Court of Appeals Asked to Decide Whether a State Agency or County Board Decides About the Dam on Higgins Lake

A pair of property owners and a nonprofit advocacy group involving Higgins Lake have asked the Michigan Court of Appeals to decide a basic but important question: who actually has the legal authority to approve a dam on a Michigan inland lake, the state or the county?

In a newly filed appeal, the challengers argue that Part 307 of Michigan’s environmental law known as NREPA is unconstitutional when currently being used to give a state agency final say over dam construction, because the Michigan Constitution assigns that power to local county boards of commissioners.

Under Article VII, Section 12 of the Michigan Constitution, permission to dam a navigable stream must come from the county board. In this case, that would be the Roscommon County Board of Commissioners. The appeal argues that a state agency cannot take over that role through statute or state level regulation.

“This isn’t about whether a dam should be built,” said attorney Philip L. Ellison of Outside Legal Counsel PLC. “It’s about who gets to make that decision. The Michigan Constitution says that power belongs to the county board and not a state agency.”

The issue arose in the context of long-running problems with Higgins Lake’s water level. A court order dating back to 1982 requires the lake to be kept at a specific height, but the plaintiffs say the current dam at the Cut River has failed and needs to be replaced. According to the appeal, confusion over who has permitting authority has become a roadblock to fixing the problem. Moreover, the permitting process with the Michigan Department of Environment, Great Lakes, and Energy (EGLE) is well known to be long, expensive, and bureaucratic. 

The Court of Claims dismissed the case avoiding the constitutional question. The appeal asks the Court of Appeals to either send the case back for a full decision on the issue or decide now whether the state’s assertion of authority under Part 307 conflicts with the Constitution.

“At bottom, this is a separation-of-powers issue,” Ellison said. “If the Constitution puts this decision in the hands of county commissioners, then the state can’t override our Constitution that by statute. The Court of Appeals is being asked to say expressly so.”

The case is Ricketts, et al v Michigan Dep't of Environment, Great Lakes, and Energy, pending before the Michigan Court of Appeals. Oral argument is not yet set.