Crooked Lake suit 'a dead duck' for now
Attorney Douglas Kelly (on left) and Barry County Drain Commissioner Jim Dull update county commissioners on the Watson Drain district at the Oct. 8 county board meeting. Two days later, Kelly and Dull were in circuit court for a motion to reconsider the lawsuit against Dull and the drain district. (Photo by Rebecca Pierce)
But property owners can amend and file again
Crooked Lake residents suing Barry County Drain Commissioner Jim Dull lost their request for reconsideration of the complaint last Thursday.
But the case is not closed.
In dismissing the action, Visiting Judge Donald Johnston said he would allow them to file an amended complaint within 14 days in an effort to reframe the case.
They intend to do so, according to their attorney Michael Perry.
Property owners Sharon and Robert Ritchie, Michael and Sandra Golembiewki, David and Ann Skender, David and Leslie Bolton, Mark Nelson and Jill Sterling, who filed the original complaint, said Judge Amy McDowell made “palpable procedural errors” in dismissing their case May 29.
But, in his argument for reconsideration last week, Perry keyed on Dull and actions that resulted in the catastrophic flooding of their property on Crooked Lake.
“We're not simply restating the claim,” he said. “We're taking a broader view with regard to mismanagement of the entire district.”
Perry noted that the Ritchies, in fact, no longer live on Crooked Lake. They sold their flooded property for a price considerably less than its value, he claimed. He did not state the amount.
But, if the rest of the property owners who brought the action are successful in their case against Dull and the Watson Drain, they may recover as much as 125 percent the original value of their property, prior to flooding, along with attorney fees.
“These properties are essentially under water,” Perry told the judge. “They (the Watson Drain district) have converted our property for a public use because they're using our property to store public water from the drainage district.”
Attorney Douglas Kelly, who represents Dull and the Watson Drain district, countered, “We are working diligently to find a solution to the flooding in this district. The whole district is a bowl. There is no outlet.”
Last summer, a pump began moving water from Crooked Lake to a detention basin on the former Darrell Jones property. It took 6 inches off the lake, bringing the water from a June 15 high point of 928.2 feet to 927.7 feet in early August.
The lake level this past Tuesday was 927.2 feet, Dull said.
Pumping is continuing and it has had a “phenomenal” impact, he told The Banner.
Dull estimated the difference it's making at between 1¼-inch to 1½-inch a week for Upper and Lower Crooked and Glasby lakes, a 2,100-acre area.
Dull said they are working with state departments of Natural Resources and Environment, Great Lakes and Energy to continue pumping for at least a couple more weeks. And, it the weather continues warm, perhaps they can continue pumping for another month.
State officials wanted them to stop pumping soon so as not to interfere with native species there that will be hibernating, Kelly told the judge during the Oct. 10 hearing.
“So you'll have to wait until the raccoons wake up again?” Johnston asked.
“Something like that,” Kelly replied, saying that their efforts to find a solution for flooding in the Watson Drain district involves a complicated collaboration among local, county, and state agencies that include dealing with invasive species and endangered species and many other issues.
“We are doing the best we can,” he remarked. “...You can't just start digging trenches and moving water around. You will get arrested.”
Getting permits to get the water moved is “Herculean,” Kelly added. “You just can't make it go away.”
Both sides argued issues pertaining to court procedure and whether the rules had been observed.
Attorney Stephon Bagne, representing Dull and the Watson Drain, said of the opposing counsel, Perry and his associate, Kirby Albright, “They chose to proceed with that hearing. They basically chose to shove this down our throat.
“To come here now and say there is some kind of unfairness is flat-out wrong.”
At one point, intrigued by Perry's argument about mismanagement of the lake level, Judge Johnston pointed to news reports that lake levels are high all over Michigan.
“Aren’t water levels way up everywhere? Lake Huron, Lake Michigan, Lake Ontario, even the marsh in my backyard is up. Water levels are up.
“To some extent, I suppose it’s an act of God.”
Later, Bagne mentioned the judge's remark. “It came from, as your honor said, an act of God. You can’t sue God.”
Johnston agreed, adding: “You don’t have jurisdiction.”
A recurring source of contention between the two sides during the hearing was a court-ordered minimum lake level of 922.75 feet that was established on Crooked Lake in 2005.
“If there was an order for a lake level and it's not being achieved,” Johnston said, “it seems to me that the skunk lands on the drain commissioner's porch.”
Bagne pointed out that the order to maintain a minimum level was issued 13 years ago and seasonal levels are to be allowed.
“How's that skunk landing on his (the drain commissioner's) porch?” he asked the judge, pointing out that others – including state agencies and departments like EGLE – also have an impact on the lake level.
“This is an interesting and unusual case indeed,” the judge said at the conclusion of the hearing. “One of things that I’ve found most interesting about my four-week stint in Barry County Circuit Court so far is that a very substantial portion of the civil docket involves litigation about lakes. We’ve had prescriptive easement cases. We’ve had adverse possession cases, We’ve had arguments between neighboring cottage owners who both have docks going out into the lake, but, because of the configuration of the shoreline, they come into contact with each other and each side is blocked from using the space between the docks. We’ve had cases where access roads were not built where they were platted in 1924 and now, of course, we have this.
“It’s remarkable how much water-related litigation there is in Barry County.”
Johnston pointed out that he was not involved in the prior stages of the litigation. “Counsel has been very helpful in written submissions and oral presentations today in clarifying what has transpired in this case prior to my arrival.”
The judge said that McDowell, in dismissing the complaint, “was obviously attempting to come to grips with the crucial issues of the case at the earliest possible moment… On the other hand, to go from a show-cause hearing to a resolution on the merits is perhaps pushing things a little hard.
“But I think, as you read the transcript, what it turned on was Judge McDowell's decision that the drain commissioner had discretion under the law when – or whether – to institute condemnation proceedings.”
Because of that fact, the drain commissioner was not required by law to act.
“Either way, the action against the drain commissioner for failing to institute a condemnation action under the uniform act is a dead duck,” Johnston said. “That said, I think there are other arguments which may be presented in this case. For instance, it seems to me the plaintiffs have an argument, at least, that the flooding of their property constitutes an inverse condemnation … and may be the subject of other relief.”
So the judge denied the motion for reconsideration, but allowed the plaintiffs to file an amended complaint within 14 days to bring further action against Dull and Watson Drain district if they choose to do so.
That would “reframe the case in a manner more suitable and more arguable under the existing laws of the state of Michigan,” Johnston said.
In closing, the judge noted that, in Kent County, he used to confer the “Case of the Week” award upon the parties with the most interesting litigation for the week.
“I’m prepared to award you gentlemen the 'Case of the Month' award,” Johnston said.
The audience laughed.