Chippewa & Ottawa Indians v. Director Mich. D.N.R.
| Decision Date | 19 December 1995 |
| Docket Number | No. 1:94:CV:707.,1:94:CV:707. |
| Citation | 971 F.Supp. 282 |
| Parties | GRAND TRAVERSE BAND OF CHIPPEWA and OTTAWA INDIANS, Plaintiff, v. DIRECTOR, MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Township of Leland; and Village of Northport, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Todd B. Adams, Asst. Atty. General, Frank J. Kelley, Attorney General, Natural Resources Division, Lansing, MI, Cheryl B. Lord, Asst. Atty. General, Appellate Division, Lansing, MI, for Director MI. Dep. Nat. Res.
Stephen O. Schultz, Foster, Swift, Collins & Smith, Lansing, MI, James L. Wernstom, Law, Weathers & Richardson, Grand Rapids, MI, Thomas Joseph McGraw, Cox, Hodgman & Giarmarco, Tray, MI, for Township of Leland, Village of Northport.
PARTIAL JUDGMENT
In accordance with the opinion entered on this date,
IT IS HEREBY ORDERED that the motion for summary judgment (dkt.# 36) filed by plaintiff Grand Traverse Band of Ottawa and Chippewa (GTB) is GRANTED in part and DENIED in part.
The motion is granted as to plaintiff GTB's treaty-based claim to establish mooring access at the Leland and Northport marinas as herein described, and as to the claim for a declaration that Leland and Northport may not bar the tribal fishers from the access to the Leland and Northport facilities herein described without facing injunctive and any other necessary action for violating this Court's 1985 Consent Order in United States v. Michigan, 2:73-CV-26.
The motion is denied as to plaintiff GTB's equal protection claims against Northport and the Director, Michigan Department of Natural Resources.
IT IS FURTHER ORDERED that the GTB fishers have the right to transient use of the Leland and Northport marina facilities, including mooring slips, in order to access traditional fishing areas in grids 714 and 615, fish with impoundment gear and fish for chubs, unload nets, off-load fish, and seek shelter during emergencies.
IT IS FURTHER ORDERED that the motion for summary judgment (dkt.# 38) filed by defendants Northport and Leland is GRANTED in part and DENIED in part.
The motion is granted on plaintiff's equal protection claim against Northport.
The motion is denied in all other respects
IT IS FURTHER ORDERED that defendant Northport is entitled to JUDGMENT on plaintiff GTB's equal protection claim.
IT IS FURTHER ORDERED that defendant Director, Michigan Department of Natural Resources is entitled to JUDGMENT on plaintiff GTB's equal protection claim.
IT IS FURTHER ORDERED that plaintiff GTB may file a motion on its due process claim no later than seven (7) days from receipt of this Opinion and Order. The defendants may file a response no later than seven (7) days from receipt of any such motion. The plaintiff GTB may file a reply no later than four (4) days from receipt of any response.
OPINIONIn this action, plaintiff, the Grand Traverse Band of Ottawa and Chippewa Indians ("GTB"), claims that the defendants, Director of the Michigan Department of Natural Resources ("MDNR"), Village of Northport ("Northport"), and Leland Township ("Leland"), have violated the GTB's treaty-reserved fishing rights and federal constitutional rights to due process and the equal protection of the laws, as well as contravened prior orders of this Court by preventing members of the GTB from mooring their commercial fishing vessels at the Northport and Leland public marinas.
Presently before the Court are cross motions for summary judgment filed by plaintiff GTB and defendants Leland and Northport.
For centuries, Ottawas and Chippewas have fished the waters of the Great Lakes for subsistence and trade. Following the settling in the Great Lakes Area of non-Native-Americans, the Grand Traverse Ottawas and Chippewas (historical predecessors to the GTB) signed treaties with the United States in 1836 and 1855, reserving for themselves, among other rights, the right to continue commercial and subsistence fishing.
In the 1836 Treaty, the Grand Traverse Ottawas and Chippewas reserved the right to fish in their usual places, which included the waters off of Leelenau Peninsula. In the 1855 Treaty, these tribal signatories preserved reservations on the shores of Lake Michigan and Grand Traverse Bay along the grounds that they had traditionally used for lake fishing. The Northport and Leland marinas that are the subject of this litigation today are located within the boundaries of these 1855 reservations. In fact, the Leland and Northport areas historically were used by the Ottawas and Chippewas to access fishing sites in Lake Michigan and Traverse Bay. Indeed, despite their loss of title to the land, GTB members still live adjacent to these traditional fishing grounds.
In 1979, this Court confirmed the right of the successors to the Grand Traverse Ottawas and Chippewas to commercial fishing as secured in the treaties of 1836 and 1855. See United States v. Michigan, 471 F.Supp. 192 (W.D.Mich.1979), mod. in part, 653 F.2d 277 (6th Cir.1981), cert. denied, 454 U.S. 1124, 102 S.Ct. 971, 71 L.Ed.2d 110 (1981). On appeal, the Sixth Circuit ruled that the Native Americans' treaty-reserved rights were not unbounded; rather, the rights could be subject to the least restrictive state regulation necessary for the conservation of the Great Lakes fishery resources. United States v. State of Michigan, 653 F.2d at 279 (citing People v. LeBlanc, 399 Mich. 31, 248 N.W.2d 199 (1976)).
In the fall of 1983, the GTB and two other tribes filed a motion to allocate the fishery resources between themselves and the State, consistent with their treaty rights and necessary conservation measures. One year later, the Court appointed a special master to supervise pre-trial matters and facilitate a settlement. On March 28, 1985, an Agreement for Entry of Consent Order was signed by representatives and attorneys for the parties and several amici curiae. Shortly thereafter, however, the Agreement was rejected by one of the Tribes in a referendum. The Court held a brief trial on the allocation motion; and on May 31, 1985, the Court adopted the Allocation Plan embodied in the Agreement for Entry of Consent Order, with the plan to be in effect for 15 years.
Among other matters, the 1985 consent order divides Lake Michigan into several hundred grids, or zones, in order to allocate and track the fishery resources. The consent order reserves the three main grids surrounding Leelenau Peninsula in Lake Michigan for the exclusive commercial use of the GTB. These grids, numbered 615, 714 and 715, lie in the traditional tribal fishing waters reserved in the Treaty of 1836. Grid 715 is located in Grand Traverse Bay and encompasses relatively calm waters due to the protection of the land masses. Grids 615 and 714 encompass relatively open waters in Lake Michigan. George Duhamel, a GTB fisher, and John Robertson, a fisheries biologist and Chief of the Fisheries Division of the MDNR, both testify that fish stocks in these open waters are safely pursued only from large, non-trailerable fishing vessels.
The consent order also provides that the GTB could fish in grids located further from Leelenau Penninsula "both for chubs, utilizing small mesh gill nets deeper than 40 fathoms, and other species, utilizing impoundment gear. ...." James Mitchell, a GTB fisher, Thomas Gorenflo, a fisheries biologist and Director of the Intertribal Fisheries and Assessment Program (ITFAP), and John Robertson of the MDNR all testify that access to these chub and whitefish fisheries requires the use of large vessels that cannot be trailered. Impoundment fishing requires trap-net boats larger than 40 feet in length; deep-water chub fishing is accomplished with large gill-net tugs.
The Northport and Leland marinas lie on opposite sides of the Leelenau Peninsula. The Northport Marina lies on the eastern shore of the peninsula and is the closest docking facility to grid 615. Leland Marina is the only facility in grid 714 along the western shore. No other marinas, public or private, exist from Northport all the way around the Leelenau Peninsula to Leland. A ten-slip tribal marina on tribal lands on the eastern shore has not yet been completed. The distance by water from existing moorage sites at Suttons Bay, Peshawbestown or Omena to commercial fishing sites in grid 714 is 20 to 30 miles. Depending upon weather conditions, a round trip could minimally take over six hours to complete. Grids located further into the Lake off of the Leelenau Peninsula are virtually inaccessible.
Beginning in mid 1993, George Duhamel began to occasionally moor his commercial fishing vessel at the public marinas in Northport and Leland. However, Northport and Leland have contracts with the State of Michigan limiting the commercial use of their marinas. The township of Leland obtained financial assistance from the State of Michigan and the federal government for constructing the marina contingent upon an agreement with the MDNR signed in May, 1967, to the effect that the marina was to be used primarily by recreational watercraft. The agreement provides that no commercial vessel may be permitted to "regularly" use the facilities without prior written approval from the municipality and a division of the MDNR. The facilities include 58 slips available for mooring of transient craft allowed to stay for as long as two weeks. Including slips and rafting, the marina can accommodate 120 vessels.
The Village of Northport entered into a similar agreement with the MDNR in 1988. However, not only does the Northport agreement prohibit "regular" commercial use absent prior written approval, it also provides that "commercial fishing vessels licensed as such shall not, under any circumstances, be permitted to use the facilities constructed hereunder for the mooring of recreational watercraft." The record before the Court reflects that the...
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Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Dept. of Natural Resources
...impoundment gear and, fish for chubs, unload nets, off-load fish and seek shelter during emergencies." GTB v. Michigan Dep't of Natural Resources, 971 F.Supp. 282, 291 (W.D.Mich.1995). Undeniably, it is not safe to fish in the open waters of grids 714 and 615 in small trailerable boats as t......