Alcona County v. Wolverine Environmental Production, Inc.

• Decision Date: 29 December 1998
• Docket Number: Docket Nos. 196934,199408
• Citation: 590 N.W.2d 586,233 Mich. App. 238
• Parties: COUNTY OF ALCONA, Plaintiff-Appellee, v. WOLVERINE ENVIRONMENTAL PRODUCTION, INC., Defendant-Appellant. County of Alpena, Plaintiff-Appellee, v. Wolverine Environmental Production, Inc., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 586

590 N.W.2d 586

233 Mich.App. 238

COUNTY OF ALCONA, Plaintiff-Appellee, v.WOLVERINE ENVIRONMENTAL PRODUCTION, INC., Defendant-Appellant.

County of Alpena, Plaintiff-Appellee, v.Wolverine Environmental Production, Inc., Defendant-Appellant.

Docket Nos. 196934, 199408.

Court of Appeals of Michigan.

Submitted Sept. 1, 1998, at Lansing.

Decided Dec. 29, 1998, at 9:20 a.m.

Released for Publication March 12, 1999.

Thomas Jay Weichel, Harrisville, for Alcona County.

Robert A. Reuther, Alpena, for Alpena County.

Mika, Meyers, Beckett & Jones, P.L.C.(by John M. DeVries and Daniel C. Brubaker), Grand Rapids, for the defendant.

Before: MacKENZIE, P.J., and BANDSTRA and MARKMAN, JJ.

MARKMAN, J.

Defendant, Wolverine Environmental Production, Inc., appeals by leave granted the trial court's partial grants of summary disposition in favor of plaintiffsAlcona County(Alcona) in Docket No. 196934 and Alpena County(Alpena) in Docket No. 199408.In each of these cases, consolidated on appeal, defendant failed to obtain soil erosion and sedimentation permits as required by plaintiff counties in connection with earth changes relating to defendant's natural gas well sites.In Docket No. 196934, the trial court determined that Alcona was not preempted by the Legislature from enforcing or implementing soil erosion programs, including a permit process; in Docket No. 199408, the trial court adopted the decision in Docket No. 196934 through collateral estoppel.We reverse and remand.

These cases involve a dispute over the authority granted by the Legislature to a county to manage soil erosion and sedimentation control under the Natural Resources and Environmental Protection Act (NREPA), M.C.L. § 324.101 et seq.;MSA 13A. 101 et seq.Defendant is involved in extensive natural gas drilling operations, including numerous gas wells, access roads, processing plants, and pipelines in Alcona and Alpena counties.For each of defendant's wells, defendant claims that it obtained a permit from the supervisor of wells, ¹Michigan Department of Environmental Quality(MDEQ), pursuant to part 615 of the NREPA, the supervisor of wells act, M.C.L. § 324.61501 et seq.;MSA 13A.61501 et seq.²Under part 91, the soil erosion and sedimentation control act, M.C.L. § 324.9101 et seq.;MSA 13A.9101 et seq., also grants a county responsibility for the "administration and enforcement" of departmental rules concerning soil erosion and sedimentation control throughout the county.Ostensibly in accordance with this authority, Alcona adopted a soil erosion and sedimentation control ordinance, ³ and Alpena adopted a resolution to enforce part 91.Each county required defendant to obtain a permit from the respective county for earth-moving activities related to the access roads, pipelines, and processing plants of defendant's well-drilling operations.Alcona's "ordinance" contained substantive language in addition to that contained in the MDEQ rules, which stated in part that "[a]ccess roads to well production sites shall be subject to permit requirements."Alpena's resolution did not contain additional substantive language, but Alpena did require a permit under the same circumstances as in the Alcona "ordinance."

Defendant failed to obtain permits from plaintiff counties in which its wells and ancillary activities were located.Thereafter, Alcona filed an action for injunctive relief and assessment of civil fines, and Alpena separately filed suit for injunctive relief, civil fines, and a surety for each well site, pipe or flow line, or central processing facility to ensure the installation and completion of required corrective or protective measures.In each case, defendant stated in its answer the affirmative defense that the Legislature delegated to counties only the limited authority to enforce the rules promulgated by the MDEQ.In addition, defendant argued that its well activities were specifically exempted from soil erosion permit requirements of the state rules, because its well activities were instead subject to the control and permit requirements of the supervisor of wells.Thus, where the state rules did not require a permit, plaintiff had no separate authority for imposing such a requirement.

During the pendency of its suit for permanent injunctive relief, Alcona filed a motion for a preliminary injunction, then withdrew its motion when defendant agreed to file permit applications in accordance with Alcona's ordinance and deposit permit fees into an escrow account.At this time, Alcona also filed a motion for summary disposition pursuant to MCR 2.116(C)(9) and (C)(10), regarding the issue of its authority to administer and enforce the statute.Defendant filed a motion to dismiss for failure to join the MDEQ and the supervisor of wells as necessary parties.On June 24, 1996, the trial court heard oral arguments regarding the parties' motions.The trial court stated that it would consider only the issue of jurisdiction between the county and the supervisor of wells, further stating that the question was whether the NREPA"grants jurisdiction [to counties] for the enforcement of ... access roads and pipelines."On July 17, 1996, the court issued its opinion and order, characterizing the case as a jurisdictional dispute between Alcona and the MDEQ/supervisor of wells regarding whether the supervisor of wells, under part 615, had essentially preempted Alcona's jurisdiction under part 91.The court found that the Legislature did not intend to vest power over ancillary well activities exclusively with the supervisor of wells or preempt counties from implementing their own soil erosion programs.Thus, the trial court granted Alcona's motion for partial summary disposition and struck defendant's affirmative defenses regarding jurisdiction.

Alpena also filed a motion for a preliminary injunction, which the trial court granted in June 1996.⁴In August 1996, Alpena filed a motion for summary disposition, seeking to strikedefendant's affirmative defenses and jury demand.The trial court heard oral arguments on October 7, 1996, and Alpena asserted that collateral estoppel bound the trial court to follow its decision with regard to Alcona, because the issues were the same in both cases.On November 4, 1996, the trial court issued an order granting Alpena's motion for summary disposition on the basis of collateral estoppel and granting Alpena's motion to strikedefendant's jury demand without prejudice, but denying the motion to strike defendant's entire answer.The court stayed the order pending the outcome on appeal.In April 1997, this Court granted leave to appeal in both cases and consolidated the appeals.

This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law.Stehlik v. Johnson (On Rehearing), 206 Mich.App. 83, 85, 520 N.W.2d 633(1994).A motion for summary disposition pursuant to MCR 2.116(C)(9) seeks a determination whether the opposing party has failed to state a valid defense to the claim asserted against it.In re Smith Estate, 226 Mich.App. 285, 288, 574 N.W.2d 388(1997).It is tested by the pleadings alone, with the court taking all well-pleaded allegations as true and determining whether the defenses are so clearly untenable as a matter of law that no factual development could possibly deny the plaintiff's right to recovery.Id.

MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to [judgment] as a matter of law.A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party.[Stehlik, supra at 85, 520 N.W.2d 633.]

Summary disposition on the basis of collateral estoppel, as in the Alpena case here, is pursuant to MCR 2.116(C)(7), Lichon v. American Universal Ins. Co., 435 Mich. 408, 427, n. 14, 459 N.W.2d 288(1990), and in considering a motion under that subrule, the court may consider all affidavits, pleadings, and other documentary evidence, construing them in the light most favorable to the nonmoving party.McFadden v. Imus, 192 Mich.App. 629, 632, 481 N.W.2d 812(1992).

In these cases, we are faced with a question of statutory interpretation, which is a question of law that this Court also reviews de novo.People v. Denio, 454 Mich. 691, 698, 564 N.W.2d 13(1997).Construction of administrative rules is also governed by the principles of statutory construction.Attorney General v. Lake States Wood Preserving, Inc., 199 Mich.App. 149, 155, 501 N.W.2d 213(1993).The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature.Shallal v. Catholic Social Services of Wayne Co., 455 Mich. 604, 611, 566 N.W.2d 571(1997).The first step in determining intent is to look to the specific language of the statute.Barr v. Mt. Brighton, Inc., 215 Mich.App. 512, 516-517, 546 N.W.2d 273(1996).When statutory language is clear and unambiguous, judicial interpretation to vary the plain meaning of the statute is precluded.United States Fidelity & Guaranty Co. v. Amerisure Ins. Co., 195 Mich.App. 1, 5, 489 N.W.2d 115(1992)."Statutory language should be construed reasonably and the purpose of the statute should be kept in mind."Barr, supra at 516, 546 N.W.2d 273.Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used.People v. Lee, 447 Mich. 552, 557-558, 526 N.W.2d 882(1994).Provisions of a statute are not construed in isolation, but, rather, in the context of other provisions of the same statute to give effect to the purpose of the whole enactment.Guitar v. Bieniek, 402 Mich. 152, 158, ...