Organic Growers of Michigan v. Michigan Department of Agriculture

No. 78-21764-CE (Mich. Cir. Ct. January 23, 1980)

The court grants an award of attorney fees under the Michigan Environmental Protection Act (MEPA) to plaintiffs who won a preliminary injunction against Gypsy Moth spraying programs in 1978 and 1979. Section 3(3) of MEPA does not limit a fees award to the prevailing party. the court emphasizes, but instead envisions the granting of such awards to parties that have borne the expense of litigation and in so doing have performed a valuable public service. Concluding that plaintiffs have performed such a service in this case and that the interests of justice require a reasonable apportionment of fees between the parties, the court awards fees and costs to plaintiffs in the amount of $10,189.27.

Counsel for Plaintiffs
James M. Olson, William T. Ristetter
129 S. Union St., Traverse City MI 49684
(616) 947-6515

Counsel for Defendants
Robert J. Taube, Henry J. Boynton, Ass't Attorneys General
770 Law Bldg., Lansing MI 48913
(517) 373-1110

[10 ELR 20273]

Hotchkiss, J.:

Opinion and Order

The Court, having reviewed the file and memoranda submitted by counsel, and having heard oral argument in open court, is of the opinion that Plaintiffs' Motion for Apportionment of Attorney Fees and Costs to Plaintiffs be granted.

Plaintiffs originally brought suit against defendants on May 26, 1978, and alleged that the proposed 1978 Gypsy Moth Program violated several federal and state environmental laws including the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 121-136y, as amended, and the Michigan Environmental Protection Act, MCLA [MICH. COMP. LAWS ANN.] § 691.1203(1). Plaintiffs alleged the same environmental violations with respect to the proposed 1979 Gypsy Moth Program. A preliminary injunction pendente lite was issued by this Court on July 14, 1978, which Order replaced an earlier temporary restraining order. the temporary injunction restrained and enjoined defendants from spraying DIMILIN W-25 in the areas designated by the proposed 1978 Gypsy Moth Program. The temporary injunction was modified on May 11, 1979 with respect to the proposed 1979 Gypsy Moth Program to permit a limited use of DIMILIN W-25. This Court has at all times retained jurisdiction, and the preliminary injunction pendente lite remains in full force and effect.

Plaintiffs seek an award of costs and attorney fees pursuant to § 3(3) of MEPA, which provides that "costs may be apportioned to the parties if the interests of justice require." MCLA [MICH. COMP. LAWS ANN.] § 691.1203(3). MEPA has, therefore, specifically carved out an exception tof the preclusion of an award of costs and attorney fees in matters involving a public question. City of Berkley v. Holmes, 34 Mich. App. 417 (1971). Although the award of costs and fees is within the broad and unfettered discretion of the trial judge, that discretion must be "recognized and exercised." Taxpayers & Citizens in the Public Interest v. Dep's of State Hwys., 70 Mich. App. 385, 387 [7 ELR 20075] (1976).

Defendants contend that they voluntarily abandoned the proposed 1978 Gypsy Moth spraying program, and that when considered in conjunction with this Court's denial of Plaintiffs' Motion for Summary Judgment, plaintiffs are not entitled to an apportionment of costs and fees. It is essential to point out that § 3(3) of MEPA is not a "winner's" award to the prevailing party, but rather an appropriate remuneration for a plaintiff that has borne the expense of performing a "valuable public service." Taxpayers, supra, at 338. Plaintiffs filed suit against defendants in 1978. No spraying of DIMILIN W-25 by DNR took place in 1978, and a preliminary injunction pendente lite was issued. The proposed 1979 Gypsy Moth Program was modified by this Court so as to permit limited spraying of DIMILIN W-25. The preliminary injunction pendente lite remains in effect. Plaintiffs have borne substantial expense in the clear performance of a "valuable public service." Herein, the interests of justice require a reasonable apportionment of costs between plaintiffs and defendants.

NOW, THEREFORE;

IT IS ORDERED that Plaintiffs' Motion for Apportionment of Attorney Fees and Costs to Plaintiffs be, and the same is hereby, granted.

IT IS FURTHER ORDERED that costs and reasonable attorney fees be, and the same is hereby, awarded Plaintiffs in the sum of Ten Thousand One Hundred and Eighty-nine dollars and twenty-seven cents ($10,189.27).