NATIONAL WILDLIFE FEDERATION V DEPARTMENT OF NATURAL RESOURCES
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STATE OF MICHIGAN
COURT OF APPEALS
NATIONAL WILDLIFE FEDERATION,
YELLOW DOG WATERSHED PRESERVE,
INC., KEWEENAW BAY INDIAN
COMMUNITY, and HURON MOUNTAIN
CLUB,
UNPUBLISHED
March 22, 2011
Plaintiffs-Appellants,
v
DEPARTMENT OF NATURAL RESOURCES,
and KENNECOTT EAGLE MINERALS
COMPANY,
No. 293779
Ingham Circuit Court
LC No. 08-000263-AA
Defendants-Appellees.
Before: MARKEY, P.J., and STEPHENS and WILDER, JJ.
PER CURIAM.
Plaintiffs National Wildlife Federation, Yellow Dog Watershed Preserve, Inc.,
Keweenaw Bay Indian Community, and Huron Mountain Club appeal as of right an order
granting defendants Department of Natural Resources (DNR) and Kennecott Eagle Minerals
Company (Kennecott) summary disposition under MCR 2.116(C)(4). We affirm.
I.
This case arises from the DNR’s decision to grant Kennecott’s application to lease a 120acre parcel of state-owned land. Kennecott had proposed to develop an underground mine in
Marquette County to produce ores of nickel, copper, and other metals. The mine entrance and
most of the surface facilities for the mine would be situated on the state-owned land. The DNR
and the Michigan Department of Environmental Quality (MDEQ) conducted independent
reviews of the lease application and coordinated a public notice and comment process.
Ultimately, Kennecott obtained mining, groundwater discharge, and air use permits necessary for
the project from the MDEQ. The director of the DNR then approved the lease.
As a result of the DNR’s approval of the lease, plaintiffs filed a “Claim of Appeal and
Complaint” in the circuit court. Plaintiffs asserted that the circuit court had jurisdiction pursuant
to MCL 600.631 and MCL 324.1701. In Count I, plaintiffs appealed the DNR’s decision to
enter into the lease and argued that the lease violated the DNR’s duties under MCL 324.502 and
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MCL 324.503. In Count II, plaintiffs alleged that construction, operation, and maintenance of
the proposed mine on the leased land would pollute, impair, or destroy air, water, or other
natural resources in violation of the Michigan Environmental Protection Act (MEPA), MCL
324.1701 et seq. In Count III, plaintiffs stated that the DNR is a trustee of state land and
resources. Plaintiffs alleged:
48. By entering into the Surface Lease, DNR violated the Public Trust by
diverting the Leased Lands to uses incompatible with the Public Trust, including
allowing Eagle Rock to be used as a portal for the mine, contrary to the rights and
practices of the Community concerning Eagle Rock.
49. By entering into the Surface Lease, DNR breached its fiduciary duties
because of DNR’s inherent conflict of interest in seeking to maximize
compensation from the Mineral Leases while simultaneously acting as trustee of
the Public Trust.
Plaintiffs urged the circuit court to enjoin conduct pursuant to the lease, declare the lease void,
and find the conduct proposed in the lease would pollute, impair, or otherwise destroy the air,
water, or other natural resources.
In separate orders, the circuit court dismissed Count I, finding that the DNR’s decision to
enter into the lease was authorized by law1 and must be affirmed, 2 and also dismissed Count II
under MCR 2.116(C)(6) because plaintiffs had concurrently filed a petition for a contested case
in the State Office of Administrative Hearings and Rules arguing that the mining would pollute,
impair, or destroy air, water, or other natural resources in violation of the MEPA. The circuit
court also dismissed Count III under MCR 2.116(C)(4). Relying on MCL 600.631 and Krohn v
City of Saginaw, 175 Mich App 193; 437 NW2d 260 (1988), the circuit court concluded that
plaintiffs’ challenge to the DNR’s decision to enter into the lease, on the basis of the common
law public trust doctrine, was subject to the circuit court’s appellate jurisdiction. Because
1
Const 1963, art 6, § 28 provides:
All final decisions, findings, rulings and orders of any administrative officer or
agency existing under the constitution or by law, which are judicial or quasijudicial 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 on the whole
record. [Emphasis added.]
2
At the same time, the circuit court dismissed Count III, finding that plaintiffs had abandoned
the claim under the public trust doctrine, but later granted plaintiffs’ motion for reconsideration
of that dismissal and found that the claim had not been abandoned.
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plaintiffs did not seek appellate review, but instead filed a complaint alleging an original cause of
action, the circuit court concluded that it lacked subject matter jurisdiction to hear the challenge.
Plaintiffs’ now appeal the order dismissing Count III only.
II.
A motion for summary disposition brought under MCR 2.116(C)(4) tests the trial court’s
subject matter jurisdiction. Braun v Ann Arbor Charter Twp, 262 Mich App 154, 157; 683
NW2d 755 (2004). This Court reviews decisions regarding subject matter jurisdiction de novo.
L & L Wine & Liquor Corp v Mich Liquor Control Comm, 274 Mich App 354, 356; 733 NW2d
107 (2007). In reviewing whether a court has subject matter jurisdiction to hear a matter, a court
must review pleadings, depositions, affidavits, admissions, and documentary evidence. Id.
Generally, three potential avenues of review exist by which an aggrieved party
may challenge an administrative body’s decision: (1) review pursuant to a
procedure specified in a statute applicable to the particular agency, (2) the method
of review for contested cases under the Administrative Procedures Act (APA),
MCL 24.201 et seq.; MSA 3.560(101) et seq., or (3) an appeal pursuant to § 631
of the Revised Judicature Act, MCL 600.631; MSA 27A.631, and Const 1963, art
6, § 28, in conjunction with MCR 7.104(A). [Hopkins v Mich Parole Bd, 237
Mich App 629, 637-638; 604 NW2d 686 (1999).]
MCL 600.631 provides, in relevant part:
An appeal shall lie from any order, decision, or opinion of any state board,
commission, or agency, authorized under the laws of this state to promulgate rules
from which an appeal or other judicial review has not otherwise been provided for
by law, to the circuit court . . . which court shall have and exercise jurisdiction
with respect thereto as in nonjury cases. [Emphasis added.]
In Krohn, 175 Mich App at 195, the plaintiffs contested a decision of a planning
commission, which granted a variance to the owners of an adjoining property, by filing a fivecount complaint in the circuit court. The circuit court dismissed the action as untimely because it
was filed more than 21 days after entry of the planning commission’s final decision. Id. On
appeal, this Court affirmed the circuit court’s finding that the plaintiffs had failed to timely
pursue an appeal to the circuit court within the 21-day period afforded by MCR 7.101(B)(1), and
held that the circuit court lacked subject matter jurisdiction to hear Count I. Id. at 195-197. In
response to the plaintiffs’ argument that Counts II through V of the complaint were separate
causes of actions, not appeals falling under the 21-day rule, this Court concluded:
Count III of plaintiffs’ complaint alleged that their state and federal due process
rights were violated and that their property had been taken without just
compensation as protected by the state constitution. Count IV of the complaint
alleged that the planning commission action allowed an unpermitted illegal use of
the subject site and constituted a nuisance per se. Lastly, count V of the
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complaint asked for a declaration of the parties’ rights with reference to the
intended construction. With respect to each of these counts, we believe that they
all raise issues relative to the decision of the planning commission and the
procedures employed by the planning commission in reaching that decision.
Thus, they do not establish separate causes of action, but merely address alleged
defects in the methods employed by the planning commission or the result
reached by the commission. Accordingly, those are issues to be raised in an
appeal from the decision of the planning commission. Since plaintiffs were tardy
in claiming their appeal, those counts were properly dismissed. [Id. at 198; see
also Mich Bear Hunters Ass’n v Mich Natural Resources Comm, 277 Mich App
512, 526; 746 NW2d 320 (2008).3]
In light of MCL 600.631 and Krohn, a litigant may not choose to bypass the appeal procedure
and proceed with separate litigation challenging an administrative decision under other theories.
Plaintiffs’ claim on the basis of the public trust doctrine asserts alleged defects in the result
reached by the DNR, and is not a separate cause of action.4 Therefore, the circuit court properly
granted summary disposition in favor of the DNR and Kennecott.
We are not persuaded by plaintiffs’ claim that defendants waived the question of subject
matter jurisdiction. Subject matter jurisdiction cannot be waived. Travelers Ins Co v Detroit
Edison Co, 465 Mich 185, 204; 631 NW2d 733 (2001), and in any event, statements by
defendants or the circuit court that plaintiffs fashioned Count III as an original cause of action do
not amount to an abandonment or intentional relinquishment of the right to challenge the court’s
jurisdiction to hear Count III. Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App 429, 471;
761 NW2d 846 (2008).
We are also not persuaded by plaintiffs’ claim that a decision by the DNR could never be
effectively challenged on appeal on the basis of the public trust doctrine because it is a factintensive claim that should be tried as an original action. MCR 7.210(A)(2) provides:
Appeal From Tribunal or Agency. In an appeal from an administrative tribunal or
agency, the record includes all documents, files, pleadings, testimony, and
opinions and orders of the tribunal, agency, or officer (or a certified copy), except
those summarized or omitted in whole or in part by stipulation of the parties.
3
We note that plaintiffs’ reliance on Sun Communities v Leroy Twp, 241 Mich App 665; 617
NW2d 42 (2000) is misplaced because it involves claims based on decisions that are legislative,
as opposed to administrative, in nature.
4
Moreover, during oral argument, plaintiffs acknowledged that, during the public notice and
comment process, not only were they fully able to challenge the lease application as unlawful
and violative of the public trust doctrine, they did in fact assert a public trust doctrine challenge.
Thus, it is clear that plaintiffs were afforded due process by having the opportunity to challenge
the lease application in a proper forum.
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Testimony not transcribed when the certified record is sent for consideration of an
application for leave to appeal, and not omitted by stipulation of the parties, must
be filed and sent to the court as promptly as possible.
As the circuit court found:
The DNR undertook extensive review of the surface use lease application and
mining and reclamation plan in a multi-stage process that lasted nearly two years.
This process included a review of those documents by DNR field staff to
determine the project’s potential impact on the State’s natural resources and on
recreation, and to determine if the mining and reclamation plan met the
requirements of the previously issued metallic mineral leases. The DNR field
staff then compiled an application review package recommending approval of the
surface use lease application and forwarded the package to an internal DNR Land
Exchange Review Committee for review. This committee ultimately also
recommended that the lease be approved, pending approval of all of the other
required permits and on the condition that Kennecott construct an approved
alternate snowmobile trail to replace the existing one that currently runs along the
road that will be used for transportation to and from the mine. In addition,
although not required by law to do so, the DNR provided numerous opportunities
for public comment on the surface use lease application and the mining and
reclamation plan, by coordinating with, and participating in, the MDEQ’s public
participation process in connection with the permit applications.
The circuit court record therefore included documentation of these proceedings and evidence of
plaintiffs’ detailed objections to the lease and permits. MCR 7.210(A)(2). Plaintiffs have failed
to establish why the circuit court could not have relied on this record, if plaintiffs had filed an
appeal on public trust grounds, to determine whether the DNR’s decision was authorized by law
or violated the public trust doctrine.
In light of our conclusion that the trial court properly granted summary disposition of
Count III under MCR 2.116(C)(4), we decline to address plaintiffs’ argument that the public trust
doctrine applies to the land leased by the DNR.
Affirmed. No costs may be taxed, a public question being involved.
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
/s/ Cynthia Diane Stephens
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