Treaty Negotiations Update


UPDATE #3: Negotiations with Michigan’s Tribes- Issues facing Recreational fishers- Entry and Effort.
This is the third in the series of updates that we will be posting to let those interested in the sport and commercial fisheries of the Great Lakes know what challenges the Parties face in the negotiation of a new agreement between the State, the Federal government and the five Michigan Tribes holding a Treaty right to fish in the Michigan portion of the upper Great Lakes. The first update gave you some background on the negotiations. The second update discussed the issues facing recreational fishers in the sharing of the Great Lakes fisheries with the Tribes.

This update discusses a critical issue facing both the Tribes and the recreational fishery. That issue is: in the face of a reduced number of fish available to be caught, what does it mean for the Tribal and recreational fisheries? First some background; It was over 20 years ago that we negotiated an agreement between the State, the Tribes, and the Federal government to divide up the fishing opportunities between the State and the Tribes. That agreement generally allocated commercial whitefish harvest to the Five Tribes. The catch of salmon was generally allocated to the State recreational fishery and the goal was to share the lake trout catch approximately equally between the Tribal and State fisheries.

In the early years of the agreement, the Tribal fishery was highly successful. For example, according to data supplied by the Tribes, the Tribes caught almost 4,000,000 pounds of whitefish in 2008 in Lake Superior and the northern waters of Lakes Michigan and Huron. In addition, the Tribes caught over 600,000 pounds of lake trout. At the same time, State data reported that the recreational fishery in these waters caught about 2,000,000 pounds of salmon and 175,000 pounds of lake trout.

By 2019, however, the Tribal catch of whitefish had declined to about 1,200,000 pounds and the State catch of salmon (Chinook and Coho) had declined to about 700,000 pounds. Changes in the Lakes had led to a decline in the fisheries of both the State and the Tribes. Principal among the changes was the impact of quagga and zebra mussels on the food web. This led to a significant reduction in the recruitment of whitefish and salmon to the fishery and a collapse of alewives in Lake Huron, which caused starvation among that lake’s salmon.

In the face of a declining fishery, the parties to the negotiations are facing significant challenges. In the near term, the reduced availability of whitefish, salmon, and in some areas, lake trout, means that both the State and the Tribes face difficult choices. Since the Great Lakes fishery is a finite, equally shared resource, and the State’s available fish have also declined significantly, there are no other fish or species available to make up for the significant decline in whitefish. The Tribal fishery cannot expect to survive at the expense of the State’s share of the fishery. For the Tribes, the declining stocks of whitefish means that a decision must be made: if a particular annual catch is necessary for a commercial fishing operation to survive, and the availability of whitefish is one-third of what it once was, the commercial fishery cannot fish the same amount and kind of gear and expect to survive. Either the commercial fishery must reduce its costs to operate significantly, or find other fish to catch and sell, or the regulatory authorities have to reduce the number of commercial fishers so that those who are allowed to continue can survive economically. In other words, limited entry and effort by commercial fishers must be balanced to deal with the corresponding reduction in the fishery resource.

A similar situation exists with the recreational fishery. Before the food web changed, salmon was the prime species sought by anglers at most ports throughout the Treaty Waters. The current recreational fishery has required many adjustments including fishing for less sought after species, especially lake trout which is the most dependable fish. To protect the resource, daily bag limits, slots limits and length of season changes have been implemented. With the current status of the resource, lake trout are very important to the Tribes and recreational fishery.

Faced with this conundrum, there is another challenge facing the parties as they try to sort out this problem, allow both the Tribal commercial and State recreational fisheries to survive, and reach a new agreement. In 2000, the Tribes and State agreed to reduce the amount of gill nets fished in the Great Lakes. The State purchased and gave to the Tribes several commercial trap net operations at a cost of $17 million. Trap nets catch fish alive, provide a better quality of marketable fish and allow sport fish such as lake trout to be returned to the water alive. This conversion of commercial gill net fishing to trap net fishing took an estimated 14 million feet of gill net out of the northern Great Lakes annually and helped greatly in the recovery of lake trout.

There are challenges for the Tribes if the plan is to reduce the costs to operate a commercial fishing business by allowing for the return and expansion of less expensive gill net fishing. There will likely be a loss of trap net operations, and an increase in non-targeted catch and kill of lake trout in gill nets resulting in a negative impact on lake trout rehabilitation. Ultimately, a less successful Tribal fishery may have to shut down earlier in the season each year to protect lake trout rehabilitation. This could also require a reduced bag limit for the State recreational fishery. On-board monitoring of lake trout killed in gillnets could also be required, which could be costly. In addition, if unlimited entry of new gill net fishers is allowed, it will simply reduce the profitability of the existing Tribal fishers. Finally, we can expect gear conflict to increase as gill nets can be regularly and easily moved when compared to trap nets.

The State faces similar challenges in a reduced recreational fishery. It has long used limited entry and effort to manage its catch. Whether it’s the number of rods, the daily bag limit, the length of season or the size limit for a species, the State has long dealt with a declining fish population by adjusting the size and effort of the recreational fishery to preserve the resource.

The parties have a difficult task and many challenges ahead of them in these negotiations. The fishery is significantly different and significantly smaller than it was 20 years ago. There are not more or different fish available to make up for the changes in the whitefish and salmon

fisheries. Rather, commercial and recreational fishing must be managed by balancing effort and entry with the availability of fish to catch if these fisheries are to survive.

Submitted by the Coalition to Protect Michigan Resources


02-01-2021 UPDATE #2: Negotiations with Michigan’s Tribes- Issues facing Sport fishers-Allocation

This is the second in the series of updates that we will be posting to let those interested in the sport and commercial fisheries of the Great Lakes know what is happening in the negotiation of a new agreement between the State, the Federal government and the five Michigan tribes holding a Treaty right to fish in the Michigan portion of the Great Lakes. The first update gave you some background on the negotiations. This update addresses the issues facing sport fishers in the sharing of the Great Lakes fisheries with the Tribes.

Since 1985, the arrangement between the Tribes, the State of Michigan and the Federal government to share the fisheries of the Great Lakes has been contained in two agreements that were negotiated by the parties and then put in place by the Federal Court in west Michigan as a “Consent Decree.” The first Decree was implemented in 1985. It had a 15-year term.  In 2000, a second Decree was put in place by the Court.  It had a 20-year term. It expired last year but has been extended by the Court while the parties negotiate a new agreement.

A critical issue to the past two agreements, and one that will be critical to a new agreement, is the division of the Great Lakes fishery between the Tribes and those fishers who are licensed by the State. The 1985 agreement allocated the Great Lakes fishery among the parties by lake, zones, species, and catch limits. It was premised on a roughly 50-50 allocation of the fishery between the State and the Tribes. The Tribes were principally allocated whitefish stocks and the State was principally allocated salmon stocks.  Lake trout stocks were shared with the allocation to each party differing based on the area of the Great Lakes at issue. Generally, the Tribes were allocated more lake trout in areas where they were pursuing whitefish and State licensed fishers were allocated more in traditional sportfishing areas. Overall, however, the fishery resources were generally shared equally. Further, the zones created for State and Tribally licensed fishers reduced gear conflict between commercial nets, particularly gill nets and traditional sportfishing gear.

The agreement reached in 2000 took a slightly different approach while maintaining the roughly equal division of the fishery between the State and the Tribes. The agreement created Commercial Fishing Zones where Tribal or State-licensed commercial fishing was permitted. Within those zones certain areas had gear limitations, such as trap net only areas, closed areas, such as near harbor mouths or near refuges reserved for lake trout rehabilitation, and reserved areas designated for a particular Tribe, such as zone reserved for the Grand Traverse Band in the Grand Traverse Bay area and one reserved for small boat fishers of the Bay Mills Indian Community in the Hammond Bay area of Lake Huron.

Critical to this shared resource was the allocation of lake trout between the State and the Tribes. The lake trout available for catch by commercial or sport fishers in each lake trout management unit within the tribal waters of Lakes Michigan, Huron and Superior was divided and allocated. The table below, with a very general indication of where each management unit is located, shows the various allocations:

 

MANAGEMENT UNIT TRIBAL SHARE STATE SHARE
MH-1 (Lk. Huron north of Rogers City) 88% 12%
MH-2 (South of Rogers City to Alpena area) 5% 95%
MM-1/2/3 (Northern Lake Michigan from Escanaba to Charlevoix) 90% 10%
MM-4 (Grand Traverse Bay) 55% 45%
MM-5 (Leland south to Arcadia) 40% 60%
MM-6/7 (Arcadia south to Grand Haven) 10% 90%
MI-5 (Lk. Superior from Marquette east 20 miles) 5% 95%
MI-6 (Munising Bay area east to Au Sable Point) 50% 50%
MI-7 (Au Sable Point east to Little Lake) 70% 30%

These allocations generally reserved more lake trout for sport fishing in those areas where Great Lakes sport fishing is more prevalent. In terms of the available lake trout stocks, these allocations shared the resource fairly equally.

Since 2000, the Great Lakes fishery has changed.  Whitefish generally reserved to the Tribes and salmon reserved to the State are not as prevalent now. For whitefish, the harvest by both State and Tribal fishers in Lake Michigan is half what it was several years ago. For salmon, both State and Tribal harvests of chinook salmon are one quarter of what they were at its peak just a few years ago. Lake trout have experienced some natural reproduction in recent years but are under duress in some parts of the lakes. Preserving lake trout spawning stocks will be critical to the future of that fishery. Taken as a whole, the fisheries of the Treaty areas of the Great Lakes are producing far less than a few years ago. These changes present huge difficulties in negotiating a new agreement as there are simply not the stocks that were available a few years ago. Nevertheless, this is a shared resource that requires allocation on a roughly 50-50 basis.

01-15-2021 UPDATE 1: Current Negotiations with Michigan’s Tribes- Some Background

This is the first in a series of updates that we will be posting to let those interested in the sport and commercial fisheries of the Great Lakes know what is happening in the negotiation of a new agreement between the State, the Federal government, and the five Michigan tribes holding a Treaty right to fish in the Michigan portion of the Great Lakes. This update is presented by the Coalition to Protect Michigan Resources, an association of sportfishing and natural resource organizations that are participating in the negotiations.

Many are aware of the effects of the Treaty of 1836 and the right to fish the Great Lakes that it grants to five Michigan Tribes. For the uninitiated, though, this first update will give you a very brief background on how we got to where we are today. This background will be brief because the issues we currently face have been around for more than 50 years and books have been written that tell the history of the current issues.

Today, several facts are established regarding Tribal fishing in the Great Lakes: First, for almost 40 years, the law has been established that treaties negotiated between Michigan’s tribes and the Federal government reserved to five Michigan Tribes, the right to fish commercially with whatever gear they wished in the waters of the Great Lakes from Grand Haven north in Like Michigan, from roughly Alpena north in Lake Huron and from roughly Munising east in Lake Superior.

Second, the Tribes’ right to fish is not unlimited. At a minimum, conservation needs limit tribal fishing activity. In addition, since 1985, there have been two agreements between the State, the Federal government, and the five Tribes that set forth limits on all users of the Lakes, including limitations on the amount of catch, and the kinds of fishing gear and the areas where particular gear can be used. These agreements also provide for communication between the parties on a regular basis, coordination of law enforcement, and the exchange of information. The first agreement was negotiated and became effective in 1985. It had a 15-year term. The second became effective in 2000 and had a 20-year term. The second agreement has been extended by the Federal Court to June 30, 2021, while the parties try to negotiate a new agreement.

Third, no one can deny that the fishery resources in the Great Lakes have been changing in the past few years. These changes have many possible causes, but the fact is that the Lakes’ fishery stocks are not what they were 10 years ago.

Against this background, the parties have been in negotiations toward a new agreement to share the Lakes’ fishery since last September. Due to the Covid pandemic, however, those negotiations have been conducted via Zoom and phone conversations. This has greatly affected the effectiveness of what negotiations we have had. You should also be aware that all parties, including the Coalition, have agreed to not to “disclose any proposal, response to a proposal, or the substance of any discussion [among the Parties] ….” Thus, we are somewhat limited in what we can share publicly.
Though we cannot discuss with you the Parties’ discussions or proposals, a look at the agreement that has governed the relationship of State licensed and Tribal fishers for the last 20 years can give you a good idea of the things that are at issue now. Those include agreements on the areas of the Great Lakes where gill nets and trap nets can be fished by the Tribes, the species of fish that may be commercially targeted, and the limits on the catch of various species such as whitefish, salmon, lake trout and walleye, among others. A review of the Table of Contents of the “2000 Consent Decree” gives a good outline of the issues and complexity of the fishery and the Treaty right. The full agreement and other resources can be found at http://protectmiresources.com/brief-history/.

NEXT: In our next UPDATE, we’ll discuss some of the issues facing the fishery and the negotiators as they try to reach a new agreement

2020 Consent Decree Update #1
A Continuing Resolution
The Decree is currently set to expire on December 31, 2020. The parties began negotiations regarding a successor agreement in September 2019. The negotiations were unexpectedly upended by the coronavirus pandemic in March of 2020, and the process advanced slower than hoped. To help the process, the parties stipulated to the appointment of a mediator: former Michigan State Supreme Court Justice Michael F. Cavanaugh (ECF No. 1876). With the assistance of Justice Cavanaugh, the parties have resolved some of the outstanding issues. The Court recognizes the difficulty of assembling seven parties and fostering an agreement in the best of times, and the current situation is certainly less than the best of times. The Court is impressed with the parties’ continued resolution of the complicated issues involved in creating a successor Decree. The Court commends the efforts of both the parties and Justice Cavanaugh.
Hearing no objection to the motion to extend, it will be granted. Accordingly,
IT IS HEREBY ORDERED that the 2000 Great Lakes Fishing Decree is hereby amended: the final sentence of § XXII(A) shall now read “The Decree shall expire on June 30, 2021.”
IT IS FURTHER ORDERED that the Joint Motion to Extend the Decree (ECF No. 1901) is GRANTED.
IT IS SO ORDERED. Date: December 8, 2020
/s/ Paul L. Maloney Paul L. Maloney United States District Judge

Earlier this year, we updated you on the agreement between the State and five Michigan Tribes that have governed Tribal commercial and sportfishing in the northern Great Lakes for the last 20 years. (The map below shows the Tribal areas.) That agreement was set to expire on August 8 of this year and negotiations for a new agreement were ongoing at the time we reported to you. Your Association is an active participant in a coalition of Sportfishing and conservation groups concerned about the Great Lakes fishery that is involved in the negotiations. Others in the Coalition to Protect Michigan Resources (protectmiresources.com) are the MUCC and the MSSFA, along with a dozen other groups. Recently, several new groups have joined the Coalition to support its efforts.

We reported in the spring that there was a real concern that the 20-year agreement would expire with nothing in place to define the relative rights of state and tribal fishers. Here’s where things stand today:

Negotiations with the help of a Mediator are ongoing.

This spring, negotiations had been ongoing for six months and not a single issue had been resolved. The parties then asked the Federal Court to oversee this issue to appoint a mediator. The Court did so, appointing former Chief Justice of the Michigan Supreme Court, Michael Cavanaugh, to serve as the Mediator. Justice Cavanaugh has held several sessions with some or all of the parties. Negotiations have been made difficult, however, by the existence of the pandemic, which has prevented face-to-face meetings. To be frank, Zoom conferences are simply not the best way to discuss the complex biological, political and social issues facing us. We have suggested to the State, a couple of the Tribes and the Mediator that we should try to hold in-person, small group meetings, with proper distancing, of course, so that the parties can have frank discussions that lend themselves to confidential give and take “across the table.” So far, that suggestion has fallen on deaf ears.
No agreements, but some progress
As mentioned above, we reported in the spring that not a single issue had been resolved in six months. Unfortunately, the last six months has not provided much progress either. That said, it is fair to say that recently, the parties seem to be coming together on one of the fundamental issues that has to be resolved for a new agreement. With the exception of one Tribe, all of the other parties have agreed on what we think THE fundamental issue for a new agreement is. While we cannot disclose any proposals, responses to proposals or the substance of the parties’ discussions, we can say that the parties are now actively engaged in negotiations over a management plan for State and Tribal waters. (Due to a confidentiality agreement between the parties, including the Coalition, we can’t get into the specifics of the parties’ discussions.)

We should also let you know that we have been actively working with the State, as well as having constructive discussions with certain Tribal representatives and the Mediator on issues facing the parties. Our relationship with the State has been a good one, and though we may not always agree, we have had the opportunity for constructive discussions and to suggest language for including in proposals or a new agreement.

The existing agreement has been extended by the Court

The agreement that has governed Tribal and State fishing in the Treaty waters was set to expire on August 8. In late June and early July, the parties asked the Federal Court to extend the agreement to avoid chaos. The State and Federal governments, along with 4 of the 5 Tribes in the agreement, and the Coalition, supported a request for the Court to extend the agreement until the end of the year, December 31. The Sault Ste. Marie Tribe of Chippewa Indians filed its own request, asking the Court to extend the agreement only until November 8, but on the condition that any future extension would allow the Sault Tribe to fish in ANY waters open to tribal fishing including those “home waters” that were open only to a local tribe. For example, the Sault Tribe was asking the Court to allow it to fish the waters of Grand Traverse Bay, Hammond Bay, Little Traverse Bay and south almost to Pentwater to after November 8 under the rules that apply to the Grand Traverse Band, Bay Mills Indian Community, Little Traverse Band and Little River Band respectively. We understood the Sault Tribe request to be a rejection of the current agreement.

The Court rejected the Sault Tribe request and granted the request sought by all of the other parties and the Coalition. The Court also directed that if additional time was needed after December 31, the parties should request that additional time by early December.

What is next?

The Court has directed the Mediator to report to the Court on September 15 as to the progress of the negotiations. The parties are continuing to meet and exchange proposals and we continue to stay involved. We discuss the negotiations with the Coalition’s negotiating team on a regular basis. That team includes Tony Radjenovich (MCBA), Frank Krist (Hammond Bay Anglers), Wes Newberry (Grand Traverse Area Sportfishers), and Bill Winowecki (MCBA), and with Amy Trotter (MUCC).

If you enjoyed this post, make sure you subscribe to my RSS feed!
Category: MCBA News