Cast away: Attorneys stand ready to wade into legal waters

By Steve Thorpe Legal News A lawyer is a fish's best friend. When habitat is threatened, polluters are careless, or the trash simply needs to be picked up, attorneys in several fly-fishing organizations are at the ready. Sometimes the job requires a business suit and sometimes waders are more appropriate. The history of human stewardship of Michigan's natural wonders is not a proud one. In the process of logging, mining and, later, early manufacturing, many of Michigan's rivers and streams were so badly damaged that some experts thought they were beyond repair. Companies and communities, some well meaning, built dams that restricted or redirected watercourses. By 1950, only the more isolated waterways resembled their natural state. Environmental groups have led the charge to restore and protect these gems, but their effectiveness can sometimes be measured by the number of attorneys who are members or sit on their boards. Bryan Burroughs, executive director of Michigan Trout Unlimited, says that his organization is fortunate to have many members in the legal profession. "We're blessed to have a lot of attorneys," he says. "They help with just about every aspect of our organization. Their professional experience and their mindset are incredibly helpful. "I come from fisheries biology and never had working relationships with any attorneys," Burroughs says. "The public likes to make fun of attorneys, but they're a godsend. I joke about this with other nonprofit environmental groups because I have so many more attorneys to rely on than other (non-fishing) organizations do. It helps us in so many ways. "It's awe-inspiring how much we benefit from them and how much they give of their time." Attorney Bruce Pregler is currently president of Anglers of the Au Sable, one of the more active and aggressive organizations. His practice focuses primarily on real estate and construction issues, but he makes time for both fishing and the resources that make the fishing such a joy. What kind of attorney becomes active in these organizations? "You're going to find that most of us have an incredible passion, whether for our home waters like the Au Sable, or statewide," says Pregler. Pregler says that attorneys who become involved in conservation do so out of a combination of idealism and passion for the environment. "You'd like to leave a mark on the world. 'Bruce was here,' and he left it better than he found it," he says. "We're not doing this because we make money. On the contrary, we lose money. But I don't think there's a single one of us who minds." Thomas Buhr, president of the Au Sable Big Water Preservation Association, says that his view of attorneys has changed drastically because of the activism and dedication he's witnessed. "The stereotype of lawyers has, for me, been completely blown up," he says. "I don't view lawyers negatively anymore." Buhr also pays tribute to the vital role attorneys have played in protecting the river he loves. "I'm sure glad we have the lawyers we have in this organization," Buhr says, "because they've made a huge difference in the quality of protection we have on (the Au Sable)." Mark Cooney, a professor at Thomas M. Cooley Law School, where he teaches Research and Writing, thinks that lawyers who fish get as much as they give. "Lawyers love fly-fishing because once you're on the river, your overwhelming caseload no longer exists, the deadlines no longer exist, the stress no longer exists," he says. "Once you step into the river, the river takes your mind, body, and soul to a completely different and wonderful place. And you're more than happy to give yourself to the river." Burroughs offers a reminder that the tradition of attorneys feeling passionate about rivers and fishing is an old one. "Longtime judge and author John Voelker wrote beautiful pieces about the importance of trout streams," he says. "'Testament of a Fisherman' (written under Voelker's pen name of Robert Traver) probably puts it into words as well as anyone ever has." The role nonprofit environmental organizations play has been heightened by the budget challenges faced by governmental agencies tasked with protecting natural resources. "State governments are under increased pressure," Burroughs says. "They have decreased budgets, fewer employees and are feeling spread thin and overworked." Pregler agrees and emphasizes that the groups see their role as helping, not replacing, those state agencies. But he concedes that, free of most of the red tape that government employees face, his group and others often play a big role. "The Anglers can move quicker," he says. "We have to be careful that, as a private organization, the DEQ or the DNR people don't think we're usurping their jobs. If we can assist them in any way in this era of tight budgets, we're there. They also fund some of our studies and give us grants and we're very grateful for that. Much of the work we accomplish is through the DEQ and the DNR. We don't want to come across as, 'Let's privatize everything.' That's not our intent at all." Attorneys in the organizations have frequently counseled "make peace, not war" in dealings with big energy companies. They say that Enbridge Inc. has been particularly cooperative, working with the groups to help protect rivers like the Au Sable. The company had been involved in an earlier leak in western Michigan and was looking to avoid or reduce the impact of future spills. "Enbridge has a line that goes across the main stream of the Au Sable above Parmalee Bridge between Grayling and Mio," Pregler says. "We reached out to Enbridge after we saw the Kalamazoo leak, which was also their pipe. Enbridge, being smart and proactive, was very responsive and said, 'We'll meet with you.' We said, 'What if this line cracks, right in the gem of the Au Sable?' They realized they had to be ready for that eventuality and should know the logistics, the terrain, what the river looks like there. They didn't want to be scratching their heads and wondering where to put the booms when there's already a leak. In August of last year, we did a mock oil spill and a boom deployment." After the success of that cooperation, the Anglers worked with Enbridge to deal with another potential issue. "We then pointed out that they didn't have a shut-off valve on the down-flow stream of the pipeline," Pregler says. "If there was a crack, it would flow right back into the river. What they agreed to do, a mile away, was install a giant remote-controlled valve. You might still get some leakage of what's in that segment, but much less than otherwise." The valve was installed and the river is better protected. But when war needs to be declared, the attorneys in these organizations are more than willing to hoist the battle flag. "We've spent a lot of money filing lawsuits," Pregler says. "We're not afraid to file suit or get an injunction. Savoy Energy was putting a drill pad and a processing plant very close to the Mason Tract Chapel. You've got this spiritual structure ... whether you're religious or not, it certainly moves you. It overlooks the river flowing below it. People get married there. Savoy Energy, on a federal lease, wanted to sink a well near there. We filed a lawsuit to enjoin that and we won. We're not afraid to file a lawsuit when we see a wrong being done." The legal wars can take strange turns, however. In November, The Wall Street Journal chronicled a battle between trout and their lawyers and the bugs that trout eat and THEIR lawyers. Efforts by fly fishers and the state of California to reintroduce the Paiute Trout to Silver King Creek in the Sierra Nevada ran afoul of insect advocates who claimed that the trout would endanger caddis flies, stoneflies and other invertebrates. As quoted in The Journal, lawyer for the insect camp Pete Frost said, "There's a lot of evidence of the Sierra Nevada being one of the world's great centers of endemic invertebrates." He decried the species discrimination that he said keeps the multi-legged creatures from being properly protected. "Invertebrates aren't sexy megafauna," he sniffed. The case has been winding its way through federal court, certain to add another intriguing legal chapter to a fish story that thankfully has no end. Published: Wed, Apr 24, 2013