Platte Lake Improvement Ass'n v. Department of Natural Resources , 218 Mich. App. 424 ( 1996 )

554 N.W.2d 342 (1996) 218 Mich. App. 424

PLATTE LAKE IMPROVEMENT ASSOCIATION, Plaintiff-Appellant,
v.
DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee.

Docket No. 176356.

Court of Appeals of Michigan.

Submitted April 10, 1996, at Grand Rapids. Decided August 23, 1996, at 9:30 a.m. Released for Publication October 15, 1996.

Boyden, Waddell, Timmons & Dilley by Frederick D. Dilley, Grand Rapids, for plaintiff.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and James L. Stropkai, Assistant Attorney General, for defendant.

Before GRIBBS, P.J., and HOEKSTRA and C.H. STARK,^[*] JJ.

HOEKSTRA, Judge.

Plaintiff appeals as of right an order of the Ingham Circuit Court denying attorney fees under the Michigan Environmental Protection Act (MEPA), M.C.L. § 324.1701 et seq.; M.S.A. § 13A.1701 et seq.^[1] We affirm.

In this appeal, plaintiff overtly challenges this Court's decision in Attorney General v. Piller (After Remand), 204 Mich.App. 228, 514 N.W.2d 210 (1994). Plaintiff recognizes that the Piller opinion, upon which the trial court relied, is controlling; however, plaintiff requests that this panel express disagreement with the holding in Piller pursuant to Administrative Order No. 1996-4.

Plaintiff, a nonprofit corporation formed by property owners on Platte Lake and Platte River, filed suit against defendant in 1986, claiming that phosphorous emissions from defendant's salmon hatchery was causing environmental pollution in the lake and river. Following a bench trial in 1988, the trial court determined that defendant was violating the MEPA and awarded plaintiff injunctive relief. Plaintiff was also awarded costs, including attorney fees, pursuant to M.C.L. § 691.1203(3); M.S.A. § 14.528(203)(3) for expenses incurred through the date of the 1988 judgment. In August 1993, plaintiff filed a supplemental motion for apportionment of costs, including attorney fees, incurred after entry of the 1988 judgment. That motion was granted in an opinion and order dated March 9, 1994. However, on March 21, 1994, this Court announced its decision in Piller, prompting defendant to request reconsideration of the award of postjudgment attorney fees. Using Piller, as authority, the trial court reluctantly reversed the original award of postjudgment attorney fees and this appeal ensued.

Since the enactment of M.C.L. § 691.1203(3); M.S.A. § 14.528(203)(3), this Court has repeatedly addressed the question whether attorney fees are assessable costs under the MEPA. The first case to mention the issue, Taxpayers & Citizens in the Public Interest v. Dep't of State Hwys., 70 Mich.App. 385, 245 N.W.2d 761 (1976), has been cited by subsequent cases for the proposition that an award of attorney fees was authorized by this subsection. See Superior Public Rights, Inc. v. Dep't of Natural Resources, 80 Mich.App. 72, 263 N.W.2d 290 (1977), Three Lakes Ass'n v. Kessler, 101 Mich.App. 170, 300 N.W.2d 485 (1980), and Dafter Twp. v. Reid, 131 Mich.App. 283, 345 N.W.2d 689 (1983). A panel of this Court adopted the opposite position in Oscoda Chapter of PBB Action Committee, Inc. v. Dep't of Natural Resources, 115 Mich.App. 356, 320 N.W.2d 376 (1982). The Piller decision agreed with the reasoning in the PBB case and held that an award of costs pursuant to M.C.L. § 691.1203(3); M.S.A. § 14.528(203)(3) could not include attorney fees. We are now asked to revisit the issue on the basis of the arguments raised in this appeal.

For us, the issue presents a question of statutory interpretation. The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Golf Concepts v. City of Rochester Hills, 217 Mich.App. 21, 550 N.W.2d 803 (1996). The Legislature is presumed to intend the meaning plainly expressed in a statute, and judicial construction is not allowed where the plain and ordinary meaning of the language is clear. Id.

Here, M.C.L. § 691.1203(3); M.S.A. § 14.528(203)(3) states that "[c]osts may be apportioned to the parties if the interests of justice require." The word "costs," when used in a legal context, is a word that has a distinct meaning that is different than the meaning of the word in everyday parlance. M.C.L. § 600.2401; M.S.A. § 27A.2401 provides that the taxation of costs related to a legal proceeding is regulated by statute or court rule. M.C.L. § 600.2405; M.S.A. § 27A.2405 then defines which items may be taxed and awarded as costs as follows:

The following items may be taxed and awarded as costs unless otherwise directed:

* * *

(6) Any attorney fees authorized by statute or by court rule.

Thus, by statutory definition, costs do not include attorney fees except when specifically authorized by statute or court rule. In addition, our Supreme Court has held that attorney fees ordinarily are not recoverable at common law, and can be awarded only where a statute specifically so provides. Matras v. Amoco Oil Co., 424 Mich. 675, 695, 385 N.W.2d 586 (1986).

The issue then is reduced to deciding whether the Legislature intended to create a statutory exception to the above definition of costs by the enactment of M.C.L. § 691.1203(3); M.S.A. § 14.528(203)(3). A panel of this Court in Oscoda, supra, concluded that it did not. The panel concluded that "[w]hile the statute permits apportionment of costs, it does not purport to alter the ordinary definition of ``costs' or to allow taxation of costs for items which may not be taxed as costs in ordinary civil actions." Id. at 362, 320 N.W.2d 376. We have no basis upon which to challenge the accuracy of the Oscoda panel's conclusion.

When the MEPA is examined in the context of other environmental legislation, it is apparent that the Legislature understands the significance of the word "costs" because in other environmental legislation the Legislature has specifically provided for the payment of attorney fees. For example, § 10 of the Water Resources Commission act, M.C.L. § 323.10; M.S.A. § 3.529(1), provides for a discretionary award of reasonable attorney fees and costs to the prevailing party. Similarly, § 48 of the Hazardous Waste Management Act, M.C.L. § 299.548; M.S.A. § 13.30(48), allows a trial court to award costs of litigation, including reasonable attorney fees, to a party if appropriate.

In these instances, the Legislature has expressly provided for the recovery of attorney fees. The MEPA, conspicuously devoid of any similar provisions, cannot be read to authorize them. Thus, we are constrained to agree with Piller that costs under the MEPA do not include attorney fees.

Plaintiff claims that previous MEPA cases, such as Taxpayers, supra, and the cases that rely upon Taxpayers, have established a rule of common-law that an award of costs under the MEPA includes attorney fees. Accordingly, plaintiff asks us to disregard the statutory nature of costs and find that the inclusion of attorney fees as costs in these early cases has created a common-law precedent that we should follow. While our Supreme Court in Ray v. Mason Co. Drain Comm'r, 393 Mich. 294, 306, 224 N.W.2d 883 (1975), recognized that the Legislature "left to the courts the important task of giving substance to the standard by developing a common law of environmental quality," this common law of environmental quality refers not to the meaning to be afforded well-defined legal terms such as "costs," but rather to interpreting what constitutes environmental pollution or impairment. Thus, we find that the concept of a common law of environmental quality, as stated in Ray, does not encompass misinterpretations of terms of art such as "costs" and does not support plaintiff's position.

Plaintiff also alleges that the Piller decision contravenes the doctrine of stare decisis. However, before Piller, this Court had issued opinions deciding the issue both ways. The Piller panel found that the holding in Taxpayers, as it relates to attorney fees, was essentially dicta and concluded that the reasoning of the PBB case was more persuasive. Furthermore, before Administrative Order No. 1990-6, prior opinions of this Court were not binding on subsequent panels addressing the same issue. Consequently, for purposes of stare decisis, the Piller case, as the first case addressing the issue since 1990, represents the precedent-setting opinion, and the one we are bound to follow.

Lastly, plaintiff argues that, as a matter of public policy, this Court should disagree with the Piller opinion because to hold that citizens who initiate environmental cases cannot recover attorney fees will have a chilling effect on such litigation. Although we are completely sympathetic to plaintiff's concern in this regard, we believe that this is a policy matter to be resolved by the Legislature, and not by this Court. As the statutory sections at issue are now written, we have no choice but to conclude that the Legislature did not intend for attorney fees to be recoverable under the MEPA.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] At the time plaintiff's suit was filed, the MEPA was codified at M.C.L. § 691.1201 et seq.; M.S.A. § 14.528(201) et seq. During the time this appeal was pending, those sections were repealed and the MEPA was moved to M.C.L. § 324.1701 et. seq.; M.S.A. § 13A.1701 et seq. The provision at issue in this appeal was not altered substantively in any way. For the remainder of this opinion, the MEPA will be referred to under its former codification.