High court appeal eyed in CR 595 case

Move depends on appellate review

Jim Iwanicki

MARQUETTE — The Marquette County Road Commission has authorized its attorneys at the Pacific Legal Foundation to bring its case against the U.S. Environmental Protection Agency regarding County Road 595 to the U.S. Supreme Court.

That move, commissioners said, could happen if an en banc hearing — meaning all judges hear the case, rather than a select few — in the 6th Circuit Court of Appeals is not granted, or if the court upholds its March 20 decision in favor of the EPA.

“If they don’t take the case, we authorize to go to the Supreme Court. If they hear the case and we’re not successful, we authorize to go to the Supreme Court,” said Jim Iwanicki, engineer manager at the Marquette County Road Commission.

The road commission made the decision at a special meeting Wednesday after a closed session with legal counsel.

“The issue for the road commission is that we believe that the EPA did not follow the law,” Iwanicki said. “And that what we’re asking for, is to make sure in the future, if the EPA does not follow the law, that they could be brought to court to be questioned, to make sure that they’re doing things properly.”

The Pacific Legal Foundation, a well-known law firm representing the road commission free of charge in the case, is preparing its arguments for the Supreme Court, if the case gets there.

“We’ll be arguing, just like in Hawkes (v. Army Corps of Engineers), we should be allowed to challenge what the EPA does,” Mark Miller, senior attorney at the Pacific Legal Foundation, said.

The road commission initially applied for a Michigan Department of Environmental Quality permit in 2011 to fill 25 acres of wetlands to construct County Road 595, a proposed 21-mile road that would run between Marquette County Road AAA in Michigamme Township and U.S. 41 in Humboldt Township.

In 2012, the EPA, which is empowered to oversee state-run permitting programs by the Clean Water Act, objected to aspects of the proposal related to wetlands mitigation and asserted that the road commission did not demonstrate the proposed road was the “least environmentally damaging practical alternative,” according to court documents.

While the road commission revised the proposal over following months, the EPA “remained unsatisfied and believed the proposal failed to meet CWA standards,” even though the DEQ “thought the most recently revised proposal met CWA standards and wished to grant the Road Commission a permit,” court documents state.

Eventually, the authority to resolve the permit application was transferred to the U.S. Army Corps of Engineers under the Clean Water Act, which would require the road commission to resubmit its application to the corps to continue with the permitting process.

The road commission, “frustrated with the time and expense of the process,” did not proceed through the corps, court documents state, and brought claims against the EPA and the corps under the Administrative Procedure Act.

The claims were based upon the refusal of the EPA to approve the permit application and the corps’ requirement of the road commission to resubmit application materials to continue with the permitting process, court documents state.

In July 2015, the road commission announced it would file a five-count declaratory judgment action against the EPA and the Corps in U.S. District Court for the Western District of Michigan, bringing four counts against the EPA and one count against the corps.

The road commission sought to declare the EPA’s refusal to remove objections to the permitting unlawful and aimed to restore permitting authority to the DEQ instead of the corps. However, the district court dismissed the complaint in full, as the corps and the EPA moved to dismiss the complaint under Federal Rules of Civil Procedure, court documents state.

“The district court determined neither of these agency actions (EPA’s refusal to approve the application and the corps’ requiring the commission to resubmit application materials) constituted a final agency action … The district court dismissed the suit,” court documents state.

In February 2017, the Pacific Legal Foundation filed an appeal of the decision with the 6th U.S. Circuit Court of Appeals, seeking to overturn the district court ruling “that agreed with EPA’s claim that the courts could not review its road veto,” according to a Feb. 9, 2017, press release from the Pacific Legal Foundation.

In the appeal, the road commission asserted that the EPA objections “constituted final, reviewable agency action,” court documents state.

On March 20, the appellate court ruled in favor of the EPA.

In an opinion filed that day, the court states:

“Because the Road Commission has failed to demonstrate that EPA’s objections or the transfer of authority over the permit to the Corps consummated the decision making process in the Section 404 permit proceeding, we need not analyze whether legal consequences flowed. The Road Commission has failed to show that the challenged actions constitute final agency action permitting this court’s review under the (Administrative Procedure Act).”

This decision is what led the road commission to seek an en banc hearing in the 6th Circuit Court and authorize the Pacific Legal Foundation to take the case to the U.S. Supreme Court if the hearing is not granted or not successful.