SPRING 1999 - ISSUE NUMBER 47

Crystal River -- The Struggle Continues

In October 1994 the federal Court of Appeals upheld the Environmental Protection Agency Region V's veto of the State of Michigan's decision to issue a wetlands permit for the Homestead Resort's proposed golf course. This was a major victory for the Friends of the Crystal River for it transferred the authority to issue a wetlands permit to the Army Corps of Engineers pursuant to the Clean Water Act.

Although the permit had been objected to by EPA and transferred to the Corps, the State Natural Resources Commission (NRC), approved issuance of a permit, and the Friends had to file a lawsuit in state court in order to preserve rights under state law. As a backstop against any possibility the Corps might issue a permit, the Friends believed it critical to protect its claims under the state Wetlands Protection Act (WPA) and the Michigan Environmental Protection Act (MEPA). The trial court rejected admission of new evidence not available to the NRC, and ignored legal precedent interpreting the "feasible and prudent alternative" test for issuance of permits under the WPA and MEPA.

The Friends appealed to the Court of Appeals, which in July '96 not only affirmed the trial court, but went on to practically eliminate the "feasible and prudent alternative" test from the WPA. The MEPA and Michigan case law have required an objective showing of "extraordinary circumstances" and "cost prohibitive" reasons to reject an alternative as not feasible and prudent. The Legislature adopted the feasible and prudent alternative test as a standard whether a permit should issue under the WPA. The Federal Clean Water Act also includes the feasible and prudent alternative test. The Court of Appeals rejected the law and went to the dictionary to determine the meaning of feasible and prudent and held it means simply "suitable". Thus, an applicant need only show that an alternative is not suitable to obtain a permit. Moreover, the appeals court applies a subjective test for suitability, that is suitability was determined by the desire or goal of the developer not the objective feasibility, prudence or suitability of another alternative.

The Friends filed application for leave to the Michigan Supreme Court, and a year and a half later the Court unanimously (6-0) issued its March 31, 1998 Order vacating the trial court and court of appeals decisions, thus wiping out the devastating legal prededent that removed the feasible and prudent alternative test from the WPA.

On April 21, 1998 the Michigan Department of Natural Resources filed a motion for reconsideration or clarification which the MI Supreme Court granted and ordered the parties to brief the effect of the federal proceedings on the case. The State wanted its jurisdiction over wetlands reinstated. (Michigan and New Jersey are the only states granted this privilege).

On November 9 in an extremely unusual reversal, the Michigan Supreme Court granted the DNR's motion and vacated its March 31 Order that had vacated the Court of Appeals and trial court decisions. Michigan is now below federal standards in spite of the fact that we are required to meet or exceed them. This is the first time the Court will rule on the WPA since it was enacted in 1980. If we are not successful in overturning this last decision of the Supreme Court, it will be difficult, if not impossible, for the state to refuse any developments in wetlands in Michigan. The Crystal River case is precedent setting for the entire nation.

Briefly summarize the project's history to date: In early November of 1986 the local weekly newspaper of Leelanau County announced that the owner of the Homestead Resort was planning to build a golf course on 270 acres of land on and adjacent to the Crystal River in Glen Arbor Township. The Friends of the Crystal River was organized in June of 1997 as grassroots citizens opposed to the certain destruction of the natural beauty of this fragile riverine wetland. For 11 years we have fought opposition through a township referendum opposed to rezoning the area, extensive research and consultation with experts on the effect of golf courses on wetland ecology, MI Department of Natural Resource and Natural Resources Commission hearings, entensive EPA consultations and trials in state and federal courts, appeals courts and up to our present third hearing before the MI Supreme Court.

In the past three years two attempts have been made, one to swap National Park property for the Crystal River Property and the other a proposal through the Nature Conservancy to purchase and hold the property until legislation could be enacted to include it in the Sleeping Bear Dunes National Lakeshore. The former died in controversy and the latter excellent proposal is currently bogged down and seems unlikely to materialize.

Friends of the Crystal River Return to Court
MEC Steps in as Amicus

The long and tortured route to protect the Crystal River from a major golf course development took another twist in the courts last November. On the 9th of that month, the Michigan Supreme Court vacated a decision made the previous March and, in effect, wiped out a significant victory and the possible end to all litigation in this nearly twelve year old case. The resolute Friends of the Crystal River find themselves back in court and, in their support, MEC and Tip of the Mitt Watershed Council have filed an amicus brief. The East Michigan Environmental Action Council, Detroit Audubon Society, League of Women Voters of Michigan, Michigan Land Use Institute, West Michigan Environmental Action Council, Michigan Natural Areas Council, Public Interest Research Group in Michigan, and the Michigan Environmental Protection Foundation have also signed on to the MEC/Tip of the Mitt brief.

The case began when the Environmental Protection Agency objected to a (then) Department of Natural Resources' decision to issue a permit allowing golf course construction, thereby transferring the permit authority to the Army Corps of Engineers. (Michigan administers the federal wetland program under the Clean Water Act through our wetland protection law, but the feds retain oversight.) The DNR, trying to override federal jurisdiction, issued a "state only" permit. The Federal Court of Appeals ultimately upheld the EPA objection-a major victory in the case. But to fully protect their case, the Friends of the Crystal River also filed a lawsuit in state court to protest the state only permit.

That case went all the way to the Michigan Supreme Court. In the lower courts, the trial court ruled against the Friends and rejected admission of damning new evidence, ignored the "feasible and prudent alternative" test (the hallmark of both the state's Wetland Protection and Michigan Environmental Protection Acts), and denied Friends' lawyers discovery and subpoena power. The Court of Appeals upheld the trial court decision but went even further by essentially eliminating the feasible and prudent alternative standard. Instead of the tough definition intended by the legislature and established by case law, the Court turned instead to a dictionary decision, requiring an applicant who wishes to develop a wetland to show only that an alternative site is not suitable.

But last March, the Michigan Supreme Court declared the issue moot given the Federal Court victory upholding the EPA objection. This second victory for Friends of the Crystal River nullified the state's permit approval for the golf course and wiped out the bad precedents set by the lower courts' decisions.

The state DNR (now DEQ), however, filed for reconsideration to settle the jurisdictional dispute, claiming they have a right to issue a state only permit. So in November, the Supreme Court granted reconsideration and vacated their March decision. In doing so, they put all the other issues&emdash;the feasible and prudent alternative test as well as the availability of essential tools of discovery, subpoena power and presentation of critical new evidence in MEPA citizen suits&emdash;back on the table.

Once again, the heart of two essential environmental protection statutes are at serious risk as well as one of the most beautiful streams of the north. MEC, Tip of the Mitt Watershed Council and the other groups named above felt it imperative to support Friends of the Crystal River and defend those statutes with a joint amicus brief.

There is no definite timeline, but arguments on the case could be held in June or September of this year, with a decision three to six months later.

Julie Stoneman
Director of Land Programs
Michigan Environmental Council
119 Pere Marquette Dr., Suite 2A
Lansing, MI 48912
Ph: 517-487-9539, Fax: 517-487-9541
juliemec@voyager.net
www.mienv.org

Chris Anderlik
4 animals
anderlik@traverse.com

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