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. 5276 March 10, 1978 DEPARTMENT OF NATURAL RESOURCES: Conveyance of land subject to a restrictive covenant or reversionary interest REAL ESTATE: Conveyance of land by Commission of Natural Resources containing a restrictive covenant or a reversionary interest FUTURE ESTATES OR INTEREST: Conveyance of land by Commission of Natural Resources containing a restrictive covenant or a reversionary interest The Commission of Natural Resources may, in conveying land pursuant to 1911 PA 193, impose a restrictive covenant or a reversionary interest in the conveyance where the covenant is imposed for a conservation purpose. Howard A. Tanner Director Department of Natural Resources Stevens T. Mason Building Lansing, Michigan 48926 You have requested my opinion as to whether the Commission of Natural Resources, in conveying title to lands under provisions of 1911 PA 193; MCLA 322.481 et seq; MSA 13.761 et seq, may impose a restrictive covenant or a reversionary interest in the conveyance. It is my opinion that the Commission of Natural Resources may impose restrictive covenants restricting use of lands it conveys, but that its authority is dependent upon: (a) whether the restrictive covenant is imposed for a conservation purpose; and (b) whether the restrict covenant exceeds limits affirmatively set by the Legislature. Central Advertising Co v State Highway Commission, 383 Mich 1; 172 NW2d 432 (1969). Each restrictive covenant, however, must be examined individually to ascertain whether the particular circumstances justify a restriction of use pursuant to 1911 PA 193, supra. Further, the Commission of Natural Resources may, in exchanging property, create and reserve reversionary interests in lands exchanged. 1911 PA 193, supra, Sec. 1, provides: 'Any of the lands under the control of the public domain commission, the title to which is in the state of Michigan, and which may be sold and conveyed or which are a part of the state forest reserves, as well as such lands hereafter acquired by the state of Michigan or any part or portion thereof, may be exchanged for lands of equal area or approximately equal value belonging to the United States or owned by private individuals whenever in the opinion of the public domain commission it shall be to the interests of the state of Michigan so to do.' The Public Domain Commission, organized in pursuance of 1909 PA 280; MCLA 322.202, et seq, MSA 13.431 et seq had jurisdiction over: (a) '. . . all lands now owned by the state subject to entry . . .' 1909 PA 280, supra, Sec. 3 (b) '. . . all lands that shall hereafter be deeded to the state by the auditor general . . .' 1909 PA 280, supra, Sec. 3 [See 1893 PA 206, Secs. 127 (repealed 1941 PA 234) and 67a; CL 211.67a, MSA 7.112(1)] (c) '. . . public lands, forest reserve and forest interests, . . .' 1909 PA 280, supra, Sec. 4. 1909 PA 280, supra, Sec. 12, further provides: 'When any sales are made by the commission the deeds by which said lands are conveyed may reserve all mineral, coal, oil and gas rights to the state but shall not reserve the rights to sand, gravel, clay or other nonmetallic minerals. The commission shall have power to make contracts with private individuals or corporations for taking ore, coal, gas or oil from said lands upon a royalty basis upon such terms as the commission may deem just and equitable. The commission shall also have power to provide that all deeds issued for lands along water courses and streams shall contain a clause reserving the rights of ingress and egress, over and across said lands. Whenever an exchange of land is made, either with the United States government, a corporation, or an individual, for the purposes of consolidating the state forest reserves, the commission may issue such deeds to the United States government, corporation, or individual, without reserving to the state the mineral, coal, oil, and gas rights and the rights of ingress and egress. The commission is hereby authorized to sell the limestone, sand, gravel or other nonmetallic minerals. The commission is authorized to sell all reserved mineral, coal, oil and gas rights to such lands upon such terms and conditions as the commission may deem proper. The owner of such lands as shown by the records shall be given priority in case the commission shall authorize any sale of such lands and unless he shall waive such rights, the commission shall not sell such rights to any other person. For the purpose of this section, 'mineral rights' shall not include 'sand, gravel, clay or other nonmetallic minerals'.' By virtue of 1921 PA 17, Sec. 2; MCLA 299.2, MSA 13.2, the powers and duties then vested by law in the Public Domanin Commission were transferred to and vested in the Department of Conservation; and, by virtue of 1965 PA 380, Ch. 11, Secs. 250-253; MCLA 16.250-16.253, MSA 3.29(250)-3.29(253), these powers and duties are now vested in the Department of Natural Resources. Neither 1921 PA 17, supra, nor 1911 PA 193, supra, limits the Commission to conveying lands in fee simple absolute. Therefore, neither act precludes the Commission, in its conveyances, from providing for negative easements, restrictive covenants, possibilities of reverter or conditions subsequent. 1921 PA 17, supra, Sec. 3, provides in part: '. . . [T]he commission of natural resources . . . shall have authority to buy, sell, exchange, or condemn land and other property, . . .' 1911 PA 193, supra, Sec. 1: 'Any lands under the control of the public domain commission . . . may be exchanged . . ..' 1846 RS, Ch 1, Secs. 3, 3i; MCLA 8.3, 8.3i, MSA 2.212, 2.212(9) provides: 'In the construction of the statutes of this state, . . . unless such construction would be inconsistent with the manifest intent of the legislature.' 'The words, 'land', 'lands', 'real estate' and 'real property' mean lands, tenements and real estate, and all rights thereto and interests therein.' 1921 PA 17, supra, Sec. 3 imposes upon the Commission of Natural Resources the duty to: '. . . protect and conserve the natural resources of the state of Michigan; provide and develop facilities for outdoor recreation; prevent the destruction of timber and other forest growth by fire or otherwise; promote the reforesting of forest lands belonging to the state; prevent and guard against the pollution of lakes and streams within the state, and enforce all laws provided for that purpose with all authority granted by law, and foster and encourage the protecting and propagation of game and fish. . . .' To the end that it may accomplish and fulfill its duties, the Legislature, in addition to granting the Department of Natural Resources regulatory powers, has authorized the department on behalf of the people to: '. . . accept gifts and grants of land and other property . . . to buy, sell, exchange or condemn land and other property, for any of the purposes contemplated by [Act 17 of the Public Acts of 1921].' 1921 PA 17, supra, Sec. 3. That the Department of Natural Resources may acquire or retain interests in land to fulfill its responsibilities does not sufficiently answer the ultimate question. First, a restricted covenant or reversionary interest must be imposed or reserved for a valid conservation purpose. Those purposes are set forth in, among others, 1921 PA 17, supra, Sec. 3. It imposes upon the Commission of Natural Resources the duties to: '. . . protect and conserve the natural resources of the state of Michigan; provide and develop facilities for outdoor recreation; prevent the destruction of timber and other forest growth by fire or otherwise promote the reforesting of forest lands belonging to the state; prevent and guard against the pollution of lakes and streams within the state, and enforce all laws provided for that purpose with all authority granted by law, and foster and encourage the protecting and propagation of game and fish. . . .' Further, while the Legislature has authorized acquisition and retention, it has generally set forth a standard for the necessary protection of environmental and conservation values of 1921 PA 17, supra. It has also, in several instances, provided guides as to what is reasonably necessary to the protection of such resource values and a restrictive covenant or reversionary interest may not exceed the limits of what the Legislature has established as reasonably necessary to protect these resource values. The particular statutes referred to are the Natural River Act, The Shorelands Protection and Management Act, and the Sand Dune Protection and Management Act. (1) Natural Rivers, 1970 PA 231; MCLA 281.761 et seq, MSA 11.501 et seq. Pursuant to 1970 PA 231, supra, the 'Natural River Act of 1970', the Commission of Natural Resources is given authority to designate a river, or a portion thereof, as a 'natural river area.' Section 2(f) of the 'Natural River Act' defines a 'natural river': '. . . a river which has been designated by the commission for inclusion in the wild, scenic and recreational rivers system.' The purpose of such a 'system', as set forth in 1970 PA 231, supra, Sec. 3, is: '. . . for the purpose of preserving and enhancing its values for water conservation, its free flowing condition and its fish, wildlife, boating scenic, aesthetic, floodplain, historic and recreational values and uses. . . .' 1970 PA 231, supra, Sec. 3, directs that: '. . . The [natural river] area shall include adjoining or related lands as appropriate to the purposes of the designation. The commission shall prepare and adopt a long-range comprehensive plan for a designated natural river area which shall set forth the purposes of the designation, proposed uses of lands and waters, and management measures designed to accomplish the purposes. State land within the designated area shall be administered and managed in accordance with the plan, and state management of fisheries, streams waters, wildlife and boating shall take cognizance of the plan. The commission shall publicize and inform private and public landowners or agencies as to the plan and its purposes, so as to encourage their cooperation in the management and use of their land in a manner consistent with the plan, and the purposes of the designation. The commission shall cooperate with federal agencies administering any federal program concerning natural river areas, and with any watershed council established under Act No. 253 of the Public Acts of 1964, being sections 323.301 to 323.320 of the Compiled Laws of 1948, when such cooperation will further the interest of the state.' Sections 8, 9 and 10 of the 'Natural River Act' make provision for the adoption of local ordinances and state administrative rules 'zoning' or regulating the use of lands zoned. To quote therefrom: 'Sec. 8. After designation of a river or portion of a river as a natural river area and following the preparation of the long-range comprehensive plan, the commission may determine that the uses of land along the river, except within the limits of an incorporated municipality, shall be controlled by zoning contributing to accomplishment of the purposes of this act and the natural river plan. County and township governments are encouraged to establish these zoning controls and such additional controls as may be appropriate, including but not limited to building and subdivision controls. The commission may provide advisory, planning and cooperative assistance in the drafting of ordinances to establish such controls. If the local unit does not, within 1 year after notice from the commission, have in full force and effect a zoning ordinance or interim zoning ordinance established under authority of the acts cited in section 11, the commission, on its own motion, may promulgate a zoning rule in accordance with section 13. A zoning rule may also be promulgated if the commission finds that an adopted or existing zoning ordinance fails to meet adequately guidelines consistent with this act as provided by the commission and transmitted to the local units concerned, does not take full cognizance of the purposes and objectives of this act or is not in accord with the purposes of designation of the river as established by the commission. 'Sec. 9. A zoning ordinance adopted by a local unit of government or a zoning rule promulgated by the commission shall provide for the protection of the river and its related land resources consistent with the preservation and enhancement of their values and the objectives set forth in section 3. The ordinance or rule shall protect the interest of the people of the State as a whole. It shall take cognizance of the characteristics of the land and water concerned, surrounding development and existing uses and provide for conservation of soil, water, stream bed and banks, flood plains and adjoining uplands. 'Sec. 10. The ordinance or rule shall establish zoning districts within which such uses of land as for agriculture, forestry, recreation, residence, industry, commerce and additional uses may be encouraged, regulated or prohibited. It may limit or prohibit the placement of structures of any class or designate their location with relation to the water's edge, to property or subdivision lines and to flood flows and may limit the subdivision of lands for platting purposes. It may control the location and design of highways and roads and of public utility transmission and distribution lines except on lands or other interests in real property owned by the utility on January 1, 1971. It may prohibit or limit the cutting of trees or other vegetation but such limits shall not apply for a distance of more than 100 feet from the river's edge. It may specifically prohibit or limit mining and drilling for oil and gas but such limits shall not apply for a distance of more than 300 feet from the river's edge. It may contain other provisions necessary to accomplish the objectives of this act. A zoning rule promulgated by the commission shall not control lands more than 400 feet from the river's edge.' The act further provides that: 'Sec. 5. The commission may acquire lands or interests in lands adjacent to a designated natural river for the purpose of maintaining or improving the river and its environment in conformance with the purpose of the designation and the plan. Interests which may be acquired include, but are not limited to, easements designed to provide for preservation and to limit development, without providing public access and use. Lands or interests in lands shall be acquired under this act only with consent of the owner.' 1970 PA 231, supra, Sec. 5. Clearly the Commission has the authority to both regulate use of land within, and to acquire land or interests in lands within a Natural River Area. Consistent then, with Central Advertising Co v State Highway Commission, supra, I advise that the Commission of Natural Resources may in conveying any lands within a 'natural rivers area' impose restrictive covenants which: (a) limit or prohibit the placement of structures of any class or designate their location with respect to the water's edge, to property or subdivision lines or flood flows; (b) limit the division or partitioning of the lands conveyed; (c) control or limit the location of highways, roads and utility lines; (d) prohibit or limit the cutting of trees or other vegetation within 100 feet of the river's edge; or (e) prohibit or limit mining or drilling within 300 feet of the river's edge. Restrictions of the nature outlined in (a)(b)(c) above shall not, however, apply more than 400 feet from the river's edge. (2) Shorelands Protection and Management Act--1970 PA 245; MCLA 281.631 et seq, MSA 12.1831 et seq. The 'Shorelands Protection and Management Act of 1970', 1970 PA 245, supra, provides for the identification of 'environmental areas' and 'high risk area'; and the regulation of use of such areas. An 'environmental area' is defined as: '. . . an area of the shoreland determined by the department on the basis of studies and surveys to be necessary for the preservation and maintenance of fish and wildlife.' 1970 PA 245, supra, Sec. 2(d). A 'high risk area' is defined as: '. . . an area of the shoreland which is determined by the commission on the basis of studies and surveys to be subject to erosion.' 1970 PA 245, supra, Sec. 2(e). Section 11(1) of the 'Shorelands Protection and Management Act' provides: 'The commission, in order to regulate the uses and development of high risk areas and environmental areas and to implement the purposes of Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.313 of the Compiled Laws of 1948.' While the subject act itself provides the Commission with no authority to purchase lands designated as an 'environmental area' or a 'high risk area,' the authority of the Commission to acquire lands and interest in land 'necessary for the preservation and maintenance of fish and wildlife' is clear, 1921 PA 17, supra, Secs. 2, 3. I therefore advise you that in conveying lands within an 'environmental area' the department may, in addition to other lawful restrictions, impose such restrictions as are necessary to prevent the destruction of fish and wildlife habitat. (3) 'Sand Dune Protection and Management Act', 1976 PA 222, MCLA 281.651 et seq, MSA 18.535(1) et seq. The Sand Dune Protection and Management Act, 1976 PA 222, supra, provides for the protection, management and reclamation of Great Lakes sand dunes. 1976 PA 222, supra, Sec. 2(h) defines a sand dune area: '. . . that area designated by the department which includes those geomorphic features composed primarily of sand, whether wind-blown or of other origin and which lies within 2 miles of the ordinary high-water mark on a Great Lake as defined in section 2 of Act No. 247 of the Public Acts of 1955, as amended, being section 322.702 of the Michigan Compiled Laws.' No person or operator may engage in the mining of a sand dune area without first obtaining a permit from the Department of Natural Resources. 1976 PA 222, supra, Sec. 2. The Department of Natural Resources is required to reject an application for a permit: '. . . if, upon review of the environmental impact statement [submitted by the applicant], it determines that the proposed sand mining operation would have an irreparable harmful effect on the environment.' The act further provides: 'The state or an instrumentality of the state shall not engage in the extraction of sand or other minerals from a sand dune area, except as required in the interest of public health and safety in an emergency situation resulting from a natural disaster as defined in section 2 of Act No. 154 of the Public Acts of 1953, as amended, being section 30.222 of the Michigan Compiled Laws.' 1976 PA 222, supra, Sec. 10 The authority of the Department of Natural Resources to purchase lands within a sand dune area after appropriation is, therefore, made clear from a reading of 1976 PA 222, supra, Sec. 3(c). To quote therefrom: 'Sand dune areas or portions thereof that, for environmental or other reasons, should be protected through purchase by the state or other persons of interest, or easements including the acquisition of mineral rights by the state, and a priority list of sand dune areas to be acquired by the department.' It is therefore my opinion that the Department of Natural Resources, in disposing of land within a 'sand dune area', may by deed restrict or prohibit sand dune mining and other mineral exploitation. In summary, it is my opinion that the Commission of Natural Resources may impose restrictive covenants limiting or restricting use of lands it conveys under provisions of 1911 PA 193, supra. The validity of such covenants is dependent upon: (a) whether the restrictive covenant at issue is or is not imposed for a valid conservation purpose; and (b) where the Legislature has by public act affirmatively set forth as the outerlimits of what is reasonably necessary to the preservation of natural resources values, whether the restrictive covenant does or does not exceed those limits. See Central Advertising Co v State Highway Commission, supra. Each imposition of a restrictive covenant must then be individually tested to ascertain whether the circumstances peculiar to the lands involved, restriction of future use may validly be effected. Further, the Commission of Natural Resources may in exchanging property under 1911 PA 193, supra, create and reserve reversionary interests in lands exchanged, the creation and reservation of such interests being neither prohibited by nor in excess of authority granted by 1911 PA 193. Frank J. Kelley Attorney General