Case 2:73-cv-00026-PLM Doc #1678 Filed 11/03/05 Page 1 of 3 Page ID#963
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF MICHIGAN
`NORTHERN DIVISION
`_____________________
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`UNITED STATES OF AMERICA,
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` Plaintiff,
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`and
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`BAY MILLS INDIAN COMMUNITY,
`SAULT STE. MARIE TRIBE
`OF CHIPPEWA INDIANS,
`GRAND TRAVERSE BAND OF
`OTTAWA AND CHIPPEWA
`INDIANS, LITTLE RIVER BAND
`OF OTTAWA INDIANS, and
`LITTLE TRAVERSE BAY BANDS
`OF ODAWA INDIANS,
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` Plaintiff-Intervenors/Counter-Defendants,
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`v.
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`STATE OF MICHIGAN, et al.,
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` Defendants/Counter-Claimants.
`___________________________________/
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`Case No. 2:73-CV-26
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`Hon. Richard Alan Enslen
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`ORDER
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`This matter is before the Court on Proposed Intervenors Michigan Fisheries Resource
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`Conservation Coalition, Stuart Cheney, Robert Andrus and the Walloon Lake Trust and Conservancy’s
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`Renewed Motion to Intervene. This Motion has been throughly briefed by the parties. Oral argument
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`is unnecessary and would unduly delay the resolution of the Motion.
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`Proposed Intervenors seek intervention after a recent Sixth Circuit Court of Appeals’ decision
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`affirming an earlier Order denying them intervention under both Federal Rule of Civil Procedure 24(a)
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`(intervention of right) and 24(b) (permissive intervention). See United States v. Michigan, 424 F.3d
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`438, 443-45 (6th Cir. 2005). The Court of Appeals, as stated therein, understood the pertinent legal
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`Case 2:73-cv-00026-PLM Doc #1678 Filed 11/03/05 Page 2 of 3 Page ID#964
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`issue raised by the pleadings as whether “with the exception of certain federal lands that have never
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`passed out of federal control, the Tribes’ treaty-reserved rights [under Article 13 of the 1836 Treaty
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`of Washington] to hunt and fish outside the Great Lakes has ceased to exist.” Id. at 444. The Court
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`of Appeals viewed intervention as currently improper because it would “prematurely . . . interject
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`management and regulatory issues . . . .” Id. at 445. This decision, however, expressly reserved the
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`Proposed Intervenors’ rights to seek later intervention at such time as the scope of the Tribes’
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`usufructuary rights would be at issue. Id. at 446.
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`The ink was just dry on that Opinion when Proposed Intervenors filed their Renewed Motion
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`to Intervene with this Court on September 29, 2005. The Renewed Motion inquires whether
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`usufructuary rights have been made an issue because of expert reports discussing usufructuary rights
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`and discovery responses discussing usufructuary rights. Nevertheless, even in filing the Renewed
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`Motion, the Proposed Intervenors do not seek to intervene provided that the scope of the case is not
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`expanded beyond the narrow legal question originally presented (i.e., whether the Treaty right to fish
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`and hunt on state-owned lands and private lands, other than retained federal lands, has been
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`extinguished because, under the Treaty language, the lands were “required for settlement.”) (Renewed
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`Mot. ¶ 8.)
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`This Court concurs with the United States’ fine Memorandum in Opposition. The scope of this
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`suit has not recently changed. The pleadings remain the same and remain focused on the legal meaning
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`of the “required for settlement” clause. This narrow legal question does not involve any definition of
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`the particular usufructuary rights of the Tribes, even though the historical question of the meaning of
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`This was significantly before the mandate in the Court of Appeals’ case (case no. 04-
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`1864), which issued on October 17, 2005.
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`Case 2:73-cv-00026-PLM Doc #1678 Filed 11/03/05 Page 3 of 3 Page ID#965
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`the “required for settlement” clause will occur in a context in which actual land usage is likely to form
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`a part of the record for an interpretation of the Treaty language. This does not, however, connote any
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`departure from the narrow legal undertaking presented by the pleadings. As such, there has been no
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`change since the filing of the Court of Appeals’ decision and such decision remains the binding law
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`of the case on this issue. See Hanover Ins. Co. v. Am. Eng. Co., 105 F.3d 306, 312 (6th Cir. 1997).
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`THEREFORE, IT IS HEREBY ORDERED that Proposed Intervenors Michigan Fisheries
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`Resource Conservation Coalition, Stuart Cheney, Robert Andrus and the Walloon Lake Trust and
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`Conservancy’s Renewed Motion to Intervene (Dkt. No. 1643) is DENIED.
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`DATED in Kalamazoo, MI:
`November 3, 2005
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` /s/ Richard Alan Enslen
`RICHARD ALAN ENSLEN
`SENIOR UNITED STATES DISTRICT JUDGE
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`The Court assumes, as did the Court of Appeals, that should this suit progress to a later
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`phase involving the parsing of particular rights and management of lands, then all parties
`interested in such determinations (including Proposed Intervenors) would be permitted to
`intervene.
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