Of Judges and Rivers

Pigeon River

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.  

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