Natural Resources Board

A judge has ruled that the Natural Resources Board violated the state open meetings law in January of 2016 when it deliberated during a dinner meeting the night before it approved a controversial plan allowing snowmobiles in Blue Mounds State Park. Above, at a December board meeting, Chairman Terry Hilgenberg, left, DNR Secretary Cathy Stepp and other board members listen to public comments.

News Republic file photo

A judge has ruled that the Wisconsin Natural Resources Board violated the state’s open meetings law by discussing the public’s business during a private dinner meeting.

The violation occurred Jan. 26, 2016, the night before the board approved a controversial state Department of Natural Resources plan to allow snowmobiles in a state park known for silent sports such as cross-country skiing.

In a decision signed Thursday, Dane County Circuit Judge John Markson placed responsibility on DNR managers whose emails revealed plans to defuse board objections during the dinner meeting because of strong public opposition to the Blue Mounds State Park master plan.

“While there may be no evidence in this record of collusion on the part of board members to achieve a specific outcome, there is clear evidence of DNR staff’s intent, action, and motivation to reach board members outside of noticed public settings,” Markson wrote.

“I cannot conclude that the board dinners were purely social and not intended to evade the requirements of the open meetings law,” Markson wrote.

The lawsuit filed by Madison attorney Christa Westerberg cited an email from DNR land division administrator Sanjay Olson laying out strategy for staff members joining the board for dinner that night.

“We want to re-brief as 215 comments came in, in opposition to the snomo trail,” Olson wrote. “I feel Preston/ Terry/Gary understand this — but we want to answer any questions they have — as well and try to get in front of the others not yet briefed. Ben and I will both be attending the dinner tonight to answer questions as well.”

The email referred to board members Terry Hilgenberg, Preston Cole and Gary Zimmer. The board has seven members appointed by the governor.

State law requires public bodies to announce meetings so the public can understand and participate in government deliberations and decision-making.

The judge also found that the board had been too vague in informing the public about the topics of closed meetings in recent years. Public bodies may meet behind closed doors to discuss certain topics such as pending lawsuits, but they must disclose the subjects of such meetings and the provisions of the law that allow them to be closed.

Markson ordered the board to pay court costs and attorneys fees.

“I respectfully submit that the Board (and agency staff) would do well to keep the presentation of information relevant to its decision-making to a format which the public can understand and respond to,” Markson wrote.

The lawsuit was filed in November by former park superintendent Karl Heil and Blue Mounds resident Kenneth Wade.

“It is unfortunate that Karl Heil and I needed to take legal action to convince the NRB and DNR that they must open all their decision-making activities to the public,” Wade said in a statement Friday.

“We were unaware of the lobbying and discussion between the DNR and NRB members about the park plan that occurred prior to the official meeting,” Wade said. “This helps explain the lack of NRB discussion at that meeting in response to the overwhelming public opposition to the plan.”

Based on emails unearthed through the state open records law, the lawsuit alleged DNR staff caused an illegal “walking quorum” by polling board members before the Jan. 27 meeting where they voted unanimously to approve a snowmobile trail through the park about 25 miles west of Madison.

The trail, which is to cross the park from the Military Ridge State Trail on the park’s south boundary to private land on the north, was opposed by cross-country skiers, mountain bikers and other park users.

Nearly 200 people submitted written comments to the board opposing the snowmobile trail, while only 12 favored it.

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Steven Verburg is a reporter for the Wisconsin State Journal covering state politics with a focus on science and the environment as well as military and veterans issues.