DNR Asks Allegan Judge To Throw Out Lawsuit Over Oil & Gas Leases On Public Land

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ALLEGAN, Mich. (April 10, 2014) — A large group of people concerned about fracking on public lands in Allegan County took their fight to Allegan County Court Thursday.

Fracking is a process which typically involves mixing water with sand and chemicals to inject into the ground at a high pressure to extract natural gas.

The lawsuit against the Michigan Department of Natural Resources accuses the agency of violating Michigan law by failing to do an environmental impact statement before auctioning off leases to oil and gas companies.

The lawsuit cites the leases sold for 12,000 acres of land in the Allegan State Game Area and recreation area.

“I think it’s a hideous pollutant,” said Cheryl Elyea, a supporter of the lawsuit. “They (the DNR) have already done it, and I think that it’s a huge mistake for them to do that.”

It was a full-house in Allegan County court. Elyea was one of more than 50 people that spilled into the aisles during the hearing Thursday.

The Michigan DNR asked Circuit Judge Margaret Bakker to dismiss the case.

Steve Losher, President Michigan Land Air Water Defense, said, “There’s certainly more than enough questions that would necessitate if in fact you are responsibly managing our public lands, to do an environmental assessment.”

The lawsuit accuses the Michigan DNR of a violation of public trust and a violation of duties under the Michigan Environmental Protection Act or MEPA. That alleged duty includes the creation of an environmental assessment or impact statement from the Michigan DNR.

“There is a duty to consider, and it hasn’t been done, and this court can order the defendant to do it,” said Jim Olson, an attorney from the law firm Olson Bzdok & Howard.

The representative for the DNR, Assistant Attorney General Dan Bock, concedes that the state’s Department of Natural Resources did no such assessment.

“The DNR doesn’t do a thorough environmental assessment when it leases property,” said Bock.

Judge Bakker confirmed that, saying, “I don’t think there has been any doubt there has been no environmental impact statements done.”

However, Bock argued to get the case thrown out because the requirements of the Michigan Environmental Protection Act do not apply in this situation. He said the leases are classified in such a way that the DNR doesn’t have to study and report on the environmental impacts.

“All of the leases in this action are classified by the DNR as non-development leases,” said Bock. “There is no development of the surface of the land of any kind.”

The attorney for MLAWD fought back with his own argument.

“It’s meaningless to say it’ s ‘non-development’ so there’s no duty to consider impacts,” said Olson. “That’s crazy.”

Bock also argued that there was no violation of the public trust because that term under Michigan law only applies to waterways and fishing. “The leases here do not concern navigable bodies of water, so the public trust doctrine does not apply,” said Bock.

Olson argued, “This is about good government in an age where we need good government. It’s time for a court to step in so we do these things in an orderly process.

“There is plenty of open questions, questions of fact remaining to take this case to trial to deny the state’s motion for summary disposition,” said Losher.

Judge Bakker said it would likely take her a couple weeks to review the arguments and prepare a decision on whether to dismiss the case.

The DNR maintains that any public disapproval of oil and gas wells should be taken up with the Michigan Department of Environmental Quality.

Bock said it’s that agency that would be in charge of issuing well permits to oil and gas companies on a case-by-case basis.

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