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Homeowners can’t hold Michigan counties liable for dam collapse

The Sixth Circuit upheld the dismissal of constitutional claims against two counties and ruled they had no authority over the Edenville Dam prior to its 2020 collapse.

CINCINNATI (CN) — Less than a week after a class of homeowners argued to reinstate Fifth Amendment unlawful takings claims for property damage sustained in the 2020 Edenville Dam collapse, a Sixth Circuit panel upheld a federal judge's dismissal of the lawsuit.

The panel, headed by Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, succinctly rejected all of the homeowners' arguments in a seven-page opinion and determined the counties could not be held responsible for any unlawful taking.

Built in 1924 along the Tittabawassee River, the Edenville Dam's recent history is littered with instances of the owners' failure to comply with federal operating guidelines and issues with the structure's spillways.

Torrential rains soaked the area around the dam in May 2020 and increased the water of its lake to a dangerous level that ultimately led to a collapse and flooding.

Eight homeowners whose property was damaged by the flood sued the Michigan Department of Environment and Midland and Gladwin counties later the same year, but a federal magistrate judge dismissed the suit.

The judge determined the homeowners could not state a plausible takings claim under the Fifth Amendment because there was no evidence to indicate the counties intended to cause the collapse and ensuing flood.

The Sixth Circuit heard the case a week ago. The homeowners' theorized the counties' insistence to maintain historic lake levels allowed for the collapse after the rainstorm, although investigations into the collapse later revealed the primary cause was static liquefaction in the underlying soil.

Regardless of the underlying causes, the panel concluded the counties' request to maintain historic water levels cannot be used to present a takings claim.

"All that the counties' petition before the state court did was preserve the lake depth at the same level that had existed for roughly a century," Sutton said in the opinion. "Wise or not, that action does not show that they meant to flood the downstream properties."

He cited the 1924 U.S. Supreme Court case Sanguinetti v. United States, which dealt with the construction of a canal with inadequate spillways that intermittently flooded adjacent properties, and emphasized the court found no taking in that scenario.

"Today's facts are even easier to deal with," he wrote. "The counties played no part in regulating or controlling the dam's infrastructure. All they did was petition to keep the water levels behind the dam at the same level that had existed since the dam's creation and that the property owners around the dam had become accustomed to."

Sutton also reiterated the primary cause of the collapse was static liquefaction, a "threat" not detected a single time throughout the dam's 100-year history.

The homeowners argued the counties' refusal to lower lake levels despite knowing of issues with the dam's spillways "set into motion the destructive forces" that caused the collapse, but the circuit court rejected their contention.

"One, even if lowering the water level might have lowered the risk of flooding, the failure to do so does not show intentional flooding. Recall Sanguinetti. As in that case, the counties might have taken a more cautious approach to flood prevention while setting the water levels. And as in that case, the failure to take this approach at most rises to the level of a negligence tort, not an intentional taking of downstream properties.

"Two, static liquefaction, not inadequate spillways, caused the failure, as the federal agency's independent forensic team found and as the plaintiffs have not contradicted. All perspectives considered, no federal taking occurred," Sutton said.

Senior U.S. Circuit Judge David McKeague, another George W. Bush appointee, and U.S. Circuit Judge John Bush, a Trump appointee, also sat on the panel.

Neither party immediately responded to a request for comment.

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Categories / Appeals, Environment, Government

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