The Wisconsin Supreme Court is currently considering whether to hear the case of the proposed Osceola Bluffs development overlooking the St. Croix River, after opponents appeal to the “court of last resort” in early December. A coalition of environmental groups has also filed a brief supporting the opponents, marking another expansion of the case, as it moves from the concerns of neighbors and local river advocates to include those of regional, statewide, and national organizations.

“Throughout the Riverway, being on the River itself, or on its banks, is overwhelmingly being in a natural and undeveloped waterway – in a natural viewshed, relative peace and quiet, and minimal intrusion of the modern world,” the environmental groups wrote. “That experience, if it is to exist for future generations, requires that the comprehensive protections provided by federal, state, and local laws be fully, faithfully and uniformly enforced throughout the entire length of the Riverway.”

The proposal by Forest Lake, Minn.-based Gaughan Cos. for a four-story apartment building facing the river was approved by the village council in the summer of 2023. That’s when several neighbors of the site and the St. Croix Scenic Coalition sued to stop the project, and it has been moving through the courts ever since.

The opponents succeeded in convincing the circuit court to reverse the approval, and the village appealed to the state Court of Appeals. The appeals court overturned the lower court ruling in early November, allowing the project to proceed. Opponents are now asking the state’s highest court to rule.

The village has also responded to the Supreme Court appeal in its own brief, explaining why it believes the court should not take up the matter, and let the Court of Appeals ruling stand.

“Ultimately, [St. Croix Scenic Coalition]’s argument regarding the Court of Appeals’ decision boils down to the fact that SCSC does not like that the standing requirements in Wisconsin Statutes section 781.10,” the village’s lawyer, Joseph Langel, wrote in a Dec. 19 filing. The statute Langel referred to became law in 2023, and the Osceola case is a first test of its powers.

Promised protection

A week after the village’s filing, the Supreme Court granted a request by the environmental groups to submit a brief in the case, as the court is considering whether to take up the matter. The organizations are Wild Rivers Conservancy of the St. Croix and Namekagon, the River Alliance of Wisconsin, the Minnesota Center for Environmental Advocacy, and the Sierra Club.

The group’s filing argues that Wisconsin’s state government has made a legally-binding promise to the federal government to help protect the St. Croix.

“[I]f the decision of the Court of Appeals in this case stands, the State will have failed to fulfill this promise to the federal government,” the group’s lawyer, Dennis M. Grzezinski, wrote.

The environmental groups told the court they also need to weigh in because of the far-reaching implications of the case. They say letting the Court of Appeals ruling stand, and allowing the Osceola Bluffs proposal to proceed, would open the door to almost entirely unregulated development, both along the St. Croix River and the state of Wisconsin.

“This subjects the entire Riverway to the death of a thousand cuts – precisely what Walter Mondale feared would happen unless compliance with the law is able to be enforced in this case,” the environmental groups argued, referring to former Senator and Vice President, and St. Croix River champion, Walter Mondale.

Legal limits

While the river’s protections have been the subject of frequent fights over the past 130 years or so, the Osceola Bluffs case represents a new issue. It mostly hinges on interpretation of a law passed by the Wisconsin legislature in 2023 and signed by Gov. Tony Evers that sought to limit opposition to new residential development as a means to expand construction of new housing in the state. Its supporters said it would prevent neighbors with a “Not In My Backyard” (NIMBY) attitude from blocking proposed construction projects.

The legislation limits who can sue to stop a development proposal to a “person that, as a result of the final decision on the application for an approval, sustains actual damages or will imminently sustain actual damages that are personal to the person and distinct from damages that impact the public generally.”

The Court of Appeals interpreted that to mean that Osceola residents who would live within a block of the new building, as well as one who lives at the base of the bluff below the proposed apartment building, were not qualified to sue the village over problems with its approval.

Harm to the river was also deemed insufficient grounds. The village explained the argument in its filing, saying harm to the river was general and not specific to the opponents.

“The St. Croix River can be enjoyed by anyone, not only those who own property located near or on the river itself,” the village wrote.

Opponents of the proposal say that broad interpretation would bar almost anyone from raising legal challenges.

“If these petitioners lack standing to challenge the Village’s approval of this noncompliant development, it is hard to imagine who would have standing to obtain court review of this or any other municipality’s approval of noncompliant developments anywhere in the Riverway,” the environmental groups argue.

‘Nicks and cuts’

The groups made repeated mentions of Mondale in the brief, and how the Osceola Bluffs case is exactly the type of threat he warned about in the last years of his life. As a U.S. Senator in 1968, Mondale helped pass the Wild and Scenic Rivers Act, and worked to include the St. Croix in its protections. He remained a champion and lover of the St. Croix for the rest of his life.

As time passed, he often said his biggest concerns were the “nicks and cuts” of degradations to the river that he believed could ultimately ruin its wild beauty.

“I am absolutely certain that the law’s enactment and the listing of protected Rivers has served in a big way to protect these rivers, but these rivers remain under severe challenge from “nicks and cuts”: a little pollution here, a power line here, a big bridge here, an eroded shore bank here, a removed magnificent tree here, a communication tower here that destroys the natural beauty and environmental magnificence we sought to protect,” Mondale said in a 2013 interview.

Mondale died in 2021 at age 93-years-old. His concerns about St. Croix River protections remained. In 2018, he wrote the foreword to a book celebrating the 50th anniversary of the Wild and Scenic Rivers Act. In the essay, Mondale discussed the legacy of protections and what it will mean for future generations.

“I worry about the cumulative impact of nicks and cuts from unwise development impacting what our children and grandchildren will experience,” he wrote.

The Wisconsin Supreme Court is now considering whether to hear further arguments in the case. The court, with seven judges, is currently controlled by four justices supported by Democrats, with three supported by Republicans. An election on April 1 to replace a justice retiring on July 31 could swing control of the court again.