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This information has been shared by the Coalition to Protect Michigan Resources regarding the recent court actions. This battle will continue in the courts and we encourage members to make a donation to help pay for the lawyers representing us.
www.gofundme.com/f/protect-great-lakes-s...a7iKVit65Y2-NLU5RsdM
An overview and outcome of the May 24 and 25 Kalamazoo Federal Court Hearing on the Proposed Six Party Great Lakes Fishing Consent Decree
2023
On May 24 and May 25 Judge Paul Maloney in the Kalamazoo Federal District Court heard the objections of the Coalition to
Protect Michigan Resources (Coalition) and the Sault Ste Marie Tribe to the Proposed Six Party Great Lakes Fishing
Consent Decree. The hearing began each day at 9 am and continued until 5 pm with a break for lunch.
On Tuesday May 23, 2023, the day before the hearing commenced, there was a very impactful development. On May 3,2023, the Coalition appeared before the United States Sixth District Court of Appeals in Cincinnati to appeal its previous
denial to become a full party in the Consent Decree negotiations. The Appeals Court denied the request but was
sympathetic and sent the message through its May 23 filing to all the Parties that the Coalition has valid concerns, and its
input needs to be considered. The following are four points that the Appeals Court made in its ruling it shared with the
Parties the day before the hearing:
1. Indeed, evidence suggests that the overuse of gill nets could “deplete the fish resources of the Great Lakes to the
extent that they would become non-existent.”
2. Of course, if the successor decree ultimately reflects that Michigan abandoned these interests, that would be good
reason for the district court to allow the Coalition to intervene—even at the eleventh hour.
3. In the future, we are confident that the district court will seriously consider any objections or evidence showing how
the proposed decree may endanger the Great Lakes fisheries.
4. If the successor decree is ultimately unlawful or otherwise suggests that Michigan failed to protect this public
resource, the proper remedy would be for the District Court to give the Coalition the right to appeal that decree.
The Kalamazoo hearing is of great importance because the Coalition to Protect Michigan Resources now has a seat in the
attorney section of the court and is allowed to provide input on the Consent Decree directly to Judge Maloney and the other
Parties. At the Coalition’s table were attorney Stephen Schultz, assistant attorney, David Szymanski, and fishery expert,
Jim Johnson, retired DNR Great Lakes biologist.
The hearing began with the United States providing an overview why it felt the Proposed Six Party Decree was an
improvement over the 2000 Decree. Judge Maloney then asked Stephen Schultz, from the Coalition to respond.
Steve eloquently described the history of the Treaty Rights case and his involvement of nearly 45 years. He explained how Judge Richard Enslen established the 1985 and ultimately the 2000 Consent Decrees. What was an interesting approach
in the final marathon hours of negotiations of the 1985 Decree was that Judge Enslen needed a person to compile the
points of all the Parties and be their spokesperson. The Judge chose Steve even though he was representing the amici
which were the precursor organizations of the Coalition.
Judge Enslen respected the input and support of the amici and he stressed that for the decree to be successful everyone needs to work together to ensure the treaty rights of the Tribes and protect the fishery resource so it can be shared with all users. He did not want to become a Fish Master constantly resolving disputes and put a Federal Marshall on every boat.
Before the 1985 Consent Decree could be adapted, another marathon hearing was needed to consider objections from the
Bay Mills Indian Community and again Steve was appointed by Judge Enslen to represent all the Parties. As a result, the
1985 Consent Decree established the solid principles of managing the shared Great Lakes fisheries in the 1836 Treaty
Waters which culminated in the successful 2000 Decree for over 22 years.
Steve continued by providing reasons why the Proposed Six Party Decree did not protect the fishery resource and could lead to social issues with heavy gill net use in recreational fishing ports that were free of gillnets under the 2000 Decree.
Steve and the Parties, including the State, debated the many aspects of the Proposed Six Party Decree late into the
morning of the first Day. The Sault Ste Marie Tribe had a totally different approach that will be discussed briefly below.
Judge Maloney took the points raised by the Coalition very seriously and indicated that the hearing will continue over the
next few weeks by having experts provide testimony on the use of gillnets, the extent of gillnet bycatch, the formulation of
Harvest Limits, and the construction of fishery models along with the use of mortality rates. This will allow the Coalition to
continue supplying input on these important issues.
As an overview, several critically important outcomes were established with the Coalition filing its Objections. The Coalition to Protect Michigan Resources now has a seat at the table in court and is providing input directly to the Judge and Parties. In addition, the Appeals Court in Cincinnati sent the message that the Coalition’s concerns are very important and need to be considered.
Much of the afternoon of the first day and most of the second day were devoted to the Sault Ste Marie Tribe’s 137
Objections to the Six Party Proposed Consent Decree. The Judge indicated that only 37 objections would be reviewed at
the hearing.
The session began by the Sault Tribe providing an overview. It was stressed that the fishery resource is not split
approximately 50/50 between the Tribes and State, but instead the entire fishery belongs to the tribes if needed to provide a
reasonable standard of living for its fishers. The Sault Tribe has over 33,000 members in Michigan and many of these
families are doing poorly financially compared to the average citizen so much more of the fishery resource is required.
Another item that was stressed repeatedly is that the Tribes are sovereign nations and should be managing the fishery
themselves and not have to collaborate with the states or other agencies on such items as fishery management, law
enforcement, information sharing, allocation, and other issues.
A draft proposal that the Sault Tribe provided in its filings
would greatly expand gill netting way beyond even the huge expansion in the Proposed Six Party Decree.
It was argued by one of the other Parties that the Sault Tribe was basing its authority to use the entire fishery resource on
old law that has been updated by the courts. During a day and a half of debating the Sault Tribe’s Objections, it appeared
that the other Parties made strong arguments against implementing the Sault Tribe’s Proposal.
Finally, Judge Maloney is left to decide if he will incorporate concerns of the Coalition to Protect Michigan Resources into
the final version of the Decree and how to navigate the issues and concerns expressed by the Sault Tribe.
Again, the critical high point of the Coalition’s extensive work to become a full party is that it now has a seat at the
table and is able to provide input directly to both Judge Maloney and the other Parties. In addition, the Appeals
Court in Cincinnati sent the message that the Coalition’s concerns are very important and need to be considered.Copyright © 2023 Great Lakes Salmon Initiative, All rights reserved.
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