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

• Decision Date: 22 December 2004
• Docket Number: Docket No. 231728.
• 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.
• Court: Court of Appeal of Michigan — District of US

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.

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 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, 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 324.1701(2) specifically authorizes the court to determine the validity, reasonableness, and applicability of any standard for pollution or pollution control "and to specify a new or different pollution control standard if the agency's standard falls short of the substantive requirements of the MEPA." Nemeth, supra at 30, 576 N.W.2d 641, quoting Her Majesty the Queen v. Detroit, 874 F.2d 332, 337 (C.A.6, 1989) (emphasis in Queen).

Plaintiff argues that the trial court erred by considering how the proposed mining would affect the total critical dune area in the state because each and every critical dune area must be protected unless one of the two exceptions in MCL 324.63702 applies. But our Supreme Court's holding in the present case that "the SDMA does not contain an antipollution standard," and eligibility for a sand dune mining permit under § 63702 is "unrelated to whether [TechniSand's] proposed activities on the property violate MEPA" fatally undercut plaintiff's argument. 471 Mich. at 516, 519, 684 N.W.2d 847.

Plaintiff also claims that the Legislature established applicable pollution control standards in its findings in § 35302 of the SDPMA, MCL 324.35302:

(a) The critical dune areas of this state are a unique, irreplaceable, and fragile resource that provide significant recreational, economic, scientific, geological, scenic, botanical, educational, agricultural, and ecological benefits to the people of this state and to people from other states and countries who visit this resource.

(b) Local units of government should have the opportunity to exercise the primary role in protecting and managing critical dune areas in accordance with this part.

(c) The benefits derived from alteration, industrial, residential, commercial, agricultural, silvicultural, and the recreational use of critical dune areas shall occur only when the protection of the environment and the ecology of the critical dune areas for the benefit of the present and future generations is assured.

Plaintiff argues that because the Legislature found that sand dunes are "unique" and "irreplaceable," the scope of the analysis of the environmental effect of sand mining must be limited to the particular dune that will be impaired or destroyed.

The trial court rejected subsections b and c of MCL 324.35302 as pollution standards, but ruled that it would give subsection a "due weight." The court determined that because subsection b deals with the role of local government in the protection of dunes, it could not be construed as a pollution standard. Furthermore, the word "use" in subsection c could not apply to the DEQ in granting permits for sand mining because the definition of "use" in the SDPMA expressly excludes sand mining under the SDMA.⁴ The trial court re...