UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ JOE BRUNEAU, DAVID PHILLIPS, DANA RALKO, │ PATRICIA RALKO, MARY RANDALL, OSRO RANDALL, │ JAMES MRDUTT, and ALICIA MRDUTT, individually and │ on behalf of all those similarly situated, │ Plaintiffs-Appellants, > No. 23-1761 │ │ v. │ │ MICHIGAN DEPARTMENT OF ENVIRONMENT, GREAT │ LAKES, AND ENERGY, et al., │ Defendants, │ │ │ MIDLAND COUNTY, MICHIGAN; GLADWIN COUNTY, │ MICHIGAN, │ Defendants-Appellees. │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:20-cv-11588—Thomas L. Ludington, District Judge.

Argued: June 13, 2024

Decided and Filed: June 20, 2024

Before: SUTTON, Chief Judge; McKEAGUE and BUSH, Circuit Judges. _________________

COUNSEL ARGUED: Daniel J. Pifko, MCALPINE PC, Auburn Hills, Michigan, for Appellants. Douglas J. Curlew, CUMMINGS, MCCLOREY, DAVIS & ACHO, P.L.C., Livonia, Michigan, for Appellees. ON BRIEF: Mark L. McAlpine, Douglas W. Eyre, Mark W. Oszust, MCALPINE PC, Auburn Hills, Michigan, for Appellants. Douglas J. Curlew, Kevin J. Campbell, CUMMINGS, MCCLOREY, DAVIS & ACHO, P.L.C., Livonia, Michigan, for Appellees. No. 23-1761 Bruneau, et al. v. Mich. Dep’t of Env’t, et al. Page 2

_________________

OPINION _________________

SUTTON, Chief Judge. Heavy rains prompted the Edenville Dam in Michigan to fail, flooding several cities downstream. Eight affected landowners sued Midland and Gladwin Counties, alleging a taking under the federal and state constitutions. The district court granted summary judgment to the counties. We affirm.

I.

Built in 1924, the Edenville Dam facilitated the creation of a hydropower plant on the Tittabawassee River in the central part of the lower peninsula of Michigan. From the beginning, the dam faced flood control issues. Efforts to remedy some of the problems gained momentum when the Federal Energy Regulatory Commission began overseeing the dam’s licensing in the 1980’s. In 1998, the Commission granted the first license with respect to the Edenville Dam to the Wolverine Power Corporation. After granting the license, the Commission focused its regulatory efforts on improving the dam’s spillways for surplus water. The various companies that owned the dam over the years had inconsistent records in complying with the relevant regulations. All of this led the Commission to revoke the existing owner’s license in September 2018 and transfer regulatory authority over the dam to the Michigan Department of