Preserve the Dunes, Inc v. Department of Environmental Quality

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 30, 2004

PRESERVE THE DUNES, INC.,

Plaintiff-Appellee,

v No. 122611

MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,

Defendant,

and

TECHNISAND, INC.,

Defendant-Appellant.

______________________________

PRESERVE THE DUNES, INC,

Plaintiff-Appellee,

v No. 122612

MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,

Defendant-Appellant,

and

TECHNISAND, INC,

Defendant.
_______________________________

1

BEFORE THE ENTIRE BENCH

CORRIGAN, C.J.

Defendant Michigan Department of Environmental Quality

(DEQ) and defendant TechniSand, Inc., appeal a Court of

Appeals decision holding that the DEQ improperly granted a

sand dune mining permit to TechniSand, contrary to the

Michigan environmental protection act (MEPA), MCL 324.1701

et seq.1 The only issue properly before us is whether MEPA

authorizes a collateral challenge to the DEQ’s decision to

issue a sand dune mining permit under the sand dune mining

act (SDMA), MCL 324.63701 et seq., in an action that

challenges flaws in the permitting process unrelated to

whether the conduct involved has polluted, impaired, or

destroyed, or will likely pollute, impair, or destroy

natural resources protected by MEPA. Because MEPA does not

authorize such a collateral attack, we reverse the decision

of the Court of Appeals and remand to that Court for

expedited review of the remaining issues of plaintiff

Preserve the Dunes (PTD).2

1
253 Mich App 263; 655 NW2d 263 (2002).
2
PTD is an ad hoc organization of local citizens
formed for the purpose of instituting this lawsuit.

2

 I. Factual Background and Procedural Posture

In 1991, defendant TechniSand purchased a sand mining

operation with a mining permit that was set to expire in

1993. That permit did not allow mining in adjacent

property, the Nadeau Site Expansion Area (NSE), which had

been classified in 1989 as a “critical dune” area under MCL

324.35301 et seq.

Mining in critical dune areas was prohibited after

July 5, 1989, subject to certain narrowly defined

exceptions to MCL 324.63702(1):

Notwithstanding any other provision of this
part, the department shall not issue a sand dune
mining permit within a critical dune area as
defined in part 353 [MCL 324.35301 et seq.] after
July 5, 1989, except under either of the
following circumstances:

(a) The operator seeks to renew or amend a
sand dune mining permit that was issued
prior to July 5, 1989, subject to the criteria
and standards applicable to a renewal or
amendatory application.

(b) The operator holds a sand dune mining
permit issued pursuant to section 63704 and is
seeking to amend the mining permit to include
land that is adjacent to property the operator
is permitted to mine, and prior to July 5,
1989, the operator owned the land or owned
rights to mine dune sand in the land for which
the operator seeks an amended permit.

In late 1994, TechniSand applied for an amended permit

under MCL 324.63702(1)(b). In April 1995, the Department of

3

Natural Resources (DNR)3 denied the application on the

ground that TechniSand was ineligible for an amended permit

under subsection 1(b) because it had purchased the

operation after July 5, 1989.

In May 1996, TechniSand amended and resubmitted its

application and supporting documentation to the DEQ. After

a public hearing, the DEQ approved TechniSand’s application

on November 25, 1996. TechniSand began mining the NSE area

thereafter.

Nineteen months later, in July 1998, PTD sued

defendants, seeking injunctive and declaratory relief under

MEPA. MEPA provides a cause of action for declaratory and

other equitable relief for conduct that is likely to result

in the pollution, impairment, or destruction of Michigan’s

natural resources. MCL 324.1701 et seq.

PTD alleged that the DEQ violated MEPA when it

approved TechniSand’s amended mining permit. It further

alleged that TechniSand’s mining conduct violated MEPA.

Defendants sought summary disposition because PTD’s action

was time-barred. The circuit court denied defendants’

3
During this time, the DNR was the administrative
agency that regulated sand mining. In 1995, this
responsibility was transferred from the DNR to the DEQ by
Executive Reorganization Order No. 1995-16 (codified at MCL
324.99903).

4

motion.

PTD sought summary disposition after the original

circuit judge had retired. His successor ruled that PTD’s

claim under the SDMA was indeed time-barred. It also held

that plaintiff had established a prima facie MEPA claim on

the basis of TechniSand’s mining conduct.

After a seven-day bench trial on the MEPA claim alone,

the court ruled that defendants had successfully rebutted

PTD’s prima facie case and entered a judgment of no cause

of action. The court specifically found that “any adverse

impact on the natural resources which will result from the

sand mining will not rise to the level of impairment or

destruction of natural resources within the meaning of

MEPA.”

The Court of Appeals reversed and remanded for entry

of an order granting summary disposition for PTD. The Court

of Appeals concluded that (1) the DEQ’s decision to grant

a permit could be challenged at any time under MEPA and (2)

TechniSand did not qualify for a permit under § 63702. The

DEQ and TechniSand filed applications for leave to appeal

in this Court, and we granted leave.4

4
468 Mich 869 (2003).

5

 II. Standard of Review

The issue presented involves a question of statutory

interpretation. We review de novo questions of statutory

interpretation. Oade v Jackson Nat’l Life Ins Co, 465 Mich

244, 250; 632 NW2d 126 (2001).

III

A. Overview of MEPA

MEPA is contained in part 17, MCL 324.1701 et seq., of

the Natural Resources and Environmental Protection Act, MCL

324.101 et seq. To prevail on a MEPA claim, the plaintiff

must make a “prima facie showing that the conduct of the

defendant has polluted, impaired, or destroyed or is likely

to pollute, impair, or destroy the air, water, or other

natural resources, or the public trust in these resources.

. . .” MCL 324.1703(1). The defendant may rebut the

plaintiff’s showing with contrary evidence or raise an

affirmative defense that (1) there is no feasible and

prudent alternative to the conduct and (2) the “conduct is

consistent with the promotion of the public health, safety,

and welfare in light of” the state’s concern with

protecting Michigan’s natural resources. Id. The focus of

MEPA is on defendant’s conduct.

MEPA provides for immediate judicial review of

allegedly harmful conduct. The statute does not require

6

exhaustion of administrative remedies before a plaintiff

files suit in circuit court. MCL 324.1701(2). A court may,

however, “direct the parties to seek relief” in available

administrative proceedings. MCL 324.1704(2).

B. Overview of SDMA Permit Process

The DEQ may authorize mining in critical sand dune

areas under two specific conditions set forth in MCL

324.63702(1)(a) and (b):

Notwithstanding any other provision of this
part, the department shall not issue a sand dune
mining permit within a critical dune area as
defined in part 353 [MCL 324.35301 et seq.] after
July 5, 1989, except under either of the
following circumstances:

(a) The operator seeks to renew or amend a
sand dune mining permit that was issued prior to
July 5, 1989, subject to the criteria and
standards applicable to a renewal or amendatory
application.

(b) The operator holds a sand dune mining
permit issued pursuant to section 63704 and is
seeking to amend the mining permit to include
land that is adjacent to property the operator is
permitted to mine, and prior to July 5, 1989, the
operator owned the land or owned rights to mine
dune sand in the land for which the operator
seeks an amended permit.

If an operator does not fall within one of these

limited exceptions to the SDMA ban on mining in critical

dunes areas, the inquiry ends. Nowhere in this initial

inquiry is the DEQ required to evaluate the permit seeker’s

proposed conduct. Indeed, such an inquiry would be

7

pointless unless the DEQ first determined that the

applicant was eligible for a permit on the basis of the

applicant’s status as either a past owner or operator.

Once the DEQ determines that an applicant is eligible

to apply for a sand dune mining permit in a critical dune

area under § 63702(1), the applicant must fulfill the

requirements of § 63704. Specifically, applicants are

required to submit the following to the DEQ:

(a) A permit application on a form provided by
the department.

(b) An environmental impact statement of the
proposed mining activity as prescribed by section
63705.

(c) A progressive cell-unit mining and
reclamation plan for the proposed mining activity as
prescribed in section 63706.
(d) A 15-year mining plan as prescribed by
section 63707.

After the DEQ determines that the applicant has

satisfied §§ 63702(1) and 63704(2), it must next determine

whether the applicant meets the requirement of § 63709.

Section 63709 prohibits the DEQ from approving an amended

permit if the applicant’s proposed conduct “is likely to

pollute, impair, or destroy the air, water, or other

natural resources or the public trust in those resources,

as provided by part 17.” Thus, MEPA, in part 17, MCL

324.1701 et seq., expressly controls the DEQ’s § 63709

8

determinations.

C. MCL 324.1701 and Nemeth v Abonmarche Development

In addition to conferring power upon the attorney

general, MCL 324.1701(1) authorizes a private cause of

action under MEPA:

The attorney general or any person may
maintain an action in the circuit court having
jurisdiction where the alleged violation occurred
or is likely to occur for declaratory and
equitable relief against any person for the
protection of the air, water, and other natural
resources and the public trust in these resources
from pollution, impairment, or destruction.

MCL 324.1701(2) provides:

In granting relief provided by subsection
(1), if there is a standard for pollution or for
an antipollution device or procedure, fixed by
rule or otherwise, by the state or an
instrumentality, agency, or political subdivision
of the state, the court may:

***

(b) If a court finds a standard to be
deficient, direct the adoption of a standard
approved and specified by the court.

Thus, in Nemeth v Abonmarche Development, Inc, 457

Mich 16; 576 NW2d 641 (1998), we held that a violation of

the soil erosion and sedimentation control act (SESCA), MCL

324.9101 et seq., may establish a plaintiff’s prima facie

showing under MEPA because the SESCA contains a pollution

control standard.

9

 MCL 324.1702 is not applicable in this case because,

unlike the SESCA, the SDMA does not contain an antipollution

standard. Consequently, it is not within the exception

created by MCL 324.1701(2). Nemeth, therefore, does not

support the argument that a violation of the SDMA may serve

as a prima facie violation of MEPA.

The Court of Appeals decision to the contrary was

based on a misinterpretation of our holding in Nemeth:

[A]lthough subsection 1701(2) speaks in
terms of whether a “standard for pollution or
antipollution device or procedure” exists, but
does not specifically include whether a standard
for impairment or destruction of a natural
resources exists, our Supreme Court in Nemeth did
not seem to find that to be an important point in
that case in which soil erosion, rather than what
is commonly thought of as pollution, was at
issue. [253 Mich App 263, 286 n 2; 655 NW2d 263
(2002).]

The Court of Appeals conclusion is incorrect. In

Nemeth, we expressly justified our holding in part because

erosion is a form of pollution. Nemeth, supra at 27

(“Sedimentation and erosion is a [sic] well-recognized

source of water pollution.”).

10

 Moreover, in Nemeth, as in all MEPA actions, the focus

was on defendant’s actual conduct.5 Specifically, this

5
Although we held in Nemeth that the SESCA creates a
pollution control standard applicable to MEPA claims, we
also specifically stated:

We emphasize that this is not the end of the
inquiry. The trial court held that plaintiffs'
showing of defendants' SESCA violations
established a prima facie claim under the MEPA.
Then, defendants had the opportunity to rebut
that prima facie showing either by submitting
evidence to the contrary, i.e., that plaintiffs
have shown neither pollution, impairment, nor
destruction, nor the likelihood thereof, in spite
of proof of the SESCA violations, or by showing
that there is no feasible and prudent alternative
to defendants' conduct. Subsection 1703(1).
[Nemeth at 36 n 10 (emphasis added).]

Thus, it is clear that a defendant’s opportunity to
rebut a prima facie MEPA violation remains the same whether
that violation has been established independently or by
reference to another statute’s pollution control standard,
and that the determinative consideration is whether
defendant’s conduct will, in fact, pollute, impair, or
destroy a natural resource. In the instant case, the Court
of Appeals erroneously concluded that § 63702 of the SDMA
creates a pollution control standard and that defendant
violated it. Having so concluded, the Court of Appeals
effectively concluded that defendant’s violation of § 63702
amounted to a MEPA violation per se. It failed to consider
at all whether TechniSand had submitted evidence sufficient
to rebut the alleged prima facie MEPA violations. The
trial court, however, did consider this evidence after
finding that PTD presented a prima facie MEPA violation
independent of the SDMA. The trial court held that
TechniSand had rebutted the prima facie MEPA violation.
The Court of Appeals failure to consider whether TechniSand
could rebut the (erroneously found) prima facie MEPA
violation evidences the extent to which it improperly
Footnotes continued on following page.

11

Court reiterated in Nemeth the findings of fact required of

a trial court as announced in Ray v Mason Co Drain Comm’r,

393 Mich 294; 224 NW2d 883 (1975). In Ray, we stated:

The trial judge must find the facts on which
the plaintiff claims to have made a prima facie
case under [§ 1703(1)], namely that the
defendant's conduct "has, or is likely to
pollute, impair or destroy the air, water or
other natural resources.” . . . Obviously the
evidence necessary to constitute a prima facie
showing will vary with the nature of the alleged
environmental degradation involved. [Ray at 309
(some emphasis supplied).]

That the Court of Appeals failed to recognize that

MEPA is concerned only with harmful conduct is readily

apparent from its characterization of the circuit court’s

focus on TechniSand’s mining conduct as error:

Judge Schofield simply addressed whether
TechniSand’s proposed mining was likely to “pollute,
impair, or destroy” the natural resource in this case—
the critical dune area. [253 Mich App 286.]

Plaintiff and the dissent urge us to hold that

although TechniSand’s mining operation may or may not be

likely to pollute, impair, or destroy the air, water, or

other natural resources, its predecessor’s allegedly

deficient past relationship to the mining property

negatively affects the environment. We decline their

invitation to accept such fuzzy logic. Where a defendant’s

failed to consider whether TechniSand’s conduct would
actually “pollute, impair, or destroy” a natural resource.

12

conduct itself does not offend MEPA, no MEPA violation

exists.

D. Review of the DEQ’s MCL 624.63702(1) Decisions6

We reject the dissent’s gloomy prediction that this

orderly understanding of MEPA “insulates [SDMA] permit

eligibility determinations from judicial review.” Post at

22.

As previously discussed, DEQ determinations of permit

eligibility under §§ 63702(1) and 63704(2) are unrelated to

whether the applicant’s proposed activities on the property

violate MEPA. Therefore, MEPA provides no private cause of

action in circuit court for plaintiffs to challenge the

DEQ’s determinations of permit eligibility made under §§

63702(1) and 63704(2).

An improper administrative decision, standing alone,

does not harm the environment. Only wrongful conduct

offends MEPA.

In general, judicial review of an administrative

decision is available under the following statutory

schemes: (1) the review process prescribed in the statute

applicable to the particular agency, (2) an appeal to

6
PTD does not challenge TechniSand’s satisfaction of
the requirements under § 63704(2).

13

circuit court pursuant to the Revised Judicature Act (RJA),

MCL 600.631, and Michigan Court Rules 7.104(A), 7.101, and

7.103, or (3) the review provided in the Administrative

Procedures Act (APA), MCL 24.201 et seq. Palo Group Foster

Care, Inc v Dep't of Social Services, 228 Mich App 140,

145; 577 NW2d 200 (1998).

The SDMA does not expressly establish procedures for

disputing a DEQ determination in a contested case unrelated

to MEPA. We need not decide here whether PTD’s challenge

to the DEQ’s permit decision is governed by the RJA or the

APA because the challenge is time-barred under either

statute. PTD brought this action nineteen months after the

DEQ’s decision to grant TechniSand’s application for an

amended permit, which far exceeds the sixty-day period

allowed by the APA, MCL 24.304(1), and the twenty-one-day

period provided by MCR 7.101(B)(1), which governs appeals

under MCL 600.631 of the RJA pursuant to MCR 7.104(A). The

DEQ and TechniSand properly interposed this defense in

their initial pleadings. Thus, PTD’s claim was time-

barred.

E. Participation and Intervention
During The Permit Process Under the SDMA or MEPA

Parties who wish to intervene during the permit

process have two options. They may intervene either under

14

the procedures governed by the SDMA or those governed by

MEPA.

MCL 324.63708(5) of the SDMA establishes a procedure

for notifying interested parties of permit applications:

The department shall provide a list of all
pending sand dune mining applications upon a
request from a person. The list shall give the
name and address of each applicant, the legal
description of the lands included in the project,
and a summary statement of the purpose of the
application.

Thus, the SDMA provides a mechanism whereby interested

parties may learn of and participate in agency decisions

regarding approval of critical dune area mining permits.

MEPA provides another procedure for intervention in

permit proceedings. MCL 324.1705(1). This statute requires

a potential intervenor to file a pleading asserting that

the proceeding or action for judicial review involves

conduct that has violated, or is likely to violate, MEPA.

Thus, while PTD could have intervened in TechniSand’s

permit process under MEPA, its only basis for intervention

would have been TechniSand’s proposed conduct. MEPA does

not allow such intervention on the basis of anything other

than alleged wrongful conduct.

F. Review of DEQ’s MCL 324.63709 Determinations

As already discussed, a challenge under MEPA may be

filed in circuit court before or during the time that the

15

alleged MEPA violation occurs, without any requirement that

a litigant exhaust administrative remedies. Thus, whether

TechniSand was ineligible for the permit under § 63709 on

the basis of alleged harmful conduct was a question that

was properly before the circuit court. The circuit court

ruled against PTD.

The Court of Appeals has not reviewed the circuit

court’s decision that TechniSand’s conduct did not violate

the MEPA standard incorporated into the SDMA under § 63709.

Because the Court of Appeals never reached PTD’s claim that

TechniSand’s mining operation violates MEPA, that issue is

not ripe for this Court’s review. We remand the case to

the Court of Appeals to review the circuit court’s findings

regarding TechniSand’s sand mining activity. The Court of

Appeals is directed to expedite its consideration of this

case.

F. Response to the Dissent

The dissent initially contends that it is undisputed

that TechniSand is “ineligible for a permit.” Post at 2.

We disagree. The time for challenging TechniSand’s

eligibility for a permit is long past. TechniSand is

lawfully entitled to mine sand dunes in Michigan according

to the DEQ permit. Whether the DEQ’s permitting decision

was “unprincipled” or an “illegal about-face” is not a

16

determination for this Court to make. Post at 2. That

decision is time-barred.

The dissent further asserts that the DEQ’s permit

decision “will directly enable destruction of critical

dunes.” Post at 3-4 (emphasis supplied). The dissent

asserts that critical dunes will be destroyed because the

Court of Appeals stated that TechniSand had acknowledged as

much in an environmental impact statement. The entire

environmental impact statement is not in the record.7

Moreover, the trial court expressly found to the contrary

when it ruled on the MEPA claim. It specifically held that

TechniSand’s mining would not destroy a critical dune. The

Court of Appeals never addressed this finding.

The dissent’s conclusion that the permitting process

is subject to collateral attack is not defensible on the

basis of MEPA’s language, structure, or purpose. Countless

entities apply for and receive permits for conduct that

affects Michigan’s natural resources. Under the dissent’s

7
The excerpt in the record indicates that TechniSand
acknowledged that the project would “greatly alter”
approximately 61% of the NSE. In any case, the trial court
expressly found more credible TechniSand’s expert witnesses
and ultimately held “the adverse impact on the environment
caused by the mining as permitted will not rise to the
level of impairment or destruction within the meaning of
MEPA.”

17

regime, the permitting decision can never be final. Were

we to adopt the dissent’s extreme understanding of MEPA,

every permit that has ever been issued would be subject to

challenge; any undotted “i” or uncrossed “t” could

potentially invalidate an existing permit. We do not

believe the Legislature intended MEPA to destabilize the

state’s permitting system in this manner.

Imagine the world that the dissent’s reasoning would

create. The present energy crisis offers a good example.

For many years, our country has sought to decrease our

reliance on foreign sources of oil. Suppose an oil company

decided to invest in oil exploration in Michigan in

reliance on a DEQ-issued permit. Under the dissent’s view,

MEPA would authorize a challenge at any time to flaws in

the permitting process. Moreover, under the dissent’s

reasoning, a court must accept as true the bare assertion

that a company’s conduct will destroy natural resources.

It can never rely on a permit to do business. What sane

investor would take such a risk? As gas prices soar, few

people in Michigan would thank this Court for “protecting”

the environment in this radical fashion.

The dissent’s regime would render the permitting

process a useless exercise. It would cripple economic

expansion in Michigan and probably lead to disinvestment.

18

No one would invest money to obtain a permit that is

subject to endless collateral attacks.

MEPA nowhere strips the permitting process of

finality. It is the dissent that makes a mockery of

legislative intent by failing to anchor its exaggerated

claims in the statute’s actual language. See post at 3.

MEPA does not impose the radical requirement that courts

indefinitely police administrative agencies’ permit

procedures and decisions. As noted in Oscoda Chapter of

PBB Action Comm, Inc v Dep’t of Natural Resources, 403 Mich

215, 232-233; 248 NW2d 240 (opinion by Levin, J.) (1978):

A court is not empowered to prevent any
conduct . . . which does not rise to the level of
environmental risk proscribed by [MEPA]. The
standard, ‘has or is likely to pollute, impair or
destroy,’ is a limitation as well as a grant of
power.

Moreover, the Court of Appeals never reached the issue

of whether TechniSand’s actual conduct is likely to harm

natural resources. As already noted, the trial court

specifically held that TechniSand’s conduct did not violate

MEPA. Given this procedural posture, we are puzzled by the

dissent’s statement that defendant’s mining “will” destroy

critical dunes.

After taking extensive testimony on the issue, the

trial court ruled that any “adverse impact on the

19

environment caused by the mining as permitted will not rise

to the level of impairment or destruction within the

meaning of MEPA.” The Court of Appeals did not explicitly

reject the trial court’s findings. Instead, it erroneously

concluded that a permit that affects the environment in any

way may be challenged at any time under MEPA. For the

reasons articulated above, the Court of Appeals erred in

interpreting MEPA in this manner.

CONCLUSION

MEPA affords no basis for judicial review of agency

decisions under MCL 324.63702(1) because that inquiry is

outside the purview of MEPA. The focus of MEPA is to

protect our state’s natural resources from harmful conduct.

It offers no basis for invalidating an issued permit for

reasons unrelated to the permit holder’s conduct. To hold

otherwise would broaden by judicial fiat the scope of MEPA

and create a cause of action that has no basis in MEPA’s

language or structure.

The Court of Appeals erred by treating PTD’s challenge

to TechniSand’s eligibility for a permit under MCL

324.63702(1) as a MEPA claim. Because PTD brought its

claim more than nineteen months after the DEQ issued the

permit, PTD’s claim is time-barred. We reverse the

decision of the Court of Appeals on that issue.

20

 We remand the case to the Court of Appeals to review

the circuit court’s findings that TechniSand’s mining

conduct does not violate MEPA, and direct the Court of

Appeals to expedite its review.

Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

21

 S T A T E O F M I C H I G A N

SUPREME COURT

PRESERVE THE DUNES, INC,

Plaintiff-Appellee,

v No. 122611

MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,

Defendant,

and

TECHNISAND, INC,

Defendant-Appellant.
_______________________________

PRESERVE THE DUNES, INC,

Plaintiff-Appellee,

v No. 122612

MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,

Defendant-Appellant,

and

TECHNISAND, INC,

Defendant.
_______________________________

KELLY, J. (dissenting).
 In 1995, the Michigan Department of Natural Resources

(DNR) denied defendant TechniSand permission to mine

critical dunes because it was ineligible for a permit under

the sand dune mining act1 (SDMA), MCL 324.63701 et seq. One

year later, following Governor Engler’s reorganization of

the DNR, the newly created Department of Environmental

Quality (DEQ) invited TechniSand to apply again, citing

“changes in state government.” TechniSand reapplied and

the DEQ granted a permit despite the fact, now undisputed,

that TechniSand remained ineligible to mine critical dunes.

As a result, critical dunes that would otherwise remain

untouched will be impaired and perhaps destroyed.

Through the decision in this case, a court majority of

four sanctions the DEQ’s unexplained and illegal about-face

on TechniSand’s critical dune mining permit. In the

process, it strikes a devastating blow to Michigan’s

environmental law.2 This majority perpetuates the DEQ’s

1
The Sand Dune Mining Act is codified as part 637 of
the Natural Resources and Environmental Protection Act, MCL
324.101 et seq.
2
The majority’s decision to significantly narrow the
scope of the applicability of the Michigan environmental
protection act (MEPA), MCL 324.1701 et seq., in this case
is compounded by its recent decision in Nat'l Wildlife
Federation & Upper Peninsula Environmental Council v
Cleveland Cliffs Iron Co and Michigan Dep't of
Footnotes continued on following page.

2

unprincipled decision to permit illegal mining of critical

dunes by insulating it from the scrutiny of the Michigan

environmental protection act (MEPA). MCL 324.1701 et seq.

Its holding that the DEQ’s decision to grant the permit to

mine critical dunes is “unrelated to” the destruction of

those critical dunes defies reality. It mocks our

Legislature’s intent to prevent environmental harm. In

addition, it is contrary to this Court’s earlier MEPA

decisions.3

Critical sand dunes, like those at issue in this case,

are specially protected natural resources. The mining act

protects these irreplaceable resources by strictly limiting

who is eligible to mine them. MEPA works in tandem with

the mining act to, in its own words, supplement “existing

administrative and regulatory procedures provided by law.”

MCL 324.1706. Issuance of the permit will directly enable

Environmental Quality, 471 Mich ___ ; ___ NW2d ___ (2004).
There, the same majority ignores thirty years of precedent
and applies judge-created standing tests to MEPA
plaintiffs. It makes this ruling despite the fact that the
statute explicitly grants standing to “any person” to
maintain an action to prevent pollution, impairment, or
destruction of our natural resources. MCL 324.1701(1).
3
See e.g., Eyde v Michigan, 393 Mich 453, 454; 225
NW2d 1 (1975), Ray v Mason Co Drain Comm’r 393 Mich 294,
304-305; 224 NW2d 883 (1975), West Michigan Environmental
Action Council v Natural Resources Comm, 405 Mich 741, 751;
275 NW2d 538 (1979) (WMEAC), and Nemeth v Abonmarche Dev,
Inc, 457 Mich 16; 576 NW2d 641 (1998).

3

destruction of critical dunes that would otherwise remain

untouched. Hence, it is inescapable that the DEQ’s

decision to issue the permit may be challenged under the

environmental protection act.

Moreover, the environmental protection act does not

impose a statutory period of limitations on legal actions

that assert that a party’s conduct will cause environmental

pollution, impairment, or destruction. Therefore, I would

hold that plaintiff’s challenge is not limited by the

statutory period of either the Administrative Procedures

Act (APA) or the Revised Judicature Act (RJA). MCL 24.201

et seq., MCL 600.101 et seq.

I dissent because the majority’s decision subverts the

purposes of the sand dunes mining act and the environmental

protection act by incorrectly insulating the DEQ’s permit

decision from scrutiny under the environmental protection

act. Defendant TechniSand is not eligible for a permit to

mine critical dunes sand under the sand dunes mining act.

Accordingly, I would affirm the decision of the Court of

Appeals.

4

 The Majority's Response to the Dissent

The majority’s “Response to the Dissent”4 is an abrupt

departure from its precedent of declining to amend

legislative policy decisions with which it disagrees.5 Its

discussion of the wisdom of the Legislature's decision to

bar sand dune mining by anyone who does not meet limited

eligibility criteria is unsuited for a judicial opinion.

Moreover, the majority’s comparison of the eligibility

problem in the permit to a clerical error and its

suggestion that my position would allow endless challenges

for such trifles are gross exaggerations. Ante at 17-18.

Granting a permit to mine critical dunes to an ineligible

operator is a substantive fault. It is a violation of the

law that allows conduct likely to pollute, impair, or

destroy a natural resource specially protected by the

Legislature. Economic development in this state has not

ceased in the past thirty years. It will not now grind to

a halt under the oppressive weight of permit challenges if

4
Ante at 16-20.
5
This Court has scrupulously declined to consider the
wisdom of the Legislature’s policy decision. See e.g.
Oakland Co Rd Commr’s v Michigan Prop & Cas Guaranty Ass'n,
456 Mich 590, 612-613; 575 NW2d 751 (1998).

5

this Court reaffirms its prior holdings that MEPA allows

challenges to environmentally destructive permit decisions.

Facts and Proceedings Below

Defendant TechniSand purchased real property in 1991

that included both critical and noncritical dune areas.

Along with its purchase, it obtained a permit to mine sand

in noncritical dune areas on one portion of the property.

In 1994, TechniSand applied for an amendment of this permit

to expand sand dune mining to critical dune areas on an

adjacent portion of the property.

The Michigan Department of Natural Resources, the

agency charged with reviewing SDMA permit applications at

the time, denied the application on the ground that

TechniSand was ineligible for an amended permit. The

original permit was to mine in noncritical dune areas and

did not include the property’s critical dune areas. Also,

TechniSand had purchased the land and mining operation

after the deadline to apply for an unassociated permit to

mine the critical dune areas. MCL 324.63702(1)(b).

In 1995, Governor John Engler created a new agency,

the Michigan Department of Environmental Quality (DEQ).

Executive Reorganization Order No. 1995-16 (codified at MCL

324.99903). The DEQ was given responsibility for

administering the SDMA and other environmental permitting

6

programs, and the Governor appointed its director. The DEQ

then wrote to TechniSand indicating that “changes in state

government” and “additional information” from TechniSand

would allow the DEQ to review the permit application.6

TechniSand resubmitted the environmental impact

statement and reclamation plan that it had submitted with

its previous application, without providing additional

information demonstrating how it was eligible for an

amended permit. The DEQ issued the permit later that year.

It did not explain how TechniSand met the eligibility

criteria in the SDMA. Also, it does not now dispute that

TechniSand is ineligible for a permit.

Plaintiff Preserve the Dunes was formed in 1996. In

1998, it sued TechniSand and the DEQ for injunctive relief

to stop TechniSand’s mine expansion. Plaintiff alleged

that TechniSand was ineligible for an SDMA permit and that

its mine expansion violated MEPA.

The trial court ruled that plaintiff’s challenge to

the permitting decision was time-barred under the

6
Letter dated April 1, 1996 from Douglas Daniels and
Kimberly Rice of the DEQ. The letter makes reference to an
April 20, 1995, letter by which Roger Whitener of the DNR
informed TechniSand that, pursuant to an opinion of the
state attorney general, TechniSand was ineligible to mine
critical dunes. The April 1, 1996, letter did not address
TechniSand’s ineligibility to mine critical dunes.

7

Administrative Procedures Act and that the environmental

impact of the mining was insufficient to implicate MEPA.

The Court of Appeals reversed the ruling. 253 Mich App

263; 655 NW2d 263 (2002). It held that the DEQ’s decision

to grant TechniSand’s amended permit could be challenged

under MEPA and that TechniSand did not qualify for a permit

under § 63702 of the SDMA. The DEQ’s decision to amend

TechniSand’s permit, it concluded, violated MEPA.

The Court of Appeals remanded the case to the trial

court for entry of summary disposition for plaintiff.

Because it had found TechniSand ineligible for a permit to

mine the critical dune area, it did not review the trial

court’s finding that the mining itself violated MEPA. This

Court granted the applications for leave to appeal filed by

the DEQ and TechniSand. 468 Mich 869 (2003).

The Sand Dune Mining Act Protects Michigan’s
Critical Dunes from Destruction

It is without contest that the Legislature enacted the

sand dune mining act to stringently protect Michigan's sand

dune areas from further destruction. They are one of the

state's prized natural resources. The Legislature included

in the act special provisions to preserve dune areas it

labeled "critical."

8

 It expressly indicated:

The critical dune areas of this state are a
unique, irreplaceable, and fragile resource that
provide significant recreational, economic,
scientific, geological, scenic, botanical,
educational, agricultural, and ecological
benefits to the people of this state and the
people from other states and countries who visit
this resource. [MCL 324.35302(a).]

The Legislature enacted the SDMA out of concern that

mining the dunes consumes them and harms the environment.

The act is an expression of the state’s “paramount”

interest in protecting the dunes. See MCL 324.1701. It

defines “Sand dune mining” as the “removal of sand from

sand dune areas for commercial or industrial purposes.”

MCL 324.63701(l).7 It requires all persons seeking to mine

sand dunes to obtain a sand dune mining permit. MCL

324.63704. Regarding critical dunes, the act states that

“the removal of any volume of sand that is not sand dune

mining within a critical dune area as defined in part 353

is subject to the critical dune protection provisions of

part 353.” MCL 324.63701(l).

7
The statute exempts from this definition the removal
of “volumes of less than 3,000 tons” of sand if the removal
is a “1-time occurrence and the reason the sand is removed
is not for the direct use for an industrial or commercial
purpose.”

9

 The SDMA’s flat prohibition against mining any sand in

designated critical sand dune areas is subject only to a

narrow exception. That is, authorized mining entities that

existed when the SDMA was enacted may continue operation

(1) on land in which they had a mining interest before July

5, 1989 or (2) on land adjacent to property in which they

had a mining interest before that date. MCL 324.63702(1).8

These “grandfathering” exceptions reflect the

Legislature’s attempt to balance mining interests that

predated the critical dune designation of July 5, 1989,

with the preservation of the remaining and newly designated

8
MCL 324.62702(1) provides in full:

Notwithstanding any other provision of this
part, the department shall not issue a sand dune
mining permit within a critical dune area as
defined in part 353 after July 5, 1989, except
under either of the following circumstances:
(a) The operator seeks to renew or amend a
sand dune mining permit that was issued prior to
July 5, 1989, subject to the criteria and
standards applicable to a renewal or amendatory
application.
(b) The operator holds a sand dune mining
permit issued pursuant to section 63704 and is
seeking to amend the mining permit to include
land that is adjacent to property the operator is
permitted to mine, and prior to July 5, 1989 the
operator owned the land or owned the rights to
mine dune sand in the land for which the operator
seeks the amended permit.

10

critical dunes. New entities would be unable to begin

operation. Existing entities would have limited

opportunities to mine additional areas. By limiting

critical dune mining to those entities with a preexisting

interest, existing entities would be allowed to continue

operating while ensuring that mining would not last

indefinitely.

The Legislature mandated that these narrow exceptions

for sand dune mining would be implemented through

regulatory permits. MCL 324.63704. The act created a

permitting procedure to ensure that future mining would be

only by parties with a pre-existing legal interest, and in

a manner protective of critical dune areas. It cannot

reasonably be suggested that the eligibility criteria that

completely prohibit all but an expressly defined few

operators from mining critical dunes are not a measure of

environmental protection.

Only if eligibility is verified do additional

environmental protections come into play. Permit

applications by eligible entities are reviewed on a case-

by-case basis to ensure that the proposed mining is

environmentally acceptable. The applicant must submit an

environmental impact statement describing the anticipated

environmental damage that will occur from the mining

11

operation. MCL 324.63704(2)(b). The applicant must explain

why alternative mining locations were not chosen. MCL

324.63705(h). It must include a reclamation plan for the

area to be mined. MCL 324.63704(2)(c), 324.63706.

In reviewing the application, the DEQ must ensure that

the proposed mining is unlikely to pollute, impair, or

destroy natural resources or the public trust in those

resources. MCL 324.63709. Any permit issued must require

that the provisions of the applicant’s progressive cell-

unit mining and reclamation plan are met. MCL

324.63706(3). If threatened or endangered species are

present, the plan must include provisions either to protect

them or to mitigate the effect of mining on them. MCL

324.63706(3)(g).

Plaintiffs May Challenge the Permit Eligibility
Determination Under the Michigan
Environmental Protection Act

The environmental protection act provides that

. . . any person may maintain an action in the
circuit court . . . where the alleged violation
occurred or is likely to occur for declaratory
and equitable relief against any person for the
protection of the air, water, and other natural
resources and the public trust in these resources
from pollution, impairment, or destruction. [MCL
324.1701(1).]

Under this act, a plaintiff makes a prima facie case

by showing “that the conduct of defendant is likely to

12

. . . destroy the . . . natural resources or the public

trust in these resources.” MCL 324.1703(1).9 The

Legislature expressly provided that MEPA supplements

existing regulatory procedures that were provided by law.

MCL 324.1706.

The SDMA’s eligibility restrictions protect critical

dunes from mining by ineligible operators whose conduct is

likely to impair or destroy critical dunes that would

otherwise remain untouched. Hence, the environmental

protection act is applicable to decisions regarding an SDMA

permit applicant’s eligibility. The SDMA specifically

incorporates the Legislature’s recognition that critical

dunes are “irreplaceable” natural resources. MCL

324.35302(a). It provides that “the removal of any volume

of sand . . . within a critical dune area . . . is subject

to the critical dune protection provisions of part 353.”

MCL 324.63701(l). Its provisions strictly limiting

eligibility to mine critical dunes are intended to help

protect critical dunes from pollution, impairment, or

destruction.

9
The majority's reference to MCL 324.1702(2) is
misplaced. Ante at 10. Plaintiffs are not challenging the
DEQ’s imposition on Technisand of the SDMA’s pollution
control standards. They do not challenge the manner in
which permissible activity is undertaken. They challenge
whether Technisand's conduct is permissible at all.

13

 Thus, the majority’s suggestion that permit

eligibility is unrelated to whether the conduct permitted

will harm the environment is untenable. Issuance of a

permit to an ineligible operator to engage in any mining of

critical dunes will allow “conduct . . . likely to

pollute, impair, or destroy . . . natural resources or the

public trust in these resources.” MCL 324.1703(1); see

also West Michigan Environmental Action Council v Natural

Resources Comm, 405 Mich 741, 751; 275 NW2d 538 (1979)

(WMEAC).

MEPA is intended to prevent conduct that is likely to

harm the environment as well as to stop conduct that is

presently harming it. In WMEAC, this Court ordered that a

permanent injunction be entered prohibiting the drilling of

oil and gas wells pursuant to a DNR permit. The “issuance

of permits was properly before the circuit court as conduct

alleged to be likely to pollute, impair, or destroy”

natural resources under MEPA. WMEAC at 751. The drilling

would cause “apparently serious and lasting, though

unquantifiable, damage” to elk herd population. WMEAC at

760. This Court concluded that the previous MEPA, MCL

691.1203(1), is violated whenever the effects of permit

issuance harm the environment to the requisite degree.

WMEAC at 751, 760.

14

 Unlike permit eligibility for fossil fuel drilling and

other activities that may pollute the environment if done

improperly,10 SDMA permit eligibility is severely

restricted. The applicant must demonstrate a preexisting

mining interest, and no mining may occur until this

requirement has been satisfied. It reflects the

Legislature’s premise that the removal of even one bucket

of sand from a critical dune by an ineligible operator will

inordinately impair the state's critical dune areas. An

action that enables such conduct may be challenged as

destruction or impairment under MEPA.

This Court observed in Nemeth11 that a violation of a

permitting procedure can support a prima facie claim under

MEPA. A “plaintiff’s prima facie case is ‘not restricted

to actual environmental degradation but also encompasses

probable damage to the environment as well.’” Nemeth,

supra at 25, quoting Ray v Mason Co Drain Comm’r, 393 Mich

294, 309; 224 NW2d 883 (1975). In the soil erosion and

10
See also MCL 324.5505 and 324.3106, requiring
permits for activities that may pollute the air and water
without imposing stringent eligibility criteria.
11
See n 3.

15

sedimentation control act,12 the Legislature created a

pollution control standard that this Court held could be

enforced through MEPA. Nemeth, supra at 35.

The Legislature chose to make the SDMA more protective

of the environment than the soil erosion and sedimentation

control act. As already explained,13 the Legislature

determined that any mining of critical dunes by ineligible

entities is an unacceptable destruction of this natural

resource. Hence, the majority’s conclusion that

eligibility is unrelated to conduct is premised on an

artificial and hypertechnical bifurcation of the permitting

process. When concluding that permit eligibility is

unrelated to conduct, the majority buries its head in the

sand.

Its characterization of the eligibility review as an

“initial inquiry”14 is not based on the language of the

statute. The eligibility criteria in MCL 324.63702 are as

much a condition to engage in critical sand dune mining as

the requirements in §§ 63704 through 63706. The SDMA does

not enact a hierarchy or order to be followed by those

12
MCL 324.9101 et seq.
13
Supra beginning at 7.
14
Ante at 7.

16

reviewing a permit application. Unlike this Court’s recent

decision in Nemeth, here the majority reads “likely to” out

of the statute.

The majority argues that an inquiry into the effect on

the environment of the proposed mining “would be pointless

unless the DEQ first determined that the applicant was

eligible for a permit on the basis of the applicant’s

status”. Ante at 7-8. We could not agree more. It would

be pointless for the DEQ to review the effect of the

proposed mining if the applicant were ineligible for a

permit. If the applicant is not eligible, no mining will

occur. Critical dunes will not be destroyed.

The majority attempts to restrict the inquiry into

Technisand's conduct to consideration of the nature of its

relationship to the property at issue. This is

misleading.15 The conduct in question is more than

TechniSand’s “relationship to the mining property.” It

necessarily encompasses TechniSand’s proposal to remove

large quantities of sand from designated critical dunes

that would otherwise remain untouched. This is the “actual

15
See, e.g., ante at 11 n 5. The majority’s implicit
recognition that [c]ountless entities apply for and receive
permits for conduct that affects Michigan's natural
resources," ante at 17, demonstrates the internal
inconsistency of its argument.

17

conduct” that the permit at issue allows and that plaintiff

alleges is “likely to pollute, impair, or destroy” critical

dunes under MEPA. MCL 324.1703(1). Because the critical

dunes could not have been mined by TechniSand at all

without the erroneous eligibility determination, plaintiff

should be allowed to pursue its MEPA cause of action.

Statutory provisions must be read in the context of

the entire act so as to produce a harmonious whole. Macomb

Co Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247

(2001). Subsections a and b of § 63702(1) must be read

together because of their juxtaposition. Subsection b

applies when the permit holder seeks to expand the permit

to include adjacent land that contains a critical dune area

that it owned before July 5, 1989. In contrast, subsection

a applies to the amendment or renewal of a permit that

already authorizes mining in a particular area.

The permit issued to TechniSand authorized mining only

in the noncritical dune areas. TechniSand had to apply for

a permit amendment to add the adjacent critical dune areas

to its permit. Therefore, subsection b applies to this

case. However, TechniSand did not own the land or the

rights to mine the sand before 1989 as required by the

statute. Therefore, it could not have obtained the permit

18

amendment and could not have engaged in any critical sand

dune mining.

TechniSand’s environmental impact statement16

acknowledged that mining the critical dunes at issue would

“significantly impair the environment and would permanently

destroy critical dune.” 253 Mich App 269. Witnesses

testified from the statement that the mining will change

“the nature of the result in the environment . . . for

hundreds of years”17 and a “large percent of the critical

dune will be removed.”18 Plaintiff’s expert testified that

“The critical dune will be gone.”19

Nonetheless, the majority holds that the DEQ’s

determination that TechniSand is eligible to mine critical

dunes is unrelated to whether TechniSand’s mining

activities will pollute, impair, or destroy a natural

16
The majority criticizes me for citing a document
“not in the record.” Ante at 17. However, it was Exhibit
21 at trial, and witnesses read from it. See Trial Tr at
122, 582, 785, and 932. Plaintiff’s brief on appeal in the
Court of Appeals quoted it at p 6. The record on appeal
includes all original papers filed in the courts below.
MCR 7.311(A). Plaintiff included an excerpt in the
appendix (p 14b) to its brief on oral argument before this
Court. See MCR 7.308.
17
Trial Tr at 935.
18
Id. at 785.
19
Id. at 122.

19

resource. Thus, it concludes that plaintiff cannot rely on

MEPA to challenge the permit that has been issued. The

majority’s reasoning undermines the critical dunes

protections in the SDMA, the intent of MEPA, and this

Court’s earlier MEPA decisions.

Plaintiff is not required to challenge issuance of the

permit as an administrative decision under either the

Administrative Procedures Act (APA) or the Revised

Judicature Act (RJA). The MEPA is “supplementary to

existing administrative and regulatory procedures provided

by law.” MCL 324.1706. It was intended to create a common

law of environmental protection. Ray at 306. It does not

require that a plaintiff exhaust administrative remedies.

MCL 324.1701(1). Accordingly, the statutory period of

limitations of neither the APA nor the RJA apply to

plaintiff’s MEPA claim.20 Plaintiff’s challenge to

Technisand’s permit under the MEPA is not time-barred.

The DEQ does not dispute that TechniSand is ineligible
for a permit. Recognizing plaintiff’s claim under the

20
The MEPA itself imposes no statutory period of
limitations, but equitable claims under the Natural
Resources and Environmental Protection Act, which houses
MEPA, have been held subject to the six-year statutory
period of MCL 600.5813. Attorney General v Harkins, 257
Mich App 564, 571; 669 NW2d 296 (2003).

20

environmental protection act expresses no disrespect for an
administrative agency’s decision. The majority abdicates
its responsibility by refusing to review this permit
eligibility determination under MEPA.21

Conclusion

The majority's decision today wrongly insulates Sand

Dune Mining Act permit eligibility determinations from

judicial review. The decision to issue a sand dune mining

permit pursuant to the SDMA inherently includes an

environmental component. I would hold that issuance of the

permit in this case can be challenged under the Michigan

environmental protection act.

The Legislature intended the act to apply to permit

determinations. Application of the act to permit

determinations is entirely consistent with the

Legislature’s intent to stringently preserve Great Lakes

sand dunes against degradation and to protect the integrity

21
The majority cites Oscoda Chapter of PBB Action
Comm, Inc v Dep’t of Natural Resources, 403 Mich 215, 233;
268 NW2d 240 (1978) to support its finality argument. But
its quotation from the case is taken out of context and is
from an opinion that did not garner a majority of votes.
The statement addressed the court’s authority to consider
feasible and prudent alternatives to proposed conduct, an
issue entirely unrelated to the majority’s decision that
this permit challenge under MEPA is time-barred.

21

of that environment. The majority’s reasoning frustrates

that intent.

Plaintiff's cause is not barred by the statutory

limitations periods of the APA and the RJA. The Court of

Appeals correctly remanded the case for entry of an order

granting summary disposition for plaintiff. Its decision

should be affirmed.

Because the majority ignores both the reality of the

permitting process and the Legislature’s intent to protect

critical dune areas from destruction, I must dissent.

Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver

22