Chicago — Justices 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.
From the state’s point of view, court procedures that must yet play out as a result of the Court of Appeals’ ruling will almost certainly push any future hearings – and decisions, should the state appeal – on this issue into 2015 and take any thoughts of night deer hunting right along with it.
In the meantime, the Great Lakes Indian Fish and Wildlife Commission and the six Chippewa tribes are “waiting for further direction from the District Court as far as how to proceed,” said Susan Erickson-Tuchon, GLIFWC public information director.
“No hunt is being implemented at this point,” Erickson-Tuchon said.
The off-reservation night deer hunt was to have started Nov. 1.
As of Oct. 23, the DNR and Department of Justice were still evaluating the state’s next move. Earlier last week, the official word was that the DOJ and DNR had 14 days from the Oct. 9 court ruling to decide whether the to appeal the case to the original three-judge panel, or ask for a full review by the 10-member 7th Circuit Court panel.
That deadline would have been Thursday, Oct. 23.
The state had not made that decision as of the deadline. That, then, most likely means that if the state does appeal, it will petition the U.S. Supreme Court. The state is said to have 90 days to make that move, which would be Jan. 7, 2015.
The lack of a decision next week could mean that Rob Bohmann will get his wish. Bohmann, the chairman of the Conservation Congress, sent a letter from the Conservation Congress Executive Committee to Cathy Stepp, asking the DNR secretary to appeal the case.
“The ruling of this court, which does not appear to be based on the facts of the case, sets an alarming precedent on any number of levels, including dismissing significant public safety concerns for night hunting off-reservation in the ceded territory, setting an extremely low standard for opening other previously final judgments in the Voigt decision, and the requirement that the state pay the tribes’ attorney fees while the tribes receive federal taxpayer resources to litigate these cases,” Bohmann wrote.
“The judges in this case assumed facts that were not in evidence (such as ‘hunting deer during the day is likely to be more dangerous’ … than hunting deer at night) and overturned a Wisconsin judge with 30 years of experience in … Chippewa treaty rights issues,” he wrote.
Had the state asked for a re-hearing by the same three 7th Circuit Court 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, there is little chance the outcome is going to change, one state official said. Based on comments made and actions taken by the three judges in September, their point of view is unlikely to change.
If the state asked for an “en banc” review by all 10 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 conservatives 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.
The three 7th Circuit Court 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 require 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 because of the angle the bullet is likely to hit the ground within a safe distance), a member of the tribal conservation department 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 during the night deer-hunting season, which runs from Nov. 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. Within 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 Indian Fish and Wildlife Commission 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.