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Michigan Citizens for Water Conservation v. Nestle Waters North America Inc.11/29/2005
FOR PUBLICATION
Before: Murphy, P.J., and White and Smolenski, JJ.
In docket number 254202, defendant Nestlé Waters North America, Inc. (Nestlé) appeals as of right from the trial court's imposition of an injunction barring it from withdrawing any groundwater from property owned by Donald Patrick Bollman and Nancy Gale Bollman, a/k/a Pat Bollman Enterprises (the Bollmans). Plaintiffs cross-appeal the trial court's earlier decision to grant defendant partial summary disposition on their public trust claim. In docket number 256153, defendant Nestlé appeals as of right the trial court's grant of costs to plaintiffs. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
The events leading to this appeal began when Nestlé's predecessor in interest, Great Spring Waters of America, Inc., a subsidiary of Perrier Group of America, Inc., began taking steps to construct a spring water bottling plant in Mecosta County. In December of 2000, defendant purchased the groundwater rights to the Bollmans' property located north of Osprey impoundment and referred to as Sanctuary Springs. Osprey impoundment is a manmade body of water created by the damming of the Dead Stream. The Dead Stream originates from springs that are now obscured by Osprey impoundment and flows generally east and then south until it meets the channel between Blue Lake and Lake Mecosta. Shortly after defendant announced its plans to build its spring water bottling plant, the nonprofit corporation Michigan Citizens for Water Conservation (MCWC) was formed to represent the interests of riparian property owners in the vicinity of the proposed wells as well as other interested persons.
In January and February of 2001, defendant installed two wells on the Sanctuary Springs site. Two more wells were installed in July and August of 2001. Permits to use the wells were issued by the Michigan Department of Environmental Quality (DEQ) in August of 2001 and February of 2002. The combined maximum pump rate permitted for the four wells is 400 gallons per minute (gpm).
In the summer of 2001, defendant began to construct its bottling plant approximately 12 miles from Sanctuary Springs. In June of 2001, MCWC filed a complaint, which in part sought an injunction against the construction of the bottling plant. The trial court denied MCWC's request for an injunction because the construction of the plant did not itself constitute the harm sought to be enjoined by MCWC.
In September of 2001, MCWC filed its first amended complaint. In count I, MCWC requested an injunction against defendant's construction of wells, wellhouses and the pipeline for water extraction from Sanctuary Springs. Count II alleged defendant's withdrawal of water would not be lawful under the common law applicable to riparian water rights. Count III alleged defendant's withdrawal of water was unreasonable under the common law applicable to groundwater. Count IV alleged the waters of Sanctuary Springs are subject to the public trust and, consequently, defendant is without the power to withdraw, divert, diminish, or use the water so as to alienate or destroy the public's title. Count V alleged defendant's use of the waters would constitute an unlawful taking of public resources. Finally, count VI alleged defendant's withdrawals would violate the Michigan Environmental Protection Act (MEPA). Later the Bollmans were added as defendants and in November of 2001, plaintiffs filed a second amended complaint, which restated the counts of the first amended complaint, but added the Doyles and Sapps as plaintiffs.
In May of 2002, plaintiffs fil
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