5 ELR 20176 | Environmental Law Reporter | copyright © 1975 | All rights reserved
Ray v. Mason County Drain CommissionerNo. 55248 (Mich. January 21, 1975)
The Supreme Court of Michigan unanimously holds that the trial court's findings of fact and conclusions of law in a suit brought under the state Environmental Protection Act fail to meet the requirements of the Act and of the statute governing trial court findings. The court rules that specific and detailed findings of fact at the trial level in environmental cases are crucial to the effective implementation of the Act, and to the law's being able to fulfill those goals for which it was enacted. Under the statutory scheme, plaintiffs who seek to enjoin a proposed project or action on the grounds that it will result in numerous and substantial forms of environmental degradation must make a prima facie showing on this point, which the defendant must then either rebut, or escape by showing, as an affirmative defense, that there is no feasible and prudent alternattive to the project, and that it is consistent with the promotion of the public health, safety and welfare. The trial judge must therefore make detailed factual findings to support his conclusion as to whether plaintiffs have established a prima facie case, and if so, whether defendaants have then either succeeded in rebutting plaintiffs' showing, or successfully asserted the affirmative defense of "no feasible and prudent alternatives." The three-sentence findings of fact and conclusions of law filed by the trialcourt in this suit challenging a stream channelization project fail to meet these requirements, and the case is therefore remanded for further findings, after the Supreme Court rules that de novo review would be inappropriate.
Counsel for Plaintiffs
Robert H. Gillette
Wheeler, Upham, Bryant & Uhl
620 Old Kent Building
Grand Rapids, Mich. 49502
Counsel for Defendant
Chester C. Pierce
Hamtramck, Mich. 48212
[5 ELR 20176]
This is a significant case of first impression relating to Michigan's world-famous Environmental Protection Act (EPA).1 The question involved is the kind of findings of fact required of the trial judge by GCR 1963, 517 and § 3(1) of the EPA in deciding an action brought under the EPA.
In the instant case the trial judge failed to make specific findings of facts. Rather than attempt a review de novo, we remand for full and specific findings of fact under Dauer v. Zabel, 381 Mich 555, 558; 164 NW2d 1 (1969). To assist the trial judge, especially since this is a case of first impression, we set forth considerations and guidelines for proper findings of fact.
In light of the remand order, it is inappropriate to consider the other issues raised on appeal at this time.
I — FACTS
This action was brought by 70 percent of the landowners in the Black Creek Watershed in Mason County and by an additional group of six persons who joined the suit solely with regard to the environmental issues. Plaintiffs-appellants seek to enjoin the Mason County Drain Commissioner, defendant-appellee, from proceding with a channelization program for the watershed and from assessing them for any part of the cost of the project.2 The Black Creek Watershed consists of 6,678 acres of relatively flat land, which was once used primarily for agricultural purposes, but in which today only a small number of the parcels are actively farmed.
The area contains a biologically unique "Quaking forest," swamps and potholes, and scattered, wooded areas which serve as a refuge for a wide variety of wildlife.
The existing system of open drains is inadequate to control flooding which occurs in the springtome and which inundates some 100 acres for period up to three weeks. Apparently, such flooding does not pose health or safety hazards, but does cause some crop damage. In 1960 two farmers requested assistance of the MasonCounty Soil Conservation District in correcting the drainage problem. The District along with the Drain Commissioner applied for federal funds under 16 USC 1001 et seq., a cost-sharing program which makes funds available for flood control.
The Soil Conservation Service, which administers the federal program, reviewed the application and proposed massive modifications and changes in the existing drainage system. The plan, as it ultimately developed, called for widening, deepening, and straightening the present channels. Dredging will result in the accumulation of tons of "spoils" which will be disposed of by heaping it on the banks of the channel reaching from 24 to 30 feet outward from the channel.
Proceedings were conducted under the Michigan Drain Code of 1956, MCLA 280.1 et seq.; MSA 11.1001 et seq. and on July 1, 1965 the Board of Determination of Necessity found that the proposed work plan was unnecessary. However, one year later a second petition was submitted and accepted over the objections of many residents that the cost of the project and the detrimental effect on the environment resulting from the channelization plan should be considered.
In May, 1971 the Drain Commissioner sent out notices that bids would be received on June 17, 1971 and set July 17, 1971 as the date for reviewing individual assessments. Construction began in October, 1971, at a projected cost of $213,990.70, of which $37,000 would be assessed against the individual landowners and consisted initially of preliminary clearing work. Bond issues of $100,000, secured by Mason County, were to go on sale November 18, 1971. On November 17, 1971 the plaintiffs filed suit.
The trial court on August 22, 1972 ruled against the plaintiffs on each of the six counts in the complaint and the Court of Appeals affirmed on July 25, 1973 and we granted leave on December 27, 1973, 391 Mich 753 (1973). We remand for findings of fact, for [5 ELR 20177] without such findings we can in no way consider the merits of this case.
II — INADEQUATE FINDINGS OF FACTS
Count I of plaintiffs' complaint alleged that numerous and substantial forms of environmental degradation would result from the proposed Black Creek Watershed Project. Both sides presented their case on the environmental issues, calling both expert and lay witnesses to testify, as well as introducing many documents, reports and maps into evidence during the trial, which lasted two days.
The trial judge's entire findings of fact on the issues raised and the evidence introduced relating to the environmental questions was restricted to the following language:
"Count I is based upon MCLA 691.1202 (Environmental Protection Act), claiming the proposed project will pollute and destroy the natural resources in the area as well as increase the pollution of the Pere Marquette River and Lake Michigan, downstream from the proposed project. The plaintiffs do not sustain the burden of proof on this issue. In fact, the burden is carried by a great volume of evidence in favor of the defendants and, therefore, Count I is denied." (Emphasis added.)
III — GCR 1963, 517 REQUIREMENTS
The trial judge's conclusory statement relating to plaintiffs' Count I obviously does not comply with the requirements of GCR 1963, 517.1, which reads in pertinent part:
"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the fact specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein." (Emphasis added.)
What is required under GCR 1963, 517 will vary somewhat with the type of case and the nature of the fact questions involved, but at the very least GCR 1963, 517 demands that the court's findings be sufficiently detailed to give an indication of the factual basis for the judge's conclusion. Honigman and Hawkins, respected commentators on Michigan laws of procedure, make the following observations with regard to the requirements of GCR 1963, 517:
"The findings of fact must include as much of the subsidiary facts as is necessary to disclose the steps by which the trial court reached its ultimate conclusion on each factual issue. The findings should be made at a level of specificity which will disclose to the reviewing court the choices made as between competing factual premises at the critical point that controls the ultimate conclusion of fact. That is, at the point where a given choice as to the concrete facts leads inevitably to the ultimate conclusion, the findings should disclose the choice which was made, so that the appellate court may test the validity of its evidentiary support." 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 594.
The trial judge's statement on plaintiffs' Count I merely summarized the plaintiffs' environmental challenges and concluded that the plaintiffs have not met their burden of proof. We are not given any clue as to which facts brought out during the trial led the judge to his ultimate conclusion. Consequently we remand this action to the trial court for more complete and specific findings of facts.
Plaintiffs are correct in asserting that as an alternative to remand this Court could hear the action de novo. However, the more appropriate disposition upon a finding that the trial judge has failed to comply with GCR 1963, 517 is to remand the original record to the trial judge "for preparation and certification of finding of facts."
Dauer v. Zabel, 381 Mich 555, 558; 164 NW2d 1 (1969).
We would be ill-advised to assume the responsibilities charged to the trial judge. As Chief Justice, then Justice, T. M. Kavanagh, in speaking for the Court, said:
". . . this Court is not in as good a position as the trial chancellor to determine what the facts are with respect to conflicting testimony. This Court in numerous cases has so indicated. The trial chancellor heard the witnesses, observed their demeanor on the stand, and was in the best position to determine their cerdibility and to conclude what the facts in the case really were. While this Court tries chancery cases de novo, it gives great weight to the findings of the trier of the facts, particularly where there is conflict in the testimony. This Court should not substitute its judgment for that of the chancellor." Martin v. Arndt, 356 Mich 128, 140; 95 NW2d 858 (1959).
IV — ENVIRONMENTAL PROTECTION ACT
The necessity for remand stems not only from the failureto comply with GCR 1963, 517; the trial judge's conclusory statement does not measure up to the requirements for findings of fact necessary to insure that the EPA fulfills those goals for which it was enacted.
As mentioned previously, standards for acceptable findings of facts will vary somewhat with the nature of the action and the particular type of facts at issue. In order to properly visualize the type of findings of facts required under the EPA, it is important to first have an overview of the purposes and specifications of EPA.
Michigan's Environmental Protection Act marks the Legislature's response to our constitutional commitment to the "conservation and development of the natural resources of the state. . . ."3 Const 1963, art 4, § 52 in its entirety reads:
"Section 52. The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people.The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction," (Emphasis added.)
Michigan's EPA was the first legislation of its kind and has attracted worldwide attention.4 The act also has served as a model for other states in formulating environmental legislation.5 The enactment [5 ELR 20178] of the EPA signals a dramatic change from the practice where the important task of environmental law enforcement was left to administrative agencies without the opportunity for participation by individuals or groups of citizens.6 Not every public agency proved to be diligent and dedicated defenders of the environment.7 The EPA has provided a sizable share of the initiative for environmental law enforcement for that segment of society most directly affected — the public. Daniels v. Allen Industries, 391 Mich 398, 410-411; NW2d (1974).
The Act provides private individuals and other legal entities with standing to maintain actions in the Circuit Courts for declaratory and other equitable relief against anyone "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction." MCLA 691.1202(1); MSA 14.528(202)(1).
The Act also empowers the Circuit Courts to grant "equitable relief or . . . impose conditions on the defendant that are required to protect the air, water and natural resources. . . ." MCLA 691.1204(1); MSA 14.528(204).
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.8 The EPA prohibits pollution, destruction, or impairment of the environment unless it can be shown that "there is no feasible and prudent alternative" and that defendant's conduct "is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources. . . ." MCLA 691.1203; MSA 14.528 (204)(1).
The Legislature in establishing environmental rights set the parameters for the standard of environmental quality but did not attempt to set forth an elaborate scheme of detailed provisions designed to cover every conceivable type of environmental pollution or impairment. Rather the Legislature spoke as precisely as the subject matter permits9 and in its wisdom left to the courts the important task of giving substance to the standard by developing a common law of environmental quality.10 The Act allows the courts to fashion standards in the context of actual problems as they arise in individual cases and to take into consideration changes in technology which the Legislature at the time of the Act's passage could not hope to foresee.
V — FINDINGS OF FACT UNDER THE EPA
The judicial development of a common law of environmental quality, as envisioned by the Legislature, can only take place if Circuit Court judges take care to set out with specificity the factual findings upon which they base their ultimate conclusions. If the Circuit Court judges fail to provide adequate findings of fact, not only will the immediate parties remain in the dark as to why they won or lost, but courts confronted with similar questions in the future will be denied the benefit of other courts' deliberations, those who seek in good faith to comply with the mandate of the EPA will be without a precise standard against which to measure their conduct, and appellate courts will be unable to determine those instances in which the trial judge has failed to carry out the Lwgislature's intent. In the final analysis the very efficacy of the EPA will turn on how well Circuit Court judges meet their responsibility for giving vitality and meaning to the act through detailed findings of fact.
The Act itself offers substantial guidance to trial judges regarding what should be included in the findings of fact for actions under the EPA. Section 3(1) of the act reads:
"When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein, the defendant may rebut the prima facie showing by the submission of evidence to the contrary.The defendant may also show by way of an affirmative defense, that there is no feasible and prudent alternative to defendant's conduct, and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment, or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act."
To satisfy the requirements for findings of fact under the EPA, the trial judge should consider, and where appropriate make, findings of fact with regard to each of the following:
1. How the plaintiff has established a prima facie case that the defendant's conduct "has or is likely to pollute, impair or destroy water, air or other natural resources" or how he has failed to.
2. How defendant has rebutted plaintiff's prima facie case with evidence to the contrary or how he has failed to.
3. How defendant has established as an affirmative defense that "there is no feasible and prudent alternative and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction," or how he has failed to.
A. Prima Facie Case of Pollution
The trial judge must find the facts on which the plaintiff claims to have made a prima facie case under § 3(1), namely that the defendant's conduct "has or is likely to pollute, impair or destroy the air, water or other natural resources." (emphasis added) Such a showing is not restricted to actual environmental degradation but also encompasses probable damage to the environment as well. Obviously, the evidence necessary to constitute a prima facie showing will vary with the nature of the alleged environmental degradation involved. However, the trial judge is not without guidelines for making such a determination. Section 3(1) of the Act provides:
"Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act."
Thus with regard to plaintiffs' burden of establishing a prima facie case general rules of evidence govern. In Gibbons v. Farwell, 63 Mich [5 ELR 20179] 344, 348; 29 NW 855 (1886) this Court characterized a prima facie case as that case sufficient to withstand a motion by the defendant that the judge direct a verdict in the defendant's favor. Black's Law Dictionary defines a prima facie case in the following manner;
"A litigating party is said to have a prima facie case when the evidence in his favor is sufficiently strong for his opponent to be called upon to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side." Black's Dictionary (4th ed), p 1353.
The trial judge in his findings should indicate whether or not the plaintiff has met this burden of establishing a prima facie case, referring to the facts supporting his conclusion.11
B. Rebuttal by Defendant of Plaintiff's prima facie Case
Once the plaintiff has established a prima facie case, the defendant may elect to "rebut the prima facie showing by the submission of evidence to the contrary." If the defendant offers evidence in rebuttal the judge must indicate those facts put in evidence which led him to conclude that the defendant has or has not successfully rebutted plaintiffs' prima facie case.
In determining whether the defendant has successfully rebutted plaintiff's case the trial court should look as § 3(1) of the EPA directs, to the general rules of evidence. In Douglas Shoe Co v. Pere Marquette R. Co, 241 Mich 297, 301; 217 NW 12 (1928), this Court set forth the following principle:
"To recover, the plaintiff must prove it by a preponderance of evidence. The burden of proof never shifts. But the burden of proceeding shifts to the defendants if the plaintiff makes a prima facie case."
Thus, while the burden of proving environmental pollution or impairment remains with the plaintiff, the burden of going forward with the evidence shifts to the defendant once the plaintiff establishes a prima facie case. If the defendant successfully rebuts, the burden of going forward with the evidence would then shift back to the plaintiff.
The nature of the evidence necessary to rebut plaintiff's showing will vary with the type of environmental pollution, impairment or destruction alleged and with the nature and amount of the evidence proffered by the plaintiff. In some cases, no doubt, testimony by expert witnesses may be sufficient to rebut plaintiff's prima facie showing. While in other actions the defendant may find it necessary to bring forward field studies, actual tests, and analyses which support his contention that the environment has not or will not be polluted, impaired or destroyed by his conduct. Such proofs become necessary when the impact upon the environment resulting from defendant's conduct cannot be ascertained with any degree of reasonable certainty absent empirical studies or tests.12 For example, in this case one of defendants' witnesses, a conservation engineer, conceded that without a detailed study of the configurations in the area he could not say how the wetlands were dependent upon the water table and whether they were subject to drying up if the water table were lowered.
C. Feasible and Prudent Alternatives
As an alternative to submitting evidence to rebut plaintiff's prima facie case, "defendant may also show, by way of an affirmative defense that, that there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of the public health, safety and welfare. . . ." If the defendant rather than, or in addition to attempting, to rebut [sic] plaintiff's case seeks to establish an affirmative defense, then the judge must set out those facts which led him to conclude 1) that "feasible and prudent alternatives" do or do not exist and what the claimed alternatives were and 2) that the defendant's conduct is or is not "consistent with the promotion of public health, safety and welfare."
Since the defendant does not appear to have attempted to establish an affirmative defense and since neither the trial judge nor the Court of Appeals has spoken to the issue, this Court will not at the present time consider the matter further.
VI — CONCLUSION
The three-sentence findings of facts and conclusions of law, from our discussion so far, clearly fail to meet either the requirements of GCR 1963, 517 or the EPA. The matter is therefore remanded to the trial court for further findings not inconsistent with this opinion.
Because of the novelty of the matter two further points are made. First, although plaintiffs and defendant were afforded proper opportunity to submit summaries at the conclusion of the trial, in light of our examination of the requirements of GCR 1963, 517 and the EPA, both sides may submit proposed findings of facts and conclusions of law within such reasonable time as the trial court shall prescribe. Second, the attention of the parties and the trial court is directed to the matter in neighboring Emmett County, Irish v. Green, No. 162-3, July 15, 1972. While the opinion is set out in 4 Environment Reporter Cases 1402, that the matter may be more immediately and conveniently available, the opinion is set out in full in the appendix, not in any way approving or disapproving the conclusions therein reached but merely to illustrate the type of detailed findings of fact appropriate to comply with the requirements of GCR 1963, 517 and the EPA.
We vacate the decision of the Court of Appeals and remand the original record to the trial court for preparation and certification of findings of fact conforming with the requirements of GCR 1963, 517, the EPA and this opinion. We do not retain jurisdiction. No costs, public question of first impression being involved.
[5 ELR 20180]
I concur with my brother Williams that the matter should be remanded for findings of fact.
I do not sign his opinion however, in order to make clear the understanding that his generous effort is offered as a suggestion and not a limitation or inhibition on the fact finder.
1. MCLA 691.1201 et seq.; MSA 14.528 (201) et seq. "The Michigan Environmental Protection Act was the first statute to provide for citizen suits to protect the environment from degradation by either public or private entities and to provide a broad scope for court adjudication. The Federal Clean Air Act and Water Pollution Control Amendments, as well as several state statutes, have followed the Michigan Act's lead." Sax & DiMento, Environmental Citizen Suits: Three years Experience Under The Michigan Environmental Protection Act, 4 Ecology LQ 1 (1974).
2. The Appellants seek to enjoin only that portion of the flood control program concerning the channelization of existing drains and not that portion of the plan relating to clearing and improving road drain culverts.
3. Const 1963, art 4, § 52. See State Highway Commission v. Vanderkloot, 392 Mich 159, 178-184; NW2d (1971) (opinion of Williams, J.) for further discussion on the constitutional mandate and the legislative response to the commitment of a cleaner environment.
4. The passage of the Act received worldwide press coverage:
"TIME, 24 August 1970, p 37; New York Times, 3 August 1970, p 36, col 2; Le Courrier (UNESCO), July, 1971, p 20; Proceedings, International Symposium on Environmental Disruption, Tokyo, 1970 (Ashahi Evening News, Tokyo)" Brief Amicus Curiae, p. 3.
Michigan's EPA has also received considerable attention in legal periodicals. An insight into the Act's political background may be found in Watts, Michigan Environmental Protection Act, JL Reform 358 (1970). An analysis of the Act's major provisions is found in Michigan Environmental Protection Act of 1970, 4 JL Reform 121. Two articles have monitored actions brought under the Act since its passage: Sax & Conner, Mighigan's Environmental Protection Act of 1970: A Progress Report, 70 Mich L Rev 1003 (1972); and Sax & Dimento, Environmental Citizen Suits: Three Years Experience Under the Michigan Protection Act, 4 Ecology LQ 1 (1974).
Not every one has viewed the Act with unqualified enthusiasm. An article by Joseph H. Thibodeau, former Legal Advisor to Governor William Milliken, sets out a number of reservations concerning the Act. Thibodeau, Michigan's Environmental Protection Act of 1970: Panacea or Pandora's Box, 48 JL Reform 564 (1971).
5. To date six states have adopted environmental legislation employing language similar to that found in Michigan's EPA:
MINN. STAT. ANN. §§ 116B.01-116B.13 (Supp. 1973); MASS. ANN. LAWS, ch. 214, § 10A (Supp. 1972); CONN. GEN. STAT. ANN. § 22a-14 to 22a-20 (Supp. 1973); S.D. COMP. LAWS ANN. §§ 21-10A-1 to 21-10A-15; FLA. STAT. ANN. § 403.412 (Supp. 1973); IND. ANN. STAT. §§ 13-6-1-1 to 13-6-1-6 (1973) Sax & DiMento, Environmental Citizen Suits: Three Years Experience Under The Michigan Environmental Protection Act, 4 Ecology LQ 1, 2 (1974).
6. Joseph L. Sax, author of the EPA's first draft, portrays this dilemma vividly in his book Defending the Environment (Knopf 1971).
7. For those public agencies committed to protecting our environment, the EPA has proven to be an invaluable weapon in the fight against the degradation of our environment. See Sax & Conners, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 Mich L Rev 1003, 1050-1051 (1972); and Sax & Dimento, Environmental Citizen Suits: Three Years Experience Under the Michigan Environmental Protection Act, 4 Ecology LQ 1 (1974).
8. Joseph L. Sax, author of the EPA's first draft, states that the act allows one "to assert that his right to environmental quality has been violated in much the same way that one has always been able to claim that a property or contract right has been violated." Sax & Conner, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 Mich L Rev 1003, 1005 (1972). See also discussion on this point in State Highway Commission v. Vanderkloot, 392 Mich 159, 184-185; 220 NW2d 416 (1974), opinion of Williams, J.
9. Cf. Osius v. St. Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956).
10. Thomas J. Anderson, one of the legislative sponsors of the EPA underscored this purpose when he said that the EPA should: "permit courts to develop a common law of environmental quality, much as courts have developed a right to privacy." Press Release, Representative Thomas J. Anderson Michigan Passes Landmark Environmental Law, 2 July 1970. Brief Amicus Curiae, p 6. While the language of the statute paints the standard for environmental quality with a rather broad stroke of the brush, the language used is neither illusive nor vague. "Pollution," "impairment" and "destruction" are taken directly from the constitutional provision which sets forth this state's commitment to preserve the quality of our environment. In addition these and other terms used in establishing the standard have acquired meaning in Michigan jurisprudence. The development of a common law of environmental quality under the EPA is no different from the development of the common law in other areas such as nuisance or torts in general, and we see no valid reason to block the evolution of this new area of common law.
11. In an effort to establish a prima facie showing under the Act, the plaintiffs in the instant action produced testimony inter alia from a hydrologist that the water table of the land adjacent to the channel would be lowered as a result of the proposed channelization project. This witness maintained that without proper tests it would be impossible to determine whether the surrounding wetlands were dependent upon the water table such that a lowering of the water table would result in the drying up of wetlands in the area. One of the plaintiffs, a former conservation instructor, described the wetlands, including a biologically unique "quaking forest" which potentially could be destroyed by the proposed project. A zoology professor discussed the desirability of preserving the bogs and marshes in order to maintain a diversified natural area for the wildlife. Residents of the area affected testified the project would remove needed water, destroy woodlands, and disfigure the existing country stream-like channel, leaving mounds of unsightly spoil. Evidence also was introduced suggesting that the project would adversely affect the Pere Marquette River.
In his disposition of the environmental questions raised in this case, the trial judge made no reference to any of these or other proofs. It is impossible to ascertain from his conclusory statement whether he believes the plaintiffs made a prima facie showing or not. This deficiency must be corrected on remand. It should be noted here that defendant concedes on appeal before this Court that "the proofs show clearly that plaintiffs' appellants did make out a prima facie cause for impairment of natural resources under Section 3(1)." Appellee's brief. p. 5.
12. In the instant action the defendant offered in rebuttal to plaintiffs' case the testimony of an agronomist who stated that in his opinion the wetlands would not dry up as a result of the channelization project. However, a conservation engineer who testified for the defendant conceded in a deposition taken by the plaintiffs that absent a detailed study of the soil configurations in the area he could not say whether the wetlands were dependent upon the water table and consequently might dry up if the water table was lowered. Testimony received at the trial and in depositions indicated that no such study of the area had been made.
A wildlife biologist testified for the defendant and maintained that when completed the project might enhance rather than destroy the wildlife habitat. Evidence was received suggesting that the prlject would benefit agricultural output and that spoil dredged from the widening and deepening of the channel would be seeded with grass. Defendant's witnesses also testified that the project would lessen rather than increase the degrading effects of the Black Creek flow into the Pere Marquette River and that the Pere Marquette's flood level would not be adversely affected by the project.
Assuming the plaintiffs made a prima facie showing, the trial judge failed to indicate whether this and other evidence introduced by the defendant was sufficient to constitute a rebuttal of plaintiffs' case. On remand the trial judge should address himself to this issue and set forth the facts supporting his conclusion.
5 ELR 20176 | Environmental Law Reporter | copyright © 1975 | All rights reserved