Department of Natural Resources v. Seaman

DNR v Seaman 1976] DEPARTMENT OF NATURAL RESOURCESv SEAMAN (Calendar 7, 6). Argued May Docket Nos. 55943-55944. No. 1, April Decided 1976. Department brought The of Natural Resources three actions for fish, fishing equipment, confiscation and condemnation of and a fishing against commercial boat J. Avis McGahan Seaman and fishing Duane L. Seaman depart- for commercial in violation of regulations ment and restrictions in fishing their commercial Court, Miller, J., license. The Iosco Circuit Allan C. entered an order of Appeals, confiscation and condemnation. The Court of Bronson, J., Quinn JJ., Valkenburg, P. and Van affirmed (Docket 16365-16367). appeal, asserting Nos. Defendants Fishing the unconstitutionally delegates Commercial Law au- thority Resources, fishing Director of Natural that the Department rules of the of Natural Resources exceed the authority department, of the equip- and that their boat and ment and fish were taken in an unconstitutional search and seizure. Held: Fishing 1. The section of the Commercial Law which autho- Department place rizes the of Natural Resources to restrictions on commercial licenses is not an unconstitutional dele- gation legislative authority. statutory guide The standards to department issuing fishing licenses, primary goal being protection preservation state, reasonably precise

fisheries of subject are as as the permits. Legislature provided matter necessary has flexibility management by giving effective of fisheries department discretion, arbitrary power, regulate limited taking the commercial of fish. department 2. The rules of the and restrictions in commer- [14, [1-3, [5, [4, ^[13] [10-12, 68 Am Jur 9] 6-8] 68 Am Jur 16] 35 Am Jur 14] 35 Am Jur 1 Am Jur 5 Am Jur 35 Am Jur 2d, 2d, References 2d, Searches and Seizures 2d, 2d, Searches and Fish and Game 2d, Administrative Law §§ Fish and Game 45. 2d, Arrest Fish for Points in Headnotes and Game 54.§ §§ Seizures §§ 6.§ 28. § §§ 35-59. 100-130, 117. 221-226. 396 gill limiting of small-mesh the use nets do cial licenses department authority given the statute. The not exceed the department language allows limit in the statute qualifica- to determine issued number of licenses place department authorizes tions of the licensees spelled out in the act. not restrictions licenses reasonable authorizing officers to conduct a conservation 3. The statute require exigent be construed a warrant must search without justify In the instant case a search. there circumstances to such probable had exigent The officers cause were no circumstances. conducting illegal fishing were to believe that the defendants search, operations was moored at the vessel its well before berth, that the defendants were no indication and there was incriminating dispose attempt of about or to leave ample suggest was time to obtain that there evidence. The facts the search Under these circumstances a valid warrant. search subsequent of seizure the vessel was unconstitutional and illegal. the return of are entitled to their The defendants property. Levin, J., concurred, J., Kavanagh, concurred C. with whom authorizing validity upholding restrictions of the statute validity of the and the DNR on commercial licenses rule, agreed of the defendant’s vessel that the seizure and that the defendants are a warrant was unlawful without property. probable of The existence entitled to return of illegally being used cannot the vessel was cause to believe exigent justify a warrant absent or seizure without a search purports which to authorize seizure circumstances. The statute justification does not serve as a of the vessel without a warrant right yield must to be secure for the seizure. The statute against unless the statute itself falls searches and seizures requirement. exceptions to the warrant The one of the within proceeding forfeiture of the vessel is civil does that the fact protection. take it out of the Fourth Amendment’s not because, Levin, J., separate concurring opinion a also wrote agrees an uncon- he that the statute does not constitute while delegation authority of of and that the Director stitutional given to act Resources has been reasonable discretion Natural provided guidelines, legislatively he does in accordance with agree standards to the statute must itself contain delegated authority. guide of He also concurred the exercise must returned. He is the conclusion that the vessel be Court, record, proper Supreme opinion should on property in excess of forfeiture of for use consider whether forfeiture for manufacture or contrast with authorization —in DNR v Seaman transportation with of consistent contraband —is relevant con- principles. stitutional The matter is remanded to Iosco Circuit Court for further proceedings. (1974) App part 53 Mich reversed in NW2d part. affirmed in Court (cid:127) Delegation 1. Administrative Law — Powers. Legislature delegate power law; cannot its to make a but it delegate power can make a law to to determine some fact or makes, upon make, things state of the law or intends to depend. its own action Delegation 2. Administrative Law — Powers —Discretion— Standards. determining whether the limits on the exercise of discretion sufficiently conferred an official administrative are defined delegation legislative powers, to avoid it must be borne in sufficiently permit mind that standards must broad to effi- carry properly policy cient administration in out order Legislature people unpro- but not so as to leave the broad uncontrolled, arbitrary power tected from in the hands administrative officials. Delegation 3. Administrative Law — of Powers —Statutes. guiding principles determining provides The in a whether statute sufficient standards for exercise of the discretion of an adminis- (1) provision question trative official are: the in should not be act; isolated (2) must be but construed with reference the entire reasonably precise subject the should standard be as as the (3) requires permits; possible matter or and if the must statute valid, way invalid, be construed in such a as to render it not as conferring administrative, legislative power, vesting not and as discretionary, arbitrary, authority. Fishing Department 4. Fish —Commercial of Law — Natural Re- sources —Licenses—Standards. legislative policy Fishing The and standards in the Commercial guide Department issuing Law to of Natural Resources in fishing protect preserve commercial are licenses and taking state fisheries of the and to allow the of fish conditioned upon grant permission license, only of in the form of a but taking disrupt primary goal protec- when such will not of (MCL308.1b). preservation tion and 396 Mich Fishing Department 5. of Natural Fish —Commercial Law — Re- sources. Department given The been of Natural Resources has the author- ity degree factually nature and of determine commercial location, fishing, species, types fishing gear, in terms of and of may aifecting goal protection of allowed without (MCL308.1b). preservation of of the fisheries the state Fishing Department 6. Fish —Commercial Law — of Natural Re- sources —Licenses—Standards. Fishing issuing The in standard the Commercial Law for the of fishing reasonably precise is as licenses as the subject requires permits difficulty matter or of view the complexity (MCL management of of natural resources 308.1b). Fishing 7. Fish —Commercial of Law —Director Conservation —Li- Delegation censes — of Power. Fishing The of section the Commercial Law which authorizes the place Director of Conservation to restrictions on commercial fishing delegation not an legisla- licenses is unconstitutional (MCL308.1b). authority tive Fishing 8. Fish —Commercial Law —Licenses—Restrictions. language Fishing in the Commercial Law that the Director of Resources), (Department Conservation of Natural when in his opinion necessary protection, management, it for the better harvesting fisheries, may and utilization limit the num- fishing ber of licenses to be issued fix and determine the qualifications place of such licensees authorizes the director to spelled specifically licenses reasonable restrictions not out statute, prohibition gill such as of the use of nets of less eight (MCLA than mesh inches size in certain zones 308.1b). Fishing Department 9. Fish —Commercial Law — of Natural Re- sources —Rules. Department prohibits A of Natural Resources rule which use gill eight nets less than inch mesh in certain zones authority granted Department does not exceed the by Legislature Natural Resources in the Commercial Fish- (1970-1971 299.883). ing AACS, Law R 10. Searches and Seizures —Without Warrant —Constitutional Exigent Law —Probable Cause — Circumstances. search A without a warrant in order to be reasonable under DNR v Seaman requires probable Fourth Amendment more than cause—exi- (US Const, IV).

gent present circumstances must also be Am Exigent 11. Searches and Seizures —Conservation Officers — Cir- cumstances. providing may that conservation officers statute search boats requiring presence without must be construed as warrant exigent circumstances before conservation officers are autho- (MCL300.12). rized to conduct search without a warrant Fishing 12. Searches and Seizures —Without Warrant — Boats. The search without a warrant of defendants’ boat consti- tuted an search in unreasonable violation of the Federal and exigent state Constitutions where no circumstances existed because conservation officers had the defendants under surveil- day prior boarding lance for more than a the vessel and had probable established cause to believe that defendants were conducting illegal operations well before the actual place, search took the vessel was at moored its berth and there was no indication that the defendants were about to leave or attempt dispose incriminating evidence, and the (US ample officers had time obtain a valid search warrant 11). Const, IV; Am Const art 1 § Illegal Property. 13. Searches and Seizures — Search —Return of property wrongfully following When has been seized an invalid search, property should be returned the owner.

Concurring Opinion J., Kavanagh, Levin, C. J.

See headnotes 7-10. Exigent 14. Searches and Seizures —Conservation Officers — Cir- cumstances. purports A statute which to authorize seizures of boats conser- yield right vation officers without a warrant must to be against secure unreasonable searches and seizures absent exi- (MCL gent 300.12; 13.1222). circumstances MSA 15. Searches and Seizures —Forfeitures—Fourth Amendment. penalties Suits for and forfeitures incurred the commission of against quasi-criminal offenses the law are in nature and proceedings purposes within the reason of criminal all (US IV). Const, the Fourth Amendment Am 396 Opinion op Court

Concurring Levin, J. 7, 8, 11, See headnotes and 13. Statutes—Delegation op

16. Administrative Law — Power. delegates discretionary power A statute which need not itself guide delegated power. contain standards to the exercise of the op Property. 17. Licenses —Searches Seizures —Forfeiture Supreme proper Court should consider on record whether property forfeiture of in excess of used authorization in a regulated pursuit vocational or avocational contrast with —in transportation forfeiture for manufacture or contraband —is principles. consistent with constitutional Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ronald R. Tyler, Prosecuting Attorney, plaintiff. for Green,

Nino E. for defendants. J: This case comes before us on ap Williams, peal from three condemnation and confiscation orders entered the Iosco against Circuit Court the defendants illegal fishing. acts of The issues 1) lb(2) raised on appeal are: does of Commercial § Law,1 Fishing which authorizes the Director of (Director Resources) Conservation of Natural place restrictions licenses, constitute an delegation legis unconstitutional 2) lative authority?; does Rule 3 of Order No. 17 (revised)2 exceed the granted authority Depart ment of Natural Resources the Legislature 3) Law?; the Commercial Fishing did the warrantless search of defendants’ vessel constitute an unreasonable search in violation of the Fourth Amendment to the United States Constitution and article 11 of the Michigan Constitution? § 13.1491(2). 308.1b; 1 1929 PA 84 as amended. MCLA MSA AACS, R 299.883. 2 1970^1971 DNR v Seaman Opinion of the Court lb(2) Fishing § We find that of the Commercial Law does an not constitute unconstitutional dele- gation legislative authority, nor does Rule 3 of (revised) authority No. 17 exceed the Order DNR’s granted by Legislature. However, as we do find illegal the conservation officers conducted an Constitution, search violation of the and as a result defendants entitled to the are return of wrongfully vessel, which was seized.

I — Facts In 1972 the DNR issued defendants a commer fishing cial license. In accordance with DNR Order regulations, 17, 33 No. Rule and other DNR types license restricted the number and of nets to by used defendants certain areas or pro "zones” of the Great The Lakes. defendants particular tested one restriction in which limited gill the use of nets to those with mesh sizes of 8 inches or more. Defendants had been accustomed 3 17, provides pertinently: DNR Order No. Rule 3 Except "Rule 3. as otherwise restricted Act 84No. of the Public amended, being Acts of Compiled fishing rized written as sections 308.1 to 308.48 of the [sic], rules, Laws of 1929 permitted and commercial prescribed zonps following as in the or as autho- permission of the director of natural resources or his representative. Large "Zone 19-Lake Huron not otherwise described herein. mesh gill fathoms south of a line section larger permitted depths nets 8 inches or are less than 5 running River, due east from the Black 14, T28N, R9E, boundary. Trap to the international nets are permitted April May September 1 from and from 15 to Novem- following 30 in an area north and ber east of Sand Point within the commencing westerly described boundaries: at the monument on tip Point; easterly of Sand thence to the section line section between 7, T17N, R10E, 12, T17N, R9E; and section thence on a line due north miles; point for monument on Sand thence on a line due west ato due north of the Point; southerly point beginning” thence subject violations which are the matter of this case occurred in Zone 19. Court of 2-1/2 to size 2-7/8 using gill nets with a mesh inches.4 license, defend

Contrary to provisions gill mesh the 2-1/2-inch continued to use ants occasions DNR officials three separate nets.5 On conducting illegal fish observing defendants after equipment in the fish and/or ing activities seized possession of defendants. 1972. place May

The first seizure took observing activities obtain- After defendants’ warrant, DNR officials boarded de- a search ing (a of chubs quantity seized fendants’ vessel and fish). day The next officers species protected gill nets from the seized a and ten boxes buoy in an where the open waters of Lake Huron area their nets. tending had been defendants observed 3, 1972, third made seizure was On October had conducted search after DNR officials challenged. The before the being day which is now seizure, conservation offi- subsequent search and cers, again violat- suspecting that defendants were license, set ing provisions up their an observa- at dusk post on the shores of Lake Huron and tion what was the defendants’ apparently observed setting investigate nets. to further vessel Unable darkness, the following set out morn- they due to 3, a.m., 7:30 ing By to examine the area. October presence officers established had the belonged nets which the defendants. illegal gill nets, marking After these officers withdrew area but it under kept from the surveillance. Appeals question raised At the circuit court and Court of was charged violating properly the defendants could be with whether provisions provisions hearings. Appeals pointed they protested the new of the license since had yet statutorily-required and had as is not crucial been afforded the question here the Court The because as gill was out the small-mesh in Zone 19 use of nets permitted under the 1971 license. also not reported activity monthly basis. to the DNR on a Defendants DNR v Seaman Court early evening DNR officials observed the de- vessel in the apparently process

fendants’ of tend- ing heading its nets and its mooring then at approximately p.m. 8:45 Oscoda docks. At evening sought permission officials search the acknowledging moored they vessel. After did being not have a search warrant refused search, permission to they conduct broke into with Upon discovering the vessel an axe. a quan- tity previously nets, of fish and the marked vessel and its contents were seized.

The Court issued Iosco Circuit condemnation and confiscation orders against defendants. The of Appeals Court affirmed on May 1974. 53 813. App 218 NW2d On October 1975, we granted appeal. leave to 392 Mich 809. lb(2)

II —Section not Unconstitutional Delegation question threshold in this case whether lb(2) an constitutes unconstitutional delegation § lb(2) legislative authority. provides: Section "In requirements addition to the of this act and rules promulgated pursuant act, to this license issued the director of may provisions: conservation contain (a) Fixing the amount of fish to be by species taken and kind.

(b) Designating the areas in which the licensee shall permitted to fish. (c) Specifying depths the season when where opera- may the licensee conduct his tions.

(d) Specifying gear the methods and which the li- censee shall use.

(e) conditions, Specifying other terms and restrictions which be necessary are deemed to in carrying out the act, provisions of this including but not the limited to op the Court fishing operations in the right inspect licensee’s to the waters, or ashore.” board marks provision this Defendants maintain Legisla practice departure prior from law a commercial ture to maintain 84) (1929 PA detailed original act modifying guidelines no it provides it amendments6 and since delega unconstitutional regarded be as an must legislative authority. tion of delegation was simply The to regard rule with Locke’s leading case stated in the aptly (1873): Appeal, 72 Pa 491, 498-499 power to legislature delegate its make a "The cannot delegate power to law; to but it can make a law things upon determine some fact or state make, depend. makes, its own action or intends to law stop govern- to the wheels deny To this would be ment.” previous this Court on a occa- difficulty, as determining whether suggested, "is

sion conferred on of discretion the exercise limits [on sufficiently are defined administrative official] legislative powers”. Argo Oil delegation of avoid Atwood, 52; 264 NW 285 Corp v 274 Mich (1935). stat- whether making this determination we must limits or standards

ute contains sufficient must be the fact that such standards mindful of permit efficient administration sufficiently broad policy out properly carry in order people not so broad as leave Legislature but practice departure suggest an earlier from this Defendants amending Legislature 1955 PA enacted 1959 PA 154 MSA when the came 218. 13.1568(1) seq.; seq. This act is not et et 308.201 MCLA present proceeding. issue in DNR v Seaman 309 Opinion Court uncontrolled,

unprotected from arbitrary power in the hands of administrative officials.

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

First, in question act must be read as a whole; provision in question should not be isolated but must be construed with reference to Argo Atwood, the entire Corp Oil v act. supra, 53. Second, the standard should be "as reasonably precise as the subject requires matter or permits”. Shores, Osius v St Clair 344 698; Mich 75 (1956).7 25; NW2d 58 ALR2d 1079 The preciseness of the standard will vary with the complexity degree and/or to which subject regulated require will constantly changing regulat ion.8 The "various” and "varying” detail associ ated with managing the natural resources has led to recognition by the courts that it impractical Legislature provide specific regulations and that this function performed must be by designated administrative People Soule, v officials. (1927). 238 Mich 140; 213 NW 195 See United Grimaud, States v 506; US 31 S Ct 55 L (1910). Ed 563

Third, possible if the statute must be construed in such a way valid, as to it invalid”, "render not as conferring "administrative, legislative” power vesting and as "discretionary, not arbitrary, Argo Corp Atwood, Oil v authority”. supra, 53. 7A standard reasonably precise cannot be considered "as as the subject requires permits” satisfy process matter or if it does not due requirements. Highway See decision in State Commission v Vander- kloot, (1974). 169-178; 392 Mich 220 NW2d 416 2d, Law, Í17, p 924; See 1 Am Jur Administrative § 1 Sutherland (4th Statutory ed, Sands), 4.16, p Construction 102. § 396 op the Court Principles Application

III — The first principle requires statute lb(2) Section question entirety. in its viewed lb(l) together proper read provides with frame- work Director of Natural Resources lb(l) provides: is authorized to act. Section "Notwithstanding provisions any or of this other act, conservation, opinion the director of when in his it preservation, necessary protection, is the better management, harvesting and utilization of the fisheries in the may waters described in section 1 limit the fishing number of provi- licenses to be issued under the qualifications sions of this fix the act and and determine determining of such licensees. In the number of licenses during that the any director of conservation issues year, license he shall take into consideration the num- licenses, persons holding of ber such the number of licensees needed to harvest the fish known or believed harvestable, capacity to be equip- the of the boats and ment owned and used harvesting, licensees to effectuate such any may upon and other facts which bear allowing persons the engage profitable of a limited of number licensed fishing in commercial in an economical and determining qualifications manner. the of licensees, the the director of conservation shall consider kind, the nature and condition of the boats and equipment gear applicant, and to be used the the years experience applicant of has had in commer- quantity cial applicant and the and kinds of fish caught during previous years has and may such other determining facts which assist him in applicant capable engage that fishing in commercial proper profitable in a and manner and will comply applicable fishing.” with the laws to commercial 13.1491(2). added.) 308.1b; (Emphasis MCLA MSA legislative policy and. guide standards apparent, pre- director are to wit: to and protect the fisheries of serve this state and to allow the DNR v Seaman Opinion op the Court taking of fish upon grant permis- conditioned license, sion the form but only when such taking will disrupt goal primary protec- tion and preservation. The director given has been factually authority determine the nature degree and fishing, in terms of location, species, types fishing gear, may be allowed affecting goal without of pro- tection preservation. These statutory provi- sions insure that the will of the Legislature will be given substance and effect as a result of the direc- tor’s factual determinations.

Turning to principle, the second we conclude provided standard in the Commercial Law, Fishing general, while somewhat is "as rea- sonably precise as the subject matter requires or permits”. above,

As suggested courts have recognized that management of natural resources is a difficult complex task. This is particularly true in the management of fisheries. In order to have proper management a measure of flexibility must be pro- vided the director in dealing with numerous spe- fish, cies of habits, their constantly changing environment, response to interaction be- species, tween their population growth and decline in various waters and the many other biological considerations involved.

It must be remembered fish recognized are as the property Soule, state, of the People v supra, 139; Aikens v Department Conservation, of Mich 495-502; 198 NW2d 304 (1974), and as such the Legislature could conceivably prohibit all com- mercial However, activity. rather than adopt such an extreme action, course of Legis- the provided lature has for effective management giving the director discretion, limited and not op the Court taking the commercial power, regulate to arbitrary of fish. upheld this Court People Soule, supra, v the relating Depart enabling legislation

similar language The crucial of of ment Conservation.9 follows: that act reads as department of the conservation "The commission of shall, in accordance with state of conservation of this the taking regulate act, power to provisions of this have fish, game fur-bearing ani- killing or of all state, game by the laws of this protected mals and birds abridge open provided may suspend season or fish, killing any taking or any of such law designated waters area game or in or animals of sion of birds state, opinion in said commis- this whenever necessary to in it becomes assist conservation físh, game protection of such or the increased or better birds, any particular or fur-bearing game animals or same, opinion in the species may or kinds any from cause or of causes with commission be threatened said depletion said waters or extermination area, suspen- regulation, purpose or sion, for the of such commission abridgment, of conservation is or said empowered promulgate any and all hereby to make and provi- regulations necessary carry out the orders and provided, in this act sions of this act and as recommendation of the director conservation after (Em-

thorough investigation phasis by him.” has been made added.) distinguish seek to Soule on

Defendants authority conferred on Conser- basis emergency Commission was restricted vation species situations where wildlife danger depletion were "in words of the statute do find distinction or We this extermination”. controlling. The is not to wait state bound are near extinction until our natural resources 9 1925 PA 230. Seaman DNR v Opinion op the Court it can authorize Director properly

before Natural Resources to act. lb(2) upholding constitutionality we § principle the third

are mindful as well of that if must be construed possible, the statute as valid. sympathetic experi While we are to the difficulties enced defendants and other commercial fisher men with changing, and frequently limiting, of operations by regulations, we cannot say that the act in question constitutes an unconstitutional lb(2) delegation authority.10 Nor do we view as § permitting the Director Natural Resources act an arbitrary discriminatory fashion. However, while find that we Commercial Fishing given Law has the Director of Natural Resources reasonable discretion to act in accord- provided guidelines, ance with legislatively not with power to act we are arbitrarily, mindful that authority, although properly delegated, may subject be why abuse. That is the actual devel- opment of specific regulations by those charged with the Legislature task must accompa- process nied with due protection. protection Such is necessary to minimize the opportunity abuse of discretion as as to adequately protect well interests of those affected by regulations.

In those cases where authority delegated the administrative body, particularly where the subject matter dictates the legislative stan- provided dards are general, somewhat this Court would take a dim view of delegation such if ade- quate opportunity intervene in the administra- rule-making procedure tive were not provided. appears In this case it provided DNR 10During arguments oral some discussion was devoted to the rela- trap gill tive merits of management nets vis-a-vis nets and the soundness of DNR’s particular restrictions. The wisdom of the limitations placed on commercial licenses is not before us. 314 299 396 Mich op the Court development hearings the of both in notice and fishing regulations general for the and defendants placed particular they restrictions when contested upon their licenses.11 Authority DNR’s

IV — Rule 3 Exceed Does not lb(2) argue § that while authorizes Defendants restrictions DNR to include on the Director of the fishing licenses, section does the not place restrictions which authorize the director replace abridge, repeal refine, limit, or "further Legislature”. by the the DNR restrictions enacted prohibits 17, inter alia Order No. Rule 3, gill less than 8 nets with mesh sizes use in zones and which served as inches the certain on for the restrictions defendants’ li- basis by cense, limitation a established DNR was Fishing Law. Conse- and not Commercial argue quently, has DNR ex- defendants authority granted by the statute. ceeded its lb(l) lb(2) together. must be read and Sections lb(l) "[n]otwithstanding language in any provisions act, director or other this opinion necessary conservation, in when his it is protection, management, harvesting for the better * * * may limit the fisheries and utilization of number of * * * to be issued and licenses qualifications fix ees” authorizes the director determine the of such licens- issuing in licenses lb(2) place § under licenses reasonable restrictions spelled specifically in the act. out Illegal Search V— Seizure question us The final before whether Tyler, portion supplemental R. filed Ronald brief See during response plaintiif, request made in Court counsel for (Appendix arguments. opinion.) to this oral DNR Seaman v Opinion of the Court an

warrantless constituted search unreasonable Amendment, of the Fourth search violation Michigan Article Constitution. For § enough the Court of it was Appeals that MCLA 300.12; MSA 13.1222 "specifically authorizes upon without a warrant if based probable searches However, 199. App cause”. a search without warrant order to reasonable under Fourth requires proba more than Amendment exigent ble circumstances must also be cause — White, present. People v 392 Mich 221 NW2d (1974).12 300.12; Although MCLA MSA 13.1222 does not exigent requirement mention the of circumstances searches, it justify to warrantless is clear that this provision was to those enacted cover situations in it is feasible to obtain a warrant. We are "duty Michigan bound” under the Constitution to construe a statute such a way uphold as to Bricker, v People validity. its 389 528; Mich (1973). 208 NW2d 172 Consequently, we construe as, alia, inter 300.12; MCLA MSA 13.1222 requir- ing presence exigent of circumstances before conservation officers are authorized to conduct warrantless searches under the act.

In this case it not appear exigent does that such circumstances existed. DNR officials had de- under fendants surveillance for more a day than prior boarding vessel and had established probable cause to believe that defendants were conducting illegal fishing operations well before addition, took place. actual search 12Although split the Court in the result reached there was unani agreement validity mous that turned warrantless searches probable requirements exigent the dual Opinion and cause circumstances. 410; dissenting opinion of the Court at Justices Williams Coolidge Hampshire, and Coleman at 434. See 454-455; v US New 403 (1971). 91 S Ct L Ed 2d 564 the Court and there was berth no at its moored vessel was about to leave were that the defendants indication incriminating evi attempt dispose officials had the DNR suggest The facts dence. search warrant. It valid ample time to obtain a prior a occasion that on also should be noted DNR officials did involving circumstances similar obtain a warrant.13 valid longer argues no plaintiff

Before this Court officers on the conservation the actions of the search; valid 3rd constituted a evening of October place was not that what took a rather it contends but seizure. search Robson, George one of the given by

Testimony 3rd search DNR October officers involved seizure, regard. in this Officer enlightening and Robson stated: couple] and another them Seaman "I advised [Mrs. boat, and deckhand that I wanted search it, no, said, going they to search asked weren’t we warrant, I them didn’t for a search advised we one, going to they indicated that we weren’t

have get warrant. on the boat without search * * * (Continued Tyler [Prosecutor]): Mr. ”Q. did regarding gaining speak anyone access you to the boat? with with — Yes, permission to "A. I asked Mrs. Seaman boat, said, she no. She you if inspect the and said have boat, get you on the and I advised got warrant can a 13 a.m., May officers 10:30 and 11:00 conservation 11 between On illegal they in what believed to be observed defendants’ fishing vessel By they operations. p.m. day had obtained a search 1 the same p.m. This vessel at 2:30 and conducted a search the warrant regard approximately to the 4 hours. to a total of With amounted seizure, passed time the 24 hours from the 3 search and over October activity to time the seizure first the defendants’ the officers was the observed made, time officers established over 12 hours between the illegal gill belonged open presence nets which water and the time of seizure. defendants DNR v Seaman Opinion of the Court we her one, didn’t have a warrant but that we didn’t need probable we had cause believe that a violation probable been had committed and cause believe that violation, boat had been involved in and our boat, inspect intentions were to and she said no. Then, got boat, said, later she yeah, she we inspect They going it, can the boat. weren’t to unlock boat, we inspect could

but Mr. Seaman also going indicated that we without warrant weren’t boat, finally search the and then he consented to our boat, searching going but he wasn’t to unlock it. ”Q. So, then, you anything? what do if did Well, "A. we tóok an axe and broke the lock and added.) went aboard the boat. "(Emphasis There is little question what took place, certainly in the minds those involved —a was — search followed seizure and not simply a plaintiffs seizure as would have us believe. With unconstitutional, the search the subse- quent seizure of the vessel illegal. was When prop- erty has been wrongfully following seized an in- search, valid the property should be returned People Marxhausen, v 204 Mich owner. 559- 574; 171 557; NW see Amos v (1919); 3 ALR 1505 States, United 313; 255 US S Ct 65 L Ed (1921).

Conclusion lb(2) Section Fishing Commercial Law does not constitute an delegation unconstitutional legislative authority. Nor does Rule 3 of Order the authority granted exceed the DNR Legislature.

The search of defendants’ vessel was unconstitu- and, consequence, tional as a subsequent sei- illegal. zure was are Defendants entitled to return of their vessel. 299

318 396 Opinion of the Court in part reversed and Appeals is Court of in part. affirmed Iosco Circuit

This remanded matter not inconsistent with proceedings Court for further opinion. this costs.

No JJ., Fitzgerald, concurred with Coleman Williams, J. Ryan, JJ., part in the took no

Lindemer case. this decision

Appendix filed R. Ronald supplemental Portion brief Plaintiff-Appellee May dated Tyler, Attorney 23, 1975: Court’s as response Supreme inquiry

I In notices, given if any, Appel- to what were changes the commercial lants of the in during period occurred regulations which 1972, Department of Nat- through following ural submits the facts: Resources 9, the Department 1. As December early as Resources sent notices to all com- of Natural advising them of the recent mercial fishermen 335, 1968, of Act PA enactment 84 of Public amended Section of Act 13.1491(2) through Acts MSA 13.1491(5). fish- In that notice all commercial regula- forthcoming ermen were advised of the new fishery tions of the commercial under #1) (Exhibit Act. 18,

2. On December 1968 all licensed commer- Huron were cial fishermen the Lake area public hearing compliance of a given notice 1952, PA Act PA with Act DNR v Seaman Court (presently superseded Administrative 1969) Act, 306, regarding Procedures Act permit inclusion of Lake Huron under 6, system January of nets. On gill 1969 a public on the hearing matter set forth in the in of notice was conducted the City Alpena. 23,

3. On June 1969 the of Department Natural gave Resources to all notice commercial fish- ermen to public hearing of be conducted at various in places regarding proposed the state governing licensing administrative rules eligi- bility of commercial fishermen. public 15, hearings were conducted on July 1969. 13, 4. On in compliance October 1970 with the Act, 306, Administrative Procedures Act PA 1969, hearing proposed notice of commer- cial regulations under the zone man- agement plan for year 1971 was sent persons all and organizations likely rules, affected proposed including the Michigan director of the Fish Producers Asso- ciation. addition notice was sent attorneys published interested and was newspaper. 26 1970, On October & 27 of public hearings were conducted in the cities Saginaw, Alpena, Marquette, Grand Haven and Manistique. Appellants present were at hearings Saginaw. in Minutes the hear- ings were recorded and filed. Subsequently, proposed rules approved pro- were and mulgated pursuant to Section 45 and 46 of published Act 306 of 1969 and in the Michi- gan Administrative pro- Code. The rules as mulgated controlling were as privileges to the granted appellants in their 1971 Commercial Fishing License. September

5. public On 1971 notice of hear- 299 320 Opinion of the Court 1971 regula- changes ing proposed on for the year on tions persons to all was and sent published [sic] organizations thereby accordance affected Procedures Act. with the Administrative Pub- changes hearings proposed lic on the were on City Manistique Sep- conducted in the 21, 1971, September on City tember Traverse 22, 1971, September City and Bay in attendance Appellants 1971. were Minutes of public hearing Bay City. and filed. hearings were recorded Subse- proposed changes rule were quently, ap- proved pursuant promulgated Section published PA 1969 and of Act Michigan in the Administrative Code effective 18, (revised), 1972; being No. 17 March Order R299.883, R299.886, amending rules R299.889 (Supplement and R299.891. No. 65 to the Code) changes promulgated so were con- trolling privileges granted appel- as to the lants in Í972 license.

II In response Supreme inquiry Court’s as Department

to whether of Natural Re- provides sources hearings administrative for a licensee who contests the limitations of his license, it Department is submitted continuing has followed and is to follow the governing provisions of the Administrative Act, 306, 1969; Procedures PA MCLA 24.201 3.560(101) seq.; seq., regarding et MSA et contested cases. case, applied Appellants’

As McGahan Seaman, counsel, through protested the restric- tions and limitations of their 1972 commercial requested license and an administrative fishing hearing privileges for the modification of license DNR v Seaman Kavanagh, Opinion by J.C. the provisions under 306. Accordingly, Act Mc- granted Gahan and formal Seaman were admin- istrative hearing September 12, which concluded hearing Department before a examiner. The Beck, was represented G. by Curtiss Assistant Attorney Appellants General Nino E. Green, Escanaba, Esq., of ML

Pending the Department’s final decision as re- quired Act, by Section 85 of said the conservation vessel, officers Appellant’s seized the "Jerry W,” for alleged violations to have occurred October (The 2 & 1972. events of form the basis for the present appeal.) Department

On October 1972 the forwarded the hearing report examiners and recommendation Appellants and informed them of the availabil- ity of a further hearing before the Director of Natural Resources accordance with Section 81 Act.

On November 1972 the Director of Natural Resources in accordance with Section 85 of the Act, gave his final decision upon based the hearing examiner’s recommendations and the record and appellant’s denied petition for expansion and mod- ification of their privileges.

Kavanagh, C. J. (concurring). I concur in the judgment of brother my upholding the validity lb(2) of the Commercial Fishing Law and rule 3 § of DNR Order No. 17.

I agree also that the warrantless seizure of defendants’ vessel was unlawful.

Whether there awas search and seizure of the vessel, seizure, merely or makes no difference this case. The Fourth applies Amendment equally to searches and to seizures. United States v Mc- Cormick, (CA 1974). 502 F2d 281 396 Kavanagh, Opinion by C. J. to probable cause be-

The asserted existence illegally used does not being this lieve vessel was of a requirement warrant. serve obviate justify cause can a war- probable amount "[N]o 'exigent circum- or seizure absent rantless search Hampshire, 403 US Coolidge v New stances’.” (1971). also, 468; 2022; 29 L 2d 564 See 91 S Ed Ct Beavers, 554; People v 393 Mich NW2d (1975). out, points there were no my brother As exigent circumstances here. 300.12; pur-

The MSA 13.1222 fact that MCLA type this without a seizures of ports authorize require a different result. A warrant does not an otherwise unconstitu- justify statute cannot tional "Unless statute itself falls search. re- exceptions of the warrant within one right to be secure quirement, yield it must United States v against searches and seizures.” McCormick, supra, at 285. a "civil” in rem

Finally, the fact this is it proceeding does not take out of realm Indeed, Boyd v protection. Fourth Amendment’s States, 616; United 6 S Ct L 116 US 29 Ed 746 (1886), proceeding. civil forfeiture The Court was a Boyd stated: clearly opinion proceedings "We are also purpose declaring the instituted a man’s forfeiture of for by property reason of offences committed him, form, may though they be civil in are in * * * information, though nature criminal. techni- proceeding, cally a civil is in substance and effect * * * As, therefore, penalties suits criminal one. and forfeitures incurred against the commission of offences nature, law, quasi-criminal are of we this they are reason think that within the of criminal purposes proceedings for all of the Fourth Amend- * * * US ment of .” 116 the Constitution 633-634. Sedan v Plymouth Pennsylvania, One 1958 DNR Seaman v 323 Levin, Opinion by J. 693, 698; 1246; US 85 14 L Ed 380 S Ct 2d 170 (1965), also the Court proceeding, rely- forfeiture Boyd, Boyd ing "In held: both the situation and here the question essential is whether evidence— Boyd records, the books and here the results the search of car —the obtaining of which violates Amendment Fourth may relied Boyd upon to sustain a forfeiture. holds that it may not.”

The vessel must be returned to defendants. J., Levin, Kavanagh, concurred with J.C. Levin, (concurring). J.

I agree I statute,1 with the Court authorizes the director of conservation [Director Natural to "limit the number of fishing Resources] licenses” and the qualifications "determine of such licensees”, does not constitute an unconstitutional delegation of legislative authority and that Director of Natural Resources been given has "rea sonable discretion to act in accordance with legis latively provided guidelines”.2 1 do not agree, how ever, that the statute must itself contain standards guide the exercise of the delegated authority. Fields, People v See 391 Mich 216 NW2d (1974) J., (Levin, 51 dissenting).

I also concur in the Court’s conclusion that pursuant 300.12; vessel seized to MCLA MSA 13.1222 must be returned because the offi- cials seized it did who have warrant 1 13.1491(2). 308.1b; MCLA MSA quoted words —"reasonable discretion to act in accordance legislatively provided guidelines” with from Williams’ Justice —are opinion. Levin, J. exigent which would no circumstances were

there justify one.3 the failure to obtain

II fishing licenses with a were issued Defendants unsuccessfully They chal number of restrictions. lenged regulating the mesh size of the restriction apparently They to use their continued the nets. restriction; as the license violated old nets which they reported required by statute, of use Department of Natural Resources these nets (DNR) each month.4 they observed defendants

DNR officials claimed they Shortly illegal thereafter nets. with fishing vessel. seized defendants’ provides that 300.14; 13.1224 when MCLA MSA greater property $300, value than seized upon property state forfeited to the shall be the finding by caught, it court that "was the circuit contrary possessed, shipped killed, or used law”. licensing Regulation and avo- vocational apace pursuits grows as the need allo- cational diminishing natural resources be- the use of cate apparent. enforcement comes more Effective public licensing is in the interest. restrictions such securing are a valid means Penal sanctions example, compliance. Nevertheless, if, for the mo- mandatory provided for forfeiture tor vehicle code of making illegal for an left-hand automobile an required faulty or a or for a muffler statute turn manufacturing plant or for air forfeiture of a water governmental pollution, a clear abuse of appear. proper authority record we would On applies agree Justice that the Fourth Amendment 3 1 with the Chief as well as searches. seizures 308.20; MSA 13.1511. MCLA DNR v Seaman Opinion by Levin, J. should consider whether forfeiture of property use in excess of authorization —in contrast with forfeiture for manufacture or transportation contraband —is consistent with relevant constitu- tional principles.

Case Details

Case Name: Department of Natural Resources v. Seaman

Court Name: Michigan Supreme Court

Date Published: Apr 1, 1976

Citation: 240 N.W.2d 206

Docket Number: Docket Nos. 55942-55944, (Calendar No. 6)

Court Abbreviation: Mich.