Tom Gorenflo, COTFMA

Tom Gorenflo, COTFMA Tom Gorenflo speaks about the evolution of COTFMA (Chippewa/Ottawa Treaty Fisheries Management Association), treaty rights and natural resources management particularly in Michigan and Wisconsin. My name is Tom Gorenflo. I work for the Inter-Tribal Fishers Program, which is a biological arm of the Chippewa/Ottawa Treaty Fishery Management Authority. My job as program director is to direct the staff and to represent the tribes in a variety of intergovernmental agencies and help coordinate research in our department. We have staff who take various responsibilities in research, harvest statistics, sampling of treaty commercial fisherman, also to oversee the operation of the fish hatchery -- we have a walleye hatchery. The Chippewa/Ottawa Management Authority, called COTFMA, was organized in 1981. Our biological program began slightly before that time but really began about that time as well. In terms of the changes that have occurred, we've had a multitude of changes. Regulations have changed. The tribes are selfregulatory, I'm not sure if that is understood. They do regulate independent of state DNR, but yet we work very closely with the state DNR on research and assessment projects. I'm trying not to ramble on too much here. The federal district court in 1979 affirmed the tribes right to self regulate and to fish with traditional gear, which was gill nets, which was in direct opposition of the state. All the state was managing was their licensed commercial fishery. But yet that court decision did not indicate how that resource would be allocated between users. So the state of Michigan appealed to the sixth circuit court, and they upheld the district court. And then the state appealed to the Supreme Court, which upheld the lower court order, and they refused to review the case. So from that point the issue was how to allocate the fishery. Between 1981 and 1985 that is what we did. The biology program served, it's main function was to do assessments as best we could. We were a very small program, and to represent the tribe during these negotiations as to how the resource would be allocated. Following the implementation of the consent order in 1985, the biology program had greatly enhanced responsibilities. We were then essentially given the areas in which we were going to have greatest management responsibilities, which meant we had to build up our program and do necessary research and assessment. We had established standing committees that were now part of intergovernmental committees. We not only went to the meetings and participated in the planning but we also had to participate in the duties that the 1

joint intergovernmental committee undertakes. So that meant increased workload for staff and that we needed more staff if we were going to do our part and be represented on these Great Lakes bodies. The consent order also stimulated the creation of the fish hatchery. There was direct language in there requiring the state to assist in the development of the walleye hatchery/walleye facility. We also received some help from the federal government in the form of funding, and by about five years following the consent, about 1990, we were up and running and stocking our own walleye. Not directly, the consent order also called for the tribes -- and we called it an enhancement fishery -- it is a tribal salmon fishery. Salmon are stocked on the Great Lakes. They are stocked by the states. We don't stock them directly, although pursuant to the consent order they are stocked for tribal harvest in one particular location. Even though we don't stock the fish, we have to monitor the success or the performance of that salmon fishery and we call that an enhancement fishery, as well, because it has been a plus for some of our tribal fishers, especially the ones that use small boats near shore for a very short period of time usually near August and September. So it has been an enhancement. Other than that, we don't conduct stocking ourselves. There is probably no other enhancement per se. Yes, there is a multitude of assessments we conduct. I am not sure that many of the public really realize how broad a scope our activities are. We are a little low key. We don't have the publicity that the Michigan DNR has in the assessment and research activities, but we are involved in most everything major that is going on in the upper three Great Lakes, at least within the 1836 Treaty area. So we have quite extensive assessment responsibilities and program. We also conduct things that might be deemed direct research as opposed to routine assessment. We conduct some of those ourselves and we participate with other agencies on many as well. We do participate and cooperate in several sea lamprey research projects and we have for years. That is with the U.S. Fish and Wildlife Service. They are the lead organization. I am trying to think of a good example where we are the lead investigator. I suppose if my assessment biologist were here he could rip them off because that is his job. Let me think here -- most of it is assessment actually -- whitefish, lake trout assessments; we do those routinely. We've done yellow perch research in the L Islands back in the mid 80s. We've done research on the selectivity of various types and sizes of gill nets. Well, probably the greatest misconception, and I don't know if it's so much a misconception as it is -- it's been stated so many times that people start to believe it -- is the 2

supposed negative impact tribal fishing has on the resource or, in another context, on the sport fishery. Granted, there are some allocation issues where you have a strong commercial fishery or slightly the sport fishery will be less, but over the expanse of the treaty area that just hasn't been the case. Sport fisheries have done quite well. They've even done quite well right in the midst of where some of the heaviest tribal fishing is being conducted. Because of the adversarial nature of the sport verses commercial, you often hear that if there is a gill net in the area there is no reason to do sport fishing there. That just hasn't been true. And I think now that we have 15 years under our belts on the consent order, I think that an objective review would show that these two types of fishing operations are compatible, sport and commercial fishing, that they are not mutually exclusive, that it is just a matter of sitting down and working out a method to accommodate both. That's probably the biggest misconception. It has affected it in the sense that the consent order has separated the two. State-licensed commercial fishing and tribal commercial fishing are basically separated. There are only a few small remaining areas where it has overlapped. By and large what the consent order tried to do with regard to commercial fisheries of each was to separate them so that you didn't have what was essentially a race horse fishery. For one group to say let's go hurry up and catch the fish before we reach a quota or something like that. So it probably was effective in doing that. It helped the market situation because prior to the consent order, state license and tribal license fisheries were side-by-side racing to catch the fish, and of course there was a big flood of fish on the market all at one time and, in general, just a rather chaotic situation. So the consent order was successful in separating those two groups. Well maybe another way to phrase that, to address that, is probably the entrance of the tribes into the Great Lakes fishery because of the adversarial nature has stimulated much research and simulated much more assessment now than probably would have been going on without tribal fishing. That is probably the nature of any of these types of situations where you have two opposing forces working on a resource causes a greater in-depth view of the resources and the impact of the activity. So I would say, yes, the consent order has probably resulted in increased assessment and research and our knowledge of the workings of the great lakes. 3

Yes, the 1985 consent order was a 15-year agreement, 15-year -- I shouldn't use the word agreement because one of the bands didn't agree to it. The 1985 consent order is a 15-year pact, and it was slated to end in the year 2000, May 31, 2000. So the parties to the case, now probably five tribes this time around, the state of Michigan and the Department of the Interior, are beginning some negotiations to try to resolve or come up with a replacement for this prior to the expiration will be the target date. So at May 31, year 2000, will have something to replace the old one with, otherwise I am not sure what will happen. I am sure the attorneys can give you the answer on the one but a variety of things can happen if we don't have a replacement agreement. So right now I think the parities are in agreement that they would rather have an agreement than go to court and have a judge decide for them, and the judge, I am sure, would prefer that as well. My greatest concern for the... I think one of the major issues facing the Great Lakes with regard to the resource aspect as opposed to allocation would be invasion of exotic species. For me, it is not even a close call if we look at the difficulties we are having in management right now. It is because of exotics in the Great Lakes. It is one of the major issues we are having a problem with is lake trout rehabilitation, and Lake Superior has been basically successful, Lake Michigan has had virtually no success and Lake Huron has shown some spotty problems. But if you follow the impact exotics are having on each of the lakes you will find that Lake Superior the exotics have the lowest impact, sea lamprey is mostly under control in Lake Superior, lake trout were able to reproduce where as in Lake Michigan you not only have sea lamprey to deal with you also have other exotics such as newife, smelt, zebra muscle, and in Lake Huron you have those as well but at least in Lake Huron you have lesser numbers of newife. Anyway newest research in Lake Michigan trying to figure why the lake trout are not reproducing there would indicate that newife are a major player. I don't know if you know what newife are, but it is a small -- that is a large one -- and they are known to be predators on the lake trout fry, newly hatched lake trout, and to complicate the issue, it appears that by lake trout consuming them as prey that really impacts the ability for the lake trout eggs to be fertile and viable. So it is a double whammy on lake trout. Water quality is always an issue. It has not, I don't think is has been a major issue at least not with the off-shore species that we are most concerned with -- that's you're off shore species like whitefish, lake trout, (???) and so on. Some of the near-shore species that require the tributaries, the rivers and near-shore environments, habitat and water quality are more of an issue there. And they are always an issue there. And there are several committees and projects and processes 4

ongoing that just really gained steam these last couple years to look at habitat and water quality. One of the issues with water quality, which is rather ironic, is the issue of phosphorus. Years ago, 20 to 30 years ago, phosphorus was a problem in the lakes because it resulted in algae growth. Of course that is very detrimental to fish stocks. It is detrimental to aesthetics when you see this big floating mass of algae. So of course the federal laws and state laws that reduce phosphorus inputs cleaned up the lake, so to speak. Well, phosphorus is also a fertilizer in a sense, so it does grow fish food, and so now in some cases -- it is more of an issue in Lake Erie and Lake Ontario right now -- the reduction in phosphorus mean less fish. And so some people are whispering, maybe we shouldn't reduce phosphorus anymore, maybe we should even add a little bit to so that we can carry more fish stock. It's an irony in that sense there was the thought that phosphorus was evil and now there is the thought that maybe we should keep a little of it around. Well, I guess the first hope is that the consent order is an agreement that can be reached. If that happens, I suspect that again like in 1985 there will be a greatly increased responsibility for the biology programs, and each tribe also has a biology program. I think what we've seen so far in negotiations suggests that we are making a lot of work for ourselves, which will be good in the long run because again we will have more information on the resource, we will have more knowledge-enforced research and will enforce more routine assessments so we will learn more than what we probably would if we were not entering into this. Ironically again. The number of fisher, tribal fishers varies, commercial fishers varies quite a bit. But I would say on average there is probably 100 to 110 crews. How may fishers on each crew I can't really say, again that varies. Of course each crew supports tribal families, and that is their livelihood. There is also a fair amount of tribal subsistence fishers, and subsistence fishing have a more restrictive set of regulations and the amount of net that can be used is much less. And that varies again. One year a tribal member may choose to subsistence fish and the next year not. The things that we are most involved with are the intergovernmental committees. That's a big portion of our work right now. I don't know how necessary it is to bring that out for you, but we're involved with a list of standing committees. Committees often have a bad rap because you 5

think, well, form a committee, if you have a problem form a committee. But these are standing, well-established mechanisms to deal with what are often difficult political situations or differences of opinion between states and tribes. Besides this, the tribes that are necessarily at odds with differences of opinions on how to approach issues so are the states between themselves. Then of course the federal government, Fish and Wildlife Service has opinions and views on a variety of things as well. So this forum, especially the one on the Great Lakes fishery commission, works just excellently. It provides a mechanism for everybody to get together to embrace some common goals and objectives we have produced what we call fish community. Objectives for each of the upper Great Lakes which is, you know it's not necessarily a management plan but it is a common vision and common understanding of how the lake fish communities work and what drives them. In some regard, such as in Lake Michigan, it is an indication of what we don't know about what drives the system because we don't have as much control over the fisheries in the lakes as we like to think we do. They are on a path by themselves again, driven probably largely by exotic species that have gotten into the lake. That is another big issue too, the exotics, not only how to deal with the ones that are here but how to prevent new ones from entering. And one of the primary factors is ballast water. Most imported through the international foreign fishing fleet that bring ballast into the Great Lakes basin and discharge it in exchange for fresh water. The number of organisms that find their way in that way are probably more than we can count. Some are harmless and fade away, and others make their presence known. Zebra muscle is one of those. So we push as hard as we can in those areas where exotics can enter the lakes, unwanted exotics. We also stock some exotics in the Great Lakes such as Chinooks, salmon, cohoe, rainbows and brown trout. Those are all exotics and that's a big... We also have an environmental division in the biology program. And like the fisheries issues, the environmental issues are very broad, and our environment coordinator position is involved with again a multitude of intergovernmental committees with less emphasis on fisheries than the rest of our program but, none the less, there is a fisheries angle to his work. But many of these committees are sponsored or overseen by EPA again. All states and tribes are represented and their issues are related largely to the water quality and lakewide management planning for the ecosystem planning if you will. Within the 1836 Treaty waters, which are again in three lakes, I am not sure how many state- 6

licensed fishers there are. I would guess that I can take a shot at it perhaps 30. There are a lot less. They are generally larger operations. See, much of the tribal fishery is, well, at least half of it is probably a small-boat style fishery which we typically classify a small boat somewhere in the neighborhood of 25 feet or less. Open skiffs. The state-licensed fishery has evolved largely into an entrapment operation. Entrapments require much larger vessels in the 35 foot plus range. Unlike the tribal fishery, the state-licensed fishery is often generally a much larger operation on the whole. The tribes do have entrapment operations. They do have gill-net tug operations, larger vessels, but they're still a large contingent of small-boat fishers. Beginning back in 1981 when I first started here, that was probably the majority of fishing operations were small boats, and back then they were really small boats. There were 16-foot minnow crafts that were very common. There were very few people that fished in 14-foot vessels, which on the Great Lakes is a very small boat. I'm not sure if the number of tribal fishers has increased. Individual operations have grown, however. Back in the early years, in the late ë70s and early ë80s, there were many more smallboat operations that fished close to shore, but upon implementation of the consent order, some of the more productive bay areas were essentially off limits to many of the tribal fishers. So some of these small boat fishers had to go to a still what you might classify as a small boat but a larger small boat. The difference between a 16-foot open skiff and a 22- to 23-foot open skiff is substantial when you are on big water like the Great Lakes. So it allowed them to get further from shore. So I think the individual operations have increased in size and thus in catch. But I am not sure the number of fishers has changed much. Sure, yes, I think back in the early 1980s when our program was getting off the ground, we would attend meetings such as sponsored by the Great Lakes Fisheries Commission, but yet we were just attendees. We were not members. Our input was strictly from the floor. But I believe it was in 1986 again, it was following the consent order, when the Great Lakes Fishery Commission agreed that the 1836 tribes had the right to manage, and then they recognized our right to become members of what we call lake committees and under lake committees we have technical committees and a variety of other special task groups as needed. So, yes, our involvement had changed from simply being a voice from the floor to actual membership, and 7

our objective in our program with myself and our staff is to be aggressive on those committees. We don't simply attend and try to poke holes in what is going on. We believe we are taking a very active and sometimes a leadership role in some cases. The conception that tribal fishery is unregulated is not true. We have a very extensive set of regulations. They are quite detailed. They are changes to the regulations, and the regulations themselves will come from the management authority with input from the state and the Fish and Wildlife Service. But, none the less, the decisions typically made by either the member tribes individually on their members or collectively by the management authority. But, you know it's a pretty thick book of regulations here. 8