Tuesday, May 20, 2008

Hancock's Swedetown Creek "issues" include mineral rights

By Michele Bourdieu

Swedetown Creek flows into Portage Lake in mid-April, 2008, as the snow melts. (Photo © 2008 Michele Bourdieu)

HANCOCK -- Whether or not Hancock's Government Lot 5, including the recreation area at the mouth of Swedetown Creek, will become a city park remains undecided. The issue may be discussed at the coming Hancock City Council meeting, to be held at 7:30 p.m. Wednesday, May 21.

One question concerning the City Council is a 1980 agreement between the City of Hancock and Superior Sand and Gravel (Thornton Construction Co., Inc.), which allows the company to remove sand and gravel from part of Government Lot 5.

This photo, taken about 150 yards north of the southeast corner of Government lot 5, looking south along the survey line marking the eastern boundary of Government Lot 5, shows Government Lot 5 to the west (right) and the a gravel pit apparently dug by Superior Land and Gravel on their property to the east (left). Portage Lake is in the background. A survey (note pink survey marker) of Government Lot 5 was taken recently at the request of the City of Hancock. (Photo © 2008 and courtesy John Slivon)

A recent letter from the Michigan Department of Natural Resources (DNR) states, however, that the State of Michigan still owns the mineral rights to Government Lot 5.

At the Apr. 16, 2008, Hancock City Council Meeting local residents again expressed their wish that the Council approve the Swedetown Creek Ad Hoc Committee's recommendation that Government Lot 5 be recognized as a park.

Susan Burack, who spoke to residents who had attended the March 19 meeting of the Council, said those citizens came away from that meeting with "a sense of unreality," an impression that elected officials were not paying attention to voters' input.

"In a democracy," Burack said, "we hope that there's communication between elected officials and constituents. We're trying to get citizens involved in the community, and we hope that you will be responsive to citizens' input and communicate back."

Hancock resident Susan Burack addresses the City Council concerning Government Lot 5 at their Apr. 16, 2008, meeting. Also pictured is Councilman (and Mayor Pro Tem) William Laitila. (Photo © 2008 Michele Bourdieu)

Burack noted the Ad Hoc Committee formed to look at Government Lot 5 did a lot of work, but their efforts seemed to be ignored by the other members of the Council. (They studied the 1941 Deed in which the area was given to the City of Hancock by the State of Michigan for recreational purposes, a 2003 deed, the City Charter and other documents and concluded that legally the area is still a park, although not listed in the City's list of parks.) The committee, made up of Council members Tom Gemignani, Lisa Mc Kenzie and Ted Belej, recommended at the March 19 meeting that the Council vote to make the area a park; however, a tie vote of 3-3 prevented the motion from passing.*

Allyson Jabusch of Hancock commented that she and other citizens feel the purpose for giving Government Lot 5 park status is to protect it from future moves to sell it. Jabusch said she is in favor of keeping just as it is -- in its natural state.

Allyson Jabusch addresses the Hancock City Council during the public comment period of their April 16, 2008, meeting. (Photo © 2008 Michele Bourdieu)

Jabush referred to the fact that the Copper Country Audubon Club has offered $1000 and volunteers to maintain the area near the mouth of the creek, which has potential as a bird sanctuary. She noted that, while she is not an Audubon member, she would be happy to help clean up the area in the summer. She also mentioned a neighbor, born and raised in Hancock, who remembers large numbers of people smelting in the area in the past.

"I was really disappointed in that vote last time," Jabusch said. "I hope that this issue stays in the forefront somehow."

City Manager Glenn Anderson then replied to a question from Jabusch on the results of the tie vote at the March meeting.

"The motion didn't pass so the land remains as is," Anderson said.

Hancock resident Ann Pace asked for a clarification of the meaning of "as is."

During the April 16 meeting of the Hancock City Council, Ann Pace (standing, left) addresses the Council on the status of Swedetown Creek and Government Lot 5. Council members pictured are, from left, William Laitila, Ted Belej, City Manager Glenn Anderson and Mayor Barry Givens. (Photo © 2008 Michele Bourdieu)

Anderson mentioned the City has owned Government Lot 5 since 1941 and added that, like much of City-owned land, it has many uses for a lot of people.

Joe Kaplan, who owns property in Hancock, spoke of "two facts" that he believes the Council needs to recognize in discussing Government Lot 5:

1. The 1941 deed from the State of Michigan giving the City ownership to Government Lot 5 says the land is to be used "solely for the purposes of park and recreation."

2. Section 14.3 of the Hancock City Charter of 1988 states that cemetery and park land cannot be sold without the approval of the voters.

Kaplan noted facts that occurred after the Charter's adoption in 1988, such as the State (Department of Natural Resources) releasing the reverter clause in 2003 or opinions of the Recreation Commission, are not relevant since they occurred after the Charter's adoption in 1988.

Kaplan said he appreciated the fact that the Ad Hoc Committee made the connection between these two facts in their recommendation to confirm the park status of Government Lot 5.

"They've done a great job," Kaplan said.

Kaplan noted also that "park is not synonymous with spending money."

The fact that in 67 years the City has not spent a penny for upkeep or maintenance of this area, he said, is testimony that protecting natural areas does not add a financial burden on the City or the taxpayers.

"Voting to recognize Government Lot 5 as a park means only one thing: that the Hancock City Council respects the citizens of Hancock enough to seek approval by their voters before selling the land for private purposes," Kaplan said. "I don't think it's a lot to ask for the Council to respect the citizens, and the citizens have been speaking about this unanimously for the last eight months."

Councilor Bill Laitila, who was absent from the March City Council meeting, said, "The Lot 5 issue is one that I guess we're going to have to deal with sooner or later."

He said he trusted the Ad Hoc Committee's judgment on the issue of the park.

Laitila mentioned hearing Michigan Tech alumni fraternity members recently reminiscing about smelting at the mouth of Swedetown Creek. He also said he had spoken to a number of people in favor of preserving Swedetown Creek. Laitila pointed out, however, that Councilor James Hainault, who has had different views on the issue, was absent from this meeting.

"If we do make any further resolution, we should have a full Council here," Laitila said.

Mayor Barry Givens said he still had unresolved issues, including a 1980 contract between the City of Hancock and Superior Sand and Gravel (Thornton Construction Co., Inc.). The contract, which included a property exchange, also stated the following: "The City agrees to sell and Thornton agrees to buy gravel which is located in Government Lot 5, Section 28, Township 55 North, Range 34 West, more particularly described as follows:
All gravel which lies above the 730 foot contour line and which is located to the East of the said contour line extending to the East line of the said Section 28, and adjacent to property owned by Superior Sand and Gravel Inc."

City Manager Glenn Anderson said the issue of the contract came up after the Swedetown Creek Ad Hoc Committee meeting last March.

Councilor Lisa McKenzie asked, "Did the City have authority to sell gravel from land designated at that time for park and recreation use only?"

McKenzie noted designating the area as a park first could solve the "issues" Givens said were unresolved. (Another is a house located on Government Lot 5.)

Givens, however, indicated he wanted the "issues" resolved before voting on the park status. He asked the Ad Hoc Committee members to "keep working on those issues."

When asked whether he thought the 1941 deed (designating Government Lot 5 for park and recreation purposes only) made the 1980 contract for gravel extraction illegal, Anderson replied, "That's a legal issue -- for courts to decide."

Givens acknowledged that asking the City attorney to study the issue might be the next step, in order to avoid a potential lawsuit should the City not honor a valid contract.

In a phone conversation with Keweenaw Now on May 16, 2008, Patrick Thornton, president of Superior Sand and Gravel, said he was aware of residents' concerns about the Swedetown Creek area.

"I'm not saying that we would mine our property that crosses Swedetown Creek," Thornton said. "We like having the creek there, and we realize people like to hike and bike there. We try and work with the organizations that like to use our property for hiking, biking, skiing and other (recreational) activities."

Thornton mentioned his support of the Maasto Hiihto Trails used both for skiing and the annual Chain Drive Bike Race.

"We're happy to work with the community in that regard," he said. "But I won't come out and say that I'm in favor of a park that's going to prevent us from mining on our property."

Thornton said that while he couldn't promise it, he didn't think the company would mine near the creek.

"We like that area, too," he added. "I'm perfectly aware that the DNR/DEQ would have to approve mining near wetlands. We presently work with the DEQ in our operations."

Lori Underwood, Land Use specialist for the Department of Natural Resources (DNR), wrote to Councilor Tom Gemignani, chair of the Ad Hoc Committee, on May 6, 2008, concerning the mineral rights for Government Lot 5.

In her letter, Underwood states, "The State of Michigan retained the mineral rights for this parcel, including sand and gravel, as described in the enclosed (1941) deed. In 2003 when the reverter clause on the public use deed was released, the minerals were not included. As such, any sand and gravel, or other mineral extraction, will require approval from the Department of Natural Resources."

Thornton said he wasn't aware of the DNR letter.

"I have to assume that the City owned what they traded us," Thornton said. "We traded land for the rights to mine."

* Editor's Note: See our Apr. 15, 2008, article on Swedetown Creek.


Joe said...

There are two statements in the article by Patrick Thornton, president of Superior Sand and Gravel, that if quoted correctly are not accurate:

... "But I won't come out and say that I'm in favor of a park that's going to prevent us from mining on our property."

Recognizing a Park on city-owned property (Gov't Lot 5) does not compete with or prevent Superior Sand & Gravel from being able to mine gravel on their property which borders Gov't Lot 5.

"I have to assume that the City owned what they traded us," Thornton said. "We traded land for the rights to mine."

Thronton Construction did not trade land for the right to mine gravel on Gov't Lot 5. The 1980 Agreement included two parts. In the first part, the City traded land with Thornton with “no additional consideration for this exchange of property other than the exchange of the properties themselves". In other words the trade of land was not tied to the right to mine gravel. In the second part of the Agreement between the parties, Hancock agreed to sell and Thronton Construction agreed to buy sand and gravel on Gov’t Lot 5. The problem is the sand and gravel on Govt. Lot 5 is not owned by the City of Hancock, it is owned by the State of Michigan.

john said...

I want to thank Michele for fine job she is doing, taking time out of her busy schedule to post this blog. I would like to add to her comments. The photograph that I took while standing on the Eastern border of Gov't Lot 5 looking south toward the Portage shows a red line superimposed on the photograph. That line connects two survey markers placed by the survey crew on the Eastern boundary of Gov't Lot 5 during a recent survey. To the right of the line is Gov't Lot 5 and to the left of the line is the Thornton Gravel Pit. The photograph indicates that sand and gravel has already been removed from Gov't Lot 5 by Superior Sand and Gravel. Since the State of Michigan owns the mineral rights to Gov't Lot 5, and has not granted to Thornton Construction Company the right to mine gravel on Gov't Lot 5, this encroachment appears to be inappropriate.