STATE OF WISCONSIN CIRCUIT COURT SAUK COUNTY BRANCH III

SAUK PRAIRIE CONSERVATION ALLIANCE.

Petitioner,

v.

WISCONSIN NATURAL RESOURCES BOARD AND WISCONSIN DEPARTMENT OF NATURAL RESOURCES,

Respondents.

Case No. 2016-CV-000642 Case Code: 30607 Administrative Agency Review

PETITIONER’S REPLY ON MOTION FOR PARTIAL STAY AND,

ALTERNATIVELY, MOTION FOR INJUNCTIVE RELIEF PENDING REVIEW

The wheels of justice move much slower than the wheels of a motorcycle across prairie

or the blades of a helicopter scaring away endangered and rare birds. According to the WDNR,

however, there will be no harm to the Sauk Prairie State Recreation Area (the “Area”) from these

high-impact uses. Rather, the WDNR argues that this Court should tell the Alliance—and its

members who have filed affidavits supporting a stay in this case—to hike, bird watch, and

recreate somewhere else while this lawsuit proceeds. The WDNR further urges the Court to

ignore the interests of neighboring property owners and the general public, many of whom

provided comments to the WDNR that overwhelmingly opposed high-impact uses on the

property. And, last but certainly not least, the WDNR asserts that the Court should ignore the

irreparable impacts to the environment that will occur if these high-impact uses are allowed to go

forward.

According to the WDNR, this Court should ignore all of these impacts to protect the

rights of motorcycle users, dog owners, paintball enthusiasts, and helicopter trainees to use the

property while this case proceeds through the justice system—even though the number of people

FILED

02-10-2017

Sauk County WI

Circuit Court

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who support such uses pales in comparison to the number of people who oppose them, and even

though such uses will cause irreparable harm to the environment and the public interest.

The WDNR’s and NRB’s actions below were unlawful and the harm without a stay in

place will be irreparable. This Court should therefore grant the Alliance’s request for a stay.

I. A STAY IS WARRANTED UNDER EITHER THE PLAIN LANGUAGE OF WIS.

STAT. § 227.54 OR THE FOUR FACTOR TEMPORARY INJUNCTION TEST

This Court has broad discretion to stay an agency decision under Wis. Stat. § 227.54.

While the Wisconsin Department of Natural Resources (“WDNR” or “Respondent”) concedes

that there are no cases interpreting this provision, WDNR nonetheless urges the Court to ignore

the plain, broad language of the statute and adopt the strict standards that apply to temporary

injunctions and stays pending appeal.

Applying such a strict standard, however, would contradict the clear language of section

227.54, which authorizes courts to issue stays of agency decisions “upon such terms as it deems

proper.” Thus, under this provision, the Wisconsin Legislature explicitly provided courts with

broad discretion to issue a stay of an agency decision, which is notably absent from the statutory

provisions authorizing stays pending appeal and temporary injunctions. See Wis. Stat. §§

808.07, 813.02(1)(a).

Moreover, it is absurd to argue—as the WDNR does—that, since the Alliance’s attorney

characterized this case as an “appeal” in a cover letter to the Court, the Alliance has somehow

conceded that the strict standard governing stays pending appeal should also govern this Court’s

stay decision. The letter was intended to compare the procedural posture of this case (i.e.,

circuit court review of an administrative agency’s decision) to a typical appeal (i.e., appellate

court review of a circuit court decision), meaning there will be no jury trial and the Court must

review the agency’s decision below. Of course, there is a significant factual and policy

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difference between a litigant seeking a stay pending appeal and a litigant seeking a stay of an

agency decision under section 227.54. With a stay pending appeal, an impartial judge or jury has

issued a decision on the merits below, which is the action being appealed. With a stay of an

agency decision, an impartial decision-maker has not weighed in on the merits of the case. Here,

the WDNR—the Defendant in this action—made the decision below, not a judge or jury. This

Court should therefore make a decision on the stay using whatever factors it deems reasonable

and appropriate.

In any event, even if the Court applies one of the four factor tests for a temporary

injunction or a stay pending an appeal, the Alliance’s motion meets both of those tests. This is

exactly the type of case warranting an injunction and a stay because the harm is irreparable and

the merits of the Alliance’s case are strong. The Alliance has demonstrated that, if this Court

fails to issue a stay, then the Alliance, the public at large, and the environment will suffer

irreparable harm. Moreover, the Alliance has more than a reasonable probability of success on

the merits, and there will be no harm to other parties in this proceeding if a stay is issued.

II. REFERENCES TO “HIGH-IMPACT” RECREATIONAL USES HAVE NOT

BEEN USED BY GSA, NPS, OR WDNR PRECISELY BECAUSE THESE

ENTITIES HAVE ONLY OPENLY ANALYZED LOW-IMPACT USES FOR THE

PROPERTY

The WDNR correctly notes that references to “high-impact” recreational uses have “not

been used by DNR, NPS, or GSA during the land transfer and planning process for SPSRA.”

Resp’t Br. 35. This is because WDNR, NPS, and GSA have only explicitly considered low-

impact recreational uses for the Area. Since 2001, development of the Area has focused on

recreational activities that are “low-impact in nature.” Pet. for Judicial Review Ex. 15 at 26; see

also Ex. 14 at 2-7. It is therefore preposterous for WDNR to say (as it does in its brief) that the

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original EIS and the Badger Reuse Plan envisioned the Area being used for helicopter training,

dog training (with guns), paintball and motorcycle use.1

That these various agencies only ever intended for the Area to be subject to low impact

uses is evident from the language of many of the property planning documents. For example, in

its 2003 Final Environmental Impact Statement, the U.S. General Services Administration stated

that “[l]ow intensity uses would include passive, non-invasive, and nature-based ‘ecotourist’

activities like hiking and camping. Biking, horseback riding, snowmobiling, interpretative trails,

and nature programs would also be included in this land use classification.” Id. Like the 2003

EIS, the WDNR in its Program of Utilization (‘POU”) submitted to the National Park Service

stated that “[t]he property will be classified as a recreational area, and will include facilities for

hiking, picnicking, primitive camping, Lake Wisconsin access and viewing, savanna and

grassland restoration, environmental education and cultural/historical interpretation.” Pet. for

Judicial Review Ex. 4 at 9. The POU added that “[m]any groups with varying interests in

Badger share a common goal with the WDNR to convert it to a recreational property with low

impact recreation.…” Id. at 10. Again, the commitment to low impact recreation was reinforced

in the deeds conveying the land to the WDNR. See Pet. for Judicial Review Ex. 2 at 4, Ex. 3 at 3

(“[t]hat the property shall be used and maintained exclusively for public park or public recreation

purposes for which it was conveyed in perpetuity in accordance with 41 CFR 102-75.680 and as

set forth in the program utilization and plan contained in [WDNR’s] application…”).

1 Unlike the attorneys and WDNR staff who are now working on this case, members of the Alliance have

been intimately involved in the process throughout the land transfer and planning process for the property, and most of them are still around. As noted below, the plain language of the planning and land transfer documents never envisioned the sort of high-impact uses that WDNR now alleges are acceptable. That said, if the Court would like the Alliance to submit affidavits to this effect from members who were around during the initial planning phases for the property, the Alliance is more than happy to do so.

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Under the doctrine of ejusdem generis, acceptable recreational uses must be consistent

with those articulated above, none of which are similar to the high-impact recreational uses the

WDNR is now proposing. See United States v. Sec. Mgmt. Co., 96 F.3d 260, 265 (7th Cir. 1996)

(“Under the ejusdem generis rule, where a general term . . . is preceded or followed by a series of

specific terms, the general term is viewed as being limited to items of the same type or nature as

those specifically enumerated”). And any common or reasonable understanding of the term

“low-impact” would not include Class 2 dog training with rifles, dual-sport (off-road)

motorcycling, helicopter training, and other as-yet unidentified special events with high impact

uses.2

III. THE WDNR FAILS TO DIRECTLY CONFRONT SEVERAL OF THE

ALLIANCE’S ARGUMENTS SHOWING IRREPARABLE HARM

In an attempt to distract from the irreparable harm the Alliance has shown will occur

absent a stay, the WDNR raises several irrelevant, inaccurate, and sometimes contradictory

arguments. The WDNR seems to only focus on the harm to the specific Alliance members that

filed affidavits with the motion, rather than the irreparable harm that will also occur to all of the

Alliance’s other 300 members, the general public, and the environment. The WDNR’s argument

that the Alliance’s members can simply hike and enjoy nature somewhere else is as absurd as it

is indicative of the agency’s carelessness with the very resources it is charged to steward and

protect. Obviously there are many areas in southeast and south central Wisconsin where people

can recreate; that is beside the point. The point is that, absent a stay, the Alliance and the

public’s ability to recreate on this particular property will be irreparably harmed.

2 The WDNR accurately states that the Alliance “has changed its position” on the use of rocketry at the

Area. Resp’t Br. 35. Prior to the Natural Resources Board hearing on December 14, 2016, the Alliance

opposed the Master Plan’s inclusion of a rocketry site because, at the time, the Plan permitted the launch

of both model and high power rockets. However, because the Board amended the Plan to exclude the use

of high power rockets in the Area, the Alliance no longer opposes model rocketry as a use on the

property.

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A. The WDNR Exaggerates The Potential Harm To Parties Interested In High-

Impact Recreational Uses And Ignores The Majority Of Users Opposed To

Such Uses.

Without giving any weight to the overwhelming majority of individuals who commented

in opposition to the proposed high-impact recreational uses at Area or how those members of the

public will be affected if a stay is not granted, the WDNR repeatedly asserts that a stay would

irreparably harm individuals who “explicitly requested that DNR allow their preferred recreation

at SPRA.” Resp’t Br. 4, 29, 31–33. For example, WDNR broadly states that “[p]ublic comments

on the [2013] Draft Vision focused primarily on recreation uses and typically either supported or

opposed motorized uses and the shooting range.” Resp’t Br. 11 (citing Pohlman Aff. Ex. B).

However, the WDNR fails to mention that “[a]bout three times as many people voiced

opposition to motorized use [including all-terrain vehicles (ATV), utility task/terrain vehicles

(UTV, sometimes referred to as side-by-sides), off-road vehicles or trucks (ORV) and off-road

motorcycles or motorbikes] as advocated for motorized use at the Sauk Prairie Recreation Area.”

Pohlman Aff. Ex. B at 4. The WDNR similarly omitted that “[a]bout three times as many people

voiced opposition to incorporating a shooting range as advocated for a shooting range at the

Sauk Prairie Recreation Area.” Id. at 5.

Likewise, the WDNR ignored the wealth of comments against high-impact uses in its

2015 draft master plan for the Area. The WDNR generally states that “[p]ublic comments on the

2015 Draft Master Plan focused primarily on recreation uses, and in particular, on rocketry, dual-

sport motorcycle use, and the Class 2 dog training area.” Resp’t Br. 12. Additionally, the WDNR

states that 18% of people who anticipate visiting the Area “were likely to pursue dual-sport

motorcycling.” Id. at 32. But WDNR does not mention the 74% of individuals who anticipate

hiking or walking at the Area, the 51% of individuals interested in bird and other wildlife

watching, the 49% of individuals who anticipate general sightseeing, or the 48% of those

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interested in photography, many of whom will be directly impacted by unlawful, high-impact

uses at the Area. Pohlman Aff. Ex. D at 5. “Many people” also commented with “concerns about

the impacts that dual-sport motorcycles would have on wildlife.” Id. at 4. “The most common

concern was that the vehicles would disturb or displace animals, particularly birds, at the

property,” with others worried “that the noise from dual-sport motorcycles would adversely

impact other visitors and their enjoyment of the property.” Id.

Unsurprisingly, WDNR also did not mention the makeup of public comments stemming

from the release of its 2016 Master Plan and Final Environmental Impact Statement for the Area

(the “Plan” or the “FEIS”). Diane Brusoe, Property Planning Section Chief of the WDNR,

herself testified that out of over 270 comments, “around 180 were opposed specifically to the

two uses, the dual-sport motorcycle and rocketry.” Wisconsin Natural Resources Board Hearing

at 0:47:05 (Dec. 14, 2016).3 The Alliance alone boasts over 300 members in opposition to the

Plan who participated in the public comment process. See, e.g., Pet. for Judicial Review Ex. 18.

Conversely, “around 80” individuals submitted written comments in support of the Plan

including the dual-sport motorcycle and rocketry. Wisconsin Natural Resources Board Hearing

at 0:47:11 (Dec. 14, 2016).

While ignoring the majority of commenters against the plan, the WDNR overemphasizes

the impact to parties interested in high-impact uses at the Area. For example, the WDNR argues

that a stay would cause irreparable harm to the Wisconsin Army National Guard (“WIARNG”)

and motorcycle enthusiasts. Yet neither the National Guard nor any motorcycle organization has

joined this litigation in support of the Plan. And although the WIARNG has conducted

helicopter training exercises at the former Badger Army Ammunition Plant (“BAAP”) for

3

Video of the December 14, 2016, Wisconsin Natural Resources Board hearing is available at

http://dnrmedia.wi.gov/main/Play/f1f71109966243779b6759ea059a5d1e1d?catalog=9da0bb43-2fd4-

48a6-9d86-756192a62f17&playFrom=1459&autoStart=true.

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decades, these uses explicitly contravened guidance from the National Park Service. In its May 3,

2016 letter, the NPS asserted that “the use of the area by the National Guard for training with

helicopters or any other purpose (except training exercises which assist the DNR with cleanup or

development of the site) is not a recreational use and is not allowable under the requirements of

the FLP program.” Pet. for Judicial Review Ex. 13 at 8. Moreover, communication between

WDNR and the National Guard reveals that both were aware of the negative impacts due to noise

and the mere presence of helicopters on recreational opportunities offered in the Area. Potts Aff.

Ex. 23. Without an amendment to the National Guard’s assignment documents and negotiations

with WDNR to determine “a clear scope of the Guard’s usage so as not to adversely affect the

recreational use of SPRA lands and not allow expansion/encroachment into park operation . . .

the National Guard use will have to be discontinued.” Pet. for Judicial Review Ex. 13 at 8.

Notably, WDNR’s position on the WIARNG’s use has been inconsistent throughout the

planning process. The 2016 Master Plan acknowledges the need to restrict this use per the

conditions underlying the land transfer. Pet. for Judicial Review Ex. 1 at viii, 35 (“[I]t appears

that conditions related to the transfer of the property to the department restrict the WIARNG’s

ability to continue conducting training exercises here. As such, unless the situation changes, the

WIARNG will be required to phase out training at SPSRA.”). But WDNR’s Ms. Brusoe testified

at the Natural Resources Board hearing that “this use has been included in the final land transfer

via the National Park Service, so that will be a continuing use on this property.” Wisconsin

Natural Resources Board Hearing at 0:43:50 (Dec. 14, 2016). WDNR’s brief also argues for the

WIARNG’s continued use of the Area for helicopter training, without citing any authority for

allowing the use to continue.

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Unauthorized use of the Area should not be accorded more weight than recreational

interests of the majority of commenters opposed to high-impact uses. A stay would prohibit the

WIARNG and motorcycle users from inflicting harm upon the Area while this case proceeds.

B. The WDNR Ignores The Potential Irreparable Harm To The Environment.

WDNR argues that the Alliance’s members can continue to recreate in the Area “with

very little, if any, disruption or harm,” but this is false. Resp’t Br. 28. The Plan poses significant

harm to the environment, as evidenced by WDNR’s own ecological findings, and impedes the

Alliance’s ability to maintain its longstanding conservation efforts in the Area and to recreate in

the Area. For example, in December 2011, in preparation for its master planning process, the

WDNR completed a Rapid Ecological Assessment for the Sauk Prairie Recreation Area “1)

identifying and evaluating ecologically important areas, 2) documenting rare species

occurrences, and 3) documenting occurrences of high quality natural communities.” Potts Aff.

Ex. 24 at 7. In noting “exceptional characteristics” of the Area, the assessment concluded that the

Area supports numerous rare species: “Thirty-three rare animal species are known from the

SPRA, including four State Threatened and 29 Special Concern species. Seven rare plant species

are known from the SPRA, including two State Endangered (one is also Federally Threatened)

and five State Threatened species.” Id. at 6. Additionally, the assessment added that “[b]iologists

and birders are concerned about population declines of many grassland bird species.” Id.

“[G]rassland birds have declined more steeply than any other group of birds in North America

and the Midwest,” but the Area “provides extensive surrogate grassland, shrubland, and savanna

habitat for 97 confirmed or probable breeding bird species.” Id. “This is an impressive list for an

area the size of the SPRA, especially the number and diversity of grassland and shrubland birds

(21 species).” Id.

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The WDNR’s map in Figure 6 below identifies the two highest quality habitats for

grassland birds in the Area, which are found in the southcentral and northcentral sections of the

property. See id. at 32. The WDNR noted that these areas, in particular, “should be contiguous

and when combined with the restoration potential of the surrounding property and landscape

would offer significant management opportunities for viable populations of grassland and

shrubland birds.” Id. at 31.

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Nevertheless, WDNR’s 2016 Master Plan proposed future, potential motorcycle trails

squarely within the areas warranting protection of these endangered species. See Figure 1: Sauk

Prairie State Recreation Area Concept Plan. The WDNR argues that the Plan’s allowance of

dual-sport motorcycles on up to 50% of the equestrian and biking trails for up to six days per

year is a “limitation” that somehow prevents irreparable harm to the Alliance and the

environment. Resp’t Br. 26. But as seen in Figure 1 below, arguably more than 50% of the

equestrian and biking trails thread through the areas identified by WDNR as high-priority habitat

for grassland and shrubland birds. Compare Figure 6, with Figure 1: Sauk Prairie State

Recreation Area Concept Plan. This use clearly and negatively affects Alliance members’ and

the public’s recreational activities, like birding and restoration efforts, in addition to the adverse

impacts to breeding grassland and shrubland birds.4

4 The Alliance details the potential environmental impacts that motorcycles could have upon the number

and diversity of species in the Area in its opening brief. Pet’r Br. 20–21.

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The idea that - because the Area was historically used as an ammunition plant - high-

impact uses now will have no harm is illogical. The WDNR itself has said that the Area is

unique and worthy of environmental protection and restoration, and the property has not been

used as an ammunition plant since the 1980s. For the last two decades, the Alliance and its

members have worked diligently with the local community and the WDNR to restore the Area to

its former self. The fact that it may have been overused and abused in the past says nothing

about the irreparable harm that will occur to the property in the future or to how the high-impact

uses may damage and/or slow the ongoing restoration efforts.

The WDNR also states that if, during any dual-sport motorcycling events, any of the

trails are damaged, the motorcycle club must repair them. Resp’t Br. 27. And WDNR states that

“[i]f BAAP can be repaired and restored after decades of industrial use, its trails can be repaired

and restored if a two-day dual-sport motorcycle event causes any damage.” Id. at 28. But WDNR

overlooks its own research and contradicts its own Plan. While the BAAP lands have been

repaired to some extent, there are still lingering issues and areas of concern informing future uses

of the Area. The Plan acknowledges this by stating that “[t]he site’s use as an industrial facility

that manufactured propellants resulted in some areas being contaminated.” Pet. for Judicial

Review Ex. 1 at 5. Although the U.S. Army “undertook an extensive remediation effort to

address these contamination issues . . . two types of areas have permanent restrictions on future

use: (1) landfills and other sites capped with clay to prevent infiltration of precipitation, and (2)

areas where contaminants were treated and cleaned but the potential exists that additional

contaminants may occur four or more feet underground.” Id. The WDNR explored these issues

as part of its 2012 Regional & Property Analysis of the Area. See Pet. for Judicial Review Ex. 5.

For example, Draft Map D, below, identified “Landfills & Dig Restriction Areas” in red and

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orange, which carry deed restrictions excluding “ground intrusive activities, digging, or

disturbance of the soils” such as “raking, scratching, scraping, tilling, moving, digging,

excavating, drilling, augering, trenching, plowing, etc. the surface and subsurface levels of the

earth, with manual tools, anchors, rods, augers, motorized equipment, farm implements,

construction equipment, earth moving equipment, or by any other means.”

The 2012 Regional & Property Analysis also identified “Munitions & Explosives of

Concern Clean up Areas,” seen in Draft Map J, below. See also Pet. for Judicial Review Ex. 5 at

50. Although “MEC areas have been certified clear of MEC’s up to 4 ft. in depth,” land use in

this area is limited to “farming, agriculture, surface recreation, vehicle parking, or surface supply

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storage uses.” This area “limit[s] the extent of disturbance, and therefore use, allowed.” Pet. for

Judicial Review Ex. 5 at 50.

Despite the WDNR’s initial recognition of the permanent restrictions associated with

landfills and MEC Clean up Areas, the WDNR still proceeded to permit future, potential trails

for motorcycle use dangerously close to these areas of concern. Compare Figure 1: Sauk Prairie

Recreation Area Concept Plan, with Draft Map D and Draft Map J. Of all proposed high-impact

uses, dual-sport motorcycling will likely inflict the most harm upon these areas, like the MEC

Clean-Up Areas, with restrictions on virtually any form of soil displacement. Without a stay,

high-impact uses like dual-sport motorcycling could disturb remaining environmental

contamination and exacerbate the harm to sensitive areas of the Area.

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The WDNR also overlooks the environmental harm of allowing “a year-round Class 2

dog training area.” Resp’t Br. 24. Despite the WDNR’s focus on defending off-leash dog use,

the Alliance’s opposition to this issues rests solely on the use of firearms to train dogs for

hunting. As stated in Petitioner’s opening brief, “wildlife may [] flush or exhibit avoidance

behaviors due to the occasional discharge of firearms used in training.” Pet’r Br. 21. In

September 2015, Petitioner also sent WDNR a commissioned study analyzing the impacts of

using rifles near breeding birds. Pet. for Judicial Review Ex. 11. Although the Alliance initially

commissioned the study in response to an earlier plan proposal for a shooting range in the Area,

the results are relevant to WDNR’s proposal for the Class 2 dog training area. The study,

conducted by a PhD scientist, found that the use of firearms in the Area would “have immediate

adverse impacts on current breeding populations of vireos, meadowlarks, grosbeaks, warblers,

and grassland sparrows, and will prohibit any re-establishment of former breeding populations of

upland sandpipers.” Id. at 58. Ultimately, the study concluded that “the available science on

acoustic impacts on birds indicates that any rifle range at SPRA would very likely reverse and

fracture the current recovering grassland bird breeding assemblage.” Id. at 64.

Further, environmental and noise impacts from dog training are distinguishable from

those associated with hunting; the WDNR has limited hunting, and therefore its impacts, to

between the months of October and May, whereas the Class 2 training ground is available year-

round. Pet. for Judicial Review Ex. 1 at 30. Presumably, there will also be more frequent

discharges of guns for dog training than for hunting, as a hunter typically only shoots at game,

while dog training involves repetitive shooting. Moreover, the Class 2 dog training area sits

precariously close to the high priority grassland bird habitat, meaning a stay is necessary to

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protect these critical species and the Alliance’s conservationist interests within this area.

Compare Figure 6, with Figure 1: Sauk Prairie State Recreation Area Concept Plan.

To avoid a discussion of the environmental harms associated with high-impact

recreational uses in the Area, the WDNR claims that the Alliance’s “members can recreate at any

of the numerous other publicly accessible lands in Sauk County” that prohibit high-impact

recreational uses. Resp’t Br. 28. But this is immaterial, and frankly, preposterous. The Alliance

was formed and has worked with and on the Badger property for almost two decades. That there

are other places where the Alliance’s members can go for recreation fails to address the potential

harm to the environment at the Area and overlooks the fact that the sole purpose for which the

Alliance was established is to “promote[] education and cooperative conservation on the former

Badger Army Ammunition Plant lands.” Pet. for Judicial Review at 2 (emphasis added).

The WDNR also suggests that the burden rests on the Alliance to prove the extent of

environmental harms and that the Alliance’s reliance on the Master Plan “is misplaced.” Resp’t

Br. 21–22 (“the Alliance fails to present any independent evidence of concrete, significant, or

likely irreparable harm that will occur if the ‘high-impact’ uses are not stayed”) (emphasis

added). To the contrary, the burden rests entirely upon the WDNR to adequately analyze and

“take a ‘hard look’ at the environmental consequences of its proposed action.” Citizens’ Util. Bd.

v. Pub. Serv. Comm’n of Wis., 211 Wis. 2d 537, 556 (Ct. App. 1997). As explained in the

following section, the WDNR failed to take a “hard look” at the environmental impacts of the

Master Plan and disregarded any impacts that it did consider in the process.

The Alliance’s members, the general public, and the environment will suffer irreparable

harm without a stay of high-impact uses at the Area while this case proceeds.

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IV. PETITIONERS HAVE DEMONSTRATED A STRONG LIKELIHOOD OF

SUCCESS ON THE MERITS

A. The WDNR Was Required To Comply With WEPA.

The WDNR erroneously argues that it was not required to comply with WEPA. WEPA

requires preparation of a detailed environmental impact statement (“EIS”) for “major actions

significantly affecting the quality of the human environment.” Wis. Stat. § 1.11(2)(c). Although

developing a master plan may or may not require an EIS, Wis. Admin. Code NR § 150.20(2)(a),

the WDNR was still required to analyze the environmental impacts of the proposed action and of

reasonable alternatives. See Wis. Stat. § 1.11(2)(c).

And once the WDNR decided to follow the EIS process, it was required to comply with

all of WEPA’s requirements. This includes preparing a full, detailed EIS that takes a “hard look”

at the environmental impacts of the proposed action. The WDNR even certified a Record of

Decision that concluded that (in its view, at least) it had complied with WEPA in preparing the

Plan and FEIS. Potts Aff. Ex. 25. Having undertaken a major action subject to WEPA analysis

and having certified its supposed compliance with WEPA’s requirements, the WDNR cannot

now argue that WEPA’s requirements never applied.

B. The WDNR Did Not Comply With WEPA.

WEPA requires a state agency to prepare an EIS to “take a ‘hard look’ at the

environmental consequences of its proposed action.” Citizens’ Util. Bd., 211 Wis. 2d at 556. The

Alliance’s opening brief discusses many of the deficiencies in the EIS, including the WDNR’s

failure to support its conclusions with studies or evidence and the WDNR’s failure to adequately

analyze alternatives. Pet’r Br. 15–18. The WDNR did not directly address these arguments in its

response. Instead, the WDNR’s response brief merely lists the topics of each chapter of the FEIS

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and references two of the alternatives analyzed, without arguing that the level of detail in those

sections of the FEIS was sufficient under WEPA. Resp’t Br. 13–14.

This is telling.

The FEIS wholly lacked a detailed analysis of the environmental impacts of alternatives.

Although the FEIS included a brief discussion (in only twelve pages) of the recreational

opportunities offered by each alternative, it did not include a detailed discussion of the

environmental impacts of each alternative, which is required by WEPA. See Wis. Admin. Code

NR § 150.30(1)(c). For example, the half-page analysis of the “limited recreational use”

alternative merely discusses regional opportunities for different recreational uses but does not

include any discussion of the environmental impacts of that alternative. Pet. for Judicial Review

Ex. 1 at 177–78.

In addition, the “minimal management” alternative referenced by WDNR was not, in

fact, a reasonable or practical alternative. The “minimal management” alternative is essentially a

no-management alternative that would result in the decline of roads, habitat, and recreation areas,

and could jeopardize the WDNR’s ownership of the Area. The NPS notified WDNR of this flaw

in the draft EIS in a letter dated May 3, 2016:

[T]his is not the “no action” alternative and, in fact, is not a reasonable alternative

because if the State were to follow this approach with the decline as described, the

NPS would likely consider the property to be in neglect and noncompliance with

the justification for obtaining the property and the commitments made in the

Program of Utilization, which would potentially put the property in jeopardy of

reversion to the Federal government.

Pet. for Judicial Review Ex. 13 at 5. Because the “minimal management” alternative was neither

reasonable nor practical, the WDNR should not have included it in the EIS. Accordingly,

referencing the “minimal management” alternative does not support WDNR’s argument

regarding the adequacy of the FEIS. See Resp’t Br. 13.

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C. The WDNR Was Required To Comply With NEPA.

NEPA applies to both actions undertaken by federal agencies and actions undertaken by

states or private parties for which federal agency approval is required. See Nat’l Forest Pres.

Grp. v. Butz, 485 F.2d 408, 411–12 (9th Cir. 1973) (“While the federal defendants are not

themselves planning to take action ‘significantly affecting the quality of the human

environment,’ 42 U.S.C. § 4332 (C), the private defendants plan such action, and the [land]

exchange is an act without which such action could not be taken. . . . Such federal ‘enablement’

has consistently been held to be subject to NEPA.”) (citations omitted).

Under the “enablement” doctrine, the WDNR was required to comply with NEPA

because a federal agency (the NPS) retains control over use of the Area. Indeed, the NPS must

approve any amendment to the Program of Utilization, and NPS retains a reversionary interest in

the property. NPS notified WDNR of this very fact:

This land is no longer federally owned but owned by the State of Wisconsin, so

the NPS does not determine specifically how you should use the property.

However, the NPS must consider proposed changes that would require an

amendment to the POU, and evaluate and disclose impacts from those uses, in

light of the National Environmental Policy Act of 1969 (P.L. 91-190 as amended;

82 Stat. 852; 42 U.S.C. 4321 et seq.), and guidance and regulations from the

Council on Environmental Quality for Implementing the Procedural Provisions of

NEPA (40 CFR 1500–1508), as well as Department of the Interior policy and

procedures.

. . .

The NPS’s responsibility to review post conveyance actions such as amendments

to a deed or program of use is a federal action that triggers compliance with the

requirements of the National Environmental Policy Act (NEPA) to integrate

environmental considerations into our decision-making process.

Pet. for Judicial Review Ex. 13 at 1, 3. Because the Plan would allow uses inconsistent with the

Program of Utilization, the NPS and WDNR must conduct a full NEPA analysis and the NPS

must approve an amendment to the Program of Utilization. Not only has WDNR admitted that

NEPA applies in past communications, but the WDNR also contemplated the potential for

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noncompliance with NEPA following receipt of NPS’s May 3, 2016, letter. See Potts Aff. Ex. 26

(“We may get into some NEPA issues”). Thus, NEPA applies and requires that WDNR and NPS

prepare a legally sufficient EIS to study the environmental impacts of an amendment to the

Program of Utilization. Accordingly, any purported approval of an amendment to the Program

of Utilization is invalid until NPS and WDNR comply with NEPA.

The 2003 EIS, which only analyzed the impacts of “low intensity recreation use,” cannot

support the master plan’s proposed uses for the Area. See Pet. for Judicial Review Ex. 14 at 2-7.

And, as explained above, the FEIS failed to adequately analyze the proposed high-impact uses

and alternatives. NEPA requires WDNR and NPS to analyze any high-impact recreational uses

in an EIS prior to being implemented in the Area.

D. High-Impact Uses Have Never Been Contemplated For The Area.

The WDNR implies that high-impact uses have always been contemplated for the former

BAAP property, but the record (and common sense) suggests otherwise. The 2001 Badger Reuse

Plan stated:

Recreational activities should focus on Badger’s natural and cultural features and

values. Activities should be low-impact in nature and should be compatible with

other uses and overall management goals. Efforts shall be made to accommodate

appropriate recreational activities, but these activities shall have no significant

detrimental impacts on the cultural and natural features of the property.

Pet. for Judicial Review Ex. 15 at 26 (emphasis added). Nowhere in the Badger Reuse Plan did

the Reuse Committee endorse high-impact uses. To the contrary, the Badger Reuse Plan

specifically endorsed only “low-impact” uses and activities that would not have “significant

detrimental impacts on the cultural and natural features of the property.” Id.

The Badger Reuse Committee’s intentions were confirmed in a December 8, 2016 letter

signed by 15 of the 21 committee members:

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We are, however, deeply concerned that the WDNR plan includes several

recreational activities—off-road motorcycle use, model rocketry, year-round dog-

training and dog-trialing, the potential for a long-range shooting range, and an

exclusive 600-acre “Special Use” area—that run counter to the Badger Reuse

Plan’s clear consensus to emphasize and include only compatible, low-impact

recreational opportunities.

Pet. for Judicial Review Ex. 18 at 2 (emphasis in original).

Likewise, the 2005 Program of Utilization, while recognizing that WDNR would have to

undertake a master planning process, only contemplated low-impact uses:

Many groups with varying interests in Badger share a common goal with the

WDNR to convert it to a recreational property with low impact recreation (hiking,

picnicking, primitive camping) prairie, savanna and grassland restoration,

environmental education, and cultural/historical interpretation, with the potential

for an education center. The specifics for how the property will be developed and

managed will come from a master planning process the WDNR is required to

prepare. However, these are the types of uses we’d anticipate would come out of

the planning process.

Pet. for Judicial Review Ex. 4 at 10 (emphasis added). It is clear that the Program of Utilization

only contemplated low-impact recreational uses. Indeed, both the Wisconsin Legislative Council

and the NPS reached this conclusion. Pet. for Judicial Review Ex. 8, Ex. 13. The NPS

specifically informed WDNR that the proposed high-impact uses in the draft master plan were

inconsistent with the Program of Utilization and would require an amendment to the Program.

Pet. for Judicial Review Ex. 13 at 1. As recently as June 8, 2016, even WDNR acknowledged in

a letter to NPS that “[t]he DNR’s application stated a general intent to manage the property for

low impact recreation.” Potts Aff. Ex. 27 at 2.

The WDNR’s interpretation of the Program of Utilization rests entirely on the recognition

that it would conduct a master planning process for the Area. The Program of Utilization,

however, does not give the WDNR carte blanche to implement whatever uses it wants, so long as

it completes the master planning process. Such an interpretation would render everything else in

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the Program of Utilization, including its exclusive consideration of low-impact uses,

meaningless. Allowable uses in the Area must be consistent with those described in the Program

of Utilization.

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that the Court grant its motion

for a partial stay of execution of the WDNR’s and NRB’s Plan and FEIS pending judicial and

administrative review. Alternatively, Petitioner respectfully requests that the Court enjoin the

WDNR and NRB from allowing high-impact uses on the Area pending the Plan and FEIS’s

judicial and administrative review.

DATED: February 10, 2017

s/ Brian H. Potts

Brian H. Potts (WI Bar #1060680) bpotts@perkinscoie.com Jeff J. Bowen (WI Bar #1074862) jbowen@perkinscoie.com Danielle Grant-Keane (WI Bar #1103436) dgrantkeane@perkinscoie.com Perkins Coie LLP One East Main Street, Suite 201 Madison, WI 53703-5118 Telephone: 608.663.7460 Facsimile: 608.663.7499

Attorneys for Plaintiff Sauk Prairie Conservation Alliance