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Opinion No. 6786

February 3, 1994


County prohibition on hunting, trapping and fishing on county owned lands


County prohibition on hunting, trapping and fishing on county owned lands


County prohibition on hunting, trapping and fishing on county owned lands

A county may prohibit hunting and trapping on lands owned by the county.

Where the county owns all of the lands surrounding a lake and the lake is not accessible via a navigable stream, the county may prohibit access to the lake for the purpose of fishing.

Mr. Jay S. Finch

Dickinson County Prosecuting Attorney

Correctional Center

P.O. Box 725

Iron Mountain, MI 49801

You have asked two questions which may be stated as follows:

1. May a county prohibit hunting and trapping on lands owned by the county?

2. May a county prohibit access to a lake for the purpose of fishing, thereby effectively prohibiting fishing on the lake, where the county owns all of the lands surrounding the lake and the lake is not accessible via a navigable stream?

Your request has been prompted by certain events which have occurred recently in Dickinson County involving Fumee and Little Fumee lakes and the lands surrounding these lakes. Your request and information provided by the Department of Natural Resources give the following background information.

Fumee and Little Fumee lakes together cover a total of 504 acres and are connected by a small, non-navigable stream. Fumee Lake has a small, non-navigable outlet which flows into the Menominee River. For over 50 years, Fumee and Little Fumee lakes served as the source for drinking water for the City of Norway. However, in the mid-1980s the City converted its water supply to wells and decided to dispose of the lakes and of the 583 acres of land which it owned and which completely surrounded the lake. Following a local referendum which authorized bonding for the purchase, Dickinson County purchased the entire area from the City for $930,000 and established the Fumee Lake Natural Area. (1)

For many years, while used as a drinking water source, the two lakes and the surrounding lands owned by the City were closed to hunting, trapping and fishing by the City of Norway. In 1989, after the City ceased to use the area as its drinking water source and before it was acquired by the County, the Natural Resources Commission adopted special fishing regulation CFI-171.90 pursuant to 1925 PA 230, MCL 300.1 et seq; MSA 13.1211 et seq, closing Fumee Lake to all fishing. This order was extended in 1991, CFI-171.92, through March 31, 1994. On July 13, 1993, after it had acquired the area from the City, the Dickinson County Board of Commissioners adopted an ordinance establishing rules and regulations pertaining to the operation of the Fumee Lake Natural Area. These regulations prohibit hunting, trapping and fishing throughout the Natural Area. On September 9, 1993, the Department of Natural Resources Director signed CFI-171.93 establishing a catch and release fishery on Fumee Lake from July 1 through September 30. This order is to take effect on April 1, 1994, and remain in effect through March 31, 1996. It is the apparent conflict between the County regulations and those of the Department of Natural Resources that has prompted your opinion request.

In People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977), cert den sub nom East Detroit v Llewellyn, 435 US 1008; 98 SCt 1879; 56 LEd2d 390 (1978), the Michigan Supreme Court held that a local ordinance is invalid if it is in direct conflict with a state statute or if the field of regulation addressed by the ordinance has been preempted by state regulation.

The application of this principle in the context of hunting and fishing regulations was addressed in Letter Opinion of the Attorney General to Senator Harry Gast, dated September 28, 1989. That opinion concluded that state hunting and trapping statutes are of the type contemplated by the Llewellyn decision as preempting the field of regulation. Thus, municipalities may not, by ordinance, regulate hunting and trapping. The extensive statutory scheme regarding fishing also leads to the conclusion that local regulation of fishing is preempted by state occupation of the field. See, e.g., the Michigan Sports Fishing Law, 1929 PA 165, MCL 301.1 et seq; MSA 13.1591 et seq (defining "game" fish; establishing seasons, creel limits, and size limits; describing legal equipment for taking fish; and defining various waters from which fish may be taken under different regulations); the Hunting and Fishing License Act, 1980 PA 86, MCL 316.101 et seq; MSA 13.1350(101) et seq (setting forth licensing requirements); and 1925 PA 230, supra (authorizing the Natural Resources Commission or Department of Natural Resources to adopt additional regulations deemed necessary to protect fish or particular kinds or species of fish from depletion in any waters where such protection is necessary).

A different issue exists, however, with respect to lands owned by a local unit of government, as is the case with the Fumee Lake Natural Area. As was stated in the September 28, 1989, letter opinion to Senator Gast, at page 7:

While it is clear that a charter township may not, without express statutory authority, regulate hunting and trapping, it should also be noted that the township may, as to its own lands, prohibit hunting and trapping on those lands by posting no hunting and no trapping signs on township property and enforcing the hunting prohibitions under the Recreational Trespass Act, MCL 317.171 et seq; MSA 13.1482(1) et seq. See OAG, 1975-1976, No 4974, p 449 (May 7, 1976), which concluded that where a township is the owner in fee of all of the subaqueous lands of a navigable inland lake and is also the owner of the uplands abutting the lake, the township may prohibit the public from hunting on the lake without adoption of an ordinance regulating hunting in the township. (Emphasis in original.)

The situation is slightly more complex with respect to fishing. As was noted in OAG, 1975-1976, No 4974, p 449 (May 7, 1976):

[U]nlike hunting, the public right to take fish extends to all navigable waters regardless of the ownership of the bed. The Michigan Supreme Court has held that the title of the riparian is subordinate to the rights of the public to take fish. Attorney General, ex rel Director of Conservation v Taggart et al, 306 Mich 432; 11 NW2d 193 (1943).

Here, however, neither of the two lakes is navigable (2), and there is no access except as allowed by the county across county property. This situation is not unlike that in Giddings v Rogalewski, 192 Mich 319; 158 NW 951 (1916), concerning the public's right to cross private property to fish in a private lake which defendant argued was connected to public waters of the state.

That fish, bred in and frequenting private waters, may nevertheless pass back and forth to and from other waters by some connecting water and thus, like wild animals, be or become ferae naturae, and consequently belong only to the State, though subject to capture in season and in prescribed manner by all those who have a right to be where they are found and captured, does not give the right to invade and trespass upon private premises in order to reach them, although the State may have jurisdiction over private waters to enforce the fish laws and control the manner and time of their taking, as it has over private lands to enforce the game laws. Aside from the claim that this lake is open to the public for fishing purposes, and plaintiff's farm is a highway to reach it, no question is made as to his ownership, title, and right to exclusive possession of all the land around and under the lake. The jurisdiction of the State to enforce the fish and game laws there under its police power does not, and cannot, take away his right to maintain trespass against those who invade his close without permission, especially when forbidden, and wander over his private premises in pursuit of fish or game. Id., at 325.

Because Fumee and Little Fumee Lakes connect with public waters of the state, the taking of fish in either is subject to state regulation. Giddings, supra; People v Collison, 85 Mich 105, 108; 48 NW 292 (1891); cf. People v Conrad, 125 Mich 1; 83 NW 1012 (1900) (the state may not regulate the taking of fish in entirely private waters not connected to waters owned by another). Nevertheless, the regulatory authority of the State does not include the authority to confer upon the public the right to trespass upon the adjacent uplands. Giddings, supra. Thus, while fishing in the lakes is subject to state regulation and the county may not permit what the state prohibits, the county, as owner of all the surrounding land, may prohibit the public from crossing county property to gain access to the lakes for the purpose of fishing. See, e.g., MUCC v MSU Board of Trustees, 172 MichApp 189, 193; 431 NW2d 217 (1988). Inherent in this control of all lake access is the county's authority to effectively prohibit the public from fishing in the lake.

It is my opinion, therefore, in response to your first question, that a county may prohibit hunting and trapping on lands owned by the county.

In response to your second question, it is my further opinion that, where the county owns all of the lands surrounding a lake and the lake is not accessible via a navigable stream, the county may prohibit access to the lake for the purpose of fishing.

Frank J. Kelley

Attorney General

(1 Included within the Natural Area is a 23)3-acre parcel of lake frontage which had been deeded to the City of Norway in 1941 by the Department of Conservation, now the Department of Natural Resources. This was a tax-reverted parcel deeded to the City pursuant to 1909 PA 223, MCL 211.461; MSA 7.681, for public use, with a clause indicating that the parcel shall revert to the State if it ceases to be used for water supply and park purposes. The transfer of this tax-reverted parcel from the City of Norway to Dickinson County for use as part of the Fumee Lake Natural Area is not a use that would trigger the reversionary clause in the 1941 deed to the City. OAG, 1945-1946, No 0-4421, p 648 (March 27, 1946). Thus, the County has acquired all of the frontage on both lakes from the City. Moreover, as the owner of all the surrounding uplands, the county also owns all of the subaqueous lands under each lake. Pigorsh v Fahner, 386 Mich 508, 513-514; 194 NW2d 343 (1972).

(2 Because neither Fumee Lake nor Little Fumee Lake has both a navigable inlet and outlet capable of floating logs for commercial purposes, the lakes are not subject to public fishing as navigable waters) Bott v Natural Resources Comm, 415 Mich 45, 66-71; 327 NW2d 838 (1982).