More Midland-area residents sue over dam breach, flooding
Four Midland-area residents have filed a class-action lawsuit in state court against the state over its oversight of the Edenville Dam, arguing that its actions "caused ... serious property damages and economic harm."
Among claims against the Michigan Department of Environment, Great Lakes and Energy are that the department engaged in "affirmative acts of mismanagement and concealment in the operation of the dam, resulting in the dam's failure and the resulting damage to plaintiffs' property."
The lawsuit, which seeks class-action status, was filed Friday, is at least the third suit filed related to the flood.
One earlier lawsuit focuses on the dam’s owners and managers, and another includes the dam owners, its manager and the state of Michigan.
This one targets just the state.
The lawsuit argues that the plaintiffs' properties were destroyed and the state knew the Edenville Dam posed serious risk and endangered property. In addition, it alleges:
"Defendant abused its powers in stating publicly that the dam was structurally sound when, in fact, it was unsound.
Defendant concealed information and made false statements in public to hide the dangers caused by the failures in the Edenville Dam."
After the Federal Energy Regulatory Commission revoked the dam's license to generate power in September 2018 due to fears it could not survive a major flood event, oversight passed to the state.
"Just nine days after FERC revoked the dam’s license based on years of failing to fix “structural instability, Michigan inspectors, based on a cursory inspection, ruled the dam was in “fair” condition and allowed it to continue operating," reads the suit, which was filed in the Michigan Court of Claims.
"The Michigan’s inspector’s report, dated October 8, 2018, was merely three paragraphs long," the lawsuit said, and in the 19 months of state oversight, "EGLE did not demand any repairs to the dam."
Last week, after heavy rains, the Tittabawassee River crested at 35 feet. The water overpowered two dams, Edenville and Sanford, and flooded towns.
Plaintiffs David and Andy Krieger of Edenville claim their basement was flooded and that they lost "several" boats and two sheds along with "many chairs and tables."
Jim and Margaret Sperling, the second set of plaintiffs, live on the same street as the Kriegers and faced similar issues. Jim Sperling is an Edenville Township trustee serving his third term, the suit said.
"Plaintiffs bring this action on behalf of themselves and others constituting a class of persons who suffered property damage and loss on and after May 19, 2020, because of the failure of the Edenville Dam, the flooding of water over the Sanford Dam, and the resulting damage and destruction of plaintiffs’ property in the ensuing floods," said the suit, which was filed in the Michigan Court of Claims.
The lawsuit quotes Gov. Gretchen Whitmer, who describes the dam as a "known problem," and EGLE spokesman Nick Assendelft, who noted the state's "strong concerns" regarding the dam's spillway capacity, but allegedly said a fix never moved beyond "continued conversations" about repairs in its allegations of "affirmative acts of mismanagement."
The suit notes the state's limited resources for oversight: three staffers responsible for 1,000 dams.
"In the months preceding the flood, EGLE, despite knowing the Edenville Dam was not capable of withstanding flooding in the event of a historic flood, took several official actions designed to force the dam’s operator to increase water levels in Wixom Lake," the lawsuit claims.
The lawsuit seeks to certify affected homeowners as a class entitled to pursue damages and injunctive relief. It argues that the damage is tantamount to the government taking private property.
The lawsuit asks the court to declare the state's conduct unconstitutional, for an order to fix the harm, for the appointment of a monitor "who will assist in the development of remedial plans," as well as compensatory damages, punitive damages and lawyer fees.
EGLE declined comment, citing the pending litigation.
The plaintiffs are represented by Royal Oak-based Pitt McGehee Palmer Bonanni and Rivers.