PRESERVE THE DUNES INC V DEPT OF ENVIRONMENTAL QUALITY
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 30, 2004
PRESERVE THE DUNES, INC.,
Plaintiff-Appellee,
v
No. 122611
MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Defendant,
and
TECHNISAND, INC.,
Defendant-Appellant.
______________________________
PRESERVE THE DUNES, INC,
Plaintiff-Appellee,
v
No. 122612
MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Defendant-Appellant,
and
TECHNISAND, INC,
Defendant.
_______________________________
1
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
Defendant Michigan Department of Environmental Quality
(DEQ) and defendant TechniSand, Inc., appeal a Court of
Appeals decision holding that the DEQ improperly granted a
sand
dune
mining
permit
to
TechniSand,
contrary
to
the
Michigan environmental protection act (MEPA), MCL 324.1701
et seq.1
The only issue properly before us is whether MEPA
authorizes a collateral challenge to the DEQ’s decision to
issue a sand dune mining permit under the sand dune mining
act
(SDMA),
challenges
whether
flaws
the
destroyed,
MCL
324.63701
in
conduct
or
will
the
et
seq.,
permitting
involved
likely
has
in
an
action
that
process
unrelated
to
polluted,
impaired,
or
pollute,
natural resources protected by MEPA.
impair,
or
destroy
Because MEPA does not
authorize such a collateral attack, we reverse the decision
of
the
Court
expedited
of
review
Appeals
and
of
remaining
the
remand
to
that
issues
of
Court
for
plaintiff
Preserve the Dunes (PTD).2
1
253 Mich App 263; 655 NW2d 263 (2002).
2
PTD is an ad hoc organization of local citizens
formed for the purpose of instituting this lawsuit.
2
I.
Factual Background and Procedural Posture
In 1991, defendant TechniSand purchased a sand mining
operation with a mining permit that was set to expire in
1993.
That
permit
did
not
allow
mining
in
adjacent
property, the Nadeau Site Expansion Area (NSE), which had
been classified in 1989 as a “critical dune” area under MCL
324.35301 et seq.
Mining
July
in
5,
1989,
critical
subject
dune
to
areas
was
certain
prohibited
narrowly
after
defined
exceptions to MCL 324.63702(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 [MCL 324.35301 et seq.] 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 criteria
and 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
rights to mine dune sand in the land
for which
the operator seeks an amended permit.
In late 1994, TechniSand applied for an amended permit
under MCL 324.63702(1)(b). In April 1995, the Department of
3
Natural
Resources
(DNR)3
denied
the
application
on
the
ground that TechniSand was ineligible for an amended permit
under
subsection
1(b)
because
it
had
purchased
the
operation after July 5, 1989.
In May 1996, TechniSand amended and resubmitted its
application and supporting documentation to the DEQ.
After
a public hearing, the DEQ approved TechniSand’s application
on November 25, 1996.
TechniSand began mining the NSE area
thereafter.
Nineteen
months
later,
in
July
1998,
PTD
sued
defendants, seeking injunctive and declaratory relief under
MEPA.
MEPA provides a cause of action for declaratory and
other equitable relief for conduct that is likely to result
in the pollution, impairment, or destruction of Michigan’s
natural resources.
PTD
alleged
MCL 324.1701 et seq.
that
the
DEQ
violated
MEPA
approved TechniSand’s amended mining permit.
alleged
that
TechniSand’s
mining
conduct
when
it
It further
violated
MEPA.
Defendants sought summary disposition because PTD’s action
was
time-barred.
The
circuit
3
court
denied
defendants’
During this time, the DNR was the administrative
agency that regulated sand mining.
In 1995, this
responsibility was transferred from the DNR to the DEQ by
Executive Reorganization Order No. 1995-16 (codified at MCL
324.99903).
4
motion.
PTD
sought
summary
disposition
circuit judge had retired.
after
the
original
His successor ruled that PTD’s
claim under the SDMA was indeed time-barred. It also held
that plaintiff had established a prima facie MEPA claim on
the basis of TechniSand’s mining conduct.
After a seven-day bench trial on the MEPA claim alone,
the court ruled that defendants had successfully rebutted
PTD’s prima facie case and
of action.
entered a judgment of no cause
The court specifically found that “any adverse
impact on the natural resources which will result from the
sand mining will not rise to the level of impairment or
destruction
of
natural
resources
within
the
meaning
of
MEPA.”
The Court of Appeals reversed and remanded for entry
of an order granting summary disposition for PTD. The Court
of Appeals concluded that (1) the DEQ’s decision to grant
a permit could be challenged at any time under MEPA and (2)
TechniSand did not qualify for a permit under § 63702.
The
DEQ and TechniSand filed applications for leave to appeal
in this Court, and we granted leave.4
4
468 Mich 869 (2003).
5
II. Standard of Review
The issue presented involves a question of statutory
interpretation. We review de novo questions of statutory
interpretation.
Oade v Jackson Nat’l Life Ins Co, 465 Mich
244, 250; 632 NW2d 126 (2001).
III
A.
Overview of MEPA
MEPA is contained in part 17, MCL 324.1701 et seq., of
the Natural Resources and Environmental Protection Act, MCL
324.101 et seq.
To prevail on a MEPA claim, the plaintiff
must make a “prima facie showing that the conduct of the
defendant has polluted, impaired, or destroyed or is likely
to pollute, impair, or destroy the air, water, or other
natural resources, or the public trust in these resources.
. . .”
MCL 324.1703(1).
The defendant may rebut the
plaintiff’s
showing
with
contrary
affirmative
defense
that
(1)
evidence
there
is
or
no
raise
feasible
an
and
prudent alternative to the conduct and (2) the “conduct is
consistent with the promotion of the public health, safety,
and
welfare
in
light
of”
the
state’s
concern
with
protecting Michigan’s natural resources. Id. The focus of
MEPA is on defendant’s conduct.
MEPA
allegedly
provides
harmful
for
conduct.
immediate
The
6
judicial
statute
does
review
not
of
require
exhaustion of administrative remedies before a plaintiff
files suit in circuit court. MCL 324.1701(2).
A court may,
however, “direct the parties to seek relief” in available
administrative proceedings.
MCL 324.1704(2).
B. Overview of SDMA Permit Process
The DEQ may authorize mining in critical sand dune
areas
under
two
specific
conditions
set
forth
in
MCL
324.63702(1)(a) and (b):
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 [MCL 324.35301 et seq.] 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
criteria
and
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 rights to mine
dune sand in the land for which the operator
seeks an amended permit.
If
an
operator
does
not
fall
within
one
of
these
limited exceptions to the SDMA ban on mining in critical
dunes areas, the inquiry ends.
Nowhere in this initial
inquiry is the DEQ required to evaluate the permit seeker’s
proposed
conduct.
Indeed,
such
7
an
inquiry
would
be
pointless
unless
applicant was
the
DEQ
first
determined
that
the
eligible for a permit on the basis of the
applicant’s status as either a past owner or operator.
Once the DEQ determines that an applicant is eligible
to apply for a sand dune mining permit in a critical dune
area under § 63702(1), the applicant must
requirements
of
§
63704.
Specifically,
fulfill the
applicants
are
required to submit the following to the DEQ:
(a) A permit application on a form provided by
the department.
(b)
proposed
63705.
An environmental impact statement
mining activity as prescribed by
of the
section
(c)
A
progressive
cell-unit
mining
and
reclamation plan for the proposed mining activity as
prescribed in section 63706.
(d) A 15-year mining plan as prescribed by
section 63707.
After
the
DEQ
determines
that
the
applicant
has
satisfied §§ 63702(1) and 63704(2), it must next determine
whether the applicant meets the requirement of § 63709.
Section 63709 prohibits the DEQ from approving an amended
permit if the applicant’s proposed conduct “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.”
324.1701
et
seq.,
Thus, MEPA, in part 17, MCL
expressly
controls
8
the
DEQ’s
§
63709
determinations.
C. MCL 324.1701 and Nemeth v Abonmarche Development
In
general,
addition
MCL
to
conferring
324.1701(1)
power
authorizes
a
upon
the
private
attorney
cause
of
action under MEPA:
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.
MCL 324.1701(2) provides:
In granting relief provided by subsection
(1), if there is a standard for pollution or for
an antipollution device or procedure, fixed by
rule
or
otherwise,
by
the
state
or
an
instrumentality, agency, or political subdivision
of the state, the court may:
***
(b) If a court finds a standard to be
deficient, direct the adoption of a standard
approved and specified by the court.
Thus,
in
Nemeth
v
Abonmarche
Development,
Inc,
457
Mich 16; 576 NW2d 641 (1998), we held that a violation of
the soil erosion and sedimentation control act (SESCA), MCL
324.9101 et seq., may establish a plaintiff’s prima facie
showing under MEPA because the SESCA contains a pollution
control standard.
9
MCL 324.1702 is not applicable in this case because,
unlike the SESCA, the SDMA does not contain an antipollution
standard.
Consequently, it is not within the exception
created by MCL 324.1701(2).
Nemeth, therefore, does not
support the argument that a violation of the SDMA may serve
as a prima facie violation of MEPA.
The
Court
of
Appeals
decision
to
the
contrary
was
based on a misinterpretation of our holding in Nemeth:
[A]lthough subsection 1701(2) speaks in
terms of whether a “standard for pollution or
antipollution device or procedure” exists, but
does not specifically include whether a standard
for impairment or destruction of a natural
resources exists, our Supreme Court in Nemeth did
not seem to find that to be an important point in
that case in which soil erosion, rather than what
is commonly thought of as pollution, was at
issue. [253 Mich App 263, 286 n 2; 655 NW2d 263
(2002).]
The
Court
of
Appeals
conclusion
is
incorrect.
In
Nemeth,
we expressly justified our holding in part because
erosion
is
a
(“Sedimentation
form
and
of
pollution.
erosion
is
source of water pollution.”).
10
a
Nemeth,
[sic]
supra
at
27
well-recognized
Moreover, in Nemeth, as in all MEPA actions, the focus
was on defendant’s actual conduct.5
Specifically, this
5
Although we held in Nemeth that the SESCA creates a
pollution control standard applicable to MEPA claims, we
also specifically stated:
We emphasize that this is not the end of the
inquiry. The trial court held that plaintiffs'
showing
of
defendants'
SESCA
violations
established a prima facie claim under the MEPA.
Then, defendants had the opportunity to rebut
that prima facie showing either by submitting
evidence to the contrary, i.e., that plaintiffs
have shown neither pollution, impairment, nor
destruction, nor the likelihood thereof, in spite
of proof of the SESCA violations, or by showing
that there is no feasible and prudent alternative
to defendants' conduct.
Subsection 1703(1).
[Nemeth at 36 n 10 (emphasis added).]
Thus, it is clear that a defendant’s opportunity to
rebut a prima facie MEPA violation remains the same whether
that violation has been established independently or by
reference to another statute’s pollution control standard,
and that the determinative consideration is whether
defendant’s conduct will, in fact, pollute, impair, or
destroy a natural resource. In the instant case, the Court
of Appeals erroneously concluded that § 63702 of the SDMA
creates a pollution control standard and that defendant
violated it.
Having so concluded, the Court of Appeals
effectively concluded that defendant’s violation of § 63702
amounted to a MEPA violation per se. It failed to consider
at all whether TechniSand had submitted evidence sufficient
to rebut the alleged prima facie MEPA violations.
The
trial court, however, did consider this evidence after
finding that PTD presented a prima facie MEPA violation
independent of the SDMA.
The trial court held that
TechniSand had rebutted the prima facie MEPA violation.
The Court of Appeals failure to consider whether TechniSand
could rebut the (erroneously found) prima facie MEPA
violation evidences the extent to which it improperly
Footnotes continued on following page.
11
Court reiterated in Nemeth the findings of fact required of
a trial court as announced in Ray v Mason Co Drain Comm’r,
393 Mich 294; 224 NW2d 883 (1975).
In Ray, we stated:
The trial judge must find the facts on which
the plaintiff claims to have made a prima facie
case
under
[§
1703(1)],
namely
that
the
defendant's conduct
"has,
or is likely
to
pollute, impair or destroy the air, water or
other natural resources.” . . .
Obviously the
evidence necessary to constitute a prima facie
showing will vary with the nature of the alleged
environmental degradation involved.
[Ray at 309
(some emphasis supplied).]
That the Court of Appeals failed to recognize that
MEPA
is
concerned
only
with
harmful
conduct
is
readily
apparent from its characterization of the circuit court’s
focus on TechniSand’s mining conduct as error:
Judge
Schofield
simply
addressed
whether
TechniSand’s proposed mining was likely to “pollute,
impair, or destroy” the natural resource in this case—
the critical dune area. [253 Mich App 286.]
Plaintiff
and
the
dissent
urge
us
to
hold
that
although TechniSand’s mining operation may or may not be
likely to pollute, impair, or destroy the air, water, or
other
natural
resources,
deficient
past
negatively
affects
its
relationship
the
predecessor’s
to
the
environment.
invitation to accept such fuzzy logic.
mining
We
allegedly
property
decline
their
Where a defendant’s
failed to consider whether TechniSand’s conduct would
actually “pollute, impair, or destroy” a natural resource.
12
conduct
itself
does
not
offend
MEPA,
no
MEPA
violation
exists.
D. Review of the DEQ’s MCL 624.63702(1) Decisions6
We reject the dissent’s gloomy prediction that this
orderly
understanding
of
MEPA
“insulates
[SDMA]
eligibility determinations from judicial review.”
permit
Post at
22.
As previously discussed, DEQ determinations of permit
eligibility under §§ 63702(1) and 63704(2) are unrelated to
whether the applicant’s proposed activities on the property
violate MEPA.
Therefore, MEPA provides no private cause of
action in circuit court for plaintiffs to challenge the
DEQ’s determinations of permit eligibility made under §§
63702(1) and 63704(2).
An improper administrative decision, standing alone,
does
not
harm
the
environment.
Only
wrongful
conduct
offends MEPA.
In
general,
decision
is
judicial
available
review
under
of
the
an
administrative
following
statutory
schemes: (1) the review process prescribed in the statute
applicable
to
the
particular
6
agency,
(2)
an
appeal
to
PTD does not challenge TechniSand’s satisfaction of
the requirements under § 63704(2).
13
circuit court pursuant to the Revised Judicature Act (RJA),
MCL 600.631, and Michigan Court Rules 7.104(A), 7.101, and
7.103, or (3) the review provided in the Administrative
Procedures Act (APA), MCL 24.201 et seq.
Palo Group Foster
Care, Inc v Dep't of Social Services, 228 Mich App 140,
145; 577 NW2d 200 (1998).
The SDMA does not expressly establish procedures for
disputing a DEQ determination in a contested case unrelated
to MEPA.
We need not decide here whether PTD’s challenge
to the DEQ’s permit decision is governed by the RJA or the
APA
because
statute.
DEQ’s
the
is
time-barred
under
either
PTD brought this action nineteen months after the
decision
amended
challenge
to
permit,
grant
which
TechniSand’s
far
exceeds
application
the
sixty-day
for
an
period
allowed by the APA, MCL 24.304(1), and the twenty-one-day
period provided by MCR 7.101(B)(1), which governs appeals
under MCL 600.631 of the RJA pursuant to MCR 7.104(A).
DEQ
and
their
TechniSand
initial
properly
pleadings.
interposed
Thus,
PTD’s
this
claim
The
defense
was
in
time-
barred.
E. Participation and Intervention
During The Permit Process Under the SDMA or MEPA
Parties
who
wish
to
process have two options.
intervene
during
the
permit
They may intervene either under
14
the procedures governed by the SDMA or those governed by
MEPA.
MCL 324.63708(5) of the SDMA establishes a procedure
for notifying interested parties of permit applications:
The department shall provide a list of all
pending sand dune mining applications upon a
request from a person.
The list shall give the
name and address of each applicant, the legal
description of the lands included in the project,
and a summary statement of the purpose of the
application.
Thus, the SDMA provides a mechanism whereby interested
parties may learn of and participate in agency decisions
regarding approval of critical dune area mining permits.
MEPA provides another procedure for intervention in
permit proceedings.
MCL 324.1705(1). This statute requires
a potential intervenor to file a pleading asserting that
the
proceeding
or
action
for
judicial
review
involves
conduct that has violated, or is likely to violate, MEPA.
Thus,
while
PTD
could
have
intervened
in
TechniSand’s
permit process under MEPA, its only basis for intervention
would have been TechniSand’s proposed conduct.
MEPA does
not allow such intervention on the basis of anything other
than alleged wrongful conduct.
F. Review of DEQ’s MCL 324.63709 Determinations
As already discussed, a challenge under MEPA may be
filed in circuit court before or during the time that the
15
alleged MEPA violation occurs, without any requirement that
a litigant exhaust administrative remedies.
Thus, whether
TechniSand was ineligible for the permit under § 63709 on
the basis of alleged harmful conduct was a question that
was properly before the circuit court.
The circuit court
ruled against PTD.
The
Court
of
Appeals
has
not
reviewed
the
circuit
court’s decision that TechniSand’s conduct did not violate
the MEPA standard incorporated into the SDMA under § 63709.
Because the Court of Appeals never reached PTD’s claim that
TechniSand’s mining operation violates MEPA, that issue is
not ripe for this Court’s review.
We remand the case to
the Court of Appeals to review the circuit court’s findings
regarding TechniSand’s sand mining activity.
The Court of
Appeals is directed to expedite its consideration of this
case.
F. Response to the Dissent
The dissent initially contends that it is undisputed
that TechniSand is “ineligible for a permit.” Post at 2.
We
disagree.
eligibility
for
The
a
time
permit
for
is
challenging
long
past.
TechniSand’s
TechniSand
is
lawfully entitled to mine sand dunes in Michigan according
to the DEQ permit.
was
“unprincipled”
Whether the DEQ’s permitting decision
or
an
“illegal
16
about-face”
is
not
a
determination for this Court to make. Post at 2.
That
decision is time-barred.
The
decision
dunes.”
dissent
“will
Post
further
directly
at
3-4
asserts
enable
(emphasis
that
the
destruction
supplied).
DEQ’s
of
permit
critical
The
dissent
asserts that critical dunes will be destroyed because the
Court of Appeals stated that TechniSand had acknowledged as
much
in
an
environmental
environmental
impact
impact
statement
statement.
is
not
in
The
the
entire
record.7
Moreover, the trial court expressly found to the contrary
when it ruled on the MEPA claim.
It specifically held that
TechniSand’s mining would not destroy a critical dune. The
Court of Appeals never addressed this finding.
The dissent’s conclusion that the permitting process
is subject to collateral attack is not defensible on the
basis of MEPA’s language, structure, or purpose.
Countless
entities apply for and receive permits for conduct that
affects Michigan’s natural resources.
7
Under the dissent’s
The excerpt in the record indicates that TechniSand
acknowledged that the project would “greatly alter”
approximately 61% of the NSE. In any case, the trial court
expressly found more credible TechniSand’s expert witnesses
and ultimately held “the adverse impact on the environment
caused by the mining as permitted will not rise to the
level of impairment or destruction within the meaning of
MEPA.”
17
regime, the permitting decision can never be final.
Were
we to adopt the dissent’s extreme understanding of MEPA,
every permit that has ever been issued would be subject to
challenge;
any
undotted
potentially
invalidate
“i”
an
or
uncrossed
permit.
existing
“t”
We
could
do
not
believe the Legislature intended MEPA to destabilize the
state’s permitting system in this manner.
Imagine the world that the dissent’s reasoning would
create.
The present energy crisis offers a good example.
For many years, our country has sought to decrease our
reliance on foreign sources of oil.
decided
to
invest
in
oil
Suppose an oil company
exploration
in
Michigan
in
reliance on a DEQ-issued permit. Under the dissent’s view,
MEPA would authorize a challenge at any time to flaws in
the
permitting
process.
Moreover,
under
the
dissent’s
reasoning, a court must accept as true the bare assertion
that a company’s conduct will destroy natural resources.
It can never rely on a permit to do business.
investor would take such a risk?
What sane
As gas prices soar, few
people in Michigan would thank this Court for “protecting”
the environment in this radical fashion.
The
process
dissent’s
a
useless
regime
would
exercise.
It
render
would
the
cripple
permitting
economic
expansion in Michigan and probably lead to disinvestment.
18
No
one
would
invest
money
to
obtain
a
permit
that
is
subject to endless collateral attacks.
MEPA
nowhere
finality.
It
legislative
strips
is
the
intent
by
the
dissent
failing
permitting
that
to
makes
anchor
process
a
its
mockery
of
of
exaggerated
claims in the statute’s actual language. See post at 3.
MEPA does not impose the radical requirement that courts
indefinitely
police
administrative
procedures and decisions.
agencies’
permit
As noted in Oscoda Chapter of
PBB Action Comm, Inc v Dep’t of Natural Resources, 403 Mich
215, 232-233; 248 NW2d 240 (opinion by Levin, J.) (1978):
A court is not empowered to prevent any
conduct . . . which does not rise to the level of
environmental risk proscribed by [MEPA].
The
standard, ‘has or is likely to pollute, impair or
destroy,’ is a limitation as well as a grant of
power.
Moreover, the Court of Appeals never reached the issue
of whether TechniSand’s actual conduct is likely to harm
natural
resources.
As
already
noted,
the
trial
court
specifically held that TechniSand’s conduct did not violate
MEPA.
Given this procedural posture, we are puzzled by the
dissent’s statement that defendant’s mining “will” destroy
critical dunes.
After
trial
taking
court
extensive
ruled
that
testimony
any
19
on
“adverse
the
issue,
impact
on
the
the
environment caused by the mining as permitted will not rise
to
the
level
of
meaning of MEPA.”
impairment
or
destruction
within
the
The Court of Appeals did not explicitly
reject the trial court’s findings.
Instead, it erroneously
concluded that a permit that affects the environment in any
way may be challenged at any time under MEPA.
For the
reasons articulated above, the Court of Appeals erred in
interpreting MEPA in this manner.
CONCLUSION
MEPA affords no basis for judicial review of agency
decisions under MCL 324.63702(1) because that inquiry is
outside the purview of MEPA.
The focus of MEPA is to
protect our state’s natural resources from harmful conduct.
It offers no basis for invalidating an issued permit for
reasons unrelated to the permit holder’s conduct.
To hold
otherwise would broaden by judicial fiat the scope of MEPA
and create a cause of action that has no basis in MEPA’s
language or structure.
The Court of Appeals erred by treating PTD’s challenge
to
TechniSand’s
eligibility
324.63702(1) as a MEPA claim.
for
a
permit
under
MCL
Because PTD brought its
claim more than nineteen months after the DEQ issued the
permit,
PTD’s
claim
is
time-barred.
We
decision of the Court of Appeals on that issue.
20
reverse
the
We remand the case to the Court of Appeals to review
the
circuit
court’s
findings
that
TechniSand’s
mining
conduct does not violate MEPA, and direct the Court of
Appeals to expedite its review.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
21
S T A T E
O F
M I C H I G A N
SUPREME COURT
PRESERVE THE DUNES, INC,
Plaintiff-Appellee,
v
No. 122611
MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Defendant,
and
TECHNISAND, INC,
Defendant-Appellant.
_______________________________
PRESERVE THE DUNES, INC,
Plaintiff-Appellee,
v
No. 122612
MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Defendant-Appellant,
and
TECHNISAND, INC,
Defendant.
_______________________________
KELLY, J. (dissenting).
In 1995, the Michigan Department of Natural Resources
(DNR)
denied
defendant
TechniSand
permission
to
mine
critical dunes because it was ineligible for a permit under
the sand dune mining act1 (SDMA), MCL 324.63701 et seq.
One
year later, following Governor Engler’s reorganization of
the
DNR,
Quality
the
(DEQ)
newly
created
invited
Department
TechniSand
“changes in state government.”
to
of
apply
Environmental
again,
citing
TechniSand reapplied and
the DEQ granted a permit despite the fact, now undisputed,
that TechniSand remained ineligible to mine critical dunes.
As a result, critical dunes that would otherwise remain
untouched will be impaired and perhaps destroyed.
Through the decision in this case, a court majority of
four sanctions the DEQ’s unexplained and illegal about-face
on
TechniSand’s
process,
it
critical
strikes
environmental law.2
a
dune
mining
devastating
permit.
blow
to
In
the
Michigan’s
This majority perpetuates the DEQ’s
1
The Sand Dune Mining Act is codified as part 637 of
the Natural Resources and Environmental Protection Act, MCL
324.101 et seq.
2
The majority’s decision to significantly narrow the
scope of the applicability of the Michigan environmental
protection act (MEPA), MCL 324.1701 et seq., in this case
is compounded by its recent decision in Nat'l Wildlife
Federation & Upper Peninsula Environmental Council v
Cleveland
Cliffs
Iron
Co
and
Michigan
Dep't
of
Footnotes continued on following page.
2
unprincipled decision to permit illegal mining of critical
dunes by insulating it from the scrutiny of the Michigan
environmental protection act (MEPA).
MCL 324.1701 et seq.
Its holding that the DEQ’s decision to grant the permit to
mine critical dunes is “unrelated to” the destruction of
those
critical
dunes
Legislature’s
intent
addition,
is
it
to
defies
reality.
prevent
contrary
to
It
mocks
our
environmental
harm.
In
earlier
MEPA
this
Court’s
decisions.3
Critical sand dunes, like those at issue in this case,
are specially protected natural resources.
The mining act
protects these irreplaceable resources by strictly limiting
who is eligible to mine them.
MEPA works in tandem with
the mining act to, in its own words, supplement “existing
administrative and regulatory procedures provided by law.”
MCL 324.1706.
Issuance of the permit will directly enable
Environmental Quality, 471 Mich ___ ; ___ NW2d ___ (2004).
There, the same majority ignores thirty years of precedent
and
applies
judge-created
standing
tests
to
MEPA
plaintiffs. It makes this ruling despite the fact that the
statute explicitly grants standing to “any person” to
maintain an action to prevent pollution, impairment, or
destruction of our natural resources. MCL 324.1701(1).
3
See e.g., Eyde v Michigan, 393 Mich 453, 454; 225
NW2d 1 (1975), Ray v Mason Co Drain Comm’r 393 Mich 294,
304-305; 224 NW2d 883 (1975), West Michigan Environmental
Action Council v Natural Resources Comm, 405 Mich 741, 751;
275 NW2d 538 (1979) (WMEAC), and Nemeth v Abonmarche Dev,
Inc, 457 Mich 16; 576 NW2d 641 (1998).
3
destruction of critical dunes that would otherwise remain
untouched.
Hence,
it
is
inescapable
that
the
DEQ’s
decision to issue the permit may be challenged under the
environmental protection act.
Moreover, the environmental protection act does not
impose a statutory period of limitations on legal actions
that assert that a party’s conduct will cause environmental
pollution, impairment, or destruction.
hold
that
plaintiff’s
challenge
is
Therefore, I would
not
limited
by
the
statutory period of either the Administrative Procedures
Act (APA) or the Revised Judicature Act (RJA).
MCL 24.201
et seq., MCL 600.101 et seq.
I dissent because the majority’s decision subverts the
purposes of the sand dunes mining act and the environmental
protection act by incorrectly insulating the DEQ’s permit
decision from scrutiny under the environmental protection
act.
Defendant TechniSand is not eligible for a permit to
mine critical dunes sand under the sand dunes mining act.
Accordingly, I would affirm the decision of the Court of
Appeals.
4
The Majority's Response to the Dissent
The majority’s “Response to the Dissent”4 is an abrupt
departure
from
its
precedent
of
declining
to
amend
legislative policy decisions with which it disagrees.5 Its
discussion of the wisdom of the Legislature's decision to
bar sand dune mining by anyone who does not meet limited
eligibility criteria is unsuited for a judicial opinion.
Moreover,
problem
the
in
majority’s
the
permit
comparison
to
a
of
the
clerical
eligibility
error
and
its
suggestion that my position would allow endless challenges
for such trifles are gross exaggerations.
Ante at 17-18.
Granting a permit to mine critical dunes to an ineligible
operator is a substantive fault.
It is a violation of the
law
to
that
destroy
allows
a
Legislature.
conduct
natural
likely
resource
pollute,
specially
impair,
protected
by
or
the
Economic development in this state has not
ceased in the past thirty years.
It will not now grind to
a halt under the oppressive weight of permit challenges if
4
Ante at 16-20.
5
This Court has scrupulously declined to consider the
wisdom of the Legislature’s policy decision.
See e.g.
Oakland Co Rd Commr’s v Michigan Prop & Cas Guaranty Ass'n,
456 Mich 590, 612-613; 575 NW2d 751 (1998).
5
this Court reaffirms its prior holdings that MEPA allows
challenges to environmentally destructive permit decisions.
Facts and Proceedings Below
Defendant TechniSand purchased real property in 1991
that
included
both
critical
and
noncritical
dune
areas.
Along with its purchase, it obtained a permit to mine sand
in noncritical dune areas on one portion of the property.
In 1994, TechniSand applied for an amendment of this permit
to expand sand dune mining to critical dune areas on an
adjacent portion of the property.
The
Michigan
Department
of
Natural
Resources,
the
agency charged with reviewing SDMA permit applications at
the
time,
TechniSand
denied
was
the
application
ineligible
for
an
on
the
amended
ground
that
permit.
The
original permit was to mine in noncritical dune areas and
did not include the property’s critical dune areas.
TechniSand
had
purchased
the
land
and
mining
Also,
operation
after the deadline to apply for an unassociated permit to
mine the critical dune areas.
MCL 324.63702(1)(b).
In 1995, Governor John Engler created a new agency,
the
Michigan
Department
of
Environmental
Quality
(DEQ).
Executive Reorganization Order No. 1995-16 (codified at MCL
324.99903).
The
DEQ
was
given
responsibility
for
administering the SDMA and other environmental permitting
6
programs, and the Governor appointed its director.
The DEQ
then wrote to TechniSand indicating that “changes in state
government”
and
“additional
information”
from
TechniSand
would allow the DEQ to review the permit application.6
TechniSand
resubmitted
the
environmental
impact
statement and reclamation plan that it had submitted with
its
previous
information
application,
demonstrating
amended permit.
It
did
not
without
how
it
providing
was
additional
eligible
for
an
The DEQ issued the permit later that year.
explain
criteria in the SDMA.
how
TechniSand
met
the
eligibility
Also, it does not now dispute that
TechniSand is ineligible for a permit.
Plaintiff Preserve the Dunes was formed in 1996.
In
1998, it sued TechniSand and the DEQ for injunctive relief
to
stop
TechniSand’s
mine
expansion.
Plaintiff
alleged
that TechniSand was ineligible for an SDMA permit and that
its mine expansion violated MEPA.
The trial court ruled that plaintiff’s challenge to
the
permitting
decision
was
6
time-barred
under
the
Letter dated April 1, 1996 from Douglas Daniels and
Kimberly Rice of the DEQ. The letter makes reference to an
April 20, 1995, letter by which Roger Whitener of the DNR
informed TechniSand that, pursuant to an opinion of the
state attorney general, TechniSand was ineligible to mine
critical dunes. The April 1, 1996, letter did not address
TechniSand’s ineligibility to mine critical dunes.
7
Administrative Procedures Act and that the environmental
impact of the mining was insufficient to implicate MEPA.
The Court of Appeals reversed the ruling.
263; 655 NW2d 263 (2002).
253 Mich App
It held that the DEQ’s decision
to grant TechniSand’s amended permit could be challenged
under MEPA and that TechniSand did not qualify for a permit
under § 63702 of the SDMA.
The DEQ’s decision to amend
TechniSand’s permit, it concluded, violated MEPA.
The Court of Appeals remanded the case to the trial
court
for
entry
of
summary
disposition
for
plaintiff.
Because it had found TechniSand ineligible for a permit to
mine the critical dune area, it did not review the trial
court’s finding that the mining itself violated MEPA.
This
Court granted the applications for leave to appeal filed by
the DEQ and TechniSand.
468 Mich 869 (2003).
The Sand Dune Mining Act Protects Michigan’s
Critical Dunes from Destruction
It is without contest that the Legislature enacted the
sand dune mining act to stringently protect Michigan's sand
dune areas from further destruction.
state's prized natural resources.
They are one of the
The Legislature included
in the act special provisions to preserve dune areas it
labeled "critical."
8
It expressly indicated:
The critical dune areas of this state are a
unique, irreplaceable, and fragile resource that
provide
significant
recreational,
economic,
scientific,
geological,
scenic,
botanical,
educational,
agricultural,
and
ecological
benefits to the people of this state and the
people from other states and countries who visit
this resource. [MCL 324.35302(a).]
The Legislature enacted the SDMA out of concern that
mining the dunes consumes them and harms the environment.
The
act
is
an
expression
of
the
interest in protecting the dunes.
state’s
“paramount”
See MCL 324.1701.
It
defines “Sand dune mining” as the “removal of sand from
sand
dune
areas
MCL 324.63701(l).7
sand
dunes
324.63704.
to
for
commercial
or
industrial
purposes.”
It requires all persons seeking to mine
obtain
a
sand
dune
mining
permit.
MCL
Regarding critical dunes, the act states that
“the removal of any volume of sand that is not sand dune
mining within a critical dune area as defined in part 353
is subject to the critical dune protection provisions of
part 353.”
MCL 324.63701(l).
7
The statute exempts from this definition the removal
of “volumes of less than 3,000 tons” of sand if the removal
is a “1-time occurrence and the reason the sand is removed
is not for the direct use for an industrial or commercial
purpose.”
9
The SDMA’s flat prohibition against mining any sand in
designated critical sand dune areas is subject only to a
narrow exception.
That is, authorized mining entities that
existed when the SDMA was enacted may continue operation
(1) on land in which they had a mining interest before July
5, 1989 or (2) on land adjacent to property in which they
had a mining interest before that date.
These
Legislature’s
“grandfathering”
attempt
to
MCL 324.63702(1).8
exceptions
balance
mining
reflect
the
interests
that
predated the critical dune designation of July 5, 1989,
with the preservation of the remaining and newly designated
8
MCL 324.62702(1) provides in full:
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:
(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 and
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 the amended permit.
10
critical dunes.
operation.
New entities would be unable to begin
Existing
opportunities
to
mine
entities
would
additional
have
limited
By
limiting
areas.
critical dune mining to those entities with a preexisting
interest, existing entities would be allowed to continue
operating
while
ensuring
that
mining
would
not
last
indefinitely.
The Legislature mandated that these narrow exceptions
for
sand
dune
mining
regulatory permits.
would
be
implemented
MCL 324.63704.
through
The act created a
permitting procedure to ensure that future mining would be
only by parties with a pre-existing legal interest, and in
a manner protective of critical dune areas.
It cannot
reasonably be suggested that the eligibility criteria that
completely
prohibit
all
but
an
expressly
defined
few
operators from mining critical dunes are not a measure of
environmental protection.
Only
if
environmental
eligibility
is
protections
come
verified
do
into
additional
play.
Permit
applications by eligible entities are reviewed on a caseby-case
basis
to
ensure
environmentally acceptable.
that
the
proposed
mining
is
The applicant must submit an
environmental impact statement describing the anticipated
environmental
damage
that
will
11
occur
from
the
mining
operation. MCL 324.63704(2)(b).
why
alternative
324.63705(h).
mining
The applicant must explain
locations
were
not
chosen.
MCL
It must include a reclamation plan for the
area to be mined.
MCL 324.63704(2)(c), 324.63706.
In reviewing the application, the DEQ must ensure that
the
proposed
destroy
mining
natural
resources.
is
unlikely
resources
MCL 324.63709.
or
the
to
pollute,
public
impair,
trust
in
or
those
Any permit issued must require
that the provisions of the applicant’s progressive cellunit
mining
and
324.63706(3).
If
reclamation
threatened
plan
or
are
endangered
met.
species
MCL
are
present, the plan must include provisions either to protect
them or to mitigate the effect of mining on them.
MCL
324.63706(3)(g).
Plaintiffs May Challenge the Permit Eligibility
Determination Under the Michigan
Environmental Protection Act
The environmental protection act provides that
. . . any person may maintain an action in the
circuit court . . . 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. [MCL
324.1701(1).]
Under this act, a plaintiff makes a prima facie case
by showing “that the conduct of defendant is likely to
12
. . . destroy the . . . natural resources or the public
trust
in
these
Legislature
resources.”
expressly
MCL
provided
324.1703(1).9
that
MEPA
The
supplements
existing regulatory procedures that were provided by law.
MCL 324.1706.
The SDMA’s eligibility restrictions protect critical
dunes from mining by ineligible operators whose conduct is
likely
to
otherwise
impair
or
remain
destroy
critical
untouched.
Hence,
dunes
the
that
would
environmental
protection act is applicable to decisions regarding an SDMA
permit
applicant’s
eligibility.
incorporates
the
dunes
“irreplaceable”
are
324.35302(a).
Legislature’s
The
SDMA
recognition
natural
specifically
that
critical
resources.
MCL
It provides that “the removal of any volume
of sand . . . within a critical dune area . . . is subject
to the critical dune protection provisions of part 353.”
MCL
324.63701(l).
Its
provisions
strictly
limiting
eligibility to mine critical dunes are intended to help
protect
critical
dunes
from
pollution,
impairment,
or
destruction.
9
The majority's reference to MCL 324.1702(2) is
misplaced. Ante at 10. Plaintiffs are not challenging the
DEQ’s imposition on Technisand of the SDMA’s pollution
control standards.
They do not challenge the manner in
which permissible activity is undertaken.
They challenge
whether Technisand's conduct is permissible at all.
13
Thus,
the
majority’s
suggestion
that
permit
eligibility is unrelated to whether the conduct permitted
will harm the environment is untenable.
Issuance of a
permit to an ineligible operator to engage in any mining of
critical
dunes
will
allow
“conduct
.
.
.
likely
to
pollute, impair, or destroy . . . natural resources or the
public trust in these resources.”
MCL 324.1703(1); see
also West Michigan Environmental Action Council v Natural
Resources Comm,
405 Mich 741, 751; 275 NW2d 538 (1979)
(WMEAC).
MEPA is intended to prevent conduct that is likely to
harm the environment as well as to stop conduct that is
presently harming it.
In WMEAC, this Court ordered that a
permanent injunction be entered prohibiting the drilling of
oil and gas wells pursuant to a DNR permit.
The “issuance
of permits was properly before the circuit court as conduct
alleged
to
be
likely
to
pollute,
natural resources under MEPA.
would
cause
“apparently
impair,
WMEAC at 751.
serious
and
or
The drilling
lasting,
unquantifiable, damage” to elk herd population.
760.
destroy”
though
WMEAC at
This Court concluded that the previous MEPA, MCL
691.1203(1),
issuance
harm
is violated whenever the effects of permit
the
environment
WMEAC at 751, 760.
14
to
the
requisite
degree.
Unlike permit eligibility for fossil fuel drilling and
other activities that may pollute the environment if done
improperly,10
restricted.
mining
SDMA
eligibility
is
severely
The applicant must demonstrate a preexisting
interest,
requirement
permit
has
and
no
been
mining
may
satisfied.
occur
It
until
this
reflects
the
Legislature’s premise that the removal of even one bucket
of sand from a critical dune by an ineligible operator will
inordinately impair the state's critical dune areas.
An
action
as
that
enables
such
conduct
may
be
challenged
destruction or impairment under MEPA.
This Court observed in Nemeth11 that a violation of a
permitting procedure can support a prima facie claim under
MEPA.
A “plaintiff’s prima facie case is ‘not restricted
to actual environmental degradation but also encompasses
probable
damage
to
the
environment
as
well.’”
Nemeth,
supra at 25, quoting Ray v Mason Co Drain Comm’r, 393 Mich
294, 309; 224 NW2d 883 (1975).
10
In the soil erosion and
See also MCL 324.5505 and 324.3106, requiring
permits for activities that may pollute the air and water
without imposing stringent eligibility criteria.
11
See n 3.
15
sedimentation
control
act,12
the
Legislature
created
a
pollution control standard that this Court held could be
enforced through MEPA.
Nemeth, supra at 35.
The Legislature chose to make the SDMA more protective
of the environment than the soil erosion and sedimentation
control
act.
As
explained,13
already
the
Legislature
determined that any mining of critical dunes by ineligible
entities
is
an
resource.
unacceptable
Hence,
eligibility
is
the
unrelated
destruction
majority’s
to
conduct
of
this
natural
conclusion
is
premised
that
on
an
artificial and hypertechnical bifurcation of the permitting
process.
When
concluding
that
permit
eligibility
is
unrelated to conduct, the majority buries its head in the
sand.
Its characterization of the eligibility review as an
“initial inquiry”14 is not based on the language of the
statute.
The eligibility criteria in MCL 324.63702 are as
much a condition to engage in critical sand dune mining as
the requirements in §§ 63704 through 63706.
The SDMA does
not enact a hierarchy or order to be followed by those
12
MCL 324.9101 et seq.
13
Supra beginning at 7.
14
Ante at 7.
16
reviewing a permit application.
Unlike this Court’s recent
decision in Nemeth, here the majority reads “likely to” out
of the statute.
The majority argues that an inquiry into the effect on
the environment of the proposed mining “would be pointless
unless
the
DEQ
eligible
for
status”.
determined
Ante at 7-8.
be
pointless
a
first
permit
for
the
the
basis
the
of
applicant
the
applicant’s
We could not agree more.
DEQ
the
to
review
applicant
the
were
was
It would
effect
of
ineligible
the
proposed
mining
permit.
If the applicant is not eligible, no mining will
occur.
if
on
that
for
a
Critical dunes will not be destroyed.
The
majority
attempts
to
restrict
the
inquiry
into
Technisand's conduct to consideration of the nature of its
relationship
to
misleading.15
TechniSand’s
necessarily
large
the
The
property
conduct
“relationship
encompasses
quantities
of
at
in
to
question
the
mining
TechniSand’s
sand
from
is
This
more
to
critical
is
than
property.”
proposal
designated
that would otherwise remain untouched.
15
issue.
It
remove
dunes
This is the “actual
See, e.g., ante at 11 n 5. The majority’s implicit
recognition that [c]ountless entities apply for and receive
permits for conduct that affects Michigan's natural
resources,"
ante
at
17,
demonstrates
the
internal
inconsistency of its argument.
17
conduct” that the permit at issue allows and that plaintiff
alleges is “likely to pollute, impair, or destroy” critical
dunes under MEPA.
dunes
could
not
MCL 324.1703(1).
have
been
mined
Because the critical
by
TechniSand
at
all
without the erroneous eligibility determination, plaintiff
should be allowed to pursue its MEPA cause of action.
Statutory provisions must be read in the context of
the entire act so as to produce a harmonious whole. Macomb
Co Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247
(2001).
Subsections a and b of § 63702(1) must be read
together
because
of
their
juxtaposition.
Subsection
b
applies when the permit holder seeks to expand the permit
to include adjacent land that contains a critical dune area
that it owned before July 5, 1989.
In contrast, subsection
a applies to the amendment or renewal of a permit that
already authorizes mining in a particular area.
The permit issued to TechniSand authorized mining only
in the noncritical dune areas.
TechniSand had to apply for
a permit amendment to add the adjacent critical dune areas
to its permit.
case.
Therefore, subsection b applies to this
However, TechniSand did not own the land or the
rights to mine the sand before 1989 as required by the
statute.
Therefore, it could not have obtained the permit
18
amendment and could not have engaged in any critical sand
dune mining.
TechniSand’s
environmental
impact
statement16
acknowledged that mining the critical dunes at issue would
“significantly impair the environment and would permanently
destroy
critical
dune.”
253
Mich
App
269.
Witnesses
testified from the statement that the mining will change
“the nature of the result in the environment . . . for
hundreds of years”17 and a “large percent of the critical
dune will be removed.”18
Plaintiff’s expert testified that
“The critical dune will be gone.”19
Nonetheless,
the
majority
holds
that
the
DEQ’s
determination that TechniSand is eligible to mine critical
dunes
is
activities
unrelated
will
to
pollute,
whether
impair,
16
TechniSand’s
or
destroy
a
mining
natural
The majority criticizes me for citing a document
“not in the record.” Ante at 17. However, it was Exhibit
21 at trial, and witnesses read from it. See Trial Tr at
122, 582, 785, and 932. Plaintiff’s brief on appeal in the
Court of Appeals quoted it at p 6.
The record on appeal
includes all original papers filed in the courts below.
MCR 7.311(A).
Plaintiff included an excerpt in the
appendix (p 14b) to its brief on oral argument before this
Court. See MCR 7.308.
17
Trial Tr at 935.
18
Id. at 785.
19
Id. at 122.
19
resource.
Thus, it concludes that plaintiff cannot rely on
MEPA to challenge the permit that has been issued.
majority’s
reasoning
protections
in
the
undermines
SDMA,
the
the
intent
critical
of
MEPA,
The
dunes
and
this
Court’s earlier MEPA decisions.
Plaintiff is not required to challenge issuance of the
permit
as
an
administrative
Administrative
Procedures
Judicature
(RJA).
Act
decision
Act
The
under
(APA)
MEPA
or
is
either
the
the
Revised
“supplementary
to
existing administrative and regulatory procedures provided
by law.”
MCL 324.1706.
It was intended to create a common
law of environmental protection.
Ray at 306.
It does not
require that a plaintiff exhaust administrative remedies.
MCL
324.1701(1).
limitations
plaintiff’s
of
Accordingly,
neither
MEPA
the
the
APA
claim.20
nor
statutory
the
Plaintiff’s
RJA
period
of
apply
to
challenge
to
Technisand’s permit under the MEPA is not time-barred.
The DEQ does not dispute that TechniSand is ineligible
for
a
permit.
Recognizing
plaintiff’s
20
claim
under
the
The MEPA itself imposes no statutory period of
limitations, but equitable claims under the Natural
Resources and Environmental Protection Act, which houses
MEPA, have been held subject to the six-year statutory
period of MCL 600.5813.
Attorney General v Harkins, 257
Mich App 564, 571; 669 NW2d 296 (2003).
20
environmental protection act expresses no disrespect for an
administrative agency’s decision.
its
responsibility
by
refusing
The majority abdicates
to
review
this
permit
eligibility determination under MEPA.21
Conclusion
The majority's decision today wrongly insulates Sand
Dune
Mining
Act
permit
eligibility
determinations
from
judicial review.
The decision to issue a sand dune mining
permit
to
pursuant
the
environmental component.
SDMA
inherently
includes
an
I would hold that issuance of the
permit in this case can be challenged under the Michigan
environmental protection act.
The Legislature intended the act to apply to permit
determinations.
determinations
Application
is
entirely
of
the
act
consistent
to
with
permit
the
Legislature’s intent to stringently preserve Great Lakes
sand dunes against degradation and to protect the integrity
21
The majority cites Oscoda Chapter of PBB Action
Comm, Inc v Dep’t of Natural Resources, 403 Mich 215, 233;
268 NW2d 240 (1978) to support its finality argument. But
its quotation from the case is taken out of context and is
from an opinion that did not garner a majority of votes.
The statement addressed the court’s authority to consider
feasible and prudent alternatives to proposed conduct, an
issue entirely unrelated to the majority’s decision that
this permit challenge under MEPA is time-barred.
21
of that environment.
The majority’s reasoning frustrates
that intent.
Plaintiff's
cause
is
not
barred
by
limitations periods of the APA and the RJA.
the
statutory
The Court of
Appeals correctly remanded the case for entry of an order
granting summary disposition for plaintiff.
Its decision
should be affirmed.
Because the majority ignores both the reality of the
permitting process and the Legislature’s intent to protect
critical dune areas from destruction, I must dissent.
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
22
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