Atty General v. Drain Comm'r

Full title: ATTORNEY GENERAL v CLINTON COUNTY DRAIN COMMISSIONER

Court: Michigan Court of Appeals

Date published: Aug 7, 1979

91 Mich. App. 630 (Mich. Ct. App. 1979)

283 N.W.2d 815

Opinion

Docket No. 78-3116.

Decided August 7, 1979. Leave to appeal applied for.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Frank J. Pipp and Terrence P. Grady, Assistants Attorney General, for plaintiffs.

Drillock, Atkins, Schrope Marcus, for defendant.

Before: D.C. RILEY, P.J., and V.J. BRENNAN and G.W. CROCKETT, JR.,^_ JJ.

_ Former Recorder's Court judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

PER CURIAM.

Plaintiffs appeal by right from the Clinton County Circuit Court's order of July 20, 1978, dismissing, on jurisdictional grounds, plaintiffs' complaint for injunctive relief. Plaintiffs' complaint alleges that a drain project undertaken by defendant in Stoney Creek in Clinton County violates certain provisions of the Environmental Protection Act of 1970, MCL 691.1201 et seq.; MSA 14.528(201) et seq. (hereinafter referred to as the EPA).¹

1 It was disclosed in oral argument that while this drainage project has been completed, nevertheless, other similar ones are in planning stages. It can be argued that the work having been completed, the question is now moot. However, we consider this issue of sufficient importance that the question will be addressed. Lafayette Dramatic Productions, Inc v Ferentz, 305 Mich. 193, 218; 9 N.W.2d 57 (1943), Wayne County Republican Committee v Wayne County Board of Comm'rs, 70 Mich. App. 620, 624; 247 N.W.2d 571 (1976).

The defendant contends that plaintiffs must exhaust the remedies provided in the special drain enactments before the court can take jurisdiction under the EPA. This legislation consists of the Drain Code of 1956, MCL 280.1 et seq.; MSA 11.1001 et seq., and the Soil Erosion and Sedimentation Control Act of 1972, MCL 282.101 et seq.; MSA 13.1820(1) et seq.

Section 2 of the EPA allows plaintiffs in the instant case to bring an action in the circuit court "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction". MCL 691.1202(1); MSA 14.528(202)(1). Section 4, paragraph 1 of the act specifically provides that the circuit court "may grant temporary and permanent equitable relief, or may impose conditions on the defendant that are required to protect the air, water and other natural resources or the public trust therein from pollution, impairment or destruction". MCL 691.1204(1); MSA 14.528(204)(1).

In Ray v Mason County Drain Comm'r, 393 Mich. 294; 224 N.W.2d 883 (1975), our Supreme Court considered the kind of findings of fact required from a trial judge in deciding an action brought under the EPA. That suit involved a drainage project that had been approved under the Michigan Drain Code, supra. In its opinion, the Court considered the purpose of the EPA. The Court stated:

"But the EPA does more than give standing to the public and grant equitable powers to the circuit courts, it also imposes a duty on individuals and organizations both in the public and private sectors to prevent or minimize degradation of the environment which is caused or is likely to be caused by their activities." Ray, supra, at 306.

We conclude that plaintiffs are authorized to proceed in the circuit court under the express provisions of the EPA and, accordingly, we reverse and remand.