One Court of Justice

On April 6, 2010, the Michigan Court of Appeals published a per curiam opinion in Matthews v. Department of Natural Resources, No. 288040, affirming the ruling that plaintiffs had a prescriptive easement across state land, but reversing the ruling that they could fill the wetlands on that easement without obtaining a permit.  The Court of Appeals concluded that plaintiffs had properly tacked onto the possessory periods of their predecessors without a parol statement of conveyance because it was the only access they knew of and had used before the transfer of ownership.  However, their prescriptive easement did not excuse them from complying with environmental laws that required a permit before filling the wetland with pallets to use the easement. Read more »

In Wolverine Power Supply Cooperative, Inc. v. Department of Environmental Quality, No. 287553 (published September 15, 2009), the Michigan Court of Appeals struck down MDEQ Rule 1830, which purported to add a contested case proceeding to the process for obtaining a permit to install a new source of air emissions.  Under the detailed procedures that the Legislature has enacted for air permitting, an RJA appeal is the only prescribed remedy when the MDEQ issues a new permit to install.  By contrast, the Legislature provided both an RJA appeal and a contested case proceeding for MDEQ decisions involving operating permits.  In its published opinion, the Court of Appeals held that the inclusion of the contested case procedure in the subsection concerning operating permits, but not in the subsection concerning permits to install, demonstrates the Legislature’s decision that contested case hearings are not appropriate for decisions on permits to install.  Accordingly, Rule 1830 cannot stand.

Disclaimer:   WNJ represented the prevailing party, Wolverine Power, in the Court of Appeals.

On Thursday, April 9, the Michigan Court of Appeals issued a published opinion reversing a circuit court’s order for summary disposition in favor of an insured against its insurer based on the interpretation of a pollution exclusion clause.  In Auto Owners Ins. Co. v. Ferwerda Enterprises, Inc., Case No. 277574, toxic fumes from the insured hotel pool’s heating system built up while the heating system was under repair.  The fumes injured guests of the hotel, who then sued the hotel.  Auto Owners, the  hotel’s insurer, denied coverage under the policy’s pollution exclusion clause and filed an action for declaratory judgment to establish that it neither had a duty defend nor indemnify in this circumstance.   The circuit court granted summary disposition in favor of the hotel, holding that the pollution exclusion was counteracted by a “Building Heating Amendment” that modified the pollution exclusion clause.  It then awarded nearly $800,000 in damages against Auto Owners.  The Court of Appeals majority concluded that, while the hotel had colorable arguments to support its interpretation of the policy language, the policy was ambiguous and required a fact-finder to ascertain its meaning.  Judge O’Connell dissented and would have affirmed the circuit court in full.

Anglers of the AuSable, Inc. v. Dep’t of Environmental Quality, No. 279301.  The Court of Appeals reversed the trial court’s holding that the DNR’s easement failed to convey riparian rights to Merit Energy Company, but nonetheless upheld the trial court’s order enjoining Merit Energy from discharging treated water into the AuSable River water system, because such discharge was an unreasonable use of riparian rights and would violate the Michigan Environmental Protection Act (MEPA).  The Court of Appeals also held that the trial court erred in failing to dismiss the DEQ from this action, finding that an agency’s administrative decision does not violate MEPA.  The Court of Appeals’ opinion can be found here. Read more »

On March 3, 2009, the United States Supreme Court held in a 5-4 decision that environmental organizations lacked standing to challenge regulations in the absence of actual injury resulting from a concrete application of those regulations. The organizations sought to prevent the United States Forest Service from enforcing regulations that exempted certain activities from statutorily mandated notice, comment, and appeal process. The parties reached a settlement concerning the specific project at issue after the district court issued a preliminary injunction, but the plaintiffs pursued their claim as to whether the regulations were contrary to law in the abstract. Justice Scalia, writing for the Court, reaffirmed Supreme Court precedent that standing requires a showing that plaintiffs have a personal stake in the outcome of the dispute. The organizations lacked standing because they had not identified a specific application of the challenged regulations that threatened imminent and concrete harm to their members’ interests.  The opinion can be found here. Read more »

On March 3, 2009, the Michigan Supreme Court will hear oral argument in Henry v. The Dow Chemical Company, on whether the “rigorous analysis” requirement for class certification in federal courts also applies to state courts, if so whether the circuit court conducted a proper “rigorous analysis,” and whether class certification was appropriate.  This is the second time that the Henry case has come before the Michigan Supreme Court.  The order granting leave to appeal can be found here.  The briefs of the parties and the seven amici can be found here. Read more »

On February 6, 2009, the Michigan Supreme Court took substantive action in four criminal cases.  In People v. Grays, No. 137244, the Court vacated the defendant’s conviction of second-degree murder.  In the other three cases, the Court ordered oral argument on whether to grant the application for leave to appeal or take other substantive action.  This is also known as granting ”miniature oral argument” or MOA because the parties are given 30 minutes for oral argument instead of the 60 minutes provided in calendar cases.  The Court also denied leave to appeal in three cases.

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In what appears to be the first substantive reversal due to the recent change in Michigan Supreme Court personnel, the Court granted reconsideration and vacated its remand order in Anglers of the Ausable, Inc. v. MDEQ, Case No. 137725, a dispute involving the MDEQ’s issuance of a Certificate of Coverage (“COC”) allowing discharge of treated water into the AuSable River as part of a remediation plan.

The trial court vacated the COC, and the Court of Appeals denied a delayed application for leave to appeal.  In an order issued December 11, 2008, the Court remanded the case to the Court of Appeals as on leave granted.   Justices Cavanagh, Weaver, and Kelly would have denied the application.  Yesterday, on reconsideration, the Court vacated the December 11 order and denied the application for leave to appeal.  Justice Corrigan dissented, joined by Justices Young and Markman.  Both the order and the dissent can be found here.