State Conservation Dept. v. Seaman, 6

• Citation: 396 Mich. 299,240 N.W.2d 206
• Decision Date: 01 April 1976
• Docket Number: No. 6,M,6
• Parties: STATE CONSERVATION DEPARTMENT, Plaintiff-Appellee, v. Avis McGahan SEAMAN and Duane L. Seaman, d-b-a McGahan and Seaman, Defendants-Appellants. *ay Term 1975. Supreme Court of Michigan
• Court: Supreme Court of Michigan

Page 206

240 N.W.2d 206

396 Mich. 299

STATE CONSERVATION DEPARTMENT, Plaintiff-Appellee, v. Avis McGahan SEAMAN and Duane L. Seaman, d-b-a McGahan and Seaman, Defendants-Appellants. ^* No. 6, May Term 1975 Supreme Court of Michigan April 1, 1976.

[396 Mich. 304] Ronald R. Tyler, Pros. Atty., Tawas City, for plaintiff-appellee.

Nino E. Green, Escanaba, for defendants-appellants.

WILLIAMS, Justice.

This case comes before us on appeal from three condemnation and confiscation orders entered by the Iosco Circuit Court against the defendants for acts of illegal fishing. The issues raised on appeal are: 1) does Section 1b(2) of Commercial Fishing Law, ¹ which authorizes the director of conservation (Director of Natural Resources) to place restrictions on commercial fishing licenses, constitute an unconstitutional delegation of legislative authority?; 2) does Rule 3 of Order No. 17 (revised) ² exceed the authority granted the Department of Natural Resources by the Legislature in the Commercial Fishing Law?; and 3) did the warrantless search of defendants' vessel constitute an unreasonable search in violation of the Fourth Amendment to the United States Constitution and article 1, § 11 of the Michigan Constitution?

[396 Mich. 305] We find that § 1b(2) of the Commercial Fishing Law does not constitute an unconstitutional delegation of legislative authority, nor does Rule 3 of Order No. 17 (Revised) exceed the DNR's authority as granted by the Legislature. However, we do find that the conservation officers conducted an illegal search in violation of the Constitution, and as a result defendants are entitled to the return of their vessel, which was wrongfully seized.

I--FACTS

In 1972 the DNR issued defendants a commercial fishing license. In accordance with DNR Order No. 17, Rule 3 ³ and other DNR regulations, the license restricted the number and types of nets to be used by the defendants in certain areas or 'zones' of the Great Lakes. The defendants protested one restriction in particular which limited

the use of gill nets to those with mesh sizes of 8 inches or more. Defendants had been accustomed [396 Mich. 306] to using gill nets with a mesh size of 2 1/2 to 2 7/8 inches. ⁴

Contrary to the provisions of the license, defendants continued to use the 2 1/2 inch mesh gill nets. ⁵ On three separate occasions DNR officials after observing defendants conducting illegal fishing activities seized fish and/or equipment in the possession of the defendants.

The first seizure took place on May 11, 1972. After observing defendants' activities and obtaining a search warrant, DNR officials boarded defendants' vessel and seized a quantity of chubs (a species of protected fish). The next day officers seized a buoy and 10 boxes of gill nets from the open waters of Lake Huron in an area where the defendants had been observed tending their nets.

On October 3, 1972, the third seizure was made after DNR officials had conducted the search which is now being challenged. The day before the search and subsequent seizure, conservation officers, suspecting that defendants were again violating provisions of their license, set up an observation post on the shores of Lake Huron and at dusk observed what apparently was the defendants' vessel setting nets. Unable to further investigate due to darkness, they set out the following morning to examine the area. By 7:30 A.M., October 3, 1972, the officers had established the presence of illegal gill nets which belonged to the defendants. After marking these nets, the officers withdrew from the area but kept it under surveillance. In [396 Mich. 307] the early evening DNR officials observed the defendants' vessel apparently in the process of tending its nets and then heading for its mooring at the Oscoda docks. At approximately 8:45 P.M. that evening officials sought permission to search the moored vessel. After acknowledging that they did not have a search warrant and being refused permission to conduct a search, they broke into the vessel with an axe. Upon discovering a quantity of fish and the previously marked nets, the vessel and its contents were seized.

The Iosco Circuit Court issued condemnation and confiscation orders against the defendants. The Court of Appeals affirmed on May 2, 1974. 53 Mich.App. 192, 218 N.W.2d 813. On October 15, 1975, we granted leave to appeal. 392 Mich. 809.

II--SECTION 1b(2) NOT UNCONSTITUTIONAL DELEGATION

The threshold question in this case is whether § 1b(2) constitutes an unconstitutional delegation of legislative authority. Section 1b(2) provides:

'In addition to the requirements of this act and rules promulgated pursuant to this act, the license issued by the director of conservation may contain provisions:

(a) Fixing the amount of fish to be taken by species and kind.

(b) Designating the areas in which the licensee shall be permitted to fish.

(c) Specifying the season when and the depths where the licensee may conduct his commercial fishing operations.

(d) Specifying the methods and gear which the licensee shall use.

(e) Specifying other conditions, terms and restrictions which are deemed to be necessary in carrying out the provisions of this act, including but not limited to the [396 Mich. 308] right to inspect the licensee's fishing operations in the waters, on board or ashore.'

Defendants maintain that this provision marks a departure from the prior practice of the Legislature to maintain a commercial fishing law by modifying the original act

(1929 P.A. 84) by detailed amendments ⁶ and since it provides no guidelines it must be regarded as an unconstitutional delegation of Legislative authority

The rule with regard to delegation was simply and aptly stated in the leading case of Locke's Appeal, 72 Pa. 491, 498--499 (1873):

'The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.'

The difficulty, as this Court on a previous occasion suggested, 'is in determining whether the limits (on the exercise of discretion conferred on the administrative official) are sufficiently defined to avoid delegation of legislative powers.' Argo Oil Corp. v. Atwood, 274 Mich. 47, 52 264 N.W. 285 (1935).

In making this determination whether the statute contains sufficient limits or standards we must be mindful of the fact that such standards must be sufficiently broad to permit efficient administration in order to properly carry out the policy of the Legislature but not so broad as to leave the people [396 Mich. 309] unprotected from uncontrolled, arbitrary power in the hands of administrative officials.

While no hard and fast rule exists for determining whether a given statute has provided sufficient standards, a number of guiding principles have evolved in Michigan jurisprudence to assist in making a determination in this case.

First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Argo Oil Corp. v. Atwood, supra 53, 264 N.W.2d 285.

Second, the standard should be 'as reasonably precise as the subject matter requires or permits.' Osius v. City of St. Clair Shores, 344 Mich. 693, 698, 75 N.W.2d 25, 27; 58 A.L.R.2d 1079 (1956). ⁷

The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. ⁸ The 'various' and 'varying' detail associated with managing the natural resources has led to recognition by the courts that it is impractical for the Legislature to provide specific regulations and that this function must be performed by the designated administrative officials. People v. Soule, 238 Mich. 130, 140, 213 N.W. 195 (1927). See United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1910).

Third, if possible the statute must be construed in such a way as to 'render it valid, not invalid,' as conferring 'administrative, not legislative' power and as vesting 'discretionary, not arbitrary, authority.' Argo Oil Corp. v. Atwood, supra, 274 Mich. 53, 264 N.W. 285.

III--APPLICATION OF PRINCIPLES

The first principle requires that the statute in question be viewed in its entirety. Section 1b(2) read together with 1b(1) provides a proper framework in which the Director of Natural Resources is authorized to act. Section 1b(1) provides:

'Notwithstanding the provisions of this or any other act, The director of conservation, when in his opinion it is necessary for the better protection, preservation The legislative policy and standards to guide the director are apparent, to wit: to protect and preserve the fisheries of this state and to allow the taking of fish conditioned upon a grant of permission in the form of a license, but only when such taking will not disrupt the primary goal of protection and preservation. The director has been given the authority to factually determine the nature and degree of commercial fishing, in terms, of species, location, and types of fishing gear, which may be allowed without affecting the goal of protection and preservation. These statutory provisions insure that the will of the Legislature will be given substance and effect as a result of the director's factual determinations.

management, harvesting and utilization of the fisheries in the waters described in section 1 May limit the number of fishing licenses to be issued under the provisions of this act and fix and determine the qualifications of such licensees. In determining the number of licenses that the director of conservation issues during any license year, he shall take into consideration the number of persons holding such licenses, the number of licensees needed to harvest the fish known or believed to be harvestable, the capacity of the boats and equipment owned...