CR 595 dispute could be headed to U.S. Supreme Court for resolution

Jim Iwanicki, engineer manager, Marquette County Road Commission

MARQUETTE — The long dispute regarding 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 — could be headed to the highest court in the nation.

The Marquette County Road Commission and its legal representation, the Pacific Legal Foundation, recently filed a petition with the U.S. Supreme Court in a case the road commission brought against the U.S. Environmental Protection Agency regarding the EPA’s denial of a permit for County Road 595.

“The road commission feels that the EPA did not follow the law or the rules set up for the permitting process and that’s really what we’re questioning,” Marquette County Road Commission Engineer Manager Jim Iwanicki said. “And right now, there are no funds to build CR 595 if we win this case. It’s more the precedents that were set — by the EPA not allowing us the permit — that we’re more interested in exploring.”

The road commission is asking to have their day in court with the matter, Iwanicki said, as “up until this point, the courts have said, basically until you go through the whole federal process, you can’t question the EPA.”

The core of the issue is a matter of precedent, as the road commission’s fundamental argument is that they should be able to legally challenge the EPA’s decision in the matter, said Mark Miller, the Pacific Legal Foundation attorney that is representing the road commission in the matter.

“We should be able to argue that in a trial court, the trial court says we’re not allowed to question (the EPA),” Miller said.

The case stems from a lengthy and complex dispute involving permits for CR 595, which the Michigan Department of Environmental Quality approved, but the EPA filed objections against, citing wetland mitigation concerns due to the road’s placement. The permitting authority for the road was eventually transferred to the U.S. Army Corps of Engineers, which would have required the road commission to file a new permitting application with the corps.

The road commission objected to this and brought a five-count declaratory judgment action against the EPA and the corps in the U.S. District Court for the Western District of Michigan in 2015, which was fully dismissed at the request of the EPA and the corps under Federal Rules of Civil Procedure, according to court documents.

The road commission then filed an appeal in February 2017 with the 6th Circuit Court of Appeals, but the appellate court ruled in favor of the EPA on March 20. The Oct. 25 filing of the petition to the Supreme Court comes after the road commission was denied an en banc hearing in the 6th Circuit Court of Appeals that they had requested in the spring after the March 20 decision by the appellate court in favor of the EPA, according to Miller.

While the Supreme Court has not yet made a decision on hearing the case, Iwanicki and Miller are hopeful the court will hear it, as they feel similar cases have had success in the Supreme Court.

“We’re asking the Supreme Court to hear the case and we believe that there’s some precedents for some other decisions that they’ve made in the past. This one falls right in line with those decisions, and for that reason, we feel they should hear it,” Iwanicki said.

However, if the Supreme Court does not accept the petition to hear the case, it will be the “end of the road” for this particular case, Miller said.

“There’s really no recourse for them if the Supreme Court doesn’t decide to hear it,” he said.

If this happens, Miller said there are other avenues outside of the courts that could be pursued, such as legislative action that addresses the issue.

Because of the precedent that could be set, the case could have impacts beyond Marquette County and the construction of this specific road, Iwanicki and Miller said.

“If 595 wasn’t able to be built, where can we build a new public road in the U.P.?” Iwanicki asked.

Iwanicki feels that if permits for CR 595 were denied, it may be difficult to build other roads in the Upper Peninsula.

“Our responsibility here at the road commission is to build the best possible road network here in Marquette County and 595 did that,” Iwanicki said. “And if we’re not allowed to build the best possible road network in Marquette County and we followed all the rules, then we are left the roads that we’re left with and the citizens of Marquette County have to deal with any future development with the existing road system, and again, that’s one of the things that we’re questioning.”

Iwanicki said he was grateful for the support of the Pacific Legal Foundation and emphasized that taxpayer dollars are not being used for the legal fight, as the Pacific Legal Foundation is representing the road commission pro bono.

“The road commission board is not spending any of tax dollars that we receive to move this case forward, this is all being done with outside dollars and so we are not, by doing this, we are not taking away funds that would be used to maintain and build roads in Marquette County,” he said.