GAYLORD -- A state appeals court upheld an injunction against an oil contamination cleanup project that opponents said would damage the Au Sable River watershed, but overturned a portion of a local judge's nearly 2-year-old ruling.
Appellate judges reversed 46th Circuit Court Judge Dennis Murphy's ruling that a state easement granted to Merit Energy did not convey riparian rights at Kolke Creek near Gaylord. They also reversed Murphy's decision not to dismiss the Michigan Department of Environmental Quality from a suit.
The case involves years of contamination at a site in Otsego County's Hayes Township, where Merit Energy proposed to remove petrochemicals from the groundwater, then pump the treated water to the edge of Kolke Creek and discharge it into the stream.
The creek is part of the headwaters to the venerated Au Sable River, one of Michigan's best-known trout streams.
Merit proposed to discharge 1.15 million gallons per day of treated water into the creek over several years.
Nonprofit conservation group Anglers of the Au Sable sued the company and DEQ to halt the project, in conjunction with local riparian property owners. They argued the treated water would be detrimental to the stream's sensitive ecosystem, among other issues.
Now that the DEQ is removed from the case, that means Merit alone must reimburse the plaintiffs for their legal fees.
DEQ spokesman Robert McCann could not be reached for comment. Nor could Lansing attorney Charles Barbieri, who represents Merit.
"We're pleased the Court of Appeals upheld the majority of the Circuit Court opinion," said Gaylord attorney Susan Hlywa Topp, who represents the riparian property owners.
Her clients have not decided whether to appeal the appeals court's partial reversal, Topp said.
Rusty Gates, president of Anglers of the Au Sable, viewed the decision to uphold the injunction as another victory.
"We're smiling and grinning. They never should have tried to put that water in the creek in the first place," Gates said.
Traverse City attorney Jim Olson, who represents the anglers group, agreed.
"It's a victory for the headwaters of the Au Sable River, Kolke Creek and Lynn Lake. Also for the citizens of Michigan," he said.
Olson hopes this decision marks the end of the case, he said.
Court of Appeals Judges Christopher Murray, Jane Markey and Kurtis Wilder reviewed the case.
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