CINCINNATI (CN) — A panel of appeals court judges will decide whether to reinstate takings claims brought by homeowners who claim two Michigan counties knew about spillway deficiencies that contributed to the 2020 Edenville Dam collapse.
Joe Bruneau and seven other property owners that year sued Midland and Gladwin Counties, alongside several state agencies, in a federal class action and sought damages for what they considered an unlawful taking of their property.
After the state agencies were dismissed, a magistrate judge recommended judgment in favor of the counties and determined there was no evidence to indicate the counties intended to cause flooding or took any action for the benefit of the public that led to the dam collapse.
The property owners appealed to the Sixth Circuit but attorney Daniel Pifko of the Auburn Hills firm McAlpine PC faced an uphill battle during his argument on Thursday.
Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, asked the attorney multiple times about how the counties' actions — including keeping the lake at the same level it had remained for decades prior — could be considered a taking.
"If they are just negligent, how could it be a taking?" he asked. "What is the causation if they are just doing the same thing as everyone else?"
"Evidence shows the counties exerted significant control over the dam; they did have the authority to set the lake levels," Pifko said.
"All this sounds like negligence," Sutton responded.
U.S. Circuit Judge John Bush, an appointee of Donald Trump, echoed Sutton's sentiments.
"What evidence do you have of intent?" Bush asked. "Is there intent to achieve some public benefit?"
"The counties chose to protect the value of properties and the environments around the dam," Pifko said. "There was an express public purpose when they filed the petition to set the lake levels."
The attorney's comments mirrored the arguments in his brief to the appeals court, which criticized the counties for their refusal to fix the dam's spillway capacity.
"Appellees' decision to obtain a lake level order that maintained dangerously high lake levels and postponed increasing the dam's inadequate spillway capacity until 2023 directly led to the flooding that destroyed appellants' property," the brief said.
Attorney Douglas Curlew of the Livonia, Michigan firm Cummings, McClorey, Davis, and Acho PLC argued on behalf of the counties Thursday and disputed the cause of the dam's failure.
Curlew said static liquefaction — a loss of strength in loose soil when it is unable to drain — was the primary force behind the Edenville Dam collapse.
"There was an inherent defect in the dam that was never discovered," he told the panel. "Lake level is a red herring because that wasn't the cause. Static liquefaction was never on anyone's radar."
The attorney disagreed with his opposing counsel about the counties' authority to set lake levels and said state agencies exerted pressure on his clients to "maintain the status quo that had existed for a century."
"They have to prove an abuse of government power. This is not an abuse of government power. This was the status quo the regulating agencies said should be in effect; it was not aimed at the plaintiffs' properties," Curlew told the panel.
"The counties never had the authority or the power to be responsible for a taking in this case," he said.
The counties' brief rebutted the homeowners' claims about spillway capacity and, specifically, whether repairs would have prevented the collapse.
"The pre-failure concern ... about the spillways had nothing to do with the latent embankment defect that actually caused the dam to fail. The concern with spillway capacity was to ensure that the impounded water would not 'overtop' the dam," the counties wrote. "The spillways proved adequate to this purpose. The water did not overtop the embankment."
Pifko conceded in his rebuttal that state agencies "provided input" on the lake levels but emphasized it did not "absolve" the counties of liability.
"Lake levels were a contributing factor," he reiterated. "They had reached a level three feet higher than any other time in history."
"Wasn't that three feet caused by the torrential rain?" asked Senior U.S. Circuit Judge David McKeague, a George W. Bush appointee.
Pifko said the rain was part of the problem, but that lowering the lake levels prior to the storms might have prevented the collapse.
"That goes back to sounding like negligence," Sutton said.
"The counties knew the risks and prioritized public concerns over the safety concerns," the attorney concluded.
No timetable has been set for the court's decision.
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