LANSING, Mich. (Michigan News Source) – A federal court case in Michigan will decide what the future of Michigan’s fishing industry looks like for the next 24 years. The 1985 and then the 2000 Great Lakes Consent Decree, which is a settlement of fishing rights negotiated between the United States, the State of Michigan and five sovereign Michigan tribes that are signatory to the 1836 Treaty of Washington, expired in August of 2020 and it has been extended seven times during negotiations.

Fast forward to 2022. On Friday in Kalamazoo, U.S. District Judge Paul Maloney has a scheduled status conference and will be looking at the proposed new Consent Decree negotiated between the parties and some other related issues.

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Before those negotiations were started, David Caroffino, Tribal Coordination Unit Manager for the Fisheries Division of the Michigan DNR, said that the State had been looking at public input from a letter that was sent to 141 different sporting group representatives and individual anglers in 2014 requesting feedback on things that worked well with the 2000 Consent Decree and areas they would like to see changed. He said, “That feedback was used along with information from Fisheries and Law Enforcement staff.” In 2017, they notified everyone that once negotiations began, shared information would be limited and then in 2019 when negotiations officially began, public comment was limited to those who were part of the amicus curiae groups (not party to the legal case but it permitted to offer information and expertise to the court) that had signed confidentiality agreements.

According to the Michigan DNR, the Consent Decrees describe “how the State the tribes will cooperatively allocate and manage the fisheries resources in the 1836 Treaty-ceded waters of the Great Lakes.” Under the treaty, the DNR, the tribes and the United States co-manage fisheries resources. They coordinate research and assessment activities and regularly consult and exchange information with one another.

In simpler terms, it’s about where everyone can fish, what they can catch and how many fish they can keep.

The Michigan DNR explains that the 1836 treaty involved a territory purchase between the United States and Ottawa and Chippewa Indian Tribes of the northern Lower Peninsula and the eastern Upper Peninsula of Michigan. In the treaty, it provides that the Indians reserved the “right to hunt and the usual privileges of occupancy until the land is required for settlement.” These usufructuary rights (rights that allow the use of a property owned by someone else) were retained even though the land and waters were ceded to the United States. Federal courts, including the United States Supreme Court, have consistently held that the passage of time cannot erode the rights retained when these treaties were signed. Federal courts have ruled that under the Supremacy clause of the United States Constitution, that State laws must give way to Indian treaties.

The tribes involved in the most recent 2000 Consent Decree were the Sault Ste. Marie Tribe of Chippewa Indians, the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little Traverse Bay Bands of Odawa Indians, and the Little River Band of Ottawa Indians. The 1836 Treaty-ceded territory encompasses roughly 18,730 square miles of water in lakes Michigan, Huron, and Superior.

Under the current 2000 Consent Decree, resources are shared with the tribes being allocated the majority of the whitefish, the State harvesting the majority of the salmon and the Lake Trout are allocated equally. The Tribes and the State agreed to a plan of Lake Trout rehabilitation where the State bought the gear and trap net boats of Michigan commercial fishers and gave them to Tribal fishers to use. In that trade, the Tribes agreed to give up using non-selective large mesh gill nets that some say would have made Lake Trout rehabilitation impossible. Even with that impossibility, the “Stipulation for Entry of Proposed Decree” that was filed points to the parties assuming that the trout rehabilitation is and will remain a viable goal in 1836 Treaty waters and that the United States will “continue to rear lake trout at levels necessary to support lake trout rehabilitation.”

The new Decree is 66 pages and sets up rules, catch limits and zones for fishing. However, the main sticking point to many are the changes to gill netting policies.

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Large gill nets are vertical panels of netting that hang like a wall in the waters and haphazardly catch and kill a large amount of fish. It can also catch turtles and threatened species like the Lake Sturgeon which MSU researchers have been working hard to restore the population of.

Although the new Consent Decree places restrictions on where the gill nets are placed, the time of year they can be used and the depth of the water they are placed in, it allows the Tribes to use more nets and in more places.

Michigan News Source reached out to Amy Trotter, Executive Director of the Michigan United Conservation Clubs (MUCC), which is part of the Coalition to Protect Michigan Resources (CPMR). She said, “Our biggest concern is the expansion of gill nets in the Great Lakes. In the 2000 decree, it was a strategic point that we wanted to remove gill net effort from the Great Lakes. And at least allow for replacement which is trap nets which are more selective in how they catch fish and a lot less lethal. You bring them up, you can sort them, you can take out the incidental bycatch and return it to the water alive where as a gill net is almost completely indiscriminate. You’re going to catch everything that comes in and it’s likely to be dead or dying when you pull it up because it entraps the fish in an entanglement method instead.”

She continued, “Fishing groups and conservation groups don’t like gill nets and we have supported the 2000 Decree because the whole idea was that we were going to really do a gill net conversion into these trap nets to get those out of the water – and there was $14 million in public funding put towards that effort back in 2000. This new Consent Decree really reverses course on that and puts a lot of those gill nets back into the water.”

The MUCC disagrees with the Michigan DNR’s stance on gill netting and Nick Green, Director of Communications and Marketing for the MUCC, says expanded gill netting “will be a major detriment to the resources and is not biologically sound.” For the full statement about new proposed Consent Decree from the MUCC, please click here.

Opponents of the expanded gill netting argue that the 50-50 balance between the sport anglers and the tribes will change and lead to conflicts in the future.

Kevin Hughes, President of the Manistee County Sport Fishing Association (MCSFA) says, “Why would the state take a position on increasing large mesh gill nets throughout tribal waters? We have been fighting for years to get these indiscriminate killing devices out of the Lake. The allocation of funds to buy out commercial fishers and buy equipment and train tribal fishers on using trap nets was the cornerstone of the last agreement.”

He continued, “When did this philosophy change? And how is this scientifically based on preserving our fishery? Although I do not know the innermost workings of the process, I feel that the sportsmen have been sold out by the state…. no wonder the major players are being transferred or retiring. I hope they feel good about their legacy, I certainly would not.”

Judge Maloney will have two ongoing issues he will have to deal with. One is the Sault Ste. Marie Tribe of Chippewa Indians not signing on to the new Consent Decree. The other is a request from an organization to intervene in the negotiations.

The CPMR filed a brief to intervene in the ongoing negotiations of the Consent Decree – and the State of Michigan replied by filing a brief to oppose granting intervenor status. The CPMR’s request was denied in federal district court but they appealed and the case is still ongoing at the Sixth Circuit Court of Appeals.

The CPMR includes board of directors from MUCC, the Michigan Charter Boat Association, Michigan Steelhead and Salmon Fishermen’s Association and Hammond Bay Area Anglers Association and includes many other supporting groups in the state of Michigan. The CPMR said the impetus for their motion was clear and that “The State of Michigan has abandoned its duty to protect our member’s interest in sports fishing, motor boating and recreating. More problematic is the abandonment of sound biological principles that govern our Great Lakes fisheries in the treaty waters.”

The CPMR was granted amicus status in a 1979 court ruling. In their recent filing they say that while intervenors have been allowed to be present in the negotiation process “their participation through the State of Michigan has been significantly limited” and they have “not enjoyed the same facilitative and cooperative relationship with the State as Intervenors have had in past negotiations.”

Trotter says she expects that on Friday, the judge will at least announce how long they have to file objections to the proposed Decree as he has stated in open court in the past that he’ll allow all interested parties and amicus curiae groups to file their objections to any Decree before he takes action to enact it.

In addition to that issue, only four of the five tribes agreed to the new Consent Decree. The Sault Ste. Marie Tribe of Chippewa Indians, who was involved in the previous Consent Decree, isn’t involved in this one and has filed a motion with Judge Paul Maloney. They are seeking to regulate their own fishing.

In the “Stipulation for Entry of Proposed Decree,” it states that “the parties, with the involvement of amici curiae, have engaged in extensive mediated negotiations to draft a successor decree to address the changed nature of the fishery and shortcomings of the 2000 Consent Decree, and have worked to resolve their differences concerning management, allocation and regulation of fishing in the 1836 Treaty waters.”

When asked what the Michigan DNR hopes to accomplish with the new agreement, Caroffino said, “The State had three primary goals during negotiations, the first being to ensure that the resource would be protected. The second was to modernize our reporting systems and improve the quality of data that is shared amongst the governments and used for co-managing of the resource. Because invasive species have significantly changed the Great Lakes over the past 20 years and the Lake Whitefish populations have declined (the primary species targeted by the Tribes), the State knew that expanded opportunity was going to be a primary goal of the Tribes during negotiations. As a result, the State’s third goal was to minimize the impacts of expanded Tribal opportunity on recreational fishing.”

He continued, “These negotiations between sovereign governments were extremely challenging, and it has taken seven extensions of the 2000 Consent Decree to get to this point. Our view is that the proposed document represents a compromise that meets the goals of the State, provides benefits for all the parties, and we would like to see it guide management in the Great Lakes for the next 24 years.”

When asked about the gill netting, the effects it might have on the rest of the fishing industry and the reasoning behind allowing them, Caroffino said, “With few exceptions that are largely unchanged from the 2000 Consent Decree, salmon are not targeted with gill nets, nor are they often caught incidentally. The gill nets used by Tribal fishers are set on the bottom of the lake and most often catch Lake Trout (given the declines in Lake Whitefish referenced above). The Lake Trout are managed using harvest limits that cap the total number of Lake Trout that can be taken from a specific area each year. Based on the characteristics of each Lake Trout population, biologists calculate a safe harvest limit, and that limit is allocated a portion to the Tribal fishery and a portion to the State recreational fishery. Across Lake Michigan and Lake Huron, the harvest limits for the Tribal Lake Trout fishery will not be increasing. The State is confident that the harvest limits will effectively protect Lake Trout populations because of the improvements and modernizations that are being made to the harvest reporting mechanisms (State’s second goal of improving the quality of the data used for co-management) within the proposed decree.”

He went on to say, “The expanded opportunity to fish with gill nets does not mean a higher harvest limit for Lake Trout, it means that gill nets can be used in different areas to catch the same number of Lake Trout that the Tribes have been allocated in the 2000 Consent Decree. In almost all the cases where gill nets can be set in new areas, there are other limitations that will reduce competition with recreational fishing, including seasonal closures, restrictions on the depths where nets can be fished, the length of net that can be used, or the number of fishers that fish in a given area.”

Caroffino continued, “Other sportfish species that could not be harvested in the 2000 Consent Decree can still not be harvested in the new proposed Decree. Steelhead, Brown Trout, Atlantic Salmon, Splake, Brook Trout, Bass, Northern Pike, and Muskellunge cannot be sold. Tribal commercial fishers have no desire to discard dead fish and are able to set fishing gear in ways that minimizes or eliminates (depending on when/where they are fishing) catch of these species.”

Will decades of disagreements and differing interests between the parties finally be resolved soon or will they hit another snag?