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Judge reopens DNR mining suit

April 21, 2009
By JOHN PEPIN Journal Staff Writer

MARQUETTE - An Ingham County Circuit Court judge has reopened a portion of a lawsuit decided in March in favor of the Michigan Department of Natural Resources and the Kennecott Eagle Minerals Company.

Judge Paula Manderfield has set a short hearing for 1:45 p.m. June 10. But plaintiffs anticipate wider hearings lasting several days will be scheduled.

Manderfield will reconsider whether the DNR violated its "public trust responsibility" in granting a lease of 120 acres of state land to Kennecott for surface facilities for its proposed Eagle Project.

"We expect to get to a full evidentiary hearing and pursue this to it fullest," said Michelle Halley, an attorney with the National Wildlife Federation, one of the plaintiffs in the case. "I've always thought that this was a good case for the public trust responsibility and I'm really happy that we are getting to pursue it."

The DNR granted the lease in February 2008. A lawsuit was filed by the NWF, Huron Mountain Club, Keweenaw Bay Indian Community and Yellow Dog Watershed Preserve.

In March, Manderfield upheld the DNR's decision to lease the land to Kennecott and rejected a request to stop construction activity at the site. Last Thursday, Manderfield granted a request by the plaintiffs to reopen the case on the one issue only.

Manderfield said the Public Trust Doctrine should have been considered separately from the plaintiffs' appeal.

"In its March 3, 2009, opinion and order, this court found that plaintiffs had abandoned their Public Trust Doctrine argument by failing to brief (argue) the issue," Manderfield wrote in her decision. "That issue, however, was before the court as an original action, separate and distinct from plantiffs' appeal of the lease ... accordingly, the court erred in finding that this issue was abandoned."

Kennecott spokeswoman Deb Muchmore said the mining company expects to prevail, based on the ruling Manderfield made on the other portions of the lawsuit.

"Based on the previous ruling that the DNR was fully within its rights to issue the surface lease, we're confident that the court will come to the same conclusion when it considers this," Muchmore said.

According to the Public Trust Doctrine, the DNR is responsible for holding and managing public resources for the good of the public, maintaining public access whenever possible and protecting the resources for existing uses.

The National Wildlife Federation identified a variety of publicly-owned natural resources at stake, including the coaster brook trout, a potential threatened or endangered species; Eagle Rock, which is significant to local Native American tribes; and public recreation lands on the Yellow Dog Plains.

 
 

 

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