Environmentalist Victory Short Lived?

At the very end of the 2010 term of the lame duck Democratic majority, the Michigan Supreme Court issued its 4-3 decision in Anglers of the AuSable v DEQ and provided a significant victory for Michigan environmentalists.

The decision has huge implications. Much of Michigan's environmental law is contained in the Natural Resources and Environmental Protection Act (NREPA). Most of the statute concerns administrative regulation and permitting for protected activities (Wetlands, Inland Lakes & Streams, etc.)  The meat for litigators is the Michigan Environmental Protection Act (MEPA), part 17 of NREPA.  This is an overlay provision giving individuals a right to file suit to prohibit conduct which is polluting, impairing or destroying natural resources (or is likely to do so). 

The Court made two holdings to significantly empower environmental enforcement litigation. First, the Court held that the DEQ may be sued directly for its actions in issuing a permit.  Prior court decisions had restricted review of DEQ permitting decisions by holding that such decisions were not challengeable outside of the administrative permitting process.

Second, the Court held that the traditional tests of standing do not apply in a MEPA action. Rather, the statute is to be enforced as written and "any person" may file a MEPA action to seek a prohibition on alleged illegal conduct.

Given the very broad sweep of the holding and the Republican's new majority, I wouldn't bet on this decision being left intact for long.

Mid-Michigan Litigation Update is authored by W. Jay Brown, a Midland Michigan based civil litigation attorney. The foregoing is intended to be for general information purposes only and is not intended to be specific legal advice and does not create an attorney-client relationship between W. Jay Brown PLC and you. Individuals with legal issues are advised to consult an attorney of your own choosing for advice specific to your situation.

A Warning to Landlords

If landlords weren't already convinced about the dangers of self-help, the recently released case of Christie v Fick, (Mich Ct. App. docket # 285924, released March 2, 2010) should make the point very clear.  In that case, the plaintiffs were living in a cabin near Grayling that they rented for $300 per month and were slightly behind in rent. The landlord moved them out and put their personal property in storage where it was subsequently damaged.  The total judgment - - - $299,256.21.  That's a lot of stuff in a $300 per month cabin!!

How removing a tenant's belongings from  a $300 a month cabin led to a $300,000 judgment is another lesson in creative use of the conversion statute, MCLA 600.2919a. The jury's verdict included an emotional distress element to the "actual damages" recoverable under the statute.  These actual damages were trebled and an additional attorney fee was awarded.

Almost as concerning for the self-help landlord was the fact that the plaintiffs only needed to ask once for their stuff back.  The landlord's argument that the plaintiffs had numerous opportunities to retrieve their belongings did not matter as "once there has been a refusal of a right to possession, no further demand for the property is necessary by the plaintiff" in order to recover.

The Burden of Proof in Defending Adverse Possession Cases

The burden of proof in an adverse possession case is “clear and cogent.” There is a terrific legal citation to quote regarding this heightened burden when defending adverse possession claims. Take a look at footnote 2 from the case of McQueen v Black, 168 Mich App 641, n2; 425 NW2d 203 (1988). The court engages in a lengthy discussion of the standard and concludes that the burden approaches “ the level of proof beyond a reasonable doubt” and that “where there is any reasonable dispute, in light of the evidence, over the question of possession, the party has failed to meet his burden of proof.”