On December 29, 2010, the Michigan Supreme Court ruled (4-3) in favor of Anglers of the Au Sable in its case against Merit Energy. Michigan Trout Unlimited (MITU) supported the Anglers by filing an amicus brief with the Supreme Court. The Supreme Court's decision is a major victory for conservation because it overruled two prior unfavorable court decisions and restored important legal protections for Michigan’s environment.

The Kolke Creek litigation started when Merit Energy was given authority by the MDEQ to treat contaminated groundwater and discharge large volumes of the wastewater to Kolke Creek - one of the headwaters of the Au Sable River. The Anglers of the Au Sable brought suit against Merit Energy and the MDEQ to block the discharge, and, after trial and a number of appeals, the case was taken up by the Michigan Supreme Court last year.

In its recent decision, the Court overruled Preserve the Dunes v. Department of Environmental Quality. That case, which was decided by the Court in 2004, held that an action under the Michigan Environmental Protection Act (MEPA) could not be used to challenge a permit issued by the DEQ - only harm to the environment. Now, conservation groups can protect Michigan’s natural resources from permit decisions which would facilitate environmental harm.

The Court also overruled the 2007 decision in Michigan Citizens for Water Conservation v. Nestle. In that case, the Court held that a MEPA action could not be brought unless the plaintiff could show that it had access to and use of the resource that was being damaged. The 2007 decision severely limited the public's and MITU’s ability to protect natural resources in this State. This new decision by the Court's restores the public's rights to sue under MEPA to what they were prior to 2007.

The Court also re-affirmed Michigan law that establishes a clear line on discharges to water bodies like the one proposed by Merit, and refused to apply the "reasonable use" balancing test that the Nestle court relied on. Instead, the Court noted that an unreasonable use of water has never been deemed an allowable use and held that Merit's discharge is not an allowable use of water because it is manifestly unreasonable.

MITU was glad to help support the successful conclusion of this case. We are thankful that the Michigan Supreme Court saw fit to correct earlier legal rulings that harmed Michigan’s environmental law. Many members of MITU were involved in numerous ways with the success of this case, and we would like to congratulate and thank them all, and especially our lawyer, Brian Considine of Dawda, Mann, Mulcahy & Sadler, PLC, and our partners, the Anglers of the Au Sable, for their hard work, dedication, perseverance and success in this case.

Sincerely,

Dr. Bryan Burroughs                              David Smith
Executive Director                                   Michigan TU Chair