Menominee Indian Tribe of Wisconsin v. Thompson

• Decision Date: 16 September 1996
• Docket Number: No. 95-C-30-C.,95-C-30-C.
• Citation: 943 F.Supp. 999
• Parties: MENOMINEE INDIAN TRIBE OF WISCONSIN, Plaintiff, v. Tommy G. THOMPSON, Governor of the State of Wisconsin; George E. Meyer, Secretary, Wisconsin Department of Natural Resources; James T. Addis, Administrator of DNR Division of Resource Management; John E. Fryatt, Administrator of DNR Division of Enforcement; Herbert F. Behnke, Trygbe A. Solberg, Neal W. Schneider, Betty Jo Nelsen, Mary Jane Nelson, James E. Tiefenthaler, Jr. and Stephen D. Willett, Members of the Wisconsin Natural Resource Board, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

943 F.Supp. 999

MENOMINEE INDIAN TRIBE OF WISCONSIN, Plaintiff, v. Tommy G. THOMPSON, Governor of the State of Wisconsin; George E. Meyer, Secretary, Wisconsin Department of Natural Resources; James T. Addis, Administrator of DNR Division of Resource Management; John E. Fryatt, Administrator of DNR Division of Enforcement; Herbert F. Behnke, Trygbe A. Solberg, Neal W. Schneider, Betty Jo Nelsen, Mary Jane Nelson, James E. Tiefenthaler, Jr. and Stephen D. Willett, Members of the Wisconsin Natural Resource Board, Defendants.

No. 95-C-30-C.

United States District Court, W.D. Wisconsin.

September 16, 1996.

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Bruce R. Greene, Greene, Meyer & McElroy, P.C., Boulder, CO, for Menominee Indian Tribe of Wisconsin.

Charles D. Hoornstra, Asst. Atty. General, Madison, WI, for Defendants, State of Wisconsin, Wisconsin Natural Resources Bd., George E. Meyer, James T. Addis, John E. Fryatt, Tommy G. Thompson, Herbert F. Behnke, Trygbe A. Solberg, Neal W. Schneider, Betty Jo Nelsen, Mary Jane Nelson, James E. Tiefenthaler, Jr., Stephen D. Willett.

Paul M. Erspamer, Jastroch & La Barge, S.C., Waukesha, WI, for Lorman Anderson, Haze Diemel, Eureka Dam Campsite, Inc., Daniel F. Groeschel, Linda Wendt, Sturgeon for Tomorrow, Inc., Walleyes for Tomorrow, Inc., Wis. Fed. of Great Lakes Sport FIS.

Charles G. Curtis, Foley & Lardner, Madison, WI, for Wisconsin Paper Council, P.H. Glatfelter, Riverside Paper, Wisconsin Tissue Mills.

Kevin E. O'Neill, Milwaukee, WI, for Wisconsin Commercial Fish. (INTV).

OPINION AND ORDER

CRABB, District Judge.

This is a civil action in which plaintiff Menominee Indian Tribe of Wisconsin seeks declaratory and injunctive relief, asserting that it enjoys off-reservation rights to hunt, fish and gather without state restriction on the lands it ceded to the United States in 1831, 1836 and 1848 and that it has unextinguished aboriginal rights, derived from long uninterrupted use, to hunt and fish in various Wisconsin waters, including Lakes Winnebago and Michigan, the bay of Green Bay and portions of the Wisconsin River. In an opinion and order entered February 26, 1996, I considered defendants' motion to dismiss plaintiff's complaint on the grounds of failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), judicial estoppel and issue and claim preclusion. I granted the motion with respect to plaintiff's claim that it was entitled to harvest Wolf River sturgeon in off-reservation, downstream portions of the Wolf River/Lake Winnebago ecosystem and denied the motion in all other respects. See Menominee Indian Tribe of Wisconsin v. Thompson, 922 F.Supp. 184 (W.D.Wis.1996).

Although I permitted plaintiff to proceed on its remaining claims, I noted that it was a close question whether plaintiff's allegations of fact were sufficient to support its claims. Id. at 198. Plaintiff did not explain in its complaint why the Menominee had a different understanding of the apparently clear language of the treaties at the time it entered into them and why the treaty language did not terminate the usufructuary rights that it is claiming now. Id. at 216. Instead plaintiff took the position that it would be unable to make this explanation until its experts had completed their review of "hundreds of documents" surrounding the treaty negotiations and had formulated their opinions about the meaning of the treaties and the tribe's understanding. Pl.'s Brief, dkt. # 25, at 25. Knowing that plaintiff had already had many months in which to formulate its theory of the case and, under Fed. R.Civ.P. 11, had an obligation to do so before filing its lawsuit, and recognizing the expense and inefficiency of proceeding with the case if plaintiff could not come forward with allegations of fact that would support its claims, I suggested that defendants submit contention interrogatories to plaintiff to flesh out the factual basis of the claims. Id. at 200. The contention interrogatories were not intended to require plaintiff to set forth the entire array of facts necessary to support its claims but merely to prod plaintiff to provide the factual allegations required to give the court and defendants an idea of the basic theory of its case.

On March 7, 1996, defendants filed a motion to reconsider the February 26 order with respect to the issue of judicial estoppel, or in the alternative to amend to allow for interlocutory appeal on that issue. On March 22, 1996, a hearing was held to consider defendants' motion, after which plaintiff was given 30 days to answer defendants' contention interrogatories. After plaintiff responded to these interrogatories, defendants filed a renewed motion for reconsideration of all aspects of the February 26 order, this time focusing on plaintiff's answers to the interrogatories and contending that plaintiff had failed to provide sufficient allegations of fact in support of its claims. The two motions (defendants' March 7 motion (dkt. # 59) and June 4 renewed motion (dkt. # 78)) will be considered as two parts of a single motion to dismiss. In addition, the motion of the Wisconsin Paper Council to file and serve a reply brief in its role as amicus will be granted.

In addition to their motion for reconsideration, defendants have asked the court to take judicial notice of a letter of September 14, 1848 from Acting Secretary of War J. Mason to Commissioner W. Medill. See dkt. # 81. Because this document is unnecessary to the resolution of this case, I will deny the motion. However, I will take judicial notice of a number of other historical documents that help to clarify events surrounding the signing of the treaties at issue. Doing so accords with the rule that courts may take judicial notice of incontrovertible facts from documentary materials whose authenticity is not in question. See Oneida Indian Nation of New York v. New York, 691 F.2d 1070, 1086 (2d Cir.1982) (citing J. Moore, 10 Moore's Federal Practice, § 201.20), cert. denied, 493 U.S. 871, 110 S.Ct. 200, 107 L.Ed.2d 154 (1989). Plaintiff acknowledges the likelihood that "there will be no dispute as to the authenticity of a vast majority [of the documents], perhaps all of them," see Pl.'s Brief, dkt. # 91, at 17, but objects to the court's use of the documents at this time because of disputes that might arise after its experts have had time to review them. If plaintiff believed that disputes might arise later concerning the authenticity of the documents or the accuracy of the information contained within them, it should have pointed out where such disagreements might arise. Plaintiff suggests also that "the documents cannot speak for themselves" without the benefit of expert interpretation, id. at 15, but I disagree. Expert testimony is not needed to interpret these documents. See Sokaogon Chippewa Community v. Exxon Corp., 805 F.Supp. 680, 711 (E.D.Wis. 1992), aff'd, 2 F.3d 219 (7th Cir.1993) (court is equipped to interpret treaties and letters written by lay persons in colloquial terms without expert testimony), cert. denied, 510 U.S. 1196, 114 S.Ct. 1304, 127 L.Ed.2d 655 (1994).

Even if the materials in question were not subject to judicial notice, it would be permissible to refer to them if doing so would help explain how the plaintiff might be able to support its claim. See, e.g., Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 914-15 (7th Cir.1985) (in reviewing lower court's grant of motion to dismiss for failure to state a claim, court could consider materials not of record "to show how accident might have happened"; plaintiff is free to give court unsubstantiated version of facts, so long as it is not inconsistent with the allegations of complaint, in order to show that dismissal is improper).

Accordingly, the historical documents submitted by the parties will be used and cited as necessary throughout the opinion. Consideration of such judicially noticeable documents does not convert this motion to one for summary judgment under Fed.Rule Civ.P. 56. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991); Mandarino v. Pollard, 718 F.2d 845, 849 (7th Cir.1983), cert. denied, 469 U.S. 830, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984); Dobiecki v. Palacios, 829 F.Supp. 229, 232 (N.D.Ill.1993).

Plaintiff contends that defendants' motion should be considered as a request for judgment on the pleadings pursuant to Fed. R.Civ.P. 12(c) rather than as a Fed.R.Civ.P. 12(b)(6) motion because it was filed after defendants had answered the complaint, but plaintiff has not shown any reason for preferring one rule over the other. As plaintiff admits, the standards to be applied are essentially the same. The only real difference is that on a 12(c) motion the court is to consider the answer as well as the complaint. Accordingly, I will treat defendants' motions under Rule 12(c), but will draw amply from standards applicable to Rule 12(b)(6).

Plaintiff is correct that it is under no obligation at this stage of the litigation to prove facts in support of its claims. In contesting defendants' motions to dismiss, plaintiff may allege facts that would support its claims and the court must accept such allegations as true. Even so, plaintiff must still tie its factual allegations to specific treaty language, showing why, in light of the factual allegations, that language can be read to support its views.

After examining plaintiff's answers to the contention interrogatories and accompanying materials, the judicially noticeable documents and the relevant treaties, I am persuaded that even under the liberal standards of Fed. R.Civ.P. 12, plaintiff's allegations are insufficient to support its claims. Although plaintiff has added factual allegations concerning its understanding of the relevant treaties, it is still unable to show that its understandings are supported by any language in the texts of the treaties. More important, if there is any doubt about plaintiff's...