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govinfo:USCOURTS-wiwd-3_26-cv-00401-1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
STATE OF WISCONSIN,
Plaintiff,
v.
JOHN D. JOHNSON, SR., et al.,
Defendants.
OPINION and ORDER
26-cv-401-wmc
Approximately one month before the opening of fishing season, the Lac du Flambeau
Band of Lake Superior Chippewa Indians (“the Band”) began to assert regulatory authority
over fishing by non-members of any Chippewa Tribe (“ non-members”) on specific navigable
waters located completely within the Band’s territorial limits. The Band claims to be exercising
its inherent sovereign authority and acting on its obligations under tribal law to protect and
conserve muskellunge and walleye, both culturally significant and treaty -protected species
whose populations have been declining on lakes within the Lac du Flambeau Indian
Reservation. The State of Wisconsin disagrees, contending that it has exclusive authority to
regulate hunting and fishing by non-members on navigable waters under controlling Seventh
Circuit caselaw. Specifically, in State of Wisconsin v. Baker, 698 F.2d 1323 (7th Cir. 1983), that
court addressed a nearly identical dispute between the State and the Lac Courte Oreilles Band
of Lake Superior Chippewa Indians, holding that the State has “exclusive sovereignty over” all
navigable waters within Wisconsin, including those on tribal lands. Id. at 1336.
In conjunction with bringing this lawsuit against the tribal officials responsible for
passing and then expanding these fishing restrictions on non-members, the State filed a motion
for a temporary restraining order and preliminary injunction to prevent defendants from
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enforcing the tribal council’s recent resolutions. After holding a telephonic hearing, the court
granted a temporary restraining order (dkt. #26) , and set briefing on the State’s preliminary
injunction motion. Following an evidentiary hearing and oral argument on that motion held
on May 29, 2026, the court will grant the State’s motion for preliminary injunctive relief for
the reasons explained below.
BACKGROUND1
The Lac du Flambeau Indian Reservation was established in 1854 as part of the “Treaty
with the Chippewas.” The Band’s tribal reservation is roughly 87,195 acres, with nearly half
of that consisting of lakes, rivers and wetlands. The Band’s existence is intertwined with and
reliant on the ecosystem of its homelands, with tribal members using the natural resources for
cultural, ceremonial, subsistence and recreational practices. Walleye and muskellunge are both
significant to the Band for several reasons, including as predators critical to the ecosystem and
as basic food sources for tribal members who continue to practice traditional methods of
spearing and netting fish. The walleye in particular is even considered a “clan relative” to the
Band.
The Band’s Natural Resources Department manages water quality f or its reservation
waters and operates a Tribal Fisheries and Fish Culture Program , maintaining its own fish
hatchery to stock these waters and conduct ing fish population studies. In recent years, the
Band’s fish hatchery is the only entity currently stocking lakes on the reservation. Subject to
approval by Tribal Council , the Band’s Natural Resources Department also provides
1 These background facts are based on the State’s proposed findings of fact in support of their
motion for preliminary injunction (dkt. #8), the Band’s responses to those findings (dkt. #18),
and the evidence in the record.
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recommendations to the Lac du Flambeau Tribal Council for closing reservation waters from
nonmember fishing activity to conserve fish resources.
In March 2026, Hunter Mayo, the Band’s Fish Hatchery Manager, a s well as other
members of the Band’s Conservation Code Committee, recommended to the Tribal Council
that certain lakes entirely within the reservation be closed to non -members for walleye and
muskellunge fishing during the 2026 fishing season, and that non -member use of forward
trolling and forward-facing sonar be prohibited on all lakes within the reservation. The Tribal
Council reviewed Mayo’s recommendations and the underlying Fish Hatchery Report (dkt.
#13-1), which showed walleye and muskellunge have experienced population declines based
on a 2025 population study in some of the reservation lakes. Mayo also reported to the Council
that forward trolling and forward-facing sonar methods of fishing were particularly adept at
catching walleye and muskellunge.
However, the Tribal Council did not contact the State of Wisconsin’s DNR regarding
Mayo’s findings in the Fish Hatchery Report. If they had, the State likely would have raised
questions about the reliability of those findings. Responding to Mayo’s report for purposes of
opposing the Band’s position in particular, t he State submitted the declaration of Joseph
Hennessy, a Natural Resource Staff Specialist for the Wisconsin DNR Bureau of Fisheries
Management and co-leader of the DNR Walleye Management Team. (Dkt. #28.) According
to Hennessy, Mayo’s report not only lacks important details regarding the methodology of his
studies, but even if Mayo’s numbers were accepted, they do not raise significant concerns about
walleye and muskellunge populations on the few lakes studied to date. More specifically, the
report does not show that fishing by non -members is a cause of any overall decline in fish
populations. ( Id. ¶ 27.) Hennessy also describes several methods for walleye rehabilitation
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aside from fishing bans , which he opines should ideally be crafted with the support of all
affected parties. (Id. ¶ 37.) Finally, Hennessy explains that data collected by the state shows
that anglers using trolling and sonar methods do not actually catch more fish than anglers using
casting techniques. (Id. ¶¶ 58, 66.)
Nevertheless, on March 30, 2026, relying on Mayo’s preliminary report and opinions,
the Tribal Council adopted Resolution 8(26), approving the closure of nine lakes to non -
member walleye and muskellunge fishing and prohibiting forward trolling by non-members on
all lakes within the reservation boundary. The Band also issued a media release regarding the
resolution. On April 14, 2026, the Tribal Council adopted another resolution, Resolution
Number 119(26), which amended Resolution 8(26) by expanding the closures and restrictions
to nineteen Reservation lakes and adding a further prohibition on non-member use of “forward
facing sonar.” Following communications between state officials and tribal officials regarding
Resolution 119(26), on April 27, 2026, the Band then issued Resolution 131(26), which copies
much of the substance of Resolution 119(26), includin g purporting to: close nineteen lakes
“to Walleye and Muskellunge fishing by non -members”; and “ban[ ] forward trolling and
forward-facing sonar on all lakes within the reservation boundary by non -members.” The
resolution also provided additional findings in support of these closures and restrictions on
fishing methods.
On April 27, members of the Tribal Council met with Wisconsin Department of Natural
Resources Secretary Karen Hyun and Northern Wisconsin DNR Regional Director James Yach
on the Reservation. Secretary Hyun and Director Yach told the Tribal Council that Governor
Evers was gravely concerned about public safety in connection with the Band’s lake closure
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actions. The Tribal Council responded that it would consider further action under Tribal law
to address the governor’s concerns.
On April 29, the Tribal Council next adopted Resolution 132(26), which for the first
time declares a “State of Emergency ” under Chapter 56 of the Tribal Code, the Band’s
Emergency Management Ordinance. Based on the same data compiled by the Tribal Fish
Hatchery and Natural Resources Department, Resolution 132(26) again purports to make
findings that walleye and muskellunge populations in multiple lakes have declined to critically
low levels and threaten the long-term viability of the species, as well as the health, safety and
welfare of the Band and its members. The Resolution also designates the Director of the
National Resources as the lead emergency official; runs for 30 days unless extended; and directs
coordination with tribal, local, county, state and federal partners as appropriate. The
Resolution also reaffirms the Band’s openness to co operative discussions regarding fishery
management.
Wisconsin’s 2026-27 general inland fishing season started a few days later, on May 2,
2026. If the court lifts its temporary restraining order, the Band intends to enforce Resolutions
119(26) and 131(26) against non-members who attempt to fish for walleye or muskellunge on
nineteen designated navigable lakes or use the restricted methods on any reservation lakes,
though defendants did not explain specifically how they would do so. Anglers and resort
owners near the affected lakes have expressed concerns t o the State’s DNR about the se
restrictions affecting tourism and commerce, echoing concerns that culminated in ugly protests
a generation ago, although neither side presented evidence of any actual confrontations
between members of the public and on-reservation law enforcement in recent years when lakes
were closed to non-member fishing-related activities.
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OPINION
Preliminary injunctive relief is an “extraordinary equitable remedy that is available only
when the movant shows clear need.” Turnell v. CentiMark Corp., 796 F.3d 656, 661 (7th Cir.
2015); see also Doe v. Univ. of S. Indiana , 43 F.4th 784, 791 (7th Cir. 2022) (“A preliminary
injunction is an extraordinary remedy never awarded as of right.”) (quoting Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 24 (2008)). To obtain a preliminary injunction, the
State must show that: (1) it has “some like lihood of prevailing on the merits”; (2) traditional
legal remedies would be inadequate; and (3) it will suffer irreparable harm without the relief.
Finch v. Treto, 82 F.4th 572, 578 (7th Cir. 2023); Speech First, Inc. v. Killeen, 968 F.3d 628, 637
(7th Cir. 2020). If the State meets each of these threshold requirements, the court proceeds
to a balancing analysis, weighing the harm that the State would suffer absent a preliminary
injunction against the harm the Band would suffer were a preliminary injunction issued, as well
as considering whether an injunction is in the public interest overall. Planned Parenthood of Ind.
& Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d 809, 816 (7th Cir. 2018); Courthouse
News Serv. v. Brown, 908 F.3d 1063, 1068 (7th Cir. 2018).
The State requests a preliminary injunction to prohibit the Band from enforcing any of
the resolutions seeking to restrict the fishing rights of non-members as described above during
the pendency of this case. The State’s motion is principally based on the Band’s actions being
directly contrary to the Seventh Circuit’s holding in Baker, while the Band relies on a narrow,
so-called second exception recognized in Montana v. United States, 450 U.S. 544 (1981), that
permits Bands to act when something “threatens or has some direct effect on the political
integrity, the economic security, or the health and welfare of the tribe.” Id. at 566. In
particular, the Band argues that while Baker was decided after Montana, it does not resolve the
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dispute here under the Montana exception. The court addresses the merits of these positions
below.
I. Likelihood of Success on the Merits
The first question is whether the State has shown that it is likely to succeed on the
merits of its claim under Baker. “Some likelihood of success” is more than “a mere possibility
of success,” but “the applicant need not show that it definitely will win the case.” Grubhub Inc.
v. Relish Labs LLC, 80 F.4th 835, 844 (7th Cir. 2023). As the court discussed with the parties
at the preliminary injunction hearing, the State has certainly shown some likelihood of success
on its claim that the Band’s actions against only non-members on navigable waters within its
territory are barred by the Seventh Circuit’s opinion in Baker.
In Baker, the State challenged certain provisions of hunting, fishing and ricing code of
the Lac Courte Oreilles Band of the Lake Superior Chippewa Indians that prohibited non -
member fishing on navigable waters within the Reservation without a fishing license issued by
the Lac Courte Oreilles Band. 698 F.3d at 1326. T he Seventh Circuit concluded that the
State had exclusive jurisdiction to regulate non -member hunting and fishing activities on
navigable waters within the reservation, reasoning that: (1) the power to regulate fishing and
hunting in navigable lakes was vested in the State of Wisconsin in 1848 , when the State was
admitted to the Union under the equal -footing doctrine; and (2) the United States neither
intended to divest the State of this power nor convey it to the Lake Superior Chippewa Bands
when it established reservations for them in the 1854 treaty. Id. at 1333–34. Given that the
Lac du Flambeau Band’s Reservation was also established in the 1854 treaty, the Seventh
Circuit’s legal reasoning and holding regarding the lack of tribal authority to regulat e non-
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member hunting and fishing applies equally to the Lac du Flambeau Band. Thus, the Band’s
recent resolutions restricting fishing by non-members appear to run directly contrary to Baker’s
holding that “ exclusive sovereignty over [navigable waters within the Reservation] is in the
State.” Id. at 1335.
Still, the Band argues that Baker should not control here, given that the case involved a
different record and a different band of the Lake Superior Chippewa -- the Lac Courte Oreilles
Band -- who did not raise some of the arguments asserted now. To begin, the Lac du Flambeau
Band now argues that it has “inherent sovereign authority” to regulate non-member fishing and
hunting on the Band’s reservation, which was not divested by the 1854 treaty or any other law.
Relatedly, the Band argues that its own constitution and laws grant it authority to regulate non-
members. However, the Supreme Court already rejected both arguments, holding that “the
inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of
the tribe.” Plains Com. Bank v. Long Fam. Land & Cattle Co., 554 U.S. 316, 328 (2008) (quoting
Montana, 450 U.S. at 565). Moreover, under this principle, the Band does not have inherent
authority to give itself power to regulate others. Montana, 450 U.S. at 564 (“[G] eneral
principles of retained inherent sovereignty did not authorize the Crow Tribe to adopt
Resolution [prohibiting hunting and fishing w ithin the reservation by anyone who was not a
member of the Tribe]”).
Next, the Band here argues that the Lac Courte Oreilles Band involved in the Baker
litigation did not make arguments about the 1854 treaty that it is now making, so the Seventh
Circuit never reached them. However, as the court explained at the preliminary injunction
hearing, this court is nevertheless bound by the Seventh Circuit’s interpretation of the 1854
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treaty in Baker, as well as its holding of that case. Perhaps the Band can persuade the Seventh
Circuit to modify or overrule Baker on appeal, but this court has no such authority.
Even if Baker generally restricts the Band’s lawful authority to regulate non -member
fishing on navigable lakes within the Reservation, the Band further argues that the Supreme
Court has acknowledged two instances in which Tribes may regulate nonmember conduct,
widely known as “the Montana exceptions.” Relevant here, the second Montana exception
allows concurrent tribal regulatory authority over non -member conduct on fee land within a
tribe’s reservation, but only where that conduct threatens the “political integrity, the economic
security, or the health or welfare of the Tribe.” Montana, 450 U.S. at 566. While the Band
now contends that its fishing restrictions fall under the second Montana exception, because
non-member fishing of walleye and muskellunge on reservation lakes threatens or directly
affects its “political integrity, economic security, or health or welfare,” the Supreme Court has
held that for this exception to apply, the challenged conduct cannot merely injure a Tribe but
must “imperil the subsistence” of the tribal community such that “tribal power must be
necessary to avert catastrophic consequences.” Plains Com., 554 U.S. at 341 (citation and
internal quotation marks omitted); see also FMC Corp. v. Shoshone-Bannock Tribes, 942 F.3d 916,
935 (9th Cir. 2019) (to fall under a tribal regulation, “[ t]he activities must ‘imperil the
subsistence or welfare’ of the tribal community.’”) Moreover, the Band has the burden to
establish this exception would apply, Plains Com. Bank, 554 U.S. at 330, and “that burden is
difficult to meet.” McGowan v. Tix , 161 F.4th 1118, 1124 (8th Cir. 2025) (defendant had
failed to establish tribal court authority over a divorce petition under Montana exception); see
also Plains Com. Bank , 554 U.S. at 330 (“efforts by a tribe to regulate nonmembers . . . are
‘presumptively invalid’”) (quoting Atkinson Trading Co. v. Shirley, 532 U.S. 645, 659 (2001)) .
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To date, the Band has not even come close to showing that non-member fishing of walleye and
muskellunge on Reservation lakes is necessary to avert catastrophic consequences. At most, a
single declaration from a lone Band natural resource specialist has noted a decline in walleye
and muskellunge on a few lakes within the reservation (a pattern that is part of a larger trend
showing up in some other, fresh water lakes around t he State and under study as to possible
causes), but is in no way yet considered any kind of catastrophic cliff for either fish population.
Thus, a lthough the Band submitted evidence that its members rely on walleye and
muskellunge as a food source and revere both fish, especially the walleye, as cultura lly
significant, it submitted little to no evidence that non -member fishing, trolling or use of
forward-facing sonar would result in catastrophic consequences for the Band. Indeed, the
Band’s primary evidence of the potential consequences is the 8-page 2025 report completed by
Tribal Fish Hatchery staff, which covers only one-year of monitoring and is wholly insufficient
to suggest catastrophic consequences w ill arise unless nineteen lakes are suddenly and
indefinitely closed to certain types of fishing by non -members. Instead, state fisheries staff
persuasively explained why the Band’s Fish Hatchery Report was “unremarkable,” critically
lacking both “procedurally and interpretatively,” and did not demonstrate that walleye or
muskellunge are experiencing “critical declines.” (Hennessy Decl. (dkt. #28) ¶ 26; see also id.
¶¶ 24–29.) The State’s fisheries staff also found the Band’s attempt to restrict non-members’
methods of fishing (forward trolling and forward -facing sonar) to be, at best, factually
unsupported, and more likely, “ineffectual for [its] asserted purposes.” (Id. ¶¶ 51–70.)
Finally, the Band argued at the preliminary injunction hearing that the Supreme Court’s
decision in United States v. Cooley , 593 U.S. 345, 349 –53 (2021), supports its enactment of
incremental, narrowly tailored resolutions to address potential harm to tribal interests. On its
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face, however, Cooley is inapposite, as it did not involve a tribe attempting to subject a non -
member to tribal law. Rather, in Cooley, the Supreme Court held that a tribal police officer had
authority to search and detain for a reasonable time any person he or she believes may commit
or has committed a state or federal crime. Id. at 353 (“Saylor’s search and detention, however,
do not subsequently subject Cooley to tribal law, but rather only to state and federal laws that
apply whether an individual is outside a reservation or on a state or federal highway within
it.”). As the Supreme Court explained, without such authority, tribes wou ld have difficulty
“protect[ing] themselves from ongoing threats ,” such as “drunk drivers, transporters of
contraband, or other criminal offenders operating on roads within the boundaries of a tribal
reservation.” Id. at 351. 2 In contrast, the Band here is attempting to subject non -member
anglers to tribal law based on slim evidence that it will face comparable, catastrophic
consequences such as those presented by potential criminal offenders operating on a
reservation. In short, the Band has not provided any persuasive reason why Baker does not still
control the outcome here. Thus, the State has shown a substantial likelihood of success on the
merits of its declaratory judgment action.
II. Lack of Legal Remedies and Irreparable Harm
2 Contrary to defendants’ assertions at the evidentiary hearing, Cooley likewise includes no
discussion of a tribe’s authority to take “incremental” steps to regulate non -tribal members.
However, even if Cooley could be interpreted as somehow approving incremental tribal
regulation of non-tribal members, it appears to have been done precipitously here. Indeed, the
Band took unilateral action on short notice to close nineteen lakes to all walleye and
muskellunge fishing by non -tribal members without adequately consulting the State’s DNR ,
determining any causal relationship, or, apparently, considering less restrictive or abrupt
alternatives.
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The State likewise has shown that it has “no adequate remedy at law” and that without
injunctive relief it will likely suffer irreparable harm. Finch, 82 F.4th at 578. Specifically, as
the Band itself concedes, an intrusion on a State’s sovereignty over its territory constitutes
irreparable harm. See Kansas v. United States, 249 F.3d 1213, 1227–28 (10th Cir. 2001) (where
an action places a state’s “sovereign interests and public policies at stake,” the “harm the State
stands to suffer [is] irreparable”). Because the State has the power as a sovereign to regulate
hunting and fishing in navigable lakes in this State, whether within or outside a tribe’s territory,
Baker, 698 F.2d at 1335, the Band’s attempt to assert jurisdiction over certain of its lakes within
its reservation infringes on the State’s sovereignty. Additionally, the court is persuaded that
the risk of conflict and public confusion resulting from the Band’s precipitous resolutions on
the eve of the opening of fishing season is more likely th an not to invite irreparable harm as
well.
III. Balance of Harm and the Public Interest
The remaining factors for issuing a preliminary injunction also favor the State. Again,
aside from the potential, though largely unsubstantiated, harm to walleye and muskellunge
populations from non-member anglers, the Band has identified no risk of harm to itself or the
public that would flow from a temporary injunction. In contrast, the potential harm to the
State and public arising from the conflicts, public confusion, and legal uncertainty , let alone
the harm to anglers from closing lakes to walleye and muskellunge fishing during the 2026
season, are significant. Even if these harms were not substantial, allowing such a last -minute
disruption of the status quo that has held for generations is without justification absent better
research and meaningful balance between the State and the Band. Accordingly, the court is
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persuaded that the balance of equities all weighs heavily in favor of the State and the public .
Therefore, a preliminary injunction will be entered allowing non-members to continue to fish
on navigable waters.
ORDER
IT IS ORDERED that:
1) Plaintiff State of Wisconsin’s motion for preliminary injunctive relief (dkt. # 4) is
GRANTED as follows:
Defendants are preliminarily enjoined from enforcing the Lac du Flambeau
Band of Lake Superior Chippewa Indians Tribal Council’s Resolutions
8(26), 119(26), and 131(26), or any other resolution by the Band that
purports to restrict non-member fishing righ ts on navigable waters during
the pendency of this litigation.
2) Under Fed. R. Civ. P. 65(c), plaintiff shall not be required to post a bond at this
time.
Entered this 17th day of June, 2026.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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