From Island to Courtroom
South Fox land clash evolves into legal dispute
January 31, 2002 | By Keith Schneider
Great Lakes Bulletin News Service
|David Johnson, who owns two-thirds of South Fox Island, unlawfully mined a critical dune to lengthen his private airstrip, which was under construction in the summer of 2001.|
LELAND, MI — As Michigan Attorney General Jennifer Granholm continues to review a controversial land trade on Lake Michigan’s magnificent South Fox Island, opponents of the swap are mounting a new challenge in court.
The Michigan Land Use Institute, one of the state’s largest environmental organizations, is the latest to enter the fray. Today, the Benzonia-based organization joined the Grand Traverse Band of Ottawa and Chippewa Indians as a co-plaintiff in a lawsuit that asserts the swap violates state environmental law and long-standing policies overseeing the disposal of public lands.
The lawsuit, initially filed the day after Christmas, charges that the DNR and its director, K.L. Cool, breached the public trust by approving an unequal exchange of private land that federal authorities called "ordinary," for publicly-owned shoreline that state experts recognized as "globally rare."
Mr. Cool has dismissed such claims and argues that the South Fox swap is in the public interest because it consolidates a long stretch of Lake Michigan shoreline for public use. "This is a simple plan, and it is the best one possible for all parties involved," Mr. Cool said in a prepared statement. "It expands the DNR’s ability to manage the forests and wildlife in the north. It is an important step toward resolving ongoing trespass issues for the private landowner. And it enhances access and recreation opportunities for South Fox visitors."
The lawsuit is the latest turn in an environmental, political, and cultural clash over one of the state’s most magnificent natural landscapes. The battle has involved the governor, his key environmental aides, and one of Michigan’s wealthiest developers. It has been so intense that President Bush signed a provision on November 5, 2001 that barred the federal government from spending money to approve the swap without Congressional approval. One unexpected outcome of all the attention is that the DNR’s ability to manage Michigan’s public domain is emerging as an important issue in this year’s election campaigns.
During an appearance in Traverse City in mid-January, for example, U.S. Representative David Bonior, a Democratic candidate for governor, said he opposed the South Fox land swap and promised to open the DNR land management programs to much greater public scrutiny. Attorney General Granholm also is running for governor.
At issue is Mr. Cool’s decision on December 7, 2001 to approve a trade of 218 acres of state land for 219 acres of private land on South Fox Island owned by David Johnson, a developer and top contributor to the state Republican party. Mr. Johnson, who owns two-thirds of the 3,400-acre island 25 miles west of Leelanau County, said he sought the exchange to consolidate his holdings and end what he asserted was a serious trespassing problem.
The land the state wants to trade away includes freshwater dunes more than 300 feet high, a rare stand of virgin coastal white cedars more than 400 years old, and habitat for threatened and endangered raptors, including bald eagles and peregrine falcons. In return, the state will acquire second-growth hardwoods and a mile of sand beach.
State law requires the attorney general to confirm that any land the state receives has "good and sufficient title" and is "free from any liens or encumbrances." The Grand Traverse Band contends that nearly 200 of the 219 acres that the state wants from Mr. Johnson has "clouded title" and cannot be legally conveyed to the DNR. Ms. Granholm’s review began in December.
The heart of the Grand Traverse Band’s argument is that its tribal members have historic claims resulting from a 1950s decision by the U.S. Bureau of Indian Affairs to sell land on South Fox without proper consent. The Bureau of Indian Affairs is a unit of the United States Department of the Interior.
Among the pieces of evidence the Grand Traverse Band filed to support its claim were documents signed in 1908 by President Theodore Roosevelt, which gave members of the Ottawa tribe title to four parcels — totaling around 200 acres — on South Fox Island. In 1983, the Interior Department acknowledged that the Indian land allotments were "improperly extinguished," but no federal action took place.
The suit brought by the Grand Traverse Band and the Michigan Land Use Institute also asserts that the DNR violated its own island management policy. That policy states that the DNR can only trade island properties if the new owner guarantees greater protection or that the private use of the property is "of such importance to public welfare that it outweighs the benefits derived from public ownership." The lawsuit asserts that Mr. Johnson offered no legal protections of the property, and stated he intended to use the land to ensure privacy for a new house with a sunset view over the dunes.
Lawyers for the DNR, however, argued in a December court hearing that the land exchange was equitable in value, size, and the amount of shoreline and benefits citizens because it consolidates public holdings.
Brian Upton, tribal attorney for the Grand Traverse Band, disagrees. "The land values are not equal. Towering dunes facing the sunset are more valuable than flat rocky beach facing north."
In addition to the land claims, the lawsuit asserts that the DNR violated the Michigan Environmental Protection Act in approving the trade. The Grand Traverse Band said the swap will result in environmental damage to sand dunes on the western shore of the island that have unique ecological value.
The tribe added that Mr. Johnson’s record of stewardship on South Fox Island is spotty at best. Mr. Johnson’s off-road vehicles have been photographed on the dunes, and Mr. Johnson unlawfully mined another critical dune to lengthen his private island airstrip.
The DNR confirmed the unlawful mining but did not cite Mr. Johnson for a violation. For his part, Mr. Johnson has defended his record of safeguarding South Fox Island, calling it "exemplary."
Keith Schneider, an award-winning environmental writer, is program director of the Michigan Land Use Institute.
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