Thomas Tp. v. John Sexton Corp. of Michigan, Docket No. 102191

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: Before DANHOF; PER CURIAM
• Citation: 434 N.W.2d 644,173 Mich.App. 507
• Parties: THOMAS TOWNSHIP Petitioner-Appellee, v. JOHN SEXTON CORPORATION OF MICHIGAN, Respondent-Appellant, and Michigan United Conservation Clubs, Inc., Amicus Curiae. 173 Mich.App. 507, 434 N.W.2d 644
• Docket Number: Docket No. 102191
• Decision Date: 31 January 1989

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434 N.W.2d 644 THOMAS TOWNSHIP Petitioner-Appellee,
v.
JOHN SEXTON CORPORATION OF MICHIGAN, Respondent-Appellant,
and
Michigan United Conservation Clubs, Inc., Amicus Curiae. Docket No. 102191.
173 Mich.App. 507, 434 N.W.2d 644 Court of Appeals of Michigan. Submitted June 9, 1988.
Decided Dec. 6, 1988.
Released for Publication Jan. 31, 1989.

Page 645

[173 MICHAPP 509] Mark T. Mahlberg, and Braun, Kendrick, Finkbeiner, Schafer & Murphy by Edward J. McArdle, Saginaw, for petitioner-appellee.

Honigman, Miller, Schwartz & Cohn by Gary A. Trepod and Sandra L. Jasinski, Lansing, for respondent-appellant.

Michigan United Conservation Clubs, Inc. by M. Carol Bambery, Lansing, amicus curiae.

Before DANHOF, C.J., and SAWYER and FREEMAN, ^* JJ.

PER CURIAM.

Respondent appeals as of right from a Saginaw Circuit Court opinion and order which reversed a final decision and order of the Natural Resources Commission. The NRC granted respondent an Inland Lakes and Streams Act [173 MICHAPP 510] (ILSA) permit to drain a sixty-two-acre artificial lake in Thomas Township, Saginaw County, Michigan.

The above-mentioned lake is a clay pit which filled with surface water runoff and rain after a clay mining operation ceased in 1969. The parties' positions are illustrated by petitioner's calling the body of water a lake and respondent's calling it a clay pit. We will refer to it as a lake. The lake had an average depth of fifteen feet. It had no inlet nor outlet. Respondent owned the lake and the surrounding land.

Respondent applied for an ILSA permit to drain the lake so that it could use the excavation for a sanitary landfill. Petitioner intervened in the proceeding. After conducting a contested case hearing, a hearing officer issued a proposal for decision recommending that respondent be granted an ILSA permit to drain the lake subject to respondent's obtaining a permit to construct a sanitary landfill pursuant to the Solid Waste Management Act, M.C.L. Sec. 299.401 et seq.; M.S.A. Sec. 13.29(1) et seq. The NRC conditionally granted respondent the ILSA permit after adopting the hearing officer's findings of fact and conclusions of law.

Thomas Township petitioned for review of the NRC's final decision in the lower court under M.C.L. Sec. 24.304; M.S.A. Sec. 3.560(204) of the Administrative Procedures Act (APA), M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq. Petitioner claimed that the decision was not supported by competent, material, and substantial evidence on the whole record. Petitioner also claimed that the decision was contrary to M.C.L. Sec. 281.957; M.S.A. Sec. 11.475(7) of the ILSA, M.C.L. Sec. 281.951 et seq.; M.S.A. Sec. 11.475(1) et seq., and M.C.L. Sec. 691.1205; M.S.A. Sec. 14.528(205) of the Michigan Environmental Protection Act (MEPA), M.C.L. Sec. 691.1201 et seq.; M.S.A. Sec. 14.528(201) et seq.

[173 MICHAPP 511] The lower court found that because petitioner was appealing the NRC's final decision under the APA, the appropriate standard of review was the "substantial evidence" standard of Const. 1963, art. 6, Sec. 28; M.C.L. Sec. 24.306(1)(d); M.S.A. Sec. 3.560(206)(1)(d); MERC v. Detroit Symphony Orchestra, Inc., 393 Mich. 116, 121-124, 223 N.W.2d 283 (1974). The court declined to engage in a de novo review of the NRC's decision under MEPA, reasoning that de novo review would only have been appropriate if petitioner had filed an original action in circuit court.

The substantial evidence standard is appropriate for this review of the NRC's final decision. "Substantial evidence" means evidence which a reasoning mind would accept as sufficient to support a conclusion. It consists of more than a scintilla, but may be less than a preponderance of the evidence. Michigan appellate courts give considerable deference to administrative agencies' fact-finding and weighing of evidence. Felton v. Dep't of Social Services, 161 Mich.App. 690, 695, 411 N.W.2d 829 (1987). However, this Court reviews de

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novo actions brought under the MEPA. City of Portage v. Kalamazoo County Road Comm., 136 Mich.App. 276, 279, 355 N.W.2d 913 (1984), lv. den., 422 Mich. 883 (1985). To the extent that this case involves MEPA issues, we will use a de novo standard of review. West Michigan Environmental Action Council v. Natural Resources Comm., 405 Mich. 741, 752-754, 275 N.W.2d 538 (1979), cert. den. sub. nom. Shell Oil Co. v. West Michigan Environmental Action Council, Inc., 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307 (1979); Michigan Waste Systems v. Dep't of Natural Resources, 147 Mich.App. 729, 734-735, 383 N.W.2d 112 (1985), lv. den., 424 Mich. 900 (1986).

The ILSA provides that a person shall not "diminish an inland lake" without a permit from the Department of Natural Resources. M.C.L. Sec. 281.953(d); [173 MICHAPP 512] M.S.A. Sec. 11.475(3)(d). The criteria for issuing an ILSA permit are set forth in M.C.L. Sec. 281.957; M.S.A. Sec. 11.475(7):

"The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. In passing upon an application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state. This act shall not modify the rights and responsibilities of any riparian owner...