Mich. Citizens v. Nestle Waters
| Decision Date | 29 November 2005 |
| Docket Number | Docket No. 254202.,Docket No. 256153. |
| Citation | 709 N.W.2d 174,269 Mich. App. 25 |
| Parties | MICHIGAN CITIZENS FOR WATER CONSERVATION, a Michigan nonprofit corporation; R.J. Doyle and Barbara Doyle, husband and wife; and Jeffrey R. Sapp and Shelly M. Sapp, husband and wife, Plaintiffs-Appellees/Cross-Appellants, v. NESTLÉ WATERS NORTH AMERICA INC., a Delaware corporation, Defendant-Appellant/Cross-Appellee, and Donald Patrick Bollman and Nancy Gale Bollman, d/b/a Pat Bollman Enterprises, Defendants. Michigan Citizens for Water Conservation, a Michigan nonprofit corporation; R.J. Doyle and Barbara Doyle, husband and wife; and Jeffrey R. Sapp and Shelly M. Sapp, husband and wife, Plaintiffs-Appellees, v. NestlÉ Waters North America Inc., a Delaware corporation, Defendant-Appellant, and Donald Patrick Bollman and Nancy Gale Bollman, d/b/a Pat Bollman Enterprises, Defendants. |
| Court | Court of Appeal of Michigan — District of US |
Olson, Bzdok & Howard, P.C. (by James M. Olson and Scott W. Howard), Chris A. Shafer, and Samuels Law Office (by James R. Samuels), Traverse City, Lansing, Big Rapids, for Michigan Citizens for Water Conservation, R.J. and Barbara Doyle, and Jeffrey R. and Shelly M. Sapp.
Mika Meyers Beckett & Jones PLC (by John M. DeVries, Fredric N. Goldberg, and Douglas A. Donnell), Warner Norcross & Judd LLP (by Eugene E. Smary and Robert J. Jonker), Kilpatrick Stockton LLP (by David M. Zacks and Adam H. Charnes), and Porteous Law Office, P.C. (by David L. Porteous), Grand Rapids; Grand Rapids; Atlanta, GA; Reed City, for Nestlé Waters North America Inc.
McClelland & Anderson, L.L.P. (by Gregory L. McClelland and Melissa A. Hagen), Lansing, for the Michigan Association of Realtors.
Smith, Martin, Powers & Knier, P.C. (by David L. Powers), and Bancroft Associates PLLC (by Viet D. Dinh and Christopher D. Thuma), Bay City; Washington, DC, for Save Our Shoreline.
Noah D. Hall, Ann Arbor, for the National Wildlife Foundation, the Michigan United Conservation Clubs, and the Michigan Council of Trout Unlimited.
Eric D. Williams, Big Rapids, for the Mecosta County Development Corporation, Michigan Works! West Central, and the Mecosta County Area Chamber of Commerce.
Koernke & Crampton, P.C. (by Thomas F. Koernke), Grand Rapids, for the Michigan Water Environment Association.
Law, Weathers & Richardson, P.C. (by Clifford H. Bloom and Michael J. Roth), Grand Rapids, for the Michigan Lake & Stream Associations, Inc.
Honigman Miller Schwartz and Cohn LLP (by John D. Pirich, Timothy Sawyer Knowlton, Grant R. Trigger, and S. Lee Johnson), Lansing, for the Michigan Chamber of Commerce, the Michigan Chemistry Council, and the Michigan Agri-Business Association.
Clark Hill PLC (by F.R. Damm, David D. Grande-Cassell, and Aaron O. Matthews), Lansing, for the Michigan Manufacturers Association.
McKay & McKay (by Lawrence I. McKay III), Frankfort, for the Anglers of the AuSauble, Inc.; and the Great Lakes Council, Inc. of the Federation of Fly Fishers.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and S. Peter Manning and Sara R. Gosman, Assistant Attorneys General, for the Department of Environmental Quality.
Michael A. Cox, Attorney General, for the Attorney General.
Before: MURPHY, P.J., and WHITE and SMOLENSKI, JJ.
In Docket No. 254202, defendant Nestlé Waters North America Inc. (Nestlé) appeals as of right the trial court's imposition of an injunction barring it from withdrawing any groundwater from property owned by Donald Patrick Bollman and Nancy Gale Bollman, doing business as Pat Bollman Enterprises (the Bollmans).1 Plaintiffs cross-appeal the trial court's earlier decision to grant defendants partial summary disposition on plaintiffs' public trust claim. In Docket No. 256153, Nestlé appeals as of right the trial court's grant of costs to plaintiffs.2 We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
The events leading to this appeal began when Nestlé's predecessor in interest, Great Spring Waters of America, Inc., a subsidiary of Perrier Group of America, Inc.,3 began taking steps to construct a spring water bottling plant in Mecosta County. In December 2000, defendant purchased the groundwater rights to the Bollmans' property located north of the Osprey Lake impoundment and referred to as Sanctuary Springs.4 The Osprey Lake impoundment is a man-made body of water created by the damming of the Dead Stream.5 The Dead Stream originates from springs that are now obscured by the Osprey Lake impoundment and flows generally east and then south until it meets the channel between Blue Lake and Lake Mecosta. Shortly after defendant announced its plans to build its spring water bottling plant, the nonprofit corporation Michigan Citizens for Water Conservation (MCWC) was formed to represent the interests of riparian property owners6 in the vicinity of the proposed wells, as well, as other interested persons.
In January and February 2001, defendant installed two wells on the Sanctuary Springs site. Two more wells were installed in July and August 2001. Permits to use the wells were issued by the Michigan Department of Environmental Quality (DEQ) in August 2001 and February 2002. The combined maximum pumping rate permitted for the four wells is 400 gallons per minute (gpm).
In the summer of 2001, defendant began to construct its bottling plant approximately 12 miles from Sanctuary Springs.7 In June 2001, the MCWC8 filed a complaint, which in part sought an injunction against the construction of the bottling plant. The trial court denied the MCWC's request for an injunction because the construction of the plant did not itself constitute the harm sought to be enjoined by the MCWC.9
In September 2001, the MCWC filed its first amended complaint.10 In count I, the MCWC requested an injunction against defendant's construction of wells, wellhouses, and the pipeline for water extraction from Sanctuary Springs. Count II alleged that defendant's withdrawal of water would not be lawful under the common law applicable to riparian water rights. Count III alleged that defendant's withdrawal of water was unreasonable under the common law applicable to groundwater. Count IV alleged that the waters of Sanctuary Springs are subject to the public trust and, consequently, defendant is without the power to withdraw, divert, diminish, or use the water in a way that alienates or destroys the public's title. Count V alleged that defendant's use of the waters would constitute an unlawful taking of public resources. Finally, count VI alleged that defendant's withdrawals would violate the Michigan environmental protection act (MEPA).11 Later the Bollmans were added as defendants, and in November 2001, plaintiffs filed a second amended complaint, which restated the counts of the first amended complaint, but added the Doyles and the Sapps as plaintiffs.
In May 2002, plaintiffs filed a motion for summary disposition on counts II to IV.12 In opposition to plaintiffs' motion for summary disposition, defendant argued that the riparian and public trust doctrines did not apply to defendant's withdrawal of groundwater. In its ruling, the trial court stated, as a matter of law, that the Dead Stream was not navigable and, therefore, the public trust doctrine did not apply to it. The court also determined that plaintiffs' common-law claims were not governed by riparian law, but by the law applicable to groundwater withdrawals. However, the trial court ruled that diminishment of riparian flow could constitute an actionable injury under groundwater law.13 For these reasons, the trial court granted summary disposition in favor of defendants with respect to count II (riparian rights) and count IV (public trust). At a later summary disposition hearing, the trial court concluded that count V failed to state a claim and dismissed it as well.14 As a result of these pretrial proceedings, the only counts remaining to be tried were plaintiffs' common-law groundwater claim (count III) and MEPA claim (count VI).15
The bench trial commenced on May 5, 2003, and ended on September 10, 2003. On November 25, 2003, the trial court issued its opinion and order. With regard to count III, the trial court found that defendant's pumping had harmed and will continue to harm plaintiffs' riparian interests. The trial court also determined that defendant's water withdrawals violated MEPA by unlawfully diminishing an inland lake or stream and draining water from a wetland. The trial court concluded that these violations warranted a full injunction and ordered defendant to terminate all water withdrawals from Sanctuary Springs within 21 days of the date of the filing of its opinion and order.16
On December 16, 2003, defendant moved for a new trial and amendment of the judgment under MCR 2.611 and 2.612. Defendant asked the trial court to set aside its opinion and order of November 25, 2003, take additional testimony and receive additional exhibits, make new findings, direct entry of a new judgment, and refer the matter to the DEQ. On February 13, 2004, the trial court issued an opinion and order on defendant's motions for a new trial and other relief. The trial court acknowledged some minor factual errors in its previous opinion and amended it to correct them, but in all other respects rejected defendant's arguments and denied the requested relief.
On December 8, 2003, plaintiffs moved for costs under MCL 600.2164 and MCL 324.1703(3). At a May 7, 2004, hearing, the trial court awarded costs to plaintiffs, as prevailing parties, in the amount of $122,212.47....
To continue reading
Request your trial
-
Anglers of Ausable v. Dept. of Environmental Quality
...but reviews a trial court's factual findings in a bench trial for clear error. Michigan Citizens for Water Conservation v. Nestlé Waters North America Inc., 269 Mich.App. 25, 53, 709 N.W.2d 174 (2005), aff'd in part, rev'd in part, and remanded on other grounds 479 Mich. 280, 737 N.W.2d 44......
-
Mich Citizens v. Nestlé Waters
...Lake, which are used by and adjacent to property owned by plaintiffs and not the subject of a standing challenge. [Michigan Citizens, 269 Mich.App. at 113, 709 N.W.2d 174 (emphasis The flaw in this "interconnectedness" theory of standing is that it permits plaintiffs to evade their burden t......
-
Anglers of The Ausable Inc. v. Dep't of Envtl. Quality
...previously found in Kolke Creek.3 It applied the "reasonable use balancing test" from Mich. Citizens for Water Conservation v. Nestlé Waters North America Inc., 269 Mich.App. 25, 709 N.W.2d 174 (2005). In applying the reasonable-use balancing test from Nestlé , the trial court concluded th......
-
Holton v. Ward
...claims and they are, accordingly, reviewed de novo by our Court. Mich. Citizens for Water Conservation v. Nestlé Waters North America Inc., 269 Mich.App. 25, 53, 709 N.W.2d 174 (2005) (opinion by Smolenski, J.), aff'd in part and rev'd in part on other grounds 479 Mich. 280, 737 N.W.2d 447 ......
-
Standing for Everyone: Sierra Club v. Morton, Justice Blackmun's Dissent, and Solving the Problem of Environmental Standing
...Co., 684 N.W.2d 800, 808 (Mich. 2004). 290. Id . at 806. 291. Michigan Citizens for Water Conservation v. Nestle Waters N. Am., Inc., 709 N.W.2d 174, 210-11 (Mich. Ct. App. 2005). rejecting the “ Lujan test” for standing in federal court and instead “restored . . . a limited, prudential doc......
-
CHAPTER 4 WATER AND WASTEWATER ISSUES IN CONDUCTING OPERATIONS IN A SHALE PLAY: THE APPALACHIAN BASIN EXPERIENCE
...footnote 180. [21] Stoebuck & Whitman at 422, quoted in Michigan Citizens for Water Conservation v. Nestlé Waters North America Inc., 269 Mich. App. 25, 54-55, 709 N.W.2d 174, 194 (2005). [22] 1 Waters and Water Rights § 7.02(c); see, e.g., Dimmock v. City of New London, 157 Conn. 9, 245 A.......
-
WATER SCHEMES ACROSS THE SHALE PLAYS: MARCELLUS/UTICA
...footnote 180. [21] Stoebuck & Whitman at 422, quoted in Michigan Citizens for Water Conservation v. Nestlié Waters North America Inc., 269 Mich. App. 25, 54-55, 709 N.W.2d 174, 194 (2005). [22] 1 Waters and Water Rights § 7.02(c); see, e.g., Dimmock v. City of New London, 157 Conn. 9, 245 A......
-
ACQUISITION OF WATER FOR ENERGY AND MINERAL DEVELOPMENT IN THE EASTERN UNITED STATES
...10 Pa. Super. 132, 148-48 (1899), aff'd, 45 A. 482 (Pa. 1900). [61] Mich. Citizens for Water Conservation v. Nestle Waters N. Am. Inc., 709 N.W.2d 174, 196 (Mich. Ct. App. 2007) (citation omitted), rev'd on other grounds, 737 N.W.2d 447 (Mich. 2007). [62] See, e.g., Tunison v. Harper, 690 S......