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

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

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.

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 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 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, 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 not tried. At trial, plaintiffs claimed the dam was unlawfully reconstructed and alleged: (1) fraud; (2) violation of the public trust; (3) violation of the constitutional prohibition against local legislation; (4) failure to obtain approval from the DNR; (5) failure to obtain approval from the county; and (6) failure to obtain approval from the Natural Resources Commission. Following a bench trial, the trial court, incorporating its opinion of December 11, 1990, entered a judgment of no cause of action in favor of defendant, ruling that plaintiffs had lacked standing.

Although plaintiffs raise various issues on appeal, the principal issue before us is whether the trial court erred in dismissing plaintiffs' claims on the ground that they lacked standing to assert their claims. Plaintiffs argue that they have standing to sue under the Michigan Constitution and the Environmental Protection Act (MEPA), M.C.L. Sec. 691.1201 et seq.; M.S.A. Sec. 14.528(201) et seq. Plaintiffs argue that Const.1963, art. 4, Sec. 52 recognized that citizens' groups have standing to challenge an activity that may violate the government's duty to manage public lands properly. This article provides:

The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water, and other resources of the state from pollution, impairment and destruction.

Plaintiffs also assert standing under the MEPA, which provides for declaratory and equitable relief upon the plaintiff making a prima facie showing that a natural resource is involved and that the effect of the activity in question on the environment rises to a level of impairment that will justify the relief. City of Portage v. Kalamazoo Co. Rd. Comm., 136 Mich.App. 276, 280, 355 N.W.2d 913 (1984). The Michigan Supreme Court in State Highway Comm. v. Vanderkloot, 392 Mich. 159, 220 N.W.2d 416 (1974), held that the MEPA is the primary statute enacted by the Legislature to fulfill its duty to protect our natural resources. Section 2(1) of the MEPA provides in part:

[A]ny person, partnership, corporation, association, organization or other legal entity 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 the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof ... for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction. [M.C.L. Sec. 691.1202(1); M.S.A. Sec. 14.528(202)(1).]

In this case, we find that plaintiffs have standing to raise their claims. To have standing, a plaintiff must demonstrate a legally protected interest that is in jeopardy of being adversely affected....