Tag: Public Trust Doctrine

Environmental law pioneer and champion Jim Olson turns 80

Published on February 25th, 2025 by - Blog Posts

The child who grew up in the natural wonderland of the Traverse City region is now the sage of the environmental community in Michigan. On Wednesday, February 26, FLOW founder Jim Olson, whose legal work transformed both the law and the landscape, turns 80.

It’s a milestone that gives Jim the opportunity to look back, but his thoughts are also on the future. What kind of a world are we leaving to our descendants? What gives us hope?

But let’s start at the beginning. In Jim’s early youth, his father, who had grown up in Boyne City, grew homesick for the north and moved the family from Detroit to the Traverse City area. Jim is grateful for that good luck, as the location shaped his childhood and world view.

“We grew up with hills and woods on one side, and the open waters of the east arm of Grand Traverse Bay on the other,” he says. “And so our childhood play every day, every season, was outside.”

Despite his love for the outdoors, the idea of devoting himself to environmental law did not occur to him upon his graduation from Detroit College of Law. As he points out, there was no real environmental law practice in Michigan, as modern pollution and land use laws were just beginning to take shape.

But while clerking in Lansing for Michigan State Supreme Court Justice Thomas Brennan in 1971, Jim saw a poster for a presentation by the author of the 1970 Michigan Environmental Protection Act (MEPA), Joe Sax, and decided to attend. As he puts it, “a light bulb switched on.”

Jim was “astounded” by the Sax lecture. In it, the University of Michigan law professor explained that the law was designed to enable citizens to protect the environment through the courts. “He created a law that charged the court to recognize claims by citizens to protect the air, water and other natural resources and the public trust in those resources from pollution, impairment and destruction. And you didn’t have to wait for the damage to actually occur. If it was probable, or there was sufficient endangerment, people could bring actions to prevent the harm.”

Jim adds, “It was not like anything I had heard in law school a year earlier. I went away from that meeting so interested – I thought, this is what I want to do. I want to learn everything I can about this.”

And he did. By 1973, Jim and his family moved to Traverse City, where he opened a law practice with his friend Michael Dettmer. Through a stroke of fortune, one of the first major MEPA cases found Jim.

A group of citizens wanted to challenge the proposed construction of an addition to the Holiday Inn at the mouth of the Boardman River on the west arm of Grand Traverse Bay that they said would take from the public waterfront land that the government was obligated to protect. The sale of the land by the Michigan Department of Transportation to the owner of the Holiday Inn violated the state’s obligation to protect the public interest in the shoreline. Jim handled the case for the citizens.

The lawsuit resulted in a landmark recognition by the trial court that MEPA and the public trust doctrine applied to the claim at hand. Although the trial court ultimately ruled against the citizens group, the leverage of the lawsuit helped persuade the hotel’s ownership to reshape the design of the addition so that only half as much of the waterfront was affected.

That case was the prelude to a much bigger controversy over a proposal by Cleveland Cliffs Corporation to build a coal dock on the northern reach of the City of Marquette’s Lake Superior shoreline. The state Department of Natural Resources had leased the lakebed to permit the development to go forward. Julia Tibbits, whom Jim remembers fondly for her wisdom and commitment to principle, led a citizen fight to stop the coal dock. She, Jim and their supporters took on powerful political, corporate and community interests, a story recounted in a book by Tibbits, Let’s Go Around the Island.

After a heated battle, the action against Cleveland Cliffs successfully limited harm from the coal dock while providing public benefits. Cleveland Cliffs agreed to cover the coal to prevent coal dust from entering the lake or leaching after precipitation; turned over the shoreline both on both sides of the dock to the city for public use; and established a fund to pay for the removal of old coal unloading structures close to the downtown lakefront. Today, the Marquette waterfront is considered a jewel.

Jim says the case illustrates an often overlooked impact of the 1970 MEPA. “If MEPA is actually implemented by the courts as written, it will do what it is supposed to do,” he says. “Even if you don’t win, if it’s a substantial case, not just based on emotion, and reasonably based on fact, it opens the door to a situation where people are empowered to play a meaningful role in agencies or in the courts. Because of this framework, not every suit has to go to trial. Because rather than fight, the defendants often look for ways that achieve a better result.”

Not long after the Cleveland Cliffs case came along, organic farmers hired Jim and a colleague, Bill Rastetter, to block the proposed spraying of a toxic chemical on 100,000 acres of farmland across six counties in central lower Michigan, to control a gypsy moth infestation. Such a pesticide application risked contaminating organic farm produce, making it unsalable. In addition, Jim and his clients identified a prudent and feasible alternative to the spraying – biological controls – and MEPA says if there is an alternative to an action that might compromise the environment, it should be pursued.

Jim’s arguments in the case resulted in total victory for his clients. The trial judge issued a scathing ruling, barring the spraying and ordering the state to round up the chemical and get it out of the state.

This MEPA and public trust law work in the early 1970s led to a fellowship at the University of Michigan Law School, where he studied under Joe Sax, the professor that inspired him to pursue environmental studies in 1971. At U of M, Jim obtained a Masters of Law Degree in 1977. As further cases proceeded in the 1970s and 1980s, Jim helped build a nationally significant body of law.

Another major victory came in 2003, when Jim won a trial court ruling, affirmed on appeal, limiting the volume of water that the Nestle Corporation could remove from groundwater near Evart as part of a water bottling operation. As a result, the levels of lakes, streams and wetlands in the vicinity have been maintained and ecological integrity protected. Jim’s work on this case and related issues, and public interest in protecting the waters of the Great Lakes region from private exploitation and diversions, led to the formation of FLOW in 2011.

Jim credits the citizens whose cases he litigated for having the courage to take public stands and persist. He names dozens of such people, from Julia Tibbits in the Cleveland Cliffs case to Terry and Gary Swier in the Nestle case.

Turning 80 is a good time for reflecting on life’s lessons, and Jim did that in a book published in 2024, People of the Dune. The book, which dramatizes the inability of the law to fully recognize the non-material value of sacred lands, has received high ratings and a warm response.

Jim recently said, “Just the other day a reader from a book club in the U.P. said they had read the book and it generated a real discussion. That means a lot. It’s the people reading People of the Dune who get something out of it that is the most satisfying thing about the book.”

After more than 50 years of practicing law, Jim remains cautiously optimistic about the future of the environment as citizens become more aware of the reality that every aspect of their lives and community depend on clean water, air, and the environment.

“If we don’t have a cultural transformation that transcends the current political division in our country that recognizes the importance of nature to our lives – if we don’t begin to make this connection or relationship – then I’m not optimistic at all,” he says.

In the future, many more people will become aware of Jim’s legacy. On Sunday, July 31, 2022, Jim’s colleagues, friends, and family celebrated the dedication of a marker honoring Jim at the Old Mission Lighthouse Park north of Traverse City.

The plaque, bearing the image of a lighthouse and a deep blue background, reads:

James M. Olson
Keeper of the Great Lakes

Just as lighthouse keepers once kept watch over these waters, Jim Olson began watching over the Great Lakes in the early 1970s. As an attorney, advocate, and author, Jim pioneered the use of the Michigan Environmental Protection Act and the Public Trust Doctrine to guard the state’s shorelines and water resources for public use and enjoyment. Your public water rights—for drinking, fishing, swimming, boating, and shoreline walks—are upheld by Jim’s lasting legacy.

Grandparents for Grandchildren and the Great Lakes: The Future is Now

Published on June 4th, 2024 by - Blog Posts, H2Olson, News

By Jim Olson

“With my Grandma I like to walk along the beach and find Petoskey stones. With my Grandpa I like to go in Lake Michigan and body surf the waves,” my 11-year-old granddaughter Ava Bachmann reflected in late August when she stood with me along the shores of West Grand Traverse Bay. We were ruminating together about the bond that grandparents and grandchildren share, and the responsibility that we elders have to leave behind a healthy legacy for our descendants.

“I just hope the waters can stay clean as long as they can possibly be clean,” Ava added. “It’s really fun to be spending time on Lake Michigan with your grandparents.”

Several recent events have prompted me to think about the urgency for those of us who are grandparents—whether by ancestry or the passing years—of wanting to do more for our grandchildren in the next decade. This urgency led to the idea of a new campaign that FLOW will launch that enables grandparents in the Great Lakes region to respond to this urgency to care and act for our grandchildren while we can. While we help out parents and care for our grandchildren day-to-day, what better way to care for them for a lifetime than increasing our awareness, support, and work to protect the integrity of water, communities, health, ecosystem, and quality of life right here in the Great Lakes Basin? “Grandparents for Grandchildren and the Great Lakes” is the name of our new campaign. We intend to form a continuing, engaged network of grandparents who are committed toward doing more to mitigate and improve the lives our grandchildren will experience in 20 to 30 years. To do this, we can form a network to increase our effectiveness by forming a network to work together.

I write “urgency” because I’m feeling a greater urge to care, act, and do what I can for grandchildren who in the coming decades will face tumultuous change—climate, pollution, flooding, droughts, collapsing safety nets of drinking water, health care, infrastructure, and political instability, in the midst of global upheaval and migration. Admittedly, this is made more poignant because of my age, 70-something, and the birth of my seventh grandchild (two more step-grandchildren will soon be added to the family tree). It seems as a grandparent I’m suddenly pressed to pay more attention to grandchildren—future generations—everywhere. To the power of the future in the present intensifies as the years pass. To the threatened if not certain cataclysmic changes to the air, water, land, forests, and life on this planet if people, states, and countries do not take sweeping action. The future is now.

In October 2018, the UN International Panel on Climate Change issued a grave warning about a narrow window for humanity to act to prevent the global temperature from rising more than another 1.5 degrees Celsius. The range of effects will unravel life as we know it if we do nothing; our grandchildren have a chance to experience the planet we know and love—if we do all we can in the next 10 years. Otherwise, the effects will whipsaw as extreme heat, flooding, drought. Here in the Great Lakes region, according to a recent scientific report published by Environmental Law and Policy Center in Chicago, the next decade could bring as much as a 30-percent increase in precipitation—translate that as flooding, infrastructure damage to coastal areas, erosion, property loss, and the loss of tillable land for food, plants and wildlife. If we think water levels and damage to ecosystems, wetlands, shoreline property, and public infrastructure are high this year, “we ain’t seen nothing yet.” And, of course, it’s not just the increase in precipitation. The other extreme, drought and low water levels, are just as real. Two billion people could be without water, portending death, suffering, and mass movements of people from one region to another for water, food, and survival.

 

Grandparents are the solution

I don’t write this blog as another “doom and gloom” threat with no solution. We have one—grandparents everywhere. Most of us grandparents want to do something for our grandchildren; it is human nature. We can all do something. If we do this together, the benefits to our grandchildren will multiply.

In June, this urgency must have been in the back of my mind when I walked by Ed Roth’s hat and t-shirt design store on Front Street in Traverse City before I reached the FLOW office. I noticed a hat with the words “crazy grandpa,” and a rush of emotions about grandchildren and the coming decades screamed, “Buy it.” So, I did.

In August, FLOW filmed a short clip of three of my grandchildren standing with me on the shore of West Grand Traverse Bay. The interview is a prelude to FLOW’s new “Grandparents for Grandchildren and the Great Lakes” campaign. My granddaughter Ava described her passion for swimming, searching for Petoskey stones, kayaking, and fishing, her voice joyful and clear as water. Then her voice turned more serious when she said how uncertain she was about the future of water in her lifetime. The words from a Leonard Cohen poem flashed through my mind: “Oh, and one more thing/ you aren’t going to like/ what comes after America.” And, these triggered lines of Fan-Chih from a collection of Cold Mountain Poems: “A hungry bird will gorge itself to death/like a man who’ll die to get his hands on property/ Money’s the thing that ruins humans/ the wise will keep it at a distance.”

The next day FLOW’s board chair Micheal Vickery sent me an email with a terse note: “What you think about this?” sharing the poem “Questionnaire,” by Wendell Berry — from his book Leavings(Counter Point, 2009). A few days later FLOW’s former chair Mike Dettmer sent me the same email.

How much poison are you willing
to eat for the success of the free
market and global trade? Please name your preferred poisons.

For the sake of goodness, how much

evil are you willing to do? Fill in the following blanks with the names of

your favorite evils and acts of hatred.           

What sacrifices are you prepared
to make for culture and civilization?
Please list the monuments, shrines,
and works of art you would
most willingly destroy.

In the name of patriotism and
the flag, how much of our beloved
land are you willing to desecrate?
List in the following spaces the mountains, rivers, towns, farms
you could most readily do without.

State briefly the ideas, ideals, or hopes, the energy sources, the kinds of security, for which you would kill a child. Name, please, the children

whom you would be willing to kill.

Disturbing. How did we turn life and nature upside down? When did we start sacrificing life, natural spaces, water and health for gods of progress, money, and patriotism? Strange how reason can hide desire and excess, how the mind can slip into sophism—fallacious reasoning that covers up disastrous ends with supposed benefits—to justify our actions or apathy as sacrifice for money, markets, and nationalism.

 

We must sacrifice profit

The answer to Berry’s question is to turn sacrifice right-side up. How can we grandparents sacrifice our grandchildren and the planet with untold suffering in the face of the reality that we have a decade to prevent this suffering? Ironically, the traditional notion that we accumulate wealth to pass on to our children or grandchildren has become sophistry. What good is the accumulation of wealth or materialism in the name of legacy, when that legacy destroys the planet and the lives of our grandchildren? This has become a sophism, a falsehood. The truth is we cannot continue to slide into apathy when it comes to our grandchildren’s future, when it comes to climate change, water, human dignity, and, yes, the Great Lakes.

We are hundreds, thousands, millions of grandparents. The answer for us grandparents to protect and gift our grandchildren with life is to reverse Wendell Berry’s “Questionnaire.” How much world trade and free markets are we willing to sacrifice for our grandchildren’s health? How much land and water are we willing to preserve for their food and thirst? What blanks would you fill in for acts of goodness and love? What energy source, security, financial investment are you willing to sacrifice, give, to prevent flooding, drought, landslides, massive fires, or cause that kills a grandchild?

This is why we at FLOW have decided to announce our new campaign to build and sustain a widespread coalition of Grandparents for Grandchildren and the Great Lakes—a wave of grandparents and businesses whose single mission is to reverse the culturally perverse sacrifices we’ve made in the past. A new culture, one with the deepest roots of all, that chooses to sacrifice, give, and support all those acts of love, care, protection of our grandchildren and the water, hydrosphere, land, liberty, life, and civilization that they inherit. What better stewards, what better way to establish a trust for your grandchildren, a public trust ethic that protects what is essential for the quality of their lives across generations.

It is time for us grandparents to join together, compress time, give, sacrifice, conserve, support the ethical increase in taxes required for rapid actions to reverse or mitigate the harsh realities of climate change and impacts. It is time to become sensitized to the realities of the future our grandchildren face here in the Great Lakes Basin, really, grandchildren and generations everywhere. Stay tuned for the launch of this new campaign for grandparents in the Great Lakes region, grandparents everywhere, who want to do what we can for the Great Lakes, our communities, and future of our grandchildren and future generations. FLOW and I welcome your emails, texts, posts, comments and ideas as we launch Grandparents for Grandchildren and the Great Lakes. The time is now.

Jim Olson is the founder and President of FLOW. He and his wife Judy have seven grandchildren.

 

 

How grandparents can help:

• Join our “Grandparents for Grandchildren and the Great Lakes” campaign and pledge to pass along a healthy Great Lakes to your descendants. Click here to support FLOW’s work.

• Join a Great Lakes Beach Cleanup initiative

• Talk to your grandchildren about water protection, and about issues that affect the health of our Great Lakes and groundwater, such as Line 5, PFAS, and the lack of septic protections.

• Enjoy the Great Lakes with your grandchildren. Swim with them, look for Petoskey stones with them, bodysurf with them, fish with them.

Courtroom Showdown Coming Friday over Line 5 Shutdown

Published on June 4th, 2024 by - Blog Posts, H2Olson, News

Michigan A.G. Dana Nessel’s team to make arguments in historic public trust case to end threat of Great Lakes oil spill

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

Streaming live online this Friday morning, Michigan Attorney General Dana Nessel or members of her staff—attorneys Peter Manning, Bob Reichel, and Dan Bock, steeped in water and natural resources law—will make historic arguments to bring Line 5 in the Straits of Mackinac under the rule of law and lead to its orderly closure. Nessel’s action was taken to protect the public trust of all of Michigan’s citizens, now and in the future, in Attorney General Dana Nessel On Behalf of the People of Michigan v. Enbridge Energy, Limited Partnership, et al., before Ingham County Circuit Court Judge James S. Jamo.

Click here to view FLOW’s amicus brief in the Nessel v. Enbridge case, as well as amici briefs also filed by the Sierra Club and three states in support of Michigan Attorney General’s lawsuit to shut down Enbridge’s Line 5. 

Line 5 in Court: Watch Live on Friday, May 22, at 9 a.m. EST

The public can watch this legal effort by the State of Michigan to shut down Line 5, which is supported FLOW and other organizations standing up for the public trust in our Great Lakes. This case is set for oral argument at 9 a.m. on Friday, May 22. According to the Court, you may watch the hearing by tuning in to the livestream on Judge Jamo’s YouTube Channel.

 

After 6 years of stalling and unfulfilled promises by former Governor Rick Snyder’s administration and former Attorney General Bill Schuette, Michigan voters in 2018 ushered in new leaders—Governor Gretchen Whitmer and Attorney General Dana Nessel, who pledged to end Line 5’s threat to the Straits, where Lake Michigan converges and collides with Lake Huron.

Last June, Attorney General Nessel fulfilled her promise to take swift, strong action to bring an end to the unacceptable, massive, catastrophic risk of damage to the Great Lakes posed by Enbridge’s 67-year-old Line 5 the Straits of Mackinac.

Growing Pile of Evidence against Line 5

The State of Michigan’s legal action comes in response to growing evidence of Line 5’s failed design, anchor strikes, strong currents, sloughing and shored-up pipelines operating beyond their life expectancy, admitted inability to clean up a spill, and a conservative, worst-case scenario rupture from an anchor strike (which actually happened on April 1, 2018, narrowly avoiding a spill) forecast to trigger more than $6 billion of measurable damages. Scientific studies show that a spill would smother several hundred miles of shoreline, affect up to 60 percent of Lake Huron’s surface area and a substantial portion of Lake Michigan, close drinking water and sanitation systems of cities like Mackinac Island, shut down fishing, kill fish and fish habitat, halt shipping, and cause irreparable damage and impairment of public uses, private property, businesses, and the ecological diversity of the upper reaches of two Great Lakes.

enbridges-line-5-under-the-straits-of-mackinac-4f9997139d321d60As the chief legal officer of the people of Michigan, A.G. Nessel filed a lawsuit, not just as an attorney, but as the named Plaintiff for the People of Michigan—she is bringing this action as Attorney General and on behalf of the citizens of Michigan to decommission and shut down Line 5 because of its unlawful breach of the public trust in the Great Lakes, failing design and imminent risks in the Straits of Mackinac.

Historic Public Trust Case the First brought by a Michigan Attorney General for the People in 60 Years

The attorney general’s action is truly historic. Why?

It has been 60 years since an Attorney General of Michigan filed a lawsuit to protect the paramount public trust in the Great Lakes and legal rights of citizens as beneficiaries to enjoy and use our waters for navigation, fishing, boating, drinking water, swimming, historic and biological research, and recreation. That’s right. It’s been 60 years since then Michigan Attorney General, later state Supreme Court Justice, Paul Adams won a landmark victory in 1960 in Obrecht v National Gypsum Co. (361 Mich 399 (1960)), a landmark Michigan Supreme Court case putting a stop to unauthorized industrial encroachment and risk to the public trust and paramount protected uses of our Great Lakes.

Cottage owners and citizens along the shore of Lake Huron filed a lawsuit to stop the encroachment of a large industrial loading dock to reach ships a quarter-mile into Lake Huron. Justice Adams intervened as a party in the case and aligned himself and the People of Michigan with the cottagers and citizens whose use and enjoyment of the trust waters of Lake Huron would be subordinated to the private use of the industrial dock and mining company. After an extensive battle in the lower courts and arguments in the Supreme Court, the Court sided with Justice Adams and the people of Michigan.

Writing for the Court, Justice Black, a lawyer from the shoreline City of Port Huron, foreshadowed the future battles over the Great Lakes:

The last great frontiers of Michigan’s public domain lie submerged between her thousands of miles of shoreline… [T]he courts of these inland coastal states may well brace themselves for a series of new questions having to do with the nature and alienability of sovereign title to such domain and the inevitable collision of riparian rights… with the sovereign responsibility [of the state] as permanent trustee thereof. These cases become a notable forerunner. (Id. 361 Mich at 403)

The defendant National Gypsum Corporation claimed the private riparian right as owner of lake frontage to build a dock into the lake as far as needed to reach deep-draft ships. Justice Adams and his allies argued that the private right was subordinate to the public trust rights of citizens. Reaching back to 100 years of court fights over the St. Clair Flats and Lake Michigan, and relying on the 1892 U.S. Supreme Court Illinois Central case that ruled the Great Lakes were subject to the public trust doctrine, our Michigan Court ruled that a private corporation could not subordinate or alienate the public trust in the Great Lakes:

No part of the beds of the Great Lakes, belonging to Michigan can be alienated or otherwise devoted to private use in the absence of due finding of one of two exceptional reasons for such alienation or devotion to non-public use.

* * *

No one… has the right to construct for private use a permanent deep-water dock or pier on the bottom lands of the Great Lakes… unless and until he has sought and received, from the legislature or its authorized agency, such assent based on the finding as will legally warrant the intended use of such lands. Indeed, and aside from the common law as expounded in Illinois Central, the legislature bids us construe its design and purpose ‘so as to preserve and protect the interests of the general public’ in such submerged lands and as authorizing the sale, lease, exchange or other disposition of such submerged lands when and only when it is ‘determined by the department of conservation that such lands have no substantial public value for hunting, fishing, swimming, pleasure boating or navigation and that the general public interest will not be impaired by such sales, lease or other disposition.’ (Id., at 412-413, citing and adopting Illinois Central R. Co. v. Illinois, 146 U.S. 387, 455-60 (1892)).

The Public Trust Imposes a High, Solemn Duty on the Government

Unlike other natural resource laws, the public trust imposes a high, solemn duty on the government to protect these waters, bottomlands, habitat, shorelines, and paramount public uses from private takeover or impairment (Collins v Gerhardt, 237 Mich 38, 49 (1926). The public trust doctrine imposes on the State as trustee “a high solemn and perpetual trust which it is the duty of the State to forever maintain.”). Justice Black and the Court agreed “with the attorney general that the public title and right is supreme as against National Gypsum’s asserted right of wharfage, and hold that the latter may be exercised by the Company only in accordance with the regulatory assent of the State. No such assent has been given and, for that reason alone, the chancellor erred in decreeing that National Gypsum might proceed with what in law has become, since entry of such decrees, an entry upon and unlawful detention of State property.” (Id., at 413-414)

So, in 2020 once again a collision looms over the right of a corporation to occupy for itself the state-titled trust bottomlands and waters of the Straits of Mackinac, the very heart of the Great Lakes, for its aged dual pipelines to transport crude oil to its private markets. It cannot do so without the assent of the State “in the absence of due findings” that the one or two of the narrow exceptions apply.  In short, public trust law as one would expect does not authorize any deed, occupancy, or alienation of public trust bottomlands and waters except where there are findings that the private use protects and promotes the public trust interests and protected uses—navigation, fishing, boating, drinking water, swimming, and other recreational or ecological purposes—or that these treasured public trust resources have no such public value.

Courtroom Context on May 22

Let’s return to the present, May 2020. Like Paul Adams in 1960, our State Attorney General Dana Nessel and her lawyers Manning, Reichel, and Bock have filed briefs and will argue Friday that the 67-year-old Enbridge Line 5, like National Gypsum’s private industrial dock in 1960, is unlawful under the high, solemn public trust law and duties of government that apply to our Great Lakes.

The facts are undisputed. In 1953, after the legislature delegated authority to grant public utility easements over or under state lands, including our public trust Great Lakes, the Department of Conservation never made any findings that the easement to Enbridge for its dual crude oil pipelines (1) would preserve and protect the public’s public interests and uses, or (2) do not have substantial public value for navigation, fishing, boating, swimming, other accepted public trust uses. Without these findings, Line 5 must be terminated. The only way the Enbridge’s private use can be validated is for the company to apply to the State for findings in 2020 that the known risks of devastating unacceptable harm to the Great Lakes, communities, property owners, businesses and citizens is consistent with and will protect these paramount public trust uses, or that the Straits of Mackinac has no public value for these uses.

A Powerful Mix of Duty, Integrity, Courage on Display

We applaud Attorney General Nessel and her legal staff for their courage to take a stand in fulfillment of their solemn duty to protect and preserve the integrity of the public trust in our bottomlands and waters of or Great Lakes. Yes, this case is about integrity, and it has all the hallmarks to become the next historical milestone in the history and jurisprudence over the great frontier of those lands and waters between our shores.

Court upholds permit denial for private boat basin and channel on Long Lake

Published on April 11th, 2024 by - Blog Posts, Reports & Media Releases

Citizen action and public engagement safeguards Michigan waters

Most everyone familiar with the beauty and majesty of Long Lake regard it as an exceptional example of the stunning natural features that are so abundant in Northwest Lower Michigan. The largest lake in Grand Traverse County and the headwaters of the Platte River, Long Lake harbors five exquisite islands that enhance every lakeshore view and vista.

Recently, the Department of Environment, Great Lakes, and Energy (EGLE) received an application for the construction of a boat storage basin that would significantly impair Long Lake’s ecology, shoreline, and wetlands. The proposed project would entail dredging 292 cubic yards of bottomland materials to create a private entrance channel 88 feet long and 33 feet wide.

The dredged channel would provide connecting access to the inland boat basin, requiring the excavation of more than 3,200 additional cubic yards of material landward of the ordinary high water mark. In addition, the proposed project would include a 40-foot-long by 5-foot-wide boardwalk, supported by helical piers, to be constructed across 200 feet of wetlands.

EGLE denied the permit based on those impacts, as well the determination that the dredging would disturb fish habitat and interfere with littoral currents. The permit applicant, the Carrie C. Barnes Trust, appealed, much to the consternation of neighboring lakefront property owners. EGLE’s administrative law judge (ALJ) affirmed the permit denial in every particular.

When the Barnes Trust appealed the ALJ’s decision to EGLE’s Environmental Permit Review Commission (EPRC), FLOW was asked to weigh in. After reviewing the extensive record, FLOW provided detailed comments on the facts and applicable law. The EPRC unanimously upheld the ALJ’s decision.

But the Carrie C. Barnes Trust wasn’t done. The trust filed yet another appeal to the 13th Circuit Court in Grand Traverse County.

The good news is that on Tuesday, April 9, Judge Charles M. Hamlyn affirmed EGLE’s permit denial.

As a result, a project that would have done significant, permanent harm to Long Lake has been averted. And the citizens who would have been most impacted successfully joined together in concerted action to maintain the health, character, and ecology of Long Lake. FLOW commends their efforts and is proud to have supported them.

FLOW’s Legislative Recommendations for Michigan’s 102nd Legislature

Published on March 7th, 2024 by - Blog Posts, Reports & Media Releases

PDF DOWNLOAD: FLOW Legislative Recommendations for 102nd Legislature

As a non-partisan, nonprofit law and policy center, a key component of our mission is to help Michigan’s elected leaders uphold their duties under Article IV, Section 52 of the state constitution, the Michigan Environmental Protection Act, and the public trust doctrine to protect the waters of the state from pollution, impairment, and destruction. Our policy recommendations are responsive to these legal duties, the best available science, and pragmatism.

To fulfill its legal duties in 2024, the 102nd Legislature should prioritize the enactment of four bills

1. Statewide Septic Code

PROBLEM

Michigan is the only U.S. state without a uniform septic code governing the construction, maintenance, and inspection of septic systems. As a result, roughly 338,000 failing septic systems are polluting ground and surface waters with human fecal microbial waste. Extensive research by Michigan State University sampled 83% of the river systems in the Lower Peninsula and found human fecal contamination in 100% of river system samples. The study also found that the primary source of microbial contamination was substandard, failing, or nonexistent septic systems. In addition to harming our natural resources, this septic contamination poses a serious public health problem to the drinking water of nearly 4 million Michiganders who rely on private wells.

SOLUTION

FLOW is working with a diverse coalition that includes public health agencies, EGLE, septage haulers, SEMCOG, MEC, MML, MAC, and other important organizations to address technical issues that are critical for the successful implementation of a statewide septic code. Strategies to overcoming more than 30 years of legislative gridlock are: (1) establishing a reasonable inspection schedule; (2) ensuring county health departments have sufficient resources to administer inspections; and (3) providing financial assistance to septic system owners who may not be able to afford the cost of repairs or replacements. Michigan’s legislature has the opportunity to accomplish what prior legislatures have been unable or unwilling to do—set legal standards for the reasonable oversight of onsite wastewater treatment systems, as every other state has done. Enacting legislation will help identify failing systems, protect groundwater and drinking water wells, support property values, and reduce contaminated wastewater migrating to our lakes, rivers, and streams.

2. Polluter Accountability

PROBLEM

The Michigan Legislature has enacted a number of polluter entitlement laws that prevent state agencies from adequately protecting water resources. These legislative actions include:

  • Elimination of the “polluter pay” law (1995), which effectively shifts the cost of cleaning up contaminated sites (including state waters) from the entities that caused the pollution to the taxpayers that are harmed by it.
  • Reliance on “institutional controls” (2018), which has allowed polluters to leave more than 3,000 legacy sites and new releases of contamination in state waters subject to use restrictions, rather than clean them up.

As a result of these and other polluter entitlements, Michigan now has 24,000 known contaminated sites, including thousands of known and unknown sources of groundwater and surface water contamination. Almost half of these sites are “orphaned” sites with no known responsible party, resulting in the state being responsible for assessing and remediating these sites without adequate funding.

SOLUTION

Proposed bills would hold polluters accountable for the pollution they create and the ensuing harm that it causes. The Polluter Pay Accountability Act will serve to transform Michigan from the Rust Belt to the Blue Belt, with overwhelming public support and a robust coalition backing it.

3. Stormwater Utilities

PROBLEM

Michigan has already suffered immense financial losses due to flooding, and it’s predicted that damages will only rise with the expected increased frequency and severity of storm events. The consequences of flooding are harsh and include harmful algal blooms and chemical pollution, which in turn can pose serious public health risks and trigger beach closures. According to the Western Kentucky University Stormwater Utility Survey, Michigan has a mere twelve stormwater utilities (SWUs), while Wisconsin boasts over 200; and Minnesota, Ohio, and Indiana each have over 100. It’s crucial that we take action to increase the number of SWUs in Michigan to prevent further damage, ensure the safety of our communities, and build climate resilience.

SOLUTION

Adopting stormwater utilities has emerged as a widely accepted policy approach to tackle this issue. The Clean Water Act mandates municipalities to minimize water pollution from surface runoff. Michigan has so few SWUs in large part because of the 1998 Michigan Supreme Court case, Bolt v. City of Lansing, which held that Lansing’s stormwater service charge was structured as an illegal tax and not a “user fee.” FLOW is collaborating with key stakeholders to develop a Bolt-compliant stormwater management utility act that will protect our environment, economy, and water resources. By passing this type of legislation, we can effectively manage stormwater runoff, mitigate flooding risks and beach closures, build climate-resilient infrastructure, and ensure that we have clean water for our families and future generations.

4. Michigan Public Water Trust Act

PROBLEM

Private corporations presently extract and sell public water for hundreds of millions of dollars in profit each year while paying virtually nothing to the state. Michigan has, in effect, allowed a publicly owned natural resource to be commodified. Consistent with Michigan’s long established jurisprudence, the law should recognize that Michigan waters are a public trust resource. Moreover, with a large and increasing number of Michiganders in both urban and rural communities unable to afford to pay their water bills and facing the prospect of water shutoffs, our laws should provide assistance to these communities.

SOLUTION

In the wake of the Flint lead crisis, the Detroit water shutoffs, and the Nestle 2016 water grab, FLOW authored model legislation to protect water quality, advance water equity, ensure that the waters of the State remain a public resource, and annually provide communities and water utilities with over $250 million in annual funding to address water affordability and infrastructure needs. Modeled after the Michigan Natural Resources Trust Fund, the Michigan Public Water Trust Act holds the waters of Michigan as a public trust, designates our citizens as the beneficiaries, and requires the government to act as the fiduciary and to ensure that public trust is protected from harm, impairment, and appropriation.

Large-Volume Groundwater Withdrawals and the Public Trust

Published on January 4th, 2024 by - Blog Posts

A fish kill in Oregon may seem to have little to do with Michigan waters – but if you look closely there is a close connection in law.

As the result of large-volume groundwater withdrawals like that in Oregon’s Deschutes River, western states have documented the serious impairment of streams, their ecosystems, fish, and the public right to fish. Michigan should also undertake this same type of documentation in order to prevent the loss of our own water resources and important public rights in our lakes and streams.

This kind of robust data collection and information can show the connection between groundwater withdrawals and their causal impact on our public trust resources and protected public uses like fishing, canoeing, and swimming. 

Faced with such factual and scientific clarity, most state courts (Wisconsin, Arizona, California, Hawaii) are readily expanding public trust law to limit groundwater withdrawals that diminish flows and levels and water quality on lakes and streams, and cause harm to fish and fishing or other protected uses.

In Michigan, the Supreme Court in Schenk v City of Ann Arbor recognized over 100 years ago that it was unlawful under the common law of groundwater for a landowner—in that case a city—to withdraw and divert water off-tract if this measurably diminished the flow or level of a creek, stream, pond, or lake, or interfered with others’ riparian uses. 

Michigan’s Constitution, article 4, section 52, declares that our state’s water and natural resources are of paramount public concern and interest. Michigan’s groundwater law and the Great Lakes Compact recognize that groundwater, lakes, and streams are a singular hydrological system. There is no ethical, scientific, or legal reason why the impairment of public trust resources or interference with public rights and uses of our lakes should not be ruled unlawful by our courts in Michigan under the common law public trust doctrine.

EGLE’s denial of permit for Long Lake private private marina upheld

Published on November 21st, 2023 by - Blog Posts

The Environmental Permit Review Commission (EPRC) recently made an important decision affecting inland lakes and the public trust doctrine in Michigan.

In a case involving the proposed construction of a boathouse, boat basin, and dredged entrance channel on the 3-acre lakefront property on Long Lake in Traverse City, the EPRC upheld the Administrative Law Judge (ALJ)’s decision upholding EGLE’s decision to deny the permit application based on credible evidence that the proposed dredging would cause adverse impacts to fisheries and recreational fishing aspects of the public trust, as well as fish and wildlife.

FLOW submitted public comments along with the leading citizen group, Lovers of Long Lake, in support of EGLE’s decision to deny the permit grounded in public trust violations and the applicant’s failure to present feasible and prudent alternatives. (Download our comments (PDF).)

Defending Public Trust Rights to Enjoy Indiana’s Lake Michigan Shoreline

Published on August 24th, 2023 by - Blog Posts

Guest authors: Kim Ferraro and Kacey Cook, attorneys at the Conservation Law Center

In the 2018 Gunderson case, the Indiana Supreme Court held that Indiana’s Lake Michigan beaches are, and always have been, held in trust by the State as public trust resources, with State ownership extending from the natural ordinary high water mark (where the dune grass starts) all the way to the submerged lakebed.

Save the Dunes, Indiana’s oldest environmental organization, represented by the Conservation Law Center, intervened in the Gunderson case to ensure those public trust rights are protected. Since then, we have been fighting together to protect those same public lands so that future generations will be able to enjoy them too.

The latest battle has moved to the regulatory arena, where we are stepping in to make sure that the Hoosier State actually enforces its own public trust laws and regulations.

Presenting unique challenges, Indiana’s Lake Michigan’s shoreline hosts highly industrialized ports and factories alongside sections of pristine dune ecosystems sheltered within the state and national park. The cause of erosion along this stretch of beach. Who is responsible for addressing it has long been a source of conflict and controversy. The Port of Indiana’s interruption of natural sand accumulation has exacerbated erosion along the beaches to its west, a trend made worse by increasingly severe and frequent storms and fluctuations in the Lake’s water levels.

The Town of Ogden Dunes, which sits along this impacted stretch of beach, wants to finish building a massive armor-stone revetment, which, if allowed, would span the Town’s one-mile stretch of beach and effectively frustrate public access and use along the shoreline. Unfortunately, the Indiana DNR issued a permit allowing completion of the stone wall in June of this year.

Phase I of the Ogden Dunes Revetment (July 27, 2023, E. Jason Wambsgans/Chicago Tribune).

Before approving seawalls and revetments like this, DNR is required by state law and regulation to assess the impacts on navigation, the environment, neighboring properties, and coastal dynamics. The DNR is also required to ensure that these hard structures will not violate the public trust, and if they do, that compensatory measures are taken to mitigate those violations. None of that happened with DNR’s approval of the Town’s stone blockade.  

Accordingly, Save the Dunes appealed DNR’s approval for failing to evaluate the serious threats the structure imposes on the public trust and surrounding ecosystems. In fact, the agency could not have evaluated these impacts because it failed to determine the location of the boundary between public trust and private land, otherwise known as the natural ordinary high water mark. 

The National Park Service also opposes the Town’s plans because of the devastating impact on the surrounding Indiana Dunes National Lakeshore. Based on extensive study of the problem, the NPS confirmed that annual beach nourishment is a more sustainable alternative that would protect the lakeshore and its fragile ecosystem. 

Save the Dunes’ appeal of DNR’s decision is vitally important. 

If Indiana’s public trust laws are not translated into sound regulation and effective enforcement, our collective rights to enjoy Lake Michigan, its beaches, and its natural beauty will be reduced to a centuries-old promise made hollow. 

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For more information on the adverse impacts of seawalls, revetments, and other shoreline hardening structures in the Great Lakes and available alternatives, click here (PDF).

For more information on the Conservation Law Center, Save the Dunes, and the Ogden Dunes case, visit: https://conservationlawcenter.org/blog/press-release-save-the-dunes-challenges-state-for-violating-the-public-trust. 

For more information on the Gunderson case and the Indiana Public Trust Doctrine, visit:  https://conservationlawcenter.org/publictrust.

FLOW’s 2021 Annual Report

Published on January 1st, 2022 by - Blog Posts

With Gratitude: Celebrating 10 Years of Keeping Water Public and Protected with You

This past year marked an extraordinary year for FLOW, as we celebrated a decade of keeping our water public and protected. In reflecting upon this past decade, we have much to be grateful for, even in these challenging times.  

First and foremost, we are thankful for you, who have made our work possible year after year. You have understood the urgent need to steward our water as a commons protected from one generation to the next. You have seen the need for us to establish a new healing relationship with water and to apply science and the rule of law as foundational principles for making informed policy decisions that protect human health and the entire water cycle. You stood with us to take on the threats of water privatization and commodification, oil pipelines in our waters, water insecurity, an affordability crisis, chemical contamination, crumbling infrastructure, and much more. 

Because of you, our movement continues to grow, forging potent alliances and partnerships with people, organizations, and governments across the Great Lakes Basin, including indigenous tribes, frontline groups, and business and community leaders. In the next decade, it will take all of us rowing together in the same direction to secure the kind of durable and lasting water policies needed for these globally unique and magnificent Great Lakes.

We give thanks to FLOW founder Jim Olson for his visionary legal thinking, leadership, and passion in founding a nonprofit wholly dedicated and committed to protecting water as a shared commons for all peoples from one generation to the next. His lifelong dedication to clean, safe, affordable, and public water has never faltered. Jim’s work continues to this day. We cannot begin to thank him enough. 

We give thanks to our current and past board members and advisors, who have been tremendously helpful in charting our visionary policy work and establishing our unique public interest voice across the Basin.

FLOW Executive Director Liz Kirkwood

We give thanks to our staff for lending exceptional talent and devotion to Great Lakes protection every day. Our staff brings heart and soul to this challenging and rewarding work, drawing on decades’ worth of law, policy, and communication experience to improve the future of all living creatures and communities in the Great Lakes. And our policy work is richer thanks to a decade of amazing interns, volunteers, visual artists, writers, performers, and filmmakers sharing their gifts.

We give thanks to our partners, allies, and friends who share our core values and goals, working to secure water for all, and who bring diverse and rich perspectives to solving complex issues. 

The next 10 years are critical, with urgent solutions needed to protect water and public health from the climate crisis. We want you to know that your unwavering support and commitment make all the difference. 

Board Chair Renee Huckle Mittelstaedt

We thank you for empowering our work for the last decade and for standing boldly with us in the next 10 years. Our pledge to you remains the same: We are committed to law, science, facts, and truth. We focus on empowerment for the common good and public interest. We speak for the water. We include all persons and succeed together.

Our warmest wishes to you,

Liz Kirkwood and Renee Huckle Mittelstaedt

Please watch this video below of Liz and Renee thanking FLOW supporters and unveiling our 2020-21 Annual Report:

 

Dave Dempsey Reflects: “Public Trust Doctrine is Key That Can Unlock Environmental Doors For Us”

Published on July 19th, 2021 by - Blog Posts, News

“FLOW is responsible for the major success we’ve had so far as a movement in halting the Line 5 pipeline that crosses the Straits of Mackinac,” said FLOW senior policy advisor Dave Dempsey in this testimonial about the impact we’ve had during the past decade.

During 2021, our 10th anniversary year, FLOW supporters and collaborators are sharing reflections on what our work together has meant to them and to the freshwaters of the Great Lakes Basin.

“Without the public trust doctrine that Jim Olson and Liz Kirkwood have been advocating, that pipeline would be set to operate for another 50 years, and I think we’re in a position to shut it down, thanks for FLOW’s work on this. I think of the public trust doctrine as the key that can unlock all the environmental doors for us. It can protect our water, protect our air, protect us from climate change. It’s the secret weapon.”

Watch a video below of Dave Dempsey’s testimonial: