Lawyer for Midland area residents: State using 'frivolous appeals' in dam suits

Carol Thompson
The Detroit News

An attorney representing central Michigan residents damaged by the 2020 dam failures accused state attorneys on Thursday of delaying court proceedings with "frivolous appeals."

"You would think that the state would hold itself accountable for infrastructure," Detroit attorney Ven Johnson said. "But in this particular case, the state is dug in."

Johnson's clients have accused the state of negligently regulating the Edenville and Sanford dams, which failed on May 19, 2020 and caused widespread flooding in the Midland area and causing about 10,000 people to evacuate. Johnson hosted a Thursday press conference in Sanford to commemorate the three-year anniversary of the dam failures.

The Edenville Dam as it breached on Tuesday, May 19, 2020.

In case filings, the state has placed the blame for those dam failures on Boyce Hydro, the company that owned the dams that is now bankrupt. Attorney General Dana Nessel's office in a Thursday statement reiterated arguments it has made in court, where state attorneys characterized the residents' lawsuit as "misguided" in their appeal.

The dispute hinges on whether residents' claims qualify as "inverse condemnation" claims, which would mean the state took their property for public use without appropriate compensation and would remove Michigan's governmental immunity protection.

Michigan Court of Claims sided in part with residents in 2021, holding that the state is not immune from the residents' inverse condemnation claim. State attorneys appealed that decision to the Court of Appeals. The court held oral arguments on the case in April but has not issued an opinion.

"There would be no limit on inverse condemnation claims if persons whose property is damaged by a private third party can pursue the government under the Takings Clause simply because the government regulated that private third party," state attorneys said in their 2021 appeal.

Johnson is representing about 350 people affected by the dam failures and said he is working with attorneys who, in total, represent about 2,000. One of Johnson's clients' homes was swept off its foundation when the Edenville dam failed.

"They lost literally everything," Johnson said of the client and his family. "Every personal item, every photograph, all their clothes, everything."

That family hasn't been compensated by insurance and likely won't receive much from a suit against dam owner Boyce Hydro because of its bankruptcy, he said. Johnson's clients also have filed a suit against the Federal Energy Regulatory Commission, which also regulated the dams.

"These people have gotten nothing," Johnson said. "No insurance, nothing."

Johnson said governmental immunity protections are blocking his clients from being made whole after the dam failures damaged their property. He described the case as "yet another horrible example of how governmental immunity has got to be abolished, repealed, thrown out.

"We're putting the government above the normal rights of its people and it's therefore virtually impossible to hold them responsible for their screwups when they hurt people," he said.

An independent forensic team hired by FERC to investigate the causes of the dam failures described them as "foreseeable and preventable" in a report issued last year. The team did not blame a specific person or organization for the failures.

Instead, it said poor construction practices created unstable soil conditions that were a root cause of the failure at Edenville Dam, which then caused the Sanford Dam downstream to fail, and it criticized the dams' maintenance, oversight and construction as well as the financial and regulatory systems involved in dam building, operation and oversight.