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E-M:/ michigan peat loses



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Enviro-Mich message from Dave Dempsey <davemec@voyager.net>
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Here is news about a major takings case that some may have missed.
Michigan Peat wants either to mine one of the largest peat bogs in
Michigan, or be paid hundreds of millions of dollars for a "taking.

On May 11, the United States District Court for the Eastern District of
Michigan issued an order and opinion granting EPA's and Michigan's motions
to dismiss Michigan Peat v. Regional Administrator of Region V.

The case involved a challenge to actions taken by EPA and the State of
Michigan in connection with Michigan Peat's unsuccessful attempts to obtain
a section 404 permit from the state to continue and expand its peat mining
operations.  The court held  it lacked jurisdiction over the claims against
EPA because EPA had not yet engaged in a final agency action capable of
judicial review.  It also held the Eleventh Amendment bars a suit against
the State because the State has not consented to be sued.

After Michigan Peat applied for a state section 404 permit for its present
and planned operations, EPA objected to the proposed permit.  The state
adopted restrictions on the project which satisfied EPA's objections and
EPA withdrew its objections.  However, instead of accepting the permit
(which, therefore, did not go into effect), Michigan Peat sued the state in
state court claiming a taking.  The state then issued a revised permit
whose substance was more to Michigan Peat's liking but which stated clearly
that it was not a section 404 permit for purposes of the CWA, and EPA
warned Michigan Peat that it would consider enforcement action if Michigan
Peat discharged without a CWA permit. Michigan Peat then sued claiming
collusion in issuance of a "fictional" permit and seeking issuance of a
permit and a bar on enforcement.

 The court held that all EPA had actually done was to exercise its power to
object to a state permit and, accordingly, that there was no subject matter
jurisdiction.  The court noted that an EPA decision to object to a permit
does not constitute a final agency action while a decision not to object is
within the sole discretion of the agency.  Accordingly, neither action may
be subjected to judicial review.  The court distinguished Friends of
Crystal River v. EPA on its facts, noting that a withdrawal of objections
before the deadline for a state action was not the same as a withdrawal of
objections after the statutory deadline and after the permitting authority
had passed to the federal government.

On May 20, 1998, Michigan Peat filed an Emergency Motion for Expedited
Appeal.  
Dave Dempsey
Policy Director
Michigan Environmental Council
119 Pere Marquette, Suite 2A
Lansing, MI 48912
davemec@voyager.net
www.mienv.org

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