No tribal ‘off-rez’ night deer shining, for now

Madison — A procedural error as judged by the Western District of federal court will keep Chippewa tribal members from legally shooting deer at night in off-reservation settings.

For now.

While federal court Judge Barbara Crabb ruled in favor of the state on Monday, Dec. 17, she also made it clear that she expects the state and tribes to negotiate a settlement to the night shining/shooting issue.

If negotiations fail, Crabb will take the issue back into her court sometime in spring for a full trial.

“There will be no night hunting for 2012, but we’re optimistic that it will be available for 2013,” said Sue Erickson, public information director for the Great Lakes Indian Fish and Wildlife Commission.

“It’s clear that Judge Crabb wants the parties to work this issue out, but we still do have legitimate safety concerns,” said Quinn Williams, a DNR lawyer who assisted the Department of Justice in presenting the case.

Crabb said the state’s six Chippewa tribes overstepped the bounds of Crabb’s 1989 deer-hunting ruling when they claimed the ability to shoot deer at night.

In her decision, Crabb wrote, “To grant plaintiffs’ request, I would have to conclude that plaintiffs are permitted to amend a judgment that is more than 20 years old without a stipulation from defendants or approval from this court. Not only is that view untenable, but the consequences of adopting it could be perilous.

“One of the primary reasons for the creation of courts is to prevent the dangers that often accompany self-help remedies such as plaintiffs’ November 2012 order. Settling disputes by negotiation without court intervention is ideal for all the parties involved, but when negotiation fails, the parties must come to court (or submit to arbitration) to resolve the matter. The proper response cannot be for each side to decide on its own what the law permits, particularly with an issue like this one that involves public safety concerns.”

What Crabb was getting at is that GLIFWC, on behalf of the tribes, drafted a “commission order” making it “legal” for Chippewa tribal members to shoot deer on off-reservation public land at night.

In talks between the state and tribe leading up to the GLIFWC order, the DNR’s Cathy Stepp, Scott Gunderson, and Williams told GLIFWC and tribal leaders that a commission order did not meet the standards of protocol laid out by Crabb 20 years ago.

The DNR told the tribes that DNR wardens would cite any tribal members caught shooting deer at night, even if GLIFWC wardens would not. That’s how the case came to Crabb: The tribes filed for injunctive relief from state regulation. The tribes wanted Crabb to tell the DNR not to issue citations for night shooting.

That didn’t happen.

“The secretary (Stepp), Gundy, and myself have told the tribes several times not to use that process. We couldn’t talk about the issues in the timeframe the tribes laid out,” Williams said. “The process issue was a big issue. This is a big decision. The night-hunting issue is a big issue and we have big safety concerns, but (getting a favorable decision from Crabb) on the issuance of a unilateral (GLIFWC) commission order is a big deal. This doesn’t affect just night hunting. It could affect any other issue the tribes have an interest in.”

As for negotiating the night-shooting issue, neither side had any immediate plans to get started. The tribes could still decide to appeal Crabb’s ruling.

“The tribes will be discussing this further in the next few weeks,” Erickson said. “The judge indicated that the state and tribes should get together to see if they can’t find a resolution. If that’s not satisfactory, the judge mentioned it can go back to court to see if an amendment to final judgement would be appropriate.”

During the Dec. 16-17 hearing, Tom Dosch, on behalf of the state, argued that the GLIFWC night-shooting rule was not safe because it did not require shooting from elevated positions while using bait. Dosch used a Minnesota tribe’s night-shooting rules as an example. Elevated shooting over bait is required in Minnesota.

Colette Routel, who presented the case for the six tribes, argued that requiring hunters to put up and take down stands in the dark created another safety concern. She also pointed out that treestands are not allowed overnight on state land.

Williams did not say which points the state might be willing to bend on if the two sides enter negotiations.

Nor did Erickson, other than saying, “I can’t say (the tribes) are not interested in the Minnesota framework.”

“We do remain open to negotiations, but any discussion will have to account for the state’s concerns,” Williams said.

Before the state gets that far, though, Williams said, “This is still a federal case in front of Judge Crabb. The Department of Justice will advise the state on its options and the relative legal risk of going forward. The AG will make the final decision, with DNR input.

“But I’m still not convinced that hunting wolves at night is analogous to hunting deer at night. There was no requirement in the (GLIFWC) code to use bait or calling to get deer in close,” he said. “During the hearing they were not showing they were willing to use treestands at a prescribed minimum height at night, with bait at a certain distance from the stand.”

Dosch also tried to show that there would eventually be far fewer night wolf hunters than night tribal deer hunters.

Routel countered by saying there are currently only 74 tribal members who have taken GLIFWC’s night deer shooting safety program and marksmanship test. She said the state, as of Dec. 13, could have as many as 700 hunters after wolves at night.

Dosch brought out testimony showing that of the 108 or so wolves harvested by that date, none had been shot at night.

He also had testimony showing that most of the deer registered by the six tribes come from seven counties, with his point being that if the GLIFWC program were allowed to become fully spooled up, there would be far more tribal night deer hunters – and far more shots taken – than there would be night wolf hunters.

Routel countered by demonstrating that the state’s wolf season forces hunters into one or two zones as the harvest climbs and zones close. She had testimony saying that, for this year, up to 700 wolf hunters could end up hunting wolves in one zone before the hunt closes.

Stepp said the DNR will address those points, and more, when the two sides get together.

“The DNR is pleased with (Judge Crabb’s) decision that Wisconsin Chippewa tribes overstepped their authority when they issued the authorization for hunting deer at night with lights without state approval,” Stepp said. “The state will continue to work in good faith toward resolving the numerous issues surrounding the state’s management of natural resources within the ceded territory and their potential overlapping impacts with the Chippewa’s treaty-established rights to self-regulate their own harvest.”

Crabb hinted that she does not expect a settlement to be that difficult to reach.

“A review of the … negotiations leading up to the recent motions suggests that there remains a significant possibility of an agreement between the parties,” the judge wrote. “Now that the current hunting season has been removed from the table, I encourage both sides to work together … to draft a joint motion to modify the judgment in a way that adequately addresses defendants’ safety concerns and provides due respect for plaintiffs’ treaty rights.”

For more on the Dec. 12-13 hearing, see Dean Bortz’s blog at

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