INTRODUCTION

            This amicus brief is respectfully submitted on behalf of Anglers of the AuSable and The Great Lakes Council, Inc. of Fly Fishermen which, like the National Wildlife Federation (NWF), the Michigan United Conservation Clubs (MUCC), and the Michigan Council of Trout Unlimited (MCTU) (“Conservation Organizations”), also value sound conservation, use, and enjoyment of our State’s water and wildlife resources, values which this amicus thinks are not served by the Conservation Organizations’ position in this case. 

In the introduction to their brief, the Conservation Organizations state that the central issue of the case at bar is to help define a comprehensive policy which “balances the need for groundwater withdrawals with protecting Michigan’s natural resources, especially hydrologically connected surface waters”.  They then offer a simple major premise:  groundwater withdrawals, when shown to have a direct connection to the surface water, should be subject to the same rights, responsibilities, and limits as direct surface water withdrawals.  Both generalizations are fairly stated.  But thereafter, the Conservation Organizations’ brief is seeded with subtle distortions --- and some not so subtle linguistic gymnastics --- which, if not rebutted, might mislead this Court into changing Michigan’s common law in favor of commercial appropriation at the expense of the traditional property rights of our citizens.  For example, the Conservation Organizations’ brief says: 

a.         “. . . Michigan simply does not yet have a comprehensive common law and statutory framework for managing our everyday groundwater withdrawals”.  Conservation Orgs. Amicus Brief, p1.

b.         “. . . the MCWC (and its riparian members) seek to establish a different set of common law rules for groundwater and surface users, giving priority to existing ‘traditional’ riparians at the expense of new groundwater users”.  Conservation Orgs., Amicus Brief, p2.

c.         “. . . Nestle Waters of North America Inc. (Nestle) presents a compelling and principled case for recognizing the interconnection of groundwater and surface water and adopting some elements of the Restatement, 2d of Torts §858.  Conservation Orgs., Amicus Brief, p2. 

[emphasis supplied in all three examples]

            One would think from reading these remarks that the commercial extraction of a half million gallons a day is an “everyday groundwater withdrawal”, that Nestle is being discriminated against because it is “the new kid on the block”, and that the proper ingredient for the common law portion of the Conservation Organization’s brave new “comprehensive policy” is just enough tort law to infringe upon traditional riparian property rights and impose a difficult burden of proof on the commercial extractor’s opponents.

            In the interest of plain speaking, let us recognize that this case is before the Court because 21^st Century technology has made possible, on a scale heretofore unimagined, the permanent removal of groundwater from a watershed, and 21^st Century markets have provided an economic incentive to so remove without regard to consequences for the groundwater supply or its hydrologically connected surface waters. Let us also recognize that there is nothing compelling or principled about selecting portions of the common law, while surgically removing others, in order to produce a desired result.  If the desideratum is a doctrine which balances groundwater withdrawals with the protection of Michigan’s natural resources, let us retain law that realizes mom and dad’s backyard well or on-tract crop irrigation are different from a bottled water operation which not only withdraws, but permanently diverts, a huge volume of water from a watershed.

ARGUMENT

I.                    MICHIGAN’S TRADITIONAL RIPARIAN PROPERTY LAW SHOULD NOT BE DISCARDED FOR A TORT LAW FRAGMENT DESIGNED TO COMPENSATE INJURIES CAUSED BY COMPETING CLAIMS TO WATER CONSUMPTION.

The Conservation Organizations urge this Court to review the case at bar under a standard which adopts “some elements of the Restatement, 2d of Torts §858”, noting that “such an approach puts all groundwater and surface water users on the same ‘reasonableness’ playing field for resolving disputes”.  What they should have said is that this approach puts all water extractors on an equal footing, “commoditizing” water so that consumptive use levels (as in “tears down”) time-honored non-economic rights which belong exclusively to riparians.

Why should this radical proposal be adopted in Michigan?  If the Restatement is selectively applied to overturn all or part of the trial court’s judgment, then the right to consume water by extraction --- which is the only right currently enjoyed by groundwater users --- becomes the sine qua non against which all of Michigan’s valuable, historically-recognized, non-consumptive riparian rights, are measured.  But Michigan citizens who own property on lakes and streams, and who undoubtedly paid waterfront prices to acquire those properties, have a precedent-protected expectation that the water in their appurtenant lakes and streams will not be diminished by those with inferior property rights.  Admittedly, a downstream riparian has no absolute right to a particular flow volume as against an upstream riparian, but even an upstream riparian has no right to divert the natural watercourse away from the downstream riparian, and a “stranger” (i.e. a non-riparian) has no right to diminish the flow of waters at all, even if arguably for a reasonable purpose.  Dumont v Kellogg, 29 Mich 420 (1874).  This rule is further refined to prevent exploitive diminution by giving priority to “natural” riparian uses (i.e. household uses) over “artificial” riparian uses (e.g. appropriation for commercial profit).

[Riparian] users for natural purposes enjoy a preferred nonproratable position with respect to all other users, rather than a correlative one.  Thompson v Enz, 379 Mich 667, 686-687; 154 NW2d 473 (1967). 

Applying portions of the Restatement to place remote commercial groundwater extractions on the same legal footing as lakefront domestic uses destroys these precedents and tramples logic in the process.  The Restatement, which requires proof of “direct, substantial, and unreasonable harm” to a water right, contemplates quantifying legally equivalent claims to a fixed supply of water and measuring damages for the person who gets “shorted”.  Such a test makes no sense when applied to riparians, who possess manifold, largely intangible and unquantifiable property rights, in addition to the right to consume water.  Current law does not impose such a burden on riparians, whose status under real property law gives them  priority water rights with their title.  Riparian rights inhere in a deed to land which is adjacent to water.  Michigan Land Title Standards, Standard 24.5.  This Court should not change the law of Michigan, and  wipe out 150 years of title-based benefits in favor of a tort law burden of proof which theoretically would require riparians to quantify the unquantifiable.  To “level the playing field” in this case, as the Conservation Organizations suggest, puts a remote groundwater extractor in a better position vis a vis “natural” riparians than an “artificial” (industrial and commercial) riparian user, whose rights in the stream are currently subordinated to domestic use. Thus, the Conservation Organizations’ proposition may be simple, but it is also radical and unfair - a “leveling” without equity.

II.                 THE COMMON LAW DISTINCTION BETWEEN ON-TRACT AND OFF-TRACT [OR OUT—OF—WATERSHED] GROUNDWATER USERS IS BOTH EQUITABLE AND LOGICAL, AND WAS CORRECTLY APPLIED IN THE CASE AT BAR.

In their attempt to convince this Court to abandon Michigan’s common law of riparian rights, the Conservation Organizations decry the trial court’s logic in relying on Michigan’s traditional groundwater law, which places Nestle in the justifiably disadvantageous category of an out-of-watershed user.  Here is how the Conservation Organizations attack this aspect of the trial court’s findings against Nestle:

The trial court then used the old rule to distinguish Nestle’s off-tract groundwater use from “traditional” on-tract groundwater uses such as agriculture.  Such a distinction has no articulated or defensible role in the law in Michigan.  Nestle’s groundwater use in this case is off-tract because the company pumps water at the relatively pristine Sanctuary Springs property, then pumps it over 11 miles to a bottling facility located in a more developed area.  If Michigan courts adopted what appears to be trial court’s approach of giving preferences to on-tract water users, Nestle and similar operations would be forced to site their manufacturing and processing facilities on the property where the water is pumped.

Summarized, the Conservation Organizations declare the distinction between off-tract and on-tract uses[1] to be indefensible, and further declare that even if it was, Nestle could prevail in the case at bar simply by relocating its manufacturing facilities to the wellhead site.  Thus, with a single deft shift of gears, these organizations proceed from unsupported conclusionary statement to fallacious conclusion.

            To begin with, the off-tract/on-tract distinction is not indefensible.  Properly understood, it allows a proprietor of land to use water either off-tract or on-tract as long as the water consumed is reasonable in light of several factors, including surface acres owned. 

As the Conservation Organizations concede, the off-tract/on-tract distinction developed because limiting water use to the boundaries of the land from which it was pumped was “a rough indicator of the reasonableness of the water use”.  In other words, because on-tract use was inherently limited, the volume of water withdrawn was presumptively reasonable if it was proportional to the surface acres owned by the extractor; opponents of the on-tract use must prove otherwise.  On the other hand, since off-tract use was theoretically limitless, it was presumptively unreasonable.  The water user must prove that the volume of water taken is no greater than that which would be permitted if the water was applied on the wellhead tract, or face liability for wrongful appropriation --- including the possibility of an absolute bar on off-premises consumption. 

The Conservation Organizations imply that Maerz v US Steel Corp, 116 Mich App 710; 323 NW2d 524 (1982), has altered these rules to permit unrestricted on-tract use.  But on the contrary, Maerz, which is cited by the Conservation Organizations and Nestle as the cutting edge of modern water law, recognized that on-tract application was not carte blanche:

In summary, our analysis of [several Michigan cases] leads us to conclude that they do not establish as the law of Michigan that extraction of underground water for a purpose connected with the land from which it is withdrawn is, per se, not actionable. Maerz, supra, p 720.

Thus, the existing law does not purport to give a “free pass” to an on-site user whose technology allows it to extract a thousand times the amount of groundwater as a hand pump.  Rather, it measures the volume of groundwater withdrawn against the surface acres owned by the withdrawer, and balances this use against the competing rights of surrounding users, both riparians and other, smaller, non-riparian groundwater users.  So understood, the fallacy of the Conservation Organizations’ conclusion --- that relocating Nestle’s manufacturing facilities at the wellhead will automatically entitle them to withdraw as much water as they want simply because they are an on-tract user[2] --- becomes apparent.

The Conservation Organizations also concede that the off-tract/on-tract distinction developed to prevent urban centers from exploiting rural areas by the expedient of purchasing a small tract overlying a large aquifer.  This so-called “American reasonable use” rule forces cities to condemn the water rights of all impacted subjacent owners. 

What, pray tell, is wrong with this common law?  Here are fact-driven, easily calculated, common sense rules which protect groundwater and its hydrologically connected surface waters from disproportionate appropriation or diversion by anyone, and from unfettered public appropriation without just compensation.  This makes perfect sense to the ordinary citizen.  A corporation shouldn’t be able to purchase a 10-acre tract, sink a well, then draw down the ground and surface waters within a radius of 10 miles.  A corporation shouldn’t be able to lease 800 acres, then divert water beyond the boundaries of the leasehold, thereby permanently removing water from the impacted watershed.  A city of a million people shouldn’t be able to buy 10 acres, then dehydrate a sparsely populated agricultural township without just compensation to the farmers or riparian owners whose lakes and streams are impacted.

III.               IT IS MISLEADING TO ASSERT THAT THERE IS MICHIGAN PRECEDENT FOR ABANDONING MICHIGAN’S COMMON LAW DISTINCTIONS BETWEEN RIPARIANS AND GROUNDWATER EXTRACTORS, OR OFF-TRACT AND ON-TRACT WATER USES.

Both the Conservation Organizations and Nestle rely heavily on Maerz, supra, in arguing that Michigan has already abandoned the traditional distinction between groundwater law and riparian law, and off-tract and on-tract groundwater uses, as it applies to water consumption.  Both averments are false.

A.        Maerz does not purport to overrule riparian priorities.

It must be emphasized that Maerz is a case resolving a measureable injury (a dry well) cause by a competing groundwater use.  The issue before the Court in Maerz was whether plaintiffs could maintain a cause of action for loss of their well due to the dewatering activities of defendant’s nearby quarry.  Maerz, supra, p 712.  This case has nothing to do with groundwater extractions which diminish an inland lake and stream. When the Maerz Court suggested “that the principles expressed in Restatement Torts, 2d, §858 . . . should be followed in Michigan”, context makes it clear that they were replacing the English rule of groundwater allocation.  Maerz, supra, p 720.   Maerz does not touch upon riparian rights.

B.         Maerz does not preclude a court from giving great weight to the off-tract/on-tract distinction.

When the Maerz Court surveyed case law (from several states) in discussing the “correlative rights rule” and “reasonable use rule”[3], they were analyzing the trend towards ameliorating the English rule of groundwater allocation.  And while Maerz ultimately rejected the Draconian results attendant to strict application of the English rule, that Court did not infer that the on-tract/off-tract distinction was irrelevant to a new “reasonableness under all circumstances” standard.  Noting that “the correlative rights rule” was substantially adopted by the American Law Institute in Restatement of Torts, 2d §858, p 258, the Court quoted the “pertinent part” of the Restatement as follows:

(1) A proprietor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless

(a) the withdrawal of ground water unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure,

(b) the withdrawal of ground water exceeds the proprietor’s reasonable share of the annual supply or total store of ground water. [emphasis supplied] Maerz, supra, pp 714-715; p 715 fn #1.

Clearly, the Restatement’s concept of “proprietor’s reasonable share” is not determined by the global annual supply or global total store of groundwater; it is measured against the annual supply or total store of the groundwater accessible from the proprietor’s wellhead tract.  Simply put, the Restatement recognizes that surface ownership, as well as surface application[4], are factors in determining the extractor’s “reasonable share”, and in defining “annual supply” and “total store” of groundwater 

It is probably fair to blame the English for creating an absolute water use rule based on the on-tract/off-tract dichotomy, the imperatives of which are obsolete in the 21^st Century.  However, it is ridiculous to “throw out the baby with the bathwater” as the Conservation Organizations suggest.  Whether water is applied off-tract or on-tract may (and arguably must) be considered by a court in determining whether that use exceeds the proprietor’s fair share of annual supply or total store of groundwater. This is what the trial court did in the case at bar.  The logic underlying the trial court’s decision should not be obscured by a smokescreen of criticism directed at confusingly labeled “rules”.

C.        Neither Maerz nor Hulbert are precedent for using the Restatement to resolve

riparian vs. groundwater user disputes.

In calling for replacement of the on-track/off-track distinction with an integrated doctrine based partially on a “riparian notion of reasonable use”, the Conservation Organizations state on page 4 of their brief:

Riparian reasonable use doctrine does not create an absolute right to use water, but rather requires the court to look at a variety of factors (including consideration of the interests of the proprietor making the use, of the proprietor harmed by it, and of society as a whole) in determining whether a given water use is “reasonable”. [citing Restatement of Torts 2d §850-857; People v Hulbert, 131 Mich 156; 91 NW 211 (1902)]

 “Riparian reasonable use doctrine?” “Society as a whole?”   Inserting these phrases as though contained in the cited material is grossly misleading.    Maerz, as previously noted, does not involve riparianism.  To repeat:  in determining that earlier case law did not establish absolute off-tract/on-tract rules, the Maerz court observed:

§858 of Restatement of Torts, 2d states that the determination of liability for interference with the use of ground water by another is governed by the principles stated in §§850-857. [emphasis supplied]  Maerz, supra, p720, fn4.

This observation is dicta which may or may not be accurate.  Nevertheless, it is clear that the Maerz Court was limiting its holding to groundwater disputes such as those between the quarry and the well owner.

Hulbert does not adopt a social benefit test --- rather the opposite.  The Hulbert case involved the City of Battle Creek’s assertion that, because it was using a lake for its municipal water supply, it could preclude other riparians from exercising their traditional rights (in this case swimming by the test defendant, but also fishing and watering cattle).  Battle Creek’s theory was that this activity might contaminate the municipal water supply.  Here is the holding in Hulbert:

It is insisted by the people that under the police power it was competent to forbid any act on the part of the upper proprietor that would tend to impair the public health.  It may be conceded that the police power of the state is very broad, but our attention has not been called to any principle of law, or to any case, the practical application of which will enable a village, city, or other municipality, for the purpose of obtaining a water supply to prevent the ordinary and reasonable use of the waters of an inland lake or stream by an upper riparian proprietor, without the exercise of the right of the eminent domain or without compensation.  [emphasis supplied] Hulbert, supra, pp 173, 174.  See, also, Stock v Jefferson Township, 114 Mich 357, 72 NW 132 (1897).

A utilitarian precedent for interfering with riparian rights without just compensation, as suggested by the Conservation Organizations’ brief, simply does not exist in Michigan.  A “Restatement rule of riparian reasonableness”, as quoted by the Conservation Organizations, has not been adopted in Michigan.

The great difference between riparians and non-riparians is not the verbal formula employed to assess the reasonableness of competing uses, but the immutable fact that riparians have a bundle of rights affected by competing uses whereas groundwater users have only one.  The groundwater user has the right to consume groundwater --- period.  A riparian has the right to consume the water, and to swim, sunbathe, fish, water cattle, hunt, trap, take ice, and put out a boat dock in it.  It is disingenuous to pretend that a rule based on measuring quantities can be “shoehorned“ into a rule which overrides those intangible property rights riparians enjoy.  A citizen who buys land on a trout stream has a reasonable expectation that the stream’s natural flow will not be impaired by remote extractions or diversions.  A person who enjoys the variety of life in his littoral has a right to expect that its lifeblood will not be fatally withdrawn by artificial means.  Understood in the context of the case at bar, when the trial judge stated that “groundwater use is of inferior legal standing to riparian rights”, and that “groundwater use is unlawful if it has a measurable and proven negative impact on riparian bodies”, he got it exactly right.

IV.       THE MICHIGAN INLAND LAKES AND STREAMS ACT DOES REQUIRE A PERMIT FOR GROUNDWATER PUMPING THAT WILL DIMINISH AN INLAND LAKE OR STREAM, BUT EVEN GRANTING SUCH A PERMIT DOES NOT PREEMPT RIPARIANS FROM ASKING FOR JUDICIAL PROTECTION OF THEIR RIPARIAN RIGHTS.

            The second portion of the Conservation Organizations’ brief is absolutely compelling until they get to their last sentence, where they “respectfully suggest that the issue be remanded to the DEQ for determination as to whether a permit should be issued for [Nestle’s] withdrawals.”  It seems beyond dispute that some unelected bureaucrat nullified an important part of the Inland Lakes and Streams Act by concocting a nonsensical definition which does not include water withdrawals as an activity which diminishes a lake or stream.  As the Conservation Organizations correctly observe:  “[The definition] effectively writes out the prohibition on diminishing an inland lake or stream [by including only dredging and filling within the definition]” [5]. 

This amicus absolutely agrees.  However, it is a non sequitur to then ask the Court of Appeals to remand the case to the DEQ for determination as to whether a permit should be issued in this matter, as if this would resolve the case.  Nestle should have been required to get a permit for its  groundwater extractions.  But implying that if Nestle acquires a permit, the lower court trial is mooted, is dead wrong.  The Inland Lakes and Streams Act is not preemptive.  It does not preclude riparians, as in the case at bar, from asking for judicial protection of their riparian rights.  MCL 324.30111.   See Stidham v Algonquin Lake Community Association, 133 Mich App 94, 98, 348 NW 2d 46 (1984), holding that issuance of an ILSA permit does not preclude plaintiff’s common law remedies. If a court determines groundwater extractions are violative of riparian rights, an after-acquired permit, not the trial court’s judgment, is moot. [6]

V.                THE NEBRASKA SUPREME COURT CASE CITED AS NESTLE’S SUPPLEMENTAL AUTHORITY HAS NO APPLICATION IN RIPARIAN STATES SUCH AS MICHIGAN.

Nestle has recently submitted, as “supplemental authority”, to this Court, Spear T Ranch, Inc. v Knaub, 269 Neb 177; _____NW2d____, 2005 WL 119804 (January 21, 2005).  Nestle cites the case as an example of a modern court refusing to give either surface water or groundwater interests superiority, and also as acknowledging that Restatement §858 has been adopted as the law in Michigan.  But the narrow holding of Spear T is inapposite to the case at bar, and the fact that Nestle has cited a western water law case to this Court reveals its purpose to destroy Michigan’s traditional riparian doctrine and replace it with a consumption-oriented western approach to water resources.

Spear T is a ranching concern that used the surface water of Pumpkin Creek to irrigate crops and water cattle.  Spear T alleged that defendant’s groundwater irrigation wells were hydrologically connected to the Creek, and that defendant’s groundwater pumping was depriving Spear T of its surface water appropriations.  Spear T sought to enjoin the groundwater pumping on the basis of the western water law doctrine of prior appropriation --- meaning simply “first come, first served”.  Spear T, supra, 181. In other words, because Spear T was first to use Pumpkin Creek water, they averred that the doctrine of prior appropriation gave them rights superior to the “Johnny-come-lately” groundwater pumper. 

The Nebraska Supreme Court held that legislatively created surface water priorities did not apply to groundwater use, even assuming the Creek and the groundwater were hydrologically connected.  Spear T, supra, pp184-185.  Specifically, the Nebraska Supreme Court held:

. . . no statutory or case law authority supports applying surface water appropriations to ground water . . . the prior appropriation rule [advocated by Spear T] would give first-in-time surface water appropriators the right to use whatever water they want to the exclusion of later-in-time ground water users. This could have the effect of shutting down all wells in any area where surface water appropriations are hydrologically connected to ground water.”  Spear T, supra, p185.

Consistent with the law in states west of the Mississippi River, Nebraska stream flows are allocated by priority in time, which priority is constitutionally protected.  See e.g. Nebraska Constitution, Article XV, §6.  Western groundwater, by contrast, is governed by a common law rule of reasonableness, and a regulatory overlay.  Spear T, supra, p183.  This is an essential difference between western water law and riparianism:  riparianism does not recognize chronological priorities, anymore than it elevates consumption/extraction over other riparian property rights.  See Enz, supra, at 684-685, wherein the Supreme Court reversed the Court of Appeals in part because of the lower court’s reliance on western water law cases.  So when Nestle summarizes Spear T as “refusing to give either surface water or groundwater interests superiority”, they conveniently forgot to mention that the “superiority” referred to is chronological.  The core of Spear T holding was that, despite a hydrological connection between the groundwater and the surface water, the Court would not indulge the fiction that they were a continuous stream, entitling the first-in-time user to a constitutional priority. [7]  Thus, the only way in which Spear T can be extrapolated to fit the case at bar is if this Court is willing to erase the fundamental distinction between prior appropriation and riparianism.  Let’s quit shadow-boxing; this is what Nestle wants this Court to do.

Finally, Nestle’s representation that Nebraska now recognizes Michigan as having adopted the Restatement via Maerz is a half-truth.  It is true that Maerz is cited among other cases as adopting the Restatement approach, but this observation is rather uncritically tossed in following the text of subparagraph 1(c) of §258 of the Restatement, which nowhere appears in Maerz.  Spear T, supra, p190.  Maerz is cited again at Spear T p194, following the observation, “Adoption of the Restatement is the modern trend”, in the context of consumptive use cases.  As has already been observed, the Maerz case is limited on its facts to competing, though hydrologically connected, groundwater uses.  Maerz is not precedent controlling the case at bar, any more than Spear T’s modification of the prior appropriation doctrine is precedent for a riparian state like Michigan.  Riparianism has served the “Water Wonderland” well for over 150 years.  There is no case law precedent, no statutory justification, and no rational basis, for this Court to change this doctrine.

CONCLUSION

For more than 150 years, Michigan’s riparian case law has developed an intricate set of conflict resolution rules based on rights emanating from a real estate title.  These real property concepts are admittedly complex, but so are the conflicts they’re designed to resolve. Blurring the distinction between groundwater users and riparian rights ignores an essential, traditional distinction between the two:  riparians have many property rights, and multifaceted expectations based on those rights; groundwater users have only one right. Adopting a tort law fragment in the guise of achieving a “level playing field” serves only to shift the ultimate burden of persuasion from the groundwater extractor [to show that its extractions do not infringe riparian priorities in a lake or stream] to those who have a bought-and-paid-for priority in the watershed based on their real estate title.  This new and unprecedented burden would require riparians to prove not only that the offending extraction had a direct and substantial effect on the surface water, but that it caused “unreasonable harm” --- whatever that means.  Suggesting this radical departure from existing law furthers a hidden agenda:  to get Nestle the remand it desires in the case at bar, although, in this amicus’ opinion, the trial record preponderates so overwhelming against Nestle that no remand is justified, even under this nouveau standard.

            A lot of “ink has been spilled” in this case arguing about what the law is and has been in Michigan.  And considerable frustration has been generated seeking a non-existent shibboleth.  Unable to find one, the Conservation Organizations suggest a “simple uniform test” --- in fact a “Trojan horse” ---  which, if admitted into the law of Michigan, will sound the death knell of riparian rights as our State has traditionally recognized them.  This Court should not be seduced by superficial simplicity into putting non-riparian groundwater users on the same footing as riparians. 

The law is sometimes messy --- particularly so when case results are fact-driven.  Perhaps there is no greater wisdom than that enunciated by Justice Moore in 1902, when wrestling with what reasonable water use meant, he said:

No statement can be made as to what is such reasonable use which will, without variation or qualification, apply to the facts of every case.  Hulbert, supra, p170.

RELIEF REQUESTED

            With all the deference due the findings of the court that heard the evidence, the lower court decision should be affirmed.

                                                                                    McKay & McKay

                                                                                    Attorneys for Anglers of the

AuSable and The Great Lakes Council, Inc. of Fly Fishermen

                                                                                    Lawrence I. McKay III (P24666)