Nat. Wildlife Fed. v. Cleveland Cliffs Iron Co., Docket No. 121890. Calendar No. 5.

Decision Date30 July 2004
Docket NumberDocket No. 121890. Calendar No. 5.
PartiesNATIONAL WILDLIFE FEDERATION & Upper Peninsula Wildlife Council, Plaintiffs-Appellees, v. CLEVELAND CLIFFS IRON COMPANY & Empire Iron Mining Partnership, Defendants-Appellants, and Michigan Department of Environmental Quality, and Russell J. Harding, Director Of the Michigan Department of Environmental Quality, Defendant-Appellee.
CourtMichigan Supreme Court

F. Michelle Halley, Marquette, MI, and Neil S. Kagan, Ann Arbor, MI, (Jane Reyer, of counsel), Grand Marais, MN, for the plaintiffs.

Plunkett & Cooney, P.C. (by Mary Massaron Ross and Karl A. Weber), Detroit, MI, for defendants The Cleveland Cliffs Iron Company and Empire Iron Mining Partnership.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Harold J. Martin, Assistant Attorney General, Escanaba, MI, for defendant Department of Environmental Quality.

Joseph L. Sax, San Francisco, CA, in support of the plaintiffs-appellees.

John F. Rohe, Petoskey, MI, for Camp Quality Michigan.

Ellen J. Kohler, Traverse City, MI, for the Tip of the Mitt Watershed Council.

Olson, Bzdok & Howard, P.C. (by James M. Olson and Scott W. Howard), Traverse City, MI, for William G. Milliken, League of Women's Voters, etc.

Opinion

MARKMAN, J.

This case presents the question of whether plaintiffs have standing to bring a suit on behalf of their members under the Michigan Environmental Protection Act (MEPA), MCL 324.1701 et seq. We conclude that, under the particular circumstances of this case, plaintiffs have standing. We affirm the decision of the Court of Appeals and remand this case to the trial court for further proceedings.

I. BACKGROUND

Defendant Cleveland Cliffs Iron Company (Cleveland Cliffs), in partnership with defendant Empire Iron Mining Partnership, planned to expand operations at the Empire Mine in Michigan's Upper Peninsula. Cleveland Cliffs applied for a permit through the Michigan Department of Environmental Quality (MDEQ), which held a public hearing to receive public comment. Eventually, the MDEQ issued the permit.

Plaintiffs, on behalf of their members, filed a petition for a contested case hearing with the MDEQ. The hearing referee held that plaintiffs lacked standing and dismissed the matter. Plaintiffs then appealed to the Marquette Circuit Court, which affirmed the referee's dismissal, and the Court of Appeals denied plaintiffs' application for leave to appeal.

Meanwhile, plaintiffs filed suit in Ingham Circuit Court (venue was later changed to Marquette County), including a count asserting a claim under MEPA.1 Plaintiffs sought a temporary restraining order and a preliminary injunction of further mine expansion. The trial court denied the injunction, finding that plaintiffs lacked standing. Plaintiffs appealed, and the Court of Appeals reversed.2 The Court analyzed the statute and found that it simply permitted "any person" to bring suit.

This Court granted leave, limited to the issue of "whether the Legislature can by statute confer standing on a party who does not satisfy the judicial test for standing. See Lee v. Macomb Co. Bd. of Comm'rs, 464 Mich. 726 (2001)."3

II. STANDARD OF REVIEW

Whether a party has standing is a question of law that we review de novo. Lee, supra at 734, 629 N.W.2d 900.

III. STANDING

First, contrary to the three concurring/dissenting opinions, one of which "disavows" its past support for Lee, supra, one of which reaffirms its past opposition to Lee, and one of which maintains its support for Lee while distinguishing it into nothingness, we reaffirm our support for the principles of standing set forth in Lee, and explain the importance of Lee for our constitutional system of separated powers and for the preservation of a judiciary operating within proper boundaries.4

The Michigan Constitution provides that the Legislature is to exercise the "legislative power" of the state, Const. 1963, art. 4, § 1, the Governor is to exercise the "executive power," Const. 1963, art. 5, § 1, and the judiciary is to exercise the "judicial power," Const. 1963, art. 6, § 1. The importance of these allocations of power is reaffirmed in Const. 1963, art. 3, § 2, which states:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

By separating the powers of government, the framers of the Michigan Constitution sought to disperse governmental power and thereby to limit its exercise. "[T]here [is] no liberty ... if the power of judging be not separated from the legislative and executive powers." Madison, The Federalist No 47.5

As a term that both defines the role of the judicial branch and limits the role of the legislative and executive branches, it is clear that the scope of the "judicial power" is a matter of considerable constitutional significance. Given the final authority of the judicial branch to accord meaning to the language of the constitution, the term "judicial power" cannot ultimately be defined by the Legislature any more than "unreasonable searches and seizures"6 or the "equal protection of the laws"7 can ultimately be defined by the Legislature.8

The "judicial power," although not specifically defined in the Michigan Constitution, is distinct from both the legislative and executive powers. As former Justice THOMAS COOLEY has written:

It is the province of judicial power [ ] to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make law for the benefit and welfare of the state. [Cooley, A Treatise on the Constitutional Limitations (Little, Brown & Co., 1886) at 92.]

The "judicial power" has traditionally been defined by a combination of considerations: the existence of a real dispute, or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making.

Perhaps the most critical element of the "judicial power" has been its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute, Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911), and one in which the plaintiff has suffered a "particularized" or personal injury. Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). Such a "particularized" injury has generally required that a plaintiff must have suffered an injury distinct from that of the public generally. Id.

Absent a "particularized" injury, there would be little that would stand in the way of the judicial branch becoming intertwined in every matter of public debate. If a taxpayer, for example, opposed the closing of a tax "loophole" by the Legislature, the legislation might be challenged in court. If a taxpayer opposed an expenditure for a public building, that, too, might be challenged in court. If a citizen disagreed with the manner in which agriculture officials were administering farm programs, or transportation officials' highway programs, or social services officials' welfare programs, those might all be challenged in court. If a citizen opposed new prison disciplinary policies, that might be challenged in court.

In each instance, the result would be to have the judicial branch of government — the least politically accountable of the branches — deciding public policy, not in response to a real dispute in which a plaintiff had suffered a distinct and personal harm, but in response to a lawsuit from a citizen who had simply not prevailed in the representative processes of government. To allow the judiciary to carry out its responsibilities in this manner is to misperceive the "judicial power," and to establish the judicial branch as a forum for giving parties who were unsuccessful in the legislative and executive processes simply another chance to prevail. To allow this authority in the judiciary would also be to establish the judicial branch as first among equals, being permitted to monitor and supervise the other branches, and effectively possessing a generalized commission to evaluate and second-guess the wisdom of their policies. As the United States Supreme Court observed in Mellon:

The administration of any statute ... is essentially a matter of public and not of individual concern.... The party who invokes the [judicial] power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with the people generally.... To [allow standing under a different understanding] would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which we plainly do not possess. [Id. at 487-489, 43 S.Ct. 597.]

When a broadening and redefinition of the "judicial power" comes not from the judiciary itself, usurping a power that does not belong to it, but from the Legislature purporting to confer new powers upon the judiciary, the exercise of such power is no less improper. The acceptance by one branch of the expansion of the powers of another branch is not dispositive in whether a constitutional power has been properly exercised. When the Legislature redefines the...

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