STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6568

February 16, 1989

FISH AND GAME:

License to hunt bear required for person to train dogs to hunt bear

NATURAL RESOURCES DEPARTMENT OF:

Commission of Natural Resources--authority to limit season for training of dogs to hunt bear

WORDS AND PHRASES:

'Hunting'

A person training dogs to hunt bear must have a valid bear hunting license, whether carrying a firearm or not.

The Commission of Natural Resources is authorized to limit the period for training dogs to hunt bear to the open season for hunting bear.

Honorable Christopher D. Dingell

State Senator

The Capitol

Lansing, MI 48909

You have requested my opinion on two questions, both of which concern the authority of the Commission of Natural Resources (Commission) to regulate black bear hunting and the training of dogs to hunt bear. Your questions may be stated as follows:

The Hunting and Fishing License Act, MCL 316.101 et seq; MSA 13.1350(101) et seq, provides for the issuance of licenses for the hunting or killing of game animals in the State of Michigan. Section 310(1) of that Act, MCL 316.310(1); MSA 13.1350(310)(1), provides, in pertinent part:

The term 'hunt,' as used in Sec. 310(1), is defined in Sec. 106(1) of the Act, MCL 316.106(1); MSA 13.1350(106)(1), as follows:

Section 701(1)(d), MCL 316.701(1)(d); MSA 13.1350(701)(1)(d), provides that a person who hunts without a license is guilty of a misdemeanor.

Thus, the Legislature has expressly defined the term 'hunt' so as to include the pursuing of wild animals, and has further required that all persons engaged in hunting--or pursuing--bear must possess a bear hunting license.

It should be observed, however, that while the Legislature has declared that hunting a wild animal means 'pursuing' that animal, one must be mindful of the fact that this is a criminal statute. 'Statutes imposing criminal penalties are strictly construed. The defendant cannot be convicted under language of the statute unless his acts are clearly and unequivocally encompassed by its terms.' People v. Lyons, 93 Mich App 35, 43; 285 NW2D 788 (1979). The term 'pursuing' implies some deliberate and intentional act on the part of the hunter, e.g., a verbal or physical instruction to his or her dog to follow or chase a bear. Thus, to be guilty of violating the prohibition against hunting or pursuing, there must be a deliberate and intentional act to capture or kill game in an area where game may be found.

It is my opinion, in response to your first question, that any person who pursues a bear with dogs must have a valid bear hunting license in his or her possession, regardless of whether the individual is carrying a firearm, and regardless of whether the person intends to kill the bear or is merely engaged in the training of dogs.

Your second question concerns the authority of the Commission to limit to 30 days the period during which dogs may be trained by pursuing bear.

MCL 312.10(1); MSA 13.1339(1), provides in pertinent part:

By means of this provision, the Legislature has expressly prohibited persons from training dogs upon bear or other animals (with the exception of foxes) except during the open season for hunting of each such animal. In the second sentence of this subsection, the Legislature has further restricted such practices by providing that, again with the exception of foxes, dogs may not be trained upon game birds and animals during the period April 16 through July 16, even if the animal may otherwise lawfully be hunted during that period.

MCL 312.11; MSA 13.1340, provides in pertinent part:

The Legislature has, accordingly, expressly delegated to the Commission of Natural Resources the authority to establish open or closed seasons for the hunting of bear. Given this explicit delegation of authority, the establishment of such open and closed seasons is clearly within the lawful authority of the Commission. See, Coffman v State Bd of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1952); Soap & Detergent Assoc v Natural Resources Comm'n, 415 Mich 728; 330 NW2d 346 (1982). Cf, Michigan Humane Society v Natural Resources Comm'n, 158 Mich App 393; 404 NW2d 757 (1987). Once such seasons are established, the hunting or molesting of bear at times other than during the season open for hunting bear is prohibited. MCL 312.10(1)(p); MSA 13.1339(1)(p), and MCL 312.11(1); MSA 13.1340(1).

It is my opinion, in response to your second question, that the Commission of Natural Resources has the authority to establish open or closed seasons for the hunting of bear pursuant to MCL 312.11(3); MSA 13.1340(3). It is my further opinion that the Legislature has, by means of MCL 312.10(1)(p); MSA 13.1339(1)(p), and MCL 312.11(1); MSA 13.1340(1), prohibited persons from training dogs to hunt bear except during the season lawfully open for bear hunting.

Frank J. Kelley

Attorney General