Last week the Michigan Court of Appeals granted our motion to expedite the briefing schedule in connection with Heron Cove Association’s (HCA) Claim of Appeal. Under the Michigan appellate court rules, HCA must submit its appellate brief by September 5. FLTF will only have 14 days to file our response brief (which would have been 21 days if we hadn’t filed the motion to expedite). HCA will then have an opportunity to file a reply to our response, but that must be filed within seven days after we file our response brief.
Construction Suspension Based on this timing, there will not be a resolution to the appeal by the end of September. Consequently, we will suspend work on the three remaining dams under construction:
FLTF Continues to Push Forward HCA has used every legal opportunity to delay the process required to restore the lakes, and their legal actions have and will continue to delay dam safety upgrades and environmental mitigation, as well as increase costs to property owners. To date, HCA has presented no feasible alternative, and one can only assume HCA intends to completely stop the project which if successful, will result in the loss of hundreds of millions of dollars in property values. Hopefully, HCA’s appeal and their lawsuits currently pending in federal court, will be resolved before the end of the year so FLTF can move forward with financing the final phase of construction in early 2025. Even so, this delay will add an estimated cost of $10 to $20 million to the project. This year's construction work was impacted and will push back the restoration of the lakes. If we are not able to start early in 2025, another year would likely be added to the table below. We understand the frustration of all those in the community with these delays. If construction cannot start in the spring then FLTF has the funds to maintain operations and manage all matters through 2025 until construction can begin. The FLTF Board appreciates the continued support of the lakes' restoration. Dave Kepler FLTF Files Motion to Dismiss and Opposition Under Michigan law, a litigant has the right to request a higher court to review errors of a lower court. On July 11, 2024, Heron Cove Association (HCA) filed a request asking the Michigan Court of Appeals to review Judge Beale’s decision. HCA filed both a "Claim of Appeal" and an "Application for Leave to Appeal" in the Michigan Court of Appeals. A “Claim of Appeal” asserts an appellant has the right to have the Court of Appeals review the decision of a lower court (“right to an appeal”). In such case, the Court of Appeals must hear the case. Below is a summarized timeline of the legal proceedings following Midland and Gladwin counties' February 6, 2024, approval of the 2025-2029 Operations and Maintenance and Capital assessment rolls and computation of costs.
Following Heron Cove Association’s (HCA) motion seeking to recuse Federal District Court Judge Thomas L. Ludington from hearing the two lawsuits currently pending in the federal district court (against Midland and Gladwin Counties and FLTF), Judge Ludington recused himself. Both lawsuits were reassigned to Federal District Court Judge Matthew F. Leitman. You can read Judge Ludington’s opinions and orders in both matters by clicking the link or the button below. At this time, the Counties’ and FLTF’s motions to dismiss and expedite consideration of the motions remain pending and HCA has not yet responded.
Under Michigan law, a litigant has the right to request a higher court to review errors of a lower court. The Heron Cove Association (HCA) filed a request asking the Michigan Court of Appeals to review Judge Beale’s decision. Such an appeal was expected, however, we maintain that Judge Beale got it right, and there were no errors that would warrant a reversal of his decision. We are reviewing HCA’s appeal and will file our response.
On June 20, 2024, Judge Beale dismissed the Heron Cove Association’s (HCA) “claim of appeal” which affirmed the assessments needed to complete the construction and repairs of the dams, and restore Secord, Smallwood, Wixom and Sanford lakes. While that administrative appeal was underway, HCA also filed two separate lawsuits in Midland and Gladwin circuit courts against the counties and FLTF, seeking to further derail efforts to restore the lakes. FLTF maintains that HCA’s lawsuits are the proverbial “second bite at the apple” -- apparently hoping for a better result. Because HCA complaints allege claims under the U.S. Constitution, both lawsuits were removed to the Federal District Court for disposition. Both Four Lakes Task Force and the counties filed motions seeking to dismiss these lawsuits. FLTF also filed a separate motion to expedite the hearing on its motion to dismiss.
This afternoon (June 20th) 42nd Circuit Court Judge Michael Beale issued an opinion and order to confirm Gladwin and Midland counties’ January 6 approved lake level special assessment rolls to restore and maintain the legal lake levels in the Four Lakes Special Assessment District.
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November 2024
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