If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DAVID KRIEGER, ANDREW KRIEGER, JAMES 

SPERLING, and MARGARET SPERLING, on 

Behalf of Themselves and All Others Similarly 

Situated,

Plaintiffs-Appellees,

FOR PUBLICATION

September 7, 2023

9:05 a.m.

v No. 359895

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000094-MM

Defendants-Appellants.

THOMAS HOLLEY, KATHERINE HOLLEY, 

MONTY WISEMAN, JILL WISEMAN, THOMAS 

DECOE, MICHELLE DECOE, ROBERT 

MISHLER, JR, and SUSAN MISHLER, on Behalf 

of Themselves and All Others Similarly Situated,

Plaintiffs-Appellees,

v No. 359896

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000102-MM

Defendants-Appellants.

CHRISTOPHER FORBES and LAURA FORBES, 

on Behalf of Themselves and All Others Similarly 

Situated,
-2-

Plaintiffs-Appellees,

v No. 359897

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY,

LC No. 20-000103-MM

Defendant-Appellant.

PAMELA FAGAN, NICOLE KRAMER, and 

SANDFORD HARDWARE 1, LLC, on Behalf of 

Themselves and All Others Similarly Situated,

Plaintiffs-Appellees,

v No. 359898

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000111-MM

Defendants-Appellants.

CARL SWARTHOUT, on Behalf of Himself and All 

Others Similarly Situated,

Plaintiff-Appellee,

v No. 359899

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000112-MZ

Defendants-Appellants.

ROBERT WOODS and HOLLY JOHNSON, on 

Behalf of Themselves and All Others Similarly 

Situated,

Plaintiffs-Appellees,

v No. 359900
-3-

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000116-MM

Defendants-Appellants,

and

ATTORNEY GENERAL,

Defendant,

and

CITY OF SAGINAW,

Other Party,

and

AUTO-OWNERS INSURANCE COMPANY,

Intervening Plaintiff-Appellee.

JOE BRUNEAU, DAVID PHILLIPS, DANA 

RALKO, PATTY RALKO, MARY RANDALL, 

OSRO RANDALL, JAMES MRDUTT, and ALICIA 

MRDUTT, on Behalf of Themselves and All Others 

Similarly Situated,

Plaintiffs-Appellees,

v No. 359901

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000118-MM

Defendants-Appellants.

THOMAS BORCHARD, CHARLES BORCHARD, 

DENNIS BORCHARD, SALLY BRADLEY, 

CHRISTOPHER ICE, CDI CONSTRUCTION 
-4-

GROUP, INC, TOM MCCANN FAMILY, LLC, 

JOHN MADDENS, TYLIA MADDENS, BRIAN 

PARENT, SHASTA PARENT, BARBARA 

STEVENS, TROY VALLEY, LAUREN VALLEY, 

and ROBERT EMMET WITT REVOCABLE 

LIVING TRUST,

Plaintiffs-Appellees,

v No. 359902

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

LC No. 20-000121-MM

Defendants-Appellants.

PATRICK T. WORTLEY, doing business as 

CRAWFORD INSURANCE AGENCY, KRYSTEIN 

GILLETTE, JOSHUA GILLETTE, MATT 

MCQUAID, MCQUAID MASONRY, LLC, 

STEPHANIE O’DELL, MIKE ROBERSON, 

RONALD ROENICKE, SANFORD CHAMBER OF 

COMMERCE, SCOTT HARRIS, doing business as 

SCOTT HARRIS BUILDER, CAROL SIEG, and 

KENNETH SIEG,

Plaintiffs-Appellees,

v No. 359903

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000140-MM

Defendants-Appellants.

DARYL ZELENAK, SUZETTE GAY-ZELENAK, 

MIKE CALLAN, and REGAN WEILAND, on 

Behalf of Themselves and All Others Similarly 

Situated,

Plaintiffs-Appellees,
-5-

v No. 359904

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000151-MM

Defendants-Appellants.

PLEASANT BEACH MOBILE HOME RESORT, 

LLC, CAROL CLARKSON, DAVE CLARKSON, 

BRIAN MATTHIAS, PATRICK PANGLE, 

PATRICIA PANGLE, JARED NICKEL, MID 

MICHIGAN PRESSURE CLEANING, LLC, MID 

MICHIGAN WINDOW CLEANING & POWER 

WASHING, LLC, doing business as MID 

MICHIGAN CARPET CLEANING, JULIE VAN 

AMEYDE, JOHN SMILNAK, RANDALL MIER, 

and KIM MIER, on Behalf of Themselves and All 

Others Similarly Situated,

Plaintiffs-Appellees,

v No. 359905

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000156-MM

Defendants-Appellants.

PAUL CODER, JASON DERUS, KURT FAUST, 

REBECCA FAUST, CARL STEVEN KOCKS, 

LISA KOCKS, ROBERT MUSSELL, JOY 

MUSSELL, ROSS NOEL, KAREN NOEL, 

WAYNE SHANDS, CAROL SHANDS, DENICE 

TRUELOVE, LUKE DINNAN, JILL DINNAN, 

MICHELL LAFOND, RYAN RICHMOND, 

SARAH RICHMOND, JOHN DOWGIALLO, and 

SANDRA DOWGIALLO,

Plaintiffs-Appellees,

v No. 359906

Court of Claims
-6-

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

LC No. 20-000230-MM

Defendants-Appellants.

TINA REINIG, GLORIA GROVER, MARY MAY, 

RAUL VELASCO, RICHARD WOLF, RONALD 

KIPFMILLER, MARK LICKTEIG, SHANE 

NICKERSON, TERRY VISNAW, KARIE 

DINGMAN, JOSEPH KRUEGER, CLEORIA

FRENCH, LAWRENCE DUREK, JARED 

BRUNER, LORI FEINAUER, MARQUETTA 

MAXWELL, TEAL SAYLOR, JODY ROGERS 

RODRIGUEZ, TERRA DESHIELDS, JAMES 

SMAZENKA, WADE WHITE, THOMAS 

SHEPHERD, MELISSA WINCHELL, JUDY 

KOEPPLINGER, JORDAN EDWARDS, JERRY 

VESPRINI, CINDY LONG, TIMOTHY APPLE, 

STEVE WHITE, LYN KNAPP, WILLIAM 

VASICEK, MICHAEL LANDON, LINDA 

CHARTRAND, MERLE LEMAIRE, MARY 

WEILAND, LAWRENCE JURLOWSKI, JOHN 

MONROE, JAMES PLATKO, JAMES 

BRASSEUR, DAN ABBE, DENZEL MARTIN, 

GAIL HAK, KEVIN STOKES, JAMES 

MCGUINNESS, RUSSELL KLEINHANS, 

JENNIFER HOUTRIDES, JEFFREY ESCKILSEN, 

ARTHUR KICKLAND, WILSON GUM, DIANA 

WILSON, RUTH FRANKLIN, TIMOTHY BELL, 

ALENE MCCOY, BHARATI SHARMA, BILL 

DEHAAN, ROBERT ORRYS, HOWARD 

LOGSDON, JAROD SCHALK, LEE SHELDON, 

ELMER LAPERE, WILLIAM PRECZEWSKI, 

LEONARD WILLIS, TIM HAKES, KATHY 

PARRENT, JOSEPH KOZLOWSKI, BARBARA 

MCLEAN, DAWN GLESNER, KEVIN GREEN, 

PHILLIP MAXWELL, HELEN JOHNSON, JANE 

DARBY, RITA KRAWIEC, TERRY THOMPSON, 

SIGNEY CASE, DAVID BURKHART, PAUL 

IDZIKOWSKI, JUDITH MARSH, BART JONES, 

SUGENDRINI PONNAMPALAM, ANN 

LAZZARO, DOUGLAS ARNOLD, WILLIAM 

DURAND, DINO VESPRINI, LANCE COOK, 

KELSEY FINNEY, JEFFREY GREEN, TRACY 
-7-

SCHOLTZ, ASA MAY, JANET GUILLIFORD, 

MARY HUNTLEY, LYLE BINIECKI, MARK 

BURCH, ROBIN ODELL, PATRICIA PUNG, 

JOHN LUESING, ROBERT MATHIS, DENISE 

BOMAN, ROBERT HOFFMAN, BARBARA 

SCHOMER, LAWRENCE PIOTROWSKI, 

DEBORA MEYER, TODD MUNGER, EVELYN 

DARK, DONNA LEE ATHERTON, STEVEN 

PARKHURST, LARRY GRELL, LOREN 

WALDIE, PATRICIA LAWRENCE, FRANK 

HEAD, BRIAN DANKERT, MARIA URSUY, 

JAMES FORST, STEVEN MILLS, RONALD 

BOWMAN, KAREN SANDERS, KEITH POPOUR, 

DWAYNE DRYS, ROY CURLEY, GLORIA 

TAYLOR, RODNEY FROST, CHARLES 

WALKER, MARJORIE MCFARLANE, JACK 

KELLY, JANET STOIKE, VALERIE WALTERS, 

SHEILA CASE, CHRIS WAGNER, CHARLES 

BIRDEN, JAMES SIMON, ROBERT MCMANUS, 

BARBARA WARNER, CURT SEITZ, TIMOTHY 

PENNINGTON, PETRINA RICE, AMY 

SCHNEIDER, ROBERT BUNKER, SHARON 

PARKER, ROBERT MASON, BARBARA 

LOOMIS, KIMBERLY POHL, WAYNE 

MITCHELL, JAMES BRUBAKER, CAROL 

YOUNGBLOOD, ROBERT YOUNGBLOOD, 

EMILY SIMBECK, BRUCE RICH, DAVID 

ALEXANDER, EDITH MASON-MEAD, 

GORDON HUCKINS, LESLIE TRELFA, 

RICHARD WARE, KENNETH MADISON, 

ANDREA ZOMERFELD, DONNA SZYMANSKI, 

JILL COUCH, SANDRA HEWITT, RONALD 

SCHWENN, CYNTHIA PACKARD, SUSAN 

KLICH, PRICILLA COREY, MARK 

TRANCYGIER, JOHN J. FREHLING, RAYMOND 

DARABOS, JOHN E. FREHLING, BRIAN 

COONS, JAMES BLIMKA, HARRY NOWACKI, 

GREG PAXTON, RALPH BURKE, CHRIS 

TORBET, BETTY ATHEY, CHAD CHANDLER, 

JANET KNAPP, RUSSELL JINKS, RANDY 

ZDENEK, DIANE DYMCZYK, MICHELLE 

DOEDE, JENNA POST, CRAIG KULESZA, 

GORDON BIRKMEIER, PATRICIA BIRKMEIER, 

GARY NORTH, JOHN JUCIUS, CATHY 

SCHILINSKI, ROBERT FRANKS, TIM WESSON, 

JOHN MONTGOMERY, CHARLES STEFFEY, 
-8-

SANDRA BURNHAM, CHRISTENE HILL, R. 

DEAN COOPER, RUTH ANN BAZZANI, DAVID 

CHARBONNEAU, YVONNE MARTIN, 

ANTHONY PIWOWARSKI, IRENE 

PIWOWARSKI, THOMAS STADLER, MARTIN 

BONNER, SHAWN INGLES, MARK MARTIN, 

and ARTHUR DUBAY,

Plaintiffs-Appellees,

v No. 359907

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000232-MZ

Defendants-Appellants.

DONALD TURSKEY, TERESA TURSKEY, ERIC 

TURNQUIST, KURT STANLEY, JASON 

PARSONS, TINA PARSONS, KATHLEEN 

CHORBAGIAN, MARK CHORBAGIAN, JOSEPH 

UHELSKI, BECKY UHELSKI, DUANE 

WHITMAN, BRENDA WHITMAN, JEFFREY 

KRIEBEL, BROOKE KRIEBEL, JAMES

RODGERS, MARY RODGERS, CHRIS MILLER, 

TERRY MILLER, REX CLARK, and NANCY 

CLARK,

Plaintiffs-Appellees,

v No. 359908

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY,

LC No. 20-000233-MM

Defendant-Appellant,

and

MARIO FUSCO and LUKE TRUMBLE,

Defendants.
-9-

BOB BEAUCHAMP, DEBBIE BEAUCHAMP, 

WILLIAM BOYD, GLENDA BOYD, JOYCE 

BREWSTER, JEFFREY BRUSHABER, JENNIFER 

BRUSHABER, SHARON CAMPBELL, PAUL 

CLARK, MARK DOTY, BARBARA DOTY, 

ELEANOR GURICH, THOMAS HERBER, 

NATALIE HERBER, DOUG JANES, PAM JANES, 

TRENTON JOSLIN, ASHLEY JOSLIN, MICHAEL 

PETTYES, LISA PETTYES, GERALD 

PSCHOLKA, SANDRA PSCHOLKA, CHARLES 

REESE, JOYCE RELITZ, BRIAN TALKINGTON, 

TINA TALKINGTON, JEFFREY TIMMONS, LISA 

TIMMONS, ROBB WEBBER, ANITA WEBBER, 

JOHN WILLING, ROBERT DALE, TINA DALE, 

THEODORE YANKO, and NANCY YANKO,

Plaintiffs-Appellees,

v No. 359909

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY,

LC No. 20-000235-MM

Defendant-Appellant.

AFFILIATED FM INSURANCE COMPANY, 

ALTMAN MANAGEMENT, LLC, AMERICAN 

GUARANTEE & LIABILITY INSURANCE 

COMPANY, AXIS SURPLUS INSURANCE 

COMPANY, CITIZENS INSURANCE COMPANY 

OF AMERICA, CITIZENS INSURANCE 

COMPANY OF MIDWEST, CONIFER 

INSURANCE COMPANY, ESSENTIA 

INSURANCE COMPANY, FACTORY MUTUAL 

INSURANCE COMPANY, FARM BUREAU 

GENERAL INSURANCE COMPANY OF 

MICHIGAN, FLORIST MUTUAL INSURANCE 

COMPANY HORTICA, HASTINGS MUTUAL 

INSURANCE, and HOUSTON CASUALTY 

COMPANY UK BRANCH SUBSCRIBING TO 

UMR REF NO. B128417631W20, Subrogee of 

DOLLAR GENERAL CORPORATION, and 

INDEPENDENT SPECIALTY INSURANCE 

COMPANY, Subrogee of ALTMAN 

MANAGEMENT, LLC, and INDIAN HARBOR 
-10-

INSURANCE COMPANY, INTERSTATE FIRE & 

CASUALTY COMPANY, Subrogee of ALTMAN 

MANAGEMENT, LLC, and LEXINGTON 

INSURANCE COMPANY, MEEMIC 

INSURANCE, NATIONAL FIRE & MARINE 

INSURANCE, PIONEER MUTUAL INSURANCE 

COMPANY, PRINCETON EXCESS AND 

SURPLUS LINES INSURANCE COMPANY, 

TELEPHONE & DATA SYSTEMS, INC., 

TRISURA SPECIALTY INSURANCE COMPANY, 

ZURICH AMERICAN INSURANCE COMPANY, 

and CERTAIN UNDERWRITERS AT LLOYD’S 

LONDON SUBSCRIBING TO POLICY NO. VPCCN0000010-05, Subrogee of NICHOLAS CHAD, 

and CERTAIN UNDERWRITERS AT LLOYD’S 

LONDON SUBSCRIBING TO POLICY NO. 

NCIP648136-2019, Subrogee of MATTHEW 

GEHREHKE, and CERTAIN UNDERWRITERS 

AT LLOYD’S LONDON SUBSCRIBING TO 

POLICY NO. NCIP407517-2019, Subrogee of 

JOSEPH HARRIS, and CERTAIN

UNDERWRITERS AT LLOYD’S LONDON 

SUBSCRIBING TO POLICY NO. NCIP660734-

2019, Subrogee of TIM HUVER, and CERTAIN 

UNDERWRITERS AT LLOYD’S LONDON 

SUBSCRIBING TO POLICY NO. NCIP750302, 

Subrogee of LISA KABAT, and CERTAIN 

UNDERWRITERS AT LLOYD’S LONDON 

SUBSCRIBING TO POLICY NO NCIP823658, 

Subrogee of JAMES LYNCH and ASHLEY 

LYNCH, and CERTAIN UNDERWRITERS AT 

LLOYD’S LONDON SUBSCRIBING TO POLICY 

NO. NCIP807996-2020, Subrogee of CHARLES 

MICHAEL, and CERTAIN UNDERWRITERS AT 

LLOYD’S LONDON SUBSCRIBING TO POLICY 

NO. NCIP00631003, Subrogee of MEGAN 

MICHAELS and JACOB MICHAELS, and 

CERTAIN UNDERWRITERS AT LLOYD’S 

LONDON SUBSCRIBING TO POLICY NO. 

844682-2020, Subrogee of JODY NEIMAN, and

CERTAIN UNDERWRITERS AT LLOYD’S 

LONDON SUBSCRIBING TO POLICY NO. 

NCIP878669, Subrogee of LARRY PARSONS, and 

CERTAIN UNDERWRITERS AT LLOYD’S

LONDON SUBSCRIBING TO POLICY NO. 

NCIP303385-2020, Subrogee of DANIEL 
-11-

REAUME, and CERTAIN UNDERWRITERS AT 

LLOYD’S LONDON SUBSCRIBING TO POLICY 

NO. NCIP576330-2019, Subrogee of MARK 

SPRAGUE, and CERTAIN UNDERWRITERS AT 

LLOYD’S LONDON SUBSCRIBING TO POLICY 

NO. NCIP616384, Subrogee of JASON THOMAS, 

and CERTAIN UNDERWRITERS AT LLOYD’S 

LONDON SUBSCRIBING TO POLICY NO. 

DNAPF006484-00, Subrogee of TRI-CITY EQUITY 

GROUP, LLC,

Plaintiffs-Appellees,

v No. 359910

Court of Claims

DEPARTMENT OF NATURAL RESOURCES and 

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY,

LC No. 20-000236-MM

Defendants-Appellants,

and

ATTORNEY GENERAL,

Defendant.

BRIAN BAILEY, KENDRICK BELCHER, 

JENNIFER BELCHER, STEPHEN BLOOD, 

JOYCE LONG, NATHAN BROOKS, KRISTEN 

BROOKS, WARD COMER, PATRICIA COMER 

TODD DENNIS, MARK GAHRY, YVONNE 

GAHRY, JOHN GRAPPIN, GLORIA GRAPIPN, 

SCOTT GRATOPP, DANNEILLE GRATOPP, 

SECOND LAKE MARINA, ROBERT GRATOPP, 

SCOTT GRATOPP, CARY GREZESZAK, 

TAMARA GREZESZAK, JOYCE GREZESZAK, 

SCOTT HADDON, ERIKA HADDON, MICHAEL 

JASINSKI, MARY JASINSKI, NANCY LASKEY, 

EARL LEWIS, RITA LEWIS, RANDY LONG, 

DIANE LONG, ROBERT LONG, BRENDA LONG, 

DARWIN MAGNUS, DIANE MAGNUS, 

GREGORY MULCAHY, COLLEEN MULCAHY, 

GORDON NICHOLS, KINDRA NICHOLS, 

JACQUELINE OWENS, LEONARD OZERAJTYS, 
-12-

SHAWN OZERAJTYS, JOHN RAHN, MARY 

BETH FERGUSON-RAHNM, TRINA REIF, 

Beneficiary of the CLARK TRUST, COREY 

ROBINSON, CHAD TOMS, Trustee of the TOMS 

FAMILY TRUST, DAWN TOMS, DANIEL 

TURLEY, AMY TURLEY, NICHOLAS 

UNSWORTH, VANESSA UNSWORTH, SCOTT 

WINTERLEE, TERRI WINTERLEE, MELISSA 

DAWES, GEORGE WISKUP, and JULIE WISKUP,

Plaintiffs-Appellees,

v No. 359911

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY,

LC No. 20-000237-MM

Defendant-Appellant.

EDWARD BERKOBIEN, CAITLYN LAPLOW, 

ARMANDO RAMOS, RANDY R. RICE, JAMES 

ANTAL, AMY BLAKE, EUGENE BECKHAM, 

MADELINE BERKOBIEN, CATERA

CAMPBELL, TIMOTHY CRAWFORD, 

GERALYN DUST, JILL HOGENSON, KYNAN 

FOERSTER, RACHEL GUENTENSBERGER, 

MARC HILDERBRANDT, JILL HOGENSON, 

JUSTIN LAPLOW, CHADWICK LAROEQUE, 

MICHELLE OSTAHOWSKI, ARMANDO 

RAMOS, WILLIAM CHARLES REESE, RANDY 

R. RICE, NORMAN ROSENBROEK, NICOLE 

ROUSSEAU, CHARLES SCHOENMEYER, 

WALLY SLEEPER, KLAUS SOMMER, LAURA 

SWETT, HENRY THOMPSON, ROBERT 

TWEDDLE, LAWRENCE VERGA III, CINDY 

VERONESI, KRISTA WALTZ, BETH 

WOODCOCK, DAVID WOODWARD, and DAVID 

ZAHN,

Plaintiffs-Appellees,

v No. 359912

Court of Claims
-13-

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000239-MM

Defendants-Appellants.

ANDREA JAMROG,

Plaintiff-Appellee,

v No. 359913

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000240-MZ

Defendants-Appellants.

MICHAEL ADAMS, THOMAS DECOE, 

KATHERINE HOLLEY, JILL WISEMAN, 

DARLENE ADOLPH, ROSARIO AGNELLO, 

KELLY AIKEN, ERIC ALARIE, KIM AMBS, 

FRANK ANDERA, PATRICIA ATHEY, KAREN 

AVERY, MADELINE AYERS, REX BADDER, 

RANDOLPH BAUMGARTER, KELLY BEARD, 

COLLEEN BEAUDOING, LAURA BECKER, 

JOHN BENCI, THOMAS JOHN BENDER, 

CAROLYN BENKO, RENEE BERGER, DALE 

BISCHER, STUART BLOOMFIELD, DAVID 

BLUMLO, THOMAS BOEHM, RENITA 

BONADIES, BRENT BONNER, CASEY BOOTH, 

BARBARA BORN, PAUL BOURGEAU, DONALD 

BOYER, DONALD BRADLEY, SCOTT BRADY, 

JOHN BRANDON, DAVID BREASBOIS, 

RHONDA BRECKON, CRAIG BREWSTER, SR., 

JAMES BRICAULT, DOROTHY BRISTER, 

COLEEN BROOKS, JENNIFER BROWN, NANCY 

BROWN, MARSHA BRUBAKER, MICHAEL 

BRUNS, MALCOLM BRYANT, MICHAEL 

BUDA, JENNIFER BURNS, JOSHUA BURNS, 

LARRY BUTCHER, RUTH ANN BUTLER, 

SHANNYN CALDWELL, ROBIN CAMPBELL, 

CARLOS CAMPBELL, DIABENESE CAMPBELL, 

RICHARD CAMPBELL, VIRGINIA CAMPBELL, 
-14-

ROBIN CAMPBELL, RONNIE CARSON, 

MATTHEW CAY, JUDY CHASTAIN, CHRIST 

CHRISTODOLU, DONALD CIANEK, JOHN 

CIKALO, RODNEY CLARE, JEFFREY CLARK, 

RYAN CLARK, WILLIAM CLARK, TAMARA 

CLARK-MOORE, SHERRY CLEMONS, LINDA 

CLEVER, LARRY CLIPPER, LINDSAY 

COCHRAN, KRISTIE COCKING, CHARLES

COLLEY, DREW COLLINS, DARIN CORBAT, 

CATHERINE COX, JUDITH COX, RUSSELL 

CRAIG, LINDA CRISWELL, CHARLES 

CUTCHER, SALOMEY DARABOS, PAULINE 

DAVIS, KELLY DAY, MICHELLE DECOE, ELLA 

DELDUCA, MARSHA DEMARS, VERA DICE, 

HAROLD DICKERSON, ARTHUR DIETRICH, 

GREGORY DOMAGALSKI, ROGER 

DOMINOWSKI, TRULY DOMINOWSKI, 

PATRICK DOUGLAS, SUZANNE DOWNEY, 

DONALD DRAYTON, ARTHUR DUBAY, 

ANTOINETTE DUNIKOWSKI, THOMAS 

DYMORA, JUDY EICHMAN, DAVID ENGWIS, 

PHILLIP ERWAY, CHARLES ERWELL, CATHY 

FARRAND, MICHILLE FEDERER, CHARLES 

FERGREUS, DIANE FEJEDELEM, GERTRUDE 

FERNETTE, MARCELLA FERRIGAN, TYLER 

FINNEY, RICHARD FIX, FLATS 

CONDOMINIUM CAMPGROUND, SANDRA 

FLATT, SUE FLATTERY, DANIEL FLUM, 

KATHLEEN FOGUS, KIM FOURNIER, 

GREGORY FOYE, TERESA FRIEDLE, JAMES 

FROST, SUE FRY, SCOTT FULLER, DANIEL

GADWELL, RICHARD GAFT, LOIS 

GALLIMORE, DAVID GALLT, KEVIN 

GARTUNG, BARBARA GARZA, VERNON 

GEHRLS, JOEL GERENDASY, DAVID 

GERMAIN, FRANK GIANNATTASIO, JEFFREY 

GIBSON, SUSAN GOULETTE, NINA GRAHAM, 

KRISTY GRAPPIN, DONALD GRAVES, 

HAROLD GREBLO, JACOB GREEN, WINONDA 

GREEN, EARL B. GREGORY, PETER 

GREGORY, CHERYL GRIFFIN, PATTI GRUZIN, 

ELIZABETH HACKWORTH, SHANE HADOUS, 

JEFFREY HANH, AMY HAINES, KAREN 

HAMILTON, THOMAS HAMMOND, ROXANNE 

HARLESS, KIMBERLY HARTMAN, LANDRA 

HARTMAN, ELIZABETH HARTWICK, CINDY 
-15-

HEDRICH, THOMAS HELDT, KENNETH HELM, 

CHERYL HILBRANDT, RONDALD 

HILBRANDT, ANN HILGENDORF, DOUGLAS 

HILL, GAIL HINKLEY, BRIAN HOCK, LISA 

HOFFERT, THOMAS HOHENSEE, THOMAS 

HOLLEY, RICHARD HOSFORD, BOBBIE 

HOSKINS, TABITHA HOSKINS, NORMA 

HOWE, DONNA HRYNEZUK, CASH HUBBARD, 

BARBARA HUCKINS, HOWARD HUGHES, 

CLYDE HULLETT, ROBERT HUNTOON, 

LANCE IRELAND, CHARLES IRELAND II, 

LYNN IRISH, KATHY JERRY, JOSEPH 

JESSELAITIS, RICHARD JODTS, BARBARA 

JOHNSON, JENNIFER JOHNSON, ROBERT 

JOHNSON, SYLVIA JORDAN, AGNES KADLEE, 

CAROL KAWECK, CYNTHIA KEHOE, 

KIMBERLY KELLOGG, MICHAEL J. KELLY, 

RUTH KENNEDY, PATRICK KENNEDY, 

KATHLEEN KENWORTHY, GREGORY 

KESSLER, FLOYD KILBREATH, MARY 

KINASZ, PATTI KING, CHRISTOPHER 

KINSMAN, NANCY KIRKBY, KARIN 

KLAWENDER, RANDY KLUMP, DOROTHY 

KOCSIS, NANCY KOENIG, MARK

KOWALCZYK, CHARLES KRAEMER, ERIC 

KRAFT, CLARK KREUTZBERG, LOUIS KRICK, 

CINDY KROL, LONNIE KUBIK, WADE 

KUNISH, KIP KUSSRO, REBECCA KWATER, 

TIMOTHY LACROSS, BRUCE LAMB, SANDRA 

LANSING, JUSTIN LAPLOW, MESHELL 

LARSON, SUE LAUER, DEBORAH LAWLER, 

LINDA LECKRONE, CHRISTINE LEGACY, 

ROBERT LEIGEB, BONNIE LEITZ, LISA 

LEMIEUR, RONAN LER, ROBERT LEMER, 

KATHY LYNN LEVELY, KEVIN LIEBETREU, 

EDWARD LINCOLN, ANITA LOPEZ, JEANETTE 

LOVELESS, ERIC LURINS, MARY LYNCH, 

RICHARD LYONS, PAUL MADDEN, VALERIE 

MALKIN, DANIEL MALLOY, JOSEPH 

MANELIS, JAMES MANN, JOYCE MANSFIELD, 

KRISTINE MANWELL, MARGARET MASTERSJUN, TAWSE MATTHES, MARY MATTHESS, 

VIOLET MCCREADIE, FREADA MCDANIELS, 

PEGGY MCDANIELS, AGNES MCDONALD, 

FLOYD MCDONALD, ROBERT MCDONALD, 

NORMAN MCGARRY, ROBERT MCGINNIS, 
-16-

MARGO MCIVOR, MAC MCKELLAR, JOYCE 

MCLAUGHLIN, JUDY MERTES, RAYMOND 

MEYER, LISA MEYER, CRISTIAN MICLEA, 

DELBERT MIDDLETON, LINDA MIDDELSEN, 

JAMES LAMONT MILLER, CARLTON MILLS, 

BECKY MINNIS, CAROL MITCHELL, DAWN 

MOBLEY, SEAN MOBLEY, CHRISTOPHER 

MOHN, JORDAN MOORE, MARTHA MOORE, 

CHARLES MUIRHEAD, CHARLES MUIRHEAD 

II, HAROLD MURPHY, WILLIAM MURRAY, 

ALEXANDRA MUTER, DARYELL NATZEL, 

SALLY NAYLOR, JEAN NAYLORE, CHRISTINE 

NEILSON, PATRICK NIELSON, JAMES 

NEMETH, JAMES NEVEAU, JR., DWIGHT 

NEWPORT, KIMBERLY NICHOLLS, ERIC 

OBOYLE, CAROLYN OCHAB, MATTHEW 

OLSON, LUANNE OSTERGREN, JOYCE 

OSTRANDER, PENNY OWNES, JODY PAGEL, 

DANNY PARKINSON, DAVID PASEK, 

ANDREW PASSARIELLO, DALE PATENAUDE, 

SHERI PAWLOWSKI, BRIDGETT PETSNICK, 

WILLIAM PFLUEGER, RONALD PLATT, 

MARVIN PLOTZKA, NORMAN PLOTZKA, 

SUSAN POLITO, NICHOLAS POSUNIAK, 

SANDRA PREIMER, EUGENE PROSS, KEITH 

PROSS, NANCY QUEEN, PATRICIA RAMBO, 

MARK RAMER, LUANN RAMER, DANIEL 

REAUME, CHARLES REESE, SHAWN REILLY, 

AMANDA REINKE, MILFORD RICE, APRIL 

ROBINSON, SANDRA ROLANDS, DOROTHY 

ROSE, TERREL ROSS, VIRGINIA ROUSSEAU, 

CHRISTOPHER RUBIS, ANNETTE RUBY, 

STEPHEN RUPP, JOSEPH RYAN, CAROL 

RZENDZIAN, MARK SADEK, ROBIN 

SANBURN, BRAD SAUVE, ROBERT 

SCHERZER, MAUREEN SCHMIDT, LISA 

SCHMITTLING, MARK SCHMITZ, JENNY 

SCHMITZER, STEVEN SEDLAR, MARGARET 

SEE, CHARLENE SHEAR, DANIEL SHERIDAN, 

CARRY SHINKEL, RONALD SIZELAND, 

RAYMOND SLAVENS, WALLY SLEEPER, 

RICHARD SMITH, GAIL SMITH, RONALD 

SMITH, TIMOTHY SMITH, EDWARD 

SOMMERFIELD, MICHELLE SOWA, CYNTHIA 

SOWINSKI, JOANNE SPARKS, PATRICIA 

SPENCER, KENNETH SPITLER, CRYSTAL 
-17-

STARKEY, JOHN STASA, RICHARD STASA, 

JAMES STECK, JAMES STICKLE, GRACE 

STINTON, RUTH STOINSKI, BETTY STRICKER, 

MARIA LISA STRUSSIONE, ROBERT STUPAR, 

BRIAN STURZA, STACY SUMMERS, EILEEN 

SURBROOK, KIRK SUTLIFF, MARIAN 

SUTTON, JAMES TANNER, KAREN DIANE 

TAYLOR, THOMAS TEER, PARTRICIA 

THEOBALD, BEATA THIERRY, DONNA 

THOMAS, AMY THOMAS, KELVIN THOMAS, 

MALERIE THOMASON, JAMES THUNBERG, 

JUDITH TIBURZI, DAVID TROMBLEY, 

DOROTHY TURRELL, DEBRA VANHORN, 

SHARON VANY, LAWRENCE VERGA III, JULIE 

VEZINIA, JOHN VINSON, AARON WAGNER, 

KURT WAGNER, PHILIP WALKER, ROY 

WALKER, KENNETH WEBER, MELISSA-RAE 

WELCH, DEBRA WHEATLEY, MARCIA WHITE, 

SUSANA WIATR, DAVID WILLIAMS, GAIL 

WILSON, MARK WILSON, ROBERT 

WISCHMEYER, CHARLES WISE, MONTY 

WISEMAN, TODD WITTBRODT, GLORIA 

WORSHAM, VERNON YASCOLT, DENNIS 

YIATRAS, and BONNIE ZAWISLAK,

Plaintiffs-Appellees,

v No. 359914

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000241-MM

Defendants-Appellants.

ALLSTATE INSURANCE COMPANY, 

ALLSTATE PROPERTY AND CASUALTY 

INSURANCE COMPANY, ALLSTATE 

INDEMNITY COMPANY, ALLSTATE VEHICLE 

AND PROPERTY INSURANCE COMPANY, 

ALLSTATE NEW JERSEY INSURANCE 

COMPANY, ALLSTATE NEW JERSEY 

PROPERTY AND CASUALTY INSURANCE 

COMPANY, ALLSTATE TEXAS LLOYDS, and 
-18-

ALLSTATE FIRE AND CASUALTY INSURANCE 

COMPANY,

Plaintiffs-Appellees,

v No. 359915

Court of Claims

DEPARTMENT OF NATURAL RESOURCES and 

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY,

LC No. 20-000245-MM

Defendants-Appellants,

and

ATTORNEY GENERAL and STATE OF 

MICHIGAN,

Defendants.

JOEL HALLIDAY, DEBBIE HALLIDAY, BRIAN 

HENRY, LINDSEY HENRY, KENNETH WADE 

HOOD, MACKENZIE KASTL, JESS KING, 

MICHAEL KUBACKI, CYNTHIA KUBACKI, 

SUZANNA MCARDLE, GREGORY MENARD, 

LORI MENARD, and JONATHAN NEWPORT,

Plaintiffs-Appellees,

v No. 359916

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000257-MM

Defendants-Appellants.

FRANKENMUTH MUTUAL INSURANCE 

COMPANY, GREAT AMERICAN INSURANCE 

COMPANY OF NEW YORK, AMERICAN 

BANKERS INSURANCE COMPANY OF 

FLORIDA, AMERICAN SECURITY INSURANCE 

COMPANY, LIBERTY MUTUAL INSURANCE 

COMPANY, SAFECO INSURANCE COMPANY, 
-19-

HISCOX SYNDICATES LIMITED, 

PROGRESSIVE MICHIGAN INSURANCE 

COMPANY, PROGRESSIVE MARATHON 

INSURANCE COMPANY, WESTPORT 

INSURANCE CORP, ALLIANZ GLOBAL RISKS 

US INSURANCE COMPANY, and AMERICAN 

STRATEGIC INSURANCE CORP,

Plaintiffs-Appellees,

v No. 359917

Court of Claims

DEPARTMENT OF NATURAL RESOURCES and 

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY,

LC No. 20-000246-MM

Defendants-Appellants,

and

ATTORNEY GENERAL,

Defendant.

STEVEN OARD, LORRAINE ROTTMAN, 

AUGUSTINE SALAS, LAURA SWETT, 

WILLIAM WEBER, SHARON WOODWARD, 

JOHN YAKICH, and ROBERTA ZIMMERMAN,

Plaintiffs-Appellees,

v No. 359918

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000260-MM

Defendants-Appellants.

DONNA ARNOLD, JOSEPH BALHORN, 

CYNTHIA BALHORN, ANTHONY BAX, RICK 

BISHOP, WILLIAM BRANDIMORE, and KAIR 

COUGHLIN,
-20-

Plaintiffs-Appellees,

v No. 359919

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY and DEPARTMENT OF 

NATURAL RESOURCES,

LC No. 20-000262-MM

Defendants-Appellants.

Before: GARRETT, P.J., and K. F. KELLY and HOOD, JJ.

GARRETT, P.J.

These consolidated appeals stem from the failure of the Edenville Dam in May 2020, which 

resulted in devastating flooding and property damage to nearby residents. Plaintiffs brought claims 

of inverse condemnation against state defendants for damaging their property without providing 

just compensation. Plaintiffs’ allegations focus primarily on actions taken by the Department of 

Environment, Great Lakes, and Energy (EGLE) that contributed to the dam failure. Defendants 

moved for summary disposition under MCR 2.116(C)(7) by invoking governmental immunity, 

despite acknowledging that immunity did not apply to constitutional claims such as inverse 

condemnation. The Court of Claims instead reviewed defendants’ motion under MCR 2.116(C)(8) 

because defendants’ argument—that plaintiffs’ allegations were inadequate to satisfy the elements 

of an inverse condemnation claim—sounded akin to a motion for failure to state a claim on which 

relief can be granted. Unlike motions for summary disposition reviewed under subrule (C)(7), 

motions evaluated under subrule (C)(8) consider whether the plaintiffs alleged a legally sufficient 

claim by looking to the pleadings alone and accepting their factual allegations as true. Confining 

its review to plaintiffs’ complaints, the Court of Claims concluded that plaintiffs pleaded viable 

inverse condemnation actions and therefore denied summary disposition to defendants on those 

claims.

1

On appeal, defendants challenge to the Court of Claims’ decision is twofold. First, 

defendants contend that the Court of Claims erroneously applied the standards of MCR 

2.116(C)(8) to review their motion for summary disposition. Properly reviewed, defendants assert, 

the Court of Claims should have considered hundreds of pages of publicly available documentary 

evidence that contradict plaintiffs’ factual allegations. Applying well-settled precedent, we hold 

 

1 The Court of Claims’ order denying summary disposition only listed EGLE and the Department 

of Natural Resources (DNR) as defendants, but a few complaints also stated claims against the 

Attorney General, the State of Michigan, and other government officials. We use “defendants” to 

refer collectively to all defendants named in plaintiffs’ complaints. Because plaintiffs’ allegations 

primarily relate to actions taken by EGLE, we will refer to particular defendants individually as 

necessary. 
-21-

that the Court of Claims correctly evaluated defendants’ motion for summary disposition under 

MCR 2.116(C)(8) and appropriately limited its analysis to a review of the pleadings. Second, 

defendants argue that, even confined to the pleadings, plaintiffs’ allegations are insufficient to state

a claim for inverse condemnation. Again, we disagree. Accepting plaintiffs’ factual allegations 

as true, which we must at this stage, plaintiffs adequately alleged the elements of a viable inverse 

condemnation claim. We affirm. 

I. FACTUAL BACKGROUND

The parties dispute many key facts. But as we will discuss, our appellate posture is a review 

of defendants’ motion for summary disposition under MCR 2.116(C)(8). Therefore, when reciting 

contested facts, we accept the allegations in plaintiffs’ complaints as true and construe those 

allegations in plaintiffs’ favor. See Johnson v Pastoriza, 491 Mich 417, 435; 818 NW2d 279 

(2012).

A. EDENVILLE DAM FAILURE

The Edenville Dam was built in 1924 to hold back water from the Tittabawassee and 

Tobacco Rivers. The dam formed Wixom Lake, crossing portions of Midland County and 

Gladwin County. Boyce Hydro Power, LLC (Boyce), a private company, purchased the Edenville 

Dam in 2004. Boyce acquired a license from the Federal Energy Regulatory Commission (FERC) 

to operate the dam to generate hydroelectric power.2 Boyce had a long history of noncompliance 

with regulatory requests from FERC to upgrade the dam. Federal regulators warned Boyce that 

the dam was not structurally adequate and that its spillway capacity—”the maximum outflow flood 

which a dam can safely pass”—was inadequate in the event of a “Probable Maximum Flood”

(PMF).

3 Fixing the dam, regulators told Boyce, was necessary “to protect life, limb, and property.”

After years of unaddressed regulatory violations, FERC revoked Boyce’s federal license in

September 2018. 

Upon revocation, the Edenville Dam fell under the oversight of state agencies: EGLE and 

the Department of Natural Resources (DNR). Plaintiffs alleged that, within nine days of the license 

revocation, Michigan inspectors conducted a cursory inspection of the dam and determined that it 

was in fair structural condition. In January 2019, an entity known as the “Four Lakes Task 

Force”—having been delegated authority by Midland and Gladwin Counties—petitioned in circuit 

court for an order establishing a legal water level for Wixom Lake. The Midland Circuit Court 

granted the petition in mid-2019, setting the lake level at the levels previously required by FERC. 

Around this time, the Four Lakes Task Force began the process of acquiring the Edenville Dam 

 

2 FERC is an independent regulatory agency within the United States Department of Energy that, 

among other things, “[l]icenses and inspects private, municipal, and state hydroelectric projects.” 

Federal Energy Regulatory Commission, What FERC Does, <https://www.ferc.gov/what-fercdoes> (accessed July 14, 2023). 

3 Plaintiffs described a PMF as “the flood that may be expected from the most severe combination 

of critical meteorologic and hydrologic conditions that is reasonably possible in the drainage basin 

under study.”
-22-

from Boyce. According to plaintiffs, civil engineering reports financed by the State confirmed 

that the Edenville Dam lacked adequate spillway capacity and needed significant repairs to meet 

EGLE safety requirements.

In November 2019, EGLE rejected Boyce’s request for a “drawdown”—a lowering of the 

lake level—purportedly out of concern about harm to aquatic life and other environmental impacts. 

Boyce lowered the lake level anyway, and EGLE threatened legal action against Boyce over the 

unapproved drawdown. Then in April 2020, EGLE issued a permit to Boyce to raise the lake water 

levels and, according to plaintiffs, conditioned the permit on Boyce maintaining high water levels 

without further drawdowns. Throughout its oversight of the dam, plaintiffs alleged that Michigan 

regulators knew about the dam’s inadequate spillway, overall deterioration, and need for repairs. 

Despite these warnings, plaintiffs allege, the EGLE actively moved to prevent Boyce from drawing 

down the lake level, pressured Boyce to raise the lake level, and concealed the risks that the dam’s 

condition presented.

On May 19, 2020, concerns about the Edenville Dam’s inadequate spillway came to 

fruition. Amid heavy rainfall, the dam failed. Floodwaters moved downstream over Sanford Dam, 

which also failed.4 Thousands of residents in nearby towns were forced to evacuate to seek safe 

shelter. The flooding caused extensive damage and destruction to homes and businesses in 

surrounding communities.

B. PROCEDURAL HISTORY

The Edenville Dam failure prompted substantial litigation, much of which is not before us. 

Relevant here, various groups of plaintiffs5sued defendants in the Court of Claims.6 Plaintiffs

brought claims for inverse condemnation, alleging that the Edenville Dam’s failure and subsequent 

damage to their properties constituted an unconstitutional taking by defendants. Plaintiffs alleged 

that defendants took affirmative actions that led to the dam’s failure—including wrongfully 

certifying that the dam was in fair condition and capable of use, denying a drawdown permit to 

Boyce to lower lake water levels, and authorizing the water levels to be raised in spring 2020—all 

with full knowledge that the dam would fail from heavy rainfall and flooding. Plaintiffs also 

 

4 The focus of this appeal is on the failure of the Edenville Dam. Any mention of “the dam” 

therefore refers to the Edenville Dam.

5 Plaintiffs are mainly a collection of individual property owners and businesses. Some plaintiffs 

are subrogated insurers who seek reimbursement from defendants for covering their insureds’ 

claims. 

6 The Court of Claims is a statewide court of limited jurisdiction, situated within the Court of 

Appeals, that handles various civil actions filed against state agencies. See MCL 600.6419(1)(a). 

Appeals from the Court of Claims are treated as if the Court of Claims were a circuit court. MCL 

600.6446(1).
-23-

alleged that, despite the dam being privately owned by Boyce, defendants’ operational control over 

the dam constituted a public use.

Instead of filing an answer to the complaints, defendants moved for summary disposition 

under MCR 2.116(C)(7).7 While acknowledging that an inverse condemnation claim was a 

constitutional claim and not subject to governmental immunity, defendants nevertheless contended 

that immunity applied because plaintiffs could not satisfy the elements of their inverse 

condemnation claims. Broadly, defendants argued that plaintiffs had not established that 

defendants took any affirmative actions or that those actions were directly aimed at plaintiffs’

properties. Defendants claimed that plaintiffs’ inverse condemnation claims rested on allegations 

that defendants failed to issue a permit, sufficiently regulate, or adequately supervise the Edenville 

Dam, which could not constitute affirmative actions under Michigan law. Defendants refuted

several of plaintiffs’ factual allegations and attached hundreds of pages of documentary evidence 

in support of their arguments. 

Plaintiffs responded, arguing that defendants were not entitled to immunity from the 

inverse condemnation claims. Plaintiffs requested that the Court of Claims recast defendants’

motion for summary disposition as one brought under MCR 2.116(C)(8) because defendants 

attacked the sufficiency of the pleadings. Under that subrule, plaintiffs argued that they adequately 

alleged the elements of their inverse condemnation claims, including that defendants took 

affirmative actions directly aimed at plaintiffs’ properties. 

The Court of Claims denied defendants’ motion for summary disposition on plaintiffs’

inverse condemnation claims.8 The Court of Claims first rejected defendants’ attempt to invoke 

MCR 2.116(C)(7) to dismiss the inverse condemnation claims because they were constitutional 

claims not subject to governmental immunity. Instead, because defendants argued that plaintiffs 

had not adequately pleaded their inverse condemnation claims, the Court of Claims evaluated 

defendants’ motion under MCR 2.116(C)(8). Therefore, the Court of Claims declined to consider 

the documentary evidence offered by defendants, and looked only to the pleadings, accepting as 

true the allegations made by plaintiffs. From this posture, the Court of Claims concluded that 

plaintiffs sufficiently alleged affirmative actions taken by defendants that were aimed at plaintiffs’

properties. These allegations centered on defendants’ knowledge of the need for repairs at the 

Edenville Dam and their affirmative acts that were designed to pressure Boyce to increase the 

water levels in Wixom Lake. Defendants unsuccessfully moved for reconsideration.

 

7 Defendants filed several motions for summary disposition before the cases were all consolidated 

below, raising nearly identical arguments about the inverse condemnation claims in each motion. 

Some plaintiffs filed suit after the motion briefing and evidently agreed that their claims would be 

governed by the Court of Claims’ decision on summary disposition. 

8 The Court of Claims granted summary disposition to defendants on trespass claims advanced by 

some plaintiffs. The Court of Claims also expressly declined to review any claims on which 

defendants did not move for summary disposition. This appeal only involves the denial of 

summary disposition on plaintiffs’ inverse condemnation claims. 
-24-

After we dismissed defendants’ claim of appeal by right on jurisdictional grounds,9

defendants filed an application for leave to appeal. We granted defendants’ application and 

consolidated the 25 cases now before us.10

II. ANALYSIS

We begin with a procedural point. In its decision, the Court of Claims cited allegations 

from only five of the 25 complaints: those in Dockets 359895 (Krieger, et al.); 359896 (Holley, et 

al.); 359897 (Forbes, et al.); 359899 (Swarthout, et al.); and 359913 (Jamrog). The Court of 

Claims’ opinion explained that while other complaints contained relevant allegations about 

defendants’ conduct, the opinion used examples from the five complaints “for the sake of brevity.” 

Defendants have followed the Court of Claims’ example on appeal and relied exclusively on these 

five complaints in their briefing. At oral argument, counsel for both parties agreed that the five 

complaints chosen by the Court of Claims were fairly representative of plaintiffs’ allegations as a 

whole. Under these extraordinary circumstances, we will also rely on these five complaints when 

discussing the plaintiffs’ allegations.

11

A. APPLICABLE STANDARD OF REVIEW

As our Supreme Court has aptly noted, “[t]he standards governing summary disposition 

are cited so often and have become such a part of the fabric of our caselaw that the reader of 

judicial opinions is likely to skim ahead to the analysis.” El-Khalil v Oakwood Healthcare, Inc, 

504 Mich 152, 159; 934 NW2d 665 (2019). “But this case reveals the dangers in doing so.” Id. 

Resolution of this appeal turns in significant part on the proper court rule for reviewing defendants’

motion for summary disposition. We review a trial court’s decision on a motion for summary 

disposition, as well as the interpretation and application of the court rules, de novo. Dextrom v 

Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). That means we evaluate the legal 

issue independently and without deference to the court below. Genesee Co Drain Comm’r v 

Genesee Co, 504 Mich 410, 417; 934 NW2d 805 (2019). 

1. MCR 2.116(C)(7) OR MCR 2.116(C)(8)

Defendants argue that the Court of Claims erred by declining to review their motion for 

summary disposition under MCR 2.116(C)(7) and by instead evaluating their motion under the 

 

9 Krieger v Dep’t of Environment, Great Lakes, & Energy, unpublished order of the Court of 

Appeals, entered November 8, 2021 (Docket No. 358076) (Krieger I). 

10 Krieger v Dep’t of Environment, Great Lakes, & Energy, unpublished order of the Court of 

Appeals, entered June 10, 2022 (Docket No. 359895). For brevity, we note that substantively 

identical orders were entered in each of the 25 dockets. 

11 Assuming without deciding that the Court of Claims erred by failing to analyze each complaint 

individually, defendants (as the appellants) had the burden to demonstrate that a mistake was made. 

See Redmond v Heller, 332 Mich App 415, 435 n 9; 957 NW2d 357 (2020). Defendants have not 

raised this issue as a claim of error, and through their representations to this Court, have effectively 

conceded that they are not entitled to relief on this basis. 
-25-

standards of MCR 2.116(C)(8). This distinction shapes the deference given to plaintiffs’ factual 

allegations and the types of documents that a reviewing court may consider.

Under MCR 2.116(C)(7), a defendant may seek summary disposition on grounds that a

plaintiff’s claim is barred because of immunity granted by law. Dextrom, 287 Mich App at 428. 

When reviewing a motion under this subrule, we consider “all documentary evidence submitted 

by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate

documents specifically contradict them.” Beals v Michigan, 497 Mich 363, 370; 871 NW2d 5 

(2015) (cleaned up). See also Dextrom, 287 Mich App at 428 (“[T]his Court must accept all wellpleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence 

contradicts them.”). If a genuine issue of material fact exists after properly considering all the 

evidence, dismissal is inappropriate. Id. at 429. But “[i]f no facts are in dispute, and if reasonable 

minds could not differ regarding the legal effect of those facts, the question whether the claim is 

barred is an issue of law for the court.” Id. 

Review of a motion for summary disposition under MCR 2.116(C)(8) is more limited. A 

motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim. Mays v Governor, 506 Mich 

157, 172-173; 954 NW2d 139 (2020) (opinion by BERNSTEIN, J.). “We accept all factual 

allegations in the complaint as true, deciding the motion on the pleadings alone.” Id. at 173 

(emphasis added). We also construe all well-pleaded factual allegations in a light most favorable 

to the nonmoving party. Johnson, 491 Mich at 435. “A motion under MCR 2.116(C)(8) may only 

be granted when a claim is so clearly unenforceable that no factual development could possibly 

justify recovery.” El-Khalil, 504 Mich at 160.

The Court of Claims denied defendants’ motion for summary disposition on plaintiffs’

inverse condemnation claims. “Michigan recognizes the theory of inverse condemnation as a 

means of enforcing the constitutional ban on uncompensated takings of property.” Proctor v 

Saginaw Co Bd of Comm’rs, 340 Mich App 1, 16 n 10; 985 NW2d 193 (2022) (cleaned up). See 

also Const 1963, art 10, § 2 (prohibiting the taking of private property for public use without just 

compensation). Although the state government is generally immune from tort liability, such 

immunity does not apply to inverse condemnation claims. See Electro-Tech, Inc v HF Campbell 

Co, 433 Mich 57, 91 n 38; 445 NW2d 61 (1989) (“Since the obligation to pay just compensation 

arises under the constitution and not in tort, the immunity doctrine does not insulate the 

government from liability.”). As our Supreme Court explained in Thom v State Hwy Comm’r, 376 

Mich 608, 628; 138 NW2d 322 (1965): 

To permit the State to assert the defense of governmental immunity in such 

circumstances would be utterly to vitiate the constitutional provision providing for 

just compensation for the taking of private property for public use, for it would 

mean that the owner of property alleged to have been taken without compensation 

would be left without judicial recourse.

Consistent with this precedent, the Court of Claims explained that, because plaintiffs 

alleged that defendants’ actions “amounted to inverse condemnation and an uncompensated taking 

in violation of art 10, § 2” of the Michigan Constitution, governmental immunity simply did not 

apply. Therefore, the Court of Claims ruled that defendants’ motion and claim of immunity under 

MCR 2.116(C)(7) lacked merit. Defendants’ central argument, the Court of Claims noted, was
-26-

that plaintiffs did not adequately plead an inverse condemnation claim. This contention sounded 

akin to an argument that plaintiffs failed to state a claim upon which relief could be granted under 

MCR 2.116(C)(8). Thus, the Court of Claims held that it would evaluate defendants’ motion for 

summary disposition under MCR 2.116(C)(8), and as such, declined to consider documentary 

evidence outside the pleadings. 

On appeal, defendants concede that governmental immunity does not apply to properly 

pleaded inverse condemnation claims. Instead, defendants argue that plaintiffs’ claims, while 

styled as inverse condemnation claims, are actually tort claims to which immunity applies. 

Therefore, defendants’ theory follows, the Court of Claims should have analyzed their motion for 

summary disposition under MCR 2.116(C)(7) and dismissed plaintiffs’ claims as barred by 

governmental immunity. 

Briefly, plaintiffs contend that this Court has already ruled that the Court of Claims

properly analyzed defendants’ motion for summary disposition under MCR 2.116(C)(8), and 

therefore, the law-of-the-case doctrine compels us to follow that decision. Under that doctrine, “if 

an appellate court has passed on a legal question and remanded the case for further proceedings, 

the legal questions thus determined by the appellate court will not be differently determined on a 

subsequent appeal in the same case where the facts remain materially the same.” Rott v Rott, 508 

Mich 274, 286; 972 NW2d 789 (2021) (cleaned up). But importantly, the law-of-the-case doctrine 

applies only when issues are “actually decided, either implicitly or explicitly, in the prior appeal,”

and “does not apply to claims that were not decided on the merits.” Id. at 287 (cleaned up). 

In support of their position, plaintiffs stress this Court’s prior dismissal of defendants’

claim of appeal by right in which this Court stated:

As the trial court recognized, the gravamen of defendants’ motion for summary 

disposition with regard to plaintiffs’ inverse condemnation claims was not a claim 

of immunity from such constitutional claims but rather an assertion that plaintiffs 

did not adequately plead the inverse condemnation claims. Accordingly, in relevant 

part, the trial court’s order constitutes an order denying a motion for summary 

disposition under MCR 2.116(C)(8) premised on failure to state a claim, not an 

order denying governmental immunity under MCR 2.116(C)(7). See Blair v 

Checker Cab Co, 219 Mich App 667, 670-671; 558 NW2d 439 (1996) (trial court 

properly considered motion for summary disposition under appropriate subrule 

despite motion being framed under another subrule). [Krieger I, unpub order at 2 

(emphasis added).]

Because this order involved a jurisdictional question about whether defendants had an appeal by 

right from a decision of the Court of Claims,12 the order did not actually decide the merits of 

whether the Court of Claims properly reviewed defendants’ motion for summary disposition under 

 

12 Generally, this Court has jurisdiction of an appeal of right from a “final order” of the trial court, 

MCR 7.203(A)(1), which includes “an order denying governmental immunity to a governmental 

party, including a governmental agency, official, or employee under MCR 2.116(C)(7),” MCR 

7.202(6)(a)(v).
-27-

MCR 2.116(C)(8). See Rott, 508 Mich at 287. The law-of-the-case doctrine therefore does not 

apply, and we turn to our de novo review of the issue. 

As discussed, the normal rules of governmental immunity do not apply to inverse

condemnation claims because such claims are constitutional. Electro-Tech, Inc, 433 Mich at 91 n 

38. It logically follows, therefore, that MCR 2.116(C)(7) is an inappropriate vehicle to attack a 

plaintiff’s inverse condemnation claim because immunity by law is not granted for such claims. 

Moreover, as the Court of Claims noted, defendants’ position sounds as one attacking the legal 

sufficiency of plaintiffs’ claims, making MCR 2.116(C)(8) the proper basis under which to grant 

or deny a motion for summary disposition. “[W]here a party brings a summary disposition motion 

under the wrong subrule, the trial court may proceed under the appropriate subrule as long as 

neither party is misled.” Blair v Checker Cab Co, 219 Mich App 667, 670-671; 558 NW2d 439 

(1996). The Court of Claims correctly determined that the appropriate subrule for reviewing 

defendants’ motion was MCR 2.116(C)(8). 

Defendants claim several precedents from this Court have “endorsed the use of MCR 

2.116(C)(7) to attack inverse condemnation claims.” The cited cases tell a different story. 

Defendants first point to this Court’s decision in Hinojosa v Dep’t of Natural Resources, 263 Mich 

App 537; 688 NW2d 550 (2004). There, the plaintiffs brought trespass-nuisance and inverse 

condemnation claims against the DNR after a fire at a government-owned, abandoned property 

damaged the plaintiffs’ neighboring home. Id. at 539-540. In relevant part, the DNR moved for 

summary disposition under MCR 2.116(C)(7) and (C)(8), and the trial court granted its motion. 

Id. at 540. The parties agreed that the plaintiffs’ trespass-nuisance claim was barred by 

governmental immunity. Id. On the inverse condemnation claim, the trial court concluded that 

the “plaintiffs had not alleged a ‘taking’ of property that required just compensation.” Id. We 

agreed, holding that the plaintiffs did not allege that the defendant took affirmative actions directed 

at their properties and thus “ ‘failed to state a claim on which relief can be granted.’ ” Id. at 550, 

quoting MCR 2.116(C)(8). By expressly relying on MCR 2.116(C)(8) to affirm the dismissal of 

the plaintiffs’ inverse condemnation claim, Hinojosa did not endorse defendants’ proposal to 

attack an inverse condemnation claim under MCR 2.116(C)(7). If anything, the decision supports

the Court of Claims’ conclusion that defendants’ motion should be analyzed under MCR 

2.116(C)(8). 

Defendants’ reliance on Attorney General v Ankersen, 148 Mich App 524; 385 NW2d 658 

(1986), is equally unpersuasive. Ankersen did not once reference summary disposition or the 

proper standard for reviewing such a motion under MCR 2.116(C). In that case, the 

counterplaintiffs brought an inverse condemnation claim based on the state’s “granting of licenses 

and subsequent failures to supervise and regulate . . . [waste] disposal operations,” which allegedly 

decreased the value of the counterplaintiffs’ property. Id. at 560-561. Although the trial court 

“made no ruling concerning whether counterplaintiffs’ property was the subject of inverse 

condemnation,” we held on appeal that the inverse condemnation claim failed as a matter of law. 

Id. at 561. Nowhere did Ankersen suggest that governmental immunity applied to dismiss the 

inverse condemnation claim. Ankersen simply has no bearing on defendants’ argument.

Finally, defendants highlight Marilyn Froling Revocable Living Trust v Bloomfield Hills 

Country Club, 283 Mich App 264; 769 NW2d 234 (2009), but it too offers little support. There, 

the plaintiff alleged an inverse condemnation claim against the city for failure to prevent flooding 
-28-

to the Frolings’ property. Id. at 273. The city moved for summary disposition under MCR 

2.116(C)(7), (C)(8), and (C)(10), and the trial court granted the motion. Id. at 274. This Court’s

opinion did not specify under which subrule the trial court granted summary disposition. We 

affirmed the dismissal of the plaintiff’s inverse condemnation claim, holding that the claim failed 

because the plaintiff had “not alleged any affirmative action by the city directly aimed at the 

Frolings’ property.” Id. at 296. Although we again did not specify which subrule of summary 

disposition applied, the failure to allege an element of an inverse condemnation claim tracks with 

the failure to state a claim under MCR 2.116(C)(8). Thus, Marilyn Froling Revocable Living Trust

appears to cut against plaintiffs’ argument, and at best, offers no support. In sum, our precedents 

have not endorsed defendants’ position to challenge an inverse condemnation claim under MCR 

2.116(C)(7). 

For these reasons, the Court of Claims did not err by rejecting defendants’ unfounded 

attempt to invoke the standards of MCR 2.116(C)(7) and by analyzing defendants’ motion under 

MCR 2.116(C)(8). 

2. DOCUMENTS REFERENCED IN THE COMPLAINTS

Next, defendants contend that, even reviewing their motion under subrule (C)(8), the Court 

of Claims had to consider documentary evidence “referenced” by plaintiffs in their pleadings, such 

as FERC reports, e-mails, court documents, and state officials’ statements. In support, defendants 

rely on MCR 2.113(C)(2), which provides that “[a]n attachment or reference to an attachment

under subrule (C)(1)(a) or (b) is a part of the pleading for all purposes.” Subrule (C)(1)(a) and (b), 

in turn, provide:

(1) If a claim or defense is based on a written instrument, a copy of the 

instrument or its pertinent parts must be attached to the pleading and labeled 

according to standards established by the State Court Administrative Office unless 

the instrument is 

(a) a matter of public record in the county in which the action is commenced 

and its location in the record is stated in the pleading; 

(b) in the possession of the adverse party and the pleading so states[.] [MCR

2.113(C).]

In El-Khalil, our Supreme Court explored the interplay between MCR 2.113(C) and MCR 

2.116(C)(8). The El-Khalil trial court, in reviewing the defendants’ motion for summary

disposition under MCR 2.116(C)(8), considered e-mails that were attached to the plaintiff’s 

complaint. El-Khalil, 504 Mich at 163. Our Supreme Court agreed that the trial court could 

consider these e-mails because they were part of the pleadings under MCR 2.113(C). Id. But the 

Court made a critical clarification about materials attached to a complaint:

The trial court’s error was not in considering the e-mails as part of the pleadings; 

the trial court erred by considering the content of the e-mails as substantive 

evidence sufficient to dismiss plaintiff’s claim under MCR 2.116(C)(8). [Id. 

(emphasis added).]
-29-

In other words, even if a party attaches materials to its complaint that become part of the pleadings, 

doing so does not automatically permit consideration of those materials as substantive evidence.

In El-Khalil, the e-mails properly considered by the trial court were explicitly attached by 

the plaintiff to his complaint. Id. The same cannot be said here. Although evidence may have 

been referenced by plaintiffs, it was not attached to their complaint. With limited exception, only 

an “attachment” to the complaint is considered part of the pleadings. See MCR 2.113(C)(2). The 

exception—that a “reference to an attachment under subrule (C)(1)(a) or (b) is a part of the 

pleading for all purposes”—is inapplicable here. Subrule (C)(1)(a) and (b) apply only when a 

“claim or defense is based on a written instrument,” but the party need not attach the instrument 

to the pleading. Plaintiffs’ inverse condemnation claims are not based on a written instrument, 

such as a contract. See Bodnar v St John Providence, Inc, 327 Mich App 203, 212; 933 NW2d 

363 (2019) (“[W]hen an action is premised on a written contract, the contract generally must be 

attached to the complaint and thus becomes part of the pleadings.”). But even assuming the Court 

of Claims should have considered the documentary evidence referenced in the complaints, ElKhalil instructs that this evidence should not be considered as “substantive evidence sufficient to 

dismiss plaintiff[s’] claim[s] under MCR 2.116(C)(8).” El-Khalil, 504 Mich at 163 (emphasis 

added). Defendants urge us to do the opposite—consider the referenced documents as substantive 

evidence that contradicts plaintiffs’ factual allegations. Thus, in several respects, defendants’

position lacks merit.

Defendants also contend that “Michigan courts are not required to assume the truth of an 

allegation that contradicts the public record relied on for the allegation just because the allegation 

is in a complaint.” We have never adopted that proposition. In El-Khalil, for instance, our 

Supreme Court once again “emphasize[d] that a motion for summary disposition under MCR 

2.116(C)(8) must be decided on the pleadings alone and that all factual allegations must be taken 

as true.” Id. at 155. Defendants reference federal caselaw interpreting the federal equivalent of 

MCR 2.116(C)(8) in an effort to avoid the standard of review compelled by our precedents. Not 

only does federal caselaw lack precedential value on matters involving the proper interpretation of

Michigan court rules, see Bienenstock & Assoc, Inc v Lowry, 314 Mich App 508, 515; 887 NW2d 

237 (2016), but the federal cases cited by defendants are factually distinguishable.

13

 Most 

importantly, though, the rules from these federal cases that defendants seek to apply depart from

our binding precedent. 

 

13 Defendants cite Commercial Money Ctr, Inc v Illinois Union Ins Co, 508 F3d 327, 335-336 (CA 

6, 2007), but that case involved an insurance policy and various documents related to it, which 

made such documents “integral to the claims.” Defendants further rely on Bailey v Ann Arbor, 

860 F3d 382, 387 (CA 6, 2017), for the language, “If [the plaintiff’s] pleadings internally 

contradict verifiable facts central to his claims, that makes his allegations implausible.” In that 

case, the United States Court of Appeals for the Sixth Circuit ruled that it was proper to consider 

public video of a robbery that contradicted the plaintiff’s allegations. Id. at 386-387. But Bailey 

involved a motion to dismiss on the basis of qualified immunity, id. at 385, which is more 

analogous to MCR 2.116(C)(7). 
-30-

3. JUDICIAL NOTICE

Finally, defendants suggest that the Court of Claims should have taken judicial notice of 

publicly available evidence that was outside the pleadings. A court may take judicial notice of a 

fact that is “not subject to reasonable dispute in that it is either (1) generally known within the 

territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort 

to sources whose accuracy cannot reasonably be questioned.” MRE 201(b). This authority 

includes taking judicial notice of public records. See Johnson v Dep’t of Natural Resources, 310 

Mich App 635, 649; 873 NW2d 842 (2015). “Judicial notice may be taken at any stage of the 

proceeding.” MRE 201(e). 

Defendants cite no authority to support their claim that a trial court, or this Court, should 

take judicial notice of hundreds of pages of publicly available documents when deciding a motion 

under MCR 2.116(C)(8). When “a party fails to cite any supporting legal authority for its position, 

the issue is deemed abandoned.” Bill & Dena Brown Trust v Garcia, 312 Mich App 684, 695; 880 

NW2d 269 (2015) (cleaned up). Defendants merely cite Ponte v Ponte Estate, unpublished per 

curiam opinion of the Court of Appeals, issued April 24, 2012 (Docket No. 300789), p 2 n 1, a 

case where the trial court took judicial notice of a prior judgment of divorce that occurred in the 

same jurisdiction and this Court’s decision on appeal from that judgment. Nothing about Ponte 

resembles this case or defendants’ interpretation that a court may take judicial notice of evidence 

outside the pleadings simply because the evidence may be publicly available. Exercising judicial 

notice over a sweeping amount of documentary evidence would conflict with the otherwise wellestablished standard of MCR 2.116(C)(8) that explicitly limits the court to consideration of the 

pleadings. See Mays, 506 Mich at 173. Not only that, but it is debatable whether exercising 

judicial notice would be appropriate under these circumstances when the parties vigorously dispute

how to interpret the evidence. Defendants do not identify which facts in the publicly available 

evidence are “not subject to reasonable dispute,” and thus appropriate for taking judicial notice. 

See MRE 201(b). For these reasons, defendants’ judicial notice argument lacks merit. 

Defendants’ position on the applicable standard of review is untenable. First, defendants

improperly invoked MCR 2.116(C)(7) to dismiss plaintiffs’ constitutional claims. Second, as a 

fallback position, defendants argue for an interpretation of MCR 2.116(C)(8) that would allow a 

reviewing court to consider documentary evidence that contradicts the factual allegations in the 

complaint. But that is a veiled attempt to obtain review under MCR 2.116(C)(7) by a different 

name. See Beals, 497 Mich at 370. In sum, the Court of Claims did not err by reviewing

defendants’ motion under MCR 2.116(C)(8) and limiting its analysis to the pleadings. 

B. ADEQUACY OF INVERSE CONDEMNATION CLAIMS

Defendants focus their remaining challenge on the viability of plaintiffs’ inverse 

condemnation claims. Defendants argue that these claims are legally defective in two respects: 

(1) defendants did not take affirmative actions directly aimed at plaintiffs’ properties and (2) 

plaintiffs’ property was not put to a public use. Before turning to these arguments, we begin with 

the legal background. 
-31-

1. LEGAL BACKGROUND

The United States and Michigan Constitutions prohibit the taking of private property for 

public use without just compensation. US Const, Am V; Const 1963, art 10, § 2.14 As noted, 

“Michigan recognizes the theory of inverse condemnation as a means of enforcing the 

constitutional ban on uncompensated takings of property.” Proctor, 340 Mich App at 16 n 10 

(cleaned up). Inverse condemnation is “a cause of action against a governmental defendant to 

recover the value of property which has been taken . . . even though no formal exercise of the 

power of eminent domain has been attempted by the taking agency.” Mays, 506 Mich at 173 

(cleaned up). As alleged in this case, “[i]nverse condemnation can occur without a physical taking 

of the property; a diminution in the value of the property or a partial destruction can constitute a 

‘taking.’ ” Merkur Steel Supply Inc v Detroit, 261 Mich App 116, 125; 680 NW2d 485 (2004). 

For instance, “[i]t is well settled that a governmental actor may cause a taking of private property 

by flooding the property or diverting excess surface water onto the property.” Wiggins v City of 

Burton, 291 Mich App 532, 572; 805 NW2d 517 (2011). “Generally, a plaintiff alleging a de facto 

taking or inverse condemnation must establish (1) that the government’s actions were a substantial 

cause of the decline of the property’s value and (2) that the government abused its powers in 

affirmative actions directly aimed at the property.”

15

 Blue Harvest, Inc v Dep’t of Transp, 288 

Mich App 267, 277; 792 NW2d 798 (2010). See also Charles Murphy, MD, PC v Detroit, 201 

Mich App 54, 56; 506 NW2d 5 (1993) (“While there is no exact formula to establish a de facto 

taking, there must be some action by the government specifically directed toward the plaintiff’s 

property that has the effect of limiting the use of the property.”). 

2. AFFIRMATIVE ACTIONS DIRECTED AT PLAINTIFFS’ PROPERTY

Defendants argue that they did not abuse their power by taking affirmative actions directed 

at plaintiffs’ properties.

To understand what allegations are sufficient to plead affirmative actions directly aimed at 

plaintiffs’ property, it helps to understand what allegations are not. Nearly 40 years ago, we held 

that “the state’s alleged misfeasance in licensing and supervising [a waste disposal] operation [did]

not constitute affirmative actions directly aimed at the [counterplaintiffs’] property.” Ankersen, 

148 Mich App at 562 (quotation marks omitted). That case involved a lawsuit against the operators 

of a waste disposal business that sought the abatement of a fire hazard caused by the improper 

storage of hazardous industrial waste. Id. at 531-532. A countercomplaint alleged that the state 

counterdefendants contributed to the creation of the nuisance when they granted licenses to the 

business and failed to regulate the waste disposal operations, and that their actions amounted to an 

 

14 Plaintiffs bring their inverse condemnation claims solely under the Michigan Constitution. 

15 Although defendants challenged the substantial cause element on summary disposition, they do 

not renew that argument on appeal.
-32-

uncompensated taking. Id. at 532, 560-561. We rejected this counterclaim, holding that the 

alleged “inaction and omissions by the state” could not sustain a takings claim. Id. at 562.16 

We applied the holding from Ankersen directly to Hinojosa. There, the legal issue was 

whether Michigan’s takings clause “require[d] the state to justly compensate neighboring property 

owners for damage caused by a fire that spread from an abandoned house after the state acquired 

it through tax delinquency proceedings.” Hinojosa, 263 Mich App at 538. Citing Ankersen, 148 

Mich App at 561-562, we held that the plaintiffs failed to allege that the state took affirmative 

action toward their properties. Id. “At most, [the state] failed to abate a fire-hazard nuisance,” a

similar type of allegation to the one that Ankersen found insufficient to sustain an inverse 

condemnation claim. Id. 

More recent cases have dealt with the viability of inverse condemnation claims premised 

on government-induced flooding. In Marilyn Froling Revocable Living Trust, 283 Mich App at 

296, the plaintiffs argued that the city took their property for public use when the city “refused to 

construct a drainage system to cure their private water problems” and approved their neighbors’

construction plans that contributed to flooding on the plaintiffs’ property. We rejected this inverse 

condemnation claim, holding that the plaintiffs had alleged no affirmative actions taken by the city 

that were directly aimed at the plaintiffs’ property. Id. Finally, in Wiggins, 291 Mich App at 538, 

572, we held that the installation of drains on neighboring properties that were then connected to 

a storm-retention easement on the plaintiffs’ property was an affirmative action by the city directly 

aimed at the plaintiffs’ property. But after the city transferred ownership of the drains to the private 

property owners, “any material increase in the flow of water through the drain” could not confer 

inverse condemnation liability. Id. at 572-573. 

In this case, plaintiffs alleged that defendants knew about the Edenville Dam’s inability to 

withstand significant rainfall because of insufficient spillway capacity and knew that the dam’s 

poor conditions posed a danger to the surrounding area and properties. Plaintiffs also alleged that 

defendants actively prevented efforts to repair the dam and threatened enforcement actions if the 

water levels were drawn down. Finally, plaintiffs claimed that defendants acted to conceal the

risks posed by the dam and raise the lake levels to dangerous levels because it was more concerned 

with protecting environmental conditions in the lake. Accepting these allegations as true, plaintiffs 

sufficiently pleaded affirmative actions taken by defendants that were aimed directly at plaintiffs’

properties. Plaintiffs’ allegations demonstrate more than mere regulatory actions, such as issuing 

or denying a permit, Ankersen, 148 Mich App at 561-562, or failing to abate a nuisance, Hinojosa, 

263 Mich App at 538. Rather, plaintiffs’ allegations show active steps by defendants to authorize 

higher lake levels and to conceal critical information about the risk that the dam’s condition posed

to plaintiffs’ specific properties in the surrounding area. Put differently, plaintiffs alleged that 

defendants’ affirmative actions “set into motion the destructive forces” that caused the dam failure 

 

16 Because Ankersen was decided in 1984, its rule of law is not strictly binding precedent. See 

MCR 7.215(J)(1) (noting that a panel of this Court must follow published decisions issued by this 

Court on or after November 1, 1990). Still, pre-November 1, 1990 published opinions are regarded 

as precedent and entitled to deference if not disputed by more recent caselaw. Woodring v Phoenix 

Ins Co, 325 Mich App 108, 114-115; 923 NW2d 607 (2018).
-33-

and the damage to plaintiffs’ properties that were in the direct line of harm. Peterman v Dep’t of 

Natural Resources, 446 Mich 177, 191; 521 NW2d 499 (1994). 

Our Supreme Court’s recent decision in Mays, which involved the Flint water crisis, is 

highly instructive. Just as here, the Mays Court analyzed whether the plaintiffs adequately pleaded

inverse condemnation to overcome a motion for summary disposition under MCR 2.116(C)(8). 

Mays, 506 Mich at 172-180. The plaintiffs in Mays alleged damages arising from the defendants 

servicing their property with toxic water from the Flint River. Id. at 170-171. The Court held that 

the plaintiffs’ allegations, taken as true, were sufficient to state an inverse condemnation claim on 

which relief could be granted. Id. at 179. Most relevant here, the Court rejected the defendants’

position that the plaintiffs had not sufficiently alleged affirmative actions by the defendants that 

were directed at the plaintiffs’ properties. Id. at 174-175. The Court explained: 

Plaintiffs allege that defendants committed an affirmative act directed at their 

property when the state defendants authorized the city defendants to use the Flint 

River as an interim water source while both sets of defendants knew that using the 

river could result in harm to property. Defendants then allegedly concealed or 

misrepresented data and made false statements about the safety of the river water 

in an attempt to downplay the risk of its use and consumption. The state defendants 

argue that if there were an affirmative act that was directed at the plaintiffs’

property, it was the city defendants who effectuated the act, not the state defendants. 

While discovery may bear evidence that supports this conclusion, at this stage of 

proceedings, we must accept all of plaintiffs’ allegations as true. See MCR 

2.116(C)(8); El-Khalil, 504 Mich at 160. If true, plaintiffs’ allegations are 

sufficient to conclude that the state defendants abused their powers and took 

affirmative actions directly aimed at plaintiffs’ property. [Id. at 175.]17

In this case, the Court of Claims discussed and analogized Mays, explaining that “just like 

in Mays, plaintiffs have alleged that defendant[s] committed an affirmative act aimed at their 

properties when defendant[s] required Boyce to raise water levels at Wixom Lake in the spring of 

2020 and/or to keep the water levels high.” The Court of Claims reasoned that plaintiffs’

allegations that “defendant[s] concealed or obfuscated the risks at the time” were “similar to the 

allegations in Mays that the defendants committed an affirmative act by authorizing the use of the 

Flint River as a drinking water source despite knowing of the risks, while at the same time 

concealing those risks.” We agree with the Court of Claims and find Mays particularly analogous

in two respects. 

First, Mays held that allegations that the state defendants “authorized” the city defendants 

to switch the water source for Flint residents despite knowledge of its risk was an affirmative act

directed at the plaintiff’s properties. Mays, 506 Mich at 175. In this case, defendants insist that 

any affirmative actions leading to the dam failure were taken by Boyce, and thus plaintiffs have

 

17 A majority of the Court agreed that the plaintiffs sufficiently stated a claim for inverse 

condemnation and agreed with the lead opinion’s reasoning on that point. Mays, 506 Mich at 172 

n 5 (opinion by BERNSTEIN, J.); id. at 224, 224 n 1 (VIVIANO, J., concurring in part and dissenting 

in part). 
-34-

not alleged affirmative actions taken by defendants themselves. But the authorization of the water 

source switch in Maysis akin to plaintiffs’ allegations in this case that defendants authorized Boyce 

to raise its water levels weeks before the dam failure. In both cases, the plaintiffs alleged that the 

state defendants authorized another entity to take actions directly aimed at the plaintiffs’

properties. Consistent with Mays, the allegations that defendants authorized Boyce to raise water 

levels despite knowledge of the dam’s risk of failure are sufficiently pleaded affirmative actions. 

Second, Mays emphasized allegations that the state defendants concealed data and made 

false public statements about the safety of the drinking water from the Flint River. Mays, 506 

Mich at 175. Similarly, plaintiffs here allege that EGLE engaged in a “long pattern of misleading 

statements, dating back to 2018, designed to conceal and obscure the dangerous condition of the 

dam.” For instance, plaintiffs allege that, after conducting a cursory inspection of the Edenville 

Dam in 2018, EGLE reported that the dam was structurally sound when it was not. As other

evidence of concealment, plaintiffs also claim that a state agency spokesperson stated after the 

dam failure that EGLE had strong concerns about the dam’s inadequate spillway capacity. 

Together, plaintiffs’ allegations, like in Mays, are enough to conclude that defendants took 

affirmative actions directly aimed at plaintiffs’ properties. 

3. PUBLIC USE

Defendants also argue that plaintiffs’ inverse condemnation claims fail because defendants 

did not put plaintiffs’ property to a public use.18 

Traditionally, the question of “public use” under Article 10, § 2 of the Michigan 

Constitution arises when the government seeks to use its power of eminent domain to take private 

property. Outside of this context, Michigan courts have not squarely addressed when affirmative 

actions taken by the state that have downstream effects aimed at private properties constitute a 

taking for “public use.” Indeed, most inverse condemnation cases, including ones involving 

government-induced flooding, mention public use only in passing. See, e.g., Wiggins, 291 Mich 

App at 571; Marilyn Froling Revocable Trust, 283 Mich App at 296. Ankersen briefly discussed 

what constitutes a public use, holding that “the granting of a license to a private citizen or a private 

corporation for the purpose of allowing that person or corporation to conduct a private business 

cannot be regarded as a taking of private property by the government for public use.” Ankersen, 

148 Mich App at 561. The Court reasoned that “the issuance of a license does not in any way 

grant the public a right of use in the property.” Id. at 562. But Ankersen vastly oversimplified the 

analysis. Article 10, § 2 of the Michigan Constitution does not merely ask whether the public has 

 

18 Some plaintiffs contend that defendants did not preserve this argument below. While the public 

use argument was not the focus of defendants’ motions for summary disposition, at least one of 

their motions expressly challenged plaintiffs’ allegations that EGLE exercised such control over 

the Edenville Dam so as to put it to a public use. Once an issue is raised below, “a party is generally 

free to make a more sophisticated or fully developed argument on appeal than was made in the 

trial court.” Glasker-Davis v Auvenshine, 333 Mich App 222, 228; 964 NW2d 809 (2020). 

Therefore, we consider this issue preserved. 
-35-

a “right of use” in private property taken by the government. See Wayne Co v Hathcock, 471 Mich 

445, 476; 684 NW2d 765 (2004). 

In Hathcock, 471 Mich at 468-476, decided twenty years after Ankersen, our Supreme 

Court comprehensively analyzed what “public use” meant to the drafters of Michigan’s 1963 

Constitution. The Court explained that the “public use” requirement was a limitation on the state’s 

ability to exercise its power of eminent domain. Id. at 472. But “[w]hen our Constitution was 

ratified in 1963, it was well-established in this Court’s eminent domain jurisprudence that the 

constitutional ‘public use’ requirement was not an absolute bar against the transfer of condemned 

property to private entities.” Id. The unstated but necessary corollary to the “public use”

requirement is that the state is prohibited from “transferring condemned property to private entities 

for a private use.” Id. Ultimately, our Supreme Court enumerated three types of circumstances 

where the transfer of condemned property to a private party is for a public use: “(1) where public 

necessity of the extreme sort requires collective action; (2) where the property remains subject to 

public oversight after transfer to a private entity; and (3) where the property is selected because of 

facts of independent public significance, rather than the interests of the private entity to which the 

property is eventually transferred.” Id. at 476 (cleaned up). In this third circumstance, we look at 

whether the “act of condemnation itself” was a public use, “rather than the use to which the 

condemned land eventually would be put.” Id. at 475-476. While this case arises from a different 

context than Hathcock, we find Hathcock’s reasoning on the meaning of “public use” in the 

Michigan Constitution instructive for deciding when the taking of private property that results 

from government-induced flooding is for a public use.

In this case, plaintiffs alleged that defendants exercised control over the Edenville Dam so 

much so that their use of the dam constituted a public use. Although privately-owned by Boyce, 

the dam was “subject to public oversight” by defendants. See id. at 476. The “act of 

condemnation” by defendants was the alleged affirmative actions taken by defendants to keep lake 

water levels high and conceal risks, contributing to the dam failure and the damage to plaintiffs’

properties. Analogizing to Hathcock, the relevant question is whether defendants took plaintiffs’

property by controlling the operation of the dam for a public use, not whether plaintiffs’ property—

once taken—would be put to a public use. See id. at 475-476. Plaintiffs alleged that defendants 

pressured Boyce to keep water levels high to protect aquatic life, prioritizing that interest at the 

expense of the safety of people and property. Accepting these allegations as true, they suggest that 

defendants, through their operational control of the dam, put the dam to a public use in their pursuit 

of environmental protection. Therefore, plaintiffs have sufficiently pleaded that defendants’

alleged taking of their private property constituted a public use for which plaintiff are entitled to 

just compensation. While discovery may reveal facts contradicting these allegations, our role now 

is to accept these allegations as true and determine whether they state a viable claim of inverse 

condemnation. See Mays, 506 Mich at 175. At this stage, plaintiffs’ claim is not “so clearly 

unenforceable that no factual development could possibly justify recovery.” El-Khalil, 504 Mich 

at 160. 

Furthermore, defendants broadly argue that an inverse condemnation claim cannot survive 

when it rests on allegations that a private entity’s operation of its private property resulted in 

damages. Defendants cite several cases for the proposition that “public use” can only arise from

government actions on government projects. We decline to accept defendants’ implicit suggestion 

to hold, in this context, and as a matter of law, that an inverse condemnation case can never be 
-36-

sustained when the alleged damages arise from a privately owned dam. “Flooding cases, like other 

takings cases, should be assessed with reference to the particular circumstances of each case, and 

not by resorting to blanket exclusionary rules.” Arkansas Game & Fish Comm v United States, 

568 US 23, 37; 133 S Ct 511; 184 L Ed 2d 417 (2012) (cleaned up). The fact that most previous

inverse condemnation cases in Michigan have involved government projects is unsurprising.19 

Because an inverse condemnation claim must be brought against the government, see Wiggins, 

291 Mich App at 573, proving sufficient state action will often be easier when the government 

unilaterally owned and operated a dam. But that does not mean that, when allegations are made 

that the government—acting along with a privately owned dam operator—took affirmative steps 

that caused the dam to fail and damaged downstream property owners, Michigan’s takings clause 

provides no remedy. See Fritz v Washoe Co, 132 Nev 580, 584; 376 P3d 794 (2016) (“When a 

private party and a government entity act in concert, government responsibility for any resulting 

damage to other private property may be established by demonstrating that the government entity 

was substantially involved in the development of private lands for public use which unreasonably 

injured the property of others.”) (cleaned up).

Defendants misconstrue language from Wiggins to conclude that water flowing through a 

privately owned dam can never provide the basis for an inverse condemnation claim. In Wiggins, 

291 Mich App at 536-538, the city constructed and installed drains on two properties abutting the 

plaintiffs’ property in order to address a problem with the flow of surface water. Before 

completion of the project, the neighboring property owners signed documents stating that, when 

the city completed the project, the drains would “ ‘belong solely to the [property owners] and 

[would] be the [property owners’] responsibility to maintain/repair.’ ” Id. at 537. Ultimately, the 

plaintiffs alleged that the new drainage system redirected water from their neighbors’ properties 

onto their own property, resulted in damages that constituted an uncompensated taking. Id. at 538. 

In evaluating the plaintiffs’ inverse condemnation claims, we grouped the allegations in two 

buckets: the installation of the drain itself, and the subsequent increase in the flow of surface water 

through the drain onto the plaintiffs’ property. Id. at 572-573. First, we held that “the construction 

and installation of the drain itself was an affirmative act by the City or its agents, specifically 

directed toward the [plaintiffs’] property, which had the effect of limiting the use of the [plaintiffs’]

parcel.” Id. at 572. But “any material increase in the flow of water through the drain . . . could 

not have constituted a taking as a matter of law.” Id. We reasoned that there was no state action 

to support plaintiffs’ inverse condemnation claim on this ground because the increased flow of 

water necessarily occurred after the city’s involvement in the drainage project ceased. Id. at 572-

573. Thus, we held that “the City can have no inverse-condemnation liability arising out of the 

flow of water through the privately owned drain.” Id. at 573. 

 

19 Although unpublished, this Court has allowed an inverse condemnation claim to proceed when 

the claim stemmed from government involvement in a private construction project on private 

property. See Nakfoor v Our Savior Lutheran Church, unpublished per curiam opinion of the 

Court of Appeals, issued January 30, 2018 (Docket No. 335257) (denying summary disposition to 

Drain Commissioner when the plaintiffs alleged that the commissioner “authoriz[ed] or approv[ed]

the fill activity that resulted in the increase in the elevation of [a private church’s] property, which 

had the effect of diverting excess storm water onto plaintiffs’ property”).
-37-

This case is distinguishable. Taken as true, plaintiffs’ allegations establish that defendants 

were closely involved in the operation of the dam through the time of its failure. Plaintiffs allege 

that defendants took active steps to pressure and encourage Boyce to raise the water levels in 

Wixom Lake. Unlike in Wiggins, where the city disclaimed any role in maintenance or repair of 

the drain after transferring ownership to the private property owners, plaintiffs alleged that 

defendants maintained operational control over Edenville Dam in the period leading up to its 

collapse. Wiggins therefore does not compel dismissal of plaintiffs’ claims. For these reasons, 

defendants’ public use argument lacks merit.

III. CONCLUSION

The Court of Claims correctly evaluated defendants’ motion for summary disposition under 

MCR 2.116(C)(8). In doing so, the Court of Claims properly limited its review to the pleadings 

and declined to consider additional documentary evidence. Accepting plaintiffs’ factual

allegations as true, we conclude that plaintiffs stated viable claims for inverse condemnation. 

The decision of the Court of Claims is affirmed.

/s/ Kristina Robinson Garrett

/s/ Kirsten Frank Kelly

/s/ Noah P. Hood