The complaint was first filed in 2023 by the Grand Traverse Band of Ottawa and Chippewa Indians, the Watershed Center Grand Traverse Bay and the Elk-Skegemog Lakes Association.
They said Burnette Foods, a vegetable and fruit producer with a processing plant in Elk Rapids, was illegally polluting neighboring wetlands and a nearby creek that runs into Elk Lake.
The plaintiffs alleged that the processor’s application of wastewater violated not only state law but also the federal Clean Water Act.
Grand Traverse Band of Ottawa and Chippewa Indians et al v Burnette Foods, Inc. is a citizen suit under the Clean Water Act, a mechanism that occasionally allows citizens to sue as a way to “ensure the state and federal governments are diligent in prosecuting Clean Water Act violations.”
Scott Troia, an attorney with the Great Lakes Environmental Law Center, is representing all three plaintiffs. They allege the company is violating its state-issued permit as well as federal law.
“They’ve had numerous violations … especially in the summertime during cherry season,” he said. “They have to process so much fruit that they end up violating the discharge permit. Not only do they violate the discharge permit, but they flood the [spray] field to such an extent that it ends up overwhelming the field.”
Troia says residents of the area have complained about odors, foam and discolored water, especially during peak cherry-processing season. He pointed to several violation notices issued to Burnette in past years by Michigan's environmental regulatory agency.
Burnette’s lawyers, who did not immediately respond to requests for comment, asked for the lawsuit to be dismissed on multiple grounds.
They mainly took issue with what they saw as a lack of claim — that the allegations didn’t meet the mark for a Clean Water Act violation.
For one, they argued that the wetlands involved were not subject to the Clean Water Act. They pointed to the recent Sackett decision by the U.S. Supreme Court, which curtailed which wetlands can be federally regulated.
They also said that since the pollution didn’t come from a single, identifiable source like a pipe, also known as a “point source,” it wasn’t subject to federal water law.
On April 26, a federal judge in Grand Rapids denied Burnette’s motion to dismiss the case.
Troia, the lawyer for the plaintiffs, says the judgment asked the two parties to see if negotiations or a settlement agreement are possible before heading to trial proceedings.
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