STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5664

February 20, 1980

FISH AND GAME:

Contracts with nonprofit organizations for the maintenance of habitats for migratory birds.

CONSTITUTIONAL LAW:

Const 1963, art 9, Sec. 18.

The Legislature may authorize the Department of Natural Resources to contract with nonprofit organizations for the maintenance of suitable habitats in Canada for migratory birds along the Mississippi flyway.

Payment of funds from the Fish and Game Protection Fund authorized by the Legislature pursuant to contract between the Department of Natural Resources and such nonprofit organizations does not constitute a grant of the credit of the state contrary to Const 1963, art 9, Sec. 18.

The Honorable Thomas J. Anderson

State Representative

The Capitol

Lansing, Michigan 48913

Referring to the waterfowl hunting stamp fee, you have requested my opinion on the following questions which may be phrased as follows:

Materials which you have supplied me indicate that funds generated by the waterfowl hunting stamp fee, along with other funds, are used to preserve and protect areas for migratory birds. Because of the migrating nature of waterfowl, Michigan cooperates with Canada and neighboring states to create and maintain suitable habitat for migratory birds which fly along the 'Mississippi flyway.' The flyway originates in Canada and waterfowl migrate southward along this corridor through 14 states. Most of the ducks bred in the prairie regions of Canada and the United States migrate within the flyway, of which Michigan comprises a principal portion.

Further, you indicate that you desire to propose amendatory legislation to increase the waterfowl hunting stamp fee and earmark a portion of the stamp fee to non-profit organizations devoted to the development of waterfowl propagation areas within Canada which will provide waterfowl for this state and the Mississippi flyway. Federally-recognized standards exist which describe the types and species of freshwater waterfowl which breed or migrate through the flyway in Michigan wetlands. See Shaw and Fredene, Wetlands of the United States, United States Department of Interior, Fish and Wildlife Service, Circular 39.

You indicate that the earmarked waterfowl funds would be appropriated to eligible organizations whose sole purpose is to create, preserve, maintain or perpetuate freshwater waterfowl propagation areas within Canada. Further, prior to expenditures of such appropriations, the particular project assisted would be approved by the Natural Resources Commission, and a contract entered into between the eligible organization and the Department of Natural Resources, hereafter designated as DNR.

(1) May a portion of the waterfowl hunting stamp fee be provided to non-profit organizations to establish and maintain within Canada suitable habitat for migratory waterfowl?

The waterfowl hunting stamp fee is authorized by the Game Law of 1929, 1929 PA 286, Sec. 6c as added by 1976 PA 194, MCLA 314.6c; MSA 13.1355(3), and which provides:

[Emphasis supplied]

Pursuant to the Game Law of 1919, Sec. 6c(4), supra, stamp fees are to be forwarded to the state treasurer, who 'shall credit the moneys to the fish and game protection fund.' 1919 PA 98, Sec. 10, MCLA 21.10; MSA 3.290 provides that the revenue of the game and fish protection fund shall not be credited to or referred to the general fund of the state. Further, 1919 PA 98, supra, Sec. 8, MCLA 21.8; MSA 3.288 states in pertinent part that

Thus, the game and fish protection fund must wholly finance all activities pertaining to game and fish.

Consistent with 1919 PA 98, Secs. 8 and 10, supra, is 1939 PA 281, Sec. 1, MCLA 299.201; MSA 13.1205. 1939 PA 281, Sec. 1, supra, is enabling legislation whereby Michigan participated in the Federal Wildlife Restoration Act, 50 Stat 917, c 899, (1937); 16 USCA Secs. 669 et seq. Pursuant to the Federal Wildlife Restoration Act, supra, 1939 PA 281, Sec. 1, supra, declares that 'no funds accruing to the State of Michigan from license fees paid by hunters shall be used for any purpose other than game and fish activities under the administration . . .' of the DNR.

Thus, pursuant to 1939 PA 281, Sec. 1, supra, all hunting license fees must be exclusively applied to game and fish activities. Construing 1939 PA 281, Sec. 1, supra, in conjunction with 1919 PA 98, Secs. 10 and 8, supra, it is clear that all hunting license fees accrue to the game and fish protection fund, to be specifically appropriated by the legislature for game and fish activities. Consistent with this mandate, hunting fees raised pursuant to the Game Law of 1929, Sec. 6c(4), supra, are credited to the game and fish protection fund to conduct a statewide wetlands inventory and to acquire wetlands in the state.

Thus, the legislature has determined that the conducting of a statewide wetlands inventory and the acquisition of wetlands within the state constitute relevant activities within the purview of the game and fish protection fund. Similarly, by appropriate amendment, the legislature may provide that fees generated by the Game Law of 1929, Sec. 6c(4), supra, may be appropriated for non-profit organizations to establish and maintain within Canada suitable habitat for migratory waterfowl which fly the Mississippi flyway. ⁽²⁾

Under the police power, the legislature may regulate the taking of fish and game. People v Setunsky, 161 Mich 624; 126 NW 844 (1910). Legislation within the scope of the police power is solely within the determination of the legislature. People v Breen, 326 Mich 720; 40 NW2d 778 (1950).

Therefore, it is my opinion that the Game Law of 1929, Sec. 6c(4), supra, may be amended to provide that a portion of the waterfowl stamp fee be appropriated for non-profit organizations to establish and maintain within Canada suitable habitat for migratory waterfowl within the Mississippi Flyway and Michigan.

(2) Would such expenditure pledge the credit of the state contrary to the Michigan Constitution?

As the proposed amendatory legislation concerns the appropriation of public funds (waterfowl stamp act funds paid into the game and fish protection fund) to eligible non-profit organizations, consideration must be given to Const 1963, art 9, Sec. 18, which provides:

OAG, 1977-1978, No 5402, p ___ (December 13, 1978) considered whether Const 1963, art 9, Sec. 18, supra, was offered by a county appropriating county funds for the preservation of an historical landmark, where the appropriation of such funds was statutorily authorized. OAG, No 5402, supra, in reviewing Const 1963, art 9, Sec. 18, supra, quoted extensively from Alan v Wayne County, 388 Mich 210, 325-327; 200 NW2d 628 (1972), reh den 388 Mich 626; 202 NW2d 277:

Accordingly, OAG, 5402, supra, held that, pursuant to statutory authorization, it was a matter of judgment in the sound discretion of the board of commissioners whether a county appropriation for restoring and preserving an historical landmark would 'result in a degree of public benefit so as to constitute adequate consideration' under Const 1963, art 9, Sec. 18, supra. However, OAG, 5402, supra, further held that in order to ensure the furtherance of the purposes and objectives of the authorizing legislation, it was necessary that an agreement be entered between the parties providing how the funds would be utilized by the private, non-profit organization, covering such aspects, for example, as the continued existence of the historical landmark and its availability to the public. See also OAG, 1977-1978, No 5212, p ___ (August 17, 1977).

Correspondingly, it is a matter of legislative judgment whether the Game Law of 1929, Sec. 6c(4), supra, should be amended to provide that a portion of the fees generated be appropriated from the game and fish protection fund to non-profit organizations to establish and maintain within Canada suitable habitat for migratory waterfowl which fly within Michigan and the Mississippi flyway. People v Setunsky, supra. The public benefit and national value of migratory waterfowl was enunciated in Missouri v Holland, 252 US 416, 435; 40 SCt 382; 64 LEd 641 (1920), where the United States Supreme Court rejected a constitutional challenge to the Migratory Bird Conservation Act: ⁽³⁾

This national policy declaration must be viewed as consistent with the functions of the game and fish proection fund and the Game Law of 1929, Sec. 6c(4), supra.

It is, therefore, my opinion that Const 1963, art 9, Sec. 18, supra, would not be offended by the legislative appropriation ⁽⁴⁾ of a portion of waterfowl hunting stamp funds paid into game and fish protection fund for non-profit organizations for the establishment and maintenance within Canada of suitable habitat for migratory waterfowl, under the auspices of the DNR and as approved by the Natural Resources Commission. Further, it is my opinion, that, in order to ensure the furtherance of the purposes and objectives of the game and fish protection fund, that an agreement be entered between the DNR and any non-profit organization to whom an appropriation of funds raised by the Game Law of 1929, Sec. 6c(4), supra, is to be made. Such agreement should cover such aspects, for example, that the funds appropriated be expended on freshwater waterfowl, which breed or migrate through the Mississippi flyway including Michigan, as determined by federal standards; the continued existence of the non-profit organization, submission of annual reports on project expenditures, annual audits, annual assurance of tax-exempt status, and if appropriate, availability of the waterfowl propagation area to the public.

Frank J. Kelley