By Jon Saari, UPEC (Upper Peninsula Environmental Coalition) Board Member
MARQUETTE -- Phil Bellfy is one savvy activist who is not afraid to take on City Hall. He’s done it in East Lansing for the past four and one-half years, largely on his own in the name of good government. His forthcoming book title says it all: How to Fight City Hall, and Win: One American Indian's Odyssey Through the World of Eminent Domain, Tax Fraud, Tax-Increment Financing, and High-Stakes Development.
It took Bellfy six hours to drive from Sault Ste. Marie to Marquette on a wintry day in late February. He had been invited by the Upper Peninsula Environmental Coalition (UPEC) to talk about eminent domain, which has surfaced as an issue in a battle over a new proposed road in western Marquette County. This 22-mile road would link the Kennecott Eagle Mine with the Humboldt mill, but it is being touted less as a private haul road and more as a great public benefit.
The road would ostensibly provide a needed alternative to the present designated mine haul road, which runs eastward towards Big Bay and then south along CR 550, traveling near the population centers of Marquette, Negaunee, and Ishpeming before arriving at the mill. But opponents argue that the proposed CR 595 would change and endanger an undeveloped wild area that is the Headwaters Country for six Lake Superior streams, and that it is falsely being presented as a road with predominantly public benefits.
The Marquette County Road Commission filed the application for the new road (CR 595) in October, 2011, pressed by the County Commission, the City of Marquette, and most townships.
Despite the political push all the way to Lansing and Washington D.C., the Road Commission has declined to use one tool in its toolbox, the hammer of eminent domain (condemnation of private land), that would have allowed it to establish an alternative route through the Mulligan Plains.
This map shows several alternatives being considered for the potential CR 595. The dotted line (running north-south near center of map) is the route through the Mulligan Plains, which includes private land protected by a conservation easement held by The Nature Conservancy. Click on map for larger version. (Photo of map by Keweenaw Now, reprinted with permission from Steve Casey, Michigan Department of Environmental Quality, from his March 5, 2012, presentation at the Houghton Keweenaw Conservation District meeting.)
To Bellfy, it is immaterial that the private land in question is protected by a conservation easement held by The Nature Conservancy, except that TNC is a powerful organization with deep pockets. The reason the Road Commission is hesitant, says Bellfy, may not be their respect for conservation values or environmental sensitivity, but the near certainty that they would lose the case in court.
Since a famous 2005 US Supreme Court case, in which Suzette Kelo, a small homeowner in New London, CT, lost her home to a private developer for the "public good" of a higher tax base, some 44 states have tightened up their standards for eminent domain. Michigan revised its Constitution in 2006 in a referendum supported by 80 percent of the voters.
A mere claim of "public use" is now insufficient in eminent domain cases; the condemning government body must prove in court that the preponderance of benefit accrues to the public.
It must also prove that the "public necessity" is of the "extreme sort, ... limited to those enterprises generating public benefits whose very existence depends on the use of land that can be assembled only by the coordination central government alone is capable of achieving." This quote is taken from the famous County of Wayne v. Hathcock case, decided by the Michigan Supreme Court in 2004. This quote from the Supreme Court decision is the language that eventually found its way into the Michigan Constitution via that 2006 referendum.
Public authorities have become wary of the high scrutiny that a court test of eminent domain now requires. Translated into the CR 595 case, the preponderance of use of this proposed road is for the private advantage and financial benefit of a multinational mining conglomerate, Rio Tinto, with a sideways nod to its public benefits for commerce, recreation, and emergency services. Alternative routes abound (including the already designated haul route), and the Road Commission would have a very hard time making the case in court that a "public necessity of the extreme sort" requires that this new road be built.
Bellfy says that flimsy cases are often created by public bodies collaborating with vested interests, whether it is the city of East Lansing working with a developer, or by extension the County of Marquette collaborating with a mining company. The best tools activists have are the Freedom on Information Act (FOIA) and the Open Meetings Act (OMA); the former reveals discussions and documents that are sometimes incriminating, and the latter sets standards -- that are often flaunted -- for conducting the government’s business in public.
Bellfy’s visit helped local activists understand that vigilance and complaints are not enough. Opponents need to go on the offensive, to request documents through FOIA, and use the OMA to challenge the actions of "public bodies" where the public’s business is really being conducted behind closed doors. And for that, activists also need friends who are lawyers conversant with the often intricate and hidden world of legalese and power.
Phil Bellfy’s analysis from inside the game of politics was an eye-opener to many in the audience who heard him that late evening in February. He illustrated how good-government activists have tools and opportunities to get in the game themselves. Many can’t wait to see his book in print.
Author's Note: Phil Bellfy is a White Earth Anishinaabe, active in the Great Lakes region as an educator, author, and professor. He commutes between his rural home near Sault Ste. Marie and work sites downstate. He will be returning to Marquette on March 31, 2012, to speak on indigenous environmental ethics at the UPEC-sponsored Celebration of the U.P.*
*Click here to read about the March 30-31 UPEC celebration and to see the schedule of presentations to be held in Marquette at three locations: the Peter White Public Library, the Federated Women's Clubhouse and the Landmark Inn. All events are free and open to the public.