Just Weeks After Ruling in Favor of Anglers ? We Need To Tell Governor Snyder to Not Play Party Politics With Supreme Court

The other shoe has dropped.
Those of us aware of the Kolke Creek ruling by the Michigan Supreme Court and the results of the 2010 Elections saw this coming. We sure did not have to wait long.
The new Attorney General, Bill Schuette, made it clear that the Kolke Creek case needed to be reviewed. By the very next day, January 19th to be exact, the paperwork was submitted to the appropriate sources. Merit Energy LLC and the Michigan Department of Environment, Natural Resources, and Agriculture had asked the Court to reconsider the decision. An amicus brief was also submitted on behalf of the Michigan Manufactures Association.
The parties are headed back to court on February 1st for a hearing on the merits of reconsideration.
How did this happen so quickly?
Recent elections and Gubernatorial appointments have swung the court to a more conservative view. As a result most who are familiar with the new set of Supreme Court Justices see the court now likely to rule 4-3 in favor of the defendants as well as against the recent reconsiderations of water law.
A reversal of the Kolke Creek case might mean the following:

? Merit Energy would have the legal right to return to the State for easements and a permit to discharge wastewater into the river. This is somewhat unlikely since the oil and gas company has removed the pipeline in question and sought other means of remediation.
? It would overturn the recent ruling stating that conservation groups can protect Michigan?s natural resources from permit decisions that would facilitate environmental harm. This stemmed from the Preserve the Dunes v. Department of Environmental Quality case where the Supreme Court (2004) and the Court of Appeals (2006) ruled that citizens could not bring citizen suits against the MDEQ for issuing permits authorizing harm to the air, water and natural resources. Only actual harm to the environment could trigger this Michigan Environmental Protection Act (MEPA) statute according to these two rulings.
? It would also overturn the Court?s overruling of the 2007 decision in Michigan Citizens for Water Conservation v. Nestle. In that case, the Court held that a MEPA action could not be brought unless the plaintiff could show that it had access to and use of the resource that was being damaged. This severely limited the public's ability to protect natural resources in this State. The most recent decision by the Court's restores the public's rights to sue under MEPA to what they were prior to 2007.
? It could unravel another outcome nested in these far reaching set of decisions. That is a reaffirmation of Michigan law that establishes a clear line on discharges to water bodies like the one proposed by Merit. Furthermore, the Court refused to apply the "reasonable use" balancing test that the Nestle court relied on. Instead, the Court noted that an unreasonable use of water has never been deemed an allowable use and held that Merit's discharge is not an allowable use of water because it is manifestly unreasonable. All that could change with a reversal.

Anglers believe the decisions rendered in the Kolke Creek case are based upon issues that were thoroughly litigated. There are no sound reasons for a revision or even reconsideration so soon after such a review. This smacks of nothing more than partisan politics.
Traditionally, only judges remaining on the bench who heard the original appeal will listen to the rehearing. If this tradition is followed then like-minded judges Kelly, Hathaway and Cavanagh (likely to uphold the case) will hear the case with Young and Markman (likely to rehear the matter and dismiss the appeal as moot). If tradition is followed then we should win at rehearing. However, if the new Judges Mary Beth Kelly and Brian Zahra (both conservative) participate in the rehearing then Anglers' recent opinion may be in jeopardy.
The fact of the matter is that there should be no rehearing at all. They should not be playing partisan politics with the Michigan Supreme Court.
We need your help on this. Please call or email Governor Rick Snyder (517-373-3400/Rick.Snyder@michigan.gov) and Attorney General Bill Schuette (517-373-1110/miag@michigan.gov) and tell them that you are disappointed that the Attorney General has moved for rehearing. Tell the Governor and the Attorney General that their actions are not going unnoticed. Overturning the Anglers hard fought victory will diminish the effectiveness of Michigan?s Environmental Protection Act (MEPA), limit an individuals standing to protect water rights and ultimately make it more difficult to protect Michigan Lakes and Rivers. Act Now!

The Anglers website: www.AuSableAnglers.org has links to the Governor's and Attorney General's email with a suggested message, which can be edited as you please and will come from you. Just go to the bottom of the website version of this email and click on the link.

Thank you for your support!!

Bruce Pregler, President
Anglers of the Au Sable