First lawsuits seeking class-action over Edenville Dam failure filed in federal court

Two lawsuits seeking class-action status were filed Friday in relation to the Edenville Dam failure that flooded Midland earlier this week, with one suit focusing on the dam’s owners and managers, and another encompassing the dam owners, its manager and the state of Michigan. 

Both lawsuits seeking upwards of $5 million in damages were filed in the federal district court in Detroit and are believed to be the first litigation related to the dam failure. 

The Edenville Dam failure Tuesday sent a surge of water that overwhelmed the Sanford Dam downstream and caused catastrophic flooding in towns along the Tittabawassee River. More than 10,000 people were evacuated from the region, operations at Dow Chemical were temporarily shut down, and homes and businesses were left waterlogged and muddy.

Both lawsuits allege the dam owners, Boyce Hydro and its manager, Lee Mueller, were negligent and a public nuisance, while one accuses the state of allowing waters to trespass onto residential property by ignoring early warnings about the dam’s flood capacity.  

Attorney General Dana Nessel’s office declined to comment on pending litigation Friday. Both the state environmental and natural resources departments declined comment, according to spokesmen Hugh McDiarmid and Ed Golder.

Dan Curth, a spokesman for Boyce Hydro, said the company had not yet seen the lawsuits Friday and couldn’t comment.

The first suit, filed by a Chicago-based class action law firm, levels allegations at the owners of the failed Edenville Dam and the state agencies tasked with regulating the structure. 

The lawsuit was filed on behalf of Carol and Dave Clarkson of Beaverton, Jennifer Rivard of Midland and Pleasant Beach Mobile Home Resort LLC in Beaverton.

“The operators and state department recklessly put thousands of lives at risk for decades,” said their lawyer, Beth Fegan, in a Friday statement. “It is deeply troubling to know that the operators willfully caused such widespread tragedy. They chose themselves over the well-being of Michigan residents.”

Boyce Hydro and Mueller “refused to comply” with the Federal Energy Regulatory Commission’s repeated directives to expand the capacity of the Edenville Dam spillways from 1999 to the eventual revocation of its power generation license in 2018, the lawsuit said. 

And the Michigan Department of Natural Resources and the Department of Environment, Great Lakes and Energy, when they took over jurisdiction of the dam in 2018, ignored “years of inspections and warnings” from federal authorities, the lawsuit said. Instead, the agencies delayed repairs “because of the concern for freshwater mussels and fish,” the lawsuit said.

The lawsuit alleges the state’s dam safety unit is woefully under-resourced, with three staff members dedicated to overseeing 1,061 dams in Michigan with a $400,000 budget. 

The lawsuit alleges the state was sent a memo in 2019 from dam safety engineers after taking responsibility for the dam that said the dam was not designed to meet present-day capacity requirements “without certain repairs and improvements.”

The engineers who prepared the memo found that the dam was not up to state standards “in light of not only its historically inadequate spillway capacity but also its old age and the poor condition of its critically important gates and hoisting equipment,” the lawsuit said. 

Rather than act on those concerns, the state instead blocked Boyce from lowering water levels in the winters because of the detriment to freshwater mussels in Wixom Lake. 

As recently as May 1, Nessel filed suit against the company for lowering the levels in the winters of 2018 and 2019 because it resulted in the deaths of thousands of freshwater mussels, according to court records. 

Nessel's office has said Boyce lowered lake levels during the winters not because of concerns about the safety of residents downriver but because the company didn't want to pay additional costs for de-icing and other winter upkeep. 

The attorney general earlier Friday in response to separate criticism about the mussel lawsuit said the lawsuit sought not only to protect freshwater mussels but also to prevent further violations of state permitting laws.

"EGLE and DNR’s lawsuit had nothing to do with the tragic event that took place and never sought to compromise public safety," Nessel's office said.

Mueller has claimed that suit and pressure from residents caused Boyce Hydro to raise the levels back up shortly before torrential rain and wind hit Midland, a claim the state says is "categorically false." The lawsuit doesn’t spare Meuller either.

Boyce Hyrdo’s “willful noncompliance” with regulators “resulted in catastrophic injury and damage to the bodies and property of plaintiffs and the class,” according to the lawsuit. 

In the second suit, lawyers allege David Homrich of Midland, Thomas Legleiter of Saginaw County, Tracy Carrick of Saginaw County and Cliff Alcantra of Midland County all had to evacuate their homes, which sustained significant damage in the flood. 

The suit alleges Boyce Hydro is not only guilty of negligence but also liable for its ultrahazardous activity and willful and wanton conduct.

“Defendants owned and operated the Edenville and Sanford Dams at the center of this disaster,” the lawsuit said. “They indisputably knew for years that these dams were inadequate, decrepit, unstable, unsafe, and would fail under predictable conditions.”

The second suit also points to the long history of federal enforcement in relation to the dam and Boyce’s failure to pay for repairs. The company pleaded poverty repeatedly when asked to make repairs, “all the while refusing to disclose their actual financial resources under the guise of ‘privacy and confidentiality," the lawsuit said.

It is unlikely the class members’ lives will return to normal anytime soon, the lawsuit said. 

“What is worse, this disaster cast plaintiffs and class members into the waiting arms of the global COVID-19 pandemic,” the lawsuit said.

Three out-of-state law firms are representing the plaintiffs in the second suit. 

eleblanc@detroitnews.com