Michigan Court of Appeals Finds Law Adding Wolves to List of Game Species Unconstitutional

The unpublished opinion is here. The Court found that Public Act 281 (which added wolves to the list of game species) violated the Title-Object Clause of the Michigan Constitution.

PA 281 was passed with the provision that kept portions of certain voter referendums even if voters rejected them: “In other words, even if voters rejected PA 520 and PA 21 at the general election, those portions of the rejected laws that were incorporated into PA 281 would nevertheless survive. … At the November 4, 2014 general election, a majority of voters rejected both PA 520 and PA 21. PA 281, which reenacted portions of voter-rejected PA 520 and PA 21, including the addition of wolf to the list of game species, took effect on March 31, 2015.”

Previous coverage here.

 

D.C. District Court Overturns Decision to Remove Gray Wolf from Endangered Species List

Memorandum and Opinion (111 pages) and Order.

ORDERED that, because the rule Revising the Listing of the Gray Wolf (Canis lupus) in the Western Great Lakes (the “Final Rule”), 76 Fed. Reg. 81,666 (Dec. 28, 2011), is arbitrary and capricious and violates the Endangered Species Act of 1973, as amended, 16 U.S.C. §§ 1531
et seq., the Final Rule is VACATED and SET ASIDE; and it is further ORDERED that the rule in effect prior to the Final Rule vacated by this Order, namely, the rule regarding Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9607 (Mar. 9, 1978),
is REINSTATED to govern management of gray wolves in the nine states affected by the vacated Final Rule, pursuant to the Endangered Species Act;

Freep coverage here.

Exposé on Politics behind Push for Michigan Wolf Hunt

Here.

An excerpt:

But an MLive Media Group investigation found that half-truths, falsehoods and a single farmer have distorted reasons for the hunt. Among them:

• When state lawmakers asked Congress to remove wolf protections, they cited an incident in which three wolves were shot outside an Upper Peninsula daycare center where children had just been let out. That never happened, MLive found.

• A leading state wolf specialist said there are cases where wolves have stared at humans through glass doors, ignoring pounding on windows meant to scare them. That never happened as well. The expert now admits he misspoke.

Tribes and the Michigan Wolf Hunt

The Michigan Natural Resources Commission has approved a wolf hunting season here in Michigan, just one day after Governor Snyder signed legislation authorizing the Commission to determine whether to allow such hunting.

In recent years, Anishnaabe tribes (Ojibwe, Potawatomi, and Odawa) in MichiganWisconsin, and Minnesota have opposed state-sanctioned wolf-hunting.  Wolves are important in the religious teachings of Anishnaabe people, and it is often said that the Ma’iingun (wolf) and the Anishnaabe are brothers whose fates are linked.

Senator Casperson of Escanaba,  the primary sponsor of the legislation, dismissed tribal religious concerns during the process, stating:

“I don’t know how you negotiate that, because that’s a personal belief they have. But at the end of the day, I do think many people don’t hold that same belief, so what do we do. Do we hold fast to it because the tribes say it’s sensitive to them, when many of my citizens don’t hold that same value?”

Aside from the Senator’s ironic statement, some Michigan tribes have also based their objections on the legal relationship between the tribes, the state, and the United States.  The 1836 Treaty of Washington reserved the hunting, fishing, and gathering rights of what are now five of Michigan’s Ojibwe and Odawa tribes throughout much of the State of Michigan.  In 2007, those five tribes and the State entered into a court-approved agreement to clarify tribal rights on lands ceded under that treaty.

Section 22 of the 2007 Agreement addresses tribal “activities designed to restore, reclaim, or enhance fish, wildlife or other natural resources within the inland portion of the 1836 Ceded Territory through stocking, rearing, habitat improvement, or other methods.”

Section 23 of the 2007 Agreement addresses consultation between the tribes and the State.  In particular, Section 23.4 provides:

“23.4 The State and the Tribes shall notify each other at least annually of proposed regulatory changes (including changes in management units or methodologies for determining the allowable harvest of any species) before they take effect (except where, due to an emergency or other matter beyond the control of the Parties it is not possible to provide advance notice) and seek to resolve any concerns arising from such changes before implementing them. Upon request, the State and the Tribes shall share information regarding the rationale for such changes and their anticipated effects (e.g., changes in species abundance, distribution, or age or sex ratios). Upon request, the State and the Tribes shall provide similar information for any existing regulation, management unit or allowable-harvest methodology. The information provided shall be sufficiently detailed to enable the other Parties to fully understand the regulation, management unit or allowable-harvest methodology at issue and any underlying data associated with it, and to enable them to make constructive suggestions for improvements to such regulation, management unit or harvestable surplus methodology.”

I am citing these provisions to highlight one basis of tribal opposition to the State’s proposed authorized wolf hunt.  I am not privy to information regarding the level of consultation between the tribes and the State, and whether the State has satisfied its obligations under the 2007 Agreement.  That issue may well be decided in the near future.

I can say that merely including tribes in a general public comment process does not fulfill tribal consultation requirements at either the state or the federal level.  That is not the legally appropriate forum in which to address tribal treaty rights.  If that is the extent to what occurred with the wolf hunt, I’m not sure that all of the tribes that were parties to the 2007 Agreement would believe that the State has fulfilled its obligations.

Lastly, the rights reserved in the 1836 Treaty necessarily include the right to protect habitats and ecosystems that would support hunting, fishing, and gathering.

It is well-documented that wolves are considered a “keystone” species in their natural habitat (which includes most of northern Michigan).  This means that their existence and well-being affects the health and well-being of many other species of plants and animals in their ecosystem.

To the extent that Michigan’s state-sanctioned wolf-hunt impacts tribal rights to hunt, fish, and gather other species, then those tribes may have a valid basis for challenging the size and scope of the hunt.

*Any views expressed in this post are solely those of the author, and not representative of any tribes or other organizations. 

LSJ Article on Potential Wolf Hunt and Tribes: “Saving Ma’iingan”

Here.

Tribal leaders say they have more than a cultural stake in the wolf, however.

They also believe the state has a legal obligation to give Michigan’s tribes an equal say in the management of the wolf and other wildlife species because of a treaty signed in 1836.

The Treaty of Washington was an agreement between the Ottawa and Chippewa nations and the United States in which the Indians agreed to cede 13 million acres of tribal land to the U.S. government — a move that paved the way for Michigan to become a state in 1837.

In return, Indians were granted unlimited hunting, gathering and fishing rights to the land.

In 2007, the treaty was strengthened in a court-mandated consent decree between the Department of Natural Resources and the tribes. The agreement requires the DNR to manage the state’s natural resources based on “sound scientific management” and to coordinate their efforts with the tribes.