MADISON, Wisconsin — State attorneys asked the U.S. Supreme Court on Wednesday to strike down an appellate decision ordering a judge to reconsider a decades-old ruling banning Wisconsin's Chippewa tribes from hunting deer at night.
U.S. District Judge Barbara Crabb ruled 23 years ago that night deer hunting is dangerous and the state's ban on the practice extends to the Chippewa. In its filing, the state says the 7th Circuit Court of Appeals' order last fall that Crabb reopen the case at the tribes' request improperly places a burden on the state to show the practice remains dangerous and threatens to undermine the finality of all federal judges' rulings.
"There is nothing elemental about hunting at night that has changed in the last twenty years. ... Wisconsin was entitled to rely on (Crabb's) judgment, as it has done for decades in ordering its affairs and protecting its citizens," the filing said.
Sue Erickson, a spokeswoman for the Great Lakes Indian Fish and Wildlife Commission, which oversees the Chippewa's off-reservation treaty rights, didn't immediately return an email message. Collette Routel, a lawyer who represents the Lac Du Flambeau Band of Lake Superior Chippewa and serves as one of the lead attorneys for the tribes, also didn't immediately respond to an email seeking comment.
The tribes began a push in 2012 for night hunting in the so-called ceded territory — a huge swatch of northern Wisconsin they handed over to the federal government in the 1800s.
The tribes contend hunting at night is more efficient way to get venison since deer freeze when hunters shine lights on them. They were also upset that legislators allowed state hunters to go after wolves at night; the Chippewa consider the animal a spiritual brother.
The Chippewa argued that circumstances had changed since Crabb's 1991 ruling, maintaining the state must believe night hunting is safe because legislators approved night wolf hunting and the state used night deer hunting to slow chronic wasting disease and protect crops.
Crabb refused to reopen the case, ruling in December 2013 that the tribes had failed to prove things had changed so drastically that she should reconsider. She said the government did almost all the night hunting and legislators eliminated night wolf hunting after one season.
The tribes took the case to the 7th Circuit. A three-judge panel from that court concluded in October that night hunting probably isn't as dangerous as Crabb thought in 1991.
The panel noted four other states allow such hunts, Chippewa hunters have an outstanding safety record and daytime is probably more dangerous because more people are around and ordered Crabb to reopen the decision. She has stayed any action in the case until the Supreme Court decides whether to grant the state's request for review.
State attorneys argued that the 7th Circuit panel's decision wrongly forces a respondent to explain why a judge's decision should stand.
Parties seeking changes to judgments must show changes in circumstances, they said. Shifting that burden to respondents would allow plaintiffs to reopen countless judgments and threaten fundamental principles of finality, they said.
"Here, the Seventh Circuit has altered these principles by shifting the burden to the non-moving party to show that night hunting of deer remains fundamentally unsafe, which is something that was already settled by the 1991 judgment," they wrote. "That is a dangerous precedent ... it should not be allowed to stand."
The Supreme Court faces no deadlines for deciding whether to take a case and isn't expected to even consider the state's request before late winter. If the justices take the case, they almost certainly wouldn't hear it until the court's next term begins in October.
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