Glen Lake-Crystal River Watershed Riparians v. Glen Lake Ass'n

• Decision Date: 18 March 2005
• Docket Number: Docket No. 248580.
• Citation: 264 Mich. App. 523,695 N.W.2d 508
• Parties: GLEN LAKE-CRYSTAL RIVER WATERSHED RIPARIANS, Joy M. Taylor, Peggy Marks, David Stockman, Joyce Stockman, Bob Jones, William Anderson, Vicki Anderson, and James Kuhn, Plaintiffs-Appellees/Cross-Appellants, and Crystal River Outfitters, LLC, and David Marks, Plaintiffs-Appellees, v. GLEN LAKE ASSOCIATION, Defendant-Appellant/Cross-Appellee, and Leelanau County, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

695 N.W.2d 508

264 Mich. App. 523

GLEN LAKE-CRYSTAL RIVER WATERSHED RIPARIANS, Joy M. Taylor, Peggy Marks, David Stockman, Joyce Stockman, Bob Jones, William Anderson, Vicki Anderson, and James Kuhn, Plaintiffs-Appellees/Cross-Appellants, and Crystal River Outfitters, LLC, and David Marks, Plaintiffs-Appellees, v. GLEN LAKE ASSOCIATION, Defendant-Appellant/Cross-Appellee, and Leelanau County, Defendant-Appellee.

Docket No. 248580.

Court of Appeals of Michigan.

Submitted November 16, 2004, at Grand Rapids.

Decided December 7, 2004, at 9:00 a.m.

Released for Publication March 18, 2005.

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

Smith & Johnson, Attorneys, P.C. (by Louis A. Smith and C. Enrico Schaefer), Traverse City, for the Glen Lake Association.

Before: WHITBECK, C.J., and BANDSTRA and JANSEN, JJ.

BANDSTRA, J.

Defendant Glen Lake Association (GLA) appeals as of right the trial court order that modified the established normal level of Glen Lake under the inland lake levels part (ILLP) of the Natural Resources and Environmental Protection Act, MCL 324.30701 et seq. We conclude that the trial court had continuing jurisdiction to modify the lake level and that plaintiffs, private party riparian property owners, had standing to invoke that jurisdiction. Further, we do not conclude that the trial court's order was clearly erroneous on the merits and we affirm.

I. Basic Facts and Procedural History

Glen Lake and the Crystal River are located in Leelanau County, immediately adjacent to the Sleeping Bear Dunes National Lakeshore. Water flows from Glen Lake over a dam into the Crystal River, which then meanders several miles before discharging into Lake Michigan. The dam controls the release of water from Glen Lake into the Crystal River. Therefore, any alterations in the height of the dam result in converse effects on the Glen Lake and Crystal River systems: increasing the height of the dam results in an increased height of Glen Lake, but a decreased instream flow for the Crystal River.

In the early 1940s, in response to concerns about erosion damage caused by high water levels in Glen Lake, the Leelanau County Board of Supervisors filed an action in the Leelanau Circuit Court under the statutory predecessor of the ILLP to determine the "natural height and level," now MCL 324.30702, of the water in Glen Lake.¹ In 1945, the Leelanau Circuit Court entered an order setting the natural height and level of Glen Lake at 596.75 feet above sea level. In 1954, in response to a lawsuit that claimed that the lake level was being maintained at a level higher than 596.75 feet, the Leelanau Circuit Court ordered the Glen Lake Improvement Association (the predecessor of the GLA,) to establish a supervisory committee to operate the dam to maintain the court-ordered water level of 596.75 feet. Since that time, the GLA has normally maintained the water level at or near 596.75 feet by inserting and removing dam boards. At various times of dry weather, the supervisory committee allowed the water level to drop below 596.75 feet to supplement flow to the Crystal River.

In 2000, the GLA contracted to have a new dam built to allow for more precise incremental control over the lake water level. During construction in June 2001, the GLA's contractor completely shut off the flow of water to the Crystal River. The Michigan Department of Environmental Quality (DEQ) received numerous complaints about extremely low water levels in the Crystal River and, upon investigation, observed low water levels, exposed mud flats, dry sand bars, and extensive fish kills.

In August 2001, plaintiffs, a small group of individual Crystal River riparian property owners and a canoe livery on the Crystal River, filed suit against the GLA, as the "delegated authority" to manage the dam. Plaintiffs also filed suit against Leelanau County. Plaintiffs sought to establish a new lake level, below the lake level set in 1945, to raise the height of the Crystal River. Plaintiffs alleged violations of the ILLP and the Michigan environmental protection act (MEPA), MCL 324.1701 et seq. However, the trial court only addressed plaintiffs' petition for a modified lake level order, and the GLA challenges only that ruling on appeal.

II. Analysis

A. The Trial Court Properly Determined That It Had Jurisdiction Over The Case

The GLA argues that the trial court erred in concluding that it had jurisdiction over this case. We disagree.

Whether the trial court had subject-matter jurisdiction is a question of law that we review de novo. Rudolph Steiner School of Ann Arbor v. Ann Arbor Charter Twp., 237 Mich.App. 721, 730, 605 N.W.2d 18 (1999). Additionally, whether a party has standing is a question of law that we review de novo. Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 612, 684 N.W.2d 800 (2004). Finally, the interpretation of a court rule is also a question of law that we review de novo. Hinkle v. Wayne Co. Clerk, 467 Mich. 337, 340, 654 N.W.2d 315 (2002).

The GLA frames this argument in terms of subject-matter jurisdiction. That issue can be raised at any point in the proceedings, including after the trial as occurred here. Stanke v. State Farm Mut. Automobile Ins. Co., 200 Mich.App. 307, 319, 503 N.W.2d 758 (1993); MCR 2.116(D)(3). However, as discussed below the issue is really one of standing, not subject-matter jurisdiction. The GLA failed to preserve this issue, but, instead, effectively consented to plaintiffs' standing to sue by entering into stipulations regarding the trial and its objective. Accordingly, the GLA has waived this issue.

"Subject-matter jurisdiction and standing are not the same thing. Jurisdiction of the subject matter is the right of the court to exercise judicial power over a class of cases, not the particular case before it; to exercise the abstract power to try a case of the kind or character of the one pending." Altman v. Nelson, 197 Mich.App. 467, 472, 495 N.W.2d 826 (1992). Under the ILLP, the trial court here clearly was granted "continuing jurisdiction" to consider the necessity for changes in the previously entered orders regarding the normal lake level for Glen Lake. MCL 324.30707(5). Accordingly, the GLA's challenge here is not about the trial court's jurisdiction over the subject matter at issue. Instead, the challenge is to plaintiffs' standing to invoke that jurisdiction.

The GLA's argument here is thus an attempt to have this matter dismissed because plaintiffs lack the legal capacity to sue under the statute. MCR 2.116(C)(5). However, this ground for dismissal of plaintiffs' action should have been raised in the GLA's first responsive pleading or in a motion filed prior to that pleading. MCR 2.116(D)(2). Because the GLA did not raise its standing challenge in that fashion, the issue is waived. MCR 2.111(F)(2); Stanke, supra at 319, 503 N.W.2d 758.

Imposition of these rules against the GLA here is appropriate. The GLA did not just fail to raise the standing issue early in the case, before discovery and attempts at settlement, it also affirmatively acquiesced to plaintiffs' right to sue by entering into a stipulation agreeing to the entry of a modified lake level order and, to that end, specifying the issues to be decided at trial and the mechanisms by which lake level determinations would be implemented. "A party cannot stipulate a matter and then argue on appeal that the resultant action was error." Chapdelaine v. Sochocki, 247 Mich.App. 167, 177, 635 N.W.2d 339 (2001). It would be unfair to plaintiffs and a waste of judicial resources to hold, following trial proceedings to which the GLA consented, that there was no standing to bring this action.

We acknowledge that the GLA raised its purported subject-matter jurisdiction argument largely on the basis of Yee v. Shiawassee Co. Bd. of Comm'rs, 251 Mich.App. 379, 651 N.W.2d 756 (2002), which was decided during the trial of this case. However, that provides the GLA no justification for its delay. The Yee decision was based on Wortelboer v. Benzie Co., 212 Mich.App. 208, 214, 537 N.W.2d 603 (1995), and In re Van Ettan Lake, 149 Mich.App. 517, 525-526, 386 N.W.2d 572 (1986), both of which interpreted the statute as disallowing riparian property owners from bringing suit under the ILLP to initially determine a normal lake level. Yee, supra at 398-399, 651 N.W.2d 756. Thus, the GLA cannot claim that before Yee was decided it had no reasonable basis to assert its challenge against plaintiffs' right to bring this suit. This issue is not properly preserved for appellate review.

Further, on its merits, the GLA's argument fails. Although the GLA relies primarily on Yee, the issue presented in that case was whether private parties can initially bring an action to determine a lake level under the ILLP. The Yee Court held that they could not, but that the statute, instead, reserved the authority to initiate such an action to the counties and the DEQ. Yee, supra at 397-398 and 398 n. 42, 651 N.W.2d 756. This Court reasoned that "the Legislature clearly limited the court's power to determine legal lake levels to those actions initiated by" these public authorities. Id. at 398, 651 N.W.2d 756. Notably, this Court further stated, "Once such a determination has been made, however, circuit court jurisdiction over a lake's level continues." Id. at 398 n. 41, 651 N.W.2d 756.

In this regard, the Yee Court relied on Anson v. Barry Co. Drain Comm'r, 210 Mich.App. 322, 325-326, 533 N.W.2d 19 (1995) and Wortelboer, supra. Yee, supra at 398-399, 651 N.W.2d 756 ns 41, 44. The plaintiffs in Anson were private owners of lakefront property who filed an action to enforce an existing lake level order. This Court reasoned that they could invoke the court's continuing jurisdiction under the statute. Anson, supra at 326, 533 N.W.2d 19. Similarly, the plaintiffs in Wortelboer were private property owners of land...