Judge rules against road commission on CR 595




For The Daily News

MARQUETTE – The Marquette County Road Commission this week requested a federal judge reconsider his recent decision to dismiss its case against the Environmental Protection Agency over the agency’s objection to the construction of Marquette County Road 595.

Judge Robert Holmes Bell issued an opinion May 18 dismissing the case on the grounds that the road commission failed to state a claim against the EPA.

Jim Iwanicki, road commission engineer manager, said the commission submitted the request following the May 31 U.S. Supreme Court ruling on the U.S. Army Corps of Engineers vs. Hawkes Company case.

“We believe (the ruling) is very much on point with the same issues we had, and would like the judge to consider that Supreme Court case as part of the reconsideration,” Iwanicki said.

The Supreme Court upheld an appeals-court decision allowing Minnesota-based Hawkes Co. to challenge an Army Corps determination that its peat-mining operation was subject to regulation under the Clean Water Act, citing its proximity to the Red River more than 100 miles away.

Through its jurisdictional determination, the Corps determined Hawkes property contained “waters of the U.S.,” defining it as wetlands, which would be under the Corps regulatory authority. When Hawkes tried to challenge the determination in Federal District Court under the Administrative Procedure Act, the court dismissed for want of jurisdiction, holding that the revised determination was not “final agency action for which there is no other adequate remedy in court.”

The Corps contended Hawkes had to finish the lengthy and expensive permitting process or proceed without permitting – risking government enforcement action – before it could challenge the determination.

The court ruled unanimously that the jurisdictional determination is a “final agency action” subject to review in court immediately.

Iwanicki said he believes the new case law established by the Supreme Court could benefit the road commission”s lawsuit.

“From our position, it was worth asking a judge to reconsider,” Iwanicki said. “When he first ruled, the Hawkes case … decision hadn’t been given by the Supreme Court and now there has been a decision.”

The road commission in January 2015 unanimously voted to sue the EPA for the agency’s denial to remove its objections to the project, which it refused to do in January 2013, citing concerns with wetlands destruction and replacement. The lawsuit was filed in July 2015.

The road commission first applied in October 2011 for a permit to build CR 595 with the Michigan Department of Environmental Quality. There were several revised applications in the following months that included revised wetlands mitigation plans.

Stating the commission didn’t demonstrate that the road was the “least environmentally damaging” alternative, the EPA’s April 2012 objection prevented the DEQ from issuing a permit for the project.

In December 2012, the EPA notified the DEQ it would withdraw some objections, but maintained its opposition to issuing the permit because it believed the road commission had not provided adequate plans to minimize environmental impacts.

The road commission intended to fill 25 acres of wetlands to construct a roughly 21-mile road that would run north and south, connecting County Road AAA in Michigamme Township with U.S. 41 in Humboldt Township.

The road would act as a haul route for trucks coming to and from the Eagle Mine in Michigamme Township and the Humboldt Mill in Humboldt Township.

To replace the wetlands, the road commission had offered 647 wetland acres adjacent to the McCormick Tract wilderness area.

Under a section of the Clean Water Act, the DEQ in 2013 acknowledged the authority of the U.S. Army Corps of Engineers to process the road commission’s permit application without being bound by the EPA’s objections, according to Bell’s opinion.

The Corps stated the road commission would not be issued a permit based on the latter’s previous submission to the DEQ, and that the commission would need to submit a new request directly to the Corps, which the road commission hasn’t done, stating previously it believed the attempt would be “futile.”

The road commission then sued the EPA, stating the agency’s objections were “arbitrary and capricious” and that it exceeded its authority by issuing objections based on requirements not mandated by the Clean Water Act.

The road commission also said the EPA failed to identify specific conditions that would allow the permit to be issued, and that the EPA didn’t follow procedural public hearing requirements of the Clean Water Act. It also said the Corps improperly denied its permit application by failing to act on it.

The proposed route is much shorter than the one currently used as a haul route by the Eagle Mine, although Iwanicki said there is no funding in place to build the road, which is estimated at $80 million to $120 million.

Outlined in a contract between the road commission and Eagle Mine, Iwanicki said the mine agreed to either upgrade the existing road system or build an alternate route.

“When the EPA decided to turn down the project, we decided to move ahead with the agreement for the Eagle Mine to upgrade our current road system,” Iwanicki said.

Eagle Mine paid $44 million to upgrade the route in 2014 and 2015, which goes east from the mine along County Road AAA to County Road 510, then south on County Road 550 into the city of Marquette. It then follows Sugar Loaf Avenue and Wright Street, eventually heading west on U.S. 41 through Negaunee and Ishpeming to M-95, and then to County Road 601 to the mill.

The mine had a separate deal with the city of Marquette to update the portion of the route that runs through the city, he said.

Despite lack of funding, Iwanicki said: “The Marquette County Road Commission believes the best, safest, most economical transportation routes in Marquette County would include County Road 595, and the ability to build 595 is still important.”

In his May opinion, Bell favored the EPA’s argument and concluded that the EPA actually did provide detailed conditions with regard to wetlands mitigation that must be met for it to remove its objections, and that the EPA didn’t violate its authority when objecting to the permit request.

Bell said the Corps was also not legally required to act on the application that the road commission filed with the DEQ, and that the court can compel an agency to take action on such an item, but doesn’t have authority to order the Corps to issue the permit.