Mille Lacs walleye lawsuit: Court hears arguments
By Dave Orrick dorrick@pioneerpress.com
Thursday, Nov. 20, 2014 - 12:01 a.m.
An angler displays a walleye he caught during the 2013 fishing opener. (Pioneer Press file photo: Dave Orrick)
Has the Minnesota Department of Natural Resources violated the state constitution in how it regulates fishing for the state's most popular fish on one of the state's most popular lakes?
That's the question three Minnesota appellate judges are weighing after hearing oral arguments Thursday from attorneys for the state and groups of resort owners and anglers from Lake Mille Lacs who accuse the DNR of ignoring the state's "walleye heritage."
That heritage, the groups argue, is guaranteed by a constitutional amendment overwhelmingly approved by voters in 1988. The amendment states: "Hunting and fishing and the taking of game and fish are a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good."
It's a high-minded and novel legal approach to festering resentment over court-upheld American Indian rights to net fish in the massive lake, and a plummeting walleye population that led this summer to some of the most stringent fishing regulations since tribal netting returned in 1998.
Night fishing of any kind was banned during much of this year's open-water season, a blow not only to anglers but also to businesses that for decades have offered nighttime excursions on fishing boats for the often nocturnal fish. The possession limit was reduced to two fish between 18 and 20 inches, or one in that slot and one longer than 28 inches. The statewide walleye limit is six daily with no more than one over 20 inches.
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Supporters of the lawsuit -- many of them anglers, resorters and homeowners on the lake -- attended Thursday's hearing in St. Paul, observing the proceeding on TV screens in overflow rooms. Plaintiffs estimated 75 such people attended.
In public statements, legal filings and court arguments made Thursday, attorney Erick Kaardal, who represents the groups challenging the DNR, has attempted to downplay the role of tribal netting, which in the past has opened opponents to accusations of racism.
"This case is about the heritage related to Mille Lacs," Kaardal told the three-judge panel. He listed a host of embodiments of that heritage: "Cleaning fish, cooking fish, fishing, night fishing, ice fishing ... family ... economics ... the heritage of American Indians."
But opposition to the current netting regimen -- in which tribal members from parts of Minnesota and Wisconsin set gill nets in the shallows during the spring walleye spawning run -- looms large.
One of the plaintiffs, Save Mille Lacs Sportfishing, states the following on its website under the heading "The Solution": "The first obvious part of the solution is for the Minnesota DNR to insist that any and all walleye harvest during the spawning season comes to an end."
Linda Eno, whose husband Bill owns Twin Pines Resort and is a plaintiff in the suit, said outside court Thursday that the groups aren't trying to invalidate tribal rights to net walleyes, rights affirmed by the U.S. Supreme Court in 1999.
"We're not saying you can't net, but maybe net during a different time of year," Eno said.
The state, which co-manages the lake's total walleye kill with a group of Chippewa bands, has a court-endorsed ability to object to tribal netting for conservation reasons. But state biologists have insisted they have no such claim, for the following reasons:
Sport anglers -- nontribal Minnesotans and nonresidents who fish the lake with hook and line -- kill far more walleye than tribal nets, and even though tribal nets target walleyes during their mating cycle, the lake's walleyes are reproducing in near-record numbers. The problem, their research says, is that for a number of years, young walleye have failed to reach adulthood for reasons not fully understood.
The DNR is in the midst of several research projects aimed at better understanding the 128,000-acre lake, which has seen northern pike and smallmouth bass abundance increase as walleyes have declined, as well as significant improvements in water clarity and infestations of a number of aquatic invasive species. The agency also has opened its Mille Lacs policies to outside scrutiny, and observations from a panel of independent fisheries biologists is expected to be released in January.
DNR spokesman Chris Niskanen said outside court: "We are doing everything possible within our regulations, within our expertise, and within science to bring the best possible regulations and management to the lake."
Neither the ecology of the lake nor the effects of netting were discussed in court Thursday. Because the plaintiffs are challenging a rule-making process of a state agency, the case is being heard by the Minnesota Court of Appeals rather than a trial court.
Under questioning from the judges, Kaardal insisted his clients object to the process the DNR has used as much as they object to the results, and that their objections would be valid even if the lake were packed with walleyes and featured liberal bag limits.
Kaardal's legal argument was based on the lack of stated credence by the DNR to fishing heritage in more than 10,000 pages of DNR reports, regulations and discussions regarding Mille Lacs management.
He faced stiff questioning from Judge Natalie Hudson, who presided Thursday and pressed Kaardal on how lip service to the constitutional amendment would have changed any of the DNR decisions.
"It seems to me they've done what they can to preserve and protect the walleye," Hudson said, noting that fishing hasn't been banned outright. "What would you have had them do?"
Kaardal responded that the amendment requires consideration of fishing heritage akin to how certain environmental laws require formal environmental impact statements. Hudson responded that no such heritage-study requirements are articulated in Minnesota statute, as EIS work is, a point not contradicted by Kaardal.
That was a key point for Assistant Attorney General Oliver Larson, who represented the DNR on Thursday and called Kaardal's notion that the agency must explicitly account for fishing heritage a "bureaucratic hurdle."
Judge Larry Stauber Jr. questioned that.
"What's wrong with going back to the constitution and moving forward from there?" he asked.
Larson responded that it would require the DNR to create formal fact-finding procedures for all sorts of constitutional guarantees, such as the principal of equal protection, when it's already implied that state laws and authorities already comply with the constitution. The heritage amendment didn't negate any existing laws, procedures or authorities, he said.
"Well, that's like a Miranda warning," Senior Judge David Minge suggested, referring to the compulsory statement of rights spoken by police officers when making an arrest. "It's boiler plate, but it's done all the time."
The panel has 90 days to render a decision.
Dave Orrick can be reached at 651-228-5512. Follow him at twitter.com/OutdoorsNow.
