MICHIGAN CITIZENS FOR WATER CONSERVATION v NESTLÉ WATERS NORTH AMERICA INC
Docket Nos. 254202, 256153
Court of Appeals of Michigan
Submitted June 14, 2005. Decided November 29, 2005.
269 Mich. App. 25
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MICHIGAN CITIZENS FOR WATER CONSERVATION v NESTLÉ WATERS NORTH AMERICA INC
Docket Nos. 254202, 256153. Submitted June 14, 2005, at Lansing. Decided November 29, 2005, at 9:00 a.m. Leave to appeal sought.
Michigan Citizens for Water Conservation (MCWC) and others brought an action in the Mecosta Circuit Court against Nestlé Waters North America Inc. and others, alleging violations of various common-law doctrines and environmental statutes in connection with Nestlé‘s withdrawal of groundwater for sale as bottled spring water. The plaintiffs moved for summary disposition on their allegations that the withdrawal of water was unlawful under the common law applicable to riparian rights and to groundwater and was a violation of the public trust. The court, Lawrence C. Root, J., determined that the plaintiffs’ common-law claims were governed by the law applicable to groundwater withdrawals rather than riparian law, but ruled that diminishment of riparian flow could constitute an actionable injury under groundwater law. The court granted the defendants summary disposition with respect to the claims concerning riparian rights and the public trust, and the case proceeded to a bench trial on the plaintiffs’ groundwater claim and their claim under the
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The Court of Appeals held:
1. The trial court‘s findings of fact were not clearly erroneous. While one might disagree with the specific findings made, they were adequately and plausibly supported by the testimony and documentary evidence. It was for the trial court to resolve issues regarding the weight and credibility of the expert opinions presented. There were no factual errors warranting a new trial.
2. The trial court did not abuse its discretion by refusing to reopen the proofs. When evaluating whether a trial court abused its discretion on a motion to reopen the proofs, a reviewing court will consider (1) the timing of the motion, (2) whether the adverse party would be surprised, deceived, or disadvantaged by reopening the proofs, and (3) whether there would be inconvenience to the trial court, the parties, or counsel. Reopening the proofs in this complicated environmental case would necessitate further expert testimony regarding the proper interpretation of the data. Because data were continuously collected, the potential existed for a never-ending cycle of new evidence and interpretation. The trial court made its ruling on the basis of valid considerations of finality and the limited probative value of new data given the long-term data already available.
3. The trial court erred by applying a hybrid rule of its own making to the plaintiffs’ claim that Nestlé‘s groundwater withdrawals unlawfully interfered with their riparian rights. The reasonable use balancing test first stated in Dumont v Kellogg, 29 Mich 420 (1874), for competing riparian owners also applies to groundwater use and is the law applicable to disputes between riparian and groundwater users. The process of balancing competing water uses seeks to ensure a fair participation in the use of water for the greatest number of users, and a court should attempt to strike a proper balance between protecting the rights of the complaining party and preserving as many beneficial uses of the common resource as is feasible under the circumstances. The use itself must be reasonable, and a water use that has little value or is excessive or harmful is not entitled to protection. The law will redress only unreasonable harms. Thus, a plaintiff must demonstrate that the defendant‘s use of the water substantially interfered with the plaintiff‘s own reasonable use.
4. While the nature of the reasonable use balancing test requires that the appropriate factors be ascertained on a case-by-case basis, several factors will always be relevant. These include (1) the purpose of the water use, (2) the suitability of the use to the location, (3) the extent and amount of harm, (4) the benefits of the
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use, (5) the necessity of the amount and manner of the water use, and (6) any other facts that may bear on the reasonableness of the use.
5. When determining the purpose of the water use for the first factor, the court should consider whether the use is for a natural or an artificial purpose and whether the use benefits the land from which the water is extracted. Natural uses include those uses necessary to the existence of the user and his or her family, such as use of the water for drinking and household needs. Artificial uses are those that increase one‘s comfort and prosperity but are not essential to existence, such as uses for commercial profit and recreation. Natural water uses are preferred over artificial uses. Water uses that benefit the riparian land or the land from which the groundwater was removed are given preference over uses that ship the water away or otherwise benefit land unconnected with the location from which the water was extracted.
6. To assess the suitability of the use to the location, the court should examine the nature of the water source and its attributes, including the size of the water source. The uses to which a particular water source is customarily put are relevant to determining whether a new use is suitable to the area. The use must fit into the pattern of other uses to cause as little disruption as possible.
7. With regard to the third and fourth factors, the court should examine not only the economic harm and benefits to the parties, but also the social benefits and costs of the water use, such as its effect on fishing, navigation, and conservation. Negative social effects should weigh against the use, while positive social effects should weigh in favor of a determination of reasonableness. The traditional use employed in the locality of the resource may be a guide to what the community considers reasonable. The protection of existing water uses is also an important consideration.
8. With respect to the fifth factor, the court should examine the extent, duration, necessity, and application of the use, including any effects on the quantity, quality, and level of the water. An excessive or unnecessary amount or method of water use that harms another‘s use is unreasonable. The failure to take steps or make modifications that can readily mitigate or eliminate the harm caused by a water use may make the particular use unreasonable.
9. Applying the factors to this case, Nestlé‘s proposed withdrawals at the maximum rate permitted would be unreasonable under the circumstances. The trial court correctly determined that Nestlé‘s water withdrawals unlawfully interfered with the plain-
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tiffs’ riparian water uses, albeit for the wrong reason. The plaintiffs alleged that Nestlé‘s groundwater withdrawals interfered with their right to use the Dead Stream for recreational boating, wildlife observation, swimming, and fishing and diminished the aesthetic value of their riparian land. Such recreational and aesthetic uses, including the use of riparian waters as a restful retreat, are reasonable uses worthy of protection. Nestlé‘s use of the water serves a beneficial purpose through employment and investment in the community, and the provision of water to the general public is an economically and socially beneficial use of the water. All parties use the water for artificial purposes, but the plaintiffs’ uses are directly related to the use and enjoyment of their riparian lands. Given the dramatic effect of the proposed withdrawals on stream levels and flow, and the recreational uses traditionally made of the bodies of water involved, the area is not well suited for high-volume water extraction. The harms inflicted on the riparian plaintiffs and the community are significantly offset by the economic benefits. Nestlé has other options for obtaining suitable water for use at its plant, however, and need not maintain such a high pumping level. Permitting groundwater withdrawals at the maximum rate would provide Nestlé more than a fair participation in the common water resources. Because Nestlé is in the best position to spread the costs incurred by a reduction in its water use, it should bear a greater portion of that burden.
10. Because of the unique nature of riparian rights, an injunction of limited scope is the only adequate remedy to the extent that Nestlé‘s water withdrawals are inconsistent with the plaintiffs’ correspondent right to make use of the same water resources. The plaintiffs will suffer substantial harm to their riparian rights if the maximum pumping rate is permitted, and they have no adequate remedy at law because an award of damages in gross for the complete loss of their riparian rights is inappropriate. On remand, the trial court must hold a hearing to determine what level of water extraction will meet the criteria outlined and modify its injunction accordingly.
11. The plaintiffs have standing to allege a MEPA claim with respect to all the natural resources at issue in this case. There was no evidence that the plaintiffs actually used or physically participated in activities on the Osprey Lake impoundment and wetlands 112, 115, and 301. Because of the complex, reciprocal nature of the ecosystem involved and the hydrologic interaction, connection, or interrelationship between all the water resources and Nestlé‘s pumping activities, however, environmental injuries to the im-
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poundment and those wetlands play a role in any harm caused to the Dead Stream, its wetlands, and Thompson Lake, which are bodies of water used by, and adjacent to property owned by, the plaintiffs and not subject to a standing challenge. As such, the plaintiffs could allege an injury in fact or an invasion of a legally protected interest where concrete harm was caused not only to the natural resources bounding their properties but also the other outlying resources, without relying on the MEPA standing provision,
12. The trial court erroneously determined that the plaintiffs had established a prima facie violation of MEPA. A plaintiff in a MEPA action must make a prima facie case that the defendant has or is likely to pollute, impair, or destroy the air, water, or other natural resources. MEPA, however, does not impose specific requirements or standards. Instead, the trial court must (1) make detailed and specific findings with regard to the defendant‘s conduct or (2) examine the validity, applicability, and reasonableness of a pollution control standard fixed by statute or rule. If the primary purpose of a statute used as a pollution control standard is to protect the natural resources or to prevent pollution and environmental degradation, a violation of that statute can establish a prima facie case under MEPA. The trial court did not make specific findings in this case, but adopted the inland lakes and streams act (ILSA),
13. The trial court properly determined that the Dead Stream is not subject to the public trust and properly dismissed the plaintiffs’ public trust claim. The only bodies of water subject to the public trust in Michigan are navigable bodies of water, which are those lakes and streams that meet the log-floatation test for navigability. That test requires the capacity to float large mill logs. The plaintiffs could have demonstrated that the stream was navigable by presenting evidence that it was historically used to float logs, by demonstrating through tests that the stream can
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actually support the floatation of logs, or through comparison with streams already determined to be navigable, but failed to do so.
14. The trial court abused its discretion by awarding as costs expert witness fees not authorized by statute or court rule. Because the plaintiffs were prevailing parties, an award of costs is appropriate. Moreover, the costs allowed under MEPA pursuant to
Affirmed is part, reversed in part, and remanded for further proceedings; stay modified and continued.
SMOLENSKI, J., would conclude that the plaintiffs lack standing to sue under MEPA for claims concerning the Osprey Lake impoundment and wetlands 112, 115, and 301. As a nonprofit organization, the MCWC has standing to the same extent as its members. No member of the MCWC, including the individual plaintiffs, however, uses these bodies of water, and thus the plaintiffs cannot demonstrate that they have suffered or would suffer a concrete and particularized injury distinct from that of the public generally. While
MURPHY, P.J., concurred with Judge SMOLENSKI‘s opinion in all respects except its conclusion regarding the plaintiffs’ standing to raise their MEPA claim.
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WHITE, J., concurred with Judge MURPHY‘s opinion regarding MEPA standing, and concurred with Judge SMOLENSKI‘S opinion with respect to the groundwater and public trust claims and the ancillary issues. Judge WHITE wrote separately to state that, while a mere failure to obtain a permit under ILSA or the WPA does not establish a prima facie violation of MEPA, the trial court did not erroneously adopt the permitting provisions of those statutes as applicable pollution control standards. The trial court expressly stated its understanding that this case involves impairment rather than pollution, and referred to ILSA and the WPA for guidance in developing an impairment standard. Because the trial court did not explain how its earlier findings of fact revealed a level of impairment requiring judicial intervention under MEPA, however, the case must be remanded.
1. TRIAL - MOTIONS TO REOPEN PROOFS - STANDARD OF REVIEW.
A motion to reopen the proofs is a matter within the trial court‘s discretion; an abuse of discretion is found when an unprejudiced person, considering the facts on which the trial court relied, would find no justification or excuse for the ruling made; when evaluating whether a trial court abused its discretion on a motion to reopen the proofs, a reviewing court should consider (1) the timing of the motion, (2) whether the adverse party would be surprised, deceived, or disadvantaged by reopening the proofs, and (3) whether there would be inconvenience to the court, the parties, or counsel.
2. WATERS AND WATERCOURSES - COMPETING WATER USES - RIPARIAN AND GROUNDWATER USE - REASONABLE USE BALANCING TEST.
A reasonable use balancing test that ensures a fair participation in the use of water for the greatest number of users, protects a use that is itself reasonable, and redresses substantial interference with another‘s reasonable use is the test that applies to riparian use, groundwater use, and disputes between riparian and groundwater users; the appropriate factors to determine what constitutes a reasonable use in the case of competing water uses must be ascertained on a case-by-case basis, but include (1) the purpose of the use, (2) the suitability of the use to the location, (3) the extent and amount of the harm, (4) the benefits of the use, (5) the necessity of the amount and manner of the water use, and (6) any other factor that may bear on the reasonableness of the use.
3. DAMAGES - RIPARIAN RIGHTS.
An award of damages in gross for the complete loss of riparian water rights is inappropriate and is not an adequate remedy at law.
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4. ENVIRONMENT - MICHIGAN ENVIRONMENTAL PROTECTION ACT - PRIMA FACIE CASE - POLLUTION CONTROL STANDARDS.
A trial court may determine that a plaintiff has established a prima facie case of a violation of the Michigan environmental protection act (MEPA) by (1) making detailed and specific findings that the defendant‘s conduct has polluted, destroyed, or impaired, or is likely to pollute, impair, or destroy, the air, water, or other natural resources or (2) finding that the defendant has violated an applicable pollution control standard fixed by rule or statute; a violation of a statute used as a pollution control standard can establish a prima facie case under MEPA if the purpose of the statute is to protect the natural resources or to prevent pollution and environmental degradation; the inland lakes and streams act and the wetlands protection act are not pollution control standards for which a violation can support a prima facie violation of MEPA (
5. NAVIGABLE WATERS - PUBLIC TRUST DOCTRINE - TEST FOR NAVIGABILITY.
The public trust doctrine in Michigan applies only to navigable waters, which are those lakes and streams that have a capacity to float large mill logs; the fact that a stream may not be able to float a mill log in an ordinary stage of water does not alter its navigable character because the public right is determined by a valuable rather than a continual use; navigability may be shown by evidence that a stream was historically used to float logs, by demonstrating through tests that the stream can actually support the floatation of logs, or through comparison with streams already determined to be navigable.
6. COSTS - MICHIGAN ENVIRONMENTAL PROTECTION ACT - EXPERT WITNESS FEES - TRIAL PREPARATION.
The costs allowed under the Michigan environmental protection act are the same as the costs allowed under the part of the Revised Judicature Act governing costs; expert witnesses are properly compensated for court time and the time required to prepare for their testimony as expert witnesses, but conferences with counsel for purposes such as educating counsel about expert appraisals, strategy sessions, and critical assessment of an opposing party‘s position are not properly compensable with expert witness fees (
Olson, Bzdok & Howard, P.C. (by James M. Olson and Scott W. Howard); Chris A. Shafer; and Samuels Law Office (by James R. Samuels) for Michigan Citi-
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zens for Water Conservation, R. J. and Barbara Doyle, and Jeffrey R. and Shelly M. Sapp.
Mika Meyers Beckett & Jones PLC (by John M. DeVries, Fredric N. Goldberg, and Douglas A. Donnell), Warner Norcross & Judd LLP (by Eugene E. Smary and Robert J. Jonker), Kilpatrick Stockton LLP (by David M. Zacks and Adam H. Charnes), and Porteous Law Office, P.C. (by David L. Porteous), for Nestlé Waters North America Inc.
Amici Curiae:
McClelland & Anderson, L.L.P. (by Gregory L. McClelland and Melissa A. Hagen), for the Michigan Association of Realtors.
Smith, Martin, Powers & Knier, P.C. (by David L. Powers); and Bancroft Associates PLLC (by Viet D. Dinh and Christopher D. Thuma) for Save Our Shoreline.
Noah D. Hall for the National Wildlife Foundation, the Michigan United Conservation Clubs, and the Michigan Council of Trout Unlimited.
Eric D. Williams for the Mecosta County Development Corporation, Michigan Works! West Central, and the Mecosta County Area Chamber of Commerce.
Koernke & Crampton, P.C. (by Thomas F. Koernke), for the Michigan Water Environment Association.
Law, Weathers & Richardson, P.C. (by Clifford H. Bloom and Michael J. Roth), for the Michigan Lake & Stream Associations, Inc.
Honigman Miller Schwartz and Cohn LLP (by John D. Pirich, Timothy Sawyer Knowlton, Grant R. Trigger, and S. Lee Johnson) for the Michigan Chamber of
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Commerce, the Michigan Chemistry Council, and the Michigan Agri-Business Association.
Clark Hill PLC (by F. R. Damm, David D. Grande-Cassell, and Aaron O. Matthews) for the Michigan Manufacturers Association.
McKay & McKay (by Lawrence I. McKay III) for the Anglers of the AuSauble, Inc.; and the Great Lakes Council, Inc. of the Federation of Fly Fishers.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and S. Peter Manning and Sara R. Gosman, Assistant Attorneys General, for the Department of Environmental Quality.
Michael A. Cox, Attorney General, for the Attorney General.
Before: MURPHY, P.J., and WHITE and SMOLENSKI, JJ.
SMOLENSKI, J. In Docket No. 254202, defendant Nestlé Waters North America Inc. (Nestlé) appeals as of right the trial court‘s imposition of an injunction barring it from withdrawing any groundwater from property owned by Donald Patrick Bollman and Nancy Gale Bollman, doing business as Pat Bollman Enterprises (the Bollmans).1 Plaintiffs cross-appeal the trial court‘s earlier decision to grant defendants partial summary disposition on plaintiffs’ public trust claim. In Docket No. 256153, Nestlé appeals as of right the trial court‘s grant of costs to plaintiffs.2 We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Notes
The court stated:
The task then becomes one of finding or establishing a standard or standards to measure Defendants’ water-extraction activities against to determine if such actions result in the impairment of the natural resources involved in this case (destruction or pollution are not argued as being involved in Plaintiffs’ MEPA claim, only impairment).
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I. FACTS AND PROCEDURAL HISTORY
The events leading to this appeal began when Nestlé‘s predecessor in interest, Great Spring Waters of America, Inc., a subsidiary of Perrier Group of America, Inc.,3 began taking steps to construct a spring water bottling plant in Mecosta County. In December 2000, defendant purchased the groundwater rights to the Bollmans’ property located north of the Osprey Lake impoundment and referred to as Sanctuary Springs.4 The Osprey Lake impoundment is a man-made body of water created by the damming of the Dead Stream.5 The Dead Stream originates from springs that are now obscured by the Osprey Lake impoundment and flows generally east and then south until it meets the channel between Blue Lake and Lake Mecosta. Shortly after defendant announced its plans to build its spring water bottling plant, the nonprofit corporation Michigan Citizens for Water Conservation (MCWC) was formed to represent the interests of riparian property owners6 in the vicinity of the proposed wells, as well as other interested persons.
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In January and February 2001, defendant installed two wells on the Sanctuary Springs site. Two more wells were installed in July and August 2001. Permits to use the wells were issued by the Michigan Department of Environmental Quality (DEQ) in August 2001 and February 2002. The combined maximum pumping rate permitted for the four wells is 400 gallons per minute (gpm).
In the summer of 2001, defendant began to construct its bottling plant approximately 12 miles from Sanctuary Springs.7 In June 2001, the MCWC8 filed a complaint, which in part sought an injunction against the construction of the bottling plant. The trial court denied the MCWC‘s request for an injunction because the construction of the plant did not itself constitute the harm sought to be enjoined by the MCWC.9
In September 2001, the MCWC filed its first amended complaint.10 In count I, the MCWC requested an injunction against defendant‘s construction of wells, wellhouses, and the pipeline for water extraction from Sanctuary Springs. Count II alleged that defendant‘s
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withdrawal of water would not be lawful under the common law applicable to riparian water rights. Count III alleged that defendant‘s withdrawal of water was unreasonable under the common law applicable to groundwater. Count IV alleged that the waters of Sanctuary Springs are subject to the public trust and, consequently, defendant is without the power to withdraw, divert, diminish, or use the water in a way that alienates or destroys the public‘s title. Count V alleged that defendant‘s use of the waters would constitute an unlawful taking of public resources. Finally, count VI alleged that defendant‘s withdrawals would violate the
In May 2002, plaintiffs filed a motion for summary disposition on counts II to IV.12 In opposition to plaintiffs’ motion for summary disposition, defendant argued that the riparian and public trust doctrines did not apply to defendant‘s withdrawal of groundwater. In its ruling, the trial court stated, as a matter of law, that the Dead Stream was not navigable and, therefore, the public trust doctrine did not apply to it. The court also determined that plaintiffs’ common-law claims were not governed by riparian law, but by the law applicable to groundwater withdrawals. However, the trial court ruled that diminishment of riparian flow could constitute an actionable injury under groundwater law.13 For
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these reasons, the trial court granted summary disposition in favor of defendants with respect to count II (riparian rights) and count IV (public trust). At a later summary disposition hearing, the trial court concluded that count V failed to state a claim and dismissed it as well.14 As a result of these pretrial proceedings, the only counts remaining to be tried were plaintiffs’ common-law groundwater claim (count III) and MEPA claim (count VI).15
The bench trial commenced on May 5, 2003, and ended on September 10, 2003. On November 25, 2003, the trial court issued its opinion and order. With regard to count III, the trial court found that defendant‘s pumping had harmed and will continue to harm plaintiffs’ riparian interests. The trial court also determined that defendant‘s water withdrawals violated MEPA by unlawfully diminishing an inland lake or stream and draining water from a wetland. The trial court concluded that these violations warranted a full injunction and ordered defendant to terminate all water withdrawals from Sanctuary Springs within 21 days of the date of the filing of its opinion and order.16
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On December 16, 2003, defendant moved for a new trial and amendment of the judgment under MCR 2.611 and 2.612. Defendant asked the trial court to set aside its opinion and order of November 25, 2003, take additional testimony and receive additional exhibits, make new findings, direct entry of a new judgment, and refer the matter to the DEQ. On February 13, 2004, the trial court issued an opinion and order on defendant‘s motions for a new trial and other relief. The trial court acknowledged some minor factual errors in its previous opinion and amended it to correct them, but in all other respects rejected defendant‘s arguments and denied the requested relief.
On December 8, 2003, plaintiffs moved for costs under
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costs on the basis that defendant might prevail on appeal. On May 27, 2004, the trial court held a hearing on the parties’ motions, granted plaintiffs’ request to amend the grant of costs to include apportionment under MEPA, and denied defendant‘s request for a stay.18
On March 4, 2004, under Docket No. 254202, defendant appealed as of right the trial court‘s November 25, 2003, opinion and order as amended and supplemented on February 13, 2004. On March 22, 2004, plaintiffs filed a claim of cross-appeal challenging the trial court‘s dismissal of plaintiffs’ public trust claim. On June 17, 2004, under Docket No. 256153, defendant appealed as of right the trial court‘s grant of costs to plaintiffs.19
II. FACTUAL FINDINGS
We shall first address defendant‘s argument that the trial court‘s findings were clearly erroneous and that the trial court abused its discretion by refusing to grant defendant‘s request to reopen the proofs or supplement the record.
A. STANDARDS OF REVIEW
This Court reviews the findings of fact in a bench trial for clear error. Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003). A finding is clearly erroneous when, after reviewing the entire record, this Court is left with a definite and firm conviction that a mistake has been made. Id. The clear
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error standard is highly deferential to the trial court and requires that regard be given to the trial court‘s special opportunity to judge credibility. MCR 2.613(C); People v McSwain, 259 Mich App 654, 683; 676 NW2d 236 (2003). This Court may not reverse the findings of the trier of fact simply because it is convinced that it would have decided the case differently. Beason v Beason, 435 Mich 791, 803; 460 NW2d 207 (1990), citing Anderson v Bessemer City, 470 US 564, 573-574; 105 S Ct 1504; 84 L Ed 2d 518 (1985). On the contrary, if, on the record as a whole, the trial court‘s account of the evidence is plausible, this Court may not reverse. Beason, supra at 803. However, this Court will give less deference to the factual findings of trial judges than to the factual findings of juries and will not tacitly endorse obvious errors under the guise of deference. McSwain, supra at 682-683.
A motion to reopen the proofs is a matter within the discretion of the trial court. Bonner v Ames, 356 Mich 537, 541; 97 NW2d 87 (1959). An abuse of discretion is found when an unprejudiced person, considering the facts on which the trial court relied, would find no justification or excuse for the ruling made. McSwain, supra at 685.
B. FINDINGS OF FACT
Defendant argues that the trial court‘s findings are speculative and not supported by the record.20 We disagree.
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1. WETLANDS
Defendant first questions how the trial court could find that the predicted drop in the water level of wetlands 112, 115, 301 and the Dead Stream wetlands would exceed the predictions of both defendant‘s and plaintiffs’ experts.
For wetland 112, the trial court adopted the opinion of plaintiffs’ groundwater expert, Dr. David Hyndman, as well as “the other corroborating evidence referred to,” and found that “wetland 112 will drop from three inches to one foot at a pump rate of 400 gpm....” At trial, Hyndman testified that, “in wetland 112, my expectation is that there will be a significant measurable drop that will be greater than three inches. That‘s based on, again, observations of data and the models that have been run by both myself and Dr. Andrews.”21 In Hyndman‘s May 2003 report, his model predicts a 0.7-foot drop in wetland 112, but Hyndman clarified that the predicted reductions in the wetlands “are expected to be larger than predicted by the present model because no model... can adequately describe the complex interactions between surface water and groundwater....” Furthermore, after Hyndman was recalled, he noted that direct observation had already indicated that wetland 112 had dropped up to six inches as the result of pumping at rates significantly lower than 400 gpm, and so “the declines would be much more significant than shown here. So my opinion, based on everything I‘ve seen with respect to 112, is 3 inches to even potentially greater than a foot in Wetland 112.” Therefore, the trial court‘s finding that wetland 112 will drop from 3 to 12 inches is clearly supported by the record.
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For wetland 115, the trial court stated, “Dr. Hyndman‘s opinion is that wetland 115 will suffer, hydrologically, a drop in water level of one and one half feet beyond natural cyclical effects at a pump rate of 400 gpm, and has already suffered losses at lower pump rates. I accept his opinion and adopt it.” Hyndman testified at trial that wetland 115 would drop by more than one foot. Furthermore, his model predicted a drop of 1.9 to 2.2 feet. Given that Hyndman predicted a drop greater than one foot and that his model predicted a drop of up to 2.2 feet, the record adequately supports the trial court‘s findings for wetland 115.
For wetland 301, the trial court surveyed the evidence of a connection between wetland 301 and the groundwater and stated:
Dr. Madsen22 testified regarding her observation of 301 and estimated that it was down at the time of trial some three to six inches from last fall, a time frame in which she‘d expect to see a rise in level, not a drop. She opined that two inches of drop had occurred within approximately two weeks of her observation from the nature of the exposed soils.
*
*
*
Wetland 301 is, thus, certain to have a drop at 400 gpm and appears to be having such at lower rates. Quantification of the drop on 301 is difficult. Dr. Madsen‘s observations noting a drop at pumping rates in the area of 160-200 gpm seem high, but do verify a drop at rates much below 400 gpm. Regarding the Defendants’ motion to strike Dr. Madsen‘s opinions based on drawdowns in wetland 301 in the range of three to six inches (made during her testimony of June 6), that motion is denied as there is record evidence, including Dr. Madsen‘s observations, that, if
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accepted, would indicate it may experience losses in that range.23 The issue is left to be one of credibility and weight.
Based on the above information I find that wetland 301 was experiencing drops in water level at the time of the trial in the range of two to four inches and that it will suffer a drop of twice that at the state permitted pump rate of 400 gpm.
From this it can be seen that the trial court took Madsen‘s direct observation of a drop in wetland 301 at approximately half the permitted pump rate, adjusted it downward on the basis of credibility assessments of her testimony, and then doubled it to reflect the permitted rate. Thus, the prediction for wetland 301 was based on a logical and reasonable analysis of the evidence presented at trial.
With regard to the Dead Stream wetlands, the trial court found:
Frankly, little hydrologic evidence was received at trial regarding specific measurements regarding then existing or predicted drops in the water levels in the Dead Stream wetlands. Apparently everyone was relying on their predictions regarding the Dead Stream to carry over to the immediately adjacent wetlands. This is a reasonable assumption that I accept. Defendant argued that the absence of proofs directly relating to the Dead Stream wetlands means there are no proofs of such. To the contrary, Christopher Grobbel, one of Plaintiffs’ experts in hydrology testified that a drop in the stream will result in a corresponding drop in the adjacent wetlands.24 Further, Mark Luttenton25 testified to his observation that the Dead Stream wetlands’ water level dropped around three inches
in the time between his visit on 1/6/2003 and 4/23/2003, a time frame he‘d expect to see an increase instead. Also[,] Dr. Madsen testified that she observed a drop in water level in these wetlands in the neighborhood of 4-6 inches from 10/02 and 5/03. Therefore, I find that the Dead Stream wetlands will lose at least two inches of water level, and maybe more, at a pump rate of 400 gpm, with lesser losses at lower pump rates on a straight-[line] calculation.
2. DEAD STREAM
Defendant next contends that the trial court clearly erred by finding that the Dead Stream would lose 345 gpm in flow and 2 inches in stage despite the fact that Hyndman only predicted a drop in flow of 260 to 345 gpm and a drop in stage of 1 to 2 inches. In its opinion, the trial court explained that the
Dead Stream will lose flow of 345 gpm at a pump rate of 400 gpm, a figure first calculated by Dr. Andrews and then accepted by Dr. Hyndman. The defense made much over the fact that this figure is different from, and greater than, any loss calculated by Dr. Hyndman‘s models, a point effectively replied to by Dr. Hyndman as he repeated that his models were not designed to balance all elements of this extremely complex ecosystem. His models were designed to analyze components of the system with as few variables as possible, which he satisfactorily explained as the best use of models in situations such as this one, particularly when much data is available. Dr. Hyndman accepted Dr. Andrews’ model‘s calculated loss of 345 gpm as such seemed reasonable, a conclusion I agree with.
Although the trial court stated that it came “to the generalized opinion that Dr. Hyndman‘s testimony and
At trial, Andrews testified that, at a steady-state pumping of 400 gpm, the Dead Stream would lose 345 gpm in flow. Furthermore, Hyndman testified that he and Andrews “agree that the majority of the flow that‘s being diverted as a result of the well would have gone to the Dead Stream system, and somewhere in the range of, we‘ve talked about, 260 to 345 gallons a minute.” Hyndman also explained that his models did not attempt to calculate the amount of flow diverted from the Dead Stream because he agreed with Andrews‘s determination that 345 gpm would be diverted. Hyndman clarified that “if 345 gallons per minute is diverted from Dead Stream as a result of pumping, then there will be roughly a two-inch drop based on its relationship, which is similar to what I‘ve shown earlier.” Therefore, the record supports the trial court‘s finding that the Dead Stream will lose 345 gpm in flow and that this loss will correspond to a drop of approximately 2 inches in stage.
Defendant also contends that the trial court‘s findings must be speculation because the trial court admitted that it was virtually impossible to analyze the effect on the Dead Stream of defendant‘s pumping. This statement was taken out of context. The trial court actually wrote, “[I]t is virtually impossible to get a reliable reading on the effects of Nestlé‘s operations on Dead Stream on any given day.” (Emphasis added.) The trial court‘s statement does not stand for the proposition that no findings regarding the effect on the Dead Stream of defendant‘s pumping could be made. On the
Defendant points to the trial court‘s finding that the Dead Stream‘s channel would narrow by more than four feet as the result of its pumping as an example of a failure in the trial court‘s reasoning that reveals its findings to be speculation. In making this finding, the trial court stated:
Defendants’ expert, David Cozad,26 opined that the channel of Dead Stream will narrow one to two feet on each side of the channel (2‘-4’ total) over approximately ten years, if Dr. Andrews’ opinions regarding decreases in Dead Stream flow and stage are accurate. I have found that Dr. Andrews’ opinions on such are substantially below what has and will occur, so Cozad‘s opinion must be that even more channel-narrowing will occur. Plaintiffs’ relevant expert, Mark Luttenton, opined that the channel narrowing will be to a greater degree than Cozad predicted and would occur over a longer period of time. He was not able to quantify how much more would occur than Cozad predicts, but is certain it will happen.
I find that Nestlé‘s pumping operation will result in a narrowing of the channel of the Dead Stream over time in an amount greater than four feet.
Defendant‘s argument centers on the apparent inconsistency of accepting Andrews‘s determination that 345 gpm in flow will be lost and then rejecting Cozad‘s opinion, which was based on a loss of 345 gpm in flow, regarding the amount by which the channel of the Dead Stream would narrow. However, this argument ignores the fact that the trial court relied in part on Luttenton‘s opinion that Cozad understated the amount of channel
3. HYDROLOGIC CONNECTION TO WETLAND 115
Defendant next finds fault with the trial court‘s finding that wetland 115 was affected by defendant‘s pumping. Defendant argues that it disproved plaintiffs’ theory that wetland 115 had a hydrologic connection to the well field. Despite this, defendant contends, the trial court improperly developed its own unsupported theory that there was a hydrologic connection and used this theory in making its findings.
The trial court acknowledged that whether wetland 115 was affected by defendant‘s pumping was highly contested. Hyndman testified that there was a substantial connection between wetland 115 and the well field and opined that the water levels in wetland 115 correlated well with defendant‘s pumping activities. The trial court accepted Hyndman‘s opinion that wetland
4. INCONSISTENT FACTS
Finally, defendant argues that the trial court illogically adopted inconsistent facts and accepted Hyndman‘s self-contradictory opinions over defendant‘s experts’ opinions. In its opinion, the trial court unequivocally stated that it accepted Hyndman‘s opinion on the use and validity of groundwater models, while rejecting Andrews‘s opinion on the same thing. The court explained, “Dr. Hyndman‘s approach was not to try to model the entire system to get it to balance, but rather to take a more ‘microanalysis’ approach to examining components of the system to understand them. If there is sufficient ‘hard’ evidence, even Dr. Andrews agrees that is the best approach.” At trial, Hyndman explained his approach to models:
I believe the most powerful approach, most reliable approach, is to use the data that we have and evaluate what‘s occurring on the site.
The models that I used were to evaluate hypotheses and see what types of effects are likely to be occurring in the groundwater system. And, I mean, models can be used for a variety of reasons. One can be there‘s insufficient data. Another can be you are trying to do a projection and you feel you don‘t have enough data to do so. In this case, my view is that there‘s enough data to evaluate what‘s occurring in this system mainly using data.
The inconsistencies of which defendant complains are all based on differences in the variables used by Hyndman in his models. Yet Hyndman clarified several times that he used his models to check his hypotheses, but his opinions were based primarily on the data available. Taken in this context, defendant‘s argument is really an argument that the trial court should have disregarded Hyndman‘s testimony because the variables he used from one model to the next were inconsistent and, therefore, the conclusions he drew from those models must be unreliable. However, whether this use of models renders Hyndman‘s opinions suspect is a matter of weight and credibility properly left to the trial court, McSwain, supra at 683, and this Court will not second-guess the trial court‘s credibility determination in favor of Hyndman.
There were no factual errors warranting a new trial.
C. MOTION TO REOPEN THE PROOFS
Defendant also argues the trial court erred by not permitting the reopening of proofs.28 We disagree. When
In denying defendant‘s motion to reopen the proofs,29 the trial court stated two main reasons: the need for finality in the presentation of evidence and the limited value of the data collected. The trial court recognized that, in a complicated environmental case, the reopening of the proofs to admit data would also necessitate testimony from the various experts regarding the proper interpretation of the data. Furthermore, because the data were continuously collected, by the time any new data were properly presented and interpreted, still more data would be available to the parties. Consequently, under defendant‘s theory, there was the potential for a never-ending cycle of data collection, presentation, and interpretation.
The trial court also recognized the limited probative value of the data from this isolated period, especially in the context of the data accumulated over the previous 2½ years. The trial court explained:
The problem with this argument is that it places much weight on the information since trial, without putting it in the context of the data accumulations before and even during trial. Plaintiffs’ reply, in part, that the heavy precipitation in November skews the presentation of data since trial, an argument that has merit. . . . The question is not merely what has happened since the proofs closed, but rather, how does that new data “move” the existing data analysis in its totality one way or the other. The trial evidence clearly showed that it is important to look at as long a range of information as is available to “flatten the curve” of short-term anomalies, such as unusually high precipitation periods. Since Nestle has not shown how the overall analysis would be changed if the newly-accumulated data were incorporated into it, balancing it against the long-term assessment of the trial evidence, it has not proven that merely having new information would forward the controlling inquiries.
Because the trial court made its ruling on the basis of valid considerations of finality and the limited probative value of the data, we cannot conclude that the trial court was without justification or excuse in refusing to reopen the proofs. McSwain, supra at 685. Therefore, the trial court did not abuse its discretion.
D. CONCLUSIONS
While one might disagree with the specific findings made by the trial court, they are adequately and plausibly supported by the testimony and documentary evidence in the record. Beason, supra at 803. Because the factual findings are supported in the record, we cannot say that we are left with the definite and firm conviction that the trial court made a mistake. Alan Custom Homes, supra at 512. Likewise, given the limited value of the additional data and the inconvenience that further presentations of data would entail, the trial court did not abuse its discretion by refusing to reopen the proofs. Because the trial court did not clearly err in
III. GROUNDWATER CLAIM
Defendant argues the trial court erred when it determined that defendant‘s pumping unlawfully interfered with plaintiffs’ riparian rights to the Dead Stream30 on the basis of a hybrid rule of its own making rather than the balancing test stated in 4 Restatement Torts, 2d, § 858, p 258, which, defendant contends, was adopted in Maerz v United States Steel Corp, 116 Mich App 710; 323 NW2d 524 (1982). While we disagree with defendant‘s contention that Maerz made a wholesale adoption of the Restatement‘s rule, we also reject the trial court‘s hybrid rule as contrary to the principles established by Michigan authorities dealing with competing water uses. Instead, we find that these authorities establish a reasonable use balancing test similar to the Restatement‘s rule.
A. STANDARD OF REVIEW
This Court reviews de novo, as a question of law, the proper scope and application of the common law. People v Petty, 469 Mich 108, 113; 665 NW2d 443 (2003).
B. MICHIGAN WATER LAW
In order to provide some much-needed perspective on the applicable law, we shall engage in a discussion of the
1. RIPARIAN WATER RIGHTS
Under the common law, three main doctrines have developed for dealing with riparian water rights: the English common-law rule, also known as the natural flow doctrine; the reasonable use doctrine; and the appropriation or prior use doctrine. Stoebuck & Whitman, The Law of Property (3d ed), § 7.4, pp 422-425. Of these doctrines, the natural flow doctrine and the reasonable use doctrine are relevant to the development of water law in Michigan.31
Under the natural flow doctrine, each riparian proprietor of a watercourse has a right “to have the body of water flow as it was wont to flow in nature,” qualified only by the right of other riparian proprietors to make limited use of the water. Restatement, introductory note to §§ 850 to 857, p 210.
The doctrine permits every owner to consume as much water as needed for “domestic” purposes, which generally means for personal human consumption, drinking, bathing, etc., and for watering domestic animals. Beyond this, the owner may use the water for “reasonable” artificial or commercial purposes, subject to the very large proviso that he may not substantially or materially diminish the quan
Under the reasonable use doctrine, “a riparian owner may make any and all reasonable uses of the water, as long [as] they do not unreasonably interfere with the other riparian owners’ opportunity for reasonable use.” Id. at 423. “Whether and to what extent a given use shall be allowed under the reasonable use doctrine depends upon the weighing of factors on the would-be user‘s side and balancing them against similar factors on the side of other riparian owners. No list of factors is exhaustive, because the court will consider all the circumstances that are relevant in a given case.” Id. While in theory no single factor is conclusive, “[d]omestic uses are so favored that they will generally prevail over other uses.” Id. Furthermore, while the reasonable use doctrine generally allows water to be transported and used on nonriparian lands, such uses may be disfavored over uses on riparian land. Id. at 424; see also Restatement, introductory note to §§ 850 to 857, pp 211-212.
In Dumont v Kellogg, 29 Mich 420 (1874), our Supreme Court adopted the reasonable use doctrine for competing riparian owners. The plaintiff in Dumont, a mill proprietor downstream from the defendant‘s mill, had filed suit complaining that the defendant had unlawfully interfered with his riparian rights by diminishing the flow of water to the stream below. Id. at 420. The plaintiff prevailed in the lower court, and the defendant appealed, assigning error to the jury instructions.32 Id. at 421. In reviewing the instructions pre
And in considering the case it may be remarked at the outset that it differs essentially from a case in which a stream has been diverted from its natural course and turned away from a proprietor below. No person has a right to cause such a diversion, and it is wholly a wrongful act, for which an action will lie without proof of special damage. It differs, also, from the case of an interference by a stranger, who, by any means, or for any cause, diminishes the flow of the waters; for this also is wholly wrongful, and no question of the reasonableness of his action in causing the diminution can possibly arise. And had the instructions which are excepted to been given with reference to a case of diversion, or of obstruction by a stranger, the broad terms in which the responsibility of defendant was laid down to the jury might have found abundant justification in the authorities. [Id.]
Thus, the Court determined that the jury instructions, which followed the natural flow rule, would have been applicable had the interference been caused by a stranger.33
It is therefore not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with injury, that will give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes injury is not unreasonable. In other words, the injury that is incidental to a reasonable enjoyment of the common right can demand no redress. [Id. at 425.]
Because the instructions did not properly state the reasonable use rule applicable to competing riparian owners, the Court reversed the judgment and ordered a new trial. Id. at 425-426.
What constitutes a reasonable use must be determined on a case-by-case basis. People v Hulbert, 131 Mich 156, 170; 91 NW 211 (1902). However, diversions of water from a lake or stream that do not benefit riparian lands were generally considered unreasonable per se.34 In addition, natural water uses are preferred
2. GROUNDWATER WATER LAW
As with riparian water law, there are three main common-law doctrines applicable to groundwater disputes. Stoebuck & Whitman, § 7.5, p 427.35 The first doctrine is referred to as the English rule or the absolute ownership rule, which was first stated in Acton v Blundell, 12 Mees & W 324; 152 Eng Rep 1223 (Exch, 1843). Stoebuck & Whitman, pp 427-428. Under this rule, “a possessor of land may withdraw as much underground water as he wishes, for whatever purposes he wishes, and let his neighbors look elsewhere than the law for relief.” Id. at 428.36
In America, the most prevalent rule applicable to groundwater disputes is the doctrine of reasonable use,
[a]s the doctrine has developed, it generally has been held that all uses of water upon the land from which it is extracted are “reasonable,” even if they more or less deplete the supply to the harm of neighbors, unless the purpose is malicious or the water simply wasted. But... when the question is whether water may be transported off that land for use elsewhere, this is usually found “unreasonable,” though it has sometimes been permitted. Authorities are not all agreed, but a principle that seems to harmonize the decisions is that water may be extracted for use elsewhere only up to the point that it begins to injure owners within the aquifer. [Id. at 428-429.]
The last doctrine is a variant of the reasonable use doctrine developed in California, which is often called the correlative rights doctrine. Stoebuck & Whitman, p 429. Under this doctrine,
[o]wners of land within an aquifer are viewed as having equal rights to put the water to beneficial uses upon those lands. However, an owner‘s rights do not extend to depleting his neighbor‘s supply, at least not seriously so, for in the event of a water shortage, a court may apportion the supply that is available among all the owners. It is sometimes said that this is the application of the reasonable use doctrine of flowing streams to underground water. . . . As to uses outside the land from which the water is drawn, for municipal and other uses, the rule is similar to that under the ordinary reasonable use doctrine: water may be transported only if the overlying owners have been fully supplied. [Id.]
a. SCHENK
The seminal case dealing with groundwater rights in Michigan is Schenk v City of Ann Arbor, 196 Mich 75; 163 NW 109 (1917).37 In Schenk, the city of Ann Arbor purchased land outside the city on which it planned to build a pumping station, and began pumping tests that drew approximately 3.8 million gallons of water daily for several weeks. Id. at 77-78. Numerous persons commenced actions seeking to restrain the city from pumping, including the plaintiff, because of harms allegedly caused by the pumping. Id. at 78-80. However, because the plaintiff in Schenk had successfully restored his water supply by lowering his well three feet, the trial court denied the plaintiff‘s request for an injunction, but granted damages for the actual harm already suffered. Id. at 80.
Before making its decision, the Court noted that the parties were not riparian owners and that the underground waters were percolating waters rather than waters running in a defined underground channel. The Court also noted that the city planned to pipe the water away from the lands from which it was drawn. Id. at 81. The Court then recited the rule of absolute ownership and the authorities for that rule, stating, “While this is the rule applied, and to be applied, in respect to most of the ordinary uses of land, and the ordinary operations carried on upon and in land, there is other doctrine, apparently, but not strictly, a modification of the early common-law doctrine referred to, which is sometimes called the doctrine of reasonable user, and which was introduced by equity to the law.” Id. at 82. The Court then adopted the “rule of reasonable user” for the
“This [rule] does not prevent the proper user by any landowner of the percolating waters subjacent to his soil in agriculture, manufacturing, irrigation, or otherwise, nor does it prevent any reasonable development of his land by mining or the like, although the underground water of neighboring properties may thus be interfered with or diverted; but it does prevent the withdrawal of underground waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence they are taken, if it results therefrom that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water upon his land, or if his wells, springs, or streams are thereby materially diminished in flow, or his land is rendered so arid as to be less valuable for agriculture, pasturage, or other legitimate uses.” [Id. at 84, quoting Meeker, supra at 638-639.]38
Although the city was extracting the water for use off the property from which it was extracted, and therefore was subject to the limitations of the reasonable use rule, the Court determined that the plaintiff was not entitled to an injunction because he had lowered his well and regained a supply of water and no other harm was demonstrated entitling him to equitable relief. However, the Court left open the possibility of a future injunction based on a new harm. Id. at 92. Thus, the Court adopted the traditional reasonable use rule, which permits withdrawals of water whose use is not connected with the land from which it is withdrawn,
b. POST-SCHENK DECISIONS
After Schenk, Michigan courts continued to apply the reasonable use rule stated in Schenk, but applied it in a flexible manner to ensure that no one user would be deprived of all beneficial use of its water resources.
In Bernard v City of St Louis, 220 Mich 159; 189 NW 891 (1922), our Supreme Court was again confronted with a large municipal water user whose extraction of groundwater for use off-tract impaired a local user‘s groundwater use. The plaintiffs owned a hotel that was used as a sanitarium. The hotel property had a mineral spring whose waters were pumped to the roof of the hotel for storage and eventual distribution to the guests and patients of the hotel. Id. at 160-161. The defendant owned land adjacent to the hotel on which it had sunk five wells to service the water needs of its citizens. Id. at 161. When the defendant resumed using the wells after a period of disuse, the plaintiffs sued for and received an injunction barring the defendant‘s use of the wells to the extent that the use diminished the flow or pressure of the water flowing from the plaintiffs’ well. Id. at 161-162. In deciding whether the injunction was appropriately granted, our Supreme Court stated:
We are not satisfied, however, that if the city makes reasonable use of the percolating waters and the plaintiffs do not permit it to go to waste that there will not nearly all of the time be an ample supply for the needs of both. If there should not be then the plaintiffs should not be deprived of a supply of water sufficient for their reasonable use without compensation, nor should they be required to install new machinery without compensation. [Id. at 163.]
While the Bernard Court did not state that it was employing a balancing test, its approach to solving the water dispute before it bears the hallmarks of a balancing test. The Court explicitly rejected an outright injunction against the defendant‘s off-tract water use simply because it diminished the flow and pressure of the plaintiffs’ wells. Instead, the Court ensured that both parties would be able to utilize the water supply by compelling the defendant to limit its pumping activities to a level that did not interfere with an adequate supply of water for the plaintiffs’ reasonable use. Notably, the Court did not attempt to protect the plaintiffs’ water supply as it existed before the defendant began pumping, but only protected the plaintiffs’ adequate supply of water and then only to the extent that the use was itself reasonable. The Court also determined that the defendant ought to compensate the plaintiff for any expenses incurred to maintain an adequate supply. Although still protecting on-tract uses over off-tract uses, the Court actually struck a balance between the two uses that attempted to ensure that both parties would have reasonable access to the common water supply.
In Hart v D‘Agostini, 7 Mich App 319; 151 NW2d 826 (1967), the Court continued the trend toward applying a balancing test to groundwater disputes rather than strictly applying the traditional reasonable use rule.
the Court instead examined the relevant factors and determined whether the defendants’ use was reasonable in light of those factors and the harm caused.
This shift from the strict application of the reasonable use rule, which preserves the English rule for on-tract water disputes, to a balancing approach was explicitly endorsed by the Court in Maerz. In Maerz, the Court was presented with a case involving two competing groundwater users. The plaintiffs filed a complaint against the defendant quarry alleging that the defendant‘s dewatering of the quarry caused the loss of the plaintiffs’ groundwater supply. Maerz, supra at 712. The issue before the Court was whether the defendant‘s use of the groundwater in connection with the property from which it was extracted (i.e., on-tract) was reasonable per se. Id. at 713. In attempting to ascertain the applicable standard, the Maerz Court surveyed the development of groundwater law in America beginning with the English rule of Acton, but noted that most American courts had rejected this rule in favor of modified versions. Id. at 713-714. The Maerz Court then discussed what it called the “correlative rights” rule, which it stated was adopted by the American Law Institute, as set forth in 4 Restatement Torts, 2d, § 858. Id. at 714-715.39 “Under this rule a landowner is unrestricted in his right to extract underground waters from his property up to, but not beyond, the point the exercise of such right unreasonably interferes with the similar, or correlative right, of his neighbor.” Id. at 714.
After this survey, the Maerz Court analyzed the decision in Schenk. The Maerz Court concluded that the Schenk Court adopted a correlative rights balancing test for groundwater extraction used on distant lands. The Maerz Court also disregarded as dicta the Schenk Court‘s determination that the English rule governed extractions used in connection with the land from which it was extracted. Id. at 717. The Maerz Court then analyzed the progeny of Meeker41 and Bernard and Hart, after which it concluded that “our analysis of these cases leads us to conclude that they do not establish as the law of Michigan that extraction of underground water for a purpose connected with the land from which it is withdrawn is, per se, not actionable.” Id. at 720. The Court continued, “We further hold that the principles expressed in Restatement Torts, 2d, § 858, p 258 are consistent with the Michigan adjudications on the subject and the general trend of decisions in other states, are less harsh and arbitrary and more fair and just than the English rule or lesser modifications of the English rule, and should be followed in Michigan.” Id.
3. CONCLUSION
We agree with the Maerz Court‘s conclusion that a reasonable use balancing test is consistent with the Michigan authorities governing water use.42 Beginning with Dumont and Schenk and concluding with Maerz, Michigan courts have consistently avoided strict rules that permit one water user to utilize water at the expense of an adjacent user. Instead, while employing various tests, the courts have generally sought to ensure the greatest possible access to water resources for all users while protecting certain traditional water uses. See Dumont, supra at 423-425. Michigan courts have already recognized the value of the reasonable use balancing test for that purpose. See Maerz, supra at 717-720; Hart, supra at 322-323; Dumont, supra at 423-425. Consequently, in order to recognize the interconnected nature of water sources and fully integrate
C. APPLICATION OF THE LAW
In its opinion and order, the trial court applied a hybrid rule of its own making to plaintiffs’ groundwater claim.43 This hybrid rule is not consistent with the reasonable use balancing test we have determined to be applicable to this case. Therefore, the trial court erred in applying it. However, although the trial court applied the wrong law to the facts of this case, because the record on appeal and the trial court‘s findings are sufficient for our determination of this issue, we shall proceed to apply the balancing test to the facts of this case. See, e.g., Thompson, supra at 688 (declining to decide the issue because the record was insufficient to determine the reasonableness of the use); West Michigan Environmental Action Council v Natural Resources Comm, 405 Mich 741, 754; 275 NW2d 538 (1979) (declining to remand because the record was sufficient to decide whether the predecessor of MEPA had been violated).
The Court in Hart, supra at 321, observed that “[i]n our increasingly complex and crowded society, people of necessity interfere with each other to a greater or lesser extent.” For this reason, the “right to [the] enjoyment of . . . water . . . cannot be stated in the terms of an absolute right.” Id. The reasonable use balancing test is best adapted to this reality. It recognizes that virtually every water use will have some adverse effect on the availability of this common resource. For this reason, it is not merely whether one suffers harm by a neighbor‘s water use, nor whether the quantity of water available is diminished, “but whether under all the circumstances of the case the use of the water by one is reasonable and consistent with a correspondent enjoyment of right by the other.” Dumont, supra at 424.
While the balancing test is a case-specific inquiry, there are three underlying principles that govern the process of balancing competing water uses. First, the law seeks to ensure a “fair participation” in the use of water for the greatest number of users. Id. Hence, the court should attempt to strike a proper balance between protecting the rights of the complaining party and preserving as many beneficial uses of the common resource as is feasible under the circumstances. Second, the law will only protect a use that is itself reasonable. Hulbert, supra at 173 (protecting “reasonable and ordinary” uses); Dumont, supra at 424-425; Bernard, supra at 165 (protecting “an adequate supply of water for the plaintiffs’ reasonable use“). A plaintiff whose water use has little value or is excessive or harmful will be entitled to no protection. Third, the law will not redress every harm, no matter how small, but will only redress unreasonable harms. Dumont, supra at 424-425;
Having noted these underlying principles, we now turn to the factors to be balanced when determining whether the harm caused by the defendant‘s use is unreasonable under the circumstances. In Hulbert, the Court stated:
“No statement can be made as to what is such reasonable use which will, without variation or qualification, apply to the facts of every case. But in determining whether a use is reasonable we must consider what the use is for; its extent, duration, necessity, and its application; the nature and size of the stream, and the several uses to which it is put; the extent of the injury to the one proprietor and of the benefit to the other; and all other facts which may bear upon the reasonableness of the use.” [Hulbert, supra at 170, quoting Gehlen Bros v Knorr, 101 Iowa 700, 705; 70 NW 757 (1897).]
In Thompson, supra at 688, a plurality of the Court determined that the trial court should have applied a reasonable use balancing test to determine whether the defendant‘s proposed use of the lake was reasonable under the circumstances. Because the trial court did not make the necessary findings, the Court remanded the case, with the following guidance on the factors to be considered:
Second, the trial court should examine the use itself as to its type, extent, necessity, effect on the quantity, quality, and level of the water, and the purposes of the users . . . .
Third, it is necessary to examine the proposed artificial use in relation to the consequential effects, including the benefits obtained and the detriment suffered, on the correlative rights and interests of other riparian proprietors and also on the interests of the State, including fishing, navigation, and conservation. [Id. at 688-689.]
While the nature of the balancing test requires that the appropriate factors be ascertained on a case-by-case basis, Hulbert, supra at 170, in examining Hulbert and Thompson, several factors can be discerned that will be relevant to every application of the test. These factors include (1) the purpose of the use, (2) the suitability of the use to the location, (3) the extent and amount of the harm, (4) the benefits of the use, (5) the necessity of the amount and manner of the water use, and (6) any other factor that may bear on the reasonableness of the use.46
When determining the purpose of the use, the court should consider whether the use is for an artificial or a natural purpose and whether the use benefits the land from which the water is extracted. Natural purposes include all those uses necessary to the existence of the
In assessing the suitability of the use to the location, the court should examine the nature of the water source and its attributes. Hulbert, supra at 170; Thompson, supra at 688. A particularly large aquifer, stream, or lake may be unaffected even by extensive water withdrawals, whereas a marginal water resource may be unduly strained even by relatively modest withdrawals. See Restatement, § 850A, comment d, pp 224-225. Likewise, the uses to which a particular water source is customarily put are relevant to a determination of whether a new use is suitable to the area. Thompson, supra
In assessing the harm and benefits, the court should examine not only the economic harm and benefits to the parties, but should also examine the social benefits and costs of the use, such as its effect on fishing, navigation, and conservation. Thompson, supra at 689. Negative social effects should weigh against the use, see Restatement, § 850A, comment f, p 226, and positive social effects should weigh in favor of a determination of reasonableness, Hart, supra at 323 (noting that the sewer line benefited the area). The traditional use employed in the locality where the resource resides will often be a guide to what the community considers reasonable in this context. Dumont, supra at 425. Likewise, because society benefits from predictability, the protection of existing water uses should be an important consideration in the balancing of competing water uses. See Hulbert, supra at 165, quoting Strobel v Kerr Salt Co, 164 NY 303; 58 NE 142 (1900); Restatement, § 850A, comment k, pp 233-235.
The court should also examine the extent, duration, necessity, and application of the use, including any effects on the quantity, quality, and level of the water. Hulbert, supra at 170; Thompson, supra at 688-689.50 If the amount or method of water use is excessive or unnecessary and harms another‘s use, it will be unreasonable. See Restatement, § 850A, comments h and i, pp 227-231. Furthermore, if the harm caused by a water use can be readily modified to mitigate or eliminate the
2. APPLICATION TO THE FACTS
In the present case, plaintiffs alleged that defendant‘s groundwater withdrawals interfered with their riparian rights in the Dead Stream,51 including their right to utilize the stream for recreational boating, wildlife observation, swimming, and fishing, as well as diminishing the aesthetic value of their riparian lands. While some courts have questioned the reasonableness of recreational water uses such as these, see Restatement, § 850A, comment b, p 223, a plurality of our Supreme Court has determined that recreational uses, including the use of riparian waters as a restful retreat, constitute reasonable uses, Thompson, supra at 689. In addition, we recognize that individuals often seek out and invest in riparian property for aesthetic reasons even though they may not partake of recreational activities involving the physical use of the water.52 Therefore, plaintiffs’ use of the stream is a reasonable use worthy of protection.
It is also uncontested that defendant‘s use of the disputed water serves a beneficial purpose. Testimony established that defendant‘s bottling plant employed
Plaintiffs claim that defendant‘s water withdrawals will harm their recreational and aesthetic use of the Dead Stream, but provide no evidence that defendant‘s water use has interfered or will interfere with their domestic water supplies. Likewise, defendant‘s use of the water is for commercial profit. Therefore, both uses are for artificial purposes and neither is entitled to a preference. However, plaintiffs’ uses are directly related to the use and enjoyment of their riparian land, whereas defendant‘s use is not directly related to the land from which the water is withdrawn. Hence, plaintiffs are entitled to some measure of preference as local water users.
All parties agreed that defendant‘s water withdrawals will capture water that would otherwise have entered the Dead Stream. Hence, defendant‘s water withdrawals will have a direct effect on the amount of flow in the Dead Stream. In describing the Dead Stream, the trial court noted that it was already a low-flow stream subject to many natural variables. For these reasons, the trial court found that even a modest drop in water level would have dramatic consequences for the stream.
In examining the degree of harm to the Dead Stream, the trial court found that it would lose approximately 24 percent of its base flow53 and 2 inches in stage beyond the stream‘s natural fluctuations given a withdrawal of 400 gpm. The trial court determined that this reduction in flow would raise the stream‘s temperature and cause the stream to become choked with plant life. The trial court further found that the loss of flow would cause a narrowing of the channel by at least four feet over a period of time. The trial court determined that these effects would impair the Dead Stream‘s aesthetic value and its usefulness as a fishery, and would impair recreational navigation of the stream. The loss of recreational use and the physical alteration of the Dead Stream will directly and substantially harm the riparian value of the Dead Stream. Furthermore, while these harms most directly affect those plaintiffs riparian to the Dead Stream, the loss of fishery habitat and recreational value also indirectly affects the quality of fishing and recreation in the entire Tri-lakes area.54 On the other hand, defendant‘s bottling enterprise does have
In examining the necessity of the manner and amount of defendant‘s water use, it must be noted that defendant chose the Sanctuary Springs location in order to facilitate its marketing of the extracted water as “spring water.”55 Hence, defendant‘s options for locating its wells are limited by the nature of the required water source. However, while testimony established that any reduction in the withdrawal rate below 400 gpm will result in the loss of production and jobs,56 testimony also established that defendant has augmented the supply of water at other plants by shipping it in as needed.57 In addition, by the time of the trial, defendant had already begun to explore opportunities for obtaining suitable water from other sources.58 Therefore, defendant does not need to maintain such a
3. CONCLUSION
Although defendant should be permitted to have a “fair participation” in the common water resources of the area, if defendant is permitted to pump at the maximum permitted rate, it will effectively appropriate for its own needs approximately 24 percent of the base flow of the Dead Stream. This is more than a fair participation. While plaintiffs might properly be required to suffer some harm to their use of the Dead Stream, it would be unjust to permit defendant to impose on plaintiffs the entire burden of the harms created by the depletion of the Dead Stream‘s flow while retaining all the benefits. Furthermore, because defendant is in the best position to spread the costs incurred by a reduction in its use of the water from Sanctuary Springs, it is just that it should bear a greater portion of that burden. See Restatement, § 850A(i), p 220. Therefore, taking all the factors outlined into consideration, we determine that defendant‘s proposed withdrawal of 400 gpm would be unreasonable under the circumstances.
Having determined that defendant‘s proposed withdrawal of water from Sanctuary Springs in the amount of 400 gpm will unreasonably interfere with plaintiffs’ riparian water rights in the Dead Stream, we must now determine what the appropriate remedy is under the circumstances. Because of the unique nature of riparian rights, we conclude that an injunction of limited scope is the only adequate remedy.
Injunctive relief is an extraordinary remedy that will be granted only when (1) justice requires it, (2) there is no adequate remedy at law, and (3) there exists a real and imminent danger of irreparable injury. Higgins Lake Prop Owners Ass‘n v Gerrish Twp, 255 Mich App 83, 106; 662 NW2d 387 (2003). In considering the propriety of an injunction, this Court will consider the following factors:
“(a) [T]he nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of other remedies,
(c) any unreasonable delay by the plaintiff in bringing suit,
(d) any related misconduct on the part of the plaintiff,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or judgment.” [Id., quoting Kernen v Homestead Dev Co, 232 Mich App 503, 514-515; 591 NW2d 369 (1998).]
In the present case, plaintiffs will suffer substantial harm to their riparian rights if defendant‘s planned pumping rate of 400 gpm is permitted. In addition to the loss of recreational uses in the Dead Stream, there
While we have determined that defendant‘s proposed withdrawal rate of 400 gpm would be unreasonable in light of the factors analyzed, this does not necessarily mean that defendant should be completely enjoined from making use of its wells. On the contrary, as already noted, defendant is entitled to make reasonable use of the available water resources, and plaintiffs may properly be compelled to endure some measure of loss as long as an adequate supply of water remains for their own water uses. Having made this determination, we are now confronted with the daunting task of determining what level of water extraction from Sanctuary Springs will provide a fair participation in the common water supply for defendant, but leave plaintiffs with an adequate supply of water for their own water uses. While the trial court made findings of fact sufficient to
On remand, the trial court shall hold a hearing to determine what level of water extraction from Sanctuary Springs will provide defendant with a fair participation in the common water supply while maintaining an adequate supply for plaintiffs’ water uses. Because we have found no reason to question the validity of the findings of fact already made by the trial court, no new evidence shall be permitted at the hearing except as determined to be necessary by the trial court, and the trial court shall give due regard to the trial court‘s earlier findings and credibility assessments. At the hearing, the trial court shall hear the arguments of the parties and, on the basis of these arguments, the record evidence, and the trial court‘s earlier findings, determine what level of water extraction from Sanctuary Springs will meet the criteria discussed above. Once the
E. CONCLUSION
Although the trial court erred when it applied the wrong law to plaintiffs’ groundwater claim, it correctly determined that defendant‘s water withdrawals from Sanctuary Springs unlawfully interfered with plaintiffs’ riparian water uses. This Court will uphold a trial court‘s ruling on appeal when the right result issued, albeit for the wrong reason. Gleason v Dep‘t of Transportation, 256 Mich App 1, 3; 662 NW2d 822 (2003). Therefore, we affirm the judgment in favor of plaintiffs on the groundwater claim, but remand to the trial court to determine the appropriate parameters of the injunction and modify it accordingly.
IV. MEPA61
Defendant next argues that “[t]he trial court‘s MEPA holding suffers from numerous fundamental errors and should be reversed.” Defendant contends that (1) plaintiffs lacked standing to bring a MEPA claim with respect to the Osprey Lake impoundment and wetlands 112, 115, and 301, (2) the trial court improperly utilized the inland lakes and streams act (ILSA)62 and the wetlands protection act (WPA)63 to establish per se violations of MEPA, (3) the trial court should have remanded the case to the DEQ, and (4) even under the facts found by the trial court, defendant‘s water with-
A. STANDARDS OF REVIEW
This Court reviews de novo the trial court‘s conclusions of law. Alan Custom Homes, supra at 512. Statutory interpretation is also an issue of law that is reviewed de novo. Shinholster v Annapolis Hosp, 471 Mich 540, 548; 685 NW2d 275 (2004). Finally, whether a party has standing to assert a claim is a question of law. Nat‘l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004).
B. MEPA STANDING
Defendant first argues that plaintiffs lack standing to sue under MEPA for claims respecting the Osprey Lake impoundment and wetlands 112, 115, and 301 because any adverse effect on those areas from defendant‘s pumping activities does not affect plaintiffs in a manner different from the citizenry at large.64 We agree.65
After examining the constitutional underpinnings of Michigan‘s doctrine of standing, the Court adopted the test for standing stated in Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992). To meet this test, the plaintiff must demonstrate three things:
“First, the plaintiff must have suffered an ‘injury in fact‘—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.“’ Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some
In the present case, plaintiffs are property owners along the Dead Stream and Thompson Lake and a nonprofit organization dedicated to the conservation of water and the protection of riparian interests. While a nonprofit organization has standing “to bring suit in the interest of their members where such members would have standing as individual plaintiffs,” Cleveland Cliffs, supra at 629, none of the members of the MCWC, including the Sapps and the Doyles, presented any evidence that they use the Osprey Lake impoundment or wetlands 112, 115, or 301 in any way.66 Because plaintiffs do not use these areas, they cannot demonstrate that they have suffered or would suffer a concrete and particularized injury distinct from that of the public generally. Id. at 615. Hence, under the test stated in Lee, plaintiffs do not have standing to bring a suit based on harms to the Osprey Lake impoundment and wetlands 112, 115, and 301.
However, under
In Cleveland Cliffs, the plaintiffs brought a MEPA claim seeking a preliminary injunction against the defendants’ expansion of their mining operations. The lower court denied the injunction for a lack of standing, but the Court of Appeals reversed because MEPA permitted any person to bring suit. Cleveland Cliffs, supra at 611-612. Our Supreme Court granted leave to appeal to determine whether the Legislature can confer standing broader than the judicial test for standing. Id. at 612.
The majority in Cleveland Cliffs began its analysis by reiterating that proper standing is mandated by Michigan‘s constitutional separation of powers and reaffirmed its adherence to the principles stated in Lee. Id. The Court explained:
Perhaps the most critical element of the “judicial power” has been its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute, and one in which the plaintiff has suffered a “particularized” or personal injury. Such a “particularized” injury has generally required that a plaintiff must have suffered an injury distinct from that of the public generally.
Absent a “particularized” injury, there would be little that would stand in the way of the judicial branch becoming intertwined in every matter of public debate. [Id. at 615 (citations omitted).]
Furthermore, “[t]o allow the judiciary to carry out its responsibilities in this manner is to misperceive the ‘judicial power,’ and to establish the judicial branch as a forum for giving parties who were unsuccessful in the legislative and executive processes simply another chance to prevail.” Id. at 615-616. Because the standing limitations are imposed by Michigan‘s constitution, “[w]hen a broadening and redefinition of the ‘judicial power’ comes not from the judiciary itself, usurping a
Although the majority in Cleveland Cliffs declined to specifically examine the constitutionality of
C. MEPA STANDARDS
We shall next address defendant‘s argument that the trial court improperly determined that defendant‘s water withdrawals violated ILSA and the WPA and, therefore, constituted a prima facie violation of MEPA.
1. ESTABLISHING A MEPA CLAIM
Under MEPA, a party may maintain an action 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.”
Under MEPA, the trial court may also examine the validity, applicability, and reasonableness of a pollution control standard “fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state....”
Once a prima facie case is made out by the plaintiff, the burden of proceeding shifts to the defendant, who may rebut the prima facie case with evidence to the contrary.
2. PLAINTIFFS’ PRIMA FACIE CASE
In its opinion, the trial court determined that plaintiffs had made out a prima facie MEPA claim. The trial court explained:
After careful consideration of the issue, I believe [ILSA] presents an excellent standard for environmental protection, which neither the parties, the DEQ nor I can authorize activities contrary to. I adopt it as one of the MEPA standards applicable to this case.
Inherent in the above discussion of [ILSA], I find that the Defendants were/are required to apply for a permit under [ILSA], a step they did not take. However, if they had, it is probable that the DEQ would have, improperly, issued one.... As such, it would be a meaningless act to order the Defendants to apply to the DEQ for an [ILSA] permit. Such finding sets out a prima facie case under MEPA that the Defendants have not rebutted, as spelled out in great detail in the factual-analysis portions of this opinion above.... Thus, the Defendants are in violation of the standard adopted herein, thus making them subject to appropriate remedies being ordered by this court in this case.
After examining ILSA, the trial court turned to the WPA.
In going through the analysis set out in [the WPA], which I find to be an appropriate standard for the protection of the environment under MEPA, I also hereby find that the balancing of this particular use of groundwater in the form of spring water from this particular ecosystem, with the resulting effects and impacts set out in the factual analysis portion of this opinion, results in the conclusion that Nestle‘s beverage bottle-water operation falls on the losing side of the balancing of the public interest in it, as compared to the price the wetlands here in contention are paying and will pay, considering all interests, including the public‘s, in these wetlands. As such, Plaintiffs are hereby found to have presented a prima facie case under MEPA using this WPA standard.
At no point in its discussion of MEPA did the trial court make specific findings, as required by Ray, supra at 309-310, that defendant‘s conduct had or was likely to pollute, impair, or destroy the air, water, or other natural resources. The only basis on which the trial court determined that plaintiffs had met their prima facie burden was that defendant‘s conduct violated two statutory standards: ILSA and the WPA. However, under
a. ILSA
ILSA prohibits a person from doing the following activities without a permit: (a) dredging or filling bottomland, (b) constructing, enlarging, extending, removing, or placing a structure on bottomland, (c) erecting, maintaining, or operating a marina, (d) creating, enlarging, or diminishing an inland lake or stream, (e) structurally interfering with the natural flow of an inland lake or stream, (f) constructing, dredging, commencing, extending, or enlarging an artificial canal, channel, ditch, lagoon, pond, lake, or similar waterway for the purpose of connecting to an existing lake or stream, and (g) connecting any natural or artificially constructed waterway, canal, channel, ditch, lagoon, pond, lake, or similar waterway with an existing inland lake or stream for navigation or any other purpose.
[t]he 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 part does not modify the rights and responsibilities of any riparian owner to the use of his or her riparian water. A permit shall specify that a project completed in accordance with this part shall not cause unlawful pollution as defined by part 31. [
MCL 324.30106 .]
Hence, under the relevant permitting standards of ILSA, the DEQ is tasked with analyzing the proposed project and determining whether the project will adversely affect the public trust or riparian rights. The DEQ is also required to assess the possible effects on the uses of such waters, “including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce, and industry.” Likewise, the DEQ is ordered not to issue a permit if the project will impair or destroy the waters or other natural resources. The statute also makes it clear that ILSA does not affect riparian rights and that a permit shall specify that a project shall not cause unlawful pollution.
b. WPA
The WPA states that a permit shall not be approved “unless the department determines that the issuance of a permit is in the public interest, that the permit is necessary to realize the benefits derived from the activity, and that the activity is otherwise lawful.”
Because the only statutes adopted by the trial court as MEPA standards were not pollution control standards, and the trial court failed to make the necessary findings “on which the plaintiff claims to have made a prima facie case,” Ray, supra at 309, the trial court erroneously determined that plaintiffs had established a prima facie violation of MEPA. Consequently, we vacate the portion of the trial court‘s opinion that concluded that defendant‘s water withdrawals violate MEPA and remand this issue for determination by the trial court.
3. REMAND
On remand, the trial court shall examine the entire record and, giving due regard to the trial court‘s find-
a. THE RESOURCES AT ISSUE
The first step in determining whether the plaintiff in a MEPA action has made out a prima facie violation is to identify the resource that has allegedly been polluted, impaired, or destroyed. Kent Co. Rd. Comm‘n v. Hunting, 170 Mich. App. 222, 233; 428 NW2d 353 (1988). Throughout the trial court‘s discussion of this issue, it addressed the nature of any impairment by reference to the harms to wetlands, lakes, and streams caused by defendant‘s pumping activities. Hence, the trial court determined, and we agree, that the relevant resources were the wetlands, lakes, and streams. However, because of the standing issue addressed in part IV(B), the only wetlands, lakes, and streams that the trial court may consider on remand are Thompson Lake, the Dead Stream, and the Dead Stream‘s wetlands. In addition, the trial court determined that this issue does not involve the pollution or destruction of these resources. Instead, the issue revolves around whether defendant‘s pumping activities at Sanctuary Springs impairs the identified resources. Therefore, the trial court shall limit itself accordingly.
b. IMPAIRMENT
In order to promote the development of the common law of environmental quality, see Ray, supra at 307, we
V. INJUNCTIVE RELIEF
Defendant next argues that the trial court improperly granted injunctive relief when it failed to articulate the standards on which it could do so and because it was not warranted. Defendant further argues that, even if it were warranted to some degree, the trial court erred when it granted an injunction barring all pumping activities at Sanctuary Springs. However, because of our disposition of defendant‘s groundwater and MEPA issues, we need not address the propriety of the trial court‘s issuance of a complete injunction against defendant‘s withdrawal of water from the Sanctuary Springs site.
VI. PUBLIC TRUST
The trial court dismissed plaintiffs’ public trust claim pursuant to a motion for summary disposition under
A. STANDARD OF REVIEW
This Court reviews de novo the grant or denial of summary disposition to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999). A motion for summary disposition brought under
B. NAVIGABILITY AND THE PUBLIC TRUST
In Bott v. Natural Resources Comm‘n, 415 Mich. 45; 327 NW2d 838 (1982), our Supreme Court was presented with two cases in which riparian property owners along dead-end lakes wanted to exclude the general public from utilizing their lakes for recreational purposes. The Court noted that it was the “established law of this state ... that the title of a riparian or littoral owner includes the bed to the thread or midpoint of the water, subject to a servitude for commercial navigation of ships and logs, and, where the waters are so navigable, for fishing.” Id. at 60. The Court further noted that the “public-trust doctrine applies only to navigable waters and not to all waters of the state.” Id. at 71 (emphasis in original). Furthermore, the Bott Court specifically rejected overtures to adopt a recreational boating test for determining navigability, id. at 71-86, and instead affirmed the log-floatation test stated in Moore v. Sanborne, 2 Mich. 519 (1853). See Bott, supra at 61.
In Moore, our Supreme Court stated:
The length and magnitude of many of our rivers, the occasions and necessities for their use, and the nature and character of our internal commerce, all require a liberal adaptation of those doctrines to our circumstances and wants, and to a condition of things, both as to capability of our streams for public use, and the occasion for such use, entirely different from, and in many respects altogether new to, those which concurred to establish the common law rule, and we accordingly find that in all the States that rule has been enlarged so as to meet the condition and wants of the public necessities of trade and commerce. [Moore, supra at 522.]
For this reason, the Court declined to adopt the strict navigable-in-fact rule that found “those rivers only are subject to the [navigational] servitude of the public
The Bott Court rejected the notion that the log-floatation test in Moore was archaic and impractical. The Court explained:
In many cases, there will undoubtedly be evidence whether a waterway was used for floating logs at an earlier time. Such evidence might justify a determination of navigability. If no reliable history is available, a litigant could produce evidence in at least two other ways. He might obtain a number of large logs and float them down the stream in question. Alternatively, he could establish navigability by surveying the body of water as the DNR did in the instant cases and comparing its dimensions (width, depth, rate of flow) to the reported dimensions of streams already found to be navigable. Comparison as well as other evidence would allow a court to make a sound determination without changing the test of navigability. [Bott, supra at 72 n 27.]
Hence, plaintiffs could have shown that the Dead Stream was navigable by presenting evidence that the stream was historically used to float logs, by demonstrating through tests that the stream can actually support the floatation of logs, or through comparison with streams already determined to be navigable.
During the summary disposition phase of this case, the trial court was presented with evidence regarding the logging activities that occurred in the vicinity of the
Although the floating of a shingle bolt may demonstrate that the Dead Stream is capable of floating a commercially viable log, Moore and Bott both require the floating of large mill logs to demonstrate navigability. Moore, supra at 526; Bott, supra at 72 n 27. Therefore, plaintiffs’ shingle bolt experiment cannot support a finding of navigability. Furthermore, while Alguire noted historical evidence of shingle bolts within the Dead Stream, there was no evidence of mill logs within the stream, and Welsh‘s testimony established that, in this region, mill logs were transported by narrow gauge railroads. Hence, plaintiffs failed to present any historical evidence that the Dead Stream was used to float mill logs. Finally, in his deposition, Cozad testified that the Dead Stream ranged from six inches to two feet in depth. In Bott, the Court determined that the creeks in that case were too shallow to permit the floatation of logs because they were only six
C. EXPANDING THE NAVIGABILITY TEST
Plaintiffs contend that Bott is properly applicable only to dead-end lakes rather than streams. We disagree with plaintiffs’ characterization of the holding in Bott.
While Bott did deal with access to dead-end lakes, the primary holding centered on the navigability of the streams that connected the dead-end lakes to other bodies of water. Bott, supra at 60. Indeed, one of the parties in Bott had actually constructed a bridge across the stream that blocked the passage of boats from the larger body of water to the lake. Id. at 58 n 3. Furthermore, the Court never limited its holding reaffirming Moore to cases involving dead-end lakes and the streams leading into them, but repeatedly referred to lakes, rivers, and streams as well as generally to the property interests of littoral and riparian owners. Bott, supra at 62, 64, 66, 72 n 27, 73, 79, 81. Hence Bott reaffirmed the rule that the log-floatation test is the only navigability test for determining whether a lake or stream is navigable and, therefore, subject to the public trust doctrine.73
In Bott, our Supreme Court rejected this same argument. The Court explained, ”Collins and Taggart hold only that the public may fish in streams found navigable under the rule of Moore v. Sanborne. Collins and Taggart voiced no dissatisfaction with the log-floatation test, and applied that test to determine the navigability of the streams in question.” Bott, supra at 68. Furthermore, the Court expressed its concern that, since Moore, many property owners have “invested their savings or wealth in reliance on a long-established definition of navigability.” Id. at 79. The Court explained:
In stating the log-floatation test of navigability the Moore Court did indeed establish a rule of navigability which varied from the English common law and the common law of many jurisdictions in the United States. In doing so, however, the Court was not overruling any binding precedent, for there was none on the issue at that early date in Michigan‘s history. The Court in Moore was writing on a blank slate—we are not. [Id. at 80.]
For this reason, the Court concluded that it was “not an appropriate forum for resolving the competing societal values which underlie this controversy,” id. at 86, and chose to retain the log-floatation test for navigability rather than adopt a recreational boating test. Consequently, the log-floatation test described in Bott is the only applicable test for determining whether a lake or stream is navigable and thereby subject to the public trust.
Plaintiffs also argue that all water within Michigan is property held in trust for the people regardless of the navigability of individual bodies of water. We disagree.
Plaintiffs mistakenly rely on People v. Collison, 85 Mich. 105; 48 NW 292 (1891), People v. Horling, 137 Mich. 406; 100 NW 691 (1904), and Collins for the proposition that the state holds all waters in trust for the public. In Collison and Horling, the Court was asked to determine the extent of the right of the state to regulate fishing. In Collison, the Court stated that, with regards to fish, it was immaterial who owned the land under the lake, because the lake was interconnected with other bodies of water and by “reason of [the] migratory habits [of fish], their ownership is in the whole people of the State, and no individual has any property right in them until they have been subjected to his control. To fish is a privilege accorded by the State, and the question of individual enjoyment is one of public privilege, and not of private right.” Collison, supra at 108. Thus the Court in Collison merely recognized that one has no property rights in migratory fish until they are reduced to one‘s control, and that the state has the right to regulate the manner in which one can lawfully capture (i.e., reduce to one‘s control) fish. Id. In Horling, the Court upheld the state‘s power to regulate fishing on a body of water that was only intermittently connected to the Grand River for the same reasons. Horling, supra at 414-415. Read in conjunction, these cases stand for the proposition that the state has the general police power to regulate fishing on bodies of water that are interconnected with public waters and do not stand for the proposition that all fish (or water) are held in trust for the public.
Plaintiffs also cite the Michigan Constitution and several statutes as proof that the state has placed all waters, including groundwater, within this state in trust.74 Yet the Constitution and the statutes cited merely recognize the importance of natural resources, including water, and exhort the Legislature to exercise its police power to conserve them. The Constitution and the statutes cited do not attempt to claim ownership of water by the state itself. Indeed, this state has long recognized that private persons obtain property rights in water on the basis of their ownership of land. See Dumont, supra at 422-424; Schenk, supra at 82-84; Bott, supra at 64. Therefore, the trial court properly determined that water, while a resource common to all Michigan citizens, is neither owned by the state nor subject to the public trust absent a determination that the body of water in question is navigable.75
The trial court properly determined that, under Michigan law, water as a general resource is not subject to the public trust and, therefore, that plaintiffs failed to state a claim under count V of their complaint. The trial court also properly determined that the only bodies of water subject to the public trust were those lakes and streams that meet the log-floatation test for navigability first described in Moore and affirmed in Bott. Because the trial court did not err when it determined that the Dead Stream did not meet the log-floatation test, the trial court properly dismissed plaintiffs’ public trust claim.
VII. TAXATION OF COSTS
Defendant next argues that the trial court erred when it granted plaintiffs’ motion for costs as prevailing parties. Specifically, defendants argue that the trial court abused its discretion by accepting plaintiffs’ characterization of their expert witness fees as being for “Trial time” without independently evaluating the fees to determine whether they were reasonable or properly designated. We agree.
A. STANDARD OF REVIEW
This Court reviews an award of costs for an abuse of discretion. Badiee v Brighton Area Schools, 265 Mich App 343, 377; 695 NW2d 521 (2005). However, what constitutes costs is governed by statute, J C Bldg Corp II v Parkhurst Homes, Inc, 217 Mich App 421, 429; 552 NW2d 466 (1996), and questions of statutory construction are reviewed de novo. Macomb Co Prosecutor v Murphy, 464 Mich 149, 157; 627 NW2d 247 (2001).
Under the Michigan Court Rules, a prevailing party is generally entitled to costs, “unless prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in writing and filed in the action.”
In the present case, plaintiffs requested costs as prevailing parties under
An expert is not automatically entitled to compensation for all services rendered. Hartland Twp v Kucykowicz, 189 Mich App 591, 599; 474 NW2d 306 (1991). “The burden of proving fees rests upon the claimant of those fees.” Campbell v Sullins, 257 Mich App 179, 201; 667 NW2d 887 (2003), quoting Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33; 335 NW2d 710 (1983). In Detroit v Lufran Co, 159 Mich App 62, 67; 406 NW2d 235 (1987), the Court determined that experts are properly compensated for court time and the time required to prepare for their testimony as experts. The Court further stated, “[W]e do not regard conferences with counsel for purposes such as educating counsel
In the present case, plaintiffs presented more than 100 pages of itemized expenses and receipts and five affidavits in three separate briefs to the trial court in support of their motion for costs. On May 7, 2004, the trial court held a hearing on the costs. At the hearing, plaintiffs’ counsel presented the court with an itemized list of all expert fees with a designation indicating whether the fee was related to trial preparation or some other category. Plaintiffs’ counsel then addressed the nature of several disputed items from the itemized list, explaining in detail why he believed they were properly taxable. Plaintiffs also argued that the trial court was not bound by the limited definition of expert witness fee costs and could award the full fees regardless of whether the fee was related to trial preparation, and even argued that the trial court could award more fees than were actually charged in the case of one expert witness who undercharged the plaintiffs. Defendant objected to several expert witness fees as unreasonable, but did state that it had no objection to some fees, including all of Luttenton‘s fees.
After hearing the parties’ arguments, the trial court determined that the costs referred to under MEPA are the costs permitted by statute and, therefore, that it
[t]he problem when applied to this case is that as I referred to in my first opinion, . . . there was a learning curve for the experts and counsel. I believe that this whole area of hydrology effects and impacts, what this all meant evolved with time and, as such, the things that seem prohibited by the language I just quoted from the [Hartland Twp] case are inextricably intertwined with the sorts of things that are clearly recoverable, and to try to back those out would be virtually impossible.
It would be an extraordinary effort here to go through the extensive materials attached to the affidavits to determine minute by minute how much of each would be pure consultation and as to how many minutes of each of those would be related to actually getting the witness prepar[ed] for trial testimony.
The court also refused to award fees greater than those actually incurred by plaintiffs and refused to give expert witness fees for nonexperts, as requested by plaintiffs’ counsel. Finally, after all the evidence had been presented, the trial court awarded plaintiffs $119,869.97 in expert witness fees and $2,342.50 in other taxable costs, for a total of $122,212.47.
In light of this record, the trial court abused its discretion. The trial court had ample evidence from which to assess the reasonableness of plaintiffs’ requested expert witness fees, but determined that it would be too difficult to separate the taxable costs from the nontaxable costs. The trial court‘s decision to simply accept plaintiffs’ characterization of the expert
C. CONCLUSION
Because the trial court improperly awarded costs to plaintiffs that are not taxable under the applicable statutes, the award must be reversed and remanded for recalculation.
VIII. APPORTIONMENT OF COSTS UNDER MEPA
Defendant also argues that the trial court abused its discretion when it amended its order under
IX. CONCLUSION
The trial court did not clearly err in making its findings of fact and did not abuse its discretion when it refused to reopen the proofs. Therefore, a new trial on those grounds is not warranted.
While the trial court improperly applied the wrong law to plaintiffs’ groundwater claim, it correctly determined that defendant‘s water withdrawals from Sanctuary Springs violated plaintiffs’ riparian rights in the Dead Stream. Therefore, we affirm the trial court‘s holding to that effect. However, we remand this issue to
The trial court improperly relied on defendant‘s purported violations of ILSA and the WPA to establish a prima facie violation of MEPA. Because these statutes do not contain pollution control standards, the violation of either of these statutes will not, by itself, establish a prima facie violation of MEPA. Therefore, in order to determine that plaintiffs had made out a prima facie case, the trial court needed to make specific findings that defendant‘s conduct would impair the resources in question, which it did not do. Consequently, the trial court erroneously determined that plaintiffs had met their prima facie burden. For these reasons, it is necessary to remand this issue to the trial court.
On remand, the trial court shall determine the applicable standard for impairment of the resources at issue and shall determine, on the entire record and giving due respect to the trial court‘s earlier findings and credibility assessments, whether plaintiffs have established a prima facie violation of the standard with respect to Thompson Lake, the Dead Stream, and the Dead Stream‘s wetlands. If the trial court determines that plaintiffs have met their prima facie burden, the trial court shall determine whether the record supports the conclusion that defendant rebutted that prima facie case. If the trial court determines that defendant failed to rebut plaintiffs’ prima facie case, it shall enter an appropriate remedy.
The trial court abused its discretion when it awarded expert witness fee costs to plaintiffs that were not authorized by statute or court rule. However, because plaintiffs are prevailing parties, the award of costs is still appropriate. Therefore, we reverse the trial court‘s grant of costs to plaintiffs and remand for the recalculation of costs consistent with this opinion.
Finally, the stay issued by this Court, see unpublished order of the Court of Appeals, entered December 16, 2003 (Docket No. 252717), shall remain in force unless modified by the trial court. However, this stay shall be modified to permit defendant to pump not more than a weekly average of 200 gpm. This stay shall expire after the trial court enters the modified injunction, as discussed in part III(D) and issues an order for relief, if warranted, under plaintiffs’ MEPA claim.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.78 We retain jurisdiction.
MURPHY, P.J. (concurring in part). It is my position that plaintiffs have standing with respect to all the natural resources at issue, which include wetlands 112, 115, and 301, the Osprey Lake impoundment, Thompson Lake, the Dead Stream, and the Dead Stream‘s wetlands. Accordingly, on remand, the trial court should be permitted to entertain arguments and render
I conclude that plaintiffs have standing because of the complex, reciprocal nature of the ecosystem that encompasses the pertinent natural resources noted above and because of the hydrologic interaction, connection, or interrelationship between these natural resources, the springs, the aquifer, and defendant Nestlé‘s pumping activities, whereby impact on one particular resource caused by Nestlé‘s pumping necessarily affects other resources in the surrounding area. Therefore, although there was no evidence that plaintiffs actually used or physically participated in activities on the Osprey Lake impoundment and wetlands 112, 115, and 301, environmental injuries to those natural resources play a role in any harm caused to the Dead Stream, the Dead Stream‘s wetlands, and Thompson Lake, which are used by and adjacent to property owned by plaintiffs and not the subject of a standing challenge. As such, plaintiffs suffered an injury in fact or an invasion of a legally protected interest where concrete harm was caused not only to the natural resources bounding their property, but also the other outlying
Because plaintiffs have standing with respect to all the natural resources under the general standing principles cited in Cleveland Cliffs, without the need to rely on MEPA‘s less demanding standing provision,
I respectfully concur.
WHITE, J. (concurring in part). I join in Judge SMOLENSKI‘s lead opinion with respect to the groundwater and public trust claims, as well as the ancillary issues. I join in Judge MURPHY‘s opinion regarding standing under the Michigan environmental protection act (MEPA),
I write separately with regard to the lead opinion‘s discussion of the trial court‘s MEPA analysis. While I
The trial court‘s opinion also demonstrates that it recognized its duty to develop a judicial common law of environmental quality and make detailed findings of fact under Ray v Mason Co Drain Comm‘r, 393 Mich 294; 224 NW2d 883 (1975), and that it referred to the ILSA and the WPA statutes for guidance in developing an impairment standard. What is lacking in the trial court‘s opinion, however, is a qualitative discussion of the impairments found by the court. While the court‘s MEPA analysis referred to, and adopted, its findings of fact, and further discussed the Department of Environmental Quality‘s incorrect interpretation of the acts as not applying to the instant situation, the court did not explain how its earlier findings revealed a level of impairment that required judicial intervention under MEPA. I believe such a discussion is required under the case law. Therefore, I concur in the remand.
In cases where there is a groundwater use that is from a water source underground that is shown to have a hydrological connection to a surface water body to which riparian rights attach, the groundwater use is of inferior legal standing than the riparian rights. In such cases, as here, if the groundwater use is off-tract and/or out of the relevant watershed, that use cannot reduce the natural flow to the riparian body. . . . The next step in the rule is in cases where, again as here, the groundwater use is shown to have measurable and proven negative impacts on the riparian body/bodies, with the analysis not having any component regarding whether the use is off-tract/out of watershed.