May 22, 2018 – With one justice on the sidelines, the Wisconsin Supreme Court split 3-3 on a case involving whether a mining company could disturb Native American effigy mounds surrounded by land the company owns, leaving a lower court decision in place.
The Wisconsin Appeals Court upheld an agency decision that said the mining company, Wingra Stone Company, could not have a permit to disturb the effigy mounds, which the Wisconsin State Historical Society added to its catalog of burial sites in 1991.
A circuit court reversed that decision, but a three-judge panel for the District IV Court of Appeals, in Wingra Red-Mix Inc. v. State Historical Society of Wisconsin, reversed the circuit court. The supreme court split leaves the appeals court decision in place. Justice Daniel Kelly withdrew from participation from the case, leaving only six justices.
The votes of particular justices were not disclosed in the per curiam opinion that was released today (May 22), and Justice Shirley Abrahamson wrote a separate opinion arguing they should be, which has been the court’s practice in the past, she said.
Appeals Court Decision
Last year, a three-judge panel ruled that the effigy mounds, known as Ward Mounds in the Town of Blooming Grove near Madison, “have historical significance” that was not outweighed by any stated land use interest that would support a permit to disturb them.
Wingra Stone Company sought a permit to disturb the Ward Mounds burial site under Wis. Stat. section 157.70(5)(c)2., which says a hearing must be conducted on a petition to disturb a burial site and the various interests must be weighed to reach a conclusion.
Reviewing the decision to deny the permit by the Division of Hearings and Appeals (DHA), the appeals court said it had no grounds to overturn the DHA’s decision, which found that cultural, tribal, and religious affiliation weighed against disturbing the site.
“More generally, the DHA decision is reasonably read as concluding that there may come a day when granting a petition to disturb will be appropriate, but the balancing of the various factors does not favor disturbing the Ward Mounds at this time,” wrote Judge Paul Higginbotham, who retired the same day the decision was released.