P.O. Box 581, Riverside, MI 49084
| PRESERVE THE DUNES, INC.,
|
Hon. Scott Schofield File No. 98-3789-CE-S |
| vs. MICHIGAN DEPARTMENT OF
|
| THOMAS R. FETTE (P13396) Attorney for Plaintiff Taglia, Fette, Dumke, Passaro & Kahne, P.C. 720 State St., P.O. Box 890 St. Joseph, Michigan 49085 1-616-983-0755 |
JAMES R. PIGGUSH (P29221) S. PETER MANNING (P45719) Attorneys for Defendant MDEQ Assistant Attorney General Natural Resources Division 300 S. Washington Sq., Ste 530 Lansing, Michigan 48913 1-517-335-1488 |
| JAMES H. GEARY (P13892) SUSAN E. PADLEY(P42526) Attorneys for Defendant TechniSand Howard & Howard Attorneys, P.C. 100 Portage Street, Suite 200 Kalamazoo, Michigan 49007 1-616-382-1483 |
The Plaintiff Preserve the Dunes moves for an order granting it summary disposition pursuant to MCR 2.116(C)(10). In support of this motion the Plaintiff states:
1. In 1996 the Defendant DEQ issued an amended sand dune mining permit to the Defendant TechniSand which authorizes TechniSand to mine and remove sand from within a critical dune area on property known as the "Nadeau Site", located in Berrien County, Michigan. The Plaintiff has filed this lawsuit pursuant to the authority contained in the Michigan Environmental Protection Act (MCLA 324.1701 et seq) requesting (1) a declaration that the DEQ was without legal authority to issue the amended mining permit to TechniSand and that the permit is therefore invalid, (2) a mandatory injunction requiring the DEQ to rescind the amended sand dune mining permit, and (3) an injunction prohibiting TechniSand from mining and removing sand from within the critical dune area at the Nadeau Site in Berrien County, Michigan.
2. In 1989 the legislature enacted a statute that, with but two exceptions, prohibited the DEQ from issuing permits allowing mining within critical dune areas after July 5, 1989. This statute 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 in Part 353 after July 5, 1989, except under either of the following circumstances:
(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."
3. In July of 1991 TechniSand was incorporated in the State of Delaware, became authorized to conduct business in the State of Michigan, and purchased the Nadeau Site along with other property from Manley Brothers of Indiana, Inc. At the time of purchase Manley Brothers of Indiana, Inc., held a mining permit allowing it to mine sand from non-critical dune areas located in the eastern portion of the Nadeau Site. The permit was subsequently transferred to TechniSand as purchaser of the property.
4. In 1994 TechniSand applied to the DEQ's predecessor, the DNR, for an amendment to its mining permit which would allow TechniSand to expand mining operations into a critical dune area in the western portion of the Nadeau Site. In 1995 the DNR rejected TechniSand's amended permit request because it determined that TechniSand did not own the property prior to July 5, 1989, and, therefore, did not qualify for an exemption from the statutory prohibition against critical sand dune mining contained in MCLA 324.63702(1)(b).
5. Thereafter, the Governor issued an executive order which created the DEQ and transferred certain environmental regulatory authority from the DNR to the DEQ. In 1996 the DEQ notified TechniSand that it would process that company's previous application for an amended mining permit and on November 25, 1996, it issued to TechniSand an amended sand dune mining permit allowing TechniSand to mine and remove sand from within a critical dune area at the Nadeau Site. The amended permit, and the activity allowed thereunder, threatens to destroy a large portion of the critical dune located at the Nadeau Site.
6. The DEQ was without legal authority to issue the amended sand dune mining permit because TechniSand did not qualify for an exemption from the statutory prohibition against critical dune mining. More specifically:
A. MCLA 324.63702 does not permit expanding existing non-critical dune mining activities into critical dune areas. B. TechniSand did not own the property in question prior to July 5, 1989, and, therefore did not qualify for an exemption from the prohibition against critical sand dune mining contained in MCLA 324.63702(1)(b). C. TechniSand did not acquire by purchase of the property any exemption from the prohibition against critical sand dune mining which its predecessor may otherwise have possessed because, as a matter of law, an exemption from statutory regulation cannot be transferred upon sale or otherwise and it expires when the holder of the exemption ceases ownership of the property or use of the exemption.
7. The material facts necessary for an adjudication of the issues raised by this motion are not in dispute and the Plaintiff is entitled to judgment as a matter of law.
WHEREFORE, Plaintiff requests this Court:
A. Enter a declaratory judgment pursuant to MCLA 324.1701 which declares the amended sand dune mining permit issued by the DEQ to TechniSand invalid. B. Enter a mandatory injunction requiring the DEQ to rescind the amended sand dune mining permit it issued to TechniSand. C. Enter a permanent injunction prohibiting TechniSand from mining or removing sand from within the critical dune area of the Nadeau Site.
| Dated: | TAGLIA, FETTE, DUMKE, PASSARO & KAHNE, P.C. |
March 19, 1999 |
By: THOMAS R. FETTE |