Lake Carriers' Ass'n v. Director of Dept. of Natural Resources

• Decision Date: 27 December 1979
• Docket Number: Docket No. 63453
• Citation: 286 N.W.2d 416,407 Mich. 424,16 ERC 2073
• Parties: LAKE CARRIERS' ASSOCIATION et al., Plaintiffs-Appellees, and Dominion Marine Association, Intervening Plaintiff-Appellee, v. DIRECTOR OF the DEPARTMENT OF NATURAL RESOURCES et al., Defendants, and Frank J. Kelley, Individually and as Attorney General for the State of Michigan, Defendant-Appellant. 407 Mich. 424, 286 N.W.2d 416, 16 ERC 2073, 10 Envtl. L. Rep. 20,767
• Court: Michigan Supreme Court

Page 416

286 N.W.2d 416

LAKE CARRIERS' ASSOCIATION et al., Plaintiffs-Appellees, and Dominion Marine Association, Intervening Plaintiff-Appellee, v. DIRECTOR OF the DEPARTMENT OF NATURAL RESOURCES et al.,

Defendants,

and

Frank J. Kelley, Individually and as Attorney General for

the State of Michigan, Defendant-Appellant.

Docket No. 63453.

407 Mich. 424, 286 N.W.2d 416, 16 ERC 2073,

10 Envtl. L. Rep. 20,767

Supreme Court of Michigan.

Dec. 27, 1979.

Brown & Brown by Prentiss M. Brown, Jr., St. Ignace (Scott H. Elder, Gen. Counsel, Lake Carriers' Ass'n, Cleveland, Ohio, of counsel), for plaintiffs.

Scholl, Theut, Robinson, Stieg & Schellig, Detroit, for intervening plaintiff.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and Frank J. Pipp, Russell E. Prins and Thomas L. Casey, Asst. Attys. Gen., Lansing, for defendant Atty. Gen.

PER CURIAM.

The issue presented by this application for leave to appeal is whether the Watercraft Pollution Control Act of 1970 (WPCA), M.C.L. § 323.331, Et seq.; M.S.A. § 3.533(201), Et seq., prohibits the discharge of sewage, whether treated or untreated, from watercraft in Michigan waters. Both the Mackinac County Circuit Court and the Court of Appeals, 91 Mich.App. 357, 282 N.W.2d 486 (1979), have determined that the WPCA only prohibits the discharge of inadequately treated sewage. We disagree.

Pursuant to GCR 1963, 853.2(4), 865.1(7), and for the reasons set forth below, in lieu of granting leave to appeal we reverse these judgments and hold that the WPCA prohibits the discharge of all sewage, whether treated or untreated, from watercraft in Michigan waters.

I

This litigation has an extensive history. The WPCA was enacted in 1970 and took effect January 1, 1971. In 1971, several federally licensed commercial vessel owners and their industry association (joined in 1976 by their Canadian counterparts) sought to have the WPCA declared invalid and its enforcement enjoined in Federal court. The defendants, charged with administering and enforcing the act, read its provisions as absolute; thus, they intended to require all vessels equipped with marine toilet facilities to either store or incinerate the sewage on board for subsequent onshore disposal. Plaintiffs attacked the WPCA, as interpreted by the defendants, on Federal constitutional grounds.

This complaint was dismissed for lack of a justiciable controversy as required by the Declaratory Judgment Act, 28 U.S.C. § 2201, and because compelling reasons for Federal abstention existed. 336 F.Supp. 248 (E.D.Mich.1971). On appeal, the United States Supreme Court found that an actual controversy existed, but agreed that abstention was proper. 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). The judgment was vacated and the case remanded with an order that jurisdiction be retained pending institution of proceedings in Michigan courts.

Abstention was found to be proper because the Court saw a critical inconsistency between § 3(1) and §§ 3(2) and 4(2) of the WPCA. Relying on this claimed ambiguity and the fact that the act had never been construed by a Michigan court, the majority was "satisfied that authoritative resolution of the ambiguities in the Michigan law (was) sufficiently likely to avoid or significantly modify the federal questions appellants raise(d) to warrant abstention". 406 U.S. 512, 92 S.Ct. 1758.

Plaintiffs then filed this action for declaratory judgment pursuant to GCR 1963, 521, in circuit court. Following the lead of the United States Supreme Court majority, the circuit court held that the WPCA was ambiguous and required judicial interpretation. The court determined that the WPCA only barred the discharge of sewage which was not treated to an adequate degree by a United States or Canadian certified marine sanitation device. The adequacy of the degree of treatment was to be determined by Federal regulations.

Defendant Attorney General sought relief in the Court of Appeals. Agreeing with the circuit court and the United States Supreme Court, the Court of Appeals found the provisions of the WPCA to be ambiguous and conflicting. The Court concluded:

"In order to achieve a harmonious and consistent result with statutes and treaty law In pari materia, we are compelled to reject that interpretation of the WPCA which would absolutely prohibit all sewage discharge and conclude that the correct construction to be placed upon the act is one which bans only the discharge of inadequately treated sewage, I. e., that not treated in accordance with Federal standards." 91 Mich.App. 370, 282 N.W.2d 492.

Defendant Attorney General has now filed this application for leave to appeal.

II

To fully understand this litigation, familiarity with the WPCA provisions is necessary. The pertinent sections are set forth below.

Section 2, M.C.L. § 323.332; M.S.A. § 3.533(202), in relevant part, reads:

"As used in this act:

"(c) 'Litter' means all rubbish, refuse, waste material, garbage, offal, paper, glass, cans, bottles, trash, debris or other foreign substances of every kind and description.

"(d) 'Sewage' means all human body wastes, treated or untreated.

"(e) 'Oil' means oil of any kind or in any form, including but not limited to petroleum, fuel oil, sludge and oil refuse."

Section 3, M.C.L. § 323.333; M.S.A. § 3.533(203), reads:

"(1) A person shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any litter, sewage, oil or other liquid or solid materials which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes.

"(2) It is unlawful to discharge, dump, throw or deposit garbage, litter, sewage or oil from a recreational, domestic or foreign watercraft used for pleasure or for the purpose of carrying passengers, cargo or otherwise engaged in commerce on the waters of this state."

Section 4(2), M.C.L. § 323.334(2); M.S.A. § 3.533(204)(2), reads:

"A person owning, operating or otherwise concerned in the operation, navigation or management of a watercraft having a marine toilet shall not own, use or permit the use of such toilet on the waters of this state unless the toilet is equipped with 1 of the following pollution control devices:

"(a) A holding tank or self-contained marine toilet which will retain all sewage produced on the watercraft for subsequent disposal at approved dockside or onshore collection and treatment facilities.

"(b) An incinerating device which will reduce to ash all sewage produced on the watercraft. The ash shall be disposed of onshore in a manner which will preclude pollution."

Section 11, M.C.L. § 323.341; M.S.A. § 3.533(211), reads:

"Any person who violates any provision of this act is guilty of a misdemeanor and shall be fined not more than $500.00. To be enforceable, the provision or the rule shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations."

The claimed ambiguity arises when one reads § 3(1) to state: "A person shall not * * * discharge * * * into or onto the waters of this state, any * * * sewage * * * which render(s) the water unsightly, noxious or otherwise unwholesome * * *." Read in this fashion, the language is in conflict with the more absolute prohibitions of §§ 3(2) and 4(2) because the discharge of "adequately treated" sewage might not violate § 3(1) but would violate §§ 3(2) and 4(2). Plaintiffs and the other courts which have addressed the issue assert that this alleged ambiguity requires judicial reconciliation.

III

The threshold issue is whether the WPCA is ambiguous or inconsistent. If the act is clear and...