February 20, 2023 at 11:57 a.m.
Lac du Flambeau property owners file legal claim against the town
Town board hires law firm to look into 'applicable federal laws' in road dispute with tribe
The dispute is between the Lac du Flambeau Band of Lake Superior Chippewa Indians, the title companies for the landowners along Annie Sunn Lane, Center Sugarbush Lane, East Ross Allen Lane and Elsie Lake Lane, and the town of Lac du Flambeau.
The claims, filed by the law firm VanderWaal Law, S.C. of Wausau on behalf of three of the landowners, is against the town of Lac du Flambeau.
On Jan. 31, personnel with the Lac du Flambeau tribe's highway department placed barricades on the four roads.
Easements, or rights-of-way, for property owners on those roads over tribal land expired a decade ago, prompting the tribe's action.
Since then, there have been two special town board meetings regarding the matter with people pointing fingers at the title companies and the town, there have been statements from the tribe and from politicians including Gov. Tony Evers, U.S. Senator Tammy Baldwin and U.S. Representative Tom Tiffany and not much in the way of public comment from anyone with the federal government's Bureau of Indian Affairs.
Last Tuesday, three of the Lac du Flambeau property owners took action by filing the claims against the town but at the same time, letting The Lakeland Times know they aren't necessarily siding with the tribe on the matter.
The lawsuit states the town "through its actions and/or failure to act, allowed barricades to be placed on, over, and across" the four roads.
"Prior to the barricades being erected, the Town never provided ... notice that (the roads) would be barricaded, thereby barring (residents and property owners) from accessing their property," the claim reads.
During the special town board meetings of Feb. 2 and Feb. 8, it was acknowledged by town officials that the town knew of the 50-year easements expiring in 2013.
One of the easements, for Elsie Lake Lane, actually expired in 2011.
"As a result of the Town's actions and/or inactions of allowing barricades to be placed and remain ... due process rights of the Fourteenth Amendment's Due Process Clause has been violated as such actions and/or inactions by the Town shock the conscience or interfere with rights implicit in the concept of ordered liberty," the claim reads. "Finally, as result of the Town's actions and/or inactions related to the notice to (the) barricading the sole public access to their property, the Town violated the procedural due process clause of the U.S. and Wisconsin Constitutions which is to protects individuals from governmental denial of fundamental procedural fairness."
In at least one of the claims, VanderWaal is seeking $705,000 in damages for their client from the town of Lac du Flambeau.
Town response
The agenda for the town board's Feb. 15 regular meeting was routine but with the filing of the lawsuit against the town, town chairman Matt Gaulke amended the agenda Wednesday morning and added a closed session so he and town supervisors Gloria Cobb and Bob Hanson could discuss the matter with town attorney Greg Harrold.
At the beginning of the meeting, Hanson thanked Gaulke for having the road issue on the agenda as a closed session item.
"I would propose that we add the roads issue in open session so that we can give the public a review of what we've been doing for every meeting from now until it (the road issue) is resolved," he said.
After taking care of routine business such as approval of vouchers and meeting minutes, the town board went into closed session for approximately 90 minutes.
Once the board reconvened into open session, Cobb made a motion that Harrold be directed "to look into condemnation of fee lands for alternative routes for the roads in question."
She also said the town has hired the law firm Von Briesen and Roper to put together a Freedom Of Information Act request for information "and an opinion regarding applicable federal law" related to the road issue and the claims against the town.
After that motion was approved, Gaulke said the town had received a response from tribal president John Johnson, Sr. to its Feb. 8 offer to enter into a "good faith" agreement that basically had the tribe contracted to have its highway department perform snowplowing and maintenance for the roads and in exchange, receive from the town "the entire amount" the town receives in gas tax revenue from the state of Wisconsin.
Gaulke wrote in that letter that the town would also "pay the entire amount received through gas tax on said roads for the past 10 years to the Tribe in the amount of $64,289.60."
At the Feb. 15 town board meeting, Gaulke read from Johnson's letter, which Harrold noted was received by the town at around 9:35 p.m. on Feb. 14.
"In response to your proposal, the tribe respectfully declines your offer," the letter said.
"Now, we're trying to get into some type of negotiation with them to see exactly what it is that they are looking for," Gaulke added.
Brian Jopek may be reached via email at [email protected].
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