Appeals panel allows 25 Midland flooding lawsuits against state to continue

Beth LeBlanc
The Detroit News

A Michigan Court of Appeals panel this week denied the state's latest request to dismiss about 25 civil lawsuits seeking compensation for damages caused by Midland-area flooding in 2020. 

Court of Appeals Judge Michael Gadola, an appointee of Republican former Gov. Rick Snyder, dismissed the state's appeal in a short order Monday. He was joined on the appeals panel by judges Brock Swartzle, another Snyder appointee, and Michelle Rick, who was elected to the court last year. 

The dismissal came five months after Court of Claims Judge Cynthia Stephens allowed the lawsuits to proceed on the argument that the state's actions in the lead-up to the May 19, 2020 dam failure constituted an unconstitutional taking, also called inverse condemnation.

Flooded Chippewassee Park at Ashman road  and Ann Street along the Tittabawassee River in downtown Midland. 
Flooding along the Tittabawassee River in downtown Midland, Michigan on May 20, 2020.  (Image by Daniel Mears/ The Detroit News)

The constitutional claim, if successful, prevents the state from using governmental immunity laws to protect itself against liability. 

The state said Wednesday that it is reviewing the Court of Appeals decision. 

The state has been attempting with its appeals to "delay, deny and defend" against the suit "so they can just push this down the river so they don't have to pay it today," said Ven Johnson, a lawyer for about 300 of the thousands of people represented in the suit.

"This is a wake-up call — the state of Michigan was trying to play litigation strategy games, they got caught and then were sent to trial," Johnson said.

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 owner, 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 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, officials said.

But Stephens in her May opinion noted the Midland case appeared to have met the requirements of "affirmative action" needed for an inverse condemnation claim.

In other words, the state took affirmative action to keep water levels high despite knowing of the dam's inadequate spillway capacity. The judge compared the state's action in Midland to its decision in Flint in 2014, when the state-appointed emergency managers switched the city's water source to the Flint River despite knowing the risks associated with the river.

Besides thousands of dollars in property damage, the reconstruction of the Midland area dams damaged in the flood will cost residents millions of dollars. Current estimates put the cost of capital repairs at Smallwood Dam at $18 million, Secord at $25 million, Sanford at $51 million and Edenville at $121 million. 

The state Legislature has allocated money to help address some of the damage from the 2020 flood and is working to allocated more.