Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Dept. of Natural Resources

• Decision Date: 10 June 1998
• Docket Number: No. 96-1168,96-1168
• Citation: 141 F.3d 635
• Parties: 28 Envtl. L. Rep. 21,171 GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, Plaintiff-Appellee, v. DIRECTOR, MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Defendant, Township of Leland; Village of Northport, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 635

141 F.3d 635

28 Envtl. L. Rep. 21,171

GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, Plaintiff-Appellee, v. DIRECTOR, MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Defendant Township of Leland; Village of Northport, Defendants-Appellants.

No. 96-1168.

United States Court of Appeals Sixth Circuit.

Argued July 28, 1997.

Decided April 15, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied June 10, 1998. ^*

William Rastetter (argued and briefed), Cedar, MI, John F. Petoskey (briefed), Grand Traverse Band Legal Department, Suttons Bay, MI, for Plaintiff-Appellee.

William M. Davison, Cunningham, Davison, Beeby, Rogers & Alward, Stephen O. Schultz (argued and briefed), Foster, Swift, Collins & Smith, Lansing, MI, James L. Wernstrom, Thomas J. McGraw, Law, Weathers & Richardson, Grand Rapids, MI, for Director, Michigan Department of Natural Resources and Township of Leland.

Stephen O. Schultz, Foster, Swift, Collins & Smith, Lansing, MI, James L. Wernstrom, Thomas J. McGraw, Law, Weathers & Richardson, Grand Rapids, MI, for Village of Northport.

Before: JONES, NELSON, and RYAN, Circuit Judges.

JONES, J., delivered the opinion of the court, in which NELSON, J., joined. RYAN, J. (pp. 642-643), delivered a separate dissenting opinion.

OPINION

NATHANIEL R. JONES, Circuit Judge.

Defendants, ¹ the Village of Northport and the Township of Leland ("municipalities"), appeal from a partial grant of summary judgment for the Plaintiffs, the Grand Traverse Band of Ottawas and Chippewas ("GTB"). GTB sued to enforce its treaty based claim to establish transient mooring access to the Leland and Northport Marinas as well as declarative relief pursuant to a 1985 consent order. For the reasons that follow, we affirm.

I. Background

GTB is the successor in interest to the Grand Traverse Band of Ottawas and Chippewas, who along with other Native American tribes, signed two treaties with the United States in 1836 and in 1855. In these treaties, the Ottawas and Chippewas reserved the right to continue commercial and subsistence fishing in the Great Lakes Region. The tribes, however, ceded their lands (most of what is now the State of Michigan) to the United States government. Specifically, the 1836 treaty reserved for the Ottawas and Chippewas the right to fish in their usual places, which included the waters off the Leelanau Peninsula. Treaty of Washington, 7 Stat, 491. The 1855 treaty preserved a reservation located adjacent to these traditional fishing grounds. Treaty of Detroit, 11 Stat. 621. The land and water areas upon which the Leland and Northport marinas now rest, historically, were used by the Ottawas and Chippewas to access fishing sites in Lake Michigan and Traverse Bay. ²

The Township of Leland is located on the west side of the Leelanau Peninsula on the Grand Traverse Bay. The Leland Marina lies on that side of the Peninsula. The Leland Marina has 58 mooring slips which can hold up to 120 vessels. The Village of Northport shore is located on the eastern shore of the Leelanau Peninsula where the Northport Marina is located. Northport Marina has 100 slips, including 5 dedicated to commercial use and can accommodate up to 116 vessels. Each marina is owned and operated by the corresponding municipality.

During the 1970s, the United States instituted litigation against the State of Michigan in order to protect Native American fishing rights. As a result of this litigation, the district court expressly found that the 1836 and 1855 treaties gave Native American treaty fishers, including GTB, the right to fish for subsistence and commercially in the Great Lakes Region. United States v. Michigan, 471 F.Supp. 192, 216 (W.D.Mich.1979), mod. in part, 653 F.2d 277 (6th Cir.1981). The district court further held that this right could not be burdened or abridged by the State of Michigan. Id. at 270. On appeal, this court affirmed that the treaties gave Native Americans the right to fish the Great Lakes, a right restricted only by state conservation efforts that utilized the least restrictive means available. United States v. Michigan, 653 F.2d 277, 279 (6th Cir.1981).

After remand, the parties involved in the litigation signed a consent order which was adopted by the district court on May 31, 1985, and was to be in effect for 15 years. ³ The district court had adopted this consent order, after a hearing, in which the court explicitly found that it would be "superior to [other plans] in protecting the Indian reserved treaty fishing right." 12 ILR 3079. The consent order granted Native American fishers the exclusive right to commercial fishing in certain areas of Lake Michigan, and restricted their use of other areas. It divided Lake Michigan into several hundred grids or zones, reserving the three main grids surrounding the Leelanau Peninsula (where the Leland and Northport Marinas are located) for the exclusive use of GTB. These grids lie in traditional fishing waters reserved in the 1836 treaty and are numbered 615, 714, and 715 respectively. GTB was also granted exclusive fishing rights in grids 616, 715, 716, 815 and 816.

Additionally, as part of the consent order, GTB agreed to forgo all gill net fishing from small boats in specified zones in order to preserve certain species of fish that had nearly been depleted by over fishing. Thus, GTB began using large boats that cannot be "trailered." ⁴ The consent order also expressly required the use of impoundment gear in some areas that must also be utilized with large nontrailerable vessels. Grids 615 and 714 are both located in the rough open waters of Lake Michigan that cannot be accessed safely with small boats.

George Duhamel, a GTB member, began docking his commercial fishing vessel at the Northport and Leland Marinas in 1993. Shortly after Duhamel began docking his vessel at the marinas, he was told that he could not moor his vessel at the marinas because of agreements between the municipalities and the State of Michigan that limit the commercial use of the marinas. ⁵ When Duhamel refused to remove his vessel from the Northport slip in July of 1993, he was arrested. In 1994, Duhamel was threatened with arrest when he attempted to moor his boat at the Leland Marina. On October 17, 1994, after negations between the parties failed, GTB filed suit against MDNR challenging the commercial use prohibitions at the Northport and Leland Marinas. On December 27, 1994, GTB filed an amended complaint adding the Township of Leland and the Village of Northport as Defendants. The parties then filed cross motions for summary judgment. The district court granted partial summary judgment to GTB, finding that the Defendants could not bar GTB's right to use the marinas for commercial fishing without violating the consent order and the 1836 and 1855 treaties. ⁶ This appeal followed.

II.

The municipalities raise two arguments on appeal. First the municipalities argue that the district court erred in granting summary judgment on GTB's treaty based claim of mooring access to their marinas. Second, the municipalities argue that the district court erred by granting summary judgment pursuant to the 1985 consent order in which the municipalities were not parties. We review a district court's grant of summary judgment de novo, Russo v. City of Cincinnati, 953 F.2d 1036, 1041-1042 (6th Cir.1992), and findings of fact for clear error. Eastern Kentucky Resources v. The Fiscal Court of Magoffin County, 127 F.3d 532, 539-40 (6th Cir.1997). We will discuss each issue in turn.

A. Treaty Rights

It is undisputed that the rights retained by GTB in the treaties of 1836 and 1855 included access to its traditional fishing grounds located within the areas of the Leland and Northport marinas. The parties to this dispute, however, question the scope of that right. The municipalities assert that GTB's right to fish does not include a right to occupy the marinas and at most GTB possesses an easement of access over the municipalities' marinas. This right, they argue, is limited to the right of ingress and egress only, and not to a limited use of improvements such as mooring slips. ⁷ We disagree.

On the outset, we note that it is well settled that Native American treaties must be liberally construed in favor of Native Americans. State of Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 676, 99 S.Ct. 3055, 3069-70, 61 L.Ed.2d 823 (1979); Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975); Choctaw Nation of Indians v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 678, 87 L.Ed. 877 (1943). The rights granted by the treaties at issue here clearly included the right to fish the waters of the Great Lakes region for both subsistence and commercial fishing. ⁸ The rights also included an easement of access over the land surrounding these traditional fishing grounds, even were the land to have been privately owned. See United States v. Winans, 198 U.S. 371, 381, 384, 25 S.Ct. 662, 665, 49 L.Ed. 1089 (1905) (noting that treaty rights "impose[ ] a servitude upon every piece of land as though described [in the treaty] ... and fixes in the land such easements as enables the right to be exercised."); see also Seufert Bros. Co. v. United States, 249 U.S. 194, 198-99, 39 S.Ct. 203, 205, 63 L.Ed. 555 (1919). This easement, implied by reservation or necessity, reserved the access necessary to allow the treaty fishers to fish from their traditional fishing areas. ⁹ See Winans, 198 U.S. at 384, 25 S.Ct. at 665; United States v. Michigan, 471 F.Supp. at 238. As noted, the marinas owned by the municipalities fall squarely within the location of this easement. In addition, the treaties did not in any way, limit the means by which fish were to be taken from the lakes or restrict the treaty fishers to using technology that was in existence at the time of the treaty. See United States v. Michigan, 471 F.Supp. at 260 ("The right [to fish] may be exercised...