P.O. Box 581, Riverside, MI 49084
*** COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF ***
Plaintiff states:
1. The Plaintiff Preserve the Dunes, Inc., is a Michigan Not For Profit Corporation. Its corporate purpose is to promote environmental awareness and to protect the natural resources of this state from pollution, impairment or destruction. The Plaintiff possesses standing to bring this action pursuant to § 1701 of the Natural Resources and Environmental Protection Act (MCLA 324.1701).
2. The Michigan Department of Environmental Quality is an agency of the State of Michigan charged with, among other things, regulation of sand dune mining activities and enforcement of State laws regulating sand dune mining. Under § 63704 of Part 637 of the Michigan Natural Resource and Environmental Protection Act (MCLA 324.63704) sand dune mining within Great Lakes sand dune areas is prohibited without a permit issued by the Defendant DEQ.
3. On information and belief, the Defendant TechniSand, Inc., is a corporation which was incorporated in the State of Delaware in July of 1991. It is authorized to do business in the State of Michigan and conducts systematic commercial sand mining operations within Great Lakes dune areas in Michigan under permits issued by the Defendant DEQ.
4. Part 637 of the Natural Resources and Environmental Protection Act (MCLA 324.63701 et seq) regulates sand dune mining activities within Great Lakes sand dune areas. Pursuant to § 63701(k) of Part 637 [MCLA 324.6370 1(h)], all sand dunes within two (2) miles of the ordinary high water mark of a Great Lake are subject to the regulations of the Act. Section 63704 of Part 637 (MCLA 234.63704) prohibits a person or operator from mining sand in a Great Lakes sand dune area without first obtaining a permit for such activity from the DEQ.
5. Part 353 of the Natural Resources and Environmental Protection Act (MCLA 324.35301 et seq) further regulates uses of critical dune areas within Great Lakes dune areas. In § 35301(c) of Part 353 [MCLA 324.35301(C)] critical dune areas are defined as those geographic areas designated in the atlas of critical dune areas prepared by the DEQ in February of 1989.
In § 35302 of Part 353 (MLCA 324.35302) the legislature has made the following specific findings:
| "(a) | The critical dune areas of this state are a unique, irreplaceable, and fragile resource that provides significant recreational, economic, scientific, geological, scenic, botanical, educational, agricultural, and educational benefits to the people of this state and 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 alterations, industrial, residential, commercial, agricultural, silbicultural, and residential 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." |
7. As part of the legislative scheme to protect critical dunes, § 63702 of Part 637 (MCLA 324.63702)prohibits the DEQ from issuing a sand dune mining permit within a critical dune area. There are only two exceptions to this otherwise blanket prohibition against mining critical dunes. They are:
| "(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 in standards applicable to a renewal or amendatory application. |
| (b) | The operator holds a sand dune mining permit issued pursuant to § 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." |
8. An operator is defined in § 63701(j) of Part 637 [MCLA 324.63701(j)] as meaning:
"An owner or lessee of mineral rights or any other person engaged or preparing to engage in sand dune mining activities with respect to mineral rights within a sand dune area."
9. This is an action for declaratory judgment which the Plaintiff brings pursuant to MCR 2.605 and MCLA 324.1701. An actual controversy exists between the parties. The Plaintiff seeks a declaration and judgment, as more fully set forth herein, that the Defendant DEQ unlawfully issued to TechniSand a permit allowing TechniSand to extend mining activities from a non-critical into a critical dune area, as defined in § 35301(c) of the Natural Resources and Environmental Protection Act [MCLA 324.35301(c)].
10. The Plaintiff also seeks a preliminary and/or permanent injunction, pursuant to MCR 3.310 and MCLA 324.1701 which (a) orders the DEQ to rescind the permit it issued allowing TechniSand to extend mining activities into a critical dune area, and (b) prohibiting TechniSand from further mining activities in critical dune areas pursuant to the mining permit herein challenged.
11. This action involves property located in Hagar Township, Berrien County, Michigan, commonly known as the "Nadeau Site". The sand mining activities which Plaintiff seeks to enjoin are carried out in Hagar Township, Berrien County, Michigan, and venue in the Berrien County Trial Court is proper.
12. Upon information and belief, on July 31, 1991, TechniSand purchased from Manley Brothers of Indiana, Inc. property located in Hagar Township, Berrien County, Michigan, commonly referred to as the "Nadeau Site". The Nadeau Site lies within a Great Lakes sand dune area and is subject to the protections and regulations contained in Part 637 and Part 353 of the Natural Resources and Environmental Protection Act (MCLA 324.63701 et seq and MCLA 324.35301 et seq). A portion of the western parcel of the Nadeau Site contains critical dunes areas, as defined in § 35301(b) of Part 353 of the Natural Resources and Environmental Protection Act [MCLA 324.35301(b)]. The eastern parcel of the Nadeau Site contains non-critical dunes.
13. Since at least 1983, Manley Brothers of Indiana possessed a permit issued by the DEQ to mine sand from approximately 26.5 acres of non-critical dunes located in the eastern parcel of the Nadeau Site. The permit has been renewed on several occasions. Currently the permit (No. TS-NS-107) is held by TechniSand, owner of the Nadeau Site, allowing it to mine non-critical dunes. The permit will expire on December 31, 2000.
14. In 1996 TechniSand applied to the DEQ for an amendment of its Nadeau Site sand mining permit. The application requested permission to mine approximately 126.5 acres located in the western parcel of the Nadeau Site. The proposal (known as the "Taube Road Expansion") was to extend mining from a non-critical sand dune area into a critical dune area, the creation of two lakes of 9.8 and 13.7 acres and the relocation of threatened species of flora. On information and belief, the permit amendment to extend mining into a critical area was requested as an exception to the prohibition against mining critical dune areas contained in MCLA 324.702(1)(b).
15. On November 24, 1996, the DEQ issued the requested amended permit to TechniSand allowing it to expand its mining operations into critical dune areas at its Nadeau Site.
16. Plaintiff realleges and incorporates as if fully set forth herein its allegations contained in Paragraphs 1 through 16 above.
17. The DEQ was without legal authority to issue an amended mining permit allowing TechniSand to expand existing mining operations from a non-critical dune area of the Nadeau Site to an adjacent critical dune area because the exceptions contained in MCLA 324.63702(1)(b) to the otherwise total prohibition against mining critical dunes do not apply. More specifically:
A. As a matter of fact, TechniSand had no corporate existence prior to July 5, 1989 and therefore, was not, on or before that date, the "owner" of the property for which the amended mining permit was issued and was not, on or before that date, an "operator" as is defined in MCLA 324.63701(j). Accordingly, TechniSand did not qualify for an exception to the statutory prohibition against mining activities in critical dune areas.
B. As a matter of law, when TechniSand purchased the Nadeau Site in 1991 from Manley Brothers of Indiana, Inc., it purchased the property subject to all legal restrictions then pertaining to the property. As of the date of TechniSand's purchase of the property critical dune mining in Michigan had been abolished. However, entities such as Manley Brothers, who were operators and who possessed a permit to mine critical dunes prior to July 5, 1989, were granted an exemption to the statutory abolition of critical dune mining pursuant to MCLA 324.36702. Manley Brothers had no right to transfer, assign or sell its entitlement to this statutory exemption (or put another way, its privilege from enforcement of a statutory prohibition), and TechniSand acquired no right to be exempt from the prohibition against critical dune mining upon purchase of the Nadeau Site. Accordingly, the DEQ was without legal authority to grant TechniSand an amended permit allowing it to mine critical dunes.
C. As a matter of law, the statutory exception to the prohibition against mining in critical dune areas contained in MCLA 324.63702(1)(b) permits only expansion of critical dune mining existing as of July 5, 1989, which was on or before that date, lawfully permitted. It does not permit expansion of sand dune activities from a non-critical dune area to a critical dune area. The DEQ was thus without legal authority to grant TechniSand an amended permit allowing it, for the first time, to extend mining operations at the Nadeau Site into a critical dune area.
WHEREFORE, the Plaintiff requests that this Court enter a judgment which declares that the DEQ was without lawful authority to grant the amended mining permit to TechniSand and which declares that TechniSand is without lawful entitlement to such a permit.
18. Plaintiff realleges and incorporates as if fully set forth herein its allegations contained in Paragraphs 1 through 17 above.
19. As herein before alleged, TechniSand's amended sand mining permit was issued by the DEQ without statutory authority and should be declared invalid. Unless the Defendants are enjoined, the natural resources of the state, and in particular, critical dune areas within the Nadeau Site in Hagar Township, Berrien County, Michigan, which the legislature has determined are a "unique, irreplaceable and fragile resource" will be impaired or destroyed. No remedy at law can compensate for the impairment or destruction of such a resource.
WHEREFORE, Plaintiff requests that this Court enter injunctive relief as follows:
A. That it issue a mandatory injunction against the DEQ, which requires that agency to rescind and revoke the permit it issued on November 24, 1996, to the extent that the permit allows TechniSand to mine critical dunes within the Nadeau Site.
B. That it issue an injunction against TechniSand prohibiting it from mining critical dunes within the Nadeau Site.
C. That it grant such other relief as is deemed reasonable and just by this Court.