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Court filing could end Great Lakes fishing as we know it

By Michigan United Conservation Club

Salmon fishing in Muskegon. Courtesy photo.

The 2000 Great Lakes Consent Decree is set to expire in August, and a court proceeding filed last week by one Upper Peninsula tribe could end sportfishing as we know it in much of the Great Lakes.

Since 1985, a large portion of Michigan’s Great Lakes fishery has been divided up under an agreement between five of Michigan’s sovereign Native American tribes and the state. This agreement was handed down by a federal court in a “consent decree” that applied to what is known as the 1836 Treaty Waters. The treaty waters extend from the mouth of the Grand River in Lake Michigan to Alpena in Lake Huron and from Sault Ste. Marie to almost Marquette on Lake Superior. 

Each tribe, per the consent decree, was given its home waters, where it is free to fish and other tribes are not. Other areas of the Great Lakes were reserved for sportfishing, and some areas were shared between the tribes and the sport fishery.

FWS employee checks gill nets on boat. The United States Fish and Wildlife Service. Courtesy photo.

The Michigan Department of Natural Resources (DNR) manages the sport fishery under this decree, which includes how available stocks are measured and what methods of take may be used by fishers. The DNR also determines creel limits, fishing methods and fisheries management for recreational anglers—who pay, through license dollars and excise taxes, to manage the fishery.

The current consent decree, and the rules that have applied for the last 35 years, is set to expire on August 8. Current negotiations to reach a new agreement are floundering and COVID-19 has limited the parties’ ability to meet and wade through critical issues. It is clear that a new consent decree will not be negotiated by the deadline next month.

On June 24, four of the five tribes, the State of Michigan, and the United States asked a federal court to extend the current decree through the end of 2020. 

The Sault Ste. Marie Tribe of Chippewa Indians also filed a request with the federal court asking that the extension be granted only until November 8. The Sault Tribe asserted that after that date, however, it will be free to fish without geographical restrictions anywhere within the treaty waters even if later extensions to the consent decree are granted while negotiations continue. Though not explicitly stated, it can reasonably be assumed the Sault Tribe seeks to use any gear they deem necessary, such as gill nets, in zones that have not allowed such gear since 1985. 

An amici group representing recreational anglers, of which Michigan United Conservation Clubs (MUCC) is a member of, filed a response to the requests to illustrate important history and critical issues that are preventing a successor agreement being reached. 

Recreational fishing is in jeopardy 

Anyone 35 years old or younger and who fishes in the treaty waters doesn’t know what it was like to fish these waters without a consent decree, said Steve Schultz, an attorney for the amici group representing recreational anglers.

“Gill nets or other commercial nets have not been allowed in certain areas for over 35 years. Allowing such gear now presents risks of overfishing to the point that a stock could collapse and also presents potential conflicts between recreational fishing gear and commercial fishing nets where nets may not have existed in an area for decades,” Schultz said. “It is imperative that the parties come together, as they did in 1985 and 2000, and find a way to manage this shared fishery resource for healthy populations and access for everyone.”

Past experience illustrates what could happen if an agreement is not reached. In 1979, the federal court upheld the tribes’ right to fish under an 1836 Treaty. Shortly thereafter, areas were opened to tribal commercial fishing for lake trout and whitefish. Within months, lake trout stocks in certain areas were depleted by 98 percent.

The lethal efficiency of gill nets and ability to place that gear wherever deemed appropriate is what worries recreational anglers, said MUCC Executive Director Amy Trotter.

“The changes that are requested by the Sault Tribe will fundamentally change the nature and scope of the fishery in the Great Lakes,” Trotter said. “Recreational anglers need a strong voice in these negotiations for the health of the fishery and to maintain Michigan’s robust outdoor recreation economy.” 

According to court documents, the Sault Tribe claims that it agreed to exclusive zones in prior decrees to give the other relatively newly recognized tribes an opportunity to develop their fisheries. The Sault Tribe claims those newly recognized tribes have now had an opportunity to establish their fishery, and the 1836 Treaty Waters should be open to all tribal fishers everywhere. Effectively, this means that the Sault Tribe now wants to fish in Lake Michigan from the mouth of the Grand River to the Straits of Mackinac and to the Bays de Noc.

Under the current consent decree, the total allowable catch of all species in the treaty waters is split between the tribes and the state, with each given approximately 50 percent. The tribe’s take is derived mostly from commercial fishing, while the state manages its fishery for recreational anglers and state commercial fishers.

The Sault Tribe, in its court filing, said that they account for more than two-thirds of the allotted tribal take. In a recent Michigan Senate hearing, Sault Tribe Chairperson Aaron Payment said he “stands in solidarity” with state-licensed commercial fishers. Yet, the tribe’s filing appears to seek 100 percent of the resource with no limitations on gear.  

This would likely put state-licensed commercial fishers currently operating in the 1836 Treaty Waters out of business and severely limit the lake trout bag limits for recreational anglers in the state, if not close seasons completely in some areas.

For 35 years, the state, tribal and sportfishing interests have worked together to co-manage the fishery through the implementation of separate zones for commercial and sportfishing purposes, Trotter said.

“In many areas, recreational anglers and the tribes have developed a good working relationship and have come to understand each other’s needs and rights, and there is a very real possibility here that those relationships and understandings, as well as all of the work and money the DNR, the tribes and federal government have put into the restoration of these fisheries could come crashing down,” Trotter said. “If no new consent decree can be agreed upon, Great Lakes sportfishing as we have come to know it in Michigan will be gone.” 

What’s next?

Federal Judge Paul Maloney is expected to rule on the recent requests to extend the current rules filed by the parties soon. That decision will likely set the stage for either negotiation or litigation for the coming months.

Should Judge Maloney rule that the December 31 extension asked for by the parties, and opposed by the Sault Tribe, is granted, the parties will return to negotiations with a previouslyappointed mediator. Should he grant the motion filed by the Sault Tribe, tribal fishers could start fishing in all of the treaty waters on November 8.

“If litigation over the meaning of the treaty right occurs, the extent of the sport fishery could be unknown for years. Lawsuits are never easy and oftentimes leave feelings of resentment among all parties,” Schultz said. “We have to get this right for all the parties involved. We have to ensure recreational fishing will continue to thrive in Michigan and that tribal fishers can continue to carry on their heritage.”

What can you do?

MUCC is a member of the Coalition to Protect Michigan’s Resources, an assemblage of conservation, recreational fishing and charter boat groups interested in maintaining Michigan’s recreational fisheries. 

All recreational anglers should be informed, get involved and financially support the efforts of the member organizations if they want to hold onto the Great Lakes fisheries as they know it.

Other members of the coalition include the Michigan Charter Boat Association, Michigan Trout Unlimited, Michigan Steelhead and Salmon Fishermen’s Association, as well as a number of other local sportfishing and lake association groups. 

MUCC represents 40,000 members throughout Michigan and 200 affiliate clubs. Since 1937, MUCC has worked under the mission of uniting citizens to conserve, protect and enhance Michigan’s natural resources and outdoor heritage.

To help save recreational fishing today, consider donating to a https://michiganunitedconservationclubs.z2systems.com/np/clients/michiganunitedconservationclubs/donation.jsp?campaign=237 that will be used to protect Michigan’s sport fishery.

Posted in Featured, OutdoorsComments (1)

MUCC suit requests immediate injunction against criminalization of motorized boating

from the Michigan United Conservation Clubs

Michigan United Conservation Clubs (MUCC) filed a complaint in United States District Court for the Western District of Michigan on Sunday challenging the criminal prohibition against motorboat use recently announced by Gov. Gretchen Whitmer.

The complaint alleges Whitmer and Department of Natural Resources Director Daniel Eichinger’s application of EO 2020-42 to prohibit motorboat use is unconstitutional.

The order itself was enacted on April 9 by Whitmer and expressly allows “outdoor physical activity,” including activities similar to kayaking and canoeing. The order makes no mention of prohibiting the outdoor activity of boating. However, in response to “Frequently Asked Questions,” the Governor and DNR have opined that motorboat use is not an allowed form of “outdoor physical activity.”

In fact, the governor and DNR have taken the position that all motorboat use anywhere in the state, regardless of waterbody, number of boaters or adherence to social distancing protocols, is criminal. Law enforcement is now enforcing the FAQs, including issuing criminal charges.  

On April 16, after an overwhelming amount of member communications, the MUCC Executive Board voted to pursue legal action in the matter. Aaron Phelps, a partner with Varnum LLP in Grand Rapids, was retained.

“Decisions by the MUCC Executive Board and staff did not come easy and were not taken lightly. Countless hours of deliberations, sleepless nights, a member survey and consultations played a role in this decision,” said MUCC Executive Director Amy Trotter. “MUCC members, our friends and our families have been greatly impacted by this virus, and we mourn the losses to our great state.”

The complaint is requesting an immediate injunction of the blanket prohibition on motorized boating.

“Michigan anglers and recreational boaters have a constitutional right to clear and unambiguous rules, especially when violation of those rules can be criminally charged,” Phelps said. “Citizens cannot be subject to criminal penalties based on arbitrary interpretations of a unilateral order or, worse, vague responses to so-called frequently asked questions.”

Trotter said there have been attempts to label this as a partisan effort.

“This litigation would not be brought forward if it did not include a sound policy argument,” Trotter said. “Attempts to cast this as emotionally- or politically-driven are baseless.”

Whitmer’s office and the DNR have leaned heavily on the argument that motorboats require gasoline and further risk the spread of novel coronavirus. However, electric motors are also banned, and gas-powered, off-road recreational vehicles are still allowed on trails across the state. Kayakers and canoers, in many cases, also need gasoline to haul their crafts to a body of water and utilize the same boat access sites as motorboats.

Sailboats often require multiple people and motors but are allowed, according to the state’s interpretation. Out-of-state anglers can travel freely to Michigan to fish. Yet, a person living on a lake cannot walk out their back door and utilize their motorboat.

MUCC has been supportive of the administration’s legal closure of areas like Tippy Dam, where anglers continually were asked to social distance and conservation and law enforcement officers were met with resistance. The organization, if given a chance, will partner with the governor’s office to continue communicating and helping in any way possible to ensure anglers are recreating responsibly, Trotter said.

April provides some of the most diverse Great Lakes, river, stream and inland lake fishing opportunities. Walleye, steelhead and sucker runs are happening throughout the state, while bowfishing and catch-and-release bass fishing ramp up once ice melts. The state’s annual trout opener starts the last Saturday in April.

Many anglers rely on the high-quality, locally-sourced protein and mental health benefits that fishing provides. Whitmer has recognized and lauded these assets publicly throughout this crisis. Anglers need access to the waters and the fisheries, which sometimes requires a motor boat, in order to participate in this activity.

MUCC has received support from a variety of stakeholders, including professional, nationally-known Michigan anglers Mark Zona and Kevin VanDam.

“The lakes, rivers and streams of Michigan are usually buzzing with anglers this time of year and we know that we can’t do things like we always have,” Zona said. “But there are a lot of things that we should be able to continue to do, while also following the social distancing protocol that has been laid out. Fishing from a motorboat, at its core, is social distancing.”

Angling contributes $2.3 billion to Michigan’s economy annually, according to a study commissioned by MUCC through the Michigan State University Eli Broad College of Business. See it at https://mucc.org/about-us/economic-impact-study-2019/.

For Yoopers, like MUCC Executive Board President George Lindquist, spring is the best time of year to troll

Lake Superior’s near-shore waters for coho and king salmon, steelhead and lake trout. As of Saturday, Michigan’s Upper Peninsula had 60 reported cases of the novel virus.

“I fished out of Marquette two days before this rule went into effect and saw other anglers fishing alone or with their children and their dogs,” Lindquist said. “All were following best-practices for social distancing and taking this pandemic very seriously.”

Lake St. Clair Walleye Association President Tim Muir said this is one of his clubs’ busiest times.

“The walleye fishing this time of year is about as good as it gets,” Muir said. “Fishing is a great way for folks to get out of the house for some stress relief and also keep their distance from other anglers. This only works if anglers recreate responsibly, and we need to be mindful of that and stewards of this message moving forward.”

MUCC represents 40,000 members throughout Michigan and 200 affiliate clubs. Since 1937, MUCC has united citizens to conserve, protect and enhance Michigan’s natural resources and outdoor heritage.

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