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 MIKE COX, ATTORNEY GENERAL NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION ACT: FISH AND GAME: Legality of radio-controlled fishing devices
under MCL 324.48703(1) A radio-controlled fishing device that enables its operator to
catch a fish in the waters of this State by means of a rod and line that is not
held directly in the operator's hand or in the operator's immediate physical
proximity is not under the operator's "immediate control," and is not a device
that may be used for sport fishing under section 48703(1) of the Natural
Resources and Environmental Protection Act, MCL 324.48703(1). Opinion No. 7222 December 22, 2008 Honorable Tony Stamas You have asked if the Natural Resources and Environmental
Protection Act (NREPA), 1994 PA 451, MCL 324.101 et seq, bars the use of
radio-controlled fishing devices. You indicate that the device involved is a miniature or small
radio-controlled boat that can cast a fishing line, catch a single fish, reel
the line in, and bring the fish to the person operating the radio-control unit
from a remote location. According to information provided by your office and by
searching the Internet, the typical radio-controlled boat is propelled by
rechargeable batteries. A transmitter is used to send signals to the receiver
mounted in the boat that controls both the boat's motion and the actions of the
reel-and-line device. The boat's size ranges from four feet to seven feet long,
depending on the type of fish to be caught. Conventional live and artificial
lures are used. The range of the radio device is several hundred yards, but as a
practical matter, the operator of the control device must be able to maintain
sight of the boat in order to properly direct its operations. When a fish is
hooked, the operator directs the boat to return to the operator, who then
chooses either to keep the fish or release it. On its website,1 the United State Patent Office
provides the following abstract regarding radio-controlled fishing devices: A radio controlled fishing bait boat for delivering a baited
fishing line to a remote location. The hull has a recessed channel on the
lower side in which a propeller and a rudder are mounted. A convex deck
cover covers a top portion of the hull. In the interior of the hull,
battery-powered electric motors for controlling the propeller and the
rudder, batteries, and a controller are arranged. Pivotable hatches are
provided in the stern transom for access to bait storage compartments in the
interior of the hull. A baited fishing line is loaded into the bait storage
compartment. The bait boat is directed to a desired fishing location by use
of a hand-held radio transmitter which sends signals to the bait boat to
control its speed and direction. Once the boat has reached the desired
fishing location, the fishing line is tugged to pull the baited fishing line
out of the bait storage compartment and into the water. The design of the
hull and the weight distribution of the boat allow the boat to duck under
breaking waves to stably and effectively move through surf to a desired
fishing location. Furthermore, various website advertisements2 explain
how a radio-controlled boat may be maneuvered to reach areas remote from a boat
or onshore location, thus eliminating the need for casting. The most
sophisticated versions costing several thousand dollars are equipped with
fish-finding radar, water depth and temperature sensors, and global positioning
systems. The Michigan Constitution imposes upon the Legislature the duty to
protect the State's natural resources: The conservation and development of the natural resources of
the state are hereby declared to be of paramount public concern in the
interest of the health, safety and general welfare of the people. The
legislature shall provide for the protection of the air, water and other
natural resources of the state from pollution, impairment and destruction.
[Const 1963, art 4, � 52.] As explained in Tallman v Dep't of Natural Resources, 421
Mich 585, 621-626; 365 NW2d 724 (1984), Michigan attaches great importance to
the preservation and development of its fishery resources. Indeed, the State's
commitment to this task "is historically rooted and constitutionally mandated."
Id., at p 625. The State's longstanding duty in this regard is as a
public trustee to "forever maintain" the "high, solemn and perpetual trust" in
the State's fishery resources through its game laws and regulations. Id.,
at p 621, quoting Collins v Gerhardt, 237 Mich 38, 49; 211 NW 115 (1926)
(holding that fishing in navigable waters is a public right subject to state
game laws). See also section 1601 of the NREPA, MCL 324.1601 (providing that the
Department of Natural Resources shall enforce state law regarding fish);
Attorney General v Hermes, 127 Mich App 777, 785; 339 NW2d 545 (1983); OAG,
1945-1946, No 0-3228, p 267 (March 12, 1945) (opining that the Department of
Natural Resources' predecessor agency had jurisdiction to protect fishing in all
waters of the State). The NREPA was enacted to consolidate and recodify Michigan laws
relating to the environment and natural resources. Under Part 453 of the NREPA,
sport fishing with hook and line is expressly allowed: In any of the navigable or meandered waters of this state
where fish have been or are propagated, planted, or spread at the expense of
the people of this state or the United States, the people have the right to
catch fish with hook and line during the seasons and in the waters that are
not otherwise prohibited by the laws of this state. [MCL 324.45301.] Subchapter 3 of chapter 2 of the NREPA, MCL 324.44501 et seq,
governs fisheries management. Within that subchapter is Part 487 of the NREPA,
MCL 324.48701 et seq, which governs sport fishing in Michigan. Answering
your question requires analyzing section 48703 of the NREPA, MCL 324.48703(1),
which enumerates a broad range of fishing devices that cannot be used for
catching fish: A person shall not take, catch, or kill or attempt to take,
catch, or kill a fish in the waters of this state with a grab hook, snag
hook, or gaff hook, by the use of a set or night line or a net or firearm or
an explosive substance or combination of substances that have a tendency to
kill or stupefy fish, or by any other means or device other than a
single line or a single rod and line while held in the hand or under
immediate control, and with a hook or hooks attached, baited with a
natural or artificial bait while being used for still fishing, ice fishing,
casting, or trolling for fish, which is a means of the fish taking the bait
or hook in the mouth. A person shall not use more than 3 single lines or 3
single rods and lines, or a single line and a single rod and line, and shall
not attach more than 6 hooks on all lines. The department shall have the
authority to decrease the number of rods per angler. However, the department
shall not reduce the number of rods per angler to less than 2. For purposes
of this part, a hook is a single, double, or treble pointed hook. A hook,
single, double, or treble pointed, attached to a manufactured artificial
bait shall be counted as 1 hook. The department may designate waters where a
treble hook and an artificial bait or lure having more than 1 single pointed
hook shall not be used during the periods the department designates. In the
Great Lakes or recognized smelt waters, any numbers of hooks, attached to a
single line, may be used for the taking of smelt, alewife, or other bait
fish. [Emphasis added.][3] Another section of Part 487 provides that illegal fishing
devices shall be confiscated. MCL 324.48711. Furthermore, MCL 324.48738 provides
criminal penalties for using unlawful fishing devices. As evidenced from the plain language in MCL 324.48703(1), to
fulfill the State's statutory duty to protect its sport fisheries, the statute
expressly prohibits a wide range of fishing devices or methods that would give a
person an unfair or unsporting advantage and allows fishing with only a single
line, or a single rod and line, which must be either "held in the hand" or kept
"under immediate control." MCL 324.48703, however, does not specifically address
whether a radio-controlled device is either a prohibited or permitted device for
sport fishing. The question, therefore, becomes whether fishing by means of a
rod and line mounted on a small boat remotely controlled by radio may reasonably
be regarded as fishing with a "single line or single rod and line while held in
the hand or under immediate control." (Emphasis added.) To answer this
question, principles of statutory construction must be employed. The primary goal of statutory construction is to determine and
give effect to the intent of the Legislature as expressed in the statutory
language. Fluor Enterprises, Inc v Dep't of Treasury, 477 Mich 170, 174;
730 NW2d 722 (2007). The term "immediate control" in MCL 324.48703(1) is not
defined in Part 487. Where words are not defined in a statute, they must be
construed and understood according to the common and approved usage of the
language. MCL 8.3a. To determine that meaning, it is appropriate to consult
dictionary definitions. Title Office, Inc v Van Buren County Treasurer,
469 Mich 516, 522-523; 676 NW2d 207 (2004). When used as an adjective to modify the noun "control" as in MCL
324.48703(1), the word "immediate" can have different meanings, which in turn
can lead to different conclusions regarding the legality of radio-controlled
fishing devices. For example, it can have a temporal connotation, meaning "not
separated in time; acting or happening at once; without delay; instant." Using
this definition, a radio-controlled device could be allowed if it remained under
the continual control of the operator without any interruption in time.
"Immediate" can also have a physical connotation, however, meaning "having
nothing coming between; with no intermediary; specif., a) not separated
in space; in direct contact; closest; nearest." Webster's New World
Dictionary, Third College Edition (1988). See also Webster's Third New
International Dictionary (1976) ("acting or being without the intervention
of another object, cause, or agency: DIRECT, PROXIMATE . . . being near at hand:
not far apart or distant"). Using these definitions, a radio-controlled fishing
device would be prohibited because the fishing line would be separated in space
from the operator and would require the intervention of the radio controls as an
intermediary. Another rule of statutory construction provides assistance in
resolving which of these definitions to use in ascertaining the intent of the
Legislature: the meaning of the words must be understood taking into account the
context in which the words appear. Western Michigan Univ Bd of Control v
State, 455 Mich 531, 539; 565 NW2d 828 (1997). "Immediate control" must,
therefore, be understood in the context of Part 487's provisions that protect
the State's sport fisheries. As the Michigan Supreme Court in Sweatt v Dep't
of Corrections, 468 Mich 172, 179-180; 661 NW2d 201 (2003), explained: The language [undefined in a statute] does not stand alone,
and thus it cannot be read in a vacuum. Instead, "it exists and must be read
in context with the entire act, and the words and phrases used there must be
assigned such meanings as are in harmony with the whole of the statute,
construed in the light of history and common sense. When interpreting a
statute, we must "consider both the plain meaning of the critical word or
phrase as well as 'its placement and purpose in the statutory scheme.'"
[Citations omitted.] Additionally, to ascertain the Legislature's intent, the entire
act should be read and meaning must be given, if possible, to every word of the
statute to harmonize its provisions and carry out the Legislature's purpose.
Macomb County Prosecutor v Murphy, 464 Mich 149, 160-161; 627 NW2d 247
(2001). A law is not properly read as a whole when its words and provisions are
isolated and given meanings that are independent of the rest of its provisions.
Lansing Mayor v Michigan Public Service Comm, 470 Mich 154, 168; 680 NW2d
840 (2004). Legislative intent is not to be determined from focusing on isolated
words but by construing its terms in accordance with the surrounding text and
the statutory scheme. Breighner v Michigan High School Athletic Ass'n,
471 Mich 217, 232; 683 NW2d 639 (2004). In seeking the meaning of words in a
statute, words and clauses will not be divorced from those which precede and
those which follow. G.C. Timmis & Co v Guardian Alarm Co, 468 Mich 416,
421-422; 662 NW2d 710 (2003). Examining the operative language within the overall context of
section 48703 and other provisions within Part 487, it is clear that a person is
prohibited from catching a fish by the enumerated methods "or by any
other means or device" other than a single line or a single rod and line
(emphasis added). This language conveys an intent to ban the use of a particular
device unless it is expressly authorized in section 48703(1). Moreover, other
language in the same subsection indicates that the means and devices authorized
by section 48703 are permitted only "while being used for still fishing, ice
fishing, casting, or trolling for fish." Radio-controlled fishing would not
appear to reasonably fall within the scope of these fishing methods.
Furthermore, the phrase "under immediate control" appears directly after "held
in the hand," suggesting that "immediate" is a physical limitation. Section 48711 of the NREPA provides further evidence of the
Legislature's restrictive intent with regard to devices that are authorized for
sport fishing use. This section states in relevant part: A person shall not have in his or her possession any
net, set lines, jack or other artificial light of any kind, dynamite, giant
powder, or other explosive substance or combination of substances, hook and
line, or any other contrivance or device to be used for the purpose of
taking fish in violation of this part or any other act or part. [MCL
324.48711; emphasis added.] To reiterate, MCL 324.48703(1) allows only a narrow range of
devices consisting of a "single line" or "a single rod and line" that must be
either "held in the hand or under immediate control." Reading all sections of
Part 487 as a whole, the connotation that "immediate control" means control that
is "close at hand" or in the operator's immediate physical proximity best
effectuates the Legislature's intent. As radio controls are not listed among the
devices authorized under MCL 324.48703(1), and as the fishing line positioned on
the boat can only be controlled with the intervention of the radio-control
device and is necessarily located at a distance from the operator, the fishing
line is not under immediate physical control and therefore, such a
remote-controlled fishing device is not authorized under section 48703(1) of the
NREPA.4 As new sport fishing innovations are developed and gain
popularity, they may offer new opportunities for participation in the sport. But
where the law is written in a way that restricts the devices that can be used
for sport fishing, it is for the Legislature alone to authorize their use in
Michigan. It is my opinion, therefore, that a radio-controlled fishing
device that enables its operator to catch a fish in the waters of this State by
means of a rod and line that is not held directly in the operator's hand or in
the operator's immediate physical proximity is not under the operator's
"immediate control," and is not a device that may be used for sport fishing
under section 48703(1) of the Natural Resources and Environmental Protection
Act, MCL 324.48703(1). MIKE COX
State Senator
The Capitol
Lansing, MI
Attorney General
1 See
the entry for Patent Number 5,806,232, available at: <http://patft.uspto.gov>
(accessed November 18, 2008).
2 See, for example: <http://rcfishingworld.com>
(accessed November 18, 2008).
3 This language is drawn from Chapter II, section 1 of 1929 PA 165.
4 This office is advised that the Michigan Department of Natural
Resources (DNR), the agency charged by law with the responsibility for
protecting Michigan's fishing resources, enforces Part 487 of the NREPA
consistent with the interpretation provided in this opinion. The DNR interprets
"immediate control" to mean that a fishing device must be "close at hand" to be
a lawful device under Part 487. The DNR's interpretation of "immediate control"
is a reasonable one. An interpretation of a statute by the governmental
agency
charged with its enforcement is "entitled to respectful consideration and, if
persuasive, should not be overruled without cogent reasons." In re Rovas
Complaint, 482 Mich 90, 108; 754 NW2d 259 (2008).