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Judge allows 25 lawsuits against state over May 2020 dam failure to proceed

Beth LeBlanc
The Detroit News

A judge will allow 25 lawsuits to proceed against the state of Michigan over the 2020 failure of the Edenville Dam and subsequent flooding in Midland and Gladwin counties. 

Court of Claims Judge Cynthia Stephens on Friday denied a motion to dismiss the claims against the Michigan Department of Environment, Great Lakes and Energy and the Michigan Department of Natural Resources. 

A man walks toward the Edenville Dam at Wixom Lake in Beaverton after the levees broke.

Stephens’ order allows hundreds of Midland-area residents to continue arguing in court that the state’s actions in the lead-up to the May 19, 2020 dam failure constituted an unconstitutional taking, also called inverse condemnation. Stephens did dismiss claims alleging the state's actions amounted to trespassing.

Ven Johnson, a lawyer for about 300 people affected by the flood, celebrated the decision Friday and urged the state not to waste time on an appeal. 

“This is a significant step forward in compensating these nearly 10,000 flood victims,” Johnson said. “We believe Judge Stephens’ opinion is 100 percent correct, and in the event that it is appealed, it will be upheld.”

Attorney General Dana Nessel’s office on Friday said it was reviewing the ruling before it decides on future actions. 

“The plaintiffs' allegations in many instances are not accurate because they are based on incorrect information about the state agencies’ roles and actions,” said Lynsey Mukomel, a spokeswoman for Nessel’s office. 

The May 2020 Edenville Dam failure sent water rushing over and around the Sanford Dam and flooded area neighborhoods and businesses, causing about 10,000 people to evacuate. 

Government documents revealed the dam owners, Boyce Hydro, failed to comply with state and federal guidance for years. Documents also showed a fumbled hand off of oversight of the Edenville Dam between federal and state regulators in 2018 and an underfunded state dam safety effort ill-equipped to hold the dam owner to task.

Residents had argued in their lawsuits that the state not only failed to push dam owner Boyce Hydro to improve its spillway capacity, but that the state also pressured Boyce to raise lake levels during the winter out of concern for a native mussel.

Additionally, the state granted Boyce a permit to raise water levels weeks ahead of the flood, despite knowing of the dam's inadequate spillway capacity. 

The state has maintained that Boyce avoided complying with higher winter lake levels, not out of any safety concern, but because it would cost more to properly maintain the dams at those levels during the winter. 

Furthermore, the state has argued the denial of November drawdown permits had no bearing on the spring permit for summer levels. The dam company would have raised levels ahead of the summer months by court order with or without pressure from the state.

Citing a July Michigan Supreme Court opinion in the Flint Water Case, Stevens noted that the residents’ allegations, if true, met the benchmarks for an inverse condemnation claim, including the requirement to show "affirmative action" on behalf of the state that led to the harm.  

Specifically, Stevens drew parallels between the argument that the state took “affirmative action” to keep water levels high, despite knowing of the dam’s inadequate spillway capacity, and the argument in the Flint water case alleging the state took affirmative action to switch the city's water source to the Flint River despite knowing the risks associated with that water source.

“Stated otherwise, plaintiffs allege that defendant was aware of the danger, disregarded it, and took affirmative actions that exacerbated the risk of flooding and ultimately led to the flooding of plaintiffs’ properties. These allegations set forth affirmative actions directed at plaintiffs’ properties,” Stephens wrote.

There is no governmental immunity for constitutional claims such as inverse condemnation claims. 

The flooding left many residents with thousands of dollars in damages and many lacked the flood insurance necessary to cover the costs.

Repairs to the damaged Midland-area dams — Secord, Smallwood, Edenville and Sanford — will cost residents about $215 million in assessments over 40 years. Some restoration work won't be complete until 2026. 

The state Legislature announced a plan this week to introduce new bills that would dedicate about $500 million in new funding toward dam repairs and emergency response, including funding specific to the restoration of the four Midland-area dams.