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Resource Agency Again Asks Granholm to Approve Fox Swap

Decision signals Granholm's view for protecting resources

December 5, 2002 | By Jim Lively
Great Lakes Bulletin News Service

MLUI/Patrick Owen
  A proposed swap of private land for publicly owned shoreline on South Fox Island has put Governor-elect Jennifer Granholm squarely at the center of a long-standing dispute over the state’s role in managing Great Lakes shoreline and a 4.3 million-acre public domain.

The Michigan Department of Natural Resources has again asked state Attorney General Jennifer Granholm for final approval of a controversial exchange of private land for some of Michigan’s most magnificent public shoreline on South Fox Island.

The request came late last month and puts Ms. Granholm, who also is the governor-elect, squarely at the center of a long-standing dispute over the state’s role in managing its Great Lakes shoreline and a 4.3 million-acre public domain. Authorities in and out of state government say Ms. Granholm's response will be an unmistakable signal about her resolve to protect Michigan’s most scenic natural resources.

Citizens in Mason County, for instance, view Ms. Granholm’s decision as crucial to their work to permanently safeguard lands around Ludington State Park from oil and gas development. In 1998, the Legislature approved a law that provides such protections, but the Engler administration declined to implement the statute. The Mason County citizens hope Ms. Granholm's administration will help them complete the work to protect the lands around the state park.

The DNR’s request for final approval in the South Fox case follows a decision by Leelanau County District Court Judge Thomas G. Power. In his ruling, Judge Power rejected attempts by the Grand Traverse Band of Ottawa and Chippewa Indians and the Michigan Land Use Institute to legally establish that some of the private parcels involved have clouded titles. The Band has a longstanding dispute with the federal government about ownership of those parcels. State law forbids Michigan from acquiring land with clouded titles and Ms. Granholm stopped the swap last April as a result. (See from Island to Courtroom, and Attorney General Denies South Fox Swap.)

South Fox Island, a 3,400-acre expanse of high dunes, green forests, and unspoiled beaches, rises from Lake Michigan about 25 miles off the coast of Leelanau County. A third of the land is owned by the state in large parcels dispersed across the island. The other two-thirds is owned by David Johnson, a prominent developer and major Republican campaign donor who was just appointed by Governor John Engler to the state Waterways Commission.

In November 2001 Mr. Johnson proposed to trade 219 acres of his own land on South Fox for 218 acres of state-owned land there. Governor Engler and the state Department of Natural Resources publicly supported the proposal even though the state would lose ownership of the island’s globally rare, 300-foot sand dunes and gain inferior beaches and second- and third-growth pine trees. (See: Limited Land Trade Set for South Fox ).

Needed: A new vision
The state’s major environmental, conservation, and land use organizations including the Institute, the Michigan Environmental Council, Sierra Club, Northern Michigan Environmental Action Council, the South Fox Island Public Hunters Club, and the Michigan Audubon Society have strongly opposed the swap since it was made public, asserting  it would be a loss to the state and smacked of political cronyism. The Michigan Natural Features Inventory lists the dunes the state currently owns on South Fox Island as “one of the most unique features of the Great Lakes shoreline” and “one of the best examples of this [perched open dune] natural community in the state.”

But K.L. Cool, the director of the Department of Natural Resources, quickly approved the swap and embraced Mr. Johnson’s view that it would help the state by consolidating a patchwork of state holdings into a contiguous, more manageable parcel. The Band and the Institute then sued the state and Mirada Ranch, Mr. Johnson’s land holding company, in January 2002 citing title concerns and environmental laws.

Swap opponents say they will be watching how Ms. Granholm reacts now that the DNR, bolstered by Judge Power's ruling, has re-applied to the attorney general’s office for final approval. They want to know how far she will go to stop the deal when her only legal handles are title questions. Will she maintain, as do the Band and the Institute, that the title still remain clouded and again stop the swap? Will she use the judge’s ruling to simply approve it? Or will she leave the final decision to Mike Cox, the Republican attorney general-elect.

In interviews, authorities in and out of state government considered several options for Ms. Granholm.  She could allow the decision to languish until she’s governor and then publicly pressure the Department of Natural Resources to rescind its agreement with Mr. Johnson. That, in turn, could make the state vulnerable to court action by Mr. Johnson, who might then claim the state had reneged on a deal.

Sam Washington, the executive director of Michigan United Conservation Clubs, the state’s largest conservation organization, believes that the entire process of considering a swap of public for private land was so flawed that it needs to be completely reconsidered. “This decision should not be made until the new governor is in office, and with proper public input,” Mr. Washington said. “Our position is that any transaction should be in the long-term best interest of the resource and the people of Michigan. The final deal put together last fall between the DNR and Johnson did not allow for enough public review or input. This should be a resource issue, not a political issue.”

Possible next moves
Brian Upton, legal counsel for the Band and Institute, insists that Ms. Granholm should deny approval again because of the Band’s longstanding dispute with the federal government about titles to four of the Mirada parcels. Mr. Upton said the judge’s rejection of his affidavits and a petition for lis pendens have no bearing on that dispute.

“Those properties still have unresolved Indian land claims associated with them,” he said. “If this exchange were to be approved, the State of Michigan would be assuming those liabilities despite state law requirements that the MDNR obtain only properties with good title that are free from encumbrances.”

The Band and the Institute have each written the attorney general a letter formally asking her to again turn down the proposed exchange. The Band’s letter emphasizes the legal risks if the state accepted parcels with clouded titles. The Institute’s letter emphasizes that the swap violates the state’s legal obligation to protect its natural resources from private exploitation.

The Institute also produced a separate letter with the MEC, Sierra Club, the Hunters Club, NMEAC, the Michigan Resource Stewards, the Michigan Conservation Foundation, and Grand Traverse Audubon that addresses Ms. Granholm as governor-elect, urging her to stop the swap.

Walking the walk?
Ms. Granholm made it clear during the campaign that she opposed what she viewed as the Engler administration’s clear  tilt towards private interests in natural resource management. She strongly supported the ban on oil and gas drilling along the Great Lakes shoreline and denounced the economic assistance the state gave to Nestle when that company wanted to build a plant for extracting, bottling, and selling millions of gallons of Michigan groundwater. 

“Michigan’s environmental treasures belong to the people of this state,” Ms. Granholm said. “As servants of the people, the government of this state has an absolute obligation to manage and preserve those treasures in a way that’s best for the people, not the special interests.”

She also identified protecting Michigan’s unique sand dunes as a high priority for her administration. She said that the Engler administration “has presided over the acceleration of dune destruction” and pledged to support the Natural Resources Trust Fund, a publicly-held account that awards grants to local governments and can be used to buy some of the most scenic remaining dunes.

Jim Lively is the Michigan Land Use Institute’s planner. Reach him at jim@mlui.org. For more of the Michigan Land Use Institute’s coverage of the proposed South Fox Island land swap see the Public Lands section of its Web site.

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