(dissenting). This is an appeal from a judgment of the Circuit Court of Ingham County upholding the denial by the Michigan Department of Natural Resource (DNR) of a permit to drill for oil and gas on property which had been leased by the DNR for the express purpose of drilling for gas and oil. An apparent denial was initially made by the Supervisor of Wells, the issuing officer, and denial was upheld on appeal by the Natural Resources Commission. The denial is founded solely upon a claim of a police power under the oil conservation act1 to prevent "waste”, here found by the commission to consist of threat*696ened "damage to the ecosystem and serious or unnecessary damage to animals”.2
We are presented with the question of whether such damage constitutes "waste” under the oil conservation act and, if so, whether that justifies denial of the drilling permit. We are not concerned with the Environmental Protection Act; the appellant’s environmental impact statement complied with the act and was approved by the DNR staff. Neither are we concerned with the qualifications of appellant; no claim was made that appellant was other than a careful, prudent operator of long experience in the business, or that appellant was or had been in violation of the oil conservation act or the rules and regulations promulgated thereunder.3
The sequence of events demonstrates an effort to redeem an apparent public agency mistake without confession of error, at private expense, and, of course, in the name of the public good.
By lease dated October 1, 1968, the DNR conveyed the oil and gas rights to certain lands in the Pigeon River State Forest. As to one such lease, appellant is the successor to forty acres in section *69722 of Corwith Township in Otsego County, referred to as State-Corwith 1-22.4 Prior to the 1968 sale of oil and gas leases by the DNR, the lands to be offered were reviewed by the various divisions of the DNR, including the Game Division, the Forestry Division, the Parks Division, and various divisions dealing with research and planning, to determine whether any of the lands described should either be withheld or offered for lease subject to special restrictions for the protection of special conservation interests and values. No withholding or restriction was recommended in the Pigeon River State Forest.5
After a number of wells had been drilled in the forest, this viewpoint within the DNR was reversed. One need not be a mystic to divine from this record that the change of position did not result from expert research or evaluation in the *698operating levels of the DNR but was a determination to which the commission itself had been led by concerned public opinion. Without admitting that leasing in the forest had been error, claiming credit for itself for "an increased awareness of quality environment”, and crediting public interest as "a recent development which makes it reasonable to deny” drilling permits,6 the DNR attempted to retrieve with its left hand that which it had sold with the right. The justification for denial of drilling permits was premised, notwithstanding an opinion of the Attorney General to the contrary,7 on an interpretation of the oil conservation act by which the very acts of drilling for and producing oil and gas in a particular locale could be deemed "waste” as injurious to the environment.8
On May 31, 1972, appellant made its application to the Supervisor of Wells for a drilling permit pursuant to §23 of the oil conservation act. Although the application was in proper form, the supervisor failed to act on the application within five days as required by that section.9 He ulti*699mately responded on July 21, 1972, saying that he had been ordered to deny the application by the director of the DNR,10 who had said,
"Oil and gas operations at the above site cannot be conducted without causing or threatening to cause serious damage to animal life and molesting or spoiling state-owned lands.”11
Treating the letter as a denial of its application, appellant took its appeal to the commission, whose new policy militated against drilling in the forest and whose director had ordered the Supervisor of Wells to deny the permit. The commission ap*700pointed an independent hearing examiner who took extensive testimony, personally visited the site on two occasions, and made detailed findings and conclusions of law sustaining appellant’s position and recommending issuance of the drilling permit. His findings and report were rejected by the commission which directed the Attorney General to submit findings and conclusions to the contrary. Those proposed findings, derived in relevant part from the testimony of six DNR staff employees, were adopted by the commission, which affirmed the denial of the permit.12
Appeal on the record was taken to the Circuit Court of Ingham County which upheld the commission’s denial of the permit, and this appeal of right followed.
Is the commission’s finding of "[d]amage to the ecosystem and serious or unnecessary damage to animals” supported by the record? Not in those terms. The record does not show the damage to *701animals to be unnecessary within the meaning of the act, and ecosystem damage as such is irrelevant under the act, of which more hereafter. I do not share the conclusion of the circuit judge that the testimony before the hearing examiner "overwhelmingly” supported the commission’s findings rather than those of the examiner. I find it, rather, a close question as to whether there is serious damage to animals, particularly if one may allow that the credibility of the opinions of the DNR employees upon which the findings turned was open to question. The hearing examiner obviously found those witnesses to be something less than infallible, and their opinions without credible foundation and inconsistent with the experience of other human activities in the area (fn 13, infra); the commission’s findings, on the other hand, gave full faith and credit to their opinions and expertise, without which latter they doubtless would not have obtained nor kept departmental employment. Q.E.D.
There is no dispute that the location of the proposed well is in the Pigeon River State Forest, that the forest is the site of the only elk population in the lower peninsula of Michigan, and that it also provides good habitat for bear and bobcat. I find the commission’s findings of serious damage to animals supported by the record to the extent that there was substantial testimony from six DNR employees that: (a) the forest may be the last area of size supporting bear and bobcat in the lower peninsula; (b) bear, bobcat and, particularly, elk, while they would not be directly injured by drilling or oil-gas production, would tend to avoid areas of such activity;13 and, (c) in consequence, the *702range and habitat of these animals would likely be reduced and their population would likely decline.
It is the contention of the commission that the Supervisor of Wells, under the police powers provided by the oil conservation act, may make a determination that the very act of drilling for oil and gas at a given location, and of there operating a producing well, however efficiently those operations may be conducted, may constitute waste per se, and that he may accordingly deny the right to so drill and operate. From the statutory duty imposed on the supervisor to prevent waste and a statutory definition of waste that includes "unnecessary damage to or destruction of the surface, soils, animal, fish or aquatic life or property from or by oil and gas operations”, the commission contends that the right to drill for and produce gas and oil may be denied wherever and whenever the supervisor determines that damage may be done to the ecosystem. I do not so read the act.
Apart from the pro tempore concern of 1939 with overproduction in a depression market as waste,14 the thrust of the oil conservation act is to conserve oil and gas, preventing its waste or loss and promoting its efficient production. Thus, § 1, stating the policy of the act, concludes:
"It is accordingly the declared policy of the state to *703protect the interests of its citizens and land owners from unwarranted waste of gas and oil and foster the development of the industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of these natural products. To that end this act is to be construed liberally in order that effect may be given to sound policies of conservation and the prevention of waste and exploitation.” MCLA 319.1; MSA 13.139(1).
The primary definitions of "waste”, subsurface and surface, deal with the literal waste or loss of oil and gas from inefficient or imprudent operating policies, and all of the specific powers given the Supervisor of Wells to prevent waste relate to the prevention of such operating practices or the requirement of sound practices. The conferred powers of the supervisor are for the regulation of production and not for its prevention.
The definition of waste is as follows:
"(1) As used in this act, the term 'waste’ in addition to its ordinary meaning shall include:
"(1) 'Underground waste’ as those words are generally understood in the oil business, and in any event to embrace (1) the inefficient, excessive, or improper use or dissipation of the reservoir energy, including gas energy and water drive, of any pool, and the locating, spacing, drilling, equipping, operating, or producing of any well or wells in a manner to reduce or tend to reduce the total quantity of oil or casing-head gas ultimately recoverable from any pool, and (2) unreasonable damage to underground fresh or mineral waters, natural brines, or other mineral deposits from operations for the discovery, development, and production and handling of oil or casing-head gas.
"(2) 'Surface waste,’ as those words are generally understood in the oil business, and in any event to embrace (1) the unnecessary or excessive surface loss or destruction without beneficial use, however caused, of casing-head gas, oil or other product thereof, but includ*704ing the loss or destruction, without beneficial use, resulting from evaporation, seepage, leakage or fire, especially such loss or destruction incident to or resulting from the manner of spacing, equipping, operating, or producing well or wells, or incident to or resulting from inefficient storage or handling of oil, (2) the unnecessary damage to or destruction of the surface, soils, animal, fish or aquatic life or property from or by oil and gas operations; and (3) the drilling of unnecessary wells.
"(3) 'Market waste,’ which shall embrace the production of oil in any field or pool in excess of the market demand as defined herein.”
Sections 4 and 5 of the act speak only in general terms of waste, making it unlawful and within the authority and jurisdiction of the Supervisor of Wells; § 7 provides for a hearing before the advisory board "to determine whether or not waste is taking place or is reasonably imminent, and what action should be taken to prevent such waste;”15 § 6 charges the Supervisor of Wells with prevention of "the waste prohibited by this Act” and enumerates his specific powers to deal therewith "after consulting with the (Oil and Gas Advisory) board.”16 Nowhere therein is the power to deny a drilling permit to prevent future waste mentioned or suggested, nor does § 23 dealing with the issuance of permits suggest such a power. Nor has the *705Supervisor of Wells sought such a power by adopting rules and regulations which would so provide.
The act does recognize the risk of damage to water, mineral deposits, surface, soils, neighboring properties, life, or to animal, fish or aquatic life or property, from oil and gas operations and that the public interest warrants regulation to minimize such risk. Obviously such damages, and oil and gas exploitation in itself, have ecological significance. But nowhere in the act is the word "ecosystem” mentioned, nor "ecology”, either in the definitions of waste or in other sections of the act dealing therewith or defining the powers of the Supervisor of Wells. It is significant that the Legislature has demonstrated that it can, if it chooses, express an absolute ecological or environmental standard. Thus among the powers conferred on the supervisor in § 6(c) is the power
"to prevent pollution, damage to or destruction of fresh water supplies including inland lakes and streams and the Great Lakes and connecting waters, and valuable brines, by oil, gas or other waters, to prevent the escape of oil, gas or water into workable coal or other mineral deposits”.
But more typical of the act, and more realistic, is the following clause of § 6(c) giving the Supervisor of Wells the power,
"to require the disposal of salt water and brines and oily wastes produced incidental to oil and gas operations, in such manner and by such methods and means that no unnecessary damage or danger to or destruction of surface or underground resources, to neighboring properties or rights, or to life, shall result” (emphasis added).
In so stating the supervisor’s power, the Legisla*706ture recognized the necessary risks inherent in disposing of salt water, brines and oily wastes and authorized regulation to minimize them so that no unnecessary damage should result. The Legislature has used a similar word, "unreasonable”, in § 2(1)(1)(2) in describing subsurface damage as waste. So too, where dealing with production allocation and pooling, § 13 of the act declares the drilling of unnecessary wells to be waste since they create fire and other hazards conducive to waste; since such risks are common to all wells, it is the unnecessary risk with which the Legislature is concerned. The word "unnecessary” appears also in that portion of the statutory definition of surface waste upon which the commission here relies:
"(2) 'Surface waste,’ as those words are generally understood in the oil business, and in any event to embrace * * * (2) the unnecessary damage to or destruction of the surface, soils, animal, fish or aquatic life or property from or by oil and gas operations”17 § 2(1)(2).
And while, after this controversy arose, the Legislature has broadened this definition of waste by adding "other environmental values” to the interests to be protected from unnecessary damage or destruction,18 it did not choose to delete the word "unnecessary” from the definition or to provide an absolute standard for the protection of environmental values as it had done in § 6(c) for the protection of fresh waters and mineral deposits.
The Attorney General’s 1971 opinion to the then *707director of the DNR, followed by the hearing examiner, concluded that the act recognized that there was necessary damage or destruction consequent upon all oil and gas exploration and production and that what the act proscribed as unnecessary damage or destruction was that damage arising from careless or imprudent operations which might be prevented by appropriate precautions in such operations. That is the ordinary sense of the words "necessary” and "unnecessary”, i.e., that which is required or consequentially unavoidable versus that which does not follow as a matter of course and may be avoided.19
The circuit judge thought this dictionary definition of "necessary” and "unnecessary” to be too narrow, and that these were, instead, relative terms, saying:
"Whether or not damage is necessary * * * also concerns whether the oil itself is necessary, or whether the oil is so necessary that other values must be subrogated * * * the denial of the permit to drill could validly be based partially or entirely upon ecological considerations.”
*708This I hold to be an erroneous interpretation of the statute. It would give to the enforcing officer, the Supervisor of Wells, the power to define waste and to do so according to his relative assessment of the competing values of oil and gas production versus ecological or other considerations. He is given no such power by the act, nor has he ever claimed such by his administrative rules and regulations. The question of whether oil and gas production is "necessary” was affirmatively answered by the act itself, as, indeed, it was answered by the various acts of the Legislature authorizing the commission to select state lands for oil and gas leasing.20
Nothing in my view of the act, that the regulatory powers of the Supervisor of Wells is confined to the establishment and enforcement of prudent operating practices and safety standards for the prevention of avoidable damage from ongoing operations, is altered by an examination of § 23 governing the issuance of drilling permits. There is no suggestion therein that a determination of feasibility, ecological or environmental acceptability, or of improbability of future waste of any kind is a prerequisite for the issuance of a permit. To the contrary, upon receipt of the required fee, acceptable bond and an application in proper form, issuance of the permit appears mandatory except where the applicant has not complied with or is in violation of the act or the rules, regulations, requirements or orders of the Supervisor of Wells. While there are rules and regulations relating to permit procedures, I have already noted that there are none dealing with ecological or environmental *709concerns of authorizing denial of drilling permits in anticipation thereof, nor are such concerns mentioned in the statutory powers given the supervisor to make requirements and orders.
I conclude that the damage to the ecosystem or serious damage to animals which the commission found would result from oil and gas operations at Corwith 1-22 is not unnecessary within the statutory definition of waste, and that there is no power in the Supervisor of Wells under the statute to deny appellant’s application for a drilling permit because of such anticipated damage.21
Moreover, while I think this construction of the act is both evident and sensible, were the act ambiguous I would be compelled to reach the same result in order to preserve its constitutionality.
"We cannot properly hold that the Legislature designed to commit such an act of injustice as to take away vested rights and destroy valuable existing interests. We are bound, if possible, so to construe statutes as to give them validity and a reasonable operation.” Van Fleet v Van Fleet, 49 Mich 610, 613; 14 NW 566 (1883).
The commission acknowledges that by the lease, appellant acquired a valuable property interest. It denies appellant’s claim that the denial of a drilling permit operates to deprive appellant of that property without just compensation in violation of *710§ 2 of article 10 of our constitution; rather, it asserts, it is merely exercising a police power to regulate the use of that property. But it seems fatuous to argue that because the lease conveying the oil and gas rights will run until 1978, the denial of the right to explore for oil and gas does not destroy its value. The action of the supervisor, if authorized by statute, would deprive the lease of all value.
Spanich v Livonia, 355 Mich 252, 259-260; 94 NW2d 62 (1959), holding a zoning ordinance unconstitutional as depriving the affected parcel of land of any value for the zoned use,22 delineated permissible police powers, saying "the legislation may only 'regulate’; it may not 'take’ under the guise of regulation”, citing Arverne Bay Construction Co. v Thatcher, 278 NY 222; 15 NE2d 587; 117 ALR 1110 (1938), which at 232 said:
"An ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose goes, it is plain, beyond regulation, and must be recognized as a taking of the property.”
Another case citing Arverne with approval was Commissioner of Natural Resources v Volpe & Co, Inc, 349 Mass 104, 110-111; 206 NE2d 666 (1965), like the instant case involving claimed powers for conservation of ecological values, which claimed powers were rejected in the following language:
"The plaintiffs argue as though all that need be done is to demonstrate a public purpose and then no regulation in the interests of conservation can be too extreme. *711* * * An unrecognized taking in the guise of regulation is worse than confiscation.”
Intervenors advance such arguments of public interest, citing People v Broedell, 365 Mich 201; 112 NW2d 517 (1961), dealing with the public trust in submerged lands. But the public trust imposed on the state’s fee title to the submerged lands of the Great Lakes has no counterpart in other state owned lands which may be bought and sold, leased or dealt with as by any private owner, and the power to sell oil and gas leases is expressly conferred by statute. Appellant does not deny, nor does this Court, the public interest in conservation of valued ecological and environmental interests. That public interest would have warranted the commission in withholding lands in the Pigeon River State Forest from lease in the first instance had the commission found it appropriate to do so. That public interest warrants regulation of private property under reasonable standards23 for preservation and development of such environmental interests. That public interest warrants the expenditure of public funds for such purposes. And that public interest justifies the use of the power of eminent domain where necessary to accomplish those purposes. But no man’s property may be taken from him to achieve those purposes without just compensation.
In a case similar to the one at hand, Union Oil Co of California v Morton, 512 F2d 743 (CA9, 1975), a Federal lease for off-shore drilling with the right to erect a drilling platform had been sold *712to Union Oil Co. After one drilling platform caused a serious oil spill in the Santa Barbara Channel, an order of the Secretary of Interior suspended drilling rights in the area and denied Union the right to install another drilling platform. In remanding to the District Court, the Court made it clear that if the practical exercise of the lease was being denied indefinitely, such action of the secretary must be overturned. After noting that the secretary had no powers of condemnation, the Court said, at 750-751,
"If, as Union contends, platform C is a necessary means for the extraction of oil from a portion of the leased area, refusal to permit installation of that platform now or at any time in the future deprives Union of all benefit from the lease in that particular area. We therefore conclude that an open-ended suspension of the right granted Union to install a drilling platform would be a pro tanto cancellation of its lease.
"Such a taking by interference with private property rights is within the constitutional power of Congress, subject to payment of compensation. * * * But Congress no more impliedly authorized the Secretary to take the leasehold by prohibiting its beneficial use than by condemnation proceeding. A suspension for which the fifth amendment would require compensation is therefore unauthorized and beyond the Secretary’s power.”
The contention that Union is distinguishable from the instant case because appellant’s lease contained a provision that it was subject to future rules and regulations applicable to such leases is quite beside the point since the commission has failed to demonstrate that there is any applicable rule or regulation. It is a feeble effort to equate the act of a governmental officer with a properly adopted administrative rule or regulation; and if they were identical, it would be nonetheless totally *713destructive of the value of appellant’s lease and an unconstitutional taking. That is the import of the decision of my brethren. See the opinion of Black, J., concurring in Pigorsh v Fahner, 386 Mich 508, 515; 194 NW2d 343 (1972), and speaking of the "enormity” of a like governmental position in a similar public interest case.
I would reverse and direct the issuance of a drilling permit pursuant to appellant’s application, with costs to appellant.
1939 PA 61, as amended; MCLA 319.1 et seq.; MSA 13.139(1) et seq. References to the act hereafter will be by section number only, identifiable in MCLA by the number after the decimal and in MSA by the number in parentheses. Thus § 23 of the act is cited as MCLA 319.23 and MSA 13.139(23).
While my brothers find the action of the commission to be properly founded in the duty imposed upon the commission by 1921 PA 17; MCLA 229.1 et seq.; MSA 13.1 et seq., to manage public lands under its control, the commission itself made factual findings only of "damage to or destruction of the surface, soils, animals, fish or aquatic life”, language contained in the oil conservation act’s definition of waste. And see the commission policy statement of June 11, 1971, fn 8, infra. While my brothers cite § 2 of 1921 PA 17 empowering the commission to adopt rules and regulations to implement the act, neither they nor the commission have asserted any such rule or regulation as the authority for the commission’s action herein. Since there is none such, the omission is eminently reasonable.
The rules and regulations promulgated under the act as part of the State Administrative Code are set forth at R 299.1101, et seq. There are none dealing with waste in the environmental or ecological sense, or restricting the issuance of drilling permits in relation to environmental or ecological factors.
The lease provides:
" 'C’ Said Lessor * * * has granted, demised, leased and let, and by these presents does grant, demise, lease, and let, without warranty, express or implied, unto the said Lessee for the sole and only purpose of drilling, boring, mining and operating for oil and gas * * * and for laying pipelines and buflding tanks, power stations, and structures thereon, necessary to produce, save, and take care of such products, all those certain tracts of land, * * * (descriptions omitted) * * * it being the intention to convey to the Lessee the oil and gas rights to all of the lands described above subject to the control of the * * * (Lessor) as described herewith.
" 'G’ The Lessor reserves * * * the right to use or lease said premises, or any part thereof, at any time, for any purpose other than, but not to the detriment of the rights and privileges herein specifically granted; * * * ”.
As noted in the majority opinion, the lease also provided that it was subject to the rules and regulations of the DNR "now or hereafter in force” relative to such leases; but as noted, fn 3, supra, there are no rules and regulations bearing on the issues of this case!
The majority’s view that the departmental review was inadequate may or may not be true. This is neither an issue here, nor was it before the commission. It is, however, to this stage of departmental procedure that reform should be directed rather than to legalistics over empty barn locks. See Christopher D. Stone, Should Trees Have Standing, Avon Books, New York, 1972.
Exhibit A-73, letter of the DNR director to Supervisor of Wells, July 20, 1972, ordering the supervisor to deny appellant’s application for a drilling permit.
Counsel consulted too late are prone to advise in hindsight that the client should have had foresight. OAG, 1971-1972, No 4718, p 17 (April 6, 1971), concluded that control over environmental problems from oil and gas operations on state land lay in not leasing in the first place, the kind of lawyerism which drives most clients to ignore the answer they didn’t want in the second place. So, too, the DNR.
On June 11, 1971, the commission adopted a policy statement, including the following:
"2 * * *
“b. Each oil and gas drilling permit application shall be judged on its own merits. When it is determined by the Department that the drilling at the location specified in the application will cause serious or unnecessary destruction of the surface, soils, animal, fish or aquatic life or unreasonably molest, spoil, or destroy state-owned lands, the permit may be denied by the supervisor of wells. Such findings shall be fully justified in writing.”
1973 PA 61 amended § 23 to extend to 10 days the period within *699which action on applications must be taken and § 3 to provide that thereafter the director of the DNR rather than the state geologist would be the Supervisor of Wells.
The letter (exhibit A-74) of the supervisor, a DNR appointee, is a marvelous specimen of governmentalese by which he neither took personal action on the application nor expressed any reasoning or responsibility therefor. Rather, it commenced:
"I have been instructed by the Director of Natural Resources to deny your application for a permit”, etc.,
then quoting in its entirety the director’s letter so commanding him.
This procedure suggests several questions which have not been raised. Does the Supervisor of Wells exercise a ministerial or discretionary duty in acting on drilling permit applications? Clearly, if the DNR interpretation of the licensing procedure is accepted, the role of the supervisor is discretionary in the quasi-judicial sense, but just as clearly, he abdicated his discretionary power, merely relaying to the applicant the order given him by one who had no statutory role in the permit procedure.
Moreover, other provisions of the act were ignored, including the § 6 provision that the supervisor exercise his powers for the prevention of waste after consultation with the Oil and Gas Advisory Board, and the § 7 provision requiring hearing by the board "to determine whether or not waste is taking place or is reasonably imminent, and what action should be taken to prevent such waste”.
It evinces a departmental predisposition to deny the application in spite of the act and not because of it, and might lead the uninitiated to suspect that appeal to the commission would be fruitless.
From the letter of the director, supra fn 6.
The record discloses no basis for the director’s conclusion that state-owned lands would be molested or spoiled within the meaning of 1921 PA 17, and the DNR does not now so contend.
The pertinent portion of the commission’s findings, reads as follows, transcript citations omitted:
"Damage to the ecosystem and serious or unnecessary damage to animals would be caused by opening entrance roads, truck traffic, succession of wells and general activities encountered in an oil-gas production. Particularly, serious effects would be caused to elk, bear and bobcat and would cause their virtual removal from a portion of the Pigeon River area. The tendency of the animals would be to avoid the area. Such effect would be particularly noticeable in the case of elk who are a wide ranging animal.
"The Pigeon River area is the last stronghold of the bear and bobcat. Places where bear and bobcat can live are limited. Section 22 is good bear habitat * * * .
"Elk would be particularly affected by an oil operation because of their fragile nervous system and even clearing one acre will affect them. In turn, many small animals would be affected * * * .
"The above testimony from game biologists as to the effect of the drilling of a well in this area comes from the DNR presentation and the opinions of their experts are unrebutted on the record. On considering this foregoing testimony the Commission must find that damage to or destruction of the surface, soils, animals, fish or aquatic life will occur.”
The testimony of the DNR game biologists indicated that these animals would tend to avoid man, man-made objects and human activities, of which there are already considerable in the Pigeon River *702State Forest (in large measure conducted, sponsored or licensed by the DNR), e.g., fishing, hunting, logging, motorcycling, snowmobiling, and oil and gas wells. I note that the DNR experts in response to questions about the other human use of the forest, contended that it has not permanently damaged the forest or its wildlife, that it is reversible and that an excess of such permitted use in the past does not justify a greater use in the future but rather a reduction of such other use. Let us hope. So far as the granting of other drilling permits in the forest, prior to or after the proceedings before the hearing examiner in this case, I accept the DNR position that it has been on a selective site-by-site evaluation, attempting to minimize the impact on the forest of its previous ill-considered leasing.
See §§ 2(1)(2)(3), 2(1)(3), 2(m)-(r), 12, 13.
As already noted, there was no such hearing in this case.
As already noted, there was no such consultation with the board in this case.
The specific powers granted as to waste, other than market waste, are:
1. The power to make and enforce rules and regulations. § 6(a).
2. The powers of recordkeeping and data compilation. § 6(b), (d), (n).
3. The power to require some operating practices and prevent others. § 6(c), (eMk).
4. The power to issue emergency orders suspending "any operation or practice and the prompt correction of any condition found to exist which is causing or resulting or threatening to cause or result in waste”. § 6(1) (under § 16 emergency orders issued without hearing are valid only for 21 days).
We would not suppose, and the commission has not suggested, that "surface waste” is generally understood in the oil business to include ecological changes from, or the frightening away of wild animals by, oil and gas operations.
1973 PA 61.
The commission’s conclusions of law avoided the question completely. It found factually (a) damage to the ecosystem; (b) serious or unnecessary damage to animals, and concluded "On considering the foregoing testimony the Commission must find that damage to or destruction of the surface, soils, animals, fish or aquatic life will occur”, i.e., using the exact language of the act deleting the word, unnecessary.
The argument of the commission on appeal makes no reference to the word “unnecessary”; rather, its brief in effect reads the word out of the statute and substitutes the word "serious”, saying:
"the thrust of the (Attorney General’s) opinion is aimed at the prevention of waste arising from careless and imprudent operations and damages that may be prevented by appropriate measures, and that, therefore, the appellant cannot be denied a permit.
"It is our position, however, that * * * (appellant’s) activities in drilling and operation of the proposed well will cause serious damage to the elk, bear and bobcat which cannot be prevented by any 'appropriate measures.’ ”
Most recently 1921 PA 17, § 2; MCLA 229.2; MSA 13.2. The power to make the value determinations which concerned the circuit judge does exist in the discretionary power thus conferred on the commission to select state lands for oil and gas leasing.
In passing, I note the reference in the commission’s brief to the Supervisor of Wells as an independent officer and am constrained to comment that the handling of the Corwith 1-22 application does not indicate that the commission or DNR director have so viewed the office. Indeed, all briefs filed have referred to the supervisor, the DNR and the commission interchangeably, as if they were the same. Although the 1973 amendments to the oil conservation act now make the DNR director the Supervisor of Wells, the powers vested in him in the latter capacity belong to the office, not to the office of director of the commission.
See also, Ervin Acceptance Co v Ann Arbor, 322 Mich 404; 34 NW2d 11 (1948), North Muskegon v Miller, 249 Mich 52; 227 NW 743 (1929), Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974).
For the necessity of such standards, see Hoyt Brothers, Inc v Grand Rapids, 260 Mich 447; 245 NW 509 (1932). The absence of such standards here would be another constitutionally fatal flaw were the statute to be construed as the commission contends, or were the commission to be viewed as holding such powers as the majority opinion seems to find.