Full opinion text
MEMORANDUM OPINION AND ORDER DAVIS, District Judge. PROCEDURAL HISTORY The Mille Lacs Band filed its Complaint on August 13, 1990 claiming the State has adopted and enforced natural resource laws and regulations that violate their privilege of hunting, fishing and gathering guaranteed them by the 1837 Treaty entered into between the United States of America and the Chippewa Indians. In this litigation, the Mille Lacs Band seeks a declaratory judgment that the usufructuary rights granted under the 1837 Treaty continue to exist. The Mille Lacs Band also seeks a declaratory judgment defining the nature and scope of those rights and defining the permissible scope of state regulation upon their usufructuary privileges. Additionally, Mille Lacs seeks an injunction prohibiting enforcement of state fish and game laws against members of the Mille Lacs Band except as authorized in the Court’s declaratory judgment. The parties agreed to bifurcate the case into two phases. In Phase I, the issues to be determined involved whether the 1837 Treaty privileges continue to exist, whether the 1837 Treaty privilege extends to lands now, or previously, in private ownership, and the, general nature of any rights guaranteed by the privilege. If the privilege was found to continue, Phase II of the case would address issues of resource allocation and the validity of particular measures affecting the exercise of the privilege. Trial on Phase I commenced on June 13, 1994 and concluded on July 6, 1994. Based upon the testimony of fourteen witnesses, and over 400 exhibits, Judge Murphy issued her Findings of Fact, Conclusions of Law and Order, holding that the usufructuary rights granted the Mille Lacs Band pursuant to the 1837 Treaty continue to exist. Mille Lacs Band of Chippewa Indians et al. v. State of Minnesota et al., 861 F.Supp. 784, 841 (D.Minn.1994) (Mille Lacs II). The general nature of this privilege was determined to be that the Indians understood they had given up their right to harvest timber, but that they did not understand the Treaty imposed any other limitations on the types of resources they could harvest, or that there were any restrictions on the time, place, or manner of the exercise of the privilege. Mille Lacs II, at 838. It was noted, however, that the validity of particular measures to regulate the taking or harvesting of resources, including resources taken for commercial purposes, was for Phase II. Id. Finally, it was held the 1837 Treaty privileges were not limited to the use of any particular techniques, methods, devices, or gear and whether specific techniques could be regulated for conservation or public health and safety again was reserved for Phase II. Id. The Court also delineated the legal standards for state regulation of hunting, fishing and gathering, while reserving the application of these standards to Phase II. Id., at 838-39. In September 1994, the Court entered a pretrial order for the Phase II portion of the case. Pursuant to that Order, the parties exchanged pre-trial statements. Plaintiff and Plaintiff-intervenor United States filed a joint statement identifying the state'laws and regulations they believed violated the standards for state regulation set forth in the Court’s Phase I decision. Attached to their joint statement was a proposed Band conservation code to regulate hunting, fishing and gathering by Band members in the Minneso-. ta Ceded Territory. The State also filed a statement which identified the state laws or regulations it believes is applicable to the Bands and which also identified the State’s concerns over the Band’s proposed conservation code. Thereafter, a revised joint pretrial statement was filed by the Mille Lacs Band and the United States and a revised Band conservation code submitted on behalf of the six Wisconsin Bands who were applying for intervention. In March 1995, the Wisconsin Bands were allowed to intervene as plaintiffs in this case. Thereafter, the State, Counties and Landowners moved for summary judgment to limit the exercise of the Wisconsin Bands rights to exercise their privileges in the Minnesota Ceded Territory. This Court denied the motions and held that all Phase I determinations applied equally to the Wisconsin Bands. Since the exchange of the pre-trial statements, the Mille Lacs Band, the Wisconsin Bands, and the State defendants held numerous meetings and exchanged a vast amount of information in an effort to narrow the issues raised in the pre-trial statements. The result of this effort is a Conservation Code and Commissioner’s Orders to implement the Code prepared by the Bands. The Bands have also drawn up a Management Plan which includes a series of measures to govern their management of their members’ hunting, fishing and gathering activities. The Bands and the State have agreed to a series of Protocols to coordinate harvest management and resource assessment in the Minnesota Ceded Territory. Based on the Bands’ Conservation Code, Commissioner’s Orders, Management Plan and Protocols, the Bands and the State have identified specific state laws and regulations that do not, under the present circumstances, meet the standards for state regulation in the Court’s Phase I decision, leaving a few specifically identified state laws and regulations as “Unresolved.” The resolved and unresolved laws and regulations are identified in Exhibit E to a Stipulation entered into by the Mille Lacs Band, the Wisconsin Bands, the United States of America, and the State of Minnesota. By this Stipulation, the executing parties agree, inter alia, that 1. Upon adoption of the Band Code, including authorization of State of Minnesota Department of Natural Resources personnel to enforce the provisions of such Code, issuance of the Commissioner’s Orders and approval of the Management Plans and Protocols attached as Exhibits A, B, C, and D hereto by one or more of the plaintiff or plaintiff-intervenor Bands, and enforcement of the same, the application to such Bands and their members of the State statutes and regulations listed in Exhibit E hereto as “Resolved”, to the extent set forth in Exhibit E, will not be necessary for conservation, public health or safety as those terms were used by the Court in its Phase I decision, and will therefore be unlawful. The only particular State statutes and regulations whose application to Band members remains in dispute in the current phase of this case are listed in Exhibit E as “Unresolved”. The positions of the Stipulating Parties with respect to those statutes and regulations are indicated in the Comments column in Exhibit E. Those issues will be presented to the Court for resolution on summary judgment motion or at trial. The Stipulating Parties also agreed that if a Band fails to adopt a conforming conservation code, attempts to rescind or otherwise nullify its code, or substantially fails to enforce provisions of its code, such Band members harvesting within the Minnesota Ceded Territory shall be subject to applicable state laws and regulations. The Stipulating Parties also agreed that the following issues are not resolved by the Stipulation: 1) resource allocation issues; 2) which private lands may be available for Band harvest under their Conservation Code; 3) natural resource management decision making authority; and 4) whether the Bands may exercise their treaty rights throughout lakes that are only partially within the Minnesota Ceded Territory, and if not, how to determine the harvest available to the Bands in such lakes. Before the Court are the motions of the parties for summary judgment on the Phase II issues which are in dispute. Summary Judgment Standard Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Unigroup, Inc. v. O’Rourke Storage & Transfer Co., 980 F.2d 1217, 1219-20 (8th Cir.1992). To determine whether genuine issues of material fact exist, a court conducts a two-part inquiry. The court determines materiality from the substantive law governing the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Disputes over facts that might affect the outcome of the lawsuit according to applicable substantive law are material. Id. A material fact dispute is “genuine” if the evidence is sufficient to allow the fact finder to return a verdict for the non-moving party. Id. at 248-49, 106 S.Ct. at 2510-11. I. Motions for summary judgment on' Regulatory Issues By its motion, Plaintiffs and Plaintiff-Intervenors (hereinafter the “Bands”) seek entry of an order which incorporates the terms of the Stipulations and resolves the .remaining unresolved regulatory issues identified in the Stipulations. The State has filed cross motions for summary judgment on the following issues 1) the State’s management authority; 2) prohibiting the Bands’ exercise of its 1837 Treaty rights outside the Ceded Territory, including portions of lakes outside the Treaty boundary; and 3) the definition of private lands open to the public for hunting, fishing and gathering. The Counties have moved for summary judgment, seeking a declaration that the Court hold valid and applicable to all Band members, all Minnesota conservation laws. Finally, the Landowners have moved for summary judgment regarding the definition of private lands (Motion No. 6), management authority over natural resources (Motion No. 7), and legal standards for State regulation of Bands’ exercise of its 1837 Treaty rights (Motion No. 8). Part of the relief sought by the Landowners is reconsideration of prior rulings. See The Landowners’ Eighth Motion for Summary Judgment. The proper role of a motion to reconsider is extremely limited: “to correct manifest errors of law or to present newly discovered evidence.” Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988); see also Rule 59(e), Fed.R.Civ.P. Because the Landowners cannot establish a manifest error of law, and have not presented newly discovered evidence, any motions of the Landowners which seek a reconsideration of prior rulings are denied. A. Order incorporating terms of Stipulations. The Bands ask that the Court enter judgment on the regulatory issues incorporated in the terms of the Stipulations. The State agrees that an order incorporating the terms of the Stipulations is appropriate, but only in the Court’s final order. Accordingly, if the Court resolves all remaining issues at the summary judgment stage, a final order will be entered and the State would not object to the Court including an order incorporating the terms of the Stipulations and a declaration that the statutes and regulations listed in Exhibit E thereto will not be applicable to the Bands or their members upon adoption of the referenced Code, Commissioner’s Orders, Management Plans and Protocols. The State asserts, however, that if a trial is necessary to determine any issues, an order incorporating the terms of the Stipulations should not be entered until after trial. In response to this argument, the Bands have filed a motion for a preliminary injunction, asking the Court to allow the Bands to engage in interim harvests prior to the Court’s final judgment. The motion for entry of a final order or a preliminary injunction shall be discussed later in this opinion. The Bands and the State assert that the Counties and Landowners will likely object to a declaration which provides that the State statutes and regulations are not applicable to band members. The Bands and the State assert that such a declaration is nonetheless appropriate as 1) the burden is on the State to show that application of its laws is necessary for conservation, public health and safety, but such burden cannot be met as the State has stipulated such laws listed in Exhibit E are not necessary and 2) the Counties and Landowners must provide expert testimony to meet the standard, and they have not presented such testimony. B. The “Unresolved” statutes and regulations. As noted above, there are certain state statutes and regulations that are identified as “Unresolved” in Exhibit E to the Stipulations. They are as follows: Minn.Stat. § 97A.045. The State argues it retains unilateral authority to determine harvestable surplus levels for both treaty and non-treaty harvests, and that its determinations are not subject to review by the Court. Minn.Stat. § 97A.121 and Minnesota Rule 6242.0400. The State argues the Bands may not exercise their rights on private lands that are not open to the public and on which landowners consent to Band member hunting or fishing. Minn.Stat. §§ 97B.081, 97B.311, Minnesota Rules 6232.0300 and .1300. It is the State’s position that it is necessary for conservation purposes to prohibit hunting deer at night with the use of lights over bait in December. Minn.Stat. §§ 97C.325, 97C.331 and Minnesota Rule 6262.0200. The State asserts that it is necessary to prohibit any use of gillnets in lakes that are under 1,000 acres. 1. Legal Standard The legal standards for state regulation of Indian usufructuary rights are clearly established and will be relevant to Phase II issues. The State may regulate the exercise of the privilege in the interest of conservation “provided the regulation meets appropriate standards and does not discriminate against the Indians.” Puyallup Tribe v. Dept. of Game, 391 U.S. 392, [88 S.Ct. 1725, 20 L.Ed.2d 689] (1968). To demonstrate that any regulation meets appropriate standards, the State “must demonstrate that its regulation is a reasonable and necessary conservation measure and that its application to the Indians is necessary in the interests of conservation ...” The State may also regulate the privilege to ensure public health and safety if the regulations do not discriminate against the Indian and are “reasonably necessary to prevent or ameliorate a substantial risk to the public health or safety.” Lac Courte Oreilles Band v. Wisconsin, 668 F.Supp. [1233, 1241-42. (W.D.Wis.1987)]. A public health and safety regulation is reasonable if it meets a three part test: The legal standards that govern the State’s regulation of treaty hunting, fishing and gathering were previously determined by the Court in Mille Lacs II. First, the State must demonstrate that there is a public health or safety need to regulate a particular resource in a particular area. This requires a showing by the state that a substantial detriment or hazard to public health or safety exists or is imminent. Second, the State must show that the particular regulation sought to be imposed is necessary to the prevention or amelioration of the public health or safety hazard. And third, the State must establish that application of the particular regulation to the tribes is necessary to effectuate the particular public health or safety interest. Moreover, the State must show that its regulation is the least restrictive alternative available to accomplish its health and safety purposes. Id., at 1239. The State may not impose its own regulations if the Band can effectively self-regulate and if tribal regulations are adequate to meet conservation, public health, and public safety needs____ These clearly established legal standards should be applied to issues of state regulation, but the application of these standards to particular regulations and any allocation issues are reserved for Phase II. Mille Lacs II, 861 F.Supp. at 838-839. It is the Bands’ position that the State carries the burden of establishing that a particular State regulation is reasonable and necessary for conservation, or public health and safety. If the State fails to submit affidavits showing a genuine issue of material fact exists regarding the necessity of a particular regulation, summary judgment should be entered in the Bands’ favor. 2. Harvestable Surplus In the State’s motion for summary judgment on the State’s Management Authority, the State asks the Court to provide by order that: 1) the State retains the responsibility and authority for the management of all resources of the State within the Ceded Territory, except as otherwise provided by this Court, and; 2) in the event of a dispute in determining the harvestable surplus level for any species that cannot be resolved by the State and the Bands, the determination shall be made by the Minnesota Department of Natural Resources (“DNR”). See, State’s Proposed Order for Motion for Summary Judgment on the State’s Management Authority. As discussed above, the parties have made substantial progress in narrowing the issues left for Phase II of this litigation. As a result of this cooperative effort, the Bands and the State have agreed to a series of Protocols in an effort to coordinate harvest management and resource assessment in the Minnesota Ceded Territory. Protocol #5 addresses Natural Resource Management in the Minnesota Portion of the 1837 Ceded Territory. Section III of this Protocol addresses Harvestable Surplus and Harvest Management Units. “Harvestable surplus” is a term that refers to the number or amount of any given species that may safely be taken by hunters or fishers. The harvestable surplus is the total amount of an available species to be divided between the Band harvesters and non-Band harvesters according to the applicable allocation amount. Section III of Protocol #5 recognizes that the State has developed and utilized methodologies for calculating the harvestable surplus of bear, anterless deer, wild turkey and registered furbearers and that the State wishes to continue using such methodologies and harvest management units for determining the harvestable surplus. The Bands recognize that they do not now have the information or experience to contest the State’s methodologies or harvest management units for calculating harvestable surpluses for the named species. Therefore, the Bands have agreed to limit treaty harvests by adopting harvest quotas within each of the State’s harvest management units, and will not object to the continued use of the State’s methodologies for calculating harvestable surplus determinations. To better educate the Bands, the State has agreed to fully involve the Bands’ technical representatives in the annual calculations of harvestable surplus determinations. Protocol # 5 also provides that in the event a dispute arises as to harvestable surplus determinations, either party has the option of invoking the mediation process provided in Protocol # 1, or the continuing jurisdiction of the court, “unless the court has determined that one party has the authority to resolve the matter unilaterally and that its decision cannot be challenged in court.” Protocol # 5, at 2. In a footnote, it is revealed that the State contends it has the authority to resolve disputes over harvestable surplus determinations unilaterally, and that its decision is not reviewable by the Court. Protocol # 5, at 2, n. 1. The State asserts that harvestable surplus determinations are highly technical in nature, and, by definition, are conservation based. The determination involves gathering and analyzing data on many species, harvest patterns, gear, habitat and climate changes, as well as other factors that impact how much fish or game is available. Sophisticated mathematical and biological models have been developed over the years to translate data into specific harvest levels. The State is concerned that different biologists may have different opinions about the mechanics of the calculations, and at some point a decision will have to be made on which harvestable surplus level should be utilized. The State argues that it should be the one making such a decision, and that the courts should not second-guess competing scientific analyses. The State asserts that if the Bands believe the State’s decision is based on some motivation other than good science based on legitimate conservation needs, they may ask for Court review. If the Court believes, however, that the State reached a harvestable surplus determination based on the appropriate conservation necessity, the Court should then defer to the State’s biologist. The State asserts that that is the approach adopted by the Court in Lac Courte Oreilles Band of Chippewa Indians v. Wisconsin, 707 F.Supp. 1034 (W.D.Wis.1989) (LCO VI). In response, the Bands assert Minn.Stat. § 97A.045 provides broad authority to the DNR, including a directive “to make special provisions for the management of fish and ■wildlife to ensure recreational opportunities for anglers and hunters.” It does not, however, specifically provide the State with unreviewable authority as to harvestable surplus levels. The Bands assert that the determination of the harvestable surplus levels for a specific species will directly constrain Band harvests, as the harvestable surplus, in effect, determines the size of the Bands’ harvest. Therefore, harvestable surplus determinations regulate Band harvest more directly than bag limits, gear restrictions or other types of harvest regulation. The Bands assert that the State’s position, in effect, alters the clearly established legal principles that apply to a state’s regulation of treaty rights. As set forth above, the burden is on the State to show its regulation is conservation based and is not discriminatory against the Indians’ rights. But if the Court adopts the State’s argument, the burden would be shifted to the Bands to show the regulation is not conservation based and/or is discriminatory. The Bands also argue that the State’s motion as to its Management Authority is vague and ambiguous and that the declaratory relief sought by the State, with the exception of the harvestable surplus issue, would be inappropriate as there currently is no concrete dispute before the Court — the State asks for a declaration that it can make management decisions without specifying an issue currently in dispute. The State responds to this argument by asserting there is a concrete issue before the Court that needs resolution — that is the Bands’ quest for co-management. The State has taken the position that the Bands are seeking co-equal jurisdiction to manage the resources of the State. The State argues the case law supports its position that it has final management authority, and that it need not have to be subjected to second-guessing and protracted court dispute by the Bands any time the Bands dispute a decision the State makes. The Court agrees with the position of the Bands that, with the limited exception of the harvestable surplus issue, the State’s Motion for Summary Judgment on its Management Authority does not present an issue of “controversy” that is appropriate for judicial determination. Declaratory relief is appropriately applied to cases of actual controversy. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937). A ‘controversy’ in this sense must be one that is appropriate for judicial determination____ A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot... The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests... It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Id. at 240-241, 57 S.Ct. at 464 (internal citations omitted). The decision to grant declaratory relief is left within the sound discretion of the court, even where there is a justiciable controversy. United States v. State of Washington, 759 F.2d 1353, 1356 (9th Cir.1985) cert. denied, 474 U.S. 994, 106 S.Ct. 407, 88 L.Ed.2d 358 (1985). Declaratory relief should always be made with reference to the public interest. Id., at 1357. “Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced by the parties.” Id. In Washington, the Ninth Circuit vacated the district court’s grant of declaratory relief on what was designated by the district court as the environmental issue in the “protracted litigation over Indian fishing rights in the Pacific -Northwest.” Id., at 1354-55. The district court had declared that “the right to take fish necessarily includes the right to have those fish protected from man-made despoliation, so that the treaties impose upon the State a corresponding duty to refrain from degrading or authorizing the degradation of the fish habitat to an extent that would deprive the treaty Indians of their moderate living needs.” Id., at 1355. Finding the issuance of the declaratory relief on the environmental issue was contrary to sound judicial discretion, the court stated: The legal standards that will govern the State’s precise obligations and duties under the treaty with respect to the myriad State actions that may affect the environment of the treaty area will depend for their definition and articulation upon concrete facts which underlie a dispute in a particular case. Legal rules of general applicability are announced when their consequences are known and understood in the case before the court, not when the subject parties and the court giving judgment are left to guess at their meaning. It serves neither the needs of the parties, nor the jurisprudence of the court, nor the interest of the public for the judiciary to employ the declaratory judgment procedure to announce legal rules imprecise in definition and uncertain in dimension. Precise resolution, not general admonition, is the function of declaratory relief. Id., at 1357. With the exception of the harvestable surplus issue, there is no concrete issue before the Court with regard to the State’s management authority. The State does not present specific facts or a specific dispute upon which to apply declaratory relief. Thus, if the State’s motion was granted, the Court, as well as the parties, would have to guess at the meaning such a ruling would make. The parties agree, however, that the harvestable surplus issue is a justiciable one. As noted above, the State is of the position that it retains final authority to make harvestable surplus determinations — that is if the State biologist and the Bands’ biologist disagree as to the proper harvestable surplus level for a particular species, the State has the final say. The .State agrees that the Bands can seek review of a regulation that it believes is not conservation based. However, the State asserts that when it makes a “conservation based” decision, such as harvestable surplus determinations, that decision is not subject to review by the Court. The Bands reply that any decision made by the State is subject to review, and the burden is on the State to prove a decision is “conservation based.” By giving the State the relief it requests, the Bands argue the Court would be giving the State a blank check to make harvestable surplus determinations without basing such decisions, necessarily, on conservation needs. The State responds to this argument defensively, stating there is no basis upon which to be suspicious of the State’s motives in reaching such harvestable surplus determinations. The Court would first recognize that the State and the Bands have worked together commendably to reach agreement on a number of issues relevant to the Phase II portion of this case. The fact remains, however, that the Bands have been denied their right to exercise their usufructuary rights under the 1837 Treaty for a number of years. Their suspicion, therefore, is understandable. The State principally relies upon the opinion in Sohappy v. State of Oregon, 302 F.Supp. 899 (D.C.Or.1969). At issue in So-happy was the limitation on the state’s power to regulate the exercise of the Indians’ treaty rights. In Sohappy, the state of Oregon argued that it could place any restriction upon the Indians’ fishing rights if the same restrictions were placed on non-Indian fishing. Id. at 907. The state argued the treaty gave the Indians no rights that were to be given separate recognition or protection or be separately dealt with in the state’s regulatory scheme. Id. The court determined that the state’s narrow interpretation of the Indians’ rights under the treaty was not supported by law. Id. at 908. Relying in large part on the opinions of the United States Supreme Court in Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968) and Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1942), the court in So-happy recognized that the state has the authority to regulate fishing by non-Indians to achieve a wide variety of management conservation objectives, but that as to regulating the “federal right of Indians to take fish at their usual and accustomed places it does not have the same latitude in prescribing the management objectives and the regulatory means of achieving them." 302 F.Supp. at 908. The state may not qualify the federal right by subordinating it to some other state objective or policy. It may use its police power only to the extent necessary to prevent the exercise of that right in a manner that will imperil the continued existence of the fish resource. The measure of the legal propriety of a regulation concerning the time and manner of exercising this ‘federal right’ is, therefore, ‘distinct’ from the federal constitutional standard concerning the scope of the police power of the State. Id. The court further defined the parameters of the state’s ability to regulate Indian fishing, by stating, [i]t is clear that the state has the full and complete power to regulate all kinds of fishing, including the Indian fishery, to the end that the resource is preserved... In determining what is an ‘appropriate’ regulation one must consider the interests to be protected or objective to be served. In the case of regulations affecting Indian treaty fishing rights the protection of the treaty right to take fish at the Indians’ usual and accustomed places must be an objective of the state’s regulatory policy co-equal with the conservation of fish runs for other users. Id. at 911. The court refused to prescribe in advance all the details of appropriate and permissible regulation, since “proper anadromous fishery management in a changing environment is not susceptible of rigid predetermination” Id. The court also refused, based on the record before it, to prescribe the procedures which the state must follow in adopting regulations applicable to the Indians. The state must recognize that the federal right which the Indians have is distinct from the fishing rights of others over which the state has a broader latitude of regulatory control and that the tribal entities are interested parties to any regulation affecting the treaty fishing right. They, as well as their members to whom the regulations will be directly applicable, are entitled to be heard on the subject and, consistent with the need for dealing with emergency or changing situations on short notice, to be given appropriate notice and opportunity to participate meaningfully in the rulemaking process. Id. at 912. The court went on to state, This does not mean that tribal consent is required for restrictions on the exercise of the treaty rights. As the Supreme Court has stated on several occasions, the state’s police power gives it adequate authority to regulate the exercise of the treaty secured Indian off reservation fishing rights, provided its regulations meet the standards which that court has prescribed. It is not necessary at this time, and it would be inappropriate on this record, to determine the extent, if any, of the authority of the Federal Government or of the intervenor tribes to prescribe regulations that would govern Indians in the exercise of the treaty-secured fishing rights. It is sufficient to say that the state’s authority to prescribe restrictions within the limitations imposed by the treaties and directly binding on the Indians is not dependent upon assent of the tribes or of the Secretary of the Interior. Id. It is the last two quoted paragraphs from the Sohappy opinion upon which the State relies in arguing that it retains final authority to make harvestable surplus determinations that are unreviewable by the Court. The Bands respond that they do not take the position that the State needs their consent, but rather argue that if the State imposes that determination upon the Bands, it must be necessary for conservation and can be challenged in court. Bead in its proper context, the Court finds that Sohappy does not provide the State unreviewable authority to set harvestable surplus determinations. The State also cites to Puyallup Tribe, in which the Court stated, The right to fish “at all usual and accustomed” places may, of course, not be qualified by the State ... But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians. Puyallup Tribe, 391 U.S. at 398, 88 S.Ct. at 1728. Thus, Puyallup Tribe does not stand for the proposition that the State enjoys unreviewable authority to set harvestable surplus determinations either. The State may regulate harvestable surplus levels, but such determinations should be reviewable in court to ensure such regulation meets the appropriate conservation standards. Finally, the State argues that Judge Crabb in the LCO litigation ruled the state of Wisconsin has final authority to make management decisions. Before the court in LCO VI, supra, was the question of the extent, if any, to which the state of Wisconsin may regulate the bands’ exercise of their usufructuary right to harvest walleye and muskellunge within the ceded territory. In making this determination, the court specifically relied on its prior ruling that the state could regulate the exercise of the bands’ usufructuary rights only in the interest of conservation and public health and safety and only upon a showing that the regulation is reasonable and necessary for either conservation or health and safety and that it does not discriminate against the Indian harvest. LCO VI, 707 F.Supp. at 1037 (citing, Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin, 668 F.Supp. 1233 (W.D.Wis.1988) (LCO IV)). Before the court was a specific proposal for regulation by the state of Wisconsin as to the harvesting by the Bands of walleye and muskellunge. The court held that the state of Wisconsin could not regulate the Bands’ harvesting of walleye and muskellunge provided the Bands “enact a management plan that provides for the regulation of their members in accordance with biologically sound principles necessary for the conservation of the species being harvested, as set out in this opinion.” LCO VI, 707 F.Supp. at 1060. One such “biologically sound principle” involved the sharing of biological information between the Bands and the State. The need for the exchange of such information was explained by the court as follows: The fact that plaintiffs may be regulating their members’ exercise of their treaty rights does not make them the manager of the fisheries. That responsibility and authority remains the defendants’. They have the fiduciary obligation of managing the natural resources within the ceded territory for the benefit of the current and future users.,.. The tribes’ regulation of their members does not relieve the department of this obligation or prevent it from carrying it out, although it narrows its management options to a significant degree, and imposes burdens on them beyond those it carried out in the previous implementation of the Voigt decision. Id. Another “biologically sound principle” involved the determination of a safe harvest level. On this issue, the court stated that such determination should be made on the basis of a reliable population estimate, to which is applied an agreed upon exploitation rate and then discounted by a safety factor that is to be determined by the Biological Issues Group (a State-Tribal group of biologists), or “if the group fails to reach agreement on that factor, to be provided by the Department of Natural Resources.” Id. at 1059. The court does not go on to say that such determination by the Department of Natural Resources as to the applicable safety factor is not subject to judicial review. Read in context with its prior opinions, the court in LCO VI did not grant the state of Wisconsin the authority to make harvestable surplus determinations that are immune from judicial review. In its motion for summary judgment on the harvestable surplus issue, the Bands ask the Court to enter an order requiring 1) the parties to attempt to reach consensus on harvestable surplus determinations, in accordance with the Protocols; and 2) if, after exhausting the non-judicial dispute resolution processes in the Protocols the parties cannot reach consensus on such matters, either party to ask the Court to resolve the disputes. Based on the above, the Court finds that the Bands’ position as to harvestable surplus determinations, that such determinations are subject to judicial review, is consistent with the applicable ease law. Summary judgment is therefore appropriate in favor of the Bands on the issue of harvestable surplus determinations. 3. Boundary Lakes The State asserts that the Minnesota portion of the Ceded Territory bisects twenty-two (22) lakes, the largest being Lake Mille Lacs. The State argues that the portions of the lakes outside the Ceded Territory is not available for the exercise of the rights granted in the 1837 Treaty. Accordingly, the State argues that the allocation formula for harvestable fish must recognize a proportional reduction to reflect the proportion of lakes excluded. The State argues its position is supported by the language of the 1837 Treaty, which provides the Bands “the privilege of hunting, fishing and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guaranteed to the Indians, during the pleasure of the President of the United-States ...” Article 5, 1837 Treaty. The State also notes that in the Stipulations, the Bands have agreed that the harvestable surplus levels for wildlife shall be calculated for the portion of the harvest unit within the Ceded Territory on the basis of the percentage of the harvest unit’s total acreage within the ceded territory, and that the State simply asks that the same be done for the lakes. The Bands respond that their treaty rights extend to all waters “in and abutting the ceded territory” as stated by the court in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F.Supp. 1420, 1426 (W.D.Wis.1987) (LCO III) and reaffirmed in LCO VI, 707 F.Supp. at 1037. The Bands argue the State has not submitted any authority for its argument, and that case law in fact is contrary to such position. As previously held by this Court in Mille Lacs II, the first rule of construction applicable to the interpretation of Indian treaties requires the treaty language be construed as the Indians understood them, “not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.” Id. at 822 (quoting, Washington et al. v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675-76, 99 S.Ct. 3055, 3069-70, 61 L.Ed.2d 823 (1979) (Passenger Fishing Vessel)). The second rule of construction requires that ambiguous terms be construed in favor of the Indians, “particularly if the language could easily be interpreted in favor of the Indians or the United States ...” Id. Together, the canons of construction applicable to the interpretation of Indian treaties requires “a liberal interpretation in favor of Indians.” Id. Applying these canons of construction to Article 5 of the 1837 Treaty, the Court finds that the Bands would not have understood that they could not fish on the portion of a boundary lake which lies outside of the Ceded Territory. As noted by the Michigan Supreme Court in People v. Jondreau, 384 Mich. 539, 185 N.W.2d 375, 378 (1971): The Indians did not have knowledge of the laws concerning municipal boundaries or sovereignty disputes between the Federal and State, governments. Since they were living on land bordering the Keweenaw Bay, as ‘an unlettered people’ they would assume that the right to fish meant the right to fish on the Keweenaw Bay. Similarly, with respect to the boundary lakes at issue here, the Chippewa would assume that they could fish on any portion of the lake, not just on part of the lake. The court in LCO III specifically found that this was the understanding of the Chippewa when they agreed to the treaties of 1837 and 1842. LCO III, 653. F.Supp. at 1426 (they understood they were guaranteed the right to make a moderate standard of living off the land and the waters in and abutting the ceded territory). The treaty guarantees the right to fish “in the rivers and the lakes included in the territory ceded.” On the issue as to whether the Ceded Territory includes only the portion of a boundary lake located inside the boundary or the whole lake, the treaty language is ambiguous. Arguably, the treaty language supports both positions. Applying the second canon of construction applicable to Indian treaties, ambiguities are to be construed in favor of the Indians. Thus, the Bands are free to exercise their rights on those parts of the boundary lakes which lie outside of the Ceded Territory. Because the Court finds that the 1887 Treaty rights extend to waters “in and abutting” the Ceded Territory, there is no merit to the State’s claim that the harvestable surplus calculations for boundary lakes must be reduced on the basis of the percentage of lake outside the Ceded Territory. Summary judgment in favor of the Bands is appropriate on this issue. 4. Private Lands Both the State and the Bands seek a definition of “private lands” upon which the Bands can exercise their usufructuary rights under the 1837 Treaty. The State argues that in Mille Lacs II, the Court’s use of the phrase “private lands open to public hunting, fishing and gathering” restricted the exercise of treaty rights on private lands to those private lands opened to the general public for hunting, fishing and gathering by operation of state law, such as the Minnesota tree growth tax law which creates right of public access in exchange for granting favorable tax treatment to lands. The State argues that such definition does not include private lands to which the owner grants permission to hunt and fish to certain individuals or groups. The State asserts its position is consistent with the holdings in the LCO litigation and by prior orders of this Court. The Bands argue that Mille Lacs II stands for the proposition that the 1837 Treaty did not provide a right of access, therefore the usufructuary rights cannot be exercised on land to which the Band members would not have access. However, by receiving the consent of a landowner, such Band member would be given access and could therefore exercise their rights on such land. In Mille Lacs II, the Court noted that the Bands were not seeking access to private lands. 861 F.Supp. at 789. In a footnote, the Court added: Plaintiffs concede that the 1837 Treaty did not provide any special right of access and that the rights they seek to have recognized “may be exercised only on those lands and waters, public or private, to which Band members have access under generally applicable law.” Joint Proposed Findings of Fact and Conclusions of Law at 92-93. Id., 789 n. 2. Later on in the opinion, Judge Murphy addressed the Landowner’s argument that the usufructuary rights were terminated by land patents issued by the government. Id. at 835. The Court ruled that the issuance of land patents did not extinguish the usufructuary rights at issue, but nonetheless held that exercise of the 1837 usufructuary rights should be limited to lands in the ceded territory that are not privately owned because no right of access was included in the privilege. In this sense, privately owned lands do not include public lands formerly in private ownership or private lands open to public hunting, fishing and gathering. Id., at 836 (citing, LCO III, 653 F.Supp. at 1432, see infra, pp. 834-835. See also Kimball v. Callahan, 493 F.2d 564, 566-69 (9th Cir.) cert. denied, 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1974)). The meaning of the phrase “private lands open to public hunting, fishing and gathering”, can be determined by examining the cases cited in support thereof. Judge Murphy first cites to the LCO opinion of Judge Doyle, which states the following: A specific definition of privately owned lands was not articulated by the court of appeals in LCO I [Lac Courte Oreilles Band v. Voigt, 700 F.2d 341 (7th Cir.1983) ] and LCO II. I declare the term to mean lands that are privately owned as of the time Chippewa exercise of usufructuary rights is contemplated or carried on. The lands are not “privately owned” if they were privately owned at some earlier time, but are no longer so owned. Also, if the owners of privately owned lands have made provision for hunting, fishing and gathering by the public generally — rather than for such activity only by limited persons or groups specifically designated by the owners — the Chippewa can exercise their usufructuary rights. LCO III, 658 F.Supp. at 1432. Judge Murphy then cites to the prior discussion in her opinion addressing the issue of whether the language used in the 1837 Treaty created a profit a prendre that was an interest in land extinguished by the 1855 Treaty or a license extinguished by subsequent sale of land. In finding the usufructuary rights were neither a profit a prendre or a license, Judge Murphy relied on the expert testimony of Dr. Thomas Lund. Mille Lacs II, at 834. Dr. Lund had testified that the 1837 Treaty conveyed a privilege to hunt or fish if the takers could reach the land without committing a trespass. Id. Dr. Lund also testified that the drafters of the 1837 Treaty would not have considered the usufructuary privileges to be a right, title or interest in land. Id. Judge Murphy found that Dr. Lund’s testimony was consistent with nineteenth century law. Id. Judge Murphy then went on to discuss the American common law rule that the sovereign owns fish and game in trust for its citizens, and that a landowner can only convey the right to hunt and fish game on his/her land by granting the right to enter the land for that purpose. Id. Judge Murphy went on to note that as a sovereign, the United States could, however, convey its ability to regulate the taking of the wildlife it owns, and that the similar right was conveyed in the 1837 Treaty. In the nineteenth century the public was allowed to hunt, fish, and gather on all lands not developed, enclosed or posted. An abundant amount of land was open for these purposes, and the drafters of the 1837 Treaty would not have focused on whether the Chippewa would have access to land to hunt, fish, and gather. The 1837 Treaty does not mention access or entry. It seems unlikely that the United States would have given the Chippewa an implied right of access to the 1837 ceded territory because such right could have eventually prevented certain uses of the ceded territory. Id. Judge Murphy also determined that the evidence in the record did not support a finding that the Chippewa understood their usufructuary rights would be subject to automatic termination whenever a portion of the Ceded Territory was transferred by the federal government. Id., at 835. “There is no evidence that the Chippewa understood that the usufructuary privilege would be terminated whenever land was surveyed and sold. They understood that it would only be terminated by the President in good faith.” Id. Finally, Judge Murphy cited the Kimball decision to support the determination that the usufructuary rights can only be exercised on private lands open to the public for hunting, fishing and gathering. In that case, the Ninth Circuit declared that plaintiffs could exercise their treaty rights to hunt and fish “on the lands constituting their ancestral Klamath Indian Reservation, including that land now constituting United States national forest land and that privately owned land on which hunting, trapping or fishing is permitted.” Kimball, 493 F.2d at 570. The court also noted that the plaintiffs did not seek rights against private landowners, because they recognized those persons might properly exclude Klamaths and anyone else from hunting or fishing. Id. at 569. In a footnote, the court stated it was not making any determination as to the treaty rights of the Indians as against private landowners. Id. at 569 n. 10. The Bands argue that read together, the above case law supports its position that “private lands open to public hunting, fishing, and gathering” includes private lands that are undeveloped, non-agricultural and non-posted lands, which, according to statute, are open to the public for hunting. Mmn.Stat. § 97B.001 provides that any person may hunt on private land that is not agricultural land, Section 97B.001, Subd. 1, and that is not posted, Section 97B.001, Subd. 4, if such person has not been notified orally that they may not enter the land by the owner, occupant or lessee of the private land. Section 97B.001, Subd. 3. The case law does support this position, to a certain extent. Pursuant to Section 97B.001, any member of the public, Indian and non-Indian, may enter non-agricultural and non-posted land for the purpose of hunting. However, the owner,• occupant or lessee of such private land could conceivably discriminate against the Indians or the non-Indians by giving oral notice that such persons cannot enter the land to hunt. The State asserts the distinction between private lands open to the public generally and indiscriminately and private lands to which owner consent is necessary is crucial. Private lands open to the public generally carry a statutory right of access, while private lands to which consent must be obtained carries no right of access for the general public. The State also asserts that the LCO court and Judge Murphy held the right to exercise the usufructuary rights coexisted with a right of access protected by state law, not at the discretion of landowners. Although not relied upon by Judge Murphy in making her determination as to which private lands may be utilized by the Bands to exercise their usufructuary rights, the specific issue of whether such rights could be exercised on private lands with owner consent was addressed in Lac Courte Oreilles Band v. Wisconsin, 740 F.Supp. 1400, 1420 (W.D.Wis.1990) (LCO VII). The state of Wisconsin opposed the contention that the Band members could exercise their rights on private lands with owner consent, asserting the issue of consent is legally gratuitous: recognizing on one hand that if the treaty right extends to private lands it is unnecessary for the tribes to secure the consent of the owners, and on the other, that if plaintiffs’ rights do not extend to private lands the tribes cannot relieve themselves of the obligation to obey state hunting regulations simply by reaching an agreement with a property owner to hunt on private lands. Id. The court agreed with the position of the state of Wisconsin. . If plaintiffs have a right to hunt on private lands, they cannot be limited to hunting on only those private lands whose owners consent. Defendants are correct in maintaining that the issue of consent is a red herring: the issue is whether the plaintiffs may exercise their usufructuary rights on private lands within the ceded territory. In my view, that opportunity is foreclosed to plaintiffs at the present time. The decisions of the court of appeals in LCO I, 700 F.2d 341 and LCO II, 760 F.2d 177, have established that plaintiffs’ rights have been extinguished on private lands. I have held that plaintiffs are not entitled to all of the resources necessary to provide them with a moderate standard of living. Plaintiffs are entitled to an equal share of all of the resources within the ceded territory, but they may harvest those resources only from public lands. It may be in the future that they can prove not only that they have the need to take the full half of the resources to which they are entitled but that they have' the capacity as well and that they cannot harvest their share without gaining access to private lands. In that event it may be necessary to take appropriate measure for Chippewa activity on privately owned lands, as Judge Doyle suggested. It may be that hunting by consent is one of those measures. I express no view on that point. Id. After a careful analysis of all the cases eited by the parties on this issue, the Court finds that at this time, the better construction of which private lands are available for the exercise of the 1837 Treaty rights is that proposed by the State. Although the LCO VII decision of Judge Crabb is the only decision which specifically addresses the issue, the Court finds that the essence of the cases cited by the parties supports a finding that the treaty rights at issue' in this litigation may only be exercised on lands, public or private, open to the general public for hunting, fishing and gathering by operation of state law. As noted by the State, allowing the exercise of the usufructuary rights by owner consent would potentially provide individual Band members more rights than other Band members. The rights granted under the 1837 Treaty are rights granted to the Bands, not to individual members. Furthermore, given the fact that a private landowner could discriminate as to who would be allowed to hunt, fish or gather on his/her land would create potential problems in law enforcement. A conservation officer would have the undue burden of having to contact private land owners to determine if consent was provided to certain individuals before being able to determine whether laws were violated. It may be, as pointed out by Judges Doyle and Crabb in the LCO litigation, that it will be necessary at some point in the future to address this issue again if the Bands can show that they cannot harvest their share without gaining access to private lands. However, as the Bands have not, as yet, been able to exercise their usufructuary rights there is no evidence before the Court that they will not be able to harvest their share only on public lands. Based on the above, summary judgment is appropriate for the State as to the definition of “private lands” upon which usufructuary rights may be exercised. 5. Shining Deer in December The Bands have developed a comprehensive set of regulations to provide limited opportunity for band members to hunt deer at night with the aid of lights, over bait, from the day after Labor Day to December 31. Band Code Section 6.20. The State argues that Minn.Stat. §§ 97B.081, 97B.311 and related Minnesota Rules 6232.0300 and 6232.1300 should remain applicable to Band members arguing it is necessary for conservation to prohibit the shining of deer, over bait in December. The State argues that shining deer over bait is such an effective method of hunting and the Band members use of such method may thwart the State’s careful management of deer through its harvest management unit system. The State manages its deer resource through a system of designated harvest management units. This method is used because it takes into consideration different habitats, human development pressure, land ownership and use patterns and climate conditions. There are 121 anterless deer permit areas in the State, fifteen of which fall within the Minnesota Ceded Territory. The State distributes and records deer hunting tags by these units to allow for more control of hunting efforts in the different parts of the State. The State allows hunters to remove anterless deer within the permit units in numbers that correspond to the population management goals and harvestable surplus calculations for the particular permit unit. The State currently makes its calculations based on summer/fall distribution of deer. The concern here is that during the winter months, deer begin to move and migrate seeking better shelter and/or accessible food sources. The winter migration may cause deer to move many miles, from one permit unit to another, or it may cause deer to concentrate in one spot within a unit. Once the deer have concentrated, the State is concerned that the use of the efficient harvest method of shining over bait could lead to deer being harvested in disproportionate numbers from what was predicted by the biologists, leading to potential over harvest of deer in certain parts of the Minnesota Ceded Territory. The Bands first assert that the statutes and rules upon which the State relies to prohibit shining, over bait, in December are over broad. Minn.Stat. § 97B.081 prohibits all shining of deer. Minn.Stat. § 97B.311 merely vests authority in the State Commissioner to prescribe areas and seasons in which deer may be taken. Minn.Rule 6232.0300, Subpart 4 prohibits the use of bait and Minn.Rule 6232.1300 prescribes seasons for taking deer by firearms, the application of which would eliminate most of their firearms deer season. The State concedes that these statutes and rules would not be enforced beyond the extent of prohibiting the shining of deer over bait in December. Accordingly, the Bands are entitled, at a minimum, to a declaration of the Court that such statutes and regulations are inapplicable to Band members except when hunting deer with lights over bait in December. The Bands argue they are nonetheless entitled to summary judgment as to deer shining over bait in December as the State has failed to show that such regulation of this harvest method is necessary for conservation, as that term is defined in the context of Indian Treaty rights. Judge Murphy previously held that before the State can regulate the exercise of the usufructuary privileges the State must show that such “regulation is a reasonable and necessary conservation measure and that its application is necessary in the interest of conservation.” Mills Lacs II, 861 F.Supp. at 838. Case law supports the position of the Bands that “conservation” as that term is used in the context of Indian treaty rights, should be interpreted more narrowly than in other contexts. In United States v. Washington, 384 F.Supp. 312, 342 (W.D.Wash.1974) aff'd 520 F.2d 676 (9th Cir.1975) cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), the district court determined that Indian treaty rights are “rights which are made the supreme law of the land by the federal constitution.” Thus, the state’s power to regulate such rights must be interpreted narrowly and sparingly. Id. “Every regulation of treaty right fishing must be strictly limited to specific measures which before becoming effective have been established by the state, either to the satisfaction of all affected tribes or upon hearing by or under direction of this court, to be reasonable and necessary to prevent demonstrable harm to the actual conservation of fish.” Id. The court went on to state that “[h]owever broadly the word may be used and applied in the theory and practice of