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E-M:/ RE: / RE: / Michigan Citizens for Water Conservation Press Release - Victory Once More

Title: Message
Normally I avoid taking the bait on this sort of conversation, but since this case is near and dear to my heart (I work with Jim Olson, lead attorney for MCWC) I feel compelled to respond.  Whether you agree with Judge Root's opinion or not, I think it is wrong to use inflammatory terms like "radical reasoning" when describing the opinion, and to imply that the decision is somehow directly contrary to the doctrine of reasonable use.
Without going into too much detail, the opinion is based on several well recognized principles in Eastern state's water law.  The prohibition of the diversion of riparian waters off-tract or out of the watershed is a well recognized water law principle in Eastern states.  See David A. Getches, Water Law in a Nutshell, p. 30 (3rd Ed., 1997) ("Most jurisdictions consider use outside the watershed of origin to be unreasonable per se. . .").  So too is the idea that one cannot impact riparian rights through pumping water from the ground.  As the Connecticut Supreme Court explained in a case called Collens v. New Canaan Water Co., 155 Conn. 477, 487; 234 A.2d 825 (1967), "Diversion or diminution of the natural flow of a surface stream to the detriment of the riparian owners by the defendant's pumping water from wells supplied by the underground waters which support the visible stream is an interference with the rights of the riparian owners which entitles them to injunctive relief and damages for the injury sustained."
Even the "long history of Michigan law supporting the principle of reasonable use" recognizes the prohibition on pumping ground water in a way that effects the flow of rivers and streams.  A case called Schenk v City of Ann Arbor, 196 Mich 75 (1916), is the case most often cited for the proposition that Michigan adheres to the "reasonable use" doctrine.  That case specifically recognizes that the reasonable use doctrine prohibits "the withdrawal of underground waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence it was taken, if it results therefrom that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water upon his land, or if his wells, springs, or streams are thereby materially diminished in flow."  Following these well established principles of eastern state's water law is anything but "radical reasoning."  (It is also why I disagree with Ken Vermeulen's suggestion, in a subsequent post, that it is a stretch to say that Judge’s decision is grounded on long standing legal principles).
Finally, I think it is a disservice to both the Judge and the legal system to try and paint the decision with rhetoric like "radical" (your word) and "extreme" (Nestle's word).  These terms are better left in cheesy political attack ads than in the description of a judge's 67 page opinion on a case of great magnitude for the entire state.  Judge Root obviously took a great deal of time and care in crafting his opinion (whether you agree with his conclusions or not).  I think one of the unintended consequences of this type of language is that it portrays the Judge as some sort of loose cannon making up the law as he goes along.  This is simply not true about either the opinion or the Judge.

Scott W. Howard
Olson, Bzdok & Howard, P.C.
420 East Front Street
Traverse City, MI 49696
Phone: (231) 946-0044
Fax: (231)946-4807
e-mail: scott@envlaw.com

-----Original Message-----
From: owner-enviro-mich@great-lakes.net [mailto:owner-enviro-mich@great-lakes.net]On Behalf Of Trigger, Grant R.
Sent: Monday, December 15, 2003 8:47 AM
To: Terry Swier; enviro-mich@great-lakes.net
Subject: E-M:/ RE: / Michigan Citizens for Water Conservation Press Release - Victory Once More

I would caution that this may be a short lived opinion - the expected appeals will no doubt consider the radical reasoning this opinion is based on - even the Governor has suggested the appeals court needs to fashion a remedy  - any zero impact standard will be difficult to sustain given the long history of Michigan law supporting the principle of reasonable use.
-----Original Message-----
From: Terry Swier [mailto:tswier@hotmail.com]
Sent: Friday, December 12, 2003 4:27 PM
To: enviro-mich@great-lakes.net
Subject: E-M:/ Michigan Citizens for Water Conservation Press Release - Victory Once More

------------------------------------------------------------------------- Enviro-Mich message from "Terry Swier" -------------------------------------------------------------------------


December 9, 2003



Terry Swier, President Michigan Citizens for Water Conservation


Jim Olson, Attorney for Michigan Citizens for Water Conservation

231-946 0044


Mecosta, Michigan, December 12, 2003 – Judge Lawrence Root heard Nestle’s motion for stay today and ruled in favor of Michigan Citizens for Water Conservation. The Judge heard nothing new to change his opinion and ordered Nestle/Ice Mountain to stop all “spring water” pumping from the Sanctuary Springs by midnight December 16, 2003. Michigan Citizens for Water Conservation and its plaintiffs R. J. and Barbara Doyle and Jeff and Shelly Sapp vs. Nestle Waters North America, Inc. brought the lawsuit to the courts in June 2001. The Judge’s decision is grounded on long standing riparian and groundwater system legal principles that prohibit diversions and sale of water outside of a watershed.


Michigan Citizens for Water Conservation is sorry to hear of the lay-off of 120 workers at the plant. Terry Swier, president of Michigan Citizens for Water Conservation said, “It is really a matter between the company and the employees it hired. The Judge warned Nestle/Ice Mountain twice that it was building and continuing to expand at its own risk and it chose to forge ahead with the building of the plant and the production of bottled spring water. We would hope that the company informed its employees of this risk when they were hired.” The only reason jobs are at issue is because Nestle insists on a marketing goal of labeling its bottles as “spring water”, when most all of the water bottlers in the state do fine with selling water that is not taken at the expense of our lakes and streams. The 175 gallons per minute well at the plant can be used for its bottles jus! t as it is for other containers it sells. “The ‘jobs’ threat is being used to stir emotionalism, when in fact these few jobs are at the unnecessary expense of the state’s streams, lakes, or wetlands and the hundreds of thousands of jobs that depend on the integrity of our waters,” Swier said.


The Judge made his own findings of fact and applied the law in a conservative and proper fashion. Everyone has to uphold this decision as correct; a lot of effort has gone into bringing this case to the courts.



Terry Swier 

Michigan Citizens for Water Conservation

231-972-8856 phone and fax





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