Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Department of Natural Resources, Township of Leland Village of Northport

RYAN, Circuit Judge,

dissenting.

In my judgment, the Grand Traverse Band of Ottawa & Chippewa Indians is not entitled to moor its fishing vessels at the marinas at Leland or Northport either by virtue of the Treaties of 1836 and 1855, or by virtue of the consent judgment between the tribe and the State of Michigan. Therefore, I respectfully dissent.

The GTB’s brief repeatedly makes the following statement: “In order to have access to the fishing opportunities” to which they are undeniably entitled, the “GTB must be able to utilize mooring slips at the Leland and Northport marinas, because no other access exists____” (Emphasis added.) If this proposition is an abbreviated syllogism, it is an invalid one: the term “access” simply does not denote “mooring.” I do not dispute that in order to carry on its commercial fishing business, the GTB must use vessels that cannot be trailered; nor do I dispute that in order to use these vessels, the operators must be able to moor them occasionally at a marina. But, rather plainly, it does not follow that the tribe’s need for marina facilities creates a right to use Leland’s or North-port’s marinas. Perhaps the State of Michigan is obligated to build the GTB a marina; perhaps the GTB must build its own marina; I offer no opinion about these matters. But certainly the GTB’s need of a marina does not give rise to an obligation on the part of Leland or Northport to provide one.

Even the solemn business of interpreting age-old treaty obligations requires the application of some common sense. With all due respect, I fail to see the common sense in construing 1885 Indian fishing rights treaty obligations as including the right to moor commercial fishing vessels in municipal marinas built more than a hundred years later.

The GTB did not use the marinas before the incidents leading to this lawsuit. While the tribe suggests that its enjoyment of its fishing rights was imperfect during this period because it could not dock its boats anywhere, it makes no claim that the building of the marinas had any adverse effect on its rights. Thus, the construction of the marinas certainly did not impede access to the fishing grounds, or make access in any sense more difficult; in fact, the existence of the marinas does not interfere with the GTB’s access one whit. Likewise, the GTB does not claim it was entitled, either as an incident of its treaty rights or as an incident of the consent order between it and the State of Michigan, to have Leland, Northport, or anyone else build marinas for its use. The GTB’s argument is simply that now that the marinas do exist, it must be permitted to moor there because mooring is an incident of its right of access to the fishing grounds. Presumably, since the GTB has a right of access to the waters of Lake Michigan over virtually all of the shoreline (“every piece of land”) of the Leelanau Peninsula, the tribe has a corresponding treaty right to moor its boats at every marina to be built hereafter at any location on the shoreline. But that, of course, is absurd.

To me, the fact that using the Leland and Northport marinas would make the GTB’s indisputable right of access to Lake Michigan more convenient proves nothing. The municipalities make a persuasive analogy: When a landlocked estate has an implied access easement over a servient estate, that means the landlocked-estate’s owners may use a road over the servient estate. And if the road is originally dirt but is paved by the servientestate’s owner, the landlocked-estate’s owner may continue using the road, in its new improved state, and is not required to pay for that improvement. But if the servient-estate’s owner builds a garage next to the road, the landlocked-estate’s easement over the road does not now give rise to a right to spend the night in the garage, no matter how sympathetic the circumstances. Even if the landlocked-estate’s owner has been ordered by a court in an unrelated matter not to use a ear, and therefore has to walk down the road, and the road is long, and he occasionally gets very tired or caught in a rainstorm while walking down the road, he still is not entitled to take shelter in the garage.

At bottom, my objection is simple. The building of these marinas did not change anything about the GTB’s access rights; the marinas neither increased nor decreased the GTB’s ability to access the fishing grounds in question. The responsibility for an absence of modem, efficient, and meaningful “access” cannot be laid at the door of Leland and Northport, and therefore, they are not required to ameliorate the problem by allowing commercial fishing vessels to moor at the marinas they built for the exclusive use of recreational vessels.

I would reverse.