Subch. I of ch. NR 13 NoteNote: Chapter NR 13 is a direct result of the off-reservation treaty rights first recognized in Lac Courte Oreilles v. Voigt, 700 F. 2d 341 (7th Cir. 1983). This rule does not actually amend other state statutes. Rather, it represents the Department’s interpretation of how these laws must be interpreted or limited in order to comply with the general limitations on state regulatory authority expressed in Lac Courte Oreilles v. State of Wisconsin, 668 F. Supp. 1233 (W.D. Wis. 1987) and the specific limitations expressed in the regulatory phase of the Voigt litigation. (See e.g., Lac Courte Oreilles v. State of Wisconsin, 707 F. Supp. 1034 (W.D. Wis. 1989). Subch. I of ch. NR 13 NoteChapter NR 13 will serve 4 purposes: Subch. I of ch. NR 13 Note1. It provides the federal court with the State’s litigation position in the ongoing Chippewa off-reservation treaty rights litigation.
Subch. I of ch. NR 13 Note2. The rule provides the State with a set of regulations for those species on which the court has not yet ruled. The state has acknowledged that certain of the current state laws do not meet the aforementioned reasonableness standards for enforcement of Chippewa off-reservation treaty rights.
Subch. I of ch. NR 13 Note3. The rule provides a set of back-up regulations for those species on which the court has already ruled. In Lac Courte Oreilles v. State of Wisconsin, 668 F. Supp. 226 (W.D. Wis. 1988) the court accepted the Chippewa Off-Reservation Code as the primary set of regulations applicable to off-reservation treaty rights. However, it allowed for enforcement of state law should the Chippewa fail to enact or enforce their code. It is expected that a similar pattern will prevail for all species covered by ch. NR 13. Subch. I of ch. NR 13 Note4. Should the federal court rule in future trials that the Chippewa Off-Reservation Code does not preempt state law, ch. NR 13 will serve as the primary set of regulations for Chippewa off-reservation treaty rights. Subch. I of ch. NR 13 NoteNote: This chapter contains a number of provisions for which modifications have been added to reflect limitations on the state’s authority as a result of the litigation arising from Lac Courte Oreilles v. Voigt, 700 F. 2d 341 (7th Cir. 1983). The modifications are placed in this chapter rather than done as an actual change to the underlying statute or administrative code provision due to the applicability of the Voigt decision to only enrolled members of the Chippewa bands and the need for a single document summarizing all regulations dealing with off-reservation treaty rights. NR 13.01NR 13.01 Purpose. This chapter is intended to regulate off-reservation treaty rights of treaty rights participants recognized by Lac Courte Oreilles Band v. Voigt, 700 F. 2d 341 (7th Cir. 1983) to the extent permissible under Lac Courte Oreilles v. State of Wisconsin, 668 F. Supp. 1233 (W.D. Wis. 1987), Lac Courte Oreilles v. State of Wisconsin, 707 F. Supp. 1034 (W.D. Wis. 1989), Lac Courte Oreilles v. State of Wisconsin, 740 F. Supp. 1400 (W.D. Wis. 1990), Lac Courte Oreilles v. State of Wisconsin, 758 F. Supp. 1262 (W.D. Wis. 1991) and the final judgment thereto entered on March 19, 1991. Where applicable, provisions of this chapter dealing with tending, sharing or checking of gear, transactions including sale and transfer of tags, permits and other approvals also apply to nontreaty rights participants. NR 13.01 HistoryHistory: Cr. Register, February, 1990, No. 410, eff. 3-1-90; r. and recr. Register, May, 1992, No. 437, eff. 6-1-92. NR 13.02(1)(1) “Ceded territory” means the territory in Wisconsin ceded by the Chippewa Indians to the United States in the Treaty of 1837, 7 Stat. 536, and in the Treaty of 1842, 7 Stat. 591. A map of the ceded territory is found in the appendix to United States v. Bouchard, 464 F. Supp. 1316 (W.D. Wis. 1978). NR 13.02(2)(2) “Department” means the department of natural resources. NR 13.02(3)(3) “Enrolled Chippewa tribal member” means an individual listed on the official roll of one of the Chippewa bands entitled to exercise off-reservation treaty rights under Lac Courte Oreilles v. Voigt, 700 F. 2d 341 (7th Cir. 1983). NR 13.02(4)(4) “Gill net” means any net set to capture fish by entanglement rather than entrapment. NR 13.02(5)(5) “Ice fishing” means taking, capturing or killing fish or fishing for any variety of fish at any time through an artificial hole in the ice. NR 13.02(6)(6) “Management unit”, “hunting zone” and “management zone” mean those management units established for deer in s. NR 10.28, black bear hunting zones established in s. NR 10.30 and Canada goose management zones established in s. NR 10.31 or any other area established by the department for management purposes. NR 13.02(7)(7) “Public lands” means land currently held in fee title by federal, state or local governments or lands held under the forest crop or managed forest land programs but only to the extent such lands are required to be open to public hunting and fishing. NR 13.02(8)(8) “Remaining tribal quota” means the difference between the tribal quota and the cumulative harvest of the particular species by all treaty rights participants using all harvest methods permissible under this chapter. The cumulative harvest includes all harvest to the date that the remaining tribal quota is calculated. If the cumulative harvest exceeds the tribal quota, the remaining tribal quota shall be zero. NR 13.02(9)(9) “Safe harvest” means a level of harvest meeting the guidelines of Lac Courte Oreilles Band of Lake Superior Chippewa v. Wisconsin, 707 F. Supp. 1034 (W.D. Wis. 1989) that incorporates an appropriate margin of safety, estimates of the population and acceptable exploitation rates which will reasonably prevent harvest of more than 35% of the population of adult walleyes and 27% of the population of adult muskellunge. The margin of safety shall assure that the true safe harvest is not exceeded in more than 1 of 40 cases. For waters where a population estimate has not been made, a regression model based upon population estimates from other waters shall be used. The margin of safety used depends upon the age of the population estimate and whether a regression model was used. NR 13.02(10)(10) “Snare” means a steel cable device in the form of a noose with a stop, lock and swivel which is set to capture an animal by the body, neck or foot. NR 13.02(11)(11) “Spear fishing” means taking or attempting to take a fish by means of a hand held spear or other similar device which is directed by the spearer to impale the target fish. Spearing may include the use of an artificial light. NR 13.02(12)(12) “Tribal quota” or “TQ” means the total number of a particular species which may be harvested annually from a given body of water, management unit, hunting zone or management zone by all treaty rights participants. NR 13.02(13)(13) “Treaty rights participant” means an enrolled Chippewa tribal member exercising off-reservation rights under Lac Courte Oreilles Band v. Voigt, 700 F. 2d 341 (7th Cir. 1983). NR 13.02 HistoryHistory: Cr. Register, February, 1990, No. 410, eff. 3-1-90; am. (6), Register, May, 1992, No. 437, eff. 6-1-92; correction in (intro.) was made under s. 13.93 (2m) (b) 7., Stats., Register November 2001 No. 551. NR 13.03NR 13.03 Identification. A treaty rights participant shall be issued a photo identification card by his or her band and shall carry the card on his or her person when exercising treaty rights. Treaty rights participants shall display their photo identification card upon request by state or local law enforcement personnel, state biologists or state, federal or local property managers. A treaty rights participant is not required to have a state hunting, fishing, trapping or ricing license. NR 13.03 HistoryHistory: Cr. Register, February, 1990, No. 410, eff. 3-1-90. NR 13.035NR 13.035 Allocation. The department may limit the number of permits, tags or quota available to treaty rights participants so as to limit the Chippewa harvest in any harvest or management unit to no more than 50% of the total harvest within that harvest or management unit. NR 13.035 HistoryHistory: Cr. Register, May, 1992, No. 437, eff. 6-1-92. NR 13.04NR 13.04 Restrictions and department authority. NR 13.04(1)(1) Department authority. The following statutory and administrative code provisions are unaffected by Lac Courte Oreilles v. Voigt, 700 F. 2d 341 (7th Cir. 1983): NR 13.04(1)(a)4.4. Section 23.15, Stats. Sale of state owned lands under the jurisdiction of the department of natural resources. NR 13.04(1)(a)5.5. Section 23.27, Stats. Natural areas; definitions; importance; inventory; acquisition; sales. NR 13.04(1)(a)22.22. Section 29.024 and 29.193, Stats. Hunting, trapping and fishing; licenses and other approvals; issuance. (applicable only when a license or approval is required) NR 13.04(1)(a)27.27. Section 29.092 (8) (c) through (f), Stats. Relating to private fish hatchery fees. NR 13.04(1)(a)28.28. Section 29.563 (9), Stats. Bird and game farms, related activities and wildlife in captivity; licenses, tag; permits. NR 13.04 NoteNote: 2001 Wis. Act 56 repealed s. 29.563 (9), Stats., except s. 29.563 (9) (a) 1. which was renumbered s. 29.563 (7) (c) 5m. NR 13.04(1)(a)32.32. Section 29.569, Stats. Fish and wildlife; effective periods; restrictions (applicable only when a license or approval is required). NR 13.04(1)(a)34.34. Section 29.137 (5), Stats. Relating to department rule authority for taking, handling, and storing of bait. NR 13.04(1)(a)40.40. Section 29.591, Stats. Hunter education and firearm safety programs; certificate of accomplishment. NR 13.04(1)(a)42.42. Section 29.321, Stats. Training of hunting dogs and rules for dog trials.
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