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Focus: Access to Government

State subverts law, blocks citizens challenges

August 1, 1999 | By Patty Cantrell
Great Lakes Bulletin News Service

Charles Johnson wants Gov. John Engler to tell him why, as a taxpayer, he should have to pay the salaries of Department of Environmental Quality staff and also hire attorneys to make them do their jobs.

That's the position this World War II veteran finds himself in 55 years after storming the beaches of Normandy in defense of democracy. And it shows the predicament Michigan's entire citizenry is in after a DEQ administrative judge told Mr. Johnson that only private interests, those with property or money involved, have any right to appeal agency decisions.

Forest Fighter
Mr. Johnson, 76, is a founding member of a Wayne County citizen group that struggled for five years to save a rare 70-acre forest in the middle of their suburban Detroit community from development. The Department of Natural Resources finally agreed two years ago that the woodland, full of grand old trees and the endangered American Chestnut, was too precious to sacrifice to bulldozers. The DNR paid $520,000 for the development rights to the forest and created the Sassafras Trails Nature Preserve.

Before cashing the state's check, however, the school district that still owns the forest sold a small part of it to a developer anyway. The developer soon filled in and paved over the stream that fed life-supporting water to the forest's wetlands.

Mr. Johnson alerted the DEQ. He even paid for an independent study, which confirmed the stream's wetland connection to the forest. But the DEQ declared the stream and related marshes did not constitute a wetland, which means the developer can do whatever he wants.

Muzzle Tightens
Mr. Johnson wants a second opinion. "I think it's criminal that the state would spend $520,000 on the forest and not defend it," he says. But according to an administrative law judge inside the DEQ, Mr. Johnson is not entitled to question the agency's wetland decision.

In an ominous opinion last winter, Judge Richard Patterson told Mr. Johnson that he is just a citizen and, therefore, has no right to challenge the actions of the bureaucrats his taxes support.

The judge ruled that only those people who can show some threat to their property or financial interests have any right, or "standing," to contest agency cases. Mr. Johnson's property interest in the forest, as a citizen of the state that spent half a million dollars to protect it, doesn't count at the DEQ.

This ruling slams the door on the last avenue available to Michigan citizens, short of costly lawsuits, for demanding accountability from their environmental authorities. Both state and federal laws give concerned citizens the right to use the administrative appeals process before resorting to lawsuits. But in Mr. Johnson's case, and others that have cropped up in recent years, the DEQ has denied Michigan citizens the standing that these laws give them.

Intent of the Law: Democracy
For more than a quarter-century in Michigan, regular people with a community interest in something like the fate of a forest have had as much right as developers or investors to take their complaints to DNR/DEQ judges for review.


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