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Latest Filings in our Fight Against Graymont

20 Jul

We recently filed two “briefs” in federal court in our fight against Graymont.  The texts are linked below.  One is our response to the state related to our request for Class Action status.  The other is the text of our Motion for Summary Judgment, seeking a Permanent Injunction against the transfer of over 11,000 acres of Ceded Territory, which we contend will violate our “usual privileges of occupancy” rights guaranteed to us in the 1836 Treaty of Washington, which were “fairly, equitably, fully, finally, and conclusively resolved” by the 2007 Inland Consent Decree.  Links to the Treaty and the Consent Decree can be found on this website.

All of the State’s filings, and those of the Grand Traverse Bands, and Graymont, as well, challenge our “standing” to bring this suit.  Our responses lay this to rest.  We cite the recent Supreme Court’s “Marriage Equality” case in support of our “standing” under the 14th Amendment Due Process and Equal Protection clauses.



More Graymont Filings

23 Apr

I’m not going to post everything here, today, but things are heating up –proof that we have their attention.  “Their” in this case is both the State and Graymont, who has decided to file an action claiming the judge should throw out our suit because we “failed to state a claim upon which relief can be granted.”  The state filed a similar suit, and we answered it today (April 23rd).

The state also filed another document claiming they didn’t have to meet the court-ordered 21-day deadline.  They argued that the court is essentially wrong –they claim they had 28 days.  What is at stake in this argument is the requirement that the Court grant our “relief” –the imposition of a temporary injunction.  As I read the law, the state can certainly argue against the injunction, but only after it’s imposed as a result of their failure to respond to our original motion, as was claimed in the other of today’s filings.

One of the motions I filed today contained a “request for relief” that the temporary injunction required under the Default statute be “upgraded” to permanent.  

Our Hearing is set for the 29th in Kalamazoo –3:00 in the federal court, there.  Stay tuned ……..

Motion for Default Judgment Filed in Graymont Suit

22 Apr

On April 21st, 2105, we filed a Motion for Default Judgment.  The Court Rules require the defendant to file a response to our original Complaint within 21 days of being served with that Complaint;  the 21-day clock stopped ticking on the 16th of April.  

According to the Rules, at least as I read them, the judge has no discretion in this matter –the language that appears on the Summons is unequivocal:  “If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.”  The “relief demanded,” of course, is the issuance of a preliminary injunction barred the transfer of land to Graymont (the transfer of any “1836 Ceded Territory” to any entity will also be enjoined).

Click on the Graymont Injunction link, above, for the details.

Graymont Injunction Hearing Set for April 29

17 Apr

LATEST NEWS –Judge sets hearing date on Graymont Injunction

Despite media reports, this case is far from over.  The judge did dismiss our 2nd request for a Temporary Restraining Order, but he did order a Hearing, now set for Wednesday, April 29, 2015, at 3:00 p.m., 174 Federal Building, 410 W. Michigan Ave., Kalamazoo, MI 49007.

The Order contains this language: “Also, there is no indication that the mine will irreversibly alter the land before the lawsuit progresses; the transfer of title alone is not irreparable harm because the Court could reverse the sale.”

Graymont-Hearing Order

Refiled Motion for Temporary Restraining Order, April 13, 2015

13 Apr

As you can see in the documents linked on the “Graymont Injunction” page (above), our original TRO was denied due to procedural deficiencies. Those were corrected, and we re-filed the Motion today.  The two TRO Motions are nearly identical, so the second is not posted here –we added a “Verification” page.  When we get the ruling from the Judge, we’ll post everything here (maybe as soon as tomorrow).

Second Appeal filed in Fracking-Water suit

10 Apr

Go to the “Fracking-Water Injunction” page, scroll down, and read about our second Appeal in this increasingly complex and bizarre case.  The Appeal is of a Tribal Court Order that granted the State’s Motion to Dismiss.  We were never given the opportunity to Answer that Motion, despite the Appellate Court assuring us that we would have an opportunity to challenge the State’s Motion, and, oddly, the Tribal Court conducted no Hearing on the Motion, despite the State’s “Oral Argument Requested” “Notice of Motion.”

Batchewana Case Has Lessons for our Graymont Suit

29 Mar

An Editorial from the Sault Star –Gargantua Harbor Decision was Right– the judge ruled that the passage of time does not erode Treaty Rights.


23 Mar

In addition to the Resolution from CORA opposing the Graymont land-transfer, I think this document is important for what it says about the state’s “consultations” with Tribes that the DNR continually alludes to.  

The Natural Resources Commission memo, dated March 9 and linked below, says this (under “Engagement”): “Sovereign tribal governments have submitted letters of opposition to the sale or exchange of land proposed in earlier versions of this LTA [Land Transfer Agreements].”  Later in the memo, under the same heading, the NRC says this: “Consultation with sovereign governments of federally recognized tribes concerning the third version of the LTA occurred on January 28, 2015. Discussion topics ranged from technical aspects of the proposal to, most importantly, the impact of the LTA on the exercise of treaty rights in the 1836 Treaty area.”

For more details, click on the “Graymont Injunction” link.


13 Dec

Well, we had our “scheduling hearing” on our “fracking-water” Appeal in the LTBB Court, today.  Here’s the short version –the Appellate Court sent the case back to the Lower Court, essentially (as I understand it), because the Lower Court issued its ruling without holding any sort of a hearing, depriving the state of its opportunity to present it’s case (that the LTBB Courts lack “personal jurisdiction” over the defendants), and, consequently, depriving the Appellate Court of sufficient “evidence” to make a ruling on the Appeal.  So, the case has been sent back to the Lower Court.  So, what we have is the Lower Court saying –we don’t want to hear this case– and the Appeal Court saying –we don’t want to hear this Appeal (at least, not yet),  Stay tuned (this phase will take months, most likely).

Once we have some documents to post, we’ll do so on the “Injunction” page …. stay tuned.

Water Withdrawals, Consumptive Use, Removals, and Diversions –“Fracking Water” Lawsuit

9 Dec


 Given that the success of our “Fracking Water” lawsuit hinges on the definition of “diversion” versus “consumptive use,” I thought it would be useful to explore the legal/policy use of these, and related, terms. Here’s what I came up with: 


Excerpts from the


Final Report to the Governments of Canada and the United States,
Submitted to governments by the International Joint Commission on February 22nd, 2000.
Emphasis added throughout. To be used as an Exhibit in’s “Fracking Water” lawsuit.

Section 10 – ConclusionsThe Great Lakes Basin Ecosystem

4. System Stress. Removals of water from the Great Lakes Basin reduce the resilience of the system and its capacity to cope with future, unpredictable stresses. On an average annual basis, less than 1 percent of the water in the Great Lakes system—approximately 613 billion liters per day (162 billion gallons per day)—is renewable. Any water taken from the system has to be replaced in order to restore the system’s lost resilience. It is not possible at this time to identify with any confidence all the adverse consequences of water removals so that these consequences could be mitigated. The precautionary approach dictates that removals should not be authorized unless it can be shown, with confidence, that they will not adversely affect the integrity of the Great Lakes Basin ecosystem.

14. Groundwater. There is uncertainty and a lack of adequate data about groundwater and use of groundwater in the Basin. Data on withdrawals vary in quality, while data on consumption are extremely limited. It is estimated that about 5 percent of all withdrawals in the Basin are from groundwater. Current estimates of consumption of groundwater do not indicate that this consumption is a major factor with respect to Great Lakes levels. Nevertheless, it is a matter of considerable importance to more than 20 percent of the Basin’s human population and to the large biological community that rely on groundwater and that can be significantly affected by local withdrawals. There is a serious lack of information on groundwater in the Basin, and governments should undertake the necessary research to meet this need. There is clear need for state, provincial, and local government attention to the monitoring and regulation of groundwater withdrawals and protection of groundwater recharge areas.

Great Lakes Basin Laws and Policies 

16. Cooperative Efforts. The Great Lakes Basin extends across the boundary between Canada and the United States and the borders of eight states and of the provinces of Ontario and Quebec. None of these governments alone can regulate water in the entire Basin. The Great Lakes are an integrated hydrologic system. When water is removed from the Basin on one side of the international boundary by either consumptive use or removals, the amount of water that is available on both sides is reduced. Measures to protect and conserve the waters of the Great Lakes ecosystem must therefore be directed at the Basin as a whole in order to be effective. This requires cooperation and coordination among the governments with responsibilities in the Basin.

Principles (this section is quoted in its entirety)

24. To ensure the protection and conservation of the waters of the Great Lakes, the Commission concludes that the following principles should guide their management:

Integrity of the Ecosystem: The Great Lakes Basin is an integrated and fragile ecosystem. Its surface and groundwater resources are part of a single hydrologic system and should be dealt with as a unified whole in ways that take into account water quantity, water quality, and ecosystem integrity.

The Precautionary Approach: Because there is uncertainty about the availability of Great Lakes water in the future—in the light of previous variations in climatic conditions as well as potential climate change, uncertainty about the demands that may be placed on that water, uncertainty about the reliability of existing data, and uncertainty about the extent to which removals and consumptive use harm, perhaps irreparably, the integrity of the Basin ecosystem—caution should be used in managing water to protect the resource for the future. There should be a bias in favor of retaining water in the system and using it more efficiently and effectively.

Sustainability: Water and related resources of the Basin should be used and managed to meet present needs, while not foreclosing options for future generations to meet their cultural, economic, environmental, and social needs.

Water Conservation: There should be an obligation to apply the best conservation and demand-management practices to reduce water use and consumptive losses and thus retain water in the Basin.

Cooperation: Decisions regarding management of water resources must involve cooperation among the two federal governments, the Great Lakes states and provinces, the tribes and Aboriginal Peoples, the municipalities and regions, and the citizenry on both sides of the boundary. The processes must be open to involvement and meaningful participation by these governments, the stakeholders, and the public. 

Existing Institutions: Existing institutions, processes, and legal instruments—including the Boundary Waters Treaty, the International Joint Commission, the Great Lakes Charter, the U.S. Water Resources Development Act, the Ontario Water Taking and Transfer Regulation, and the Great Lakes Commission—have provided vehicles to deal with water use issues. It is important to retain these strengths in any new process. Moreover, it is important to continue to respect existing international agreements and arrangements and the rights of tribes and Aboriginal Peoples.

Measurable Objectives, Sound Science, and Adaptive Management: Water resource goals should, whenever possible, be established as measurable objectives that can be assessed through open, objective, scientific studies that are subject to peer review. Where information is incomplete, particularly with respect to emerging issues of concern, decisions should be based on the precautionary approach and should take into account the best available data, information, and knowledge, including cultural, economic, environmental, and social values.

Fairness: The Great Lakes Basin community is broad, diverse, and interdependent. Culturally and economically, it extends beyond the physical confines of the hydrologic basin. It is important that programs designed to protect the ecological foundation of the Basin community be, and be seen to be, fair to all those who use and contribute to the Basin and are part of the community.

Recommendation I.  Removals.

Without prejudice to the authority of the federal governments of the United States and Canada, the governments of the Great Lakes states and Ontario and Quebec should not permit any proposal for removal of water from the Great Lakes Basin to proceed unless the proponent can demonstrate that the removal would not endanger the integrity of the ecosystem of the Great Lakes Basin and that:

  1. there are no practical alternatives for obtaining the water,
  2. full consideration has been given to the potential cumulative impacts of the proposed removal, taking into account the possibility of similar proposals in the foreseeable future,
  3. effective conservation practices will be implemented in the place to which the water would be sent,
  4. sound planning practices will be applied with respect to the proposed removal, and,
  5. there is no net loss to the area from which the water is taken and, in any event, there is no greater than a 5 percent loss (the average loss of all consumptive uses within the Great Lakes Basin); and the water is returned in a condition that, using the best available technology, protects the quality of [the water] and prevents the introduction of alien invasive species into the waters of the Great Lakes. 

… In implementing this recommendation, states and provinces shall ensure that the quality of all water returned meets the objectives of the Great Lakes Water Quality Agreement.

Recommendation II. Major New or Increased Consumptive Uses

To avoid endangering the integrity of the ecosystem of the Great Lakes Basin, and without prejudice to the authority of the federal governments of the United States and Canada, the governments of the Great Lakes states and Ontario and Quebec should not permit any proposal for major new or increased consumptive use of water from the Great Lakes Basin to proceed unless:

  1. full consideration has been given to the potential cumulative impacts of the proposed new or increased major consumptive use, taking into account the possibility of similar proposals in the foreseeable future,
  2. effective conservation practices will be implemented in the requesting area, and,
  3. sound planning practices will be applied with respect to the proposed consumptive use.

In implementing this recommendation, states and provinces shall ensure that the quality of all water returned [to the Basin] meets the objectives of the Great Lakes Water Quality Agreement.



Taken from –