Ice Mountain remains central to water debate

Photo illustration by Jeff Broddle | Cadillac News Nestle maintains a facility in Evart from which tanker trucks fill with water to be taken to an Ice Mountain bottling facility.

EVART - A vested bystander in a landmark court case, the City of Evart waits as its prime prospect for economic growth is embroiled in a complex legal fight over water rights.

The case is now at the State Supreme Court level.

“The issue the Supreme Court is reviewing is whether the plaintiff (Michigan Citizens for Water Conservation) has standing for alleging harm,” said Noah Hall, water law expert and assistant professor of law at Wayne State University. “That is not the emotional heart of the case. The heart of the case is whether or not a company can bottle a public resource and sell it for profit.”

Michigan Supreme Court recently ordered oral arguments in the MCWC versus Nestle Waters North America suit, a legal contest begun five years ago.

The Supreme Court hearing between Nestle, the world's largest food producer and the Mecosta-based grassroots environmental group could have weighty consequences.

“The biggest issue at stake is how we treat groundwater in the 21st Century - whether it's a public or private resource or balancing it,” Hall said.

Evart has courted Nestle's Ice Mountain since 2003 and entered a water purchase agreement with the city two years ago. The bottler expects to select a site for construction of its second Midwest plant in 2007, indicating the Osceola County community is the preferred location.

In 2001 MCWC filed a lawsuit against Nestle claiming Ice Mountain's water withdrawal from Sanctuary Springs, a supply source for its Stanwood plant, was harming the environment. Two years later, after a 19-day trial, 49th Circuit Court Judge Lawrence Root ruled withdrawals were harming the resource and ordered pumping cease. He also ruled landowners along the water have a higher legal standing than the business exporting water out of state.

“It's the first time Michigan courts are diving into that issue,” Root said. “It's a battle of rights.”

In 2005 on appeal by Nestle, the Appellate Court reversed the lower court decision that landowners along streams have legal standing superior to those bottling water and exporting it out of state. MCWC and Nestle entered an agreement limiting Nestle's withdrawals at Sanctuary Springs.

MCWC later asked the Supreme Court to overturn the appellate court ruling.

At this time, the Supreme Court is evaluating a segment of the case addressing the legal right to file suit in light of a 2004 ruling in the National Wildlife Federation versus Cleveland Cliffs Iron Co. case. Cleveland Cliffs is an Ohio-based mining company doing business in the Upper Peninsula. That case challenged the conservation group's right to bring suit under the Michigan Environmental Protection Act of 1970. MEPA was written to allow any person to file a lawsuit to protect natural resources and requires government to consider the impact of activity on the environment and promote less harmful options.

If the Supreme Court in the MCWC/Nestle case upholds the Appellate decision, MEPA would be undermined, according to Jim Olson, lead attorney for the citizens group.

“What would happen is every land owner with wetlands or endangered species can damage their land and neighbors can do nothing about it,” he said. “There can be a patchwork of destruction on property and there won't be any remedy.”

“This case is about holding the line to preserve the level of waters from private export,” Olson said.

Legal and environmental experts debate the possible outcomes if the high court accepts the case. So far, there has been little disclosed regarding the extent of the court's plan.

“We don't know if this aspect (legal standing) is the only aspect they are interested in,” said Deb Muchmore, Ice Mountain spokesperson. “There has been no other communication from the court.”

The parties have until the beginning of December to submit briefs to the court on standing. The court will also accept amicus briefs on the issue and both sides anticipate business organizations and environmental groups to submit statements.

While some see the water resource remaining in jeopardy, Ice Mountain contends the company's primary issues in the battle are decided.

“To a great extent, the case has largely been resolved through the Court of Appeals when it decided Nestle has the right to use water under the rules of the state's reasonable use laws,” Muchmore said.

Ice Mountain is currently permitted to withdraw 250 gallons of water per minute from the Sanctuary site and 300 gallons per minute from the Evart municipal water system.

This Nestle/MCWC dispute has been an ongoing catalyst toward the resolution of water management in Michigan.

“It has served an important purpose of lighting a fire under the public and legislature to protect the resource and allow industry use of water and to thrive,” Muchmore said.

Others think it is a beginning rather than the end of controversy and Michigan may grapple over water policies for a long while to come, according to Hall. The effort to construct the state's policies is likely to be a lengthy process involving the executive branch, courts and legislature.

“No one branch of government has monopoly over water management,” he said. “Water almost always involves all three.”

The next vital state discussion will focus on water diversion when the legislature takes up the Great Lakes Basin Compact.

While the Supreme Court case proceeds and policies take shape, Evart waits for Ice Mountain to determine whether it will bring jobs and prosperity to the city.

“Resolving the legal issues and seeing the (state water management) legislation enacted have been very important as a whole to make sure this is a viable place to do business,” Muchmore said.

The company is expected to announce the location of its new facility in 2007.

Your local connection

When Michigan Citizens for Water Conservation filed suit against Nestle Waters North America in 2001, it fueled debate over Michigan water management laws. The case is currently under review by the Michigan Supreme Court. Several areas of state policy are challenged, according to Noah Hall, water law expert and assistant professor at Wayne State University.

1) How does Michigan balance groundwater rights with riparian (surface) rights?

2) To what extent is groundwater subject to the same public trust doctrine protection as surface water? (The doctrine describes natural resources as belonging to the public.)

3) How is legal standing (right to file suit) related to the hydogeological connection? (Pertaining to groundwater extraction, removal and impact on the groundwater source.)

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