Region
Kolke Creek pollution case back in court
State's top court will consider groundwater case
GAYLORD -- Michigan's Supreme Court will take up a groundwater pollution case after a local conservation group appealed a lower court's 2009 ruling.
Lawyers will argue whether the state can be sued for issuing permits for activity that violates environmental laws, as well as whether previous groundwater rulings were wrongly decided.
It's a chance to both argue an Otsego County-based water pollution case and overturn a highly publicized water withdrawal ruling that involved Nestle Waters North America, said Jim Olson, Traverse City attorney for Anglers of the Au Sable, a citizens group that sued in the Otsego matter.
The latter case involves an energy company's plan to clean a contaminated groundwater plume in Otsego County's Hayes Township and pump treated water from state land into Kolke Creek, headwaters of the Au Sable River south of Gaylord.
Last year, the state appeals court upheld the Anglers' injunction request against Merit Energy Company. Merit wanted to remove petrochemicals from groundwater through air-stripping and then pump the wastewater into the stream, a method opponents said would damage the Au Sable River watershed.
But the court also overturned a local judge's decision that a state easement did not grant the company riparian rights at Kolke Creek. The appeals court also dismissed the state Department of Environmental Quality from the suit.
Plaintiffs -- both the Anglers and private landowners -- appealed the reversal of 46th Circuit Court Judge Dennis Murphy's nearly 3-year-old rulings. Merit did not challenge the upheld injunction.
Merit's Lansing-based attorney Charles Barbieri declined to comment.
Olson intends to argue state agencies can be sued for issuing permits for activity that violates environmental laws. He contends the decision to overturn Murphy's easement ruling was based on the Michigan Citizens for Water Conservation v. Nestle case, which he said applies to groundwater and not surface water riparian rights.
"We don't think the state has the authority to use public lands to grant easements to non-riparians to dump wastewater into the lakes and streams of Michigan," Olson said.
The state's top court will allow Olson a chance to prove his positions on both the Kolke Creek and Nestle cases.
Olson represented a conservation group that challenged Nestle's water bottling operation. In 2007, the Michigan Supreme Court ruled in a 4-3 opinion that plaintiffs did not have standing to challenge the company under the Michigan Environmental Protection Act to protect waters they neither owned nor used.
Gaylord attorney Susan Topp, who represents the private landowners in the Kolke Creek case, was pleased the court agreed to hear the case.
Legal briefs will be filed in March and again in May before justices set a date for oral arguments.
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