*1
dune area
the
had
interest
unless
July 5,
purchased
land in 1991.
area before
1989. TechniSand
not,
not, eligible
statute,
for TechniSand
and is
Under the
permit to mine critical sand dunes.
permit
procedure
for the issuance of a
Under
SDMA,
specifically
potential
an
of
environmental
includes
examination
mining prohibition
mining might
quali-
harm that the
cause. The
procedure
antipollution
fies as an
under
mepa,
wrongly
permit
majority’s
insulates the sdma
The
determination
eligibility
judicial
from
review. Because of the
determinations
component
permit process,
the issuance
environmental
challenged
permit may
be
Court
mepa.
entry
granting
correctly
the case
of an
remanded
for
order
summary
plaintiff.
disposition for the
Mining
Michigan
—
—
—
Dune
Permits
Environ-
Mines and Minerals
Sand
mental
Act.
Protection
Michigan
protection
for
act affords no basis
judicial
Department of
a decision
Environmental
review of
Quality
mining permit
area
dune
in a critical dune
issue a sand
324.64702(1),
pursuant
focus
act is to
to MCL
because
conduct; only
protect
Michigan’s
from harmful
natural resources
Michael Thomas L. Casey, General, Solicitor R. and James Assistant Piggush, Attorney General, for Department defendant of Envi- Quality. ronmental & Attorneys
Howard Howard PC H. (by James Geary, Susan Padley, E. Heflin) Cara Edwards TechniSand, defendant Inc.
Amici Curiae: Damm, (by
Clark Hill PLC Homes, F.R. Peter D. Smith) *3 Paul C. for Michigan Manufacturers Associa- tion.
Warner Norcross & LLP (by Judd Kenneth W. Ver- Bursch) meulen and John J. for the Michigan Aggre- gates Association.
Law, & Weathers Richardson (by PC. James P. En- Bennett) right and Alan Michigan for West Environ- Council, mental Action Inc.
Baker & (by McKenzie David P. Hackett Eric W. Sievers) Michigan and Lake (by Federation Laurel O’Sullivan) for the Michigan Lake Federation. C.J. Michigan Defendant Department of
Corrigan, Environmental Quality and defendant Tech- (DEQ) Inc., niSand, appeal a Court of Appeals decision holding improperly granted a sand dune mining THE DUNES V PRESERVE Opinion of the Court environ- Michigan TechniSand, contrary seq.1 et MCL 324.1701 act protection mental (MEPA), autho- us is whether before only properly issue to issue decision challenge to the DEQ’s a collateral rizes mining dune the sand under mining permit dune a sand et action that seq., in an MCL 324.63701 act (SDMA), unrelated to process permitting in the challenges flaws or polluted, impaired, has conduct involved whether the destroy or impair, likely pollute, or destroyed, will does MEPA. Because protected resources natural attack, we reverse a collateral such not authorize remand to that of the Court decision remaining issues of review expedited Court Dunes Preserve the plaintiff (PTD).2 PROCEDURAL POSTURE FACTUAL BACKGROUND AND I. a sand purchased TechniSand defendant set to mining permit that was with mining operation not allow That did in 1993. expire Area Expansion the Nadeau Site adjacent property, in 1989 as a “critical had classified which been (NSE), seq. 324.35301 et dune” area under MCL after prohibited in critical dune areas was Mining excep- defined 5, 1989, narrowly to certain July subject 324.63702(1): to MCL tions provision part,
Notwithstanding any other of this mining permit department not a sand dune shall issue part [MCL defined in critical dune area as within a 5,1989, except either of July seq.] et after 324.35301 following circumstances: (a) dune operator to renew or amend sand seeks 5,1989, subject prior July permit that was issued applicable to a renewal and standards to the criteria *4 amendatory application. [1] instituting 253 Mich Ptd is an ad hoc App this lawsuit. 263; organization [655] NW2d 263 of local citizens formed for the purpose Mich 508 op Opinion the Court
(b) operator mining permit a sand holds dune pursuant seeking issued to section 63704 and is to amend mining permit adjacent the land is to include that to mine, property operator prior permitted and 5, 1989, July operator rights owned the land owned operator sand in for mine dune the land which the seeks permit. an amended 1994,
In late TechniSand for an applied amended 324.63702(l)(b). April 1995, In Department Natural Resources denied the (DNR)3 application ground on the that ineli- TechniSand was 1(b) gible for an amended under subsection 5, because it had purchased operation after July 1989. 1996,
In May TechniSand amended and resubmitted application its and supporting documentation to the public hearing, After a approved Tech- DEQ. 25, niSand’s on application November 1996. Tech- began mining niSand the NSE area thereafter. later, Nineteen months in July 1998, sued defen- PTD dants, seeking injunctive declaratory relief under provides a cause of for declaratory action MEPA. MEPA equitable other relief conduct that is likely to result pollution, impairment, or destruction of Michigan’s natural resources. MCL 324.1701 et seq. that alleged violated when it PTD approved TechniSand’s amended mining It fur- ther alleged TechniSand’s conduct violated sought Defendants summary disposition because MEPA. PTD’s action was time-barred. The circuit court denied defendants’ motion. time, During agency regu this the DNR was administrative mining. responsibility
lated sand this transferred from the (codified deq Reorganization to the dnr Executive Order No. 1995-16 324.99903). at MCL *5 513 the Dunes v Opinion the Court of original after the summary disposition sought PTD that PTD’s ruled retired. His successor judge had circuit It also indeed time-barred. the SDMA claim under facie MEPA prima a had established plaintiff held that conduct. of TechniSand’s claim on the basis alone, the MEPA claim trial on seven-day After a bench successfully rebut- defendants had ruled that the court no judgment a of case and entered facie prima ted PTD’s “any found that specifically court of action. The cause will resources which on the natural impact adverse to the level of not rise the sand will result from within of natural resources or destruction impairment meaning of MEPA.” remanded for reversed and Appeals Court of summary for disposition entry granting of an order PTD. (1) the concluded that of The Court DEQ’s at challenged any a could be grant decision (2) did not qualify TechniSand time under filed and TechniSand § 63702. The Court, and we in this appeal for leave applications granted leave.4
II. STANDARD OF REVIEW
statutory
question
The issue
involves
presented
of statu-
questions
de novo
We review
interpretation.
Co,
Ins
v
Nat’l
interpretation. Oade
Jackson
tory
Life
(2001).
244, 250;
632 NW2d
A.
OF MEPA
OVERVIEW
et
seq.,
MCL 324.1701
part
contained in
MEPA
Protection
and Environmental
the Natural Resources
department shall not mining issue a sand dune permit within a critical dune part area as defined in 353 [MCL seq.] 5, 324.35301 et July after except under either of following the circumstances:
(a) operator seeks to renew or amend a sand dune mining permit prior July 5,1989, subject was issued to to the criteria and applicable standards to a renewal or amendatory application.
(b) operator mining holds a sand permit dune pursuant issued to seeking section 63704 and is to amend DEQ the Dunes v
Opinion Court of the adjacent to land that is mining permit to include the mine, prior permitted to operator is property the rights land or owned 5, 1989, operator the July the owned operator seeks in the land for which mine dune sand an amended limited one of these fall within does not operator
If an dunes in critical mining on to the SDMA ban exceptions inquiry in this initial areas, the ends. Nowhere inquiry seeker’s to evaluate required is the DEQ be Indeed, inquiry an would such conduct. proposed determined first unless pointless of the on the basis eligible applicant or operator. owner past as either applicant’s status eligible applicant that an Once the determines dune in a critical mining permit dune for a sand apply must fulfill 63702(1), applicant § area are applicants Specifically, §of 63704. requirements to the following to submit DEQ: required (a) provided permit application on a form A department.
(b) proposed impact statement An environmental activity prescribed 63705. mining as section (c) plan reclamation progressive A cell-unit activity prescribed in as section proposed for the 63706. *7 (d) by mining plan prescribed section 15-year as A 324.63704(2).] [MCL
63707. applicant has determines After the 63702(1) 63704(2), next deter- and it must §§ satisfied requirement meets applicant mine whether DEQ from approv- prohibits § 63709. Section applicant’s proposed if the ing an amended air, destroy or likely pollute, impair, “is conduct trust in public or the water, natural resources or other Thus, MEPA, resources, by part 17.” provided as those 471 Mich Opinion of the Court 17, MCL 324.1701 et seq., controls part expressly § 63709 DEQ’s determinations. C. MCL 324.1701 AND NEMETH v ABONMARCHE DEVELOPMENT In addition to conferring power upon Attorney 324.1701(1) General, MCL private authorizes a cause of action under MEPA: attorney general any person may or maintain an
action in having jurisdiction the circuit court where the alleged likely violation occurred or is to occur for declara- tory equitable against any person relief protec- for the air, water, tion of the and other natural resources and the public trust in these pollution, resources from impairment, or destruction. 324.1701(2) provides: granting provided by (1), relief subsection if there is pollution standard for or for an antipollution device or
procedure, by otherwise, fixed rule or the state or an instrumentality, agency, political subdivision of the state, may: the court (b) If a court deficient, finds a standard to be direct the adoption approved of a specified by standard the court. Thus, in Nemeth v Abonmarche Development, Inc,457 16; 641 (1998), NW2d we held that a violation of the soil erosion and sedimentation control act (SESCA), MCL 324.9101 et seq., may plaintiffs establish a prima facie showing under because the SESCA contains a pollution control standard.
MCL 324.1702 is not applicable in because, this case unlike the the SDMA does not contain an antipol- SESCA, lution standard. Consequently, it is not within the exception created MCL Nemeth, there- *8 517 v the Dunes Opinion of the Court of a violation that argument fore, support not does of facie violation prima as a may the SDMA serve MEPA. contrary was to the decision Appeals of The Court in holding Nemeth: of our misinterpretation aon based 1701(2) of speaks in terms [A]lthough subsection antipollution device or pollution for or a “standard whether exists, specifically include whether does not procedure” but of a natural impairment or destruction a standard did not seem exists, Supreme Court in Nemeth our resource point case in which important in that find that to be an commonly thought erosion, of as than rather what soil 2;n 655 App 286 pollution, [253 at issue. was (2002).] 263 NW2d In incorrect. conclusion is Appeals of Court part in holding our Nemeth, justified expressly we Nemeth, at supra of pollution. erosion is a form because (“Sedimentation well- [sic] and erosion is 27 pollution.”). of water recognized source actions, the focus Nemeth, in all Moreover, in as this Specifically, conduct.5 on the defendant’s actual 5 pollution Although control in that the sesca creates a we held Nemeth mepa claims, specifically applicable stated: we also standard inquiry. emphasize The trial that is not the end of the We this showing plaintiffs’ defendants’ SESCA violations court held that of mepa. Then, prima defendants facie claim under the established a showing prima opportunity that facie either
had the to rebut contrary, i.e., plaintiffs submitting have shown to the evidence destruction, pollution, impairment, nor the likelihood nor neither violations, by showing thereof, spite proof or in the sesca of prudent to defendants’ con- alternative there is no feasible added).] 1703(1). (emphasis at n 10 [Nemeth duct. Subsection prima Thus, opportunity facie to rebut it is clear that a defendant’s has been estab- that violation violation remains the same whether mepa pollution control independently statute’s or reference another lished the defen- standard, is whether the determinative consideration and that destroy will, fact, pollute, impair, resource. a natural in dant’s conduct erroneously case, concluded that In the instant the Court of 471 MICH Opinion op the Court findings Court reiterated Nemeth the of fact required Ray a trial court announced in v Mason Co as Drain Comm’r, 294; 224 Ray, 393 Mich NW2d *9 we stated: judge plaintiff must on trial find the facts which the prima 1703(1)], a [§
claims to made facie case under have “has, namely likely that conduct or is to defendant’s pollute, destroy air, impair or or other water natural Obviously necessary resources.” ... the evidence to consti- prima showing tute vary a facie will with nature of the alleged degradation [Ray involved. at 309 (some supplied).] emphasis Appeals That of to recognize Court failed that only MEPA readily concerned with harmful conduct is apparent from its characterization circuit court’s focus on TechniSand’s conduct as error:
Judge simply Schofield addressed whether Tech- proposed mining likely “pollute, impair, niSand’s to or destroy” the natural resource in case —the this critical App [253 dune area. 286.] Plaintiff and the dissent us to hold al- urge that though TechniSand’s mining operation may may or not likely be to pollute, impair, destroy air, water, or resources, other natural its predecessor’s allegedly de- ficient past relationship mining property to the nega- pollution § 63702 of the SDMA a creates control standard and that defendant Having concluded, effectively violated it. so the Court of concluded mepa § per defendant’s violation of 63702 amounted se. violation It failed to consider all at whether TechniSand had submitted evidence mepa alleged prima court, sufficient to rebut the facie violations. The trial however, finding presented did consider this evidence after that PTD prima independent facie MEPA violation of the SDMA. The trial court held mepa prima that TechniSand had rebutted the facie violation. The Court (errone- Appeals failure to consider whether TechniSand could rebut the mepa found) ously prima facie violation evidences extent to it which improperly failed to consider whether conduct TechniSand’s would actu- ally “pollute, destroy” impair, or a natural resource. the Dunes v Opinion the Court decline their invita- We affects the environment. tively a defendant’s fuzzy logic. Where accept such tion not offend no violation itself does conduct MEPA, exists. 624.63702(1) DECISIONS6
D. OF THE DEQ’S REVIEW this gloomy prediction reject the dissent’s We understanding of MEPA “insulates orderly [SDMA] at judicial from review.” Post determinations eligibility 539. discussed, per- determinations of previously As 63704(2) 63702(1) are un- §§
mit eligibility activities proposed the applicant’s related to whether Therefore, provides property on the violate MEPA. for plaintiffs of action circuit court private no cause permit eligibil- determinations of challenge the DEQ’s 63702(1) 63704(2). §§ made under ity *10 decision, alone, standing An administrative improper conduct Only -wrongful harm the does not environment. offends MEPA. deci judicial review of an administrative general, following statutory the schemes:
sion is available under
(1)
appli
in the statute
prescribed
the
process
review
(2)
to circuit
agency,
appeal
an
particular
cable to the
the
Judicature Act
court
Revised
pursuant
(RJA),
7.104(A),
600.631,
Michigan Court Rules
MCL
and
(3)
7.103,
in the
7.101,
provided
review
(APA), MCL 24.201 et
Procedures Act
Administrative
Care,
Social
Dep’t
Foster
Inc v
Group
Palo
seq.
of
140, 145;
Services, 577 NW2d
App
procedures
establish
expressly
The SDMA does not
in
case
determination
a contested
disputing a requirements
challenge TechniSand’s satisfaction of the
Ptd
not
does
63704(2).
§
[July-
E. PARTICIPATION AND INTERVENTION DURING THE PERMIT PROCESS THE UNDER SDMA OR Parties who wish to intervene during the permit process have two options. They may intervene either under the procedures governed by the SDMA or those governed by MEPA. 324.63708(5) the SDMA a proce- establishes
dure for notifying interested parties applica- tions: department provide shall pending list of all sand mining applications
dune upon request person. from a give The list shall the name and applicant, address of each legal description of the lands project, included in the summary and a purpose statement of applica- tion. Thus, provides a mechanism whereby inter- SDMA parties may
ested learn of and participate agency decisions regarding approval of critical dune area min- *11 ing permits.
MEPAprovides procedure another for intervention in permit proceedings. This statute the Dunes v Opinion of the Court pleading a intervenor to file a requires potential assert- judicial that or action for review ing proceeding violated, violate, likely conduct that has or is involves Thus, PTD could intervened in Tech- while have MEPA. for permit process only niSand’s under its basis MEPA, proposed intervention would have been TechniSand’s conduct. MEPA does not allow such intervention on the anything alleged wrongful basis of other than conduct. F. REVIEW OF MCL 324.63709 DETERMINATIONS DEQ’S discussed, may a under MEPA be already challenge As during filed in circuit court the time that the before occurs, violation alleged any requirement without Thus, a litigant exhaust administrative remedies. ineligible whether TechniSand was for the un- §der 63709 on the basis of harmful alleged conduct was question that was the circuit properly before court. The circuit court ruled against PTD.
The Court of Appeals has not reviewed the circuit court’s decision that TechniSand’s conduct did not violate the incorporated standard into the SDMA § 63709. Because the Court Appeals never reached PTD’s claim that TechniSand’s opera- tion violates that issue ripe is not for this Court’s MEPA, review. remand the We case to the Court of review the circuit findings regarding court’s Tech- mining activity. niSand’s sand The Court Appeals is directed to expedite its consideration of this case.
G.
THE
RESPONSE TO
DISSENT
initially
undisputed
dissent
contends that
it is
“ineligible
for a permit.”
TechniSand is
Post at 525.
disagree.
We
The time for challenging TechniSand’s
eligibility
long past.
TechniSand is
*12
The dissent further asserts that the DEQ’s of directly decision “will enable destruction critical (emphasis supplied). dunes.” Post at 526 The dissent that critical will destroyed asserts dunes be because Court of stated that TechniSand had acknowl- edged impact as much in an environmental statement. impact The entire environmental statement is not in Moreover, the record.7 the trial court found expressly contrary when it ruled on the MEPA It claim. specifically held TechniSand’s would not destroy a critical dune. The Court of Appeals never finding. addressed this conclusion that permitting process dissent’s subject to collateral attack is not on the defensible structure, language, purpose.
basis or Count- MEPA’s for and apply permits less entities receive for conduct that affects natural Michigan’s resources. Under the regime, dissent’s can permitting decision never be final. adopt Were we to the dissent’s extreme under- standing every permit that has ever been issued MEPA, subject any would be undotted “i” challenge; potentially uncrossed “t” could invalidate an existing permit. do the Legislature We not believe intended MEPA system to destabilize the state’s in permitting this manner. excerpt acknowledged in the record indicates that TechniSand project “greatly approximately
that the would alter” 61% of the nse. case, any expressly the trial court found more credible TechniSand’s ultimately expert impact witnesses and held “the adverse on the envi permitted ronment caused as will not rise to the level of impairment meaning or destruction within the of MEPA.” Dunes v Opinion of the Court Imagine reasoning the world that the dissent’s would present energy good example. create. The crisis offers a many years, country sought For our has to decrease our foreign reliance on sources of oil. an oil com- Suppose in in pany exploration Michigan decided to invest oil in DEQ-issued reliance on Under the dissent’s view, challenge any would authorize a at time to permitting process. Moreover, flaws under the reasoning, dissent’s a court must as true the accept bare assertion that a conduct company’s destroy will natural *13 rely resources. It can never on a to do business. sane investor would take gas What such risk? As soar, in prices people Michigan few would thank this “protecting” Court for the environment in this radical fashion. regime
The dissent’s would render the permitting process a useless exercise. It would cripple economic expansion in Michigan probably lead to disinvest- ment. money No one would invest to obtain a permit subject that is to endless collateral attacks. strips nowhere of final permitting process
MEPA
It
ity.
is the dissent that
a mockery
legislative
makes
of
intent by failing to anchor its
in
exaggerated claims
statute’s actual
language.
post
See
at 526.
does
MEPA
not
impose
requirement
radical
that courts indefi
nitely police
agencies’ permit proce
administrative
dures and
As
in
decisions.
noted Oscoda Chapter of PBB
Comm,
Action
v Dep’t
Resources,
Inc
Natural
(1978)
215, 232-233;
(opinion by
A court is not
conduct..
.
which does not rise to the level of environmental
risk
standard,
proscribed by
likely
[MEPA]. ‘has or is
pollute, impair
destroy,’
grant
is a limitation as well as a
power.
Opinion of the Court Moreover, Appeals the Court of never reached actual conduct is likely issue of whether TechniSand’s already noted, to harm natural resources. As the trial specifically court held that TechniSand’s conduct did not this are procedural posture, violate Given we MEPA. by the dissent’s statement puzzled defendant’s destroy “will” critical dunes. taking testimony issue,
After extensive on that any trial court ruled “adverse on the impact by mining permitted environment caused as will not impairment rise to the level of or destruction within the of MEPA.” meaning explic- Court of did not reject Instead, the trial itly findings. court’s it errone- ously concluded that a that affects the environ- any may ment in at way challenged any be time under above, MEPA. For the reasons articulated the Court of Appeals erred in MEPA interpreting this manner.
CONCLUSION MEPA no judicial affords basis for of agency review 324.63702(1) decisions under MCL because that inquiry purview is outside the of MEPA.The focus of is to protect our natural state’s resources from harmful conduct. It offers no basis for invalidating an issued *14 reasons unrelated to the permit holder’s conduct. To by judicial hold otherwise would broaden fiat the of MEPAand create a scope cause of action that has no basis in MEPA’slanguage or structure.
The Court of erred Appeals by treating PTD’s chal- lenge to eligibility TechniSand’s for a permit 324.63702(1) MCL as a claim. Because PTD brought its claim more than nineteen after months permit, issued the PTD’s claim is time-barred. We DEQ reverse the of the Appeals decision Court of on that issue. Dunes v Dissenting Opinion by Kelly, J. remand the
We case to the Court of Appeals review the circuit findings court’s mining TechniSand’s conduct not does violate and direct the Court of MEPA, expedite its review. JJ.,
Taylor, Young, Markman, and concurred with Corrigan, C.J. In (dissenting). Michigan Depart-
ment of Natural Resources denied defendant (DNR) permission TechniSand to mine critical dunes because it ineligible for a permit under the sand dune act1 MCL 324.63701 et seq. year One (SDMA), later, following Engler’s Governor reorganization of the DNR, the newly Department created of Environmental Quality invited TechniSand to apply again, citing (DEQ) “changes government.” in state TechniSand reapplied and the granted a permit despite fact, now undisputed, that TechniSand remained ineligible to mine critical result, dunes. As a critical dunes that would otherwise remain untouched will be impaired and perhaps destroyed.
Through
case,
the decision in this
a court majority of
four
sanctions
unexplained
illegal
about-
DEQ’s
face on TechniSand’s critical dune mining
process,
it strikes a devastating
Michigan’s
blow to
environmental
law.2 This majority perpetuates
part
The sand dune
act is codified as
637 of the Natural
Act,
Resources and
seq.
Environmental Protection
MCL 324.101 et
majority’s
significantly
scope
decision to
narrow
of the
applicability
Michigan
protection
act
(mepa),
seq.,
compounded by
324.1701 et
in this case is
its recent decision in Nat ’l
Upper
Federation &
Peninsula Environmental Council v Cleve
Wildlife
land
Co,
608;
There,
Iron
526 by Opinion Dissenting Kelly, J. mining permit illegal decision to unprincipled DEQ’s scrutiny of the it from by insulating dunes critical act MCL protection environmental Michigan (MEPA). decision to holding that seq. et Its 324.1701 DEQ’s to” critical dunes is “unrelated to mine grant permit reality. defies It of those critical dunes the destruction environmen Legislature’s prevent our intent mocks addition, to this Court’s contrary harm. In it is tal 3 earlier MEPA decisions. case, dunes, in this like those at issue Critical sand natural resources. protected are specially The. by strictly resources protects irreplaceable act these mine them. works in eligible who is limiting to, words, act its own tandem with regulatory administrative “existing supplement by law.” MCL 324.1706. Issuance provided procedures directly enable destruction critical will Hence, otherwise remain untouched. dunes that would to issue the inescapable it is decision DEQ’s may challenged under environmental be act. protection
Moreover,
act
protection
the environmental
does not
on
ac-
statutory
legal
of limitations
impose
period
party’s
that a
conduct will cause
tions
assert
impairment, or destruction.
pollution,
Therefore,
challenge
I
is not
plaintiffs
would hold that
of either the Adminis-
statutory period
limited
person”
explicitly grants standing
“any
to maintain an
the statute
pollution, impairment,
prevent
of our natural
action to
or destruction
resources.
3
453, 454;
(1975),
See, e.g., Eyde Michigan,
Mich
I dissent the majority’s because decision subverts the of the purposes mining sand dunes act and the environ- mental protection by incorrectly act insulating DEQ’s permit scrutiny decision from under the environ- protection mental act. Defendant TechniSand is not eligible for a to mine permit critical dunes sand under the sand dunes act. I Accordingly, would affirm Appeals. decision of the Court of
THE MAJORITY’S RESPONSE TO THE DISSENT majority’s “Response to the Dissent”4 is an abrupt departure precedent from its of declining to legislative amend policy decisions with which it dis- agrees.5 Its discussion of the wisdom of Legisla- ture’s decision to bar sand dune mining by anyone who does not meet limited eligibility criteria is unsuited for judicial a opinion. Moreover, the majority’s comparison eligibility in problem a permit to clerical error and its suggestion my position would allow endless challenges for such trifles are gross exaggerations. Ante at 522. Granting permit to mine critical dunes to an ineligible operator is a substantive fault. It is a violation of the law that likely allows conduct to pollute, impair, or destroy a natural specially resource protected by the Legislature. Economic in development this state has not in ceased the past thirty years. It will not grind now to a halt under the oppressive weight of if permit challenges
4 Ante at 521-524. 5 scrupulously This Court has declined to consider the wisdom of the Legislature’s See, policy e.g., decision. Oakland Co Rd Comm’rs v Michigan Prop Ass’n, Guaranty 590, 612-613; & Cas 456 Mich 575 NW2d 471 Mich Dissenting Opinion that allows holdings prior reaffirms its
this Court deci- permit environmentally destructive challenges to sions. BELOW
FACTS AND PROCEEDINGS in property real purchased TechniSand Defendant dune critical and noncritical included both permit it obtained Along purchase, with its areas. portion dune areas on one mine sand noncritical an amendment applied TechniSand property. dune to critical sand expand of this adjacent portion property. on an dune areas Resources, the of Natural Michigan Department applica- agency charged reviewing with SDMA time, ground on the application at the denied the tions for an amended ineligible that TechniSand was *17 in noncritical dune original permit The was to mine property’s not include the critical dune areas and did Also, the land and purchased TechniSand had areas. deadline to for an apply after the mining operation mine the critical dune areas. permit unassociated 324.63702(1) (b). created a new 1995, Engler agency, John Governor Quality Michigan Department of Environmental Order No. 1995-16 Reorganization Executive (DEQ). 324.99903). (codified given respon- at MCL The DEQ and other environ- sibility administering for SDMA ap- and the Governor permitting programs, mental its director. The then wrote TechniSand pointed DEQ “changes government” that indicating state from TechniSand would allow “additional information” the permit application.6 to review DEQ 6 1, 1996, Kimberly April Douglas from Daniels and Rice Letter dated 20, 1995, April letter of the The letter makes reference to an DEQ. Preserve Dunes v DEQ Opinion by Dissenting Kelly, J. the environmental impact TechniSand resubmitted that it had plan statement and reclamation submitted without addi- previous application, providing with its information eligible how it was for demonstrating tional The later permit. permit an amended issued the DEQ met the year. explain It did not how TechniSand Also, in the it not now eligibility criteria does SDMA. for a dispute ineligible that TechniSand is Plaintiff formed in 1996. In Dunes was injunctive it sued TechniSand and the for stop expansion. relief to TechniSand’s mine Plaintiff alleged ineligible that TechniSand was for an SDMA permit expansion and that its mine violated MEPA. plaintiffs challenge
The trial court ruled that to the time-barred under the Admin- permitting decision was istrative Procedures Act
impact
was insufficient to
implicate
MEPA.
ruling.
The Court of
reversed the
Mich
Appeals
App
(2002).
263;
The critical dune areas of this state are a irreplaceable, fragile provide significant resource that recreational, economic, scientific, scenic, geological, botani- cal, educational, agricultural, ecological benefits to the people people of this and the state from other states and 324.35302(a).] countries who visit this [MCL resource. The Legislature enacted the SDMA out of concern that mining the dunes them consumes and harms the envi- ronment. The act expression is an “para- state’s mount” in protecting interest the dunes. See MCL 324.1701. It mining” defines “Sand dune as the “re- moval of sand from sand dune areas for commercial or 324.63701(1).7 industrial purposes.” MCL It requires all persons seeking to mine sand dunes to obtain a sand dune mining permit. MCL Regarding 324.63704. criti- dunes, cal the act states that “the removal any volume of sand is not sand dune mining within a critical dune area as defined in part subject 353 is to the critical dune protection provisions part 353.” MCL exempts The statute from this definition the removal of “volumes of 3,000 than less tons” of sand if the removal is a “1-time occurrence and the reason the sand is removed is not for the direct use for an industrial purpose.” or commercial *19 Dunes v Dissenting Opinion Kelly, J. mining any sand prohibition against The SDMA’s flat to subject only in critical sand dune areas is designated is, mining That authorized entities exception. a narrow may continue that existed when the SDMA was enacted (1) in had a they mining on land which operation (2) 5, 1989, adjacent on land to July interest before mining in had a interest property they which before 324.63702(1).8 that date. MCL exceptions Legis- reflect the “grandfathering” These mining pre- to interests that attempt lature’s balance 5,1989, designation July dated the critical dune with remaining newly designated and preservation begin critical dunes. New entities would be unable to operation. Existing oppor- entities would have limited to mine additional critical By limiting tunities areas. to those entities with a inter- mining preexisting dune est, existing entities would be allowed to continue would not operating ensuring mining while last indefinitely. Legislature excep-
The mandated that these narrow mining implemented tions for sand dune would be 324.62702(1) provides in 8 MCL full: Notwithstanding any provision part, depart- other of this mining permit ment shall not issue a sand dune within a critical 5, 1989, part July except area as defined in 353 after dune following either of the circumstances: (a) mining operator The seeks to renew or amend a sand dune July 5,1989, subject prior that was issued to the criteria amendatory application. applicable and standards to a renewal or (b) operator mining permit holds a sand dune issued seeking mining pursuant to section 63704 and is to amend the adjacent property operator is to include land that is mine, prior July 5, operator permitted to 1989 the owned rights in the land or to mine dune sand the land for owned operator which the seeks the amended 471 Mich
Dissenting Opinion by through regulatory permits. MCL 324.63704. act procedure created a to ensure that future permitting only by parties pre-existing would be with a interest, legal protective a manner of critical reasonably suggested dune areas. It cannot be that the eligibility completely prohibit criteria that all but an defined from critical expressly operators few protection. dunes are not a measure of environmental Only if eligibility is verified do additional environmen- *20 protections play. tal come into Permit applications by eligible entities are on a case-by-case reviewed basis to proposed ensure that the is mining environmentally acceptable. The an applicant must submit environmental statement impact describing anticipated the environ- mental that damage will occur from the mining opera- 324.63704(2)(b). tion. MCL applicant must explain why mining alternative locations were not chosen. MCL 324.63705(h). It plan must include a reclamation for the 324.63704(2)(c), area to be mined. MCL 324.63706. reviewing application, must ensure that the proposed mining unlikely pollute, is impair, or destroy natural resources or the public trust in those Any resources. MCL 324.63709. issued must require provisions that the applicant’s progres- sive cell-unit plan reclamation are met. If threatened endangered or species present, plan are must provisions include either to them protect mitigate or to' effect of on 324.63706(3) them. MCL (g). MAY
PLAINTIFFS CHALLENGE THE PERMIT ELIGIBILITY DETERMINATION UNDER THE MICHIGAN ENVIRONMENTAL ACT
PROTECTION protection provides act Dunes v by Dissenting Opinion Kelly, J. may in circuit any person maintain an action . . . likely alleged violation occurred or is court. .. where the against any declaratory equitable relief occur for air, water, protection of the and other person for the public trust in these resources natural resources and pollution, impairment, [MCL or destruction. from 324.1701(1).] act, prima makes a facie case plaintiff
Under this likely to .. . showing “that the conduct of defendant or the trust destroy public the . . . natural resources 324.1703(1).9 The Legislature these resources.” MCL existing provided supplements expressly that were law. MCL regulatory procedures provided 324.1706. critical eligibility protect
The SDMA’s restrictions con- mining by ineligible operators dunes from whose critical dunes that likely impair destroy duct is Hence, remain untouched. the envi- would otherwise ronmental act is to decisions re- protection applicable The SDMA garding permit applicant’s eligibility. an SDMA specifically incorporates Legislature’s recognition are natural re- “irreplaceable” that critical dunes 324.35302(a). It that “the re- provides sources. MCL dune any moval of volume of sand . . . within critical *21 subject protection provi- area ... is to the critical dune part provisions sions of 353.” MCL Its limiting eligibility to mine critical dunes are strictly help protect pollution, intended to critical dunes from or impairment, destruction.
Thus, eligibil- majority’s suggestion permit the conduct will ity permitted is unrelated to whether 324.1702(2) misplaced. majority’s MCL is Ante at reference to challenging imposition not on TechniSand of 516. Plaintiffs are deq’s They challenge pollution standards. do not the manner the sdma’s control They permissible activity challenge whether in which is undertaken. permissible all. TechniSand’s conduct is at 471 Mich
Dissenting
Opinion
harm the environment
is untenable.
Issuance of a
permit
ineligible operator
engage
any mining
an
likely
of critical dunes will allow “conduct...
pollute,
destroy.
. . natural
impair,
public
resources or the
324.1703(1);
trust
in these resources.” MCL
see also
WestMichigan Environmental Action Council v Natural
Comm,
741, 751;
Resources
405 Mich
harm the environment as well as to stop conduct that is presently harming WMEAC, it. In this Court ordered permanent injunction that a prohibiting be entered drilling gas of oil and pursuant wells to DNE The “issuance of permits properly before the circuit court conduct alleged likely as to be to pollute, impair, or destroy” natural resources under MEPA. WMEAC at drilling 751. The would “apparently cause serious and lasting, though unquantifiable, damage” to elk herd population. at WMEAC 760. This Court concluded that
the previous 691.1203(1), is violated when- MEPA, ever the effects of issuance harm the environ- ment to the requisite degree. WMEAC at 760.
Unlike eligibility for fuel drilling fossil other may activities that pollute the environment if done improperly,10 SDMA permit eligibility is severely restricted. The applicant must demonstrate a preexist- ing mining interest, and mining may no occur until this requirement has been satisfied. It the Legisla- reflects premise ture’s that the removal of even one bucket of sand from a critical dune an ineligible operator will inordinately impair the state’s critical dune An areas. 324.3106, requiring permits See also MCL 324.5505 and for activities may pollute imposing stringent eligibility the air and water without criteria. *22 535 v the Dunes by Dissenting Opinion challenged as be may such conduct action that enables MEPA. impairment destruction of a that a violation in Nemeth11 Court observed This facie claim support prima can procedure permitting ‘not facie case is prima A “plaintiffs under MEPA. but also degradation restricted to actual as to the environment damage encompasses probable ” v Mason Co Nemeth, 25, quoting Ray supra at well.’ 294, 309; 224 883 Comm’r, Drain NW2d 393 control and sedimentation In the soil erosion control stan- act,12 pollution created a Legislature through enforced Court held could be dard that this Nemeth, supra MEPA. at 35. more protec- to make the SDMA Legislature
The chose than the soil erosion of the environment tive already explained,13 control act. As sedimentation of critical any mining Legislature determined destruc- unacceptable entities is an ineligible dunes Hence, majority’s tion of this natural resource. is unrelated to conduct eligibility conclusion that hypertechnical an artificial and bifurcation premised on concluding When permitting process. of the conduct, majority buries eligibility is unrelated to its head in the sand. eligibility of the review as an
Its characterization language is not based on the inquiry”14 “initial in MCL are as criteria 324.63702 eligibility statute. in critical sand dune engage much a condition to through §§ 63704 63706. requirements as followed hierarchy enact a or order to be SDMAdoes not Unlike this reviewing permit application. those 11 nSee 3. seq. et MCL 324.9101 13 Supra beginning at 530. Ante at 515. 471 MICH Dissenting Opinion by Kelly, J. Nemeth, Court’s recent decision in here the majority reads to” out of the “likely statute. *23 that an into the effect on majority argues inquiry proposed mining
the environment of the “would be pointless unless first determined that DEQ applicant eligible permit on the basis of the applicant’s status.” Ante at 515. agree We could not pointless more. It would be for the to review the proposed effect of the if mining applicant were for a If ineligible permit. applicant is not no eligible, mining will occur. Critical destroyed. dunes will not be
The majority attempts to restrict the inquiry into TechniSand’s conduct to consideration of the nature its to the at relationship property issue. This is mislead- in ing.15 question The conduct more is than Tech- niSand’s “relationship mining to the property.” It nec- essarily encompasses TechniSand’s proposal remove large quantities of sand from designated critical dunes that would otherwise remain untouched. This is the “actual conduct” that the permit at issue allows plaintiff that alleges “likely pollute, impair, or destroy” critical dunes under MEPA.
Because the critical dunes could not have been mined by TechniSand at all without the erroneous eligibility determination, plaintiff should be allowed to pursue its cause of action.
Statutory provisions must
in
be read
the context of
the entire act
produce
so as to
a harmonious whole.
Macomb Co Prosecutor v
149, 159;
464 Mich
Murphy,
63702(1)
19 Id. at 122.
dunes is unrelated to whether TechniSand’s pollute, activities will impair, destroy a natural Thus, resource. it concludes that plaintiff rely cannot on MEPA to challenge permit that has been issued. The majority’s reasoning undermines the critical dunes protections in the the intent of and this SDMA, MEPA, Court’s earlier MEPA decisions.
Plaintiff is not required to challenge issuance of the
an
as
administrative decision under either the
Administrative Procedures Act
or the Revised
(APA)
Judicature Act
The MEPA is “supplementary to
(RJA).
existing administrative and regulatory procedures pro-
vided
law.” MCL 324.1706. It was intended to create
a common law of
protection.
environmental
at
Ray
306.
does
require
It
not
plaintiff
that a
exhaust administra-
tive remedies. MCL
Accordingly, the statu-
tory period of limitations of neither the APA nor the RJA
apply
plaintiffs
MEPA claim.20
challenge
Plaintiffs
TechniSand’s permit under the is not time-barred.
The
does not dispute
that TechniSand is ineli-
gible for
Recognizing plaintiffs claim under
protection
act expresses no disre-
spect for an administrative agency’s decision. The ma-
jority abdicates its responsibility by
refusing
review
this
eligibility determination under MEPA.21
mepa
imposes
statutory
itself
period
limitations,
no
but
equitable claims under the Natural Resources and Environmental Pro
Act,
tection
which
subject
houses
have
six-year
been held
to the
mepa,
statutory period
Attorney
Harkins,
MCL 600.5813.
General v
257 Mich
564, 571;
App
CONCLUSION Sand today wrongly insulates majority’s The decision from permit eligibility Act determinations Mining Dune dune The to issue a sand review. decision judicial includes inherently the SDMA pursuant to mining permit I that issu- would hold component. an environmental challenged case can be ance of the this act. Michigan protection to to permit the act Legislature apply intended of the act to deter- Application determinations. entirely Legislature’s with consistent minations dunes stringently Great Lakes sand preserve intent integrity against degradation protect majority’s reasoning environment. frustrates intent. limi- statutory
Plaintiffs cause is not barred of the APA and the RJA. The Court periods tations case of an correctly entry remanded the for Its summary disposition plaintiff. order granting should be affirmed. decision reality majority ignores
Because both the permitting process Legislature’s pro- and the intent destruction, tect critical dune from I must dissent. areas Cavanagh JJ., Weaver, concurred with