Judge dismisses one count against fish hatchery operator, allows pollution claim to move forward
Dan Sanderson | Staff Writer
A circuit judge ruled that part of a lawsuit alleging a fish farm is polluting the AuSable River could move forward, but declined to address the legality of a contract between the fish hatchery operator and Crawford County.
Dan Vogler, co-owner of Harrietta Hills Trout Farm LLC, which has operated the Grayling Fish Hatchery for the last five years, said those that oppose his plans to run a commercial fish farm on the hatchery property should hold off on any celebrations.
In his ruling issued on Oct. 13, Chief 46th Trial Court Judge George J. Mertz dismissed a count filed by the Anglers of the AuSable alleging a statute that transferred the fish hatchery from the state to Crawford County was being violated.
The Grayling Fish Hatchery was built in 1914. The Michigan Department of Natural Resources (DNR) operated the fish hatchery from 1925 to 1964. In 1995, the DNR sold the hatchery to Crawford County pursuant to 1994 Public Act 321. The statute said the property shall be used for public recreation and museum purposes.
Mertz said the only language regarding enforceability of the public act grants the state the ability to take specific action, not any private citizen or group. The Anglers based their claim on public access and use, arguing that the property is only open for access between May and September. They also claim that fences placed upstream and downstream from the hatchery raceways limit anglers’ access to fish on the East Branch of the AuSable River.
“There is nothing in the statutory scheme that would imply that the legislature meant to allow for any party other than the state to seek relief,” Mertz wrote in his opinion. “More importantly, because the plain language of the statute provides for a specific enforcement mechanism that places the responsibility for upholding the law exclusively with the state, this court cannot infer a private right of action for the plaintiff.”
The Anglers contend that citizens can enforce the right to enjoy public resources is a violation of the deed, which transferred the property from the state to the county.
Mertz ruled that the Anglers of the AuSable do not have legal standing and do not qualify as a third party to challenge the deed restrictions.
“This court’s ruling makes moot the question of whether the activities engaged in by the defendant on the property are actually a violation of the statute or the deed restrictions,” Mertz wrote. “Although it does not affect the court’s ultimate ruling, this court nonetheless is compelled to address that issue as it sheds further light on the court’s view that the state is the only party with the ability to require adherence to the use restrictions.”
However, Mertz said the court would find that there is no question of fact that the operation of a private commercial fish farm on the property clearly violates the statute and the deed restrictions. In addition, he said it was clear that the intent of the state in granting the property to the county was that it remain open to and used for the benefit of the general public for recreation, fishing, and historical purposes. Finally, Mertz said that there is no language in any of the documents that suggests that either party contemplated that the property would be used for a private commercial enterprise of any kind.
Instead, Mertz said the state is the only party with legal ability to enforce the use restrictions, and the state failed to insist on the preservation of the property for the public by allowing a use that is in direct conflict with the grant of the property to the county.
“The county and defendant are only doing what the state in essence has allowed them to do,” Mertz wrote. “However, for better or for worse, that prerogative was reserved by the state in the statute and the deed, and the court has no basis in law to circumvent the exercise of that prerogative in the contest of a lawsuit between this plaintiff and defendant.”
In May 2012, the Harrietta Hills Trout Farm and the Crawford County Board of Commissioners entered into a contract for the operation of the Grayling Fish Hatchery, to keep the 103-year-old community attraction open to local residents and tourists. Before entering into the contract, the Grayling Recreation Authority informed county officials that it no longer wanted to oversee fish hatchery operations because it was a financial loss.
The DNR approved a Memorandum of Understanding for the continued operation of fish hatchery to keep the landmark property open to local citizens and as a tourist destination.
A National Pollutant Discharge Elimination System permit was issued by the Department of Environmental Quality (DEQ) on July 1, 2014, since Harrietta Hills plans to increase trout production from 20,000 per year up to 100,000 per year.
Harrietta Hills hopes to gradually increase production to levels where 300,000 pounds of trout are produced per year, but all of the trout will not be in the hatchery’s raceways at one time since they will be removed and harvested once they reach 1.25 pounds. Millions of gallons of water from the river flow through the hatchery daily, which then discharge back into the river with uneaten fish food and fish excrement.
The Anglers, as part of the same lawsuit, state that provisions of the Michigan Environmental Protection Act are being violated by the operation of the fish farm because the farm is and will continue to pollute and impair the AuSable River.
Mertz said a circuit court has the power to review standards set by the DEQ and determine whether they are in compliance with the common law of environmental quality. He added that because the circuit court has the ability to review pollution control standards set by the DEQ and to find them deficient, the court can likewise find that the Anglers have established a claim for a violation regardless of whether the DEQ has issued a permit or whether Vogler has complied with it.
Mertz noted that established case law precludes local governments from enacting their own environmental regulations, ensuring they are consistent across the state.
“The court held that to do so would allow a patchwork of regulations statewide and noted that the subject matter of water quality required exclusive state regulation in order to achieving uniformity,” Mertz wrote.
Administrative Law Judge Daniel L. Pulter released his proposed recommendations for the discharge permit on Feb. 1 of this year. In July, DEQ Director Heidi Grether delayed making a final decision on the permit, asking Pulter to address whether Harrietta Hills Trout Farm should have to monitor fish for whirling disease.
Whirling disease is a parasitic condition affecting fish, primarily rainbow trout. The water-borne parasite (Myxobolus cerebralis) may not directly kill trout, but fish heavily infested can become deformed or exhibit the erratic tail-chasing behavior from which the disease gets its name.
Vogler rears rainbow trout at the hatchery. Brown trout and brook trout are native to the AuSable River, although rainbow trout have been placed in the river by the DNR from state-operated fish hatcheries.
Grether has not made a final decision on the permit, which the Anglers vow to contest further.
Meanwhile, the war of words outside of the courtroom continues.
In a press release, the Anglers claim that they have obtained a win since Mertz is allowing part of the lawsuit to move forward.
“Anglers is pleased that Judge Mertz is allowing us to submit evidence that will clearly show how the Harrietta Hills Fish Farm is violating the Michigan Environmental Protection Act,” said Tom Baird, chairman of the Anglers of the AuSable legal committee. “The DEQ permit allows the hatchery to discharge massive amounts of fish feces and partially decomposed fish food into the East Branch near its confluence with the main branch. We believe the pollution has already decreased water quality, encouraged algae growth, and very well could result in the spread of diseases, including whirling disease, in AuSable trout.”
In a prepared written statement, Vogler said the judge’s decision was favorable for the fish hatchery.
“Contrary to some media reports, the decision last week by the Crawford County Circuit Court is a significant legal victory for the Grayling Fish Hatchery. The judge dismissed one of the two counts brought against us by the Anglers on the basis that the Anglers do not have standing to bring a suit against us for alleged violations of deed restrictions,” Vogler said. “As such, the judge did not conduct a hearing, receive evidence or hear testimony regarding this allegation beyond the issue of whether or not the Anglers have standing in the case. Therefore, any additional comments from the judge regarding this issue are pure conjecture and have no bearing on the case.”
Baird said the Anglers will ask the Michigan Attorney General’s Office and the DNR to enforce the statute and deed restrictions to block plans for the fish farm to continue.
“Anglers of the AuSable is prepared to continue its fight against pollution by this fish farm in every possible venue,” Baird said.
Vogler maintains that proper restriction and monitoring of his operations at the fish hatchery will not degrade the river.
“As was already found by the Administrative Law Judge in the first case, our farm is not causing harm to the AuSable River now, nor will it in the future. A full hearing of the remaining count in this suit will likewise demonstrate this and we will be ultimately vindicated,” Vogler said. “We are committed to responsible aquaculture practices and our small family farm will continue to grow sustainable, healthy, and affordable rainbow trout for Michigan’s hard-working families to enjoy.”