Court Upholds DNR’s Authority to Search Fishing Vessels

This case analyzed the limits of the DNR’s power to suspend a commercial fishing licence for failure to allow the DNR to search the fishing vessel. The Court adopted a “pervasively regulated industry” standard from the U.S. Supreme Court to establish new guidelines for when the DNR may conduct a warrantless search. The majority opinion recognized that the pervasive regulation of the commercial fishing industry was mandated by the natural resources protection clause in the Michigan Constitution, and so long as searches did not violate the U.S. Constitution, they should be allowed. The majority ruling preserved the ability of the DNR to better protect Michgan’s fishery from depletion.

Commercial fishing licenses issued by the Michigan Department of Natural Resources (DNR) provided that the DNR could inspect the fisher’s boat and other commercial property “at any time.” Defendants were commercial fishermen who refused several attempts by the DNR to search their boats on the open water of Lake Michigan. The DNR moved to suspend their fishing licenses for 60 days. The fishermen challenged the suspension in court, arguing that the suspensions were invalid because DNR was requiring them to waive their constitutional right to be free from unreasonable, warrantless searches as a condition of having a commercial fishing license.

The Court held that the DNR could seek to suspend the licenses because the DNR was not requiring licensees to waive a constitutional right. There is an established exception to the warrant requirement for searches in a pervasively-regulated industry, like the Michigan fishing industry. The Court, however, sent the cases back to the DNR to determine whether the “at any time” clause in the licenses complied with the DNR’s statutory authority to create license conditions.

Commercial fishing licenses issued by the Michigan Department of Natural Resources (DNR) provided that DNR officers “may at any time inspect the [fishing] vessels … or other property used in carrying on the licensee’s fishing operations and business.” DNR officers suspected several commercial fishermen of violating fishing laws by using trap-nets out of season and catching undersized whitefish and lake trout. The officers attempted to search the boats on the open water of Lake Michigan, but the fishers did not let the officers aboard. The DNR then moved to suspend the fishermen’s licenses for 60 days. The fishermen challenged the suspension, arguing that the DNR could not require waiver of the constitutional right to be free from unreasonable, warrantless searches as a condition of holding a license. The lower courts agreed, determining that the suspensions were invalid because the attempted searches were unreasonable.

Were the Department of Natural Resources’ suspensions of the fishermen’s licenses invalid because the suspensions were based on a license condition that impermissibly required waiver of a constitutional right?

The majority held that the license suspensions were valid in so far as the licenses did not require waiver of a constitutional right. There was no requirement of waiver of a constitutional right because the searches contemplated in the license are not unreasonable. The majority justices adopted the “pervasively regulated industry” doctrine, which provides that warrantless searches of business operations in heavily regulated public industries may be reasonable under both the Michigan and U.S. constitutions.

The justices weighed seven factors to determine that the enforcement needs of the government outweigh the privacy interests of commercial fishermen. In general, the majority found that warrantless searches of commercial fishing vessels are reasonable because 1) the commercial fishing industry is heavily regulated; 2) there is a strong public interest involved because the industry deals with “food which is the property of the people of Michigan”; and 3) the searches are limited to business places (i.e., the commercial fishing boat).

The majority, however, could not determine whether DNR had the statutory authority to provide that licensees have to allow DNR searches “at any time.” The Commercial Fishing Law gives DNR the power to issue commercial fishes licenses and to specify conditions “which are deemed to be necessary in carrying out the provisions of this act.” The Court thus sent the cases back to DNR’s administrative hearing process to determine whether conducting searches “at any time” is necessary to carry out the commercial fishing laws.

Justice Levin, dissenting, argued that the license condition exceeded DNR’s statutory authority, and that the licenses did require waiver of a constitutional right. He would thus hold that the license suspensions were improper. Justice Levin would send one of the cases back to DNR, however, to determine whether the attempted search was in fact supported by probable cause, and thus not unreasonable.