Judge Orders
Halt to Nestlé’s
Ice
Mountain Bottling Operation
by Lou
Blouin
Sweetwater Alliance North
Michigan Citizens for
Water Conservation’s landmark suit against Nestlé Waters North
America has ended in a court order to halt all spring water
withdrawals from a site in Mecosta County, Michigan.
Judge Lawrence Root handed down the order for Nestlé to terminate
its spring water withdrawals earlier today in a markedly personal
68-page written decision.
“I am holding that Nestlé’s pumping operations at the Sanctuary
Springs must stop entirely,” Root wrote. “Further, I am unable to
find that a specific pumping rate lower than 400 gallons per minute,
or any rate to date, will reduce the effects and impacts to a level
that is not harmful.”
Nestlé, the world’s largest water bottling conglomerate, is now
required to halt all withdrawals from a site known as the Sanctuary
Springs within 21 days. The ruling does not prohibit Nestlé’s 175
gallon per minute extraction of groundwater at the site of the
bottling plant.
Root called the case “undoubtedly, the most extensive and intensive
in the history of the 49th Judicial Circuit.”
The decision hinged largely on the testimony of each side’s
hydrological experts, MCWC’s Dr. David Hyndman and Nestlé’s Dr.
Charles Andrews.
“In listening to their analyses and opinions,” Root wrote, “I came
to the generalized opinion that Dr. Hyndman’s testimony and opinions
are more credible and supportable than those of Dr. Andrews.”
Root did not mince words about his skepticism of Dr. Andrews’
credibility, commenting that several “outbursts” during the trial
threw “a glimmer of light on him in the role of being a ‘company
man.’”
Though technically relevant only to Nestlé’s pumping operation from
the Sanctuary Springs site, Root’s ruling may set new precedents for
interpreting Michigan’s archaic patchwork of water laws.
Specifically, Root established the supremacy of riparian rights over
groundwater rights, arguing that groundwater extractions that impact
riparian surface water bodies are unlawful. Further, Root said that
when this groundwater is to be used outside its natural watershed,
it cannot diminish the surface water’s natural state.
In another precedent setting move, Root established that parties
pursuing actions with potential adverse ecological impacts are
obligated to prove their activities will not cause harm. Previously,
plaintiffs shouldered more of this burden of proof, forcing citizen
efforts like MCWC’s into expensive litigation to secure any sort of
injunctive relief.
Root also strongly condemned the permitting process which initially
sanctioned the Nestlé proposal.
“One of the issues here,” Root wrote, “is that, through the
permitting process, review of Nestlé’s pumping has occurred and
permits were issued based on reports generated on behalf of Nestlé,
that even the defense now admits were inaccurate, incomplete, or
otherwise flawed.”
During the permitting process, the MDEQ argued that they lacked
jurisdiction over wetlands and streams impacted by the groundwater
withdrawal, a conclusion which Root called “simply wrong.”
Root took care, however, not to decide issues outside the realm of
this particular case, most notably the issue of the commodification
of water, a topic hotly debated in Michigan since the suit was first
filed in 2001.
Though setting such a precedent was within his power, Root
refrained, arguing that “the result would or could be a complete
shutting-down of the bottled water industry in Michigan.”
“Such a final result,” he said, “would indeed protect the waters of
Michigan and the Great Lakes, but goes far beyond what is necessary
to resolve this case.”
Root argued that decisions of this magnitude are better made in the
state legislature, not the courts.
Root left this door slightly ajar, however, arguing that “water as
water” deserves special legal status, and that its “higher social
value” must be protected.
With appeals a certainty, the legal battle against Nestlé is far
from resolved, as are more fundamental issues raised by the case,
namely those related to common ownership of shared resources.
“Today is clearly a victory,” said Holly Wren Spaulding of
Sweetwater Alliance, a statewide group which has campaigned
extensively against the bottling plant. “It is one of many that we
expect in order to secure water for people and all life, rather than
profit that knows no conscience.”
Commenting on the ‘David and Goliath’ nature of their struggle, MCWC
member Lois Hartzler said, “Honestly, I didn’t have any hope going
into today—I’m totally blown away.”
Hartzler is one of five Michigan water activists who recently
returned from a national water strategy meeting in Miami.
“After hearing so many success stories in Miami which thrilled me, I
was so jealous,” Hartzler said. “But now we can claim a victory of
our own. Those eleven miles of stainless steel pipe which pump water
to the plant will now sit empty.”
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