‘No contact’ order for Kalamazoo River may not have legal standing

EMMETT TWP. — A threat by law enforcement officers to arrest former oil spill worker and community activist John Bolenbaugh and a reporter from WLNS TV is raising questions about the legality of a “no contact ban” issued by the Calhoun County Health Department.

The pair were stopped Monday leaving public land after filming oil on an island in the Kalamazoo River. Officers from Emmett Township Public Safety told the two that if they returned they would “be subject to arrest.” The officer said the arrest threat was based on an EPA order, which was in effect until sometime in 2011. The incident was caught on video by Bolenbaugh and posted to his Facebook page.

Bolenbaugh has been raising concerns about the thoroughness and effectiveness of the clean up efforts. He was fired by a subcontractor, he says, for raising concerns about leaving oil on the river. He has been traversing the river locating oil on the grounds and islands, as well as submerged oil. Once he finds the oil, he videos his discovery, noting the date and location on the river.

The EPA has said there is no cover up in relation to the oil cleanup, and it takes reports of contamination seriously.

On the same day he was confronted by Emmett Township Public Safety officers, Bolenbaugh attended an EPA public briefing in Battle Creek. Throughout the presentation, an armed police officer from the Battle Creek Police Department stood beside him.

Before the public meeting started, employees of Enbridge were overheard talking about plans to arrest Bolenbaugh at the meeting.

Is the ban legal?

The ban was issued in the days following the July 25 pipeline rupture which resulted in an estimated one million gallons of heavy tar sands crude oil spewing into the Kalamazoo River and a tributary, Talmadge Creek. The spill was the largest environmental disaster in Midwest history.

The ban is alternatively identified as a ban, an order and an advisory by government officials involved in the clean up efforts. The Calhoun County Health Department’s website provides an Aug. 3 press release on the issue.

The release reads in part:

“The Calhoun County Public Health Department has issued a ban on the use of water from both of these water bodies for the purpose of all irrigation and watering of livestock. The Health Department has also issued a ban on surface water activities on the Kalamazoo River as part of the county’s state of emergency, including swimming, wading, fishing, boating, canoeing and kayaking. Local health officials warn citizens to avoid all contact with water from the Kalamazoo River until further notice.”

However, official minutes of the Calhoun County Board of Commissioners meeting from Aug. 5 — 11 days after the spill response began — show that Kelli Scott, administrator for the county, declared a state of disaster, which in turn enabled Gov. Jennifer Granholm to declare a disaster as well. That declaration allowed government agencies to take all necessary actions necessary to protect the public health. That included enforcement of the ban on surface water activities.

That declaration ended on Aug. 24. The declaration could have been extended by another 30 days if both chambers of the legislature passed a joint resolution on the issue. Granholm spokesperson Katie Carey says the governor did not seek such an extension.

“There was no further need for state disaster assistance at the end of the 28 day period,” Carey said in an email to Messenger. “Therefore there was no need for the Legislature to extend.”

As such, state law requires the local health department to seek orders from the circuit court in order to legally enforce the ban, according to a 2007 Bench Book written by the Office of the Attorney General of Michigan.

Messenger contacted Calhoun County Health Officer Jim Rutherford Wednesday about the police confrontation with the reporter and Bolenbaugh. He said the ban was authorized by the Michigan Public Health Code, but was unable to cite which section of the law authorized the action. An investigation by Messenger found that a court order was necessary.

Rutherford was contacted again and asked if the county had sought a court order.

“This is a ridiculous waste of time. You obviously want to delve into something that doesn’t matter. You seem to have a lot of time today, so why don’t you file a FOIA [Freedom of Information Act request] with our corporation counsel, and I’ll entertain that afterwards,” Rutherford said. “This is a ridiculous waste of time. The ban was put in place to protect health and safety of the community.”

Rutherford then hung up.

“As of the date of this e-mail, no restraining order prohibiting access to the river has been sought by the Calhoun County Health Department from the Calhoun County Circuit Court and no such restraining has been entered by the Calhoun County Circuit Court,” Calhoun County Corporation Counsel Richard Lindsey said in an e-mail to Messenger Wednesday shortly after 5 p.m. Lindsey confirmed that in order to proceed with an arrest, the county would have to file a petition in Circuit Court seeking a restraining order.

Lindsey went one step further in his e-mail.

“I would continue to strongly urge you not to go on the river because of the health risks and would emphasize that you do so entirely at your own risk. I am, however, aware of no court order at this point which would enable local authorities to prohibit you from accessing the river,” Lindsey wrote. “I am not aware of whether the EPA or the State of Michigan has issued any administrative order or sought any Court order and am speaking only in relation to the Calhoun County Health Department.”

EPA Region 5 Director Susan Hedman says the EPA has not issued any such order, and James McCurtis, spokesman for the Michigan Department of Community Health, said that department had not issued any such orders.

In addition, the other government agency engaged in the clean up is the Michigan Department of Natural Resources and the Environment.

“The ban was issued by the county health departments in both Calhoun and Kalamazoo counties. It is a ‘no surface contact’ ban that will likely be in effect until spring,” said Mary Dettloff, spokesperson for the MDNRE. “The sheriff departments in both counties are enforcing it.”

Asked to clarify under what authority the sheriff departments were enforcing the orders, Dettloff referred questions to the health departments.

Pattern of access issues

This is not the first time there have been media access issues involving the oil spill in Calhoun County. Two days after the initial response began, Messenger reported officials were preventing access to a bridge across from the Ceresco Dam, and on Aug. 2 it happened again.

And in August, a photographer for the Battle Creek Enquirer video taped private security guards preventing him from video taping clean up efforts.

Hugh McDiarmid, a spokesperson for the Michigan Environmental Council, said his group sent a letter to Mark Durno, the EPA’s deputy incident commander on the clean up, regarding the incident involving Emmett Township Public Safety.

“We’re seeking information, but our default position is that public lands should be open to the public unless there are valid safety or procedural reasons (EG: physical interference with cleanup) not to,” McDiarmid said.

Darren Cunningham, the WLNS reporter told by Emmett Township Public Safety Officers that if he returned to the river he would face arrest, said he would have felt he was being prohibited from doing his job because of the police order, but he had already collected all the video and interviews with John Bolenbaugh he needed to complete his story.

“After finding this out, I was a bit surprised,” he said of Messenger’s investigation into the ban. “Are you asking if I have a problem with being lied to? I don’t appreciate it.”

And Cunningham is not alone in that assessment.

“Journalists and other citizen watchdogs have a right and a duty to be able to hold the government and the oil company accountable,” says David Holtz, executive director of Progress Michigan. “That includes being able to access the water and see for themselves how the river is doing and how the government is performing.”

Rutherford, the Calhoun Health Officer took issue with that assessment.

“I think the role of verifying whether or not the river is being cleaned falls under the government’s jurisdiction,” said Rutherford. “It is not the role of the media to put on waders and look for oil.”

“As a citizen activist who encourages others to speak out and take responsibility for the decisions that are made in our community, I think the position of the county to block access of concerned community members and journalists is troubling,” says activist Marcus Trammell of Battle Creek. “Everyday I am hearing reports of deposits of oil that are spotted in areas already deemed to be clean and without encouraging citizens to bring this to the attention of the EPA the County or the contractors charged with cleaning up this mess, I don’t think a thorough job will be done.”

“It is particularly alarming, when any public or private official says that it is not the job of the public to question their judgement.” Trammell said. “I think that is a part of what has brought us this disaster.”