Dredging permit appeal denied

Apr. 21—TRAVERSE CITY — Grand Traverse County's circuit court won't give a Long Lake homeowner a permit to build a boathouse and dredge a channel in the lake to reach it.

Thirteenth Circuit Court Judge Charles Hamlyn said an administrative law judge gave a fair hearing to the Carrie Barnes Trust's request to issue that permit over the state Department of Environment, Great Lakes and Energy's denial.

It's the same request that EGLE denied in 2021, citing possible damage to the lake's fisheries and recreational assets, and which prompted Long Lake Township to look at how its zoning ordinances regulated lakeshore land uses in 2022. That led to the township adopting new restrictions on altering natural shorelines in December of that year, documents show.

"While EGLE continues to review the judge's decision, we were pleased to see yet another affirmation that EGLE staff make sound decisions that are consistent with the law, and protective of the environment," Hugh McDiarmid, EGLE's communications manager, said in an email.

Joseph Quandt, an attorney for the trust, argued the administrative law judge seemingly ignored testimony from witnesses who supported the application. While 11 expert witnesses offered hours of testimony over six days, the judge's order mentioned them rarely, if at all. And in some references, the judge seemed to misclassify the testimony they offered, he said.

That would run foul of the requirement that administrative law courts consider complete, material and substantial evidence on the whole record — emphasis on "whole."

But those arguments didn't persuade Hamlyn.

The judge told Quandt and state Assistant Attorney General Andrew Prins — EGLE's representative in the case — that his review of the sizable case record and the administrative law judge's order showed plenty of reasons for EGLE to deny the permit, then for the judge to uphold that denial.

That order was clear on all points as to why the administrative court decided as it did, and also made plain that the judge had considered the Barnes Trust's expert witnesses, but found the state's witnesses to be more credible, Hamlyn said.

"It's not simply a battle of numbers, and by that I mean one side has this many (witnesses) versus the other side has this many more," he said. "Otherwise, certainly somebody filing an application could hire 10, 20 or some factor of experts more than the department would have, and simply win every time."

That means the Barnes Trust's plans for digging a boat basin on shore at the family's house on Long Lake, then building a boathouse and dredging a channel in the lake to the basin, are off, at least for now.

Quandt said in an email it's likely the trust will act to get the case before the state Court of Appeals.

"I can say that we're disappointed with the court's decision and we believe a significant basis for appeal exists," he said.

A state Attorney General's office spokesperson referred a request for comment to EGLE.

Hamlyn rejected Quandt's arguments that the administrative law judge had broken the law in relying on EGLE guidance in the decision, noting the referenced passage in the Barnes Trust's legal brief was taken from lengthy testimony from a DNR fisheries biologist who made clear the material in question was guidance only for deciding an application on the merits.

"So to cite one answer from all of that to try and support an argument by itself, the court finds to be disingenuous," Hamlyn said. "The entirety of (the biologist's) testimony, and indeed the entirety of the record, has to be considered."

While Quandt argued some of the administrative court's judgement calls on witnesses and findings of fact seemed questionable to preposterous — claiming a seasonal dock would give the same benefit as a permanent boathouse, for one — Hamlyn said those findings are largely out of his hands.

Triers of fact, like the administrative law judge, get a wide berth in making judgments on which experts before the court are more credible than others, Hamlyn said.

Appeals courts cannot second-guess that unless the administrative law judge made a decision that violates the Constitution or law, goes beyond the regulatory agency's jurisdiction or is arbitrary and capricious — exceptions that don't apply to the case at hand, Hamlyn said.

Nor can appeals courts substitute their own findings of fact over an administrative law judge's findings, even if the former would have reached a different decision from the same record, Hamlyn said.

Quandt argued EGLE treated the Barnes application with "unprecedented scrutiny," and pointed to a comparison with other permits that were granted, including one he said required 100 times the dredging.

While Prins said that argument would require either disproving every rationale EGLE and the administrative law judge offered for denying the permit, or showing the denial was motivated by "animus or ill will," Quandt replied that the Barneses have had issues with EGLE before.

"The Barnes Trust is a class of one because it was given scrutiny that almost nobody else was ever given, and that creates the distinction here," he said.

But Hamlyn said the agency and judge showed how each permit gets reviewed on a case-by-case basis. Nor did Hamlyn agree that any of the 10 approved permits Quandt and an expert witness raised were a good comparison.

"Multiple witnesses testified in great detail about the application process, how it works, what is reviewed — et cetera," Hamlyn said. "Obviously as part of that, some will move more quickly and some will move more slowly ... if this one were so open-and-shut, I doubt that so many experts would be needed to analyze it on both sides."