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Michigan United Conservation Club v. Anthony

Citation: 9 ELR 20786
No. Nos. 77-1299, 78-503, 280 N.W.2d 883/90 Mich. App. 99, (Mich. Ct. App., 05/09/1979) Aff'd

The court affirms the issuance of an injunction restraining certain Indian fishermen from commercial fishing in the Michigan waters of the Great Lakes except in compliance with the rules and regulations of the Michigan Department of Natural Resources. The trial court's findings establish conclusively that appellee met its burden of making a prima facie case under the Michigan Environmental Protection Act that appellants' unregulated fishing activities were likely to impair and destroy large portions of the fish populations off the shores of Grand Haven and in Whitefish Bay. The court rejects appellants' affirmative defense that under treaties between the tribe of which they are members and the United States they are entitled to take fish without restraint by the state. Noting that all indigenous populations of lake trout were eradicated from the Great Lakes in the 1960s, the court finds that the fish at issue in this case were either stocked by the state or are descendants of stocked fish and therefore are not subject to the Indian treaties. Even, however, if appellants held valid treaty rights to the fish of the Great Lakes, they would nevertheless be subject to all reasonable and necessary state conservation rules and regulations. The injunction against fishing in violation of these regulations is therefore upheld.

The full text of this opinion is available from ELR (8 pp. $1.00, ELR Order No. C-1199).

Counsel for Appellants
Frank C. Hanson
Neal, Grier, Schutt, Hanson & Hanson
401 Center St., South Haven MI 49090
(616) 637-1191

Counsel for Appellee
Robert H. Gillette
Wheeler, Upham, Bryant & Uhl
Eleventh Floor, Trust Bldg., Grand Rapids MI 49503
(616) 459-4634

Counsel for Amicus Curiae State of Michigan
Frank J. Kelley, Attorney General; Robert A. Derengoski, Solicitor General; Curtis G. Beck, Ass't Attorney General
525 W. Ottawa, Lansing MI 48913
(517) 373-1110

Holbrook, J.