Wisconsin Department of Natural Resources, Plaintiff-Appellant,
Timber and Wood Products Located in Sawyer County, Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin and Unknown Defendants, Defendants-Respondents.
from an order of the circuit court for Sawyer County, Cir.
Ct. No. 2015CV171 JOHN M. YACKEL, Judge. Affirmed.
Stark, P.J., Hruz and Seidl, JJ.
This appeal involves an attempt by the Wisconsin Department
of Natural Resources (DNR) to recover taxes that it alleges
the Lac Courte Oreilles Band of Lake Superior Chippewa
Indians of Wisconsin (the Tribe) owes under Wisconsin's
Forest Croplands Law, Wis.Stat. §§ 77.01-77.17
(2015-16). The circuit court granted the Tribe's
motion to dismiss, concluding the Tribe's sovereign
immunity barred the DNR's claims. We agree. We reject the
DNR's argument that the Tribe waived its sovereign
immunity. We further conclude that, in addition to barring in
personam claims against the Tribe, the Tribe's sovereign
immunity prevents the DNR from bringing an in rem claim
pertaining to the timber and wood products located on the
Tribe's property. We therefore affirm the order
dismissing the DNR's claims.
The Forest Croplands Law
Because this appeal involves taxes allegedly owed under the
Forest Croplands Law, we begin with a brief overview of the
relevant statutory provisions. The Forest Croplands Law was
enacted in 1927. See 1927 Wis. Laws, ch. 454. Its
stated purpose is
to encourage a policy of protecting from destructive or
premature cutting the forest growth in this state, and of
reproducing and growing for the future adequate crops through
sound forestry practices of forest products on lands not more
useful for other purposes, so that such lands shall continue
to furnish recurring forest crops for commercial use with
public hunting and fishing as extra public benefits, all in a
manner which shall not hamper the towns in which such lands
lie from receiving their just tax revenue from such lands.
Wis. Stat. § 77.01.
Before 1986, a landowner could petition the DNR (or its
predecessor agency) to enroll land in the Forest Croplands
program. See Wis . Stat . § 77.02(1).
The petition was required to allege, among other things, that
the owner "believe[d] the lands … are more useful
for growing timber and other forest crops than for any other
purpose" and that the owner "intend[ed] to practice
forestry thereon." Id. Upon making certain
findings, including that the property was held permanently
for the growing of timber under sound forestry practices and
would produce a merchantable timber crop within a reasonable
time, the DNR was required to enter an order granting the
petition. Sec. 77.02(3)(a). The statutes provide that the
Forest Croplands Law, the landowner's petition, and the
order granting the petition "shall constitute a contract
between the state and the owner." Wis.Stat. §
Enrollment of a property in the Forest Croplands program
"subject[s] the property to certain 'forestry'
practices as well as substantial tax benefits."
Sausen v. Town of Black Creek Bd. of Review, 2014 WI
9, ¶64, 352 Wis.2d 576, 843 N.W.2d 39. Owners of
property enrolled in the Forest Croplands program are
required, among other things, to notify the DNR of any timber
harvests on the property and to permit public access for
hunting and fishing. See generally Wis. Stat.
§§ 77.03, 77.06. In return, land enrolled in the
program is not subject to an annual real estate property tax.
Wis.Stat. § 77.04(1). However, owners of enrolled
property are required to make several other types of tax
First, owners of land enrolled in the Forest Croplands
program are required to pay a per-acre annual tax known as
the "acreage share." Wis.Stat. § 77.04(2). For
land-like the property at issue in this case-that was
enrolled in the Forest Croplands program before 1972, the
acreage share is computed "at the rate of 10 cents per
Second, during the time period at issue in this case,
landowners were required to pay a "severance tax"
whenever merchantable wood products were harvested from
property enrolled in the Forest Croplands program. Wis.Stat.
§§ 77.06(5), 77.07 (2011-12). The amount of the
severance tax was ten percent of the value of the harvested
wood products. Sec. 77.05(6) (2011-12). Pursuant to §
77.07(1) (2011-12), the landowner was "personally liable
for any severance tax because of any wood products cut [from
enrolled property], which tax shall also be a lien on such
wood products wherever situated and in whatever form …
until paid." The statutes imposing the severance
tax-§§ 77.06(5) and 77.07 (2011-12)-were repealed
in 2016. See 2015 Wis. Act 358, §§ 16-17.
Third, if enrolled land is either withdrawn from the Forest
Croplands program by the owner or expelled by the DNR for
noncompliance before the end of the contract period, the
owner is required to pay what the DNR refers to as a
"withdrawal tax." See Wis. Stat. §
77.10(1)(a), (2)(a)1. The amount of the withdrawal tax is
the amount of tax due from the date of entry [in the Forest
Croplands program] or the most recent date of renewal,
whichever is later … with simple interest thereon at
12 percent per year, less any severance tax and supplemental
severance tax or acreage share paid thereon, with interest
computed according to the rule of partial payments at the
rate of 12 percent per year.
Fourth, if at the end of the contract period land enrolled in
the Forest Croplands program is not enrolled in that
program's successor, the Managed Forest program, the
landowner is required to pay a ten percent severance tax on
the remaining timber on the land "in the same manner as
if the stumpage had been cut." Wis.Stat. § 77.03.
The DNR refers to this fourth type of tax as the
"termination severance tax."
The property at issue in this case (hereinafter, "the
Real Estate") is located in Sawyer County and is
currently owned by the Tribe, which is a federally recognized
Indian tribe. On October 8, 1962, a previous owner of
the Real Estate, the Owens-Illinois Glass Company, filed a
petition to enroll it in the Forest Croplands program. The
petition was approved, and the Real Estate was enrolled in
the program effective January 1, 1963. At that time, each
Forest Croplands contract had a statutorily prescribed length
of fifty years. See Wis. Stat. § 77.03
In 1992 and 1993, the Tribe purchased the Real Estate from
Futurewood Corporation. On October 15, 1992, and May 24,
1993, two "Transfer of Ownership-Forest Crop Law"
forms were executed regarding the Real Estate.See Wis.
Stat. § 77.10(1)(b) (discussing procedure for transfer
of ownership of land enrolled in the Forest Croplands
program). Both forms designated the Tribe as the grantee and
were signed by a tribal representative. Each form stated:
[T]he Grantee accepts the transfer of the Forest Crop Law
entry. The Grantee intends to continue to practice forestry
on such land. Further, the Grantee agrees to comply with the
terms of the Forest Crop Law and the contract applicable to
the said lands including the payment of the severance taxes
and the annual acreage share.
The transfer forms were submitted to the DNR, which
subsequently executed transfer orders permitting the Real
Estate to remain enrolled in the Forest Croplands program.
Each order stated the Tribe "has petitioned [the DNR] to
continue Forest Crop Law designation for the parcel, agreed
to comply with the terms of the Forest Crop Law, and
certified an intent to practice sound forestry on the
In April 2011, the DNR gave the Tribe written notice that the
Real Estate's enrollment in the Forest Croplands program
would expire on December 31, 2012. The notice advised the
Tribe that it had two options: (1) enroll the Real Estate in
the Managed Forest program; or (2) allow the Real Estate to
expire from the Forest Croplands program. The notice further
advised that, if the Tribe chose the second option, the Real
Estate would be placed on the general property tax roll and
the Tribe would be required to pay a "termination
tax" that would be calculated "based on the volume
of the standing timber multiplied by 10% of the average
timber value in [the] area." The Tribe did not respond
to this notice or apply to enroll the Real Estate in the
Managed Forest program prior to the June 1, 2012 enrollment
In November 2012, the DNR hired a private forestry services
company to conduct a volume estimate of the standing timber
on the Real Estate. Based on that volume estimate, the DNR
determined the amount of the "termination severance
tax" that would be due upon expiration of the
Tribe's Forest Croplands contract was $74, 819.74.
In April 2013, the DNR sent the Tribe a notice indicating
that its Forest Croplands contract had expired and the Real
Estate had not been enrolled in the Managed Forest Program.
Attached to the notice was an invoice stating the Tribe owed
a "termination tax" of $74, 819.74, which was due
by May 31, 2013. The Tribe did not pay the termination tax.
In October 2013, the DNR notified the Tribe that the April
2013 invoice was past due. The DNR sent the Tribe a revised
invoice in the amount of $85, 931.44-comprised of the