Nylund v. Department of Natural Resources

288 N.W.2d 660, 94 Mich. App. 584, 1980 Mich. App. LEXIS 2400
CourtMichigan Court of Appeals
DecidedJanuary 3, 1980
DocketDocket No. 78-3724
StatusPublished
Cited by1 cases

This text of 288 N.W.2d 660 (Nylund v. Department of Natural Resources) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nylund v. Department of Natural Resources, 288 N.W.2d 660, 94 Mich. App. 584, 1980 Mich. App. LEXIS 2400 (Mich. Ct. App. 1980).

Opinion

D. F. Walsh, P.J.

Defendants appeal the September 6, 1978, judgment entered by the Delta County Circuit Court permanently enjoining them from "suspending, revoking, annulling, withdrawing, recalling, cancelling, amending” plaintiffs’ 1974 commercial fishing licenses, subject to "any and all statutes and rules of general application presently existing or properly enacted or promulgated hereafter”. Plaintiffs are commercial fishermen licensed to use large mesh gill nets before and during 1974. The circuit court further ordered that, pending appellate resolution of this controversy, plaintiffs’ use of large mesh gill nets is to be limited to the use allowed under the relevant pre1974 administrative rule. 1970-1971 AACS R 299.883.

The issue presented to this Court is whether there is a properly promulgated rule which allowed the Director of Conservation (now the Director of Natural Resources, hereinafter referred to as the director) to amend plaintiffs’ 1974 commercial fishing licenses to remove from them the authorization to use large mesh gill nets after 1974. The circuit court held that no rule banning the use of large mesh gill nets by those licensed in 1974 to use such nets had been promulgated. We disagree. A review of background facts is necessary to put this controversy in proper perspective.

On November 23, 1976, the Department of Natural Resources (DNR) filed an administrative complaint against the plaintiffs seeking to amend the commercial fishing licenses of each plaintiff to prohibit commercial fishing with large mesh gill nets. The administrative hearing was held in February 1977. Asa Wright, head of the Great Lakes [587]*587section of the fisheries division of the DNR, testified at length concerning the need for prohibition of large mesh gill net commercial fishing. According to Mr. Wright, the major cause for the decline of fish populations in the Great Lakes and the disappearance of such species as lake trout has been over-exploitation by commercial fishermen. The DNR has undertaken to redevelop a self-sustaining population of lake trout in the Great Lakes. Large mesh gill nets are nonselective; many species closed to commercial fishing, such as lake trout, are inadvertently caught in the gill nets of commercial fishermen. Fish which become entangled in gill nets have a very low survival rate. The nonselective nature of gill nets is obstructing the goal of reestablishing a self-reproducing lake trout population. Overlap between the habitat and spawning areas of such species as whitefish and those of lake trout results in large incidental catches of the protected lake trout.

Mr. Wright further testified that there are prudent and feasible alternatives to the use of large mesh gill nets for commercial harvest of whitefish and other species in areas where large mesh gill nets have been authorized in the past.

John Scott, chief of DNR’s fisheries division, also testified at the administrative hearing. He described the lake trout repopulation program, which began in 1965. By 1967, it was apparent that lake trout were being killed in gill nets. The fisheries division’s suggested ban on large mesh gill nets in the shallow waters of the Great Lakes was rejected by the Natural Resources Commission (hereinafter referred to as the commission). In 1968, the Legislature authorized the DNR director to, inter alia, limit commercial fishing licensees to certain types of gear. MCL 308.1b(2)(d); MSA [588]*58813.1491(2)(2)(d). In 1970, the Great Lakes Zone Management Plan was adopted by the DNR. 1970-1971 AACS R 299.883. Strict controls were placed on the use of gill nets in certain areas of the Great Lakes.

Mr. Scott described the Zone Management Plan as a compromise between commercial and recreational fishing interests. Because the lake trout repopulation program did not show signs of success under the plan, the fisheries division once again, this time in June 1973, proposed to the commission that gill net fishing be banned in Lakes Superior and Michigan. The goal was "to eliminate the nonselective gear, convert the fishery to selective gear, and finish the job of restoring most of the fish population in the Great Lakes”. The Great Lakes fishery advisory committee [MCL 308.1d; MSA 13.1491(4)] also recommended to the commission, in 1973, that large mesh gill nets be banned.

The commission considered the proposed ban at its July, 1973, meeting. Commercial fishermen were notified of the meeting and were there to voice their objection to the proposal. The commission deferred decision and asked the fisheries division to make further studies of alternatives to complete ban.

The commission ultimately accepted the fisheries division’s conclusion that there were no feasible alternatives to complete ban which would allow restoration of the fish populations of the Great Lakes. Three public hearings were held at different locations in the state. The commission gave tentative approval to the proposal and submitted the proposed rules to the joint rules committee of the Legislature, after securing approval of the proposed rules from the legislative service bureau [589]*589and the Attorney General. The joint committee held two public hearings on the proposed rules. The committee voted 5 to 2 against approval of the rules. A majority of the Senate also voted against the rules. In the House, however, the joint resolution disapproving the rules was rejected. The commission, therefore, adopted the rules in May 1974. They took effect on June 10, 1974. 1974 AACS R 299.1071 through 299.1079.1

According to Mr. Scott, although Rule 299.1078 contemplated a phaseout of gill nets to be completed by December 31, 1974, the DNR agreed to grant extensions to those fishermen who demonstrated inability to make the required conversion before that date. This agreement resulted from a lawsuit, filed on behalf of commercial fishermen, challenging the time schedule set forth in the rule. Although 1975 licenses did not authorize the use of large mesh gill nets, the DNR delayed enforcement of the ban to allow reasonable time for conversion to other gear. On November 28, 1975, all commercial fishermen whose 1974 licenses had authorized them to use gill nets were notified that no further extensions would be granted for compliance with the 1974 rules. By June 1, 1976, all time extensions had expired. Each noncomplying commercial fisherman was given an opportunity at an informal hearing to explain why he or she should be given further extension. Plaintiffs did not appear at these hearings.

The administrative hearing examiner found that plaintiffs were not in compliance with Rules 299.1071 to 299.1079. He recommended amendment of their commercial fishing licenses. The commission agreed, finding that the rules prohibited the [590]*590use of large mesh gill nets. Rule 299.1078, according to the commission, established a time schedule whereby those commercial fishermen previously authorized to use large mesh nets could convert to other authorized gear. The commission ordered that all provisions of plaintiffs’ licenses which authorized the use of large mesh gill nets in the Michigan waters of Lakes Superior or Michigan be suspended. Each license was amended to prohibit large mesh gill net fishing in those waters.

Plaintiffs filed complaint on March 4, 1977, in Delta County Circuit Court. With regard to large mesh gill nets, plaintiffs alleged, inter alia,

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Bluebook (online)
288 N.W.2d 660, 94 Mich. App. 584, 1980 Mich. App. LEXIS 2400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nylund-v-department-of-natural-resources-michctapp-1980.