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E-M:/ MI Supreme Court Takes K&K

>From the Michigan Environmental Council

Michigan Supreme Court Takes Up K&K

This is big, really big.  The Michigan Supreme Court
announced this week that it would take up K&K Construction,
Inc. v. DNR and, in an atypical move, gave a general invite to
any persons or groups interested in the outcome of this
decision to file amicus briefs.

What's at stake in this takings case?  Simply the state's
ability to regulate wetlands and other natural resources
without compensating landowners.  Simply the integrity
of Article 4, Sec. 52 of the Michigan Constitution which
is the environmental mandate to the Michigan legislature
to protect the environment and natural resources.  Simply
the body of law, including the Michigan Environmental
Protection Act, that has flowed from that constitutional

Background:   In 1988, the DNR denied an application
filed by Resorts and Company and others to construct
a restaurant on a 55 acre parcel in Oakland County.  The
DNR's decision was based on the fact that 28 of the
55 acres are protected wetlands under the Wetland Protection
Act (now under the Natural Resources and Environmental
Protection Act).  Shortly thereafter,the developers went to
court, claiming that the DNR's actions constituted a taking
of their property for which they were entitled to just
compensation.  A Circuit Court ruling in favor of the
developers was reaffirmed by the Court of Appeals on June
4, 1996.  The developers were compensated $5 million plus
for the inability to build a restaurant on commercially zoned

The Appeals Court panel applied the categorical take of
the infamous Lucas case, that is the landowners were
deprived of all economically beneficial and productive use
of their property.  We believe this to be a serious error,
the Trial Court never found the complete loss of all
value (the Lucas standard is the complete loss of all
value).  A plaintiff cannot establish a denial of all beneficial
and productive uses unless the plaintiff shows that he or
she has no alternative uses for their property.  No proper
alternative analysis was conducted in this case.

The Appeals Court also dismissed the Michigan Constitution,
MEPA, and the Wetlands Protection Act as "background
principles" of proerpty law and nuisance in determining
what rights a landowner has in their property.  This
basically says that the Constitution and state statutes
democratically enacted to protect natural resources and
the public health, safety, and welfare therein are not
sufficient "background principles" to prevent the State
from having to compensate a landowner when it applies
those statutes.  Simply put, the developers have a right
to fill wetlands and that the Constitution, MEPA and
the wetland protection act are irrelevant to that right.

This is the essence of the extremist, anti-environmental
agenda being played out in this state, therefore the Supreme
Court must overturn the lower courts' decisions.  This
case will set the standard for some years to come and
has serious implications for much more than just environmental
law.  (Even Russ Harding has stated that if this case is upheld,
it would put the DEQ out of business.)  If the Supreme Court
does overturn the case, it will significantly dampen the
chilling effect the Nordhouse Dunes settlement has had
on environmental regulation and enforcement.

The case has attracted national attention with briefs filed in
support of the state's request to appeal to the
Supreme Court by the National Wildlife Federation (with
MUCC) and the National Audubon Society (with the Michigan
and Detroit Audubon groups).  MEC and many its
member groups also filed in support of the state's appeal
and plan to file a full amicus brief by the June 23 deadline.
We fully expect the anti-environmental extremists to also take
advantage of the Supreme Court's invitation to file.

If you want more information or would like to inquire
how you or your organization can participate in this
case, contact Julie Stoneman at the Michigan Environmental
Council by phone:   517-487-9539.

Please note our change of address below, effective Monday,
May 5.

Michigan Environmental Council
119 Pere Marquette Dr., Suite 2A
Lansing, MI  48912
(517) 487-9539* FAX: (517) 487-9541
mec@mienv.org or mienvcouncil@igc.apc.org

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and Conservation Issues and Michigan-based Citizen Action.

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