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Re: E-M:/ ALJ hearings getting messed up



And also, one should not assume that DEQ is always testifying on behalf of resource protection in these contested case (administrative) hearings. Some petitioners are contesting what they perceive as the lack of regulation and adherence to procedure by the DEQ. So, in this sense, not having AG representation on behalf of the DEQ may benefit resource protection, to the extent that a petitioner's case would not survive cross-examination under AG guidance.
 
Assuming that the AG actually decides not to assign representation, one remedy for DEQ might be simply to have their own staff attorney. Another might be to make all agency decisions jointly between field staff and higher-level Division staff that are experienced in administrative hearings, as may now be the case for many decisions. My understanding is that an individual can still act as their own counsel. Based on the few hearings that we've experienced, the higher-level Division staff that acted as the DEQ representative did not rely on AG assistance and they did fine (they can take that as a compliment). I think they are well aware of the statutory issues and hearing procedure and would normally rely little on AG staff.
 
Bill Collins
   
Huron Ecologic, LLC
3335 Crooks Road
Rochester Hills, Michigan 48309 USA
phone & fax: 248-852-4682
e-mail: huronecologic@netzero.net
 
Huron Ecologic provides wetland delineations, wetland permitting, wetland mitigation design & monitoring, tree inventories, botanical & ecological surveys, natural area protection, nature education, and technical training.
-----Original Message-----
From: Jack Lanigan <jlanigan115990MI@comcast.net>
To: enviro-mich <enviro-mich@great-lakes.net>
Date: Monday, October 28, 2002 7:47 PM
Subject: Fw: E-M:/ ALJ hearings getting messed up

-------------------------------------------------------------------------
Enviro-Mich message from Jack Lanigan <jlanigan115990MI@comcast.net>
-------------------------------------------------------------------------

Excuse me if I am missing something ... the Attorney General cannot assign
staff to prevent these DEQ staffers from being offered up for slaughter at
these hearings?  This is a problem I see as being 100% controllable --
assign the appropriate staff for the appropriate legal representation.  If
the "anonymous contributor's" complaint is worth the ink it is written on,
it is more appropriately directed at the Attorney General than at the
Governor.
Jack Lanigan

----- Original Message -----
From: "Alex J. Sagady & Associates" <ajs@sagady.com>
To: <enviro-mich@great-lakes.net>
Sent: Monday, October 28, 2002 2:51 PM
Subject: E-M:/ ALJ hearings getting messed up


> -------------------------------------------------------------------------
> Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>
> -------------------------------------------------------------------------
>
> This was sent by an anonymous contributor describing how
> administrative contested hearings are getting seriously messed up
> in the Engler/Posthumus Michigan DEQ.....
>
> ======================
>
> The balance in contested case hearings has recently tilted sharply in
favor
> of a party petitioning for a hearing on a DEQ permit decision.  These
> hearings are held in front of  an aministrative law judge (ALJ).  Because
> the Attorney General's (AG) office is not adequately staffed, many
> contested case hearings are not assigned legal counsel from the AG.  In
the
> past, the Land and Water Management Division (now glommed together with
> Geological Survey to create a sterile hybrid) would assign one of its own
> staff to act as quasi-legal counsel to question, cross-examine, and object
> to testimony, as best they could, in a hearing.  Apparently, the Bar
> Association objected to non-lawyers acting as counsel (at least that's
what
> we were told by the front office).
>
> Their complaint may be legitimate for legal reasons, but it has left DEQ
> staff severely handicapped in the contested case process.  If no AG lawyer
> is assigned, the person who made a decision on the permit is allowed only
> to read a statement at the hearing; no questioning or cross-examination of
> witnesses or objection to testimony is permitted.  This might be fair if
> the same rules applied to the petitioner, but they do not.  DEQ staff are
> subject to cross-examination and objection from counsel for the
petitioner.
>
> Contested cases of statewide significance are occurring in this one-sided
> system.
> The rulings of ALJs may not set precedent in our legal system, but they
> have huge implications - at least in wetland, inland lakes and streams,
and
> Great Lakes bottomlands issues - as to what the DEQ will permit or
> deny.  The DEQ front office has not, to anyone's knowledge, attempted to
> discuss the issue with the Bar or done anything to ameliorate this
> situation.  Our field staff are going to slaughter in these hearings and
> the result will be hearing decisions that are potentially very damaging to
> the environment.  Let's hope the upcoming election results in a swift and
> thorough house cleaning!
>
>
>
> --------------------------------------------------------------------------
--
> Alex J. Sagady & Associates  http://my.voyager.net/~ajs/sagady.pdf
>
> Environmental Enforcement, Technical Review, Public Policy and
> Communications on Air, Water and Waste/Community Environmental Protection
>
> PO Box 39,  East Lansing, MI  48826-0039
> (517) 332-6971; (517) 332-8987 (fax); ajs@sagady.com
> --------------------------------------------------------------------------
--
> "NO" on Michigan Proposal 4 ---   Say "no" to public money grab by private
> organizations when state faces a $1 billion deficit.
> http://www.protectmiconstitution.com/
>
> NO on Prop 4 Flyer:  http://www.protectmiconstitution.com/PPKCpdf2.pdf
> --------------------------------------------------------------------------
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>
>
>
>
>
>
>
>
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