Trial Judge Rules Against Citizens Group Posted on August 22, 2013 by mlawd “One thing is certain, this fight isn’t finished yet.” For Immediate Release: Trial Judge Rules Against Citizens Group In Fracking Case Date: 8-19-2013 Contact: Steve Losher; President Michigan Land Air Water Defense; 269-623-3116 stevelosher@aol Barry County Circuit Court Judge Amy L. McDowell ruled against Plaintiff Michigan Land Air Water Defense (MLAWD) in its case against fracking leases on public land in Allegan and Barry Counties, granting a Motion for Summary Disposition filed by the Michigan Department of Natural Resources (MDNR). Because Judge McDowell’s written Opinion demonstrates misunderstanding of key facts as well as applicable law with respect to central issues presented, MLAWD is exploring with counsel precisely what course it will take to address inherent inconsistencies in her ruling. In an initial assessment Attorney James Olson said, “We are reviewing the ruling and weighing our options but we do intend to seek clarification from Judge McDowell because the Opinion lacks any reference to law or facts that were presented in the case under the court rules. So as it now reads, it is not possible to determine precisely what the Opinion means.” Judge McDowell’s Opinion expressly grants Summary Disposition, apparently of the case as a whole, while at the same time states in the body of the Opinion of less than five pages that she is not reaching issues arising from leasing in Allegan County. Therefore, it is unclear whether or not the ruling grants MDNR summary disposition only in part as to those claims arising from Barry County leasing. The Opinion states that MLAWD “admitted” that the MDNR followed “proper procedures” in classifying and leasing the public lands at issue. However, one central component of MLAWD’s claims briefed and argued in Barry County Circuit Court is the conflict between MDNR administrative rules governing oil and gas leasing and the procedures it adopted to carry out the rules. The clear public interest in mounting a challenge to this indefensible disparity is one of the central reasons MLAWD filed suit. Absent from the Opinion is sufficient citation to statutory provisions, rules and caselaw on which the Court based its grant of summary disposition, and contains misapplication of cited law. Relying on Section 1703(1) of the Michigan Environmental Protection Act, the Court based its ruling in part on the conclusion that Plaintiff failed in a requirement to show actual harm. However, this is not the statutory provision on which MLAWD’s claim rests, and, therefore, MLAWD did not bear this burden of proof. Instead, MLAWD’s claim is based on the MDNR’s failure to consider effects on land, air, water and natural resources as well as alternatives before it sold the leases. The Court concluded that when the MDNR classifies leases as “nondevelopment”, no surface disturbance can occur unless it later reclassifies such leases. This conclusion is squarely at odds with uncontroverted deposition testimony of MDNR staff persons presented to the Court. MDNR staff testified that there are three ways to allow surface development on so-called nondevelopment leases, only one of which requires reclassification. The Michigan Department of Environmental Quality can, and does, grant permits approving surface disturbance on nondevelopment leased land upon application by companies, and the companies can simply seek and receive variances for approval of surface disturbance. Moreover, the concept of “nondevelopment” applies only to well pad drilling and production not to other associated infrastructure such as pipelines, gathering lines, roads, water withdrawal wells, and mixing and storage areas Judge McDowell seems to place emphasis in her Opinion on the assumption that the public can utilize appeal procedures from any reclassification from nondevelopment leases to development. However, MDNR staff deposition testimony states that there are no such appeal procedures at all. In the context of Motions for Summary Disposition, if questions of disputed facts are present on this point, it would be improper for a trial judge to grant summary disposition. Posted in Uncategorized | Leave a comment New Yard Signs! Posted on August 15, 2013 by mlawd new yard signs will be $6.00 (at cost) but they are made of corrigated plastic (I know, a petroleum product) so they are very durable! They are also bolder. Lets try to get these up all over the county NOW! Next week the new yard signs can be purchased at these petition signing locations: Thornapple Florist, Above & Beyond Hair Salon, and Hart Animal Hospital – all on M 37 in Middleville and at the Jefferson Gallery in Hastings.
Posted on: Fri, 23 Aug 2013 04:56:22 +0000
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