by Paul J Sniadecki, MLSA Board Director

MLSA has a long history of fulfilling its mission by filing Amicus Curiae Briefs for matters involving riparian rights, lake property issues, and environmental concerns. The board has authorized such “friend of the court” actions when issues of state-wide impact are present, and the Michigan Supreme Court (MSC) has requested input to help decide matters before it.

The past 24 months have seen a flurry of MSC matters that required the filing of numerous amicus briefs on behalf of our members. We report MLSA amicus filings in this newsletter as they occur. What follows is a brief synopsis and status of our actions:

ASTEMBORSKI vs LYLE D. SCOTT TRUST and the YVONNE ELAINE SCOTT TRUST, et al (Michigan Supreme Court No. 164160, brief filed June 3, 2022) This matter involves the Court of Appeals (COA) finding that backlot property owners had an express deed easement to access Higgins Lake. The COA further held that such easement would normally not allow docks and boats. However after some analysis the COA somehow found that the subject back lotters were able to expand their usage rights to include docks and boats via an “express easement by prescription.”  At the same time the COA seemed to recognize the case law that, easements created by plat dedication, cannot be expanded by prescription. Because of this being a “mixed bag” COA decision, MLSA filed the amicus to uphold long-standing case law.

FRASER TOWNSHIP v. HARVEY HANEY and RUTH ANN HANEY (MSC Case No.: 160991, Court of Appeals Case No.337842, Lower Court Case No.16-3272-CH)  MLSA filed an amicus brief in this matter early in 2021. The MSC court decision was issued on February 8, 2022. MLSA filed the amicus because the Court of Appeals had rendered a decision that applied a six year statute of limitations for actions involving local zoning ordinance violations. The MLSA brief argued that no such limitations applied and also emphasized the importance of local zoning to riparian property owners. On February 8, 2022, the Supreme Court sided with Fraser Township and MLSA by overturning the decision of the COA.

LAKESHORE GROUP et al vs. MICHIGAN DEQ/EGLE (Supreme Court No. 159033, Court of Appeals No. 341310, Court of Claims No. 17-000140-MZ)  This matter involves the Michigan Environmental Protection Act (MEPA), specifically part MCL 324.1701 et seq. Lakeshore contends EGLE violated the MEPA when it issued a permit and the court should invalidate that permit. EGLE contends it cannot violate the MEPA by issuing a permit, and should not be subject to court review. Because MLSA believes in the importance of MEPA protections, and because the MSC invited briefs, we voted on December 15, 2021 to file an amicus. MLSA was joined by at least five other state-wide organizations submitting briefs in March 2022 to advise the court on this important issue. Oral argument occurred on April 6, 2022. By order dated July 28, 2022, the MSC narrowly denied the appeal by Lakeshore stating, “…application (to appeal) is again considered and denied because we do not believe the questions presented should be reviewed by this court…” In this 4-3 decision, MSC Justices Welch, McCormack, and Cavanagh filed a detailed 7 page dissent clearly outlining many factual errors made by the slim majority. The dissent is worth reading in that it outlines the history and impact of the MEPA for protecting natural resources. Perhaps the dissent’s position can be best summed up when it says, “…if the Legislature intended to insulate state permitting decisions from lawsuits brought under the MEPA, then surely it would have done so expressly…”

As always, none of our interventions are possible without the support of our many Lake Association, Corporate, and Individual members who contribute their annual dues that help fund our vigilance. We hope you will continue to support MLSA and our continuing efforts on your behalf.

Meeting with MEC and EGLE Water Resources Division
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