June 5, 2023 at 11:59 a.m.
U.S. sues town of Lac du Flambeau over road dispute
Department of Justice says town is trespassing on tribal land
The DOJ says it filed the suit at the request of the secretary of the Interior, acting on its own behalf, and as trustee for the tribe and 76 individual Indian landowners.
"The United States, acting through the Bureau of Indian Affairs ("BIA"), holds fee title to the lands at issue for the benefit of the Band and the Allottees," the federal complaint states. "In its capacity as trustee, the BIA in the 1960s granted either Ronald Niske and Northwoods Land Office, Inc. ("Northwoods") or T.J. Patterson and Patterson Brothers, Inc. ("Patterson") five separate easements for right-of-way ("ROW") for roads over and across tribal trust and allotted lands within the exterior boundary of the Lac du Flambeau Reservation ("Reservation"), each for a term of 50 years."
At some point during the 50 years, the complaint asserts, Northwoods or Patterson assigned each ROW to the town.
The easements have since expired, prompting the tribe last January to block those sections of road that cross tribal lands. The impacted roads are Elsie Lake Lane (easement expired October 22, 2011); East Ross Allen Lake Lane (March 16, 2014); two ROWs for Annie Sunn Lane (April 27, 2014, and February 18, 2018); and Center Sugarbush Lane (July 27, 2014).
"The town failed to submit timely renewal applications for the ROWs and has not applied for new ROWs," the complaint states. "The town continues to use the Band's and Allottees' lands unlawfully, without a valid grant or authorization from the BIA."
In the suit, the DOJ says it prefers a negotiated settlement that would allow the road right of way to be renewed and to remain part of the town's road system. But the lawsuit is seeking remedies in case talks break down.
"If a negotiated resolution is not possible, the United States seeks all just and appropriate remedies, including, but not limited to, a declaration that the Town is in trespass; damages or mesne profits in compensation for the past unlawful use and occupancy; and, if the town refuses to comply with the ROW (Indian Right of Way) Act, ejectment from further unauthorized and unlawful use of the Band's and Allottees' land and full restoration and remediation of the property," the complaint states.
In the complaint, the DOJ says the town's continuing trespass, and the subsequent lack of resolution, has been willful and not without knowledge, given that at various times since the expiration of the first easement, the town, local residents, and title insurance companies have all engaged in negotiations with the tribe to resolve the issue, though the parties have not reached an agreement to bring any of the ROWs into compliance with federal law.
On January 19 of this year, the complaint continued, the band notified the town, local residents, and title insurance companies that because negotiations to resolve the issue were stalled, the tribe intended to limit public access over and across those portions of the subject roads.
On January 31, they did so, and, the complaint observes, the tribe continued to limit access until March 13, when it reopened roads for up to 90 days pursuant to an agreement with the town.
Before that, however, on February 2, the tribe formally requested the BIA's assistance in remedying the town's unauthorized use and occupancy of the roads. On March 15, the tribal council also formally requested that the BIA remove the roads from the National Tribal Transportation Facilities Inventory, a listing that makes them eligible to receive funding from the Tribal Transportation Program for planning, construction, improvement, and maintenance of roads on the inventory.
No federal transportation funds were ever spent on the roads, the complaint states, and so the tribe decided to remove them. That request was approved.
Despite the temporary agreement, the complaint states, the town continues to operate the roads as public roads, in violation of federal law, that is to say, the easements have not be renewed and that constitutes trespass.
The lawsuit seeks the courts to declare that the town's willful, unauthorized, and continuing occupation and use of the lands without BIA authorization and the consent of the tribe constitutes a continuing trespass and violation of federal law.
The complaint further seeks a judgment for damages caused by the town's continuing occupation, use, and disturbance of the lands, including administrative costs and the costs and expenses of restoring and remediating the property, as well as a judgment for interest on all damages.
And, finally, if the parties are unable to reach a negotiated settlement that allows the town roads to remain in place, the DOJ wants to courts to eject the town from the lands, and permanently prohibit the town from occupying or using the tribe's lands without the authorization of the BIA and the consent of the tribe, pursuant to federal law.
Governor, Senator not happy
Meanwhile, on May 26, prior to the lawsuit being filed, Gov. Tony Evers and U.S. Sen. Tammy Baldwin wrote a letter to the parties involved in the dispute - title companies, the town, the tribe, the BIA - saying they were disappointed with the lack of progress in negotiations.
"It has been months since the decade-long dispute involving easements and road access issues in the Lac du Flambeau community came to a head with barricades being installed," Evers and Baldwin wrote. "While we appreciate the steps taken by the Lac du Flambeau Band of Lake Superior Chippewa Indians and the town of Lac du Flambeau to temporarily remove the barricades, we remain frustrated and disappointed by the lack of collective work done to resolve this issue permanently, despite repeated and continued attempts by our offices to assist in resolving the issue."
It is long past time for mediation, the two asserted.
"Our offices have worked to keep lines of communication open with all parties involved - the tribe, the town, and the title companies - since becoming aware of this dispute," they wrote. "Most recently, we have encouraged the tribe to mediate this matter with the town and have sent a list of mediators to the tribe. We have had conversations with President [John] Johnson encouraging to do so and our staff have followed up with resources."
The letters said the governor's chief legal counsel also remains open to having conversations with the tribe's legal counsel to further understand outstanding issues, and to ongoing conversations with the town's attorney as well.
Evers and Baldwin said their offices have had numerous conversations with the tribe, the town, the title company, the Bureau of Indian Affairs, and the Department of Interior, and will continue to do so until a resolution is reached.
"However, what has been and continues to be the most important part of resolving this ongoing dispute is communication between the interested parties," they wrote. "We are again asking all of you to sit down and work toward an agreement."
Evers and Baldwin said they were extremely disappointed that such mediation has yet to occur.
"This delay harms the people of Wisconsin, whether they are tribal members, impacted homeowners, or other members of our communities," they wrote. "A lack of action will not help tensions and are a threat to the well-being of the individuals directly involved and the greater community."
Evers and Baldwin acknowledged that they were helpless to dictate the terms of settlement in a private dispute but encouraged open and frank communication.
"Resolution of these expired rights-of-way is long overdue, and we urge all parties to communicate and negotiate in good faith -and to agree to do so expeditiously - to find a solution to this pressing issue," they wrote.
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