Michigan Citizens for Water Conservation v. Nestlé Waters North America Inc
Michigan Citizens for Water Conservation v. Nestlé Waters North America Inc
Concurring Opinion
(concurring in part). It is my position that plaintiffs have standing with respect to all the natural resources at issue, which include wetlands 112, 115, and 301, the Osprey Lake impoundment, Thompson Lake, the Dead Stream, and the Dead Stream’s wetlands. Accordingly, on remand, the trial court should be permitted to entertain arguments and render
I conclude that plaintiffs have standing because of the complex, reciprocal nature of the ecosystem that encompasses the pertinent natural resources noted above and because of the hydrologic interaction, connection, or interrelationship between these natural resources, the springs, the aquifer, and defendant Nestlé’s pumping activities, whereby impact on one particular resource caused by Nestlé’s pumping necessarily affects other resources in the surrounding area. Therefore, although there was no evidence that plaintiffs actually used or physically participated in activities on the Osprey Lake impoundment and wetlands 112, 115, and 301, environmental injuries to those natural resources play a role in any harm caused to the Dead Stream, the Dead Stream’s wetlands, and Thompson Lake, which are used by and adjacent to property owned by plaintiffs and not the subject of a standing challenge. As such, plaintiffs suffered an injury in fact or an invasion of a legally protected interest where concrete harm was caused not only to the natural resources bounding their property, but also the other outlying
Because plaintiffs have standing with respect to all the natural resources under the general standing principles cited in Cleveland Cliffs, without the need to rely on MEPA’s less demanding standing provision, MCL 324.1701(1), there is no need to determine the constitutionality of MCL 324.1701(1).
I respectfully concur.
Whether the injury, invasion, or harm is sufficiently significant to constitute a MEPA violation and require a level of enjoinment is to be determined on remand.
Concurring Opinion
(concurring in part). I join in Judge SMOLENSKl’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
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 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.
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).
Opinion of the Court
In Docket No. 254202, defendant Nestlé Waters North America Inc. (Nestlé) appeals as of right the trial court’s imposition of an injunction barring it from withdrawing any groundwater from property owned by Donald Patrick Bollman and Nancy Gale Bollman, doing business as Pat Bollman Enterprises (the Bollmans).
The events leading to this appeal began when Nestlé’s predecessor in interest, Great Spring Waters of America, Inc., a subsidiary of Perrier Group of America, Inc.,
In the summer of 2001, defendant began to construct its bottling plant approximately 12 miles from Sanctuary Springs.
In September 2001, the MCWC filed its first amended complaint.
In May 2002, plaintiffs filed a motion for summary disposition on counts II to IV
The bench trial commenced on May 5, 2003, and ended on September 10, 2003. On November 25, 2003, the trial court issued its opinion and order. With regard to count III, the trial court found that defendant’s pumping had harmed and will continue to harm plaintiffs’ riparian interests. The trial court also determined that defendant’s water withdrawals violated MEPA by unlawfully diminishing an inland lake or stream and draining water from a wetland. The trial court concluded that these violations warranted a full injunction and ordered defendant to terminate all water withdrawals from Sanctuary Springs within 21 days of the date of the filing of its opinion and order.
On December 8, 2003, plaintiffs moved for costs under MCL 600.2164 and MCL 324.1703(3). At a May 7, 2004, hearing, the trial court awarded costs to plaintiffs, as prevailing parties, in the amount of $122,212.47. On May 27, 2004, plaintiffs moved for clarification or amendment of the trial court’s order.
On March 4, 2004, under Docket No. 254202, defendant appealed as of right the trial court’s November 25, 2003, opinion and order as amended and supplemented on February 13, 2004. On March 22, 2004, plaintiffs filed a claim of cross-appeal challenging the trial court’s dismissal of plaintiffs’ public trust claim. On June 17, 2004, under Docket No. 256153, defendant appealed as of right the trial court’s grant of costs to plaintiffs.
II. FACTUAL FINDINGS
We shall first address defendant’s argument that the trial court’s findings were clearly erroneous and that the trial court abused its discretion by refusing to grant defendant’s request to reopen the proofs or supplement the record.
A. STANDARDS OF REVIEW
This Court reviews the findings of fact in a bench trial for clear error. Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003). A finding is clearly erroneous when, after reviewing the entire record, this Court is left with a definite and firm conviction that a mistake has been made. Id. The clear
A motion to reopen the proofs is a matter within the discretion of the trial court. Bonner v Ames, 356 Mich 537, 541; 97 NW2d 87 (1959). An abuse of discretion is found when an unprejudiced person, considering the facts on which the trial court relied, would find no justification or excuse for the ruling made. McSwain, supra at 685.
B. FINDINGS OF FACT
Defendant argues that the trial court’s findings are speculative and not supported by the record.
Defendant first questions how the trial court could find that the predicted drop in the water level of wetlands 112, 115, 301 and the Dead Stream wetlands would exceed the predictions of both defendant’s and plaintiffs’ experts.
For wetland 112, the trial court adopted the opinion of plaintiffs’ groundwater expert, Dr. David Hyndman, as well as “the other corroborating evidence referred to,” and found that “wetland 112 will drop from three inches to one foot at a pump rate of 400 gpm ....” At trial, Hyndman testified that, “in wetland 112, my expectation is that there will be a significant measurable drop that will be greater than three inches. That’s based on, again, observations of data and the models that have been run by both myself and Dr. Andrews.”
For wetland 301, the trial court surveyed the evidence of a connection between wetland 301 and the groundwater and stated:
Dr. Madsen[22] testified regarding her observation of 301 and estimated that it was down at the time of trial some three to six inches from last fall, a time frame in which she’d expect to see a rise in level, not a drop. She opined that two inches of drop had occurred within approximately two weeks of her observation from the nature of the exposed soils.
*
Wetland 301 is, thus, certain to have a drop at 400 gpm and appears to be having such at lower rates. Quantification of the drop on 301 is difficult. Dr. Madsen’s observations noting a drop at pumping rates in the area of 160-200 gpm seem high, but do verify a drop at rates much below 400 gpm. Regarding the Defendants’ motion to strike Dr. Madsen’s opinions based on drawdowns in wetland 301 in the range of three to six inches (made during her testimony of June 6), that motion is denied as there is record evidence, including Dr. Madsen’s observations, that, if*44 accepted, would indicate it may experience losses in that range.[23] The issue is left to be one of credibility and weight.
Based on the above information I find that wetland 301 was experiencing drops in water level at the time of the trial in the range of two to four inches and that it will suffer a drop of twice that at the state permitted pump rate of 400 gpm.
From this it can be seen that the trial court took Madsen’s direct observation of a drop in wetland 301 at approximately half the permitted pump rate, adjusted it downward on the basis of credibility assessments of her testimony, and then doubled it to reflect the permitted rate. Thus, the prediction for wetland 301 was based on a logical and reasonable analysis of the evidence presented at trial.
With regard to the Dead Stream wetlands, the trial court found:
Frankly, little hydrologic evidence was received at trial regarding specific measurements regarding then existing or predicted drops in the water levels in the Dead Stream wetlands. Apparently everyone was relying on their predictions regarding the Dead Stream to carry over to the immediately adjacent wetlands. This is a reasonable assumption that I accept. Defendant argued that the absence of proofs directly relating to the Dead Stream wetlands means there are no proofs of such. To the contrary, Christopher Grobbel, one of Plaintiffs’ experts in hydrology testified that a drop in the stream will result in a corresponding drop in the adjacent wetlands.[24] Further, Mark Luttenton[25] testified to his observation that the Dead Stream wetlands’ water level dropped around three inches*45 in the time between his visit on 1/6/2003 and 4/23/2003, a time frame he’d expect to see an increase instead. Also[,] Dr. Madsen testified that she observed a drop in water level in these wetlands in the neighborhood of 4-6 inches from 10/02 and 5/03. Therefore, I find that the Dead Stream wetlands will lose at least two inches of water level, and maybe more, at a pump rate of 400 gpm, with lesser losses at lower pump rates on a straight-[line] calculation.
Hence, the trial court’s finding is based on a minimum drop equal to that of the Dead Stream and possibly more based on the direct observations of expert witnesses. Therefore, the record also supports this finding.
2. DEAD STREAM
Defendant next contends that the trial court clearly erred by finding that the Dead Stream would lose 345 gpm in flow and 2 inches in stage despite the fact that Hyndman only predicted a drop in flow of 260 to 345 gpm and a drop in stage of 1 to 2 inches. In its opinion, the trial court explained that the
Dead Stream will lose flow of 345 gpm at a pump rate of 400 gpm, a figure first calculated by Dr. Andrews and then accepted by Dr. Hyndman. The defense made much over the fact that this figure is different from, and greater than, any loss calculated by Dr. Hyndman’s models, a point effectively replied to by Dr. Hyndman as he repeated that his models were not designed to balance all elements of this extremely complex ecosystem. His models were designed to analyze components of the system with as few variables as possible, which he satisfactorily explained as the best use of models in situations such as this one, particularly when much data is available. Dr. Hyndman accepted Dr. Andrews’ model’s calculated loss of 345 gpm as such seemed reasonable, a conclusion I agree with.
Although the trial court stated that it came “to the generalized opinion that Dr. Hyndman’s testimony and
At trial, Andrews testified that, at a steady-state pumping of 400 gpm, the Dead Stream would lose 345 gpm in flow. Furthermore, Hyndman testified that he and Andrews “agree that the majority of the flow that’s being diverted as a result of the well would have gone to the Dead Stream system, and somewhere in the range of, we’ve talked about, 260 to 345 gallons a minute.” Hyndman also explained that his models did not attempt to calculate the amount of flow diverted from the Dead Stream because he agreed with Andrews’s determination that 345 gpm would be diverted. Hyndman clarified that “if345 gallons per minute is diverted from Dead Stream as a result of pumping, then there will be roughly a two-inch drop based on its relationship, which is similar to what I’ve shown earlier.” Therefore, the record supports the trial court’s finding that the Dead Stream will lose 345 gpm in flow and that this loss will correspond to a drop of approximately 2 inches in stage.
Defendant also contends that the trial court’s findings must be speculation because the trial court admitted that it was virtually impossible to analyze the effect on the Dead Stream of defendant’s pumping. This statement was taken out of context. The trial court actually wrote, “[I]t is virtually impossible to get a reliable reading on the effects of Nestlé’s operations on Dead Stream on any given day.” (Emphasis added.) The trial court’s statement does not stand for the proposition that no findings regarding the effect on the Dead Stream of defendant’s pumping could be made. On the
Defendant points to the trial court’s finding that the Dead Stream’s channel would narrow by more than four feet as the result of its pumping as an example of a failure in the trial court’s reasoning that reveals its findings to be speculation. In making this finding, the trial court stated:
Defendants’ expert, David Cozad,[26] opined that the channel of Dead Stream, will narrow one to two feet on each side of the channel (2’-4’ total) over approximately ten years, if Dr. Andrews’ opinions regarding decreases in Dead Stream flow and stage are accurate. I have found that Dr. Andrews’ opinions on such are substantially below what has and will occur, so Cozad’s opinion must be that even more channel-narrowing will occur. Plaintiffs’ relevant expert, Mark Luttenton, opined that the channel narrowing will be to a greater degree than Cozad predicted and would occur over a longer period of time. He was not able to quantify how much more would occur than Cozad predicts, but is certain it will happen.
I find that Nestlé’s pumping operation will result in a narrowing of the channel of the Dead Stream over time in an amount greater than four feet.
Defendant’s argument centers on the apparent inconsistency of accepting Andrews’s determination that 345 gpm in flow will be lost and then rejecting Cozad’s opinion, which was based on a loss of 345 gpm in flow, regarding the amount by which the channel of the Dead Stream would narrow. However, this argument ignores the fact that the trial court relied in part on Luttenton’s opinion that Cozad understated the amount of channel
3. HYDROLOGIC CONNECTION TO WETLAND 1X5
Defendant next finds fault with the trial court’s finding that wetland 115 was affected by defendant’s pumping. Defendant argues that it disproved plaintiffs’ theory that wetland 115 had a hydrologic connection to the well field. Despite this, defendant contends, the trial court improperly developed its own unsupported theory that there was a hydrologic connection and used this theory in making its findings.
The trial court acknowledged that whether wetland 115 was affected by defendant’s pumping was highly contested. Hyndman testified that there was a substantial connection between wetland 115 and the well field and opined that the water levels in wetland 115 correlated well with defendant’s pumping activities. The trial court accepted Hyndman’s opinion that wetland
4. INCONSISTENT FACTS
Finally, defendant argues that the trial court illogically adopted inconsistent facts and accepted Hyndman’s self-contradictory opinions over defendant’s experts’ opinions. In its opinion, the trial court unequivocally stated that it accepted Hyndman’s opinion on the use and validity of groundwater models, while rejecting Andrews’s opinion on the same thing. The court explained, “Dr. Hyndman’s approach was not to try to model the entire system to get it to balance, but rather to take a more ‘microanalysis’ approach to examining components of the system to understand them. If there is sufficient ‘hard’ evidence, even Dr. Andrews agrees that is the best approach.” At trial, Hyndman explained his approach to models:
I believe the most powerful approach, most reliable approach, is to use the data that we have and evaluate what’s occurring on the site.
*50 The models that I used were to evaluate hypotheses and see what types of effects are likely to be occurring in the groundwater system. And, I mean, models can be used for a variety of reasons. One can be there’s insufficient data. Another can be you are trying to do a projection and you feel you don’t have enough data to do so.
In this case, my view is that there’s enough data to evaluate what’s occurring in this system mainly using data.
The inconsistencies of which defendant complains are all based on differences in the variables used by Hyndman in his models. Yet Hyndman clarified several times that he used his models to check his hypotheses, but his opinions were based primarily on the data available. Taken in this context, defendant’s argument is really an argument that the trial court should have disregarded Hyndman’s testimony because the variables he used from one model to the next were inconsistent and, therefore, the conclusions he drew from those models must be unreliable. However, whether this use of models renders Hyndman’s opinions suspect is a matter of weight and credibility properly left to the trial court, McSwain, supra at 683, and this Court will not second-guess the trial court’s credibility determination in favor of Hyndman. MCR 2.613(C).
There were no factual errors warranting a new trial.
C. MOTION TO REOPEN THE PROOFS
Defendant also argues the trial court erred by not permitting the reopening of proofs.
In denying defendant’s motion to reopen the proofs,
The trial court also recognized the limited probative value of the data from this isolated period, especially in the context of the data accumulated over the previous 2V2 years. The trial court explained:
*52 The problem with this argument is that it places much weight on the information since trial, without putting it in the context of the data accumulations before and even during trial. Plaintiffs’ reply, in part, that the heavy precipitation in November skews the presentation of data since trial, an argument that has merit.... The question is not merely what has happened since the proofs closed, but, rather, how does that new data “move” the existing data analysis in its totality one way or the other. The trial evidence clearly showed that it is important to look at as long a range of information as is available to “flatten the curve” of short-term anomalies, such as unusually high precipitation periods. Since Nestle has not shown how the overall analysis would be changed if the newly-accumulated data were incorporated into it, balancing it against the long-term assessment of the trial evidence, it has not proven that merely having new information would forward the controlling inquiries.
Because the trial court made its ruling on the basis of valid considerations of finality and the limited probative value of the data, we cannot conclude that the trial court was without justification or excuse in refusing to reopen the proofs. McSwain, supra at 685. Therefore, the trial court did not abuse its discretion.
D. CONCLUSIONS
While one might disagree with the specific findings made by the trial court, they are adequately and plausibly supported by the testimony and documentary evidence in the record. Beason, supra at 803. Because the factual findings are supported in the record, we cannot say that we are left with the definite and firm conviction that the trial court made a mistake. Alan Custom Homes, supra at 512. Likewise, given the limited value of the additional data and the inconvenience that further presentations of data would entail, the trial court did not abuse its discretion by refusing to reopen the proofs. Because the trial court did not clearly err in
III. GROUNDWATER claim
Defendant argues the trial court erred when it determined that defendant’s pumping unlawfully interfered with plaintiffs’ riparian rights to the Dead Stream
A. STANDARD OF REVIEW
This Court reviews de novo, as a question of law, the proper scope and application of the common law. People v Petty, 469 Mich 108, 113; 665 NW2d 443 (2003).
B. MICHIGAN WATER LAW
In order to provide some much-needed perspective on the applicable law, we shall engage in a discussion of the
1. RIPARIAN WATER RIGHTS
Under the common law, three main doctrines have developed for dealing with riparian water rights: the English common-law rule, also known as the natural flow doctrine; the reasonable use doctrine; and the appropriation or prior use doctrine. Stoebuck & Whitman, The Law of Property (3d ed), § 7.4, pp 422-425. Of these doctrines, the natural flow doctrine and the reasonable use doctrine are relevant to the development of water law in Michigan.
Under the natural flow doctrine, each riparian proprietor of a watercourse has a right “to have the body of water flow as it was wont to flow in nature,” qualified only by the right of other riparian proprietors to make limited use of the water. Restatement, introductory note to §§ 850 to 857, p 210.
The doctrine permits every owner to consume as much water as needed for “domestic” purposes, which generally means for personal human consumption, drinking, bathing, etc., and for watering domestic animals. Beyond this, the owner may use the water for “reasonable” artificial or commercial purposes, subject to the very large proviso that he may not substantially or materially diminish the quan*55 tity or quality of water. Certainly no water may be transported to land beyond the riparian land. [Stoebuck & Whitman, p 422.]
Under the reasonable use doctrine, “a riparian owner may make any and all reasonable uses of the water, as long [as] they do not unreasonably interfere with the other riparian owners’ opportunity for reasonable use.” Id. at 423. “Whether and to what extent a given use shall be allowed under the reasonable use doctrine depends upon the weighing of factors on the would-be user’s side and balancing them against similar factors on the side of other riparian owners. No list of factors is exhaustive, because the court will consider all the circumstances that are relevant in a given case.” Id. While in theory no single factor is conclusive, “[domestic uses are so favored that they will generally prevail over other uses.” Id. Furthermore, while the reasonable use doctrine generally allows water to be transported and used on nonriparian lands, such uses may be disfavored over uses on riparian land. Id. at 424; see also Restatement, introductory note to §§ 850 to 857, pp 211-212.
In Dumont v Kellogg, 29 Mich 420 (1874), our Supreme Court adopted the reasonable use doctrine for competing riparian owners. The plaintiff in Dumont, a mill proprietor downstream from the defendant’s mill, had filed suit complaining that the defendant had unlawfully interfered with his riparian rights by diminishing the flow of water to the stream below. Id. at 420. The plaintiff prevailed in the lower court, and the defendant appealed, assigning error to the jury instructions.
And in considering the case it may be remarked at the outset that it differs essentially from a case in which a stream has been diverted from its natural course and turned away from a proprietor below. No person has a right to cause such a diversion, and it is wholly a wrongful act, for which an action will lie without proof of special damage. It differs, also, from the case of an interference by a stranger, who, by any means, or for any cause, diminishes the flow of the waters; for this also is wholly wrongful, and no question of the reasonableness of his action in causing the diminution can possibly arise. And had the instructions which are excepted to been given with reference to a case of diversion, or of obstruction by a stranger, the broad terms in which the responsibility of defendant was laid down to the jury might have found abundant justification in the authorities. [Id.]
Thus, the Court determined that the jury instructions, which followed the natural flow rule, would have been applicable had the interference been caused by a stranger.
It is therefore not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with injury, that will give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes injury is not unreasonable. In other words, the injury that is incidental to a reasonable enjoyment of the common right can demand no redress. [Id. at 425.]
Because the instructions did not properly state the reasonable use rule applicable to competing riparian owners, the Court reversed the judgment and ordered a new trial. Id. at 425-426.
What constitutes a reasonable use must be determined on a case-by-case basis. People v Hulbert, 131 Mich 156, 170; 91 NW 211 (1902). However, diversions of water from a lake or stream that do not benefit riparian lands were generally considered unreasonable per se.
2. GROUNDWATER WATER LAW
As with riparian water law, there are three main common-law doctrines applicable to groundwater disputes. Stoebuck & Whitman, § 7.5, p 427.
In America, the most prevalent rule applicable to groundwater disputes is the doctrine of reasonable use,
[a]s the doctrine has developed, it generally has been held that all uses of water upon the land from which it is extracted are “reasonable,” even if they more or less deplete the supply to the harm of neighbors, unless the purpose is malicious or the water simply wasted. But... when the question is whether water may be transported off that land for use elsewhere, this is usually found “unreasonable,” though it has sometimes been permitted. Authorities are not all agreed, but a principle that seems to harmonize the decisions is that water may be extracted for use elsewhere only up to the point that it begins to injure owners within the aquifer. [Id. at 428-429.]
The last doctrine is a variant of the reasonable use doctrine developed in California, which is often called the correlative rights doctrine. Stoebuck & Whitman, p 429. Under this doctrine,
[o]wners of land within an aquifer are viewed as having equal rights to put the water to beneficial uses upon those lands. However, an owner’s rights do not extend to depleting his neighbor’s supply, at least not seriously so, for in the event of a water shortage, a court may apportion the supply that is available among all the owners. It is sometimes said that this is the application of the reasonable use doctrine of flowing streams to underground water.... As to uses outside the land from which the water is drawn, for municipal and other uses, the rule is similar to that under the ordinary reasonable use doctrine: water may be transported only if the overlying owners have been fully supplied. [7ci.]
a. SCHENK
The seminal case dealing with groundwater rights in Michigan is Schenk v City of Ann Arbor, 196 Mich 75;
Before making its decision, the Court noted that the parties were not riparian owners and that the underground waters were percolating waters rather than waters running in a defined underground channel. The Court also noted that the city planned to pipe the water away from the lands from which it was drawn. Id. at 81. The Court then recited the rule of absolute ownership and the authorities for that rule, stating, “While this is the rule applied, and to be applied, in respect to most of the ordinary uses of land, and the ordinary operations carried on upon and in land, there is other doctrine, apparently, but not strictly, a modification of the early common-law doctrine referred to, which is sometimes called the doctrine of reasonable user, and which was introduced by equity to the law.” Id. at 82. The Court then adopted the “rule of reasonable user” for the
“This [rule] does not prevent the proper user by any landowner of the percolating waters subjacent to his soil in agriculture, manufacturing, irrigation, or otherwise, nor does it prevent any reasonable development of his land by mining or the like, although the underground water of neighboring properties may thus be interfered with or diverted; but it does prevent the withdrawal of underground waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence they are taken, if it results therefrom that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water upon his land, or if his wells, springs, or streams are thereby materially diminished in flow, or his land is rendered so arid as to be less valuable for agriculture, pasturage, or other legitimate uses.” [Id. at 84, quoting Meeker, supra at 638-639.][38 ]
Although the city was extracting the water for use off the property from which it was extracted, and therefore was subject to the limitations of the reasonable use rule, the Court determined that the plaintiff was not entitled to an injunction because he had lowered his well and regained a supply of water and no other harm was demonstrated entitling him to equitable relief. However, the Court left open the possibility of a future injunction based on a new harm. Id. at 92. Thus, the Court adopted the traditional reasonable use rule, which permits withdrawals of water whose use is not connected with the land from which it is withdrawn,
b. POST-SCHENK DECISIONS
After Schenk, Michigan courts continued to apply the reasonable use rule stated in Schenk, but applied it in a flexible manner to ensure that no one user would be deprived of all beneficial use of its water resources.
In Bernard v City of St Louis, 220 Mich 159; 189 NW 891 (1922), our Supreme Court was again confronted with a large municipal water user whose extraction of groundwater for use off-tract impaired a local user’s groundwater use. The plaintiffs owned a hotel that was used as a sanitarium. The hotel property had a mineral spring whose waters were pumped to the roof of the hotel for storage and eventual distribution to the guests and patients of the hotel. Id. at 160-161. The defendant owned land adjacent to the hotel on which it had sunk five wells to service the water needs of its citizens. Id. at 161. When the defendant resumed using the wells after a period of disuse, the plaintiffs sued for and received an injunction barring the defendant’s use of the wells to the extent that the use diminished the flow or pressure of the water flowing from the plaintiffs’ well. Id. at 161-162. In deciding whether the injunction was appropriately granted, our Supreme Court stated:
We are not satisfied, however, that if the city makes reasonable use of the percolating waters and the plaintiffs do not permit it to go to waste that there will not nearly all of the time be an ample supply for the needs of both. If there should not be then the plaintiffs should not be deprived of a supply of water sufficient for their reasonable use without compensation, nor should they be required to install new machinery without compensation. {Id. at 163.]
While the Bernard Court did not state that it was employing a balancing test, its approach to solving the water dispute before it bears the hallmarks of a balancing test. The Court explicitly rejected an outright injunction against the defendant’s off-tract water use simply because it diminished the flow and pressure of the plaintiffs’ wells. Instead, the Court ensured that both parties would be able to utilize the water supply by compelling the defendant to limit its pumping activities to a level that did not interfere with an adequate supply of water for the plaintiffs’ reasonable use. Notably, the Court did not attempt to protect the plaintiffs’ water supply as it existed before the defendant began pumping, but only protected the plaintiffs’ adequate supply of water and then only to the extent that the use was itself reasonable. The Court also determined that the defendant ought to compensate the plaintiff for any expenses incurred to maintain an adequate supply. Although still protecting on-tract uses over off-tract uses, the Court actually struck a balance between the two uses that attempted to ensure that both parties would have reasonable access to the common water supply.
In Hart v D’Agostini, 7 Mich App 319; 151 NW2d 826 (1967), the Court continued the trend toward applying a balancing test to groundwater disputes rather than strictly applying the traditional reasonable use rule.
This shift from the strict application of the reasonable use rule, which preserves the English rule for on-tract water disputes, to a balancing approach was explicitly endorsed by the Court in Maerz. In Maerz, the Court was presented with a case involving two competing groundwater users. The plaintiffs filed a complaint against the defendant quarry alleging that the defendant’s dewatering of the quarry caused the loss of the plaintiffs’ groundwater supply. Maerz, supra at 712. The issue before the Court was whether the defendant’s use of the groundwater in connection with the property from which it was extracted (i.e., on-tract) was reasonable per se. Id. at 713. In attempting to ascertain the applicable standard, the Maerz Court surveyed the development of groundwater law in America beginning with the English rule of Acton, but noted that most American courts had rejected this rule in favor of modified versions. Id. at 713-714. The Maerz Court then discussed what it called the “correlative rights” rule, which it stated was adopted by the American Law Institute, as set forth in 4 Restatement Torts, 2d, § 858. Id. at 714-715.
After this survey, the Maerz Court analyzed the decision in Schenk. The Maerz Court concluded that the Schenk Court adopted a correlative rights balancing test for groundwater extraction used on distant lands. The Maerz Court also disregarded as dicta the Schenk Court’s determination that the English rule governed extractions used in connection with the land from which it was extracted. Id. at 717. The Maerz Court then analyzed the progeny of Meeker
3. CONCLUSION
We agree with the Maerz Court’s conclusion that a reasonable use balancing test is consistent with the Michigan authorities governing water use.
C. APPLICATION OF THE LAW
In its opinion and order, the trial court applied a hybrid rule of its own making to plaintiffs’ groundwater claim.
The Court in Hart, supra at 321, observed that “[i]n our increasingly complex and crowded society, people of necessity interfere with each other to a greater or lesser extent.” For this reason, the “right to [the] enjoyment of. . . water . . . cannot be stated in the terms of an absolute right.” Id. The reasonable use balancing test is best adapted to this reality. It recognizes that virtually every water use will have some adverse effect on the availability of this common resource. For this reason, it is not merely whether one suffers harm by a neighbor’s water use, nor whether the quantity of water available is diminished, “but whether under all the circumstances of the case the use of the water by one is reasonable and consistent with a correspondent enjoyment of right by the other.” Dumont, supra at 424.
While the balancing test is a case-specific inquiry, there are three underlying principles that govern the process of balancing competing water uses. First, the law seeks to ensure a “fair participation” in the use of water for the greatest number of users. Id. Hence, the court should attempt to strike a proper balance between protecting the rights of the complaining party and preserving as many beneficial uses of the common resource as is feasible under the circumstances. Second, the law will only protect a use that is itself reasonable. Hulbert, supra at 173 (protecting “reasonable and ordinary” uses); Dumont, supra at 424-425; Bernard, supra at 165 (protecting “an adequate supply of water for the plaintiffs’ reasonable use”). A plaintiff whose water use has little value or is excessive or harmful will be entitled to no protection. Third, the law will not redress every harm, no matter how small, but will only redress unreasonable harms. Dumont, supra at 424-425;
Having noted these underlying principles, we now turn to the factors to be balanced when determining whether the harm caused by the defendant’s use is unreasonable under the circumstances. In Hulbert, the Court stated:
“No statement can be made as to what is such reasonable use which will, without variation or qualification, apply to the facts of every case. But in determining whether a use is reasonable we must consider what the use is for; its extent, duration, necessity, and its application; the nature and size of the stream, and the several uses to which it is put; the extent of the injury to the one proprietor and of the benefit to the other; and all other facts which may bear upon the reasonableness of the use.” [Hulbert, supra at 170, quoting Gehlen Bros v Knorr, 101 Iowa 700, 705; 70 NW 757 (1897).]
In Thompson, supra at 688, a plurality of the Court determined that the trial court should have applied a reasonable use balancing test to determine whether the defendant’s proposed use of the lake was reasonable under the circumstances. Because the trial court did not make the necessary findings, the Court remanded the case, with the following guidance on the factors to be considered:
*71 First, attention should be given to the water course and its attributes, including its size, character and natural state. In determining the reasonableness of the use in the case at bar, it should be considered that Gun lake is not a large lake, that it is used primarily for recreational purposes, and that the defendants are changing its natural state....
Second, the trial court should examine the use itself as to its type, extent, necessity, effect on the quantity, quality, and level of the water, and the purposes of the users....
Third, it is necessary to examine the proposed artificial use in relation to the consequential effects, including the benefits obtained and the detriment suffered, on the correlative rights and interests of other riparian proprietors and also on the interests of the State, including fishing, navigation, and conservation. [Id. at 688-689.]
While the nature of the balancing test requires that the appropriate factors be ascertained on a case-by-case basis, Hulbert, supra at 170, in examining Hulbert and Thompson, several factors can be discerned that will be relevant to every application of the test. These factors include (1) the purpose of the use, (2) the suitability of the use to the location, (3) the extent and amount of the harm, (4) the benefits of the use, (5) the necessity of the amount and manner of the water use, and (6) any other factor that may bear on the reasonableness of the use.
When determining the purpose of the use, the court should consider whether the use is for an artificial or a natural purpose and whether the use benefits the land from which the water is extracted. Natural purposes include all those uses necessary to the existence of the
In assessing the suitability of the use to the location, the court should examine the nature of the water source and its attributes. Hulbert, supra at 170; Thompson, supra at 688. A particularly large aquifer, stream, or lake may be unaffected even by extensive water withdrawals, whereas a marginal water resource may be unduly strained even by relatively modest withdrawals. See Restatement, § 850A, comment d, pp 224-225. Likewise, the uses to which a particular water source is customarily put are relevant to a determination of whether a new use is suitable to the area. Thompson,
In assessing the harm and benefits, the court should examine not only the economic harm and benefits to the parties, but should also examine the social benefits and costs of the use, such as its effect on fishing, navigation, and conservation. Thompson, supra at 689. Negative social effects should weigh against the use, see Restatement, § 850A, comment f, p 226, and positive social effects should weigh in favor of a determination of reasonableness, Hart, supra at 323 (noting that the sewer line benefited the area). The traditional use employed in the locality where the resource resides will often be a guide to what the community considers reasonable in this context. Dumont, supra at 425. Likewise, because society benefits from predictability, the protection of existing water uses should be an important consideration in the balancing of competing water uses. See Hulbert, supra at 165, quoting Strobel v Kerr Salt Co, 164 NY 303; 58 NE 142 (1900); Restatement, § 850A, comment k, pp 233-235.
The court should also examine the extent, duration, necessity, and application of the use, including any effects on the quantity, quality, and level of the water. Hulbert, supra at 170; Thompson, supra at 688-689.
2. APPLICATION TO THE FACTS
In the present case, plaintiffs alleged that defendant’s groundwater withdrawals interfered with their riparian rights in the Dead Stream,
It is also uncontested that defendant’s use of the disputed water serves a beneficial purpose. Testimony established that defendant’s bottling plant employed
Plaintiffs claim that defendant’s water withdrawals will harm their recreational and aesthetic use of the Dead Stream, but provide no evidence that defendant’s water use has interfered or will interfere with their domestic water supplies. Likewise, defendant’s use of the water is for commercial profit. Therefore, both uses are for artificial purposes and neither is entitled to a preference. However, plaintiffs’ uses are directly related to the use and enjoyment of their riparian land, whereas defendant’s use is not directly related to the land from which the water is withdrawn. Hence, plaintiffs are entitled to some measure of preference as local water users.
All parties agreed that defendant’s water withdrawals will capture water that would otherwise have entered the Dead Stream. Hence, defendant’s water withdrawals will have a direct effect on the amount of flow in the Dead Stream. In describing the Dead Stream, the trial court noted that it was already a low-flow stream subject to many natural variables. For these reasons, the trial court found that even a modest drop in water level would have dramatic consequences for the stream.
In examining the degree of harm to the Dead Stream, the trial court found that it would lose approximately 24 percent of its base flow
In examining the necessity of the manner and amount of defendant’s water use, it must be noted that defendant chose the Sanctuary Springs location in order to facilitate its marketing of the extracted water as “spring water.”
3. CONCLUSION
Although defendant should be permitted to have a “fair participation” in the common water resources of the area, if defendant is permitted to pump at the maximum permitted rate, it will effectively appropriate for its own needs approximately 24 percent of the base flow of the Dead Stream. This is more than a fair participation. While plaintiffs might properly be required to suffer some harm to their use of the Dead Stream, it would be unjust to permit defendant to impose on plaintiffs the entire burden of the harms created by the depletion of the Dead Stream’s flow while retaining all the benefits. Furthermore, because defendant is in the best position to spread the costs incurred by a reduction in its use of the water from Sanctuary Springs, it is just that it should bear a greater portion of that burden. See Restatement, § 850A(i), p 220. Therefore, taking all the factors outlined into consideration, we determine that defendant’s proposed withdrawal of400 gpm would be unreasonable under the circumstances.
Having determined that defendant’s proposed withdrawal of water from Sanctuary Springs in the amount of 400 gpm will unreasonably interfere with plaintiffs’ riparian water rights in the Dead Stream, we must now determine what the appropriate remedy is under the circumstances. Because of the unique nature of riparian rights, we conclude that an injunction of limited scope is the only adequate remedy.
Injunctive relief is an extraordinary remedy that will be granted only when (1) justice requires it, (2) there is no adequate remedy at law, and (3) there exists a real and imminent danger of irreparable injury. Higgins Lake Prop Owners Ass’n v Gerrish Twp, 255 Mich App 83, 106; 662 NW2d 387 (2003). In considering the propriety of an injunction, this Court will consider the following factors:
“(a) [T]he nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of other remedies,
(c) any unreasonable delay by the plaintiff in bringing suit,
(d) any related misconduct on the part of the plaintiff,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or judgment.” [Id., quoting Kemen v Homestead Dev Co, 232 Mich App 503, 514-515; 591 NW2d 369 (1998).]
In the present case, plaintiffs will suffer substantial harm to their riparian rights if defendant’s planned pumping rate of 400 gpm is permitted. In addition to the loss of recreational uses in the Dead Stream, there
While we have determined that defendant’s proposed withdrawal rate of 400 gpm would be unreasonable in light of the factors analyzed, this does not necessarily mean that defendant should be completely enjoined from making use of its wells. On the contrary, as already noted, defendant is entitled to make reasonable use of the available water resources, and plaintiffs may properly be compelled to endure some measure of loss as long as an adequate supply of water remains for their own water uses. Having made this determination, we are now confronted with the daunting task of determining what level of water extraction from Sanctuary Springs will provide a fair participation in the common water supply for defendant, but leave plaintiffs with an adequate supply of water for their own water uses. While the trial court made findings of fact sufficient to
On remand, the trial court shall hold a hearing to determine what level of water extraction from Sanctuary Springs will provide defendant with a fair participation in the common water supply while maintaining an adequate supply for plaintiffs’ water uses. Because we have found no reason to question the validity of the findings of fact already made by the trial court, no new evidence shall be permitted at the hearing except as determined to be necessary by the trial court, and the trial court shall give due regard to the trial court’s earlier findings and credibility assessments. At the hearing, the trial court shall hear the arguments of the parties and, on the basis of these arguments, the record evidence, and the trial court’s earlier findings, determine what level of water extraction from Sanctuary Springs will meet the criteria discussed above. Once the
E. CONCLUSION
Although the trial court erred when it applied the wrong law to plaintiffs’ groundwater claim, it correctly determined that defendant’s water withdrawals from Sanctuary Springs unlawfully interfered with plaintiffs’ riparian water uses. This Court will uphold a trial court’s ruling on appeal when the right result issued, albeit for the wrong reason. Gleason v Dep’t of Transportation, 256 Mich App 1, 3; 662 NW2d 822 (2003). Therefore, we affirm the judgment in favor of plaintiffs on the groundwater claim, but remand to the trial court to determine the appropriate parameters of the injunction and modify it accordingly.
IV. MEPA
Defendant next argues that “[t]he trial court’s MEPA holding suffers from numerous fundamental errors and should be reversed.” Defendant contends that (1) plaintiffs lacked standing to bring a MEPA claim with respect to the Osprey Lake impoundment and wetlands 112, 115, and 301, (2) the trial court improperly utilized the inland lakes and streams act (ILSA)
A. STANDARDS OF REVIEW
This Court reviews de novo the trial court’s conclusions of law. Alan Custom Homes, supra at 512. Statutory interpretation is also an issue of law that is reviewed de novo. Shinholster v Annapolis Hosp, 471 Mich 540, 548; 685 NW2d 275 (2004). Finally, whether a party has standing to assert a claim is a question of law. Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004).
B. MEPA STANDING
Defendant first argues that plaintiffs lack standing to sue under MEPA for claims respecting the Osprey Lake impoundment and wetlands 112, 115, and 301 because any adverse effect on those areas from defendant’s pumping activities does not affect plaintiffs in a manner different from the citizenry at large.
After examining the constitutional underpinnings of Michigan’s doctrine of standing, the Court adopted the test for standing stated in Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992). To meet this test, the plaintiff must demonstrate three things:
“First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly.. . trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some*85 third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” [Lee, supra at 739, quoting Lujan, supra at 560-561.]
In the present case, plaintiffs are property owners along the Dead Stream and Thompson Lake and a nonprofit organization dedicated to the conservation of water and the protection of riparian interests. While a nonprofit organization has standing “to bring suit in the interest of their members where such members would have standing as individual plaintiffs,” Cleveland Cliffs, supra at 629, none of the members of the MCWC, including the Sapps and the Doyles, presented any evidence that they use the Osprey Lake impoundment or wetlands 112, 115, or 301 in any way.
However, under MCL 324.1701(1), “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.” Because the plain language of this statute purports to grant any person standing to bring a claim under MEPA, we must determine whether the Legislature can confer standing broader than is required under Lee.
The majority in Cleveland Cliffs began its analysis by reiterating that proper standing is mandated by Michigan’s constitutional separation of powers and reaffirmed its adherence to the principles stated in Lee. Id. The Court explained:
Perhaps the most critical element of the “judicial power” has been its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute, and one in which the plaintiff has suffered a “particularized” or personal injury. Such a “particularized” injury has generally required that a plaintiff must have suffered an injury distinct from that of the public generally.
Absent a “particularized” injury, there would be little that would stand in the way of the judicial branch becoming intertwined in every matter of public debate. [Id. at 615 (citations omitted).]
Furthermore, “[t]o allow the judiciary to carry out its responsibilities in this manner is to misperceive the ‘judicial power,’ and to establish the judicial branch as a forum for giving parties who were unsuccessful in the legislative and executive processes simply another chance to prevail.” Id. at 615-616. Because the standing limitations are imposed by Michigan’s constitution, “[w]hen a broadening and redefinition of the ‘judicial power’ comes not from the judiciary itself, usurping a
Although the majority in Cleveland Cliffs declined to specifically examine the constitutionality of MCL 324.1701(1), it clearly determined that the Legislature was without the authority to expand standing beyond the limits imposed by Michigan’s constitution. Because the Court in Cleveland Cliffs intentionally took up and discussed the Legislature’s authority to confer broader standing, its decision on that matter is binding on this Court. People v Higuera, 244 Mich App 429, 437; 625 NW2d 444 (2001). Consequently, we must hold that, to the extent that it confers standing broader than the limits imposed by Michigan’s constitution, as determined by Lee and Cleveland Cliffs, MCL 324.1701(1) is unconstitutional.
C. MEPA STANDARDS
We shall next address defendant’s argument that the trial court improperly determined that defendant’s water withdrawals violated ILSA and the WPA and, therefore, constituted a prima facie violation of MEPA.
1. ESTABLISHING A MEPA CLAIM
Under MEPA, a party may maintain an action 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). To maintain the action, the plaintiff must first make out a prima facie case that the defendant has or is likely to pollute, impair, or destroy the air, water, or other natural resources. MCL 324.1703(1); Ray v Mason Co Drain Comm’r, 393 Mich 294, 309; 224 NW2d 883 (1975). However, “MEPA does not impose specific requirements or standards; instead, it provides for de novo review in Michigan courts, allowing those courts to determine any adverse environmental effect and to take appropriate measures.” Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 30; 576 NW2d 641 (1998). Therefore, it is the task of the trial court to develop the standards and find the facts on which the plaintiff claims to have made a prima facie case. Ray, supra at 309. Because MEPA does not have specific standards, the “judicial development of a common law of environmental quality, as envisioned by the Legislature, can only take place if circuit court judges
Under MEPA, the trial court may also examine the validity, applicability, and reasonableness of a pollution control standard “fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state ....” MCL 324.1701(2). “Where the purpose of the statute used as a pollution control standard is to protect our natural resources or to prevent pollution and environmental degradation, a violation of such a statute can establish a prima facie case under the MEPA.” Nemeth, supra at 36. Therefore, in determining that a plaintiff has made out a prima facie MEPA violation, the trial court may either (1) make detailed and specific findings that the defendant’s conduct has polluted, impaired, or destroyed, or is likely to pollute, impair, or destroy, the air, wáter, or other natural resources, Ray, supra at 309-310, or (2) find that the defendant has violated an applicable pollution control standard, Preserve the Dunes, Inc v Dep’t of Environmental Quality, 471 Mich 508, 516; 684 NW2d 847 (2004).
Once a prima facie case is made out by the plaintiff, the burden of proceeding shifts to the defendant, who may rebut the prima facie case with evidence to the contrary. MCL 324.1703(1); Ray, supra at 310-311. Finally, the defendant may elect to present the affirmative defense that there “is no feasible and prudent alternative to defendant’s conduct and that his or her conduct is consistent with the promotion of the public health, safety, and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment, or destruction.” MCL 324.1703(1); Ray, supra at 312-313.
In its opinion, the trial court determined that plaintiffs had made out a prima facie MEPA claim. The trial court explained:
After careful consideration of the issue, I believe [ILSA] presents an excellent standard for environmental protection, which neither the parties, the DEQ nor I can authorize activities contrary to. I adopt it as one of the MEPA standards applicable to this case.
Inherent in the above discussion of [ILSA], I find that the Defendants were/are required to apply for a permit under [ILSA], a step they did not take. However, if they had, it is probable that the DEQ would have, improperly, issued one .... As such, it would be a meaningless act to order the Defendants to apply to the DEQ for an [ILSA] permit. Such finding sets out a prima facie rase under MEPA that the Defendants have not rebutted, as spelled out in great detail in the factual-analysis portions of this opinion above.... Thus, the Defendants are in violation of the standard adopted herein, thus making them subject to appropriate remedies being ordered by this court in this case.
After examining ILSA, the trial court turned to the WPA.
In going through the analysis set out in [the WPA], which I find to be an appropriate standard for the protection of the environment under MEPA, I also hereby find that the balancing of this particular use of groundwater in the form of spring water from this particular ecosystem, with the resulting effects and impacts set out in the factual analysis portion of this opinion, results in the conclusion that Nestlé’s beverage bottle-water operation falls on the losing side of the balancing of the public interest in it, as compared to the price the wetlands here in contention are paying and will pay, considering all interests, including the public’s, in these wetlands. As such, Plaintiffs are hereby found to have presented a prima facie case under MEPA using this WPA standard.
At no point in its discussion of MEPA did the trial court make specific findings, as required by Ray, supra at 309-310, that defendant’s conduct had or was likely to pollute, impair, or destroy the air, water, or other natural resources. The only basis on which the trial court determined that plaintiffs had met their prima facie burden was that defendant’s conduct violated two statutory standards: ILSA and the WPA. However, under MCL 324.1701(2), a trial court may only adopt a standard “fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state” if the standard is a pollution control standard. Preserve the Dunes, supra at 516-517. If the trial court adopts a standard from a statute or rule that is not a pollution control standard, the violation of that standard cannot serve as a prima facie violation of MEPA. Id. Therefore, we must determine whether ILSA and
a. ILSA
ILSA prohibits a person from doing the following activities without a permit: (a) dredging or filling bottomland, (b) constructing, enlarging, extending, removing, or placing a structure on bottomland, (c) erecting, maintaining, or operating a marina, (d) creating, enlarging, or diminishing an inland lake or stream, (e) structurally interfering with the natural flow of an inland lake or stream, (f) constructing, dredging, commencing, extending, or enlarging an artificial canal, channel, ditch, lagoon, pond, lake, or similar waterway for the purpose of connecting to an existing lake or stream, and (g) connecting any natural or artificially constructed waterway, canal, channel, ditch, lagoon, pond, lake, or similar waterway with an existing inland lake or stream for navigation or any other purpose. MCL 324.30102. ILSA defines “inland lake or stream” to include “a natural or artificial lake, pond, or impoundment; a river, stream, or creek which may or may not be serving as a drain[,] ... or any other body of water that has definite banks, a bed, and visible evi
[t]he department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. In passing upon an application, the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce, and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state. This part does not modify the rights and responsibilities of any riparian owner to the use of his or her riparian water. A permit shall specify that a project completed in accordance with this part shall not cause unlawful pollution as defined by part 31. [MCL 324.30106.]
Hence, under the relevant permitting standards of ILSA, the DEQ is tasked with analyzing the proposed project and determining whether the project will adversely affect the public trust or riparian rights. The DEQ is also required to assess the possible effects on the uses of such waters, “including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce, and industry.” Likewise, the DEQ is ordered not to issue a permit if the project will impair or destroy the waters or other natural resources. The statute also makes it clear that ILSA does not affect riparian rights and that a permit shall specify that a project shall not cause unlawful pollution. MCL 324.30106. With the exception of the last sentence, there is no language within MCL 324.30106 that establishes a pollution control standard. Indeed, the entire permitting provision requires the DEQ to evaluate the
b. WPA
The WPA states that a permit shall not be approved “unless the department determines that the issuance of a permit is in the public interest, that the permit is necessary to realize the benefits derived from the activity, and that the activity is otherwise lawful.” MCL 324.30311(1). The statute goes on to provide, “In determining whether the activity is in the public interest, the benefit which reasonably may be expected to accrue from the proposal shall be balanced against the reasonably foreseeable detriments of the activity. The decision
Because the only statutes adopted by the trial court as MEPA standards were not pollution control standards, and the trial court failed to make the necessary findings “on which the plaintiff claims to have made a prima facie case,” Ray, supra at 309, the trial court erroneously determined that plaintiffs had established a prima facie violation of MEPA. Consequently, we vacate the portion of the trial court’s opinion that concluded that defendant’s water withdrawals violate MEPA and remand this issue for determination by the trial court.
3. REMAND
On remand, the trial court shall examine the entire record and, giving due regard to the trial court’s find
a. THE RESOURCES AT ISSUE
The first step in determining whether the plaintiff in a MEPA action has made out a prima facie violation is to identify the resource that has allegedly been polluted, impaired, or destroyed. Kent Co Rd Comm v Hunting, 170 Mich App 222, 233; 428 NW2d 353 (1988). Throughout the trial court’s discussion of this issue, it addressed the nature of any impairment by reference to the harms to wetlands, lakes, and streams caused by defendant’s pumping activities. Hence, the trial court determined, and we agree, that the relevant resources were the wetlands, lakes, and streams. However, because of the standing issue addressed in part IV(B), the only wetlands, lakes, and streams that the trial court may consider on remand are Thompson Lake, the Dead Stream, and the Dead Stream’s wetlands. In addition, the trial court determined that this issue does not involve the pollution or destruction of these resources. Instead, the issue revolves around whether defendant’s pumping activities at Sanctuary Springs impairs the identified resources. Therefore, the trial court shall limit itself accordingly.
b. IMPAIRMENT
In order to promote the development of the common law of environmental quality, see Ray, supra at 307, we
V INJUNCTIVE relief
Defendant next argues that the trial court improperly granted injunctive relief when it failed to articulate the standards on which it could do so and because it was not warranted. Defendant further argues that, even if it were warranted to some degree, the trial court erred when it granted an injunction barring all pumping activities at Sanctuary Springs. However, because of our disposition of defendant’s groundwater and MEPA issues, we need not address the propriety of the trial court’s issuance of a complete injunction against defendant’s withdrawal of water from the Sanctuary Springs site.
The trial court dismissed plaintiffs’ public trust claim pursuant to a motion for summary disposition under MCR 2.116(C)(8). On cross-appeal, plaintiffs contend that the trial court did so because it mistakenly applied a narrow log-floatation test, which is properly applicable only to dead-end privately owned lakes, to the Dead Stream, rather than the more flexible valuable floatage test applicable to streams. Plaintiffs further contend that there are questions of fact concerning whether the Dead Stream is navigable under a test other than the log-floatation test and whether the public trust applies to the water and fish of the Dead Stream, even if the stream itself is not navigable. Finally, plaintiffs argue that, even if the public trust does not apply to the Dead Stream, this Court should expand the public trust doctrine to curtail water use that threatens to diminish flows or levels of water in a stream. We disagree with each contention and decline plaintiffs’ invitation to expand the public trust doctrine.
A. STANDARD OF REVIEW
This Court reviews de novo the grant or denial of summary disposition to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the basis of the pleadings alone. Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). “The purpose of such a motion is to determine whether the plaintiff has stated a claim upon which relief can be granted. The motion should be granted if no factual development could possibly justify recovery.” Id. at 129-130.
In Bott v Natural Resources Comm, 415 Mich 45; 327 NW2d 838 (1982), our Supreme Court was presented with two cases in which riparian property owners along dead-end lakes wanted to exclude the general public from utilizing their lakes for recreational purposes. The Court noted that it was the “established law of this state ... that the title of a riparian or littoral owner includes the bed to the thread or midpoint of the water, subject to a servitude for commercial navigation of ships and logs, and, where the waters are so navigable, for fishing.” Id. at 60. The Court further noted that the “public-trust doctrine applies only to navigable waters and not to all waters of the state.” Id. at 71 (emphasis in original). Furthermore, the Bott Court specifically rejected overtures to adopt a recreational boating test for determining navigability, id. at 71-86, and instead affirmed the log-floatation test stated in Moore v Sanborne, 2 Mich 519 (1853). See Bott, supra at 61.
In Moore, our Supreme Court stated:
The length and magnitude of many of our rivers, the occasions and necessities for their use, and the nature and character of our internal commerce, all require a liberal adaptation of those doctrines to our circumstances and wants, and to a condition of things, both as to capability of our streams for public use, and the occasion for such use, entirely different from, and in many respects altogether new to, those which concurred to establish the common law rule, and we accordingly find that in all the States that rule has been enlarged so as to meet the condition and wants of the public necessities of trade and commerce. [Moore, supra at 522.]
For this reason, the Court declined to adopt the strict navigable-in-fact rule that found “those rivers only are subject to the [navigational] servitude of the public
The Bott Court rejected the notion that the log-floatation test in Moore was archaic and impractical. The Court explained:
In many cases, there will undoubtedly be evidence whether a waterway was used for floating logs at an earlier time. Such evidence might justify a determination of navigability. If no rehable history is available, a litigant could produce evidence in at least two other ways. He might obtain a number of large logs and float them down the stream in question. Alternatively, he could establish navigability by surveying the body of water as the DNR did in the instant cases and comparing its dimensions (width, depth, rate of flow) to the reported dimensions of streams already found to be navigable. Comparison as well as other evidence would allow a court to make a sound determination without changing the test of navigability. [Bott, supra at 72 n 27.]
Hence, plaintiffs could have shown that the Dead Stream was navigable by presenting evidence that the stream was historically used to float logs, by demonstrating through tests that the stream can actually support the floatation of logs, or through comparison with streams already determined to be navigable.
During the summary disposition phase of this case, the trial court was presented with evidence regarding the logging activities that occurred in the vicinity of the
Although the floating of a shingle bolt may demonstrate that the Dead Stream is capable of floating a commercially viable log, Moore and Bott both require the floating of large mill logs to demonstrate navigability. Moore, supra at 526; Bott, supra at 72 n 27. Therefore, plaintiffs’ shingle bolt experiment cannot support a finding of navigability. Furthermore, while Alguire noted historical evidence of shingle bolts within the Dead Stream, there was no evidence of mill logs within the stream, and Welsh’s testimony established that, in this region, mill logs were transported by narrow gauge railroads. Hence, plaintiffs failed to present any historical evidence that the Dead Stream was used to float mill logs. Finally, in his deposition, Cozad testified that the Dead Stream ranged from six inches to two feet in depth. In Bott, the Court determined that the creeks in that case were too shallow to permit the floatation of logs because they were only six
C. EXPANDING THE NAVIGABILITY TEST
Plaintiffs contend that Bott is properly applicable only to dead-end lakes rather than streams. We disagree with plaintiffs’ characterization of the holding in Bott.
While Bott did deal with access to dead-end lakes, the primary holding centered on the navigability of the streams that connected the dead-end lakes to other bodies of water. Bott, supra at 60. Indeed, one of the parties in Bott had actually constructed a bridge across the stream that blocked the passage of boats from the larger body of water to the lake. Id. at 58 n 3. Furthermore, the Court never limited its holding reaffirming Moore to cases involving dead-end lakes and the streams leading into them, but repeatedly referred to lakes, rivers, and streams as well as generally to the property interests of littoral and riparian owners. Bott, supra at 62, 64, 66, 72 n 27, 73, 79, 81. Hence Bott reaffirmed the rule that the log-floatation test is the only navigability test for determining whether a lake or stream is navigable and, therefore, subject to the public trust doctrine.
In Bott, our Supreme Court rejected this same argument. The Court explained, “Collins and Taggart hold only that the public may fish in streams found navigable under the rule of Moore v Sanbome. Collins and Taggart voiced no dissatisfaction with the log-floatation test, and applied that test to determine the navigabihty of the streams in question.” Bott, supra at 68. Furthermore, the Court expressed its concern that, since Moore, many property owners have “invested their savings or wealth in reliance on a long-established definition of navigabihty.” Id. at 79. The Court explained:
In stating the log-floatation test of navigability the Moore Court did indeed establish a rule of navigability which varied from the English common law and the common law of many jurisdictions in the United States. In doing so, however, the Court was not overruling any binding precedent, for there was none on the issue at that early date in Michigan’s history. The Court in Moore was writing on a blank slate — we are not. [Id. at 80.]
For this reason, the Court concluded that it was “not an appropriate forum for resolving the competing societal values which underlie this controversy,” id. at 86, and chose to retain the log-floatation test for navigabihty rather than adopt a recreational boating test. Consequently, the log-floatation test described in Bott is the only applicable test for determining whether a lake or stream is navigable and thereby subject to the public trust.
Plaintiffs also argue that all water within Michigan is property held in trust for the people regardless of the navigability of individual bodies of water. We disagree.
Plaintiffs mistakenly rely on People v Collison, 85 Mich 105; 48 NW 292 (1891), People v Horling, 137 Mich 406; 100 NW 691 (1904), and Collins for the proposition that the state holds all waters in trust for the public. In Collison and Horling, the Court was asked to determine the extent of the right of the state to regulate fishing. In Collison, the Court stated that, with regards to fish, it was immaterial who owned the land under the lake, because the lake was interconnected with other bodies of water and by “reason of [the] migratory habits [of fish], their ownership is in the whole people of the State, and no individual has any property right in them until they have been subjected to his control. To fish is a privilege accorded by the State, and the question of individual enjoyment is one of public privilege, and not of private right.” Collison, supra at 108. Thus the Court in Collison merely recognized that one has no property rights in migratory fish until they are reduced to one’s control, and that the state has the right to regulate the manner in which one can lawfully capture (i.e., reduce to one’s control) fish. Id. In Horling, the Court upheld the state’s power to regulate fishing on a body of water that was only intermittently connected to the Grand River for the same reasons. Horling, supra at 414-415. Read in conjunction, these cases stand for the proposition that the state has the general police power to regulate fishing on bodies of water that are interconnected with public waters and do not stand for the proposition that all fish (or water) are held in trust for the public.
Plaintiffs also cite the Michigan Constitution and several statutes as proof that the state has placed all waters, including groundwater, within this state in trust.
The trial court properly determined that, under Michigan law, water as a general resource is not subject to the public trust and, therefore, that plaintiffs failed to state a claim under count V of their complaint. The trial court also properly determined that the only bodies of water subject to the public trust were those lakes and streams that meet the log-floatation test for navigability first described in Moore and affirmed in Bott. Because the trial court did not err when it determined that the Dead Stream did not meet the log-floatation test, the trial court properly dismissed plaintiffs’ public trust claim.
VH. TAXATION OF COSTS
Defendant next argues that the trial court erred when it granted plaintiffs’ motion for costs as prevailing parties. Specifically, defendants argue that the trial court abused its discretion by accepting plaintiffs’ characterization of their expert witness fees as being for “Trial time” without independently evaluating the fees to determine whether they were reasonable or properly designated. We agree.
A. STANDARD OF REVIEW
This Court reviews an award of costs for an abuse of discretion. Badiee v Brighton Area Schools, 265 Mich App 343, 377; 695 NW2d 521 (2005). However, what constitutes costs is governed by statute, J C Bldg Corp II v Parkhurst Homes, Inc, 217 Mich App 421, 429; 552 NW2d 466 (1996), and questions of statutory construction are reviewed de novo. Macomb Co Prosecutor v Murphy, 464 Mich 149, 157; 627 NW2d 247 (2001).
Under the Michigan Court Rules, a prevailing party is generally entitled to costs, “unless prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in writing and filed in the action.” MCR 2.625(A)(1). What constitutes “costs” under the court rules is determined by reference to the Revised Judicature Act. See MCL 600.2401 et seq. Under MCL 600.2405(2), “costs” include matters specially made taxable elsewhere in the statutes or court rules.
In the present case, plaintiffs requested costs as prevailing parties under MCR 2.625 and specifically requested the taxation of their expert witness fees pursuant to MCL 600.2164 and MCL 324.1703(3).
An expert is not automatically entitled to compensation for all services rendered. Hartland Twp v Kucykowicz, 189 Mich App 591, 599; 474 NW2d 306 (1991). “ ‘The burden of proving fees rests upon the claimant of those fees.’ ” Campbell v Sullins, 257 Mich App 179, 201; 667 NW2d 887 (2003), quoting Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33; 335 NW2d 710 (1983). In Detroit v Lufran Co, 159 Mich App 62, 67; 406 NW2d 235 (1987), the Court determined that experts are properly compensated for court time and the time required to prepare for their testimony as experts. The Court further stated, “[W]e do not regard conferences with counsel for purposes such as educating counsel
In the present case, plaintiffs presented more than 100 pages of itemized expenses and receipts and five affidavits in three separate briefs to the trial court in support of their motion for costs. On May 7, 2004, the trial court held a hearing on the costs. At the hearing, plaintiffs’ counsel presented the court with an itemized list of all expert fees with a designation indicating whether the fee was related to trial preparation or some other category. Plaintiffs’ counsel then addressed the nature of several disputed items from the itemized list, explaining in detail why he believed they were properly taxable. Plaintiffs also argued that the trial court was not bound by the limited definition of expert witness fee costs and could award the full fees regardless of whether the fee was related to trial preparation, and even argued that the trial court could award more fees than were actually charged in the case of one expert witness who undercharged the plaintiffs. Defendant objected to several expert witness fees as unreasonable, but did state that it had no objection to some fees, including all of Luttenton’s fees.
After hearing the parties’ arguments, the trial court determined that the costs referred to under MEPA are the costs permitted by statute and, therefore, that it
[t]he problem when applied to this case is that as I referred to in my first opinion,.. . there was a learning curve for the experts and counsel. I believe that this whole area of hydrology effects and impacts, what this all meant evolved with time and, as such, the things that seem prohibited by the language I just quoted from the [.Hartland Twp] case are inextricably intertwined with the sorts of things that are clearly recoverable, and to try to back those out would be virtually impossible.
It would be an extraordinary effort here to go through the extensive materials attached to the affidavits to determine minute by minute how much of each would be pure consultation and as to how many minutes of each of those would be related to actually getting the witness prepar[ed] for trial testimony.
The court also refused to award fees greater than those actually incurred by plaintiffs and refused to give expert witness fees for nonexperts, as requested by plaintiffs’ counsel. Finally, after all the evidence had been presented, the trial court awarded plaintiffs $119,869.97 in expert witness fees and $2,342.50 in other taxable costs, for a total of $122,212.47.
In light of this record, the trial court abused its discretion. The trial court had ample evidence from which to assess the reasonableness of plaintiffs’ requested expert witness fees, but determined that it would be too difficult to separate the taxable costs from the nontaxable costs. The trial court’s decision to simply accept plaintiffs’ characterization of the expert
C. CONCLUSION
Because the trial court improperly awarded costs to plaintiffs that are not taxable under the applicable statutes, the award must be reversed and remanded for recalculation.
VIII. APPORTIONMENT OF COSTS UNDER MEPA
Defendant also argues that the trial court abused its discretion when it amended its order under MCR 2.612(C)(1)(f) to correct plaintiffs’ oversight in failing to request an apportionment of costs under MEPA.
IX. CONCLUSION
The trial court did not clearly err in making its findings of fact and did not abuse its discretion when it refused to reopen the proofs. Therefore, a new trial on those grounds is not warranted.
While the trial court improperly applied the wrong law to plaintiffs’ groundwater claim, it correctly determined that defendant’s water withdrawals from Sanctuary Springs violated plaintiffs’ riparian rights in the Dead Stream. Therefore, we affirm the trial court’s holding to that effect. However, we remand this issue to
The trial court improperly relied on defendant’s purported violations of ILSA and the WPA to establish a prima facie violation of MEPA. Because these statutes do not contain pollution control standards, the violation of either of these statutes will not, by itself, establish a prima facie violation of MEPA. Therefore, in order to determine that plaintiffs had made out a prima facie case, the trial court needed to make specific findings that defendant’s conduct would impair the resources in question, which it did not do. Consequently, the trial court erroneously determined that plaintiffs had met their prima facie burden. For these reasons, it is necessary to remand this issue to the trial court.
On remand, the trial court shall determine the applicable standard for impairment of the resources at issue and shall determine, on the entire record and giving due respect to the trial court’s earlier findings and credibility assessments, whether plaintiffs have established a prima facie violation of the standard with respect to Thompson Lake, the Dead Stream, and the Dead Stream’s wetlands. If the trial court determines that plaintiffs have met their prima facie burden, the trial court shall determine whether the record supports the conclusion that defendant rebutted that prima facie case. If the trial court determines that defendant failed to rebut plaintiffs’ prima facie case, it shall enter an appropriate remedy.
The trial court abused its discretion when it awarded expert witness fee costs to plaintiffs that were not authorized by statute or court rule. However, because plaintiffs are prevailing parties, the award of costs is still appropriate. Therefore, we reverse the tried court’s grant of costs to plaintiffs and remand for the recalculation of costs consistent with this opinion.
Finally, the stay issued by this Court, see unpublished order of the Court of Appeals, entered December 16, 2003 (Docket No. 252717), shall remain in force unless modified by the trial court. However, this stay shall be modified to permit defendant to pump not more than a weekly average of 200 gpm. This stay shall expire after the trial court enters the modified injunction, as discussed in part III(D) and issues an order for relief, if warranted, under plaintiffs’ MEPA claim.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
The Bollmans did not take part in this appeal.
The appeals in Docket Nos. 256153 and 254202 were consolidated on January 27, 2005.
During the course of the litigation, Great Spring Waters of America, Inc., changed its name to Nestlé Waters North America Inc. “Defendant” will be used to refer interchangeably to Nestlé, Great Spring Waters, and Perrier.
Defendant selected the Sanctuary Springs location in order to withdraw water that met the federal requirements to market it as spring water. In order to do this, defendant must obtain the water from a source with a direct hydrologic and geochemical relationship to a spring. 21 CFR 165.110(a)(2)(vi).
The Dead Stream was originally dammed in 1953 by the Sapp family. After purchasing the property, the Bollmans enlarged the impoundment with a new dam built sometime around 1980.
Land that includes or abuts a river is riparian. Dyball v Lennox, 260 Mich App 698, 705 n 2; 680 NW2d 522 (2004). While some MCWC members own property on lakes and, therefore, might more accurately be referred to as littoral owners, for ease of reference the term “riparian” shall be used throughout this opinion to refer to both littoral and riparian interests. See id.
Defendant intended to pump the water from Sanctuary Springs through a pipeline to its plant.
Plaintiffs R.J. Doyle and Barbara Doyle (the Doyles) and Jeffrey R. Sapp and Shelly M. Sapp (the Sapps) were not parties to this initial complaint, but did file affidavits on the MCWC’s behalf. The Doyles own property along the Dead Stream, and the Sapps own property along Thompson Lake, a small lake just south of the Osprey Lake impoundment. The Doyles and the Sapps are members of the MCWC.
However, the trial court noted that, while defendant could proceed to build the plant, “Perrier will have to assume the ... risks that accompany business decisions in the face of contentious environmental litigation and permitting processes. ... [Hjaving done so to its detriment will not be considered as an... argument against future equitable proceedings ----”
The first amended complaint was entered by stipulation of the parties on October 8, 2001.
MCL 324.1701 et seq.
Although plaintiffs never actually stated that their motion was made under MCR 2.116(C)(10), the trial court treated it as such.
This issue arose again on the morning the trial was set to begin, and the trial court clarified that
*38 the Court construes the issues before the Court, as expanded on in the ruling of October 4, 2002, to indicate that in looking at this case, the Court will consider riparian rights in relationship to the groundwater withdrawals and that whatever effects may result to riparian bodies,... those issues are considered to be before the Court. .. , realizing that counsel may have some arguments regarding the actual law to apply.
Plaintiffs have not appealed the grant of summary disposition in favor of defendants on counts II and V
The injunctive relief requested in count I was mooted when defendant completed construction of the wells, wellhouses, and pipeline.
On December 5, 2003, defendant moved for the suspension or modification of the injunctive relief pending its motion for a new trial and eventual appeal to this Court. After the trial court denied this motion, defendant filed an emergency application for leave to appeal. On Decern
On May 26, 2004, defendant appealed the trial court’s grant of costs to plaintiffs, but this Court dismissed the claim for lack of jurisdiction. Unpublished order of the Court of Appeals, entered July 1, 2004 (Docket No. 255793).
The trial court entered its order granting plaintiffs’ motion for clarification or amendment on June 10, 2004.
On June 23, 2004, defendant filed a motion with this Court asking for a stay of the grant of costs pending appeal, which this Court granted. See unpublished order of the Court of Appeals, entered July 1, 2004 (Docket No. 256153).
Although defendant makes reference to factual errors outlined in a chart contained within the introduction to its brief and to errors addressed in its motion for a new trial, we decline to address these alleged errors because they were not adequately briefed. See People v Van Tubbergen, 249 Mich App 354, 364-365; 642 NW2d 368 (2002).
Dr. Charles Andrews was defendant’s groundwater expert.
22 Dr. Barbara Madsen was plaintiffs’ expert in wetland ecology.
23 Defendant has not appealed the trial court’s denial of the motion to strike.
24 Grobbel testified that “if the Dead Stream were to drop 1 or 2 inches and stay there[,]... you’d see essentially a dewatering or a drying of wetlands contiguous to the Dead Stream.”
25 Dr. Luttenton was plaintiffs’ expert in aquatic ecology and fisheries.
26 Cozad was defendant’s expert in aquatic ecology and fisheries biology.
Andrews testified that his model showed some portion of wetlands 301, 112, and 115 would decline at a steady-state pumping rate of 400 gpm.
Because defendant’s brief only presented arguments regarding the trial court’s refusal to perfmit the reopening of proofs, we shall address only those arguments. Any remaining arguments made in the statement of questions presented or in the original motion were insufficiently briefed and, therefore, abandoned on appeal. Van Tubbergen, supra at 364-365.
Defendant actually made two motions to reopen the proofs. The first motion was made on September 2, 2003, after the close of proofs, but before closing arguments. This motion was heard on September 9, 2003, in a discussion on the record before closing arguments were made. Initially, the trial court had been inclined to permit the inclusion of the data, but the parties began to argue about the presentation and interpretation of the data, whereupon the trial court ruled that it would not consider data collected after the close of proofs, excepting data that the parties had already stipulated. The second motion was made as part of defendant’s motion for a new trial and was addressed in the trial court’s opinion of February 13, 2004.
As already noted, the trial court determined that plaintiffs’ claims against defendant were not based on a strict application of riparian law and, consequently, dismissed plaintiffs’ riparian law claim (count H). Plaintiffs have not appealed that dismissal. However, the trial court did state that riparian principles may apply to plaintiffs’ groundwater claim. See n 13 of this opinion.
The statutory appropriation or prior use doctrine prevails in arid states. Under this doctrine, one who makes prior use of water for some “beneficial” purpose, even if not a riparian owner, may gain the right to continue doing so. Stoebuck & Whitman, p 424; see also Restatement, introductory note to §§ 850 to 857, pp 213-214.
The jury instructions summarized the law as preventing the defendant from materially diminishing the natural flow of the stream. Dumont, supra at 421.
This bifurcation of the applicable rule, depending on the status of the party interfering with the riparian owner’s water use, is not without precedent. See 4 Restatement Torts, 2d, Appendix (1982), § 850, pp 23-24; Bollinger v Henry, 375 SW2d 161 (Mo, 1964); Pabst v Finmand, 190 Cal 124, 132; 211 P 11 (1922) (“Obviously, there is no question of reasonable use in the sense in which that term is applied to the rights of respective riparian owners, since a riparian owner, as against a nonriparian owner, is entitled to the full flow of the stream without the slightest diminution.”). However, the Dumont Court’s use of the word “stranger” suggests that the Court was referring to a nonriparian who attempted to exercise riparian water rights. This understanding is consistent with the Restatement’s approach, which recognizes that a nonriparian who uses the water of a watercourse or lake is liable for interference caused to a riparian owner by such use without reference to the reasonableness of the use. See Restatement, § 857, p 250.
See Hall v City of Ionia, 38 Mich 493, 500 (1878) (“We think the complainant has a right to an injunction against the threatened proceedings of defendants to collect and divert the water to purposes foreign to their use and enjoyment of the woolen factory premises, and that the prayer of the bill to that effect should have been granted.”); Stock v City of Hillsdale, 155 Mich 375; 119 NW 435 (1909) (refusing to restrain the defendant’s withdrawals from lake because the defendant proceeded in defiance of the plaintiffs rights for more than 20 years); Kennedy v Niles Water Supply Co, 173 Mich 474, 475-477; 139 NW 241 (1913) (noting that the defendant’s withdrawal of water to supply the city of Niles would be impermissible if it were not for the prescriptive rights obtained by the
Under traditional principles of groundwater law, if the underground water flows in a defined underground stream, that water will be subject to the rules applicable to interference with riparian water rights. Stoebuck & Whitman, p 427; Restatement, introductory note to §§ 858 to 863, p 257.
The absolute ownership rule is still the law in a minority of states. See Sipriano v Great Spring Waters of America, Inc, 1 SW3d 75 (Tex, 1999); Maddocks v Giles, 728 A2d 150, 153 (Me, 1999).
Before Schenk, Michigan might have followed the English rule of absolute capture. See Upjohn v Richland Twp Bd of Health, 46 Mich 542, 549; 9 NW 845 (1881) (noting that “the rule of law has become established that owners of the soil have no rights in sub-surface waters ... as against their neighbors who may withdraw them by wells or other excavations”).
The language quoted from Meeker suggests that the reasonable use rule would apply to groundwater users whose use interfered with riparian water rights. This is consistent with the application of the reasonable use rule in some jurisdictions. See Anno: Subterranean and percolating waters; springs; wells, 55 ALR 1385, 1418-1420.
While the Maerz Court correctly summarized the Restatement’s approach, the characterization of the Restatement’s rule as a correlative rights rule is unfortunate. As noted above, the phrase “correlative rights” has been used to describe both the American or reasonable use doctrine and the California modification of that doctrine, but neither doctrine employs a strict balancing test. See Restatement, §§ 850A and 858(2), pp 220, 258.
This is a mischaracterization of the traditional reasonable use doctrine. This doctrine does not employ a balancing test for water used on land other than the land from which the water was extracted. Instead, it permits water extraction for use off-tract up to the point at which it interferes with the groundwater rights of adjacent water users. Stoebuck & Whitman, pp 428-429.
The Maerz Court examined the progeny of Meeker in an effort to demonstrate that the Meeker Court’s holding adopted a reasonable use rule similar to the Restatement’s approach for both on-tract and off-tract groundwater use. Maerz, supra at 718.
However, we do not agree with defendant’s contention that the Maerz Court intended to make a sweeping adoption of the entire Restatement approach to the resolution of water disputes. Instead, we note that the Maerz Court only held that “the principles expressed in the Restatement... should be followed in Michigan.” Maerz, supra at 720 (emphasis added). Even if the Maerz Court had made a sweeping adoption of the Restatement’s rule, we would reject it as not binding. See MCR 7.215(J)(1).
The trial court stated its rule as follows:
In cases where there is a groundwater use that is from a water source underground that is shown to have a hydrological connection to a surface water body to which riparian rights attach, the groundwater use is of inferior legal standing than the riparian rights. In such cases, as here, if the groundwater use is off-tract and/or out of the relevant watershed, that use cannot reduce the natural flow to the riparian body.... The next step in the rule is in cases where, again as here, the groundwater use is shown to have measurable and proven negative impacts on the riparian body/bodies, with the analysis not having any component regarding whether the use is off-tract/out of watershed.
If one proprietor makes no use of the water, that proprietor may not complain of another’s otherwise lawful water use. See Stock, supra at 382. However, the value conferred by a stream or lake on riparian land is a use that courts will protect. See Restatement, § 850, comment b, pp 217-218.
See also Restatement, § 850A, comment g, pp 226-227.
While these factors are drawn from Michigan authorities, we recognize that the factors listed in Restatement, § 850A, p 220, have many similarities. Because of these similarities, we shall resort to the Restatement as an aid to understanding the role of these factors in the balancing test.
See also Restatement, § 850A, comment b, pp 223.
See also Restatement, § 850A, comment c, pp 223-224.
While we acknowledge that, at least in the context of riparian rights, prior courts have determined that uses that did not benefit the riparian land were unreasonable per se, see n 34 of this opinion, we believe that such a per se rule is incompatible with modern use of the balancing test. Instead, we hold that the location of the use is but one of the factors that should be considered in balancing the relative interests.
Even extensive interruptions in a party’s water supply may be reasonable under some circumstances. See Hart, supra at 323.
The trial court determined that, as a matter of law, plaintiffs’ groundwater claim only applied to the effects on the Dead Stream that were caused by defendant’s use. Because plaintiffs have not appealed this part of the trial court’s ruling, we shall limit our analysis accordingly.
See, e.g., Bolt v Natural Resources Comm, 415 Mich 45, 78-79; 327 NW2d 838 (1982) (refusing to expand the definition of navigability because such an expansion would render riparian property unfit as a refuge or retreat and, therefore, diminish property values).
In its opinion of February 13, 2004, the trial court noted that the percentage of base flow reduction is probably closer to 24 percent than to the 29 percent listed in its original opinion.
At trial, David Cozad, defendant’s expert in aquatic ecology and fisheries biology, agreed that a majority of the shoreline in the Tri-lakes area was developed and that this made “all fish habitat associated with the littoral zone of importance.”
See n 4 of this opinion.
Brendan O’Rourke, the plant manager of defendant’s Mecosta County Ice Mountain bottling plant, testified that it takes about 50 gpm of water to run one production line and that each line is staffed by 16 employees. He further stated that, counting support staff, every 50 gpm represents about 20 employees.
O’Rourke testified that defendant has curtailed production at its Pennsylvania plant to protect the spring site and shipped water in from Maryland during the period of reduced withdrawals.
O’Rourke testified that defendant applied for permits and established monitoring wells at a spring water site in Osceola County.
The Restatement recognizes that certain water uses, such as boating and recreation, as well as the maintenance of riparian property value, may require the court to protect the integrity of an entire stream or lake. However, such protection is limited to the amount of water needed to preserve the plaintiffs use or the values attributable to the water. Restatement, § 850A, comment i, p 231.
At trial, Hyndman testified that there appears to he a 1500-gpm threshold level for the Dead Stream. Hyndman stated that the effect of defendant’s pumping is less when the Dead Stream’s flow is greater than 1500 gpm and is more significant when the flow drops below that level. He further testified that, when the Dead Stream’s flow drops below 1250 to 1300 gpm, there are significant mudflat exposures.
The Michigan environmental protection act (MEPA), MCL 324.1701 et seq., is part 17 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq.
ILSA is part 301 of the NREPA, MCL 324.30101 et seq.
The WPA is part 303 of the NREPA, MCL 324.30301 et seq.
On appeal, plaintiffs argue that defendant’s failure to raise the issue of standing in their answers to plaintiffs’ first amended complaint constitutes a waiver of this issue. However, both the Bollmans and defendant raised the issue of standing in their responsive pleadings. Therefore, plaintiffs’ waiver argument is without merit.
While the trial court did not directly address this issue, resolution of it is critical to plaintiffs’ MEPA claims. Furthermore, because of our Supreme Court’s decision in Cleveland Cliffs, which was released after the release of the trial court’s original opinion in this matter, there is doubt about the continuing validity of the standing conferred by MCL 324.1701(1). For these reasons, we elect to consider this issue rather than remand it to the trial court. See People v Smith, 420 Mich 1, 11 n 3; 360 NW2d 841 (1984) (electing to address the issue of standing first raised on appeal because resolution of the standing question was necessary to a proper determination of the case and because of the confusion concerning the proper state of the rule of law).
These features are all on the Bollmans’ private hunting reserve and, hence, are inaccessible to the general public.
We are cognizant that constitutional issues should not be addressed if the case may be decided on other grounds. People v Riley, 465 Mich 442, 447; 636 NW2d 514 (2001). However, the outcome of the MEPA analysis depends on whether the aggregate effect on all the affected wetlands of defendant’s pumping may be considered as opposed to the effect on one wetland. Therefore, we must address the constitutionality of the Legislature’s purported grant of expanded standing.
The GLPA is part 327 of the NREPA, MCL 324.32701 et seq.
We note that the trial court could have utilized ILSA and the WPA in crafting the applicable common-law standard of impairment, but it would still have needed to describe that standard with sufficient detail and make the necessary findings to enable the development of the “common law of environmental quality.” See Ray, supra at 307. In this case, the trial court did not craft an impairment standard utilizing ILSA and the WPA; rather, it stated that the violations of ILSA and the WPA alone sufficed to establish a prima facie violation of MEPA.
In Preserve the Dunes, supra at 516-517, our Supreme Court noted that the statutes under consideration prohibited the DEQ from issuing a permit if the applicant’s proposed conduct was likely to pollute, impair, or destroy the air, water, or other natural resources, but still determined that the permit statutes were not themselves designed to be pollution control standards. The Court explained that, “[a]s 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.” Id. at 519.
Because of our holding, we need not address whether defendant should have been required to obtain a permit under ILSA before beginning to pump water from Sanctuary Springs.
According to his affidavit, Alguire is a registered forester and has participated in lumbering activities in Maine.
Plaintiffs also erroneously argue, relying on Bott, supra at 57 n 1, that Bott established that “another way of demonstrating public trust or the public right of navigation on a lake or stream is to show the existence of lawful public access ...However, that footnote only clarifies that, if there is public access to a lake, the public has the same rights to use the water as the littoral owners. Id. This is not the same as saying that the public trust extends to the lake.
Plaintiffs cite Const 1963, art 4, § 52 (requiring the Legislature to provide for the protection of the air, water, and other natural resources), MEPA, ILSA, and the GLPA (stating that the waters of the state are a valuable natural resource held in trust by the state).
See also Bott, supra at 71 (holding that the “public-trust doctrine applies only to navigable waters and not to all waters of the state”) (emphasis in original).
Defendant does not contest on appeal the validity of any costs other than plaintiffs’ expert witness fees.
See MCL 324.1703(3).
Because of the complexity of the evidence, issues, and procedural posture of this case, we strongly urge that Judge Root, who ably presided over the lower court proceedings, he brought out of retirement to preside over this case on remand.
Reference
- Full Case Name
- Michigan Citizens for Water Conservation v. Nestlé Waters North America Inc.
- Cited By
- 27 cases
- Status
- Published