United States v. State of Mich.

• Decision Date: 09 May 1980
• Docket Number: No. M26-73 C.A.,M26-73 C.A.
• Citation: 505 F. Supp. 467
• Parties: UNITED STATES of America et al., Plaintiffs, v. STATE OF MICHIGAN et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

505 F. Supp. 467

UNITED STATES of America et al., Plaintiffs, v. STATE OF MICHIGAN et al., Defendants.

No. M26-73 C.A.

United States District Court, W. D. Michigan, N. D.

May 9, 1980.

COPYRIGHT MATERIAL OMITTED

James S. Brady, U. S. Atty., J. Terrance Dillon, Asst. U. S. Atty., Dept. of Justice, Grand Rapids, Mich., Elmer T. Nitzschke, Dept. of Interior, St. Paul, Minn., Bruce R. Greene, Native American Rights Fund, Boulder, Colo., William J. James, Legal Services, and Daniel T. Green, Sault Ste. Marie Tribe Bay Mills Indian Community, Sault Ste. Marie, Mich., for plaintiffs.

Stewart H. Freeman and Gregory T. Taylor, Asst. Attys. Gen., Lansing, Mich., for defendants.

OPINION

FOX, Senior District Judge.

On October 12, 1979, the State of Michigan filed a motion before this court for a partial stay of judgment pending the outcome of its appeal to the United States Court of Appeals for the Sixth Circuit. The motion was addressed to that portion of this court's May 7, 1979 declaration D.C., 471 F.Supp. 192, which held that the State lacked authority to regulate fishing by treaty tribe members in waters of the Great Lakes ceded under the Treaty of March 28, 1836 (7 Stat. 491). Included in the State's application was a proposal which indicated the concept of Indian regulation which it would impose if its stay were granted by this court.

The State argues in its motion that subsequent to this court's May 7, 1979 opinion, Indian fishing had increased tremendously causing irreparable harm to ". . . Lake Trout, Whitefish and other targeted species in the Michigan Waters of the Great Lakes."

The State also contends that "unlimited use of gill nets will ultimately lead to the collapse of the fisheries resource," that the conservation codes of the tribes' and the Secretary's regulations ". . . are nothing more than licenses allowing unlimited slaughter of Lake Trout, Whitefish, Coho Salmon, and other species," and that the Indian fishery is irreparably harming the recreational fishery.

The relief prayed for by the State is to allow it to regulate treaty fishers, pending the outcome of the appeal, consistent with an "Indian Fisheries Assistance and Development Proposal" set forth as an attachment to its brief.

The State has not based its motion on a challenge to this court's holding that the Michigan Indians retain the aboriginal right to fish in the ceded waters of the Great Lakes. This right is fully protected by the Constitution of the United States as the Supreme Law of the land. In evaluating the State's motion, this court is again obliged to implement the Constitution, on penalty of violating its oath:

No one can deny that the constitution of the United States is the supreme law of the land; and consequently, no act of any state legislature, or of congress, which is repugnant to it, can be of any validity. Now, if an act of a state legislature be repugnant to the constitution of the state, the state court will declare it void; and if such act be repugnant to the constitution of the Union, or a law made under that constitution, which is declared to be the supreme law of the land, is it not equally void? And under such circumstances, if this court should shrink from a discharge of their duty, in giving effect to the supreme law of the land, would they not violate their oath, prove traitors to the constitution and forfeit all just claim to public confidence? Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 571-2, 8 L.Ed. 483 (1832) (McLean, J., concurring). (Emphasis supplied.)

STANDARDS FOR A STAY PENDING APPEAL

To obtain a stay of a district court injunction pending an appeal, certain familiar tests must be met. The standard is set forth in Virginia Petroleum Jobbers Ass'n. v. F.P.C., 259 F.2d 921 (D.C.Cir.1968), and may be paraphrased as follows:

(1) Has the petitioner made a strong showing that it is likely to prevail in the merits of the appeal?

(2) Has the petitioner shown that without such relief, it will be irreparably injured?

(3) Would the issuance of a stay substantially harm other parties interested in the proceedings?

(4) Where lies the public interest?

Before addressing these matters, a general word about the typical situation in which a stay is granted is in order. The classic situation wherein a stay is granted pending appeal is when the moving party below has been successful and the requested relief will require the implementation of plans and expenditure of funds which cause major dislocation and change to the defendants.¹ For example, in the Reserve mining case (Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974)), the plaintiff obtained an order requiring a major employer to cease polluting the air and water at the west end of Lake Superior. Because the district court's order could have resulted in a shut-down of Reserve's taconite mining operations, the resultant loss of hundreds of jobs by that area's largest employer, it was appropriate to stay that order and maintain the status quo pending appeal.

Similarly, the Court of Appeals for the Sixth Circuit has stayed the effect of a district court injunction requiring the integration of a large city school system for the same kind of reasons. Such an order forcing integration causes staggering dislocations in a school system and requires the expenditure of massive sums of money for busing and the like, and pending an appeal on the merits, the Appeals Court has, from time to time, issued stay orders. Northcross v. Board of Education of Memphis City Schools, 463 F.2d 329 (6th Cir. 1972). But compare Northcross, supra, with Reed v. Rhodes, 549 F. 1050 (6th Cir. 1976), where the entry of a stay by a single judge was vacated by a three-judge panel, in a school desegregation case.

Here, unlike the typical situation in which a stay might be appropriate, the State urges this court change radically the status quo of no State regulation to that of State regulation. In March 1977, the State filed a motion before this court to compel the United States to issue identification cards to treaty-right fishermen under 25 C.F.R. Part 256. The State argued that there were many fishermen claiming to be Indian who in fact were not and, therefore, should be fishing subject to State rules and regulations. The United States responded in a brief which took the position that it could not be compelled legally to issue those identification cards, but nonetheless was willing to do so to assist the State in dealing with the fisherman identity problem. (See Transcript of Hearing held April 7, 1977.) Subsequent to that hearing, the United States issued so-called "256 cards" to treaty-right fishermen which were signed by the particular tribal chairman and a representative of the Bureau of Indian Affairs. Thereafter, the State voluntarily agreed not to impose its fishing rules and regulations on any card-carrying tribal member.²

As recently as October 25, 1979, counsel for the State of Michigan stated to this court:

By Mr. Gregory T. Taylor And, the United States has endorsed and the State of Michigan has accepted during the pendency of this case the 256 card method, and that is the method that was also employed by Congress.

* * * * * *

. . . and I represent to the Court on the record if and when the members of this organization referring to the Grand Traverse Band of Ottawa and Chippewa Indians are recognized and receive 256 cards they will not be arrested. Until that time, they are subject to arrest under state law.

Transcript of Hearing on Motion for Temporary Restraining Order, United States v. Michigan, Civ. No. M26-73, pp. 20 and 24, October 25, 1979.

It is clear then that at least since the Spring of 1977, the status quo has been no state regulation of treaty-right fishermen who are properly identified and who fish in compliance with applicable tribal fishing regulations. By seeking a partial stay before this court, the State is asking that the status quo be turned one hundred eighty degrees to allow them to regulate treaty fishers pending the outcome of the appeal, something they have not done for over three years. The purpose of a stay is to preserve, not change, the status quo pending the outcome of an appeal.

LIKELIHOOD OF SUCCESS ON APPEAL

The State indicated its likelihood of success on appeal is predicated upon the "Puyallup line of cases and Washington v. Fishing Vessel Ass'n 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979)."

This court considered the Puyallup line of cases in its Judgment of May 7, 1979 and will not reanalyze it here. Suffice it to say that this court declared that the restricted state regulation of Indiana treaty fishers permitted in that line of cases can only be understood in terms of the language of the underlying treaties limiting the Indians' reserved right to fish to a right "in common with all citizens of the territory," a limitation explicitly imposed after negotiations. Justice Douglas focused upon this language in initially declaring Washington's right to regulate its Indians:

Moreover, the right to fish at those respective usual and accustomed places is not an exclusive one. Rather it is one "in common with all citizens of the territory." Certainly the right of the latter may be regulated. And we see no reason why the right of the Indians may not also be regulated by an appropriate exercise of the police power of the State. Puyallup Tribe v. Department of Game, 391 U.S. 392 at 398, 88 S.Ct. 1725 at 1728, 20 L.Ed.2d 689.

Where the Indians' right to fish is held in common with all other citizens of the territory by virtue of specific treaty language, Justice Douglas saw that there is no reason to prevent the State from regulating the Indians in common with its other citizens, even if only by distinct, appropriate regulations. In contrast, the Indians of Michigan presently hold an unabridged, aboriginal, tribal right to fish derived from thousands of years of occupancy and use of the fishery of the waters of...