Bigelow v. Michigan Dept. of Natural Resources
| Decision Date | 14 July 1992 |
| Docket Number | No. 408,No. 430,No. 500,P,No. 517,No. 443,No. 404,No. 503,No. 460,No. 445,No. 602,No. 433,No. 447,No. 417,No. 501,No. 461,No. 431,No. 420,No. 412,No. 516,No. 401,No. 442,No. 90-1091,No. 425,Nos. 505 and 518,No. 405,No. 448,401,404,405,412,417,420,425,430,433,447,500,503,516,517,602,408,431,442,443,445,448,460,461,501,s. 505 and 518,90-1091 |
| Citation | 970 F.2d 154 |
| Parties | 23 Envtl. L. Rep. 20,059 Clifford BIGELOW, License; Brown Fisheries, License; Casey Fisheries, License; Gerald L. Moore, License; Paul H. Brown, License; Cedarville Fish Company, License; Lamb Fishery, Inc., License; John Leclair, License; Robert Chartrand and Christine Chartrand, License; Shirley A. Wilcox, Jeffrey M. Wilcox, and Daniel Wilcox, License; Clarence Brooks and Winifred Brooks, License; Donald R. Cole, License; James Kenwabikise, Paul David Kenwabikise Estate, and Stephen Kenwabikise, License; Francis E. Martin and Jacqueline L. Martin, License; John Cross, Jr. and Jerry Ranville, Licenselaintiffs, Leonard Dutcher Fishery, Inc., License; Roger Wollangur and Raymond Halberg, License; Harold W. Sellman, License; Melvin R. Sellman, License; Wayne Wachter and Mary Wachter, License; Our Son's Fisheries, License; Frazier Fish Corporation, License; Baker Fishery, Inc., License; L & H Fishery, License; Ralph Cross, Jr. and Ralph Cross, Sr., Licenselaintiffs-Appellants, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES and David F. Hales, Director of the Michigan Department of Natural Resources, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Dale W. Rhoades (argued & briefed), Rhoades, McKee, Boer, Goodrich & Titta, Grand Rapids, Mich., Charles M. Brown, Brown & Brown, St. Ignace, Mich., for Clifford Bigelow, et al.
Charles M. Brown, Brown & Brown, St. Ignace, Mich., for Leonard Dutcher Fishery, Inc., et al.
Thomas J. Emery, Kevin T. Smith, Asst. Attys. Gen. (argued & briefed), Natural Resources Div., Lansing, Mich., for Michigan Dept. of Natural Resources, David F. Hales.
Before NELSON and BOGGS, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.
This case results from complications caused by the federal government's attempt to restore aboriginal fishing rights to Michigan Indians. A group of commercial fishermen challenged the State of Michigan's support of a plan, approved by a federal court, by which Indians were given exclusive rights to fish in certain Michigan waters. The district court granted the defendants' motions for summary judgment and dismissal, and the plaintiffs appeal to this court. We dismiss this case because no federal issues are ripe for review.
In 1973, the United States brought suit asking that Michigan be enjoined from interfering with the rights of Indians to fish in the Great Lakes, as confirmed by treaties between certain Indian tribes and the federal government. In an opinion dated May 7, 1979, the district court ruled in favor of the United States, announcing the following conclusion:
Because the right of the Plaintiff tribes to fish in ceded waters of the Great Lakes is protected by treaties of the Ottawa and Chippewa Indians with the United States, that right is preserved and protected under the supreme law of the land, does not depend on State law, is distinct from the rights and privileges held by non-Indians and may not be qualified by any action of the state or its agents nor regulated by the state or its agents except as authorized by Congress.
United States v. Michigan, 471 F.Supp. 192, 281 (W.D.Mich.1979). Michigan appealed to this court, which generally upheld the district court's decision, although it recognized Michigan's power to regulate Indian fishing under certain conditions. United States v. Michigan, 653 F.2d 277, 279 (6th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 971, 71 L.Ed.2d 110 (1981).
As a result of this decision, in the fall of 1983, three Indian tribes filed a motion in federal district court to allocate fishing resources between themselves and Michigan. Soon afterward, several other groups, including a large number of state-licensed commercial fishermen (the "Ruleau Petitioners"), sought to intervene as party defendants; the district court allowed these groups to participate as litigating amici curiae. The district court then appointed a special master to supervise pre-trial matters and attempt to facilitate a settlement. After lengthy negotiations, an Agreement for Entry of Consent Order was signed on March 28, 1985 by representatives and attorneys for the parties and all amici except for the Ruleau Petitioners. The Ruleau Petitioners chose not to participate in the negotiations; instead, they sought a compensation agreement with Michigan to pay displaced commercial licensees. Meanwhile, one of the tribes rejected the Agreement and renewed its motion for allocation. On May 31, 1985, after a trial in which the Ruleau Petitioners chose not to participate, the district court entered an order adopting the allocation plan outlined in the Agreement, to be in effect for fifteen years. This plan prohibited state-licensed commercial fishers from operating in large parts of treaty-ceded waters.
In January 1986, the Department of Natural Resources presented a "Summary of Compensation Proposal for Lake Michigan," which listed a proposed total compensation of $8,668,410 to seventeen licensees being displaced in northern Lake Michigan. Further negotiations between the licensees and the Department of Natural Resources eventually resulted in a "mutually acceptable package" in March 1986. Under this proposal, Michigan would buy a fourteen-year life certain annuity that would result in a total proposed adjustment of $14,459,552, thus settling disputes with licensees from Lake Michigan, Lake Superior, and Lake Huron. In accord with this proposal, Michigan made partial payments to displaced licensees in March 1986 and on January 10, 1987. However, each partial payment recipient acknowledged "that payment of these funds impose[s] no obligation for future payments by the State of Michigan." Michigan never paid the total compensation package to the licensees, evidently because of a line-item veto by the governor.
Soon after this veto, on September 4, 1987, plaintiffs holding twenty-six once-useful commercial fishing licenses brought suit against Michigan, through its agent, the Michigan Department of Natural Resources, and the Department's Director, David F. Hales, in federal district court. The plaintiffs alleged a taking without just compensation, in violation of the federal and state constitutions and 42 U.S.C. § 1983; violation of their rights of equal protection; breach of two contracts, by which they meant the two compensation proposals; and violation of the Elliott-Larsen Civil Rights Act, Mich. Comp. Laws Ann. §§ 37.2101 et seq. Settlements were ultimately reached with most of the plaintiffs, leaving only eleven licensees represented before the court.
The defendants moved for summary judgment pursuant to Fed.R.Civ.P. 56(c) on the claims of due process violation, equal protection violation, improper taking of property, and breach of contract. They also moved for dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) on the claims under § 1983 and the Elliott-Larsen Civil Rights Act. They also requested the court to grant fees and costs reasonably incurred in defending the action. The district court granted the defendant's motions under Rules 56(c) and 12(b)(6), but denied their motions for costs. Bigelow v. Michigan Dep't of Natural Resources, 727 F.Supp. 346 (W.D.Mich.1989). The eleven licensees appeal to this court, although they do not raise their § 1983 or Elliott-Larsen claims.
All of the plaintiffs once possessed useful commercial fishing licenses, pursuant to Michigan law. Such licenses may fix the amount of fish to be taken by species and kind, and may designate the areas in which the licensee will be allowed to fish. Mich.Comp.Laws Ann. § 308.1b(2). Thus, once an area was granted exclusively to the Indians, those fishermen licensed to fish in that area by the state could no longer do so. They kept their licenses, but their quota of fish was reduced to zero. The plaintiffs had possessed their licenses for some time, and the licenses had always been renewed automatically each year. According to Michigan law,
[a]ny licensee presently licensed at the time the section becomes effective [November 15, 1968] shall have the right to have his license renewed from year to year ... if such licensee continues to meet the qualifications set forth in this section and the qualifications specified in any rules promulgated under this section regardless of the determination of the number of licenses to be issued hereunder.
Mich.Comp.Laws Ann. § 308.1b(5) (emphasis added). Michigan has never alleged that the plaintiffs violated any aspects of the Michigan's Commercial Fishing Law. The plaintiffs contend, therefore, that Michigan took their property right in the fishing licenses.
However, before addressing the merits of any appeal, we must be convinced that the claim in question is ripe for review, even if neither party has raised this issue. "The jurisdiction of federal courts is limited by Article III of the United States Constitution to consideration of actual cases and controversies, therefore federal courts are not permitted to render advisory opinions." Adcock v. Firestone Tire and Rubber Co., 822 F.2d 623, 627 (6th Cir.1987). Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991) (citation omitted).
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