Opinion No. (1990) ( 1990 )

THANK YOU FOR YOUR RECENT LETTER REQUESTING AN ATTORNEY GENERAL OPINION ON BEHALF OF DAVID RAUCH, REGARDING THE RIGHTS AND POTENTIAL LIABILITIES OF THE OWNER OF A POND UNDER CERTAIN CIRCUMSTANCES.

UNFORTUNATELY, WE ARE UNABLE TO RESPOND TO YOUR REQUEST FOR AN OFFICIAL OPINION FOR SEVERAL REASONS. FIRST, WITH RESPECT TO YOUR SECOND QUESTION, WE NOTE IN THE MATERIALS PROVIDED BY MR. RAUCH'S ATTORNEYS, THAT THE DISTRICT COURT HAS ALREADY RULED AS TO WHETHER FISHING BY THIRD PARTIES IN THE PARTICULAR POND DESCRIBED CONSTITUTED TRESPASSING. OF COURSE, THIS OFFICE CANNOT OVERRULE THE COURT'S DECISION, AND THE PROPER REMEDY OF THE DISTRICT ATTORNEY IS TO APPEAL THE DISTRICT COURT'S DECISION. WHILE MR. RAUCH'S ATTORNEYS' LETTER INDICATES THAT THEY DISAGREE WITH THE COURT'S FINDINGS BOTH OF FACT AND OF LAW, THE COURT HAS NEVERTHELESS ALREADY RULED ON THE ISSUE.

THE FACT THAT THE COURT EITHER ASSUMED OR FOUND CERTAIN FACTS TO BE TRUE IN ITS DECISION REGARDING TRESPASS ON MR. RAUCH'S PROPERTY ILLUSTRATES ANOTHER REASON WE ARE UNABLE TO ADDRESS YOUR QUESTIONS. AS WITH ANY OPINION REQUEST INVOLVING THE APPLICATION OF LAW TO PARTICULAR FACTS OR ACTIVITIES, THE RESPONSE IS ALWAYS DEPENDENT UPON RELIANCE ON AND AN ANALYSIS OF THE SPECIFIC FACTS OF THE SITUATION AT HAND, AND MINOR CHANGES IN THOSE FACTS, OR THE EXISTENCE OF FACTS NOT PRESENTED TO US, COULD AFFECT THE ULTIMATE LEGAL CONCLUSIONS TO BE REACHED. THUS, WHILE A COURT MAY TAKE EVIDENCE, RECEIVE SWORN TESTIMONY, AND, FOR INSTANCE IN THIS PARTICULAR CASE, PERHAPS REVIEW MAPS OR PHOTOS RELEVANT TO THE ISSUES RAISED, THIS OFFICE IS NOT ABLE TO CREATE A RECORD ON WHICH TO MAKE FINDINGS OF FACT, THUS WE HAVE NO BASIS ON WHICH TO APPLY THE LAW TO THE FACTS. AND, WHILE FROM TIME TO TIME WE ARE ABLE TO ASSUME CERTAIN FACTS TO BE TRUE AND THUS ISSUE AN OPINION BASED ON THOSE ASSUMPTIONS, IN THIS CASE RELIANCE BY MR. RAUCH ON AN OPINION WHICH ASSUMES FACTS TO BE TRUE WOULD BE MISPLACED, AS A COURT COULD FIND THE FACTS ARE DIFFERENT FROM THOSE WE HAVE ASSUMED.

MR. RAUCH'S ATTORNEYS STATE THAT MR. RAUCH IS CONCERNED WITH POTENTIAL FUTURE LIABILITY FROM SOMEONE FISHING IN HIS POND. HOWEVER, AN OPINION FROM THIS OFFICE IS IN NO WAY GOING TO AFFECT THAT POTENTIAL LIABILITY, AS AN A.G. OPINION HAS NO BINDING EFFECT UPON EVEN THE LOWEST COURT. TO THE EXTENT A COURT CHOOSES TO LOOK TO AN A.G. OPINION FOR GUIDANCE, IT IS LIKE ANY OTHER INSTANCE IN WHICH THE COURT LOOKS TO PERSUASIVE AUTHORITY IN FORMULATING ITS DECISION, AND THE ADVOCACY OF THE AFFECTED PARTY'S POSITION BY ITS LEGAL COUNSEL WOULD BE REQUIRED TO PERSUADE THE COURT TO RULE IN A PARTICULAR WAY.

MOREOVER, FOR US TO ISSUE AN OPINION PREDICTING MR. RAUCH HAS NO LIABILITY WOULD BE A DISSERVICE TO HIM, SHOULD HE RELY UPON IT, AS WE ARE IN NO POSITION TO MAKE SUCH A DETERMINATION AND AN INJURED PLAINTIFF TO WHOM A COURT OR JURY AWARDED DAMAGES WOULD IN NO WAY BE PRECLUDED FROM RECOVERY BECAUSE OF OUR OPINION. SHOULD WE PREDICT THAT MR. RAUCH DOES HAVE LIABILITY, IT WILL STILL BE UP TO MR. RAUCH AND HIS ATTORNEYS TO DETERMINE WHETHER AND TO WHAT EXTENT SUCH LIABILITY ACTUALLY EXISTS, AND WHAT STEPS SHOULD BE TAKEN TO REDUCE THE RISK.

FOR THE SAME REASONS, WHETHER IT IS LAWFUL FOR A THIRD PERSON TO FISH ON MR. RAUCH'S POND IS A MATTER TO BE PURSUED BY THE DISTRICT ATTORNEY, IF IN A CRIMINAL CONTEXT, AND BY MR. RAUCH AND HIS ATTORNEYS, IN A CIVIL CONTEXT, AS PREDICTIONS OF MR. RAUCH'S RIGHTS AND REMEDIES SHOULD BE MADE BY LEGAL COUNSEL EMPLOYED BY MR. RAUCH FOR THAT PURPOSE. WHILE WE ARE AWARE OF INSTANCES IN WHICH OLDER A.G. OPINIONS ATTEMPT TO ADDRESS THESE ISSUES, IT IS THE LONG STANDING POLICY OF THIS AND MOST PREVIOUS ADMINISTRATIONS NOT TO ISSUE OPINIONS ON QUESTIONS OF CRIMINAL OR CIVIL LIABILITY, AS, FOR THE MOST PART, THEY ARE TOO FACT SPECIFIC, ARE NOT THEREFORE OF STATE-WIDE INTEREST, AND GENERALLY SIMPLY CONSTITUTE LEGAL ADVICE TO A PRIVATE CITIZEN — A PRACTICE WE ARE FORBIDDEN TO UNDERTAKE.

I AM SORRY WE CAN NOT BE OF SERVICE TO YOU ON THIS PARTICULAR MATTER, AND I HOPE AT SOME FUTURE TIME WE WILL HAVE A BETTER OPPORTUNITY TO BE OF ASSISTANCE TO YOU. IF YOU HAVE QUESTIONS CONCERNING ANY OF THE ABOVE, PLEASE FEEL FREE TO CONTACT ME.

(SUSAN BRIMER LOVING)