Bigelow v. Michigan Dept. of Natural Resources
| Decision Date | 13 December 1989 |
| Docket Number | No. M87-272 CA3.,M87-272 CA3. |
| Citation | 727 F. Supp. 346 |
| Parties | Clifford BIGELOW, License No. 401; Brown Fisheries, Inc., License No. 404; Casey Fisheries, Inc., License No. 405; Leonard Dutcher Fishery, Inc., License No. 408; Gerald L. Moore, Sr., License No. 412; Paul H. Brown, License No. 417; Cedarville Fish Company, License No. 420; Lamb Fishery, Inc., License No. 425; John Leclair, License No. 430; Roger Wollangur and Raymond Halberg, License No. 431; Robert Chartrand and Christine Chartrand, License No. 433; Harold W. Sellman, License No. 442; Melvin R. Sellman, License No. 443; Wayne Wachter and Mary Wachter, License No. 445; Shirley A. Wilcox, Jeffrey M. Wilcox, and Daniel J. Wilcox, License No. 447; Our Sons Fisheries, License No. 448; Frazier Fish Corporation, License No. 460; Baker Fishery, Inc., License No. 461; Clarence Brooks and Winifred Brooks, License No. 500; L & H Fishery, License No. 501; Donald R. Cole, License No. 503; Ralph Cross, Jr. and Ralph Cross, Sr., License No. 505; James Kenwabikise, Paul David Kenwabikise Estate, and Stephen Kenwabikise, License No. 516; Francis E. Martin and Jacqueline L. Martin, License No. 517; Ralph Cross, Jr. and Ralph Cross, Sr., License No. 518; John Cross, Jr. and Jerry Ranville, License No. 602, Plaintiffs, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES and David F. Hales, Director of the Michigan Department of Natural Resources, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Brown & Brown Law Offices by Charles M. Brown, St. Ignace, Mich., Rhoades, McKee, Boer, Goodrich & Titta by Dale W. Rhoades, Robert J. Dugan, Grand Rapids, Mich., for plaintiffs.
Frank J. Kelley, Atty. Gen. by Kevin T. Smith, Thomas J. Emery, Leo H. Friedman, Asst. Atty. Gen., Natural Resources & Military Affairs, Lansing, Mich., for defendants.
Defendants, the Michigan Department of Natural Resources ("DNR") and David F. Hales, the Director of the DNR, have filed both a motion for summary judgment and a motion for partial dismissal in this case.
The plaintiffs are a group of commercial fishers whose state-issued commercial fishing licenses have been drastically impaired by reductions in the commercial harvest occasioned by the entry of a consent order in United States v. State of Michigan, No. M26-73. That case involved the treaty rights of several Indian tribes to fish in the Great Lakes. The original District Court case in United States v. Michigan resulted in a ruling that held that the tribes had unique, exclusive and off reservation rights to fish commercially in the ceded waters free from any regulation by the State of any limitation as to the time, place or manner of their fishing activities. 471 F.Supp. 192 (D.C.Mich.1979). The State of Michigan appealed the Court's holding. The Sixth Circuit in United States v. Michigan, 653 F.2d 277 (6th Cir.1981) held that the Treaty of 1836 guaranteed fishing rights to the Indians, including aboriginal rights to engage in gill net fishing. However, the Court ruled that the Indians' rights were not absolute and that they could be subject to the least restrictive state regulation necessary for the conservation of the fish and the fisheries in the Great Lakes. Id. at 278.
In the fall of 1983 three Tribes filed a motion to allocate the resource between themselves and the State. Subsequent to the Tribes' filing, various parties moved to intervene as party defendants including a large group of individually named state-licensed commercial fishers ("Ruleau petitioners"), the Michigan United Conservation Clubs, the Grand Traverse Area Sport Fishermen's Association, and the Michigan Charter Boat Association. The Court reserved decision on these motions and allowed petitioners to participate in the proceedings as litigating amici curiae.
In the fall of 1984 the Court appointed Special Master Francis E. McGovern for the dual purposes of supervising pre-trial matters and attempting to facilitate a settlement among the parties and litigating amici. Trial on the allocation motion was set for April 22, 1985.
Following extensive negotiations, culminating in a several day marathon session in Sault Ste. Marie, an Agreement for Entry of Consent Order was signed on March 28, 1985, by representatives and attorneys for the parties and all litigating amici except the Ruleau Petitioners who opted not to participate in the negotiations.
Soon after the Agreement was signed, it was rejected by one of the Tribes in a referendum. The Tribe renewed its allocation motion. Trial was held over Memorial Day weekend in 1985. The Ruleau Petitioners chose not to participate in the trial. At the close of trial, May 31, 1985, the Court entered its Order adopting, in its entirety, the Allocation Plan emobided in the Agreement for Entry of Consent Order, such Allocation Plan to be in effect for a period of fifteen (15) years.
The Agreement closed large areas of treaty-ceded waters to state-licensed commercial fishers. Because the available state waters and fishery were unable to absorb the state licensees who could no longer fish in their traditional areas, many state licensees were essentially put out of business, pursuant to the Court's Order of May 31, 1985. The licensees were allowed to retain their licenses but pursuant to this Court's order, were not allowed to harvest any fish. Those licensees, eventually numbering 27, filed this action on September 4, 1987. Plaintiffs' First Amended Complaint ("the Complaint") alleges a taking without due process in violation of the United States and Michigan constitutions and 42 U.S.C. § 1983, violation of rights of equal protection, breach of two different contracts, and violation of the Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq.
Settlements have been reached with seventeen (17) of the plaintiffs, leaving ten (10) plaintiffs in this action.
Defendants, the Michigan Department of Natural Resources and David F. Hales, its Director, have moved for summary judgment pursuant to Fed.R.Civ.P. 56(c). They request that this Court grant summary judgment for defendants on plaintiffs' claims of: (a) due process violation; (b) equal protection violations; (c) taking of property without just compensation; and (d) breach of contract. The defendants have also filed a motion for partial dismissal pursuant to Fed.R.Civ.P. 12(b)(6) in which they request that this Court: (1) dismiss plaintiffs' claims under 42 U.S.C. § 1983; (2) dismiss plaintiffs' claims under the Elliott-Larsen Civil Rights Act and Count IV of the complaint; and (3) grant defendants' fees and costs reasonably incurred in defending this action. The Court is granting both defendants' motions in their entirety except for costs, which results in a complete dismissal of this action.
Each of the defendants' requests will be considered below.
Standard
In considering a motion for summary judgment, the narrow questions presented to this Court are whether there is "no genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law." F.R.Civ. Proc. 56(c). The Court cannot try issues of fact on a Rule 56 motion, but is empowered to determine only whether there are issues to be tried. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982).
The moving party has a right to summary judgment where that party is able to demonstrate, prior to trial, that the claims of the plaintiff have no factual basis. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As the Supreme Court held in Celotex, "... the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. Moreover, the Court must read the allegations of the complaint in the light most favorable to the non-moving party. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983). Where, as here, the moving party has supported its motion with documents, the non-moving party may not rest on the mere allegations or denials of the pleadings, but must set forth "specific facts showing that there is a genuine issue for trial." F.R.Civ.Proc. 56(e); Davis v. Robbs, 794 F.2d 1129, 1130 (6th Cir.1986).
The standard for granting a motion for summary judgment is essentially the same as that for granting a motion for a directed verdict. "The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party is not entitled to summary judgment where there is sufficient evidence to allow a reasonable jury to return a verdict for the non-moving party. Id. at 248, 106 S.Ct. at 2510. "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. at 2513. With this standard in mind, the Court will review the arguments presented by both parties.
Breach of Contract. The defendants' first argument is directed toward the plaintiffs' breach of contract claims. There is no dispute that the alleged contracts, if any, were formed in Michigan. Therefore, Michigan law applies to this federal action. Wells v. 10-x Manufacturing, 609 F.2d 248, 253 (6th Cir.1979). Under Michigan law, the essential elements of a contract are (a) proper parties competent to contract, (b) proper subject matter, (c) legal consideration. (d) mutuality of agreement, and (e) mutuality of obligation. Johnson v. Douglas, 281 Mich. 247, 274 N.W. 780 (1937).
Plaintiffs argue that all the essential...
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Bigelow v. Michigan Dept. of Natural Resources
...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 All of th......
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