Anglers of the Ausable Inc v. Dept of Environmental Quality ( 2011 )

Order Michigan Supreme Court
Lansing, Michigan
April 25, 2011 Robert P. Young, Jr.,
Chief Justice
Rehearing Nos. 576, 578 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
5 October 2010 Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra,
138863-66 Justices
ANGLERS OF THE AuSABLE, INC.,
MAYER FAMILY INVESTMENTS, LLC,
and NANCY A. FORCIER TRUST,
Plaintiffs-Appellants,
SC: 138863-138866
v COA: 279301, 279306, 280265,
280266
DEPARTMENT OF ENVIRONMENTAL Otsego CC: 06-011697-CE
QUALITY, DIRECTOR OF THE
DEPARTMENT OF ENVIRONMENTAL
QUALITY, and MERIT ENERGY COMPANY,
Defendants-Appellees.
_________________________________________/
On order of the Court, the motions for rehearing are considered, and they are
GRANTED. This Court’s opinion of December 29, 2010 is VACATED and this appeal
is DISMISSED on grounds of mootness, for reasons set forth in the dissenting opinion
reported at 488 Mich 91 (2010). The Court of Appeals opinion at 283 Mich App 115(2009) is also VACATED. See Grand Traverse Co Prosecutor v Meijer, Inc (In re
Investigative Subpoenas), 488 Mich 1032 (2011); United States v Munsingwear, Inc, 340
US 36, 39-40 (1950) (“The established practice of the Court in dealing with a civil case
. . . which has become moot while on its way here, or pending our decision on the merits,
is to reverse or vacate the judgment below. . . . When that procedure is followed, the
rights of all parties are preserved. . . .”).
“T[he] judicial power . . . is the right to determine actual controversies arising
between adverse litigants, duly instituted in courts of proper jurisdiction.” Anway v
Grand Rapids R Co, 211 Mich 592, 616 (1920) (quoting Muskrat v United States, 219 US
346 [1911]) (emphasis added). As a result, “this Court does not reach moot questions or
declare principles or rules of law that have no practical legal effect in the case before” it.
Federated Publications, Inc v City of Lansing, 467 Mich 98, 112 (2002). In accordance
with these principles, this case is moot because it presents “nothing but abstract questions
2
of law, which do not rest upon existing facts or rights.” Gildemeister v Lindsay, 212
Mich 299, 302 (1920). In light of the fact that: (a) defendant has quit-claimed its
easement interest back to the riparian owner; (b) defendant no longer has the physical
means of discharging water into Kolke Creek or the Au Sable River; (c) defendant is now
disposing of the water by alternative means; (d) defendant no longer has a permit that
allows discharge into Kolke Creek or the Au Sable River; and (e) the Department of
Environmental Quality has attested that “there no longer exists the possibility of surface
water discharge to Kolke Creek or the Au Sable River,” this is a case of obvious
mootness. There is “no reasonable expectation that the wrong will be repeated,” United
States v WT Grant, 345 US 629, 633 (1953), because the very harms that plaintiffs sought
to enjoin no longer exist.
YOUNG, C.J. (concurring).
I fully join this Court’s order and write only to answer a criticism the dissenting
statement raises. Justice Cavanagh quotes my dissenting opinion in United States
Fidelity Ins & Guar Co v Michigan Catastrophic Claims Ass’n (On Reh’g), 484 Mich 1,
27 (2009) (YOUNG, J., dissenting), and rhetorically asks the question I raised in that case
– “What changed?” – that would lead me to support rehearing in the instant case.
The answer is simple: the majority opinion in USF&G prevailed over my
dissenting opinion, and I see no reason to remain bound by a position that failed to
receive majority support two years ago.1 Today’s order merely applies the very same
principles that former Justice WEAVER and Justices HATHAWAY, MARILYN KELLY and
notably Justice CAVANAGH himself applied in deciding to grant rehearing in USF&G.
And although Justice CAVANAGH dissents from the order in this case, he does not
repudiate his decision to grant rehearing in USF&G. Instead, his dissent in the instant
case is fully premised on his belief that this Court’s previous disposition on the mootness
issue “was properly decided.” Because I continue to hold the opposite belief—that this
Court erred in issuing an opinion on the merits of a moot case2—I fully join today’s
order.
ZAHRA, J. (concurring).
1
Moreover, Justice ZAHRA makes a persuasive argument in his concurring statement to
this order that my dissenting opinion in USF&G interpreted a standard on rehearing that
is inapplicable in this Court. Rather, “[n]othing” in the text of the court rules pertaining
to this Court “supports the notion that the Court may only grant rehearing where new
legal arguments are presented.” Post, at ___.
2
See my dissent in the original Anglers opinion, 488 Mich at 91.
3
I concur in the order granting rehearing, which vacates this Court’s opinion of
December 29, 2010, as well as the Court of Appeals’ opinion of March 31, 2009. I write
separately to address the propriety of granting a motion for rehearing when there has been
a change in the makeup of the Court between the time the Court’s initial opinion is
released and the date the motion for rehearing is decided.
MCR 7.313(E), this Court’s rule governing motions for rehearing, is a
discretionary rule as it does not define a standard under which this Court is to decide
motions for rehearing.3 Thus, whether to grant or deny the motion is left to the discretion
of the Court. Historically, in exercising discretion, the Justices of this Court consider
whether the Court properly interpreted and applied the law. This explains why Justices
typically cast votes on rehearing that are consistent with their initial view of the case.4
3
MCR 7.313(E) provides:
(1) To move for rehearing, a party must file within 21 days after the
opinion was filed (the date of an opinion is stamped on the upper right
corner of the first page):
(a) 24 copies of a motion prepared as provided in MCR 7.309, if the
opinion decided a case placed on a session calendar; or (b) 14 typewritten
copies of a motion, if the opinion decided a noncalendar case; and
(c) proof that a copy was served on the parties.
The motion for rehearing must include reasons why the Court should
modify its opinion.
(2) Unless otherwise ordered by the Court, timely filing of a motion
postpones issuance of the Court's judgment order until the motion is denied
by the Court or, if granted, until at least 21 days after the filing of the
Court's opinion on rehearing.
(3) Any party may answer a motion within 14 days after it is served by
filing
(a) 24 or 14 copies of the motion, depending on whether the motion
was filed under subrule (D)(1)(a) or (b); and.
(b) proof that a copy was served on the other parties.
(4) Unless ordered by the Court, there is no oral argument.
4
See e.g., Bezeau v Palace Sports & Entertainment, Inc, 488 Mich 904 (2010) (YOUNG,
J., dissenting); Pellegrino v AMPCO System Parking, 487 Mich 860 (2010) (showing that
WEAVER and HATHAWAY, JJ, would grant rehearing); People v Richmond, 486 Mich
1041 (2010) (CORRIGAN, J, concurring in part and dissenting in part); Jackson v Estate of
Green, 485 Mich 869 (2009) (MARKMAN, J., dissenting); Boodt v Borgess Med Ctr, 482
Mich 1001, 1002-1004 (2008) (CAVANAGH, J., dissenting); Gilbert v DaimlerChrysler
Corp, 472 Mich 1201 (2005) (CAVANAGH, MARILYN KELLY, and WEAVER JJ.,
dissenting).
4
Generally speaking, a Justice will only change his or her vote when the legal arguments
on rehearing persuade the Justice that his or her initial view of the case was erroneous.
Not surprisingly, Justices MARILYN KELLY, CAVANAGH, HATHAWAY, MARKMAN and
Chief Justice YOUNG view this case in the same light that they did on the date the original
opinion was issued. The instant motion thus rises or falls on the votes cast by myself and
Justice MARY BETH KELLY. Because we were not seated on the Court when the initial
opinion was released, we have no established position in this case.
It is suggested that Justice MARY BETH KELLY and I ought not cast our votes
based on the merit of the legal arguments and the correctness of the opinion that is the
subject of rehearing and, instead, limit our review to a determination whether any new
arguments have been presented to this Court that were not previously presented at the
time the opinion under review was released. Nothing in MCR 7.313(E), however,
supports the notion that the Court may only grant rehearing where new legal arguments
are presented. Significantly, such a constraint exists in the pertinent court rule for the
Court of Appeals. Specifically, MCR 7.215(I)(1), which governs motions for rehearing
and reconsideration in the Court of Appeals, states that “[m]otions for reconsideration are
subject to the restrictions contained in MCR 2.119(F)(3).” MCR 2.119(F)(3) in turn
provides that:
Generally, and without restricting the discretion of the court, a motion for
rehearing or reconsideration which merely presents the same issues ruled
on by the court, either expressly or by reasonable implication, will not be
granted. The moving party must demonstrate a palpable error by which the
court and the parties have been misled and show that a different disposition
of the motion must result from correction of the error.
The absence of any reference to MCR 2.119(F) in the rule governing motions for
rehearing in this Court, and the express reference to it in the equivalent Court of Appeals
rule, leads me to conclude that in deciding the pending motion it is appropriate to
consider whether the Court’s December 29, 2010 opinion was properly decided, rather
than limit review to the question regarding whether new arguments are presented on
rehearing.5
5
Although this case presents a motion for rehearing, not a motion for reconsideration, I
believe the same analysis would apply in considering a motion for reconsideration. See
MCR 7.313(F). Moreover, this analysis is wholly consistent with MCR 1.103, which
provides:
The Michigan Court Rules govern practice and procedure in all courts
established by the constitution and laws of the State of Michigan. Rules
stated to be applicable only in a specific court or only to a specific type of
proceeding apply only to that court or to that type of proceeding and control
over general rules.
5
This same conclusion has been reached by virtually every Justice faced with this
situation. Then-Justice ALTON DAVIS voted to grant reconsideration where he concluded
the Court’s prior order was erroneous. Duncan v State of Michigan, 488 Mich 957(2010) (DAVIS, J., concurring). Likewise, Justice HATHAWAY voted to grant rehearing
and vacate an opinion originally issued before she joined the Court. United States
Fidelity Ins & Guaranty Co v Michigan Catastrophic Claims Ass’n (On Rehearing), 484
Mich 1 (2009).6 Then-Justice CORRIGAN and Chief Justice YOUNG did the same in
McCready v Hoffius, 459 Mich 1235 (1999). History informs us that this is not a recent
trend in the Court. See, e.g., Harmsen v Fizzell, 354 Mich 60 (1958); Weller v Mancha,
353 Mich 189 (1958); Rumney v Coville, 51 Mich 186 (1883).7
MCR 7.313(E) and MCR 7.313(F) govern motions for rehearing and reconsideration in
this Court as part of subchapter 7.300, which houses rules applicable only to this Court.
They are therefore rules stated to be applicable only in a specific court and control over
the general rule, 2.119(F), in governing motions for rehearing and reconsideration. As
MCR 7.313(E) and (F) are the controlling rules, MCR 2.119(F)(3) would not apply
unless somehow incorporated by those rules. MCR 1.103 cannot be read to incorporate
MCR 2.119(F)(3) into the rules applicable to motions for rehearing in the Supreme Court.
To do so would render meaningless the express reference to MCR 2.119(F)(3) in the
rehearing rule applicable to the Court of Appeals, MCR 7.215(I)(1). Simply put, the
express reference to MCR 2.119(F)(3) in the Court of Appeals rule would be unnecessary
if MCR 1.103 already made MCR 2.119(F)(3) the controlling standard in all Michigan
appellate courts.
In an attempt to buttress his argument, Justice CAVANAGH relies on the public
internal operating procedures (IOPs) of this Court. However, reference to the IOPs is not
helpful in this analysis. First, these procedures are nonbinding and merely observatory
guidelines, subject to change at any time without notice. Moreover, these nonbinding
procedures suggest only that MCR 2.119(F)(3) be incorporated into review of a motion
for reconsideration. Significantly, the IOP for rehearing motions, IOP I(J), makes no
reference to MCR 2.119(F)(3). Thus, even if the nonbinding IOPs were looked to for
guidance, the conclusion must be reached that MCR 2.119(F)(3) would not apply here
because it does not apply to motions for rehearing brought in this Court.
6
Justice HATHAWAY also would have granted rehearing in Moore v Secura Ins, 483 Mich
928 (2009), where the opinion was issued before she joined the Court.
7
Notwithstanding Justice CAVANAGH’s assertion that the members of this Court have
generally applied MCR 2.119(F)(3) as the standard for granting rehearing and
reconsideration, in each case that he cites the justices referencing MCR 2.119(F)(3) were
adhering to their previously stated view of the case. Further, in no decision of this Court
has a majority ever applied MCR 2.119(F)(3) as the governing standard for deciding a
motion for reconsideration or rehearing. In United States Fidelity Ins & Guar Co, 484
Mich at 11 n 12, the majority cited to MCR 2.119(F)(3) in responding to the dissent that
6
The inquiry does not end, in my opinion, upon review of the correctness of the
decision under review. As is evident from the substance of the dissent in this case, which
echoes the dissent of Chief Justice YOUNG in United States Fidelity Ins & Guar Co, 484
Mich at 27, it can be unsettling to this Court when within the period for rehearing,
interpretation of the law changes due to a change in the composition of the Court. See
also Sazima v Shepherd Bar & Restaurant, 483 Mich 924 (2009) (MARKMAN, J.,
dissenting). Because of these concerns, my discretion is also guided by consideration of
the jurisprudential significance of the issues presented on rehearing.
Justice CAVANAGH claims that the newly composed Court is “undoing recent
precedent.” Like every Justice on this Court, I respect the role stare decisis plays in
Michigan’s jurisprudence. That said, every Justice on this Court, with the exception of
Justice MARY BETH KELLY and myself, has at one time or another found it appropriate to
overrule precedent because the Justice concluded doing so served the best interests of
Michigan’s jurisprudence. See e.g., Regents of University of Michigan v Titan Ins Co,
487 Mich 289 (2010); Robinson v City of Detroit, 462 Mich 439 (2000). In my view, the
order granting rehearing and vacating the December 29, 2010 opinion does not undo
precedent; it restores precedent. Simply stated, the Court disregarded the mootness
doctrine so that it could overrule Preserve the Dunes, Inc v Dep’t of Environmental
Quality, 471 Mich 508 (2004), and change the course of over a century of established
Michigan water law. Rehearing is properly granted here, not only because the underlying
dispute is moot, but also because Preserve the Dunes properly interprets Michigan law.8
I also disagree with Justice CAVANAGH that the order granting rehearing runs afoul
of City of Erie v Pap’s AM, 529 US 277 (2000). When considering the instant case in its
procedural entirety, the situation here is unlike the one in City of Erie.9 In particular,
the prior decision to grant rehearing was consistent with that standard. A majority,
however, did not apply MCR 2.119(F)(3) when this Court actually granted rehearing in
that case. United States Fidelity Ins & Guar Co v Michigan Catastrophic Claims Ass’n v
Michigan Catastrophic Claims Ass’n, 483 Mich 918 (2009).
8
It is inconsequential that in considering the merits of this Court’s Decmber 29, 2010
opinion that this Court previously denied the motion to dismiss for mootness. Defendants
raise the mootness issue in their motions for rehearing. Moreover, the mootness doctrine
is jurisdictional as it concerns a court’s inherent judicial power, and therefore, can be
raised at any time. See People v Richmond, 486 Mich 29, 34 (2010). Consideration of
the correctness of a decision thus necessarily requires consideration regarding whether
this Court acted within the scope of its jurisdiction and judicial power.
9
In City of Erie, the U.S. Supreme Court rejected the plaintiff’s argument that the case
was moot after the plaintiff voluntarily closed his nude dancing establishment and sold
7
Merit Energy Company’s alternative plan for remediating the pollutant in its groundwater
was largely dictated by the circuit court decision to vacate Merit’s permit allowing
discharge into Kolke Creek. As Chief Justice YOUNG set forth in his dissenting opinion:
The lead opinion claims that “the trial court has left open the door
for Merit to discharge treated water into Kolke Creek at a lower than
originally proposed rate.” This claim appears plausible when looking
solely at the circuit court’s June 26, 2007, amended opinion. But that
opinion was superseded by subsequent events. In particular, the circuit
court’s January 31, 2008, opinion ruled that the DEQ had erroneously
issued a permit to Merit. Both the Court of Appeals and, eventually, this
Court denied defendants’ applications for leave to appeal, leaving intact the
circuit court’s opinion. Accordingly, even if the circuit court’s June 26,
2007, decision “left open the door for Merit to discharge treated water into
Kolke Creek,” its January 31, 2008, decision closed that door, and this
Court’s denial of leave bolted the door shut. Further, without either
physical access to Kolke Creek or a valid permit, Merit has no lawful
authority to discharge any amount of anything into Kolke Creek. [Anglers
of the Au Sable v DEQ, 488 Mich 69, at 107 (2010) (footnote omitted).]
Thus, unlike the voluntary and unilateral actions on the part of the plaintiff in City of
Erie, the vacation of Merit’s permit and this Court’s decision to deny leave came about
independently from Merit and without action on the part of Merit. As a result, the
situation here is not one where a party’s voluntary actions are an attempt to insulate a
favorable decision from review. Rather, the independent court action invalidating
Merit’s permit moves this case entirely outside the concerns raised in City of Erie.10
Accordingly, I concur in the Court’s order to grant rehearing.
MARY BETH KELLY, J., joins the statement of ZAHRA, J.
CAVANAGH, J. (dissenting).
I dissent from the majority’s decision to grant defendants’ motions for rehearing
and vacate this Court’s December 29, 2010 opinion. Contrary to Justice ZAHRA’s belief
that this Court “disregarded the mootness doctrine,” this Court previously considered, at
great length, defendants’ arguments related to this issue, as evidenced by my concurring
his property because the plaintiff could reopen his business in another building, as it was
still incorporated. City of Erie, 529 US at 284-288 and 302-303, Scalia, J., concurring.
10
See also Anglers of the Au Sable, 486 Mich at 986, n 6 (CORRIGAN, J., dissenting), and
id. at 989, n 10 (YOUNG, J., dissenting) persuasively distinguishing City of Erie from the
instant case.
8
statement and the three “emphatic[]” dissenting statements to this Court’s June 18, 2010
order denying defendant Merit’s motion to dismiss for mootness. Anglers of the AuSable,
Inc v Dep’t of Environmental Quality, 486 Mich 982, 994 (2010) (YOUNG, J., dissenting).
Defendants make no new arguments in their current motions, and the June 18, 2010 order
was properly decided, therefore, reconsideration on mootness grounds is improper.11
11
I cannot join Justice ZAHRA’s belief that MCR 2.119(F)(3) does not apply to this
Court’s review of motions for rehearing and reconsideration. Although it is true that
MCR 7.313(E) and MCR 7.313(F) apply only to this Court and do not expressly cross-
reference MCR 2.119(F)(3), MCR 1.103 addresses the general applicability of the Court
Rules and states that the rules “govern practice and procedure in all courts . . . . Rules
stated to be applicable only in a specific court or only to a specific type of proceeding
apply only to that court or to that type of proceeding and control over the general rules.”
(Emphasis added.) Thus, because MCR 7.313(E) and MCR 7.313(F) offer no standard
for considering motions for reconsideration and rehearing and MCR 2.119(F)(3) does not
state that it is applicable only in specific courts or to a specific type of proceeding, it
appears that it is applicable to this Court’s consideration of motions for reconsideration
and rehearing.
This Court’s own publicly available Internal Operating Procedures further support
the premise that MCR 2.119(F)(3) applies to this Court’s review of motions for rehearing
and reconsideration. Indeed, IOP I(E)(5)(b)(ii) states “MCR 7.313(E) does not specify
grounds for a motion for reconsideration. The same general principles that govern
motions for reconsideration in trial courts apply. MCR 2.119(F)(3).” I acknowledge that
the introduction to the Internal Operating Procedures explains that “[t]he Michigan Court
Rules are and remain the governing procedures of this Court,” but the introduction also
states that the procedures “could be grouped under the heading ‘How Things Work at the
Supreme Court’” and that “the goal of [the procedures] was to set forth those features of
our internal procedures that might benefit the appellate practitioner.” Further, IOP
I(E)(5)(b)(ii) is consistent with MCR 1.103’s directive that the Court Rules “govern
practice and procedure in all courts” unless otherwise stated. Thus, because our Internal
Operating Procedures are available for public review and are intended to assist the
appellate practitioner in navigating a course through this Court, I believe that they should
not be summarily ignored.
Finally, although I believe that MCR 2.119(F)(3) does apply to this Court’s
consideration of motions for reconsideration and rehearing, I agree that the Court retains
an element of discretion given that MCR 2.119(F)(3) states that it “[g]enerally” applies
and that it does not “restrict[] the discretion of the court.” Nevertheless, the members of
this Court have generally applied MCR 2.119(F)(3) as the standard for determining
whether granting a motion for reconsideration or rehearing is proper. See, e.g., Duncan v
State, 486 Mich 1071, 1074 (2010) (MARILYN KELLY, C.J., dissenting); McCormick v
Carrier, 485 Mich 851-852 (2009) (WEAVER, J., concurring); Univ of Michigan Regents
v Titan Ins Co, 484 Mich 852, 853-854 (2009) (YOUNG, J., dissenting); United States
9
Apparently, some members of the majority are now willing to rely merely on the ever-
changing nature of the Au Sable River as reason to reverse course, contrary to their
previous statements. Indeed, only two short years ago, Chief Justice YOUNG eloquently
bemoaned this Court’s reconsideration of a matter after a change in this Court’s
composition. In his dissent in United States Fidelity Ins & Guar Co v Michigan
Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 27 (2009), the Chief Justice
stated:
I. WHAT CHANGED?
The facts have not changed. The text of the statute at issue has not
changed. The parties’ arguments have not changed. And the rationale
advanced in the opinions of this Court has not changed. Yet, within a
matter of months, a decision of this Court, thoughtfully briefed, argued, and
considered by seven justices, is no longer worth the paper it was written on.
Even the casual observer, however, does not really need to ask why. The
reason is obvious: . . . the composition of this Court changed.
Now, in what appears to be “déjà vu all over again,” Chief Justice YOUNG is happy to
join in our newly composed Court’s undoing of recent precedent. I find interesting Chief
Justice YOUNG’s freshly announced willingness to forgo his position in USF&G because
he now sees “no reason to remain bound by a position that failed to receive majority
support two years ago.” Ante ___. While Chief Justice YOUNG is obviously free to
change his mind, it is worth noting that his decision comes now, when it suits his
previous dissenting position in this case, yet he consistently held fast to his USF&G
dissent, see Lansing Sch Educ Ass’n v Lansing Bd of Educ, 485 Mich 966, 967 n 10
(2009) (YOUNG, J., dissenting); University of Michigan Regents v Titan Ins Co, 484 Mich
852, 853-855 (2009) (YOUNG, J., dissenting), even as recently as the end of last term.
See McCormick v Carrier, 487 Mich 180, 266 (2010) (MARKMAN, J., dissenting).
Also, Justice ZAHRA errs in the application of his newly-created standard for
reviewing motions for reconsideration and rehearing. Even if one accepts that a Justice
may consider the merits of the legal arguments, correctness of the opinion, and
Fidelity Ins & Guar Co v Michigan Catastrophic Claims Ass’n, 484 Mich 1, 3 n 12
(2009); People v Osaghae, 460 Mich 529, 535 (1999) (MARILYN KELLY, J., dissenting).
See, also, IOP I(E)(5)(b)(ii). Furthermore, older caselaw from this Court indicates that
MCR 2.119(F)(3) reflects this Court’s historic standard for deciding motions for
reconsideration and rehearing. See, e.g., Thompson v Jarvis, 40 Mich 526 (1879)
(denying a motion for rehearing because “nothing [was] suggested beyond what was
considered by the court upon original arguments . . . .”).
10
jurisprudential significance of the issues presented,12 Justice ZAHRA, in concurring with
this Court’s order reversing on mootness grounds, considers the merits of the legal
arguments and correctness of the June 18, 2010 order, not this Court’s December 29,
2010 opinion. Defendants did not file a motion for reconsideration of this Court’s June
18, 2010 order; therefore, the majority’s reaching to grant rehearing of this Court’s
subsequent opinion is quite a stretch.
Furthermore, Justice ZAHRA’s claim that this Court’s order “restores precedent”
because it breathes new life into Preserve the Dunes, Inc v Dep’t of Environmental
Quality, 471 Mich 508 (2004), is true only from a very narrow perspective. As Justice
MARILYN KELLY explained in her concurring opinion in this case, “Preserve the Dunes is
of relatively recent vintage, having been decided a mere six years ago. . . . Moreover,
Preserve the Dunes represented a sea change in one area of the law and toppled settled
interpretations of MEPA that had existed for nearly 30 years.” Anglers of the AuSable,
Inc v Dep’t of Environmental Quality, 488 Mich 69, 88 (2010) (MARILYN KELLY, J.,
concurring) (citing Eyde v Michigan, 393 Mich 453, 454 (1975); Ray v Mason Co Drain
Comm’r, 393 Mich 294, 304-305 (1975); West Mich Environmental Action Council v
Natural Resources Comm, 405 Mich 741, 751, (1979); Nemeth v Abonmarche Dev, Inc,
457 Mich 16 (1998)). Thus, in essence, the majority believes that rehearing is proper in
this case merely because it permits them to resuscitate a precedent with which they agree.
Finally, as I explained in my concurring statement to the order denying the motion
to dismiss for mootness, Anglers of the AuSable, 486 Mich at 982-985, this case is not
moot. The United States Supreme Court has warned appellate courts to be particularly
wary of finding an issue moot when there remains “a public interest in having the legality
of the practices settled,” United States v WT Grant Co, 345 US 629, 632-633 (1953), and
when the party seeking to moot the issue is the party who prevailed in the lower court.
City of Erie v Pap’s AM, 529 US 277, 287-288 (2000). Such concern is necessary
because any effort to circumvent the Court’s jurisdiction by a party through its voluntary
actions is repugnant to an appellate court’s “interest in preventing litigants from
attempting to manipulate the Court’s jurisdiction to insulate a favorable decision from
review.” Id. at 288. See, also, City News & Novelty, Inc v City of Waukesha, 531 US
278, 283-284 (2001). The majority’s decision to grant the motions for rehearing and
dismiss this case as moot despite the utter lack of new arguments relating to this issue is
perhaps even more repugnant to this principle.
The majority’s decision to vacate this Court’s opinion leaves unanswered several
questions of significant public concern, including whether plaintiffs have a cause of
12
I would note that Justice ZAHRA’s new standard will almost always boil down to a
Justice’s decision on the “correctness of the opinion” because it would be rare for this
Court to consider an issue that is not jurisprudentially significant, see MCR 7.302(B)(3),
nor does this Court often entertain frivolous legal arguments.
11
action to challenge the DEQ’s decision to issue a permit to discharge water into Kolke
Creek and the proper method to determine the reasonableness of water use. Further, and
perhaps most importantly, the majority’s decision encourages gamesmanship by
permitting defendants to “insulate a favorable decision from review” because defendants’
unilateral actions were the basis for Merit’s motion to dismiss for mootness, just as in
City of Erie. The plaintiff-respondent in City of Erie filed an affidavit after the United
States Supreme Court granted certiorari stating that he had closed his business, sold his
property, and never intended to operate a nude dancing establishment again. City of Erie,
529 US at 284-288, 302-303 (Scalia, J., concurring). The City of Erie Court reasoned
that the plaintiff-respondent could still obtain another building and reopen the
establishment, given that it was still incorporated under state law. City of Erie, 529 US at
287. Similarly, in this case, defendant Merit could obtain another easement and pursue a
discharge that would constitute a reasonable use of the water under the existing test. The
City of Erie Court also reasoned that both parties had a continuing interest in the
litigation because the city could not enforce its ordinance under the lower court’s
decision, even against other parties, and the plaintiff-respondent still had an interest in
preserving the lower court’s decision in favor of his rights. Id. at 288. In City of Erie,
the city’s inability to enforce its ordinance against the plaintiff-respondent and other
inhabitants of the city constituted an ongoing injury. Similarly, here, plaintiffs’ ability to
enforce their riparian interests against defendant and other parties seeking to use Kolke
Creek will continue to be affected by the conclusion that plaintiffs lack a cause of action
to challenge the DEQ’s decision to issue a permit to discharge water into Kolke Creek
and the unanswered question regarding the proper method to determine the
reasonableness of water use.
The majority attempts to address this problem by vacating the Court of Appeals
opinion in this case, but its efforts fail. By erroneously concluding that this case is moot,
the majority rewards defendants by insulating them from the unfavorable result of this
Court’s well-reasoned opinions. Furthermore, the cases cited by the majority in support
of its decision to vacate the Court of Appeals opinion address situations where appellate
review was “prevented through happenstance,” United States v Munsingwear, Inc, 340
US 36, 40 (1950) (emphasis added), i.e., “due to circumstances unattributable to any of
the parties.” Karcher v May, 484 US 72, 83 (1987) (emphasis added). See, also, US
Bancorp Mortg Co v Bonner Mall Partnership, 513 US 18, 22-23 (1994). And, while the
United States Supreme Court has concluded that, in some situations, vacation of a lower
court decision is proper when a party who seeks review of the merits of an adverse ruling
is frustrated by the “unilateral action of the party who prevailed below,” US Bancorp, 513
US at 25, that Court has also concluded that unilateral attempts to moot a case only after
leave to appeal is granted should not be well received. See City of Erie, 529 US at 288(noting that the defendant raised the mootness issue after the Court granted certiorari).
Indeed, in this case, defendants’ attempts to moot this case and insulate its favorable
result began only after this Court granted leave to appeal.
12
Thus, I cannot agree that this case presents no justiciable issues. Rather, because
the mootness issue was already thoughtfully considered by this Court and defendants
merely present the same unconvincing arguments, I would deny defendants’ motions for
rehearing.
MARILYN KELLY, and HATHAWAY, JJ., join the statement of CAVANAGH, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 25, 2011 _________________________________________
t0421 Clerk