STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6333

December 23, 1985

FISH AND GAME:

Sale of salmon and eggs for commercial purposes

NATURAL RESOURCES, DEPARTMENT OF:

Authority to sell salmon and eggs for commercial purposes

The Department of Natural Resources is not authorized by the Legislature to sell salmon and/or eggs taken from the inland waters of the state for commercial purposes.

The Honorable Mitch Irwin

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

Does the Department of Natural Resources have lawful authority to enter into contracts with private entrepreneurs selling to the entrepreneurs coho and chinook salmon and/or eggs taken from the inland waters of the state?

The Department of Management and Budget in 1983 entered, on behalf of the Department of Natural Resources, into a ten-year contract with a private corporation selling to the corporation salmon carcasses and/or eggs removed from the inland waters of the state. The proceeds from these sales are deposited in the fish and game protection fund. The contract further requires the corporation to provide certain services to the state, including the operation of state-owned harvest weirs for the purpose of harvesting and removing salmon in accordance with the conditions and specifications contained therein. The Department of Natural Resources advises that approximately 1.8 million pounds of salmon were harvested in 1984 and 2.0 million pounds were harvested in 1983.

The salmon and/or eggs which are the subject of the contract are the property of the State of Michigan. People v Soule, 238 Mich 130, 139; 213 NW 195 (1927); Department of Natural Resources v Seaman, 396 Mich 299, 311; 240 NW2d 206 (1976).

The Michigan Sportsmen Fishing Law, MCL 301.2; MSA 13.1592 provides, in part:

'All fish found in any of the inland waters of this state are hereby declared to be the property of the state of Michigan and may only be taken at such time and in such manner as hereinafter provided.'

MCL 301.3; MSA 13.1592 defines, for the purpose of the Michigan Sportsmen Fishing Law, the inland waters of the state to be all waters except the Saginaw River, lakes Michigan, Superior, Huron, and Erie and the bays and connecting waters between the lakes. The salmon and/or eggs sold are harvested from the inland waters of the State of Michigan.

State ownership of the fish is further set forth under the Commercial Fishing Law of 1929, MCL 308.1; MSA 13.1491, which is a comparable provision to MCL 301.2; MSA 13.1592 found in the Michigan Sportsmen Fishing Law, and provides, in part:

'All fish of whatever kind found in the waters of lakes Superior, Michigan, Huron and Erie, commonly known as the Great Lakes, and the bays thereof and the connecting waters between the lakes within the jurisdiction of this state, shall be, and are declared to be, the property of the state and the taking thereof is declared to be a privilege. All fish in such waters shall be taken, transported, sold and possessed only in accordance with the provisions of this act.'

State ownership of the fish, however, does not carry with it all the incidents of absolute ownership in that the state holds the property in trust. In Michigan United Conservation Clubs v Anthony, 90 Mich App 99, 106; 280 NW2d 883 (1979), the Court held that '[i]n essence . . . the fish are held in trust for all the people of the State in their collective capacity.'

Thus, in holding the fish in trust for the people of the State of Michigan, the appropriate administrative agency, here being the Department of Natural Resources, would be entitled to take actions with respect to the property only in accordance with the interests of the people of the State of Michigan and in accordance with express legislative authorization.

No power to engage in the business of selling salmon carcasses and/or eggs has been expressly conferred upon the Department of Natural Resources. The Michigan Sportsmen Fishing Law does provide a very limited instance in which the Department of Natural Resources may sell fish harvested from the inland waters of the State of Michigan. MCL 305.9; MSA 13.1631 provides, in part:

'The director of conservation may cause to be taken from the inland waters of this state, whitefish or any other species of fish for the purpose of obtaining spawn for fish culture or scientific investigation, and all fish so taken shall be taken under the supervision of a deputy of the department duly appointed for that purpose, and fish so taken may be sold to pay the expense of taking same. . . .' MCL 305.9; MSA 13.1631.

It is noted that all the powers, duties and functions of the director of conservation were transferred by a type II transfer to the Department of Natural Resources. MCL 16.353; MSA 3.29(253).

Although other portions of MCL 305.9; MSA 13.1631 have been amended, this provision has not changed nor the limited authority expanded since original passage in 1929. Had the Legislature intended to confer authority broad enough to authorize the Department of Natural Resources to engage in the business of selling salmon carcasses and/or eggs harvested in inland waters of the state, it would have so provided. The Legislature granted the Department of Natural Resources the very limited authority to sell fish taken for the purpose of obtaining spawn for fish culture or scientific investigation solely to pay for the expenses of obtaining spawn for fish culture or scientific investigation. Clearly, the Legislature contemplated a small number of fish to be taken for these limited purposes. The intent of the Legislature was not to authorize the sale of large quantities of fish for commercial purposes. No other sales of fish by the Department of Natural Resources have been authorized.

A comparable provision of the Commercial Fishing Law of 1929 involving fish taken from the Great Lakes limits the authority of the Department of Natural Resources to sell fish taken from the waters of the Great Lakes in carefully prescribed circumstances. MCL 308.10; MSA 13.1501, provides:

'It shall be lawful for the director of conservation to take fish in any manner, in any of the waters mentioned in this act, at any and all seasons of the year, for the purpose of fish culture and scientific investigation; to have and to hold ripe and unripe fish in order to take spawn therefrom; to sell all such ripe and unripe fish; and to devote the proceeds of such sales exclusively toward defraying the expenses incurred taking such fish and fertilizing and planting the spawn therefrom.' (Emphasis added.)

This section has not been amended and the limited authority conferred therein has not been expanded since original passage in 1929 or as a part of the legislative oversight of the introduction of salmon into the Great Lakes.

Neither MCL 305.9; MSA 13.1631 nor MCL 308.10; MSA 13.1501 confer authority to sell fish eggs.

The Department of Natural Resources was created by the Legislature by the enactment of 1921 PA 17; MCL 299.1 et seq; MSA 13.1 et seq; and MCL 16.350 et seq; MSA 3.29(250) et seq. Since the Department is a creature of the Legislature, the legislative grant of authority in MCL 308.10 and MSA 13.1501, delineates the authority of the Department of sell fish. OAG, 1983- 1984, No 6254, p 402, 404 (Nov 8, 1984) states:

'Where the Legislature establishes an agency and delineates its powers in a particular field, powers not conferred are deemed to be withheld. Further, when a statute grants powers to an agency and specifies the mode of their exercise, that mode must be followed. Sebewaing Industries, Inc. v Village of Sebewaing, 337 Mich 530, 545; 60 NW2d 444 (1953).

'It is a general principle of statutory construction that inclusion of a thing by specific mention excludes that which is not mentioned, expressio unius est exclusio alterius. Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971). Sebewaing Industries, Inc., supra; VanEtten v Manufacturers National Bank of Detroit, 119 Mich App 277, 287; 326 NW2d 479 (1982); In Re Vellenga Estate, 120 Mich App 699, 703; 327 NW2d 340 (1982), lv den, 418 Mich 874 (1983); OAG, 1981-1982, No 6088, p 700, 703 (July 30, 1982).'

It is abundantly clear that the harvesting of salmon in quantities exceeding a million pounds per year and marketing salmon is not for the purpose of obtaining spawn for fish culture or for scientific investigation.

In the absence of legislative authority for the general sale of salmon carcasses and eggs, it must be concluded and it is my opinion that the Department of Natural Resources is not authorized to sell salmon and/or eggs taken from the inland waters of the state for commercial purposes.

Frank J. Kelley

Attorney General