MDNR Consent Decree Facts Wrong, Grossly Misleading

Recreational fishers may have received an email from the MDNR suggesting that all is well with a new proposed agreement between the State and four out of five tribes with Treaty preserved fishing rights in the northern Great Lakes. These FAQs are either false or grossly misleading.

The issues involve how the Great Lakes fishery will be shared between state-licensed fishers and tribal fishers. The issues also involve how the fishery is divided between tribal commercial fishers and recreational fishers and done so in a manner that will preserve and protect the fisheries for future generations.

These issues are complex and the MDNR’s FAQs provide only generalized statements that hide the real facts and risks to the fishery presented by the proposed agreement. One overarching comment on the State’s FAQs is that they do not attempt to refute with any science-based facts the well-researched objections and positions of those opposing the proposed decree. As an old mentor of one of our expert biologists used to say: “saying it’s so does not make it so”.  Those opposing the proposal have backed up our positions in our court filings with references to 44 scientific journal articles and publications.  Our gillnet positions have been based upon multiple scientific papers and literature reviews.  The State’s position on expanded gillnets are nothing but wishful thinking and their other positions are nothing more than opinions offered in defense of an indefensible proposal. Maybe if they just say this stuff often enough it becomes true?

Set forth below is a brief response to some of the FAQs.  We acknowledge the complexity of the issues and are only able to provide a brief response here, but one that illustrates the problems caused by the proposed decree and their complexity. (That we don’t address every FAQ should not be taken as our agreement with it.) We urge you to ask questions, seek real answers and in the meantime, don’t be fooled by the FAQs.

Claim: The proposed Decree will protect the fishery.

The MDNR says that the proposal “includes regulations to protect vulnerable fish populations and provides for harvest limits and allocations to govern the fisheries of the State and Tribes.” This is false. The proposal relies on Tribal regulations to govern the fishing by the Tribes.  As for the proposal itself, there is a large BLANK where the proposal sets forth the critical mortality rate used to estimate fish stocks, particularly lake trout.  This estimation is what sets the available catch for the tribes and recreational fishery.

Lake Trout, Walleye and Yellow perch are now targeted species, yet there is nothing in the proposal to say how those species will be estimated and how many can be caught. There are no current Harvest Limits on Walleye and Yellow Perch or any criteria on how these species will be shared.

Data used to estimate available fish are reviewed every 3 years, instead of annually as has been the case for over 35 years, yet fisheries in the past have collapsed in less than a year. The criteria to change Harvest Limits are also so vague as to be unenforceable.

Our estimate is that these changes will lead the current recreational share of the resource to decline from the current about 39% to less than 30%. This compares to the legal standard of roughly a 50-50 split.

Claim: Lake trout rehabilitation will not be harmed.

The MDNR says “The proposed consent decree would ensure that Lake Trout populations are carefully monitored and managed through harvest limits that result from complex population modeling and the application of sustainable mortality rates.” This is a patently false claim. Start with “sustainable mortality rates,” the critical factor in estimating sustainable fish populations. The proposal states that “Prior to signing” the proposal, the parties “shall adopt… target annual mortality rates” for lake trout yet there are no such rates anywhere in the proposal even though the proposal has been agreed upon and submitted to the Court for approval. There are simply no mortality rates set forth or being agreed upon. It is impossible to know what will happen to lake trout, perch or walleye without this critical factor, but we know this: Current mortality rates set by the parties are too high to allow for sustainable fisheries. The reason given for not establishing mortality rates is three years are needed to collect enough data to use in their models, yet as noted above fisheries in these waters have collapsed in less than a year.

Claim: Shrinking the northern Lake Trout refuge in Lake Huron will do no harm.

The MDNR’s FAQs state that Lake trout rehabilitation in Lake Huron will not be harmed by shrinking the lake trout refuge by more than half and allowing new gill net fishing in the refuge for 10 months of the year. The MDNR justifies the opening of this critically important refuge in Lake Huron by arguing that lake trout migrate to and from the refuge only during the months of October and November. They also say that the rest of the year few lake trout will be caught in this ideal lake trout habitat.

It is ludicrous to suggest that Lake Trout rehabilitation will not be harmed when gill net fishing is going to be allowed within the refuge 10 months of the year, and may occur without limits around the shrunken refuge year round. If lake trout migrate, the dramatically smaller refuge is now much easier to ring with strategically placed gill nets to catch those migrating trout and kill year-round inhabitants.  In addition, and not to be flip about it, but lake trout do not operate with a calendar. They do not all wait until October 1 to swim in and until November 29 to swim out, especially with changes coming to the lake by warming waters. In addition, this refuge has not only excellent habitat for spawning lake trout but it has ideal year-round habitat for Lake trout. It has been shown that lake trout throughout Lake Huron spawn in this refuge.  The proposed decree will ensure that there will be gillnetting on all sides of this greatly reduced productive habitat 10 months each year.

Claim: There will not be “millions of feet of new gill net fished in the Great Lakes.”

The FAQ claims that “While it is true that there would be some areas where gill nets could be fished that were not available under the 2000 Consent Decree, this would not result in “millions of feet of new gill net.” This is patently false. Consider just the following: The proposed agreement allows for 24,000 feet of large mesh gill net to be fished every day in Big Bay de Noc year-round. If that net is fished just 50 days per year, that means 1,200,000 feet of gill net will be fished in one bay in a year. (24,000 x 50= 1.2 Million feet). In the inner Grand Traverse Bays (East and West bays), 9,000 feet of large mesh gill nets may be fished daily from the day after Labor Day until the following Memorial Day. If that net is fished 50 days, 450,000 feet of net could be fished where there haven’t been gill nets since 1979 when the fishery was closed down after virtually all lake trout in the bays were caught in a couple of months. In Lake Huron, around the refuge discussed above, there is no limit on the amount of gill net that can be fished. And the list goes on ….

This is not “a redistribution of current effort…” This is new effort in areas where there haven’t been gill nets fished for decades. And this doesn’t even include the huge areas in Lake Superior where gill nets are now allowed. Finally, if gill net fishing is good in or near a recreational area, a large portion of the entire management unit catch limit may be caught in tribal gill nets in a specific recreational location.  After the fishery declines from new gill net effort, then tribal fishers can quickly move to other small areas where fish are still plentiful enough to support the recreational fishery and fish there. With this focused gill netting in or near recreational fishing zones, the number of fish in the area will decline quickly resulting in anglers losing interest and they will either stop fishing or move to other ports, where the cycle will continue.

Claim: Gillnets do not “kill indiscriminately.”

The FAQ claims that “Every gill net does not catch every fish that swims…” but massive new areas of the Treaty Waters are open to areas with net sizes ranging from 2.5 inches to over 5 inches enabling fish of almost any size to be taken. Sure, a large mesh gill net WILL catch desirable size whitefish, lake trout, brown trout, Atlantic salmon or any other species of similar size that swims through it, and the vast majority that are caught will be dead or dying when brought to the surface. Of course, the smaller mesh gill nets will entangle and kill most of the smaller fish. So, yes, a gill net does kill nearly all fish of similar size indiscriminately. Gill nets will also kill sturgeon, loons and any other endangered or threatened species that get tangled in it. This is why gill nets are being banned or severely limited, worldwide.  See, for example, https://ccanc.org/the-ugly-truth-about-gill-nets/.

In addition, the FAQ states that “The increased areas where Tribal fishers could use gill nets would be relatively small.” This is patently false. To list just a few, the areas to be opened to large mesh gill net fishing where no gill nets have been allowed for the past 35 years includes: Lake Michigan- inner Grand Traverse Bays, Little Traverse Bay, over 400 square miles of water from Leland to Frankfort, Big Bay de Noc; Lake Huron- over 600 square miles of water in and around the lake trout refuge; Lake Superior- all Michigan waters from Munising to Marquette (excluding two small off shore refuges).

Claim: “The State is not in a position to dictate to the Tribes what gear they use.”

This claim misstates the real issue. The issue in NOT whether the State can “dictate” the gear the Tribes use. The issue is whether the State must agree to the gear proposed by the Tribes.  Since 1985, the State and the Tribes have AGREED to limitations on the kind of gear that the Tribes may use. In exchange for limitations on gill nets, the State has given a larger share of the fishery to the tribes than just the 50-50 split. For decades, gill nets have been banned in recreational zones and the State committed in 2000 to pay over $14 Million to convert tribal fishers from gill nets to trap nets. The State has now abandoned gill net reduction and AGREED to gill net expansion without a reduction in the tribal allocation back to a 50-50 split.

Perhaps most shocking of the State’s apparent defense of expanded gill net fishing is this statement: “it is an inexpensive gear to use and can be fished from smaller boats.” Remember the old saying that “Those that fail to learn from history are doomed to repeat it?” In 1979, when the Court ruled that the Tribes had a right to fish without State regulation, gill net fishing exploded and in the summer of 1979, tribal gill net fishers took 98% of the lake trout in Grand Traverse Bay and ended the lake trout fishery near Rogers City. That devastating catch was almost entirely by “smaller boats” using “inexpensive” gill nets.” Apparently unaware of this history, the State has now agreed to new gill net fishing without limits on the number of fishers or the days to be fished or the amount of net to be used in large areas of the Great Lakes. In other areas, where “limits” are stated, they are so vague or large as to be without protection for the recreational fishery.

Claim: The new agreement simply continues an existing gill net fishery in the Little River Band Zone.

The FAQ claims that the Little River Band had the right to “use of gill nets in their zone within Lake Michigan (Arcadia to Grand Haven)” as part of the previous agreement signed in 2000. Thus, the State argues that the 12,000 feet of gill net now allowed is not “new” gill net. This is plainly false.

The 2000 Decree provided that the Little River Band could do a “fish distribution” study that could be conducted with gill nets from 2015 through 2020. That decree did not specify that any new gill net fisheries could be established and the right to do the study expired after the five year term set forth the 2000 Decree. Importantly, the Little River Band NEVER undertook the “fish distribution” study; it never fished gill nets from Grand Haven to Arcadia.  Further, most scientific assessment studies that are completed with gillnets or trawls do so even though that gear is not used by the fisheries operating in the area.  During the 2000 Decree negotiations, the emphasis by the Little River Band was on trap nets and charter boat fishing with the goal of working closely with the recreational fishing community. (We truly hope that continues.)

Despite this, the MDNR took the position that the two gillnet operations, fishing up to 12,000 feet of gillnet per day now to be allowed in Lake Michigan, are a continuation of that abandoned “fish distribution” study; another abandonment of the effort to reduce gillnet fishing in the Great Lakes.

Claim: Gill nets were fished in Big Bay de Noc under the 2000 Consent Decree.

The FAQ asserts that a limited gillnet assessment fishery was authorized to fish in Big Bay de Noc during the end of the 2000 Consent Decree and somehow that justifies a permanent gill net fishery.  No ongoing gill net fishery was ever authorized in the 2000 Agreement, however.  Big Bay de Noc was limited to trap nets only for the last 20 years!

Under the proposed decree, 24,000 feet of gill net may be fished daily in Big Bay de Noc.  In addition, an extended assessment fishery may be authorized to operate anywhere in the treaty waters using any regulations even if they are drastically different from the existing rules.  This means that gill nets may eventually be fished anywhere the treaty waters over the next 24 years unless a party is successful in stopping the effort using the Dispute Resolution Process. (Note that recreational fishing organizations are not allowed to use the Dispute Resolution Process in the proposed decree.)

Claim: Sportfishing groups were involved in the negotiations but were later barred from participating.

The FAQ pitches you a doozy here. Here are the facts: Since 1979, recreational groups including the MUCC, the Michigan Steelheaders, the Michigan Charter Boat Association, the Grand Traverse Sportfishing Association and several other lake associations and resource protection organizations have participated in court proceedings and negotiations over previous agreements involving the Great Lakes fishery and tribal claims for inland hunting, gathering and fishing rights. For those 43 years, these groups enjoyed a good working relationship with the MDNR and Governor’s office even though we may have disagreed at times.

When the negotiations began in 2019, those groups participated again, but their participation was limited to working through the MDNR representatives only. The groups were not allowed to directly participate in the negotiations. Being focused on the biological standards necessary to provide for a sustainable fishery and with the knowledge of history and the needs of a recreational fishery, the relationship got off to a rough start when our belief was that the State’s initial efforts were focused on getting a deal, not on getting a deal that protects the fishery. The relationship finally broke down in late June 2022 when recreational representatives were told that the State did not have time to address “local concerns.” From that point on, we were denied any drafts of documents and the MDNR refused to meet with us or share proposals or drafts of any agreements.

Being frozen out of the negotiations, the recreational fishing groups within Coalition to Protect Michigan Resources asked the Court to make it a full party in the case and negotiations since the State had frozen us out and in our view was no longer focusing on sustainable fisheries and representing the needs of the recreational fishery. This request was under seal due to a confidentiality agreement, which hid the negotiations and information from the public.  The State then argued that the Coalition did not provide enough information to support being a full party while at the same time saying that the request to intervene violated the confidentiality agreement.  This tactic was used by the State to cast a derogatory shadow over the Coalition and to hide any further discussions the parties were having.

This FAQ is simply an attempt to denigrate the only representatives of the recreational fishery that have defended it for the last 43 years.

As we said above, these are complicated issues and we could write pages to address the rest of the FAQs. We hope from this brief response that the recreational fishers who love the Great Lakes will see that the FAQs paint a picture that lacks, in the words of the late Paul Harvey, “the rest of the story.”