The Michigan Department of Environment, Great Lakes, and Energy (“EGLE”) issues many permits needed by landowners who want to build on, or change, their property. For example, if your project will effect “waters of the United States,” which simply put are any navigable waterways, you will need a permit. Additionally, if your land contains wetlands or sand dunes or if your project will have a substantial impact on air quality, you will also need a permit from EGLE. But what happens if EGLE denies your permit? In these cases Michigan law provides for administrative appeals through a process called a “contested case hearing.”
The contested case process allows an individual to challenge EGLE’s permitting decision. There are two types of challenges:[1] (1) a challenge to a denial of a permit application, where the individual whose permit was denied may challenge that denial, and (2) a challenge to the issuance of a permit, where the individual is a third party challenging EGLE’s issuance of a permit.[2] Contested cases are presided over by Administrative Law Judges (“ALJ”). ALJs are not judges who are elected and serve pursuant to the Michigan Constitution, but rather they are individuals who are employees of the Michigan Office of Administrative Hearings and Rules (“MOAHR”). Additionally, because the ALJs are executive branch employees the process is governed by the Administrative Procedures Act, not the Michigan court rules.
Not all permit decisions are eligible for review through the contested case process. The law or administrative rule must provide the right to a hearing. As such it is important to consult with legal counsel to determine whether your case is eligible for the process. Generally, most permit decisions concerning surface waters, air quality, and wetlands are eligible for review.
To begin the process, you must submit a “Petition for Contested Case Hearing.” This form is available on the MOAHR website and the required information includes, among other things, the law authorizing the contested case process, information about the site and proposed project, and the relief sought. After filing this form, MOAHR will open a file and inform all necessary parties. The case can then proceed in one of two ways: (1) a hearing or (2) informal resolution. Informal resolution allows the individual to meet with MOAHR and EGLE representatives to resolve the case without a full adversarial process. The formal complaint is held in abeyance provided that the parties make periodic reports. This allows the individual to seek a hearing on the matter if the informal discussions prove fruitless.
If the complainant chooses to proceed to a hearing the process is relatively straightforward. The parties will first file pre-hearing statements which provide the factual background as each party understands it and the general legal theories. Then a pre-hearing conference is held by the ALJ to set dates by when the parties must exchange witness lists and exhibits, propose factual stipulations, and sets filing dates for motions and responses. Then the hearing is held where the parties present their evidence through sworn witness testimony and exhibits. Lastly, the parties give their closing arguments. The ALJ will then consider the evidence presented by the parties and issue the Final Decision and Order. This order will bind the parties, and may be appealable to circuit court, this will be the topic of a future blog.
The attorneys at Dalton & Tomich, PLC are highly experienced in all aspects of land use, riparian rights and administrative law, and are here to help guide you through any and all legal complexities to help achieve your goals.
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[1] There is a third kind of case, where EGLE seeks to modify or revoke and existing permit, but because this is initiated by the state it will not be discussed in this post.
[2] In the second type of case the party who was issued the permit has the right to intervene in the process.
