ANGLERS OF AuSABLE v. DEPT. OF ENVTL. QLTY. ( 2010 )

777 N.W.2d 407 (2010)

ANGLERS OF the AuSABLE, INC., Mayer Family Investments, LLC, and Nancy A. Forcier Trust, Plaintiffs-Appellants,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY, Director of the Department of Environmental Quality, and Merit Energy Company, Defendants-Appellees.

Docket Nos. 138863, 138864, 138865, 138866 COA Nos. 279301, 279306, 280265, 280266.

Supreme Court of Michigan.

January 29, 2010.

Order

On order of the Court, the motion to expand the record is DENIED. The application for leave to appeal the. March 31, 2009 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall include among the issues to be briefed: (1) whether defendant Merit Energy Company could be conveyed or granted the right to discharge water on land owned by the state; (2) what test should be applied to determine whether and the extent to which Merit may discharge water; (3) whether the plaintiffs have a cause of action under the Michigan Environmental Protection Act, MCL 324.1701(1), against defendant Department of Environmental Quality; and (4) whether Michigan Citizens v. Nestle Waters, 479 Mich. 280, 737 N.W.2d 447 (2007), and Preserve the Dunes v. DEQ, 471 Mich. 508, 684 N.W.2d 847 (2004), were correctly decided.

The motions for leave to file brief amicus curiae are GRANTED. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

YOUNG, J. (dissenting).

I respectfully dissent from the order granting leave in this case and instead would deny leave to appeal. The order directs the parties to discuss whether Michigan Citizens v. Nestle Waters^[1] and Preserve the Dunes v. DEQ^[2] were correctly decided. I believe both cases were correctly decided. While it is certainly the prerogative of the Court to do so, this order is another instance where the majority seems to retreat from its previously stated fidelity to stare decisis.^[3]

Since the shift on the Court's philosophical Majority in January 2009, the majority has pointedly sought out precedents only recently decided^[4] has failed to give effect to other recent precedents of this Court.^[5] Today, the Court again orders reconsideration of two cases that were decided just three and six years ago. Nothing in the law of this State or the rationale of those decisions has changed in this short time. Accordingly, as I have in other similar orders,^[6] I respectfully dissent from this order.

CORRIGAN, J., joins the statement of YOUNG, J.

NOTES

[1] 479 Mich. 280, 737 N.W.2d 447 (2007).

[2] 471 Mich. 508, 684 N.W.2d 847 (2004).

[3] See, e.g., Pohutski v. City of Allen Park, 465 Mich. 675, 712, 641 N.W.2d 219 (2002) (Kelly, J., dissenting) ("[I]f each successive Court, believing its reading is correct and past readings wrong, rejects precedent, then the law will fluctuate from year to year, rendering our jurisprudence dangerously unstable."); People v. Hawkins, 468 Mich. 488, 517-518, 668 N.W.2d 602 (2003) (Cavanagh, J., dissenting) ("We have overruled our precedents when the intervening development of the law has ``removed or weakened the conceptual underpinnings from the prior decision, or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies.' ... Absent those changes or compelling evidence bearing on Congress' original intent ... our system demands that we adhere to our prior interpretations of statutes."), quoting Patterson v. McLean Credit Union, 491 U.S. 164, 173, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and Neal v. United States, 516 U.S. 284, 295, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996); Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 278, 731 N.W.2d 41 (2007) (Cavanagh, J., dissenting) ("``Under the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction become precedent which should not be lightly departed.'"), quoting People v. Jamieson, 436 Mich. 61, 79, 461 N.W.2d 884 (1990); Brown v. Manistee Co. Rd. Comm., 452 Mich. 354, 365, 550 N.W.2d 215 (1996) ("[A]bsent the rarest circumstances, we Should remain faithful to established precedent."); Todd C. Berg, Hathaway attacks, Michigan Lawyers Weekly, October 27, 2008 ("``People need to know what the law is,' Hathaway said. ``I believe in stare decisis. Something must be drastically wrong for the court to overrule.'"); Lawyers' election guide: Judge Diane Marie Hathaway, Michigan Lawyers Weekly, October 30, 2006, In which Justice Hathaway, then running for a position On the Court of Appeals, was quoted as saying: "[t]oo many appellate decisions are being decided by judicial activists who are overturning precedent."

[4] See, e.g., University of Michigan Regents v. Titan Ins. Co., 484 Mich. 852, 769 N.W.2d 646 (2809) (directing the parties to consider whether Cameron v. ACIA, 476 Mich. 55, 718 N.W.2d 784 (2006), was correctly decided); McCormick v. Carrier, ___ Mich. ___, 770 N.W.2d 359 (2009) (granting leave to consider the plaintiff's request to overrule Kreiner v. Fischer, 471 Mich. 109, 383 N.W.2d 611 (2004)); Lenawee Co. Bd. of Rd. Comm'rs v. State Auto Prop. & Cas. Ins. Co., ___ Mich. ___, 770 N.W.2d 879 (2009) (directing the parties to consider whether Miller v. Chapman Contracting, 477 Mich. 102, 730 N.W.2d 462 (2007), was correctly decided); Edry v. Adelman, ___ Mich. ___, 772 N.W.2d 427 (2009) (directing the parties to consider whether Wickens v. Oakwood Healthcare Sys., 465 Mich. 53, 631 N.W.2d 686 (2001), was correctly decided); Hoover v. Michigan Mut. Ins. Co., ___ Mich. ___, 772 N.W.2d 338 (2009) (directing the parties to consider whether Griffith v. State Farm Mut. Automobile Ins. Co., 472 Mich. 521, 697 N.W.2d 895 (2005); was correctly decided); Lansing Schools Education Ass'n v. Lansing Bd. of Ed., ___ Mich. ___, 774 N.W.2d 689 (2009) (directing the parties to consider whether Lee v. Macomb Co. Bd. of Comm'rs, 464 Mich. 726, 629 N:W.2d 900 (2001), was correctly decided).

[5] See, e.g., Hardacre v. Saginaw Vascular Services, 483 Mich. 918, 762 N.W.2d 527 (2009), where the majority failed to follow Boodt v. Borgess Med. Ctr., 481 Mich. 558, 751 N.W.2d 44 (2008); Sazima v. Shepherd Bar & Restaurant, 483 Mich. 924, 762 N.W.2d 924 (2009), where it failed to follow Chrysler v. Blue Arrow Transport Lines, 295 Mich. 606, 295 N.W. 331 (1940), and Camburn v. Northwest School Dist., 459 Mich. 471, 592 N.W.2d 46 (1999); Vanslembrouck v. Halperin, 483 Mich. 965, 763 N.W.2d 919 (2009), where it failed to follow Vega v. Lakeland Hosps., 479 Mich. 243, 244, 736 N.W.2d 561 (2007);. Juarez v. Holbrook, 483 Mich. 970, 764 N.W.2d 216 (2009), where it failed to follow Smith v. Khouri, 481 Mich. 519, 751 N.W.2d 472 (2008); Beasley v. Michigan, 483 Mich. 1025, 765 N.W.2d 608 (2009), Chambers v. Wayne Co. Airport Auth., 483 Mich. 1081, 765 N.W.2d 890 (2009), and Ward v. Michigan State Univ., ___ Mich. ___, 773 N.W.2d 666(2009, where it failed to follow Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 731 N.W.2d 41 (2007); and Scott v. State Farm Automobile Ins. Co., 483 Mich. 1032, 766 N.W.2d 273 (2009), where it failed to follow Thornton v. Allstate Ins. Co., 425 Mich. 643, 391 N.W.2d 320 (1986), and Putkamer v. Transamerica Ins. Corp. of America, 454 Mich. 626, 563 N.W.2d 683 (1997)).

[6] See, e.g., University of Michigan Regents, supra, 484 Mich. at 853, 769 N.W.2d 646; Lenawee Co. Bd. of Rd. Comm'rs, supra, ___ Mich. at ___, 770 N.W.2d 879; Hoover, supra, ___ Mich. at ___, 772 N.W.2d 338; Lansing Schools Education Ass'n, supra, ___ Mich. at ___, 774 N.W.2d 689.