Fracking lawsuit decision in Barry County case against Michigan DNR expected in three weeks by Yvonne Zipp, July 29, 2013, MLive
HASTINGS, MI – A Barry County Circuit Court judge will decide within three weeks whether to allow an anti-fracking case to go forward against the Michigan Department of Natural Resources. On Monday, a Barry County Circuit Court judge heard arguments on whether to allow a lawsuit to go forward asking to set aside oil and gas leases auctioned off in 2012 in the Barry State Game Area (pictured above), Yankee Springs and the Allegan State Game Area, pending review of potential environmental impacts. “This is obviously an issue both sides feel strongly about,” Circuit Judge Amy McDowell told a nearly full courtroom after the hearing Monday in Hastings. McDowell she would issue a written opinion within 21 days on whether to grant the state’s motion for summary disposition in a lawsuit challenging oil and gas leases sold by the state at auction in 2012 in the Allegan State Game Area, the Barry State Game Reserve and Yankee Springs Parks and Recreation Area. The case was brought against the Michigan Department of Natural Resources and its director, Keith Creagh, by Michigan Land Air Water Defense, a Delton-based nonprofit group. In the lawsuit, which alleges that the state violated the Michigan Environmental Protection Act by not assessing the potential impacts on the reserves before auctioning the oil and gas rights, the group is asking that the leases be set aside until environmental impact studies can be done on the area, particularly with regard to the impact of the controversial process known as horizontal hydrofracking.
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Olson said that the time to assess whether hydraulic fracturing would cause environmental harm to the game reserves is before the leases are auctioned off. In the plaintiff’s brief, Olson cited a California case in which the U.S. District Court for Northern California held that the federal Bureau of Land Management violated the National Environmental Policy Act by failing to analyze the potential environmental impacts of fracking on federal land in Fresno and Monterey counties before auctioning the leases off to energy companies. In that April decision, the court did not void the leases, but required the BLM to go back and conduct an analysis of the potential impacts of fracking on the 2,700 acres in question. Bock countered that that ruling hinged “on a federal statute for which there is no state corollary.” “I think it went well,” said Steve Losher, president of the Delton-based nonprofit group, after the hearing, who said he was pleased with the turnout. “I think we have more than enough to go forward with this and look forward to the judge’s decision. [Emphasis added]
Anti-fracking lawsuit to be heard Monday in Barry County Circuit Court by Yvonne Zipp, July 28, 2013, MLive
Should fracking be allowed in Southwest Michigan’s public game reserves without the state assessing the likely environmental impact first? That question is at the heart of a case to be heard Monday in Barry County. … The case was brought against the Michigan Department of Natural Resources and its director, Keith Creagh, by Michigan Land Air Water Defense, a nonprofit group that formed in 2012 after the mineral rights to more than 6,000 acres in the Barry State Game Reserve were sold at auction in May. In October, the Michigan Department of Natural Resources auctioned mineral rights on 12,350 acres of state-owned land in Allegan County, with the largest portion located in the Allegan State Game Area. Another auction is planned for this September. … “We’re trying to get the leases set aside pending what we feel is constitutionally and statutorily required review and analysis,” said Steve Losher, president of the Delton-based group, which he said had more than 250 members. “To include these gems of public lands in the same basket as every other piece of land in Michigan, we feel is unconscionable.” Ed Golder, spokesman for the DNR, said that the department does not comment on ongoing litigation. The state has filed a motion to have the case dismissed, saying that the issues are not ripe for review. Among other reasons cited are that, so far, no energy firm has applied for a permit to horizontal hydraulically fracture wells — commonly known as fracking — in the Allegan County Game Reserve, Barry County Game Reserve or Yankee Springs. “The issues set forth in the complaint are not ripe for review because they are speculative and contingent upon activities that have yet to occur and may never occur. There has not been any indication that hydraulic fracturing will occur under any of the lands described in the complaint,” wrote assistant attorneys general Robert Reichel and Daniel Bock in a brief filed in support of the state’s motion for summary disposition March 29. That’s not what the lawsuit is asking the court to address, countered Jim Olson, principal of Olson, Bzdok & Howard in Traverse City, which filed the suit on behalf of MLAWD last October. “The court isn’t being asked to decide the question of horizontal hydraulic fracturing,” said Olson. “The court is asked to determine what the law demands before leasing occurs.” …
“Defendants want to stick their head in the sand and rely on others to make their constitutionally and statutorily mandated considerations and determinations for them,” the plaintiffs’ brief reads. The Allegan State Game Area already has some older wells that were drilled in past decades. But Losher said he believes the impacts of horizontal fracking would be far greater than with traditional drilling. “It’s our contention it is not in fact your grandfather’s drilling,” said Losher, who added that comparing vertical drilling with fracking was like comparing the Wright Flyer with a Boeing 777. “It’s hundreds of times more impactful. There are way too many unanswered questions about this process to proceed as if this is drilling as usual.” … One of the things the judge will be deciding is whether the public trust doctrine applies to the game reserves. In its brief, the state argued that it does not. The state also moved for dismissal of the lawsuit on grounds that the mineral rights auctioned were classified as “nondevelopment,” which means that no surface drilling can occur “without separate, subsequent approval from the DNR.” That approval is not difficult to obtain, Losher said, citing 119 out of 126 cases in the past year where leases were modified in favor of the oil industry. “That’s how you end up with an oil rig on state land,” he said. [Emphasis added]