Michigan United Conservation Clubs v. Anthony

No. 2331 (Mich. Cir. Ct. November 10, 1972)

Michigan has authority under its Environmental Protection Act to regulate the alleged treaty right of Indians to fish in Lake Michigan in a reasonable and non-discriminatory manner when necessary to conserve fish as a natural resource.

Counsel for Plaintiff
Robert H. Gillette
Wheeler, Upham, Bryant, & Uhl
620 Old Kent Building
Grand Rapids, Michigan 49502

Counsel for Defendants
Frank J. Kelly State Att'y General
7 Story Office Building
Lansing, Michigan 48933

Frank C. Hanson
Neal & Grier
401 Center Street
South Haven, Michigan 49090

William J. James, Director
U.P. Legal Services, Inc.
213 West Spruce Street
Sault Ste. Marie, Michigan 49783

[3 ELR 20195]

Smith, Circuit Judge.

On April 6, 1971, the Michigan Supreme Court decided the case of People v. Jondreau, 384 Mich. 539. Before that date there was no unlicensed commercial fishing by Indians. After that date certain Indians from the Bay Mills Indian Community and other Indians began commercial fishing without license and in contravention of Department of Natural Resources Rules and Regulations. This unrestricted commercial fishing extended from Whitefish Bay in Lake Superior to as far South as Grand Haven in Ottawa County.

Plaintiff brought this action requesting equitable relief in the form of a permanent injunction against defendants, alleging that the defendants' actions have or are likely to impair or destroy natural resources of the State of Michigan, to-wit the fish populations of Michigan waters, under the Michigan Environmental Protection Act, MCLA 691.1201 et seq., hereinafter referred to as EPA.

This Court disposed of defendants' contention that it was without jurisdiction in an earlier opinion filed herein. Defendants renew their attack on this Court's jurisdiction following the full hearing on the merits of the case. There appears to be no reason why this Court should depart from its prior decision on this subject. Consequently it adopts the prior decision to retain jurisdiction under the authority therein cited.

Section 3 of the EPA provides that the plaintiff must make a prima facie showing that the conduct of the defendant has, or is likely to impair or destroy natural resources or the public trust therein. Section 4 provides that the Court may grant temporary and permanent equitable relief, or may impose conditions on the defendant that are required to protect the natural resources or the public trust therein from impairment or destruction. So the question before the Court is whether plaintiff has made out a proper case for the relief prayed.

Do defendants have special treaty rights to fish in the waters of the State of Michigan? Defendants have raised this issue by their contention that such rights were granted by a 1836Treaty with the United States Government. The Treaty in question was entered into on March 28, 1836, between the Ottawa and Chippewa Indians and the United States Government. The Treaty ceded to the United States Government all lands claimed by the Ottawa and Chippewa Indians including roughly the Eastern half of the Upper Peninsula and the Northwestern third of the Lower Peninsula, extending as far South as the Grand River in Ottawa County.

The Article relied upon by defendants is Article Thirteenth which provides as follows:

"ARTICLE THIRTEENTH. The Indians stipulate for the right of hunting on the land ceded, with the other usual privileges of occupancy, until the land is required for settlement."

Adopting the rule of construction of Indian Treaties as set forth in Jondreau, supra, the Court is of the opinion that fishing rights were included in the right of hunting and in the usual privileges of occupancy. These rights were not exclusive but were such as were accorded any resident of the territory or state. Also such rights were terminable when the land was required for settlement.

There can be no doubt but that the land ceded to the Federal Government by the 1836 Treaty has been required for settlement and in fact is settled. The defendants and their ancestors must have thought so for they did not seek to enforce fishing rights under this Treaty until Jondreau, supra, inspired some hope in that direction.

Subsequent to the 1836 Treaty the same parties entered into a second Treaty, July 31, 1855, which provided:

"In view of the existing condition of the Ottawa and Chippewas, and of their legal and equitable claims against the United States, it is agreed between the contracting parties as follows:

"ARTICLE 3. The Ottawa and Chippewa Indians hereby release and discharge the United States from all liability on account of former treaty stipulations, it being distinctly understood and agreed that the grants and payments hereinbefore provided for are in lieu and satisfaction of all claims, legal and equitable, on the part of said Indians jointly and severally against the United States, for land, money or other thing guaranteed to said tribes or either of them by the stipulation of any former treaty or treaties, excepting, however, the right of fishing and encampment secured to the Chippewas of Sault Ste. Marie by the Treaty of June 16, 1820."

The Treaty with the Chippewa of 1820 above referred to provided:

"ARTICLE 3. The United States will secure to the Indians a perpetual right of fishing at the Falls of St. Mary's, and also a place of encampment upon the tract hereby ceded, convenient to the fishing ground, which place shall not interfere with the defenses of any military work which may be erected nor with any private rights."

Since the Treaty of 1855 expressly referred to fishing rights under a 1820 Treaty it would seem that the matter of fishing rights, of deep concern to these Indians, were in mind when they agreed to the terms of the 1855 Treaty releasing the United States from all "Claims, legal and equitable, on the part of said Indians jointly and severally against the United States, for land, money or other thing guaranteed to said tribes or either of them by the stipulation of any former treaty or treaties; . . ."

Consequently the Court is of the opinion that any fishing rights afforded the defendants under the Treaty of 1836 were released by the Treaty of 1855 except those expressly referred to as continuing under the Treaty of 1820.

Assuming for the sake of argument that defendants do have an existing Treaty right to fish in the waters of Michigan, may the State of Michigan regulate such a right when it can be shown that regulation is necessary to conserve the fish as a natural resource?

Before discussion of the above issue is begun there is an evidentiary matter to be discussed. Defendants called the attention of the Court to a recent decision of the Michigan Supreme Court, Jones v. Bloom, 200 NW2d 196 (1972), where the Court held that it was proper cross examination to use text books recognized as authority by the witness even though the witness had not used the text in forming his opinion. This Court refused to allow defendants to use treatises authored by Paul Eschmeyr and others of the United States Department of Interior to establish their theory that the sea lamprey is a major or the major cause for the disappearance of the Lake Trout from the Great Lakes. For the [3 ELR 20196] same purpose defendants have, by letter dated October 10, 1972, referred the Court to an excerpt from a copy of the Proceedings of the SCOL Conference held in Canada in July, 1971, recorded in Vol. 29, No. 6 of the "Journal of the Fisheries Research Board of Canada", June, 1972. This excerpt indicates that there is authority for the proposition that the sea lamprey was a powerful influence on the phenomenal decline of the Lake Trout in Lake Michigan after 1944, with some authors indicating that it was totally responsible.

The testimony of Mr. Tody and Mr. Scott from the DNR indicated that they both recognized the part that the sea lamprey played in the disappearance of Lake Trout from the Great Lakes They believed that it was a combination of the lamprey and the use of nylon gill nets, although both believed that the unrestricted use of nylon gill nets could have done it.

The Court is grateful to defendants for their reference to Jones v. Bloom, supra, and also to the excerpt from the findings at the SCOL Conference, supra, concerning the causes for the Lake Trout depletion in Lake Michigan. These matters have been considered.

And now to the matter of conservation. Commercial fishing on the Great Lakes has been recorded since 1820. In former days it was a flourishing industry. There can be no doubt but what Indians engaged in this commercial venture. Late in the 1800s the State began to regulate this industry since it then appeared that it was not an inexhaustible resource as previously believed. In 1908 sport fishing regulations first appeared. By 1960 both commercial and sport fishing had fallen off to the extent that the authorities became alarmed at the loss of this natural resource. In 1964 it became apparent that the Great Lakes would have to be replenished to restore Lake Trout as a natural resource. The war on the lamprey began with successful results, salmon were introduced for the dual purpose of aiding in the eradication of the ale-wife and as a new food resource, and regulations limited the use of the gill net and zoning the waters for the protection of new plantings were promulgated.

The DNR discovered that only 10% of a plant survived the first year, most of the mortality coming from natural causes, but indicating that the survivors needed protection in order to live to maturity. A four phase program was inaugurated by the DNR to the end that aviable fishing resource could again be established in the waters of the Great Lakes. This program required: 1. Sea Lamprey control, 2. Planting of large numbers of fish, 3. Regulation of the catch by both commercial and sports fisherman, 4. Pollution control.

It was well established by convincing evidence that the nylon gill-net, a non-selective device, was a most lethal tool. When a modern commercial fisherman was equipped with modern gear, including electronic locating devices, powered fishing tugs and lifting winches that could haul in miles of nets, there was no limit to the catch. When such a fisherman invaded the vulnerable zones and depths where fish were in large numbers at certain seasons the chance for survival was small.

In the opinion of the Court the need for regulation of both commercial and sport fishing in the Great Lakes at this critical time was vividly demonstrated.

Defendants contend that the proofs fall short of establishing that their commercial activity is sufficiently extensive to affect the program of the DNR. They further contend that they are able to and will regulate their commercial fishing activity so as not to deplete the resource. But this does not take into account the possibility and probability that some Indians will succumb to the temptation to capitalize on their preferred status as Treaty Indians and take as much as their resources, combined with the resources of other like minded, will afford. There is evidence that some Indians are not members of the Indian Community and therefore not subject to Indian regulation.

In Puyallup Tribe v. Department of Game of Washington, et al., 391 U.S. 392 (1968) the Supreme Court decided that defendants had treaty rights to fish in certain waters of the State of Washington, and the state could impose such reasonable regulations as were necessary to protect and preserve the fish population of the state. In that case the Treaty provided:

"The right of taking fish, at all usual and accustomed grounds and stations, if further secured to said Indians, in common with all citizens of the territory . . ."

Justice Douglas wrote at page 398 of the above opinion:

"We assume that fishing by nets was customary at the time of the Treaty; and we also assume that there were commercial aspects to that fishing as there are at present. But the manner in which the fishing may be done and its purpose, whether or not commercial, are not mentioned by the Treaty . . . . but the manner of fishing, the size of the take, the restriction of commercial fishing, and the like, may be regulated by the state in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians."

There is abundant proof that regulation of fishing on the Great Lakes is necessary for the conservation of the fish population, and at least for some time to come more reason exists to protect the new plants and survivors so that this natural resource may be restored to the extent that modern means and purpose provides.

In the opinion of the Court the defendants herein have no existing Treaty Rights to fish, but if they have that it is subject to non-discriminating regulation in the interest of conservation.

The counter-claim of Tony Nertoli may be dismissed for lack of proof. Plaintiffs may have a permanent injunction.

No costs as a public question is involved.