                                                         Michigan Supreme Court
                                                               Lansing, Michigan
                                   Chief Justice:	         Justices:



Opinion                            Maura D. Corrigan 	     Michael F. Cavanagh
                                                           Elizabeth A. Weaver
                                                           Marilyn Kelly
                                                           Clifford W. Taylor
                                                           Robert P. Young, Jr.
                                                           Stephen J. Markman




                                           FILED JULY 30, 2004


 PRESERVE THE DUNES, INC.,

       Plaintiff-Appellee,

 v                                                        No. 122611

 MICHIGAN DEPARTMENT OF
 ENVIRONMENTAL QUALITY,

       Defendant,

 and

 TECHNISAND, INC.,

       Defendant-Appellant.

 ______________________________

 PRESERVE THE DUNES, INC,

       Plaintiff-Appellee,

 v                                                        No. 122612

 MICHIGAN DEPARTMENT OF
 ENVIRONMENTAL QUALITY,

       Defendant-Appellant,

 and

 TECHNISAND, INC,

      Defendant.
 _______________________________


                              1

BEFORE THE ENTIRE BENCH

CORRIGAN, C.J.

       Defendant Michigan Department of Environmental Quality

(DEQ) and defendant TechniSand, Inc., appeal a Court of

Appeals decision holding that the DEQ improperly granted a

sand       dune    mining    permit     to    TechniSand,         contrary     to   the

Michigan environmental protection act (MEPA), MCL 324.1701

et seq.1          The only issue properly before us is whether MEPA

authorizes a collateral challenge to the DEQ’s decision to

issue a sand dune mining permit under the sand dune mining

act    (SDMA),       MCL     324.63701       et    seq.,    in    an    action      that

challenges         flaws     in   the   permitting         process     unrelated     to

whether      the     conduct      involved        has   polluted,      impaired,     or

destroyed,         or   will      likely     pollute,       impair,      or   destroy

natural resources protected by MEPA.                       Because MEPA does not

authorize such a collateral attack, we reverse the decision

of    the    Court      of   Appeals     and      remand     to   that      Court   for

expedited         review     of   the    remaining         issues      of   plaintiff

Preserve the Dunes (PTD).2




       1
           253 Mich App 263; 655 NW2d 263 (2002).
       2
       PTD is an ad hoc organization of local citizens
formed for the purpose of instituting this lawsuit.




                                             2

        I.    Factual Background and Procedural Posture

        In 1991, defendant TechniSand purchased a sand mining

operation with a mining permit that was set to expire in

1993.         That     permit   did    not     allow    mining    in    adjacent

property, the Nadeau Site Expansion Area (NSE), which had

been classified in 1989 as a “critical dune” area under MCL

324.35301 et seq.

        Mining    in     critical     dune    areas    was   prohibited    after

July     5,      1989,     subject      to    certain        narrowly    defined

exceptions to MCL 324.63702(1):

             Notwithstanding any other provision of this
        part, the department shall not issue a sand dune
        mining permit within a critical dune area as
        defined in part 353 [MCL 324.35301 et seq.] after
        July 5, 1989, except under either of the
        following circumstances:

             (a) The operator seeks to renew or amend a
        sand      dune mining permit that was issued
        prior to July 5,    1989, subject to the criteria
        and standards applicable      to  a   renewal  or
        amendatory application.

             (b) The operator holds a sand dune mining
        permit issued pursuant to section 63704 and is
        seeking to amend the mining permit to include
        land that is    adjacent to property the operator
        is permitted to      mine, and prior to July 5,
        1989, the operator owned      the land or owned
        rights to mine dune sand in the land   for which
        the operator seeks an amended permit.

        In late 1994, TechniSand applied for an amended permit

under MCL 324.63702(1)(b). In April 1995, the Department of




                                         3

Natural       Resources   (DNR)3    denied         the   application     on   the

ground that TechniSand was ineligible for an amended permit

under       subsection    1(b)     because         it    had   purchased       the

operation after July 5, 1989.

        In May 1996, TechniSand amended and resubmitted its

application and supporting documentation to the DEQ.                        After

a public hearing, the DEQ approved TechniSand’s application

on November 25, 1996.            TechniSand began mining the NSE area

thereafter.

        Nineteen     months      later,       in    July     1998,    PTD     sued

defendants, seeking injunctive and declaratory relief under

MEPA.       MEPA provides a cause of action for declaratory and

other equitable relief for conduct that is likely to result

in the pollution, impairment, or destruction of Michigan’s

natural resources.        MCL 324.1701 et seq.

        PTD    alleged    that    the     DEQ      violated    MEPA    when     it

approved TechniSand’s amended mining permit.                         It further

alleged       that   TechniSand’s       mining      conduct    violated     MEPA.

Defendants sought summary disposition because PTD’s action

was     time-barred.      The    circuit        court      denied    defendants’


        3
      During this time, the DNR was the administrative
agency that regulated sand mining.          In 1995, this
responsibility was transferred from the DNR to the DEQ by
Executive Reorganization Order No. 1995-16 (codified at MCL
324.99903).



                                         4

motion.

     PTD    sought    summary    disposition   after   the   original

circuit judge had retired.         His successor ruled that PTD’s

claim under the SDMA was indeed time-barred. It also held

that plaintiff had established a prima facie MEPA claim on

the basis of TechniSand’s mining conduct.

     After a seven-day bench trial on the MEPA claim alone,

the court ruled that defendants had successfully rebutted

PTD’s prima facie case and         entered a judgment of no cause

of action.     The court specifically found that “any adverse

impact on the natural resources which will result from the

sand mining will not rise to the level of impairment or

destruction    of    natural    resources   within   the   meaning    of

MEPA.”

     The Court of Appeals reversed and remanded for entry

of an order granting summary disposition for PTD. The Court

of Appeals concluded that (1) the DEQ’s decision to grant

a permit could be challenged at any time under MEPA and (2)

TechniSand did not qualify for a permit under § 63702.               The

DEQ and TechniSand filed applications for leave to appeal

in this Court, and we granted leave.4




     4
         468 Mich 869 (2003).



                                    5

                       II. Standard of Review

      The issue presented involves a question of statutory

interpretation. We review de novo questions of statutory

interpretation.       Oade v Jackson Nat’l Life Ins Co, 465 Mich

244, 250; 632 NW2d 126 (2001).

                                            III

                           A.    Overview of MEPA

      MEPA is contained in part 17, MCL 324.1701 et seq., of

the Natural Resources and Environmental Protection Act, MCL

324.101 et seq.        To prevail on a MEPA claim, the plaintiff

must make a “prima facie showing that the conduct of the

defendant has polluted, impaired, or destroyed or is likely

to pollute, impair, or destroy the air, water, or other

natural resources, or the public trust in these resources.

. . .”       MCL 324.1703(1).           The defendant may rebut the

plaintiff’s     showing   with     contrary       evidence       or    raise    an

affirmative     defense   that     (1)       there   is   no     feasible      and

prudent alternative to the conduct and (2) the “conduct is

consistent with the promotion of the public health, safety,

and   welfare    in    light     of”        the   state’s        concern       with

protecting Michigan’s natural resources. Id. The focus of

MEPA is on defendant’s conduct.

      MEPA    provides    for      immediate         judicial         review     of

allegedly    harmful    conduct.    The       statute     does    not    require


                                       6

exhaustion of administrative remedies before a plaintiff

files suit in circuit court. MCL 324.1701(2).                   A court may,

however, “direct the parties to seek relief” in available

administrative proceedings.         MCL 324.1704(2).

                  B. Overview of SDMA Permit Process

        The DEQ may authorize mining in critical sand dune

areas    under     two   specific   conditions           set   forth    in    MCL

324.63702(1)(a) and (b):

             Notwithstanding any other provision of this
        part, the department shall not issue a sand dune
        mining permit within a critical dune area as
        defined in part 353 [MCL 324.35301 et seq.] after
        July 5, 1989, except under either of the
        following circumstances:

             (a) The operator seeks to renew or amend a
        sand dune mining permit that was issued prior to
        July 5, 1989, subject   to   the   criteria  and
        standards applicable to a renewal or amendatory
        application.

             (b) The operator holds a sand dune mining
        permit issued pursuant to section 63704 and is
        seeking to amend the mining permit to include
        land that is adjacent to property the operator is
        permitted to mine, and prior to July 5, 1989, the
        operator owned the land or owned rights to mine
        dune sand in the land for which the operator
        seeks an amended permit.

        If   an   operator   does   not      fall    within    one     of   these

limited exceptions to the SDMA ban on mining in critical

dunes areas, the inquiry ends.                 Nowhere in this initial

inquiry is the DEQ required to evaluate the permit seeker’s

proposed      conduct.       Indeed,        such    an   inquiry     would     be


                                       7

pointless    unless          the     DEQ     first     determined        that     the

applicant was          eligible for a permit on the basis of the

applicant’s status as either a past owner or operator.

     Once the DEQ determines that an applicant is eligible

to apply for a sand dune mining permit in a critical dune

area under § 63702(1), the applicant must                           fulfill the

requirements       of    §     63704.      Specifically,         applicants      are

required to submit the following to the DEQ:

          (a) A permit application on a form provided by
     the department.

          (b)      An environmental impact statement                          of the
     proposed      mining activity as prescribed by                           section
     63705.

          (c)   A    progressive  cell-unit  mining   and
     reclamation plan for the proposed mining activity as
     prescribed in section 63706.
          (d) A 15-year mining plan as prescribed by
     section 63707.

     After       the    DEQ    determines          that    the    applicant      has

satisfied §§ 63702(1) and 63704(2), it must next determine

whether the applicant meets the requirement of § 63709.

Section 63709 prohibits the DEQ from approving an amended

permit if the applicant’s proposed conduct “is likely to

pollute,    impair,       or       destroy      the   air,   water,      or     other

natural resources or the public trust in those resources,

as provided by part 17.”                   Thus, MEPA, in part 17, MCL

324.1701    et    seq.,      expressly          controls   the   DEQ’s    §     63709



                                           8

determinations.

     C. MCL 324.1701 and Nemeth v Abonmarche Development

     In    addition   to   conferring         power   upon   the   attorney

general,   MCL    324.1701(1)    authorizes       a   private      cause   of

action under MEPA:

          The attorney general or any person may
     maintain an action in the circuit court having
     jurisdiction where the alleged violation occurred
     or is likely to occur for declaratory and
     equitable relief against any person for the
     protection of the air, water, and other natural
     resources and the public trust in these resources
     from pollution, impairment, or destruction.

     MCL 324.1701(2) provides:

          In granting relief provided by subsection
     (1), if there is a standard for pollution or for
     an antipollution device or procedure, fixed by
     rule   or   otherwise,   by  the   state  or   an
     instrumentality, agency, or political subdivision
     of the state, the court may:

                                        ***

          (b) If a court finds a standard to be
     deficient, direct the adoption of a standard
     approved and specified by the court.

     Thus,   in   Nemeth   v    Abonmarche       Development,      Inc,    457

Mich 16; 576 NW2d 641 (1998), we held that a violation of

the soil erosion and sedimentation control act (SESCA), MCL

324.9101 et seq., may establish a plaintiff’s prima facie

showing under MEPA because the SESCA contains a pollution

control standard.




                                   9

     MCL 324.1702 is not applicable in this case because,

unlike the SESCA, the SDMA does not contain an antipollution

standard.       Consequently, it is not within the exception

created by MCL 324.1701(2).                 Nemeth, therefore, does not

support the argument that a violation of the SDMA may serve

as a prima facie violation of MEPA.

     The    Court    of    Appeals    decision     to   the   contrary     was

based on a misinterpretation of our holding in Nemeth:

          [A]lthough subsection 1701(2) speaks in
     terms of whether a “standard for pollution or
     antipollution device or procedure” exists, but
     does not specifically include whether a standard
     for impairment or destruction of a natural
     resources exists, our Supreme Court in Nemeth did
     not seem to find that to be an important point in
     that case in which soil erosion, rather than what
     is commonly thought of as pollution, was at
     issue. [253 Mich App 263, 286 n 2; 655 NW2d 263
     (2002).]

     The    Court    of    Appeals    conclusion     is    incorrect.       In

Nemeth,     we expressly justified our holding in part because

erosion    is   a   form   of   pollution.         Nemeth,    supra   at    27

(“Sedimentation      and    erosion     is     a   [sic]   well-recognized

source of water pollution.”).




                                      10

     Moreover, in Nemeth, as in all MEPA actions, the focus

was on defendant’s actual conduct.5         Specifically, this




     5
       Although we held in Nemeth that the SESCA creates a
pollution control standard applicable to MEPA claims, we
also specifically stated:

          We emphasize that this is not the end of the
     inquiry. The trial court held that plaintiffs'
     showing    of   defendants'    SESCA    violations
     established a prima facie claim under the MEPA.
     Then, defendants had the opportunity to rebut
     that prima facie showing either by submitting
     evidence to the contrary, i.e., that plaintiffs
     have shown neither pollution, impairment, nor
     destruction, nor the likelihood thereof, in spite
     of proof of the SESCA violations, or by showing
     that there is no feasible and prudent alternative
     to defendants' conduct.       Subsection 1703(1).
     [Nemeth at 36 n 10 (emphasis added).]

       Thus, it is clear that a defendant’s opportunity to
rebut a prima facie MEPA violation remains the same whether
that violation has been established independently or by
reference to another statute’s pollution control standard,
and that the determinative consideration is whether
defendant’s conduct will, in fact, pollute, impair, or
destroy a natural resource. In the instant case, the Court
of Appeals erroneously concluded that § 63702 of the SDMA
creates a pollution control standard and that defendant
violated it.          Having so concluded, the Court of Appeals
effectively concluded that defendant’s violation of § 63702
amounted to a MEPA violation per se. It failed to consider
at all whether TechniSand had submitted evidence sufficient
to rebut the alleged prima facie MEPA violations.            The
trial court, however, did consider this evidence after
finding that PTD presented a prima facie MEPA violation
independent of the SDMA.               The trial court held that
TechniSand had rebutted the prima facie MEPA violation.
The Court of Appeals failure to consider whether TechniSand
could rebut the (erroneously found) prima facie MEPA
violation evidences the extent to which it improperly
Footnotes continued on following page.


                               11

Court reiterated in Nemeth the findings of fact required of

a trial court as announced in Ray v Mason Co Drain Comm’r,

393 Mich 294; 224 NW2d 883 (1975).                In Ray, we stated:

             The trial judge must find the facts on which
        the plaintiff claims to have made a prima facie
        case   under   [§   1703(1)],  namely   that  the
        defendant's conduct     "has, or is likely     to
        pollute, impair or destroy the air, water or
        other natural resources.” . . .     Obviously the
        evidence necessary to constitute a prima facie
        showing will vary with the nature of the alleged
        environmental degradation involved.   [Ray at 309
        (some emphasis supplied).]

        That the Court of Appeals failed to recognize that

MEPA    is   concerned      only   with     harmful      conduct     is   readily

apparent from its characterization of the circuit court’s

focus on TechniSand’s mining conduct as error:

             Judge    Schofield   simply   addressed   whether
        TechniSand’s proposed mining was likely to “pollute,
        impair, or destroy” the natural resource in this case—
        the critical dune area. [253 Mich App 286.]

        Plaintiff     and    the   dissent        urge    us    to   hold     that

although TechniSand’s mining operation may or may not be

likely to pollute, impair, or destroy the air, water, or

other     natural      resources,     its         predecessor’s       allegedly

deficient      past     relationship         to     the     mining        property

negatively     affects      the    environment.            We   decline     their

invitation to accept such fuzzy logic.                    Where a defendant’s


failed to consider whether TechniSand’s conduct would
actually “pollute, impair, or destroy” a natural resource.



                                      12

conduct      itself       does    not    offend    MEPA,       no    MEPA   violation

exists.

       D. Review of the DEQ’s MCL 624.63702(1) Decisions6

       We reject the dissent’s gloomy prediction that this

orderly          understanding      of    MEPA    “insulates         [SDMA]    permit

eligibility determinations from judicial review.”                             Post at

22.

       As previously discussed, DEQ determinations of permit

eligibility under §§ 63702(1) and 63704(2) are unrelated to

whether the applicant’s proposed activities on the property

violate MEPA.            Therefore, MEPA provides no private cause of

action in circuit court for plaintiffs to challenge the

DEQ’s determinations of permit eligibility made under §§

63702(1) and 63704(2).

       An improper administrative decision, standing alone,

does       not    harm    the    environment.           Only    wrongful      conduct

offends MEPA.

       In        general,      judicial     review      of     an    administrative

decision          is     available       under    the      following        statutory

schemes: (1) the review process prescribed in the statute

applicable         to    the     particular      agency,       (2)   an     appeal   to



       6
       PTD does not challenge TechniSand’s satisfaction of
the requirements under § 63704(2).



                                           13

circuit court pursuant to the Revised Judicature Act (RJA),

MCL 600.631, and Michigan Court Rules 7.104(A), 7.101, and

7.103, or (3) the review provided in the Administrative

Procedures Act (APA), MCL 24.201 et seq.                     Palo Group Foster

Care, Inc v Dep't of Social Services, 228 Mich App 140,

145; 577 NW2d 200 (1998).

        The SDMA does not expressly establish procedures for

disputing a DEQ determination in a contested case unrelated

to MEPA.      We need not decide here whether PTD’s challenge

to the DEQ’s permit decision is governed by the RJA or the

APA     because    the     challenge       is     time-barred     under     either

statute.     PTD brought this action nineteen months after the

DEQ’s    decision     to    grant    TechniSand’s        application        for    an

amended     permit,      which    far     exceeds     the    sixty-day      period

allowed by the APA, MCL 24.304(1), and the twenty-one-day

period provided by MCR 7.101(B)(1), which governs appeals

under MCL 600.631 of the RJA pursuant to MCR 7.104(A).                            The

DEQ   and   TechniSand       properly           interposed   this    defense       in

their    initial    pleadings.            Thus,     PTD’s    claim    was    time-

barred.

                  E. Participation and Intervention
        During The Permit Process Under the SDMA or MEPA

        Parties    who     wish     to    intervene      during      the    permit

process have two options.                They may intervene either under



                                          14

the procedures governed by the SDMA or those governed by

MEPA.

        MCL 324.63708(5) of the SDMA establishes a procedure

for notifying interested parties of permit applications:

             The department shall provide a list of all
        pending sand dune mining applications upon a
        request from a person.   The list shall give the
        name and address of each applicant, the legal
        description of the lands included in the project,
        and a summary statement of the purpose of the
        application.

        Thus, the SDMA provides a mechanism whereby interested

parties may learn of and participate in agency decisions

regarding approval of critical dune area mining permits.

        MEPA provides another procedure for intervention in

permit proceedings.      MCL 324.1705(1). This statute requires

a potential intervenor to file a pleading asserting that

the   proceeding   or   action   for     judicial    review    involves

conduct that has violated, or is likely to violate, MEPA.

Thus,    while   PTD   could   have     intervened   in   TechniSand’s

permit process under MEPA, its only basis for intervention

would have been TechniSand’s proposed conduct.                MEPA does

not allow such intervention on the basis of anything other

than alleged wrongful conduct.

           F. Review of DEQ’s MCL 324.63709 Determinations

        As already discussed, a challenge under MEPA may be

filed in circuit court before or during the time that the


                                  15

alleged MEPA violation occurs, without any requirement that

a litigant exhaust administrative remedies.                      Thus, whether

TechniSand was ineligible for the permit under § 63709 on

the basis of alleged harmful conduct was a question that

was properly before the circuit court.                    The circuit court

ruled against PTD.

        The   Court    of    Appeals     has    not   reviewed    the    circuit

court’s decision that TechniSand’s conduct did not violate

the MEPA standard incorporated into the SDMA under § 63709.

Because the Court of Appeals never reached PTD’s claim that

TechniSand’s mining operation violates MEPA, that issue is

not ripe for this Court’s review.                     We remand the case to

the Court of Appeals to review the circuit court’s findings

regarding TechniSand’s sand mining activity.                     The Court of

Appeals is directed to expedite its consideration of this

case.

                            F. Response to the Dissent

        The dissent initially contends that it is undisputed

that TechniSand is “ineligible for a permit.” Post at 2.

We    disagree.        The     time     for      challenging      TechniSand’s

eligibility      for    a    permit     is     long   past.    TechniSand       is

lawfully entitled to mine sand dunes in Michigan according

to the DEQ permit.             Whether the DEQ’s permitting decision

was   “unprincipled”          or   an   “illegal      about-face”   is    not    a


                                         16

determination for this Court to make. Post at 2.                               That

decision is time-barred.

       The      dissent       further   asserts       that    the   DEQ’s    permit

decision         “will       directly   enable    destruction       of     critical

dunes.”         Post    at    3-4   (emphasis    supplied).         The     dissent

asserts that critical dunes will be destroyed because the

Court of Appeals stated that TechniSand had acknowledged as

much       in   an     environmental    impact     statement.         The    entire

environmental            impact     statement    is    not     in   the     record.7

Moreover, the trial court expressly found to the contrary

when it ruled on the MEPA claim.                  It specifically held that

TechniSand’s mining would not destroy a critical dune. The

Court of Appeals never addressed this finding.

       The dissent’s conclusion that the permitting process

is subject to collateral attack is not defensible on the

basis of MEPA’s language, structure, or purpose.                          Countless

entities apply for and receive permits for conduct that

affects Michigan’s natural resources.                        Under the dissent’s



       7
       The excerpt in the record indicates that TechniSand
acknowledged that the project would “greatly alter”
approximately 61% of the NSE. In any case, the trial court
expressly found more credible TechniSand’s expert witnesses
and ultimately held “the adverse impact on the environment
caused by the mining as permitted will not rise to the
level of impairment or destruction within the meaning of
MEPA.”



                                          17

regime, the permitting decision can never be final.                                 Were

we to adopt the dissent’s extreme understanding of MEPA,

every permit that has ever been issued would be subject to

challenge;        any    undotted       “i”     or     uncrossed         “t”    could

potentially       invalidate       an    existing      permit.           We    do    not

believe the Legislature intended MEPA to destabilize the

state’s permitting system in this manner.

      Imagine the world that the dissent’s reasoning would

create.     The present energy crisis offers a good example.

For many years, our country has sought to decrease our

reliance on foreign sources of oil.                   Suppose an oil company

decided     to     invest   in     oil     exploration        in      Michigan        in

reliance on a DEQ-issued permit. Under the dissent’s view,

MEPA would authorize a challenge at any time to flaws in

the   permitting        process.        Moreover,       under      the    dissent’s

reasoning, a court must accept as true the bare assertion

that a company’s conduct will destroy natural resources.

It can never rely on a permit to do business.                             What sane

investor would take such a risk?                     As gas prices soar, few

people in Michigan would thank this Court for “protecting”

the environment in this radical fashion.

      The       dissent’s   regime       would       render     the      permitting

process     a    useless    exercise.          It    would    cripple         economic

expansion in Michigan and probably lead to disinvestment.


                                         18

No   one    would       invest       money     to    obtain       a    permit       that   is

subject to endless collateral attacks.

        MEPA    nowhere          strips        the       permitting             process     of

finality.          It    is     the       dissent    that    makes          a    mockery    of

legislative        intent       by    failing       to    anchor       its      exaggerated

claims in the statute’s actual language. See post at 3.

MEPA does not impose the radical requirement that courts

indefinitely            police        administrative              agencies’             permit

procedures and decisions.                    As noted in Oscoda Chapter of

PBB Action Comm, Inc v Dep’t of Natural Resources, 403 Mich

215, 232-233; 248 NW2d 240 (opinion by Levin, J.) (1978):

             A court is not empowered to prevent any
        conduct . . . which does not rise to the level of
        environmental risk proscribed by [MEPA].      The
        standard, ‘has or is likely to pollute, impair or
        destroy,’ is a limitation as well as a grant of
        power.

        Moreover, the Court of Appeals never reached the issue

of whether TechniSand’s actual conduct is likely to harm

natural     resources.               As    already       noted,       the       trial    court

specifically held that TechniSand’s conduct did not violate

MEPA.      Given this procedural posture, we are puzzled by the

dissent’s statement that defendant’s mining “will” destroy

critical dunes.

        After   taking        extensive        testimony      on       the       issue,    the

trial      court        ruled    that        any     “adverse          impact       on     the



                                              19

environment caused by the mining as permitted will not rise

to   the   level   of    impairment     or    destruction    within   the

meaning of MEPA.”       The Court of Appeals did not explicitly

reject the trial court’s findings.            Instead, it erroneously

concluded that a permit that affects the environment in any

way may be challenged at any time under MEPA.                   For the

reasons articulated above, the Court of Appeals erred in

interpreting MEPA in this manner.

                                 CONCLUSION

      MEPA affords no basis for judicial review of agency

decisions under MCL 324.63702(1) because that inquiry is

outside the purview of MEPA.             The focus of MEPA is to

protect our state’s natural resources from harmful conduct.

It offers no basis for invalidating an issued permit for

reasons unrelated to the permit holder’s conduct.               To hold

otherwise would broaden by judicial fiat the scope of MEPA

and create a cause of action that has no basis in MEPA’s

language or structure.

      The Court of Appeals erred by treating PTD’s challenge

to   TechniSand’s       eligibility     for    a   permit    under    MCL

324.63702(1) as a MEPA claim.                Because PTD brought its

claim more than nineteen months after the DEQ issued the

permit,    PTD’s   claim    is   time-barred.        We     reverse   the

decision of the Court of Appeals on that issue.


                                  20

      We remand the case to the Court of Appeals to review

the   circuit   court’s   findings   that   TechniSand’s   mining

conduct does not violate MEPA, and direct the Court of

Appeals to expedite its review.

                                Maura D. Corrigan
                                Clifford W. Taylor
                                Robert P. Young, Jr.
                                Stephen J. Markman




                               21

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


                           SUPREME COURT 



PRESERVE THE DUNES, INC,

      Plaintiff-Appellee,

v                                                      No. 122611

MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,

      Defendant,

and

TECHNISAND, INC,

     Defendant-Appellant.
_______________________________

PRESERVE THE DUNES, INC,

      Plaintiff-Appellee,

v                                                      No. 122612

MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,

      Defendant-Appellant,

and

TECHNISAND, INC,

     Defendant.
_______________________________

KELLY, J. (dissenting).
        In 1995, the Michigan Department of Natural Resources

(DNR)       denied    defendant     TechniSand         permission      to      mine

critical dunes because it was ineligible for a permit under

the sand dune mining act1 (SDMA), MCL 324.63701 et seq.                         One

year later, following Governor Engler’s reorganization of

the   DNR,     the    newly    created        Department    of    Environmental

Quality      (DEQ)    invited    TechniSand       to   apply     again,     citing

“changes in state government.”                   TechniSand reapplied and

the DEQ granted a permit despite the fact, now undisputed,

that TechniSand remained ineligible to mine critical dunes.

As a result, critical dunes that would otherwise remain

untouched will be impaired and perhaps destroyed.

        Through the decision in this case, a court majority of

four sanctions the DEQ’s unexplained and illegal about-face

on    TechniSand’s      critical     dune       mining     permit.        In    the

process,      it     strikes    a   devastating        blow      to   Michigan’s

environmental law.2             This majority perpetuates the DEQ’s



        1
       The Sand Dune Mining Act is codified as part 637 of
the Natural Resources and Environmental Protection Act, MCL
324.101 et seq.
        2
          The majority’s decision to significantly narrow the
scope of the applicability of the Michigan environmental
protection act (MEPA), MCL 324.1701 et seq., in this case
is compounded by its recent decision in Nat'l Wildlife
Federation & Upper Peninsula Environmental Council v
Cleveland        Cliffs       Iron     Co and Michigan Dep't of
Footnotes continued on following page.

                                         2

unprincipled decision to permit illegal mining of critical

dunes by insulating it from the scrutiny of the Michigan

environmental protection act (MEPA).              MCL 324.1701 et seq.

Its holding that the DEQ’s decision to grant the permit to

mine critical dunes is “unrelated to” the destruction of

those       critical     dunes    defies   reality.         It   mocks    our

Legislature’s       intent   to    prevent    environmental      harm.    In

addition,      it   is    contrary   to    this   Court’s    earlier     MEPA

decisions.3

        Critical sand dunes, like those at issue in this case,

are specially protected natural resources.                  The mining act

protects these irreplaceable resources by strictly limiting

who is eligible to mine them.                MEPA works in tandem with

the mining act to, in its own words, supplement “existing

administrative and regulatory procedures provided by law.”

MCL 324.1706.          Issuance of the permit will directly enable


Environmental Quality, 471 Mich ___ ; ___ NW2d ___ (2004).
There, the same majority ignores thirty years of precedent
and   applies   judge-created   standing  tests   to   MEPA
plaintiffs. It makes this ruling despite the fact that the
statute explicitly grants standing to “any person” to
maintain an action to prevent pollution, impairment, or
destruction of our natural resources. MCL 324.1701(1).
        3
       See e.g., Eyde v Michigan, 393 Mich 453, 454; 225
NW2d 1 (1975), Ray v Mason Co Drain Comm’r 393 Mich 294,
304-305; 224 NW2d 883 (1975), West Michigan Environmental
Action Council v Natural Resources Comm, 405 Mich 741, 751;
275 NW2d 538 (1979) (WMEAC), and Nemeth v Abonmarche Dev,
Inc, 457 Mich 16; 576 NW2d 641 (1998).



                                      3

destruction of critical dunes that would otherwise remain

untouched.      Hence,   it    is    inescapable     that   the    DEQ’s

decision to issue the permit may be challenged under the

environmental protection act.

       Moreover, the environmental protection act does not

impose a statutory period of limitations on legal actions

that assert that a party’s conduct will cause environmental

pollution, impairment, or destruction.           Therefore, I would

hold   that   plaintiff’s     challenge   is   not   limited      by   the

statutory period of either the Administrative Procedures

Act (APA) or the Revised Judicature Act (RJA).              MCL 24.201

et seq., MCL 600.101 et seq.

       I dissent because the majority’s decision subverts the

purposes of the sand dunes mining act and the environmental

protection act by incorrectly insulating the DEQ’s permit

decision from scrutiny under the environmental protection

act.    Defendant TechniSand is not eligible for a permit to

mine critical dunes sand under the sand dunes mining act.

Accordingly, I would affirm the decision of the Court of

Appeals.




                                    4

                    The Majority's Response to the Dissent

      The majority’s “Response to the Dissent”4 is an abrupt

departure         from    its     precedent         of    declining    to        amend

legislative policy decisions with which it disagrees.5 Its

discussion of the wisdom of the Legislature's decision to

bar sand dune mining by anyone who does not meet limited

eligibility criteria is unsuited for a judicial opinion.

Moreover,        the     majority’s    comparison         of   the    eligibility

problem      in     the    permit     to        a   clerical   error    and       its

suggestion that my position would allow endless challenges

for such trifles are gross exaggerations.                       Ante at 17-18.

Granting a permit to mine critical dunes to an ineligible

operator is a substantive fault.                    It is a violation of the

law   that       allows    conduct    likely         to   pollute,    impair,      or

destroy      a    natural       resource        specially   protected       by    the

Legislature.           Economic development in this state has not

ceased in the past thirty years.                    It will not now grind to

a halt under the oppressive weight of permit challenges if




      4
          Ante at 16-20.
      5
       This Court has scrupulously declined to consider the
wisdom of the Legislature’s policy decision.      See e.g.
Oakland Co Rd Commr’s v Michigan Prop & Cas Guaranty Ass'n,
456 Mich 590, 612-613; 575 NW2d 751 (1998).



                                           5

this Court reaffirms its prior holdings that MEPA allows

challenges to environmentally destructive permit decisions.

                     Facts and Proceedings Below

       Defendant TechniSand purchased real property in 1991

that   included      both    critical      and      noncritical     dune    areas.

Along with its purchase, it obtained a permit to mine sand

in noncritical dune areas on one portion of the property.

In 1994, TechniSand applied for an amendment of this permit

to expand sand dune mining to critical dune areas on an

adjacent portion of the property.

       The   Michigan       Department        of    Natural    Resources,      the

agency charged with reviewing SDMA permit applications at

the    time,   denied       the    application         on   the    ground     that

TechniSand     was    ineligible        for    an    amended      permit.      The

original permit was to mine in noncritical dune areas and

did not include the property’s critical dune areas.                          Also,

TechniSand     had    purchased      the      land    and     mining   operation

after the deadline to apply for an unassociated permit to

mine the critical dune areas.                MCL 324.63702(1)(b).

       In 1995, Governor John Engler created a new agency,

the    Michigan   Department       of     Environmental         Quality     (DEQ).

Executive Reorganization Order No. 1995-16 (codified at MCL

324.99903).           The    DEQ    was       given     responsibility         for

administering the SDMA and other environmental permitting


                                        6

programs, and the Governor appointed its director.                     The DEQ

then wrote to TechniSand indicating that “changes in state

government”        and   “additional    information”        from   TechniSand

would allow the DEQ to review the permit application.6

       TechniSand        resubmitted        the     environmental       impact

statement and reclamation plan that it had submitted with

its    previous      application,      without       providing     additional

information        demonstrating     how     it     was    eligible    for   an

amended permit.          The DEQ issued the permit later that year.

It    did    not   explain    how    TechniSand      met    the    eligibility

criteria in the SDMA.          Also, it does not now dispute that

TechniSand is ineligible for a permit.

       Plaintiff Preserve the Dunes was formed in 1996.                      In

1998, it sued TechniSand and the DEQ for injunctive relief

to    stop    TechniSand’s    mine     expansion.          Plaintiff   alleged

that TechniSand was ineligible for an SDMA permit and that

its mine expansion violated MEPA.

       The trial court ruled that plaintiff’s challenge to

the        permitting     decision     was        time-barred      under     the


       6
       Letter dated April 1, 1996 from Douglas Daniels and
Kimberly Rice of the DEQ. The letter makes reference to an
April 20, 1995, letter by which Roger Whitener of the DNR
informed TechniSand that, pursuant to an opinion of the
state attorney general, TechniSand was ineligible to mine
critical dunes. The April 1, 1996, letter did not address
TechniSand’s ineligibility to mine critical dunes.



                                       7

Administrative Procedures Act and that the environmental

impact of the mining was insufficient to implicate MEPA.

The Court of Appeals reversed the ruling.              253 Mich App

263; 655 NW2d 263 (2002).         It held that the DEQ’s decision

to grant TechniSand’s amended permit could be challenged

under MEPA and that TechniSand did not qualify for a permit

under § 63702 of the SDMA.             The DEQ’s decision to amend

TechniSand’s permit, it concluded, violated MEPA.

        The Court of Appeals remanded the case to the trial

court    for    entry   of   summary    disposition   for   plaintiff.

Because it had found TechniSand ineligible for a permit to

mine the critical dune area, it did not review the trial

court’s finding that the mining itself violated MEPA.            This

Court granted the applications for leave to appeal filed by

the DEQ and TechniSand.       468 Mich 869 (2003).

               The Sand Dune Mining Act Protects Michigan’s
                      Critical Dunes from Destruction

        It is without contest that the Legislature enacted the

sand dune mining act to stringently protect Michigan's sand

dune areas from further destruction.           They are one of the

state's prized natural resources.          The Legislature included

in the act special provisions to preserve dune areas it

labeled "critical."




                                   8

       It expressly indicated:

            The critical dune areas of this state are a
       unique, irreplaceable, and fragile resource that
       provide   significant    recreational,  economic,
       scientific,   geological,     scenic,  botanical,
       educational,    agricultural,     and  ecological
       benefits to the people of this state and the
       people from other states and countries who visit
       this resource. [MCL 324.35302(a).]

       The Legislature enacted the SDMA out of concern that

mining the dunes consumes them and harms the environment.

The    act        is    an     expression     of    the     state’s    “paramount”

interest in protecting the dunes.                         See MCL 324.1701.    It

defines “Sand dune mining” as the “removal of sand from

sand       dune    areas      for     commercial    or    industrial    purposes.”

MCL 324.63701(l).7              It requires all persons seeking to mine

sand       dunes       to    obtain    a   sand    dune    mining   permit.   MCL

324.63704.             Regarding critical dunes, the act states that

“the removal of any volume of sand that is not sand dune

mining within a critical dune area as defined in part 353

is subject to the critical dune protection provisions of

part 353.”         MCL 324.63701(l).




       7
       The statute exempts from this definition the removal
of “volumes of less than 3,000 tons” of sand if the removal
is a “1-time occurrence and the reason the sand is removed
is not for the direct use for an industrial or commercial
purpose.”



                                             9

     The SDMA’s flat prohibition against mining any sand in

designated critical sand dune areas is subject only to a

narrow exception.    That is, authorized mining entities that

existed when the SDMA was enacted may continue operation

(1) on land in which they had a mining interest before July

5, 1989 or (2) on land adjacent to property in which they

had a mining interest before that date.       MCL 324.63702(1).8

     These      “grandfathering”       exceptions    reflect     the

Legislature’s    attempt   to   balance   mining    interests   that

predated the critical dune designation of July 5, 1989,

with the preservation of the remaining and newly designated




     8
         MCL 324.62702(1) provides in full:

          Notwithstanding any other provision of this
     part, the department shall not issue a sand dune
     mining permit within a critical dune area as
     defined in part 353 after July 5, 1989, except
     under either of the following circumstances:
          (a) The operator seeks to renew or amend a
     sand dune mining permit that was issued prior to
     July 5, 1989, subject to the criteria and
     standards applicable to a renewal or amendatory
     application.
          (b) The operator holds a sand dune mining
     permit issued pursuant to section 63704 and is
     seeking to amend the mining permit to include
     land that is adjacent to property the operator is
     permitted to mine, and prior to July 5, 1989 the
     operator owned the land or owned the rights to
     mine dune sand in the land for which the operator
     seeks the amended permit.



                                 10

critical dunes.             New entities would be unable to begin

operation.           Existing          entities           would     have         limited

opportunities        to     mine     additional          areas.          By     limiting

critical dune mining to those entities with a preexisting

interest, existing entities would be allowed to continue

operating      while        ensuring    that        mining        would       not      last

indefinitely.

      The Legislature mandated that these narrow exceptions

for   sand      dune        mining     would        be     implemented           through

regulatory permits.             MCL 324.63704.              The act created a

permitting procedure to ensure that future mining would be

only by parties with a pre-existing legal interest, and in

a manner protective of critical dune areas.                                   It cannot

reasonably be suggested that the eligibility criteria that

completely      prohibit       all     but     an     expressly          defined       few

operators from mining critical dunes are not a measure of

environmental protection.

      Only     if      eligibility        is        verified        do        additional

environmental        protections         come        into         play.             Permit

applications by eligible entities are reviewed on a case-

by-case      basis     to    ensure     that        the    proposed           mining    is

environmentally acceptable.               The applicant must submit an

environmental impact statement describing the anticipated

environmental        damage     that     will       occur      from       the       mining


                                         11

operation. MCL 324.63704(2)(b).             The applicant must explain

why    alternative    mining      locations       were     not     chosen.    MCL

324.63705(h).      It must include a reclamation plan for the

area to be mined.         MCL 324.63704(2)(c), 324.63706.

       In reviewing the application, the DEQ must ensure that

the    proposed   mining     is   unlikely       to     pollute,    impair,    or

destroy   natural    resources      or     the    public    trust     in   those

resources.    MCL 324.63709.         Any permit issued must require

that the provisions of the applicant’s progressive cell-

unit     mining    and      reclamation          plan     are      met.       MCL

324.63706(3).        If    threatened      or     endangered       species    are

present, the plan must include provisions either to protect

them or to mitigate the effect of mining on them.                             MCL

324.63706(3)(g).

           Plaintiffs May Challenge the Permit Eligibility
                Determination Under the Michigan
                     Environmental Protection Act

       The environmental protection act provides that

       . . . any person may maintain an action in the
       circuit court . . . where the alleged violation
       occurred or is likely to occur for declaratory
       and equitable relief against any person for the
       protection of the air, water, and other natural
       resources and the public trust in these resources
       from pollution, impairment, or destruction. [MCL
       324.1701(1).]

       Under this act, a plaintiff makes a prima facie case

by showing “that the conduct of defendant is likely to



                                     12

. . . destroy the . . . natural resources or the public

trust       in    these    resources.”         MCL     324.1703(1).9        The

Legislature         expressly      provided     that     MEPA     supplements

existing regulatory procedures that were provided by law.

MCL 324.1706.

        The SDMA’s eligibility restrictions protect critical

dunes from mining by ineligible operators whose conduct is

likely      to    impair    or   destroy     critical    dunes    that    would

otherwise         remain   untouched.         Hence,     the    environmental

protection act is applicable to decisions regarding an SDMA

permit      applicant’s      eligibility.         The    SDMA    specifically

incorporates        the    Legislature’s      recognition       that   critical

dunes       are     “irreplaceable”          natural     resources.         MCL

324.35302(a).         It provides that “the removal of any volume

of sand . . . within a critical dune area . . . is subject

to the critical dune protection provisions of part 353.”

MCL     324.63701(l).            Its   provisions       strictly       limiting

eligibility to mine critical dunes are intended to help

protect      critical      dunes    from     pollution,     impairment,      or

destruction.

        9
        The majority's reference to MCL 324.1702(2) is
misplaced. Ante at 10. Plaintiffs are not challenging the
DEQ’s imposition on Technisand of the SDMA’s pollution
control standards.    They do not challenge the manner in
which permissible activity is undertaken.     They challenge
whether Technisand's conduct is permissible at all.



                                       13

        Thus,     the        majority’s       suggestion         that      permit

eligibility is unrelated to whether the conduct permitted

will harm the environment is untenable.                          Issuance of a

permit to an ineligible operator to engage in any mining of

critical    dunes       will   allow         “conduct    .   .    .     likely   to

pollute, impair, or destroy . . . natural resources or the

public trust in these resources.”                   MCL 324.1703(1); see

also West Michigan Environmental Action Council v Natural

Resources Comm,         405 Mich 741, 751; 275 NW2d 538 (1979)

(WMEAC).

        MEPA is intended to prevent conduct that is likely to

harm the environment as well as to stop conduct that is

presently harming it.            In WMEAC, this Court ordered that a

permanent injunction be entered prohibiting the drilling of

oil and gas wells pursuant to a DNR permit.                       The “issuance

of permits was properly before the circuit court as conduct

alleged    to     be    likely    to   pollute,     impair,        or    destroy”

natural resources under MEPA.                WMEAC at 751.        The drilling

would     cause     “apparently        serious     and       lasting,      though

unquantifiable, damage” to elk herd population.                          WMEAC at

760.      This Court concluded that the previous MEPA, MCL

691.1203(1),        is violated whenever the effects of permit

issuance    harm       the   environment      to   the   requisite        degree.

WMEAC at 751, 760.


                                       14

        Unlike permit eligibility for fossil fuel drilling and

other activities that may pollute the environment if done

improperly,10           SDMA     permit         eligibility     is      severely

restricted.         The applicant must demonstrate a preexisting

mining       interest,     and       no   mining    may    occur     until   this

requirement         has    been       satisfied.           It   reflects      the

Legislature’s premise that the removal of even one bucket

of sand from a critical dune by an ineligible operator will

inordinately impair the state's critical dune areas.                          An

action       that   enables      such     conduct    may   be   challenged    as

destruction or impairment under MEPA.

        This Court observed in Nemeth11 that a violation of a

permitting procedure can support a prima facie claim under

MEPA.        A “plaintiff’s prima facie case is ‘not restricted

to actual environmental degradation but also encompasses

probable       damage     to   the    environment     as   well.’”       Nemeth,

supra at 25, quoting Ray v Mason Co Drain Comm’r, 393 Mich

294, 309; 224 NW2d 883 (1975).                     In the soil erosion and




        10
        See also MCL 324.5505 and 324.3106, requiring
permits for activities that may pollute the air and water
without imposing stringent eligibility criteria.
        11
             See n 3.



                                          15

sedimentation            control    act,12        the   Legislature      created     a

pollution control standard that this Court held could be

enforced through MEPA.              Nemeth, supra at 35.

        The Legislature chose to make the SDMA more protective

of the environment than the soil erosion and sedimentation

control       act.         As     already      explained,13      the    Legislature

determined that any mining of critical dunes by ineligible

entities       is    an    unacceptable        destruction       of    this   natural

resource.                Hence,     the        majority’s        conclusion      that

eligibility         is     unrelated      to      conduct   is    premised     on   an

artificial and hypertechnical bifurcation of the permitting

process.            When    concluding         that     permit    eligibility       is

unrelated to conduct, the majority buries its head in the

sand.

        Its characterization of the eligibility review as an

“initial inquiry”14 is not based on the language of the

statute.        The eligibility criteria in MCL 324.63702 are as

much a condition to engage in critical sand dune mining as

the requirements in §§ 63704 through 63706.                           The SDMA does

not enact a hierarchy or order to be followed by those


        12
             MCL 324.9101 et seq.
        13
             Supra beginning at 7.
        14
             Ante at 7.



                                            16

reviewing a permit application.                         Unlike this Court’s recent

decision in Nemeth, here the majority reads “likely to” out

of the statute.

        The majority argues that an inquiry into the effect on

the environment of the proposed mining “would be pointless

unless        the   DEQ     first    determined           that    the       applicant       was

eligible        for    a    permit      on    the       basis    of    the       applicant’s

status”.        Ante at 7-8.            We could not agree more.                   It would

be   pointless         for    the    DEQ      to    review       the    effect         of   the

proposed        mining      if    the    applicant         were       ineligible        for    a

permit.        If the applicant is not eligible, no mining will

occur.        Critical dunes will not be destroyed.

        The     majority      attempts        to    restrict          the    inquiry        into

Technisand's conduct to consideration of the nature of its

relationship           to     the       property          at     issue.            This       is

misleading.15               The   conduct          in     question          is   more       than

TechniSand’s          “relationship          to     the    mining       property.”            It

necessarily           encompasses        TechniSand’s            proposal         to    remove

large        quantities      of   sand       from       designated      critical         dunes

that would otherwise remain untouched.                           This is the “actual


        15
       See, e.g., ante at 11 n 5. The majority’s implicit
recognition that [c]ountless entities apply for and receive
permits for conduct that affects Michigan's natural
resources,"   ante   at   17,  demonstrates  the   internal
inconsistency of its argument.



                                              17

conduct” that the permit at issue allows and that plaintiff

alleges is “likely to pollute, impair, or destroy” critical

dunes under MEPA.       MCL 324.1703(1).            Because the critical

dunes    could   not   have   been    mined    by    TechniSand   at   all

without the erroneous eligibility determination, plaintiff

should be allowed to pursue its MEPA cause of action.

        Statutory provisions must be read in the context of

the entire act so as to produce a harmonious whole. Macomb

Co Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247

(2001).     Subsections a and b of § 63702(1) must be read

together    because    of   their    juxtaposition.        Subsection    b

applies when the permit holder seeks to expand the permit

to include adjacent land that contains a critical dune area

that it owned before July 5, 1989.             In contrast, subsection

a applies to the amendment or renewal of a permit that

already authorizes mining in a particular area.

        The permit issued to TechniSand authorized mining only

in the noncritical dune areas.             TechniSand had to apply for

a permit amendment to add the adjacent critical dune areas

to its permit.         Therefore, subsection b applies to this

case.      However, TechniSand did not own the land or the

rights to mine the sand before 1989 as required by the

statute.     Therefore, it could not have obtained the permit




                                     18

amendment and could not have engaged in any critical sand

dune mining.

        TechniSand’s         environmental                impact     statement16

acknowledged that mining the critical dunes at issue would

“significantly impair the environment and would permanently

destroy       critical     dune.”      253    Mich    App     269.    Witnesses

testified from the statement that the mining will change

“the nature of the result in the environment . . . for

hundreds of years”17 and a “large percent of the critical

dune will be removed.”18             Plaintiff’s expert testified that

“The critical dune will be gone.”19

        Nonetheless,       the      majority    holds        that    the     DEQ’s

determination that TechniSand is eligible to mine critical

dunes        is   unrelated      to     whether           TechniSand’s      mining

activities        will   pollute,     impair,        or    destroy   a     natural



        16
        The majority criticizes me for citing a document
“not in the record.” Ante at 17. However, it was Exhibit
21 at trial, and witnesses read from it. See Trial Tr at
122, 582, 785, and 932. Plaintiff’s brief on appeal in the
Court of Appeals quoted it at p 6.    The record on appeal
includes all original papers filed in the courts below.
MCR 7.311(A).     Plaintiff included an excerpt in the
appendix (p 14b) to its brief on oral argument before this
Court. See MCR 7.308.
        17
             Trial Tr at 935.
        18
             Id. at 785.
        19
             Id. at 122.



                                        19

resource.       Thus, it concludes that plaintiff cannot rely on

MEPA to challenge the permit that has been issued.                                    The

majority’s        reasoning       undermines            the        critical         dunes

protections       in   the    SDMA,     the    intent        of    MEPA,      and    this

Court’s earlier MEPA decisions.

      Plaintiff is not required to challenge issuance of the

permit     as    an    administrative          decision       under       either      the

Administrative         Procedures        Act      (APA)           or    the     Revised

Judicature       Act   (RJA).         The      MEPA     is    “supplementary           to

existing administrative and regulatory procedures provided

by law.”        MCL 324.1706.     It was intended to create a common

law of environmental protection.                  Ray at 306.             It does not

require that a plaintiff exhaust administrative remedies.

MCL   324.1701(1).           Accordingly,         the    statutory           period    of

limitations       of   neither     the      APA    nor       the       RJA    apply    to

plaintiff’s        MEPA      claim.20          Plaintiff’s             challenge       to

Technisand’s permit under the MEPA is not time-barred.

      The DEQ does not dispute that TechniSand is ineligible
for   a    permit.        Recognizing       plaintiff’s           claim      under    the


      20
        The MEPA itself imposes no statutory period of
limitations, but equitable claims under the Natural
Resources and Environmental Protection Act, which houses
MEPA, have been held subject to the six-year statutory
period of MCL 600.5813.    Attorney General v Harkins, 257
Mich App 564, 571; 669 NW2d 296 (2003).




                                         20

environmental protection act expresses no disrespect for an
administrative agency’s decision.                  The majority abdicates
its    responsibility        by    refusing    to    review     this    permit
eligibility determination under MEPA.21

                                      Conclusion

       The majority's decision today wrongly insulates Sand

Dune    Mining   Act    permit       eligibility     determinations        from

judicial review.       The decision to issue a sand dune mining

permit      pursuant    to     the     SDMA    inherently       includes     an

environmental component.             I would hold that issuance of the

permit in this case can be challenged under the Michigan

environmental protection act.

       The Legislature intended the act to apply to permit

determinations.             Application       of    the   act    to     permit

determinations         is         entirely     consistent        with       the

Legislature’s intent to stringently preserve Great Lakes

sand dunes against degradation and to protect the integrity




       21
        The majority cites Oscoda Chapter of PBB Action
Comm, Inc v Dep’t of Natural Resources, 403 Mich 215, 233;
268 NW2d 240 (1978) to support its finality argument. But
its quotation from the case is taken out of context and is
from an opinion that did not garner a majority of votes.
The statement addressed the court’s authority to consider
feasible and prudent alternatives to proposed conduct, an
issue entirely unrelated to the majority’s decision that
this permit challenge under MEPA is time-barred.



                                       21

of that environment.       The majority’s reasoning frustrates

that intent.

     Plaintiff's   cause    is   not   barred   by   the   statutory

limitations periods of the APA and the RJA.           The Court of

Appeals correctly remanded the case for entry of an order

granting summary disposition for plaintiff.           Its decision

should be affirmed.

     Because the majority ignores both the reality of the

permitting process and the Legislature’s intent to protect

critical dune areas from destruction, I must dissent.

                                  Marilyn Kelly
                                  Michael F. Cavanagh
                                  Elizabeth A. Weaver




                                 22

