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Judge dismisses attorney general's case to remove GOP-backed DNR board chair

AG Josh Kaul says his office will appeal the Dane County ruling.

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Front door of the Wisconsin Department of Natural Resources office. Melissa Ingells / WPR

A Dane County judge has rejected Wisconsin Attorney General Josh Kaul's lawsuit to remove the chair of the state Natural Resources Board from his post, even though the GOP appointee's term ended several months ago.

Kaul brought the lawsuit last month to force Fred Prehn from the board. Prehn was appointed to a six-year term on the board by former Republican Gov. Scott Walker in 2015. His term expired May 1.

When the lawsuit was filed, Kaul argued Prehn's continued presence in the position is in "defiance of the will of the voters" and "is fundamentally undemocratic." His refusal to vacate the seat has denied Democratic Gov. Tony Evers' appointee, Sandra Naas, a position on the board. It has also maintained a 4-3 majority in the body for Republicans.

Prehn has argued he doesn't need to leave the position until the Republican-controlled state Senate confirms his successor. He has cited a Wisconsin Supreme Court ruling from the 1960s as proof he is allowed to stay. In the case, Thompson v. Gibson, the court allowed a state auditor to remain in his post because his replacement wasn't confirmed.

In a ruling issued Friday, Sept. 17, Dane County Circuit Court Judge Valerie Bailey-Rihn agreed with Prehn.

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PREVIOUSLY: AG Kaul files lawsuit seeking to force Walker appointee from DNR Board Kaul argues the governor can lawfully remove board appointees at any time.

"Accordingly, the Court is bound by the holding of Thompson v. Gibson to conclude that there is no vacancy in the Board seat," she wrote in her decision.

Prehn applauded the ruling, calling himself "a stickler for governance and following law" and saying he is "pretty pleased" with the result.

"I think this confirms the fact that, indeed, it's been done before and what I’m doing is legal under the Wisconsin constitution and law," he said.

Prehn also criticized the state Department of Natural Resources, which declined to participate in a previously scheduled board meeting earlier this month.

"I believe the department made it very political," he said. “We need to get some work done on the Natural Resources Board, and we need to work with the department, and we’re more than willing to. Hopefully, they'll come back to the table and move forward.”

At the time, a spokesperson for the department denied its lack of participation in the meeting was political, instead citing "a lack of action items for the agenda from the department."

Kaul said Friday he plans to appeal the Dane County court ruling.

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"The court's ruling makes clear that there are strong legal arguments for finding that Dr. Prehn is no longer a member of the Natural Resources Board, but the court concluded that, in light of precedent from 1964, such a ruling would have to be made by the Wisconsin Supreme Court," the attorney general said in a prepared statement.

Wisconsin Public Radio can be heard locally on 91.3 KUWS-FM and at wpr.org .

Wisconsin Public Radio, © Copyright 2021, Board of Regents of the University of Wisconsin System and Wisconsin Educational Communications Board.

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