Trout Unlimited, Muskegon-White River Chapter v. City of White Cloud, MUSKEGON-WHITE

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM
• Citation: 209 Mich.App. 452,532 N.W.2d 192
• Decision Date: 21 March 1995
• Docket Number: MUSKEGON-WHITE,Docket No. 161437
• Parties: TROUT UNLIMITED,RIVER CHAPTER and Richard McEwen, Plaintiffs-Appellants, v. CITY OF WHITE CLOUD, Defendant-Appellee (After Remand).

Page 192

532 N.W.2d 192 209 Mich.App. 452 TROUT UNLIMITED, MUSKEGON-WHITE RIVER CHAPTER and Richard
McEwen, Plaintiffs-Appellants,
v.
CITY OF WHITE CLOUD, Defendant-Appellee (After Remand). Docket No. 161437. Court of Appeals of Michigan. Submitted Aug. 2, 1994, at Grand Rapids.
Decided March 21, 1995, at 9:15 a.m.
Released for Publication May 24, 1995.

Page 193

[209 Mich.App. 453] McCroskey, Feldman, Cochrane & Brock, P.C. by J. Walter Brock, Muskegon, for plaintiffs.

Landman, Latimer, Clink & Robb by David L. Bossenbroek, Muskegon, for defendant.

Before HOOD, P.J., and MARILYN J. KELLY and MARTLEW, ^* JJ.

ON REMAND

PER CURIAM.

Plaintiffs, Trout Unlimited, Muskegon-White River Chapter and Richard McEwen, appeal as of right from a judgment finding that they had no cause of action against the City of White Cloud. Plaintiffs had alleged violations of [209 Mich.App. 454] the Michigan Environmental Protection Act (MEPA) stemming from defendant's reconstruction of a dam on the White River, following its destruction in a flood. M.C.L. § 691.1202; M.S.A. § 14.528(202). They had also alleged negligence, trespass, nuisance and enactment of improper legislation. 1988 P.A. 484. We

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affirm in part, and remand in part for further proceedings consistent with this opinion. I

This case comes to us with a long factual and procedural history. The facts of the case are clearly set forth in Trout Unlimited, Muskegon-White River Chapter v. White Cloud, 195 Mich.App. 343, 344-346, 489 N.W.2d 188 (1992). There, a panel of our Court concluded that plaintiffs had standing to pursue their claims and remanded to the trial court. Our Court instructed the trial court that, under the MEPA, the trial court must conduct a dual inquiry to determine

whether a natural resource is involved and whether the effect of the activity on the environment rises to the level of impairment to justify the court's intervention. [Id., at p. 349, 489 N.W.2d 188.]

Initially, the Court expressed no opinion regarding plaintiffs' claims or the nature of relief.

On remand, the parties agreed that the trial judge could decide the issues based on the evidence presented at the original trial. The judge issued his opinion some months later.

Answering the two-part inquiry in Trout Unlimited, the judge found that a natural resource was affected by the dam's reconstruction. Also, he held, plaintiffs failed to show that the reconstruction rose to a level of impairment which justified judicial intervention.

[209 Mich.App. 455] The judge made the determination by applying the four-part test delineated in Kent Co. Rd. Comm. v. Hunting, 170 Mich.App. 222, 233, 428 N.W.2d 353 (1988). First, he concluded that trout were not rare, unique or endangered; only a small portion of the Middle White River had the potential to become a blue-ribbon trout stream in the absence of the reconstructed dam. Second, he concluded that the dam reconstruction project did not diminish the trout population as it existed after the flooding and dam failure. He found that the reconstructed dam would not obliterate trout fishing in the Middle White River. The judge believed the river could be maintained as a fair trout stream. Third, he found no evidence showing that the dam caused a negative impact on natural resources, other than the...