April 14, 2023
The state of Michigan told an appeals panel Wednesday that it can’t be on the hook for property damage caused by the 2020 Edenville Dam failure, arguing that property owners are using a ploy to try to get around government immunity because the dam’s private owner went bankrupt.
Nathan Gambill, an assistant attorney general representing the state, said a group of neighbors in consolidated cases are trying to bypass the state’s immunity by labeling their tort claims as inverse condemnations ones. But the state of Michigan cannot be at fault for the damage from the dam break because it did not own or take control of the dam, he said.
That the state government issued permits to the dam does not mean the government controlled it, Gambill told the Court of Appeals panel.
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The lawsuits against state departments – including the Department of Environment, Great Lakes and Energy and the Department of Natural Resources – came after the Edenville Dam at the confluence of the Tittabawassee and Tobacco rivers failed during a rainstorm on May 19, 2020, releasing its impounded water.
The downstream property owners sued the state departments, saying that it was the state’s decision to raise and lower the water levels, and that the flood damage to their properties due to those decisions led to the dam’s failure. Others whose property was not downstream also sued, saying their property values had decreased because they no longer had a lake in front of their property.
The Court of Claims consolidated those 25 cases and denied the state’s dispositive motions to dismiss the complaints, saying the state is not immune from inverse condemnation claims. The state appealed, saying the Court of Claims should have held an evidentiary hearing to review evidence to determine if it had governmental immunity.
The neighbors cannot pursue compensation under Michigan’s Takings Clause because it isn’t enough to say the state caused the damage, Gambill said Wednesday. Rather, to succeed in a takings clause claim, the neighbors would need to show the state took control of their private property and put it to public use, he said.
Attorneys for the property owners said that the state had significant operational control of the dam, and that the neighbors have a right to bring these constitutional claims.
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The citizens are represented by Denenberg Tuffley PLLC, Johnson Law PLC, Pitt McGehee Palmer Bonanni & Rivers PC, The Miller Law Firm PC, Cohen Milstein Sellers & Toll, Giroux Trial Attorneys PC, Gruel Mills Nims & Pylman PLLC, the Rasor Law Firm PLLC, the Buckfire Law Firm, Fieger Law, Behm & Behm and McAlpine PC.