IN RE: The Matter of Roger and Kirk Tallman Cause No.: 80-1-84
Commercial Fishing License 315

The Matter of Tallman Fisheries, Ltd. Cause No.: 80-2-84
Commercial Fishing License 435

The Matter of Wayne Seaman Cause No.: 80-3-84
Commercial Fishing License 318

The Matter of Gerald Casey Cause No.: 80-4-84
Commercial Fishing License 458

Dated: March 13, 1981

These contested cases concern proposed suspensions of four commercial fishing licenses which were issued by the Director of the Department of Natural Resources pursuant to the Commercial Fishing Law of 1929, 1929 PA 84, as amended. Each case was commenced by an Administrative Complaint dated May 23, 1980, which was served by mail on the licensees' attorney. Each Administrative Complaint contended that the license should be suspended for a period of 60 days due to the licensee's refusal to allow inspection of a licensed vessel and catch of fish in contravention of the Commercial Fishing Law of 1929 and express conditions of the license. According to a letter from the Assistant Attorney General dated May 23, 1980, each license was given an opportunity to show compliance with the applicable law and license conditions at an informal hearing. The cases were consolidated for a formal contested case hearing since they involve similar facts and legal issues. The contested case hearing was conducted July 7, 1980, in Escanaba, Michigan.

1. Each of the four commercial fishing licenses involved in these proceedings contained the following provision:

The director of the Department of Natural Resources or his representative may at any tire inspect the vessels, vehicles, books, records, documents or other property used in carrying on the licensee's fishing operations and business; and further, may inspect and examine any fish in transport or in storage at any warehouse or in any truck, train or other conveyance whether common carrier or not.

Cause No. 80-1-84

2. Commercial Fishing License No. 315 was issued to Roger and Kirk Tallman of Fayette, Michigan. The license indicates that the licensees would use large mesh trapnets from a vessel named the Viking.

3. On November 2 or 3, 1979, Department of Natural Resources (DNR) personnel discovered two trapnets in the waters of Lake Michigan east of the Garden Peninsula. The season for trapnet fishing was closed. One net was marked as an Indian net and the other was unmarked. At this time DNR personnel had made no observations nor received any information to indicate that these trapnets belonged to Roger and Kirk Tallman.

4. On November 5, 1979, DNR personnel were on board a DNR vessel, the Char, for the purpose of pulling said trapnets when they were informed by radio that the nets, which had been observed in the water the previous evening, were no longer in the water. They were informed further that a trapnet boat, the Viking, had been seen in the area and was headed for Fairport. The DNR personnel were instructed to check the Viking for fish.

5. The Char and another DNR boat, the Little Beaver, subsequently encountered the Viking. A trapnet was observed by the DNR personnel on the deck of the Viking. Conservation officers aboard the DNR boats requested permission to board the Viking to inspect it for fish. The officers did not have a search warrant. Kirk Tallman refused to allow the officers to inspect the Viking at that time. He claimed that he was afraid that a small boat which was being towed would bump into the Viking if they stopped. However, Mr. Tallman offered to allow the officers to inspect the Viking at Fairport, its port. The DNR vessels then accompanied the Viking to Fairport where a conservation officer was allowed to conduct an inspection.

Cause No. 80-2-84

6. Commercial Fishing License No. 435 was issued to Tallman Fisheries, Ltd. of Manistique, Michigan.

7. On August 26, 1979, a DNR patrol boat in the vicinity of Big Bay de Noc of Lake Michigan came alongside the trapnet boat of Tallman Fisheries, Ltd., which had boxes of fish on its stern. A Mr. Tallman on the trapnet boat pushed the patrol boat away. Then a law enforcement officer on the patrol boat told Mr. Tallman that he wanted to board and inspect the Tallman Fisheries boat. Mr. Tallman told the officer that he was not going to board the vessel and tried to push the patrol boat away again.

8. Conservation Officer George Eckelbecker, who was on the DNR patrol boat on August 26, 1979, testified that the officers had reason to believe that violations of the Commercial Fishing Law had been taking place in the area. However, he did not explain the reason for such belief. He stated further that the purpose of the attempted inspection was "to see if there were any lake trout or undersized whitefish, things of this nature." At the time of the attempted inspection the DNR officers did not possess a search warrant and had not observed Mr. Tallman engaging in any illegal activities. Officer Eckelbecker testified is follows:

Q. Did you observe Mr. Tallman to be doing anything illegal on this occasion?

A. No.

Q. Did you have a search warrant authorizing a search of his vessel?

A. No.

Q. Did you or anyone acting on behalf of the Department attempt to obtain a search warrant on this occasion?

A. To my knowledge, no.

Q. As I understand it, you just happened to come across his vessel and that's why you decided to inspect it?

A. That is correct.

Q. You were not looking for Mr. Tallman in particular, were you?

A. No, we were not.

(Tr, p. 37)

Cause No. 80-3-84

9. Commercial Fishing License No. 318 was issued to Wayne Seaman of Fayette, Michigan.

10. On July 3, 1979, DNR law enforcement officers and other personnel were on a routine patrol on Lake Michigan in the vicinity of the Garden Peninsula near Summer Island and Poverty Island when they saw Wayne Seaman's commercial fish tug, the Mar-Cor. The DNR boat care alongside the Mar-Cor and a conservation officer requested to come aboard and inspect the catch. Mr. Seaman refused to allow an inspection but stated that the officers could conduct an inspection in port. The officers declined to inspect the Mar-Cor at its port which was Fairport, a few miles away.

11. The officers who attempted to inspect the Mar-Cor on July 3, 1979, did not possess a search warrant and had no reason to believe that Mr. Seaman was or had been engaged in any violation of law or administrative rule. Conservation Officer Michael Holmes who requested to board the Mar-Cor and inspect its catch on July 3, 1979, testified as follows:

Q. And you decided to make an inspection before knowing whose vessel you were about to inspect?

A. That's correct, Mr. Green.

Q. So you weren't particularly looking for Wayne Seaman, were vou?

A. No, I didn't know who he was other than after I asked him.

Q. You had no particular reason to inspect Wayne Seaman's fishing vessel on this occasion, did you?

A. As compared to anyone else's, you mean?

Q. That's correct.

A. No I did not.

(Tr, p. 12)

Q. Do you claim to have had any basis or probable cause to believe that Mr. Seaman was engaged in any violation of any law, rule or regulation? I'm talking about Mr. Seaman specifically.

A. Specifically at that time, Mr. Seaman, no.

(Tr, p. 17)

12. On August 26, 1979, DNR law enforcement officers were on the waters of Lake Michigan in the vicinity of Big Bay de Noc and St. Martin Island when they encountered the Fin, Wayne Seaman's trapnet boat. The Fin was stopped and its crew was engaged in lifting trapnets. District Law Enforcement Supervisor John Wormwood boarded the Fin without permission and informed Mr. Seaman that he had come aboard to inspect the catch. Mr. Seaman insisted that the officers had no right to board the Fin and inspect. Officer Wormwood stepped back onto the DNR boat after Mr. Seaman and Fin crew members attempted to push him off the Fin.

13. Officer Wormwood testified that prior to the attempted inspection of the Fin there had been citizen complaints to the DNR of illegal traffic of undersized whitefish and lake trout by most or all commercial fishermen in the Garden Peninsula area. However, there had been no complaints regarding Mr. Seaman specifically. At the time of the attempted inspection the DNR officials had neither a search warrant nor any reason to believe that Mr. Seaman, in particular, was engaging in or had engaged in illegal fishing activities.

Officer Wormwood testified as follows:

Q. Officer Wormwood, you said that on August 26, 1979, you came upon Mr. Seaman, that he was the first commercial fishing vessel that you came upon that day?

A. Yes.

Q. You weren't particularly looking for him, were you?

A. Not for him in particular, no.

Q. You had no warrant authorizing the search of his vessel, did you?

A. No.

Q. Had you or anyone acting in behalf of the Department attempted to get a search warrant?

A. No.

Q. Other than the fact that you happened to come across Mr. Seaman, did you have any particular reason to search his vessel or inspect his vessel as opposed to anyone else's?

A. Not particularly moreso than other - than other vessels. Had we come across another trapnet first, we'd a attempted to inspect them.
Q. It was your purpose, was it not, to simply inspect any vessel that you might come across?
A. That was engaged in commercial fishing operations under a license.
(Tr, pp. 23-24)

Q. Did you have any complaints concerning Mr. Seaman?
A. Our - our information, the best information we had, that most of the fishermen down there are involved in this.

Q. I'm not talking about most of the fishermen, I'm talking about Mr. Seaman.

A. Mr. Seaman included.
Q. What specifically had you been informed of by way of Mr. Seaman's activity in regard to these complaints?
A. Not specifically Mr. Seaman, but all of the commercial fishermen down there are - are marketing lake trout.
Q. All of them. What information did you have to indicate that Mr. Seaman was marketing lake trout?
A. None - none about him specifically.
Q. What observations did you or any other officer of the Department make, prior to this incident, of Mr. Seaman's activities?
A. None of him specifically.

Tr, pp. 31-32)

Cause No. 80-4-84

14. Commercial Fishing License No. 453 was issued to Gerald F. Casey of Manistique, Michigan.

15. On September 25, 1979, a DNR boat was patrolling Bic, Bay de Noc of Lake Michigan in the vicinity of Round Island and Chippewa Point when it encountered the trapnet boat of Gerald Casey which was headed for Chippewa Point. At a distance of 20 to 30 feet from the trapnet boat, with waves of two feet or more, the DNR personnel observed a whitefish which they thought was undersized on the trapnet boat. The whitefish was being dressed and handed from one crew member to another. A DNR fisheries biologist and a conservation officer both testified that the whitefish appeared to be 15 to 16 inches in length. The legal size is a minimum of 17 inches. Then the DNR officers announced that they wanted to inspect the trapnet boat. The person operating the trapnet boat replied that "we are not going to allow you to come alongside" and that "if you want to inspect our fish, do it in Fairport." Then the trapnet boat changed direction and headed for Fairport which was 8 to 10 miles away. The DNR officers declined to attempt to inspect the boat in Fairport.

16. DNR personnel did not have a search warrant at the time of the attempted inspection on September 25, 1979, and, prior to observing the whitefish which they thought was undersized, they did not have any specific reason to confront the fishermen on Gerald Casey's boat. Conservation Officer George Eckelbecker, who was aboard the DNR boat, testified as follows:

Q. Prior to seeing this fish which you thought might be undersized, did you have any specific reason for confronting the Caseys or did you just happen on them as in the other instances we've discussed today?

A. Very similar to the other instances, we did not single him out, it was a commercial fishing vessel in the area, nothing more than that.

(Tr p. 45)

Conclusions of Law

1. The Fourth Amendment to the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

2. Except in certain carefully defined classes of cases, a search of private property without consent is unreasonable, and thus violates the Fourth Amendment, unless it has been authorized by a search warrant. This requirement of a search warrant applies to regulatory inspections by administrative agencies as well as searches conducted pursuant to criminal investigations Camara v Municipal Court, supra.

3. In general, the warrant requirement applies to administrative inspections of businesses. The businessman has a constitutional right to go about his business free from unreasonable official entries upon his commercial property. That right is jeopardized if the decision to enter and inspect for violation of regulatory laws can be made and enforced by an officer in the field without official authority evidenced by a warrant. See v Seattle, 387 US 541 (1967).

4. Certain pervasively regulated businesses and closely regulated industries long subject to close supervision and inspection fall within a carefully defined class of cases which is an exception to the requirement of a warrant for administrative inspections. United States v Biswell, 406 US 311 (1972); Colonnade Catering Corp v United States, 397 US 72 (1970); Marshall v Barlow's, Inc 436 US 307 (1973). This will be referred to as the "Colonnade Biswell exception."

5. The Colonnade - Biswell exception is applicable only if three factors are present: (1) the enterprise sought to be inspected must be engaged in a pervasively regulated business; (2) warrantless inspection must be a crucial part of a regulatory scheme designed to further an urgent federal interest; and (3) the inspection must be conducted in accord with a statutorily authorized procedure, itself carefully Limited as to time, place and scope. Dunlop v Hertzlen Enterprises, Inc, 418 F Supp 627 (1976).

Several opinions of the United States Supreme Court support the holding, of the Dunlop case that each of these three factors is a necessary element of the Colonnade - Biswell exception.

The Biswell opinion emphasized that an exception to the warrant requirement was necessary for effective enforcement of a federal regulatory system which included limitations on the authority to inspect without a warrant. The Court also indicated that such warrantless searches must be specifically authorized by statute to further an urgent federal interest.

In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute. (406 US 311, 315)

It is also apparent that if the law is to be properly enforced and inspection made effective inspections without warrant must be deemed reasonable official conduct under the Fourth Amendment. (406 US 311, 316)

We have little difficulty in concluding that where, as here, regulatory inspections further urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute. (406 US 311, 317)

The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute. (436 US 307, 321)

Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply. (397 US 72, 77)

Sec. lb. (2) of the Commercial Fishing Law of 1929 provides in part that:

Contents of licenses.) (2) In addition to the requirements of this act and rules promulgated pursuant to this act, the license issued by the director of conservation may contain provisions:
(a) Fixing the amount of fish to be taken by species and kind.
(b) Designating the areas in which the licensee shall be permitted to fish.
(c) Specifying the season when and the depths where the licensee may conduct his commercial fishing operations.
(d) Specifying the methods and gear which the licensee shall use.

7. Although commercial lashing is a pervasively regulated business in Michigan, the attempted warrantless inspections involved in these cases do not fall within the Colonnade - Biswell exception because such warrantless inspections are not a crucial part of a regulatory scheme.

In its Final Argument and Brief the DNR correctly states that, "the enforcement needs of enforcing a commercial fishing law require that licensed vessels be subject to inspection in the water, not at a port some considerable distance from the fishing site." The DNR also suggests that "the movable nature of the fishing vessel provide(s) an additional reason to allow warrantless searches for illegal fish before the evidence (can) be removed."

But the DNR's need to, conduct routine surprise inspections on the water can be satisfied by means of ex parte warrants authorizing the inspection of the vessel of each commercial fisherman licensed to fish in a particular area or zone. The United States Supreme Court has suggested that such a procedure should be utilized by administrative agencies in appropriate situations.

We do not decide whether warrants to inspect business premises may be issued only after access is refused; since surprise may often be a crucial aspect of routine inspections of business establishments, the reasonableness of warrants issued in advance of inspection will necessarily vary with the nature of the regulation involved and may differ from standards applicable to private homes. (See v Seattle, 387 US 541, 545)

(6) Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. (436 US 307, 320)

9. The Colonnade - Biswell exception is not applicable in these cases because the attempted warrantless inspections were not in accord with a statutorily authorized procedure which is carefully limited as to time, place and scope.

As authorization for the attempted warrantless inspections the DNR relies on Sec. 1b. (2) of the Commercial Fishing Law, of 1929, 1929 PA 84, as amended, which provides in part that:

Contents of licenses.) (2) In addition to the requirements of this act and rules promulgated pursuant to this act, the license issued by the director of conservation may contain provisions:
***
(e) Specifying other conditions, terms and restrictions watch are deemed to be necessary in carrying out the provisions of this act, including but not limited to the right to inspect the licensee's fishing operations in the waters, on board or ashore.

10. In its Final Argument and Brief the DNR argues that fish are the property of the State which could prohibit all commercial fishing and, therefore, warrantless inspection are a reasonable license restriction to which these licensees, in effect, consented. This argument is hereby rejected based on the authority of People v Lansing Municipal Judge, 327 Mich 410, 432-433 (1950) in which the Michigan Supreme Court stated that:

It is suggested, however, that it would not necessarily follow from a decision upholding the statute before us that other pursuits could be licensed on a condition of waiver of constitutional rights inasmuch as hunting, fishing, trapping and possessing wild life are privileges, the exercise of which falls within a different classification than any other human endeavor; that title to wild life is absolute in the State and that, therefore, the State may impose upon its taking conditions which might well be invalid as relates to the licensing of other activities. But nowhere do the authorities indicate that the title of the State in and to wild life is of a character with that in property devoted exclusively to governmental function, such as the Capitol, military equipment of the national guard, or weapons of the police. On the contrary, the cases hold, as plaintiff concedes, that the State's title to wild life is in trust for the people and the State exercises control there over "as a trust for the benefit of the people, and not as a prerogative for the advantage of the government, as distinct from the people" (Geer v Connecticut, 161 US 519 /16 S Ct 600, 40 Led 793/, cited with approval and relied upon in People v Zimberg, 321 Mich 655). Hence, in the exercise of such control, in trust for the people, it would not appear that the State's power to attach to a license or privilege in that regard the condition of waiver of constitutional rights would be one whit greater than in the case of licensing other activities nor that the approval of such course in the former instance could fail to open the door to a like course in the latter.

In the Seaman case DNR officials had conducted a warrantless search of the vessel of a commercial fisherman licensed pursuant to the Commercial Fishing Law of 1929. A statute authorized warrantless searches based on probable cause by officers appointed by the Director of Conservation (Natural Resources). The statute did not state any requirement that exigent circumstances necessitate searching without a warrant. Although the DNR officials had probable cause to believe that the licensee had violated a license condition it was held, without discussion of the Colonnade - Biswell exception, that the search was in violation of both the United States Constitution and the Michigan Constitution because there were no exigent circumstances to justify a warrantless search since the officers had time to obtain a warrant. The court read the requirement of exigent circumstances into the statute in order to preserve its constitutionality as required by the Bricker case.

An administrative agency lacks authority to determine constitutional questions, however, a statute must be construed to conform to constitutional requirements if possible. Dation v Ford Motor Co, 314 Micii 152 (1946); ,People v Bricker, supra. Sec. 1b. (2) can satisfy the constitutional standards set forth in Seaman only if interpreted as requiring probable cause and exigent circumstances to justify a warrantless search.

Cause No. 80-1-84

12. At the time of the attempted warrantless inspection on November 5, 1979, the DNR officers had probable cause to believe that licensees Roger and Kirk Tallman had engaged in illegal off-season trapnet fishing and that there was evidence of such violation aboard the Viking. Such probable cause was based on the DNR observation of trapnets in the water two or three days earlier, knowledge that the trapnets had been removed and that the Viking had been seen in the area, and observation of a trapnet on the deck of the Viking, a trapnet boat.

13. There were exigent circumstances to justify a warrantless inspection of the Viking by the DNR officers on November 5, 1979. When the officers encountered the Viking the trapnets had been removed from the water and the illegal trapnet fishing in that area apparently had been completed. By the time the officers could have obtained a warrant and relocated the Viking any incriminating evidence could have been removed.

14. The Director may suspend Commercial Fishing License No. 315 for a period not to exceed the 60 days requested in the Administrative Complaint filed herein provided that such period should be consistent with other suspensions considering the notice of the violation. The refusal of the licensees to allow a lawful Inspection on November 5, 1979, was a violation of their commercial fishing license. Sec. 1b (4) of the Commercial Fishing Law of 1929 provides, in part, that:

Suspension or revocation; Hearing; new license.) (4) The director of conservation may suspend or revoke any license issued under this act when the licensee, fails to fulfill or violates any of the conditions' terms or restrictions of the license.

15. There was neither probable cause nor exigent circumstances to justify the attempted warrantless searches involved in Causes No. 80-2-84 and 80-3-84. The DNR personnel admittedly had no reason to believe that these licensees had engaged in illegal commercial fishing activities. And, because there was no cause to believe that these licensees had committed violations, there were no exigent circumstances to necessitate the attempted warrantless searches. Instead of conducting these attempted searches, the DNR officers could have enforced the Commercial Fishing Law of 1929 as effectively by inspecting any other commercial fishing vessel which they happened to encounter after obtaining a search warrant.

16. The licensees involved in causes No. 80-2-84 and 80-3-84 did not violate valid license conditions by refusing to allow these attempted warrantless inspections and so Commercial Fishing Licenses No. 435 and 318 should not be suspended for such refusals. Under the holding of the Lansing Municipal Judge case a licensee cannot be required to submit to an unconstitutional search as a condition of licensure. In Seaman a warrantless inspection was found to be unconstitutional because there were no exigent circumstances, although the officers had probable cause to believe the licensees had fished illegally. In these causes there was neither such probable cause nor exigent circumstances.

Cause No. 80-4-84

17. At the time of the Attempted warrantless inspection on September 25, 1979, the DNR officials did not have probable cause to believe that fishermen on licensee Gerald Casey's boat were engaged in illegal fishing. Due to the waves and distance between the boats, the observation of a fish that appeared to be slightly undersized was not sufficiently reliable to justify a warrantless search.

18. The fishermen on licensee Gerald Casey's boat did not violate a valid license condition by refusing to allow the attempted warrantless inspection and so Commercial Fishing License No. 458 should not be suspended for such refusal. As in Causes No. 80-2-84 and 80-3-84, this licensee cannot be required to submit to a warrantless search which is unconstitutional because of the absence of probable cause and exigent circumstances. DNR v Seaman, supra; People v Lansing Municipal Judge, supra.

It is hereby proposed that the Director suspend Commercial Fishing License No. 315 issued to Roger and Kirk Tallman for a period not to exceed 60 days.

It is proposed further that the Director not suspend Commercial Fishing License No. 435 issued to Tallman Fisheries, Ltd., Commercial Fishing License No. 318 issued to Wayne Seam and Commercial Fishing License No. 458 issued to Gerald F. Casey and that Causes No. 80-2-84, 80-3-84 and 80-4-84 be dismissed.

Dated: March 13, 1981 _______________________________

Barry W. Sparks
Hearings Examiner