David Krieger v. Department of Environment Great Lakes and Energy

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

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

DAVID KRIEGER, ANDREW KRIEGER, JAMES FOR PUBLICATION

SPERLING, and MARGARET SPERLING, on September 7, 2023

Behalf of Themselves and All Others Similarly 9:05 a.m.

Situated,

Plaintiffs-Appellees,

v No. 359895

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT LC No. 20-000094-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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 LC No. 20-000102-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

Defendants-Appellants.

CHRISTOPHER FORBES and LAURA FORBES,

on Behalf of Themselves and All Others Similarly

Situated,

-1-

Plaintiffs-Appellees,

v No. 359897

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT LC No. 20-000103-MM

LAKES, AND ENERGY,

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 LC No. 20-000111-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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 LC No. 20-000112-MZ

LAKES AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

Defendants-Appellants.

ROBERT WOODS and HOLLY JOHNSON, on

Behalf of Themselves and All Others Similarly

Situated,

Plaintiffs-Appellees,

v No. 359900

-2-

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT LC No. 20-000116-MM

LAKES AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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 LC No. 20-000118-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

Defendants-Appellants.

THOMAS BORCHARD, CHARLES BORCHARD,

DENNIS BORCHARD, SALLY BRADLEY,

CHRISTOPHER ICE, CDI CONSTRUCTION

-3-

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 LC No. 20-000121-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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 LC No. 20-000140-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

Defendants-Appellants.

DARYL ZELENAK, SUZETTE GAY-ZELENAK,

MIKE CALLAN, and REGAN WEILAND, on

Behalf of Themselves and All Others Similarly

Situated,

Plaintiffs-Appellees,

-4-

v No. 359904

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT LC No. 20-000151-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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 LC No. 20-000156-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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

-5-

DEPARTMENT OF ENVIRONMENT, GREAT LC No. 20-000230-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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

-6-

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,

-7-

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 LC No. 20-000232-MZ

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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 LC No. 20-000233-MM

LAKES, AND ENERGY,

Defendant-Appellant,

and

MARIO FUSCO and LUKE TRUMBLE,

Defendants.

-8-

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 LC No. 20-000235-MM

LAKES, AND ENERGY,

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

-9-

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. VPC-

CN0000010-05, 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

-10-

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 LC No. 20-000236-MM

DEPARTMENT OF ENVIRONMENT, GREAT

LAKES, AND ENERGY,

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,

-11-

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 LC No. 20-000237-MM

LAKES, AND ENERGY,

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

-12-

DEPARTMENT OF ENVIRONMENT, GREAT LC No. 20-000239-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

Defendants-Appellants.

ANDREA JAMROG,

Plaintiff-Appellee,

v No. 359913

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT LC No. 20-000240-MZ

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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,

-13-

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

-14-

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 MASTERS-

JUN, TAWSE MATTHES, MARY MATTHESS,

VIOLET MCCREADIE, FREADA MCDANIELS,

PEGGY MCDANIELS, AGNES MCDONALD,

FLOYD MCDONALD, ROBERT MCDONALD,

NORMAN MCGARRY, ROBERT MCGINNIS,

-15-

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

-16-

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 LC No. 20-000241-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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

-17-

ALLSTATE FIRE AND CASUALTY INSURANCE

COMPANY,

Plaintiffs-Appellees,

v No. 359915

Court of Claims

DEPARTMENT OF NATURAL RESOURCES and LC No. 20-000245-MM

DEPARTMENT OF ENVIRONMENT, GREAT

LAKES, AND ENERGY,

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 LC No. 20-000257-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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,

-18-

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 LC No. 20-000246-MM

DEPARTMENT OF ENVIRONMENT, GREAT

LAKES, AND ENERGY,

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 LC No. 20-000260-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

Defendants-Appellants.

DONNA ARNOLD, JOSEPH BALHORN,

CYNTHIA BALHORN, ANTHONY BAX, RICK

BISHOP, WILLIAM BRANDIMORE, and KAIR

COUGHLIN,

-19-

Plaintiffs-Appellees,

v No. 359919

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT LC No. 20-000262-MM

LAKES, AND ENERGY and DEPARTMENT OF

NATURAL RESOURCES,

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.

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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-ferc-

does> (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.”

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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 plaintiffs5 sued 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).

-22-

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.

-23-

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.

-24-

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 well-

pleaded 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

-25-

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).

-26-

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

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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).]

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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, El-

Khalil 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).

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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 well-

established 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.

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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.

-31-

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).

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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).

-33-

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

source switch in Mays is 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.

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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

-35-

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”).

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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

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