OLC Files Federal Suit Against Lake Level 'Easing Directives' as Unconstitutional
For Immediate Release | Jul 28, 2024
https://olcplc.com/public/media?1722183241

Outside Legal Counsel has filed a federal lawsuit on behalf of three Roscommon County property owners challenging the constitutionality of recently enacted Public Act 112, a new state law described as
"easing" Michigan inland lake level management obligations, including those on Higgins Lake.
For nearly 100 years, Michigan law has placed strict legal responsibilities on county governments to faithfully maintain the water levels of lakes throughout Michigan. In 2022, the Michigan Court of Appeals
ruled in favor of OLC's clients which held that a normal inland lake level must be maintained at the court-order levels and Roscommon County has long illegally ignored those obligations regarding the 10,000-acre Higgins Lake.
Each year, Roscommon County allowed nearly two billion gallons of water to leave the lake thereby needlessly lowering the already low south side to levels where boats are damaged and previously-purchased private docks cannot be used.
Roscommon County argued it could ignore this law, but the Court of Appeals found there was "
no legal authority to support its claim that it was not bound to strictly follow the dictates of the court order." The Michigan Supreme Court later
refused to take up the case as requested by Roscommon County and its allies including the Michigan Association of Counties and the Michigan Association of County Drain Commissioners.
But the Court of Appeals provided a clear path forward -- if a county in charge of a lake cannot adhere to the court-ordered legal levels, it must raise any such issue in a proper legal proceeding to alter the court order. Such a process would provide a fair and open process to air all concerns about what the level should become.
But Roscommon County refuses to undertake the process.
Instead of heeding the Court of Appeals' advice, Roscommon County, and others, misled the Michigan Legislature into passing an amendment that attempts to back-door changes to already established lake levels and take away what is known under federal law as a "legitimate claim of entitlement to a protected interest." In other words, riparians on Higgins Lake have the right to continue to require counties to adhere to already-enacted lake level orders unless and until appropriate due process is first provided to change that level. A legislature cannot, at the behest of unfaithful counties, change that protected property right without giving due process.
"Using legislators and party-line legislation to try to change Michigan property law violates the US Constitution," states OLC attorney Philip L. Ellison. The federal lawsuit is asking a federal court to invalidate the gamesmanship tried by disobedient counties and their Lansing partners.
The lawsuit, filed July 28, 2024, has been assigned to Judge Thomas L. Ludington, the same judge who has been assigned to various lake cases involving Sanford Lake and its failed dam.
Download Complaint
No hearing has been set.
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Philip L. Ellison is a litigator and expert on property rights, civil rights, and litigation. His work on lake, riparian, and property rights cases has altered and changed Michigan law. Find out more at his profile at www.olcplc.com/public/profile.
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