Updates of Michigan Citizens for Water Conservation v Nestle Waters North America
The first two days of the trial have gone well. The witnesses for MCWC have
been very knowledgeable and have presented excellent testimony. Thanks to
all of you: Jeff Sapp, Paul Sapp, R. J. Doyle, Lee Fickes, Ceo Bauer, Kevin
Doyle, Fred Lawrence, Greg Jehnzen, Mary Ellen Bouwkamp, and Greg Bouwkamp.
MCWC v Nestle trial has been cancelled for Wednesday and Thursday and it will resume on Friday, May 9 at 9:00 AM.
Michigan Citizens for Water Conservation v Nestle has completed its first of
three weeks of testimony. MCWC won an early victory before Judge Root
regarding riparian law. In October 2002, Judge Root ruled that riparian law
did not apply. On Monday, Judge Root reversed his decision on riparian law
and the riparian rights issues is now back in the case.
Jim Olson, Chris Shafer, David Hyndman, Walt Welch, Jeff Sapp, Paul Sapp,
R. J. Doyle, Lee Fickes, Ceo Bauer, Kevin Doyle, Fred Lawrence, Greg Jehnzen,
Mary Ellen Bouwkamp, and Greg Bouwkamp all have done an outstanding job.
David Hyndman will continue with his testimony on Monday. Listening to
MCWC's lawyers, riparian landowners, and MCWC's experts, one can gain a
better understanding of the case and what the residents of Michigan are
facing.
The law and facts are being presented and the judge will decide whether
Nestle/Perrier/Ice Mountain's private diversion and sale of 210 million
gallons of water a year off-tract and out of the watershed is unreasonable
and the affects on riparian landowners.
The David and Goliath fight continues. MCWC asks all residents of Michigan
to join with us as we fight for our water rights!
Dr. David Hyndman, MCWC's hydrology expert, spent his second day on the witness
stand being cross-examined by Nestle and redirected by Jim Olson, legal
counsel for MCWC. Dr. Hyndman's modeling was to accurately depict ground
water levels. His data from the modeling also is used to predict the impact
to wetlands, lakes and streams. The modeling data concludes that the level
of Thompson Lake and Osprey Lake will drop, the flow of Dead Stream will be
reduced, and some of the wetlands will drop by as much as 2 feet.
Dr. Hyndman was a superb witness and explained to the court and those who
attended the trial the relationship of pumping to water level flows. It was
an education for those of us who attended to better understand wetland
systems, the impacts of pumping, and the connection of surface waters.
The trial will begin again Wednesday morning at 9:00 AM at the Mecosta
County Courthouse at 300 Elm St., Big Rapids, MI. Please plan to attend.
Dr. Barbara Madsen, MCWC's wetlands ecology expert, began testifying this morning on her knowledge of wetlands and specifically those located on the Sanctuary Site, around Thompson Lake, and the wetland located north of M 20 near Dead Stream.
Dr. Madsen, in her testimony, stated that wetlands are the "kidney" of the ecosystem. With the draw down of wetlands there will be significant impacts that would result in reduction in habitat, open water decrease, quality of wetland reduction, and a lose in area of wetlands. Michigan has already lost 50-70% of its wetlands.
She further stated, not only will the wetlands be affected, but also the bald eagle that is close to one of the wetlands and a blanding’s turtle, a special concern species in Mecosta County, found in Thompson Lake. With a 3-6 inch drop in Thompson Lake, there will also be a loss of open water; lose of peat, and a lose of wetland. Jeff and Shelly Sapp and family, riparian landowners on Thompson Lake, will also lose a part of their swimming area.
Another educational day for those of us in the courtroom. Chris Shafer, co counsel with Jim Olson will cross-examine Dr. Madsen tomorrow beginning at 8:30 AM.
Chris Shafer finished cross-examining Dr. Barbara Madsen and called Dr. Chris Grobbel to the stand. Dr. Grobbel presented historical data of the Sanctuary Site before the dam and the impoundment. The next witness for the plaintiffs was Dr. Mark Luttenton an expert in aquatic ecology and fishes.
Dr. Luttenton made three visits to Dead Stream and found small feeder fish; northern pike, two of them being 24 inches; yellow perch eggs; and brook trout. Conclusion, Dead Stream supports spawning of these fish. Taking into consideration the flow, temperature, and habitat of Dead Stream, Dr. Luttenton believes it to be very sensitive to change even minor changes. The changes he sees happening to Dead Stream are high levels of nitrogen and phosphorus; the phosphorus coming from the deer herd on the Sanctuary Site, increase in aquatic plant growth; and a warming trend of the stream. If the Dead Stream is drawn down 1-2 inches the impacts will be: the northern pike will not be able to spawn, there will be a loss of juvenile fish, sediment will be exposed near the Doyle property, and the water will be altered in the way it moves through the channel.
Thompson Lake will also be altered if the lake drops by 3-6 inches. There will be a loss of fish habitat, the wetlands around the edge of the lake will be altered, and several years of spawning of fish.
After MCWC finished examining its last witness; Nestle asked for a motion to dismiss the case on the grounds that MCWC did not demonstrate reasonable use to show actual injury of ground water and surface water. The court will take this under advisement.
Jim Olson declared Nestle is taking part of riparian owners water and is shipping it off track. Mr. Devries, of Nestle’s legal counsel did admit in court that it has shipped bottle water outside the Great Lakes Basin. Not a surprise to us in MCWC.
The defendants called as its first witness Greg Fox, natural resource manager for Ice Mountain, at 4:00 in the afternoon. The court adjourned at 5:00 and meets again at 9:00 AM on Friday.
Greg Foote, of Malcolm Pirnie, walked the court through his various Sanctuary Site visits and his gathering of information and data for reports submitted to Ice Mountain/Nestle and the MDEQ.
MCWC has entered into its third week of trial. Jim Olson continued with his
cross-examination of Nestle's witness Greg Foote. Dr. Charles Andrews,
Nestle's new hydrogeologist from Maryland, was called to the stand in the
afternoon by Nestle. Dr. Andrews testified that he was hired by Nestle in
June 2002 to assist Malcolm Pirnie with its modeling and to repair what had
been done by them. His goal was to quantify the effects of pumping at the
Sanctuary Springs site. His testimony on his modeling process will continue
on Tuesday. Nestle has four or five other witness to call after we hear the
testimony of Dr. Andrews.
The trial continued today with more testimony from Nestle's expert Dr.
Charles Andrews. Jim Olson will begin cross-examining Dr. Andrews tomorrow
morning at 9:00 AM at the Mecosta County Court House. Dr. Andrews continued
to offer his opinions on lake levels, stream flows, and wetlands, and how
his opinions differ from MCWC's expert Dr. David Hyndman. The trial is
scheduled for the remainder of the week beginning at 9:00 AM each morning.
Being in the courtroom is a learning experience. Plan to attend to show
your support.
I was not at the trial for the entire day on Wednesday. Jim Olson began
Wednesday by his cross-examination of Dr. Andrews followed by redirect from
MMBJ. Glenn VandeWater was called to testify for the defendants. Mr.
VandeWater is from Mainstream who did three reports for Nestle on
assessments and characterizations of the well site. On Thursday, Chris
Shafer cross-examined Mr. VandeWater. Dave Cozad, of Mainstream,
gave testimony and was cross-examined by Chris Shafer. Their testimonies dealt with
wetlands, fishery, creeks, lakes, aquatic resources, and threatened and endangered species.
Trial resumes on Friday at 9:00 AM. Friday was to be the final day of
trial, but it has been extended into June. The three days set aside for
the remainder of the trial is June 4-6, 2003 beginning at 9:00 AM at the
Mecosta County Courthouse. Hope to see more of you there.
The trial ended its third full week of testimony today. David Cozad,
Nestle's fishery expert, was on the stand most of the day Friday. After the
afternoon break, Nestle called Mr. Paine, a meteorologist from Boston, to
testify on average rainfall and percentage of water that leaves and stays in
the Michigan River Watershed and the Little Muskegon River Watershed. He was
on the stand for approximately twenty minutes. David Cozad will continue his
testimony when the trial resumes on June 4, 2003 at the Mecosta County
Courthouse at 9:00 AM. Judge Root has set aside three days in June for the remainder of the trial.
Jim Olson and Chris Shafer have done a superb job in their cross
examinations this week. From my viewpoint, the trial has gone well.
June 4, 2003
The trial resumed on Wednesday, June 4, 2003 with Nestle redirecting and MCWC cross-examining David Cozad. Mr. Marc Groenleer was then called as a witness for Nestle. He was hired to examine records of ground water and surface water users in Michigan in the Muskegon River Watershed and the Little Muskegon River Watershed.
Greg Foote was called again as a witness for redirect and cross-examination and reported that 4 wells are in operation and Nestle has not pumped at 400 gpm. He has not seen any data of pumping over 300 gpm.
The last witness Nestle called was Brendan O'Rourke, plant manager for Ice Mountain in Mecosta. Jim Olson showed Brendon O'Rourke, on cross-examination, a picture of Dead Stream taken at 8:00 AM the morning of June 4, 2003 showing an area of Dead Stream as a “mud flat.” Mr. Olson asked O'Rourke if Nestle was causing this draw down of Dead Stream would Nestle curtail pumping so there would not be further reduction of water in the stream. Mr. O'Rourke did not directly answer this question with a yes or no answer.
Chris Shafer called Dr. Barbara Madsen as MCWC's first rebuttal witness. Dr. Madsen explained to the court why she does not agree with Nestle's expert Mr. VandeWater. A group from Nestle’s left while court was in session to visit Dead Stream to observe the stream, take pictures, and draw their own conclusions. The trial will resume on Thursday morning at 9:00 AM.
June 5, 2003 and the trial continues. Jim Olson called Dr. David Hyndman as a rebuttal witness to the stand. Dr. Hyndman testified entire day answering questions from Jim Olson and John DeVries. While on the stand, Dr. Hyndman told the court how he calculated the reduction in flow to Dead Stream; the reduction of the levels in Dead Stream, Thompson Lake, and Osprey Lake; and the drawdowns of wetlands 112, 115, and 301.
Dr. Hyndman was shown an exhibit of a picture taken by him on June 4, 2003 at the Doyle property of Dead Stream looking down stream. The photo showed the low water level with wide areas of exposed vegetation. The stream is very shallow on both sides of the channel. He had taken a picture of the staff gauge on the Doyle property the same evening showing the water level at 1.25 feet. The recent water level was 1.7 feet. Pumping is now at 170 to 200 gpm and he believes a one-inch drop is from pumping. If Nestle exceeds 200 gpm, he says the drop will become more and the level to flow
relationship will be steeper.
Sorry to say June 6 will not be the end of the trial. Judge Root has given MCWC and Nestle two days in July to finish the trial.
Spent another day in court on Friday, June 6, 2003 thinking both sides would rest their case. The trial continues on Tuesday and Wednesday, July 1st and 2nd, in the Mecosta County Circuit Court in Big Rapids, Michigan. Mark your calendars.
Dr. Barb Madsen was called to the witness stand for rebuttal of Nestle's witness. Dr. Madsen did a superb job. She stands behind what she has stated about wetlands and vegetation since her first visit to the area in 2002.
Dr. Andrews was called to the stand by Nestle. He began his testimony explaining his opinion of the sudden drop of 4 inches of Dead Stream that was observed by R. J. Doyle when he returned to Mecosta after a week and a half away. Dr. Andrews conclusions on a 4 " sudden drop in Dead Stream were: the "mud flat" area at Doyle's is sediment from Gilbert Creek and the beaver dam on Dead Stream has been removed.
When the trial resumes on July 1, Jim Olson will cross-exam Dr. Andrews. Jim Olson will then call other witnesses for MCWC.
Shelly Sapp, riparian owner and plaintiff, was called to the witness stand in the afternoon. She has been taking pictures of Dead Stream in front of Barb and R. J. Doyle's, at Thompson Lake, at the M-20 Bridge at Dead Stream, at Gilbert Creek, and the Culvert coming out of Osprey Lake. She had over 50 pictures put into exhibits of these locations showing gauges, levels, and physical characteristics of these areas. She would take pictures everyday at the same time and location at Dead Stream. Shelly Sapp lives on Thompson Lake and started taking pictures of that area in April 2002. The level of Thompson Lake is now at the level it was in November 2002. She pointed out this level is fall level without going through the hot summer months. Through her photos, one was able to follow the progression of lowered stream and lake levels and the actual harm that has occurred to Dead Stream and Thompson Lake. She produced two other notebooks of photos that Nestle wanted to make duplicates. She had been taking pictures of Dead Stream and Thompson Lake everyday since the beginning of June. The mud flats at Doyle's property were observed by R. J. Doyle in early June and he testified later in the day he has never seen Dead Stream with mud flats like now in the forty years he has owned property on Dead Stream. The pictures speak for themselves.
Kevin Doyle was called to the stand to testify on the mud flats in front of his parents home and on the Blue Lake Dam levels controlled by boards. He testified the boards in the Blue Lake Dam are under the authority of the Mecosta County drain commissioner. All of the boards in the dam are in the dam and the water was flowing over three spill ways on June 30, 2003. He has never seen mud flats on Dead Stream as they are appearing now.
R. J. Doyle presented over 15 photos to the court showing Dead Stream as it looked as far back as 1970 and up until June 2003. He has never seen the amount of exposed mud flats. Mr. Doyle is a riparian owner living on Dead Stream and is not happy with the area of Dead Stream now and has never seen the Dead Stream area like this.
After the lunch break and almost two hours of lawyers talking of rebuttals and/or sur rebuttals, Dr. David Hyndman, MCWC's hydrogologist, was called to the stand. Dr. Hyndman disputed Dr. Andrews testimony from July 1. Dr. Hyndman concluded that a reduction at the Doyle property on Dead Stream is the same as the reduction at M-20. Dr. Hyndman's testimony will continue tomorrow.
September 9, 2003
Closing arguments began Tuesday, 9/9/2003, in the Mecosta County Court House in Big Rapids, MI in the lawsuit filed by Michigan Citizens for Water Conservation (MCWC) against Nestle Waters North America, Inc. (Perrier/Ice Mountain). Nestle's motion to allow supplemental evidence into the record in the case of Michigan Citizens for Water Conservation (MCWC) v Nestle Waters North America, Inc, was denied by Judge Larry Root. Nestle wanted to enter updates through August 27, 2003 of monitoring data exhibits; pumping data through August 21, 2003; updates through August 27, 2003 of graph comparing Wetland 115 water levels to the inverse of pumping; and supplemental report of Dr. Andrews. The judge went with his "gut reaction" to close the monitoring data through July 10, 2003.
Jim Olson, attorney for MCWC, began his closing arguments today (9/9/03) and ended at 4:30 pm. John DeVries, attorney for Nestle, will begin his closing arguments on Wednesday, September 10, 2003. MCWC's basic positions are 1) Reasonable use groundwater doctrine, 2) Reasonable use riparian doctrine, and 3) Hybrid Reasonable use system. Mr. Olson did a brilliant job of stating the laws of riparian and groundwater law and how the law applies to the facts that were brought out during the trial that began May 5, 2003. Chris Shafer, co-counsel for MCWC, then addressed the court on the defendants' Water Rights Deed on the Sanctuary Property from Pat Bollman to Nestle of water sources within the 139 acres of groundwater, several wetlands, at least two small streams, five or six springs in the bed and along the northern shore of Osprey Lake, and a portion under Osprey Lake. Mr. Shaffer said water is not capable of ownership and belongs to the state and ground and surface water cannot be separated. MCWC is asking the water rights deed be void and the removal of water be void. Again Mr. Shaffer applied the law to the facts of the case.
Mr. Olson continued the closing arguments by pointing out to the court that material diminishment of flow of a stream and level of lakes is harm. He then proceeded to point out Nestle's misstatements of facts in its post trial reply brief. In conclusion, Mr. Olson asked the court for accountability and for injunctive relief for MCWC.
September 10, 2003