By ERIC FREEDMAN
Capital News Service
LANSING — A nonprofit environmental group had the right to deny a canoeist access to its shoreline property to test for contamination in Grand River sediments near Jackson, the Court of Appeals has ruled.
The three-judge panel unanimously rejected arguments by Peter Bormuth of Jackson that the Grand River Environmental Action Team — known as GREAT — had breached a fiduciary duty, meaning a duty of trust, with him.
The Grand River, Michigan’s longest, flows westward for about 260 miles from its headwaters in Jackson County, through Lansing and Grand Rapids, before emptying into Lake Michigan at Grand Haven. Fifteen counties are in its watershed, including Ottawa, Montcalm, Mecosta and Kent.
In March 2013, the state transferred the six-acre parcel in Blackman Township to GREAT, which intends to build a public boat launch there, according to court filings. The property is downriver from the city of Jackson’s wastewater treatment plant.
In GREAT’s master plan for the site, the organization said it will provide “public river access to launch non-motorized boats,” as well as public access trails with signs about wildlife, plants and the river’s history. The master plan also includes a building to store boats and trailers and “rechannelization to restore part of the river to its original oxbow, creating an island.”
There were concerns about that stretch of the river in the late 1980s and early 1990s, when the wastewater treatment plant was treating cooling water discharged from the city’s trash incinerator. Sampling in about 1990 found “very low levels of dioxin,” and that led to improvements at the incinerator that eliminated the problem, said Jeff Surfus, a Department of Environmental Quality environmental quality analyst based in Jackson.
Surfus said sampling from 1990 through 1993 found no dioxin levels “of significance.”
In addition, a month-long study of channel catfish placed in cages upstream and downstream of the wastewater treatment plant in 1990 included testing of tissue and, “the tissue samples of upstream fish and downstream fish were basically the same,” he said.
“We reviewed the data in early 1993 and came to the conclusion that the issue was resolved and state monitoring was no longer required,” Surfus said.
In September 2013, Bormuth — a self-described “avid canoeist” — asked GREAT for permission to enter its property to test sediment samples for dioxin and other hazardous chemicals. In court papers, he said he made the request because he suffered a chloracne rash after pushing his canoe over a partly submerged log offshore from the site.
“Dioxins are nasty,” he said in an interview, adding that if the tests proved positive, he intended to ask the Environmental Protection Agency to do more comprehensive testing.
He said he would pay for the tests himself.
A map in the GREAT newsletter shows that the land directly across the river from the site is owned by the Department of Corrections, and Bormuth said the department also denied him access for security reasons.
GREAT’s board of directors turned down his request for access, triggering the lawsuit.
Bormuth, who represents himself in the litigation, contends that GREAT treasurer Jack Ripstra, who voted to deny him access, had a conflict of interest and conflict of loyalty because Ripstra is also the township engineer.
Bormuth contended in court papers that Ripstra opposed the proposed testing “because he was protecting Blackman Township from a possible lawsuit, not to advance the mission of GREAT.” That mission, according to the organization’s incorporation papers, is “to preserve, protect and promote the Grand River in Jackson County.”
The Court of Appeals sided with GREAT, saying Bormuth doesn’t have legal standing to bring the suit because the directors owe their fiduciary duty to the organization, not to individuals like him.
GREAT’s lawyer, Daniel Waslawski of Southfield, said he wasn’t authorized to discuss the case.
In a brief statement, Waslawski said the organization is pleased by the court’s conclusion that the lawsuit “lacks merit” and said, “GREAT remains committed to conserving the Grand River as it runs through Jackson County.”
Bormuth said he won’t ask the state Supreme Court to review the case.
ADDITIONAL RESOURCES FOR CNS EDITORS
Court of Appeals decision: http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20151022_C321865_37_321865.OPN.PDF
Grand River Environmental Action Team: http://www.great-mi.org/
By ERIC FREEDMAN