Opinion
SC 165166 (91) COA 356088
10-11-2024
MICHIGAN FARM BUREAU, MICHIGAN MILK PRODUCERS ASSOCIATION, MICHIGAN PORK PRODUCERS ASSOCIATION, MICHIGAN ALLIED POULTRY INDUSTRIES, DAIRY FARMERS OF AMERICA, SELECT MILK PRODUCERS, INC., MICHIGAN CATTLEMEN'S ASSOCIATION, SNIDER FARMS, LLC, d/b/a AIRPORT VIEW TURKEYS, ALPINE PORK, LLC, ATE FARMS, LLC, BEBOW DAIRY FARM, INC., d/b/a BEBOW DAIRY FARM, BENNETT FARMS LIVESTOCK, LLC, d/b/a BENNET FARMS LIVESTOCK, BLEICH DAIRY, BROOK VIEW DAIRY, LLC, d/b/a BROOK VIEW DAIRY, BURNS POULTRY FARMS, INC., CAR-MIN-VU FARMS, LLC, d/b/a CAR-MIN-VU DAIRY, CARY DAIRY FARM, INC., CARY'S PIONEER FARM, INC., CENTERWOOD FARMS, LLC, CENTRAL MICHIGAN MILK PRODUCERS, LLC, d/b/a CENTRAL MILK PRODUCTION, CLOVER FARMS, d/b/a CLOVER FAMILY FARMS, CONTRACT FINISHERS, INC., COURTER FARMS EAST FEEDLOT, LLC, d/b/a COURTER FARMS EAST, COURTER FARMS WEST FEEDLOT, LLC, d/b/a COURTER FARMS WEST, CROSSROADS DAIRY, LLC, D & K FARMS, DEN DULK DAIRY FARM, LLC, DEYOUNG PORK, INC., d/b/a DEYOUNG PORK, INC. PLAINWELL, DOUBLE QUAD FARMS, LLC, d/b/a DOUBLE QUAD FARMS, DUTCH MEADOWS DAIRY, LLC, d/b/a DUTCH MEADOWS DAIRY, DYKHUIS FARMS, INC., d/b/a BASELINE FARM, EHINGER FARM, RIVERBEND FARM, SHAMROCK FARM, and VILLAGE CENTRAL SANDY RIDGE, EDGE WOOD DAIRY, LLC, d/b/a EDGE WOOD DAIRY, FAIRGROVE FARMS, INC., d/b/a FAIRGROVE FARMS, GERNAAT FAMILY FARMS, GW DAIRY, LLC, HALBERT DAIRY, LLC, d/b/a HALBERT DAIRY, DJN CATTLE FARMS, INC., d/b/a HALLIWILL FARMS, HICKORY GABLES, INC., d/b/a HICKORY GABLES, HIGH LEAN PORK, INC., d/b/a HIGH LEAN PORK 3, HIGHLAND DAIRY, LLC, d/b/a HIGHLAND DAIRY, GEERLINGS HILLSIDE FARMS, LLC, d/b/a HILLSIDE FARMS-FENNVILLE, HILLSIDE FARMS-OVERISEL, and HILLSIDE FARMS-OVERISEL HOG BARNS, HARVEST HILL FARM, HASS FEEDLOT, LLC, d/b/a HASS FEEDLOT HOME FARM and HASS FEEDLOT 2, HOLLOO FARMS, LLC, d/b/a HOLLOO FARMS, HURON PORK, LLC, INGLESIDE FARMS, J&J RUSSCHER PROPERTIES, LLC, J AND A PORK, LLC, d/b/a J AND A PORK, JMAX, LLC, d/b/a JMAX DAIRY, KARNEMAATS, LLC, KOBER FARMS, LLC, KY-10 FARMS, LLC, d/b/a KY-10 FARMS, LAIER FARMS, INC., d/b/a LAIER FARMS, LUCKY 7 DAIRY, LLC, LUCKY 7 FARMS, LLC, MYERS FARMS, LLC, d/b/a MYERS FARMS, NEW FLEVO DAIRY, INC., d/b/a NEW FLEVO DAIRY, NOBIS FARMS, LLC, d/b/a NOBIS DAIRY FARMS, NVF, INC., OOMEN BROTHERS, INC., d/b/a OOMEN BROTHERS HOGS, PACKARD FARMS, LLC, d/b/a PACKARD FARMS, PAYLA MEADOWS, LLC, PEACEFUL ROAD FARM, LLC, d/b/a PEACEFUL ROAD FARMS, PERFORMANCE FARMS, LLC, PETRO FARMS, LLC, POLL FARMS, INC., PRAIRIE VIEW DAIRY, LLC, PRECISION PORK FARM, INC., d/b/a PRECISION PORK FARM, PREFERRED HOG FARMS, INC., d/b/a PREFERRED HOG 146TH, THE PRESTON FARMS, LLC, d/b/a PRESTON HOG FARMS, PRIDGEON FARMS, LLC, d/b/a PRIDGEON FARMS, PSY FARMS, R & R PORK, LLC, d/b/a R & R PORK, RAPID RIDGE FARMS, LLC, d/b/a RAPID RIDGE, RED ARROW DAIRY, LLC, d/b/a RED ARROW DAIRY, RUGGLES BEEF FARMS, LLC, d/b/a RUGGLES BEEF FARMS, S & T BARNS, LLC, d/b/a S & T BARNS-BOOTH, S & T BARNS-FAWN RIVER, S & T BARNS-TSC, and S & T BARNS-HAENNI, SAND CREEK DAIRY, LLC, SCENIC VIEW DAIRY, LLC, d/b/a SCENIC VIEW DAIRY, SCHURING SWINE, LLC, d/b/a SCHURING FARMS, SCOTT McKENZIE FARMS, SELDOM REST HOG FARM, LLC, d/b/a SELDOM REST HOG FARM, SIDE STREET PORK, LLC, d/b/a SIDE STREET PORK, SKINNER FARMS, LLC, d/b/a SKINNER FARMS, STEENBLIK DAIRY, INC., STEWART FARMS, LLC, d/b/a STEWART FARMS, STOREY FARMS, LLC, STOUGHTON CREEK FARMS, LLC, d/b/a STOUGHTON CREEK FARMS, SWISSLANE DAIRY FARMS, INC., d/b/a SWISSLANE FARMS, TERREHAVEN FARMS, INC., d/b/a TERREHAVEN FARMS, VALLEY VIEW PORK, LLC, d/b/a VALLEY VIEW PORK, VAN OEFFELEN FARM SERVICES, VANDERPLOEG HOLSTEINS, LLC, d/b/a VANDERPLOEG HOLSTEINS, VDS FARMS, LLC, d/b/a VDS FARMS-FULTON and VDS FARMS-S AVENUE, VELD FARMS, LLC, d/b/a VELD FARMS, WALNUTDALE FARMS, INC., d/b/a WALNUTDALE FARMS DORR TWP, WIL-LE-FARMS, INC., d/b/a WIL-LE FARMS, WILLOW CREEK FARMS, WILLOW POINT DAIRY, LLC, d/b/a WILLOW POINT DAIRY, WILSON CENTENNIAL FARM, LLC, BAKERLADS FARM, DEER CREEK POULTRY FARM, HARTLAND FARMS, INC., d/b/a HARTLAND FARMS, HUDSON DAIRY, LLC, d/b/a HUDSON DAIRY, MAYFLOWER DAIRY, LLC, MEADOW ROCK, LLC, d/b/a MEADOW ROCK DAIRY, MEDINA DAIRY, LLC, d/b/a MEDINA DAIRY, NOBEL FAMILY DAIRY, LLC, OTTAWA TURKEY FARM, d/b/a OTTAWA TURKEY FARM 112TH, and CROCKERY CREEK TURKEY FARMS, LLC, d/b/a CROCKERY CREEK-80TH, Plaintiffs-Appellees/ Cross-Appellants v. DEPARTMENT OF ENVIRONMENT, GREAT LAKES, AND ENERGY, Defendant-Appellant/ Cross-Appellee.
Ct of Claims: 20-000148-MZ
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the motion for rehearing is considered, and it is DENIED. MCR 7.311(F).
VIVIANO, J. (dissenting).
Because the majority's opinion in this case adopts a position that was not argued or even anticipated by either party, I would grant plaintiff's motion for rehearing. Under MCR 7.311(F), "[m]otions for rehearing are subject to the restrictions contained in MCR 2.119(F)(3)." That subrule provides:
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. [MCR 2.119(F)(3).]In turn, "palpable" has been defined under that subrule as "easily perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest." Luckow Estate v Luckow, 291 Mich.App. 417, 426 (2011) (quotation marks, citations, and brackets omitted).
Plaintiffs argue that the majority's analysis requires the conclusion that the 2020 National Pollutant Discharge Elimination System general permit (the 2020 GP) meets the APA's definition of a "guideline." See MCL 24.203(7) (defining "guideline" as "an agency statement or declaration of policy that the agency intends to follow, that does not have the force or effect of law, and that binds the agency but does not bind any other person"). The parties did not specifically address this issue in prior briefing, either in the lower courts or this Court. Rather, EGLE argued that the 2020 GP is a binding "license" under the APA, and plaintiffs argued that the 2020 GP is a binding, though improperly promulgated, "rule" under the APA. Thus, as plaintiffs emphasize in their motion for rehearing, neither party argued in favor of-or even contemplated-the majority's characterization of the 2020 GP as an agency action that does not have the force or effect of law and that appears to fit the definition of a "guideline." Plaintiffs' motion, therefore, does not merely present the same issues ruled on by the Court, expressly or by implication. See MCR 2.119(F)(3).
Indeed, in EGLE's answer to plaintiffs' motion, EGLE appears to acknowledge that before the majority issued its decision in this case, EGLE had considered the 2020 GP to be binding.
Indeed, the majority expressly declined to decide whether the 2020 GP is a "guideline" under the APA. Mich Farm Bureau v Dep't of Environment, Great Lakes, &Energy, __Mich __,___ n 36 (July 31, 2024) (Docket No. 165166); slip op at 39 n 36 ("We do not suggest that either the general permit or discretionary conditions are necessarily 'guideline[s]' as that term is used under MCL 24.207(h) and defined by MCL 24.203(7) .... The only issue before us now is whether the general permit or discretionary conditions are rules, and so we need not decide whether they meet the APA's definition of a guideline."). Yet, as plaintiffs point out in their motion, the majority's analysis injected the issue of whether the 2020 GP is a "guideline" into this case by concluding that the 2020 GP is merely "a statement explaining how EGLE plans to exercise its discretionary permitting power or a statement explaining what discretionary conditions EGLE plans to prove are necessary to achieve applicable Part 4 water-quality standards or to comply with other applicable laws and regulations in adjudications involving a CAFO." Id. at __; slip op at 39. I agree with plaintiffs that the majority's description of the 2020 GP appears to align with the definition of guideline under the APA, i.e., "an agency statement or declaration of policy that the agency intends to follow, that does not have the force or effect of law, and that binds the agency but does not bind any other person." MCL 24.203(7). Indeed, the similarity between the majority's characterization of the 2020 GP and the definition of "guideline" is so patent that I conclude the majority's choice to sidestep the question of whether the 2020 GP is a "guideline" constitutes palpable error.
Notably, the majority concluded that the 2020 GP is not binding on anyone, including plaintiffs and EGLE. If that conclusion is correct, then the lack of binding effect on the agency would appear to take the 2020 GP outside the definition of a guideline. See MCL 24.203(7). But the majority's conclusion that the 2020 GP is not binding on anyone was based entirely on the majority's holding that the 2020 GP cannot be a "rule" with binding effects because EGLE does not have rulemaking authority under Clonlara, Inc v State Bd of Ed, 442 Mich. 230 (1993). However, Clonlara does not limit an agency's authority to adopt guidelines, so the question of whether the 2020 GP binds EGLE as a guideline remains an open question that should be addressed on rehearing.
See, e.g., id. at __; slip op at 46 ("That is because these statements can in fact have no legal effect-they have no actual power to bind the agency, the public, or the courts, even if the agency issues the statement following the APA's rulemaking procedures.").
See id. at __; slip op at 31 ("[N]either the general permit nor the discretionary conditions in it can have the force and effect of law, and so they cannot be 'rules' under the Michigan APA. This would be true even if EGLE followed the APA's rulemaking procedures to issue the general permit and discretionary conditions."); id. at n 30; slip op at 31 n 30 ("Because it is clear based on our decision in Clonlara that the general permit and discretionary conditions must lack the force and effect of law due to EGLE's lack of rulemaking power, we need not address the Court of Claims' ruling that they were not rules, which was based on the Court of Appeals' decision in Jones [v Dep't of Corrections, 185 Mich.App. 134 (1990)].") (emphasis added); id. at __n 44; slip op at 46 n 44 ("Because EGLE lacks the power to make rules with respect to CAFO permits, the general permit and discretionary conditions could not have the force and effect of law even if EGLE followed the APA's rulemaking procedures to issue the general permit and discretionary conditions. As we said in Clonlara, when an 'agency has not been empowered to promulgate rules, policy statements issued by it need not be promulgated in accordance with APA procedures and do not have the force of law.' "), quoting Clonlara, 442 Mich. at 239.
Even aside from the issue of whether the 2020 GP is a guideline, I question whether Clonlara should have any applicability to this case. In addition to the analysis provided in my dissent, I note here that Clonlara is distinguishable because the agency in Clonlara never possessed the rulemaking authority at issue in that case, i.e., authority under the nonpublic school act, MCL 388.551 et seq., as enacted by 1921 PA 302, and never promulgated rules under that statute. See id. at 248 ("The Department of Education is not authorized, explicitly or implicitly, to promulgate rules relating to the nonpublic school act."); id. at 237 (recounting an assistant attorney general's conclusion "that in the sixty-five years since its enactment, the department had not promulgated any rules pursuant to the nonpublic school act"). Here, in contrast, not only did EGLE previously have authority to promulgate rules for wastewater permits, it also previously exercised that authority to promulgate a rule governing the exact type of conduct at issue here: Mich. Admin Code, R 323.2196, which set discharge standards and requirements for CAFOs seeking coverage under a general permit. And that rule is still in effect. Indeed, it is worth again emphasizing that even though EGLE's rulemaking authority has been legislatively revoked, EGLE has issued a general permit that purports to impose requirements that are different and more stringent than the rule EGLE promulgated pursuant to its now-repealed rulemaking authority. In sum, Clonlara did not address the specific factual and legal circumstances presented here. As a result, Clonlara is not controlling on the question of whether, despite the repeal of rulemaking authority, an agency action may be a "rule" under the APA when the agency previously and validly promulgated a regulation that still governs the same subject matter as the agency action at issue.
Finally, if plaintiffs are correct that, under the majority's characterization, the 2020 GP fits the definition of a "guideline," then an entirely different legal analysis would be required in this case. If the 2020 GP is a guideline, then certain statutory requirements would apply. For example, before adoption of a guideline, MCL 24.224(1) requires that a specific type of notice be provided to certain people, including "members of the standing committees of the senate and house of representatives that deal with the subject matter of the proposed guideline." In addition, MCL 24.226 provides that "[a]n agency shall not adopt a guideline in lieu of a rule." And MCL 24.227 provides a cause of action to contest a guideline if the adopting agency fails to comply with the statutory requirements. I agree with plaintiffs that the majority opinion characterizes the 2020 GP as something that resembles a guideline under the APA. Because the majority has reached a result that was not contemplated by any of the parties or the lower courts, they should at least be given an opportunity to present briefing and arguments to this Court (or one of the lower courts) on whether this characterization is correct and, if so, whether the 2020 GP has satisfied the statutory requirements for a guideline. Thus, plaintiffs have satisfied all the requirements for rehearing under MCR 7.311(F) and MCR 2.119(F)(3) to consider whether the 2020 GP is a "guideline" under the APA.
To the extent there is any question about whether plaintiffs satisfied those court rules, I would note that the standard provided in the court rule is merely a general standard that expressly does not restrict our discretion to rehear cases. See MCR 2.119(F)(3). Thus, I would exercise this Court's discretion to grant rehearing given that the majority has reached a result that was not contemplated by either party. Again, plaintiffs specifically make that point in their motion, and EGLE does not dispute it. The majority's departure from the principle of party presentation yielded an erroneous result. See generally Mich Gun Owners, Inc v Ann Arbor Pub Sch, 502 Mich. 695, 709-710 (2018) (" 'In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.' "), quoting Greenlaw v United States, 554 U.S. 237, 243 (2008).
For the foregoing reasons, I would grant plaintiffs' motion for rehearing to decide whether the 2020 GP is a "guideline" under the APA.
ZAHRA, J., joins the statement of VIVIANO, J.