Takings claims against counties under the Michigan & U.S. Constitutions; Regulating authority over lake levels near a dam; Michigan Natural Resources & Environmental Protection Act (NREPA); Maintenance of water level; MCL 324.30702(3); Decision not to change the water levels; Sanguinetti v United States

[This appeal was from the ED-MI.] The court held that defendants-Michigan counties were entitled to summary judgment on plaintiffs-landowners’ federal and state takings claims. It concluded they could not support their allegations that the counties intended to “take” their land by deciding not to change the water levels at the lake above the Edenville Dam. And findings that static liquification caused the dam’s collapse kept them from showing “that the government’s conduct amounted to ‘a substantial cause’ of the decrease in the value of” their property. The Michigan Department of Environment, Great Lakes, and Energy has regulatory authority over the dam. In compliance with the NREPA, the counties “assembled a task force to manage the lake above the dam. . . . Under Michigan law, any entity with ‘delegated authority’ to manage a lake, such as the task force, must ‘maintain’ a ‘court-determined normal [water] level.’” In 2019, the counties chose “to keep the lake levels where they had been for more than nine decades.” The dam failed almost a year later after days of historic rainfall. Plaintiffs argued that “the counties ‘took’ their properties by urging the state court to maintain the dam’s historic water levels, all while knowing that its spillway system ran the risk of overflowing.” However, an independent study by the Federal Energy Regulatory Commission revealed that “[u]ndetected defects since the dam’s construction led to a sudden loss of soil strength around the base of the dam during the rainfall.” The district court ruled that “the counties’ efforts to keep the water behind the dam at existing levels did not show that they intended to flood the downstream properties and ‘take’” plaintiffs’ land. The court agreed, explaining that all the counties did was to “preserve the lake depth at the same level that had existed for roughly a century. Wise or not, that action does not show that they meant to flood the downstream properties.” The court added “that the lake levels had little to do with the dam’s collapse. As the Federal Energy Regulatory Commission’s independent forensic team determined, it was soil vulnerabilities, in place since the dam’s construction, that caused the collapse.” Plaintiffs also failed to establish a taking under the Michigan Constitution where they could not establish causation. “The two causes of the collapse—heavy rains and static liquefaction—had nothing to do with the counties’ decision to seek permission from the state court to keep the lake levels where they had been for 90 plus years.” Affirmed.