Outside Legal Counsel PLC

Supreme Court Permits Higgins Lake Water Level Case to Proceed Forward

For Immediate Release | Mar 10, 2023

The Michigan Supreme Court issued an order today rejecting the attempts of a Northern Michigan county to avoid maintaining the legal lake-water levels of Higgins Lake.

For years, Roscommon County has been operating the Cut River lake level control device to handle the outflow of water from Higgins Lake and, in turn, also managing the lake water level of the 10,000-acre inland lake. In October 2019, Outside Legal Counsel PLC filed suit for Citizens for Higgins Lake Legal Level and various homeowners and property owners to challenge Roscommon County's poor lake management practices including the failure maintain sufficient lake-water levels.

The legally-mandated level for Higgins Lake is 1,154.11-ft above sea level and Roscommon County must, under Michigan law, "provide for and maintain that normal level." Data presented to the courts from the United States Geological Survey showed, for example, that lake-water levels in the summer months were below the court-ordered levels two-thirds (2/3) of the time in 2016, over one quarter (1/4) of the time in 2017, and nearly ninety percent (90%) of the time in 2018.

For those on the south end of the lake, that lack of six inches means not having access to boating, docks, and other summer recreational activities.

In 2010, the County commissioned an engineering report to study the lake and its dam known as "Higgins Lake Level Control Structure" on the Cut River.

The Higgins Lake Level Control Structure

The engineering study concluded what was already largely and widely known: the level of Higgins Lake has averaged below the court established legal lake level during the summer months. It also found that simple alterations are needed to improve the dam's operation to enable lake levels to be maintained much closer to and with less variability from the required water level.

The local trial court originally dismissed the lawsuit. The citizens and the advocacy group appealed and the Michigan Court of Appeals reversed that decision. Adopting OLC's arguments and rejecting the local court's prior conclusion, the Court of Appeals explained that the 1,154.11-ft level "was the lake level that [Roscommon County] was required to maintain in the summer months" and "by failing to do so for several years, it has violated that duty."

Both Roscommon County and the intervening Michigan Department of Environment, Great Lakes, and Energy (EGLE) petitioned the Michigan Supreme Court to reverse the Court of Appeals' ruling. By an order issued today, the Supreme Court declined the request. When such happens, the Court of Appeals' decision comes into full legal effect.

"The Supreme Court's refusal to change or alter the Court of Appeals' decision is a major win for the property owners surrounding Higgins Lake," states Philip L. Ellison, the attorney representing the property owners. "This ruling is a major step in forcing reforms to the wildly-fluctuating water levels of Higgins Lake."

With the case returning to the local court, the lawsuit will then be able to use various legal tools, including discovery, to investigate and confirm the management practices of the County's "delegated authority" and present ways to require properly maintained water-levels on Higgins Lake.

  • Supreme Court March 10, 2023 Order
  • Court of Appeals March 17, 2022 Opinion
  • The First Amended (Controlling) Complaint

    Outside Legal Counsel PLC is a Michigan law firm that specializes in property and water rights litigation. Handling disputes and matters involving easements, docks, and land boundaries, OLC represents land, home, and cabin owners throughout Michigan. More information is available at www.olcplc.com.