Trout Unlimited, Muskegon White River Chapter v. City of White Cloud, Docket No. 137067

• Court: Court of Appeal of Michigan (US)
• Citation: 489 N.W.2d 188,195 Mich.App. 343
• Docket Number: Docket No. 137067
• Parties: TROUT UNLIMITED, MUSKEGON WHITE RIVER CHAPTER and Richard McEwen, Plaintiffs-Appellants, v. CITY OF WHITE CLOUD, Defendant-Appellee.
• Decision Date: 03 August 1992

Page 188

489 N.W.2d 188 195 Mich.App. 343 TROUT UNLIMITED, MUSKEGON WHITE RIVER CHAPTER and Richard
McEwen, Plaintiffs-Appellants,
v.
CITY OF WHITE CLOUD, Defendant-Appellee. Docket No. 137067. Court of Appeals of Michigan. Submitted June 9, 1992, at Grand Rapids.
Decided Aug. 3, 1992, at 10:10 a.m.
Released for Publication Oct. 5, 1992.

Page 189

[195 Mich.App. 344] McCroskey, Feldman, Cochrane & Brock by J. Walter Brock, Muskegon, for plaintiffs-appellants.

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

Before SHEPHERD, P.J., and CONNOR and SAPALA, ^* JJ.

SHEPHERD, Presiding Judge.

Plaintiffs appeal as of right the circuit court's judgment of no cause of action entered on January 4, 1991. We reverse and remand for new findings consistent with this opinion.

This case involves the repair and construction of a dam in the White River in Newaygo County. Since 1951, defendant has owned the dam, originally built over one hundred years ago, and has maintained a park on the lake behind the dam, providing recreational activities such as picnicking, swimming, fishing, and boating. The dam divides the upper and middle White River. The White Cloud River starts about 7.5 miles upstream from White Cloud. This section of the river, known as the Upper White River, is a blue-ribbon trout stream, a designation applied by the Michigan Department of Natural Resources to a few select rivers in Michigan. The section of the White River downstream from White Cloud to Hesperia, known as the Middle White, is 26.5 miles in length. This [195 Mich.App. 345] section of the river has been designated as a County Scenic River pursuant to the Natural River Act, M.C.L. Sec. 281.761 et seq.; M.S.A. Sec. 11.501 et seq. The Middle White ends at the Hesperia Dam, a low-head dam, whose primary function is to prevent the migration of salmon and steelhead so as to allow the development of a brown, brook, and rainbow trout fishery in the Middle and Upper White. The Lower White, which runs from Hesperia to White Lake, is of no concern to this case. Plaintiff Trout Unlimited, Muskegon-White River Chapter (TU) is a private, nonprofit corporation dedicated to preserving and improving cold-water fishing resources. Plaintiff McEwen is both a TU member and a riparian landowner on the Middle White.

On September 9, 1986, it began raining in western Michigan and continued to do so for several days, swelling most of the rivers to their breaking point and washing out nineteen dams. When it appeared that defendant's dam was in imminent danger of collapsing, defendant city officials decided to breach the dam in order to prevent the entire dam from washing away. By the time the rains stopped, the dam was virtually destroyed and the lake was reduced to a stream. Plaintiffs allege that defendant's

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breach of the dam permitted the release into the Middle White River of sand and silt that had built up in the lake behind the dam, destroying fish cover and spawning beds and killing virtually the entire fish population.

After the flood, defendant applied for and received grants of approximately $500,000 from the Federal Emergency Management Agency (FEMA) and the Community Development Block Grant Program to repair and reconstruct the dam. Defendant also applied to the DNR for the necessary permits to rebuild the dam. On November 18, [195 Mich.App. 346] 1988, the DNR denied a permit for the rebuilding of the dam. In reaching its decision, the DNR stated that the middle section of the White River would be a better trout stream if the White Cloud dam were not repaired.

To allow repair of the dam without a DNR permit, the Legislature amended the Dam Safety Act, M.C.L. Sec. 281.1301 et seq.; M.S.A. Sec. 11.420(1) et seq., by enacting 1988 P.A. 484, exempting defendant from the DNR permit requirement. The FEMA approved the project after an environmental study determined that repair of the dam would have no significant environmental effect. The dam was rebuilt in the summer of 1990 and is now in full operation.

On January 19, 1990, plaintiffs filed a thirteen-count complaint. On June 12, 1990, plaintiffs filed a motion for partial summary disposition, which, after a hearing, was denied by an order dated July 17, 1990. On July 23, 1990, plaintiffs amended their complaint to include a request for attorney fees. On September 6, 1990, the parties stipulated that no evidence would be submitted at trial concerning damages and requested the trial court to enter an opinion and order in the form of declaratory relief. Six of the thirteen counts in the complaint involve damages and were...