Friends of the Black River Forest v. DNR

2022 WI 52

SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP299 & 2019AP534

COMPLETE TITLE: Friends of the Black River Forest and Claudia
Bricks,
Petitioners-Appellants,
v.
Kohler Company,
Intervenor-Respondent-Petitioner,
Wisconsin Department of Natural Resources and
Natural Resources Board,
Respondents-Respondents-Cross
Petitioners.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 394 Wis. 2d 523, 950 N.W.2d 685
(2020 – unpublished)

OPINION FILED: June 30, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 1, 2021

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sheboygan & Dane
JUDGE: Edward L. Stengel & Stephen E. Ehlke

JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN,
JJ., joined. HAGEDORN, J., filed a concurring opinion. KAROFSKY,
J., filed a dissenting opinion, in which ANN WALSH BRADLEY and
DALLET, JJ., joined.
NOT PARTICIPATING:

ATTORNEYS:

For the intervenor-respondent-petitioner, there were briefs
filed by Deborah C. Tomczyk, Jessica Hutson Polakowski, Monica
A. Mark, and Reinhart Boerner Van Deuren S.C., Madison. There
was an oral argument by Eric A. Shumsky.
 For the respondents-respondents-cross-petitioners, there
were briefs filed by Gabe Johnson-Karp, assistant attorney
general, with whom on the briefs was Joshua L. Kaul, attorney
general. There was an oral argument by Gabe Johnson-Karp.

For the petitioners-appellants, there was a brief filed by
Christa O. Westerberg, Leslie A. Freehil, Aaron G. Dumas and
Pines Bach LLP, Madison. There was an oral argument by Christa O
Westerberg.

Amicus curiae briefs were filed by Katie Nekola and Evan
Feinauer for Clean Wisconsin, Inc.

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 2022 WI 52
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP299 & 2019AP534
(L.C. No. 2018CV178 & 2018CV2301)

STATE OF WISCONSIN : IN SUPREME COURT

Friends of the Black River Forest and Claudia
Bricks,

Petitioners-Appellants,

v.
FILED
Kohler Company,
JUN 30, 2022
Intervenor-Respondent-Petitioner,
Sheila T. Reiff
Wisconsin Department of Natural Resources and Clerk of Supreme Court
Natural Resources Board,

Respondents-Respondents-Cross

Petitioners.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN,
JJ., joined. HAGEDORN, J., filed a concurring opinion. KAROFSKY,
J., filed a dissenting opinion, in which ANN WALSH BRADLEY and
DALLET, JJ., joined.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 REBECCA GRASSL BRADLEY, J. Kohler Company (Kohler),
the Natural Resources Board (the Board), and the Department of
 No. 2019AP299 & 2019AP534

Natural Resources (the Department) seek review of a court of

appeals decision1 reversing orders of the circuit court for

Sheboygan and Dane Counties dismissing challenges by the Friends

of the Black River Forest and Claudia Bricks (collectively, the

Friends) to a land exchange between Kohler and the Department.2

Kohler asserts the Friends do not have standing to challenge the

Board's land swap decision under Wis. Stat. §§ 227.52 and 227.53

(2017–18)3 because their alleged injuries satisfy neither the

"injury-in-fact" nor the "zone of interests" elements of the

two-part standing analysis, both of which must be satisfied in

order to establish standing. Kohler claims the court of appeals

decision unlawfully expanded the zone, opening the door to

challenges of any agency decision related to the management of

state-owned lands. The Department separately contends the

Friends lack standing under the "zone of interests" prong.

¶2 We hold the Friends lack standing to challenge the

land transfer decision. We assume without deciding that the

Friends allege sufficient injuries under the "injury-in-fact"
element of the standing test. While historically we have

labeled the second prong of the test as a "zone of interests"

1 Friends of the Black River Forest v. DNR, Nos. 2019AP299 &
2019AP534, unpublished slip op. (Wis. Ct. App. Sept. 15, 2020)
(per curiam).
2 The Honorable L. Edward Stengel, Sheboygan County Circuit
Court, and the Honorable Stephen E. Ehlke, Dane County Circuit
Court, presided.
3 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.

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 No. 2019AP299 & 2019AP534

inquiry in line with federal standing principles, this

nomenclature has no basis in the text of Wis. Stat. §§ 227.52 or

227.534 and does not accurately describe the test we have

consistently applied. We ground our decision instead in our

well-established formulation for standing to challenge

administrative decisions, which requires the alleged injury to

adversely affect "an interest which the law recognizes or seeks

to regulate or protect." Waste Mgmt. of Wis., Inc. v. DNR, 144

Wis. 2d 499, 505, 424 N.W.2d 685 (1988); see also Foley-

Ciccantelli v. Bishop's Grove Condominium Ass'n, Inc., 2011 WI

4 Evidently dissatisfied with the outcome in this case,
Justice Karofsky launches a diatribe against textualism.
Dissent, ¶¶71-73. Justice Karofsky mimics Justice Dallet's
disparagement of textualism and the canons of statutory
construction the approach employs as comprising "'a rhetorical
smokescreen' obscuring a result-oriented analysis." Id., ¶73;
James v. Heinrich, 2021 WI 58, ¶23 n.12, 397 Wis. 2d 517, 960
N.W.2d 350. Like Justice Dallet, Justice Karofsky fundamentally
"misunderstands how to interpret legal texts." James, 397
Wis. 2d 517, ¶23 n.12. Justice Karofsky thinks textualism means
judges "[j]ust read and apply the law as written. Simple,
right?" Dissent, ¶72. Justice Karofsky's conception of
textualism is uninformed. "[N]either written words nor the
sounds that the written words represent have any inherent
meaning. Nothing but conventions and contexts cause a symbol or
sound to convey a particular idea." James, 397 Wis. 2d 517, ¶23
n.12 (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts xxvii (2012)). Textualism and the
canons which guide its application "represent 'a generally
agreed-on approach to the interpretation of legal texts.'"
Id. (quoting Scalia & Garner, supra, at xxvii).
Justice Karofsky's "marginalization of their role flies in the
face of centuries of jurisprudence and her proffered method of
statutory interpretation falls on the fringes of acceptable
approaches, far outside of the judicial mainstream." Id.
"'[L]egislators enact; judges interpret' and the canons simply
'explain how [judges] should perform this task.'" Id. (quoting
Scalia & Garner, supra, at xxx).

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36, ¶55, 333 Wis. 2d 402, 797 N.W.2d 789 (lead opinion) ("[T]he

question is whether the party's asserted injury is to an

interest protected by a statutory or constitutional

provision."); Fox v. DHSS, 112 Wis. 2d 514, 529, 334 N.W.2d 532

(1983) ("[T]he injury must be to a legally protected

interest.").

¶3 The Friends alleged injuries resulting from the

Board's land swap decision under several statutes and

regulations, arguing the interests harmed fall within the zone

of interests protected or regulated by these laws. We disagree.

None of the statutes or regulations cited protect any legally

protected, recognized, or regulated interests of the Friends

that would permit them to challenge the Board's decision as

"person[s] aggrieved." Accordingly, we reverse the court of

appeals.

I. BACKGROUND

A. The Land Swap Decision

¶4 Kohler-Andrae State Park (the Park), located on the
Lake Michigan shoreline in Sheboygan County, borders private

land owned by Kohler. In 2014, Kohler revealed plans to build

an 18-hole golf course, which has since become the subject of

numerous lawsuits, including this one.5 In June 2017, the

Department initiated a master planning process to consider

See Friends of the Black River Forest v. DNR, 2021 WI App
5

54, 964 N.W.2d 342; Kohler Co. v. DNR, No. 2021AP1187 (Wis. Ct.
App., Filed July 12, 2021); Friends of the Black River Forest v.
DNR, No. 2019CV000080 (Wis. Cir. Ct. Sheboygan Cnty., Filed Feb.
8, 2019).

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 No. 2019AP299 & 2019AP534

Kohler's request to use Park land for the proposed golf course.

As part of this process, on February 16, 2018 the Department

recommended a land exchange agreement with Kohler, seeking

approvals from both the Board and the governor.

¶5 At its next meeting later that month and following

public comment, the Board first determined that a 4.59-acre

parcel of upland woodland within the Park was "not being used

for any park functions" and was no longer needed for the state's

use for conservation purposes and therefore removed it from Park

boundaries. The Board next approved an agreement between the

Department and Kohler for a land exchange, under which the

Department would transfer the 4.59 acres to Kohler, in addition

to a 1.88-acre easement, in exchange for 9.5 acres of Kohler

land——including upland woodland, crop land, and a building——

straddling the boundary of the Park. Kohler planned to use the

4.59 acres for a maintenance facility and parking area, and the

easement for public access to the golf course. The agreement

required "[r]estrictions placed on the deed transferring title
to Kohler" in order to "ensure that" the transferred land "is

adequately landscaped and screened, that its use will not

compromise park aesthetics, and that its proposed future use

will be compatible with adjacent park uses."

B. The Friends' Amended Petition and Circuit Court Proceedings

¶6 The Friends filed a Wis. Stat. ch. 227 petition in

Sheboygan County Circuit Court seeking review of the Board's

February 28, 2018 "vote to convey 4.89 acres of land within
Kohler-Andrae State Park to Kohler Co., as well as a 1.88 acre
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 No. 2019AP299 & 2019AP534

easement."6 Kohler intervened and filed a motion to dismiss

under Wis. Stat. § 227.56(3), arguing that the Friends were not

an "aggrieved" party because, as relevant here, they failed to

satisfy both the "injury in fact" and "zone of interest" prongs

of the test for Chapter 227 standing. The Friends filed an

Amended Petition, identifying the following alleged injuries

from the land exchange:

24. Petitioners are aggrieved by the Respondents'
decisions to approve the land transaction. The
Respondents' decision permanently eliminates
Petitioners' opportunity to use land within Kohler
Andrae State Park currently available to the public
for recreation and enjoyment, which members of FBRF
such as Ms. Felde and Ms. Bricks have used and enjoyed
previously, and would continue to use and enjoy but
for Respondents' decision.

25. The Respondents' decision will also reduce
habitat for and populations of plants, birds, and
animals that are currently enjoyed by FBRF members
such as Ms. Felde, as well as Ms. Bricks, harming
their ability to observe wildlife and study nature in
and around the park.

26. The Respondents' decision will impact and reduce
enjoyment of other resources used by FBRF members such
as Ms. Felde, as well as Ms. Bricks, including areas
of the park adjacent to the proposed road and
maintenance facility. Construction of Kohler Co.'s
facility will harm the aesthetics of these adjacent

6 The Friends also filed a common law certiorari action in
Dane County Circuit Court against the Board, challenging the
same land swap decision. Kohler and the Board moved to dismiss.
The Dane County Circuit Court dismissed the complaint under Wis.
Stat. § 802.06(2)(a)10. This case was consolidated with the
Sheboygan County case on appeal, and the court of appeals
reversed and remanded the Dane County Circuit Court's decision,
concluding it erred in dismissing the complaint. Friends of the
Black River Forest, Nos. 2019AP299 & 2019AP534, at ¶3.

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 No. 2019AP299 & 2019AP534

areas and impair Petitioners' use and enjoyment of the
areas for recreation and conservation.

27. FBRF and its members, including Ms. Felde and Ms.
Bricks, will be affected by increased traffic and
noise caused in and around the park by the
Respondents' decision, as Kohler Co.'s project is
constructed and operated.

28. FBRF and its members, including Ms. Felde and Ms.
Bricks, are also interested in the Respondents
following required procedures for state park planning
that ensure uses in the park are properly classified
to avoid user conflicts and preserve recreational and
scenic qualities, and are aggrieved by the
Respondents' decision to follow procedures in this
case.
¶7 The Sheboygan County Circuit Court determined the

Friends lacked standing because the alleged injuries did not

flow directly from the land swap decision and accordingly

granted Kohler's motion to dismiss. Reasoning that "[t]he land

swap agreement does not clear the way for the immediate

construction of the proposed golf course or any other

structures," the circuit court concluded the Friends failed to

meet the first element of the two-part test establishing that

they were aggrieved because none of the alleged injuries were a

direct consequence of the land transfer. Consequently, the

court did not address the "zone of interests" element of the

standing analysis.

C. The Court of Appeals' Decision

¶8 The court of appeals, in an unpublished, per curiam

opinion, reversed and remanded the decision of the Sheboygan

County Circuit Court and held that the Friends alleged
sufficient injuries to satisfy standing under Wis. Stat.

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 No. 2019AP299 & 2019AP534

§§ 227.52 and 227.53. Friends of the Black River Forest v. DNR,

Nos. 2019AP299 & 2019AP534, unpublished slip op., ¶3 (Wis. Ct.

App. Sept. 15, 2020) (per curiam). That court determined the

alleged injuries included "recreational, aesthetic, and

conservational injuries caused by the land exchange." Id., ¶17.

Looking "beyond the land exchange to the sequence of events that

has been set in motion," including Kohler's desired end result

of the construction of the golf course, the court of appeals

determined the Friends' alleged injuries were neither

hypothetical nor conjectural, and had a close causal

relationship "to a change in the physical environment

precipitated by the land exchange," satisfying the first element

of the standing inquiry. Id., ¶¶19–27.

¶9 The court of appeals also concluded the Friends

satisfied the "zone of interests" prong by alleging injuries to

interests recognized by law, including Wis. Stat. §§ 23.11,

23.15, 27.01(1), and Wis. Admin. Code chs. NR 1 & 44. Id.,

¶¶28–32. Kohler petitioned for review, the Department cross-
petitioned, and we granted both petitions.

II. STANDARD OF REVIEW

¶10 "Whether a party has standing is a question of law

that we review independently." City of Mayville v. DOA, 2021 WI

57, ¶15, 397 Wis. 2d 496, 960 N.W.2d 416 (citing Marx v. Morris,

2019 WI 34, ¶21, 386 Wis. 2d 122, 925 N.W.2d 112). In reviewing

a motion to dismiss a petition seeking judicial review of an

agency decision, we determine "whether a petition on its face
states 'facts sufficient to show that the petitioner named
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 No. 2019AP299 & 2019AP534

therein is aggrieved . . . by the decision sought to be

reviewed.'" Wisconsin's Env't Decade, Inc. v. Pub. Serv. Comm'n

of Wis. (WED I), 69 Wis. 2d 1, 8, 230 N.W.2d 243 (1975).

¶11 On review of a motion to dismiss for lack of standing,

the court must "take all facts alleged by [the petitioner] to be

true in determining whether he has standing to bring his claim."

McConkey v. Van Hollen, 2010 WI 57, ¶14 n.5, 326 Wis. 2d 1, 783

N.W.2d 855 (citing Repetti v. Sysco Corp., 2007 WI App 49, ¶2,

300 Wis. 2d 568, 730 N.W.2d 189). In evaluating a Wis. Stat.

ch. 227 motion to dismiss, we apply "the rules that the

allegations of the petition are assumed to be true; that the

allegations are entitled to a liberal construction in favor of

the petitioner; and that this court is not concerned with the

ability of the petitioner to prove the facts alleged at trial."

WED I, 69 Wis. 2d at 8–9.

III. DISCUSSION

¶12 Because Wisconsin's current standing analysis is

derived from federal standing principles, we begin there. We
then discuss the principles of standing under Wisconsin law,

including the two prongs of the standing test in the context of

a petition for judicial review under Wis. Stat. ch. 227. Next,

we explain how the "zone of interests" prong represents an

improper departure from Wisconsin standing principles and a

misnomer in the context of our well-established test. Finally,

assuming without deciding that the Friends' injuries satisfy the

"injury-in-fact" prong of the standing test, we conclude none of
the statutes or regulations cited by the Friends "recognize[] or
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 No. 2019AP299 & 2019AP534

seek[] to regulate or protect" the Friends' asserted interests.

Waste Mgmt., 144 Wis. 2d at 505. Accordingly, for purposes of

standing, the Friends fail to establish they are "person[s]

aggrieved" within the meaning of Wis. Stat. §§ 227.52,

227.53(1), and 227.01(9), whose "substantial interests are

adversely affected by a determination of" the Board.

A. Federal Standing Principles

¶13 In federal court, "[t]here are two concepts of

standing." See, e.g., MainStreet Org. of Realtors v. Calumet

City, 505 F.3d 742, 744 (7th Cir. 2007). "There is Article III

standing, which requires just an injury in fact, and

'prudential' standing, a more complex, judge-made concept of

standing. . . . This doctrine precludes the federal courts from

exercising jurisdiction over some types of case[s] that Article

III would not forbid the courts to adjudicate." Id. at 744–45.

Under the "irreducible constitutional minimum of standing"

identified by federal courts, a plaintiff "must have suffered or

be imminently threatened with a concrete and particularized
'injury in fact' that is fairly traceable to the challenged

action of the defendant and likely to be redressed by a

favorable judicial decision." Lexmark Int'l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 125 (2014) (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); see

also Bank of America Corp. v. City of Miami, 137 S. Ct. 1296,

1302 (2017). This standing threshold arises from Article III,

which limits the jurisdiction of federal courts to "cases" or

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"controversies." McConkey, 326 Wis. 2d 1, ¶15 n.6 (quoting U.S.

Const. art. III, § 2, cl. 1).

¶14 Apart from the "constitutional minimum" of an "injury

in fact" that is "fairly traceable" to the defendant's conduct

and likely to be "redressed by a favorable decision," see

Bennett v. Spear, 520 U.S. 154, 162 (1997), "prudential

standing" encompasses "judicially self-imposed limits on the

exercise of federal jurisdiction . . . founded in concern about

the proper——and properly limited——role of the courts in a

democratic society[.]" Id. (quotations omitted). The

"prudential standing" doctrine has traditionally included the

"zone of interests" inquiry, which first appeared in Association

of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150

(1970) and its companion case, Barlow v. Collins, 397 U.S. 159

(1970). See Bennett, 520 U.S. at 162–63. In Data Processing,

the United States Supreme Court explained that a plaintiff

challenging an administrative agency decision under the

Administrative Procedure Act (the APA) must meet the two-pronged
standing requirement, including suffering an "injury in fact"

within the "zone of interests to be protected or regulated by

the statute or constitutional guarantee in question."7 397 U.S.

at 153.

7The statutory language of the APA, interpreted by Data
Processing, provided, "A person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to
judicial review thereof." 5. U.S.C.A. § 702 (1964 ed., Supp.
IV).

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 No. 2019AP299 & 2019AP534

¶15 The United States Supreme Court later clarified in

Lexmark that the "zone of interests" inquiry is more

appropriately understood as a question of whether a cause of

action exists, rather than a matter of "prudential standing."

Lexmark, 572 U.S. at 127. As framed by Lexmark, this inquiry

requires the Court to "determine, using traditional tools of

statutory interpretation, whether a legislatively conferred

cause of action encompasses a particular plaintiff's claim."

Id. (citing Steel Co. v. Citizens for Better Environment, 523

U.S. 83, 97 & n.2 (1998); Clarke v. Sec. Indus. Ass'n, 479 U.S.

388, 394–95 (1987); Holmes v. Sec. Inv. Prot. Corp., 503 U.S.

258, 288 (1992) (Scalia, J., concurring in judgment)). The

Court elaborated:

In sum, the question this case presents is
whether . . . [the plaintiff] has a cause of action
under the statute. That question requires us to
determine the meaning of the congressionally enacted
provision creating a cause of action. In doing so, we
apply traditional principles of statutory
interpretation. We do not ask whether in our judgment
Congress should have authorized [the plaintiff's]
suit, but whether Congress in fact did
so. . . . Thus, this case presents a straightforward
question of statutory interpretation: Does the cause
of action in [the statute] extend to [the plaintiff]?
Id. at 128-29.

¶16 In the context of the APA, the Lexmark Court explained

that the "lenient" zone-of-interests approach "is an appropriate

means of preserving the flexibility of the APA's omnibus

judicial-review provision, which permits suit for violations of
numerous statutes of varying character that do not themselves

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 No. 2019AP299 & 2019AP534

include causes of action for judicial review." Id. at 130.

Nevertheless, the Court emphasized "that the breadth of the zone

of interests varies according to the provisions of law at issue,

so that what comes within the zone of interests of a statute for

purposes of obtaining judicial review of administrative action

under the 'generous review provisions' of the APA may not do so

for other purposes." Id. at 130 (quoting Bennett, 520 U.S. at

163) (internal quotation marks omitted). Finally, the Lexmark

Court clarified that the zone of interests test "forecloses suit

only when a plaintiff's 'interests are so marginally related to

or inconsistent with the purposes implicit in the statute that

it cannot reasonably be assumed that' Congress authorized that

plaintiff to sue." Id. (quoting Match-E-Be-Nash-She-Wish Band

of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012)).

B. Standing Principles in Wisconsin

¶17 Federal law on standing is not binding in Wisconsin.

Foley-Ciccantelli, 333 Wis. 2d 402, ¶46 n.23 (lead op.); see

also id., ¶46 n.24 (citing WED I, 69 Wis. 2d at 11; Metro
Builders Ass'n of Greater Milwaukee v. Village of Germantown,

2005 WI App 103, ¶13, 282 Wis. 2d 458, 698 N.W.2d 301) ("Federal

standing terminology has been used in cases that do not involve

constitutional challenges."). Because our state constitution

lacks the jurisdiction-limiting language of its federal

counterpart, "standing in Wisconsin is not a matter of

jurisdiction, but of sound judicial policy." McConkey, 326

Wis. 2d 1, ¶15 (citing Zehetner v. Chrysler Fin. Co., 2004 WI
App 80, ¶12, 272 Wis. 2d 628, 679 N.W.2d 919); see also Wis.
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 No. 2019AP299 & 2019AP534

Legis. v. Palm, 2020 WI 42, ¶12, 391 Wis. 2d 497, 942 N.W.2d 900

(quoting Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, ¶38, 327

Wis. 2d 572, 786 N.W.2d 177 (lead op.)). Nevertheless,

Wisconsin has largely embraced federal standing requirements,

and we "look to federal case law as persuasive authority

regarding standing questions." McConkey, 326 Wis. 2d 1, ¶15 n.7

(citing WED I, 69 Wis. 2d at 11).

¶18 Although not constitutionally required, we have

described our two-step standing approach as "conceptually

similar to the analysis required by the federal rule." WED I,

69 Wis. 2d at 10. As a matter of "sound judicial policy,"

McConkey, 326 Wis. 2d 1, ¶15, typically our courts ask first

"whether the decision of the agency directly causes injury to

the interest of the petitioner" and second "whether the interest

asserted is recognized by law." WED I, 69 Wis. 2d at 10. We

likened this approach to the federal two-pronged standing

inquiry: "(1) Does the challenged action cause the petitioner

injury in fact? and (2) is the interest allegedly injured
arguably within the zone of interests to be protected or

regulated by the statute or constitutional guarantee in

question?" Id. (citing Data Processing Service, 397 U.S. at

153); see also Waste Mgmt., 144 Wis. 2d at 509 ("[T]he Wisconsin

standing analysis is conceptually similar to the federal

analysis."); Cornwell Pers. Assocs., Ltd. v. DILHR, 92

Wis. 2d 53, 61, 284 N.W.2d 706 (Ct. App. 1979) ("The Wisconsin

Supreme Court construed ['person aggrieved'] to impose a
standing requirement similar to the federal rule in [WED I].").
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¶19 We construe the law of standing "liberally, and 'even

an injury to a trifling interest' may suffice." McConkey, 326

Wis. 2d 1, ¶15 (quoting Fox, 112 Wis. 2d at 524); see also WED

I, 69 Wis. 2d at 13 (citing Kubista v. State Annuity & Inv. Bd.,

257 Wis. 359, 43 N.W.2d 470 (1950)). At the same time, "while

standing is to be liberally construed, the claim asserted must

be legally recognizable in Wisconsin jurisprudence." Foley-

Ciccantelli, 333 Wis. 2d 402, ¶165 (Roggensack, J., concurring)

(citing Krier v. Vilione, 2009 WI 45, ¶22, 317 Wis. 2d 288, 766

N.W.2d 517).

¶20 In the context of judicial review of an administrative

decision, standing is governed by Wis. Stat. §§ 227.52 and

227.53. See WED I, 69 Wis. 2d at 9; Waste Mgmt., 144 Wis. 2d at

504. "Both sections require a petitioner to 'show a direct

effect on his legally protected interests.'" Fox, 112

Wis. 2d at 524 (quoting WED I, 69 Wis. 2d at 9). Section 227.52

provides, in relevant part:

Administrative decisions which adversely affect the
substantial interests of any person, whether by action
or inaction, whether affirmative or negative in form,
are subject to review as provided in this chapter,
except as otherwise provided by law and [certain
exceptions.]
§ 227.52. Section 227.53(1) provides, as pertinent:

Except as otherwise specifically provided by law, any
person aggrieved by a decision specified in s. 227.52
shall be entitled to judicial review of the decision
as provided in this chapter and subject to [certain]
procedural requirements[.]

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 No. 2019AP299 & 2019AP534

§ 227.53(1). Chapter 227 defines "[p]erson aggrieved" as "a

person or agency whose substantial interests are adversely

affected by a determination of an agency." Wis. Stat.

§ 227.01(9).

¶21 In applying the first element of standing——"injury in

fact"——we ask "whether the petition alleges injuries that are a

direct result of the agency action." WED I, 69 Wis. 2d at 13.

We have applied the federal standard, maintaining that an

"[i]njury alleged, which is remote in time or which will only

occur as an end result of a sequence of events set in motion by

the agency action challenged, can be a sufficiently direct

result of the agency's decision to serve as a basis for

standing." Id. at 14. Nevertheless, the injuries must be

neither hypothetical nor conjectural. Milwaukee Brewers

Baseball Club v. DHSS, 130 Wis. 2d 56, 65, 387 N.W.2d 245

(1986).

¶22 In cases alleging harm to the environment, "injuries

'must show a direct causal relationship to a proposed change in
the physical environment.'" Applegate-Bader Farm, LLC v. DOR,

2021 WI 26, ¶17 n.7, 396 Wis. 2d 69, 955 N.W.2d 793 (quoting

Fox, 112 Wis. 2d at 528). In the environmental context, the

"federal test [established in Data Processing Service, 397 U.S.

at 153] has been viewed as a substantial liberalization of the

standing requirements." WED I, 69 Wis. 2d at 10 (citing Kenneth

Culp Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev.

450 (1970); Donald W. Large, Is Anybody Listening? The Problem
of Access in Environmental Litigation, 1972 Wis. L. Rev. 62,
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 No. 2019AP299 & 2019AP534

94). Since then, we have concluded that "allegations of injury

to aesthetic, conservational, recreational, health and safety

interests will confer standing so long as the injury is caused

by a change in the physical environment." Milwaukee Brewers,

130 Wis. 2d at 65 (citing Metro. Edison v. People Against

Nuclear Energy, 460 U.S. 766, 771–73 (1983); Joseph v. Adams,

467 F. Supp. 141, 156 (E.D. Mich. 1978); Fox, 112 Wis. 2d at

525). "The question of whether the injury alleged will result

from the agency action in fact is a question to be determined on

the merits, not on a motion to dismiss for lack of standing."

WED I, 69 Wis. 2d at 14.

¶23 Under what we have described as the "zone of

interests" prong of the analysis, expressed in terms derived

from federal standing cases——we ask whether "the injury is to an

interest which the law recognizes or seeks to regulate or

protect." Waste Mgmt., 144 Wis. 2d at 505. This inquiry

requires us to "examine a specific statute to determine standing

rather than consider all interests of the petitioner." MCI
Telecomms. Corp. v. Pub. Serv. Comm'n, 164 Wis. 2d 489, 493, 476

N.W.2d 575 (Ct. App. 1991). In WED I, we acknowledged the

federal courts' "willingness to find that environmental

interests are arguably within the zone of interest[s] protected

by virtually any statute related to environmental matters." WED

I, 69 Wis. 2d at 10–11 (citing Env't Def. Fund, Inc. v. Hardin,

428 F.2d 1093 (D.C. Cir. 1970); W. Va. Highlands Conservancy v.

Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971); Citizens
Comm. for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970)).
17
 No. 2019AP299 & 2019AP534

¶24 For example, federal courts have determined the

National Environmental Protection Act (NEPA) provides an

adequate basis "for standing to challenge an agency's failure to

comply with its provisions." WED I, 69 Wis. 2d at 19 (citing

United States v. SCRAP, 412 U.S. 669 (1973); W. Va. Highlands

Conservancy, 441 F.2d at 232; Scherr v. Volpe, 336 F. Supp. 882

(W.D. Wis. 1971)). We have likewise concluded that the

Wisconsin Environmental Policy Act (WEPA) "does, similar to

NEPA, recognize an interest sufficient to give a person standing

to question compliance with its conditions where it is alleged

that the agency's action will harm the environment in the area

where the person resides."8 Id.

¶25 Having been adopted from federal jurisprudence

interpreting the APA, the "zone of interests" terminology is

8 In our prior cases recognizing standing in the
environmental context, the petitioners successfully sought to
challenge the administrative decision at issue under WEPA. See,
e.g., Applegate-Bader Farm, LLC v. DOR, 2021 WI 26, ¶17 n.7, 396
Wis. 2d 69, 955 N.W.2d 793 (concluding Applegate had standing to
challenge DOR's decision not to prepare an environmental impact
statement (EIS) because it alleged "an injury in fact to its
legally protected conservational interest" under WEPA);
Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 56, 70, 387
N.W.2d 245 (1986) (determining petitioners alleged injuries
sufficient to acquire standing under WEPA); Wisconsin's Env't
Decade, Inc. v. Pub. Serv. Comm'n of Wis. (WED I), 69 Wis. 2d 1,
19, 230 N.W.2d 243 (1975) (holding that WEPA "recognize[s] an
interest sufficient to give a person standing to question
compliance with its conditions where it is alleged that the
agency's action will harm the environment in the area where the
person resides"). In this case, an environmental impact study
was performed and the Friends have not asserted the Department
made a negative-EIS decision nor have they brought any claim
under WEPA.

18
 No. 2019AP299 & 2019AP534

untethered to the text of Wis. Stat. ch. 227 and obscures the

standing test we have consistently applied in challenges to

administrative decisions. Chapter 227 authorizes persons who

are "aggrieved" to seek judicial review of administrative

decisions. Wis. Stat. § 227.53(1). A "person aggrieved" is

defined as "a person or agency whose substantial interests are

adversely affected by a determination of an agency." Wis. Stat.

§ 227.01(9). Consistent with our longstanding application of

this test for standing purposes, the adversely affected interest

must be protected, recognized, or regulated by law. The

determination of whether a statute protects, recognizes, or

regulates the asserted interest is a purely statutory inquiry,

from which the judicially subjective consideration of the "zone

of interests" is properly omitted. This has been our consistent

jurisprudential practice and we do not depart from it now.

¶26 The statutory history of Wis. Stat. §§ 227.52 and

227.53 confirms the "zone of interests" language is grounded

neither in the statutory text governing administrative
challenges nor in our longstanding conception of standing.

Prior to 1976, Wis. Stat. ch. 227 had not defined "person

aggrieved"; in the absence of a statutory definition, we applied

the definition articulated in Greenfield v. Joint County School

Comm., under which an "aggrieved party" meant "one having an

interest recognized by law in the subject matter which is

injuriously affected by the judgment." See Pasch v. DOR, 58

Wis. 2d 346, 357, 206 N.W.2d 157 (1973) (quoting Greenfield, 271
Wis. 442, 447, 73 N.W.2d 580 (1955)). The WED I court relied on
19
 No. 2019AP299 & 2019AP534

Greenfield's definition of "a person aggrieved." WED I, 69

Wis. 2d at 9–10 (quoting Greenfield, 271 Wis. at 447). The

court explained:

We have held that a person must be "aggrieved" and
"directly affected" by the agency decision, and also
that the decision must "directly affect the legal
rights, duties or privileges" of the person seeking
review. [Sections] 227.15 and 227.16 do not, however,
create separate and independent criteria. It is clear
that both sections essentially require the petitioner
to show a direct effect on his legally protected
interests.9
Id. at 9. At the same time, WED I improperly framed its inquiry

in terms of the federal "zone of interests" test, with no

support in the text of Chapter 227 or our prior enunciation of

standing principles.10

9Wis. Stat. §§ 227.15 and 227.16 were the precursors to
Wis. Stat. §§ 227.52 and 227.53. The statutes were renumbered
in 1986. See 1985 Wis. Act 182, §§ 35, 37.

Even though it described the Wisconsin standing test as
10

similar to the federal "zone of interests" test, WED I seemingly
adhered to the "legally protected interest" test by asking
"whether the interest asserted is recognized by law." WED I, 69
Wis. 2d at 14. The WED I court concluded, "WED's members, who
are customers in the area affected by the PSC's order in this
case, have a sufficient interest under the cited sections of ch.
196, Stats., in the future adequacy of their service, and that
WED has standing, if the facts alleged in the petition are true,
to challenge the PSC's failure to consider conservation
alternatives to the proposed priority system." Id. at 17. WED
I partly based its determination on the "express recognition of
the protective purposes of the law," as determined by Wisconsin
P. & L. Co. v. Pub. Serv. Comm'n, 45 Wis. 2d 253, 259, 172
N.W.2d 639 (1969). Id. at 16. At the same time, WED I
recognized standing under WEPA, which it stated "recognize[s] an
interest sufficient to give a person standing to question
compliance with its conditions where it is alleged that the
agency's action will harm the environment in the area where the
person resides." Id. at 19. We have consistently recognized
20
 No. 2019AP299 & 2019AP534

¶27 In 1976, the legislature made a number of relevant

amendments to Wis. Stat. ch. 227. See Chapter 414, Laws of

1975. First, the legislature amended Wis. Stat. § 227.15 so

that administrative decisions formerly required to "directly

affect the legal rights, duties or privileges," now must

"adversely affect the substantial interests of any person" to be

subject to judicial review.11 § 19, ch. 414, Laws of 1975.

Second, the legislature removed "directly affected" from

§ 227.16(1), rewording the statute to allow "any person

aggrieved by a decision specified in s. 227.15" to "be entitled

to judicial review thereof[.]"12 § 20, ch. 414, Laws of 1975.

Third, the legislature defined "person aggrieved" to "include[]

broad environmental interests under WEPA for standing purposes.
See supra, ¶24 n.8. The petitioners have not brought such a
claim in this case.
11 The previous language provided, as relevant:

227.15 Judicial review; orders reviewable.
Administrative decisions, which directly affect the
legal rights, duties or privileges of any person,
whether affirmative or negative in form, . . . shall
be subject to judicial review as provided in this
chapter[.]

Wis. Stat. § 227.15 (1973–74).
12 The previous language provided, as relevant:

227.16 Parties and proceedings for review. (1) Except
as otherwise specifically provided by law, any person
aggrieved by a decision specified in s. 227.15 and
directly affected thereby shall be entitled to
judicial review thereof as provided in this chapter.

Wis. Stat. § 227.16(1) (1973–74).

21
 No. 2019AP299 & 2019AP534

any person or agency whose substantial interests are adversely

affected by a determination of an agency." § 5, ch. 414, Laws

of 1975. For purposes of standing, our subsequent cases have

not treated these statutory changes as either abrogating our

longstanding requirement that an alleged injury must be "to an

interest which the law recognizes or seeks to regulate or

protect," nor endorsing the "zone of interests" formulation

described in WED I. Waste Mgmt., 144 Wis. 2d at 504–05; see

also Milwaukee Brewers, 130 Wis. 2d at 65 ("[T]he Petitioner

must show that the alleged injury is an injury to a legally

protected interest."); Fox, 112 Wis. 2d at 529 ("[T]he injury

must be to a legally protected interest.").

¶28 We conclude the "zone of interests" nomenclature WED I

superimposed on Wisconsin's test for standing has no basis in

the text of Wis. Stat. ch. 227, which limits judicial review to

any "person or agency whose substantial interests are adversely

affected by a determination of an agency." See Wis. Stat.

§§ 227.01(9), 227.52, 227.53(1). The "zone of interests" test
risks an improper judicial overextension of our well-established

standing requirement that a person aggrieved by an agency

decision must allege an injury "to an interest which the law

recognizes or seeks to regulate or protect." Waste Mgmt., 144

Wis. 2d at 505. As substantively reflected in many of our prior

decisions, this inquiry centers on a textually-driven analysis

of the language of the specific statute cited by the petitioner

as the source of its claim to determine whether that statute
"recognizes or seeks to regulate or protect" the interest
22
 No. 2019AP299 & 2019AP534

advanced by the petitioner.13 Id. at 505, 508; see also Air

Courier Conf. of Am. v. Am. Postal Workers Union AFL-CIO, 498

U.S. 517, 529 (1991) ("[T]he relevant statute [under the APA] of

course, is the statute whose violation is the gravamen of the

complaint." (quoting Lujan, 497 U.S. at 886)).

¶29 In WED I, this court misguidedly described this prong

of the standing test——citing an administrative law treatise as

sole authority for the proposition——as follows: "The only

This textually-driven analysis means the language of the
13

cited statutes drives the inquiry into whether the injured
interest is "protected, recognized, or regulated" by the law.
See Waste Mgmt., 144 Wis. 2d at 508. Despite accepting and
ostensibly applying this test, which it frames as "a 'statutory
question,'" the dissent misconstrues our application of this
"decades-old framework" as "prejudging the merits" and
"conflating standing with statutory interpretation." See
dissent, ¶¶53, 59, 67 (citing Moustakis v. DOJ, 2016 WI 42, ¶3
n.2, 368 Wis. 2d 677, 880 N.W.2d 142). The dissent’s
irreconcilable dual critique confuses the law of standing in
administrative cases. On the one hand, the dissent says it
accepts and applies our precedent that directs us to engage in
statutory interpretation. Id., ¶¶75, 82 (citing State ex rel.
Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶¶46, 48–49, 271
Wis. 2d 633, 681 N.W.2d 110). On the other hand, the dissent
also suggests that statutory interpretation is an improper
component of standing. Id., ¶67 (citing Moustakis, 368
Wis. 2d 677, ¶3 n.2). The dissent may believe the statutes on
which the Friends base their claims "protect[], recognize[], or
regulate[]" their injured interests just as the dissent believes
substantive criteria are not required, but positing the inquiry
itself is somehow improper would overturn the entirety of our
Wis. Stat. ch. 227 cases with a single footnote from a case
having nothing to do with Chapter 227. See Moustakis, 368
Wis. 2d 677, ¶3 n.2. Notably, the dissent does not attempt to
develop this point because its analysis in fact adheres to the
longstanding legal requirement that we analyze the statutes
cited by petitioners to determine whether they "recognize[],
protect[], or regulate[]" the Friends' injured interests.
Dissent, ¶77 (citing Waste Mgmt., 144 Wis. 2d at 505).

23
 No. 2019AP299 & 2019AP534

problems about standing should be what interests deserve

protection against injury, and what should be enough to

constitute an injury. Whether interests deserve legal

protection depends upon whether they are sufficiently

significant and whether good policy calls for protecting them or

for denying them protection." See WED I, 69 Wis. 2d at 13

(quoting Kenneth Culp Davis, Administrative Law Treatise

§ 22.00–4, at 722 (1970 Supp.)). In expressing standing in

Chapter 227 cases in terms of what "should be" and what

constitutes "good policy," this court cloaked itself with

legislative powers rather than adhering to its judicial duty to

say what the law is and not what the court may wish it to be.

If the "zone of interests" test comprises the WED court's

formulation of it, this court would be compelled to reject it.

However, in subsequent cases, this court grounded the inquiry in

the text of the statutes or regulations cited, rather than in

judicial notions of what "should be" or what may constitute

"good policy."
¶30 While Wisconsin cases frequently reference the "zone

of interests" test, they rarely apply it in the manner described

by WED I. See, e.g., Foley-Ciccantelli, 333 Wis. 2d 402, ¶56

(lead op.) (explaining that the phrase "legally protectable

interest" "is used in the case law to mean 'an interest within

the zone of interests protected by a statute or constitution'").

While discarding this anachronistic misnomer, we retain our

well-established standing test. Although the dissent
characterizes this clarification as a "twist[]" that "creat[es]
24
 No. 2019AP299 & 2019AP534

additional barriers to judicial review,"14 removing the "zone of

interests" label leaves the test's substance intact: "the

injury" must be "to an interest which the law recognizes or

seeks to regulate or protect."15 Waste Mgmt., 144 Wis. 2d at

505.

¶31 In Waste Mgmt., this court framed "the issue presented

for our review" as "the statutory question of whether, under

secs. 227.15 and 227.16(1)" the statute to which the petitioner

pointed as the source of its protected interests "operates to

grant standing." Id. at 503-04 (emphasis added). In that case,

the court explained Wisconsin's "zone of interests" test asks

whether "the injury is to an interest which the law recognizes

or seeks to regulate or protect." Id. at 505. Properly absent

from the analysis were any considerations of whether the

asserted interests "deserve" legal protection; instead, the

court tailored the test to whether the law actually affords the

asserted interest legal protection. See also Applegate-Bader

Farm, 396 Wis. 2d 69, ¶17 n.7 ("A party has standing to

14 Dissent, ¶89.

The dissent claims no party asked us to "overhaul" the
15

zone of interests limitation, and that "[d]eciding this issue,
when no one asked us to do so, both deprives our deliberations
of analysis refined in the fires of adversarial litigation and
unfairly surprises the parties." Dissent, ¶57. This overblown
assertion overlooks decades of precedent demonstrating that the
"zone of interests" label does not accurately reflect the test
we have consistently applied and apply no differently in this
case. Our conclusion seeks not to avoid the "fires of
adversarial litigation" but to extinguish any last embers of a
fire that has long since died out.

25
 No. 2019AP299 & 2019AP534

challenge an administrative decision when 'the decision of an

agency directly causes injury to the interest of the petitioner'

and if the 'interest asserted is recognized by law."); Milwaukee

Brewers, 130 Wis. 2d at 65 ("In addition to showing a direct

injury" requiring petitioner to "show that the alleged injury is

an injury to a legally protected interest" rather than within a

"zone of interests"); Fox, 112 Wis. 2d at 529 (phrasing the

second prong of the standing test as "the injury must be to a

legally protected interest" and making no mention of a "zone of

interests" test). Recognizing that the second prong of the

standing test requires the allegedly adversely affected interest

to be one protected, recognized, or regulated by an identified

law, we next consider whether the interests asserted by the

Friends satisfy this element of standing.

C. The Statutes Cited Do Not Protect or Regulate the Friends'
Asserted Interests
¶32 The Friends allege five aesthetic, recreational,

conservational, and procedural injuries arising from the land-
swap decision.16 We assume without deciding the Friends' alleged

injuries satisfy the first prong of the standing analysis.

The dissent hyperbolically concludes the Department will
16

have "the unfettered right to redraw all state park boundaries"
and "not a single Wisconsin citizen . . . could challenge that
conduct in court." Dissent, ¶89. Nothing in our opinion
supports such a bewildering misconception. Our standing review
in this case is limited by the Friends' Amended Petition
challenging the "decision to convey" the property to Kohler,
under the statutes identified by the Friends. See id., ¶77.
The dissent premises its entire analysis on a basic misreading
of the Friends' claims. See infra, ¶45 n.21.

26
 No. 2019AP299 & 2019AP534

Standing to challenge an agency decision under Wis. Stat.

§§ 227.52 and 227.53 also requires the Friends to identify a

statute protecting or regulating the interests they allege were

injured by the decision. While the Friends cite several

statutes and regulations to support their standing argument,

none of them protect or regulate their asserted interests.

1. Wisconsin Stat. §§ 27.01, 23.11 & 23.15

¶33 The Friends first point to Wis. Stat. § 27.01(1),17

which describes the purpose of the state parks system. The

statute declares it is "the policy of the legislature to

acquire, improve, preserve and administer a system of areas to

be known as the state parks of Wisconsin. The purpose of the

state parks is to provide areas for public recreation and for

public education in conservation and nature study." § 27.01(1).

Such a statutory statement of purpose, however, "does not

provide for an independent, enforceable claim, as it is not in

17 Section 27.01(1) provides in full:

Purpose. It is declared to be the policy of the
legislature to acquire, improve, preserve and
administer a system of areas to be known as the state
parks of Wisconsin. The purpose of the state parks is
to provide areas for public recreation and for public
education in conservation and nature study. An area
may qualify as a state park by reason of its scenery,
its plants and wildlife, or its historical,
archaeological or geological interest. The department
shall be responsible for the selection of a balanced
system of state park areas and for the acquisition,
development and administration of the state parks. No
admission charge shall be made to any state park,
except as provided in subs. (7) to (9).

27
 No. 2019AP299 & 2019AP534

itself substantive." Schilling v. Crime Victims Rts. Bd., 2005

WI 17, ¶14, 278 Wis. 2d 216, 692 N.W. 2d 623. Merely expressing

a statement of purpose, nothing in § 27.01(1) establishes the

requisite "substantive criteria" by which petitioners could

challenge the Department's or the governor's decisions impacting

state parks. Chenequa Land Conservancy, Inc. v. Village of

Hartland, 2004 WI App 144, ¶21, 275 Wis. 2d 533, 685 N.W.2d 573.

Lacking such substantive criteria, nothing in § 27.01 protects,

recognizes, or regulates any person's interests or contemplates

a challenge to the agency's decision to convey the land to

Kohler.

¶34 The Friends also assert Wis. Stat. § 23.1118 affords

them standing, focusing on the following statutory language:

"In addition to the powers and duties heretofore conferred and

imposed upon said department by this chapter it shall have and

take the general care, protection and supervision of all state

18 Section 23.11(1) provides in full:

In addition to the powers and duties heretofore
conferred and imposed upon said department by this
chapter it shall have and take the general care,
protection and supervision of all state parks, of all
state fish hatcheries and lands used therewith, of all
state forests, and of all lands owned by the state or
in which it has any interests, except lands the care
and supervision of which are vested in some other
officer, body or board; and said department is granted
such further powers as may be necessary or convenient
to enable it to exercise the functions and perform the
duties required of it by this chapter and by other
provisions of law. But it may not perform any act upon
state lands held for sale that will diminish their
salable value.

28
 No. 2019AP299 & 2019AP534

parks[.]"19 Similar to Wis. Stat. § 27.01, this statute lacks

any "substantive criteria" by which petitioners could challenge

the Board's decisions regarding state parks and nothing in the

text protects, recognizes, or regulates any person's interest in

state parks or contemplates a challenge to agency action related

to state parks.

¶35 The Friends' reliance on Wis. Stat. § 23.15 is

likewise unavailing. That statute provides for the sale of

state-owned lands by the Board and includes a number of

procedures by which the Board is to conduct such sales,

including gubernatorial approval. The statute provides, in

part:

The natural resources board may sell, at public or
private sale, lands and structures owned by the state
under the jurisdiction of the department of natural
resources, . . . when the natural resources board
determines that the lands are no longer necessary for
the state's use for conservation purposes[.]
§ 23.15(1). The statute further requires the Board to "present

to the governor a full and complete report of the lands to be

sold, the reason for the sale, the price for which said lands

should be sold together with an application for the sale of the

19 Although the Friends did not include Wis. Stat. § 23.11
among the "Grounds for Review" in its Amended Petition for
Judicial Review, the Friends did allege the Department "is
responsible for the general care, protection and supervision of
all state parks pursuant to Wis. Stat. § 23.11." Because we
review a motion to dismiss, we elect to apply a liberal
construction of the Amended Petition in favor of the Friends and
therefore consider § 23.11 as a basis for Friends' claims. See
WED I, 69 Wis. 2d at 8.

29
 No. 2019AP299 & 2019AP534

same." § 23.15(2). The governor shall then investigate the

sale "as the governor deems necessary" and "approve or

disapprove such application." Id.

¶36 Nothing in Wis. Stat. § 23.15, including its other

procedural requirements relating to land sales, empowers private

parties alleging environmental injuries to challenge Board

decisions under this land-management provision. Wisconsin Stat.

§ 23.15 contains no textual indication that this statute

protects, recognizes, or regulates any individual's interests

that might be injured by a decision to exchange state-owned land

for privately-owned land, nor does it provide any standards by

which to do so. The Department cites Chenequa to support its

contention that § 23.15 does not provide the Friends a legally

protectable interest in the land exchange. In Chenequa, the

court of appeals concluded petitioners lacked standing under a

similarly-worded statute——Wis. Stat. § 84.09(5)——to challenge a

land sale authorized by the Department of Transportation (DOT)

and approved by the governor. Chenequa, 275 Wis. 2d 533, ¶¶25–
26, 30. We agree that Chenequa is on point.

¶37 The statute at issue in Chenequa, Wis. Stat.

§ 84.09(5), outlined certain procedural requirements the DOT

must follow in the sale of land, including presenting to the

governor "a full and complete report of the property to be sold,

the reason for the sale, and the minimum price for which the

same should be sold, together with an application for the

governor's approval of the sale." Id., ¶4 n.2 (quoting
§ 84.09(5)). In order to sell the land, the DOT must have
30
 No. 2019AP299 & 2019AP534

determined "that the property is no longer necessary for the

state's use for highway purposes[.]" Id. (quoting § 84.09(5)).

This language mirrors the text of Wis. Stat. § 23.15(1) and (2),

authorizing the Board to sell state land when it "determines

that the lands are no longer necessary for the state's use for

conservation purposes" and requiring the Board to "present to

the governor a full and complete report of the lands to be

sold[.]" See § 23.15(1), (2).

¶38 The court of appeals concluded in Chenequa that Wis.

Stat. § 84.09(5) imposes "no substantive requirements governing

the sale . . . on either DOT or the governor, other than DOT's

obligation to determine that the property is no longer necessary

for highway purposes[.]" Chenequa, 275 Wis. 2d 533, ¶25.

Regarding the statute's lack of substantive or procedural

criteria, the court explained:

Other than the determination under the first point
[that the property is no longer necessary for the
state's use for highway purposes], there are no
substantive criteria for determining what property to
sell. There are also no substantive criteria for
determining whether to sell at a public or private
sale or for determining to whom to make the sale. The
only procedures established in the statute for the
sale . . . relate to the process between DOT and the
governor . . . .

There is nothing in Wis. Stat. § 84.09(5) that
indicates this section was intended to establish
procedures to protect persons or entities interested
in purchasing state property. The "full and complete
report" is plainly for the governor's benefit, not the
benefit of potential purchasers.

31
 No. 2019AP299 & 2019AP534

Id., ¶¶21–22. The court elaborated, "[t]here is nothing in

§ 84.09(5) that suggests it is intended to ensure the public

gets the highest price for the property, or that the sales be

carried out in particular ways to benefit the public." Id.,

¶25. Consequently, the court determined "neither the

[petitioner's] interest as a potential purchaser of property for

sale under Wis. Stat. § 84.09(5) nor the general public's

interest in such sales are arguably within the zone of interests

the statute is intended to protect." Id., ¶26.

¶39 Although the court of appeals in Chenequa referenced

what the statute "intended," that decision was released less

than one month after this court declared in Kalal "[i]t is

the law that governs, not the intent of the lawgiver." State

ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶52, 271

Wis. 2d 633, 681 N.W.2d 110 (quoting Antonin Scalia, A Matter

of Interpretation, at 17 (Princeton University Press, 1997)).

In describing the pre-Kalal approach to ascertaining statutory

meaning, this court explained "[t]he typical statutory
interpretation case will declare that the purpose of statutory

interpretation is to discern and give effect to the intent of

the legislature, but will proceed to recite principles of

interpretation that are more readily associated with a

determination of statutory meaning rather than legislative

intent[.]" Id., ¶43. This description fits the court of

appeals' opinion in Chenequa to a tee. Chenequa's focus on the

absence of textually-imposed procedures designed to protect
interested persons or textually-imposed "substantive
32
 No. 2019AP299 & 2019AP534

requirements" on the agency or the governor reflected an effort

to ascertain statutory meaning, rather than an endeavor to

divine the legislature's "intent." Notwithstanding Chenequa's

use of the "zone of interests" terminology, we affirm the

soundness of the statutory interpretation applied in Chenequa.20

¶40 Like the parallel land-sale statute in Chenequa, Wis.

Stat. § 23.15 provides no substantive criteria governing the

sale other than the Department's obligation to determine the

lands are no longer necessary for the state's use for

conservation purposes. See § 23.15(1). Similar to Wis. Stat.

§ 84.09(5), nothing in § 23.15 "establish[es] procedures to

protect persons or entities interested in" challenging land-sale

decisions. See Chenequa, 275 Wis. 2d 533, ¶22. Additionally,

the statute's gubernatorial-approval provision does not confer

upon or contemplate the authority of private citizens to veto

the governor's land-sale decisions via Wis. Stat. ch. 227. See

§ 23.15(2). Because the interests the Friends assert are not

protected, recognized, or regulated under § 23.15, that statute
cannot serve as a basis for conferring standing on the Friends

under Chapter 227.

In Chenequa, the court of appeals addressed standing in
20

the context of a declaratory judgment action, determining the
"zone of interests" requirement in administrative agency
challenges was "essentially equivalent" to the "logical nexus"
requirement in declaratory judgment actions. See Chenequa Land
Conservancy, Inc. v. Village of Hartland, 2004 WI App 144, ¶¶14–
16, 275 Wis. 2d 533, 685 N.W.2d 573. We confine our review of
the "zone of interests" terminology to the context of petitions
filed under Wis. Stat. ch. 227.

33
 No. 2019AP299 & 2019AP534

2. Wisconsin Admin. Code §§ NR 1.47 & 44.04

¶41 In addition to the aforementioned statutes, the

Friends cite "various provisions of Wis. Admin. Code chs. NR 1

and 44, including §§ NR 1.47 and 44.04" as a basis for their

claims. For purposes of determining a petitioner's standing to

challenge agency decisions, we apply the same analysis to the

Wisconsin Administrative Code as we apply to statutes. The

rules the Friends cite, dealing with procedures for selling land

and the master plan process, do not protect, recognize or

regulate any interests of the petitioners sufficient for

standing under Wis. Stat. §§ 227.52 and 227.53.

¶42 Wisconsin Admin. Code § NR 1.47, addressing the

disposition of state park lands, provides that "[s]tate-owned

lands within state park boundaries shall not be sold or

otherwise disposed of." Wis. Admin. Code § NR 1.47(1). "State-

owned lands outside state park boundaries and not within any

other department project which serve no project purpose may be

sold when the natural resources board determines such lands are
no longer necessary for the state's use for conservation

purposes and then shall be disposed of only in accordance with

the following priorities: (a) Sale to or exchange with a local

unit of government when required for a public use[,] (b)

Exchange with others to consolidate state ownership within a

park boundary[, and] (c) Sale to others." § NR 1.47(2).

Finally, "[r]estrictions may be imposed on lands disposed of to

insure aesthetic park settings or compatible adjacent land
uses." § NR 1.47(3).
34
 No. 2019AP299 & 2019AP534

¶43 None of these procedural regulations contain any

"substantive criteria" by which petitioners could challenge the

Board's determination that "such lands are no longer necessary

for the state's use for conservation purposes" or the

Department's sale or exchange of land, whether within or beyond

state park boundaries, or the discretionary selection of

restrictions "to insure" either "aesthetic park settings or

compatible adjacent land uses." Nothing in the text of these

regulations indicates they establish procedures designed to

protect individuals or entities who may be interested in the

lands. In the absence of such standards or procedures, these

regulations do not protect, recognize, or regulate the interests

of private parties who may wish to challenge agency action under

them.

¶44 The Friends' argument regarding Wis. Admin. Code § NR

44.04 as a source for its claims is not well-developed. As well

as we can discern, the Friends argue § NR 44.04(7) requires

"[t]he public" to "be provided opportunities to participate
throughout the planning process for a property," but the Friends

do not allege denial of an opportunity to participate. In their

Amended Petition, the Friends allege the Department in 2017

"initiated a master planning process under Wis. Admin. Code ch.

NR 44 to consider Kohler Co.'s request to use state park land

for the golf course" and that the Friends "testified and

provided comments" at the Board's meeting in February 2018

regarding the land exchange, which the Board approved "before
the master planning process was complete." Nowhere in the
35
 No. 2019AP299 & 2019AP534

Amended Petition do the Friends assert they were denied

"opportunities to participate throughout the planning process."

¶45 The Friends additionally cite § NR 44.04(9), under

which "only those management and development activities

identified in the master plan may be pursued by the department."

Nowhere in the Amended Petition, however, do the Friends assert

the master plan did not include a transaction with Kohler

involving state land; to the contrary, the Amended Petition

specifically says: "In 2017, the DNR initiated a master planning

process under Wis. Admin Code ch. NR 44 to consider Kohler Co.'s

request to use state park land for the golf course." Although

in their brief the Friends later suggest the removal of land

from the Park and its conveyance to Kohler required "being

approved in the master plan under Wis. Admin. Code § NR

44.04(9)," nothing in that regulation imposes such a

requirement. Neither of these code provisions serve as a basis

for the Friends' challenge to the Board's decision to exchange

land with Kohler.21

The dissent points to a number of WEPA cases in support
21

of the Friends' alleged procedural violations. Dissent, ¶84
n.21 (citing Applegate-Bader Farm, 396 Wis. 2d 69; Milwaukee
Brewers, 130 Wis. 2d 56; WED I, 69 Wis. 2d 1). Although the
dissent asserts the Friends raise the kind of procedural
violation which "routinely bestow[s] standing on any member of
the public directly injured by a procedurally flawed agency
action," the Friends did not in fact raise such a violation
under WEPA. Id., ¶84.

36
 No. 2019AP299 & 2019AP534

IV. CONCLUSION

¶46 In clarifying that the "zone of interests" expression

of standing has no basis in Wisconsin law, we retain our well-

established standing inquiry for challenges to administrative

decisions. In order for Wis. Stat. ch. 227 petitioners to

satisfy the second standing element, they must identify a

statute which protects, recognizes or regulates an interest the

petitioners allege has been "adversely affected." Wis. Stat.

§§ 227.01(9), 227.52, 227.53(1). Absent from this purely

statutory analysis is any subjective judicial assessment of

whether the asserted interest falls within a "zone of interests"

under an identified statute.

¶47 The Friends' Amended Petition identifies statutes and

regulations they assert protect or regulate interests they

allege have been injured. None of the statutes the Friends

cite, however, protects, recognizes or regulates their asserted

interests. Accordingly, the Friends lack standing to challenge

the Board's decision to approve the exchange of land between the
Department and Kohler.

By the Court.—The decision of the court of appeals is

reversed.

37
 No. 2019AP227 & 2019AP534.bh

¶48 BRIAN HAGEDORN, J. (concurring). The majority

correctly concludes that the petitioners in this case do not

have a right to judicial review of the land transfer decision.

I join the opinion. In refocusing the zone-of-interests

analysis on whether an agency decision "adversely affect[s] the

substantial interests of any person," the court rightly turns

the analytical framework closer to the statutory text it

implements. See Wis. Stat. § 227.52. I write separately to

highlight a potential issue implicit in the majority's

discussion.

¶49 In 1976, the legislature amended Wis. Stat. ch. 227,

replacing "legal rights, duties or privileges" with "substantial

interests." § 19, ch. 414, Laws of 1975. As the majority

observes, our cases have largely applied an identical analytical

framework both before and after the 1976 amendment. We have not

addressed whether the 1976 amendment modified the right to

judicial review of administrative decisions. A careful focus on

the text of our laws, rather than incorporating federal caselaw,
may require an alteration to this approach. While the parties

do not raise or develop these issues, today's decision is a good

step toward aligning the inquiry with the statute, as we should.

Therefore, I join the majority opinion and respectfully concur.

1
 Nos. 2019AP299 & 2019AP534.jjk

¶50 JILL J. KAROFSKY, J. (dissenting). The law plainly

grants the Friends standing to seek judicial review of the

Department of Natural Resource's (DNR) actions that the Friends

allege were unlawful and harmful to its members. Yet a majority

of this court prefers to slam shut the courthouse doors and

reworks the law to reach its desired result. The majority

reworks the law by distorting case law, conflating standing with

the merits, and failing to engage in any meaningful

interpretation of the legislative text. In the end, the

majority reinvents the limits on judicial review in a manner not

otherwise found in the legislatively enacted text. Because I

would apply the law as the legislature wrote it——which

guarantees harmed parties like the Friends their day in court——I

respectfully dissent.

I

¶51 This case implicates statutes and regulations related

to DNR's management of state parks and DNR-owned lands. These

laws exist entirely for the sake of the public's interest in
conserving, enjoying, and using Wisconsin's cherished natural

resources. These laws were precipitated by concerns that our

state had done too little to protect this paramount interest.

Having witnessed other states squander opportunities to protect

their natural resources from "commercial vandalism" and

exclusive "private ownership," in 1907 Wisconsin Governor James

Davidson, at the direction of the legislature, convened the

state park board. See John Nolen, State Parks for Wisconsin 7-8
(1909); § 1, ch. 495, Law of 1907. That board eventually

endorsed the recommendation of renowned landscape architect John

1
 Nos. 2019AP299 & 2019AP534.jjk

Nolen to establish state parks open to the public's use and

enjoyment. As Nolen stated:

The issue appears plain. Is Wisconsin going to look
upon its bay and lake shores, its rivers and bluffs,
its dells, its inland lakes, its forests, as natural
resources to be conserved and some portion at least
acquired and held for the benefit of all the people——
both for present and future generations?
Nolen, supra, at 38 (emphasis added). Wisconsin answered by

adopting a state park system for the benefit of all

Wisconsinites——a system protected in part by the laws DNR

allegedly violated.

¶52 Members of the public need not sit idly by when a

state agency may have transgressed the very laws designed to

protect their interests. Rather, the legislature has guaranteed

that any person "whose substantial interests are adversely

affected" by an agency decision may call upon the judiciary to

be a check on executive decision-making. Wis. Stat.

§§ 227.01(9) & 227.53(1); see State ex rel. First Nat. Bank of

Wis. Rapids v. M & I Peoples Bank of Coloma, 82 Wis. 2d 529, 544

n.10, 263 N.W.2d 196 (1978) ("[J]udicial review of the action of

an administrative agency is one of the checks and balances to

achieve a proper balance between government regulation and the

protection of personal and property interests from arbitrary

action."). This right to judicial review is broad; our

precedent recognizes only two narrow limits on it. First, the

challenged action must "adversely affect[]" the person, that is,

it must "directly cause[]" the person's injury. Waste Mgmt. of
Wis., Inc. v. DNR, 144 Wis. 2d 499, 505, 424 N.W.2d 685 (1988)

(quoting Wis.'s Env't Decade, Inc. v. PSC, 69 Wis. 2d 1, 10, 230

2
 Nos. 2019AP299 & 2019AP534.jjk

N.W.2d 243 (1975) (WED I)). Second, the person's injured

interest must be "recognized by law," meaning it must be one

"which the law recognizes or seeks to regulate or protect." Id.

¶53 Applying this decades-old framework, the Friends

brought a routine environmental injury case. The Friends claim

that DNR's grant of an easement through the Kohler-Andrae State

Park and DNR's removal and subsequent transfer of lands from the

Park injured its members' aesthetic, conservational, and

recreational interests. Moreover, the Friends contend DNR's

injurious actions were procedurally and substantively unlawful.

Procedurally, the Friends complain that DNR's actions

contravened the Park's master plan because the agency failed to

revise that plan as required by Wis. Admin. Code ch. NR 44.

Substantively, the Friends allege that the agency transferred

the removed Park lands to private ownership without a lawful

finding that the "lands are no longer necessary for the state's

use for conservation purposes," as required by Wis. Stat.

§ 23.15(1) and Wis. Admin. Code § NR 1.47(2).
¶54 Existing law entitles the Friends to judicial review

of these claims. Yet the majority opinion inexplicably and of

its own accord rewrites the law to restrict the right to

judicial review beyond that which the legislative text grants.

The majority does this in two regards. First, it purports to

realign the "zone of interests" limitation on Wis. Stat. ch. 227

standing with the relevant text. But upon closer inspection,

all the majority has done is rename the test "substantial
interests" to mimic the statutory language without any regard

for what the words "substantial interests" actually mean. This

3
 Nos. 2019AP299 & 2019AP534.jjk

entire relabeling exercise turns out to be a distraction from

the majority's second, more serious rewrite of the law. Subtly,

the majority opinion injects its own additional "substantive

criteria" limitation into law, which finds no home in the

legislative text. Compounding its errors, the majority then

misapplies its newly minted limit on ch. 227 review, sowing more

confusion into ch. 227 standing. Collectively, the majority

opinion's errors provide a prime example of how "textualism" can

be manipulated to conceal a result-oriented legal analysis.

A. The Atextual "Zone of Interests" Test

¶55 Let's start with a point of agreement. This court's

determination that a person's injured interest must fall within

the relevant law's "zone of interests" is disconnected from the

legislative text. We first adopted the "zone of interests"

limitation in 1975, styling it after the United States Supreme

Court's contemporaneous interpretation of the federal

Administrative Procedure Act. See WED I, 69 Wis. 2d at 10

(citing Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397
U.S. 150, 153 (1970) & Barlow v. Collins, 397 U.S. 159 (1970)).

But even in 1975, the two statutes being interpreted

meaningfully differed:

 The state statute read: "any person aggrieved by a[n

agency] decision . . . and directly affected thereby shall

be entitled to judicial review thereof," Wis. Stat.

§ 227.16 (1973-74);

 The federal statute read: "A person suffering legal wrong
because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant

4
 Nos. 2019AP299 & 2019AP534.jjk

statute, is entitled to judicial review thereof," 5 U.S.C.

§ 702 (emphasis added).

¶56 From the latter's underlined text, it is evident why

the United States Supreme Court limited federal judicial review

to only those injuries "arguably within the zone of interests to

be protected or regulated by the [relevant] statute." Ass'n of

Data Processing, 397 U.S. at 153. Wisconsin Stat. § 227.16

contained no similar language which would justify this court's

imposition of an identical limitation. To this day, Wisconsin

statutory law omits its federal counterpart's "within the

meaning of a relevant statute" language, stating instead that

any "person or agency whose substantial interests are adversely

affected by a determination of an agency" "shall be entitled to

judicial review of the decision."1 The only change in Wisconsin

law since our 1975 decision relevant here is that the statute

now includes the words "substantial interests."

¶57 In short, I agree that the "zone of interests"

limitation lacks a textual basis in the otherwise broad cause of
action the Wisconsin legislature affords those affected by

agency decisions; in the appropriate case, perhaps this court

should revisit it. Here, though, no party asks us to do so,

making this case an inappropriate vehicle for such an overhaul.

1 This simplified formulation combines Wis. Stat. § 227.53
("any person aggrieved by a decision specified in [§] 227.52
shall be entitled to judicial review of the decision") and Wis.
Stat. § 227.01(9)'s definition of a "person aggrieved" ("a
person or agency whose substantial interests are adversely
affected by a determination of an agency"). See also Wis. Stat.
§ 227.52 ("Administrative decisions which adversely affect the
substantial interests of any person, whether by action or
inaction, whether affirmative or negative in form, are subject
to review . . . .").
5
 Nos. 2019AP299 & 2019AP534.jjk

Deciding this issue, when no one asked us to do so, both

deprives our deliberations of analysis refined in the fires of

adversarial litigation and unfairly surprises the parties. See,

e.g., City of Janesville v. CC Midwest, Inc., 2007 WI 93, ¶68,

302 Wis. 2d 599, 734 N.W.2d 428 (Ann Walsh Bradley, J.,

concurring). Still, the majority heedlessly marches forward.

¶58 Though the majority opinion pays homage to a

"textually-driven analysis,"2 its analysis is anything but based

in the text. Removing the atextual "zone of interests"

limitation on Wis. Stat. ch. 227 standing should make judicial

review easier to obtain. But the majority manages to do the

opposite by: (1) merely applying the same restrictive "zone of

interests" test under a label only superficially matching the

text; and (2) using the nominally textual critique of "zone of

interests" as cover for the introduction of a new, more

restrictive, and still atextual, "substantive criteria"

limitation.

B. Same Test, New Name
¶59 The majority opinion declares a textualist victory

over the "zone of interests" test. In reality, all it has done

is relabel the existing test to create the illusion that it is

consistent with the legislative text. The majority claims it

has eradicated the subjectivity supposedly present in WED I's

articulation of the "zone of interests" test. But the truth is

2See, e.g., majority op., ¶28; id., ¶25 (complaining "the
'zone of interests' terminology is untethered to the text");
id., ¶26 (proclaiming that "the 'zone of interests' language" is
not "grounded . . . in the statutory text"); id., ¶39
(criticizing a "pre-Kalal approach" to statutory
interpretation).
6
 Nos. 2019AP299 & 2019AP534.jjk

that as early as the 1980s this court has articulated the "zone

of interests" test exactly the same way the majority opinion now

asserts: a "statutory question" on whether the "nature of the

statute" "recognizes or seeks to regulate or protect" the

plaintiff's injured interest. See Waste Mgmt., 144 Wis. 2d

at 503-508. The only change the majority opinion makes is

renaming the test "substantial interests" rather than "zone of

interests."3

¶60 Simply renaming the test "substantial interests,"

however, fails to actually interpret what the words "substantial

interests" mean. Is "substantial interests" a legal term of

art? Or is this test the result of those two words' common,

ordinary, and accepted meaning? The majority does not say.

Yes, the majority opinion recites some statutory history, but

its conclusory musing that those changes somehow do not

"endorse[]" the "zone of interests" label while simultaneously

not "abrogating" its substance is far from a true text-based

analysis.4 See majority op., ¶27. In sum, the majority opinion

See, e.g., majority op., ¶¶12 & 30 (calling "zone of
3

interests" a "misnomer"); id., ¶25 (claiming to change only "the
'zone of interests' terminology" (emphasis added)); id., ¶¶2
& 28 (concluding that the "'zone of interests' nomenclature" has
"no basis in the text" (emphasis added)); id., ¶46 (purporting
to clarify only "that the "zone of interests" expression of
standing has no basis in Wisconsin law" (emphasis added)).
4 Citation to three cases decided after the 1975 amendment

that never even mention "substantial interests"——except in
footnotes merely quoting the full statutory text——does not cure
the dearth of a "textually-driven analysis." Those cases
expressly rely on WED I's pre-amendment interpretations without
reservation or even acknowledging the statutory changes.

7
 Nos. 2019AP299 & 2019AP534.jjk

maintains a judicial limitation on Wis. Stat. ch. 227 standing

that remains unaddressed in light of the legislature's

"substantial interest" language.

C. A Distraction from the New "Substantive Criteria" Limit

¶61 The majority opinion's hollow label change only

obscures the subtle insertion of another, more exacting atextual

limitation——and the majority's prompt misapplication of that

limitation. According to the majority, standing to invoke

judicial review now turns on whether the law underlying the

claim both: (1) protects, recognizes, or regulates the

petitioner's injured interest; and (2) contains "substantive

criteria." The problem with the new "substantive criteria"

limitation is threefold. First, it is based on a single court

of appeals decision that neither cites any authority for this

limitation nor supports how the majority opinion applies it

here. Second, the search for "substantive criteria" conflates

standing with a prejudgment on the merits. And finally,

demanding "substantive criteria" forsakes the actual legislative
text. Such a condition overrides the substantive criteria and

procedures that Wis. Stat. ch. 227 already provides, thus

A real analysis of "substantial interests" might mean that
neither the "zone of interests" label nor its substance survive.
The test (under whichever label) requires interpreting the law
allegedly violated. That makes sense under the federal "within
the meaning of a relevant statute" language; it makes little
sense in a statute lacking similar language. Perhaps
Wisconsin's legislature crafted a broader judicial review
provision to ensure a more robust judicial check on state
agencies than the federal Congress deemed necessary. Whatever
the answer is, the majority opinion's label change simply puts
spoiled milk into a new carton, which fails to address the
problem.
8
 Nos. 2019AP299 & 2019AP534.jjk

overruling the legislature's policy decision to grant broad

standing to challenge agency decisions.

1. Chenequa

¶62 The majority opinion draws its "substantive criteria"

limitation from Chenequa Land Conservancy, Inc. v. Village of

Hartland, 2004 WI App 144, 275 Wis. 2d 533, 685 N.W.2d 573. The

majority's reliance on Chenequa is puzzling, however. For one,

the Chenequa court created the "substantive criteria" limitation

out of whole cloth as it cites no case or statute for this

limit. See id., ¶¶21 & 25. More confounding, though, the

majority misapplies Chenequa's "substantive criteria" limit to

reach a result contrary to the one Chenequa compels.

¶63 To explain, Chenequa involved a prospective buyer, the

Chenequa Land Conservancy, Inc. ("Chenequa"), displeased that

the Department of Transportation (DOT) sold DOT-owned lands to a

competing bidder. Chenequa's challenge invoked Wis. Stat.

§ 84.09(5), a statute containing a similar provision to one in

Wis. Stat. § 23.15(1) at issue in this case. Section 84.09(5)
authorizes DOT to sell department-owned property when it

"determines that the property is no longer necessary for the

state's use for transportation purposes." That language

parallels the "no longer necessary for the state's use for

conservation purposes" language in § 23.15(1). See also Wis.

Admin. Code § NR 1.47(2).

¶64 As a prospective buyer, Chenequa was not challenging

the determination that the land was no longer necessary for the
state's use; it needed the land sale to happen in order to

purchase it. Rather, Chenequa's challenge centered on how DOT

9
 Nos. 2019AP299 & 2019AP534.jjk

selected the winning bidder——a matter unrelated to whether the

land remained "necessary for the state's use for transportation

purposes." But § 84.09(5) was silent as to the substantive

criteria by which DOT should select the winning bid. As such,

the court of appeals concluded that because "there are no

substantive requirements governing the sale . . . other than

DOT's obligation to determine that the property is no longer

necessary for highway purposes," Chenequa lacked standing to

seek judicial review of the bidding process. Chenequa, 275

Wis. 2d 533, ¶25 (emphasis added). By using "other than," the

Chenequa court held that the statute's only substantive

criterion was the determination about the lands' necessity for a

specified purpose.5 But because that determination was the only

substantive criterion and Chenequa's bid-selection challenge did

not implicate it, Chenequa lacked standing.

¶65 From this holding, the majority opinion engages in a

glaring non sequitur. Like the Chenequa court, the majority

recognizes that "§ 23.15 provides no substantive criteria
governing the sale other than [DNR]'s obligation to determine

the lands are no longer necessary for the state's use for

conservation purposes." Majority op., ¶40 (emphasis added).

But then, without explanation or analysis, the majority

concludes that despite the Friends' challenge directly invoking

the substantive criterion in § 23.15, the Friends'

conservational interests "are not protected, recognized, or

5Other than, Collins Dictionary, https://www.collinsdiction
ary.com/us/dictionary/english/other-than ("You use other than
after a negative statement to say that the person, item, or
thing that follows is the only exception to the statement.").
10
 Nos. 2019AP299 & 2019AP534.jjk

regulated under § 23.15, [and] that statute cannot serve as a

basis for conferring standing on the Friends." Id. That simply

does not follow.

¶66 Under the most generous read, the majority opinion is

falsely equating the Friends' interests with those of Chenequa.

But the two petitioners raised different challenges. Chenequa

did not challenge DOT's determination that the land was no

longer necessary for state purposes (because they wanted the

sale to occur, just under different terms). The Friends, by

contrast, do not want the transfer to occur and directly

challenge DNR's determination that the affected lands are no

longer necessary for conservational purposes. Therefore,

applying Chenequa's "substantive criteria" holding actually

leads to the opposite conclusion than the one the majority

reaches.

2. Prejudging the merits at the standing stage

¶67 A threshold standing determination decides only

whether a petitioner is entitled to be heard by the court;
"standing in no way depends on the merits of the p[etitioner]'s

contention that particular conduct is illegal." Warth v.

Seldin, 422 U.S. 490, 500 (1975). Indeed, as we explained in

Moustakis v. DOJ, "[s]tanding and statutory interpretation are

distinct and should not be conflated." 2016 WI 42, ¶3 n.2, 368

Wis. 2d 677, 880 N.W.2d 142. Yet the majority's new

"substantive criteria" limitation appears to do just that——it

conflates the Friends' standing with a prejudgment on the laws
allegedly violated. Thus, not only is the majority's new

"substantive criteria" limit on judicial review unsupported by

11
 Nos. 2019AP299 & 2019AP534.jjk

any precedent, it also runs counter to our case law by

conflating standing with statutory interpretation.

3. No basis in the text

¶68 More fundamentally, this "substantive criteria"

limitation betrays the legislative text. No provision in Wis.

Stat. ch. 227 directs courts to seek out substantive criteria in

the statute or regulation at issue. In fact, such a directive

conflicts with portions of ch. 227 that already provide the

substantive lens for judicial review and the applicable

procedures.

¶69 Under Wis. Stat. § 227.57, a reviewing court

substantively evaluates the agency decision for:

 "a material error in procedure or a failure to follow

prescribed procedure" that impaired "the fairness of the

proceedings or the correctness of the action";

 an erroneous interpretation of applicable law;

 "any finding of fact" on which the agency action depends

"that is not supported by substantial evidence in the
record" or was "determined without a hearing"; or

 an exercise of discretion "outside the range of discretion

delegated to the agency by law," "inconsistent with an

agency rule, an officially stated agency policy or a prior

agency practice, if deviation therefrom is not explained to

the satisfaction of the court by the agency," "or is

otherwise in violation of a constitutional or statutory

provision."
Critically, these provisions provide the only substantive

criteria by which a court may review an agency's decision. See

12
 Nos. 2019AP299 & 2019AP534.jjk

§ 227.57 (limiting the scope of judicial review to these

criteria).6 Chapter 227 likewise establishes comprehensive

procedures for judicial review of agency decisions.

See §§ 227.40-227.60.

¶70 Despite ch. 227's existing substantive and procedural

judicial-review provisions, the majority opinion denies the

Friends standing in part because "nothing in § 23.15

'establish[es] procedures to protect persons or entities

interested in' challenging land sale decisions." Majority

op., ¶40 (alteration in original) (quoting Chenequa, 275 13

Wis. 2d 533, ¶22). But never has this court held, and certainly

no statute directs, that the only reviewable agency decisions

are those that implicate substantive laws containing their own

judicial-review criteria and procedures. Such a rule forsakes

the plain text of ch. 227. That rule is also nonsensical: Why

would the right to judicial review depend on substantive

statutes containing their own judicial-review criteria and

procedures when those criteria and procedures already appear in
a statutory chapter entirely dedicated to judicial review? The

majority opinion's newly crafted "substantive criteria"

limitation is nothing short of the enactment of judicial policy

at odds with legislative policy enshrined in the statutory text.

6 The Friends' challenge fits well within these criteria.
For example, a court could adjudicate whether redrawing the
Park's boundaries without amending the Park's master plan was
"inconsistent with" or "otherwise in violation of" Wis. Admin.
Code ch. NR 44. So, too, could a court answer whether the
factual finding that the disposed lands were "no longer
necessary for the state's use for conservation purposes" lacked
"support[] [from] substantial evidence in the record."
13
 Nos. 2019AP299 & 2019AP534.jjk

D. The Textualism Smokescreen

¶71 Though the majority opinion seeks to style itself as a

"textually-driven analysis," the above shows it actually gives

little regard to the text. This dissonance supplies a prime

example of how the textualism descriptor and the objectivity it

allegedly imparts can be used to conceal or distract from an

otherwise result-orientated analysis.

¶72 Broadly speaking, textualism is an approach to

interpreting laws that focuses almost exclusively on the "plain

meaning" of the statutory text. See generally State ex rel.

Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶¶38-52, 271

Wis. 2d 633, 681 N.W.2d 110. That emphasis on the text

generally disregards the enacting body's intent and the law's

underlying purpose, to the extent either is not "ascertainable

from the text and structure." Id., ¶¶48-51. The purported

virtue of this approach is that it constrains judicial

discretion by curbing any tendency to let policy preferences

color legal interpretations under the guise of legislative
"intent" or "purpose."7 Just read and apply the law as written.

Simple, right?

¶73 Unfortunately, that's not always the case. Empirics

and experience tell us that a textualist approach is as

susceptible to a result-driven analysis as any of its

alternatives. That is because textualism invites the very

7See Antonin Scalia, A Matter of Interpretation 17-18, 22,
40-41 (Amy Gutmann ed., 1997); Antonin Scalia & Bryan A. Garner,
Reading Law at xxviii (2012); see also John F. Manning, Justice
Scalia and the Idea of Judicial Restraint, 115 Mich. L. Rev. 747
(2017).
14
 Nos. 2019AP299 & 2019AP534.jjk

judicial discretion it claims to oust; it simply shifts that

discretion to between the lines. Which version of textualism is

appropriate?8 Which words deserve attention?9 When do those

words shift from "plain" to "ambiguous"?10 Which canons of legal

8 Multiple ideological "camps" of textualism have emerged
that emphasize either formalism or flexibility. See Tara Leigh
Grove, Which Textualism?, 134 Harv. L. Rev. 265, 279-90 (2020).
The divergent textualist opinions in Bostock v. Clayton
County, 590 U.S. ___, 140 S. Ct. 1731 (2020), exposed the wide
discretion a textualist Justice exercises in identifying the
relevant "context"——semantic, social, or otherwise——in which she
interprets the text. See Grove, supra, at 279-90.
9 Not only do the United States Supreme Court's recent cases
reveal that courts have a wide "choice of context," they also
face a "choice of text" dilemma that can be outcome
determinative. See William N. Eskridge, Jr. & Victoria F.
Nourse, Textual Gerrymandering, 96 N.Y.U. L. Rev. 1718, 1738-88
(2021). "[T]he number of 5-4 splits in cases involving textual
method deployed by both sides," which regularly turn on the
Justices' differing "choice of text," indicate that no singular
"plain meaning" actually exist. See Victoria Nourse,
Textualism 3.0, 70 Ala. L. Rev. 667, 669-84 (2019).
10"Language is often ambiguous; the distinction between
'plain' and 'ambiguous' is in the eye of the beholder; and both
words too often are conclusory labels a court pins on a statute,
making its decision appear result-oriented." State ex rel.
Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶63, 271
Wis. 2d 633, 681 N.W.2d 110 (Abrahamson, C.J., concurring)
(footnotes omitted); see also State v. Byers, 2003
WI 86, ¶¶45-56, 263 Wis. 2d 113, 665 N.W.2d 729 (Abrahamson,
C.J., concurring).

15
 Nos. 2019AP299 & 2019AP534.jjk

interpretation apply?11 Which canons carry the day when two

different sets of canons compel separate outcomes?12 What

happens when a single canon cuts in both directions?13 Judicial

discretion abounds, yet rarely does the rationale for how a

court exercises any of that discretion find its way on to the

11The choice of canons is vast, with as much as 187
different options from which to cherry pick. See William N.
Eskridge, Jr., The New Textualism and Normative Canons, 113
Colum. L. Rev. 531, 536 (2013) (reviewing Scalia & Garner, supra
note 6). Moreover, not every Justice on this court agrees on
which interpretive canons are actually "canon," which can lead
to diverging results. See, e.g., United Am., LLC v. DOT, 2021
WI 44, ¶15 & n.9, 397 Wis. 2d 42, 959 N.W.2d 317. Nor is there
agreement on when these canons should apply in any given case.
See State v. Peters, 2003 WI 88, ¶14, 263 Wis. 2d 475, 665
N.W.2d 171; see also James v. Heinrich, 2021 WI 58, ¶¶76-83, 397
Wis. 2d 517, 960 N.W.2d 350 (Dallet, J., dissenting).
12"[T]here is no canon for ranking or choosing between
canons; the code lacks a key." Richard A. Posner, The Federal
Courts: Crisis and Reform 277 (1985). More vexingly, some of
the most common canons directly spar against one another. See
Karl N. Llewellyn, Remarks on the Theory of Appellate Decision
and the Rules or Canons About How Statutes Are to Be
Construed, 3 Vand. L. Rev. 395, 401-06 (1950); see also Anita S.
Krishnakumar, Dueling Canons, 65 Duke L.J. 909 (2016).
13Case in point, the recent James v. Heinrch decision cited
the canon against surplusage as supporting the majority's end
result, despite the fact that the same canon cut in the opposite
direction. See James, 397 Wis. 2d 517, ¶81 (Dallet, J.,
dissenting). The majority opinion never explained why it
nevertheless applied this canon only for its conclusion.
16
 Nos. 2019AP299 & 2019AP534.jjk

written page. Far from unfailing objectivity,14 the textualist

label can be "a rhetorical smokescreen" obscuring a result-

oriented analysis.15

¶74 The metaphor of a smokescreen precisely captures the

majority opinion. The majority attempts to pass its analysis

off as impartially applying the text. But in reality the

majority reaches a result unsupported by that text. Here the

majority perpetuates the "zone of interests" limitation on

ch. 227 standing by changing only its label. While this label

change from "zone of interests" to "substantial interests"

superficially aligns the same "zone of interests" test with the

statutory text, the majority's analysis fails to actually

address this test's substantive inconsistency with the text.

Indeed, that whole exercise of arbitrarily grafting the same

The textualist's various canons are often disconnected
14

from legislative realities, meaning a textualist analysis
"actively shape[s]" legal texts rather than "passively
reflect[s]" the enacting body's plain meaning. See Abbe R.
Gluck & Lisa Schultz Bressman, Statutory Interpretation from the
Inside-An Empirical Study of Congressional Drafting, Delegation,
and the Canons: Part I, 65 Stan. L. Rev. 901, 961-64 (2013).
Indeed, many of the canons require the court to indulge
substantive presumptions that reflect value preferences,
regardless of whether the enacting body shares those
presumptions or preferences. See Abbe R. Gluck, Justice
Scalia's Unfinished Business in Statutory Interpretation, 92
Notre Dame L. Rev. 2053, 2071-72 (2017).

Neil H. Buchanan & Michael C. Dorf, A Tale of Two
15

Formalisms, 106 Cornell L. Rev. 591, 640 (2021); see also
William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law As
Equilibrium, 108 Harv. L. Rev. 26, 77-78 (1994). Indeed,
textualism can, at times, function as "indirect purposive
analysis [that] enables just as much judicial discretion as the
purposivist interpretive tools that textualists decry——but under
the guise of neutral, objective linguistic or canon-based
analyses." Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke
L.J. 1275, 1280 (2020).
17
 Nos. 2019AP299 & 2019AP534.jjk

test onto different text only distracts from the majority's

subtle adoption of an additional, judicially crafted

"substantive criteria" limitation that lacks any textual basis.

¶75 Further exposing the majority's disregard for

legislative text and this court's interpretive principles is the

majority's application of the enhanced limitations on Wis. Stat.

ch. 227 standing. The majority opinion ignores critical context

by interpreting each substantive law underlying the Friends'

petition in isolation. See majority op., ¶¶32–45. This divide-

and-conquer approach to legal interpretation is wholly foreign

to our interpretive principles. See Kalal, 271 Wis. 2d 633,

¶¶46, 48-49 (explaining that "statutory language is interpreted

in the context in which it is used; not in isolation but as part

of a whole"; "a plain-meaning interpretation cannot contravene a

textually or contextually manifest statutory purpose").

¶76 Of course, none of this is to say that the text of

statutes or regulations is inherently unreliable; every court

must read the law's words to interpret the law's meaning. But
here, the majority is not engaging in an objective, text-driven

analysis. Rather, the majority opinion's invocation of

textualist principles attempts to hide an otherwise result-

driven opinion aimed at keeping the Friends out of the

courtroom.

II

¶77 Turning next to the proper analysis in this case, I

conclude the Friends have standing to challenge DNR's actions.
Current law asks only two questions: (1) did the challenged

actions "directly cause[]" the Friends' injuries; and (2) are

18
 Nos. 2019AP299 & 2019AP534.jjk

those injured interests ones that the challenged law recognizes,

protects, or regulates?16 See, e.g., Waste Mgmt., 144 Wis. 2d

at 505. The answer to both inquiries is a straightforward

"yes."

A. Injury

¶78 The Friends claim that DNR granted an easement through

the Park, removed Park lands, and conveyed those lands to

private ownership contrary to law. It contends these unlawful

acts injured its members' interests in:

 continuing to enjoy and recreate in the removed portion of

the Park——including camping, hiking, snowshoeing, and

biking——as they have in the past;

 observing and studying plants, birds, and animals whose

habitats will become inaccessible or reduced due to the

transfer of public land to private ownership;

 the conservational value of the affected Park lands in

preserving "the Black River, its wetlands, the forest, and

the adjoining Lake Michigan as an ecological whole"; and
 the aesthetics of the area adjacent to the affected Park

lands.17

16Though I question the continued validity of the second
limitation in light of the yet-to-be interpreted "substantial
interests" language, this issue has not been properly presented
to the court and so I continue to apply the law as it currently
stands. See supra, ¶¶6-8.
17 Because I ultimately deem these alleged injuries
sufficient to establish standing, I do not address the Friends'
other alleged injuries arising from a proposed golf course
project near the Park and their nearby homes. The link between
DNR's actions here and the golf course's construction raise a
more complex analysis than necessary to resolve this case. See
generally Wis.'s Env't Decade, Inc. v. PSC, 69 Wis. 2d 1, 14,
230 N.W.2d 243 (1975) (WED I).
19
 Nos. 2019AP299 & 2019AP534.jjk

Perhaps trifling to some, these alleged injuries to the members'

"aesthetic, conservational and recreational interests ha[ve]

been readily accepted as sufficient to confer standing."

WED I, 69 Wis. 2d at 10; see also City of Mayville v. DOA, 2021

WI 57, ¶18, 397 Wis. 2d 496, 960 N.W.2d 416 (instructing that

"standing should be liberally construed" such that "even a

trifling interest may be sufficient to confer standing"

(citations omitted)). Indeed, the persuasive federal authority

on this point uniformly holds that so long as the allegations

include regular interaction with the affected lands and concrete

intentions to interact with them in the future,18 as opposed to a

solitary prior use or "some day" intentions,19 then the

environmental harm constitutes a direct injury. See, e.g.,

Waste Mgmt., 144 Wis. 2d at 509 (identifying the federal

administrative standing doctrine as "particularly persuasive").

¶79 The Friends' allegations raise concrete injuries to

its members' ongoing aesthetic, conservational, and recreational

interests in the affected Park lands. Accordingly, and

See,
18 e.g., Summers v. Earth Island Inst., 555
U.S. 488, 494 (2009); Friends of the Earth, Inc. v. Laidlaw
Env't Servs. (TOC), Inc., 528 U.S. 167, 181–82 (2000); Sierra
Club v. EPA, 939 F.3d 649, 664 (5th Cir. 2019); Sierra Club v.
U.S. Dep't of the Interior, 899 F.3d 260, 283 (4th Cir. 2018);
Nat'l Wildlife Fed'n v. Espy, 45 F.3d 1337, 1340–41 (9th
Cir. 1995); Save Our Cmty. v. EPA, 971 F.2d 1155, 1160–61 (5th
Cir. 1992); United States v. Metro. St. Louis Sewer Dist., 883
F.2d 54, 56 (8th Cir. 1989).

See,
19 e.g., Lujan v. Defs. of Wildlife, 504
U.S. 555, 563-64 (1992); Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 889 (1990).
20
 Nos. 2019AP299 & 2019AP534.jjk

consistent with long-settled precedent, the Friends allege

sufficiently direct injuries to confer standing.

B. Protected, Recognized, or Regulated Interests

¶80 The question then becomes whether the Friends' injured

interests are "protected, recognized, or regulated" by the

"nature of" the laws supposedly violated. Id. at 508. To make

that determination, we employ our usual interpretative

principles. See Foley-Ciccantelli v. Bishop's Grove Condo.

Ass'n, Inc., 2011 WI 36, ¶¶43-44, 333 Wis. 2d 402, 797 N.W.2d

789; see also Lexmark Int'l, Inc. v. Static Control Components,

Inc., 572 U.S. 118, 127 (2014). Here, the Friends contend its

members' interests are protected, recognized, or regulated by

two categories of laws: (1) the substantive protections in Wis.

Stat. § 23.15(1) and Wis. Admin. Code § NR 1.47(2); and (2) the

procedural protections in Wis. Admin. Code ch. NR 44. I address

each in turn.

1. Substantive protections
¶81 "State−owned lands within state park boundaries shall
not be sold or otherwise disposed of." Wis. Admin Code

§ NR 1.47(1). Needing to circumvent this restriction so it

could transfer 4.59 acres of Park lands to private ownership,

DNR cleverly redrew the Park's boundaries to remove those 4.59

acres. With the lands now outside state park boundaries, DNR

faced only one additional hurdle——a determination that the

removed lands were "no longer necessary for the state's use for

conservation purposes." See Wis. Stat. § 23.15(1); Wis. Admin.
Code § NR 1.47(2). DNR made that determination, but the Friends

dispute whether DNR did so lawfully.
21
 Nos. 2019AP299 & 2019AP534.jjk

¶82 The required determination that the lands are

unnecessary "for conservation purposes" repeated in § 23.15(1)

and § NR 1.47(2) plainly protects, recognizes, and regulates the

conservational interests of any member of the public. Though

these laws reference the "state's use," the mention simply

recognizes that the state is the steward of the public's

interests in state park lands. That is especially clear when

viewed in context. The closely related Wis. Stat. § 27.01(1)

declares it to be the legislative policy that such lands be

conserved "to provide areas for public recreation and for public

education in conservation and nature study" (emphases added).

See Kalal, 271 Wis. 2d 633, ¶49 (emphasizing the importance of

"closely-related statutes" such as "explicit statements of

legislative purpose"). The next subsection, § 27.01(2), then

empowers DNR to carry out that legislative policy as the steward

of park lands. This all comports with the precipitating

history, culminating in John Nolen's declaration that these

invaluable lands should be conserved "for the benefit of all the
people——both for present and future generations."20 Nolen,

supra, at 38.

¶83 Therefore, § 23.15(1) and § NR 1.47(2)'s conditioning

the disposition of DNR-owned lands on a finding that the lands

are no longer necessary for conservation purposes——read in the

Though the class of persons whom a law protects,
20

recognizes, or regulates can be large——as is the case here——that
does not mean anyone in that class may sue whenever the relevant
agency acts. The first prong still limits the judicial-review
right to those class members adversely affected (directly
injured) by the agency action. See Wis. Stat. § 227.01(9);
Waste Mgmt. of Wis., Inc. v. DNR, 144 Wis. 2d 499, 505, 424
N.W.2d 685 (1988).
22
 Nos. 2019AP299 & 2019AP534.jjk

proper context of DNR's role as the public's steward over public

lands——makes clear that this required finding protects,

recognizes, and regulates the public's interest in conserving

those lands for their recreational, educational, and aesthetic

value. Cf. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians

v. Patchak, 567 U.S. 209 (2012) (concluding that a statute

authorizing discretionary land acquisition did, in context,

nonetheless regulate the acquired land's use, such that

"neighbors to the use . . . are reasonable——indeed, predictable—

—challengers" to the land's acquisition given how the new use

would affect their "economic, environmental, or aesthetic"

interests). Accordingly, § 23.15(1) and § NR 1.47(2)'s concern

for the Friends' aesthetic, conservational, and recreational

interests confer standing to raise its substantive challenge.

2. Procedural rights

¶84 "Procedural rights are special." Lujan v. Defs. of

Wildlife, 504 U.S. 555, 572 n.7 (1992) (cleaned up). Because

process matters, alleged procedural violations routinely bestow
standing on any member of the public directly injured by a

procedurally flawed agency action. We see this most often with

claimed violations of the procedural Wisconsin Environmental

Policy Act (WEPA).21 Though no WEPA claim is raised here, the

Friends do allege a qualifying procedural violation of the

See, e.g., Applegate-Bader Farm, LLC v. DOR, 2021
21

WI 26, 396 Wis. 2d 69, 955 N.W.2d 793; Milwaukee Brewers
Baseball Club v. DHSS, 130 Wis. 2d 56, 387 N.W.2d 245 (1986);
WED I, 69 Wis. 2d 1. In fact, a procedural violation confers
standing even when an agency might ultimately reach the same
decision after satisfying the missed procedural step. See
Massachusetts v. E.P.A., 549 U.S. 497, 517-18 (2007).
23
 Nos. 2019AP299 & 2019AP534.jjk

analogous procedures required by Chapter NR 44 of the Wisconsin

Administrative Code.

¶85 Chapter NR 44 creates a process for the uniform

management of park lands following a land classification system.

See §§ NR 44.01, NR 44.05-44.07. "A master plan establishes the

authorized management and development on a property, and only

those management and development activities identified in the

master plan may be pursued by [DNR]." § NR 44.04(9) (emphases

added). The master plan must include, among other things, a

"general property description"; a "statement of general goals

and objectives for management and use, and a description of how

the property's statutory and other purposes and benefits will be

realized"; and "management, acquisition, development and use

plans, with appropriate maps showing the land management

classifications." § NR 44.04(9)(a). This regulatory chapter

also provides a process for revising a park's master plan. The

revision process demands that the affected public be given

opportunities to participate, see §§ NR 44.04(1)(a)
& 44.04(7)(f), and requires careful study of the issues similar

to (if not exactly) the environmental analysis required under

WEPA, see § NR 44.04(8) (cross-referencing Wis. Stat. § 1.11

(WEPA)).22

¶86 Kohler sought to acquire Park land adjacent to its own

property to construct a golf course. Because a golf course was

22Even when a full WEPA-style impact analysis is not
needed, Wis. Admin. Code § NR 44.04(8)(c)3. still requires that
a plan revision or amendment involve "[a] regional analysis
addressing the economic, ecological and social conditions,
opportunities and constraints associated with the property on a
local and regional scale."
24
 Nos. 2019AP299 & 2019AP534.jjk

apparently inconsistent with the Park's master plan, DNR

initiated a process to alter it; DNR never finished that plan

revision. Therefore, following its removal and transfer of Park

lands to Kohler, the master plan contained an inaccurate

"general property description" and land management

classifications inconsistent with the Park's new geographic

footprint. DNR also failed to study the environmental impact

this change would have on the Park. The Friends maintain all of

this is unlawful. See § NR 44.04(9) ("[O]nly those management

and development activities identified in the master plan may be

pursued by [DNR]" (emphases added)); § NR 44.04(8)(c)3.

¶87 While a plan's substance internally guides DNR's

management of park lands, the regulatory text makes clear that

the process to adopt or alter the plan exists to protect the

affected public. The affected public explicitly includes

"persons or groups who are affected by a master plan or project"

and "persons with an interest in [DNR] management practices

across a specific area or statewide." § NR 44.04(1)(a). Park
neighbors and users like the Friends' members are such affected

persons. The law protects these affected parties by ensuring

"public involvement"——a phrase repeated no less than 18 times

throughout ch. NR 44——in the process, which may take a variety

of forms. With few exceptions not applicable here, effectuating

public involvement in any master plan process is mandatory.

§ NR 44.04(7)(f).

¶88 The Friends' petition raises serious procedural
questions regarding the lawfulness of DNR's redrawing of Park

boundaries contrary to the master plan's property description or

25
 Nos. 2019AP299 & 2019AP534.jjk

without sufficient environmental study. Our job here is not to

decide those procedural questions. Instead, we face a very

narrow question: do these procedures protect, recognize, or

regulate the interests of the Park's neighbors and users? The

answer is clearly yes. The Friends' members are the "[a]ffected

or interested parties" for whom the law's mandatory public

involvement processes are meant to protect. As such, the

Friends have standing to pursue this procedural challenge as

well.

III

¶89 The majority opinion goes to great lengths to slam

shut the courthouse doors on those who seek judicial review of

agency decisions. In creating additional barriers to judicial

review, the majority twists the statutory text and bends our

case law. And what's the toll of this court substituting its

policy judgment for that of the legislature? Taken to its

logical conclusion, the majority's new approach to Wis. Stat.

ch. 227 standing grants DNR the unfettered right to redraw all
state park boundaries. In redrawing the boundaries, DNR will be

able to remove, and then sell off, every last inch of this

cherished land to private entities, and not a single Wisconsin

citizen——for whom the parks exist——could challenge that conduct

in court. Not only is that result absurd, it betrays the broad

cause of action the legislature endowed on citizens to challenge

such lawless agency behavior in court. We have upheld that

right for many just like the Friends, and we should uphold that
right here. Because four Justices rule otherwise, I

respectfully dissent.

26
 Nos. 2019AP299 & 2019AP534.jjk

¶90 I am authorized to state that Justices ANN WALSH

BRADLEY and REBECCA FRANK DALLET join this dissent.

27
 Nos. 2019AP299 & 2019AP534.jjk

1