An attempt to throw out a compromise Department of Natural Resources determination of Sturgeon Bay’s west-side waterfront is being challenged by the Wisconsin Department of Justice.
The DNR issued a ruling establishing the Ordinary High Water Mark in January. That ruling restricted commercial development in a portion of the waterfront and delineated what property needs to be reserved for exclusive public use. It appeared to be a final compromise between Friends of the Sturgeon Bay Public Waterfront and the city of Sturgeon Bay.
An appeal of that ruling, called a petition for judicial review, was filed by twenty-two Sturgeon Bay area residents, including former Waterfront Redevelopment Authority and city council member Thomas “Cap” Wulf and former Door County Economic Development Director William Chaudoir. That appeal was filed on behalf of the DNR by attorneys in the Dept. Of Justice on February 22nd.
In the court filing, attorneys for the DOJ argue that the twenty-two petitioners are not legally qualified to challenge the DNR decision.
Only a “person aggrieved” may file a petition for judicial review, the DOJ brief states.
The brief also states that the twenty-two petitioners allege few facts to support their standing. They allege that the DNR’s OHWM determination will cause an “immense loss of tax revenue that would benefit the public and City of Sturgeon Bay.” That, according to lawyers for the DNR, cannot satisfy the legal requirement of proving a direct injury to the petitioners.
A message left with the attorney for the twenty-two petitioners, Brett Reetz, was not returned.
Below is the 15 page brief of the motion:
Case 2019CV000013 Document 17 Filed 02-22-2019 Page 1 of 15
FILED 02-22-2019 Door County
Clerk of Courts STATE OF WISCONSIN CIRCUIT COURT DOOR COUNTY
JOHN WIESE, THOMAS WULF, FRAN SHEFCHIK, MARK HOLDRIDGE, MIKE LANGENHORST, MARK DEPREY, CHRIS MOORE, ROBERT LOSS, JOHN YOUNT, STEWART FETT, DAVID HATCH, RICHARD JEANQUART, JIM COLLINS, PHILLIP GORDON, JOHN ASHER. JOHN BAUMGARTNER. DANIEL NESBITT, BRIAN PETERSON, JOAN WAKE, JON VANDREESE, ROBERT FISCHER, and WILLIAM CHAUDOIR,
Case No. 2019-CV-13 v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT’S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS
Respondent Wisconsin Department of Natural Resources (DNR), by its
attorneys, Attorney General Joshua L. Kaul and Assistant Attorney General Jennifer
Case 2019CV000013 Document 17 Filed 02-22-2019 Page 2 of 15
S. Limbach, submits this Brief in support of Respondent’s Motion to Dismiss the
Petition for Judicial Review on the grounds that Petitioners do not have standing to
challenge the DNR decision at issue in this case.
Petitioners are Sturgeon Bay tax-paying residents who seek to overturn
DNR’s decision determining the ordinary high-water mark (OHWM) for a parcel of
city-owned property known as “Parcel 92.” (Petition “Pet.” ¶¶1, 3, 16.) The
determination of the OHWM, specifically, the OHWM at the time Wisconsin attained
statehood in 1848, is significant because it delineates the area that the United States
transferred to the state upon statehood to be held in trust for the public as part of the
navigable waters of the state. See Doemel v. Jantz, 180 Wis. 225, 193 N.W. 393 (1923);
see also Diana Shooting Club v. Hustling, 156 Wis. 261, 145 N.W. 816 (1914); see also
Wisconsin Constitution, Article IX, § 1. A private riparian owner has only a qualified
title to the land between the OHWM and the water’s edge that is “subject to the trust
under and pursuant to which the state has title for the benefit of the public for
purposes of navigation.” Doemel, 193 N.W. at 398.
Petitioners’ Petition for Judicial Review comes after years of litigation over the
development and use of Parcel 92.1 (Pet. ¶¶10–13.) Petitioners were not parties to the
1 See Friends of the Sturgeon Bay Public Waterfront, et al. v. City of Sturgeon Bay, et al., Door County Case No. 16CV23, currently stayed on appeal as 17AP800 pending the resolution of administrative proceedings and administrative agency review proceedings (Plaintiffs’ suit to enjoin City from selling Parcel 92 to Sawyer Hotel Development, LLC, for private hotel development); Sawyer Hotel Development, LLC v. City of Sturgeon Bay, Door County Case No. 17CV167, removed to the Wisconsin Eastern District Court as 1:2017cv01631, dismissed by stipulation on December 26, 2018; Sawyer Hotel Development, LLC v. City of Sturgeon Bay, Door County Case No. 17CV194, dismissed by stipulation on December 21, 2018; City of Sturgeon Bay v. Wisconsin Department of Natural Resources, Door County Case No. 18CV36, dismissed by stipulation on June 8, 2018 (City of Sturgeon Bay’s
Case 2019CV000013 Document 17 Filed 02-22-2019 Page 3 of 15
earlier litigation.2 They intervene now on DNR’s ruling determining the OHWM for
Parcel 92. Petitioners allege standing as tax-paying residents who might benefit from
potentially increased city tax revenue if DHR’s OHWM determination did not
functionally block the private development of a hotel on Parcel 92.3 (See Pet., ¶¶ 1–
2, 9–10, 58–59).
Despite the lengthy history of litigation concerning the potential development
of Parcel 92, this Petition for Judicial Review should be dismissed without reaching
the merits of the Petition because Petitioners lack standing. Only a “person
aggrieved” may file a petition for judicial review of an agency decision. Wis. Stat.
§ 227.53. Anyone filing a petition for judicial review must satisfy both parts of a
two- part test for standing to meet the definition of a person aggrieved. Wis.’s Envtl.
Decade, Inc. v. PSC, 69 Wis. 2d 1, 230 N.W.2d 243 (1975). The Petitioners have not
alleged facts sufficient to satisfy the standing test. Therefore, their Petition should
petition for judicial review of DNR’s February 5, 2018 OHWM determination for Parcel 92); and Friends of the Sturgeon Bay Public Waterfront, et al. v. Wisconsin Department of Natural Resources, Door County Case No. 18CV38, dismissed by stipulation on June 8, 2018 (Friends’ petition for judicial review of DNR’s February 5, 2018 OHWM determination for Parcel 92.) 2 See Fn. 1 3 See Friends of the Sturgeon Bay Public Waterfront, et al. v. City of Sturgeon Bay, et al., Door County Case 16CV23; see specifically Defendants-Appellants’ Appellate Brief, in which Defendants characterize the Nature of the Case as one to “oppose the sale by [the City of Sturgeon Bay and the Waterfront Redevelopment Authority of the City of Sturgeon Bay of Parcel 92] to Sawyer Hotel Development, LLC for the development of a privately-owned hotel.” Brief available publicly at: https://acefiling.wicourts.gov/documents/show_any_doc?appId=wscca&docSource=EFile&p%5bcaseN o%5d=2017AP000800&p%5bdocId%5d=193821&p%5beventSeqNo%5d=12&p%5bsectionNo%5d=1
Case 2019CV000013 Document 17 Filed 02-22-2019 Page 4 of 15
On January 3, 2019, DNR issued a ruling determining the location of the
OHWM on Parcel 92, a parcel of land located at 92 East Maple Street in the City of
Sturgeon Bay. (Pet. ¶¶3, 17; Pet. Ex. A.) Parcel 92 is owned by the City of Sturgeon
Bay (“City”). (Pet. ¶3.) Parcel 92 does not abut the waterfront but is located near the
waterfront. (Pet. ¶8; Pet. Ex. A p.9.) Parcel 92 sits atop fill material that was added
to the Sturgeon Bay shoreline beginning in the 1870’s and continuing through the
early 1900’s. (Pet. ¶7.) Since filling the shoreline, Parcel 92 has been used for mills,
docks, and warehouses. (Pet. ¶7.) This history of filling and commercial development
has largely obscured or even destroyed the biological and physical indicators
traditionally relied upon to determine the OHWM. (Pet. ¶¶25–29; Pet. Ex. A p.2.)
Litigation over the use of Parcel 92 began in 2016 after the City sought to sell
it for private commercial development. (Pet. ¶¶9–10; See also Fns. 1, 3.) The trial
court enjoined the sale of Parcel 92 until after an OHWM was determined, leading
multiple parties to petition DNR to make this determination. (Pet. ¶¶10–11.)
Petitioners were not parties to the litigation or the petitions to determine the OHWM.
(See Fn. 1); (see also Pet. ¶11.)
DNR conducted a public hearing on the petition before it issued its first ruling
determining the OHWM on February 5, 2018. (Pet. ¶12.) None of the Petitioners
appeared at the public hearing. (Pet. Ex. A p.12-14.) Both the City and the Friends of
the Sturgeon Bay Public Waterfront (“Friends”) filed petitions for judicial review of
this decision. (Pet. ¶13.) After these petitions were filed, DNR determined the
Case 2019CV000013 Document 17 Filed 02-22-2019 Page 5 of 15
meander line staked and mapped as part of the 1835 original U.S. Government
Survey had been inaccurately transposed onto the 2014 base map created by the
Board of Commissioners of Public Lands that DNR had relied upon to help determine
the location of the OHWM. (Pet. Ex. A p.2–3.) Since the 1835 meander line had been
inaccurately transposed onto the 2014 map, and DNR had relied on the inaccurately
transposed meander line when mapping the DNR’s OHWM, DNR subsequently
withdrew its February 5, 2018 ruling. (Pet. ¶14; Pet. Ex. A p.2.) The City and the
Friends negotiated and reached an agreement that the OHWM should follow the
meander line found on the 1835 map of the area that had been created as part of the
original U.S. Government survey. (Pet. ¶15; Pet. Ex. A p.2.) DNR later issued its
January 3, 2019 ruling, declaring the OHWM to follow the 1835 meander line.
(Pet. ¶¶15, 18.)
Petitioners filed their Petition for Judicial Review pursuant to Wis. Stats.
§§ 227.52 and 227.53 on February 1, 2019, seeking review of DNR’s January 3, 2019
ruling declaring the location of the OHWM.
A motion to dismiss a petition for judicial review generally raises matters
outside the record created in the agency proceeding. State of Wisconsin ex rel. Town
of Delevan v. Circuit Court for Walworth County, 167 Wis. 2d 719, 726, 482 N.W.2d
899 (1992) (quoting Wis. Environmental Decade v. Public Service Comm., 79 Wis. 2d
161, 171–172, 255 N.W.2d 917 (1977)). However, as these matters do not go to the
merits of a case, a motion to dismiss a petition for judicial review does not conflict
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with Ch. 227, and the circuit court may adjudicate the motion to dismiss. Id. at 726–
727. The circuit court therefore uses the traditional legal standard to evaluate a
motion to dismiss.
Wisconsin follows the legal standard for motions to dismiss articulated by the
United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
See Data Key Partners v. Permira Advisers, LLC, 2014 WI 86, ¶¶30–31, 356 Wis. 2d
665, 849 N.W.2d 693. On a motion to dismiss, the court accepts all well-pled facts as
true. Data Key, 2014 WI at ¶19. Although the court may accept as true reasonable
inferences from well-pled facts, the court may not add facts not pled. Id. Additionally,
courts are not bound to accept as true legal conclusions couched as factual allegations.
Id. at ¶21. See also, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Bare legal
conclusions...provide no assistance in warding off a motion to dismiss.” Id.
Petitioners’ allegations concerning their standing to file this Petition are
evaluated under this standard. Therefore, the Court should treat their allegations
concerning their standing as the court would treat allegations in a complaint on this
Motion to Dismiss: the Court should accept well-pled facts and the reasonable
inferences that follow. However, the Court may not add facts to the Petition. The
Court should also reject any merely conclusory allegations.
Only a “person aggrieved” by an administrative decision is authorized to seek
judicial review of that decision. Wis. Stats. §§ 227.52 and 227.53; see also Wis.’s Envtl.
Decade, Inc., 69 Wis. 2d at 9, (Wis. Stats. §§ 227.15 and 227.16 as cited in that decision
Case 2019CV000013 Document 17 Filed 02-22-2019 Page 7 of 15
later renumbered to §§ 227.52 and 227.53(1)). A “person aggrieved” is “a person or
agency whose substantial interests are adversely affected by a determination of an
agency.” Wis. Stat. § 227.01(9). Petitioners must show that they are persons
aggrieved as defined in Wis. Stat. § 227.01(9) to maintain their action.
Wisconsin courts have established a two-step standing test to determine
whether a petitioner is a person aggrieved. Wis.’s Envtl. Decade, 69 Wis. 2d at 10.
“The first step under the Wisconsin rule is to ascertain whether the decision of the
agency directly causes injury to the interest of the petitioner. The second step is to
determine whether the interest asserted is recognized by law.” Id. The petition must
on its face demonstrate that Petitioners fulfill each of these steps. See, e.g., Wis. Stat.
§ 227.56(3) (“[A]ny respondent...may move to dismiss the petition as filed upon the
ground that such petition, upon its face, does not state facts sufficient to show that
the petitioner named therein is a person aggrieved by the decision sought to be
reviewed.” (emphasis added)); Wis.’s Envtl. Decade, 69 Wis. 2d at 14–15 (stating
“strong argument” in petitioners’ brief was insufficient to raise public trust doctrine
for standing when “the petition does not raise the issue on its face.”)
Petitioners allege few facts to support their standing. They allege that they are
“tax paying adult citizens of the City of Sturgeon Bay.” (Pet. ¶1.) Petitioners also
allege that DNR’s OHWM determination will cause an “immense loss of tax revenue
that would benefit the public and the City of Sturgeon Bay...” (Pet. ¶59.) Petitioners
do not allege that DNR’s determination will cause them a direct pecuniary loss. The
only reasonable inference that can be drawn from Petitioners’ allegations is that, due
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to the OHWM determination, the City stands to gain less tax revenue4, which could
conceivably be used for works and services benefitting all City residents, or at least a
subsection of residents that includes Petitioners.
This Court may not consider Petitioners’ allegation that they “have standing”
because it is strictly a legal conclusion. Petitioners allege: “the taxpayer Petitioners
have standing to petition this Honorable Court pursuant to Wis. Stats. § 227.52,”
followed by a recitation of the statute. This allegation includes no factual assertions;
it is clearly conclusory and insufficient to establish standing. This Court must
therefore evaluate Petitioners’ standing solely on their allegation that they as tax-
paying residents might gain fewer city-funded benefits due to DNR’s determination.
I. Petitioners cannot satisfy step one of the standing test, the direct injury requirement, because they can only allege a hypothetical or conjectural injury.
Part one of the test for standing, the direct injury requirement, requires
petitioners to show an actual injury caused by the agency action. “Abstract injury is
not enough. The plaintiff must show that he ‘has sustained or is immediately in
danger of sustaining some direct injury’ as the result of the challenged official conduct
and the injury or threat of injury must be both ‘real and immediate’, not ‘conjectural’
or ‘hypothetical.’” Los Angeles v. Lyons, 461 U.S. 95, 101–102 (1983). The Wisconsin
Supreme Court echoed this actual injury requirement and further explained the
4 Petitioners allege that the City will lose tax revenue, but as Petitioners also acknowledge, Parcel 92 is a “blighted” parcel currently owned by the City and, therefore, is not generating any tax revenue (Pet. ¶¶3, 8.) The reasonable interpretation of their allegations is that the City will not lose tax revenue compared to the status quo but could gain less than it might have under an OHWM more favorable to Petitioners’ position if and when Parcel 92 is sold to a private, tax-paying owner.
Case 2019CV000013 Document 17 Filed 02-22-2019 Page 9 of 15
requirement that petitioners show a causal nexus between the official act and alleged
injury: “the injury must not be so far removed from the cause as to be merely
hypothetical or conjectural.” Fox v. DHSS, 112 Wis. 2d 514, 532, 334 N.W. 2d 532
(1983). Although the injury alleged may be remote in time or may occur only “as an
end result of a sequence of events set in motion by the agency action challenged,” that
sequence of events “cannot be so ‘conjectural or hypothetical’ as to strain the
imagination.” Id. at 527 (quoting Lyons, 461 U.S. at 101–102).
In Fox, the court considered whether petitioners, a Milwaukee County district
attorney and relatives of inmates in the Wisconsin prison system, had standing to
challenge the adequacy of a Final Environmental Impact Statement (FEIS)
completed in association with constructing a new prison in Portage, Wisconsin, which
would house inmates then incarcerated in other facilities. Fox, 112 Wis. 2d 514.
Applying the first step of the test for standing, the court considered “whether the
decision of the agency directly cause[d] injury to the interest of the petitioner.” Id. at
524. The court concluded that the petitioners had not met the direct injury
requirement because they failed to show an actual, rather than a hypothetical or
conjectural, injury. Id. at 526.
The petitioners in Fox alleged that DHSS’s action would injure them because
it would likely increase the crime rate in Milwaukee County. Explaining the sequence
of events leading to their injury, they alleged that, “placing a prison in Portage will
disrupt the lives of inmates from Milwaukee in the institution because they will be
farther away from their families making visitation more difficult.” Id. at 526. The
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disruption to the prisoners’ lives would allegedly lead to greater recidivism, which
would in turn increase the crime rate in Milwaukee County. Id.
The court concluded that these allegations did not meet the direct injury
requirement. Id. at 527. The court pointed out that the injuries alleged were several
steps removed from their supposed cause, an insufficient FEIS. The petitioners’
allegations required the court to assume that, after an inadequate FEIS allowed a
prison to be built in Portage, those prisoners moved from Milwaukee to Portage would
have fewer visits from friends and family. Id. at 526. The court next had to assume
that those prisoners would consequently suffer such great psychological damage that
they would, upon release, return to Milwaukee County and be more likely to return
to crime, thereby raising the crime rate in Milwaukee County. Id. at 526–527.
Petitioners presumed that an increased crime rate constituted an injury, though they
did not explain exactly how a higher crime rate would impact their lives. The court
acknowledged that a petitioner could allege a sequence of events between cause and
injury and still satisfy the direct injury requirement. Id. at 526–528. However,
because the injuries alleged were so far removed from the agency action as to be
conjectural, they were “too remote to be considered ‘direct injury.’” Id. The court
therefore dismissed petitioners’ claims. Id.
Petitioners to this case cannot satisfy the direct injury requirement.
Petitioners allege a merely hypothetical or conjectural injury: the loss of benefits
funded by additional tax revenue the City might collect from Parcel 92. Recall first
that Petitioners are not alleging a decrease to the City’s current tax revenue because
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Parcel 92 is a city-owned lot and, therefore, it is not generating any tax revenue.
Instead they are claiming that the eventual sale and development of Parcel 92 will
yield less city tax revenue than it might if the OHWM did not apply to Parcel 92.
Petitioners’ claims, like those in Fox, rely on a sequence of increasingly
speculative assumptions. Even if the OHWM determination does decrease the
additional tax revenue the City someday gains from Parcel 92, this Court will have
to assume that the difference in tax revenue will alter City spending decisions in a
manner that directly impacts Petitioners.
This is not only a strained assumption, but likely, an erroneous one. Petitioners
implicitly ask the Court to assume that each additional dollar of city tax revenue
benefits all residents equally. The reality is much more complicated. A city may
sponsor public works, such as a park, a library, or children’s recreational programs.
Although these works may be available to all residents, some simply might not use
the park or the library. Residents without children might have no use for child-
focused programming. Accordingly, residents who do not use a program are not
injured if the city removes a program or, as here, never offers it to begin with. A city
might also make spending decisions that have very little, if any, direct impact on
residents’ lives. If, for example, the difference in tax revenue causes the City to decide
to upgrade its vehicle fleet rather than repair a municipal building, Petitioners would
have to strain the imagination to argue that each of them has been injured by the
deferred building maintenance.
Case 2019CV000013 Document 17 Filed 02-22-2019 Page 12 of 15
Petitioners’ alleged injury can only be conjectural. Petitioners are in no
position to predict if or how the City’s spending decisions will affect them.
Furthermore, the Court would have to strain the imagination to be reasonably
assured that these specific residents would all suffer injury due to an unknown
difference in future tax revenue. Petitioners cannot, therefore, satisfy the direct
injury requirement. Because the two-step standing test requires that Petitioners
satisfy both steps, the Court should dismiss the Petition.
II. Petitioners fail to identify a single law that DNR violated, and therefore, the Court cannot find that Petitioners fulfil step two of the standing test.
Step two of the standing test requires that the alleged direct injury be “of a
type recognized, regulated, or sought to be protected by the challenged law.” Waste
Mgmt. of Wis. Inc. v. DNR, 144 Wis. 2d 499, 506, 424 N.W.2d 685 (1988). Petitioners
fail to identify in their Petition for Judicial Review a specific statute or rule that DNR
allegedly violated, and therefore, the Court cannot conduct the analysis required in
step two of the standing test. The Court can only conclude that Petitioners lack
standing and should dismiss their Petition for Judicial Review.
Step two of the standing test requires the court to determine whether the
injuries alleged by the petitioner are within the zone of interests protected by
applicable law. Wis.’s Envtl. Decade, 69 Wis. 2d at 10. As part of this step, the court
must “examine a specific statute to determine standing rather than consider all
interests of the petitioner.” MCI Telecomms. Corp. v. PSC, 164 Wis. 2d 489, 493, 476
N.W.2d 575 (Ct. App. 1991). For example, in Waste Management, 144 Wis. 2d at 508–
Case 2019CV000013 Document 17 Filed 02-22-2019 Page 13 of 15
509, the court held that the alleged economic injuries of a landfill competitor were not
within the zone of interests protected by a statute governing landfill siting. The court
examined the statute in issue, Wis. Stat. § 144.44, and determined that, “[t]he nature
of the statute...make[s] clear that the interest protected, recognized, or regulated by
the law is an environmental interest,” specifically “the appropriate ultimate
disposition of solid waste in a densely populated eight-county corner of the state.”
Waste Management, 144 Wis. 2d at 508. The landfill competitor’s alleged economic
injuries were not within the zone of environmental interest protected by Wis. Stat.
§ 144.44 and therefore the landfill competitor did not have standing to challenge
DNR’s decision as violating Wis. Stat. § 144.44. Waste Management, 144 Wis. 2d at
Petitioners do not identify a single specific statute or rule in the Petition for
Judicial Review that DNR allegedly violated. Their claims that DNR violated
procedural requirements contained in Ch. 227 miss the mark. Petitioners allege a
violation of only one statute, Wis. Stat. § 227.57(6).5 Wisconsin Stat. § 227.57(6) does
not protect substantive interests like the statute considered in Waste Management.
It is instead a statute that defines the scope of review of an agency decision. See Wis.
5 Petitioners’ header reads “Wis. Stats. § 227.57(1) requires OHWM 2019 to be set aside.” (Pet. p.10.) However, this is likely a typographical error because Petitioners later cite and quote Wis. Stat. § 227.57(6). The argument that follows also aligns with Wis. Stat. § 227.57(6) rather than Wis. Stat. § 227.57(1), which merely confines the scope of review to the record except in defined circumstances.
Case 2019CV000013 Document 17 Filed 02-22-2019 Page 14 of 15
Furthermore, Wis. Stat. § 227.57(6) does not apply to DNR’s OHWM
determination. The statute only applies to decisions reached in contested case
If the agency's action depends on any fact found by the agency in a contested case proceeding, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record.
Wis. Stat. § 227.57(6) (emphasis added). There was no contested case proceeding in
this matter. A contested case proceeding is a specific procedure defined by statute:
“Contested case” means an agency proceeding in which the assertion by one party of any substantial interest is denied or controverted by another party and in which, after a hearing required by law, a substantial interest of a party is determined or adversely affected by a decision or order.
Wis. Stat. § 227.01(3). The only hearing held before DNR issued its ruling was an
informational hearing. (Pet. ¶12; Pet. Ex. A p.6–7.) This informational hearing does
not meet the definition of a contested case hearing before an administrative law
judge. It was not a hearing in which the agency determined interests “denied or
controverted by another party.” Rather, it was a “public hearing to receive comments,
provide information and respond to clarifying questions regarding the location of the
OHWM of Sturgeon Bay at...Parcel 92...” (Pet. Ex. A p. 6–7.) DNR, therefore, cannot
have committed a violation of Wis. Stat. § 227.57(6), the only statutory violation
alleged by Petitioners, and this Court cannot begin to analyze whether this statute
would have protected Petitioners’ alleged interests. Consequently, Petitioners cannot
satisfy step two of the standing test, and their Petition for Judicial Review must be
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Petitioners cannot meet their burden to satisfy both parts of the two-step
standing test. Respondent respectfully requests that the Court grant its Motion to
Dismiss the Petition for Judicial Review because Petitioners lack standing under Wis.
Stat. §§ 227.52 and 227.53(1).
Dated this 22nd day of February, 2019.
JOSHUA L. KAUL Attorney General of Wisconsin
Electronically signed by:
s/ Jennifer S. Limbach JENNIFER S. LIMBACH Assistant Attorney General State Bar #1089184
Attorneys for Respondent Wisconsin Department of Natural Resources
Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-8940 (608) 267-2778 (Fax) firstname.lastname@example.org