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Bigelow v. Michigan Dep't of Natural Resources

ELR Citation: 23 ELR 20059
Nos. No. 90-1091, 970 F.2d 154/(6th Cir., 07/14/1992)

The court holds that an appeal by commercial fishermen from a federal district court's dismissal of the fishermen's constitutional taking, equal protection, and due process challenge of a court-approved Michigan plan to restore aboriginal fishing rights to Michigan Indians, involving exclusive fishing rights to certain waters in the Great Lakes, is not ripe and must be dismissed. After the United States successfully sued Michigan in 1973 to stop the state from interfering with Indians' rights to fish in the Great Lakes, several tribes, Michigan, and a large number of state-licensed commercial fishermen negotiated a court-approved fishing allocation plan. However, a group of commercial fishermen opted not to participate and challenged the plan, claiming both that their fishing licenses had been taken without just compensation and their equal protection and due process rights had been violated.

The court first holds that because the fishermen have not pursued an inverse condemnation remedy in the Michigan courts, their taking claim is not ripe for review. Michigan has long recognized the doctrine of inverse condemnation, and state law does not restrict a taking of private property for public use to cases involving absolute conversion of private property. The court holds that the fishermen's equal protection claim is not ripe for review, applying the same standard of finality as is used under takings analysis. Because the fishermen may seek a remedy by inverse condemnation in state courts, they have not demonstrated that further pursuit of their claim would be futile. The court next holds that the fishermen's due process claims are not ripe, because until the state courts have ruled on an inverse condemnation claim made by the fishermen, the court cannot determine whether a taking has occurred, and thus, cannot address the procedural due process claim with a full understanding of the relevant facts. Moreover, addressing the fishermen's procedural due process claim at this stage would allow future plaintiffs to effectively circumvent the ripeness requirement for takings claims simply by attaching a procedural due process claim to their complaint. Finally, the court dismisses as not ripe the fishermen's state constitutional claims. The district court lacked subject matter jurisdiction over the federal issues, and thus, it lacked jurisdiction over pendant state issues.

Counsel for Plaintiffs
Dale W. Rhoades
Rhoades, McKee, Boer, Goodrich & Titta
600 Waters Bldg., Grand Rapids MI 49503
(616) 235-3500

Counsel for Defendants-Appellees
Thomas J. Emery, Kevin T. Smith, Ass't Attorney Generals
Attorney General's Office
525 W. Ottawa Ave., P.O. Box 30212, Lansing MI 48909
(517) 373-1110

Before NELSON and BOGGS, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.

BOGGS; Circuit Judge.