Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr.,

 Chief Justice

Michael F. Cavanagh

Marilyn Kelly

Stephen J. Markman

Diane M. Hathaway

Mary Beth Kelly

Brian K. Zahra, Justices

Order 

April 25, 2011 

Rehearing Nos. 576, 578 

5 October 2010 

138863-66 

ANGLERS OF THE AuSABLE, INC., 

MAYER FAMILY INVESTMENTS, LLC, 

and NANCY A. FORCIER TRUST, 

Plaintiffs-Appellants, 

 SC: 138863-138866 

v COA: 279301, 279306, 280265, 

 280266 

DEPARTMENT OF ENVIRONMENTAL Otsego CC: 06-011697-CE 

QUALITY, DIRECTOR OF THE 

DEPARTMENT OF ENVIRONMENTAL 

QUALITY, and MERIT ENERGY COMPANY, 

 Defendants-Appellees. 

_________________________________________/ 

 On order of the Court, the motions for rehearing are considered, and they are 

GRANTED. This Court’s opinion of December 29, 2010 is VACATED and this appeal 

is DISMISSED on grounds of mootness, for reasons set forth in the dissenting opinion 

reported at 488 Mich 91 (2010). The Court of Appeals opinion at 283 Mich App 115 

(2009) is also VACATED. See Grand Traverse Co Prosecutor v Meijer, Inc (In re 

Investigative Subpoenas), 488 Mich 1032 (2011); United States v Munsingwear, Inc, 340 

US 36, 39-40 (1950) (“The established practice of the Court in dealing with a civil case 

. . . which has become moot while on its way here, or pending our decision on the merits, 

is to reverse or vacate the judgment below. . . . When that procedure is followed, the 

rights of all parties are preserved. . . .”). 

 

 “T[he] judicial power . . . is the right to determine actual controversies arising 

between adverse litigants, duly instituted in courts of proper jurisdiction.” Anway v 

Grand Rapids R Co, 211 Mich 592, 616 (1920) (quoting Muskrat v United States, 219 US 

346 [1911]) (emphasis added). As a result, “this Court does not reach moot questions or 

declare principles or rules of law that have no practical legal effect in the case before” it. 

Federated Publications, Inc v City of Lansing, 467 Mich 98, 112 (2002). In accordance 

with these principles, this case is moot because it presents “nothing but abstract questions 
2

of law, which do not rest upon existing facts or rights.” Gildemeister v Lindsay, 212 

Mich 299, 302 (1920). In light of the fact that: (a) defendant has quit-claimed its 

easement interest back to the riparian owner; (b) defendant no longer has the physical 

means of discharging water into Kolke Creek or the Au Sable River; (c) defendant is now 

disposing of the water by alternative means; (d) defendant no longer has a permit that 

allows discharge into Kolke Creek or the Au Sable River; and (e) the Department of 

Environmental Quality has attested that “there no longer exists the possibility of surface 

water discharge to Kolke Creek or the Au Sable River,” this is a case of obvious 

mootness. There is “no reasonable expectation that the wrong will be repeated,” United 

States v WT Grant, 345 US 629, 633 (1953), because the very harms that plaintiffs sought 

to enjoin no longer exist. 

 YOUNG, C.J. (concurring). 

I fully join this Court’s order and write only to answer a criticism the dissenting 

statement raises. Justice Cavanagh quotes my dissenting opinion in United States 

Fidelity Ins & Guar Co v Michigan Catastrophic Claims Ass’n (On Reh’g), 484 Mich 1, 

27 (2009) (YOUNG, J., dissenting), and rhetorically asks the question I raised in that case 

– “What changed?” – that would lead me to support rehearing in the instant case. 

The answer is simple: the majority opinion in USF&G prevailed over my 

dissenting opinion, and I see no reason to remain bound by a position that failed to 

receive majority support two years ago.1

 Today’s order merely applies the very same 

principles that former Justice WEAVER and Justices HATHAWAY, MARILYN KELLY and 

notably Justice CAVANAGH himself applied in deciding to grant rehearing in USF&G. 

And although Justice CAVANAGH dissents from the order in this case, he does not 

repudiate his decision to grant rehearing in USF&G. Instead, his dissent in the instant 

case is fully premised on his belief that this Court’s previous disposition on the mootness 

issue “was properly decided.” Because I continue to hold the opposite belief—that this 

Court erred in issuing an opinion on the merits of a moot case2

—I fully join today’s 

order. 

ZAHRA, J. (concurring). 

 

1 Moreover, Justice ZAHRA makes a persuasive argument in his concurring statement to 

this order that my dissenting opinion in USF&G interpreted a standard on rehearing that 

is inapplicable in this Court. Rather, “[n]othing” in the text of the court rules pertaining 

to this Court “supports the notion that the Court may only grant rehearing where new 

legal arguments are presented.” Post, at ___. 

2

 See my dissent in the original Anglers opinion, 488 Mich at 91. 
3

I concur in the order granting rehearing, which vacates this Court’s opinion of 

December 29, 2010, as well as the Court of Appeals’ opinion of March 31, 2009. I write 

separately to address the propriety of granting a motion for rehearing when there has been 

a change in the makeup of the Court between the time the Court’s initial opinion is 

released and the date the motion for rehearing is decided. 

 

 MCR 7.313(E), this Court’s rule governing motions for rehearing, is a 

discretionary rule as it does not define a standard under which this Court is to decide 

motions for rehearing.3

 Thus, whether to grant or deny the motion is left to the discretion 

of the Court. Historically, in exercising discretion, the Justices of this Court consider 

whether the Court properly interpreted and applied the law. This explains why Justices 

typically cast votes on rehearing that are consistent with their initial view of the case.4

 

3

 MCR 7.313(E) provides: 

(1) To move for rehearing, a party must file within 21 days after the 

opinion was filed (the date of an opinion is stamped on the upper right 

corner of the first page): 

 (a) 24 copies of a motion prepared as provided in MCR 7.309, if the 

opinion decided a case placed on a session calendar; or (b) 14 typewritten 

copies of a motion, if the opinion decided a noncalendar case; and 

 (c) proof that a copy was served on the parties. 

The motion for rehearing must include reasons why the Court should 

modify its opinion. 

(2) Unless otherwise ordered by the Court, timely filing of a motion 

postpones issuance of the Court's judgment order until the motion is denied 

by the Court or, if granted, until at least 21 days after the filing of the 

Court's opinion on rehearing. 

(3) Any party may answer a motion within 14 days after it is served by 

filing 

 (a) 24 or 14 copies of the motion, depending on whether the motion 

was filed under subrule (D)(1)(a) or (b); and. 

 (b) proof that a copy was served on the other parties. 

(4) Unless ordered by the Court, there is no oral argument. 

4

 See e.g., Bezeau v Palace Sports & Entertainment, Inc, 488 Mich 904 (2010) (YOUNG, 

J., dissenting); Pellegrino v AMPCO System Parking, 487 Mich 860 (2010) (showing that 

WEAVER and HATHAWAY, JJ, would grant rehearing); People v Richmond, 486 Mich 

1041 (2010) (CORRIGAN, J, concurring in part and dissenting in part); Jackson v Estate of 

Green, 485 Mich 869 (2009) (MARKMAN, J., dissenting); Boodt v Borgess Med Ctr, 482 

Mich 1001, 1002-1004 (2008) (CAVANAGH, J., dissenting); Gilbert v DaimlerChrysler 

Corp, 472 Mich 1201 (2005) (CAVANAGH, MARILYN KELLY, and WEAVER JJ., 

dissenting). 
4

Generally speaking, a Justice will only change his or her vote when the legal arguments 

on rehearing persuade the Justice that his or her initial view of the case was erroneous. 

Not surprisingly, Justices MARILYN KELLY, CAVANAGH, HATHAWAY, MARKMAN and 

Chief Justice YOUNG view this case in the same light that they did on the date the original 

opinion was issued. The instant motion thus rises or falls on the votes cast by myself and 

Justice MARY BETH KELLY. Because we were not seated on the Court when the initial 

opinion was released, we have no established position in this case. 

 It is suggested that Justice MARY BETH KELLY and I ought not cast our votes 

based on the merit of the legal arguments and the correctness of the opinion that is the 

subject of rehearing and, instead, limit our review to a determination whether any new 

arguments have been presented to this Court that were not previously presented at the 

time the opinion under review was released. Nothing in MCR 7.313(E), however, 

supports the notion that the Court may only grant rehearing where new legal arguments 

are presented. Significantly, such a constraint exists in the pertinent court rule for the 

Court of Appeals. Specifically, MCR 7.215(I)(1), which governs motions for rehearing 

and reconsideration in the Court of Appeals, states that “[m]otions for reconsideration are 

subject to the restrictions contained in MCR 2.119(F)(3).” MCR 2.119(F)(3) in turn 

provides that: 

Generally, and without restricting the discretion of the court, a motion for 

rehearing or reconsideration which merely presents the same issues ruled 

on by the court, either expressly or by reasonable implication, will not be 

granted. The moving party must demonstrate a palpable error by which the 

court and the parties have been misled and show that a different disposition 

of the motion must result from correction of the error. 

The absence of any reference to MCR 2.119(F) in the rule governing motions for 

rehearing in this Court, and the express reference to it in the equivalent Court of Appeals 

rule, leads me to conclude that in deciding the pending motion it is appropriate to 

consider whether the Court’s December 29, 2010 opinion was properly decided, rather 

than limit review to the question regarding whether new arguments are presented on 

rehearing.5

 

5

 Although this case presents a motion for rehearing, not a motion for reconsideration, I 

believe the same analysis would apply in considering a motion for reconsideration. See 

MCR 7.313(F). Moreover, this analysis is wholly consistent with MCR 1.103, which 

provides: 

The Michigan Court Rules govern practice and procedure in all courts 

established by the constitution and laws of the State of Michigan. Rules 

stated to be applicable only in a specific court or only to a specific type of 

proceeding apply only to that court or to that type of proceeding and control 

over general rules. 
5

 This same conclusion has been reached by virtually every Justice faced with this 

situation. Then-Justice ALTON DAVIS voted to grant reconsideration where he concluded 

the Court’s prior order was erroneous. Duncan v State of Michigan, 488 Mich 957 

(2010) (DAVIS, J., concurring). Likewise, Justice HATHAWAY voted to grant rehearing 

and vacate an opinion originally issued before she joined the Court. United States 

Fidelity Ins & Guaranty Co v Michigan Catastrophic Claims Ass’n (On Rehearing), 484 

Mich 1 (2009).6 Then-Justice CORRIGAN and Chief Justice YOUNG did the same in 

McCready v Hoffius, 459 Mich 1235 (1999). History informs us that this is not a recent 

trend in the Court. See, e.g., Harmsen v Fizzell, 354 Mich 60 (1958); Weller v Mancha, 

353 Mich 189 (1958); Rumney v Coville, 51 Mich 186 (1883).7

 

 

MCR 7.313(E) and MCR 7.313(F) govern motions for rehearing and reconsideration in 

this Court as part of subchapter 7.300, which houses rules applicable only to this Court. 

They are therefore rules stated to be applicable only in a specific court and control over 

the general rule, 2.119(F), in governing motions for rehearing and reconsideration. As 

MCR 7.313(E) and (F) are the controlling rules, MCR 2.119(F)(3) would not apply 

unless somehow incorporated by those rules. MCR 1.103 cannot be read to incorporate 

MCR 2.119(F)(3) into the rules applicable to motions for rehearing in the Supreme Court. 

To do so would render meaningless the express reference to MCR 2.119(F)(3) in the 

rehearing rule applicable to the Court of Appeals, MCR 7.215(I)(1). Simply put, the 

express reference to MCR 2.119(F)(3) in the Court of Appeals rule would be unnecessary 

if MCR 1.103 already made MCR 2.119(F)(3) the controlling standard in all Michigan 

appellate courts. 

 In an attempt to buttress his argument, Justice CAVANAGH relies on the public 

internal operating procedures (IOPs) of this Court. However, reference to the IOPs is not 

helpful in this analysis. First, these procedures are nonbinding and merely observatory 

guidelines, subject to change at any time without notice. Moreover, these nonbinding 

procedures suggest only that MCR 2.119(F)(3) be incorporated into review of a motion 

for reconsideration. Significantly, the IOP for rehearing motions, IOP I(J), makes no 

reference to MCR 2.119(F)(3). Thus, even if the nonbinding IOPs were looked to for 

guidance, the conclusion must be reached that MCR 2.119(F)(3) would not apply here 

because it does not apply to motions for rehearing brought in this Court. 

6

 Justice HATHAWAY also would have granted rehearing in Moore v Secura Ins, 483 Mich 

928 (2009), where the opinion was issued before she joined the Court. 

7

 Notwithstanding Justice CAVANAGH’s assertion that the members of this Court have 

generally applied MCR 2.119(F)(3) as the standard for granting rehearing and 

reconsideration, in each case that he cites the justices referencing MCR 2.119(F)(3) were 

adhering to their previously stated view of the case. Further, in no decision of this Court 

has a majority ever applied MCR 2.119(F)(3) as the governing standard for deciding a 

motion for reconsideration or rehearing. In United States Fidelity Ins & Guar Co, 484 

Mich at 11 n 12, the majority cited to MCR 2.119(F)(3) in responding to the dissent that 
6

 The inquiry does not end, in my opinion, upon review of the correctness of the 

decision under review. As is evident from the substance of the dissent in this case, which 

echoes the dissent of Chief Justice YOUNG in United States Fidelity Ins & Guar Co, 484 

Mich at 27, it can be unsettling to this Court when within the period for rehearing, 

interpretation of the law changes due to a change in the composition of the Court. See 

also Sazima v Shepherd Bar & Restaurant, 483 Mich 924 (2009) (MARKMAN, J., 

dissenting). Because of these concerns, my discretion is also guided by consideration of 

the jurisprudential significance of the issues presented on rehearing. 

 

 Justice CAVANAGH claims that the newly composed Court is “undoing recent 

precedent.” Like every Justice on this Court, I respect the role stare decisis plays in 

Michigan’s jurisprudence. That said, every Justice on this Court, with the exception of 

Justice MARY BETH KELLY and myself, has at one time or another found it appropriate to 

overrule precedent because the Justice concluded doing so served the best interests of 

Michigan’s jurisprudence. See e.g., Regents of University of Michigan v Titan Ins Co, 

487 Mich 289 (2010); Robinson v City of Detroit, 462 Mich 439 (2000). In my view, the 

order granting rehearing and vacating the December 29, 2010 opinion does not undo 

precedent; it restores precedent. Simply stated, the Court disregarded the mootness 

doctrine so that it could overrule Preserve the Dunes, Inc v Dep’t of Environmental 

Quality, 471 Mich 508 (2004), and change the course of over a century of established 

Michigan water law. Rehearing is properly granted here, not only because the underlying 

dispute is moot, but also because Preserve the Dunes properly interprets Michigan law.8

 

 I also disagree with Justice CAVANAGH that the order granting rehearing runs afoul 

of City of Erie v Pap’s AM, 529 US 277 (2000). When considering the instant case in its 

procedural entirety, the situation here is unlike the one in City of Erie.

9

 In particular, 

 

the prior decision to grant rehearing was consistent with that standard. A majority, 

however, did not apply MCR 2.119(F)(3) when this Court actually granted rehearing in 

that case. United States Fidelity Ins & Guar Co v Michigan Catastrophic Claims Ass’n v 

Michigan Catastrophic Claims Ass’n, 483 Mich 918 (2009). 

8

 It is inconsequential that in considering the merits of this Court’s Decmber 29, 2010 

opinion that this Court previously denied the motion to dismiss for mootness. Defendants 

raise the mootness issue in their motions for rehearing. Moreover, the mootness doctrine 

is jurisdictional as it concerns a court’s inherent judicial power, and therefore, can be 

raised at any time. See People v Richmond, 486 Mich 29, 34 (2010). Consideration of 

the correctness of a decision thus necessarily requires consideration regarding whether 

this Court acted within the scope of its jurisdiction and judicial power. 

9

 In City of Erie, the U.S. Supreme Court rejected the plaintiff’s argument that the case 

was moot after the plaintiff voluntarily closed his nude dancing establishment and sold 
7

Merit Energy Company’s alternative plan for remediating the pollutant in its groundwater 

was largely dictated by the circuit court decision to vacate Merit’s permit allowing 

discharge into Kolke Creek. As Chief Justice YOUNG set forth in his dissenting opinion: 

The lead opinion claims that “the trial court has left open the door 

for Merit to discharge treated water into Kolke Creek at a lower than 

originally proposed rate.” This claim appears plausible when looking 

solely at the circuit court’s June 26, 2007, amended opinion. But that 

opinion was superseded by subsequent events. In particular, the circuit 

court’s January 31, 2008, opinion ruled that the DEQ had erroneously 

issued a permit to Merit. Both the Court of Appeals and, eventually, this 

Court denied defendants’ applications for leave to appeal, leaving intact the 

circuit court’s opinion. Accordingly, even if the circuit court’s June 26, 

2007, decision “left open the door for Merit to discharge treated water into 

Kolke Creek,” its January 31, 2008, decision closed that door, and this 

Court’s denial of leave bolted the door shut. Further, without either

physical access to Kolke Creek or a valid permit, Merit has no lawful 

authority to discharge any amount of anything into Kolke Creek. [Anglers

of the Au Sable v DEQ, 488 Mich 69, at 107 (2010) (footnote omitted).] 

Thus, unlike the voluntary and unilateral actions on the part of the plaintiff in City of 

Erie, the vacation of Merit’s permit and this Court’s decision to deny leave came about 

independently from Merit and without action on the part of Merit. As a result, the 

situation here is not one where a party’s voluntary actions are an attempt to insulate a 

favorable decision from review. Rather, the independent court action invalidating 

Merit’s permit moves this case entirely outside the concerns raised in City of Erie.

10 

Accordingly, I concur in the Court’s order to grant rehearing. 

 MARY BETH KELLY, J., joins the statement of ZAHRA, J. 

 CAVANAGH, J. (dissenting). 

I dissent from the majority’s decision to grant defendants’ motions for rehearing 

and vacate this Court’s December 29, 2010 opinion. Contrary to Justice ZAHRA’s belief 

that this Court “disregarded the mootness doctrine,” this Court previously considered, at 

great length, defendants’ arguments related to this issue, as evidenced by my concurring 

 

his property because the plaintiff could reopen his business in another building, as it was 

still incorporated. City of Erie, 529 US at 284-288 and 302-303, Scalia, J., concurring. 

10 See also Anglers of the Au Sable, 486 Mich at 986, n 6 (CORRIGAN, J., dissenting), and 

id. at 989, n 10 (YOUNG, J., dissenting) persuasively distinguishing City of Erie from the 

instant case. 
8

statement and the three “emphatic[]” dissenting statements to this Court’s June 18, 2010 

order denying defendant Merit’s motion to dismiss for mootness. Anglers of the AuSable, 

Inc v Dep’t of Environmental Quality, 486 Mich 982, 994 (2010) (YOUNG, J., dissenting). 

Defendants make no new arguments in their current motions, and the June 18, 2010 order 

was properly decided, therefore, reconsideration on mootness grounds is improper.11 

 

11 I cannot join Justice ZAHRA’s belief that MCR 2.119(F)(3) does not apply to this 

Court’s review of motions for rehearing and reconsideration. Although it is true that 

MCR 7.313(E) and MCR 7.313(F) apply only to this Court and do not expressly crossreference MCR 2.119(F)(3), MCR 1.103 addresses the general applicability of the Court 

Rules and states that the rules “govern practice and procedure in all courts . . . . Rules 

stated to be applicable only in a specific court or only to a specific type of proceeding 

apply only to that court or to that type of proceeding and control over the general rules.” 

(Emphasis added.) Thus, because MCR 7.313(E) and MCR 7.313(F) offer no standard 

for considering motions for reconsideration and rehearing and MCR 2.119(F)(3) does not 

state that it is applicable only in specific courts or to a specific type of proceeding, it 

appears that it is applicable to this Court’s consideration of motions for reconsideration 

and rehearing. 

 This Court’s own publicly available Internal Operating Procedures further support 

the premise that MCR 2.119(F)(3) applies to this Court’s review of motions for rehearing 

and reconsideration. Indeed, IOP I(E)(5)(b)(ii) states “MCR 7.313(E) does not specify 

grounds for a motion for reconsideration. The same general principles that govern 

motions for reconsideration in trial courts apply. MCR 2.119(F)(3).” I acknowledge that 

the introduction to the Internal Operating Procedures explains that “[t]he Michigan Court 

Rules are and remain the governing procedures of this Court,” but the introduction also 

states that the procedures “could be grouped under the heading ‘How Things Work at the 

Supreme Court’” and that “the goal of [the procedures] was to set forth those features of 

our internal procedures that might benefit the appellate practitioner.” Further, IOP 

I(E)(5)(b)(ii) is consistent with MCR 1.103’s directive that the Court Rules “govern 

practice and procedure in all courts” unless otherwise stated. Thus, because our Internal 

Operating Procedures are available for public review and are intended to assist the 

appellate practitioner in navigating a course through this Court, I believe that they should 

not be summarily ignored. 

 Finally, although I believe that MCR 2.119(F)(3) does apply to this Court’s 

consideration of motions for reconsideration and rehearing, I agree that the Court retains 

an element of discretion given that MCR 2.119(F)(3) states that it “[g]enerally” applies 

and that it does not “restrict[] the discretion of the court.” Nevertheless, the members of 

this Court have generally applied MCR 2.119(F)(3) as the standard for determining 

whether granting a motion for reconsideration or rehearing is proper. See, e.g., Duncan v 

State, 486 Mich 1071, 1074 (2010) (MARILYN KELLY, C.J., dissenting); McCormick v 

Carrier, 485 Mich 851-852 (2009) (WEAVER, J., concurring); Univ of Michigan Regents 

v Titan Ins Co, 484 Mich 852, 853-854 (2009) (YOUNG, J., dissenting); United States 
9

Apparently, some members of the majority are now willing to rely merely on the everchanging nature of the Au Sable River as reason to reverse course, contrary to their 

previous statements. Indeed, only two short years ago, Chief Justice YOUNG eloquently 

bemoaned this Court’s reconsideration of a matter after a change in this Court’s 

composition. In his dissent in United States Fidelity Ins & Guar Co v Michigan 

Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 27 (2009), the Chief Justice 

stated: 

I. WHAT CHANGED? 

The facts have not changed. The text of the statute at issue has not 

changed. The parties’ arguments have not changed. And the rationale 

advanced in the opinions of this Court has not changed. Yet, within a 

matter of months, a decision of this Court, thoughtfully briefed, argued, and 

considered by seven justices, is no longer worth the paper it was written on. 

Even the casual observer, however, does not really need to ask why. The 

reason is obvious: . . . the composition of this Court changed. 

Now, in what appears to be “déjà vu all over again,” Chief Justice YOUNG is happy to 

join in our newly composed Court’s undoing of recent precedent. I find interesting Chief 

Justice YOUNG’s freshly announced willingness to forgo his position in USF&G because 

he now sees “no reason to remain bound by a position that failed to receive majority 

support two years ago.” Ante ___. While Chief Justice YOUNG is obviously free to 

change his mind, it is worth noting that his decision comes now, when it suits his 

previous dissenting position in this case, yet he consistently held fast to his USF&G 

dissent, see Lansing Sch Educ Ass’n v Lansing Bd of Educ, 485 Mich 966, 967 n 10 

(2009) (YOUNG, J., dissenting); University of Michigan Regents v Titan Ins Co, 484 Mich 

852, 853-855 (2009) (YOUNG, J., dissenting), even as recently as the end of last term. 

See McCormick v Carrier, 487 Mich 180, 266 (2010) (MARKMAN, J., dissenting). 

Also, Justice ZAHRA errs in the application of his newly-created standard for 

reviewing motions for reconsideration and rehearing. Even if one accepts that a Justice 

may consider the merits of the legal arguments, correctness of the opinion, and 

 

Fidelity Ins & Guar Co v Michigan Catastrophic Claims Ass’n, 484 Mich 1, 3 n 12 

(2009); People v Osaghae, 460 Mich 529, 535 (1999) (MARILYN KELLY, J., dissenting). 

See, also, IOP I(E)(5)(b)(ii). Furthermore, older caselaw from this Court indicates that 

MCR 2.119(F)(3) reflects this Court’s historic standard for deciding motions for 

reconsideration and rehearing. See, e.g., Thompson v Jarvis, 40 Mich 526 (1879) 

(denying a motion for rehearing because “nothing [was] suggested beyond what was 

considered by the court upon original arguments . . . .”). 
10

jurisprudential significance of the issues presented,12 Justice ZAHRA, in concurring with 

this Court’s order reversing on mootness grounds, considers the merits of the legal 

arguments and correctness of the June 18, 2010 order, not this Court’s December 29, 

2010 opinion. Defendants did not file a motion for reconsideration of this Court’s June 

18, 2010 order; therefore, the majority’s reaching to grant rehearing of this Court’s 

subsequent opinion is quite a stretch. 

Furthermore, Justice ZAHRA’s claim that this Court’s order “restores precedent” 

because it breathes new life into Preserve the Dunes, Inc v Dep’t of Environmental 

Quality, 471 Mich 508 (2004), is true only from a very narrow perspective. As Justice 

MARILYN KELLY explained in her concurring opinion in this case, “Preserve the Dunes is 

of relatively recent vintage, having been decided a mere six years ago. . . . Moreover, 

Preserve the Dunes represented a sea change in one area of the law and toppled settled 

interpretations of MEPA that had existed for nearly 30 years.” Anglers of the AuSable, 

Inc v Dep’t of Environmental Quality, 488 Mich 69, 88 (2010) (MARILYN KELLY, J., 

concurring) (citing Eyde v Michigan, 393 Mich 453, 454 (1975); Ray v Mason Co Drain 

Comm’r, 393 Mich 294, 304-305 (1975); West Mich Environmental Action Council v 

Natural Resources Comm, 405 Mich 741, 751, (1979); Nemeth v Abonmarche Dev, Inc,

457 Mich 16 (1998)). Thus, in essence, the majority believes that rehearing is proper in 

this case merely because it permits them to resuscitate a precedent with which they agree. 

Finally, as I explained in my concurring statement to the order denying the motion 

to dismiss for mootness, Anglers of the AuSable, 486 Mich at 982-985, this case is not 

moot. The United States Supreme Court has warned appellate courts to be particularly 

wary of finding an issue moot when there remains “a public interest in having the legality 

of the practices settled,” United States v WT Grant Co, 345 US 629, 632-633 (1953), and 

when the party seeking to moot the issue is the party who prevailed in the lower court. 

City of Erie v Pap’s AM, 529 US 277, 287-288 (2000). Such concern is necessary 

because any effort to circumvent the Court’s jurisdiction by a party through its voluntary 

actions is repugnant to an appellate court’s “interest in preventing litigants from 

attempting to manipulate the Court’s jurisdiction to insulate a favorable decision from 

review.” Id. at 288. See, also, City News & Novelty, Inc v City of Waukesha, 531 US 

278, 283-284 (2001). The majority’s decision to grant the motions for rehearing and 

dismiss this case as moot despite the utter lack of new arguments relating to this issue is 

perhaps even more repugnant to this principle. 

The majority’s decision to vacate this Court’s opinion leaves unanswered several 

questions of significant public concern, including whether plaintiffs have a cause of 

 

12 I would note that Justice ZAHRA’s new standard will almost always boil down to a 

Justice’s decision on the “correctness of the opinion” because it would be rare for this 

Court to consider an issue that is not jurisprudentially significant, see MCR 7.302(B)(3), 

nor does this Court often entertain frivolous legal arguments. 
11

action to challenge the DEQ’s decision to issue a permit to discharge water into Kolke 

Creek and the proper method to determine the reasonableness of water use. Further, and 

perhaps most importantly, the majority’s decision encourages gamesmanship by 

permitting defendants to “insulate a favorable decision from review” because defendants’ 

unilateral actions were the basis for Merit’s motion to dismiss for mootness, just as in 

City of Erie. The plaintiff-respondent in City of Erie filed an affidavit after the United 

States Supreme Court granted certiorari stating that he had closed his business, sold his 

property, and never intended to operate a nude dancing establishment again. City of Erie, 

529 US at 284-288, 302-303 (Scalia, J., concurring). The City of Erie Court reasoned 

that the plaintiff-respondent could still obtain another building and reopen the 

establishment, given that it was still incorporated under state law. City of Erie, 529 US at 

287. Similarly, in this case, defendant Merit could obtain another easement and pursue a 

discharge that would constitute a reasonable use of the water under the existing test. The 

City of Erie Court also reasoned that both parties had a continuing interest in the 

litigation because the city could not enforce its ordinance under the lower court’s 

decision, even against other parties, and the plaintiff-respondent still had an interest in 

preserving the lower court’s decision in favor of his rights. Id. at 288. In City of Erie,

the city’s inability to enforce its ordinance against the plaintiff-respondent and other 

inhabitants of the city constituted an ongoing injury. Similarly, here, plaintiffs’ ability to 

enforce their riparian interests against defendant and other parties seeking to use Kolke 

Creek will continue to be affected by the conclusion that plaintiffs lack a cause of action 

to challenge the DEQ’s decision to issue a permit to discharge water into Kolke Creek 

and the unanswered question regarding the proper method to determine the 

reasonableness of water use. 

The majority attempts to address this problem by vacating the Court of Appeals 

opinion in this case, but its efforts fail. By erroneously concluding that this case is moot, 

the majority rewards defendants by insulating them from the unfavorable result of this 

Court’s well-reasoned opinions. Furthermore, the cases cited by the majority in support 

of its decision to vacate the Court of Appeals opinion address situations where appellate 

review was “prevented through happenstance,” United States v Munsingwear, Inc, 340 

US 36, 40 (1950) (emphasis added), i.e., “due to circumstances unattributable to any of 

the parties.” Karcher v May, 484 US 72, 83 (1987) (emphasis added). See, also, US 

Bancorp Mortg Co v Bonner Mall Partnership, 513 US 18, 22-23 (1994). And, while the 

United States Supreme Court has concluded that, in some situations, vacation of a lower 

court decision is proper when a party who seeks review of the merits of an adverse ruling 

is frustrated by the “unilateral action of the party who prevailed below,” US Bancorp, 513 

US at 25, that Court has also concluded that unilateral attempts to moot a case only after 

leave to appeal is granted should not be well received. See City of Erie, 529 US at 288 

(noting that the defendant raised the mootness issue after the Court granted certiorari). 

Indeed, in this case, defendants’ attempts to moot this case and insulate its favorable 

result began only after this Court granted leave to appeal. 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

April 25, 2011 

t0421 

 

12

 Thus, I cannot agree that this case presents no justiciable issues. Rather, because 

the mootness issue was already thoughtfully considered by this Court and defendants 

merely present the same unconvincing arguments, I would deny defendants’ motions for 

rehearing. 

 MARILYN KELLY, and HATHAWAY, JJ., join the statement of CAVANAGH, J.