Michigan Supreme Court Rules on Kolke Creek

Court vacates previous decision

Date: April 27, 2011
Anglers of the Au Sable

Traverse City. Yesterday, a new Republican majority of the Michigan Supreme Court, formed by two new justices who were seated in January 2011, vacated a case that was fully decided in late December 2010. The case, Anglers of the Au Sable v MDEQ had restored rights of Michigan citizens to bring lawsuits to protect the environment and water under Michigan’s constitution and the Michigan Environmental Protection Act.

In its comprehensive December 2010 decision, the Supreme Court reversed a Court of Appeals decision that had undermined the rights of riparian landowners and the public in lakes and streams. Said decision also cut off the rights of citizens to bring suit under the Michigan Environmental Protection Act against the state for issuing permits that harm or pollute the environment.

However, in early 2011 newly elected Republican Attorney General Bill Schuette played a political card when he asked the Supreme Court to rehear the case. Schuette reportedly indicated that the newly elected conservative change in the makeup of the Supreme Court could provide a basis to overturn the Court’s December decision. In his motion, Attorney General Schuette’s motion raised no new issues that had not already been decided by the Court. The only change was the seating of newly elected Justice Mary Beth Kelly, who defeated Justice Alton Davis, and newly appointed Justice Brian Zahra, who replaced Justice Maureen Corrigan who left the bench to head the Department of Health Services. Under long-standing custom, newly elected Justices generally have not participated in rehearing for cases that the Court fully argued and decided prior to their taking a seat on the Court. Pursuant to established precedent, the Supreme Court generally denies a motion for a rehearing if the motion is based on a change in the political make up of the Court or they do not present any new significant issues not already fully decided.

Jim Olson, one of the lead attorneys for the Anglers of the Au Sable, the organization who fought and won the decision in December 2010, said, “The December decision should have put a period on a long expensive struggle by citizens to right a wrong and protect our water and environment. There were no new issues, no errors, and no new change in law to justify a rehearing. I guess the whimsy of politics turns sweet justice sour.”

“The decision is a slap in the face to citizens of Michigan who depend upon the plain meaning of our laws that grant them the right to bring actions in our courts to protect our water and environment. It’s another decision for big business, and against citizens, the environment, and our economic recovery which depends on clean water and a pure environment,” said Bruce Pregler, President of the Anglers of Au Sable.

“A political pawn game favored politics over the rights of citizens in Michigan to expose wrongdoing by government and deep pockets,” Janie Simpson, a property owner downstream from the proposed discharge.” Gaylord attorney Susan Topp, who represented Simpson, said, “Rehearing was not warranted. Nothing changed. There were no new issues. No new laws. Just two new justices and our rightful victory was gone in a blink of an eye.”

“On a positive note, the Court’s order does not affect the trial court’s injunction, and the Court also vacated the bad water law and environmental rulings of the court of appeals,” Olson said.

“Kolke Creek and the Au Sable remain protected for now, and we live to fight another day,” Bruce Pregler, the Anglers of the Au Sable’s president said.