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Superior Pub. Rights v. Department of Natural Resources

Citation: 8 ELR 20382
No. No. 28293, 263 N.W.2d 290/80 Mich. App. 72, (Mich. Ct. App., 12/05/1977) Aff'd

The court upholds a lower court's validation of agreements permitting the private use of public trust lands for railroad facilities and an electric power generating project. The Michigan Department of Natural Resources (DNR) issued to defendant railroad a permit to use more than 40 acres of public trust lake bottomland for docks and coal unloading facilities, pursuant to the Great Lakes Submerged Lands Act. In addition, a power company was granted an easement over submerged public trust land for a project to expand its power generating capacity. A public hearing is not the appropriate vehicle for citizens to protect their property rights in public trust lands; rather, they must rely on their governmental representatives to protect those interests. Secondly, the court finds no conflict between the standards in the Act for allowing private use of public trust lands and the common law public trust doctrine. Under each authority the state may dispose of parcels of public trust lands, provided that such disposition does not impair the lands that remain. Thirdly, the court rejects plaintiff's argument that DNR must expressly find that every private use of public trust lands is in itself beneficial to the public interest before authorizing such use. The legislature did not intend to impose a "public interest" test additional to those already enumerated in the statute. DNR weighed sufficient evidence in granting the applications for private use, and the consideration it gave that evidence was in accord with the Act. The case is remanded to the trial court, however, because it incorrectly ruled that the Michigan Environmental Protection Act does not authorize an award of attorney fees, and must now determine whether the "interests of justice" require that fees and costs be apportioned.

Counsel for Plaintiff
Peter W. Steketee
505 People's Bldg., 60 Monroe Ave. NW, Grand Rapids MI 49502
(616) 451-8341

James M. Olson, Louis A. Smith, Dean A. Robb
Olson, Dettmer & Bowerman
520 S. Union St., Traverse City MI 49684
(616) 947-2912

Counsel for Defendants
Richard B. Foster, Webb A. Smith
Foster, Lindemer, Swift & Collins
Suite 1 Plaza I, 401 S. Washington Sq., Lansing MI 48933
(517) 372-8050

Roger T. Ederer
Snyder, Loomis, Ewert, Ederer & Parsely
1200 Bank of Lansing Bldg., Lansing MI 48933
(517) 489-5724

Walter L. Hansen, Douglas B. Vielmetti
Clancey, Hansen & Vielmetti
Peninsula Bank Bldg., Ishpeming MI 49849
(906) 486-9981

Curtis G. Back, Ass't Attorney General; Frank J. Kelley, Attorney General; Robert A. Derengoski, Solicitor General
Department of Attorney General
525 W. Ottawa, Lansing MI 48913
(517) 373-1110

Before J. H. GILLIS, P.J., and BASHARA and HEADING,* JJ.