by Drew YoungeDyke

One of the biggest challenges facing the Great Lakes is the damage caused by invasive species, many of which arrived in the Great Lakes by stowing away in the ballast tanks of oceangoing vessels. 

In 2005, Michigan took the lead on protecting the Great Lakes by passing a Ballast Water Statute that requires oceangoing vessels to either refrain from dumping ballast water in the lakes or to use environmentally sound treatment measures. A new bill, though, would insert a loophole in the Ballast Water Statute that could allow new invasive species into the Great Lakes.

After the 2005 Ballast Water Statute was passed, the shipping industry immediately challenged it. Two federal courts, however, upheld both its legitimate purpose and its constitutionality. The Sixth Circuit Court of Appeals said:

“To the extent the permit requirement even marginally reduces the problem of [aquatic nuisance species] introduction, its local benefits would be very large. In contrast, the burdens imposed by the permit requirement ... are de minimis.”

The shipping industry, though, has now introduced a bill that would punch a loophole into the Ballast Water Statute big enough for invasive species to swim through. SB 1212 would identify one specific treatment method - deep-sea ballast water exchange - that could satisfy the permit requirements. This is the same method required by the Coast Guard that - because it could still allow invasive species through - prompted Michigan to enact the Ballast Water Statute in the first place. Even the Coast Guard is updating its standards away from this method, though there is debate about whether even its upgraded standards will be strong enough. SB 1212, however, would lock this method in place, essentially repealing Michigan’s Ballast Water Statute.

Invasive species cost the Great Lakes region $200 million a year, according to the National Wildlife Federation. That’s $1 billion every five years, which is only a drop in the bucket, though, compared to the $7 billion Great Lakes fishery and $12.8 billion tourism economy. An estimated 823,000 Michigan jobs depend on the Great Lakes and tourism, and 90,000 jobs depend on the Great Lakes just in the counties which border them. As more of those counties are in Michigan than any other state, Michigan has to be the leader in protecting the Great Lakes from the invasive species which threaten those jobs.

Invasive species prevention is one of the few truly bipartisan issues in Michigan. In fact, the unanimous approval of a bill to create an Invasive Species Council prevented any member of the Legislature from getting a 0% on the Michigan League of Conservation Voters' Michigan Environmental Scorecard. The 2005 Ballast Water Statute also passed the Senate unanimously, and only one representative voted against it. Among those voting for it were two co-sponsors of SB 1212, Senators Tom Casperson and Joe Hune, who were representatives at the time. Given their support for the 2005 law and the Invasive Species Council, its perplexing why they would flip-flop their positions now and co-sponsor a bill that would effectively repeal the Ballast Water Statute which they helped enact.

So, we must ask, who would benefit from weakening ballast water requirements from oceangoing vessels? Obviously, that would be oceangoing vessels which would no longer have to refrain from discharging ballast water. However, according to DEQ statistics, less than 1% of port operations in Michigan are from oceangoing vessels. This means that we would be risking a $7 billion fishery, a $12.8 billion dollar economy, and tens - if not hundreds - of thousands of jobs so that less than 1% of ships which dock in Michigan can avoid the inconvenience of not polluting our waters with invasive species.

Michigan has long been a leader in protecting the Great Lakes from invasive species. As The Great Lakes State, it’s up to us to set the bar for other states about what’s expected of them to keep the Great Lakes healthy. How can we ask Chicago to stand up to shipping interests and close the Chicago locks to keep out Asian carp, when we’re caving to them and letting invasive species into the Great Lakes by weakening our ballast requirements? Michigan has too much at stake - too many jobs - to stop being a leader now.

The Attack on Northern Michigan Public Land
by Drew YoungeDyke

The Michigan legislature has mercifully adjourned for its summer break, though I’m not sure if there’s much more damage left to inflict. As someone who grew up in northern Michigan, this was a tough week to analyze and write about conservation legislation for a living.

Northern Michigan was hit hard by the legislature’s actions this week and, sadly, some of the legislators representing northern districts were the very ones who voted for the legislation. In what may have been the single worst week for anti-conservation legislation coming out of Lansing, the legislature passed bills which capped the amount of public recreation land in northern Michigan, stripped dedicated funding for future public land acquisitions in northern Michigan, and opened the door for the spread of invasive vegetation.

THE LAND CAP BILL

The Land Cap Bill, SB 248, has a saga all its own. Sponsored by Sen. Thomas Casperson (R - Escanaba) and passed last year by the Senate, the House took it up this Spring. The original bill put a statewide cap on public land acquisition, restricting the amount of public recreation land available. What became abundantly clear during a January town hall meeting in Alpena was that the bill would primarily benefit only those in a position to purchase large tracts of Upper Peninsula land that would be forced into privatization by the bill. (More direct bills, like HB 4577 & 4579 and SB 1021 & 1022, are addressing the issue of payments in lieu of taxes, which proponents of the Land Cap Bill used as an excuse for its passage). 

Conservation groups including MUCC, Michigan Trout Unlimited and Michigan LCV, whose members sent thousands of messages to the committee, pushed for amendments to the bill which would lessen its negative impacts. One such amendment was passed by the House Committee on Natural Resources, Tourism and Outdoor Recreation to exempt the entire Lower Peninsula from the cap, which was offered by Rep. Wayne Schmidt (R - Traverse City).

The House of Representatives rejected that compromise on Tuesday, though, instead adopting one which specifically included the entire northern Lower Peninsula in the land cap. While language in the bill suggests that the legislature should remove the cap once they approve of a DNR land acquisition plan, there is absolutely nothing in the bill which guarantees this will ever happen.

On Wednesday, hundreds of Michigan LCV members sent messages to their representatives urging them to oppose the Land Cap Bill. However, in one of the closest votes this session, the House passed the bill 58-52 - a loss of just four votes! Disappointingly, four representatives from the northern Lower Peninsula could have made the difference and protected their own districts from the cap. Instead, Reps. Ray Franz (R - Onekama), Greg MacMaster (R - Kewadin), Frank Foster (R - Petoskey) and Philip Potvin (R - Cadillac) all voted to put their own districts under the Land Cap, as did Reps. Matt Huuki (R - Atlantic Mine) and Ed McBroom (R - Vulcan).

Several representatives should be commended for voting to protect public land access in their districts: Reps. Wayne Schmidt (R - Traverse City), Peter Pettalia (R - Alpena), Bruce Rendon (R - Lake City) and Stephen Lindberg (D - Marquette) all opposed the Land Cap Bill, and Reps. Jon Bumstead (R - Newago) and Holly Hughes (R - Montague) crossed party lines to oppose the bill. If you live in one of these representatives’ districts, please thank them for standing up for conservation.

THE NATURAL RESOURCES TRUST FUND

When the annual appropriations bill to allocate funds for Natural Resources Trust Fund projects was introduced in February, we heard rumors that politicians would try to remove projects recommended by the Natural Resources Trust Fund Board. The Trust Fund Board was created to take the politics out of the process by which royalties from the sale of oil and gas on state land are used to purchase and improve public recreation land at state and local levels of government.

Michigan LCV members sent hundreds of messages to members of the appropriations committee and they listened, allocating all $39 million to the recommended projects. An amendment was defeated on the House floor to remove four state land acquisition projects and the bill moved to the Senate. The Senate went on Spring Break, and when they returned they passed the bill unanimously. Before they passed the bill, though, they slipped in an amendment removing $4 million for those four state acquisition projects and ignoring the nonpartisan Trust Fund Board’s recommendations.

Last week, the House rejected the Senate’s changes, and this week the bill went into a conference comprised of three representatives and three senators for resolution: Senators Darwin Booher (R - Evert), Roger Kahn (R - Saginaw Twp.) and Morris Hood (D - Detroit), and Reps. Chuck Moss (R - Birmingham), Eileen Kowall (R - White Lake), andRichard LeBlanc (D - Westland). Of those, only Sen. Booher represents a northern Michigan district. Yesterday, the conference decided to approve funding for two eco-regional acquisition projects in the southeast and southwest Lower Peninsula, and deny funding for eco-regional projects in the northern Lower Peninsula and the Upper Peninsula.

Eco-regional projects allow the Department of Natural Resources (DNR) the flexibility to purchase high-priority lands when they become available. Often they include inholdings within existing state land areas that become available after the April application deadline for the next year’s Trust Fund review process. WIthout the flexibility to purchase these inholdings, the DNR will not receive funding to purchase the properties until 2014, by which time the properties may already be off the market. This means that no additional public land will be purchased in northern Michigan this year, even if it is high-priority land that would improve outdoor recreation opportunities in the region. Once again, just like in the Land Cap Bill, northern Michigan was specifically targeted for reduced public land access.

The whole state was impacted by the bill, though; after the conference reported its recommendations, the House voted to approve it but the Senate failed to consider it before it adjourned for its summer break, despite reports that the DNR agreed to the compromise only because it didn’t want to delay approval by the legislature. This means that funding for all of the approved local projects, like building pools and parks, will be put on hold at least until the Senate returns briefly in July. This means that almost a hundred projects across the state which could be employing summer workers, drawing tourists, and improving the quality of life for Michiganders, will have to wait, even though the money used for these projects is constitutionally-protected specifically for these kinds of projects!

PHRAGMITES AND BEACH GROOMING

Senate Bill 1052 - also sponsored by Sen. Casperson - was moved out of committee on Tuesday and passed on Thursday to remove state oversight of beach grooming between the ordinary high-water mark and waters edge on shorelines. While this area is not always public land, it is part of the public trust on Great Lakes shorelines. Amendments have improved this bill since its original version, which would have restricted public access to walk Great Lakes shorelines and damaged shoreline wetlands.

However, the bill that was passed still allows for removal of shoreline vegetation without a permit, which has important consequences for aquatic invasive vegetation like phragmites. Phragmites are an aquatic invasive plant that can spread when they’re improperly removed. While removal may seem like the obvious solution, it can actually make the problem worse if done improperly or at the wrong time. Saginaw Bay residents who are pushing this bill cite the spread of phragmites as the reason why the bill is needed; they want to be able to remove them without a permit.

By allowing statewide removal without a permit, though, the bill could subject northern Michigan bays like the Grand Traverse and Little Traverse to the same problems that Saginaw Bay is facing due to well-intentioned but potentially misinformed property owners. The purpose of the permit is not to prevent property owners from maintaining their beaches; it’s just to make sure they do so in a way that doesn’t harm neighboring property or the public trust in Great Lakes shorelines.

A late amendment to the bill requires the newly-created Invasive Species Council to consider recommendations for the removal of phragmites, but without a permitting process it will be difficult to enforce the council's recommendations. 

WHAT’S NEXT

After passing these bills, the legislature adjourned for summer break. The legislators will return to their districts to meet with residents and some will ask for your votes. They’ll have to explain to you how they represented you and why. When you're fishing, hiking, and camping this weekend, think about what public land means to you. Then ask your legislators, when you see them this summer, where they stood when it came to protecting public land access in Michigan. If you live north of Clare, ask your legislators why they restricted your right to enjoy outdoor recreation on public land or thank them for trying to protect it. And when they ask you for your vote in the Fall, ask them how they voted this Spring.

CONTACT YOUR REPRESENTATIVE
CONTACT YOUR SENATOR

Of Judges and Rivers
By Drew YoungeDyke
This article first appeared in Riverwatch, published by the Anglers of the AuSable, and in Michigan Trout, published by the Michigan chapter of Trout Unlimited.

When you were waist-deep in your favorite river on Opening Day, you may have recalled literature you’ve read which described the scene before you. You may have thought of something from Jerry Dennis, Tom McGuane, Jim Harrison, or Ernest Hemingway. Maybe you recalled the following Robert Traver line from the intro to Trout Madness: “For lawyers, like all men, may be divided into two parts: those who fish and those who do not.”

Well, probably not, but Traver was the pen name of Michigan Supreme Court Justice John D. Voelker.  The Michigan League of Conservation Voters actually put that theory to the test this Spring with its newest accountability tool, Green Gavels, which summarized and rated every conservation and environmental decision the Michigan Supreme Court has made in the last thirty years.

Michigan LCV has partnered with faculty and students from the University of Michigan Law School (Voelker’s alma mater) to present Michigan Supreme Court decisions in an easily understood format. Students have researched and summarized cases dating back to 1982, and Michigan LCV applied an analysis to the summaries to help readers quickly understand the impact that the Court can have on Michigan’s natural resources. The results were published online at www.michiganlcv.org/greengavels shortly after the trout opener. 

Anglers know as well as any the role that judicial decisions can play in conservation. It is anglers who see dead fish on the banks after a dam releases sediment, a rainbow-colored sheen after fuel is spilled, or foam gathered against a log after surface runoff drains who-knows-what into the streams we fish. Angler organizations are often the first to challenge a permit which will threaten a river and enforce a permit which will save one. 

The Anglers of the AuSable v. DEQ decision was a defining moment in conservation and Michigan law as to how we protect our rivers from pollution. The case examined whether Merit Energy could clean one watershed by discharging partially-contaminated into another, and whether citizens could sue to block a permit which would allow it. In a 2010 decision authored by Justice Alton Thomas Davis, the Court ruled that citizens could challenge a permit under the Michigan Environmental Protection Act and that discharging contaminated water into the AuSauble watershed was an unreasonable use of water. After the 2010 elections, though - in which Justice Davis lost and a new anti-conservation majority was elected - the Court vacated Justice Davis's opinion in April 2011. 

It has not always been this way, though: in 1979, the Court ruled in favor of the West Michigan Environmental Council, the Pigeon River County Association, Trout Unlimited and other groups to deny permits which would have allowed oil and natural gas drilling in the Pigeon River Country State Forest. It wasn’t until after the legislature threatened to gut the Michigan Environmental Protection Act that drilling was eventually allowed, and the long fight over drilling which preceded the WMEAC v. NRC decision helped to establish the Michigan Natural Resources Trust Fund as a compromise in 1976. In fact, Justice Voelker’s “Testament of a Fisherman,” made it into the court record in that case when read by angler Dave Smethurst. When Voelker found out that his writing made it into the record, he exclaimed, “We got the sons-a-bitches, didn’t we?”

While Green Gavels will not initially cover cases dating back to Voelker’s tenure on the Court, I’m sure that he would have earned a “Green Gavel” or two.  This tool is retrospective, but it will inform conservation-minded citizens on issues about which they care deeply. By going back 30 years, it will survey every conservation decision made by every sitting Michigan Supreme Court justice. Citizens will not only be able to understand the impact the Court can have on conservation, but they’ll also be able to see the impact that each sitting justice has had on conservation. Justices will have individual profile pages which list how they ruled in each case, and a scoreboard which shows all of their ratings together.

So that citizens need not be legal scholars to understand Green Gavels, Michigan LCV will provide ratings and analyses on cases and judicial decisions, as well as a glossary of any legal terms used. Aldo Leopold once wrote, “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.”  While it was tempting to apply that standard to the cases, we recognized that many of them will be decided on legal issues which sometimes have little to do with their ultimate environmental impact. Therefore, we gathered an advisory panel of experienced Michigan attorneys - including a retired Michigan Supreme Court justice - to review our ratings and analyses to ensure that they are fair and objective.

Michigan courts often decide cases with conservation impacts. Few go before the Michigan Supreme Court each year, but those which do have significant impacts. Their decisions impact how all lower courts decide conservation cases, though.
For instance, the Pigeon River Country Association and Trout Unlimited joined in a lawsuit to enforce a consent judgment requiring Golden Lotus’s Song of the Morning Ranch yoga retreat to fully remove a dam which has caused multiple fish kills in its long history, most recently in 2008. Otsego County Circuit Court Judge Dennis Murphy ruled last summer that “remove the dam” means “remove the dam,” but Golden Lotus appealed the decision in hopes that “remove the dam” means “remove part of the dam.” The Court of Appeals denied Golden Lotus’s application to appeal in March. 

In the Upper Peninsula, the National Wildlife Federation, the Keweenaw Bay Indian Community, the Yellow Dog Watershed Preserve, and Save the Wild UP are opposing the Kennecott Eagle Rock sulfide mine because it is being dug directly beneath the headwaters of the Salmon Trout River, the spawning grounds of Lake Superior’s rare coaster brook trout. Conservationists worry that acid drainagefrom the waste rock produced by the mine could leach into the river and that the roof could collapse beneath the headwaters. They are appealing Ingham County Circuit Court Judge Paula Manderfield’s decision to deny their challenge.  Kennecott has already blasted into Eagle Rock, a spiritual Ojibwe site. 

Whether this particular cases make it to the Michigan Supreme Court or not, it is important for Michigan citizens  to know the impact the Court has through cases like these because more will certainly come in the future. In fact, just last week, the Court decided that the DEQ could hold municipalities responsible for preventing raw sewage from flowing into the Great Lakes. 

Unfortunately, many Michigan residents know very little about our Supreme Court.  Green Gavels will bridge that information gap by providing citizens across the state with an objective tool to gauge the impact of sitting Supreme Court justices, and our rivers and streams will be better off for it. 

Drew YoungeDyke is the Policy & Communications Specialist for the Michigan League of Conservation Voters, a lawyer, and an angler.  

Michigan LCV's Green Gavels Rates Michigan Supreme Court on Conservation Cases
by Drew YoungeDyke

ANN ARBOR --- The Michigan League of Conservation Voters (LCV), in cooperation with the Environmental Law and Policy Program at the University of Michigan Law School, has evaluated every Michigan Supreme Court decision over the past 30 years for their impacts on conservation and environmental protection. Following that analysis, Michigan LCV worked with a bipartisan advisory panel to apply ratings - red, green, or yellow gavels - to each relevant case so Michigan citizens can quickly gauge the conservation impact of each case and each justice’s opinion.

It is now available to every Michigander online at www.michiganlcv.org/greengavels.

“Green Gavels pulls back the heavy velvet curtains that have surrounded the Michigan Supreme Court for so long and allows citizens to look objectively at how each decision impacts our land, air, and water,” said Michigan LCV Executive Director Lisa Wozniak.

University of Michigan Law students, under the supervision of Professor David Uhlmann, researched and wrote objective summaries of every relevant case. Professor Uhlmann previously served as chief of the Environmental Crimes Section at the U.S. Department of Justice during the Clinton and Bush administrations.

"Judicial decisions play a significant role in environmental protection by ensuring that our environmental laws are properly implemented. The Green Gavels project will provide greater understanding about the role of the courts in our environmental law system and enable voters to make choices that better reflect their environmental values," said Professor David Uhlmann.

Attorneys on staff at Michigan LCV applied positive, neutral, or negative ratings to each case and to each justice’s rulings. Ratings were then peer-reviewed by the bipartisan advisory panel. The University of Michigan Law School did not participate in the rating process and takes no position regarding support or opposition for any judicial candidates.

Michigan LCV already grades the State Legislature and Governor Snyder through its Legislative Scorecard and “How Green Is Your Governor?” programs, respectively. Green Gavels extends this work to the judicial branch, thereby finally holding each branch of state government accountable, the only conservation organization in the state to do so.

“The Supreme Court’s decisions touch every trout stream, every forest, every park, and every inch of Great Lakes shoreline,” said Tom Baird, a Member of the Board of Directors for the Anglers of the Au Sable and one of the lead attorneys on the landmark Anglers of the Au Sable v. DEQ Supreme Court case in 2010. “Green Gavels is a much-needed project. People need to know the impact that justices have on conservation.”

The Michigan League of Conservation Voters, a 501(C)(4) nonprofit organization, is the leading political voice for protecting Michigan’s environment. Green Gavels can be found on the Michigan LCV website at www.michiganlcv.org/