First, some history is in order. The Federal Wild and Scenic Rivers Act (Public Law 90-542) was enacted in 1968. In that law, eight rivers (not the Au Sable) were designated as components of the national wild and scenic river system. Twenty-seven additional rivers (the Au Sable continued to be excluded but Michigan’s Pere Marquette was on this list) were listed as candidates. In subsequent years this law has been amended 37 times adding rivers and other provisions. As of a year ago, 156 rivers or river segments (10,931 miles) have been designated as Wild and Scenic by Congress and/or by The Secretary of the Interior. The study and hearings for the Au Sable took place in 1979. The final report from the U.S. Forest Service recommended that 74 miles of the Au Sable be added to system: 35 miles from Interstate 75 to the Mio Pond boundary; 23 miles from Mio Pond Boundary to Alcona Pond Boundary; 16 miles from Chase Bridge on the South Branch to the Mainstream. Because of the heated opposition to these designations from many sources, including official Michigan sources, only the 23 miles below Mio were added in October, 1984 (Public Law 98-444).
Following the lead of the U.S. Congress, the Michigan State Legislature passed the Natural Rivers Act of 1970 (Act 231) which went into effect in 1971. Sixteen years later the Au Sable Natural River Plan was adopted by the Natural Resources Commission and the river was then designated as a Wild-Scenic River. The Michigan designation included virtually the complete river system, 349 miles of stream, including many tributaries, to Loud Dam. In researching this report I noted that Act 231 has been recently incorporated into the Michigan Natural Resources and Environmental Protection Act, 1994, Public Act 451, Part 305. Michigan currently has fourteen designated State Natural River systems encompassing 1,698 miles of streams.
At our December board meeting, the current administrator of the Natural Rivers Plan, Dan Pearson, was invited to discuss the Natural Rivers Act and how it applied to the control and usage of watercraft, especially commercial canoes, on the Au Sable.
Mr. Pearson first distributed a handout that contained, in addition to relevant sections of the Natural Rivers Act, a letter from George Burgoyne to Mark Pattullo, the owner of the Parmalee Trading Post, a livery that has begun its operation since the Natural Rivers Act went into effect.
The relevant portions of the letter to Mr. Pattullo, dated May 20, 1998, read as follows:
"On March 16, 1998, you and Dan Pearson, State Natural Rivers Program Coordinator, discussed your proposal to resolve the issue of Parmalee Trading Post’s status outside the limits of section F.2.d of the 1987 Natural Rivers Plan which states, in part, that ‘New canoe liveries, expansion of existing canoe liveries, or expansion of commercial launching or retrieval of watercraft in the designated portions of the river system shall be prohibited.’ You had been previously notified that since your livery operation was initiated in 1997, the Parmalee Trading Post is considered to be [a] new livery for the purposes of the plan. As such the Parmalee Trading Post livery was not permitted to use State-owned public access sites on the designated portion of the Au Sable for launching and retrieval of commercial watercraft."
"I [now] understand that you proposed purchasing the business and all commercial watercraft currently associated with Wyandotte Canoe Livery, which has operated on the designated portions of the Au Sable since prior to 1987. We agree that this would be considered a transfer of ownership of an existing livery, not creation of a new livery. As a result, the Parmalee Trading Post livery would then be authorized to launch and retrieve from state access sites the number of commercial watercraft that were registered to Wyandotte Canoe Livery."
"Our records indicate that Wyandotte Canoe Livery had 25 commercial watercraft registered in 1987 and 35 registered in 1992. If you have records indicating that Wyandotte had more watercraft registered during those years, please provide those records to Mr. Pearson. The Dept. of Natural Resources will be working with the canoe liveries and other interested parties to determine the best method of implementing provisions of the 1987 Au Sable River Natural River Plan regarding expansion of existing canoe liveries/ commercial launching or retrieval of watercraft."
(Passages highlighted for emphasis.)
Parmalee purchased Wyandotte in April, 1998, even though it had been putting canoes in the river in 1997. Since Wyandotte had 25 canoes registered in 1987 (Parmalee had none in 1987) and Parmalee now has 50 or more registered, the increase of registered canoes has been 100 percent.
We wanted to know why is this allowed? What, if anything, is the DNR going to do about it? Why is the DNR not using the Natural Rivers Plan to enforce the Michigan Natural Rivers Act?
In the discussion with Mr. Pearson, the answer to the first question was, in my opinion, evasive. The answer to the second question was nothing at all. The answer to the third took up the remainder of the hour.
To begin, the Anglers Board, about a year or so ago, had the previous administrator at a board meeting. (As a matter of fact, the administrator before her was also present and discussed the Act and the Plan at a board meeting a few years ago.) She told us in no uncertain words that the DNR would enforce the provisions in the Natural Rivers Plan regarding the expansion of liveries and use of commercial canoes on the river. Her position completely supported the position of Mr. Burgoyne in the letter to Mr. Pattullo.
First, let’s look at the letter carefully and especially at the highlighted portions. The letter refers to the Natural Rivers Plan, Section F.2.d (p.36 of the Plan), and I repeat: "New canoe liveries, expansion of existing liveries, or expansion of commercial launching or retrieval of watercraft in the designated portions of the river system shall be prohibited."
(My emphasis.)
Remember--not only new liveries or expansion of existing liveries--but also the expansion of commercial launching or retrieval of watercraft shall be prohibited. Moreover, Burgoyne’s letter also states that Parmalee was not permitted to use State-owned access sites on the Au Sable for launching or retrieval of commercial watercraft. In the second paragraph of the letter, Mr. Burgoyne now considers the purchase a transfer and thereby not a new livery under the Plan and thereby authorizes the launch and retrieval of commercial watercraft from state access sites, but limited to the number that were registered to Wyandotte Canoe Livery.
In this letter, acting in behalf of the State, Mr. Burgoyne is "owning up to its responsibility to enforce the Natural Rivers Act through the Plan (as stated in F.2.d), which has implications for all commercial watercraft use on state access sites on the Au Sable Natural River area," according to Rusty Gates, President of the Anglers.
I completely agree. But evidently John Robertson, Chief of the DNR’s Forest Management Division, does not. In a letter to Mr. Dallas, former President of the Paul Young Chapter of T.U. and ardent advocate of the river, Mr. Robertson states in a more recent letter of October 1999:
...The DNR has many goals related to management of the Au Sable system. Several of these goals are outlined in the Natural River Plan. Implementation of the Plan is in the form of local and State zoning ordinances and rules, rules for utilities and publicly provided facilities and management of public lands in the Natural River District. The Plan itself does not have the force of law.
You will note that there are recommendations in the Plan regarding commercial watercraft liveries. A key to implementation of these recommendations is described in paragraph T.6 on page 43 of the plan, "Recreational Controls." As stated in this paragraph, "the limit of the statutory authority for controlling recreational use of Michigan’s waterways has not been clearly defined either through the judicial system or by the Michigan Legislature." The DNR is attempting to help define that authority through consolidation of the various administrative rules governing commercial and recreational use of State lands.
The DNR will be working with area liveries to develop a voluntary method of mitigating the impacts of commercial watercraft use on the system’s many valuable resources. We hope this will result in a cooperative effort to protect the river system for present and future generations to enjoy.
(Passages highlighted for emphasis.)
The first highlighted sentence is crucial. Robertson tells Dallas the implementation of the Plan (I suspect he means Act) is in the form of local and State zoning ordinances and rules and other miscellaneous rules such as those for utilities, etc., and then adds that the Plan does not have the force of the law, which implies it is irrelevant.
Where is Mr. Robertson coming from? The Plan, assembled by the DNR, was approved by the Natural Resources Commission (NRC) on July 10, 1987 to designate the Au Sable as a Natural River and to enforce the Natural Rivers Act for this river. The commissioners at that time were Thomas J. Anderson, Marlene J. Fluharty, Kerry Kammer, O. Stewart Myers, David D. Olson, and Raymond Poupore.
Later that same year, many of these same commissioners approved no-kill on the Holy Water, in spite of the opposition of the DNR, thereby enforcing the Commission’s right to promulgate rules to enforce the law passed by the Michigan Legislature regarding quality fishing waters.
Does Mr. Robertson hold that the approval of the NRC on no-kill on the Au Sable is subservient to the local and State zoning ordinances and other miscellaneous rules that he might or might not cite?
I don’t believe he would want to go before the NRC and tell this commission that what it does lacks the force of the law.
Mr. Robertson then adds a kicker. He notes there are recommendations in the plan regarding commercial watercraft liveries but he cleverly neglects to quote the passage. (See the reference to F.2.d in Burgoyne’s letter above.) He boldly suggests that the DNR, which is enforcing such laws, really doesn’t know what it’s doing, that laws haven’t really been defined by anybody or any important body, and that it is attempting to define that authority. Now, we all know that the NRC approved the Au Sable Natural Rivers Plan in 1987.
What have Mr. Robertson and the DNR been doing for the past twelve years? The "canoe problem" has been with us for many decades, as Mr. Robertson well knows. And the only solution he is able to propose is that "The DNR is working with area liveries to develop a voluntary method of mitigating the impacts of commercial watercraft use ..."
We now should go back to the discussion with Mr. Pearson. Though there is nothing in the National Rivers Act itself that is related to the regulation of commercial canoeing (there are as we have seen the relevant paragraphs) in the Natural Rivers Plan formulated by the DNR in response to the Act.
How important they are may be subject to an informed legal opinion and, possibly, a judicial interpretation and decision, undoubtedly in the distant future--if it is left to the present administration and the DNR. The implication is that there must be some action taken by some "outside" body to force an informed legal opinion. (This "outside body" may well have to be a coalition of interests such as TU, FFF, and The Anglers.)
New canoe liveries or expansion of liveries that lie within the 400-ft. zone of the Natural Rivers District are obviously prohibited by the Plan. It seems, however, the DNR does not really know how to enforce this part of the plan. In my opinion the present administrators of the Natural Rivers Act believe they need additional law to enforce any such directives in the Plan. They believe that all canoe liveries that lie within the Natural Rivers District (NRD) can expand easily by locating facilities outside the district. (It should be noted that most canoe liveries already lie outside the Natural River District, i.e. outside the 400-ft. zone, or they lie within the confines of the city of Grayling and Roscommon, or even Mio which are deemed by law outside the NRD.)
Furthermore, we received the impression that, given the climate in the state, including legislative and judicial as well as the laissez faire attitude of the present administration, there isn’t any heart or courage to enforce the law, or even to find out if they can or should. For example, since the DNR administrators are not attorneys they should ask the Attorney General for a legal opinion. We don’t believe they have done so nor do they have any plan to do so. If they had they would have done it long ago and this opinion would be in the public record. They’ve had twelve years, haven’t they?
It is our understanding that the DNR holds there is nothing in the Act or the Plan that prohibits the establishment of new canoe liveries outside the NRD or the expansion of canoe liveries physically located outside the NRD. This may be true, but either of these ventures would be a hopeless endeavor if the DNR would simply enforce the mandate given it, i.e., the expansion of the numbers of watercraft launched or retrieved within the NRD.
According to Mr. Pearson, the relevant statement in the Plan only encourages "local units of government" to "examine closely the effects [that] such use [i.e., new canoe liveries or expansion of present liveries] will have on the natural qualities of the Au Sable River system ..."(p.36, Industrial and Commercial Structures and Uses).*
Now, to me, that is sort of a hopeless wish, isn’t it?
Mr. Pearson seems to believe that he, as the administrator of the Natural Rivers Plan, has the power to do nothing about the expansion of canoe liveries or the establishment of new liveries. He either implies or explicitly states that canoe usage can be regulated only by a permit system which limits the number of permits using state land (i.e. access sites) to the number of canoes which the liveries had registered in 1987.
However, it is my opinion he doesn’t believe this will be done within the present political climate. In other words, and I emphasize in my opinion, Mr. Pearson doesn’t believe in the mandate given him by the NRC in its Plan, or he is afraid of using this mandate, or he has been prohibited from using it.
(The regulation of usage of access sites is the approach the U. S. Forest Service uses to control numbers on the Pine, the Pere Marquette, and below Mio.)
Moreover, Pearson cites, as did Robertson, a passage in the Plan: "The limit of the statutory authority for controlling recreational uses of Michigan’s waterways has not been clearly defined either through the judicial system or by the Michigan Legislature. When it is determined that the Department of Natural Resources has such authority, the Department shall initiate such controls as necessary over the numbers, timing, location, and conduct of river users." (p.43, Recreational Controls)*
As I suggested earlier, we must not forget that this Plan was written twelve or more years ago. The DNR surely by now should have made some attempt to find out if it has such authority.
We can only conclude that because of the lack of initiative by the DNR, any controls of canoes on the Au Sable, like numbers, timing, etc., and other regulation of watercraft on the Au Sable such as use and size of motorized craft, the use of tubes, jet skis, etc., must be exercised by local government units in accordance with Act 303, P.A. 1967, the Marine Safety Act,* or by some legal action taken by someone outside the government body.
In early 1992, the Anglers, Trout Unlimited, the Au Sable Property Owners Association, and four canoe liveries, under the auspices of the Grayling Chamber of Commerce adopted a watercraft controls resolution that contained appropriate, conservative, watercraft controls in Crawford County. This resolution, after serious and concerned debate recommended the prohibition of (1) the "rafting" of watercraft, (2) the possession of glass beer containers and beer kegs on or attached to any watercraft, (3) use of jet skis, water sleds, or air boats within 100 feet of the shoreline, (4) use of gasoline motorized watercraft on the North Branch, the South Branch and the Mainstream above Wakeley Bridge, and (5) the use of any rental tube or flotation device unless the tube or device is registered with the state.
This resolution was sent to the DNR Director who promised careful attention and immediate response. I have long despaired over the past seven years about it being lost in some black hole in Lansing. Apparently it was ignored because any such resolution when codified into law would apparently have to be done in accordance with the Marine Safety Act.
In other words it would have to be considered a safety issue and in Lansing none of the above concerns are considered related to safety. Sometimes, I think we are in a Catch-22 situation with regard to any controls on watercraft, and that may include any regulations on numbers and timing.
In summary it seems this is where we are at: watercraft won’t be regulated in any way on the river by the DNR according to Mr. Pearson and to Mr. Robertson unless it is related to safety. The Natural Rivers Act in this regard seems to be worthless, at least to the present thinking within the DNR.
I don’t think it is. I believe that the Plan promulgated by the NRC has standing and gives the DNR the authority of its provisions. I believe that the previous administrators and Mr. Burgoyne are correct. The Plan is the law until the NRC overturns it or until the Legislature revokes it. Neither has happened.
Is there anything we can do now? I agree with Rusty Gates. I believe that Mr. Burgoyne was trying to enforce the Natural Rivers Act because he knew then (1998) he could do it. We should follow the directions given by him in this letter. The Parmalee Canoe Livery should be restricted to the numbers that Wyandotte had in 1987 and that includes not only canoes but also tubes and kayaks, and even pontoon boats, which I understand the owner tries to rent and put on the river. Or any other damnable vessel the owner can dream up. All should be counted toward the allowable number, which is 25.
We may need a legal interpretation of this, possibly from the Attorney General’s office. We shouldn’t need it but it’s about time somebody asked for it.
So what can we do? Well, first we can start writing letters to the right people. To the Attorney General, Jennifer Granholm. To John Robertson. To George Burgoyne. To Dan Pearson. One letter would be fine to one of the above. Send copies to the others. (The addresses, phone numbers, and email addresses follow.) If these don’t get action we will then need to consider legal action to force the DNR to take action.
Note: * from the Natural Rivers Plan
Contacting the DNR
The Director of the DNR is K.L. Cool
. Address:
K.L. Cool
Director
Department of Natural Resources
Stevens T. Mason Building
P.O. Box 30028
Lansing, MI 48909-7528
George Burgoyne reports to the Director, K.L. Cool
Address:
George Burgoyne, Jr.Telephone: 517-373-0046
Resource Management Deputy
Department of Natural Resources
Stevens T. Mason Building
530 W. Allegan St.
P.O. Box 30028
Lansing, MI 48909-7528
John Robertson reports to George Burgoyne
Address:
John M. RobertsonTelephone: 517.373.1275
Forest Management Division Chief
Michigan Department of Natural Resources
Forest Management Division
P.O. Box 30452
Lansing MI 48909-7952
Dan Pearson reports to John Robertson
Address:
Dan PearsonTelephone: 517.335.3441
Natural Rivers Program Leader
Michigan Department of Natural Resources
Forest Management Division
PO Box 30452
Lansing, MI 48909-7952
The Director of the DNR reports to the Natural Resources Commission.
Members of the NATURAL RESOURCES COMMISSION:
Jerry Bartnik
153 E. Temperance Rd.
Temperance, MI 48182
Telephone: 734-847-8691 (home)
Keith J. Charters*
126 Spring Hill Road.
Traverse City, MI 49686
231-947-3845 (home)
231-947-7566 (office)
Nancy A. Douglas
P.O. Box 427
105 Tenth Avenue
Menominee, MI 49858
906-864-2201 (home)
906-863-2679
L. Thornton Edwards, Jr.
510 W. Huron
Pontiac, MI 48341
248-338-3943 (office)
Paul Eisele
21001 Van Born
Taylor, MI 48180
313-944-3616 (home)
313-792-6031 (office)
Bob Garner
P.O. Box 984
Cadillac, MI 49601-0984
231-779-9866
William Parfet
MPI Research
54943 N. Main Street
Mattawan, MI 49071
616-668-3336 (office)
Ms. Jennifer M. Granholm
The Attorney General of Michigan
G. Mennen Williams Building, 7th Floor
525 W. Ottawa St.
P.O. Box 30212
Lansing, MI 48909
Main Number (517) 373-1110
The Legal Advisor to the NRC and to the DNR is:
A. Michael Leffler
Asst. Attorney General
Natural Resources Division
Knapps Office Centre, Suite 530
300 S. Washington
P.O. Box 30212
Lansing, MI 48909
(517) 335-1488
(517) 373-1610 (Fax)
To contact the NRC in general:
Department of Natural Resources
Executive Division
Attention: Teresa Gloden
P. O. Box 30028
Lansing, MI 48909
517-373-2352
517-335-4242 (Fax)
Email: glodent@state.mi.us
RWOL
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