MICHIGAN CITIZENS FOR WATER CONSERVATION V NESTLE WATERS NA

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STATE OF MICHIGAN COURT OF APPEALS MICHIGAN CITIZENS FOR WATER CONSERVATION, a Michigan nonprofit corporation; R.J. DOYLE and BARBARA DOYLE, husband and wife; and JEFFREY R. SAPP and SHELLY M. SAPP, husband and wife, FOR PUBLICATION November 29, 2005 9:00 a.m. Plaintiffs-Appellees/CrossAppellants, v NESTLÉ WATERS NORTH AMERICA INC., a Delaware corporation, No. 254202 Mecosta Circuit Court LC No. 01-14563-CE Defendant-Appellant/CrossAppellee, and DONALD PATRICK BOLLMAN and NANCY GALE BOLLMAN, d/b/a PAT BOLLMAN ENTERPRISES, Defendants. MICHIGAN CITIZENS FOR WATER CONSERVATION, a Michigan nonprofit corporation; R.J. DOYLE and BARBARA DOYLE, husband and wife; and JEFFREY R. SAPP and SHELLY M. SAPP, husband and wife, Plaintiffs-Appellees, v NESTLÉ WATERS NORTH AMERICA INC., a Delaware corporation, Defendant-Appellant, No. 256153 Mecosta Circuit Court LC No. 01-14563-CE Official Reported Version -1- and DONALD PATRICK BOLLMAN and NANCY GALE BOLLMAN, d/b/a PAT BOLLMAN ENTERPRISES, Defendants. Before: Murphy, P.J., and White and Smolenski, JJ. WHITE, J. (concurring in part). I join in Judge Smolenski's lead opinion with respect to the groundwater and public trust claims, as well as the ancillary issues. I join in Judge Murphy's opinion regarding standing under the Michigan environmental protection act (MEPA), MCL 324.1701 et seq., and agree that the Legislature's grant of standing under the facts of the instant case does not unconstitutionally expand the judicial power of the courts. I write separately with regard to the lead opinion's discussion of the trial court's MEPA analysis. While I agree that a mere failure to obtain a permit under the inland lakes and streams act (ILSA), MCL 324.30101 et seq., and the wetlands protection act (WPA), MCL 324.30301 et seq., does not establish a prima facie violation of MEPA, I do not read the trial court's opinion as erroneously adopting ILSA's and the WPA's permitting provisions as applicable pollution control standards, the violation of which automatically establishes a violation of MEPA. Rather, the court expressly stated its understanding that this case involves impairment and not pollution.1 The trial court's opinion also demonstrates that it recognized its duty to develop a judicial common law of environmental quality and make detailed findings of fact under Ray v Mason Co Drain Comm'r, 393 Mich 294; 224 NW2d 883 (1975), and that it referred to the ILSA and the WPA statutes for guidance in developing an impairment standard. What is lacking in the trial court's opinion, however, is a qualitative discussion of the impairments found by the court. While the court's MEPA analysis referred to, and adopted, its findings of fact, and further 1 The court stated: The task then becomes one of finding or establishing a standard or standards to measure Defendants' water-extraction activities against to determine if such actions result in the impairment of the natural resources involved in this case (destruction or pollution are not argued as being involved in Plaintiffs' MEPA claim, only impairment). -2- discussed the Department of Environmental Quality's incorrect interpretation of the acts as not applying to the instant situation, the court did not explain how its earlier findings revealed a level of impairment that required judicial intervention under MEPA. I believe such a discussion is required under the case law. Therefore, I concur in the remand. /s/ Helene N. White -3-