Preserve the Dunes Inc v. Dept of Environmental Quality ( 2004 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 30, 2004
PRESERVE THE DUNES, INC.,
Plaintiff-Appellee,
v No. 122611
MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Defendant,
and
TECHNISAND, INC.,
Defendant-Appellant.
______________________________
PRESERVE THE DUNES, INC,
Plaintiff-Appellee,
v No. 122612
MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Defendant-Appellant,
and
TECHNISAND, INC,
Defendant.
_______________________________
1
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
Defendant Michigan Department of Environmental Quality
(DEQ) and defendant TechniSand, Inc., appeal a Court of
Appeals decision holding that the DEQ improperly granted a
sand dune mining permit to TechniSand, contrary to the
Michigan environmental protection act (MEPA), MCL 324.1701
et seq.1 The only issue properly before us is whether MEPA
authorizes a collateral challenge to the DEQ’s decision to
issue a sand dune mining permit under the sand dune mining
act (SDMA), MCL 324.63701 et seq., in an action that
challenges flaws in the permitting process unrelated to
whether the conduct involved has polluted, impaired, or
destroyed, or will likely pollute, impair, or destroy
natural resources protected by MEPA. Because MEPA does not
authorize such a collateral attack, we reverse the decision
of the Court of Appeals and remand to that Court for
expedited review of the remaining issues of plaintiff
Preserve the Dunes (PTD).2
1
253 Mich App 263; 655 NW2d 263 (2002).
2
PTD is an ad hoc organization of local citizens
formed for the purpose of instituting this lawsuit.
2
I. Factual Background and Procedural Posture
In 1991, defendant TechniSand purchased a sand mining
operation with a mining permit that was set to expire in
1993. That permit did not allow mining in adjacent
property, the Nadeau Site Expansion Area (NSE), which had
been classified in 1989 as a “critical dune” area under MCL
324.35301 et seq.
Mining in critical dune areas was prohibited after
July 5, 1989, subject to certain narrowly defined
exceptions to MCL 324.63702(1):
Notwithstanding any other provision of this
part, the department shall not issue a sand dune
mining permit within a critical dune area as
defined in part 353 [MCL 324.35301 et seq.] after
July 5, 1989, except under either of the
following circumstances:
(a) The operator seeks to renew or amend a
sand dune mining permit that was issued
prior to July 5, 1989, subject to the criteria
and standards applicable to a renewal or
amendatory application.
(b) The operator holds a sand dune mining
permit issued pursuant to section 63704 and is
seeking to amend the mining permit to include
land that is adjacent to property the operator
is permitted to mine, and prior to July 5,
1989, the operator owned the land or owned
rights to mine dune sand in the land for which
the operator seeks an amended permit.
In late 1994, TechniSand applied for an amended permit
under MCL 324.63702(1)(b). In April 1995, the Department of
3
Natural Resources (DNR)3 denied the application on the
ground that TechniSand was ineligible for an amended permit
under subsection 1(b) because it had purchased the
operation after July 5, 1989.
In May 1996, TechniSand amended and resubmitted its
application and supporting documentation to the DEQ. After
a public hearing, the DEQ approved TechniSand’s application
on November 25, 1996. TechniSand began mining the NSE area
thereafter.
Nineteen months later, in July 1998, PTD sued
defendants, seeking injunctive and declaratory relief under
MEPA. MEPA provides a cause of action for declaratory and
other equitable relief for conduct that is likely to result
in the pollution, impairment, or destruction of Michigan’s
natural resources. MCL 324.1701 et seq.
PTD alleged that the DEQ violated MEPA when it
approved TechniSand’s amended mining permit. It further
alleged that TechniSand’s mining conduct violated MEPA.
Defendants sought summary disposition because PTD’s action
was time-barred. The circuit court denied defendants’
3
During this time, the DNR was the administrative
agency that regulated sand mining. In 1995, this
responsibility was transferred from the DNR to the DEQ by
Executive Reorganization Order No. 1995-16 (codified at MCL
324.99903).
4
motion.
PTD sought summary disposition after the original
circuit judge had retired. His successor ruled that PTD’s
claim under the SDMA was indeed time-barred. It also held
that plaintiff had established a prima facie MEPA claim on
the basis of TechniSand’s mining conduct.
After a seven-day bench trial on the MEPA claim alone,
the court ruled that defendants had successfully rebutted
PTD’s prima facie case and entered a judgment of no cause
of action. The court specifically found that “any adverse
impact on the natural resources which will result from the
sand mining will not rise to the level of impairment or
destruction of natural resources within the meaning of
MEPA.”
The Court of Appeals reversed and remanded for entry
of an order granting summary disposition for PTD. The Court
of Appeals concluded that (1) the DEQ’s decision to grant
a permit could be challenged at any time under MEPA and (2)
TechniSand did not qualify for a permit under § 63702. The
DEQ and TechniSand filed applications for leave to appeal
in this Court, and we granted leave.4
4
468 Mich 869 (2003).
5
II. Standard of Review
The issue presented involves a question of statutory
interpretation. We review de novo questions of statutory
interpretation. Oade v Jackson Nat’l Life Ins Co, 465 Mich
244, 250; 632 NW2d 126 (2001).
III
A. Overview of MEPA
MEPA is contained in part 17, MCL 324.1701 et seq., of
the Natural Resources and Environmental Protection Act, MCL
324.101 et seq. To prevail on a MEPA claim, the plaintiff
must make a “prima facie showing that the conduct of the
defendant has polluted, impaired, or destroyed or is likely
to pollute, impair, or destroy the air, water, or other
natural resources, or the public trust in these resources.
. . .” MCL 324.1703(1). The defendant may rebut the
plaintiff’s showing with contrary evidence or raise an
affirmative defense that (1) there is no feasible and
prudent alternative to the conduct and (2) the “conduct is
consistent with the promotion of the public health, safety,
and welfare in light of” the state’s concern with
protecting Michigan’s natural resources. Id. The focus of
MEPA is on defendant’s conduct.
MEPA provides for immediate judicial review of
allegedly harmful conduct. The statute does not require
6
exhaustion of administrative remedies before a plaintiff
files suit in circuit court. MCL 324.1701(2). A court may,
however, “direct the parties to seek relief” in available
administrative proceedings. MCL 324.1704(2).
B. Overview of SDMA Permit Process
The DEQ may authorize mining in critical sand dune
areas under two specific conditions set forth in MCL
324.63702(1)(a) and (b):
Notwithstanding any other provision of this
part, the department shall not issue a sand dune
mining permit within a critical dune area as
defined in part 353 [MCL 324.35301 et seq.] after
July 5, 1989, except under either of the
following circumstances:
(a) The operator seeks to renew or amend a
sand dune mining permit that was issued prior to
July 5, 1989, subject to the criteria and
standards applicable to a renewal or amendatory
application.
(b) The operator holds a sand dune mining
permit issued pursuant to section 63704 and is
seeking to amend the mining permit to include
land that is adjacent to property the operator is
permitted to mine, and prior to July 5, 1989, the
operator owned the land or owned rights to mine
dune sand in the land for which the operator
seeks an amended permit.
If an operator does not fall within one of these
limited exceptions to the SDMA ban on mining in critical
dunes areas, the inquiry ends. Nowhere in this initial
inquiry is the DEQ required to evaluate the permit seeker’s
proposed conduct. Indeed, such an inquiry would be
7
pointless unless the DEQ first determined that the
applicant was eligible for a permit on the basis of the
applicant’s status as either a past owner or operator.
Once the DEQ determines that an applicant is eligible
to apply for a sand dune mining permit in a critical dune
area under § 63702(1), the applicant must fulfill the
requirements of § 63704. Specifically, applicants are
required to submit the following to the DEQ:
(a) A permit application on a form provided by
the department.
(b) An environmental impact statement of the
proposed mining activity as prescribed by section
63705.
(c) A progressive cell-unit mining and
reclamation plan for the proposed mining activity as
prescribed in section 63706.
(d) A 15-year mining plan as prescribed by
section 63707.
After the DEQ determines that the applicant has
satisfied §§ 63702(1) and 63704(2), it must next determine
whether the applicant meets the requirement of § 63709.
Section 63709 prohibits the DEQ from approving an amended
permit if the applicant’s proposed conduct “is likely to
pollute, impair, or destroy the air, water, or other
natural resources or the public trust in those resources,
as provided by part 17.” Thus, MEPA, in part 17, MCL
324.1701 et seq., expressly controls the DEQ’s § 63709
8
determinations.
C. MCL 324.1701 and Nemeth v Abonmarche Development
In addition to conferring power upon the attorney
general, MCL 324.1701(1) authorizes a private cause of
action under MEPA:
The attorney general or any person may
maintain an action in the circuit court having
jurisdiction where the alleged violation occurred
or is likely to occur for declaratory and
equitable relief against 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.
MCL 324.1701(2) provides:
In granting relief provided by subsection
(1), if there is a standard for pollution or for
an antipollution device or procedure, fixed by
rule or otherwise, by the state or an
instrumentality, agency, or political subdivision
of the state, the court may:
***
(b) If a court finds a standard to be
deficient, direct the adoption of a standard
approved and specified by the court.
Thus, in Nemeth v Abonmarche Development, Inc, 457
Mich 16; 576 NW2d 641 (1998), we held that a violation of
the soil erosion and sedimentation control act (SESCA), MCL
324.9101 et seq., may establish a plaintiff’s prima facie
showing under MEPA because the SESCA contains a pollution
control standard.
9
MCL 324.1702 is not applicable in this case because,
unlike the SESCA, the SDMA does not contain an antipollution
standard. Consequently, it is not within the exception
created by MCL 324.1701(2). Nemeth, therefore, does not
support the argument that a violation of the SDMA may serve
as a prima facie violation of MEPA.
The Court of Appeals decision to the contrary was
based on a misinterpretation of our holding in Nemeth:
[A]lthough subsection 1701(2) speaks in
terms of whether a “standard for pollution or
antipollution device or procedure” exists, but
does not specifically include whether a standard
for impairment or destruction of a natural
resources exists, our Supreme Court in Nemeth did
not seem to find that to be an important point in
that case in which soil erosion, rather than what
is commonly thought of as pollution, was at
issue. [253 Mich App 263, 286 n 2; 655 NW2d 263
(2002).]
The Court of Appeals conclusion is incorrect. In
Nemeth, we expressly justified our holding in part because
erosion is a form of pollution. Nemeth, supra at 27(“Sedimentation and erosion is a [sic] well-recognized
source of water pollution.”).
10
Moreover, in Nemeth, as in all MEPA actions, the focus
was on defendant’s actual conduct.5 Specifically, this
5
Although we held in Nemeth that the SESCA creates a
pollution control standard applicable to MEPA claims, we
also specifically stated:
We emphasize that this is not the end of the
inquiry. The trial court held that plaintiffs'
showing of defendants' SESCA violations
established a prima facie claim under the MEPA.
Then, defendants had the opportunity to rebut
that prima facie showing either by submitting
evidence to the contrary, i.e., that plaintiffs
have shown neither pollution, impairment, nor
destruction, nor the likelihood thereof, in spite
of proof of the SESCA violations, or by showing
that there is no feasible and prudent alternative
to defendants' conduct. Subsection 1703(1).
[Nemeth at 36 n 10 (emphasis added).]
Thus, it is clear that a defendant’s opportunity to
rebut a prima facie MEPA violation remains the same whether
that violation has been established independently or by
reference to another statute’s pollution control standard,
and that the determinative consideration is whether
defendant’s conduct will, in fact, pollute, impair, or
destroy a natural resource. In the instant case, the Court
of Appeals erroneously concluded that § 63702 of the SDMA
creates a pollution control standard and that defendant
violated it. Having so concluded, the Court of Appeals
effectively concluded that defendant’s violation of § 63702
amounted to a MEPA violation per se. It failed to consider
at all whether TechniSand had submitted evidence sufficient
to rebut the alleged prima facie MEPA violations. The
trial court, however, did consider this evidence after
finding that PTD presented a prima facie MEPA violation
independent of the SDMA. The trial court held that
TechniSand had rebutted the prima facie MEPA violation.
The Court of Appeals failure to consider whether TechniSand
could rebut the (erroneously found) prima facie MEPA
violation evidences the extent to which it improperly
Footnotes continued on following page.
11
Court reiterated in Nemeth the findings of fact required of
a trial court as announced in Ray v Mason Co Drain Comm’r,
393 Mich 294; 224 NW2d 883 (1975). In Ray, we stated:
The trial judge must find the facts on which
the plaintiff claims to have made a prima facie
case under [§ 1703(1)], namely that the
defendant's conduct "has, or is likely to
pollute, impair or destroy the air, water or
other natural resources.” . . . Obviously the
evidence necessary to constitute a prima facie
showing will vary with the nature of the alleged
environmental degradation involved. [Ray at 309
(some emphasis supplied).]
That the Court of Appeals failed to recognize that
MEPA is concerned only with harmful conduct is readily
apparent from its characterization of the circuit court’s
focus on TechniSand’s mining conduct as error:
Judge Schofield simply addressed whether
TechniSand’s proposed mining was likely to “pollute,
impair, or destroy” the natural resource in this case—
the critical dune area. [253 Mich App 286.]
Plaintiff and the dissent urge us to hold that
although TechniSand’s mining operation may or may not be
likely to pollute, impair, or destroy the air, water, or
other natural resources, its predecessor’s allegedly
deficient past relationship to the mining property
negatively affects the environment. We decline their
invitation to accept such fuzzy logic. Where a defendant’s
failed to consider whether TechniSand’s conduct would
actually “pollute, impair, or destroy” a natural resource.
12
conduct itself does not offend MEPA, no MEPA violation
exists.
D. Review of the DEQ’s MCL 624.63702(1) Decisions6
We reject the dissent’s gloomy prediction that this
orderly understanding of MEPA “insulates [SDMA] permit
eligibility determinations from judicial review.” Post at
22.
As previously discussed, DEQ determinations of permit
eligibility under §§ 63702(1) and 63704(2) are unrelated to
whether the applicant’s proposed activities on the property
violate MEPA. Therefore, MEPA provides no private cause of
action in circuit court for plaintiffs to challenge the
DEQ’s determinations of permit eligibility made under §§
63702(1) and 63704(2).
An improper administrative decision, standing alone,
does not harm the environment. Only wrongful conduct
offends MEPA.
In general, judicial review of an administrative
decision is available under the following statutory
schemes: (1) the review process prescribed in the statute
applicable to the particular agency, (2) an appeal to
6
PTD does not challenge TechniSand’s satisfaction of
the requirements under § 63704(2).
13
circuit court pursuant to the Revised Judicature Act (RJA),
MCL 600.631, and Michigan Court Rules 7.104(A), 7.101, and
7.103, or (3) the review provided in the Administrative
Procedures Act (APA), MCL 24.201 et seq. Palo Group Foster
Care, Inc v Dep't of Social Services, 228 Mich App 140,
145; 577 NW2d 200 (1998).
The SDMA does not expressly establish procedures for
disputing a DEQ determination in a contested case unrelated
to MEPA. We need not decide here whether PTD’s challenge
to the DEQ’s permit decision is governed by the RJA or the
APA because the challenge is time-barred under either
statute. PTD brought this action nineteen months after the
DEQ’s decision to grant TechniSand’s application for an
amended permit, which far exceeds the sixty-day period
allowed by the APA, MCL 24.304(1), and the twenty-one-day
period provided by MCR 7.101(B)(1), which governs appeals
under MCL 600.631 of the RJA pursuant to MCR 7.104(A). The
DEQ and TechniSand properly interposed this defense in
their initial pleadings. Thus, PTD’s claim was time-
barred.
E. Participation and Intervention
During The Permit Process Under the SDMA or MEPA
Parties who wish to intervene during the permit
process have two options. They may intervene either under
14
the procedures governed by the SDMA or those governed by
MEPA.
MCL 324.63708(5) of the SDMA establishes a procedure
for notifying interested parties of permit applications:
The department shall provide a list of all
pending sand dune mining applications upon a
request from a person. The list shall give the
name and address of each applicant, the legal
description of the lands included in the project,
and a summary statement of the purpose of the
application.
Thus, the SDMA provides a mechanism whereby interested
parties may learn of and participate in agency decisions
regarding approval of critical dune area mining permits.
MEPA provides another procedure for intervention in
permit proceedings. MCL 324.1705(1). This statute requires
a potential intervenor to file a pleading asserting that
the proceeding or action for judicial review involves
conduct that has violated, or is likely to violate, MEPA.
Thus, while PTD could have intervened in TechniSand’s
permit process under MEPA, its only basis for intervention
would have been TechniSand’s proposed conduct. MEPA does
not allow such intervention on the basis of anything other
than alleged wrongful conduct.
F. Review of DEQ’s MCL 324.63709 Determinations
As already discussed, a challenge under MEPA may be
filed in circuit court before or during the time that the
15
alleged MEPA violation occurs, without any requirement that
a litigant exhaust administrative remedies. Thus, whether
TechniSand was ineligible for the permit under § 63709 on
the basis of alleged harmful conduct was a question that
was properly before the circuit 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 MEPA standard incorporated into the SDMA under § 63709.
Because the Court of Appeals never reached PTD’s claim that
TechniSand’s mining operation violates MEPA, that issue is
not ripe for this Court’s review. We remand the case to
the Court of Appeals to review the circuit court’s findings
regarding TechniSand’s sand mining activity. The Court of
Appeals is directed to expedite its consideration of this
case.
F. Response to the Dissent
The dissent initially contends that it is undisputed
that TechniSand is “ineligible for a permit.” Post at 2.
We disagree. The time for challenging TechniSand’s
eligibility for a permit is long past. TechniSand is
lawfully entitled to mine sand dunes in Michigan according
to the DEQ permit. Whether the DEQ’s permitting decision
was “unprincipled” or an “illegal about-face” is not a
16
determination for this Court to make. Post at 2. That
decision is time-barred.
The dissent further asserts that the DEQ’s permit
decision “will directly enable destruction of critical
dunes.” Post at 3-4 (emphasis supplied). The dissent
asserts that critical dunes will be destroyed because the
Court of Appeals stated that TechniSand had acknowledged as
much in an environmental impact statement. The entire
environmental impact statement is not in the record.7
Moreover, the trial court expressly found to the contrary
when it ruled on the MEPA claim. It specifically held that
TechniSand’s mining would not destroy a critical dune. The
Court of Appeals never addressed this finding.
The dissent’s conclusion that the permitting process
is subject to collateral attack is not defensible on the
basis of MEPA’s language, structure, or purpose. Countless
entities apply for and receive permits for conduct that
affects Michigan’s natural resources. Under the dissent’s
7
The excerpt in the record indicates that TechniSand
acknowledged that the project would “greatly alter”
approximately 61% of the NSE. In any case, the trial court
expressly found more credible TechniSand’s expert witnesses
and ultimately held “the adverse impact on the environment
caused by the mining as permitted will not rise to the
level of impairment or destruction within the meaning of
MEPA.”
17
regime, the permitting decision can never be final. Were
we to adopt the dissent’s extreme understanding of MEPA,
every permit that has ever been issued would be subject to
challenge; any undotted “i” or uncrossed “t” could
potentially invalidate an existing permit. We do not
believe the Legislature intended MEPA to destabilize the
state’s permitting system in this manner.
Imagine the world that the dissent’s reasoning would
create. The present energy crisis offers a good example.
For many years, our country has sought to decrease our
reliance on foreign sources of oil. Suppose an oil company
decided to invest in oil exploration in Michigan in
reliance on a DEQ-issued permit. Under the dissent’s view,
MEPA would authorize a challenge at any time to flaws in
the permitting process. Moreover, under the dissent’s
reasoning, a court must accept as true the bare assertion
that a company’s conduct will destroy natural resources.
It can never rely on a permit to do business. What sane
investor would take such a risk? As gas prices soar, few
people in Michigan would thank this Court for “protecting”
the environment in this radical fashion.
The dissent’s regime would render the permitting
process a useless exercise. It would cripple economic
expansion in Michigan and probably lead to disinvestment.
18
No one would invest money to obtain a permit that is
subject to endless collateral attacks.
MEPA nowhere strips the permitting process of
finality. It is the dissent that makes a mockery of
legislative intent by failing to anchor its exaggerated
claims in the statute’s actual language. See post at 3.
MEPA does not impose the radical requirement that courts
indefinitely police administrative agencies’ permit
procedures and decisions. As noted in Oscoda Chapter of
PBB Action Comm, Inc v Dep’t of Natural Resources, 403 Mich
215, 232-233; 248 NW2d 240 (opinion by Levin, J.) (1978):
A court is not empowered to prevent any
conduct . . . which does not rise to the level of
environmental risk proscribed by [MEPA]. The
standard, ‘has or is likely to pollute, impair or
destroy,’ is a limitation as well as a grant of
power.
Moreover, the Court of Appeals never reached the issue
of whether TechniSand’s actual conduct is likely to harm
natural resources. As already noted, the trial court
specifically held that TechniSand’s conduct did not violate
MEPA. Given this procedural posture, we are puzzled by the
dissent’s statement that defendant’s mining “will” destroy
critical dunes.
After taking extensive testimony on the issue, the
trial court ruled that any “adverse impact on the
19
environment caused by the mining as permitted will not rise
to the level of impairment or destruction within the
meaning of MEPA.” The Court of Appeals did not explicitly
reject the trial court’s findings. Instead, it erroneously
concluded that a permit that affects the environment in any
way may be challenged at any time under MEPA. For the
reasons articulated above, the Court of Appeals erred in
interpreting MEPA in this manner.
CONCLUSION
MEPA affords no basis for judicial review of agency
decisions under MCL 324.63702(1) because that inquiry is
outside the purview of MEPA. The focus of MEPA is to
protect our state’s natural resources from harmful conduct.
It offers no basis for invalidating an issued permit for
reasons unrelated to the permit holder’s conduct. To hold
otherwise would broaden by judicial fiat the scope of MEPA
and create a cause of action that has no basis in MEPA’s
language or structure.
The Court of Appeals erred by treating PTD’s challenge
to TechniSand’s eligibility for a permit under MCL
324.63702(1) as a MEPA claim. Because PTD brought its
claim more than nineteen months after the DEQ issued the
permit, PTD’s claim is time-barred. We reverse the
decision of the Court of Appeals on that issue.
20
We remand the case to the Court of Appeals to review
the circuit court’s findings that TechniSand’s mining
conduct does not violate MEPA, and direct the Court of
Appeals to expedite its review.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
21
S T A T E O F M I C H I G A N
SUPREME COURT
PRESERVE THE DUNES, INC,
Plaintiff-Appellee,
v No. 122611
MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Defendant,
and
TECHNISAND, INC,
Defendant-Appellant.
_______________________________
PRESERVE THE DUNES, INC,
Plaintiff-Appellee,
v No. 122612
MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Defendant-Appellant,
and
TECHNISAND, INC,
Defendant.
_______________________________
KELLY, J. (dissenting).
In 1995, the Michigan Department of Natural Resources
(DNR) denied defendant TechniSand permission to mine
critical dunes because it was ineligible for a permit under
the sand dune mining act1 (SDMA), MCL 324.63701 et seq. One
year later, following Governor Engler’s reorganization of
the DNR, the newly created Department of Environmental
Quality (DEQ) invited TechniSand to apply again, citing
“changes in state government.” TechniSand reapplied and
the DEQ granted a permit despite the fact, now undisputed,
that TechniSand remained ineligible to mine critical dunes.
As a result, critical dunes that would otherwise remain
untouched will be impaired and perhaps destroyed.
Through the decision in this case, a court majority of
four sanctions the DEQ’s unexplained and illegal about-face
on TechniSand’s critical dune mining permit. In the
process, it strikes a devastating blow to Michigan’s
environmental law.2 This majority perpetuates the DEQ’s
1
The Sand Dune Mining Act is codified as part 637 of
the Natural Resources and Environmental Protection Act, MCL
324.101 et seq.
2
The majority’s decision to significantly narrow the
scope of the applicability of the Michigan environmental
protection act (MEPA), MCL 324.1701 et seq., in this case
is compounded by its recent decision in Nat'l Wildlife
Federation & Upper Peninsula Environmental Council v
Cleveland Cliffs Iron Co and Michigan Dep't of
Footnotes continued on following page.
2
unprincipled decision to permit illegal mining of critical
dunes by insulating it from the scrutiny of the Michigan
environmental protection act (MEPA). MCL 324.1701 et seq.
Its holding that the DEQ’s decision to grant the permit to
mine critical dunes is “unrelated to” the destruction of
those critical dunes defies reality. It mocks our
Legislature’s intent to prevent environmental harm. In
addition, it is contrary to this Court’s earlier MEPA
decisions.3
Critical sand dunes, like those at issue in this case,
are specially protected natural resources. The mining act
protects these irreplaceable resources by strictly limiting
who is eligible to mine them. MEPA works in tandem with
the mining act to, in its own words, supplement “existing
administrative and regulatory procedures provided by law.”
MCL 324.1706. Issuance of the permit will directly enable
Environmental Quality, 471 Mich ___ ; ___ NW2d ___ (2004).
There, the same majority ignores thirty years of precedent
and applies judge-created standing tests to MEPA
plaintiffs. It makes this ruling despite the fact that the
statute explicitly grants standing to “any person” to
maintain an action to prevent pollution, impairment, or
destruction of our natural resources. MCL 324.1701(1).
3
See e.g., Eyde v Michigan, 393 Mich 453, 454; 225
NW2d 1 (1975), Ray v Mason Co Drain Comm’r 393 Mich 294,
304-305; 224 NW2d 883 (1975), West Michigan Environmental
Action Council v Natural Resources Comm, 405 Mich 741, 751;
275 NW2d 538 (1979) (WMEAC), and Nemeth v Abonmarche Dev,
Inc, 457 Mich 16; 576 NW2d 641 (1998).
3
destruction of critical dunes that would otherwise remain
untouched. Hence, it is inescapable that the DEQ’s
decision to issue the permit may be challenged under the
environmental protection act.
Moreover, the environmental protection act does not
impose a statutory period of limitations on legal actions
that assert that a party’s conduct will cause environmental
pollution, impairment, or destruction. Therefore, I would
hold that plaintiff’s challenge is not limited by the
statutory period of either the Administrative Procedures
Act (APA) or the Revised Judicature Act (RJA). MCL 24.201
et seq., MCL 600.101 et seq.
I dissent because the majority’s decision subverts the
purposes of the sand dunes mining act and the environmental
protection act by incorrectly insulating the DEQ’s permit
decision from scrutiny under the environmental protection
act. Defendant TechniSand is not eligible for a permit to
mine critical dunes sand under the sand dunes mining act.
Accordingly, I would affirm the decision of the Court of
Appeals.
4
The Majority's Response to the Dissent
The majority’s “Response to the Dissent”4 is an abrupt
departure from its precedent of declining to amend
legislative policy decisions with which it disagrees.5 Its
discussion of the wisdom of the Legislature's decision to
bar sand dune mining by anyone who does not meet limited
eligibility criteria is unsuited for a judicial opinion.
Moreover, the majority’s comparison of the eligibility
problem in the permit to a clerical error and its
suggestion that my position would allow endless challenges
for such trifles are gross exaggerations. Ante at 17-18.
Granting a permit to mine critical dunes to an ineligible
operator is a substantive fault. It is a violation of the
law that allows conduct likely to pollute, impair, or
destroy a natural resource specially protected by the
Legislature. Economic development in this state has not
ceased in the past thirty years. It will not now grind to
a halt under the oppressive weight of permit challenges if
4
Ante at 16-20.
5
This Court has scrupulously declined to consider the
wisdom of the Legislature’s policy decision. See e.g.
Oakland Co Rd Commr’s v Michigan Prop & Cas Guaranty Ass'n,
456 Mich 590, 612-613; 575 NW2d 751 (1998).
5
this Court reaffirms its prior holdings that MEPA allows
challenges to environmentally destructive permit decisions.
Facts and Proceedings Below
Defendant TechniSand purchased real property in 1991
that included both critical and noncritical dune areas.
Along with its purchase, it obtained a permit to mine sand
in noncritical dune areas on one portion of the property.
In 1994, TechniSand applied for an amendment of this permit
to expand sand dune mining to critical dune areas on an
adjacent portion of the property.
The Michigan Department of Natural Resources, the
agency charged with reviewing SDMA permit applications at
the time, denied the application on the ground that
TechniSand was ineligible for an amended permit. The
original permit was to mine in noncritical dune areas and
did not include the property’s critical dune areas. Also,
TechniSand had purchased the land and mining operation
after the deadline to apply for an unassociated permit to
mine the critical dune areas. MCL 324.63702(1)(b).
In 1995, Governor John Engler created a new agency,
the Michigan Department of Environmental Quality (DEQ).
Executive Reorganization Order No. 1995-16 (codified at MCL
324.99903). The DEQ was given responsibility for
administering the SDMA and other environmental permitting
6
programs, and the Governor appointed its director. The DEQ
then wrote to TechniSand indicating that “changes in state
government” and “additional information” from TechniSand
would allow the DEQ to review the permit application.6
TechniSand resubmitted the environmental impact
statement and reclamation plan that it had submitted with
its previous application, without providing additional
information demonstrating how it was eligible for an
amended permit. The DEQ issued the permit later that year.
It did not explain how TechniSand met the eligibility
criteria in the SDMA. Also, it does not now dispute that
TechniSand is ineligible for a permit.
Plaintiff Preserve the Dunes was formed in 1996. In
1998, it sued TechniSand and the DEQ for injunctive relief
to stop TechniSand’s mine expansion. Plaintiff alleged
that TechniSand was ineligible for an SDMA permit and that
its mine expansion violated MEPA.
The trial court ruled that plaintiff’s challenge to
the permitting decision was time-barred under the
6
Letter dated April 1, 1996 from Douglas Daniels and
Kimberly Rice of the DEQ. The letter makes reference to an
April 20, 1995, letter by which Roger Whitener of the DNR
informed TechniSand that, pursuant to an opinion of the
state attorney general, TechniSand was ineligible to mine
critical dunes. The April 1, 1996, letter did not address
TechniSand’s ineligibility to mine critical dunes.
7
Administrative Procedures Act and that the environmental
impact of the mining was insufficient to implicate MEPA.
The Court of Appeals reversed the ruling. 253 Mich App
263; 655 NW2d 263 (2002). It held that the DEQ’s decision
to grant TechniSand’s amended permit could be challenged
under MEPA and that TechniSand did not qualify for a permit
under § 63702 of the SDMA. The DEQ’s decision to amend
TechniSand’s permit, it concluded, violated MEPA.
The Court of Appeals remanded the case to the trial
court for entry of summary disposition for plaintiff.
Because it had found TechniSand ineligible for a permit to
mine the critical dune area, it did not review the trial
court’s finding that the mining itself violated MEPA. This
Court granted the applications for leave to appeal filed by
the DEQ and TechniSand. 468 Mich 869 (2003).
The Sand Dune Mining Act Protects Michigan’s
Critical Dunes from Destruction
It is without contest that the Legislature enacted the
sand dune mining act to stringently protect Michigan's sand
dune areas from further destruction. They are one of the
state's prized natural resources. The Legislature included
in the act special provisions to preserve dune areas it
labeled "critical."
8
It expressly indicated:
The critical dune areas of this state are a
unique, irreplaceable, and fragile resource that
provide significant recreational, economic,
scientific, geological, scenic, botanical,
educational, agricultural, and ecological
benefits to the people of this state and the
people from other states and countries who visit
this resource. [MCL 324.35302(a).]
The Legislature enacted the SDMA out of concern that
mining the dunes consumes them and harms the environment.
The act is an expression of the state’s “paramount”
interest in protecting the dunes. See MCL 324.1701. It
defines “Sand dune mining” as the “removal of sand from
sand dune areas for commercial or industrial purposes.”
MCL 324.63701(l).7 It requires all persons seeking to mine
sand dunes to obtain a sand dune mining permit. MCL
324.63704. Regarding critical dunes, the act states that
“the removal of any volume of sand that is not sand dune
mining within a critical dune area as defined in part 353
is subject to the critical dune protection provisions of
part 353.” MCL 324.63701(l).
7
The statute exempts from this definition the removal
of “volumes of less than 3,000 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 or commercial
purpose.”
9
The SDMA’s flat prohibition against mining any sand in
designated critical sand dune areas is subject only to a
narrow exception. That is, authorized mining entities that
existed when the SDMA was enacted may continue operation
(1) on land in which they had a mining interest before July
5, 1989 or (2) on land adjacent to property in which they
had a mining interest before that date. MCL 324.63702(1).8
These “grandfathering” exceptions reflect the
Legislature’s attempt to balance mining interests that
predated the critical dune designation of July 5, 1989,
with the preservation of the remaining and newly designated
8
MCL 324.62702(1) provides in full:
Notwithstanding any other provision of this
part, the department shall not issue a sand dune
mining permit within a critical dune area as
defined in part 353 after July 5, 1989, except
under either of the following circumstances:
(a) The operator seeks to renew or amend a
sand dune mining permit that was issued prior to
July 5, 1989, subject to the criteria and
standards applicable to a renewal or amendatory
application.
(b) The operator holds a sand dune mining
permit issued pursuant to section 63704 and is
seeking to amend the mining permit to include
land that is adjacent to property the operator is
permitted to mine, and prior to July 5, 1989 the
operator owned the land or owned the rights to
mine dune sand in the land for which the operator
seeks the amended permit.
10
critical dunes. New entities would be unable to begin
operation. Existing entities would have limited
opportunities to mine additional areas. By limiting
critical dune mining to those entities with a preexisting
interest, existing entities would be allowed to continue
operating while ensuring that mining would not last
indefinitely.
The Legislature mandated that these narrow exceptions
for sand dune mining would be implemented through
regulatory permits. MCL 324.63704. The act created a
permitting procedure to ensure that future mining would be
only by parties with a pre-existing legal interest, and in
a manner protective of critical dune areas. It cannot
reasonably be suggested that the eligibility criteria that
completely prohibit all but an expressly defined few
operators from mining critical dunes are not a measure of
environmental protection.
Only if eligibility is verified do additional
environmental protections come into play. Permit
applications by eligible entities are reviewed on a case-
by-case basis to ensure that the proposed mining is
environmentally acceptable. The applicant must submit an
environmental impact statement describing the anticipated
environmental damage that will occur from the mining
11
operation. MCL 324.63704(2)(b). The applicant must explain
why alternative mining locations were not chosen. MCL
324.63705(h). It must include a reclamation plan for the
area to be mined. MCL 324.63704(2)(c), 324.63706.
In reviewing the application, the DEQ must ensure that
the proposed mining is unlikely to pollute, impair, or
destroy natural resources or the public trust in those
resources. MCL 324.63709. Any permit issued must require
that the provisions of the applicant’s progressive cell-
unit mining and reclamation plan are met. MCL
324.63706(3). If threatened or endangered species are
present, the plan must include provisions either to protect
them or to mitigate the effect of mining on them. MCL
324.63706(3)(g).
Plaintiffs May Challenge the Permit Eligibility
Determination Under the Michigan
Environmental Protection Act
The environmental protection act provides that
. . . any person may maintain an action in the
circuit court . . . where the alleged violation
occurred or is likely to occur for declaratory
and equitable relief 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. [MCL
324.1701(1).]
Under this act, a plaintiff makes a prima facie case
by showing “that the conduct of defendant is likely to
12
. . . destroy the . . . natural resources or the public
trust in these resources.” MCL 324.1703(1).9 The
Legislature expressly provided that MEPA supplements
existing regulatory procedures that were provided by law.
MCL 324.1706.
The SDMA’s eligibility restrictions protect critical
dunes from mining by ineligible operators whose conduct is
likely to impair or destroy critical dunes that would
otherwise remain untouched. Hence, the environmental
protection act is applicable to decisions regarding an SDMA
permit applicant’s eligibility. The SDMA specifically
incorporates the Legislature’s recognition that critical
dunes are “irreplaceable” natural resources. MCL
324.35302(a). It provides that “the removal of any volume
of sand . . . within a critical dune area . . . is subject
to the critical dune protection provisions of part 353.”
MCL 324.63701(l). Its provisions strictly limiting
eligibility to mine critical dunes are intended to help
protect critical dunes from pollution, impairment, or
destruction.
9
The majority's reference to MCL 324.1702(2) is
misplaced. Ante at 10. Plaintiffs are not challenging the
DEQ’s imposition on Technisand of the SDMA’s pollution
control standards. They do not challenge the manner in
which permissible activity is undertaken. They challenge
whether Technisand's conduct is permissible at all.
13
Thus, the majority’s suggestion that permit
eligibility is unrelated to whether the conduct permitted
will harm the environment is untenable. Issuance of a
permit to an ineligible operator to engage in any mining of
critical dunes will allow “conduct . . . likely to
pollute, impair, or destroy . . . natural resources or the
public trust in these resources.” MCL 324.1703(1); see
also West Michigan Environmental Action Council v Natural
Resources Comm, 405 Mich 741, 751; 275 NW2d 538 (1979)
(WMEAC).
MEPA is intended to prevent conduct that is likely to
harm the environment as well as to stop conduct that is
presently harming it. In WMEAC, this Court ordered that a
permanent injunction be entered prohibiting the drilling of
oil and gas wells pursuant to a DNR permit. The “issuance
of permits was properly before the circuit court as conduct
alleged to be likely to pollute, impair, or destroy”
natural resources under MEPA. WMEAC at 751. The drilling
would cause “apparently serious and lasting, though
unquantifiable, damage” to elk herd population. WMEAC at
760. This Court concluded that the previous MEPA, MCL
691.1203(1), is violated whenever the effects of permit
issuance harm the environment to the requisite degree.
WMEAC at 751, 760.
14
Unlike permit eligibility for fossil fuel drilling and
other activities that may pollute the environment if done
improperly,10 SDMA permit eligibility is severely
restricted. The applicant must demonstrate a preexisting
mining interest, and no mining may occur until this
requirement has been satisfied. It reflects the
Legislature’s premise that the removal of even one bucket
of sand from a critical dune by an ineligible operator will
inordinately impair the state's critical dune areas. An
action that enables such conduct may be challenged as
destruction or impairment under MEPA.
This Court observed in Nemeth11 that a violation of a
permitting procedure can support a prima facie claim under
MEPA. A “plaintiff’s prima facie case is ‘not restricted
to actual environmental degradation but also encompasses
probable damage to the environment as well.’” Nemeth,
supra at 25, quoting Ray v Mason Co Drain Comm’r, 393 Mich
294, 309; 224 NW2d 883 (1975). In the soil erosion and
10
See also MCL 324.5505 and 324.3106, requiring
permits for activities that may pollute the air and water
without imposing stringent eligibility criteria.
11
See n 3.
15
sedimentation control act,12 the Legislature created a
pollution control standard that this Court held could be
enforced through MEPA. Nemeth, supra at 35.
The Legislature chose to make the SDMA more protective
of the environment than the soil erosion and sedimentation
control act. As already explained,13 the Legislature
determined that any mining of critical dunes by ineligible
entities is an unacceptable destruction of this natural
resource. Hence, the majority’s conclusion that
eligibility is unrelated to conduct is premised on an
artificial and hypertechnical bifurcation of the permitting
process. When concluding that permit eligibility is
unrelated to conduct, the majority buries its head in the
sand.
Its characterization of the eligibility review as an
“initial inquiry”14 is not based on the language of the
statute. The eligibility criteria in MCL 324.63702 are as
much a condition to engage in critical sand dune mining as
the requirements in §§ 63704 through 63706. The SDMA does
not enact a hierarchy or order to be followed by those
12
MCL 324.9101 et seq.
13
Supra beginning at 7.
14
Ante at 7.
16
reviewing a permit application. Unlike this Court’s recent
decision in Nemeth, here the majority reads “likely to” out
of the statute.
The majority argues that an inquiry into the effect on
the environment of the proposed mining “would be pointless
unless the DEQ first determined that the applicant was
eligible for a permit on the basis of the applicant’s
status”. Ante at 7-8. We could not agree more. It would
be pointless for the DEQ to review the effect of the
proposed mining if the applicant were ineligible for a
permit. If the applicant is not eligible, no mining will
occur. Critical dunes will not be destroyed.
The majority attempts to restrict the inquiry into
Technisand's conduct to consideration of the nature of its
relationship to the property at issue. This is
misleading.15 The conduct in question is more than
TechniSand’s “relationship to the mining property.” It
necessarily encompasses TechniSand’s proposal to remove
large quantities of sand from designated critical dunes
that would otherwise remain untouched. This is the “actual
15
See, e.g., ante at 11 n 5. The majority’s implicit
recognition that [c]ountless entities apply for and receive
permits for conduct that affects Michigan's natural
resources," ante at 17, demonstrates the internal
inconsistency of its argument.
17
conduct” that the permit at issue allows and that plaintiff
alleges is “likely to pollute, impair, or destroy” critical
dunes under MEPA. MCL 324.1703(1). 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 MEPA cause of action.
Statutory provisions must be read in the context of
the entire act so as to produce a harmonious whole. Macomb
Co Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247
(2001). Subsections a and b of § 63702(1) must be read
together because of their juxtaposition. Subsection b
applies when the permit holder seeks to expand the permit
to include adjacent land that contains a critical dune area
that it owned before July 5, 1989. In contrast, subsection
a applies to the amendment or renewal of a permit that
already authorizes mining in a particular area.
The permit issued to TechniSand authorized mining only
in the noncritical dune areas. TechniSand had to apply for
a permit amendment to add the adjacent critical dune areas
to its permit. Therefore, subsection b applies to this
case. However, TechniSand did not own the land or the
rights to mine the sand before 1989 as required by the
statute. Therefore, it could not have obtained the permit
18
amendment and could not have engaged in any critical sand
dune mining.
TechniSand’s environmental impact statement16
acknowledged that mining the critical dunes at issue would
“significantly impair the environment and would permanently
destroy critical dune.” 253 Mich App 269. Witnesses
testified from the statement that the mining will change
“the nature of the result in the environment . . . for
hundreds of years”17 and a “large percent of the critical
dune will be removed.”18 Plaintiff’s expert testified that
“The critical dune will be gone.”19
Nonetheless, the majority holds that the DEQ’s
determination that TechniSand is eligible to mine critical
dunes is unrelated to whether TechniSand’s mining
activities will pollute, impair, or destroy a natural
16
The majority criticizes me for citing a document
“not in the record.” Ante at 17. However, it was Exhibit
21 at trial, and witnesses read from it. See Trial Tr at
122, 582, 785, and 932. Plaintiff’s brief on appeal in the
Court of Appeals quoted it at p 6. The record on appeal
includes all original papers filed in the courts below.
MCR 7.311(A). Plaintiff included an excerpt in the
appendix (p 14b) to its brief on oral argument before this
Court. See MCR 7.308.
17
Trial Tr at 935.
18
Id. at 785.
19
Id. at 122.
19
resource. Thus, it concludes that plaintiff cannot rely on
MEPA to challenge the permit that has been issued. The
majority’s reasoning undermines the critical dunes
protections in the SDMA, the intent of MEPA, and this
Court’s earlier MEPA decisions.
Plaintiff is not required to challenge issuance of the
permit as an administrative decision under either the
Administrative Procedures Act (APA) or the Revised
Judicature Act (RJA). The MEPA is “supplementary to
existing administrative and regulatory procedures provided
by law.” MCL 324.1706. It was intended to create a common
law of environmental protection. Ray at 306. It does not
require that a plaintiff exhaust administrative remedies.
MCL 324.1701(1). Accordingly, the statutory period of
limitations of neither the APA nor the RJA apply to
plaintiff’s MEPA claim.20 Plaintiff’s challenge to
Technisand’s permit under the MEPA is not time-barred.
The DEQ does not dispute that TechniSand is ineligible
for a permit. Recognizing plaintiff’s claim under the
20
The MEPA itself imposes no statutory period of
limitations, but equitable claims under the Natural
Resources and Environmental Protection Act, which houses
MEPA, have been held subject to the six-year statutory
period of MCL 600.5813. Attorney General v Harkins, 257
Mich App 564, 571; 669 NW2d 296 (2003).
20
environmental protection act expresses no disrespect for an
administrative agency’s decision. The majority abdicates
its responsibility by refusing to review this permit
eligibility determination under MEPA.21
Conclusion
The majority's decision today wrongly insulates Sand
Dune Mining Act permit eligibility determinations from
judicial review. The decision to issue a sand dune mining
permit pursuant to the SDMA inherently includes an
environmental component. I would hold that issuance of the
permit in this case can be challenged under the Michigan
environmental protection act.
The Legislature intended the act to apply to permit
determinations. Application of the act to permit
determinations is entirely consistent with the
Legislature’s intent to stringently preserve Great Lakes
sand dunes against degradation and to protect the integrity
21
The majority cites Oscoda Chapter of PBB Action
Comm, Inc v Dep’t of Natural Resources, 403 Mich 215, 233;
268 NW2d 240 (1978) to support its finality argument. But
its quotation from the case is taken out of context and is
from an opinion that did not garner a majority of votes.
The statement addressed the court’s authority to consider
feasible and prudent alternatives to proposed conduct, an
issue entirely unrelated to the majority’s decision that
this permit challenge under MEPA is time-barred.
21
of that environment. The majority’s reasoning frustrates
that intent.
Plaintiff's cause is not barred by the statutory
limitations periods of the APA and the RJA. The Court of
Appeals correctly remanded the case for entry of an order
granting summary disposition for plaintiff. Its decision
should be affirmed.
Because the majority ignores both the reality of the
permitting process and the Legislature’s intent to protect
critical dune areas from destruction, I must dissent.
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
22