January 02, 2019
By Josh Greenberg
Combine the following: a world-class trout stream in rural northern Michigan, a retired state fish hatchery, a politically connected fish farmer with the pomp and charm of a seasoned salesman, a state-sponsored aquaculture initiative, a thriving fly-fishing economy, a divorce lawyer working pro bono, the birthplace of Trout Unlimited, and you have a fair idea of the case that pitted the non-profit group Anglers of the Au Sable against a commercial fish farming operation on the headwaters of the Au Sable River.
From Hatchery to Fish Farm
The Grayling Fish Hatchery is an historic and dilapidated facility. It was once used to stock trout in the Au Sable River, which was done by floating buckets of fish down the river by canoe. Like any river, the Au Sable has its share of seasoned anglers who wax poetic about the good old days. But some of this poetry—perhaps a good portion of it—muses on what were in fact stocked trout. Trout Unlimited was founded on this river in reaction to the stocking, and it wisely emphasized the value and importance of wild trout . . . and angling folks caught on. The state closed the hatchery in the 1960s and eventually deeded the facility to Crawford County for “recreation and museum purposes.”
For years, the county operated the Grayling Fish Hatchery as a tourist attraction, raising just enough trout to keep the tourists happy. Kids fed the trout, or caught them from the raceways and had them cleaned. It was a classic roadside attraction, and was slowly losing the county money.
In 2014, the county decided to lease the facility, for 20 years, to a fish farmer for one dollar (five cents per year). Despite numerous objections, the fish farmer then received a DEQ (Department of Environmental Quality) permit to farm up to 300,000 pounds of trout per year, and to discharge effluent directly into the river, just upstream of the most popular wild trout fishery in the state. No settling pond. No filtration system. Not even a performance bond to protect the river if things went awry.
All he had to do, while farming all those trout, was allow tourists to come in and feed the fish. Astoundingly, the permit acknowledged that the fish farm would in fact lower the water quality of the Au Sable, but such pollution was acceptable due to the local economic benefit of the Grayling Fish Hatchery as a tourist attraction and the two jobs it would create.
At a local county meeting regarding the fish farm, the objectors wore fishing shirts. The supporters in the audience wore suits, and were from the state capital of Lansing.
It was at this meeting that the supporters of the fish farm first met Joe Hemming, a Detroit lawyer and Au Sable cabin owner. At the time the pro-fish farm folks surely didn’t suspect, as Joe stood and offered his opinion as to why this was a bad idea, that it would be him, and the organization that he would one day lead, that would ultimately be their undoing.
“We only wanted the state of Michigan to require of this fish farm what it requires of its best state-run hatcheries,” Hemming said softly while remembering how this whole thing started.
Michigan’s Au Sable is as famous for its place in fly-fishing conservation as it is for its trout fishing, and not just because it’s the birthplace of Trout Unlimited. In 1987, an FFI (then FFF) chapter, the Anglers of the Au Sable, was born: a site-specific conservation group with an entirely volunteer board. All donations were applied toward improving and protecting the Au Sable and Manistee rivers.
Over the next 31 years, Anglers (as it is known) had a series of highly publicized victories. The group established catch-and-release on the most highly pressured stretches of river, fought off a gas well, and then took a case all the way to Michigan Supreme Court over the remediation of a plume of petrochemicals near the headwaters of the river. From all this smoke and fire the ominously quiet president of Anglers, Calvin “Rusty” Gates emerged victorious.
Along the way the organization won numerous awards. Rusty was named Angler of the Year in 1994. He created an unwavering board and membership, a sense that if an activity or development crossed the mission statement of the Anglers of the Au Sable, then there was no choice but to defeat it.
“Rusty defended the river at great personal cost. He was not afraid to offend those who would endanger the river and its fishery,” Tom Baird, former president of Anglers of the Au Sable, remembered.
When Rusty died in 2009, the biggest perceived threat was hydraulic fracturing, not the Grayling Fish Hatchery. It was still just a sleepy old tourist attraction. That same year, Joe Hemming joined the board of the Anglers of the Au Sable.
Joe Hemming is a decorated lawyer with a soft touch but the spine of a 12-weight. His specialty is family law, and his approach is amenable. He rarely shares his cellphone number, and most board members know it’s Hemming calling because their phones flash “no caller ID.” His cabin on the Au Sable is for family time, and for fishing.
He lives in a stretch of river known for its massive hatches of Hexagenia limbata—the great nocturnal mayfly, which blankets the lights of his cabin in late June. He fishes in the dark, alone or with friends, in water so flat that you can see Orion simply by looking down.
He joined the board of Anglers of the Au Sable and quickly became indispensable. In 2014 he became vice president to Tom Baird. He was elected president in 2017, right in the middle of the court case.
“I think when I filed the Petition for Contested Case Hearing on behalf of Anglers back on August 28, 2014, I knew this case would take over a good portion of my life. From that date forward, it seemed that each new piece of evidence in our case simply added to my belief that this fish farm posed a terrible threat to the river,” Hemming says.
To learn more about the potential hazards of the permit, Anglers of the Au Sable hired Dr. Ray Canale—a University of Michigan professor emeritus and expert on flow-through fish hatcheries and systems—to identify and quantify the threats of the fish farm. The numbers his modeling predicted were terrible, with up to 160,000 pounds of total suspended solids (primarily food and feces) being discharged into the Au Sable River from this new fish farm when operating at maximum capacity.
The result, he and other experts warned, would be dissolved oxygen shortages, increased potential for introduced diseases like whirling disease, and the perfect living conditions for the mysteriously introduced New Zealand mud snail, the highest concentrations of which were now found directly below the Grayling Fish Hatchery.
In the meantime, a push to make Michigan a hotbed for aquaculture was meeting statewide resistance. Proposed legislation was introduced to thwart efforts to turn the Great Lakes and its feeder streams into an aquaculture center. Major Michigan newspapers ran editorials arguing for and against aquaculture, and neither side was remiss in pointing to the battle on the Au Sable as something of an ideological ground zero.
Dan Vogler, owner of Harrietta Hills Trout Farm, was and still is the president of the Michigan Aquaculture Association. Smart and determined and eloquent, he held his own at a variety of venues, including a town hall in the city of Grayling, where support was split. He had some pretty good sound bites when he described the Anglers of the Au Sable in various interviews as “a bunch of playground bullies” and “mean-spirited individuals with $2,000 fly rods.”
It would become something of a rallying cry for both sides, and as the case gained exposure, including mention in The New York Times, the money to stop the fish farm poured in from foundations, from wealthy individuals, from fly shops across the state, and from the tens of thousands of anglers who visit the Au Sable, some with $2,000 fly rods, some with $20 fly rods, and some with no fly rods at all.
Anglers of the Au Sable challenged the permit before an administrative law judge in the state capital of Lansing. It was a long and grueling court case marred by winter storms, and numerous delays. Hemming and the legal team, which included noted environmental attorney Jeffrey Haynes, took up station in a hotel, and worked nights after long days in the courtroom. Numerous board members attended, some every single day of the trial, and a few were called to testify. And Anglers of the Au Sable lost.
Many river guides donate trips to support their local conservation organizations. Imagine donating 30 days in a row. That’s what Joe Hemming did. Imagine spending 18 days in litigation in Lansing, Michigan, away from your home, with an hourly wage of zero. Imagine the near-endless preparation, the dozens of conference calls, the pull of familial expectations. Imagine all your experts blowing holes through the DEQ’s science, destroying any argument that the Grayling Fish Hatchery was as important to the tourist industry as a healthy Au Sable. And then imagine the administrative law judge ruling in favor of the DEQ, because that’s what administrative law judges usually do.
It would have been easy, and justifiable, to say adieu.
“Joe is always looking for other ways to approach problems. But when he goes into litigation mode, look out,” Baird said.
And this is why Hemming deserves to be recognized as Fly Fisherman’s 2019 Conservationist of the Year. He just kept fighting. He recommended that the Anglers take the fish farmer to a local court, and so they did. Now the state wouldn’t be providing the witnesses, or the experts on behalf of the fish farm—the free ride was over.
But Hemming was just getting started. This court case, he warned, would be expensive. It would stretch the organization to its core. But the Anglers of the Au Sable legal team established standing for their case, on grounds that the facility was violating the Michigan Environmental Protection Act.
“I have always described our organization as a junkyard dog and that once we grab on to someone’s pant leg, we won’t let go no matter how hard they shake their leg. And I knew there would be a lot of shaking of that leg,” Hemming recalls.
Meanwhile, the Grayling Fish Hatchery, now a permitted fish farm, had its own issues to deal with. The 2018 headlines read: “Grayling Fish Hatchery Sees Fish Die After Coming Down with ‘Ich.’”
It happened, Anglers of the Au Sable said, just like we knew it would.
Disease at the Fish Farm
While reports of a trout die-off in the fish farm’s raceways were probably good for the case, there was a new urgency for a quick and complete resolution of the threat. By now, Hemming and the legal team had weaved a substantial case against the fish farm, and the sense was that the end would come soon. But Hemming urged his board to continue preparations for a long, expensive court case.
In the fall of 2018, the two opposing parties met at a settlement table. A price was agreed on, and, in the matter of a few days, a four-year battle that raged in the hearts of many was extinguished, anticlimactically, with the simple writing of a check. Anglers of the Au Sable paid $160,000 to take over the hatchery operation and end the threat of a fish farm forever.
“The beauty of a settlement is that it cuts off any appeals in the court hearing. I truly believe that had this case gone through the local court hearing we would have prevailed, but I also know that whoever lost in court would have appealed and the case would have gone for many more years,” Hemming says. The $160,000 settlement was far less than what Anglers had budgeted for a long-term legal battle.
As part of the settlement, the county assigned the remainder of the 20-year lease to Anglers. The fish farmer agreed to never pursue another aquaculture venture on the Au Sable or its tributaries. And a $10,000 donation by Simms, in recognition of years of hard work by many people including Joe Hemming, will go toward continued stewardship of the river by Anglers of the Au Sable.
Hemming has developed a vision to manage the Grayling Fish Hatchery as an environmentally sound tourist destination and educational center. It will be managed by a separate nonprofit made up of board members from Anglers of the Au Sable.
“I see an incredible opportunity to educate the public about our natural resources and in particular about the special nature of the Au Sable River. One day I hope we can put grayling into some of these runs to show the public our native fish, the city of Grayling’s namesake, and in doing so create a true tourist draw for Grayling and for Crawford County,” Hemming says.
To this end, work has begun in earnest to ensure the facility is up and running in May 2019. The morning after victory was declared, the entire Anglers of the Au Sable board received an email from president Joe Hemming: Need to form ad hoc committee re: hatchery. What time can we do a conference call?
As Rusty often said, it never ends.
*Josh Greenberg is the author of Rivers of Sand: Fly Fishing Michigan & The Great Lakes Region, owner of Gates Au Sable Lodge, and a member of the board of directors of Anglers of the Au Sable.