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Proposed Great Lakes Consent Decree (Dec. 2022) FAQs
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How would the proposed consent decree meet the DNR’s responsibility to protect the fishery resources of the Great Lakes?
The DNR has always taken its mission and its constitutional and statutory obligations very seriously. Protecting the fishery resources of the Great Lakes was the number one goal of the State during negotiations of this proposed decree, and the proposed decree would successfully advance this goal. Specifically, the proposed decree includes regulations to protect vulnerable fish populations and provides for harvest limits and allocations to govern the fisheries of the State and Tribes. The proposed decree also reflects the Parties’ commitment to monitoring and adaptive management to ensure that Great Lakes resources are protected.
Will the proposed decree harm progress toward Lake Trout rehabilitation?
No. 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. Progress toward Lake Trout rehabilitation has occurred over the past two decades, with substantial increases in natural reproduction occurring in lakes Michigan and Huron. The target mortality rates within the proposed decree would be interpreted as the maximum rate that any age in the population can experience. This is more conservative than the current approach, which only considers the average mortality rate across ages vulnerable to fishing.
In addition, tangible steps have been taken that would improve population monitoring. The proposed decree includes a reporting system that is more transparent and produces more accurate data for management. The modeling process and timeline within the 2000 Consent Decree was compressed and unrealistic, such that it did not meet the scientific rigors required to generate defensible and reproducible population models. The proposed decree would allow for a vastly improved timeline for analysis and processing of data which, when combined with the use of more accurate data, would result in better population models, leading to more accurate harvest limits and better protection for Lake Trout. The Parties’ commitment to Lake Trout rehabilitation through the Great Lakes Fishery Commission process would be unchanged under the proposed decree, as would the commitment to research and sea lamprey control.
Would the changes to the Drummond Island Refuge in the proposed decree harm the Lake Trout population in Lake Huron?
No. The proposed changes in the regulations within the Drummond Island Refuge are based on an evolution of the science related to fish movement and behavior. The same fish movement study that led to two units in northern Lake Huron being combined into a single management unit made it clear that the Drummond Island Refuge does not protect Lake Trout on a year-round basis. Fish actively use the spawning habitat in the refuge during October and November, but following spawning they leave the refuge, and it affords them no protection. The purpose of the refuge is to protect spawning fish. Because fish do not reside there year-round, its utility as a year-round refuge is diminished. In addition, the area that was removed from the refuge in the proposed consent decree is not used for spawning, as its depth exceeds 400 feet and commercial fishing does not occur at these depths.
Why wasn’t the trap net conversion program of the 2000 Consent Decree continued?
The conversion program for trap nets – commercial nets that allow operators to release any non-target species captured – was a creative solution to help gain agreement to the terms of the 2000 Consent Decree. It was specifically designed to last for the term of that consent decree. The unique circumstances that allowed it to be attractive to both the State and the Tribes in the year 2000 no longer exist. Trap nets were a way for Tribal fishers to have access to more water for fishing without competing with recreational fishers for Lake Trout. The only target of trap net operations was Lake Whitefish. Because Lake Whitefish were caught at a ratio of 8:1 compared to Lake Trout, the expensive trap net operations could be operated and maintained.
However, since 2000 Lake Whitefish populations in Lakes Michigan and Huron have declined by more than 80%. There are not enough Lake Whitefish to keep the same number of trap net operations viable. Only a few of the fishers who converted to trap nets as a result of the 2000 Consent Decree continue to commercially fish. Allowing retention of Lake Trout in trap nets is not a viable alternative. This would introduce competition with recreational fishers throughout the entirety of the 1836 Treaty waters, and there are not enough Lake Trout (which sell for less than half the amount that Lake Whitefish do) to support a large number of trap net operations. Also, a few trap net operations could catch the entire Tribal allocation of Lake Trout for a fishing year, putting the Tribal gill net fishers out of business, which is not an acceptable outcome to the Tribes.
Would there be millions of feet of new gill net being fished in the Great Lakes if the proposed decree is approved?
No. 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.” If fishers choose to operate in areas that were previously closed, this would not result in new effort. Rather, it would be a redistribution of current effort from other areas. There are only a few remaining fishers who were part of the trap-net conversion program in the 2000 Consent Decree. It is not guaranteed that they would cease fishing with their trap nets in order to move back to gill net fishing. However, even if they did, they would be subject to the same harvest limits and regulations as existing gill net fishers and their efforts would in no way harm the resource given the regulatory structure of the proposed decree. Gill net effort in the 1836 Treaty waters has declined by 9 million feet between 2015 and 2021. The major driver of gill net effort is the abundance of Lake Whitefish, not regulatory changes.
If gill nets kill indiscriminately, why would the State agree to their use in new areas?
Every gill net does not catch every fish that swims. Under the proposed decree, gill nets could be used as a tool to harvest fish selectively based on the size of net used, time of year, depth, and location it is fished. The proposed consent decree’s regulations would encourage gill nets to be used in ways that minimize or eliminate bycatch – catching species that are not targeted by the fisher. There would also be limits to the amount of bycatch that can be taken and prohibitions on selling many species of fish that may occasionally be caught as bycatch. The use of gill nets by Tribal fishers under the regulations of the proposed consent decree would have no impact on the recreational fishery that targets “silver fish.” The increased areas where Tribal fishers could use gill nets would be relatively small. Gill nets are set on the bottom and the vast majority of the catch would be Lake Trout or Lake Whitefish, both of which are subject to strict monitoring and harvest limits.
Gill nets are routinely used by fisheries agencies and consulting firms as a primary way of sampling fish populations. If their use in the Great Lakes was always destructive, they would not be used. In addition, the State has had to abandon gill net surveys for salmon because not enough fish could be caught in the gill nets to index a population or collect meaningful amounts of biological data.
Lastly, the State is not in a position to dictate to the Tribes what gear they use to catch their allocated share. The Tribes desire to fish with gill net because it is a traditional gear type, and it is an inexpensive gear to use and can be fished from smaller boats. During negotiations, compromise is inevitable. Taking the position that no new areas would be available to fish with gill nets was not a viable option, as it would have made it impossible to reach agreement on a new proposed decree with the other Parties. Likewise, it was never an option to simply continue the 2000 Consent Decree in perpetuity. That decree was outdated, inflexible, and an unacceptable solution to every government seated at the table.
Under the proposed decree, would there be new opportunity for gill net fishing in the Little River Band Zone?
The Little River Band successfully negotiated for the use of gill nets in their zone within Lake Michigan (Arcadia to Grand Haven) as part of the 2000 Consent Decree. In the 2000 Consent Decree, the Tribe had the ability to fish with two operations up to 6,000 feet of gill net for each operation since the year 2015. Even though the Little River Band chose not to deploy that effort during the term of the 2000 Consent Decree, the opportunity to do so still existed. In the proposed consent decree, the State and the Little River Band have agreed to regulations that could result in a best practices model for other areas of the Great Lakes where a commercial fishery operates alongside popular recreational fisheries. Under the proposed decree there would be active, coordinated public education campaigns to inform people of the importance of Tribal commercial fishing and the detailed plans for its execution. There would be voluntary reporting of GPS coordinates of nets, and closures during peak periods in some locations to avoid recreational conflict. Planning meetings would also occur before the fishing season begins to allow discussions among all resource users to ensure that commercial and recreational fishing can coexist with little to no conflict.
Would increased gill net effort in Grand Traverse Bay and the Leland area harm fish populations?
Under the proposed consent decree, the Tribal Lake Trout allocation in the Grand Traverse region would not increase. In fact, in Grand Traverse Bay it would likely decrease because of the end to a longstanding “transfer provision” in the 2000 Consent Decree, where any unused State allocation in one year is transferred and added to the Tribal harvest limit the following year. The harvest limit for Lake Trout in this area would be tied to a fisheries population model for the first time in nearly 20 years. The Grand Traverse Band has routinely caught its full harvest limit in Grand Traverse Bay on an annual basis, which has resulted in their fishery closing early in multiple years. Expanded opportunity for Tribal fishers in Grand Traverse Bay and the Leland area is of critical importance to the Tribe for cultural reasons. The areas of Grand Traverse Bay that were adjacent to the Tribe’s reservation lands and historical fishing villages had been off limits to them for decades. The Tribe’s desire to be able to fish with traditional gear in these areas would not result in any additional Lake Trout being harvested; it would simply spread the existing harvest over a wider geographical area, should the Tribe’s fishers choose to fish in these areas that would be newly opened to them on a seasonal basis. Regulations prohibiting the retention of sportfish would remain in place under the proposed consent decree.
Under the proposed decree, would walleye and yellow perch be able to be targeted in the Bays de Noc?
In Little Bay de Noc, commercial fishing of all types would still be prohibited under the proposed consent decree. There will also be more restrictions on the subsistence fishery than were in place under the 2000 Consent Decree. A new requirement for subsistence fishers to obtain a permit to fish during the spring walleye run would be in effect. In addition, each fisher would only be able to obtain 10 permits over a 30-day period. Permits would allow subsistence fishers to retain up to 20 fish per day, a simpler requirement compared to the 100-pound daily limit under the 2000 Consent Decree. Previously gill nets could be 300 feet in length; under the proposed decree, gill nets would be limited to 100 feet in length. In addition, subsistence fishers would report their catch weekly, rather than monthly, which should reduce recall bias and improve the accuracy of data.
In Big Bay de Noc, no commercial fishing for or retention of yellow perch would be allowed. Gill net fishing has occurred since 2017 in Big Bay de Noc as part of an effort to assess the impacts of gill fishing in this area. In the proposed decree, walleye could not be targeted by the commercial fishery, but could be retained when caught as bycatch in gill nets. (They could not be retained in trap nets.) Only 15 pounds of walleye per day could be retained between January 1 and May 14. To minimize walleye bycatch throughout the year, there would be depth restrictions in place. Gill nets would have to be set on the bottom in water no shallower than 50 feet, except between October 1 and November 6, when they could be set as shallow as 30 feet. The shallower restriction in the fall would allow for targeting of Lake Whitefish.
Would there be any oversight or enforcement of the harvest limits in the proposed decree?
After ensuring the resource would be protected, the second goal of the DNR during negotiations was to improve the accuracy and transparency of data reporting. The current reporting process of the 2000 Consent Decree is broken and doesn’t provide meaningful transparency, nor does it result in data sharing throughout the course of the fishing season that allows progress toward a harvest limit to be monitored in a timely manner. In the proposed decree, data would be entered by fishers electronically and would be automatically and transparently shared with the State twice per month. Everyone would know at the same time how harvest is progressing toward the harvest limit. The Parties have all clearly committed to manage their respective fisheries so as not to exceed their harvest limit. Given the commitments of the Parties and the data reporting procedures agreed to within the proposed decree, exceeding a harvest limit in a meaningful way could only occur intentionally. Concerns about fishers failing to report are unfounded, as there are many ways to determine who is fishing, when, and where. In the proposed decree, the State would retain the authority to enforce provisions of the Decree and the Tribal Code. Should a fisher repeatedly fail to report his/her catch, the State could take enforcement action.
How were sportfishing groups involved in negotiations, and did those groups get removed?
Beginning in fall 2019 through June 2022, representatives from the State negotiating team regularly met with attorneys and representatives from the amicus groups. These groups represented the interests of recreational anglers during negotiations. They were involved during negotiations in discussions about: the management framework for Lake Trout and Lake Whitefish; information sharing; allocation; closed areas; management of other species; and stocking, net marking, and gear usage in the Little Traverse Zone, Bays de Noc zone, western Lake Superior, the Little River Zone, and the Bay Mills Zone. The Parties and amicus groups were bound by a confidentiality agreement, which was necessary for productive talks. When the amicus groups sought to intervene and obtain party status in the negotiations, they violated the terms of the confidentiality agreement. All the parties involved – Tribal governments, the state government and the federal government – agreed that a violation of the confidentiality agreement occurred. As a result of that action, the State could no longer share confidential information with the amicus groups. In-person negotiations continued into August of 2022, and the State did not exclude the amicus groups from any discussions. The groups did not approach the State to provide any input or feedback during those negotiations. These groups have had a chance to file objections to the proposed decree with the court, and the Parties will have a chance to formally respond to their objections by early March 2023.
Why isn’t the Federal Magnuson-Stevens Act being used for management in the 1836 Treaty waters?
The Magnuson-Stevens Act (MSA), which was established in 1976 and most recently reauthorized in 2007, does not apply to Great Lakes waters. However, the Federal management system that implements the MSA has similarities to how the Parties co-manage the 1836 Treaty waters. While no fisheries management framework is perfect, we should take opportunities to learn from other areas and make improvements when possible. This is exactly what the Parties did when crafting the management framework for the proposed consent decree. Consultation occurred with Federal stock assessment scientists that manage some of the coastal commercial fisheries of the United States.
Aspects of the management framework in the proposed consent decree are the direct result of those recommendations from scientists who implement the MSA and include: 1) a more robust catch reporting system to improve the accuracy of data; 2) setting harvest limits for multiple years at a time, which allows more time for population models to be completed, reviewed, and documented; and 3) defaulting to a science-based harvest limit if agreement cannot be reached among the Parties on a harvest limit recommendation. The population modeling and harvest limit timeline of the 2000 Consent Decree was too short, which at times resulted in low confidence in the status of fish populations. The management framework in the proposed consent decree would improve upon the 2000 Consent Decree, incorporate lessons learned from Federal fisheries management, and would result in more accurate and defensible population models that will be used to manage Lake Trout and Lake Whitefish.