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e-Journal Summary
Opinion Date: 05/12/2011
e-Journal Date: 05/16/2011
Full Text Opinion

Practice Area(s):   Environmental Law

Issues: Whether the respondent-DEQ's jurisdiction under MCL 324.32502 extends to the natural ordinary high-water mark (NOHWM) produced by the action of water against the shore; Effect of the specific elevations set forth in the statute; The Great Lakes Submerged Lands Act (GLSLA)(MCL 324.32501 et seq.); The Natural Resources & Environmental Protection Act (NREPA)(MCL 324.101 et seq.); Glass v. Goeckel; Statutory interpretation; In re Complaint of Rovas Against SBC MI; Kuznar v. Raksha Corp.; Fleet Bus. Credit, LLC v. Krapohl Ford Lincoln Mercury Co.; Giving undefined words or phrases their ordinary meaning; Brackett v. Focus Hope, Inc.; Avoiding rendering any part of a statute nugatory; Robinson v. City of Lansing; The definition of "ordinary high-water mark" (OHWM) in the Inland Lakes & Streams Act (former MCL 281.732(b) and current MCL 324.30101(m)); "Natural"
Court: Michigan Court of Appeals (Published)
Case Name: Burleson v. Department of Envtl. Quality
e-Journal Number: 48798
Judge(s): Meter and Murphy; Dissent – Gleicher

The court agreed with the petitioner that the respondent-DEQ misconstrued MCL 324.32502 in issuing a declaratory ruling that its jurisdiction as set forth in the statute extended to the NOHWM produced by the action of water against the shore. Rather, the court held that the DEQ's jurisdiction extends to the specific elevations stated in the statute. Thus, the court reversed the trial court's order that affirmed the DEQ's declaratory ruling and remanded the case. Petitioner wanted to build a home on land he owns on the shore of Lake Michigan at the Indiana border. The house was to be built at a minimum elevation of 585 feet above sea level, about 150 feet away from the water's edge. Since the property was within a critical dune area, he applied to the DEQ for a permit under NREPA Part 353. However, the DEQ refused to issue the permit, insisting that he also had to obtain a permit under NREPA Part 325, the GLSLA. He argued that MCL 324.32502 did not give the DEQ jurisdiction over the land on which he wished to build. He requested a declaratory ruling from the DEQ to address the shoreline elevation along Lake Michigan that constitutes the limit of its jurisdiction for purposes of MCL 324.32502. The DEQ's declaratory ruling stated that its jurisdiction was based on the NOHWM, which is distinct from the OHWM. The OHWM for Lake Michigan is set by the statute at 579.8 feet of elevation, but the DEQ (citing Glass) ruled that the NOHWM was found at the point where the "presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic." Petitioner appealed to the trial court, arguing that the Legislature expressly limited the DEQ's jurisdiction to lands lakeward of 579.8 feet in elevation. The trial court concluded that the DEQ's interpretation of the statute was more logical than petitioner's proposed interpretation. The court noted that because there was no provision defining NOHWM, statutory interpretation was needed. The parties agreed that the NOHWM constituted the limit of the DEQ's jurisdiction under Part 325, but differed as to the proper interpretation of the phrase. The court held that it could not agree with the DEQ's interpretation, for several reasons. The court concluded, inter alia, that "it strains credulity and common sense to conclude that phrases as similar as" NOHWM and OHWM, used "within the same statutory paragraph, were intended by the Legislature to encompass the very different meanings that" the DEQ set forth. Further, the DEQ's interpretation would pose serious difficulties as to "why the statutory elevations were included in MCL 324.32502 in the first instance." The court also concluded that if the Legislature meant to apply the DEQ's definition to the NOHWM, "it could easily have added language explicitly doing so." The court held Glass did not give it license to apply the DEQ's definition to the NOHWM in this case and the scope of the DEQ's regulatory authority under the GLSLA was not automatically equivalent to the scope of the "public trust." Rather, "the pertinent statutory wording and the legislative history make clear that the scope of" the DEQ's "regulatory authority under the GLSLA should be defined using the listed elevations."

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