Seventh Circuit Uses Fed. R. Civ. P. 60(b)(5) to Reopen 23-Year Old Judgment

09 October 2014 Wisconsin Appellate Law Blog

Federal Rule of Civil Procedure 60(b)(5) allows a party to move for relief from a final judgment on the ground that “it prospectively is no longer equitable.” Motions under Rule 60(b)(5) must be made “within a reasonable time” under Rule 60(c)(1), but subsection (c)(1) otherwise sets no firm deadline.

So what is “a reasonable time”? According to the Seventh Circuit’s decision today in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin, it could be as much as 23 years. No. 14-1051 (7th Cir. Oct. 9, 2014). 

Judge Posner wrote for the court in a case in which the Wisconsin Indian tribes sought to reopen a 1991 judgment of the U.S. District Court of the Western District of Wisconsin. That judgment upheld a Wisconsin statute prohibiting the tribes’ members from hunting deer at night outside of their reservations. The land at issue is a large swath of northern Wisconsin that the tribes ceded as part of treaties with the federal government in the nineteenth century, but in which they had retained hunting rights. (Judge Posner included a map of the reservations and the “ceded territory” on page 4 of the slip opinion.)

Hunting deer at night, with the aid of a spotlight, is particularly effective for the hunter (as this Youtube video illustrates), and Wisconsin’s tribes have long permitted tribal members to hunt deer in this way on their reservations.

Wisconsin has outlawed it, however, based on safety concerns. But Judge Posner thought that the state’s justifications for enforcing the ban against Indians with treaty rights to hunt had long since been superseded by subsequent events. Beginning in the late 1990s, he explained, the state itself began to hunt deer at night, using state employees and private contractors, in an effort to reduce the expanding deer population and to eradicate chronic wasting disease. Experience since that time had shown that the practice was “so safe . . . that, given sensible regulations governing such hunting, there [was] no reason to prohibit the tribes’ members from engaging in such hunting on ceded territory.” (Slip Op. 6.)

That might be true, but 23 years is still a long time under Rule 60, particularly since similar motions for relief from judgments under subsections (b)(1)-(b)(3) of that rule must be brought no more than a year from the judgment’s entry.

“But,” the court held, “what is reasonable depends on the circumstances. If reasonable reliance on a judgment is likely to grow over time, a motion to modify it should be made sooner rather than later. But in the case of regulatory decrees, such as the judgment in this case forbidding night hunting of deer, often the passage of time renders them obsolete, so that the case for modification or rescission actually grows with time.” (Slip Op. 10.)

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