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 - http://www.ag.state.mi.us)
STATE OF MICHIGAN
BILL SCHUETTE, ATTORNEY GENERAL
NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT:
Preemption of local ordinance prohibiting taking of wild birds.
Part 401 of the Natural Resources and Environmental Protection Act, 1995 PA 57, MCL 324.40101 et seq., preempts a local ordinance that prohibits the taking of wild birds because the ordinance directly conflicts with state law by prohibiting what state law and regulations permit, and because the field of wild animal regulation is fully occupied by state law.
Opinion No. 7286
September 28, 2015
The Honorable Robert Wittenberg
Lansing, MI 48909
You have asked whether state law preempts a city ordinance that makes it a misdemeanor for any “person, except a public officer acting in his official capacity,” to “molest, injure, kill or capture any wild bird[.]”
According to your request, a city resident, who is not a public officer acting in an official capacity, wishes to kill or capture English sparrows because the sparrows have damaged the resident’s property. The resident, however, fears prosecution under the city’s ordinance for the killing or capturing of English sparrows. To address your question, it is important to first review the extent of the State’s authority to manage Michigan’s wild birds and animals. Then the interplay between state law and the city’s ordinance will be examined and principles of preemption applied.
I. State management of wild birds and animals.
State law gives state entities broad, statewide authority to manage Michigan’s wild animals. Part 401 of the Natural Resources and Environmental Protection Act (NREPA), 1995 PA 57, MCL 324.40101 et seq., defines “animals” as “wild birds and wild mammals,” MCL 324.40102(1), and declares that “[a]ll animals found in this state . . . are the property of the people of the state.” MCL 324.40105. Part 401 further states that “the taking of all animals shall be regulated by the [Department of Natural Resources] as provided by law,” id. (emphasis added), and defines “take” to mean “hunt . . . kill; chase; follow; harass; harm; pursue; shoot; rob; trap; capture; or collect animals.” MCL 324.40104(1). According to state law, the Department of Natural Resources (Department) is the entity that must regulate the killing, capture, or collection of any wild animals in Michigan – including wild birds.
Part 401, however, also provides for the designation of a species of animal as “game.” MCL 324.40110. In that context, “only” the Legislature or the Natural Resources Commission (Commission) “may designate a wildlife species as game,” and only the Legislature or the Commission “may establish the first open season for a game species[.]” MCL 324.40110(1). The Commission “has the exclusive authority to regulate the taking of game as defined in section 40103 in this state.” MCL 324.40113a(2). After the Legislature or Commission acts, the Department “may issue orders pertaining to that animal for each of the purposes listed in section 40107.” MCL 324.40110(2). Section 40107 mandates that the Department “manage animals in this state,” and provides that the Department may issue orders relating to such management. MCL 324.40107(1). Thus, with the exception of designating animals as “game,” establishing a first open season for game animals, and regulating the taking of game, which authority belongs to the Legislature and Commission, the Department regulates the taking and managing of “all animals” generally. MCL 324.40105 and 324.40107.
Both the Department and the Commission implement much of their Part 401 authority by issuing orders. MCL 324.40107(1); MCL 324.40110(1). An order prepared by either must follow a process that provides the public and various legislative committees with notice and an opportunity to comment before the order can be issued. MCL 324.40107(2); MCL 324.40113a(2). Once issued, if an order relates to the management of animals or a game species, the order is incorporated into the standing Wildlife Conservation Order (WCO) that was first created on March 31, 1989. Orders issued under the Department’s statutory authority have the force of law. Department of Natural Resources v Seaman, 396 Mich 299, 310-314; 240 NW2d 206 (1976); OAG, 2003-2004, No 7123, p 4 (February 11, 2003).
II. State law preemption of local law.
The Michigan Constitution gives cities the “power to adopt resolutions and ordinances relating to its municipal concerns.” Const 1963, art 7, § 22. However, a city’s power to adopt ordinances is “subject to the constitution and law.” Id. The Michigan Supreme Court has determined that the phrase “subject to the . . . law” means that a city’s power to adopt ordinances is “subject to the laws of this state, i.e., statutes.” Ter Beek v City of Wyoming, 495 Mich 1, 19; 846 NW2d 531 (2014) (internal quotation omitted).
There are two different ways a state statutory scheme can preempt a local ordinance. First, an ordinance is preempted if “the ordinance is in direct conflict with the state statutory scheme.” Ter Beek, 495 Mich at 19-20, quoting People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977). And second, even if the local ordinance does not directly conflict with state law, the ordinance is preempted if “the state statutory scheme . . . occup[ies] the field of regulation which the municipality seeks to enter . . . .” Id.
A. The local ordinance is preempted because it directly conflicts with state law.
An ordinance directly conflicts with a state statutory scheme if it either “permits what the statute prohibits,” or it “prohibits what the statute permits.” Ter Beek, 495 Mich at 20 (internal quotation omitted).
Under Part 401, the Commission has exclusive authority “to regulate the taking of game,” MCL 324.40113a(2), including the right shared with the Legislature to designate animals as “game.” MCL 324.40110(1). However, not all animals are game. The term animals broadly includes “wild birds and wild mammals,” MCL 324.40102(1), while “game” includes only those animals currently identified in MCL 324.40103(1)(a)-(mm) (listing 39 animals), and any animals the Commission designates as game under MCL 324.40110(1). With respect to animals, the “taking of all animals shall be regulated by the” Department. MCL 324.40105 (emphasis added). Similarly, the Department is required “to manage animals in this state,” and in doing so it may issue orders that “[d]etermine the kinds of animals that may be taken.” MCL 324.40107(1)(b). The city ordinance at issue directly conflicts with this statutory scheme in at least two ways.
First, the ordinance directly conflicts with an order issued by the Department. Relying on the above statutory authority, the Department issued section 9.1(1) of the Wildlife Conservation Order (WCO). Section 9.1(1) states that individuals can take certain non-game animals, including “English sparrows, feral pigeons, and starlings,” by “hunting statewide,” unless the animals are within “state park and recreation areas [between] April 1 [and] September 14.” Additionally, English sparrows and starlings “may be taken without a permit when doing or about to do damage to property or committing or about to commit depredations.” Id.
Under section 9.1(1) of the WCO, the Department permits individuals, other than public officials acting in their official capacities, to take English sparrows, feral pigeons, and starlings. But the city’s ordinance prohibits such a taking. By prohibiting what section 9.1(1) of the WCO permits, the ordinance directly conflicts with state law, and is, therefore, preempted. Ter Beek, 495 Mich at 20.
Second, the city’s ordinance directly conflicts with state law by failing to provide an exemption for businesses or individuals that hold permits under MCL 324.40114(4)(b). Under that section, the Department may “issue permits authorizing . . . [t]he taking of animals to prevent or control damage and nuisance caused by the animals . . . .” MCL 324.40114(4)(b). Section 5.50 of the WCO describes how a business or individual may obtain a permit to take nuisance animals under MCL 324.40114(4)(b). If a person has obtained a permit under MCL 324.40114(4)(b) authorizing the taking of wild birds, then the city’s ordinance is preempted to the extent it forbids the permit holder from taking the wild birds. Again, a local ordinance cannot forbid what state law permits. Ter Beek, 495 Mich at 20.
B. The local ordinance is preempted because it attempts to enter a field of regulation that is fully occupied by state law.
A local ordinance is also preempted by state law – even if it does not directly conflict with state law – if the local ordinance attempts to enter a field of regulation that is fully occupied by state law. Ter Beek, 495 Mich at 19-20, quoting Llewellyn, 401 Mich at 322. Since the city’s ordinance attempts to enter the field of wild animal regulation, the question is whether that field is fully occupied by state law.
There are four factors to consider when determining whether a field is occupied by state law to the exclusion of local regulation. First, “there is no doubt that municipal regulation is pre-empted” if a statute “expressly provides that the state’s authority to regulate in a specified area of the law is to be exclusive.” Rental Property Owners Ass’n of Kent Co v City of Grand Rapids, 455 Mich 246, 257; 566 NW2d 514 (1997), quoting Llewellyn, 401 Mich at 323. As explained above, “[a]ll animals found in this state . . . are the property of the people of the state.” MCL 324.40105. The Department is required to “manage animals in this state,” MCL 324.40107(1), and in particular, “the taking of all animals shall be regulated by the department as provided by law.” MCL 324.40105 (emphasis added).
Part 401 demonstrates that the management of wild animals – particularly the taking of wild animals – is exclusively a matter of state law. See OAG, 1993-1994, No 6786, p 105 (February 3, 1994) (local regulation of hunting and fishing is preempted because state law occupies the field of hunting and fishing regulation). Therefore, the first factor weighs strongly in favor of field preemption.
The second factor considers whether “pre-emption of a field of regulation may be implied upon an examination of legislative history.” Rental Property Owners, 455 Mich at 257, quoting Llewellyn, 401 Mich at 323. The Legislature has long used broad, sweeping language to describe and regulate wild animals in Michigan. The Game Law of 1929 stated that “[a]ll wild animals and wild birds . . . found in this state, are hereby declared to be the property of the state.” 1929 PA 286, Chap I, § 2 (repealed). The Game Law dictated that no “person shall at any time of the year, or in any manner take . . . any wild bird or wild animal mentioned in this act . . . contrary to the provisions of this act.” 1929 PA 286, Chap II, § 1 (repealed). And Chapters II-IV of the Game Law specified in great detail how and when wild birds and animals could be taken and by whom.
In 1988, the Wildlife Conservation Act defined “animals” as “wild birds and wild mammals,” MCL 300.253(1) (repealed), and also stated that “[a]ll animals . . . found in this state are the property of the people of the state . . . .” MCL 300.256 (repealed). The Wildlife Conservation Act explicitly required the Commission to “manage animals in this state,” MCL 300.258, and declared that “the taking of all animals shall be regulated by the commission and the department as provided by law.” MCL 300.256 (emphasis added) (repealed).
In replacing the Wildlife Conservation Act with Part 401 of the NREPA, 1995 PA 57, the Legislature again described animals as property of the State, MCL 324.40105, and preserved the State’s responsibility to regulate the “taking of all animals,” MCL 324.40105, and later, its “exclusive authority to regulate the taking of game.” 1996 PA 377, MCL 324.40113a(2).
A review of the Game Law and the Wildlife Conservation Act, now repealed, and of Part 401 of the NREPA, the current law, demonstrates that the Legislature has consistently used language describing Michigan’s wild animals as property of the State, and consistently identified only state-level entities as the entities responsible for regulating the State’s animals. Therefore, the second factor – legislative history– also weighs in favor of field preemption.
The third factor to consider when determining whether a field of regulation is fully occupied by state law is “the pervasiveness of the state regulatory scheme.” Rental Property Owners, 455 Mich at 257, quoting Llewellyn, 401 Mich at 323. This factor examines the breadth of the state statutory scheme and, in particular, examines whether the scheme already addresses the concern the local ordinance addresses. City of Grand Haven v Grocer’s Co-op Dairy Co, 330 Mich 694, 700-01; 48 NW2d 362 (1951); Howell Twp v Rooto Corp, 258 Mich App 470, 484-89; 670 NW2d 713 (2003) (analyzing the case law governing this factor).
The breadth of the State’s scheme to regulate wild animals is already described above, and there is no question that the wild animals within the city, including animals that have been identified as game species, fall under state jurisdiction. See Llewellyn, 401 Mich at 327 (the “breadth and detail” of a “statutory scheme provides an indication that the Legislature has preempted” local regulation).
The city’s ordinance seeks to protect wild birds in the city by making it a misdemeanor for any “person, except a public officer acting in his official capacity,” to “molest, injure, kill or capture any wild bird[.]” However, Part 401 already orders the Department to regulate “the taking of all animals,” including wild birds, MCL 324.40105, and authorizes it to issue orders to “[d]etermine the kinds of animals that are taken.” MCL 324.40107(1)(b). In accordance with that authority, the Department issued sections 9.1 and 9.3 of the WCO, which identify the nongame birds that can be taken and under what circumstances. Moreover, many of the wild birds to which the city’s ordinance applies have been designated as game animals, whose taking is regulated by the Commission and the WCO. MCL 324.40113a(2). Therefore, the Legislature has already taken “all precautions reasonably necessary” to protect the wild birds in the city from unauthorized disturbance. City of Grand Haven, 330 Mich at 701. For this reason, the third factor also weighs in favor of field preemption.
The fourth factor to consider when determining if a field of regulation is fully occupied by state law is whether “the nature of the regulated subject matter” requires “exclusive state regulation” in order “to achieve the uniformity necessary to serve the state’s purpose or interest.” Rental Property Owners, 455 Mich at 257, quoting Llewellyn, 401 Mich at 324. The regulated subject matter in this circumstance is the State’s wild animals. The State’s purpose in regulating the State’s wild animals is expressed in the Michigan Constitution, which states that 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.” Const 1963, art 4, § 52. The Legislature also declared that the “the fish and wildlife populations of the state and their habitat are of paramount importance to the citizens of this state,” MCL 324.40113a(1)(a), and that “hunting, fishing, and the taking of game . . . play an important part in the state’s economy and in the conservation, preservation, and management of the state’s natural resources.” MCL 324.40113a(3).
Wild animals roam, swim, and fly without regard to political boundaries, and the population of any particular species can depend on habitats that cross into multiple jurisdictions. This is the “nature of the regulated subject matter.” Rental Property Owners, 455 Mich at 257, quoting Llewellyn, 401 Mich at 324. Because of this nature, the State cannot conserve, preserve, and manage wild animal populations for the benefit of the public and the State’s economy if local jurisdictions create a patchwork of conflicting regulatory schemes within a population’s habitat. The Department and the Commission are tasked with relying on “sound scientific management” to ensure the “wise use” of the State’s “fish and wildlife populations.” MCL 324.40113a(1)(b). The State’s efforts to manage wild animals scientifically could be thwarted if municipalities were free to regulate the State’s wild animals according to purely local preferences.
Additionally, the Michigan Supreme Court has determined that if an area of law governs individual rights, it is likely that the area “demands uniform, statewide treatment” in order to avoid “confusion and provocation of endless appeals.” Llewellyn, 401 Mich at 327-329. The Llewellyn Court determined that, in the context of regulating obscene material, the localized regulation of obscenity made it “extremely difficult” for “national or statewide” distributors to know what conduct would expose them to “criminal prosecution.” Llewellyn, 401 Mich at 328. The resulting “unfairness” raised “serious due-process problems” because “persons subject to [criminal] penalties” are entitled to be informed of “the elements of [a criminal] offense” with “reasonable certainty” so that they “may know what acts it is their duty to avoid.” Id., citing People v Goulding, 275 Mich 353, 358; 266 NW 378 (1936).
The Llewellyn Court’s reasoning applies to the taking of animals as well. All wild animals belong to the State, and the Legislature has given the Department the power to regulate “the taking of all animals” in this State. MCL 324.40105. The people have a “right to hunt, fish, and take game” animals, MCL 324.40113a(3), and the Department also permits people to take certain non-game animals, such as English sparrows. As individuals move within Michigan and exercise their right to take animals, it would be “extremely difficult” for them to “to determine what acts it is his or her duty to avoid” if “municipalities of all sizes across the state” have local ordinances that forbid what state law allows, or that allow what state law forbids. Llewellyn, 401 Mich at 328. Statewide regulation of that right is the best way to ensure clarity and minimize litigation. Because wild animals move without regard to political boundaries, and because the citizens’ right to take animals could be frustrated by local regulation, the fourth factor also weighs in favor of field preemption.
As a result, all four factors that govern whether the field of wild animal regulation is fully occupied by state law weigh in favor of preempting local regulation of Michigan’s wild animals. See also OAG No 6786 at 106 (“state hunting and trapping statutes are of the type contemplated by the Llewellyn decision as preempting the field of regulation.”).
It is my opinion, therefore, that Part 401 of the NREPA preempts a local ordinance that prohibits the taking of wild bn irds because the ordinance directly conflicts with state law by prohibiting what state law and regulations permit, and because the field of wild animal regulation is fully occupied by state law.
 This opinion assumes that your reference to the resident’s “property” means the individual’s private residence or other private property owned or controlled by the individual. If your request involved public or city-owned property, a different analysis would apply. See, e.g. OAG, 1993-1994, No 6786, p 105 (February 3, 1994) (“A county may prohibit hunting and trapping on lands owned by the county.”).
 But only the Legislature may remove a wildlife species from the list of game species. MCL 324.40110(1).
 Previously, the Legislature managed animals by passing and amending the Game Law of 1929, 1929 PA 286. But in 1988, the Legislature replaced the Game Law of 1929 with the Wildlife Conservation Act, 1988 PA 256, MCL 300.251 et seq. Section 8 of the Wildlife Conservation Act gave the Commission authority to issue orders on a wide range of topics, including the power to “determine the kinds of animals that may be taken.” MCL 300.258(1)(b) (repealed). But when the Legislature replaced the Wildlife Conservation Act with Part 401 of the NREPA in 1994 PA 451 and 1995 PA 57, it gave the Department all the power the Wildlife Conservation Act had given the Commission, including the authority to issue orders in accordance with section 40107. MCL 324.40107(4).
 Notably, Michigan Audubon Society v Natural Resources Comm’n, 206 Mich App 1; 520 NW2d 353 (1994), does not bind interpretation of Part 401. There the Court held the Commission was unauthorized to permit the taking of certain raptors because the birds had not been designated as game by the Legislature. Id. at 6. But that decision interpreted the Wildlife Conservation Act, 1988 PA 256, which was repealed in 1994 by NREPA, and replaced with Part 401, 1995 PA 57, which transferred authority to the Department. See People v Gardner, 482 Mich 41, 65-66; 753 NW2d 78 (2008) (“[T]o whatever extent courts correctly divined past legislatures’ intents using previously enacted language, those intents should not guide [ ] interpretation of the unambiguous language of the current versions of the statutes[.]”) (emphasis in original, citation omitted). This is true even though Part 401 reenacted many provisions of the Wildlife Conservation Act. See Jones v Dep’t of Corrections, 468 Mich 646, 657-658; 664 NW2d 717 (2003) (“[T]he reenactment rule cannot be used as a tool to circumvent the plain and unambiguous language of a statute.”). The plain language of Part 401 authorizes the Department to provide for the taking of non-game animals, including English sparrows.