Opposition — Shell Oil Co. v. West Michigan Environmental Action Council, Inc.

, Braga Court, U. &,

EELED

t

1s 6QCT 9 1979

i)

tin ere ‘7o

CHAM BODAK, JR. CLERK |

ila

No. 79 - 335

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

SHELL OIL COMPANY, AMOCO PRODUCTION COMPANY,

and NORTHERN MICHIGAN EXPLORATION COMPANY,

Petitioners,

v.

WEST MICHIGAN ENVIRONMENTAL ACTION COUNCIL,

INC., et al.,

Respondents.

RESPONSE TO A

PETITION FOR A WRIT OF CERTIORARI TO

THE U.S. SUPREME COURT

Roger L. Conner

1330 New Hampshire N. W.

Washington, D. C. 20036

TABLE OF CONTENTS

Ba ee re ee ee

DUP CUEY GF GOs cick esa wnrssescasesess

REASONS FOR DENYING WRIT...............

TE a cn cceeeescevisieccsecsencucsss

PPV GMINA SS ich ewe vere ease reerevcesoccoesees

TABLE OF CASES

CASES:

Hamling v. United States, 418 U.S. 87, 110 (1974). ...

Ray v. Mason County Drain Commissioner, 393 Mich

PEM Sh dee deb yd se able Wee rdes Rowek ones

STATUTES AND OTHER AUTHORITIES:

National Environmental Policy Act:

RT NOE oon c oc cec cas csccssess

Michigan Environmental Protection

Act, Mich. Stat. Ann. § 14.528 (201) et seg.......

Michigan Environmental Protection

Act, Mich. Stat. Ann. § 14.528°(203) (1)) ........

QUESTION PRESENTED

This case involves no substantial federal question and raises

exclusively state law issues, decided against petitioners after full

opportunity for hearing and trial.

STATEMENT OF THE CASE

The Pigeon River Country State Forest is the largest continu-

ous tract of state-owned land in the lower peninsula of Michigan.

It provides habitat for bear, bobcat, coyote and the only remain-

ing wild elk herd east of the Mississippi River (R 230-236).1

Following a period of extensive oil and gas leasing of both state

and private land throughout northern lower Michigan, most of

which was not controversial, a number of citizens and citizen

groups urged that permits to drill (required under state law) be

denied for the small fraction of the leased area comprising the

Pigeon River Country. Numerous issues of state law were raised

at various times, including the interpretation of leases, permit

requirements, the state law governing oil and gas development,

and the Michigan Environmental Protection Act.

This suit was filed under the Michigan Environmental Protec-

tion Act (MEPA), (Mich. Stat. Ann. § 14.528 (201) et seq.),

against the State alleging that issuance of permits to drill would

violate the Act. Oil Company leaseholders intervened as defen-

dants. Unlike the National Environmental Policy Act (NEPA),

42 U.S.C. § 4321 et seq., which is principally procedural,

MEPA establishes a state substantive law of environmental pro-

tection.2 The Act, tracking the language of the Michigan Con-

stitution, prohibits activities likely to result in “pollution, im-

pairment or destruction to the air, water or other natural re-

sources of the state’’ unless there are ‘’no feasible and prudent

1 “R” refers to pages of the Appellants’ Appendix on Appeal to the

Michigan Supreme Court. “T” refers to pages of the trial transcript.

2 Petitioners’ analogy to NEPA at Page 12 of their Petition reveals a

fundamental misconception about MEPA. MEPA has no separate proce-

dural requirements. For example, environmental impact statements are

required in Michigan by Executive Order, not by the Act. Paragraph 16 of

the Cumplaint is based on Section 5 which requires agencies to make a

“determination” of environmental impacts. The same Section continues

that courts must make a de novo review of that finding, taking additional

~v—

evidence if necessary, and enjoin any conduct which violates the Act.

Mich. Stat. Ann. § 14°528(205).

alternatives.” (Mich. Stat. Ann. § 14.528 (201). Ray v. Mason

County Drain Commission, 393 Mich. 294 (1975). And it gives

citizens standing to enforce the Act.

Under MEPA, defendants may prevail, even if their activity

causes “pollution, impairment, or destruction. .’’ to the environ-

ment, by proving as an affirmative defense that they have ‘‘no

feasible and prudent alternatives.” (Mich. Stat. Ann. 14.528

(203(1)). In this case, the defendants did not plead the defense,

and then specifically disavowed it early in the proceedings.

(R 812).3 Thus the case turned on competing interpretations

of the operative phrase, ‘pollution, impairment, or destruction.”’

(Mich. Stat. Ann., Sec. 14.528 (201). Plaintiffs argued that noise

poilution, wildlife impairment, recreational resource destruction,

oil spills, and forest destruction plainly met the Act’s threshold

requirement of environmental damage. The defendants claimed

that the adverse impacts were neither severe enough or long last-

ing enough to constitute “pollution, impairment or destruction”

under MEPA. It was argued by the defendants, for example,

that the Act would not be violated since trees would grow back

once oil development was finished (R 1230); that the elk herd,

though diminished, would not be entirely wiped out (R 1229 R

1230); that noise would only last for the years during which

drilling continued (R 1229); and oil spills would be too infre-

quent and too small to be significant (R 1222 R 1229).4

Though the trial court agreed with the defendant's interpre-

tation of MEPA, the Michigan Supreme Court unanimously dis-

agreed and held that the level of damage proven clearly met the

3 Petitioners’ explanation for the failure to offer evidence on the affirm-

ative defense at Footnote 11 is misleading. Plaintiffs offered evidence that

the Defendants had alternatives and that the agency had exaggerated the

anticipated amount of oil under forest. Defendants/Petitioners’ object to

the evidence on the grounds that it was relevant only to the affirmative

defense, which the Defendants had not pled. The judge sustained the objec-

tions saying:

“ _. . The Defendants haven't offered any [affirmative] de-

fense. . . . It’s not pled, it’s not pled as a defense, and it’s not to be

presented now, inquired into by you or the Defendants later. So

they are forewarned not to bother with it, not to take up the

court's time with it. The lawsuit here is on the basis that they are

not going to cause any pollution. That's what they rise and fall on.

So I'll sustain the objection.” (R 812.)

4 c.f. Footnote 9, infra, The Petitioners’ argument presented to the

Michigan Supreme Court centered on this same issue, as illustrated by the

Index to their Brief before the Michigan Supreme Court, set forth in

Respondents’ Appendix at 1a - 3a

statutory requirement ( A 13a-14a, 18a-19a). Since the defen-

dants failed to plead the affirmative defense, the Court held that

a violation of the Act had been proven, and sent the case back

to the trial court for entry of an injunction. (A 14a)

REASONS FOR DENYING THE WRIT

1. The question whether the environmental effects of pro-

posed drilling activities violated MEPA, the issue on which the

Supreme Court of Michigan disposed of this case below, was

fully and fairly litigated in the trial court below. The trial court

allowed the parties “full latitude in rebutting every factual

issue”’ in the case, Hamling v, U.S., 418 U.S. 87,110 (1974). As

a result the trial lasted eight weeks, the transcript is over 4,000

pages long, and more than fifty admitted exhibits add several

thousand pages to the record. As to some environmental effects

(e.g. oil spills) the petitioners submitted their own expert testi-

mony.5 As to others (e.g. noise, trees, wildlife) they made a

strategic decision to rely on rebuttal testimony from state-

defendant’s witnesses, combined with cross examination and

argument. Defendant-petitioner’s claim that they were unaware

the impacts of oil drilling were in issue is unequivocally refuted

by the record.6

5 The Petitioners’ expert testified to the likelihood of water pollution

from oil spills. In Footnote 6 of the Petition, Petitioners attempt to ex-

plain his testimony as part of the findings of the Commission in its EIS. It

is theoretically impossible to view the report about which he testified as

part of the Commission's “determination”, or “findings”, for the environ-

mental impact statement was prepared in 1975, and adopted as part of the

Consent Order in 1976. The oil spill report was not even prepared until

1977, after this lawsuit was filed. The testimony was relevant solely to the

substantive question of “pollution, impairment, or destruction”, illustra-

ting that the substantive issue was joined.

® The sequence of events in rulings at trial is set forth more fully in

Respondents’/Plaintiffs’ brief in answer to the Motion for Re-Hearing,

which is set for in Respondents’ Appendix at 4a-15a. The key phrase cited

by Petitioners in Footnote 5, the proposition that the trial court ruled

only procedural matters were at issue, is taken out of context. The entire

paragraph, set forth in Appellants’ Appendix, cited the Judge holding just

the opposite, viz, that the Complaint raises a MEPA complaint which em-

powered him to review the findings, make his own adjudication of the

facts, and issue an injunction if, “ pollution, impairment, or destruction

or destruction” were threatened. (8a-9a)

2. After the trial court dismissed certain counts of the com-

plaint, and before petitioners put in their case, petitioners

moved to dismiss the paragraph from the complaint in which an

injuction was sought. Their argument was precisely the same

one they submit to this Court: Only procedural issues remained,

based upon which no injunction could issue. The judge denied

the motion, explaining that the remaining MEPA count required

more than a mere examination of procedures.’

The court shall further adjudicate the impact of

defendants’ conduct on the air, water, and other

natural resources, may order that additional

evidence be taken to the extent necessary to

protect the rights recognized in the Act, so on and

so forth..... By virtue of the Act, it seems to me

from the evidence | could issue injunctive relief as

to some permits and not as to others, | could issue

injunctive relief as to all of them, or none of them.

R 1079-R 1080.

In other words, under MEPA, the remaining paragraphs of

the complaint placed the substantive issue, whether the activ-

ity of oil drilling violated the Act, squarely before the trial

court. And the trial court so advised the petitioners.8 This fact

explains why the state responded with two rebuttal witnesses

wno testified. that drilling effects were not as devastating as

claimed by the plaintiffs (R 1084- R 1147), why the petitioners

presented an expert who testified for two days concerning the

effects of potential oil spills, why the trial judge made extensive

findings of fact (R 1243-R 1256), why the parties argued these

findings in the Michigan Supreme Court (Respondents Appendix,

1a - 15a), and why that court determined that the matter had

been tully and fairly litigated (A 5a, A 44a).

7 Md.

® Defendants objected to cross examination of their witness on sub-

stantive issues on the basis that “the only thing that the Complaint says is

that the Consent Order was issued without findings.” (T 3706.) The trial

judge overruled the objection:

“Well, the court has held that the Michigan Environmental

Protection Act is still part of this lawsuit and there is a prima.

There was a prima facie showing of pollution by the witnesses that

Mr. Conner presented. The court has made time available to the

Defendants to rebut that presumption, which | assume is what we

are engaged in doing.” (T 3707.)

3. The suggestion that plaintiffs’ attempt to amend their

complaint somehow indicates that petitioners did not know

what facts were in issue is little short of incredible. The ques-

tion whether the complaint should have been amended arose as

a result of petitioner's tactical decision to try to win the case on

a technicality. Since the lawsuit was filed after an Administra-

tive Order consenting to the drilling was issued, but before per-

mits were granted, petitioners argued doggedly that the case was

not “‘ripe’’—and in that sense, no actual drilling was yet threat-

ened or in issue. The trial court agreed, and remanded for further

administrative proceedings. After permits were granted, plain-

tiffs returned to court, now to be told by petitioners that since

the complaint attacked on!y the ‘‘Consent Order”, not the per-

mits, no testimony at all concerning oil drilling was admissible.

Plaintiffs countered that it was the effects of drilling activities,

fairly framed by the complaint under state law, which concerned

them, not the procedures by which permits were issued. The

trial court considered the issue joined, and the Michigan Su-

preme Court agreed. It is noteworthy that the state-defendants

never doubted that the oil drilling was in issue.9

CONCLUSION

The Constitution does not permit parties to relitigate issues

simply to retrieve tactical errors made in the original trial. Peti-

tioners’ attempt to turn a case involving state law questions into

an issue of procedural due process by claiming ‘‘surprise”’ finds

support nowhere in the record and is wholly at odds with the

assumptions of the state defendant, the plaintiff, the trial court

and the Michigan Supreme Court. The petition should be denied.

® in their Brief to the Michigan Supreme Court, at 15, the State Defend-

ants characterized the issues before the trial court as follows:

“The issure as framed in the trial court was predicated upon

the State's specifically denying that pollution, impairment, or

destruction was likely to occur, while still acknowledging that

some adverse impacts from the project were unavoidable.”

APPENDIX

TITLE:

Excerpt — Table of Contents from Brief on

Appeal to the Michigan Supreme Court

of Appellee, Shell Oil.

TABLE OF CONTENTS

Page

“teen in Bh cast os hich epee). LUTE PESTO OTTER Tee iv

COUNTERSTATEMENT OF QUESTIONS

niacin hin, EE EMER UEP ET OPT T TE CEETE LITE TE 1

COUNTERSTATEMENT OF FACTS..........ccceceeee 2

SUMMARY OF ARGUMENT... 00. ccccccesccccucces 12

ARGUMENT—

|. The Trial Court, Having Determined, Based

Upon The Entire Record And A Personal

Inspection Of The Area, That It Is Not Like-

ly That The Proposed Conduct Will Pollute,

Impair, Or Destroy The Air, Water Or Other

Natural Resources Or The Public Trust

Therein, Was Correct In Holding That It was

Not Incumbent Upon Appellees To Affirma-

- tively Prove No Feasible And Prudent Alter-

NE ieee eo eae nee eee bd oes sees 14

A. Establishment Of A Prima Facie Case

Under MEPA Is To Be Determined By

Dk, 2, ae ee ee 14

B. The Trial Court Found As A Matter Of

Fact And Law That Pollution, Impair-

ment Or Destruction Of Natural Re-

sources Are Not Likely To Occur ............. 16

C. The Trial Court Properly Found That,

As A Matter Of Law, Adverse Impact

To A Natural Resource !s Not Per Se

Pollution, Impairment Or Destruction

St Se Ee Sn ri eee 20

D. The Circuit Court’s Interpretation Of

How Defendants May Rebut The Prima

Facie Case Does Not Read The Allterna-

tives Requirement Out Of The Act............ 21

1a

Transcript of Trial Court’s Remarks Regard-

ing Trial Court’s Visit to the Pigeon River

Country State Forest. ........00e cece cece eeeeee 11b

11. The Trial Court’s Ruling That Executive

Order 1974-4 Did Not Create A Cause Of Ac-

tion Enforceable By Appellants Was Cor-

Ss co's be Dae eRe Pay ek eae S 23 intervening Defendant-Appellees’ Motion for

II. The Trial Court Properly Interpreted And Partial Summary Judgment dated October

Applied The Public Trust Doctrine, Finding 24, 1977 vac’. con eevee r ret eee eee eee ST ee ee 14b

That The State Defendant/Appellee Had

Properly Performed Its Duties Relative To

Management And Adminstration Of The

State-owned Lands Within The Pigeon River

Ny I a aa cob wap ww ho deen-ew nese 25

A. The 1968 Leasing Did Not Constitute

Alienation Or Devotion Of The Lands

e565 64086 Re aso bn 8 26

B. The Public Trust Doctrine Does Not

Preclude Development Of The Hydro-

carbon Resources Under The Lands In

CNAs ban oy ena ea Gaba k oe ato ya 60068 0s 29

IV. The Trial Court Properly Excluded Exhibits,

The Authenticity, Accuracy And Relevancy

Of Which Plaintiffs Failed To Establish............. 34

A. Tape Recordings Of Natural Resources

Commission Meetings and/or Typewrit- :

ten Transcripts Thereof Were Not Dem-

onstrated To Be Authentic, Accurate Or

Relevant To Any Issue Before The

ES bua a vo cc nb a ee A Oirk be cei 8 8 34

B. The Trial Court Properly Excluded

Memoranda Purportedly Prepared By

P. S. Lovejoy And Letters Purportedly

Penned By Ernest Hemingway Upon A

Finding That The Authenticity, Rele-

vancy And Materiality Of Said Exhibits

Had Not Been Established..................- 37

ee ee te ee 40

APPENDIX—

Transcript — PreTrial Conference of October

a aR Sa are OP at lg hp een Giggs aoe a 1b

3a

Brief of

West Michigan Environmental Action Council et al.,

in response to the Motion of Shell Oil, et al.,

for rehearing in the Michigan Supreme Court

STATE OF MICHIGAN

IN THE

SUPREME COURT

West Michigan Environmental Action Coun-

cil, Inc., Pigeon River Country Associ-

ation, Northland Sportsman’s Club,

Detroit Audubon Society, Inc., Michigan

Council of Trout Unlimited, Inc., Mich-

igan Student Environmental Foundation

Inc., East Michigan Environmental Ac-

tion Council, Inc., Michigan Lakes and

Streams Association, Inc., Sierra Club,

sete Plaintiffs-Appellants,

v

Natural Resources Commission of the State

of Michigan, and Howard Tanner as Dir-

ector of the Department of Natural Re-

sources of Michigan,

Defendants-Appellees, and

Shell Oil Company, a Delaware corporation,

Amoco Production Company, a Delaware

corporation, and Northern Michigan Ex-

ploration Company, a Michigan corpora-

tion ;

: intervening

Defendants/Appellees.

Ingham County

Circuit Court

Case No.

76-19335-CE

Court of Appeals

No. 77-4777

Supreme Court

Case No. 60800

Plaintiffs—Appellants

Answer to Motion for Rehearing

Roger L. Conner

Attorney for Plaintiffs-Appellants

Business Address: :

1324 Lake Drive, S.E.

Grand Rapids, Michigan 49506

(616) 451-3051

TABLE OF CONTENTS

8 ee Be ck a . creer ae er 5a

ANSWER TO APPLICATION FOR REHEARING... 5a-6a

tn oS a ale wraian Wie wie s wie inane 6a - 15a

| ey re ee eer errs we ree es Te eer ree ee 15a

INDEX OF AUTHORITIES

Cases Page

State Highway Commission v VanderKloot, 392 Mich.

ee ae spa eas eee cecces 14a

Ray v Mason County Drain Commissioner, 393 Mich.

ee ee ebb tSs bbe a vioacece 14a

Statutes

Michigan Environmental Protection Act (MCLA 691.1201

ot sen, MGA 14.626 (201) Ot O00) 2... ccc cece 15a

Other

The Constitutional Question: Vagueness and Delegation

of Powers, 4 Journal of Law Reform 397 (1970) ......... 14a

ANSWER TO APPLICATION FOR REHEARING

|

Answering paragraph | of the Application for Rehearing,

Plaintiffs deny that the rendering of the final decision in the

case precluded Intervening Defendants Appellees from having

an opportunity to present their case. Plaintiffs assert that they

had full and complete opportunity to do so and they either pre-

sented the best evidence they had or they intentionally chose to

withhold evidence and they should be bound by such decision.

Answering paragraph I! of the Application for Rehearing,

Plaintiffs deny that Intervening Defendants Appellees were

denied an opportunity to present evidence, alleging that the

record is clear and unassailable that they had such right in the

Trial Court.

tT

Answering paragraph II! of the Application for Rehearing,

Plaintiffs deny the allegation contained therein.

IV

Answering paragraph IV of the Application for Rehearing,

Plaintiffs deny that the Intervening Defendants Appelles were

deprived of an apportunity to present their defense on all issues

raised under the Michigan Environmental Protection Act.

V

Answering paragraph V of the Application for Rehearing,

Plaintiffs deny that the Michigan Environmental Protection Act

is unconstitutional as applied to this case.

ARGUMENT

The Intervening Defendants Appellees essentially argue that

the case should be remanded for futher testimony. They seek to

create the impression that they “‘relied upon a specific ruling by

the Court” when they declined to submit evidence of lack of

environmental damage from the drilling. The thrust of their

position is that the dismissal by the trial court of certain por-

tions of the Complaint at the close of Plaintiffs proofs not only

misled them into a belief that the effects of drilling were not in

issue, but that they were precluded by those rulings from sub-

mitting evidence on the lack of adverse environmental effects of

drilling. They lament what they consider to be ‘’a procedural

nightmare”. The truth is that if a nightmare existed, they creat-

ed it themselves.

The record discloses that the Intervening Defendants Appell-

ees made a mature, knowing and intentional tactical decision on

how they would presnet their case. They knew full well that the

Michigan Environmental Protection Act was the central issue of

the lawsuit notwithstanding the dismissal of portions of the

Complaint. They knew that the Court had ruled that there was

a prima facie showing of pollution, impairment or destruction

by the witnesses that the Plaintiffs presented. The Court afford-

ed the Intervening Defendants Appellees full opportunity to re-

but that presumption and to submit evidence in that regard.

The Intervening Defedants Appellees made a knowing, conscious

and intentional decision to rely on the State’s witnesses and

exhibits supplemented by the testimony of their expert witness

namely Dean O. Gregg. They are bound by that decision just as

much as they are bound by their decision not to plead or submit

proofs on the affirmative defense.

6a

Intervening Defendants Appellees make much of the fact that

the Trial Court dismissed various paragraphs of the Complaint,

including paragraph 15 which contains references to specific

types of pollution, impairment or destruction to the environ-

ment. They assert that by this ruling ‘‘the Trial Cour ruled that

the issues regarding impairment to elk or other natural resources

ment. They assert that by this ruling ‘‘the Trial Court ruled that

intervening Defendants Appellees make much of the fact that

the Trial Court dismissed various paragraphs of the Complaint,

. including paragraph 15 which contains references to specific

types of pollution, impairment or destruction to the environ-

ment. They assert that by this ruling “the Trial Court ruled that

the issues regarding impairment to elk or other natural resources

were no longer before the Court’. (Br, 8) The sequence of

events at trial demonstrates that the Court made exactly the

opposite ruling, that it repeatedly reminded the Intervening De-

fendants Appellees that the “issues regarding impairment. .....

were. . . before the Court”, and that Defendants understood that

MEPA was still at issue.

Shortly after ruling on the dismissal of paragraph 15 on

November 17, 1978, the Court commented on the issues remain-

ing under the MEPA in dismissing Count II! (the Oil and Gas

Act): (A 1060-1061) [Tr. pp 3143-3144]

THE COURT: Now as | stated, | have had consid-

- erable difficulty with this particular Count since the

Court felt there was a reliable and substantial evidence

before the Court setting forth at least a prima facie

case that the Plaintiffs were correct that pollution, im-

pairment or destruction or unnecessary waste or des-

truction was eminent, and | think | stated that again this

morning in refusing to strike testimony of the three

witnesses involved in that assertion. But | guess a fur-

ther view of the Oil and Gas Act in and of itself is a

useless exercise.

* * * *

On the basis of all of that, | don’t believe that the

Court should continue a consideration of this Count.

Certainly before us yet is the application of the Envi-

ronmental Protection Act which seems to amply serve

the Plaintiffs in their continued presentation of their

case and the Court's view of the entire situation, and |

think that we are unnecessarily detracting from the true

pursuit here by a further reference to any application

of the Oil and Gas Act. (Emphasis supplied)

7a

On Monday, November 21, 1977, the Trial Court, upon the

motion of the Defendants dismissed further portions of the

Complaint. The Court then explained the remaining issues again:

(A 1070) [Tr. p 3161]

THE COURT: Now, the State and the Intervenors

have indicated that the State did make this determi-

nation, they did determine the alleged pollution, im-

pairment or destruction, and it’s contended by the

Plaintiffs that their determination clearly shows that

pollution, impairment or destruction will occur. I’m

not prepared to agree with them yet, because | haven't

heard all the evidence. | heard what the Plaintiffs have

presented, and the Court has not stricken as counsel is

aware that evidence, and the Court believes that para-

graph 16 correctly states the law as | understand it to

be. | don’t believe that there is anything further | need

to say in regard to the paragraph other than that, so

I’m going to deny the motion to strike paragraph 16

on the basis just indicated. (Emphasis supplied)

Intervening Defendants Appellees then tried once more to

press upon the Trial Court the very argument they have made to

this Court — that given the dismissal of various paragraphs, the

“issues regarding impairment to elk or other natural resources

were no longer before the Court”. (Br, 8) This variation on the

theme took the form of a motion to dismiss the prayer for

injunctive relief. Once again, the Court painstakingly explained

his ruling, and surely eliminated any doubt that “‘issues regard-

ing impairment” (Br, 8) were still before the Court: (A 1079-

1080) [Tr. pp 3181-3182]

THE COURT: The Environmental Protection Act

does grant the Court the power to grant temporary and

permanent equitable relief, further imposes upon the

Court the power to impose conditions on the Defen-

dant that are required to protect the air, water, and

other natural resources. The Court shall further adjudi-

cate the impact of the Defendants’ conduct on the air,

water, and other natural resources, may order that add-

itional evidence be taken to the extent necessary to

protect the rights recognized in the Act, so on and so

forth.

So the fact that the permits are not before me doesn’t

seem to me to prevent the Court from reacting to the

proofs that the Consent Order was improperly entered

into by virtue of the findings surrounding it, and that

therefore activities taken pursuant to it would be in-

appropriate for one to go forward with it. It seems to

me | could find 100 different things. By virtue of the

Act, it seems to me from the evidence | could issue in-

junctive relief as to some permits and not as to others,

| could issue injunctive relief as to all of them, or none

of them, | could impose conditions not imposed by the

Consent Order in order to fulfill the conditions of an

injunction otherwise. The Court, it seems to me, could

order that one well instead of two be drilled at once, or

that one clearing be done at a time, that roads not be

as wide as imposed, we could take additional evidence

regarding that, | could think of a thousand things that

the Court might do by way of injunctive relief if it

found that it was insecure in the State’s promulgation

of the Consent Order.

So | think I’m going to leave the prayer for relief like

it is with the understanding that we're only here —

we're only here at this point on a request for permanent

injunction as to matters set forth in paragraphs A and —

well, B, really isn’t — really isn’t here, the matters set

~ forth in paragraph A.

Following such ruling and at the close of that day (Monday,

November 21, 1977) Intervening Defendants Appellees were

under no illusion that they could avoid responding to the Plan-

tiffs’ principal case. The closing colloquy that day included the

following comments: [Tr. pp 3222-3223]

MR. SMITH: Judge, | would just like to make a requ-

est. In light — and | am trying to judge and balance where

we might get left in terms of bringing our proofs in and

bringing witnesses in. | wonder if | can assume | don’t

need to bring people in from out of town to have them

here tomorrow.

THE COURT: Mr. Freeman indicates he is going to

take tomorrow, and Wednesday is motion day, so the

next Court day will be Monday.

MR. SMITH: | don’t want to get caught at 4 o’clock

and have you say ‘’Go’’. We could be subject to a rather

substantial burden and expense.

9a

MR. FREEMAN: | think it’s a fair guess, Your Honor,

we will take all day. | would be delighted to take Mr.

Smith out to a Martini if we finish early.

MR. CONNER: | will pay.

THE COURT: Mr. Conner will pay.

MR. SMITH: That’s the first decent offer we have

had in this lawsuit.

THE COURT: All Right. We stand adjourned until

tomorrow morning, 9:30.

ing and how long it is going to take after | have had a

chance to reanalyze, as | have indicated.

THE COURT: Okay. Do you know which individual

will be your first witness, or don’t you?

MR. SMITH: | really don’t know for certain. | hope

to know tomorrow; and when | make the determination,

| am not trying to keep it a secret. | wil! be happy to let

you know. (Emphasis supplied)

The trial resumed after Thanksgiving on Tuesday, November

The Trial did resume the next day, Tuesday, November 22,

1977, with the Natural Resource Commission witnesses’. Prior

to adjourning that afternoon for the Thanksgiving holiday, the

following colloquy occurred: [Tr. pp 3402-3403]

29, 1977. The Intervening Defendants Appellees waived their

opening statement and called their only witness, Dean O. Gregg,

who testified on Tuesday, November 29, 1977 and Wednesday,

November 30, 1977.

MR. CONNER: Before we adjourn, Your Honor, |

would like Mr. Smith to give some indication of the

number and order of the witnesses he intends to call.

He gave us along list of potential witnesses which would

be difficult or impossible to prepare, and we have been

attempting — and | would like to express on the record

that Mr. Smith has made an effort to make Mr. Gregg

available to us and because of problems that were as

much associated with my own schedul@ as Mr. Gregg’s

schedule — .

MR. SMITH: And my schedule.

MR. CONNER: And Mr. Smith’s schedule, we haven‘t

been able to arrange that. So in order to see exactly what

we are going to deal with, we would like to know the

number and order of witnesses that Mr. Smith intends to

call so we Can prepare.

THE COURT: Well, of course, | am not going to dir-

ect him to indicate that, but if you can, why, fine.

MR. SMITH: Quite frankly, | want to sit down and

rereview everything and reanalyze everything in terms of

just what it is we are left with in the Complaint, and the

impact of the proofs that have been offered by the State,

so | am not prepared to make any binding statement. |

have advised Mr. Conner that it is my present intention

to call Mr. Gregg certainly as one witness, and | am

endeavoring to find out precisely what his availability is

between now and the time | would call him, so | can let

Mr. Conner know, and | expect | will be in a position to

advise the Court further as to precisely where we are go-

10a

On Wednesday, November 30, 1977 during the cross exami-

nation of witness Gregg the Court made the following ruling:

[Tr. pp 3706-3708}

MR. SMITH: Your Honor, | would like to make our

position clear on this. First of all, if you can’t receive the

testimony as to the State, then | don’t think you can

receive it as to us, based upon the Complaint. Now, if Mr.

Conner realizes a point and says | don’t know what my

brother counsel assumes and he thinks somehow the rul-

ings that you have made in regard to various motions to

strike illustrate what was tried here, well, | would have to

admit to the Court that | have been somewhat mystified

by where people are going, but | haven’t assumed anything

and I’m relying upon the Complaint and the only thing

that the Complaint says is that the Consent Order was

entered without findings. It doesn’t say that findings were

made and they were inadequate, it doesn’t say anything

that says this Court should make a determination under

MEPA. Those allegations simply aren’t there. So | object

to the question, and further, | object to any attempt if

Mr. Conner, in the eighth week of Trial, is now trying to

amend his Complaint, | most strenuously object.

THE COURT: Well, the Court has held that the Mich-

igan Environmental Protection Act is still part of this

lawsuit and that there is a prima — there was a prima

facie showing of pollution by the witnesses that Mr.

Conner presented. The Court has made time available to

the Defendants to rebut that presumption, which |

assume is what we are engaged in doing. **** (Emphasis

supplied)

ila

The Intervening Defendants Appellees ordered daily trial

transcripts prepared during the trial. At the opening of Court on

Thursday, December 1, 1977, they quoted from a portion of

the previous day’s (November 30, 1977) transcript in connec-

tion with a motion for preliminary injunction by Plaintiff. [Tr.

p 3751] Thus, they cannot be heard to say that the clear, un-

equivocal and straight forward statement of the Trial Court

quoted above had somehow eluded them. They had the trans-

cript in their hand, in court the very next day. Notwithstanding

the Court’s ruling, they nevertheless declined to offer witnesses

other then Mr. Gregg and rested their case on December 1, 1977.

The Trial Court told the Intervening Defendants Appellees

that MEPA was the issue in the case, invited them to submit

evidence in oppositon to the prima facie case of the Plaintiff,

and provided them with opportunity and time to do so. Yet

they knowingly and deliberately insisted on proceeding with the

tactical decision which they obviously had made over the

Thanksgiving holiday to 'imit their proofs to the testimony of

witness Gregg. It is incredible indeed that they now claim that

they were misled into limiting their proofs by the dismissal of a

portion of the Complaint, when they had daily transcripts of

the proceedings, studied those transcripts, were present in Court

and heard the trial judge, and knew full well what issues they

were called upon to try in the case.

The Court should ask this further question; If, as Intervening

Defendants Appellees now contend, they believed that ‘‘issues

regarding elk and other natural resources were no longer before

the Court” (Br, 8), why did they submit witness Dean Gregg?

Why did they have him give detailed testimony for two days

about the likelihood of contamination from oil spills, (see e.g.,

A 1151 et seq) when ihe oniy specific reference to oil spills in

the Complaint was paragraph 15?

The only consistent interpretation of the Intervening Defen-

dants’ Appellees actions was that they recognized, as the opinion

of the Court observed, that ‘‘the Trial Court chose to address

the issue of the likelihood of pollution...” (Op, 5). As to some

of these they presented independent testimony (e.g. spills); as

to some they relied on the state witnesses; and on others to

cross exmaination and argument. Their full understanding that

all MEPA issues including “elk” where before the Court is under-

scored by the final argument of their counsel. (A 1228-1230)

[Tr. pp 3917-3919]

12a

MR. SMITH: The Plantiffs have failed to establish

that an oil spill is likely as required by the Environmental

Protection Act. Even if, however, and you’re taking the

worst upon the worst upon the worst, even if the Plaintiffs

are totally silent in terms of the clean-up processes set

forth in the contingency plan, Shell Exhibit No. 1 and

Plaintiffs’ Exhibit No. 32, the Dames and Moore report,

and then taking another worst upon a worst or a possible

on a possible on a possible, they say, ‘If some quantity

might reach the surface water, that somehow that might

lead to pollution, impairment or destruction.” There’s no

showing of any quantity or that there would be any

quantity that would be sufficient to cause that. Indeed,

Your Honor, they have the obligation to show that the

Defendants’ conduct has or is likely to pollute, impair or

destroy, and | submit they haven’t done that.

The Environmental Impact Statement contemplated

certain impacts that would occur, and they’re set forth.

No one has tried to hide it; no one has tried to alter it.

The biggest share of the impacts go to recreational activ-

ities, clearly not air, water or natural resources, particu-

larly in terms of noise, that doesn’t go to air, water or

natural resources. There’s not one bit of proof on this

record where one could be persuaded to find that indeed

the noise they are talking about had any effect upon the

air or upon the water or upon natural resources. There is

a link in the chain that was never connected up, Your

Honor.

And in terms of any impact on wildlife, what they're

really saying is that the elk may move and not be in a par-

ticular area, but they just don’t seem to want to point

out to you that there is hunting of bear and bobcat, as an

example, that keeps them from going to a particular area;

but that’s not pollution, impairment or destruction, Your

Honor. Dr. Inman testified that you've got to look at the

whole picture, timber harvesting has a tremendous impact

upon a particular tree, it has an impact upon the bird that

lives in the tree, it has an impact upon any other animal

that happens to be impacted by that particular area. But

the fact they harvest timber certainly doesn’t mean you

have polluted, impaired or destroyed. (Emphasis supplied)

The assertion by Intervening Defendants Appellees that they

were somehow denied due process of law when the Supreme

Court rendered its final decision in the case is truly beyond

13a

belief. They argued, based on testimony from the State’s wit-

nesses, there was no impairment to elk, bear or bobcat - but

they did not offer their own evidence of that fact at the trial.

The Intervening Defendants Appellees now seek to shift the

blame for the results of their tactical trial decision upon the

Plaintiffs. A lawsuit is not gamesmanship, it is an opportunity

to present in an orderly manner the parties’ contending posi-

tions. The Intervening Defendants Appellees now assert that

they have evidence that they did not offer to the Trial Court. If,

in fact, that is the case, (which we doubt) they are as bound by

their action as they are by their decision not to plead the affirm-

ative defense. They should not be allowed to “‘sand-bag” this

Court or the Plaintiffs. The Intervening Defendants Appellees

are brillant, knowledgable and successful businesses. Their own

suggestion that they didn’t know what they were doing at the

trial is fatuous.

This Court’s observation that “The effects of these permits

were comprehensively treated at the trial level, both by the

parties and by the circuit judge.” (Op, 5) is surely an understate-

ment. Rarely have Defendants entered a lawsuit more aware of

the arguments they would face, for the issue of oil development

in the Pigeon River Country has been before the public, courts

and agencies for a decade. The trial was one of the longest in

the history of the Ingham County Circuit Court. The transcript

stretches to more than 4,000 pages. The parties entered almost

a hundred additional exhibits. In short, the Defendants had

their day in court, both literally and figuratively.

Litigation of this type must stop somewhere. To'remand and

allow Intervening Defendants Appellees to present further evi-

dence which they now claim they withheld from the Trial Court

would be unjust, an unconscionable burden on Plaintiffs and

run contrary to the basic principals of our judicial system. The

decision was fair, and Intervening Defendants Appellees have

offered no good reason to reverse it.

The Intervening Defendants Appellees further argue that a

de novo review under the Michigan Environmental Protection

Act is contrary to the provisions of the constitution of the State

of Michigan. The constitutionality of the Michigan Environ-

mental Protection Act has been carefuily scrutinized by this

Court in State Highway Commission v VanderKloot, 392 Mich

159 (1974) and Ray v Mason County Drain Commissioner, 393

Mich 294 (1975). See also: The Constitutional Question: Vague-

ness and Delegation of Powers, 4 Journal of Law Reform 397

(1970). Based on these authorities there is no merit in the Inter-

14a

vening Defendatns Appellees’ claim that the Michigan Environ-

mental Protection Act (MCLA 691.1201 et seq, MSA 14.528

(201) et seq) is unconstitutional.

RELIEF

Plaintiffs respectfully pray for the entry of an Order

Denying Motion for Rehearing.

Respectfully Submitted,

Roger L. Conner

Attorney for Plaintiffs-Appellants

1324 Lake Drive, S.E.

Grand Rapids, Michigan 49506

(616) 451-3051

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