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
State Senator
The Capitol
Lansing, MI

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
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).