Jim Olson, defender of the environment, wins award

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State Bar of Michigan (SBM) current President Anthony Jenkins, left, and Immediate Past President Charles Toy (who was still President at the time), right, presented James Olson with the Champion of Justice Award at the SBM Annual Meeting in Grand Rapids at the Sept. 28 banquet.

by Cynthia Price
Legal News

James Olson of Traverse City is a force to be reckoned with, a man so passionate about what he is fighting for that he downplays any recognition he has personally achieved over the years in the fight.

And a “fight” it often is.

In the words of the State Bar of Michigan (SBM) when it gave Olson one of its 2010 Champion of Justice awards, Michigan Citizens for Water Conservation v. Nestle Waters North America was like David v. Goliath.

For Olson, that case — the main reason he won the award — is far from the end of the struggle to have all of the waters of the state of Michigan included in the public trust and treated that way in law.

Olson attended Michigan State University for his undergraduate years. During that time he took a few law courses, and “was struck by the nature of the stories of human conflict; something interested me about how these things are resolved.” He pursued his law degree at Detroit College of Law, (which later became MSU College of Law), and started his practice after clerking for Justice Thomas Brennan.

He was drawn to land use law, which was not a particularly active field in the late 1960s, and he handled a case in the Upper Peninsula that made him start thinking a lot about the public trust doctrine.

He was so impressed by seeing Joseph L. Sax speak on the public trust that he decided to return to the University of Michigan for a Masters degree in Environment and Public Trust, studying there with Sax.

Joseph Sax is the author of the seminal Michigan Law Review article, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention.” In the Berkeley Electronic Press, James Gordley writes: “Few articles have by themselves created a new legal doctrine. An example was Warren & Brandeis, “The Right to Privacy” (1890)... But almost the only other example that comes readily to mind is the public trust doctrine created by Joseph Sax in his celebrated article in the Michigan Law Review. If Sax is correct, much private land is held, and has always been held, subject to paramount rights of the state to see that it is used in the public interest...”

Jim Olson took Sax’s message to heart.

He started his practice in 1972, in Traverse City. His partner at that time was Mike Dettmer, who later became U.S. Attorney and chief federal prosecutor for the Western District of Michigan, and is now Of Counsel to Jim Olson’s current firm, Olson, Bzdok and Howard.

It was Dettmer who nominated Olson for the Champion of Justice award.

By 1976, Olson was focusing solely on environmental protection law. In 1970, the Michigan legislature enacted the Michigan Environmental Protection Act or MEPA, based on the 1963 Michigan Constitution’s Art. 4 Section 52, which imposes a duty on the legislature to protect Michigan’s natural resources. (Sax is also credited with writing that act, which citizens helped to get passed.)

MEPA was unique at the time in that it gives private citizens or groups standing to sue for injunctions against actions which will damage the environment, in the hope that a “common law of environmental quality” would emerge.

On a related note, in the Michigan Citizens for Water Conservation (MCWC) v. Nestle case, the court narrowed that standing, which was previously interpreted very broadly, to include only a citizen or group whose use of the resource was at stake.

Olson has spent his career representing citizens whose love of natural resources or of a particular resource has driven them to bring suit to protect it.

Early in his career he worked for Native American tribes to gain them fishing rights, a multi-step project that was brought to fruition in later years by his partner Bill Rastetter, who is also currently Of Counsel to Olson, Bzdok, and Howard.

Olson started out representing Art Duhamel, an Ottawa Indian who deliberately got himself arrested to test the laws. “On a cold snowy December day, he told the DNR, I’m going fishing, I’ll be out there if you want to arrest me,” Olson recounted. That case, brought at a time when the Department of Natural Resources was putting a lot of effort into creating a salmon fishery in the state, began the long process which eventually led to the recognition of Indian treaty fishing rights.

Olson’s reputation as the major environmental-protection lawyer in the state was cemented when, over a ten-year period, he fought the MCWC v. Nestle case in the courts. The crux of the matter in this case was the damage caused by a water-bottling company to the Dead Stream, which is at the headwaters of the Muskegon River. Due to the flow regime of such stream,s the amount that Nestle Corporation had been permitted by the state to withdraw from the groundwater was causing severe damage, with occasions where the flow seemed to dry up almost completely. In low-flow seasons, Nestle was ordered to reduce the amount of withdrawal.

Or at least, that was one critical issue. For Olson, by far more important is the overriding principle of whether all natural resources, including the groundwater, are to be considered held in the public trust.

Using Sax’s analysis, Olson feels  the laws and codes should reflect that the natural resources of a state are the “property” of the general public, that the state is to ensure that no harm comes to them, and that the use of such resources is to be determined by the general public in the interest of the common good.

Consider, for example, the Great Lakes Compact, which was ratified by all the necessary states and Congress in 2008. The Compact was intended to protect the basin from withdrawal of any of its surface water or groundwater .

But as Olson and many others point out, there is a big loophole in the way the law works. By setting up the possibility of any kind of “product” being derived from the waters, the Compact, Olson feels, heads down a slippery slope.

Or, as well-known environmental advisor and writer David Dempsey put it, “The Compact defines Great Lakes water diverted in containers of 5.7 gallons or less as a commodity instead of a public good.”
Ultimately, that kind of language may render Great Lakes water subject to the conditions of the North American Free Trade Act, or NAFTA, which Olson regards as a pressing danger.

The Compact notwithstanding, Olson is devoting most of his time to Michigan law. He argued the case of Anglers of the AuSable v Mich Dep’t of Environmental Quality, et al before the Michigan Supreme Court in October. Although the Anglers won the lower-court case, which enjoined a company from discharging huge amounts of water into Kolke Creek at the Au Sable River headwaters, he was given leave to argue on some of the principles in that case.

In addition to asking the Supreme Court to reconsider the MEPA standing ruling above, Olson argued that the Court of Appeals changed the standard test in the Nestle case, which was also used as precedent in the Anglers of the Au Sable case. “The COA changed the principle from whether a withdrawal diminished the flow of the stream, which is so fundamental to our riparian law system, to  a substantial harm test, and further, added a reasonable use balance  standard.”

Olson’s arguments asked that the “reasonable use balancing test” be overturned, “because the test is contrary to the binding decisions of the Michigan Supreme Court and otherwise is contrary to and without basis in Michigan law.” How, and when, the Supreme Court will rule remains to be seen.

Olson was also instrumental in starting a coalition organization, FLOW for Water, “to ensure that the waters of the Great Lakes Basin remain under public control and in the public trust.” For more information, visit www.flowforwater.org.

And then there is the matter of the Champion of Justice Award, which Olson calls  “quite surprising.” He considers it more an award for his clients of limited means, who have held bake sales and poker tournaments and spent their time raising $1 donations, “to enable me to represent them in a court.” Olson acknowledges that his environmental legal work “doesn’t pay what other work pays, but it’s enough to make a living.” And he feels a boundless appreciation for the sacrifices of those clients. “There’s a certain amount of gratitude that comes from just being able to do it.”