LEGAL COMPLAINT FILED
On July 2, 1998, Preserve the Dunes (PTD) filed a complaint in Trial Court of Berrien County against the MDEQ and TechniSand. The complaint seeks a declaratory judgement and injunctive relief. PTD alleges that the MDEQ without legal authority amended a permit to expand sand dune mining into a Critical Dune Area at the "Nadeau Site" in Hagar Township, Berrien County, MI.
The 1989 amendments to the sand dune mining statute prohibit sand dune mining in Critical Dune Areas. There are only two exceptions to this otherwise blanket prohibition against mining critical dunes. Both were intended to allow then current operators to continue operations and to avoid a "taking" of the operator's property. PTD asserts that TechniSand was not the operator in 1989 and therefore has no right to mine this Critical Dune Area. PTD further asserts that the law does not allow expanding from a non-critical into a Critical Dune Area.
The complaint asks the court to issue a mandatory injunction against the MDEQ to require the agency to rescind and revoke the permit to the extent that it allows TechniSand to mine critical dunes, and to issue an injunction against TechniSand prohibiting it from mining critical dunes within the Nadeau Site.
Attorneys who have reviewed the complaint are unanimous in their evaluation of our position. We should win!
The central argument of the complaint is printed below. The full text of the complaint is available on the web site.
NEWS BRIEFS
PTD IN 4TH OF JULY PARADE
Hub and Joan Erickson, together with children and grandchildren, entered Preserve the Dunes in the South Haven 4th of July Parade. They passed out 500 membership forms along with 40 pounds of candy. Hub reports that they underestimated by half the forms (and candy) that they needed.
They were met with applause all along the two mile route. Many onlookers expressed shock that the dunes are still being destroyed by strip mining. Visits to the web site have increased dramatically since the parade. A number of persons have returned the response and membership forms.
RECLAMATION OF THUNDER MTN. LAND
In the last issue we reported that nothing less than restoration of the original topography of the buffer, replacement of the topsoil and replanting with native indigenous plant material to match adjacent areas will satisfy the Thunder Mountain Association. The slope of the mined face, which is now 1:1, will have to be reduced to 1:3 (1 foot vertical to 3 feet horizontal).
The good news is that the MDEQ is requiring these remediation efforts. They are also requiring that TechniSand install an irrigation system to ensure that the plantings live. The MDEQ also set an aggressive schedule. TechniSand was to fill, finish grade and plant grass on the slope by June 15. By August 15 they were to have the trees planted.
The bad news is that the MDEQ granted TechniSand's request for more time to reclaim this land and nothing has happened as of July 12. It seems they do not have enough equipment to regrade the slope. On the other hand, it is amazing to see how quickly they can destroy a dune. We will watch how this unfolds with great interest and keep you posted.
LEGISLATOR MEETING POSTPONED AGAIN
It is obvious that the MDEQ does not want to inspect the Nadeau Pit with representatives of PTD present. The promised meeting has yet to be scheduled and Senator Gast has not been able to schedule it. However, Russ Harding, Director of the MDEQ, did visit the site in early June with other MDEQ employees and a representative of the Attorney General's office.
PTD received a letter from Mr. Harding following that visit stating that the cell units had been surveyed and that all issues raised by PTD will be addressed in detail.
PTD immediately responded to Mr. Harding's letter and made specific requests regarding the MDEQ's response.
DREDGING AT NADEAU PIT
We have convinced the Land and Water Management Division (LWMD) of the MDEQ to require a hydrogeological study to ensure that Rogers Creek and the wells of nearby home owners are not adversely effected by the dredging operation.
ASTI, TechniSand's engineering consultants, submitted a proposed work plan to the LWMD. We received a copy under the Freedom of Information Act and had it reviewed by our own engineering consultant. We forwarded a three page letter from Harrington Engineering and Consulting, Inc. to LWMD. In brief, the ASTI proposal was too sketchy and avoided addressing several of the most serious issues. TechniSand is being requested by LWMD to resubmit the work plan. Our efforts are paying off. The turn out at the public hearing, the statements presented and those letters that so many of you wrote are making a difference.
We continue to press the LWMD to stop dredging at the Nadeau Pit until a permit to do so is issued. We could force the dredging to stop if we went to court on the issue - it clearly is illegal to dredge without a permit. However, the decision has been made to concentrate our legal efforts and expense on the broader issues that will protect critical dunes.
PRESS COVERAGE
In June the AP article moved on the national AP wire. We do not know which papers have printed the article. We do know that it appeared in the Business Section of the Birmingham (AL) News-Post Herald and as far away as California. Let us know if you have seen it elsewhere and please send a copy to PTD.
A news story about PTD filing the complaint was distributed over the AP wire July 13. It is appearing in newspapers across Michigan. On July 14, Channel 3 in Kalamazoo covered the story on the evening news with an interview of Gerry Thomas and a video of the Nadeau Pit. This coverage is a very important way of informing the public about the destruction of the dunes and mobilizing public opinion against this wanton destruction.
The text below is excerpted from the complaint. It contains the argument explaining why it was not legal for the MDEQ to issue the permit to mine the critical dunes at the Nadeau Site
"The DEQ was without legal authority to issue an amended mining permit allowing TechniSand to expand existing mining operations from a non-critical dune area of the Nadeau Site to an adjacent critical dune area because the exceptions contained in MCLA 324.63702(1)(b) to the otherwise total prohibition against mining critical dunes do not apply. More specifically:
"A. As a matter of fact, TechniSand had no corporate existence prior to July 5, 1989 and therefore, was not, on or before that date, the "owner" of the property for which the amended mining permit was issued and was not, on or before that date, an "operator" as is defined in MCLA 324.63701(j). Accordingly, TechniSand did not qualify for an exception to the statutory prohibition against mining activities in critical dune areas.
"B. As a matter of law, when TechniSand purchased the Nadeau Site in 1991 from Manley Brothers of Indiana, Inc., it purchased the property subject to all legal restrictions then pertaining to the property. As of the date of TechniSand's purchase of the property critical dune mining in Michigan had been abolished. However, entities such as Manley Brothers, who were operators and who possessed a permit to mine critical dunes prior to July 5, 1989, were granted an exemption to the statutory abolition of critical dune mining pursuant to MCLA 324.36702. Manley Brothers had no right to transfer, assign or sell its entitlement to this statutory exemption (or put another way, its privilege from enforcement of a statutory prohibition), and TechniSand acquired no right to be exempt from the prohibition against critical dune mining upon purchase of the Nadeau Site. Accordingly, the DEQ was without legal authority to grant TechniSand an amended permit allowing it to mine critical dunes.
"C. As a matter of law, the statutory exception to the prohibition against mining in critical dune areas contained in MCLA 324.63702(1)(b) permits only expansion of critical dune mining existing as of July 5, 1989, which was on or before that date, lawfully permitted. It does not permit expansion of sand dune activities from a non-critical dune area to a critical dune area. The DEQ was thus without legal authority to grant TechniSand an amended permit allowing it, for the first time, to extend mining operations at the Nadeau Site into a critical dune area.
"WHEREFORE, the Plaintiff requests that this Court
enter a judgment which declares that the DEQ was without lawful authority
to grant the amended mining permit to TechniSand and which declares that
TechniSand is without lawful entitlement to such a permit."
STATUS REPORT
RESPONSES
Over 450 individuals have responded to the first four newsletters and the world wide web site. We need to hear from even more of you - so we can tell our elected officials and government employees that Preserve the Dunes represents an ever larger number of citizens and property owners who want to preserve the sand dunes of southwest Michigan.
FUND RAISING
Donations have exceeded $28,000 through July 12. Gifts have varied from $5 to $5,000. So far, funds have been spent for paper, printing, postage, reproductions, engineering consulting services, aerial photography, and legal fees.
Now, we are in a phase that requires significant representation by legal counsel, expert witnesses and consultants. This has increased the need for funds. Please help if you can.
VOLUNTEERS
PTD depends on the time and efforts of volunteers. We have no paid staff. The work that is done is the result of a host of volunteers working together to save the dunes. Thank you all for your support!
In this issue we recognize the Board of Directors: Georgia Boerma (VP), Eric Brown, Sr., Charles Davis (Pres.), Hub Erickson, Herman Hoeksema, Bernard Kelley, Don Moore (Treas.), Frank Newman, Nancy Owen, Susan Pritzker, Bob Shaffner, Mary Stephenson (Sec.), and Committee Heads: Bob Swaney (Finance & Fund Raising), Jana Davis & Butch Kelley (Membership), Charles Davis (Newsletter/Publicity); Mary Stephenson (Organization Relationships); Gerry Thomas and Eric Brown (Legal); Hugh Anderson, Don Moore, and Georgia Boerma (Local Government Relations).
INTERIM UPDATES
You can keep up to date by visiting the web site at http://www.daac.com/sosdunes.
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| Nadeau Site, Hagar Township, July 12, 1998. Over 11 years after mining ceased, the MDEQ finally required the site to be replanted with dune grass. No topsoil nor irrigation was required. Planted in late May, no more than 10% of the grass shows any signs of life. Three random samples indicated that only 3%, 7% and 10% of the grass plugs were alive in July. The bare dune in the background of the photo was not replanted. |
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| The Busse Property was hydroseeded this spring. No top soil was spread, as required by the approved Progressive Cell Unit Mining & Reclamation Plan. No irrigation was installed. Perhaps 10% of the grass has survived. The seed blown in from surrounding area have done as well or better. Trees have not been planted. The MDEQ should retain the performance bond until all replanting is complete, but in the past they have failed to do so. |
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| The Nadeau Pit as seen from the Thunder Mountain Heights Association's land on July 12, 1998. The buffer at the edge of the site was mined by mistake. Despite an aggressive reclamation plan ordered by the MDEQ, no grading or planting has been started. A dredge is visible in the background. It continues to operate without a permit, in violation of the law. Reducing the amount of sand removed, reduces the fees that the MDEQ collects. |
