City of Portage v. Kalamazoo County Road Com'n

• Decision Date: 19 October 1984
• Docket Number: Docket No. 68936
• Citation: 355 N.W.2d 913,136 Mich.App. 276
• Parties: CITY OF PORTAGE, a Michigan municipal corporation, Plaintiff-Appellee, v. KALAMAZOO COUNTY ROAD COMMISSION, Defendant-Appellant. 136 Mich.App. 276, 355 N.W.2d 913
• Court: Court of Appeal of Michigan — District of US

Page 913

355 N.W.2d 913

CITY OF PORTAGE, a Michigan municipal corporation, Plaintiff-Appellee, v. KALAMAZOO COUNTY ROAD COMMISSION, Defendant-Appellant.

Docket No. 68936.

136 Mich.App. 276, 355 N.W.2d 913

Court of Appeals of Michigan.

Submitted Feb. 9, 1984.

Decided July 16, 1984.

Released for Publication Oct. 19, 1984.

[136 MICHAPP 278] John J. Peters, City Atty. by Michael S. Straubel, Kalamazoo, for plaintiff-appellee.

[136 MICHAPP 279] Bennett, Lewis, LaParl, Hollander, Stephens & Milligan, P.C. by Dean S. Lewis and Robert C. Burkholz, Kalamazoo, for defendant-appellant.

Before KELLY, P.J., and MAHER and REILLY ^*, JJ.

REILLY, Judge.

Defendant appeals as of right from the trial court's December 21, 1982, order which permanently enjoined defendant from cutting certain trees along Portage Road in the City of Portage, Kalamazoo County.

Plaintiff filed this action in Kalamazoo County Circuit Court pursuant to the Michigan Environmental Protection Act (MEPA), M.C.L. Sec. 691.1202; M.S.A. Sec. 14.528(202), seeking to enjoin defendant from implementing its plan to remove approximately 74 trees located within eight feet of both sides of the paved portion of Portage Road. ¹ Following trial, the court issued an opinion and order permanently enjoining defendant from cutting the trees. Defendant appeals.

While this Court review de novo actions brought under the MEPA, review is governed by GCR 1963, 517.1, and the trial court's findings of fact will not be overturned or modified unless they are clearly erroneous or unless the reviewing court is convinced it would have reached a different result had it occupied the bench at trial. Wayne County Dep't of Health v. Olsonite Corp., 79 Mich.App. 668, 694, 263 N.W.2d 778 (1977). See also Dunlop v. Twin Beach Park Ass'n, Inc., 111 Mich.App. 261, 266, 314 N.W.2d 573 (1981). A finding is clearly erroneous when, although there is evidence [136 MICHAPP 280] to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Tuttle v. Dep't of State Highways, 397 Mich. 44, 243 N.W.2d 244 (1976).

Under Sec. 2 of the act, a party may bring an action for declaratory and equitable relief against any other party "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction". Section 3(1), M.C.L. Sec. 691.1203(1); M.S.A. Sec. 14.528(203)(1), provides:

"When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has, or is likely to pollute, impair or destroy the air, water of other natural resources or the public trust therein, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act."

The court must conduct a dual inquiry to determine if a prima facie case is established under Sec. 3: (A) whether a natural resource is involved, and (B) whether the impact of the activity on the environment rises to the level of impairment to justify the trial court's injunction. Kimberly Hills Neighborhood Ass'n v. Dion, 114 Mich.App. 495, 503, 320 N.W.2d 668 (1982), lv. den. 417 Mich. 1045 (1983).

There is no question that a natural resource is [136 MICHAPP 281] involved in this case. The removal of trees, a form of wildlife, constitutes destruction of a natural resource under the MEPA. Eyde v. Michigan, 82 Mich.App. 531, 540, 267 N.W.2d 442 (1978), lv. den. 403 Mich. 812 (1978); Stevens v. Creek, 121 Mich.App. 503, 508, 328 N.W.2d 672 (1982).

The crucial issue is whether the threatened impact on the environment rises to a level which would justify judicial intervention. The Supreme Court has recognized that virtually all human activities can be found to adversely impact natural resources in some way or other. West Michigan Environmental Action Council v. Natural Resources Comm., 405 Mich. 741, 760, 275 N.W.2d 538 (1979). It has been left to the courts to give precise meaning to the statute and to determine whether the proposed action can be found to rise to the level of impairment or destruction of natural resources so as to constitute an environmental risk and justify judicial intervention. Ray v. Mason County Drain Comm'r, 393 Mich. 294, 224 N.W.2d 883 (1975); West Michigan Environmental Action Council, supra, 405 Mich. p. 760, 275 N.W.2d 538. A court is not empowered to enjoin any conduct which does not rise to the level of an environmental risk proscribed by the MEPA. Committee for Sensible Land Use v. Garfield Twp., 124 Mich.App. 559, 564, 335 N.W.2d 216 (1983). As stated in Oscoda Chapter of PBB Action Committee, Inc. v. Dep't of Natural Resources, 403 Mich. 215, 231-233, 268 N.W.2d 240 (1978):

"That act does not confer plenary power on the courts to do whatever they may think preferable in environmental cases. Absent a finding that the conduct of the defendant has or is likely to pollute, impair or destroy, the court may not order another alternative even though it finds it more desirable.

* * *

[136 MICHAPP 282] "The standard, 'has, or is likely to pollute, impair or destroy', is a limitation as well as a grant of power."

In determining whether the impact of a proposed action on wildlife is so significant as to constitute an environmental risk and require judicial intervention, the court should evaluate the environmental situation prior to the proposed action and compare it with the probable condition of the particular environment afterwards. The factors the court should consider include: (1)...