Lake Carriers' Ass'n v. MacMullan

• Decision Date: 25 June 1979
• Docket Number: Docket No. 78-1648
• Citation: 282 N.W.2d 486,91 Mich.App. 357
• Parties: , 13 ERC 1631 LAKE CARRIERS' ASSOCIATION et al., Plaintiffs-Appellees, and Dominion Marine Association, Intervenor-Appellee, v. Ralph A. MacMULLAN et al., Defendants, and Frank J. Kelley, Individually and as Attorney General of the State of Michigan, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 486

282 N.W.2d 486

91 Mich.App. 357, 13 ERC 1631

LAKE CARRIERS' ASSOCIATION et al., Plaintiffs-Appellees and Dominion Marine Association, Intervenor-Appellee, v. Ralph A. MacMULLAN et al., Defendants and Frank J. Kelley, Individually and as Attorney General of the State of Michigan, Defendant-Appellant.

Docket No. 78-1648.

Court of Appeals of Michigan.

June 25, 1979.

Released for Publication Aug. 22, 1979.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jerome Maslowski and Thomas L. Casey, Asst. Attys. Gen., for defendant-appellant.

Scott H. Elder, Cleveland, Ohio, for Lake Carriers.

Brown & Brown by Prentiss Brown, Jr., St. Ingace, Scholl, Jenkins, Robinson & Steig by Marlin F. Scholl, Detroit, for Dominion.

Before KELLY, P. J., and CAVANAGH and MacKENZIE, JJ.

PER CURIAM.

This is an appeal, brought by defendant Attorney General, from a decision of the Circuit Court for the County of Mackinac construing certain sections of the Michigan Watercraft Pollution Control Act of 1970; M.C.L. § 323.331, Et seq.; M.S.A. § 3.533(201), Et seq., (hereinafter referred to as WPCA), and granting plaintiffs injunctive relief against enforcement of a provision of the Act which would prohibit the discharge of all sewage, whether treated or untreated, from cargo-carrying vessels engaged in commerce on Michigan waters.

In 1971, plaintiff Lake Carriers' Association ¹ instituted an action against Michigan officials ² in the United States District Court for the Eastern District of Michigan seeking declaratory and injunctive relief against enforcement of the WPCA, which was interpreted by the defendants as entirely prohibiting the discharge of sewage, whether treated or untreated, in state waters and as requiring vessels equipped with toilet facilities to carry sewage storage devices permitting subsequent on-shore disposal of sewage. Plaintiffs attacked the validity of the Michigan Act on Federal constitutional grounds, including vagueness, interference with interstate and foreign commerce and with uniform maritime law, denial of due process and equal protection as well as violation of the supremacy clause by being in conflict with Federal water pollution control statutes, which allegedly contemplated pollution control through on-board treatment of sewage before discharge.

A three-judge panel of the district court dismissed the complaint for lack of a justiciable controversy and also found compelling reasons to abstain from consideration of the merits. Lake Carriers' Ass'n v. MacMullan 336 F.Supp. 248 (E.D.Mich., 1971). An appeal was taken to the United States Supreme Court and an amicus curiae brief was filed on behalf of Dominion Marine Association raising the additional arguments that the Michigan law conflicts with the United States-Canadian Boundary Waters Treaty of 1909, 36 Stat. 2448; TS No. 548, and that the law enters the domain of foreign affairs, an area constitutionally reserved to the national government.

The United States Supreme Court held that the case did present an "actual controversy" within the meaning of the Declaratory Judgment Act, 28 U.S.C. § 2201. However, the High Court went on to hold that abstention was appropriate because the WPCA had not been construed in any Michigan court and it appeared that the ambiguous language in the statute might be construed by the Michigan courts in such a way as to avoid or significantly modify the Federal questions raised. The Supreme Court, therefore, vacated the lower court judgment and remanded to the district court with direction to retain jurisdiction pending institution of appropriate proceedings in Michigan courts. Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). An order to that effect was entered in the district court, Lake Carriers' Ass'n v. MacMullan, Civil Action No. 36194 (June 20, 1972).

State Court proceedings were initiated when a complaint was filed in the Circuit Court for the County of Mackinac seeking declaratory relief, pursuant to GCR 1963, 521, definitively determining the allegedly ambiguous portions of the WPCA. In reviewing the WPCA, the circuit court first considered the relation of the Michigan statute to the Federal Water Pollution Control Act, 33 U.S.C. § 1251 Et seq., the Boundary Waters Treaty and the United States-Canadian Great Lakes Water Quality Agreement of April 15, 1972, 23 UST 301; TIAS No. 7312. Reconciling the statute to the other provisions, the court found that the Michigan Act is neither clear nor unambiguous and decided, therefore, that it was necessary to construe the statute in order to ascertain if it did proscribe the discharge of all sewage. As an aid in determining the intent of the Legislature and the meaning of the statute, the court also looked to the entire Water Resources Commission Act, M.C.L. § 323.1 Et seq.; M.S.A. § 3.521 Et seq. (hereinafter referred to as WRCA). It found that the overall objective of the WRCA was to prohibit the pollution of Michigan waters. It further found that the watercraft pollution section of the WRCA does not ban the discharge of all sewage, but seeks only to prohibit the deposit in Michigan waters of any sewage or 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". M.C.L. § 323.333(1); M.S.A. § 3.533(203)(1). The circuit court then held that the WPCA did not bar the discharge of all sewage, but that the discharge of sewage treated to an adequate degree by a United States or Canadian Federally certified marine sanitation device was permissible.

In this appeal, the defendant Attorney General challenges only the trial court's construction of the statute vis-a-vis the various rules of statutory interpretation. Because the lower court did not reach the constitutional issues involved in light of its finding that the statute did allow the discharge of adequately treated sewage, those issues will be reached only if this Court takes a view contrary to that of the circuit court as to the statute's construction. Thus, at the outset, we are presented with a single and controlling question of law.

DOES THE WATERCRAFT POLLUTION CONTROL ACT PROHIBIT THE

DISCHARGE OF SEWAGE, WHETHER TREATED OR UNTREATED,

FROM CARGO-CARRYING VESSELS ENGAGED IN

COMMERCE ON THE WATERS OF THE

STATE OF MICHIGAN?

The defendant-appellants contend that the circuit court erred in finding the WPCA ambiguous and therefore susceptible to judicial interpretation. Alternatively, if the Act is deemed to be ambiguous, it is argued that the circuit court improperly relied on the permit system established by the Water Resources Commission Act, which allows the discharge of treated sewage by municipalities and shore-based facilities, as indicating a legislative tolerance of the discharge of treated sewage because the latter act did not require such permits at the time the WPCA was enacted.

Plaintiffs-appellees answer that the United States Supreme Court has found the language of the WPCA to be ambiguous, and abstained from addressing the merits of this dispute in order to permit Michigan courts the opportunity to render a clarifying interpretation. Furthermore, it is argued that the circuit court's construction of the WPCA, which reconciled state and Federal statutes, as well as treaties, is merely an application of § 11 of the Act which provides that "the provision or the rule (presumably promulgated thereunder) 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". M.C.L. § 323.341; M.S.A. § 3.533(211). In any event, plaintiff contends the WPCA is only concerned with "detrimental" sewage rather than "benign" sewage, (sewage treated in accordance with Federal standards by Federally approved and certified treatment devices); as the discharge of treated sewage meeting Federal standards is permitted by municipalities and shore-based industries, to read the WPCA so as to proscribe such discharge from vessels raises serious constitutional questions.

In resolving these opposing contentions and reviewing the construction of the circuit court, our attention is directed to the question of whether or not the language of the WPCA is unclear and ambiguous for, if a statute is unambiguous on its face, there is no room for statutory construction or interpretation. Detroit v. Redford Twp., 253 Mich. 453, 455, 235 N.W. 217 (1931); Luyk v. Hertel, 242 Mich. 445, 448, 219 N.W. 721 (1928). On the other hand, if ambiguity is found, then it is the duty of the court to consider the intent of the Legislature. As stated in Melia v. Employment Security Comm., 346 Mich. 544, 562, 78 N.W.2d 273, 275 (1956):

"The cardinal rule of statutory construction is to ascertain and give effect to the intention of the legislature. If the language of a statutory provision is unambiguous, the intent must be determined accordingly. It is requisite that pertinent provisions of the act be considered together, to the end that the general plan and purpose of the law-making body may be ascertained. All parts of the specific provision to be construed must be given force and effect. This means that no phrase, or clause, or word, may be ignored in determining the construction of such provision."

Turning to the statute in question, § 4 of the WPCA, M.C.L. § 323.334; M.S.A. § 3.533(204), prescribes the conditions under which a marine toilet may be used on state waters, that is, requiring the use of sewage storage containers. The provision states in relevant part:

"(2) A person (defined in § 2(i) to include an individual, or corporation, association or other entity) owning, operating or otherwise concerned in the operation, navigation or management of a watercraft (defined in § 2(g) to...