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Cynthia, Tanya, and Chris,
Thank you for the
clarification. Sorry for my confusion, although, for us on the east side, it is
very important to distinguish yourself from the SOS over
here.
Having been through a
few DEQ administrative hearings, the beginnings of a few failed MEPA suits, and
studied the transcripts/files of several in-depth, it seems that the judicial
system is usually incapable of protecting significant natural resources due to
ignorance, bias, inconsistency, and the reality of nature which usually does not
survive court-imposed timelines, not to mention the influence of politics and
money. There is a tendency for judges to defer to anyone making the case for
non-regulation, with little or no justification. The most egregious contested
case I am familiar with resulted in an ALJ ruling over the heads of several
DNR/DEQ staff through the misapplication of federal hydrology criteria to a
State-regulated wetland, among other things. Also, in this wetland, the Purple
Loosestrife was "stressed", according to 3 consultants, indicating
that the hydrology was on its way out, and the ALJ bought it. If you ever get
the chance, read the transcripts of the "Relleum" case in Fort Gratiot
Township, St. Clair County. It's a classic. File 88-11-0352 (1996). This was a
real eye-opener for me. Up until that decision, having been a wetland consultant
for 7 years, I actually believed that if any wetland was State-regulated, it was
protected. The elimination of this wetland led to the elimination of extensive
regulated wetland across an adjacent site, with the help of the same
consultant.
This from pages 54-55
of "RESULTS OF U.S. ENVIRONMENTAL PROTECTION AGENCY REGION 5 REVIEW OF MICHIGAN
DEPARTMENT OF ENVIRONMENTAL
QUALITY'S SECTION 404 PROGRAM,
NOVEMBER
2002"
"A case in
which the absence of procedural rules defining the issue to be decided and
burdens of
proof resulted in
a particularly egregious decision is In re Relleum, Inc., No. 88-11-0352W
(June
18, 1996). A
contested case hearing was held during 1995 over MDEQ staff’s denial
of a 1992
permit
application. The applicant’s first permit application, submitted to
MDEQ in 1988, also had
been denied. As
part of its first application, the applicant had provided MDEQ an
expert
wetlands
delineation showing 19 acres of wetlands on the property; the presence of
wetlands was
confirmed in 1991
by the applicant’s contractor. But during the contested case
proceedings the
applicant denied
that wetlands were present on the property: between the application date and
the
hearing date, the
applicant had performed extensive land-clearing activities on the
property,
removing surface
vegetation and as much as seven inches of soil. The Proposal for
Decision,
adopted by the
Final Decision without further explication, reveals confusion as to what
legal
standards were to
be applied to the evidentiary issues; and to the extent that it announces
legal
standards, seems
to fail to apply them to the facts of the case. The presiding officer began
by
correctly placing
on the applicant the burden of proving whether wetlands were present at
the
property. He then
stated that because the property had been disturbed the criteria of whether
wetlands
vegetation was present should not be applied (rejecting evidence presented
by MDEQ
that during site
inspections wetlands vegetation was observed despite the severe
disturbance);
instead the soil
characteristics criteria should be examined. MDEQ presented evidence that
the
soils at the
property were wetland-type soils. The applicant presented no evidence on
soil
characteristics,
but instead presented results from three years of piezometer readings
collected at
the property
after the 1992 application had been filed and after the landclearing. In
finding that
wetlands did not
exist at the property, the presiding officer appears to have relied solely
on this
hydrological
evidence, even basing conclusions about the soil characteristics criteria on
the
hydrological
data, and appears to have wholly rejected MDEQ’s evidence. Moreover,
after
finding that
there was insufficient evidence to establish what the soil characteristics
were in one
portion of the
property the presiding officer, rather than ruling that the applicant had
not borne its
burden of proof
on this issue, found that the lack of evidence supported a decision to issue
the
permit. Finally,
without stating any authority for applying this standard, the presiding
officer
determined that
the issue at the contested case hearing should be not whether wetlands
existed at
the time the
permit application was filed, or at the time the application was denied by
MDEQ, but
at the time the
hearing was held. In doing so, the presiding officer rejected not only all
of
MDEQ’s
scientific and technical evidence showing that wetlands existed, but also
disregarded the
applicant’s
own earlier wetland
delineations."
For anyone getting
into a MEPA suit, it is nice that MEPA assigns any citizen of Michigan legal
standing. That is a major obstacle in successfully petitioning for a contested
case (administrative) hearing. But once begun, expect the other side to use the
legal concepts of "laches", "res judicata", and
"collateral estoppel" shamelessly, especially if you did not petition
for a contested case hearing, or did not intervene. You may be OK on the west
side of the state, but over here at least, I feel it is important to highlight
the concept of "de novo" built into the MEPA. The judges over here
think that just because someone has all their permits (even if they don't) that
a MEPA suit is precluded, when, in fact, you should be given the opportunity to
make the case for any level of protection that you can demonstrate is warranted
by a significant natural resource. SWAT found that out in Chesterfield Township,
Macomb County.
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.
I'm sorry -- I should've sent out a
general notice to Enviro-Mich with that information long ago.
The
Muskegon Save Our Shoreline group has been in existence since 1974 and was
originally formed to oppose a steel mill on the shores of Muskegon Lake, in
which effort they were successful. (By the way, Muskegon Save Our Shoreline
is the official legal name of the group, not simply Save Our Shoreline.) We
were very distressed when the other Save Our Shoreline group started using a
similar name, since it was apparent our goals were not at all similar. At
that time I resolved to at least get that message out to Enviro-Mich, but
lately have been waiting to make a general posting on the Nugent Sand
situation. Now that the ALJ's decision is out, I should've done so right
away, but Hamiltreef beat me to it!
-cut- -cut- -cut-
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