| Greetings!
Here are several important news items that will interest you.
The environment and especially the dunes continue to be threatened by inadequate governmental protection.
Even after the courts restored court oversight of the DEQ, the AG is trying to have the decision reversed. And the court seems so inclined. See the lead article.
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PTD needs your financial support. We are filing a friend of the court brief with the Michigan Supreme Court - described in this newsletter. We are approaching the time for a renewal of the sand dune mining permit at the Nadeau Site. This may well require significant expenses on our part.
Donations can be sent to PTD, P.O. Box 164, Riverside, MI 49084 or made with credit card or PayPal by selecting the Donate button below.
Remember we are a 501(c)3 organization and all donations are tax deductible.
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Attorney General Files for Reconsideration of Anglers Case
February 8, 2011
Last month we reported that newly elected Attorney General Schuette announced his intention to file for reconsideration of the Michigan Supreme Court's decision in the Anglers of the Au Sable v. Michigan Department of Environmental Quality. On January 19, he did so. On February 1, the court heard arguments for reconsideration.
How did this happen so quickly?
Recent elections and gubernatorial appointments have created a court that values deregulation and convenience for businesses above environmental protection. Most who are familiar with the new set of Supreme Court Justices expect the court to rule 4-3 to reverse their December 31 decision that gave any person the right to seek relief in an MEPA claim.
Traditionally, only judges remaining on the bench who heard the original appeal will participate in a rehearing. If this practice is followed, then justices Kelly, Hathaway and Cavanagh (likely to uphold the case) will hear the case with Young and Markman (likely to reverse) and the Anglers should prevail. However, if the new Justices, Mary Beth Kelly and Brian Zahra (both conservative), participate in the reconsideration then Anglers' recent opinion will be in jeopardy.
A reversal of the Kolke Creek case could mean the following:
- Merit Energy would have the legal right to return to the State for easements and a permit to discharge wastewater into the river. This is somewhat unlikely since the oil and gas company has removed the pipeline in question and sought other means of remediation.
- It would overturn the recent ruling stating that conservation groups can protect Michigan's natural resources from permit decisions that would cause environmental harm. This stemmed from the Preserve the Dunes v. Department of Environmental Quality case where the Supreme Court (2006) ruled that citizens could not bring citizen suits against the MDEQ for issuing permits authorizing harm to the air, water and natural resources. Only actual harm to the environment could trigger this Michigan Environmental Protection Act (MEPA) statute according to these two rulings.
- It would also overturn the Court's overruling of the 2007 decision in Michigan Citizens for Water Conservation v. Nestle. In that case, the Court held that a MEPA action could not be brought unless the plaintiff could show that it had access to and use of the resource that was being damaged. This severely limited the public's ability to protect natural resources in this State. The most recent decision by the Court's restores citizens' rights to sue under MEPA to what they were prior to 2007.
- It could unravel another outcome nested in these far reaching set of decisions. That is a reaffirmation of Michigan law that establishes a clear line on discharges to water bodies like the one proposed by Merit. Furthermore, the Court refused to apply the "reasonable use" balancing test that the Nestle court relied on. Instead, the Court noted that an unreasonable use of water has never been deemed an allowable use and held that Merit's discharge is not an allowable use of water because it is manifestly unreasonable.
We believe the decisions rendered in the Anglers case are based upon issues that were thoroughly litigated. There are no sound reasons for a revision or even reconsideration, rather it appears to be no more than partisan politics.
A decision to reconsider will undermine citizens' trust in the courts and their respect for the law. It will be an agenda driven decision made by an activist court. If the court then reverse its prior decision, no citizen would be able to rely on being protected by the law and the court. These are first steps towards anarchy.
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Supreme Court Rejects Appeal
February 7, 2011
The Michigan Supreme Court has turned down an appeal by Benton Harbor residents who opposed the city's move to turn part of its public lakefront into a luxury golf course.
On February 4, 2011, the court issued an order stating that although it had heard arguments in the case in January, it decided not to consider the issues presented.
Jean Klock Park, with its half mile of Lake Michigan frontage, was donated to Benton Harbor in 1917 by John and Carrie Klock as a memorial to their daughter. In 2006 the city agreed to lease 22 acres at the center of the park to developers for 105 years. The city was given contaminated former industrial parcels in trade for the park's lakeside dunes.
The Friends of Jean Klock Park wanted the high court to overrule an appeals court decision that upheld the town's lease of the park for golf purposes.
The Associated Press reported:
- Supreme Court Justice Stephen Markman, who called the deal a "breach of faith" with the Klock family, disagreed with the rest of the court and wanted to hear a full appeal.
- "Although the city prevails today, it, and other communities throughout our state, may well come out losers tomorrow as later generations of philanthropists look at the legacy of J.N. and Carrie Klock and come to question the faithfulness of government in upholding their intentions after they too have passed," Markman said.
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Bluff Erosion Explained and Illustrated
February 4, 2011
I just came across a website of the Geography Department at the University of Wisconsin that does a fantastic job of explaining bluff erosion. It uses 3D visualizations, charts, maps and animation to clearly and thoroughly describe the mechanics and causes of shoreline erosion. There is a tool to determine the loss of bluff based on soil type, current slope and height of bluff.
You will find an extended visit to this website interesting and informative - especially if you own land, develop or build residences, are involved in real estate transactions, participate in planning and zoning, or just want to preserve these sensitive areas in the dunes and bluffs along Lake Michigan. Don't miss it!
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Website Redesigned and Rebuilt
January 20, 2011
The date below each article title, is the date the report was posted on the website. As reported in the last newsletter the PTD website has been redesigned and now carries timely news items of interest.
You can sign up for an RSS feed to display at your home page or as bookmarks in your browser and keep more up to date. Or just visit the website once a week to get the latest.
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"These dunes are to the Midwest what the Grand Canyon is to Arizona . . .
once lost, the loss would be irrevocable." Carl Sandburg
Sincerely,
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