Mich Citizens v. Nestlé Waters

• Decision Date: 25 July 2007
• Docket Number: Docket No. 130803.,Docket No. 130802.
• Citation: 479 Mich. 280,737 N.W.2d 447
• Court: Michigan Supreme Court
• Parties: MICHIGAN CITIZENS FOR WATER CONSERVATION, R.J. Doyle, Barbara Doyle, Jeffrey R. Sapp, and Shelly M. Sapp, Plaintiffs-Appellants/Cross-Appellees, v. NESTLÉ WATERS NORTH AMERICA INC., Defendant-Appellee/Cross-Appellant, and Donald Patrick BOLLMAN and Nancy Gale Bollman, also known as Pat Bollman Enterprises, Defendants.

737 N.W.2d 447

479 Mich. 280

MICHIGAN CITIZENS FOR WATER CONSERVATION, R.J. Doyle, Barbara Doyle, Jeffrey R. Sapp, and Shelly M. Sapp, Plaintiffs-Appellants/Cross-Appellees, v. NESTLÉ WATERS NORTH AMERICA INC., Defendant-Appellee/Cross-Appellant, and Donald Patrick BOLLMAN and Nancy Gale Bollman, also known as Pat Bollman Enterprises, Defendants.

Docket No. 130802.

Docket No. 130803.

Supreme Court of Michigan.

July 25, 2007.

Olson, Bzdok & Howard, P.C. (by James M. Olson, Christopher M. Bzdok, and Scott W. Howard), and Chris A. Shafer, Traverse City, Lansing, for the plaintiffs.

Mika Meyers Beckett & Jones P.L.C. (by John M. DeVries and Fredric N. Goldberg), Warner Norcross & Judd L.L.P. (by Eugene E. Smary and Robert J. Jonker), Kilpatrick Stockton L.L.P. (by David M. Zacks and Adam H. Charnes), and Porteous Law Office, P.C. (by David L. Porteous), Grand Rapids; Grand Rapids; Atlanta, GA; Reed City, for Nestlé Waters North America Inc.

Neil S. Kagan, Ann Arbor, for amici curiae National Wildlife Federation, Michigan United Conservation Clubs, Tip of the Mitt Watershed Council, Pickerel-Crooked Lakes Association, and Burt Lake Preservation Association.

Honigman Miller Schwartz and Cohn L.L.P. (by John D. Pirich, Timothy Sawyer Knowlton, and Brian T. Quinn), Lansing, for amici curiae the Michigan Chamber of Commerce.

Clark Hill P.L.C. (by Fritz R. Damm, David D. Grande-Cassell, and Kristin B. Bellar), Detroit, for amici curiae the Michigan Manufacturers Association.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Sara R. Gosman, S. Peter Manning, and Harold J. Martin, Assistant Attorneys General, for amici curiae the Michigan Department of Environmental Quality.

Law, Weathers & Richardson, P.C. (by Clifford H. Bloom), Grand Rapids, for amici curiae Michigan Lake & Stream Associations, Inc.

YOUNG, J.

The sole question presented in this case is whether plaintiffs have standing to bring a claim under the Michigan Environmental Protection Act (MEPA)¹ as that claim relates to certain streams, lakes, and wetlands in Mecosta County.

In Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co.,² we noted that "`environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons "for whom the aesthetic and recreational values of the area will be lessened" by the challenged activity.'"³ Plaintiffs indisputably have standing to bring a MEPA claim against Nestlé to protect their riparian property rights to Thompson Lake and the Dead Stream. However, plaintiffs have failed to demonstrate that they use the Osprey Lake Impoundment (Osprey Lake) and Wetlands 112, 115, and 301, and that, as a result, their recreational, aesthetic, or other interests have been impaired. Accordingly, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we affirm the Court of Appeals in part, but we reverse the Court of Appeals holding that plaintiffs have standing to bring a MEPA claim regarding Osprey Lake and Wetlands 112, 115, and 301, and remand this case to the circuit court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

This highly publicized case concerns certain interconnected streams, lakes, and wetlands north of the Tri-Lakes region in Mecosta County, Michigan. These bodies of water include Osprey Lake, Thompson Lake, the Dead Stream, and several wetlands that, for purposes of this case, have been enumerated Wetlands 112, 115, and 301. Osprey Lake is a man-made lake created by the damming and flooding of the Dead Stream. An earthen dam on the east end of Osprey Lake separates Osprey Lake and the Dead Stream. The Dead Stream flows southeast where it eventually joins the Tri-Lakes.⁴ Just south of Osprey Lake is a small natural lake, Thompson Lake. To the west and north of Osprey Lake are Wetlands 112, 115, and 301.

Defendants Donald and Nancy Bollman own approximately 850 acres of land in an area known as the Sanctuary that surrounds Osprey Lake and several of the enumerated wetlands.⁵ The Bollmans have operated the Sanctuary as a private hunting preserve since they acquired the property in the 1970s. They granted Nestlé the groundwater rights to a 139-acre area on the northern shore of Osprey Lake within the Sanctuary after preliminary tests indicated that the land contained a suitable and reliable source of spring water.⁶

In order to begin pumping and bottling the water, Nestlé also obtained permits from the Michigan Department of Environment Quality (MDEQ) that ensured its compliance with the standards of the Safe Drinking Water Act.⁷ In August 2001, the MDEQ issued Nestlé a permit to convert two test wells to production wells and to install water mains, pump stations, and booster stations to transport the spring water to Nestlé's soon-to-be-constructed bottling facility in Stanwood, Michigan. In February 2002, the MDEQ issued another permit, authorizing two additional production wells at the Sanctuary Springs site. The MDEQ permits authorized Nestlé to operate the four wells at a combined maximum pumping rate of 400 gallons per minute. Armed with the required permits, Nestlé commenced pumping operations in 2002.

Plaintiff Michigan Citizens for Water Conservation (MCWC) is a non-profit corporation of approximately 1,300 members that formed to protect and conserve water resources in Michigan, particularly in Mecosta County. It views Nestlé and its pumping activities as inimical to MCWC's mission. Two hundred sixty-five members are riparian owners in the Tri-Lakes area, including plaintiffs R.J. and Barbara Doyle, who own land on the Dead Stream, and plaintiffs Jeffrey and Shelly Sapp, who own land on Thompson Lake.

MCWC filed suit in June 2001, seeking temporary and permanent injunctive relief against Nestlé. The trial court denied plaintiffs' request for temporary injunctive relief to prevent Nestlé's construction of the Stanwood bottling facility while the parties litigated Nestlé's right to pump spring water from Sanctuary Springs. Later, in November 2001, plaintiffs filed a six-count second amended complaint.⁸ Following Nestlé's and plaintiffs' cross-motions for summary disposition, the trial court dismissed all the counts except the common-law groundwater claim and the MEPA claim, which proceeded to trial.

After a lengthy bench trial, the trial court granted plaintiffs' request for a permanent injunction of Nestlé's pumping activities. In its opinion, the court made elaborate findings of fact identifying what it called the "zone of influence," the "hydrological effects," and the "ecological impacts" of Nestlé's pumping activities.⁹ Relying on these factual findings, the court ruled that plaintiffs prevailed on both the common-law groundwater claim and the MEPA claim and that the only appropriate remedy was to grant a permanent injunction.¹⁰

Both plaintiffs and Nestlé appealed and, in a published opinion, the Court of Appeals affirmed in part, reversed in part, and remanded to the trial court.¹¹ Appealing the MEPA claim, Nestlé argued that plaintiffs lacked standing to bring that claim with respect to Osprey Lake and Wetlands 112, 115, and 301.¹² Judges White and Murphy, forming the majority on the standing question, disagreed with Nestlé. Holding that plaintiffs had standing "with respect to all the natural resources at issue," Judge Murphy wrote that

plaintiffs have standing because of the complex, reciprocal nature of the ecosystem that encompasses the pertinent natural resources noted above and because of the hydrologic interaction, connection, or interrelationship between these natural resources, the springs, the aquifer, and defendant Nestlé's pumping activities, whereby impact on one particular resource caused by Nestlé's pumping necessarily affects other resources in the surrounding area. Therefore, although there was no evidence that plaintiffs actually used or physically participated in activities on the Osprey Lake impoundment and wetlands 112, 115, and 301, environmental injuries to those natural resources play a role in any harm caused to the Dead Stream, the Dead Stream's wetlands, and Thompson Lake, which are used by and adjacent to property owned by plaintiffs and not the subject of a standing challenge.¹³

Judge Smolenski dissented. He would have found that plaintiffs lacked standing with respect to Osprey Lake and Wetlands 112, 115, and 301 because plaintiffs did not use those areas, so they could not demonstrate that they had suffered or would suffer a concrete or particularized injury distinct from that of the public generally.¹⁴ Judge Smolenski also would have declared unconstitutional MCL 324.1701(1),¹⁵ which authorizes "any person" to bring a MEPA claim.¹⁶ He considered that provision an unlawful attempt by the Legislature to confer standing broader than the constitutional limits set forth in Lee v. Macomb Co. Bd. of Comm'rs,¹⁷ and Nat'l Wildlife.¹⁸

Both parties sought leave to appeal in this Court. We ordered oral argument on the applications, directing the parties to address only "whether the plaintiffs have standing under Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 684 N.W.2d 800 (2004), to bring claims related to the Osprey Lake impoundment and wetlands 112, 115, and 301."¹⁹ Hence, we limit our decision to the issue of standing. We do not pass on the merits of the other issues raised on appeal.

II. STANDARD OF REVIEW

Whether a party has standing is a question of law that we review de novo.²⁰

III. ANALYSIS

A. STANDING

This Court recently explained in Michigan Chiropractic Council v. Comm'r of the Office of Financial & Ins. Services,²¹ that

[o]ur tripartite system of government is constitutionally established in both our state and federal constitutions. U.S. Const., art. III, § 1 confers upon the courts only "judicial power"; U.S Const., art. III, § 2 limits the judicial power to "[c]ases and [c]ontroversies." Similarly, our...