TechniSand given Dredging Permit
The DEQ issued a permit to continue dredging at the Nadeau
Pit. We have been told that the base line against which impairment
is measured is from current conditions forward. Thus, the fact
that the Rogers Creek's base flow has been seriously reduced
and that what had been described as a first class trout stream
when dredging first began no longer has any fish in it cannot
be considered. The falacy of this reasoning is obvious. The mining
company assures the regulators that there will be no adverse
impacts on the stream; but there are; but there won't be anymore;
but there are; but .....
TechniSand Seeks New Dredging Permit
Twenty-three days before their dredging permit for Nadeau
Pit in Covert Township was to expire, TechniSand applied for
a new one. Within three days the MDEQ issued a public notice. This allowed the required
20 days for public comment before the existing permit expired.
Many neighbors were not notified because the application did
not include a complete list of adjacent property owners.
PTD's review of the permit application indicated that there
were numerous omissions and errors in the application. The application
"estimates" that they will dredge 260,000 cubic yards
of sand (350,000 tons or 13,000 truck movements) and enlarge
the lake to 36 acres. PTD is concerned about potential harm to
nearby Rogers Creek, a natural trout stream, the water quality
of the lake when dredging is complete, and the impact on reclaimed
slopes. Protections that were included in the expiring permit
have been ignored.
Our comments
have been communicated to the MDEQ. We also requested a public
hearing, as did Thunder Mountain Heights Land Corporation and
Covert Township. The hearing was held Wednesday, May 19, 2004
at the Covert Township Hall.
No permit had been issued by September 1, however the DEQ
has stated that prior damage to the creek from earlier permits
cannot be taken into consideration now.
Michigan Supreme Court Rules
The Michigan Supreme Court issued its opinion
on August 31, 2004. The court ruled 4-3, along party lines, that
PTD's claim that the permit was illegally issued was filed too
late, and that the Michigan Environmental Protection Act (MEPA)
could not be used to challenge a permit. Unbelievably, they drew
a parallel between a permit that was challenged because it did
not dot all the "i" 's and cross all the "t"
's and our challenge that the permit was issued in direct conflict
with the law. They then justified their ruling on the basis that
businesses would cease to invest in Michigan if a permit could
be questioned after 60 days of being issued. Because they ruled
that we were time barred, the judges did not have to rule on
the legality of the permit. No on/e has ever ruled that the
permit was legally issued, not the trial judge, the Court of
Appeals, nor the Supreme Court.
The three judges in the minority issued a strongly dissenting
opinion that supported the ruling of the Court of Appeals ruling
and our position that the permit was illegally issued and should
be rescinded.
The Court of Appeals will now review the remaining issues
in the case. The most important issue is what standard should
be used to determined if the proposed removal of the dunes in
the critical dune area represents the destruction of natural
resources. Our claim that it does is based in part on the finding
of the Legislature that
"The critical dune areas of this state are a unique,
irreplaceable, and fragile resource that provide significant
recreational, economic, scientific, geological, scenic, botanical,
educational, agricultural, and ecological benefits to the people
of this state and to people from other states and countries who
visit this resource. "
and
"The benefits derived from alteration, industrial,
residential, commercial, agricultural, silvicultural, and the
recreational use of critical dune areas shall occur only when
the protection of the environment and the ecology of the critical
dune areas for the benefit of the present and future generations
is assured."
The order of the Supreme Court has attracted attention of
the press in the state. In an editorial the Detroit Free Press pointed
out that in our case and that of "National Wildlife Federation
v Cleveland Cliffs," the court was preventing citizens from
effecting enforcement of environmental protections.
Subsequent Activities
TechniSand filed a motion with the Court of Appeals to dissolve
the injunction that prohibited mining within the critical dune
area at the Nadeau Site Expansion. PTD filed a brief in opposition.
On September 2, the court of appeals denied TechniSand's motion.
Preserve the Dunes has requested that new briefs be filed
on the remaining issues and that oral arguments be heard since
the initial briefing and oral arguments had focused on the legality
of the permit. We are awaiting a response from the court.
The Michigan Court of Appeals ruled in
favor of Preserve the Dunes, Inc. in its lawsuit against
Michigan Department of Environmental Quality and TechniSand,
Inc.
The ruling prohibits mining of the critical dune areas at
the Nadeau Site in Hagar Township. PTD filed the suit in July
1988. After receiving an unfavorable ruling in Berrien County
Trial Court in December 2001. PTD appealed the ruling. Arguments
were heard in April, 2002 and the court issued its 26
page ruling October 4, 2002. The ruling is "published,"
which means that it can be used by attorneys in other cases as
a basis for interpreting the law. About 1 in 10 decisions are
"published."
For more details see the April newsletter,
the Herald-Palladium article, or the South-Bend Tribune article. See the Herald-Palladium editiorial from October
9 for a discussion of the importance of this ruling.
Court Grants Motion for Temporary
Injunction
The court issued a temporary injunction
stopping all mining activity in the critical dune area of the
Nadeau Site. Unfortunately, TechniSand will be allowed to remove
sand from the site that they had moved to their "plant area"
outside the critical dunes. They will also be able to mine the
parts of the site that are outside the critical dunes. We are
elated and hopeful that this ruling indicates that the court
will rule in our favor and protect these dunes from destruction
just as every other critical dune area is protected by the law.
We still wonder how the DEQ rationalized the granting of a permit
for mining these dunes. Read the press
release for more information.
PTD Renews Motion for Temporary
Injunction
After waiting four months and documenting
that TechniSand has cleared and removed a significant portion
of one of the critical dunes at Nadeau Site, we filed on August
22, 2002 a motion for a temporary injunction to stop further
disturbance of these dunes. Read the brief.
PTD Argues Case in Court of
Appeals
Phil Neal presented the oral arguments
before the Court of Appeals. PTD members who were present all
agreed that our arguments were convincing and those put forward
by the DEQ and TechniSand were clearly "bogus." We
hoped for a ruling in a very short time.
PTD Files Motions with Court
of Appeals
Once Hagar capitulated PTD filed a motion
with the court of appeals for an injunction to stop mining of
the critical dune area of the Nadeau Site until our appeal is
heard and a decision rendered. We cited irrecoverable harm to
the dune area -- they will be removed. In a separate motion we
also asked for an immediate hearing of the case. We await the
court's response.
Hagar Township Folds in Mediation
Hagar Township and TechniSand entered
in to court ordered mediation. In the face of TechniSand's threats
of demanding over $20,000,000 in damages, the township negotiators
were bullied into an agreement -- a bad one at that. See the
January 2002 newsletter (2,400K) for detailed coverage and analysis
of the agreement. Or sign-up at the guest
book and we will mail you a copy.
TechniSand Sues Hagar
TechniSand has sued Hagar Township alleging
that by refusing to change the zoning of the Nadeau Site so that
they can apply for a mining permit the township has "taken"
their property. They are asking the court to award them damages
of $21,000 per day and direct the township to allow the mining.
DEQ extends Nadeau Pit permit.
Despite the protests of citizens (over
85 showed up for the hearing) the DEQ renewed TechniSand's permit
to mine at the Nadeau Pit. Some additional restrictions were
placed on the operation at the request of Preserve the Dunes.
We had hoped for more -- but the DEQ is not willing to strictly
enforce these environmental protection laws under the current
administration. Most disappointing was that the extension was
for five years thus shutting out meaningful review and input
by citizens.
Hearing on Sand Dune Mining
Permit Renewal
The DEQ held a public hearing on TechniSand's
application for renewal of the sand dune mining permit for the
Nadeau Pit in Covert. The hearing was February 26. We were pleased
that State Representative Mary Ann Middaugh (Van Buren County)
attended. In total, over 80 persons attended the hearing. All
who spoke were opposed to renewal of the permit. PTD
comments centered around violations
violations that we believe justify revocation of the permit.
These comments were also submitted in written form are are available
through the link above.
Hearings on Rezoning in Hagar
Township
A public Hearing on TechniSand's application
for a rezoning of the "Nadeau Property" from Residential-Agricultural
to Commercial or Industrial was held January 2. Their
request was denied. They subsequently came back on February 13
with a request to change the zoning to R-2. This would have allowed
lots as small as 1/3 acre. Their request was denied again. TechniSand
is not interested in developing this land. They want to strip
mine it. If the land were to be rezoned, TechniSand will then
be able to apply for a sand mining permit under the Hagar Township
Mineral Removal Ordinance. The Hagar Township Board confirmed
the actions of the Planning Commission. TechniSand's only option
is to try to get the courts to over rule the township.
In March Preserve the Dunes filed its
brief
for the appeal on the lower courts ruling. This brief contains
a clear statement and analysis of the law governing sand dune
mining in critical dune areas. We recommend it for your reading.
Phil Neal (Neal, Gerber & Eisenberg of Chicago) took the
lead in preparing it with assistance from our trial lawyers Tom
Fette (Taglia, Fette, Dumke, Passaro & Kahne of St. Joseph)
and Jeff Haynes (Beier Howlett of Bloomfield Hills).
Judge Rules
On November 30, 2000 five months after he promised and three
weeks after the election, Judge Maloney ruled -- against Preserve
the Dunes. Charles Davis, President of PTD, commented "They
won, we lost. We'll appeal. We will prevail." A press
release (PDF) was issued by PTD on December 1 outlining some
of our concerns regarding this ruling. The judge ruled that no
single dune formation within the critical dune areas was protected,
only the entire assemblage of critical dunes. Following this
logic, only the last critical dune will be protected. In his
ruling he states that this will be the last critical dune area
to be mined. He should have noted that this is the first new
mine in a critical dune area to be mined since the sand dune
mining law was amended to prohibit mining of critical dunes.
A copy of the ruling (24 pages) is available both as a web
page (you will need Netscape 6.0 or Internet Explorer 5.0
to view it) and in Adobe Acrobat format.
TechniSand delays application for permits to mine
the Knauf Property.
The proposed mine was discussed in the August
newsletter and analyzed in depth in our
comments submitted to the DEQ at the hearing. The public
hearing for the permit is reported below.
We expect the mining company to submit a modified application
in a few months. It will respond to information requests from
the DEQ, including the hydrogeology of the area, area of fill
in the wetlands needed to build an access road, and access rights
across the Ross Preserve. PTD will have its engineers, hydrogeologists
and attorneys review their submissions to ensure that they are
complete and correct. More detailed information is available
in the October newsletter.
Dereliction
of Duty -- a number of environmental groups from across
the state, including Preserve the Dunes, issued a joint report
on the failure of the DEQ to protect the environment and natural
resources of Michigan. The report covers sand dune mining; ground
water contamination; refusal to protect Humbug Marsh, the largest
and most significant coastal wetland on the Detroit River; dioxin
contamination near Midland; PCB pollution in the Crotty Street
Channel near the Saginaw River; refusal to regulate concentrated
animal feeding operations; and more.
New Sand Dune Mine Proposed --
A public hearing was held on TechniSand's application for a sand
dune mining permit on August 22, 2000 at the Covert Township
Hall. Over 125 citizens attended. 31 spoke in opposition to the
mine. No one spoke in favor. This site is surrounded on three
sides by Ross Preserve. Besides destroying a beautiful dune area,
it threatens to destroy wetlands both on and off the site. An
overview of the permit and the likely side effects, if the permit
is issued, is presented in the August newsletter.
The DEQ is taking the matter into consideration and has 90 days
in which to make its decision. We are waiting with anticipation
and concern.
TechniSand's Poor Performance Record -- In response
to queries from a number of sources we have posted this listing
of TechniSand's record of violations
and poor reclamation practices in its mines in Covert and
Hagar Townships.
Trial Status -- We are still waiting for the
judge's decision on our suit to prevent the opening of a new
sand dune mine within a Critical Dune Area in Hagar Township.
The final arguments were made May 12 in Berrien County Trial
Court before Judge Maloney on May 12, 2000. On May 3rd each side
submitted its Proposed Findings of Fact and
Conclusions of Law. A summary of the facts presented at the
trial is included in a recent newsletter
or check out the link above to read the legal document.
The trial date for the lawsuit against the DEQ and TechniSand
was March 14-17, 2000, and March 21-22, 2000. This legal action
is being taken to stop a virgin critical dune in Hagar Township
from being stripped mined for sand. The mine is commonly referred
to as the Nadeau Site. A press release/advisory
gave background for the trial.
In response to the Lake
Michigan Federation's publication "Vanishing
Lake Michigan Sand Dunes: Threats from Mining" the Department
of Environmental Quality issued a press released that we think
was misleading. We have responded point by point. An Adobe
Acrobat version of their press release and our response is
available here.
NEWS ON THE LAWSUIT
We are still waiting Judge Maloney's decision. The trial was
held March 14 through March 23, 2000. Proposed
Findings of Fact and Conclusions of Law were submitted on
May 3. The oral arguments were heard by Judge Paul Maloney in
the Berrien County Courthouse on Friday, May 12.
The Court of Appeals declined to hear our appeal on December
10, 1999 on the basis that there is no reason the appeal cannot
be heard after the final ruling in the case is made. We must
therefore wait until the final ruling is entered before appealing
the May 24, 1999 ruling.
On August 5, 1999, Preserve the Dunes had filed an appeal
of the judge's ruling made at the hearing on May 24, 1999 was
filed. The text of the appeal can
be downloaded in Adobe
Acrobat® format.
Preserve the Dunes had filed a motion
for summary disposition of its complaint against the MDEQ
and TechniSand on March 19, 1999. It is supported by a brief
that spells out why the court should have declared the permit
to mine in critical dunes invalid, rescinded the permit and enjoined
TechniSand from mining or removing sand from the critical dunes
area at the Nadeau Site.
************
In parallel with the suit, we have been monitoring activities
at several mines and notifying the DEQ, our legislators and local
government officials of existing and new violations. One ongoing
issue has been the DEQ's unlawful
change of the boundaries of mining cells at the Nadeau Pit.
************
Preserve the Dunes sues the MDEQ and TechniSand. The Press
Release summarizes the complaint
that was filed on July 2, 1998. On August 7, 1998 the complaint
was amended to clarify its basis under
the Michigan Environmental Protection Act.
TechniSand and the MDEQ file for dismissal of our complaint
and a change of venue. A hearing was set for October 26, 1998.
TechniSand then requested that discovery should be delayed until
after the hearing.
On September 14, Judge Peterson denied TechniSand's requested
to delay discovery.
October 16, Tom Fette, attorney for Preserve the Dunes, filed
his brief in opposition to the motions
of TechniSand and the MDEQ. On October 26, the Judge
denied TechiSand's and the MDEQ's motions for dismissal and change
of venue.
************
In June, 1998 we wrote to Russ Harding,
Director of the Michigan Department of Environmental Quality
(MDEQ), in response to his letter assuring us that all of
the violations that we documented would be addressed.
After several investigations by members of Preserve the Dunes,
Inc. during October 1997 we retained an engineering firm to review
the mining activities at the Nadeau Pit and the application for
extending the mine at Nadeau Site- Taube Road Extension. Click
here to review the report.
Our first action was to notify the MDEQ of violations at two
mines operated by TechniSand, Inc., a division of a large multinational
corporation, Fairmount Minerals, Ltd. and to question issuing
of permit to extend one mine into a Critical Dune Area.
In December 1997 we wrote to Michael
Cote, Supervisor of the Plainwell District for the Geological
Survey Division of the MDEQ, and to Les
Thomas who heads up Permit Consolidation for the Land and
Water Management Division of the MDEQ.
The MDEQ finally responded in February but simply "stonewalled"
the issues that we raised. Eight days later we rebutted their
response and presented a comparison of
our allegations, the MDEQ reply and our responses. In early
May the attorney generals office promised that the MDEQ would
respond in detail to all of our observations. In early June,
Russ Harding promised a detailed response after the investigation
was complete. The full summary of correspondence can be found
here (988K in Adobe Acrobat 11 x 17"
format).
Since these letters were sent we have met with some of our
State Representatives (James
M. Middaugh, 80th District & Charles
LaSata, 79th District) and State Senator Harry
Gast to brief them on our concerns. We presented a number
of issues that are outlined in three one page documents:
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