STAY-AT-HOME and MOTORBOAT FISHING: WHY THE DNR GOT IT WRONG

Within the last 24 hours, a number of people have asked me about Governor Gretchen Whitmer’s most recent Stay-At-Home order and what it means for anglers that want to fish from a motorized boat.  Unfortunately, there seems to be a significant misunderstanding of what is allowed.  Some people, including the Michigan Department of Natural Resources, have concluded that people may no longer fish from a motorized boat.

However, based upon my reading and analysis of the Order, and the accompanying Frequently Asked Questions, I believe that the Michigan DNR is WRONG!  I believe that fishing with members of your household from a motorboat is permitted, provided anglers practice social distancing similar to what is required in a grocery store or pharmacy.

Governor Whitmer’s Order (2020-42) does not use terms like boat, fishing, vessel, or watercraft.  The term motor is only used in the context of a motor vehicle.  Therefore, the Order is silent on the specific issue of whether people may continue to fish with family from a motorized watercraft as long as they practice social distancing around others.

The Executive Order specifically states that “outdoor physical activity” is permitted.  “Outdoor physical activity includes walking, hiking, running, cycling, kayaking, [and] canoeing….”  However, this list is not exhaustive.    So, is fishing with family from a motorized boat permitted?  I believe the answer is yes.

The Frequently Asked Questions that accompany the Executive Order state:

Q: Does boating constitute “outdoor activity” under the new executive order?

A: Physical outdoor activity like kayaking, canoeing, and sailing is permitted under the order, but using a motorboat, a jet ski, or other similar watercraft is not. Any outdoor activity permitted under the order, including boating, must be done in a manner consistent with social distancing, and individuals should use only their own equipment to prevent the transmission of the virus through the touching of shared surfaces. Additionally, in accordance with section 2 of the order, persons not part of a single household may not boat together.

While some boating is permitted under the order, the provision of boating services or supplies does not itself constitute critical infrastructure work….

I would argue in court for any client charged for fishing with family from a motorboat, that the guidance prohibiting the use of motorboats must be read in context.  Taking the term “motorboat” out of context, as the Michigan DNR appears to have done, is improper.  Taken in context of the entire sentence, which mentions jet-skis, I believe the prohibition motorboats applies to pleasure cruising – NOT FISHING.  In fact, the FAQ specifically states that “some boating is permitted under the order.”

Moreover, the Executive Order specifically allows people to “perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members….”  People are also explicitly permitted to “obtain necessary services or supplies for themselves, their family or household members….”  Arguably, fishing from a motorboat in order to put food on the table qualifies as permitted activity.

So, where does the claimed prohibition on fishing from a motorboat with family members come from?  I think the DNR hastily interpreted the Governor’s Executive Order in an effort to provide guidance to the public.  Unfortunately, the DNR made a mistake.

Even the DNR’s own FAQs are inconsistent.  On the one hand, it states:

Q:  Can I still go fishing?

A:   Yes. The executive order states that individuals may leave their home or place of residence, and travel as necessary, to engage in outdoor activity….

Yet, farther into the body of FAQs, the DNR states:

Q: Am I able to use my motor-powered boat for recreational purposes, including fishing?

A:  No. Under the governor’s revised “Stay Home, Stay Safe” Executive Order 2020-42, physical outdoor activity, such as kayaking, canoeing and sailing, remains permissible. However, the use of a motorboat, jet ski or similar watercraft is not permitted for the duration of the Executive Order….

I do not know the person from the DNR who decreed that people from the same household cannot fish from a motorboat.  Have they ever fished for food?  Are they experienced in interpreting Executive Orders or statutes? Was it a high-ranking bureaucrat?  A low-level clerk?  We may never know.  But one thing is certain – they got it wrong!

I am not suggesting that DNR officials did anything malicious by making a mistake.  However, the mistake needs to be rectified publicly.  Now.

The level of enforcement by the DNR and other law enforcement agencies’ remains to be seen.  And, how this plays out will depend in large part on what people do once ticketed.  Some people will blindly pay the ticket.  This is dangerous, because, depending on how it is written, paying the ticket can result in a criminal conviction.

A more prudent plan is to consult with an experienced criminal defense attorney who understands hunting, fishing, and outdoors law.  The only way to develop the best plan for your individual situation is consulting with a Michigan criminal defense attorney.

John Freeman has 27 years of criminal law experience.  He has hunted and fished regularly since he was a child.  He is ready to fight if you, or someone you love, faces criminal charges for violating the stay-at-home order – especially if you were fishing with family from a motorboat.

Stay safe and stay healthy