Municipal — Dam failure

Where (1) heavy rains prompted the Edenville Dam in Michigan to fail and (2) plaintiff landowners sued Midland and Gladwin Counties, an award of summary judgment in favor of the two counties should be upheld because no taking occurred.

“Heavy rains prompted the Edenville Dam in Michigan to fail, flooding several cities downstream. Eight affected landowners sued Midland and Gladwin Counties, alleging a taking under the federal and state constitutions. The district court granted summary judgment to the counties. We affirm.

“At stake is whether the counties’ efforts to maintain existing water levels behind the Edenville Dam amounted to a taking under the federal or state constitutions.

“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.

“Michigan permits its citizens to bring inverse condemnation claims a cause of action available to property owners when a government action decreases their private property’s value to remedy a potential taking.

“The landowners do not meet the first imperative of this claim: causation. Static liquefaction, not spillovers, caused the dam’s collapse. Poor construction in the 1920’s produced soil fragility, which is atypical of most hydropower projects. Yes, the counties concede that the heavy rains became the straw that broke the camel’s back. But, of course, the counties did not cause the heavy rains either. The two causes of the collapse heavy rains and static liquefaction had nothing to do with the counties’ decision to seek permission from the state court to keep the lake levels where they had been for 90 plus years.

“Here, at the summary judgment stage, no material dispute remained after considerable discovery about the cause of the dam’s collapse from static liquefaction, not poorly designed spillways.”

Bruneau v. Michigan Dep't of Env’t, Great Lakes, & Energy; MiLW 01-108115, 7 pages; U.S. Court of Appeals for the Sixth Circuit; Sutton, J., joined by McKeague, J., Bush, J.; on appeal from the U.S. District Court for the Eastern District of Michigan at Bay City; Daniel J. Pifko for appellants; Douglas J. Curlew for appellees.

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