P.O. Box 581, Riverside, MI 49084
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Hon. David M. Peterson
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| vs.
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| Prepared by:
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I. THE LEGISLATIVE FRAMEWORK FOR PROTECTION OF THE ENVIRONMENT AND REGULATION OF SAND DUNE MINING
II. THE MEPA IS A PROPER VEHICLE FOR CHALLENGING ADMINISTRATIVE DECISIONS TO ISSUE SAND DUNE MINING PERMITS
III. THE APPEAL PROVISIONS OF THE REVISED JUDICATURE ACT ARE INAPPLICABLE TO A CASE, SUCH AS THE PRESENT ONE, WHERE THE PLAINTIFF SEEKS TO PROTECT A PUBLIC AS OPPOSED TO PRIVATE INTEREST AND WHERE THE PLAINTIFF ASSERTS THAT THE ACTION OF AN ADMINISTRATIVE AGENCY IS LIKELY TO DAMAGE THE ENVIRONMENT
IV. THE PLAINTIFF'S AMENDED COMPLAINT ALLEGES FACTS SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE THAT THE DEFENDANTS HAVE VIOLATED THE MEPA
A. The critical dune area which the DEQ has authorized TechniSand to mine is a natural resource worthy of protection under the MEPA 14
B. The Defendant TechniSand's proposed mining of the critical dune area in question here will destroy a natural resource in violation of the MEPA 15
C. The DEQ's issuance of an amended permit to TechniSand violates the MEPA because (a) TechniSand was not eligible for the permit and the DEQ was without authority to grant the permit, and (b) because the DEQ violated the MEPA by issuing a permit when a review of TechniSand's EIS demonstrated that the proposed activity would destroy a natural resource protected by the MEPA 16
V. THE DEFENDANT TECHNISAND'S MOTION FOR CHANGE OF VENUE SHOULD BE DENIED
The Plaintiff has filed suit under the Michigan Environmental Protection Act (MCLA 324.1701 et seq) seeking both declaratory and injunctive relief in order to protect a critical sand dune area in Berrien County from threatened destruction. In its Amended Complaint the Plaintiff asserts:
(1) That Defendant TechniSand's proposed mining of a critical dune area pursuant to a permit issued by the Defendant DEQ will destroy a unique, fragile and irreplaceable natural resource in violation of the MEPA (Plaintiff's Complaint Paragraph 18);
(2) That the Defendant DEQ has violated the MEPA by issuing an amended sand mining permit to TechniSand which allows TechniSand to mine and destroy a unique, irreplaceable and fragile resource (Plaintiff's Complaint Paragraph 19); and
(3) That the Defendant DEQ was without legal authority to issue an amended mining permit to TechniSand because TechniSand did not qualify for an exemption from the statutory prohibition against mining critical dunes, and that by issuing an invalid permit the DEQ committed an act which threatens the destruction of a unique, irreplaceable and fragile natural resource in violation of the MEPA (Plaintiff's Complaint Paragraph 20).
Both Defendants have moved for summary disposition under MCR 2.116(C)(8) asserting that the Plaintiff has failed to state a claim upon which relief can be granted. It is the Defendants' claim that:
(1) The Plaintiff's Complaint represents a challenge to an administrative agency's action and, therefore, the Plaintiff's only remedy is through an appeal from administration action under the Revised Judicature Act; and
(2) That the Plaintiff's challenge to an administrative agency's action is untimely.
For the reasons more fully set forth below, the Defendants' motions are without merit and should be denied.
| I. | THE LEGISLATIVE FRAMEWORK FOR PROTECTION OF THE ENVIRONMENT AND REGULATION OF SAND DUNE MINING. |
In 1976 the legislature enacted a law for the study, protection, management and reclamation of Great Lakes sand dunes. The statute was known as the Sand Dune Protection and Mining Act (Act 222 of the Public Acts of 1976). It authorized the DNR's Geological and Survey Division (GSD) to regulate and oversee sand mining activities in order to insure the protection of the State's sand dune formations.
In June of 1989 the statute was amended to expand the regulatory authority of the DNR (now DEQ) to monitor and control all proposed activities within designated sand dune areas. The amendment also identified certain areas within Great Lakes sand dunes as "critical dune areas" and provided additional restrictions on the use of or activities within critical dune areas.
In 1994 the legislature compiled and consolidated all of Michigan's environmental laws into a single code called the Natural Resources and Environmental Protection Act (MCLA 324.101 et seq). The Code is divided into a number of non-sequential "parts" relating to such diverse environmental laws as mineral mining, harbors and docks, soil erosion and sediment control, forest and timber management, and the like. This codification split the old Sand Dune Protection and Management Act into two inter-related parts: Part 637-Sand Dune Mining and Part 353-Sand Dune Protection and Management. The 1994 statutory compilation also incorporated the Michigan Environmental Protection Act (MEPA) as Part 17 of the Code. These three parts, and their inter-relationship, are what is presently at issue before the Court.
The Michigan Environmental Protection Act is derived from Article 4, Section 52, of the Michigan Constitution of 1963, which mandates:
| "The conservation and development of the natural resources of this state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of this state from pollution, impairment and destruction." |
The MEPA was enacted in response to this constitutional directive. Section 1701(1) of the MEPA provides:
| "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." |
The Michigan Supreme Court has recognized that the MEPA is a unique and significant piece of legislation. In Eyde v Michigan, 393 Mich 453, 454 (1975) the Court noted:
| "The MEPA is significant legislation which gives the private citizen a sizeable share of the initiative for environmental law enforcement. The Act creates an independent cause of action, granting standing to private individuals to maintain actions in the circuit court for declaratory and other equitable relief against anyone for the protection of Michigan's environment." |
The MEPA thus empowers each citizen of this State to act as a private attorney general for the protection of the environment. In keeping with the broad protective purpose of the statute, Section 1706 of the Act provides that the Act is to be supplementary to any other existing administrative or regulatory procedures.
B. Part 353--Sand Dunes Protection and Management
This part is intended to provide additional and supplementary protection for "critical dunes" that are located within Great Lakes sand dunes areas. The legislature has determined that these critical dune areas are unique, irreplaceable and fragile resources:
| "Section 35302. The legislature finds: | |
| (a) | The critical dune areas of this State are unique, irreplaceable, and fragile resource that provides significant recreational, economic, scientific, geological, scenic, botanical, educational, agricultural and ecological benefits to the people of this state and to the people from other states and countries who visit this resource. |
| (b) | Local units of government should have the opportunity to exercise the primary role in protecting and managing critical dune areas in accordance with this part. |
| (c) | The benefits derived from alteration, industrial, residential, commercial, agricultural, silvicultural, and the recreational use of critical dune areas shall occur only when the protection of the environment and the ecology of the critical dune areas for the benefit of the present and future generations is assured." |
Part 353 regulates land use within critical dune areas through zoning ordinances which local units of government must adopt. The zoning ordinances must, at a minimum, be at least as environmentally protective as the state's model zoning plan.
Part 637 applies to sand dune areas lying within two miles of the ordinary high water mark of a Great Lake. Section 63704 prohibits operators from engaging in sand dune mining within a Great Lakes sand dune area without first obtaining a mining permit from the DEQ. An operator seeking a permit must submit to the DEQ an environmental impact statement (EIS) and a progressive cell unit mining and reclamation plan (PCUMRP). The statute contains a detailed prescription of what the EIS and PCUMRP must contain in order for the DEQ to consider issuing a permit. However, with but two exceptions, the statute prohibits altogether the DEQ from issuing a sand mining permit for critical dune areas lying within a Great Lakes sand dune. Section 63702 provides:
| "Section 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 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 criterion 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 an amended permit." |
In addition, Part 637 prohibits the DEQ from issuing a sand mining permit where the proposed sand mining is likely to pollute, impair or destroy a natural resource. Section 63709 states:
| "The Department shall deny a sand dune mining permit if, upon review of the environmental impact statement, it determines that the proposed sand dune mining activity 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." |
Part 17 referenced in this provision is the MEPA. Thus, the DEQ is without authority to issue a sand dune mining permit where the mining activity is likely to violate the MEPA. This is an important provision which subordinates sand dune mining permits to the requirements of the MEPA and limits the discretion of the DEQ in issuing such permits.
| II. | THE MEPA IS A PROPER VEHICLE FOR CHALLENGING ADMINISTRATIVE DECISIONS TO ISSUE SAND DUNE MINING PERMITS. |
| "We conclude that the issuance of the permits to drill ten exploratory wells was properly before the circuit court as conduct alleged to be likely to pollute, impair and destroy the air, water or other natural resources or the public trust therein." id. at Pp. 751 |
The Supreme Court ruled that the issuance of the drilling permits was an act which would likely lead to the pollution, impairment or destruction of a natural resource and thus the agency's decision to issue the permits was properly challenged under the MEPA.
Since the West Michigan Environment Council decision was handed down, Michigan Courts have uniformly ruled that administrative agency action relating to the environment may be directly attacked through an MEPA lawsuit. See for example Wortelboer v Benzie County, 212 Mich App 208, 220 (1995) holding that administrative action, such as the issuance of permits, is a sufficient basis upon which to invoke the MEPA. In that case the Court of Appeals observed that the issuance of permits can itself constitute actionable conduct sufficient to invoke the MEPA. Likewise, in Addison Township v Gout, 171 Mich App 122 (1988) the Court of Appeals held that the MEPA does not require exhaustion of administrative remedies as a prerequisite to suit. More recently, in Township of Holly v DNR, 189 Mich App 575 (1989) the Court of Appeals ruled (1) that plaintiff was entitled to utilize the MEPA to challenge the issuance of a permit allowing the operation of a solid waste landfill without first seeking administrative relief, and (2) that the challenged permit was not authorized by law and was thus invalid.
The Michigan Supreme Court recently reaffirmed the principles it first enunciated in West Michigan Environmental Council. In Nemeth v Abonmarche Development, 457 Mich 16 (1998) the plaintiffs brought an action under the MEPA seeking to enjoin a developers excavation of soil under a permit issued by a City's soil erosion control officer pursuant to the Soil Erosion and Sediment Control Act (SESCA). The trial court held that the permit had been unlawfully issued and was invalid. The trial court further held that excavating without a valid permit violated the SESCA and thus established a prima facie case under the MEPA. It therefore granted a permanent injunction. On appeal, the Supreme Court affirmed. It held that (1) the trial court correctly determined that the excavation permit was invalid, (2) the excavation performed under an invalid permit violated the SESCA, and (3) the violation of a separate environmental statute such as the SESCA can serve as a basis for an MEPA claim.
These cases affirm the principles contained in Section 1706 of the MEPA which provides that the statute is supplementary to existing administrative and regulatory procedures. As a supplement to existing environmental laws (in this case Parts 353 and 637 of the Natural Resources and Environmental Protection Act) the MEPA may be employed as a direct method for enforcing environmental regulations and for protecting the natural resources of this state. Administrative agency decisions, such as the DEQ's issuance of an amended sand mining permit to TechniSand, may thus be challenged through an MEPA lawsuit. Administrative appeal is not required.
The Defendants attempt to characterize the Plaintiff's Amended Complaint as simply an appeal from an administrative agency's action. They insist that the only recourse available to the Plaintiff is a petition to Circuit Court for review of the agency action under Section 631 of the Revised Judicature Act (MCLA 600.631). Defendants thus assert that the Plaintiff's Complaint is untimely because it was not filed within the time limits of that statute and the Court Rules pertaining to the statute.
The Defendants' reliance upon Section 631 of the RJA is misplaced. That statute was enacted pursuant to Article 6, Section 28, of the Michigan Constitution of 1963 which mandates that:
| "All final decisions, findings, rulings and order of any administrative officer or agency existing under the Constitution or by law, which are judicial or quasi judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence in the whole record. Findings of fact in workmens compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law." (Emphasis added) |
Although Circuit Court review of administrative decisions under the RJA is available to litigants whose privates rights or licenses are affected by the administrative agency's action, that statute is inapplicable to cases in which the plaintiff seeks to protect public interests, rather than to solely private interests. Beechnau v Secretary of State, 42 Mich App 328 at 330 (1972). In addition, where there is no claim that the administrative action will damage the environment, the complaint must be treated as an appeal under Section 631 of the RJA. However, where a complaint challenging administrative action is grounded on an allegation that the proposed administrative action will impair the environment and thus violate the MEPA, it must treated as an appeal under the MEPA. Michigan Waste Systems v DNR, 147 Mich App 729 at 736 (1985).
Here, the plaintiff's MEPA lawsuit does not purport to protect "private rights or licenses". Rather, it seeks to protect "the natural resources and public trust in those resources from pollution, impairment or destruction" MCLA 324.1701(1). Indeed, had the Plaintiff brought this action under Section 631 of the RJA the suit would have been subject to dismissal due to Plaintiff's lack of standing, because Plaintiff does not, and could not, assert that any private right or license personal to it has been adversely affected by the Defendants' conduct. Rather, the lawsuit seeks to vindicate the public trust in protecting the environment from despoilization. Accordingly, there is no basis which would allow a court to construe the Plaintiff's Amended Complaint as an appeal under the RJA.
Furthermore, the MEPA itself establishes that it is "supplementary to existing administrative and regulatory procedures provided by law". MCLA 324.1706. Thus, even if Plaintiff arguably could have appealed the DEQ's issuance to TechniSand of an amended sand mining permit under the provisions of the RJA, it was not required to do so. The MEPA, as supplementary to existing regulations and procedures, constitutes an independent method of challenging agency decisions where damage to the environment is likely. In Nemeth v Abonmarche Development, supra, the Michigan Supreme Court, at Page 30, noted that the MEPA is supplementary to other administrative and regulatory procedures, and thus creates an independent cause of action unfettered by administrative procedures. The Supreme Court quoted with approval the following observations of the United States Court of Appeals for the Sixth Circuit in the case of Her Majesty the Queen v Detroit, 874 F 2d 332, 341 (6th Cir, 1989):
| "Michigan Courts are not bound by any state administrative finding, or any federal law. Even though the federal government may determine that a plant is not in violation with either state or federal environmental laws, Michigan Courts are still empowered to determine whether the standards applied by the federal government are appropriate and if not, determine whether the plant would meet any more stringent standards selected by Michigan Courts. In sum, the MEPA creates a state environmental common law that is unaffected by federal law, and creates an independent state action that is unaffected by anything that happens in the federal sphere of government." |
Thus, the Defendants' characterization of the Plaintiff's lawsuit is merely an untimely request for judicial review of an administrative agency's decision under the RJA is clearly unsupportable and misleading. The MEPA creates an independent cause of action for the protection of the State's environment. It empowers private citizens to protect the public trust in the natural resources of this State, even where no private interest of the Plaintiff is affected. It allows a citizen acting as a private attorney general to challenge agency decisions that are likely to impair the environment without seeking or exhausting administrative remedies. It requires Courts to review the action of administrative agencies de novo, and without deference normally afforded to agencies in appeals under the RJA.
| IV. | THE PLAINTIFF'S AMENDED COMPLAINT ALLEGES FACTS SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE THAT THE DEFENDANTS HAVE VIOLATED THE MEPA. |
Section 1703 of the MEPA (MCLA 324.1703) provides that once a plaintiff has made a prima facie showing that the conduct of the defendant is likely to impair or destroy a natural resource or the public trust in the resource, the burden shifts to the defendant to rebut the prima facie case. The MEPA does not require the resource to be scarce or unique in order to come within the statute's protections. See Nemeth v Abonmarche Development, supra, where the Supreme Court observed:
| "The MEPA does not require air, water or other natural resources to be "scarce" or "unique" to be protected from actual or likely pollution, impairment or destruction. Indeed, one of the primary purposes of the MEPA is to protect our natural resources before they become "scarce"." id. at p. 34-35. |
All that is required to establish a prima facie case is a showing that (1) the natural resource is worthy of protection under the MEPA, and (2) that the defendant's action threatens to impair or destroy that resource.
Here, the Plaintiff's Amended Complaint alleges facts that clearly establish a prima facie case that the Defendants have violated the MEPA by threatening to destroy a natural resource.
A. The critical dune area which the DEQ has authorized TechniSand to mine is a natural resource worthy of protection under the MEPA.
The legislature has already determined that critical dune areas constitute vital natural resources deserving of legal protection. Its legislative findings alone establish that fact:
| "Section 35302. The legislature finds that: | |
| (a) | The critical dune areas of this state are a unique, irreplaceable, and fragile resource that provide significant recreational, economic, scientific, geologic, scenic, botanical, educational, agricultural and ecological benefits to the people of this state and to the people from other states and countries who visit this resource." |
| * * * | |
| "(c) | The benefits derived from alteration, industrial, residential, commercial, agricultural, silvicultural, and recreational use of critical dune areas shall occur only when the protection of the environment and the ecology of the critical dune areas for the benefit of present and future generations is assured." |
When coupled with the nearly total statutory prohibition contained in MCLA 324.6372 against mining critical dune areas after July 5, 1998, there can be little question that the critical dune area in question here constitutes a natural resource within the meaning of the MEPA and that it is a natural resource which is protected by the MEPA.
B. The Defendant TechniSand's proposed mining of the critical dune area in question here will destroy a natural resource in violation of the MEPA.
Again, there can be no dispute that the sand mining proposed by TechniSand will destroy the critical dune area. TechniSand has acknowledged that fact in the environmental impact statement which it submitted to the DEQ (see Exhibit A). In that EIS, TechniSand reported to the DEQ that:
| "The proposed project will greatly alter the physical, biological and geological characteristics of approximately 76.9 acres, or 61% of the Taube Road Expansion of the Nadeau Site...However, the nature of the resulting environment will be different for hundreds of years...The habitat at a few locations for two threatened species listed by the State of Michigan will be impacted by the proposed operations...The aesthetic quality of the property will also be impacted because a large percentage of the critical dune will be removed, forever changing the most dominant physical attributes of the site." (Emphasis added). |
Because TechniSand's proposed mining will destroy a natural resource protected by the MEPA, its proposed activities violate the MEPA.
C. The DEQ's issuance of an amended permit to TechniSand violates the MEPA because (a) TechniSand was not eligible for the permit and the DEQ was without authority to grant the permit, and (b) because the DEQ violated the MEPA by issuing a permit when a review of TechniSand's EIS demonstrated that the proposed activity would destroy a natural resource protected by the MEPA.
The DEQ's violations of the MEPA are two-fold. First, as is alleged in Paragraph 20 of the Plaintiff's Amended Complaint, TechniSand was not eligible for an exemption from the statutory prohibition against mining critical dunes and the DEQ was, accordingly, without authority to grant such a permit. The granting of an invalid permit is, in itself, actionable conduct sufficient to invoke the MEPA. See Wortelboer v Benzie County, supra, at p 221.
Second, MCLA 324.63709 provides that:
| "The Department shall deny a sand dune mining permit if, upon review of the environmental impact statement, it determines that the proposed sand dune mining activity is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in those resources, as provided in Part 17." |
A review of TechniSand's EIS indisputably establishes that the proposed mining activity will destroy a natural resource protected by the MEPA. The DEQ was, accordingly, compelled by law to deny the permit request. Its violation of Section 63709 constitutes a prima facie violation of the MEPA.
For the foregoing reasons, Plaintiff's Complaint alleges facts which, if proved, will establish a prima facie showing that the Defendants have violated the MEPA. Furthermore, because the facts as alleged by Plaintiff are not in dispute, Plaintiff will be able to establish such a prima facie case.
| V. | THE DEFENDANT TECHNISAND'S MOTION FOR CHANGE OF VENUE SHOULD BE DENIED. |
TechniSand seeks to change venue because it asserts (1) that Plaintiff's lawsuit constitutes a challenge to administrative action under Section 631 of the RJA (or alternatively, that Plaintiff's Complaint should be viewed as an appeal under the Administrative Procedures Act), and (2) even if venue in Berrien County is proper, the case should nevertheless be moved to either Ingham or Kalamazoo County because that is where the alleged wrong occurred, or where witnesses, personnel and documents are located.
As examined in Part III of his brief, Plaintiff's lawsuit is not, and should not be characterized as, an appeal under the RJA. It is properly before the Court as an independent action under the MEPA. Accordingly, the venue provisions of the RJA (and the APA for that matter) are inapplicable.
As to the Defendant's second point, Section 1701(1) of the MEPA provides that an MEPA action may be maintained in the Circuit Court "where the alleged violation occurred or is likely to occur". This provision has been construed to mean that the Plaintiff may choose to bring the action in the county where the decision was made which allegedly violates the Act, or in the county where the alleged environmental damage will occur. Robinson v Department of Transportation, 120 Mich App 656 (1981). Here, the Plaintiff has chosen to bring this action in the county where the environmental damage will occur, as is its right under the MEPA. Venue in Berrien County is, accordingly, proper.
To the extent that the Defendant's Motion could be construed as a request to change venue for the convenience of the parties or witnesses it also must fail. Where venue is proper MCR 2.222(A) permits a court to change venue "for the convenience of parties or witnesses". However, the burden of proof rests with the moving party when a change of venue is sought. Chilingirin v City of Fraser, 182 Mich App 163 (1989). The burden is to make a "persuasive showing" that one county is more convenient than the other. The Plaintiff's choice of venue is to be accorded due deference. See Duyck v International Playtex, Inc., 144 Mich App 595 (1985). Unless the balance is strongly in favor of the Defendant, the Plaintiff's choice of forum should rarely be disturbed. Cray v General Motors Corp., 389 Mich 382 (1973).
The Defendant TechniSand has failed to make a "persuasive showing" that the Plaintiff's choice of forum should not be accorded due deference. It merely asserts that "it would be no more inconvenient for the Plaintiff to try this case in Ingham or Kalamazoo County than in Berrien County". The fact that several counties may be equally convenient (or inconvenient) does not warrant a change of venue. Here, the MEPA clearly authorizes venue in Berrien County and Plaintiff's choice to bring this action in Berrien County should be afforded the due deference to which it is entitled.
| Dated: | TAGLIA, FETTE, DUMKE, PASSARO & KAHNE, P.C. |
| October 16, 1998 |
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