaluation of a specific Type III proposal,
however, may indicate that the preparation of an EA or EIS is
warranted for that proposal. Type III actions are listed in
Table 3.
12
Klopp argues that because the project included an electric energy storage facility, it is
actually a Type II action that would normally require an EA. Because the PSC prepared an EA,
we do not discuss this argument further.

17
No. 2023AP2230

determination that the action is not a major action
significantly affecting the quality of the human
environment follow from the results of the agency’s
investigation in a manner consistent with the exercise of
reasonable judgment by an agency committed to
compliance with WEPA’s obligations?

Wisconsin’s Env’t Decade, Inc. v. PSC, 79 Wis. 2d 409, 425, 256 N.W.2d 149
(1977). In other words, “[i]f the [agency] developed a reviewable record and its
negative-EIS decision is reasonable based on that record, we will uphold its
decision.” Applegate-Bader Farm, LLC v. DOR, 2021 WI 26, ¶17, 396 Wis. 2d
69, 955 N.W.2d 793.

¶29 Although Klopp challenges the PSC’s negative-EIS decision for
numerous reasons, Klopp does not develop an argument under the relevant legal
standard—that is, Klopp does not argue that the PSC failed to develop a
reviewable record or that its negative-EIS decision was unreasonable based on the
record. See Applegate-Bader Farm, 396 Wis. 2d 69, ¶17. As a result, Klopp’s
arguments may be rejected on that basis. See Clean Wis., 282 Wis. 2d 250, ¶180
n.40 (“We will not address undeveloped arguments.”). Nonetheless, we briefly
address and reject the arguments that Klopp does advance.

¶30 Klopp first argues that the project, because of its size alone,
necessarily required an EIS. However, Klopp because does not develop this
argument or support it with any legal authority, and we reject it on that basis. See
id.; State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992)
(“Arguments unsupported by references to legal authority will not be
considered.”).

¶31 Relatedly, Klopp argues that the EA that the PSC did prepare was
inadequate because it did not “tak[e] strong consideration of the size of the

18
No. 2023AP2230

Project.”13 To the extent that Klopp means to advance this as a separate argument,
it is unavailing. The size of the project was one of the PSC’s reasons for
conducting an EA, and the EA did, in fact, take into consideration the size of the
project. In arguing that the size of the project was not given enough weight when
determining whether to conduct an EIS, Klopp does not account for the standard
of review that we apply to an agency’s negative-EIS decision—as stated, we will
uphold an agency’s negative-EIS decision as long as the agency developed a
reviewable record and the decision was reasonable based on that record.
Applegate-Bader Farm, 396 Wis. 2d 69, ¶17. In the absence of a developed
argument under the appropriate standard of review, Klopp has failed to show that
the PSC’s negative-EIS decision was not reasonable based on the record. See id.;
see also Larsen v. Munz Corp., 167 Wis. 2d 583, 606-07, 482 N.W.2d 332 (1992)
(“Once an agency has made its fully informed and well-considered decision, a
reviewing court may not interfere with agency discretion choosing the action to be
taken, or as in this case, the decision not to prepare an EIS.”); Town of Holland v.
PSC, 2018 WI App 38, ¶22, 382 Wis. 2d 799, 913 N.W.2d 914 (stating that we
defer to the agency as to the weight of the evidence).14

13
Klopp also argues that “[t]he [EA] is compromised[] by not considering the fact that
the current version of [WIS. ADMIN. CODE ch.] PSC 4 is from 2011, … long before there were
any large solar facilities being proposed in Wisconsin.” However, Klopp cites no authority to
support this argument that regulations should be interpreted differently based on their age or on
intervening developments since their enactment, and we reject it on that basis. See State v. Pettit,
171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported by references
to legal authority will not be considered.”). Moreover, as Koshkonong argues, the PSC has
approved several large solar projects since the current version of ch. PSC 4 was enacted, and
presumably could have pursued a rule change if it believed one was warranted.
14
At other points in Klopp’s briefing, Klopp appears to challenge the weight given by
the PSC to other considerations in making its negative-EIS decision. We reject these challenges
for the same reason.

19
No. 2023AP2230

¶32 Klopp also argues that if the project was completed, “none of the
activities … that are currently taking place on the [project site] would continue to
tak[e] place,” and that “[a] project that completely eliminates the current
activities[] must significantly affect the quality of the human environment” so as to
require an EIS. Here again, Klopp does not otherwise develop this argument with
supporting legal authority, and we reject it on that basis. See Clean Wis., 282
Wis. 2d 250, ¶180 n.40; Pettit, 171 Wis. 2d at 646.

¶33 Klopp also challenges the PSC’s application of WIS. ADMIN. CODE
§ PSC 4.20(2)(d). Consistent with § PSC 4.20(2)(d), the PSC considered ten
factors in making its determination as to whether an EIS was required.15 Klopp
15
WISCONSIN ADMIN. CODE § PSC 4.20(2)(d) lists the following as factors that must be
considered:

1. Effects on geographically important or scarce
resources, such as historic or cultural resources, scenic or
recreational resources, prime farmland, threatened or endangered
species and ecologically important areas.

2. Conflicts with federal, state or local plans or policies.

3. Significant controversy associated with the proposed
action.

4. Irreversible environmental effects.

5. New environmental effects.

6. Unavoidable environmental effects.

7. The precedent-setting nature of the proposed action.

8. The cumulative effect of the proposed action when
combined with other actions and the cumulative effect of
repeated actions of the type proposed.

9. The foreclosure of future options.

10. Direct and indirect environmental effects.

(continued)

20
No. 2023AP2230

argues that the PSC, in considering these factors, “failed to establish that an EIS
was not required” because the PSC’s conclusions regarding these factors were
“contingent upon the [p]roject being temporary and the land being able to return to
agricultural use” and because “evidence that the [p]roject would extend beyond
the 35-50 year lifespan[] overwhelmingly undermines the assumptions and
conclusions in the EA.” Klopp argues that, as a result, the PSC did not comply
with § PSC 4.20(1), which, as stated, requires that an EA “provides a factual
investigation of the relevant areas of environmental concern in sufficient depth to
permit a reasonably informed preliminary judgment of the environmental
consequences of the proposed action.” See also Wisconsin’s Env’t Decade, 79
Wis. 2d at 425 (stating the same requirement using substantively the same
language). We reject these arguments for the following reasons. First, the PSC, in
considering § PSC 4.20(2)(d)’s factors, took into account the environmental
effects of the project both during the project’s operational life and after its
decommissioning. For example, the PSC considered the project’s “[i]rreversible
environmental effects” and the “[f]oreclosure of future options.” And, contrary to
Klopp’s assertions, the PSC did not assume that the project’s operational life
would necessarily be limited to 35-50 years.16 As a result, Klopp fails to explain
under the relevant standard how the PSC failed to develop an adequate record or

11. Other environmental matters the commission
considers relevant.
16
For example, when considering WIS. ADMIN. CODE § PSC 4.20(2)(d)’s factors, the
PSC stated, “The construction of the proposed solar generation facility would remove fields from
agricultural production or any other use during the operational life of the project, which is
proposed to be at least 35 years,” and that the project area “would be out of agricultural
production for the operational life of the project--potentially 35 years or more.” (Emphasis
added.)

21
No. 2023AP2230

how its negative-EIS decision was unreasonable based on the record. See
Applegate-Bader Farm, 396 Wis. 2d 69, ¶17.

¶34 Klopp further argues that the EA is inadequate, and that the PSC’s
negative-EIS decision made in reliance on the EA is improper, because the EA
assumes without proof that proposed mitigation actions would be followed and
that decommissioning actions will be completed as proposed. Although Klopp
does not identify the relevant language in the EA, we observe that the EA states,
“If proposed mitigation actions are followed, the proposed project is not expected
to significantly affect historic resources, scenic or recreational resources,
threatened or endangered species, or ecologically important areas.” Elsewhere,
the EA states, “It is expected that at the end of the useful life of the project, with
an effective de-commissioning process undertaken, that the land and resources
impacted from this project could return to a state similar or the same as it was
prior to the construction of the project.” Additionally, after stating that the
“Commission staff has not identified any potential environmental effects of the
proposed project that could be considered significant”—the EA concludes that
“[t]his evaluation is arrived at assuming that some, if not all, of the mitigation
measures proposed by [Koshkonong] and [PSC] and DNR staff are used.”

¶35 In refuting Klopp’s argument that an EA is inadequate if it assumes
that mitigation actions or other conditions would be required, the PSC relies on
Boehm. In Boehm, our supreme court addressed an argument similar to Klopp’s.
Boehm, 174 Wis. 2d at 673. The Boehm court noted that many federal cases
“have upheld environmental assessments … that incorporate conditions for
approval or mitigation measures.” The Boehm court concluded, “If the proposal is
modified prior to implementation by adding conditions for approval which
compensate for any possible adverse environmental impacts stemming from the

22
No. 2023AP2230

original proposal, the statutory threshold of significant environmental effects is not
crossed and an EIS is not required.” Id. at 675-76; see also id. at 676 (“We
conclude that an agency may control potential adverse environmental
consequences through conditions that must be complied with to obtain approval.”).
Here, the PSC, after concluding that the project would have no undue adverse
impacts on the environment, stated: “To the extent there are some environmental
impacts, the Commission finds that these impacts can be mitigated by conditions
imposed by this Final Decision.”17 Klopp does not address the PSC’s reliance on
Boehm in her reply brief, and Klopp does not cite any legal authority in her
appellant’s brief to support her argument that the EA was inadequate because it
assumed that at least some of the proposed mitigation measures would be used;
accordingly, we reject this argument. See Pettit, 171 Wis. 2d at 646; Charolais
Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 108-09, 279 N.W.2d
493 (Ct. App. 1979) (unrefuted arguments are deemed conceded).18

¶36 Klopp also challenges the PSC’s conclusion “that the project will
have no undue adverse impacts on the environment and therefore satisfies the
CPCN statutory criteria.” Klopp argues that this conclusion was made “[w]ith no
evidence cited, discussed, or weighed,” and that “[t]here is no statement of reasons
or discussion of evidence presented or a rationale for why the Commission chose

17
As an example of one of the conditions imposed, the PSC “require[d] the applicant [to]
raise the array fences a minimum of 6 inches off the ground or provide larger openings (roughly
1 foot by 1 foot) at intervals throughout the perimeter fence to allow for small animal
movement.”
18
Nor does Klopp argue, either in her appellant’s brief or in her reply brief in response to
the PSC’s reliance on Boehm v. DNR, 174 Wis. 2d 657, 497 N.W.2d 445 (1993), that an EIS was
required because the PSC’s final decision did not impose conditions sufficient to adequately
compensate for any possible adverse environmental impacts.

23
No. 2023AP2230

certain evidence over other[] [evidence].” In making this argument, Klopp relies
on WIS. STAT. § 227.46(4), which states, “the proposed decision shall contain a
statement of the reasons [for the decision] and of each issue of fact or law
necessary to the proposed decision.” But Klopp’s reliance on this statute is
misplaced. As the PSC points out, § 227.46(4) only applies when “a majority of
the officials of the agency who are to render the final decision have not heard the
case or read the record,” which was not the situation here.19 The PSC also points
out that agency decisions are otherwise generally governed by WIS. STAT.
§ 227.47(1), which states, “[E]very final decision of an agency shall be in writing
accompanied by findings of fact and conclusions of law. The findings of fact shall
consist of a concise and separate statement of the ultimate conclusions upon each
material issue of fact without recital of evidence.” Sec. 227.47(1); see also Clean
Wis., 282 Wis. 2d 250, ¶145 (“There is no requirement that the agency provide an
elaborate opinion.”); Hixon v. PSC, 32 Wis. 2d 608, 627, 146 N.W.2d 577 (1966)
(concluding that the PSC’s findings, which were “stated in terms of the ultimate
factual determinations that were necessary to support the commission’s order,”
were adequate); Applegate-Bader Farm, 396 Wis. 2d 69, ¶31 (“We have, on
several occasions, concluded that an agency’s record was satisfactory despite the
record not having the specific information or investigation that the petitioner
would have preferred.”). In light of this language, and given Klopp’s failure to
respond to the PSC’s argument in her reply brief, we reject Klopp’s argument that

19
For the same reason, we reject Klopp’s argument that, pursuant to WIS. STAT.
§ 227.46(4), the PSC was required to serve its proposed decision on the parties. See § 227.46(4)
(“Notwithstanding any other provision of this section, in any contested case, if a majority of the
officials of the agency who are to render the final decision have not heard the case or read the
record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not
be made until a proposed decision is served upon the parties ….”). Again, § 227.46(4) does not
apply here.

24
No. 2023AP2230

the PSC’s conclusion that the project will have no undue adverse impacts on the
environment was inadequate. See Charolais Breeding Ranches, 90 Wis. 2d at
108-09.

¶37 Finally, Klopp contends that the EA does not adequately consider
whether an EIS was required because it does not include a summary of the public
comments that were received, which Klopp argues was required under WIS.
ADMIN. CODE § PSC 4.20(2)(f). We disagree that § PSC 4.20(2)(f) requires such a
summary. Section PSC 4.20(2)(f) states that an EA must include “[a] list of other
persons contacted and [a] summary of comments or other information received
from them, including information regarding whether the proposed action complies
with the regulations of other governmental units.” This language does not refer to
“public comments,” which are submitted to the PSC, see § PSC 4.20(1m), but
instead refers to “comments” from “other persons contacted” by the PSC.
Therefore, the language of the regulation does not support Klopp’s interpretation,
and here the EA complied with § PSC 4.20(2)(f) by stating, “No other persons
besides staff at DNR and the Commission were contacted or involved in the
preparation of this EA.”20

¶38 In sum, we reject Klopp’s arguments and conclude that Klopp has
not shown that the PSC failed to develop a reviewable record or that its negative-
EIS decision was unreasonable based on the record. See Applegate-Bader Farm,
396 Wis. 2d 69, ¶17.

20
Moreover, our reasoning on this issue is consistent with what the PSC argues in its
response brief. Klopp does not respond to this argument in her reply brief, thereby conceding the
issue. United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d
578 (failure by appellant to respond in reply brief to an argument made in respondent’s brief may
be taken as a concession).

25
No. 2023AP2230

III. The PSC did not violate the Energy Priorities Law.

¶39 The Energy Priorities Law (“EPL”), WIS. STAT. § 1.12, “states
Wisconsin’s energy policy and gives agencies and governmental units a list of
energy source options and the priority in which they should be considered when
making decisions.” Clean Wis., 282 Wis. 2d 250, ¶98. Section 1.12(4) states:

(4) PRIORITIES. In meeting energy demands, the
policy of the state is that, to the extent cost-effective and
technically feasible, options be considered based on the
following priorities, in the order listed:

(a) Energy conservation and efficiency.

(b) Noncombustible renewable energy resources.

(c) Combustible renewable energy resources.

….

(d) Nonrenewable combustible energy resources, in
the order listed:

1. Natural gas.

2. Oil or coal with a sulphur content of less than
1 percent.

3. All other carbon-based fuels.

(5) Meeting energy demands.

(a) In designing all new and replacement energy
projects, a state agency or local governmental unit shall
rely to the greatest extent feasible on energy efficiency
improvements and renewable energy resources, if the
energy efficiency improvements and renewable energy
resources are cost-effective and technically feasible and do
not have unacceptable environmental impacts.

(b) To the greatest extent cost-effective and
technically feasible, a state agency or local governmental
unit shall design all new and replacement energy projects
following the priorities listed in sub. (4).

26
No. 2023AP2230

¶40 Klopp argues that the PSC violated the EPL when it rejected an
alternative proposed by Rob Danielson, a nonparty intervenor in the underlying
administrative proceedings. The Danielson alternative was to invest the cost of
the project into the Focus on Energy program, which is a statewide energy
efficiency program designed “to help achieve environmentally sound and adequate
energy supplies at reasonable cost.” WIS. STAT. § 196.374(2)(a)2.; see also
§ 196.374(2)(a)1. (“The energy utilities in this state shall collectively establish and
fund statewide energy efficiency and renewable resource programs…. The [PSC]
shall require each energy utility … to fund statewide energy efficiency and
renewable resource programs.”).

¶41 The PSC explicitly considered the EPL and the Danielson alternative
when it approved the CPCN. The PSC first stated that because the CPCN was for
a merchant plant, pursuant to WIS. STAT. § 196.491(3)(d)2. and 3., the PSC would
not consider whether the plant would satisfy the reasonable needs of the public for
an adequate supply of electric energy or alternative sources of supply, engineering,
or other economic factors. The PSC further concluded that the Danielson
alternative was not a technically feasible alternative because the PSC does not
regulate carbon dioxide emission rates, cannot compel customers to participate in
energy efficiency programs, and does not control the amount of funding available
for the Focus on Energy program, which is determined by the legislature.21

21
The PSC specifically stated:

The proposed project will be a new solar electric
generation facility. As such, it is a “noncombustible
renewable energy resource” and is entitled to the highest
priority of all energy generation resources under the EPL.
Parties in this proceeding presented testimony stating that
energy conservation and efficiency “deliver superior
(continued)

27
No. 2023AP2230

¶42 Based on the foregoing, we reject Klopp’s argument that the
Danielson alternative was “dismissed … out of hand.” Relatedly, Klopp argues
that there was not “substantial evidence” to support the PSC’s rejection of the

monetary, energy, capacity, and CO2 reduction benefits.”
The applicant presented testimony in which it stated that
“no EPL alternatives exist that are cost-effective,
technically feasible, and environmentally sound alternatives
to the proposed project.” Further, the applicant stated that
it “is not technically feasible” for them to offer an energy
efficiency program as an alternative to the proposed
project.

The Commission finds the parties’ testimony that
energy conservation and efficiency “deliver superior
monetary, energy, capacity and CO2 reduction benefits”
unpersuasive because it was not based on area[-]specific
studies of the technical feasibility of demand response and
energy efficiency programs as alternatives to the project.
Certain parties also argued for the benefits of efficiency
programs and the reduction in CO2 emissions. However,
the Commission does not regulate CO2 emission rates,
cannot compel customers to participate in energy efficiency
and demand response programs as those are voluntary, and
does not control the amount of available funding for the
statewide energy efficiency program (Focus on Energy) as
that is established by the Legislature.

The Commission concludes that energy and
capacity from the proposed project cannot be replaced by
energy conservation and efficiency, the highest priority
alternative. The EA for the proposed project concluded
that “approval and construction of this project is unlikely to
have a significant impact on the human environment.”
Additionally, the objective of the law is to deploy
environmentally preferable options first when meeting
Wisconsin’s energy needs, not to require that measures
such as conservation or energy efficiency displace a project
if not obviously technically feasible or more cost effective.
This project aligns with that objective. Therefore, the
Commission finds that the proposed project satisfies the
requirements of the EPL.

(Footnote and citation omitted.)

28
No. 2023AP2230

Danielson alternative because the PSC did not provide a citation to the record
when it concluded that the Danielson alternative was not technically feasible.
However, the requirement that an agency’s decision must be supported by
substantial evidence is not the same as a requirement that the agency provide a
citation to that evidence, and Klopp’s interpretation of the law is inconsistent with
the relevant standard of review. See, e.g., Tatum v. LIRC, 132 Wis. 2d 411, 417,
392 N.W.2d 840 (Ct. App. 1986) (“We must search the record to locate substantial
evidence supporting the agency’s decision.”). Additionally, as Koshkonong
argues, the PSC received testimony from Daniel Litchfield, the Vice President of
Renewable Development for the LLC of which Koshkonong is a subsidiary,
stating that “cost effective and technically feasible energy conservation and
efficiency options do not exist as a substitute for the Koshkonong Solar Project.”
Although Klopp challenges the PSC’s reliance on this testimony, we will not
“substitute [our] judgment for that of the agency as to the weight of the evidence.”
WIS. STAT. § 227.57(6).

¶43 Finally, Klopp argues that the Commission’s rejection of the
Danielson alternative shows that the PSC did not, as required by WIS. STAT.
§ 1.12(2), “investigate and consider the maximum conservation of energy
resources as an important factor.” Because we disagree with Klopp’s assertion
that the PSC failed to consider the Danielson alternative, we reject this argument.

IV. The circuit court did not err by failing to take judicial notice of
documents from the acquisition proceedings.

¶44 The Town argues that the circuit court erred by not taking judicial
notice of documents from the acquisition proceedings. Specifically, the Town
argues that the court was required to take judicial notice of the documents
pursuant to WIS. STAT. § 902.01, which is titled “Judicial notice of adjudicative

29
No. 2023AP2230

facts.” Section 902.01(2) states that “[a] judicially noticed fact must be one not
subject to reasonable dispute” and includes “[a] fact capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.” Pursuant to § 902.01(4), “[a] judge or court shall take judicial notice
if requested by a party and supplied with the necessary information.” Under these
provisions, the Town argues that the court was required to take judicial notice of
the documents, and that the court erred when it failed to do so.

¶45 However, as Koshkonong and the PSC argue, the circuit court did,
as stated in a written order, “take[] judicial notice that the documents presented to
the Court by Petitioner Town of Christiana reside in Commission docket 5-BS-
258.” To the extent that the Town means to argue that the court should have taken
judicial notice of particular facts contained in or evident from these documents,
the Town does not state which facts it wished to have considered or otherwise
develop its argument on appeal. Moreover, Koshkonong argues that the Town
also failed to make this argument before the circuit court in that the Town did not
identify specific information from the documents of which the Town was
requesting the circuit court take judicial notice. From our review of the record,
this appears to be true—we do not discern any specific information that the Town
sought to have the court take judicial notice of—and the Town does not respond to
Koshkonong’s argument in its reply brief, thereby conceding the issue.22 We
accordingly reject the Town’s argument without addressing it further. See Clean
Wis., 282 Wis. 2d 250, ¶180 n.40; Charolais Breeding Ranches, 90 Wis. 2d at

22
We further observe that the Town does not explain why the circuit court’s failure to
take judicial notice of documents from the acquisition proceedings would entitle it to relief on
appeal given that we are reviewing the PSC’s decision. See Sierra Club v. PSC, 2024 WI App
52, ¶10, 413 Wis. 2d 616, 12 N.W.3d 854.

30
No. 2023AP2230

108-09 (unrefuted arguments are deemed conceded); Schill v. Wisconsin Rapids
Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d 572, 786 N.W.2d 177
(explaining that issues not raised in the circuit court are forfeited, and supporting
the proposition that appellate courts generally do not address forfeited issues).

V. Engelstad has not shown that the PSC was biased.

¶46 Englestad argues that the fact that the PSC opened the docket for the
acquisition proceedings while the CPCN proceedings were pending, and before
any factfinding in the CPCN docket had occurred, “suggests an impermissible bias
in the PSC.” We reject this argument.

¶47 “Due process applies to proceedings before administrative entities.”
County of Dane v. PSC, 2022 WI 61, ¶42, 403 Wis. 2d 306, 976 N.W.2d 790. A
party’s due process rights in an administrative proceeding are violated if the party
can show a “great risk of actual bias” on the part of an administrative adjudicator.
See State v. Herrmann, 2015 WI 84, ¶40, 364 Wis. 2d 336, 867 N.W.2d 772
(quoting State v. Gudgeon, 2006 WI App 143, ¶23, 295 Wis. 2d 189, 720 N.W.2d
114). “[A]dministrative decision-makers are entitled to [a] presumption of
‘honesty and integrity’ when serving as adjudicators.” County of Dane v. PSC,
403 Wis. 2d 306, ¶45 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
However, this presumption may be overcome when the party alleging a serious
risk of actual bias shows that “a reasonable person—taking into consideration
human psychological tendencies and weaknesses—concludes that the average
judge could not be trusted to ‘hold the balance nice, clear and true’ under all the
circumstances.” Gudgeon, 295 Wis. 2d 189, ¶24. It is rare that a party can meet
this burden: only “the exceptional case with ‘extreme facts’ [will] rise[] to the
level of a ‘serious risk of actual bias.’” Miller v. Carroll, 2020 WI 56, ¶24, 392

31
No. 2023AP2230

Wis. 2d 49, (quoting Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 886-
87 (2009)).

¶48 Here, Englestad argues that the simultaneous pendency of the CPCN
and acquisition proceedings suggests an impermissible bias. Specifically,
Engelstad argues that opening the acquisition docket regarding the transfer of a
CPCN that did not yet exist “only makes sense if the PSC anticipated [that] the
CPCN would come into existence.” However, Engelstad does not support this
argument with relevant legal authority, and we disagree that, under the
circumstances here, the mere opening of the acquisition proceedings necessarily
reflects a predetermined decision that the CPCN would be granted. Moreover, it
was not until approximately one year after the PSC’s final decision in the CPCN
proceedings that the PSC issued its final decision in the acquisition proceedings.
This is not an “exceptional case with ‘extreme facts,’” Miller, 392 Wis. 2d 49,
¶24, and Englestad fails to show that the simultaneous pendency of the CPCN and
acquisition proceedings is the sort of practice that must be forbidden in order to
adequately protect due process.23

23
Engelstad also asserts, “It appears that the PSC is more properly viewed as ‘captured’
by the industry it is supposed to be regulating in the public interest.” Although Engelstad then
provides a definition of “regulatory capture,” Englestad does not otherwise develop this assertion,
and we do not address it further. See Clean Wis., Inc. v. PSC, 2005 WI 93, ¶180 n.40, 282
Wis. 2d 250, 700 N.W.2d 768.

Separately, appellants raise two other arguments that we do not address because the
appellants concede that they were forfeited. Specifically, the Town argues that the circuit court
erred when it did not reverse the PSC’s decision to grant a protective order regarding discovery
related to certain communications between Koshkonong and the Utilities. However, as
Koshkonong points out, the Town never moved the circuit court to overturn the PSC’s protective
order. The Town does not state—either in its appellant’s brief or in its reply brief in response to
Koshkonong’s argument—that it ever raised this issue in the circuit court, and we see nothing in
the record showing that it did. We therefore reject the Town’s argument as forfeited. See
Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 108-09, 279 N.W.2d 493
(Ct. App. 1979); Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d
(continued)

32
No. 2023AP2230

CONCLUSION

¶49 For the reasons stated above, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

572, 786 N.W.2d 177. Similarly, Klopp argues that the PSC violated WIS. STAT.
§ 196.491(3)(d)(6) “by ignoring affected town and village planning.” However, the PSC and
Koshkonong argue that Klopp forfeited this argument by failing to raise it before the circuit court.
In her reply brief, Klopp does not respond to the PSC’s and Koshkonong’s argument—for
example, she does not identify any point at which she made this argument before the circuit
court—and we see nothing in the record showing that she did. Although we review the PSC’s
decision and not the court’s, the reasons for the forfeiture rule—including not blindsiding the
court or opposing parties and saving judicial resources by providing an opportunity for an issue to
be resolved without an appeal—still pertain. See Townsend v. Massey, 2011 WI App 160, ¶¶25-
26, 338 Wis. 2d 114, 808 N.W.2d 155. Accordingly, we deem this argument forfeited and do not
address it. See Charolais Breeding Ranches, 90 Wis. 2d at 108-09; Schill, 327 Wis. 2d 572, ¶45
& n.21.

Finally, to the extent we have not addressed any additional arguments that any of the
appellants may mean to make, we reject them because the arguments are undeveloped, see Clean
Wisconsin, 282 Wis. 2d 250, ¶180 n.40, the arguments are unsupported by references to legal
authority, see Pettit, 171 Wis. 2d at 646, or we have decided the appeal on other dispositive
grounds, see Barrows v. American Family Insurance Co., 2014 WI App 11, ¶9, 352 Wis. 2d
436, 842 N.W.2d 508 (2013).

33