Judge says fish farm on Au Sable breaks law due to deed restrictions

Oct 23, 2017

Grayling Fish Hatchery
Credit Harrietta Hills Trout Farm

Part of a lawsuit is going forward against a company running a fish farm on the Au Sable River.

Opponents of the fish farm allege it’s polluting the trout stream. The company called Harrietta Hills Trout Farm denies it. Now a judge says the operation violates the law, but for a reason that has nothing to do with pollution.

The Grayling Fish Hatchery is a few miles upstream of a stretch of river renowned among fly fishermen. It’s called the Holy Water.

Tom Baird is president of the club Anglers of the Au Sable, which brought the lawsuit. He says the Au Sable is the premiere trout steam east of the Mississippi River.

“It’s a huge draw for anglers and other users of the river,” Baird says, “but especially fly fishing anglers who come not only from Michigan but throughout the region and the nation and internationally.”

The legal side of this story gets a little confusing. Anglers of the Au Sable brought two complaints in its lawsuit. First, it said Harrietta Hills is degrading the river with fish food and feces. Second, it said the operation is violating deed restrictions on the site.

Harrietta Hills asked the court to dismiss both of those claims. The judge refused to reject the complaint about pollution. That part of the lawsuit will go forward.

But here’s where things get more complicated. 

The judge dismissed the complaint over deed restrictions even though he agrees with it.

The judge wrote that the fish farm is clearly violating the law and the deed restrictions, but Anglers of the Au Sable does not have standing to make the case.

“It’s completely confusing that he would make a statement like that after not even being able to examine the facts,” says Dan Vogler, co-owner of Harrietta Hills Trout Farm.

“He said this court cannot look at this because the plaintiff has no standing,” Vogler says. “So he didn’t examine the facts. So how can he have an opinion?”

To understand the deed restrictions, you have to know a bit about the history of the Grayling Fish Hatchery. The state of Michigan used to own it. Then it sold the property to Crawford County in the mid-1990s, restricting the site to public recreation or museum purposes.

The county leased the property to Harrietta Hills Trout Farm five years ago. The state signed off on the deal, putting a stamp of approval on Harrietta Hills running a year-round commercial operation there.

“Before we did anything on this, we asked a question of the Department of Natural Resources and the county, 'is what we’re proposing to do going to violate the deed restrictions,'” Vogler says.

“They said, 'no,'” Vogler says. “I mean, it’s in writing.”

The judge wrote that the operation of a commercial fish farm on the property is a clear violation of the deed restrictions. But Vogler disagrees. He argues that along with raising fish, the company also welcomes the public to visit during summer months.  

“If it was not for us, the facility would be closed and locked and nobody would go there,” Vogler says.

In his decision, circuit court Judge George Mertz said only the state of Michigan could bring a lawsuit challenging the deed restrictions.

A spokesman for the state Department of Natural Resources says the office has nothing to say right now, but is looking at what the judge said.

Tom Baird, president of Anglers of the Au Sable, says he’s not sure if the state is interested in challenging the fish farm.

“With Judge Mertz’s decision, hopefully they’ll reconsider that entire thought process,” Baird says.

Anglers of the Au Sable is moving forward on the other part of its lawsuit, challenging the environment impact of the fish farm.

The group has tried to shut it down since the company began boosting production at the hatchery.

“It’s as if someone wanted to start a concentrated animal feeding operation right at the side of the Au Sable River,” Baird says, “and raise a herd of hogs or cattle and every once in a while bulldoze the manure and the uneaten food into the river.”

Baird says they’re already seeing more algae in the river.

Harrietta Hills Trout Farm has a permit that regulates the pollutants it puts into the river. The company monitors monthly and self-reports results to the state.

State officials say the company is currently in compliance with its permit.

Vogler says Anglers of the Au Sable is fear-mongering.

“There are no harms to the river at this time. There will be no harms to the river in the future,” Vogler says. “The efforts by the Anglers are to scare and frighten people. They have an agenda, and they are very interested in pursuing that.”

The Grayling Fish Hatchery is one of three large privately-owned fish farms operating in the state. Harrietta Hills Trout Farm runs two of them.

Tom Baird says the club is focused on protecting the Au Sable River, but fish farming could pose a threat to other waters in the future.

“If they can get away with it on the headwaters of the Au Sable River, they’re going to be able to get away with it anywhere,” Baird says.

Anglers of the Au Sable has also challenged the fish farm’s permit from the state. The head of the Department of Environmental Quality has not yet made a final decision on it.