Appeals court rules Wisconsin can't use federal money for Highway 23

Patrick Marley
Milwaukee Journal Sentinel

MADISON – The latest transportation headache for Wisconsin officials comes in the form of a court ruling that says the state can’t use federal money to rebuild a $151 million stretch of highway between Fond du Lac and Sheboygan.

The decision, handed down last week by a three-judge panel of the U.S. 7th Circuit Court of Appeals, could mean additional strain on the state’s cash-strapped transportation fund.

An aerial view from February shows State 23 east of Fond du Lac.

State Department of Transportation officials have not said how they plan to respond.

They could appeal the ruling to the full appeals court or the U.S. Supreme Court, but there is no guarantee either would take the case. They could also try to advance the project using state money, but that would likely mean extended delays because of a funding shortage for highways.

A third option would be to revise traffic projections and seek court approval to revive the project.

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The environmental group 1000 Friends of Wisconsin in 2011 sued over the project and U.S. District Judge Lynn Adelman in 2015 threw out a finding from the U.S. Department of Transportation that the 19-mile stretch of road could be expanded from two lanes to four. At issue was the method transportation officials had used to project traffic patterns in concluding more lanes were needed.

The Wisconsin Department of Transportation appealed, but the federal department did not.

Last week, the appeals panel ruled 2-1 that Adelman’s decision would stand because the federal government had not appealed the ruling.

State officials “remain free to continue the highway project, though on the state’s dime,” Judge Frank Easterbrook wrote for the majority.

Joining Easterbrook was Judge Ann Williams. Dissenting was Judge Gary Feinerman.

If put back on track, the project is expected to cost $151 million, according to state DOT figures released in February. So far, about $34 million has been spent.

The project has long been delayed because of the litigation. Gov. Scott Walker recommended putting it off another two years even before last week’s decision came down. The ruling could mean further delays.

Walker and his fellow Republicans who control the Legislature are split on how to fund roads.

Walker wants to borrow $500 million and delay Highway 23 and some other projects.

Senate Republicans want to borrow $850 million to put more projects back on track. Assembly Republicans want to immediately increase taxes on gasoline to pay for highways while cutting income taxes over the long run by a much larger amount.