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E-M:/ Judge Rules DEQ Violated Freedom of Information Act

I know many people on this list have had an interest in the new wetlands rules Dave Dempsey posted some time ago.  I also know many people on this list have been frustrated with the difficulty of getting some kinds of documents from DEQ under the Freedom of Information Act.  I think this opinion is relevant to both.  If you would like a copy, contact me and I'd be happy to send you one. 

For Immediate Release - May 4, 2000

Contacts: Barbara Weber, Friends of the Crystal River (850) 231-4535

Chris Bzdok, Olson, Noonan & Bzdok, P.C., (231) 946-0044

Judge Orders DEQ to Turn Over File on New Wetlands Rules

This week a judge in Leelanau County ruled that the Michigan Department of Environmental Quality violated the Freedom of Information Act when it refused to share its file on new wetlands rules with an environmental group. Circuit Court Judge Philip Rodgers, Jr. ordered the DEQ to give the Friends of the Crystal River access to the wetlands documents, and ordered the DEQ to pay the Friends’ attorney fees in bringing the lawsuit. Finally, in what is thought to be a rare occurrence, Judge Rodgers awarded punitive damages against the DEQ because he found that the DEQ had no valid reason for withholding the files.

In the Spring of 1999, the DEQ announced that it was planning to enact new regulations to be used in reviewing permit applications under the state wetlands law. The proposed regulations were issued in response to a review of Michigan’s wetlands program being conducted by the federal government. One of the main goals of the new regulations was to overrule a series of decisions by the DEQ’s own Administrative Law Judges, which were considered harmful to wetlands preservation. The rules were eventually enacted on April 19th of this year.

The Friends of the Crystal River, who are actively involved in wetlands issues and in favor of the new rules, sent the DEQ a Freedom of Information Act request, asking to review the DEQ’s files for background materials on the new rules. The DEQ denied the Friends’ request, stating that it had a strong interest in keeping its deliberations about the new rules secret from the public. Finding themselves shut out, the Friends sued the DEQ under the Freedom of Information Act. On May 1, 2000, Judge Rodgers ruled in favor of the Friends on all counts of the lawsuit. He held that the DEQ did not have a right to keep its deliberations about the wetlands rules secret from the public. The judge then ruled that the most important right at stake in the case was the public’s right to participate in agency decisions about the environment:

This Court further finds that the greater public interest is in the protection and preservation of the State’s wetlands and other water resources. Perhaps as importantly, the public has an interest in understanding how and why the DEQ performs its function. The historically prevalent public antipathy toward the Department of Natural Resources, now in part the DEQ, can only be overcome by open communication between the agency and the public to whom it is ultimately responsible.

Finding in the Friends’ favor, Judge Rodgers ordered the DEQ to turn over the documents within a week. He then awarded attorney fees, estimated to be around $14,000 for the whole lawsuit, and punitive damages of $500, the maximum allowed under the Freedom of Information Act.

Friends of the Crystal River President Barbara Weber said the judge’s ruling is a victory for open government in environmental matters: "We always supported the new rules, and the many DEQ staff members who try to protect wetlands every day. All we wanted was to have the information we needed to participate in the rule-making process. We are very happy that Judge Rodgers gave us that right."

Ms. Weber also acknowledged the assistance of two other environmental groups in winning the case: the Michigan Environmental Council and the Tip of the Mitt Watershed Council. Dave Dempsey of MEC and Scott McEwen of Tip of the Mitt filed affidavits supporting the public’s need to have access to information on environmental decisions made by the DEQ.

The Friends of the Crystal River organized over 14 years ago in response to a proposal by the Homestead Resort to build a golf course and housing development in wetlands along the Crystal River in Glen Arbor, next to the Sleeping Bear Dunes National Lakeshore. Since that time, the Friends have waged a campaign of education, grassroots organizing, and litigation to block the golf course project. The case is now before the Michigan Supreme Court and the Army Corps of Engineers. The Army Corps is expected to make its decision in June of this year, and could prevent the project from going forward. The Friends are represented by the law firm of Olson, Noonan & Bzdok, P.C., in Traverse City.

Chris Bzdok
Olson, Noonan & Bzdok, P.C.
P.O. Box 2358
Traverse City, MI  49685
(231) 946-0044