The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5223 September 7, 1977 DEPARTMENT OF NATURAL RESOURCES: Wilderness and Natural Areas Act WILDERNESS AND NATURAL AREAS ACT: Dedication of private land Under the Wilderness and Natural Areas Act, a formal designation and Departmental administration of privately owned land as a wilderness area, wild area or natural area is equivalent to the common-law dedication of such land. Such a dedication or designation may be affected by execution of a cooperative agreement between the land owner and the State, and the promulgation of an administrative rule designating the land as a wilderness area, wild area or natural area. Privately owned lands dedicated or designated as a wilderness area, wild area or natural area must be administered by the Department of Natural Resources. Privately owned lands dedicated or designated as a wilderness area, wild area or natural area are subject to the same use prohibitions as State lands designated for such purposes. Where a private property owner has dedicated or designated privately owned land for a wilderness area, wild area or natural area, the State is required to pay the ad valorem taxes on the property in the designated amount. Jack D. Bails Chief Office of Program Review Project Clearance Department of Natural Resources Stevens T. Mason Building Lansing, Michigan 48926 1972 PA 241; MCLA 322.751 et seq.; MSA 13.734(1) et seq, the Wilderness and Natural Resources Act, provides for the creation of wilderness areas, wild areas and natural areas. You have requested my opinion concerning several questions relating to the proper administration of 1972 PA 241, supra. Your first question asks: 'Is private land to be designated in the same way as DNR-controlled land is dedicated, i.e. via the rule-making process, or is the cooperative agreement the mechanism for accomplishing 'designation' as opposed to 'dedication'?' 1972 PA 241, supra, Sec. 4, providing for the 'dedication' of state-owned land under DNR control, states: '(1) Within 6 months after the effective date of this act, and each year thereafter, the department shall review all state land under its control and shall identify those tracts which in its judgment best exhibit the characteristics of a wilderness area, wild area or natural area. The department shall propose to the commission land which in its judgment is most suitable for dedication by the commission as wilderness area, wild areas or natural areas. The department shall administer the proposed land so as to protect its natural values. '(2) The board or a citizen may propose to the commission land which in its judgment exhibits the characteristics of a wilderness area, wild area or natural area and is suitable for dedication by the commission as such or may propose the alteration or withdrawal of previously dedicated areas. Land under control of the department which has been dedicated or designated before the effective date of this act as a natural area, nature study area, preserve, natural reservation, wilderness, or wilderness study area shall be considered by the board and if eligible proposed for dedication. The proposals of the board shall be filed with both houses of the legislature. '(3) Within 90 days after land is proposed in accordance with subsections (1) or (2) the commission, with prior approval of the board, shall make the dedication or issue a written statement of its principal reasons for denying the proposal. The commission shall dedicate a wilderness area, wild area or natural area, or alter or withdraw the dedication by promulgating a rule in accordance with and subject to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Compiled Laws of 1948. The department shall hold a public hearing relative to the dedication in the county where the land to be dedicated is located before a rule making the dedication may be promulgated. Not more than 10% of state land under the control of the department shall be dedicated pursuant to this act. All persons who have notified the commission in writing during a calendar year of their interest in dedication of areas under this act shall be furnished by the commission with a notice of all areas pending dedication or alteration or withdrawal from dedication during that calendar year. '(4) The commission may exchange dedicated land for the purpose of acquiring other land which, in its judgment, are more suitable for the purposes of this act.' 1972 PA 241, supra, Sec. 5(2) provides: 'Private land or land under the control of other governmental units may be designated in the same way as a wilderness area, wild area or natural area by the commission and administered by the department under a cooperative agreement between the owner and the commission.' (emphasis added) The above statement indicates that the wilderness area, wild area or natural area is to be administered by the Department. The private land or the land under the control of a governmental unit is to be designated by agreement and the conditions by which the land is to be administered may be subject to the terms of the cooperative agreement. However, it is my opinion that the Department and not the private owner or the other governmental unit may administer the program. In 'dedicating' state-owned land under DNR control, the Commission is formally setting aside lands for a specific public purpose, i.e. restricting future use in order that such lands exhibiting the characteristics of a wilderness, wild or natural area may be maintained or restored so as to preserve their natural values. The commission's act of 'dedicating' state-owned land is to be distinguished from common-law dedication, i.e. the dedication of private lands to public use. Common-law dedications had been defined as: '. . . an appropriation of [privately owned] land to some public use, made by the owner of the fee, and accepted for such use by or in behalf of the public. . . .' Alton v Meeuwenberg, 108 Mich 629, 634 (1896) A common-law dedication may be for a special use, but it must be for the benefit of the public in general and not for particular individuals or groups of individuals. Krauchaar v Bunny Run Realty Co, 298 Mich 233 (1941); see also West Michigan Park Association v Department of Conservation, 2 Mich App 254 (1966). For a common-law dedication to be effective, it must be accepted by an act of acceptance made by a competent public authority (or in certain instances by the general public). West Michigan Park Association, supra. Under 1972 PA 241, supra, formal designation and departmental administration of privately owned land is the equivalent of common-law dedication. In this instance, a dedication or designation may only be effected by: (a) the execution of an agreement between the landowner and state appropriating the private land to a specific public use and setting forth the nature of the undertaking, i.e. the rights, duties, and obligations of the respective parties, coupled with (b) the promulgation of an administrative rule designating the privately owned land as a wilderness, wild or natural area. Your second question asks: 'Is such a cooperative agreement legally binding, or to what extent can we hold the private owner to the agreement?' The agreement between the State and the landowner may and must be in a legally enforceable form. To be enforceable, the content of such agreement may not contravene public policy, the laws, or the constitution of this State. Your third question asks: 'What is the scope of DNR administration required on private lands covered by such an agreement? Would this requirement be complied with if the private owner administers the area under DNR guidelines spelled-out in the agreement?' As to the scope of administration by the Department, the fact that the designated area is to provide an opportunity for solitude, recreation, exploration and contact with nature indicates that these opportunities are to be made available to the general public. Therefore, an agreement relating to private land must make provision for enjoyment of these opportunities by the public at large. In other words, it may not be administered by the Department as a private reserve for the benefit of a small group of persons. Your fourth question asks: 'In a cooperative agreement covering the administration of private lands as a wilderness, wild or natural area, do we have to incorporate all the restrictions of Section 6 and to the degree that they are stated there? In this regard, note also Section 8(1) which requires the maintenance or restoration of only State land in a wilderness, wild or natural area so as to preserve its natural values in a manner compatible with the Act.' The agreement must include and be subject to all the use prohibitions set forth in sections 6 and 7; (1) however, the prohibitions may not be enforced against a person having an existing property right contrary thereto. With regard to your reference to 1972 PA 241, supra, Sec. 8(1), please note that public funds are not to be used for private purposes. Because of the nature of the designation with its provision for public access and enjoyment, the department is constitutionally permitted to expend public funds for this purpose. Your fifth question asks: 'We have been interpreting the tax provision of Section 11 as applying to State lands, and because of Section 12(1), as applying to only those State lands which are tax-reverted or gift lands--lands on which we are presently paying $.54 an acre in payment-in-lieu of taxes. However, one large property-owner beseeched us for designation under the belief that this section would operate to reduce his taxes to $2 an acre with designation.' 1972 PA 241, supra, Sec. 11 provides in pertinent part: 'The local taxing authority shall be entitled to collect from the state a tax on a wilderness, wild or natural area within its jurisdiction at its ad valorem tax rate of $2.00 per acre, whichever is less. . . .' The provision makes no distinction between land that has been dedicated or land that has been designated as a wilderness, wild or natural area. It states only that the local taxing authority is entitled to receive from the State ad valorem taxes at a given rate. Inasmuch as a dedication of private land for this purpose by a private property owner will have effectively resulted in a relinquishment by the private property owner of his right to exclude members of the public, it may be concluded that the legislature intended to have the State pay ad valorem taxes where the lands are being used for the public benefit pursuant to a cooperative agreement. If the agreements provide that the land is to be returned to the owner after a given period, the owner will then become liable for payment of ad valorem taxes on the property. Frank J. Kelley Attorney General (1)
'Sec. 6. The following are prohibited on state land in a wilderness area, wild area or natural area or on state land proposed by the department for dedication in 1 of these categories during the 90 days a dedication is pending pursuant to section 4:
'(a) Removing, cutting, picking or otherwise altering vegetation except as necessary for appropriate public access, the preservation or restoration of a plant or wildlife species, or the documentation of scientific values and with written consent of the department.
'(b) Granting an easement for any purpose.
'(c) Exploration for or extraction of minerals.
'(d) A commercial enterprise, utility or permanent road.
'(e) A temporary road, landing of aircraft, use of motor vehicles, motorboats, or other form of mechanical transport, or any structure or installation, except as necessary to meet minimum emergency requirements for administration as s wilderness area, wild area or natural area by the department.
'(f) Trapping and hunting when recommended by the department.
'Sec. 7. A person who lands an aircraft or operates a motor vehicle, motorboat or other form of mechanical transport in a wilderness area, wild area or natural area without the express written consent of the department is guilty of a misdemeanor.'