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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. 6272 February 14, 1985 FISH AND GAME: Harvesting of minnows and wigglers by licensed commercial dealers in navigable and non-navigable inland waters and submerged lands A licensed minnow and wiggler dealer may take minnows from any inland navigable body of water, but may take minnows from non-navigable inland waters only if such dealer is the owner of lands riparian to such waters or has permission to do so from the owner of lands riparian to such non-navigable waters. A licensed minnow and wiggler dealer may take wigglers from land submerged by a navigable or non-navigable inland body of water only if such dealer owns the submerged lands from which the wigglers are being taken or has the permission of the owner of such submerged lands to do so. Mr. Ronald O. Skoog Director Department of Natural Resources Stevens T. Mason Building Lansing, Michigan 48909 Your department has requested my opinion with respect to two questions which have been rephrased. The first question is: Does the act of harvesting minnows in inland waters by licensed commercial minnow and wiggler dealers constitute unlawful trespass upon riparian bottomlands? MCL 305.6; MSA 13.1628 provides for the issuance of a license 'to permit the taking, collecting, transportation and possession of live or fresh minnows or wigglers to be used for commercial purposes . . ..' MCL 304.1; MSA 13.1618 defines 'minnows' as 'chubs, shiners, suckers (when of a size ordinarily used for bait in hook and line fishing), dace, stonerollers, muddlers, and mud-minnows . . .' and 'wigglers' as 'May-fly nymphs or any other aquatic insect nymphs or larvae.' 'Commercial purposes' is defined to mean 'offering for sale, selling, giving or furnishing to others.' MCL 304.2; MSA 13.1619 makes it unlawful to take or attempt to take or have in possession minnows or wigglers taken from waters of this state for commercial purposes without first obtaining a license issued under MCL 305.6; MSA 13.1628. It is, of course, within the power of the state to require, as it has by provision of MCL 305.6; MSA 13.1628, that any person taking, possessing, transporting, etc., minnows or wigglers from any waters of the state first obtain an annual license therefor. The holder of such a license may take minnows from any navigable waters of the state. To quote from Collins v Gerhardt, 237 Mich 38; 211 NW 115 (1926): 'Under the law of this State a riparian proprietor owns the land to the thread or center of navigable rivers. . . . But he does not own the water, and he does not own the fish. So far as they are capable of ownership they belong to the State for the common benefit of the people.' . . . '[B]y judicial decision in 1860, the title to the beds of navigable rivers was declared to be in the riparian owners. . . . The title allowed to be taken by the riparian owners was subordinate to the public rights, including the public right of fishing.' Collins v Gerhardt, supra, pp 45, 48. In the most recent case addressing navigability, Bott v Natural Resources Comm'n, 415 Mich 45, 60; 327 NW2d 838 (1982), the Supreme Court stated: 'The established law of this state is that the title of a riparian or littoral owner includes the bed to the thread or midpoint of the water, subject to a servitude for commercial navigation of ships and logs, and, where the waters are so navigable, for fishing.' The Collins court concluded that the owner of lands riparian to a navigable inland body of water has no greater fishing rights than any other member of the public. The public right to fish has not been extended to non-navigable waters. The holder of a license issued by the state may, however, take minnows from non-navigable waters provided the licensee is the owner of lands riparian to such waters or has been granted the permission of a riparian owner to take minnows from such waters. See, Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967). Members of the public, whether they hold a minnow dealer license or not, may take minnows from non-navigable waters only if they have lawful access to such waters. They may enjoy that right of access either as the owners of, or as permittees of an owner of a riparian tract. Each riparian owner has an equal right to enjoy the entire surface of the waters and each may permit his or her licensee the privilege of using such waters, provided that such use is reasonable. It is my opinion, therefore, that the holder of a minnow and wiggler dealer's license may take minnows from any navigable body of water. It is my further opinion that such license holder may take minnows from non-navigable waters, provided the licensee owns lands riparian to such waters or has the permission to do so granted by the owner of lands riparian to such waters. The second question is: Does the act of harvesting, i.e., removing wigglers buried in bottomlands of inland waters by licensed commercial minnow and wiggler dealers, constitute unlawful trespass on riparian bottomlands? Wigglers are the larval stage of what may be commonly referred to as burrowing mayflies. In their larval stage, these may be found burrowed into the bottomlands of inland bodies of waters. Persons harvesting the wigglers necessarily dig into or otherwise disturb the bottomlands to effect the removal of the imbedded wigglers. The holder of a license issued under MCL 305.6; MSA 13.1628 may take wigglers from lands submerged by waters of this state, regardless of navigability of the water if such holder is the owner of such submerged lands or has been granted permission so to do by the owner of such lands. It is my opinion in answer to the second question, that the holder of a minnow and wiggler dealer's license may take wigglers from lands submerged by a navigable or non-navigable inland body of water only if the licensee owns the submerged lands from which the wigglers are being taken or has the permission of the owner of such submerged lands so to do. Frank J. Kelley Attorney General
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