Sunday, February 5th, 2023
Sunday, February 5th, 2023

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7th Circuit Rules Against DNR in Tribal Night Hunt Case

Chicago, Ill. — A tribunal from the 7th Circuit Court of Appeals may have remanded a Chippewa tribal night deer hunting case back to federal district court on Thursday, Oct. 9, but there will be no tribal night hunting outside of reservation boundaries in 2014, according to state officials.

Court procedures that must yet play out as a result of the 7th Circuit Court of Appeals’ ruling will almost certainly push any future hearings – and decisions, shoudl the state appeal – on this issue into 2015.

The Wisconsin Department of Justice and Department of Natural Resources have 14 days from the Oct. 9 7th Circuit Court ruling to decide which legal option the state wants to employ next. That deadline is Thursday, Oct. 23.

The state can either ask for a re-hearing by the same three 7th Circuit federal judges who already ruled on Oct. 9 that Wisconsin could no longer ban six Chippewa tribes from hunting deer at night in the ceded territory of northern Wisconsin, or the state ask for a review by the entire cast (10 judges) of the 7th Circuit Court of Appeals.

If the state were to ask for a re-hearing by the tribunal, there is little chance the outcome is going to change. Based on comments  made and actions taken by the three judges in September, their point of view is unlikely to change.

If the state asks for an “en banc” review by all of the judges, the state would need six judges – a simple majority – to agree to review the case. The 7th Circuit Court has been operating at a five to five split between liberals and conservatves on many rulings of the full body the past several years.

The other hurdle in achieving an “en banc” review is that there was no dissention among the three judges in the Oct. 9 ruling.

The only other option would be requesting the Supreme Court to review the case.

If that becomes an option, the state may then make a run at an “en banc” review so that even if that move is denied, the state made an effort to use every available option before turning to the Supreme Court.

DNR spokesman Bill Cosh said that agency was reviewing the decision and meeting with the Department of Justice to discuss those options.

The three 7th Circuit judges were William J. Bauer, Richard A. Posner, and Frank H. Easterbrook. Posner wrote the decision.

Posner said he found little evidence of a threat to public safety in plans put forth by the tribes.

There is “compelling reason for vacating the 1991 ruling.” Posner wrote.

In his ruling, Posner wrote, “The night hunter doesn’t shoot until the deer is a brightly lit stationary object – a perfect target. Hunting deer during the day is likely to be more dangerous because there are more people about and the hunter will often be shooting at a moving animal, which a shooter is more likely to miss than a stationary one.

It’s true that at night the hunter may well have greater difficulty seeing a person in the woods behind the deer that he’s aiming at—and bullets fired from the high- powered rifles used to hunt deer carry a long way if they happen to miss the targeted deer. But in recognition of this danger the hunting regulations proposed by the tribes re- quire the night-hunting Indians to lay out lines of sight in the daytime and submit a shooting plan for approval. Unless a hunter plans to fire from an elevated position (when be- cause of the angle the bullet is likely to hit the ground within a safe distance), a member of the tribal conservation depart- ment or the tribe’s internal regulatory agency must travel to the site and confirm that the shooting plan complies with safety standards. Further mitigating the danger is that one of the plaintiff’s expert witnesses reports that there are very few people out and about at night in the ceded territory dur- ing the night deer-hunting season, which runs from Novem- ber 1 until the first Monday in January, with a break during the state’s regular nine-day hunting season when there are likely to be more people out both day and night.”

The six tribes took that request before Federal Judge Barbara Crabb in 2012, but Crabb ruled in favor of the state, saying that night hunting by the tribes would threaten public safety.

Federal Appeals Judge Richard Posner reversed Crabb’s ruling Oct. 9, saying Wisconsin couldn’t prove that the tribes’ proposed night-hunting plan was dangerous.

Even before the latest ruling, Chippewa tribal members could still hunt at night, albeit within the boundaries of their reservations and not on public lands outside of the reservations such as national forests, state forests, county forests or even private land enrolled in public access programs. Withing the reservations, tribal members are allowed to use spotlights while shooting deer from vehicles at night, if they wish. The decision could mean tribes may now hunt deer at night in all of the ceded territory, which covers nearly the upper third of Wisconsin.

Posner said the night hunting safety plans and training program developed by the Great Lakes Indiand Fish and Wildlife Commission (GLIFWC) offered little threat to public safety.

Posner sent the case back to district court, where the said the burden of proving that the GLIFWC plan is not safe would be on the state of Wisconsin.

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