By Matt Mackinder
Clarkston News Editor

With the future of the mill pond dam in question, one Clarkston resident has questions for the attorney representing Ed Adler and Bob Roth, the owners of the dam.
According to W. Dane Carey of the Traverse City-based Kuhn Rogers law firm, Adler and Roth would rather remove the dam than continue to maintain it and face legal liability in the event of a failure. Carey is also looking to make an arrangement with local government organizations to transfer control of the dam to them.
“If no one will take over the dam, then we will take the steps needed to obtain approval to remove the dam entirely,” said Carey. “That will be an expensive and effort intensive process that my clients would prefer to avoid if possible.”
Mike Fetzer rebutted Carey’s statements in the Oct. 26, 2022 Clarkston News (“Mill pond dam future in question”), to which Carey responded.
“Should ownership of the mill pond dam be transferred?” Fetzer asked. “It appears that the presumptive dam owners now question whether they really own the dam they have operated as claimed owners for decades. It seems unusual that anyone would assume operation and maintenance for any asset they believed they did not own, unless some advantage flowed to them. Still, it appears that at this late date, dam ownership must be determined and established before any proposed demolishment or transfer can be effectuated.”
Carey answered.
“In a perfect world, we would prefer to have clarity regarding ownership before taking action,” Carey said. “Unfortunately, the only way to do so would be to initiate a lawsuit to establish the fee simple owner. The better solution, in our view, would be for the city of Clarkston – one of the major stakeholders and potential record owner of the dam – to simply acknowledge ownership of the dam and take control. If the city disclaims ownership, we are not going to bring a lawsuit to secure an answer to the question. We will continue to search for a new steward for the next few months and then turn our attention to removal if we do not succeed.”
Fetzer had more statements.
“It is understandable that any dam owner might have financial interests in eventually unloading a dam onto taxpayers,” he said. “Most investors anticipate an increase in personal wealth when they acquire an asset or property for which they have assumed maintenance, insurance and other liabilities. These expenses often increase over time, and it is unfortunate when anyone does not become as wealthy as quickly as they’d hoped, or grow increasingly concerned by rising liability and insurance costs as some assets age. Who could have known that the dam had been purchased or accepted and operated without regard to financial gain or loss, and maintained all these years only as as generous civic act and public service?
“The dam owner’s attorney’s letter is unclear as to whom the dam owners claim have accused them of wrongdoing, contributing to the angst partly underlying their interest in relinquishing dam ownership. Queries to the dam owners from the public, including homeowners surrounding the pond, about fluctuating and variable pond levels and diminishing pond quality are not accusations of wrongdoing. They are reasonable requests posed to the people who admittedly control water levels through use of the dam they’ve claimed to own, from people affected by the levels, for information about the principles and standards applied to level manipulations. The dam owners have often expressed interest in unloading the dam. Water levels continue to swing. Is it unreasonable for the fluctuating pond levels to cause some to wonder whether pond levels are being manipulated to facilitate an unloading of the dam onto the public? It is not an accusation; it is a question.”
Again, Carey answered.
“Perhaps we painted with too broad a brush in our letter (sent Oct. 11 to Clarkston Mayor Eric Haven, Clarkston City Manager Jonathan Smith, Independence Township Supervisor Gerald Fisher, Oakland County Commissioner Karen Joliat, Oakland County Water Resources Commissioner Jim Nash and WRC representative Jacy Garrison, and Clarkston Mill Ponds Lake Improvement Board Riparian Representative Frank Schoebel),” said Carey. “Not all members of the public or owners of property on the mill pond have levied accusations of wrongdoing. A good number have been supportive of Mr. Adler and Mr. Roth, in fact. And of course we understand the concerns of owners around the pond who have made inquiries when the water levels fluctuated in the past. We are not here to point fingers or drag any particular individuals or groups through the mud. We have a problem, and we are looking for a solution. That’s our goal.”
Fetzer retorted with more questions.
“If the dam owners own the lower pond lake bottom, it may be that removal of the dam could result in the emergence of a large field of dry land adjacent to waterfront ready for dam owner development,” said Fetzer. “Before decisions are made about any dam purchase or destruction, it should be determined whether state and/or federal government will permit the dam to be removed and the waterway modified. The dam owners – whomever they may be – should be prepared to facilitate environmental impact and cost studies and for restoring affected lands and properties and compensating for the loss of waterfront. What will be the impact of dam removal be on property owners surrounding the ponds and the impacts above and below the ponds? Who will be liable for habitat and other restoration, and how and by by whom should homeowners and affected others be compensated for any property depreciation or other loss? What responsibilities do dam owners have to address pond quality issues related to the dam and its operation? There are many unanswered questions. Local political and government leaders must sure they are addressed before decisions are made affecting public interest.
“I am sorry if anyone procured a dam without full recognition of the costs and potential liabilities, but I hope no government or taxpayers will be saddled as a result. Just as heirs will eagerly assume the wealth bestowed upon them, so should they accept the attendant responsibilities of ownership.”
Carey concluded with another response.
“This concerned citizen certainly raises important questions,” said Carey. “We will not make any effort to convince the mill pond owners, local governments, or anyone else what is best for them. If those affected decide they do not want to shoulder the responsibility for maintaining the dam, we understand and accept that. And we are fully prepared for that as a possible, if not likely, outcome. But that does not mean my clients can be compelled to maintain the dam against their wishes. They can and will remove the dam. The alternative is not tenable.”

PHOTO: The mill pond dam sits near Main and Washington streets. Photo: Matt Mackinder