PRESERVE DUNES, INC. v. DEPT. OF ENV. QUALITY
| Decision Date | 30 July 2004 |
| Docket Number | Docket No. 122612. Calendar No. 10.,Docket No. 122611 |
| Citation | 471 Mich. 508,684 N.W.2d 847 |
| Parties | PRESERVE THE DUNES, INC., Plaintiff-Appellee, v. Michigan DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant, and TechniSand, Inc., Defendant-Appellant. Preserve the Dunes, Inc., Plaintiff-Appellee, v. Michigan Department of Environmental Quality, Defendant-Appellant, and TechniSand, Inc., Defendant. |
| Court | Michigan Supreme Court |
Neal, Gerber & Eisenberg (by Phil C. Neal), Chicago, IL, Taglia Fette Dumke & White P.C. (by Thomas R. Fette), St. Joseph, and Beier Howlett, P.C. (by Jeffrey K. Haynes and L. Rider Brice, III), Bloomfield Hills, for the plaintiff.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and James R. Piggush, Assistant Attorney General, Lansing, for defendant Department of Environmental Quality.
Howard & Howard Attorneys P.C. (by James H. Geary, Susan E. Padley, and Cara J. Edwards Heflin), Kalamazoo, for defendant TechniSand, Inc.
Clark Hill P.L.C. (by F.R. Damm, Peter D. Homes, and Paul C. Smith), Detroit, for amici curiae the Michigan Manufacturers Association.
Warner Norcross & Judd L.L.P. (by Kenneth W. Vermeulen and John J. Bursch), Grand Rapids, for amici curiae the Michigan Aggregates Association.
Law, Weathers & Richardson P.C. (by James P. Enright and Alan Bennett), Grand Rapids, for amici curiae the West Michigan Environmental Action Council, Inc.
Baker & McKenzie (by David P. Hackett and Eric W. Sievers), and Lake Michigan Federation (by Laurel O'Sullivan), Chicago, IL, for amici curiae the Lake Michigan Federation.
Defendant Michigan Department of Environmental Quality (DEQ) and defendant TechniSand, Inc., appeal a Court of Appeals decision holding that the DEQ improperly granted a sand dune mining permit to TechniSand, contrary to the Michigan environmental protection act (MEPA), MCL 324.1701 et seq.1 The only issue properly before us is whether MEPA authorizes a collateral challenge to the DEQ's decision to issue a sand dune mining permit under the sand dune mining act (SDMA), MCL 324.63701 et seq., in an action that challenges flaws in the permitting process unrelated to whether the conduct involved has polluted, impaired, or destroyed, or will likely pollute, impair, or destroy natural resources protected by MEPA. Because MEPA does not authorize such a collateral attack, we reverse the decision of the Court of Appeals and remand to that Court for expedited review of the remaining issues of plaintiff Preserve the Dunes (PTD).2
In 1991, defendant TechniSand purchased a sand mining operation with a mining permit that was set to expire in 1993. That permit did not allow mining in adjacent property, the Nadeau Site Expansion Area (NSE), which had been classified in 1989 as a "critical dune" area under MCL 324.35301 et seq.
Mining in critical dune areas was prohibited after July 5, 1989, subject to certain narrowly defined exceptions to MCL 324.63702(1):
In late 1994, TechniSand applied for an amended permit under MCL 324.63702(1)(b). In April 1995, the Department of Natural Resources (DNR)3 denied the application on the ground that TechniSand was ineligible for an amended permit under subsection 1(b) because it had purchased the operation after July 5, 1989.
In May 1996, TechniSand amended and resubmitted its application and supporting documentation to the DEQ. After a public hearing, the DEQ approved TechniSand's application on November 25, 1996. TechniSand began mining the NSE area thereafter.
Nineteen months later, in July 1998, PTD sued defendants, seeking injunctive and declaratory relief under MEPA. MEPA provides a cause of action for declaratory and other equitable relief for conduct that is likely to result in the pollution, impairment, or destruction of Michigan's natural resources. MCL 324.1701 et seq. PTD alleged that the DEQ violated MEPA when it approved TechniSand's amended mining permit. It further alleged that TechniSand's mining conduct violated MEPA. Defendants sought summary disposition because PTD's action was time-barred. The circuit court denied defendants' motion.
PTD sought summary disposition after the original circuit judge had retired. His successor ruled that PTD's claim under the SDMA was indeed time-barred. It also held that plaintiff had established a prima facie MEPA claim on the basis of TechniSand's mining conduct.
After a seven-day bench trial on the MEPA claim alone, the court ruled that defendants had successfully rebutted PTD's prima facie case and entered a judgment of no cause of action. The court specifically found that "any adverse impact on the natural resources which will result from the sand mining will not rise to the level of impairment or destruction of natural resources within the meaning of MEPA."
The Court of Appeals reversed and remanded for entry of an order granting summary disposition for PTD. The Court of Appeals concluded that (1) the DEQ's decision to grant a permit could be challenged at any time under MEPA and (2) TechniSand did not qualify for a permit under § 63702. The DEQ and TechniSand filed applications for leave to appeal in this Court, and we granted leave.4
The issue presented involves a question of statutory interpretation. We review de novo questions of statutory interpretation. Oade v. Jackson Nat'l Life Ins. Co., 465 Mich. 244, 250, 632 N.W.2d 126 (2001).
MEPA is contained in part 17, MCL 324.1701 et seq., of the Natural Resources and Environmental Protection Act, MCL 324.101 et seq. To prevail on a MEPA claim, the plaintiff must make a "prima facie showing that the conduct of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources, or the public trust in these resources...." MCL 324.1703(1). The defendant may rebut the plaintiff's showing with contrary evidence or raise an affirmative defense that (1) there is no feasible and prudent alternative to the conduct and (2) the "conduct is consistent with the promotion of the public health, safety, and welfare in light of" the state's concern with protecting Michigan's natural resources. Id. The focus of MEPA is on defendant's conduct.
MEPA provides for immediate judicial review of allegedly harmful conduct. The statute does not require exhaustion of administrative remedies before a plaintiff files suit in circuit court. MCL 324.1701(2). A court may, however, "direct the parties to seek relief" in available administrative proceedings. MCL 324.1704(2).
The DEQ may authorize mining in critical sand dune areas under two specific conditions set forth in MCL 324.63702(1)(a) and (b):
If an operator does not fall within one of these limited exceptions to the SDMA ban on mining in critical dunes areas, the inquiry ends. Nowhere in this initial inquiry is the DEQ required to evaluate the permit seeker's proposed conduct. Indeed, such an inquiry would be pointless unless the DEQ first determined that the applicant was eligible for a permit on the basis of the applicant's status as either a past owner or operator.
Once the DEQ determines that an applicant is eligible to apply for a sand dune mining permit in a critical dune area under § 63702(1), the applicant must fulfill the requirements of § 63704. Specifically, applicants are required to submit the following to the DEQ:
After the DEQ determines that the applicant has satisfied §§ 63702(1) and 63704(2), it must next determine whether the applicant meets the requirement of § 63709. Section 63709 prohibits the DEQ from approving an amended permit if the applicant's proposed conduct "is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in those resources, as provided by part 17." Thus, MEPA, in part 17, MCL 324.1701 et seq., expressly controls the DEQ's § 63709 dete...
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