Preserve The Dunes, Inc. v. DEQ, Docket No. 231728.

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM.
• Citation: 690 N.W.2d 487,264 Mich. App. 257
• Parties: PRESERVE THE DUNES, INC., Plaintiff-Appellant, v. DEPARTMENT OF ENVIRONMENTAL QUALITY and TECHNISAND, INC., Defendants-Appellees.
• Decision Date: 22 December 2004
• Docket Number: Docket No. 231728.

690 N.W.2d 487
264 Mich. App. 257

PRESERVE THE DUNES, INC., Plaintiff-Appellant,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY and TECHNISAND, INC., Defendants-Appellees

Docket No. 231728.

Court of Appeals of Michigan.

Submitted August 25, 2004, at Lansing.

Decided October 28, 2004, at 9:00 a.m.

Released for Publication December 22, 2004.

690 N.W.2d 489

Taglia, Fette, Dumke, Passaro & Kahne, P.C. (by Thomas R. Fette), Beier Howlett, P.C. (by Jeffrey K. Haynes and L. Rider Brice, III), and Neal, Gerber, Eisenberg (by Phil C. Neal), St. Joseph; Bloomfield Hills; Chicago, IL, for the plaintiff

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and James R. Piggush, Assistant Attorney General, for the Department of Environmental Quality.

Howard & Howard Attorneys, P.C. (by James H. Geary, Susan E. Padley, and Cara J. Edwards Heflin), Kalamazoo, for TechniSand, Inc.

Before: OWENS, P.J., and MARKEY and MURRAY, JJ.

ON REMAND

PER CURIAM.

Our Supreme Court has remanded this case to this Court with an instruction to review the trial court's finding that defendant TechniSand's mining dune sand does not violate the Michigan Environmental Protection Act (MEPA), MCL 324.1701 et seq.; we are also directed to expedite our review. 471 Mich. 508, 521, 525, 684 N.W.2d 847 (2004). We do not tarry restating our prior decision,¹ or our Supreme Court's decision to the contrary. Instead, we proceed with the task at hand.

In general, we review de novo the proper application of MEPA. Preserve the Dunes, 471 Mich. at 513, 684 N.W.2d 847; Trout Unlimited, Muskegon-White River Chapter v. White Cloud (After Remand), 209 Mich.App. 452, 456, 532 N.W.2d 192 (1995). But we will not overturn a trial court's findings of fact unless they are clearly erroneous. Id.; Portage v. Kalamazoo Co. Rd. Comm., 136 Mich.App. 276, 279, 355 N.W.2d 913 (1984). A finding is clearly erroneous when evidence exists to support it but this Court is left with a definite and firm conviction that the trial court made a mistake. Id. at 279-280, 355 N.W.2d 913; Trout Unlimited, supra at 456, 532 N.W.2d 192. On appeal, we recognize that the trial court "`heard the witnesses, observed their demeanor on the stand, and was in the best position to determine their credibility and to conclude what the facts in the case really were.'" Ray v. Mason Co. Drain Comm'r, 393 Mich. 294, 303, 224 N.W.2d 883 (1975), quoting Martin v. Arndt, 356 Mich. 128, 140, 95 N.W.2d 858 (1959); see, also, MCR 2.613(C).

The trial court heard testimony over seven days, viewed the site with representatives of all parties to the suit, and made the following factual determinations. In November 1996, defendant Department of Environmental Quality (DEQ) issued a permit authorizing TechniSand to mine sand in an area partially designated as a "critical dune area" under the sand dune mining act (SDMA), MCL 324.63701 et

690 N.W.2d 490

seq., and the sand dune protection and management act (SDPMA), MCL 324.35301 et seq. The SDMA incorporates the definition of "critical dune area" found in the SDPMA. MCL 324.63702(1); MCL 324.35301(c). Plaintiff filed suit under MEPA, seeking declaratory and injunctive relief prohibiting TechniSand's proposed mining activities in that area

The 126.5 acre site at issue is one mile inland from Lake Michigan in Berrien County, east of Interstate 196. Slightly more than half (seventy-one acres) is designated as "critical dune area." The trial court found that the critical dune acreage at issue constitutes one-tenth of one percent of the statewide total of critical dune area. I-196, the Blue Star Highway, residential parcels, and county roadways separate the site from Lake Michigan. The trial court also found that "this site is the last acreage within critical dune areas in the entire state in which sand mining could be authorized by the DEQ." The trial court recognized that sand is a natural resource and that the critical dune area contained other natural resources, such as flora and fauna.

Both sides presented expert testimony. For various reasons the trial court ultimately concluded that defendants' experts were more credible than plaintiff's experts. Defendants' experts testified that the site was "typical and unexceptional as to flora in comparison with most of the 71,000 acres of critical dune area of the state." In addition, the court accepted defendants' expert's opinion that the water table and the inland dune ecosystem would not be significantly affected by TechniSand's proposed mining activity as restricted by the permit² and carried out in accord with the mining and reclamation plan. MCL 324.63704(2)(c), 324.63706. Plaintiff does not contest the trial court's factual findings, and we find no clear error.

In making its ultimate findings under MEPA, the trial court followed the road map of MCL 324.1703(1) to determine: (1) whether plaintiff established a prima facie case that TechniSand's conduct has "or is likely to pollute, impair, or destroy the air, water, or other natural resources," and, if so, (2) whether defendants rebutted plaintiff's prima facie case with evidence to the contrary, and, if not, (3) whether defendants established as an affirmative defense that "there is no feasible and prudent alternative ... and that [such] conduct is consistent with the promotion of the public health, safety, and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment, or destruction." Id.; see Ray, supra at 308-309, 224 N.W.2d 883; Nemeth v. Abonmarche Development, Inc., 457 Mich. 16, 24-25, 576 N.W.2d 641 (1998). The trial court also concluded the "[p]roper application of MEPA's impairment standard requires a statewide perspective," citing Thomas Twp. v. Sexton Corp., 173 Mich.App. 507, 517, 434 N.W.2d 644 (1988). The court applied the four factors outlined in Portage, supra at 282, 355 N.W.2d 913,³ along with other considerations,

690 N.W.2d 491

properly recognizing that the Portage factors are "not mandatory, exclusive, or dispositive," Nemeth, supra at 37, 576 N.W.2d 641, and concluded that TechniSand's proposed mining activities did not violate MEPA

MEPA, at MCL 324.1701, provides:

(1) The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.

(2) In granting relief provided by subsection (1), if there is a standard for pollution or for an antipollution device or procedure, fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state, the court may:

(a) Determine the validity, applicability, and reasonableness of the standard.

(b) If a court finds a standard to be deficient, direct the adoption of a standard approved and specified by the court.

Thus, when deciding a claim filed under MEPA, the trial court must first determine whether a pollution control standard exists and whether to apply it. MCL 324.1701(2); Nemeth, supra at 35, 576 N.W.2d 641. MCL...