Michigan Humane Soc. v. Natural Resources Com'n

• Decision Date: 06 May 1987
• Docket Number: Docket No. 87939
• Citation: 404 N.W.2d 757,158 Mich.App. 393
• Parties: MICHIGAN HUMANE SOCIETY, Plaintiff-Appellee, v. NATURAL RESOURCES COMMISSION and Department of Natural Resources, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 757

404 N.W.2d 757

158 Mich.App. 393

MICHIGAN HUMANE SOCIETY, Plaintiff-Appellee, v. NATURAL RESOURCES COMMISSION and Department of Natural Resources, Defendants-Appellants.

Docket No. 87939.

Court of Appeals of Michigan.

Submitted Oct. 22, 1986.

Decided March 3, 1987.

Released for Publication May 6, 1987.

Sienna LaRene, Detroit, and Vanderkloot & Haynes, P.C. by Jeffrey K. Haynes, Bloomfield Hills, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Thomas J. Emery and Kevin T. Smith, Asst. Attys. Gen., Lansing, for defendants-appellants.

Before SULLIVAN, P.J., and SHEPHERD and SHUSTER, ^* JJ.

SHEPHERD, Judge.

Defendants appeal from the September 25, 1985, opinion and order of the circuit court in this dispute over the authority of defendants to establish a hunting season for mourning doves, Zenaidura macroura carolinensis. The circuit court granted plaintiff's motion for summary disposition under MCR 2.116(C)(10) and denied defendants' motion for summary disposition under MCR 2.116(C)(8). The circuit court also granted plaintiff's request for a permanent injunction restraining defendants from holding, administering, overseeing or promoting an open hunting season on mourning doves. We affirm since we hold that the Legislature did not delegate authority to defendants to establish such a season.

Mourning doves are members of the family Columbidae. They are classified as migratory game birds and are subject to extensive federal regulation, 16 U.S.C. 703 et seq. See generally 50 CFR 20. States may adopt their own hunting regulations for migratory game birds provided they are at least as restrictive as the federal standards. 16 U.S.C. Sec. 708. Federal regulations change annually based upon an annual state-by-state breeding census. In turn, annual changes in state regulations are required. Thirty-five states have apparently authorized the hunting of mourning doves.

On July 12, 1985, defendant Natural Resources Commission voted to establish a season for hunting mourning doves and defendant Department of Natural Resources subsequently issued hunting regulations. The regulations established a twenty-two day open hunting season beginning September 15, 1985, and ending October 6, 1985. The NRC established bag and possession limits and specified areas where hunting would be allowed. It also established regulations concerning the manner of hunting.

On August 2, 1985, plaintiff filed this action to challenge defendants' authority to establish a mourning dove hunting season. Count I alleged that the NRC acted in excess of its delegated authority by establishing an open season, and count II argued that, if defendants had authority to establish a hunt, such delegation of authority was an unconstitutional grant of legislative authority to an administrative agency. On August 20, 1985, the circuit court granted plaintiff's preliminary injunction request to enjoin the proposed hunt.

Plaintiff subsequently moved for summary disposition under MCR 2.116(C)(10) on August 27, 1985. A hearing was held on September 5, 1985. The parties agreed that no factual dispute existed. At the summary disposition hearing, and on appeal, the parties conceded that the proposed hunt would have no biological impact on the mourning dove population. Likewise, the absence of a hunting season would have no biological impact on the population, which is annually reduced by at least seventy percent through natural causes.

The circuit court entered its opinion and order on September 25, 1985. The court concluded that the NRC was without concurrent or exclusive authority to establish a mourning dove hunting season. The court found no indication in the relevant statutes that the Legislature intended to confer such authority on the NRC. The court found that plaintiff and the Michigan residents plaintiff represented would suffer an irreparable injury if the mourning dove hunt were allowed. Accordingly, the court granted plaintiff's motion for summary disposition and entered a permanent injunction.

Defendants' main premise is that a recent statutory amendment reclassifying mourning doves as game birds authorized the NRC to establish an open season. Because this case requires extensive statutory interpretation and determination of legislative intent, a discussion of the relevant statutory framework is necessary.

Const. 1963, art. 4, Sec. 52 requires the Legislature to provide for the protection of the state's natural resources from "pollution, impairment and destruction." Although the Convention Comment to this constitutional provision indicates that it is a new section, the Legislature earlier created the predecessors of the DNR and NRC through 1921 P.A. 17; M.C.L. Sec. 299.1(1), (2); M.S.A. Sec. 13.1(1), (2). Through the enactment of 1925 P.A. 230, specifically M.C.L. Sec. 300.1; M.S.A. Sec. 13.1211, the Legislature authorized the Conservation Commission, and subsequently the NRC, to regulate the taking or killing of all game birds protected by the laws of this state and to suspend or abridge the open seasons provided by law, if necessary:

"The commission of conservation of the department of conservation of this state shall, in accordance with the provisions of this act, have power to regulate the taking or killing of all fish, game and fur-bearing animals and game birds protected by the laws of this state, and may suspend or abridge the open season provided by law for the taking or killing of any such fish, animals or game birds in any designated waters or area of this state, whenever in the opinion of said commission of conservation it becomes necessary to assist in the increased or better protection of such fish, game or fur-bearing animals or game birds, or of any particular kinds or species of the same, which may in the opinion of said commission be threatened from any cause or causes with depletion or extermination in said waters or area, and for the purpose of such regulation, suspension, or abridgement, said commission of conservation is hereby empowered to make and promulgate any and all orders and regulations necessary to carry out the provisions of this act and as in this act provided, on the recommendation of the director of conservation after a thorough investigation has been made by him."

The Game Law of 1929, 1929 P.A. 286; M.C.L. Sec. 311.1 et seq; M.S.A. Sec. 13.1321 et seq., (Game Law) contains numerous provisions pertinent to our discussion. It has been repeatedly amended since its enactment. Chapter I contains definitions, including that of "non-game birds," "game" and "open season." Until amendment by 1982 P.A. 335, Chapter I also provided a definition of "game birds." This definition, however, did not include birds in the family Columbidae, such as mourning doves.

Chapter II of the Game Law consists of general hunting and possession regulations. It also includes a provision establishing open hunting seasons for specific birds and animals, M.C.L. Sec. 312.11; M.S.A. Sec. 13.1340. These open seasons vary considerably. While specific dates are established for some animals, the act provides that skunks, for example, may be taken at any time under rules promulgated by the NRC. The Legislature also provided that certain animals, such as moose, killdeer, and eagles, to name but a few, shall not be killed at any time. While the section does not provide that mourning doves may not be killed at any time, neither is an open season specifically established for mourning doves, nor does it appear that the Legislature has ever established such a season. Chapter IV of the Game Law covered licenses and permits, but much of it was repealed by the Hunting and Fishing License Act, 1980 P.A. 86, M.C.L. Sec. 316.101 et seq.; M.S.A. Sec. 13.1350(101) et seq. (License Act).

The License Act contains the following definitions:

"(1) 'Game' includes game birds and game animals.

* * *

* * *

"(3) 'Game birds' includes all of the following:

(a) The anseriformes, commonly known as geese, brant, and wild ducks.

(b) The gruiformes, commonly known as rails, coots, and gallinules.

(c) The charadriformes, commonly known as shore birds, snipe, woodcock, plovers, and sandpipers.

(d) The galliformes, commonly known as pheasant, quail, Hungarian partridge, grouse, prairie chicken, sharptailed grouse, and wild turkey.

(e) The columbiformes, commonly known as doves and pigeons.

(f) The corvidae, commonly known as crows, ravens, and jays." M.C.L. Sec. 316.105; M.S.A. Sec. 13.1350(105) (emphasis added).

Unlike the definition of "game birds" in the Game Law, the definition in the License Act includes columbiformes and corvidae. Thus, prior to the enactment of 1982 P.A. 335, two separate definitions of "game birds" existed in the game laws. The definition in the Game Law did not include doves, but the definition in the License Act did. The definition of "game birds" in the Game Law was repealed by 1982 P.A. 335, as was the definition of "game animal," "small game," and "fur-bearing animals." The License Act's definition of "game" is quite similar to that remaining in the Game Law, M.C.L. Sec. 311.7; M.S.A. Sec. 13.1327.

The NRC argues that these statutes and amendments provide concurrent authority to establish open seasons, at least for animals such as mourning doves for which the Legislature has not already established an open season. The fundamental legal issue presented in this appeal, then, is whether the challenged administrative order created new law or merely constituted a discretionary exercise of the NRC's authority.

Both plaintiff and defendants have cited Coffman v. State Board of Optometry Examiners, 331 Mich. 582, 590, 50 N.W.2d 322 (1951), for the test to determine the scope of authority delegated to an administrative agency:

"In 42 Am Jur, Sec. 26, p 316 et seq., it is stated:

" 'Administrative boards, commissions, and officers have no common-law powers. Their powers are limited by the...