Wisconsin High Court Deadlock Shields Burial Sites

MADISON, Wis. (CN) – An equally divided Wisconsin Supreme Court on Tuesday automatically affirmed the denial of a concrete company’s bid to remove Native American burial mounds from its property to expand its quarry operations.

Because it was equally split 3-3 in the two related cases, the state’s high court was required to uphold appeals court decisions against Wingra Redi-Mix and in favor of the Wisconsin Burial Sites Preservation Board and Ho-Chunk Nation, which was allowed to intervene in both cases because it holds a valid tribal and religious affiliation with the burial mounds and an interest in preserving the site.

Oral arguments in the cases were held in April, during which Chief Justice Patience Roggensack noted competing evidence.

The disputed site is located in Dane County and originally consisted of seven burial mounds that were identified in 1914 on property that has belonged to Wingra since 1982. Part of a bird effigy and part of a tailed mammal effigy were discovered in the early 1990s and the property was cataloged as a protected burial site in 1991. The other mounds have reportedly been destroyed over time.

Wingra has been operating a 57-acre sand and gravel pit around the group of burial mounds, which it says has resulted in a dangerous 50-foot mesa in the middle of its quarry.

About 20 after their initial cataloging, Wingra petitioned the director of the Wisconsin Historical Society in 2010, requesting that the mounds be de-cataloged on the basis that there is no definitive evidence that human remains were buried there. The company also petitioned for a permit to disturb the mounds to prove the absence of remains.

The director denied the de-cataloging petition and Wingra unsuccessfully appealed to the Burial Sites Preservation Board, whose decision was also upheld by the Dane County Circuit Court.

Last July, former Wisconsin Court of Appeals Judge Paul Higginbotham penned a 16-page opinion affirming the denial of the de-cataloging petition.

“We conclude that there was substantial evidence to support the board’s conclusion that Wingra Stone failed to provide sufficient evidence that the Ward Mounds do not contain human remains,” the ruling states.

The Burial Site Preservation Board also rejected Wingra’s petition to disturb the mounds, but the Dane County Circuit Court remanded the case for additional fact finding.

The Wisconsin Court of Appeals, however, overturned the circuit court’s reversal regarding the disturbance petition in another opinion issued last summer.

“We conclude that substantial evidence supports [the board’s division of hearing and appeals] finding that the Ward Mounds have historical significance that weighs against disturbing the site,” Judge Higginbotham wrote.

On Tuesday, the Wisconsin Supreme Court deadlocked in both cases 3-3, meaning the appeals court rulings will stand. Justice Daniel Kelly did not participate in the decisions.

Justice Shirley Abrahamson wrote separately to question the court’s practice of not identifying the votes of each justice in a tie decision.

She said that reporting the names and votes “advances the important goal of transparency in government and is consistent with every other opinion of this court in which the vote of each participating justice is known to the public.”

Wingra attorney Bryan Nowicki and Wisconsin Assistant Attorneys General Maura Whelan and Thomas Bellavia did not immediately respond Tuesday to email requests for comment.

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